AN ACT
RELATING TO PUBLIC HEALTH EMERGENCIES;
ENACTING THE PUBLIC HEALTH EMERGENCY RESPONSE ACT; PROVIDING PROCEDURES FOR
DECLARING AND RESPONDING TO A PUBLIC HEALTH EMERGENCY; PROVIDING CIVIL
PENALTIES; DECLARING AN EMERGENCY.
BE IT ENACTED BY THE LEGISLATURE OF
THE STATE OF NEW MEXICO:
Section 1. A new section of Chapter 12, Article 10 NMSA
1978 is enacted to read:
"SHORT TITLE.--This act
may be cited as the "Public Health Emergency Response Act"."
Section 2. A new section of Chapter 12, Article 10 NMSA
1978 is enacted to read:
"PURPOSES OF ACT.--The
purposes of the Public Health Emergency Response Act are to:
A. provide the state of New Mexico with the
ability to manage public health emergencies in a manner that protects civil
rights and the liberties of individual persons;
B. prepare for a public health emergency; and
C. provide access to appropriate care, if
needed, for an indefinite number of infected, exposed or endangered people in
the event of a public health emergency."
Section 3. A new section of Chapter 12, Article 10 NMSA
1978 is enacted to read:
"DEFINITIONS.--As used in
the Public Health Emergency Response Act:
A. "attorney general" means the
attorney general for the state of New Mexico;
B. "court" means the district court
for the judicial district where a public health emergency is occurring, the
district court for Santa Fe county or, in the event that a district court
cannot adequately provide services, a district court designated by the New
Mexico supreme court;
C. "director" means the director of
homeland security;
D. "health care supplies" means
medication, durable medical equipment, instruments, linens or any other
material that the state of New Mexico may need to use in a public health
emergency, including supplies for preparedness, mitigation and recovery;
E. "health facility" means:
(1) a facility licensed by the state of New
Mexico pursuant to the provisions of the Public Health Act;
(2) a non-federal facility or building, whether
public or private, for-profit or nonprofit, that is used, operated or designed
to provide health services, medical treatment, nursing services, rehabilitative
services or preventive care;
(3) a federal facility, when the appropriate
federal entity provides its consent; or
(4) the following properties when they are used
for, or in connection with, health-related activities:
(a) laboratories;
(b) research facilities;
(c) pharmacies;
(d) laundry facilities;
(e) health personnel training and lodging
facilities;
(f) patient, guest and health personnel food
service facilities; and
(g) offices or office buildings used by persons
engaged in health care professions or services;
F. "isolation" means the physical
separation for possible medical care of persons who are infected or who are
reasonably believed to be infected with a threatening communicable disease or
potential threatening communicable disease from non-isolated persons, to
protect against the transmission of the threatening communicable disease to non‑isolated
persons;
G. "public health emergency" means the
occurrence or imminent threat of exposure to an extremely dangerous condition
or a highly infectious or toxic agent, including a threatening communicable
disease, that poses an imminent threat of substantial harm to the population of
the state of New Mexico or any portion thereof;
H. "public health official" means the
secretary of health or his designee, including a qualified public individual or
group or a qualified private individual or group, as determined by the
secretary of health;
I. "quarantine" means the
precautionary physical separation of persons who have or may have been exposed
to a threatening communicable disease or a potentially threatening communicable
disease and who do not show signs or symptoms of a threatening communicable
disease, from non-quarantined persons, to protect against the transmission of
the disease to non-quarantined persons;
J. "secretary of health" means the
secretary of health or his designee;
K. "secretary of public safety" means
the secretary of public safety or his designee; and
L. "threatening communicable disease"
means a disease that causes death or great bodily harm that passes from one
person to another and for which there are no means by which the public can
reasonably avoid the risk of contracting the disease. "Threatening communicable disease"
does not include acquired immune deficiency syndrome or other infections caused
by the human immunodeficiency virus."
Section 4. A new section of Chapter 12, Article 10 NMSA
1978 is enacted to read:
"ENHANCED PUBLIC HEALTH
ADVISORY.--
A. The governor, after consultation with the
secretary of health, may issue an enhanced public health advisory if the
governor has reasonable cause to believe that a public health emergency may
occur.
B. The secretary of health may use powers and
duties conferred under the Public Health Act to investigate the conditions
leading to the issuance of the enhanced public health advisory.
C. The enhanced public health advisory shall be
broadly disseminated in English, Spanish and other appropriate languages to the
impacted population."
