2023 New Mexico Statutes › Chapter 61 - Professional and Occupational Licenses › Article 3 - Nursing › Section 61-3-28 - Disciplinary proceedings; judicial review; application of uniform licensing act; limitation.

A. In accordance with the procedures contained in the Uniform Licensing Act [61-1-1 to 61-1-31 NMSA 1978], the board may deny, revoke or suspend any license held or applied for under the Nursing Practice Act, reprimand or place a licensee on probation or deny, limit or revoke the multistate licensure privilege of a nurse desiring to practice or practicing professional registered nursing or licensed practical nursing as provided in the Nurse Licensure Compact [61-3-24.1 NMSA 1978] upon grounds that the licensee, applicant or nurse:
(1) is guilty of fraud or deceit in procuring or attempting to procure a license or certificate of registration;
(2) is convicted of a felony;
(3) is unfit or incompetent;
(4) is intemperate or is addicted to the use of habit-forming drugs;
(5) is mentally incompetent;
(6) is guilty of unprofessional conduct as defined by the rules and regulations adopted by the board pursuant to the Nursing Practice Act;
(7) has willfully or repeatedly violated any provisions of the Nursing Practice Act, including any rule or regulation adopted by the board pursuant to that act;
(8) was licensed to practice nursing in any jurisdiction, territory or possession of the United States or another country and was the subject of disciplinary action as a licensee for acts similar to acts described in this subsection. A certified copy of the record of the jurisdiction, territory or possession of the United States or another country taking the disciplinary action is conclusive evidence of the action; or
(9) uses conversion therapy on a minor.
B. Disciplinary proceedings may be instituted by any person, shall be by complaint and shall conform with the provisions of the Uniform Licensing Act. Any party to the hearing may obtain a copy of the hearing record upon payment of costs for the copy.
C. Any person filing a complaint shall be immune from liability arising out of civil action if the complaint is filed with reasonable care.
D. The board shall not initiate a disciplinary action more than two years after the date that it receives a complaint.
E. The time limitation contained in Subsection D of this section shall not be tolled by any civil or criminal litigation in which the licensee or applicant is a party, arising substantially from the same facts, conduct, transactions or occurrences that would be the basis for the board's disciplinary action.
F. The board may recover the costs associated with the investigation and disposition of a disciplinary proceeding from the nurse who is the subject of the proceeding if the nurse is practicing professional registered nursing or licensed practical nursing pursuant to a multistate licensure privilege as provided in the Nurse Licensure Compact.
G. As used in this section:
(1) "conversion therapy" means any practice or treatment that seeks to change a person's sexual orientation or gender identity, including any effort to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward persons of the same sex. "Conversion therapy" does not mean:
(a) counseling or mental health services that provide acceptance, support and understanding of a person without seeking to change gender identity or sexual orientation; or
(b) mental health services that facilitate a person's coping, social support, sexual orientation or gender identity exploration and development, including an intervention to prevent or address unlawful conduct or unsafe sexual practices, without seeking to change gender identity or sexual orientation;
(2) "gender identity" means a person's self-perception, or perception of that person by another, of the person's identity as a male or female based upon the person's appearance, behavior or physical characteristics that are in accord or opposed to the person's physical anatomy, chromosomal sex or sex at birth;
(3) "minor" means a person under eighteen years of age; and
(4) "sexual orientation" means heterosexuality, homosexuality or bisexuality, whether actual or perceived.
History:
1953 Comp., § 67-2-24, enacted by Laws 1968, ch. 44, § 24; 1977, ch. 220, § 18; 1982, ch. 108, § 6; 1985, ch. 67, § 6; 1991, ch. 253, § 1; 1993, ch. 61, § 6; 2001, ch. 137, § 11; 2003, ch. 307, § 8; 2017, ch. 132, § 2.
ANNOTATIONS
The 2017 amendment,
effective June 16, 2017, prohibited the use of conversion therapy on a minor, provided that the board of nursing may deny, revoke or suspend any license issued by the board if the licensee uses conversion therapy on a minor, and defined certain terms as used in this section; in Subsection A, added Paragraph A(9); in Subsection C, after "complaint is filed", deleted "in good faith and without actual malice" and added "with reasonable care"; and added Subsection G.
The 2003 amendment,
effective January 1, 2004, in Subsection A inserted "or deny, limit or revoke the multistate licensure privilege of a nurse desiring to practice or practicing professional registered nursing or licensed practical nursing as provided in the Nurse Licensure Compact" following "licensee on probation" near the end, and added "or nurse" at the end; and added Subsection F.
The 2001 amendment,
effective June 15, 2001, deleted "sworn" preceding "complaint" in Subsections B, C, and D and deleted "Notwithstanding Section 61-1-3.1 NMSA 1978" from the beginning of Subsection D.
The 1993 amendment,
effective June 18, 1993, deleted "subsequent to licensure" following "felony" in Paragraph (2) of Subsection A; rewrote Paragraph (8) of Subsection A; and substituted "NMSA 1978" for "of the Uniform Licensing Act" in Subsection D.
The 1991 amendment,
effective June 14, 1991, added "Limitation" to the section heading; in Subsection A, inserted "or reprimand or place a licensee on probation" in the introductory paragraph, added "as defined by the rules and regulations adopted by the board pursuant to the Nursing Practice Act" at the end of Paragraph (6), and added "including any rule or regulation adopted by the board pursuant to that act" at the end of Paragraph (7); and added Subsections D and E.
Volunteers for the board of nursing would likely be covered under the liability policies for the state of New Mexico.
— The New Mexico Tort Claims Act explicitly contemplates that volunteers acting on behalf of the government may be considered public employees subject to its protections and to its waivers of those protections, 41-4-3(F)(3) NMSA 1978, and therefore, volunteers charged with reviewing complaints and making recommendations to the nursing board regarding potential disciplinary action against licensees would likely be deemed public employees acting on behalf or in service of a governmental entity, and liability policies of the state of New Mexico likely would cover negligent acts by these volunteers.
Use of Volunteers at the New Mexico State Board of Nursing
(11/26/18), Att'y Gen. Adv. Ltr. 2018-09.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 61 Am. Jur. 2d Physicians, Surgeons and Other Healers §§ 74 to 120.
Revocability of license for fraud or other misconduct before or at time of its issuance, 165 A.L.R. 1138.
Stay pending review of judgment or order revoking or suspending license, 166 A.L.R. 575.
Privilege of communications by or to nurse or attendant, 47 A.L.R.2d 742.
Nurse's liability for her own negligence or malpractice, 51 A.L.R.2d 970.
Liability of operating surgeon for negligence of nurse assisting him, 12 A.L.R.3d 1017.
Comment note on hearsay evidence in proceedings before state administrative agencies, 36 A.L.R.3d 12.
Validity, construction and application of statutes making public proceedings open to the public, 38 A.L.R.3d 1070, 34 A.L.R.5th 591.
Revocation of nurse's license to practice profession, 55 A.L.R.3d 1141.
Physician's or other healer's conduct, or conviction of offense, not directly related to medical practice, as ground for disciplinary action, 34 A.L.R.4th 609.
70 C.J.S. Physicians, Surgeons, and Other Health-Care Providers §§ 24, 38 to 42.