NEW MEXICO.  New Mexico Statutes. 

 

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CHAPTER 24
Health and Safety

 

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24-14-1. Short title. (1961)

This act [ 24-14-1 to 24-14-17, 24-14-20 to 24-14-31 NMSA 1978] may be cited as the "Vital Statistics Act".

 

24-14-2. Definitions. (1981)

As used in the Vital Statistics Act [ 24-14-1 to 24-14-17, 24-14-20 to 24-14-31 NMSA 1978]:

A.     "vital statistics" means the data derived from certificates and reports of birth, death, spontaneous fetal death, induced abortion and related reports;

B.     "system of vital statistics" includes the registration, collection, preservation, amendment and certification of vital records and related activities, including the tabulation, analysis and publication of statistical data derived from these records;

C.     "filing" means the presentation of a certificate, report or other record of a birth, death, spontaneous fetal death or adoption for registration by the vital statistics bureau;

D.     "registration" means the acceptance by the vital statistics bureau and the incorporation in its official records of certificates, reports or other records provided for in the Vital Statistics Act of births, deaths, spontaneous fetal deaths, adoptions and legitimations;

E.     "live birth" means the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy, which after the expulsion or extraction breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached;

F.     "spontaneous fetal death" means death prior to the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy, resulting in other than a live birth and which is not an induced abortion ; and death is indicated by the fact that after the expulsion or extraction the fetus does not breathe or show any other evidence of life as beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscles;

G.     "dead body" means a human body, or parts of such body or bones thereof other than skeletal remains which can be classified as artifacts, dead within the meaning of Section 12-2-4 NMSA 1978;

H.     "final disposition" means the burial, interment, cremation, entombment, pulverization or other authorized disposition of a dead body or fetus;

I.     "department" means the health and environment department [department of health];

J.     "court" means a court of competent jurisdiction;

K.     "state registrar" means the designated employee of the health services division of the health and environment department [department of health];

L.     "vital records" means certificates of birth and death;

M.     "induced abortion" means the purposeful interruption of pregnancy with the intention other than to produce a live-born infant;

N.     "physician" means a person authorized or licensed to practice medicine or osteopathy pursuant to the laws of this state; and

O.     "institution" means any establishment, public or private:

(1)     which provides in-patient medical, surgical, or diagnostic care or treatment;

(2)     which provides nursing, custodial or domiciliary care; or

(3)     to which persons are committed by law.

 

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24-14-18. Report of induced abortions. (1981)

A.     Each induced abortion which occurs in this state shall be reported to the state registrar within five days by the person in charge of the institution in which the induced abortion was performed. If the induced abortion was performed outside an institution, the attending physician shall prepare and file the report.

B.     The reports required under this section are statistical reports to be used only for medical and health purposes and shall not be incorporated into the permanent official records of the system of vital statistics. The report shall not include the name or address of the patient involved in the abortion . The department shall not release the name or address of the physician involved in the abortion . A schedule for the disposition of these reports shall be provided for by regulation.

 

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24-14-28. Copies or data from the system of vital statistics. (1987)

In accordance with the Vital Statistics Act [ 24-14-1 to 24-14-17, 24-14-20 to 24-14-31 NMSA 1978] and the regulations adopted pursuant to that act:

A.     the state registrar shall upon receipt of a written application issue a certified copy of any certificate or record in his custody to anyone demonstrating a tangible and direct interest, except that:

(1)     certified copies of birth records shall exclude all medical information unless a complete certificate is specifically requested and the request for a complete certificate is approved by the state registrar; and

(2)     issuance of copies of birth records shall be subject to the provisions of the Missing Child Reporting Act [ 32A-14-1 to 32A-14-4 NMSA 1978];

B.     a certified copy of a certificate or any part thereof, including records reproduced from paper documents or photographic, magnetic or electronic files, shall be considered for all purposes the same as the original and is prima facie evidence of the facts therein stated; provided that the evidentiary value of a certificate or record filed more than one year after the event or a record which has been amended shall be determined by the judicial or administrative body or official before whom the certificate is offered as evidence;

C.     the agency of the United States government responsible for national vital statistics may be furnished copies or data as it may require for national statistics, upon the condition that the data shall not be used for other than statistical purposes unless so authorized by the state registrar;

D.     at the discretion of the state registrar, federal, state, local and other public or private agencies may upon request be furnished copies or data for statistical or administrative purposes upon the conditions as may be prescribed by the department;

E.     no person shall prepare or issue any report of an induced abortion or any certificate which purports to be an original, certified copy or copy of a certificate of birth, death or spontaneous fetal death or reproduction of a certified copy except as authorized in the Vital Statistics Act or regulations adopted pursuant to that act; and

F.     the state registrar may by written agreement transmit copies of records and other reports required by the Vital Statistics Act to offices of vital statistics outside this state when the records or other reports relate to residents of those jurisdictions or persons born outside those jurisdictions. The agreement shall require that the copies be used for statistical purposes only and shall provide for the retention and disposition of copies. Copies received by the state registrar from offices of vital statistics in other states shall be handled in the manner prescribed in this section.