Section 5. A new section of Chapter 12, Article 10 NMSA
1978 is enacted to read:
"DECLARING A STATE OF
PUBLIC HEALTH EMERGENCY--TERMINATING THE EMERGENCY.--
A. A state of public health emergency may be
declared by the governor upon the occurrence of a public health emergency. Prior to a declaration of a state of public
health emergency, the governor shall consult with the secretary of health. The governor shall authorize the secretary of
health, the secretary of public safety and the director to coordinate a
response to the public health emergency.
B. A state of public health emergency shall be
declared in an executive order that specifies:
(1) the nature of the public health emergency;
(2) the political subdivisions or geographic
areas affected by the public health emergency;
(3) the conditions that caused the public health
emergency;
(4) the expected duration of the public health
emergency, if less than thirty days;
(5) the public health officials needed to assist
in the coordination of a public health emergency response; and
(6) any other provisions necessary to implement
the executive order.
C. A declaration of a state of public health
emergency shall not abrogate any disease-reporting requirements set forth in
the Public Health Act.
D. A declaration of a state of public health
emergency shall be terminated:
(1) by the governor, after consultation with the
secretary of health, upon determining that there is no longer a public health
emergency; or
(2) automatically after thirty days, unless
renewed by the governor after consultation with the secretary of health.
E. Upon the termination of a state of public
health emergency, the secretary of health shall consult with the secretary of
public safety and the director to ensure public safety during termination
procedures."
Section 6. A new section of Chapter 12, Article 10 NMSA
1978 is enacted to read:
"SPECIAL POWERS DURING A
PUBLIC HEALTH EMERGENCY.--
A. In order to protect the health, safety and
welfare of the people in the state during a public health emergency, the
secretary of health, in coordination with the secretary of public safety and
the director, may:
(1) utilize, secure or evacuate health care
facilities for public use; and
(2) inspect, regulate or ration health care
supplies as provided in Subsection B of this section.
B. If a public health emergency results in a
statewide or regional shortage of health care supplies, the secretary of health
may control, restrict and regulate the allocation, sale, dispensing or
distribution of health care supplies.
C. The state medical investigator, after
consultation with the secretary of health, the secretary of public safety, the
director and the chairman of the board of thanatopractice, may implement and
enforce measures to provide for the safe disposal of human remains that may be
reasonable and necessary to respond to a public health emergency. The measures may include special provisions
for embalming, burial, cremation, interment, disinterment, transportation and
disposal of human remains. To the extent
possible, the religious, cultural, family and individual beliefs of a deceased
person or of the family of a deceased person shall be considered when disposing
of human remains."
Section 7. A new section of Chapter 12, Article 10 NMSA
1978 is enacted to read:
"PROCEDURES FOR ISOLATION
OR QUARANTINE OF PERSONS.--
A. Except as provided in Section 9 of the Public
Health Emergency Response Act, before isolating or quarantining a person during
a declared public health emergency, the secretary of health shall apply for and
obtain a written, ex parte order from a court that authorizes the isolation or
quarantine. Notice of the application
for the ex parte order shall be given, unless it clearly appears from specific
facts shown that immediate and irreparable injury, loss or damage will result
before an affected person can be heard in opposition to the application. The evidence or testimony in support of the
application may be presented or taken by telephone, facsimile transmission,
video equipment or other method of electronic communication. The court shall grant the application for an
ex parte order upon finding that clear and convincing evidence exists to
believe isolation or quarantine is warranted to respond to the public health
emergency.
B. The ex parte order shall:
(1) state the specific facts justifying isolation
or quarantine;
(2) state the persons, group or class of persons
affected by the ex parte order;
(3) state that the persons being isolated or
quarantined have a right to a court hearing under the Public Health Emergency
Response Act and a right to be represented by counsel at the hearing; and
(4) be served as soon as practicable to persons
isolated or quarantined.
C. The secretary of health shall coordinate with
the secretary of public safety and the director regarding execution of the ex
parte order. The ex parte order shall be
posted in a public and accessible place.
If individual notice is not feasible, the secretary of health, the
secretary of public safety and the director shall use the best means available
to ensure that a person subject to the ex parte order is informed of the order
and his rights.
D. A person who is isolated or quarantined may
request a court hearing pursuant to Section 10 of the Public Health Emergency
Response Act at any time before the expiration of the ex parte order. A person shall not be isolated or quarantined
pursuant to an ex parte order for longer than five days without a court hearing
to determine whether isolation or quarantine should continue.
E. The isolation or quarantine of a person shall
terminate automatically on the expiration date of a court order authorizing
isolation or quarantine, or before the expiration date of the court order, upon
notice to the court, if the secretary of health determines that isolation or
quarantine is no longer necessary to protect the public."
