The controlled-substance number

Diagnosis and prescribing are separate under New Mexico law, and the number follows prescribing. Each starting license below either carries a route to the number or has none under current law.

Eligibility is the Act’s practitioner definition, NMSA 30-31-2 (P); the registration mechanics are Board of Pharmacy rule 16.19.20 NMAC. One point is disputed on the record: whether the state application requires a DEA registration. Rule 16.19.20.14 (B) lists a current DEA registration among the application materials, while the practice described on July 17 is that the state number comes first; the department is checking with the Board of Pharmacy. Need source: the boards’ current application forms have not been read directly; the route steps are stated from the Act and the rule.

The count that decides how wide this gate is does not exist in the public record this site holds.

On July 17 the board asked the department how many New Mexico providers hold prescriptive authority without the state controlled-substance number, to be checked with the Regulation and Licensing Department. No answer appears in any published text. One figure is on the record: only about three people in New Mexico hold the federal Schedule I DEA registration, which the rule does not require. A count of state registrations by license type is open research for this site; when a source lands, it goes here.

What has been searched, and what it returned. A search on August 26, 2026 covered the Board of Pharmacy's own reporting and board minutes, Regulation and Licensing Department annual reports, Legislative Finance Committee documents and fiscal impact reports, the state Sunshine Portal, prescription monitoring program reporting, and the annual New Mexico Health Care Workforce Committee report. None of them states a count of active state controlled-substance registrations, in total or by license type. Counts of licensees by profession exist and are a different number: they set a ceiling on how many could register, not how many do. Federal registration counts for New Mexico exist in prescription-monitoring program state profiles and are also a different number, since the state registration and the federal one are separate. The state count appears to be held only by the issuing agency.

Two routes would produce it. The Board of Pharmacy, within the Regulation and Licensing Department, issues the registration and can be asked for the count directly, by a public records request under the Inspection of Public Records Act if an informal request does not answer. The department itself said on July 17 that it had reached out to the Board of Pharmacy on a related question and had not yet heard back; the board could ask again on the record, which would put the answer in the rulemaking record rather than in one person's inbox. Either route is open, and the figure goes here when one of them returns it.

Entry is a two-part test: a diagnosed qualifying condition, and a separate clinician judgment of medical appropriateness. The Act’s qualifying conditions are major treatment-resistant depression, post-traumatic stress disorder, substance use disorders, end-of-life care, and other conditions the department approves.

“qualified patient” means a patient whose clinician has judged the patient to be a medically appropriate candidate for the use of medical psilocybin based on being diagnosed with a qualifying condition.Section 26-2D-3 NMSA 1978. Diagnosis is necessary but not sufficient; the judgment is layered on top of it.

The Act’s definition of “clinician” names no license type and no controlled-substance number; clinician qualifications are delegated to this rulemaking, which is where the requirement lives. The Act kept psilocybin in Schedule I and added a medical-use carve-out for the program: psilocybin and psilocin remain listed “except as provided otherwise in the Controlled Substances Act and the Medical Psilocybin Act.”

The Act’s clinician is the provider who delivers the sessions. It defines a clinician as “an approved health care provider licensed in New Mexico who holds a permit from the department to provide medical services to qualified patients,” and defines medical services as services “provided to a patient in an approved setting before, during and after the ingestion of psilocybin,” including a preparation session, an administration session, and an integration session. Read with the definition quoted above, the Act places the judgment of medical appropriateness with the provider who delivers those three sessions. The proposed rule creates a separate certifying clinician who delivers none of them, gives that role the judgment, and requires the controlled-substance number of it.

The Act protects the clinician by name. Section 5 states that “a producer, clinician or qualified patient shall not be subject to arrest, prosecution or penalty for participating in the program,” and that “a clinician shall not be subject to arrest or prosecution, penalized in any manner or denied any right or privilege for recommending the program or providing medical services.” The clause speaks to arrest, prosecution, penalty, and privilege. Whether it reaches a civil negligence claim is not settled by anything this site holds.

Verified against the enacted text, now held here: the Medical Psilocybin Act, Sections 26-2D-3 and 26-2D-5 NMSA 1978, and the enacting bill's Section 12 amendment to 30-31-6 NMSA 1978.

Two different exposures sit inside the one worry board members raised, and New Mexico law answers them differently. The first is a claim by the patient the certifier examined but did not treat. The second is a claim by someone the patient later injures.

To the patient examined, New Mexico already recognizes a duty. The annotations to the Medical Malpractice Act’s definitions state the holding of Baer v. Regents of the University of California: “This section’s broad definition of health care provider is evidence that the legislature intended to impose liability beyond the context of the physician-patient relationship. When an individual is obliged as a condition of future or continued employment to submit to a medical examination, that examination creates a duty between the examining health care provider and the examinee.” An examination a person must undergo to obtain something, performed by a provider who will not treat them, is the closest New Mexico analog to a certifying clinician, and it produced a duty. This is the strongest authority on the point in either direction, and it runs toward exposure, not away from it.