 

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24-14-30. Duty to furnish information. (1981)

A.     Any person having knowledge of the facts regarding any birth, death, spontaneous fetal death or induced abortion shall furnish this information upon demand to the state registrar.

B.     Not later than the tenth day of the month following the month of occurrence, each funeral service practitioner shall send to the state registrar a list showing all dead bodies embalmed or otherwise prepared for final disposition during the preceding month. Such list shall be made on forms prescribed by the state registrar.

 

 

24-14-31. Penalties. (1993)

A.     Except for violations of Section 24-14-18 NMSA 1978, any person is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978, who willfully and knowingly:

(1)     makes any false statement or supplies any false information in a report, record or certificate required to be filed;

(2)     with the intent to deceive, alters, amends or mutilates any report, record or certificate;

(3)     uses or attempts to use or furnishes to another for use for any purpose of deception any certificate, record, report or certified copy that has been altered, amended or mutilated or that contains false information; or

(4)     neglects or violates any of the provisions of the Vital Statistics Act [ 24-14-1 to 24-14-17, 24-14-20 to 24-14-31 NMSA 1978] or refuses to perform any of the duties imposed upon him by that act.

B.     Any person who willfully and knowingly permits inspection of or discloses information contained in vital statistics records of adoptions or induced abortions or copies or issues a copy of all or part of any record of an adoption or induced abortion , except as authorized by law, is guilty of a fourth degree felony and shall be sentenced in accordance with the provisions of the Criminal Sentencing Act [Chapter 31, Article 18 NMSA 1978].

 

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CHAPTER 30
Criminal Offenses

 

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30-5-1. Definitions.  [The provisions of 30-5-1 to 30-5-3 have been held to be unconstitutional and unenforceable to the extent that they conflict with the holding of Roe v. Wade.](1969)

As used in this article [ 30-5-1 NMSA 1978];

A.     "pregnancy" means the implantation of an embryo in the uterus;

B.     "accredited hospital" means one licensed by the healt the request of said woman and her then living parent or guardian, by a physician licensed by the state of New Mexico using acceptable medical procedures in an accredited hospital upon written certification by the members of a special hospital board that:

(1)     the continuation of the pregnancy, in their opinion, is likely to result in the death of the woman or the grave impairment of the physical or mental health of the woman; or

(2)     the child probably will have a grave physical or mental defect; or

(3)     the pregnancy resulted from rape, as defined in Sections 40A-9-2 through 40A-9-4 NMSA 1953. Under this paragraph, to justify a medical termination of the pregnancy, the woman must present to the special hospital board an affidavit that she has been raped and that the rape has been or will be reported to an appropriate law enforcement official; or

(4)     the pregnancy resulted from incest;

D.     "special hospital board" means a committee of two licensed physicians or their appointed alternates who are members of the medical staff at the accredited hospital where the proposed justified medical termination would be performed, and who meet for the purpose of determining the question of medical justification in an individual case, and maintain a written record of the proceedings and deliberations of such board.

 

30-5-2. Persons and institutions exempt. (1969)

This article does not require a hospital to admit any patient for the purposes of performing an abortion , nor is any hospital required to create a special hospital board. A person who is a member of, or associated with, the staff of a hospital, or any employee of a hospital, in which a justified medical termination has been authorized and who objects to the justified medical termination on moral or religious grounds shall not be required to participate in medical procedures which will result in the termination of pregnancy, and the refusal of any such person to participate shall not form the basis of any disciplinary or other recriminatory action against such person.

 

30-5-3. Criminal abortion.

Criminal abortion consists of administering to any pregnant woman any medicine, drug or other substance, or using any method or means whereby an untimely termination of her pregnancy is produced, or attempted to be produced, with the intent to destroy the fetus, and the termination is not a justified medical termination.