Section 8. A new section of Chapter 12, Article 10 NMSA
1978 is enacted to read:
"ISOLATION OR QUARANTINE
AUTHORIZED--PROTECTION OF A PERSON ISOLATED OR QUARANTINED.--
A. The secretary of health may isolate or
quarantine a person as necessary during a public health emergency, using the
procedures set forth in the Public Health Emergency Response Act.
B. The secretary of health, the secretary of
public safety, the director and anyone acting under the secretaries' or the
director's authority, when isolating or quarantining a person during a public
health emergency, shall ensure that:
(1) isolation or quarantine shall be by the least
restrictive means necessary to protect against the spread of a threatening
communicable disease or a potentially threatening communicable disease to
others and may include confinement to a private home or other private or public
premises;
(2) isolated persons are confined separately from
quarantined persons;
(3) the health status of an isolated or
quarantined person is monitored regularly to determine if he requires continued
isolation or quarantine. To adequately
address emergency health situations, an isolated or quarantined person shall be
given a reliable means to communicate twenty-four hours a day with health
officials and to summon emergency health services;
(4) if a quarantined person subsequently becomes
infected or is reasonably believed to be infected with a threatening
communicable disease or a potentially threatening communicable disease, he
shall be isolated pursuant to the provisions of the Public Health Act or the
Public Health Emergency Response Act;
(5) the needs of a person isolated or quarantined
be addressed in a systematic and orderly manner, including the provision of
adequate food, clothing, shelter, sanitation, and to the extent of available
resources, appropriate medication and treatment, medical care and mental health
care;
(6) there are methods of communication available
to a person placed in isolation or quarantine so that he may communicate with
others, including family members, household members, legal representatives,
advocates and the media. Accommodations
shall also be made for religious worship or practice and updates on the status
of the public health emergency, as available;
(7) the premises used for isolation or quarantine
are maintained in a safe and hygienic manner and are designed to minimize the
likelihood of further transmission of infection or other injury to other
persons who are isolated or quarantined; and
(8) to the extent feasible, forms are provided to
a person in isolation or quarantine that document the person's consent or
objection to the isolation or quarantine.
C. A person isolated or quarantined pursuant to
the provisions of the Public Health Emergency Response Act has the right to
refuse medical treatment, testing, physical or mental examination, vaccination,
specimen collections and preventive treatment programs. A person who has been directed by the
secretary of health to submit to medical procedures and protocols because the
person is infected with, reasonably believed to be infected with, or exposed to
a threatening communicable disease and who refuses to submit to the procedures
and protocols may be subject to continued isolation or quarantine pursuant to
the provisions of the Public Health Emergency Response Act.
D. A person not authorized by the secretary of
public safety, the secretary of health or the director shall not enter an
isolation or quarantine area. If, by
reason of an unauthorized entry into an isolation or quarantine area, a person
poses a danger to public health, the person may be subject to isolation or
quarantine pursuant to the provisions of the Public Health Emergency Response
Act.
E. A household or family member of a person
isolated or quarantined has a right to choose to enter an isolation or
quarantine area. The secretary of public
safety, the secretary of health or the director shall permit the household or
family member entry into the isolation or quarantine area if the household or
family member signs a consent form stating that the member has been informed of
the potential health risks, isolation and quarantine guidelines and the
consequences of entering the area. The
household or family member shall not hold the state of New Mexico responsible
for any consequences by reason of entry into the isolation or quarantine
area. A household or family member who
enters the area, at the discretion of the public health official, may be
subject to isolation or quarantine pursuant to the provisions of the Public
Health Emergency Response Act."
Section 9. A new section of Chapter 12, Article 10 NMSA
1978 is enacted to read:
"TEMPORARY HOLD UPON
SECRETARY'S ORDER.--
A. If the secretary of health makes a finding
that a delay in isolating or quarantining a person will significantly
jeopardize the secretary's ability to prevent or limit the transmission of a
threatening communicable disease, then the secretary of health may, by public
health order, isolate or quarantine a person without first obtaining a written,
ex parte order from a court.
B. Following the imposition of isolation or
quarantine pursuant to Subsection A of this section, the secretary of health,
within twenty-four hours of the imposition, shall apply for an ex parte order
that authorizes the isolation or quarantine and shall follow the procedures and
meet the standards set forth in Sections 7, 8 and 10 of the Public Health
Emergency Response Act.
C. In a subsequent application to a court, the
secretary of health shall present facts in support of the need to issue a
temporary hold before obtaining the ex parte order from the court that
authorizes the isolation or quarantine."