Source: annotation to Section 41-5-3 NMSA 1978, stating Baer v. Regents of Univ. of Cal., 1994-NMCA-124, 118 N.M. 685, 884 P.2d 841. The opinion itself is not held here.

To a third party the patient later injures, the duty is narrow and the court has declined to widen it. Wilschinsky v. Medina (1989) recognized a duty to people injured by a patient driving from a doctor’s office just after an injection of drugs known to affect judgment, and drew it narrowly on purpose. Lester ex rel. Mavrogenis v. Hall (1998) refused to extend it to prescribing: the court said “courts should consider with great caution whether the facts of particular cases are appropriate for recognizing physicians’ duties to third parties,” and joined “a substantial number of jurisdictions declining to extend physicians’ duties to non-patients.” Its rule for how the question gets decided is three words: “Policy determines duty.”

And policy, not foreseeability, is what decides it. Rodriguez v. Del Sol Shopping Center Associates (2014) holds that “foreseeability is not a factor for courts to consider when determining the existence of a duty, or when deciding to limit or eliminate an existing duty in a particular class of cases,” and requires courts to “articulate specific policy reasons, unrelated to foreseeability considerations,” to find no duty or to limit one. That closes the route the out-of-state case most often cited here travels: Warren v. Dinter (Minnesota) reaches duty through foreseeable reliance. The Minnesota case still illustrates how a formal decision can carry exposure; it does not predict New Mexico law.

Sources: Rodriguez v. Del Sol, 2014-NMSC-014, paragraph 1; Lester ex rel. Mavrogenis v. Hall, 1998-NMSC-047, paragraphs 1, 3, and 10; Wilschinsky v. Medina, 108 N.M. 511, 775 P.2d 713 (1989). Opinions held at the compiled authorities.

The legislature has stated a policy, in a formula it has used before. Section 5 of the Medical Psilocybin Act provides that a clinician “shall not be subject to arrest or prosecution, penalized in any manner or denied any right or privilege for recommending the program or providing medical services.” That sentence is the cannabis clause with two words changed. Section 26-2B-4 of the Lynn and Erin Compassionate Use Act, in force since 2007, reads: “A practitioner shall not be subject to arrest or prosecution, penalized in any manner or denied any right or privilege for recommending the medical use of cannabis or providing written certification for the medical use of cannabis.” Under Del Sol, a legislative statement of this kind is the category of argument that decides duty. No New Mexico decision applying either clause to a private negligence claim was located, in nineteen years of certification-based cannabis enrollment.

Sources: Section 26-2D-5 NMSA 1978; Section 26-2B-4 NMSA 1978, Subsection F.

Whether the Medical Malpractice Act would govern such a claim turns on two definitions. The controlling test for a “malpractice claim” is “whether the gravamen of the claim is predicated upon the allegation of professional negligence,” which a certification decision would likely satisfy. The harder question is coverage: the Act’s “health care provider” is a closed list, reaching a doctor of medicine, hospital, outpatient health care facility, doctor of osteopathy, chiropractor, podiatrist, nurse anesthetist, physician’s assistant, certified nurse practitioner, clinical nurse specialist or certified nurse-midwife, and business entities providing care primarily through them. A certifying clinician inside that list carries the Act’s damages cap and patient compensation fund and the review commission prerequisite; a certifying clinician outside it, and several license types that can diagnose the qualifying conditions are outside it, carries none of them.

Sources: Section 41-5-3 NMSA 1978, Subsections D and G, 2025 text; the gravamen test from Christus St. Vincent Regional Medical Center v. Duarte-Afara, 2011-NMCA-112, as stated in the annotations to that section.

Primary: the sections and opinions cited above, held at source-text/nm-liability-authorities-2025.txt. Illustrative and out of state: Warren v. Dinter (Minnesota). Not resolved by anything here: whether a court would find the certification creates a duty to the patient, whether either exemption clause reaches a civil claim, and whether any carrier writes coverage for this service.

• The prescriber count above, which the board asked for and the published texts do not answer.
• The certification wording: in public comment, Denali Wilson said requiring a full risk-and-benefit judgment, rather than an assessment of medical risk, raises the clinician’s exposure and the chance of insurance clawbacks on a Schedule I service.
• Federal rescheduling: Larry Leeman said a move to Schedule III, which he considers likely by mid-2027, could reopen the requirement through the normal rule-change process.

Chris Peskuski’s standing objection is that the requirement is an access bottleneck that shifts liability away from the room where the patient is treated. The positions as spoken on July 9 are in the record section below.

The board did not endorse the requirement and sent it back to the department. No vote was taken. Ian Dunn will take it back to the department to reconsider.