Whoever commits criminal abortion is guilty of a fourth degree felony. Whoever commits criminal abortion which results in the death of the woman is guilty of a second degree felony.

 

ARTICLE 5A
Partial-Birth Abortion Ban

 

30-5A-3. Prohibition of partial-birth abortions. (2000)

No person shall perform a partial-birth abortion except a physician who has determined that in his opinion the partial-birth abortion is necessary to save the life of a pregnant female or prevent great bodily harm to a pregnant female:

A.     because her life is endangered or she is at risk of great bodily harm due to a physical disorder, illness or injury, including a condition caused by or arising from the pregnancy; and

B.     no other medical procedure would suffice for the purpose of saving her life or preventing great bodily harm to her.

 

30-5A-4. Civil remedies. (2000)

A.     Except as provided in Subsection B of this section, the following persons may bring a civil action to obtain relief pursuant to this section against a person who has violated the provisions of Section 3 [ 30-5A-3 NMSA 1978] of the Partial-Birth Abortion Ban Act:

(1)     the person on whom a partial-birth abortion was performed;

(2)     the biological father of the fetus that was the subject of the partial-birth abortion; and

(3)     the parents of the person on whom the partial-birth abortion was performed if that person had not reached the age of majority at the time of the abortion.

B.     The persons named as having a right of action in Subsection A of this section are barred from bringing a civil action pursuant to this section if:

(1)     the pregnancy of the person on whom the partial-birth abortion was performed resulted from criminal conduct of the person seeking to bring the action; or

(2)     the partial-birth abortion was consented to by the person seeking to bring the action.

C.     A person authorized to bring a civil action pursuant to this section may recover compensatory damages for loss caused by violation of Section 3 of the Partial-Birth Abortion Ban Act [ 30-5A-3 NMSA 1978].

 

30-5A-5. Criminal penalty; exception. (2000)

A.     Except as provided in Subsections B, C, D and E of this section, a person who violates Section 3 [ 30-5A-3 NMSA 1978] of the Partial-Birth Abortion Ban Act is guilty of a fourth degree felony and shall be sentenced pursuant to Section 31-18-15 NMSA 1978.

B.     The provisions of the Partial-Birth Abortion Ban Act [ 30-5A-1 NMSA 1978] shall apply only to the exact procedure specified in that act.

C.     The provisions of the Partial-Birth Abortion Ban Act are not intended to criminalize any other method of terminating a woman's pregnancy.

D.     The provisions of the Partial-Birth Abortion Ban Act are not intended to subject a woman, upon whom the procedure specified in that act is performed, to criminal culpability as an accomplice, aider, abettor, solicitor or conspirator.

E.     The provisions of the Partial-Birth Abortion Ban Act are not intended to subject any person to criminal culpability pursuant to laws governing attempt, solicitation or conspiracy to commit a crime.

 

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Medical Assistance Division Program Policy Manual

 

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8.325.7 PREGNANCY TERMINATION PROCEDURES

 

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8.325.7.1 ISSUING AGENCY: New Mexico Human Services Department.

 

8.325.7.2 SCOPE: The rule applies to the general public.

 

8.325.7.3 STATUTORY AUTHORITY: The New Mexico medicaid program is administered pursuant to

regulations promulgated by the federal department of health and human services under Title XIX of the Social

Security Act, as amended and by the state human services department pursuant to state statute. See Section 27-2-12

et seq. NMSA 1978 (Repl. Pamp. 1991).

 

8.325.7.4 DURATION: Permanent

 

8.325.7.5 EFFECTIVE DATE: May 1, 1995

 

8.325.7.6 OBJECTIVE: The objective of these regulations is to provide policies for the service portion of

the New Mexico medicaid program. These policies describe eligible providers, covered services, noncovered

services, utilization review, and provider reimbursement.

 

8.325.7.7 DEFINITIONS: [RESERVED]

 

8.325.7.8 MISSION STATEMENT: The mission of the New Mexico medical assistance division (MAD)

is to maximize the health status of medicaid-eligible individuals by furnishing payment for quality health services at

levels comparable to private health plans.

 

8.325.7.9 PREGNANCY TERMINATION PROCEDURES: The New Mexico medical assistance

program (medicaid) pays for services to terminate pregnancy only when certain conditions are met. This part

describes the conditions, eligible providers, covered services, service limitations, and general reimbursement

methodology.

 

8.325.7.10 ELIGIBLE PROVIDERS:

A. Upon approval of New Mexico medical assistance program provider participation agreements by

the New Mexico medical assistance division (MAD), the following providers are eligible to be reimbursed for

furnishing services to terminate pregnancy or counseling and mental health services.