Section 10. A new section of Chapter 12, Article 10 NMSA
1978 is enacted to read:
"COURT HEARING TO CONTEST
ISOLATION OR QUARANTINE.--
A. A person who is isolated or quarantined under
a temporary hold, ex parte order or court order may petition the court to
contest the temporary hold, ex parte order or court order at any time prior to
the expiration of the temporary hold, ex parte order or court order. If a petition is filed, the court shall hold
a hearing within three business days after the date of the filing. The filing of a petition for a hearing does
not stay an order of isolation or quarantine.
At the hearing, the secretary of health shall offer clear and convincing
evidence that the isolation or quarantine is warranted to respond to a public
health emergency.
B. If the secretary of health wishes to extend
an order for isolation or quarantine past the period of time stated in the
temporary hold, ex parte order or court order, the secretary of health shall
petition the court for an extension.
Notice of the hearing shall be served to every person who is isolated or
quarantined at least three days prior to the hearing. If it is not feasible to provide individual
notice to every person isolated or quarantined, a copy of the notice shall be
posted in a public and accessible place, using the best means available to
ensure that every person subject to the order is informed of the order and
their rights.
C. The hearing notice shall contain:
(1) the date, time and place of the hearing;
(2) the grounds upon which continued isolation or
quarantine is sought;
(3) the person's right to appear at the hearing;
and
(4) the person's right to counsel, including the
right, if indigent, to be represented by counsel designated by the court.
D. The court may order an extension of the
isolation or quarantine if it finds, by clear and convincing evidence, that
there is an imminent health threat to others if the isolation or quarantine is
terminated.
E. In no case shall the isolation or quarantine
continue longer than thirty days from the date of a court order, unless the
secretary of health petitions the court for an extension pursuant to the
standards and procedures set forth in this section.
F. Upon notice to a court by the secretary of
health that the conditions warranting isolation or quarantine no longer exist,
the court shall issue an order terminating the isolation or quarantine."
Section 11. A new section of Chapter 12, Article 10 NMSA
1978 is enacted to read:
"HEARING ON CONDITIONS OF
ISOLATION AND QUARANTINE.--
A. A person who is isolated or quarantined may
request a hearing in court, as provided in Section 10 of the Public Health
Emergency Response Act, for remedies regarding treatment or the terms and
condition of the isolation or quarantine.
B. Upon receiving a request for a hearing
pursuant to this section, the court shall fix a date for a hearing within seven
days of the court's receipt of the request.
C. A request for a hearing does not alter an
order for isolation or quarantine. If
the court finds that the isolation or quarantine of a person is not in
compliance with the provisions of the Public Health Emergency Response Act, the
court may fashion remedies appropriate to the circumstances of the public
health emergency."
Section 12. A new section of Chapter 12, Article 10 NMSA
1978 is enacted to read:
"MEDICAL EXAMINATION AND
TESTING.--
A. During a state of public health emergency,
medical examinations or tests may be performed by a qualified person authorized
by the secretary of health to provide medical examinations or tests.
B. The secretary of health may isolate or
quarantine a person whose refusal of medical examination or testing results in
uncertainty regarding whether the person has been exposed to or is infected
with a threatening communicable disease or otherwise reasonably poses a danger
to public health."
Section 13. A new section of Chapter 12, Article 10 NMSA
1978 is enacted to read:
"VACCINATION AND
TREATMENT.--
A. During a state of public health emergency, a
qualified person authorized by the secretary of health may vaccinate persons to
prevent infection by a threatening communicable disease and to protect against
the spread of that disease.
B. To protect against the spread of a threatening
communicable disease, the secretary of health may isolate or quarantine a
person who is unable or unwilling for reasons of health, religion or conscience
to undergo vaccination pursuant to the standards and procedures set forth in
the Public Health Emergency Response Act.
C. A qualified person authorized by the
secretary of health may vaccinate a minor less than eighteen years of age,
unless the minor or his duly authorized representative presents a certificate
issued by a duly licensed physician that states that the minor's physical
condition is such that the vaccination would seriously endanger his life or
health.
D. During a state of public health emergency, in
order to provide treatment to a person who is exposed to or infected with a
threatening communicable disease:
(1) treatment may be administered by a public
health official;
(2) treatment shall be approved pursuant to
appropriate regulations promulgated by the federal food and drug
administration; and
(3) the secretary of health may isolate or
quarantine a person who is unable or unwilling, for reasons of health, religion
or conscience, to undergo treatment pursuant to the standards and procedures
set forth in the Public Health Emergency Response Act."
Section 14. A new section of Chapter 12, Article 10 NMSA
1978 is enacted to read:
"IMMUNITY.--During a state
of public health emergency, the state, its political subdivisions, the
governor, the secretary of health, the secretary of public safety, the director
or any other state or local officials or personnel who assist during the public
health emergency are liable for the death of a person, injury to a person or
damage to property, only to the extent permitted in the Tort Claims Act, as a
result of complying with the provisions of the Public Health Emergency Response
Act or a rule adopted pursuant to that act."
Section 15. A new section of Chapter 12, Article 10 NMSA
1978 is enacted to read:
"COMPENSATION.--
A. The state shall pay just compensation to the
owner of health care supplies, a health facility or any other property that is lawfully
taken or appropriated by the secretary of health, the secretary of public
safety or the director for temporary or permanent use during a public health
emergency. The amount of compensation
due shall be calculated in the same manner as compensation due for taking of
property pursuant to nonemergency eminent domain procedures, as provided by the
Eminent Domain Code; provided that the amount of compensation calculated shall
include lost revenues and expenses incurred due to the taking or appropriating
of property, including a health facility.
B. The attorney general shall make a preliminary
determination of whether or not compensation is due to an owner of health care
supplies, a health facility or any other property. The owner may appeal the preliminary
determination pursuant to rules promulgated by the attorney general. The rules shall include the owner's right to speak at the appeal and the
owner's right to present facts pertinent to the appeal to a hearing officer
appointed by the attorney general. A
record shall be made of the hearing. The
hearing officer shall preside over and take evidence at a hearing held pursuant
to this section. The hearing officer
shall prepare and submit to the attorney general a summary of the evidence
taken at the hearing. The hearing
officer shall also submit proposed findings of fact to the attorney
general. The attorney general shall
render a decision that sets forth the amount of compensation, if any, due to
the owner. The attorney general's
decision shall include findings of fact and conclusions of law.
C. A decision made by the attorney general
pursuant to this section shall be subject to an appeal to the district
court, pursuant to the provisions of
Section 39‑3‑1.1 NMSA 1978.
D. To the extent practicable and consistent with
protection of public health, the attorney general, prior to the taking or
appropriating of property, shall institute civil proceedings against the
property to be taken or appropriated in accordance with the Eminent Domain
Code, other applicable laws, court rules or rules the courts may develop during
a state of public health emergency."
Section 16. A new section of Chapter 12, Article 10 NMSA
1978 is enacted to read:
"JOB PROTECTION FOR A
PERSON WHO IS ISOLATED OR QUARANTINED.--An employer or an agent of an employer
shall not discharge from employment a person who is placed in isolation or
quarantine pursuant to the provisions of the Public Health Emergency Response
Act."
Section 17. A new section of Chapter 12, Article 10 NMSA
1978 is enacted to read:
"RULEMAKING.--The
secretary of public safety, the secretary of health and, where appropriate,
other affected state agencies in consultation with the secretary of health and
the secretary of public safety, shall promulgate and implement rules that are
reasonable and necessary to implement and effectuate the Public Health
Emergency Response Act."
Section 18. A new section of Chapter 12, Article 10 NMSA
1978 is enacted to read:
"MEMORANDUM OF
UNDERSTANDING--INDIAN PUEBLOS OR TRIBAL ENTITIES.--The secretary of public
safety, the secretary of health, the director and, when appropriate, other
state agencies in consultation with the secretary of health and the secretary of public safety, may enter into a
memorandum of understanding with an Indian pueblo or tribal entity within the
state of New Mexico in order to effectuate the purposes, procedures and
standards set forth in the Public Health Emergency Response Act."
Section 19. A new section of Chapter 12, Article 10 NMSA
1978 is enacted to read:
"ENFORCEMENT--CIVIL
PENALTIES.--
A. The secretary of health, the secretary of
public safety or the director may enforce the provisions of the Public Health
Emergency Response Act by imposing a civil administrative penalty of up to five
thousand dollars ($5,000) for each violation of that act. A civil administrative penalty may be imposed
pursuant to a written order issued by the secretary of health, the secretary of
public safety or the director after a hearing is held in accordance with the
rules promulgated pursuant to the provisions of Section 16 of the Public Health
Emergency Response Act.
B. The provisions of the Public Health Emergency
Response Act shall not be construed to limit specific enforcement powers
enumerated in that act.
C. The enforcement authority provided pursuant
to the provisions of the Public Health Emergency Response Act is in addition to
other remedies available against the same conduct under the common law or other
statutes of this state."
Section 20. SEVERABILITY.--If any part or application of
the Public Health Emergency Response Act is held invalid, the remainder or its
application to other situations or persons shall not be affected.
Section 21. EMERGENCY.--It is necessary for the public
peace, health and safety that this act take effect immediately.
HB 231
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