B. Clinical providers:

(1) individuals licensed in New Mexico as physicians by the board of medical examiners or board of

osteopathy;

(2) hospitals or clinics; and

(3) individuals licensed in New Mexico as physicians by the board of medical examiners or board of

osteopathy and who are board certified in psychiatry, and/or the groups they form.

C. Once enrolled, approved providers receive a packet of information, including medicaid program

policies, billing instructions, utilization review instructions and other pertinent material from MAD. Providers are

responsible for ensuring that they receive and maintain these materials.

 

8.325.7.11 PROVIDER RESPONSIBILITIES:

A. Providers of pregnancy termination services must submit with their billing, the written

certification of a physician that the procedure was necessary to save the life of the mother. In the case of rape or

incest, the provider must submit with the billing, a certification by the treating physician and/or appropriate

reporting agency as to the cause of the pregnancy, or a certification that the patient is not physically or emotionally

able to report the incident.

B. Providers who furnish services to medicaid recipients must comply with all specified medicaid

participation requirements. See 8.302.1 NMAC, General Provider Policies.

C. Providers must verify that individuals are eligible for medicaid at the time services are furnished

and determine if medicaid recipients have other health insurance coverage.

D. Providers must maintain records that are sufficient to fully disclose the extent and nature of the

services provided to recipients. See 8.302.1 NMAC, General Provider Policies.

 

8.325.7.12 COVERED SERVICES AND SERVICE LIMITATIONS:

A. Medicaid covers services to terminate pregnancy when the treating physician certifies that in their

best medical judgment:

(1) the procedure is necessary to save the life of the mother as certified in writing by a physician;

(2) the pregnancy is a result of rape or incest, as certified by the treating physician and/or the

appropriate reporting agency, or if not reported, the patient is not physically or emotionally able to report the

incident; or

(3) the procedure is necessary to terminate an ectopic pregnancy; or

(4) the procedure is necessary because the pregnancy aggravates a pre-existing condition, makes

treatment of a condition impossible, interferes with or hampers a diagnosis, or has a profound negative impact upon

the physical or mental health of an individual.

B. Psychological services: Medicaid covers mental health services for pregnant women and for any

other medical condition that may complicate the pregnancy. For information about mental health professional

services, see 8.310.8 NMAC [MAD-717], Mental Health Professional Services. For information about other mental

health services, see 8.310.3 NMAC [MAD-712], Rural Health Clinic Services; 8.310.4 NMAC [MAD-713],

Federally Qualified Health Center Services; 8.311.4 NMAC [MAD-722], Outpatient Psychiatric Services and

Partial Hospitalization; 8.315.3 NMAC [MAD-737], Psychosocial Rehabilitation Services; 8.320.2 NMAC [MAD-

740], Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Services; 8.320.3 NMAC [MAD-741], Tot

to Teen Healthcheck; 8.321 NMAC [MAD-742], Enhanced EPSDT-Residential Services; 8.322 NMAC [MAD-

745], Enhanced EPSDT-Community Mental Health Services; and 8.320.6 NMAC [MAD-747], School Based

Services for Recipients Under Twenty-One Years of Age.

C. Oral medications: Medicaid covers oral medications approved by the food and drug

administration (FDA) that have been determined a benefit by MAD for pregnancy termination. Medicaid will cover

oral medications when administered by a physician, or by another licensed health care professional acting within the

scope of their practice under New Mexico law. Oral medications will be covered for individuals meeting the

coverage for termination procedures as defined in this part.

 

8.325.7.13 NONCOVERED SERVICES: Services to terminate a pregnancy are subject to the limitations

and coverage of services which exist for other medicaid services. See 8.301.3 NMAC [MAD-602], General

Noncovered Services. Medicaid does not cover the performance of ‘elective’ termination procedures.

 

8.325.7.14 PRIOR AUTHORIZATION AND UTILIZATION REVIEW: All medicaid services are

subject to utilization review for medical necessity and program compliance. Reviews may be performed before

services are furnished, after services are furnished and before payment is made, or after payment is made. See

8.302.5 NMAC [MAD-705], Prior Approval and Utilization Review. Once enrolled, providers receive instructions

and documentation forms necessary for prior approval and claims processing.

A. Prior authorization: Services to terminate pregnancy do not require prior authorization from

MAD or its designee.

B. Eligibility determination: Providers must verify that individuals are eligible for medicaid at the

time services are furnished and determine if medicaid recipients have other health insurance.

C. Reconsideration: Providers who disagree with review decisions can request a re-review and

reconsideration. See 8.350.2 NMAC [MAD-953], Reconsideration of Utilization Review Decisions.

 

8.325.7.15 INFORMED CONSENT:

A. The provider may not require any individual to undergo any medical service, diagnosis, or

treatment or to accept any other health service provided under the plan if the individual objects, or in the case of a

child, a parent or guardian objects, on religious grounds. Voluntary, informed consent by an adult or emancipated

minor recipient must be given to the provider prior to the procedure to terminate pregnancy, except in the following

circumstances:

(1) in instances where a medical emergency exists. A ‘medical emergency’ exists in situations where

the attending physician certifies that, based on the facts of the case presented, in his/her best clinical judgment, the

life or the health of the recipient is endangered by the pregnancy so as to require an immediate pregnancy

termination procedure;

(2) in instances where the recipient is unconscious, incapacitated, or otherwise incapable of giving

consent. In such circumstances, the consent shall be obtained as prescribed by New Mexico law; or

(3) in instances where pregnancy results from rape or incest or the continuation of the pregnancy

endangers the life of the recipient;

(4) consent is valid for thirty (30) days from the date of signature, unless withdrawn by the recipient

prior to the procedure.

B. Required acknowledgements: In signing the consent, the recipient must acknowledge that she

has received, at least, the following information:

(1) alternatives to pregnancy termination;

(2) medical procedure(s) to be used;

(3) possibility of physical and/or mental side effects from the performance of the procedure;

(4) right to receive abortion counseling services from an independent medicaid provider; and

(5) right to withdraw consent up until the time the procedure is going to be performed.

C. Record retention: A dated and signed copy of the consent, with counseling referral information,

if requested, must be given to the recipient. The provider must keep the original signed consent with the recipient’s

medical records.

D. Consent for minors in instances not involving life endangerment, rape or incest: Informed

written consent for an un-emancipated minor to terminate a pregnancy must be obtained, dated and signed by a

parent, legal guardian, or other acting ‘in loco parentis’ to the minor. An exception is when the minor objects to

parental involvement for personal reasons or the parent, guardian or adult acting ‘in loco parentis’ is not available.

The treating physician shall note the minor’s objections or the unavailability of the parent in the minor’s chart, and:

(1) certify in his/her best clinical judgment, the minor is mature enough and well enough informed to

make the decision about the procedure: or, in the circumstance where sufficient maturity and information are not

present or apparent, that the procedure is in the minor’s best interests on the information provided to the treating

physician by the minor; or,

(2) refer the minor to an independent medicaid counselor in circumstances where the treating

physician believes counseling is necessary before a clinical judgment can be rendered on the criteria established in

Paragraph (1) above. Referrals shall be made on the same day of the visit between the minor and the treating

physician where consent is discussed. The independent medicaid counselor shall meet with the minor and confirm

in writing to the treating physician whether or not the minor is mature enough and sufficiently informed to make the

decision about the procedure. Or, in the circumstance where sufficient maturity and information are not present or

apparent, that the procedure is in the minor’s best interests based on the information provided to the counselor by the

minor. The counselor’s written report is due to the treating physician within 72 hours of initial referral.

(3) a minor shall not be required to obtain the counseling referenced in Paragraph (2) above.

However, if the treating physician is unable or unwilling to independently certify the requirements established in

Paragraph (1) above, the minor must be informed by the treating physician that written consent must be obtained by

the parent, legal guardian or parent ‘in loco parentis’ prior to performing the procedure; or, that the minor must

obtain a court order allowing the procedure without parental consent.

E. Reimbursement: Medical providers must submit claims for reimbursement on the HCFA 1500

or UB92 claim forms or their successors, based on provider type. See 8.302.2 NMAC [MAD-702], Billing for

Medicaid Services. A copy of the certification, and any other required documentation, must be retained by the

provider in the recipient’s medical record. Instructions on documentation, billing, and claims processing are sent to

approved medicaid providers. Reimbursement for the performance of services to terminate pregnancy is made at the

lesser of the following:

(1) the provider’s billed charge; or

(2) the MAD fee schedule for the specific service or procedure.

(a) The provider’s billed charge must be the usual and customary charge for services.

(b) “Usual and customary charge” refers to the amount which an individual provider charges

the general public in the majority of cases for a specific procedure or service.

 

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