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AN ACT

RELATING TO ADULT PROTECTIVE SERVICES; INCREASING PENALTIES;

EXPANDING SYSTEM SERVICES; CLARIFYING DEPARTMENT DUTIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 27-7-15 NMSA 1978 (being Laws 1989,

Chapter 389, Section 2, as amended) is amended to read:

"27-7-15. LEGISLATIVE FINDINGS--PURPOSE.--

A. The legislature recognizes that many adults in

the state are unable to manage their own affairs or protect

themselves from abuse, neglect or exploitation. The

legislature further recognizes that the state should protect

adults by providing for the detection, correction and

elimination of abuse, neglect or exploitation through a

program of short-term services for adults in need of

protective services or protective placement.

B. It is the purpose of the Adult Protective

Services Act to establish a system of protective services and

protective placement and to ensure the availability of those

services or placement to all adults in need of them. It is

also the purpose of the Adult Protective Services Act to

authorize only the least possible restriction on the exercise

of personal and civil rights and religious beliefs consistent

with the adult's need for protective services or protective

placement and to require that due process be followed in

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imposing those restrictions.

C. Nothing in the Adult Protective Services Act

shall be construed to mean an adult, including an

incapacitated adult or a protected adult, is abused,

neglected, or exploited if the adult relies upon or is being

furnished with spiritual treatment through prayer alone in

accordance with the express or implied intent of the adult;

nor shall anything in that act be construed to authorize or

require any medical care or treatment in contravention of the

express or implied wish of that adult."

Section 2. Section 27-7-16 NMSA 1978 (being Laws 1989,

Chapter 389, Section 3, as amended) is amended to read:

"27-7-16. DEFINITIONS.--As used in the Adult Protective

Services Act:

A. "ability to consent" means an adult's ability

to understand and appreciate the nature and consequences of

proposed protective services or protective placement,

including benefits, risks and alternatives to the proposed

services or placement and to make or communicate an informed

decision;

B. "abuse" means:

(1) knowingly, intentionally or negligently

and without justifiable cause inflicting physical pain, injury

or mental anguish;

(2) the intentional deprivation by a

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caretaker or other person of services necessary to maintain

the mental and physical health of an adult; or

(3) sexual abuse, including criminal sexual

contact, incest and criminal sexual penetration;

C. "adult" means a person eighteen years of age or

older;

D. "caretaker" means a facility, provider or

individual that has assumed the responsibility for the care of

an adult;

E. "conservator" means a person who is appointed

by a court to manage the property or financial affairs, or

both, of an incapacitated adult;

F. "court" means the district court having

jurisdiction;

G. "department" means the aging and long-term

services department;

H. "emergency" means that an adult is living in

conditions that present a substantial risk of death or

immediate and serious physical harm to the adult or others;

I. "exploitation" means an unjust or improper use

of an adult's money or property for another person's profit or

advantage, pecuniary or otherwise;

J. "facility" means a hospital, nursing home,

residential care facility, group home, foster care home,

assisted living facility or other facility licensed by the

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state, but does not include a jail, prison or detention

facility;

K. "guardian" means a person who has qualified to

provide for the care, custody or control of an incapacitated

adult pursuant to testamentary or court appointment, but

excludes one who is a guardian ad litem;

L. "incapacitated adult" means any adult with a

mental, physical or developmental condition that substantially

impairs the adult's ability to provide adequately for the

adult's own care or protection;

M. "multidisciplinary team" means a team composed

of diverse professionals who meet periodically to consult on

or enhance appropriate community responses to abuse, neglect

or exploitation of adults;

N. "neglect" means the failure of the caretaker of

an adult to provide for the basic needs of the adult, such as

clothing, food, shelter, supervision and care for the physical

and mental health of that adult; "neglect" includes self-

neglect;

O. "protected adult" means an adult for whom a

guardian or conservator has been appointed or other protective

order has been made or an abused, neglected or exploited adult

who has consented to protective services or protective

placement;

P. "protective placement" means the placement of

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an adult with a provider or in a facility or the transfer of

an adult from one provider or facility to another;

Q. "protective services" means the services

furnished by the department or its delegate, as described in

Section 27-7-21 NMSA 1978;

R. "provider" means a private-residence or health

care worker or an unlicensed residential or nonresidential

entity that provides personal, custodial or health care;

S. "self-neglect" means an act or omission by an

incapacitated adult that results in the deprivation of

essential services or supports necessary to maintain the

incapacitated adult's minimal mental, emotional or physical

health and safety;

T. "substantiated" means a determination, based on

a preponderance of collected and assessed credible

information, that abuse, neglect or exploitation of an

incapacitated or protected adult has occurred; and

U. "surrogate" means a person legally authorized

to act on an adult's behalf."

Section 3. Section 27-7-17 NMSA 1978 (being Laws 1989,

Chapter 389, Section 4, as amended) is amended to read:

"27-7-17. ADULT PROTECTIVE SERVICES SYSTEM.--

A. Subject to the availability of funds, the

department shall develop a coordinated system of protective

services or protective placement for incapacitated or

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protected adults who have been abused, neglected or exploited.

In planning this system, the department shall obtain the

advice of agencies, corporations, boards and associations

involved in the provision of social, health, legal,

nutritional and other services to adults, as well as of

organizations of adults.

B. The department shall ensure that the adult

protective services system for incapacitated or protected

adults who have been abused, neglected or exploited includes:

(1) a process for the collection and

analysis of data relating to adult protective services or

protective placement and for the provision of an annual

findings and recommendations report to the governor and the

appropriate interim committee;

(2) the establishment and use of

multidisciplinary teams to develop treatment strategies,

ensure maximum coordination with existing community resources

and provide comprehensive assessment and case consultation on

difficult or complex cases, provided that the adults' privacy

and confidentiality rights in such cases are protected;

(3) coordination among the various state or

local agencies that serve incapacitated or protected adults;

and

(4) an emphasis on the need for prevention

of abuse, neglect or exploitation of adults.

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C. Upon establishment of the adult protective

services system, the department shall be responsible for

continuing coordination and supervision of the system. In

carrying out these duties, the department shall:

(1) adopt rules necessary to implement and

operate the system;

(2) monitor and evaluate the effectiveness

of the system; and

(3) use to the extent available grants from

federal, state and other public and private sources to support

the system.

D. The department shall administer a public

information program regarding the problem of abuse, neglect

and exploitation of adults; reporting and prevention of adult

abuse, neglect or exploitation; and the availability of

treatment and protective services or protective placement for

those adults."

Section 4. Section 27-7-19 NMSA 1978 (being Laws 1989,

Chapter 389, Section 6, as amended) is amended to read:

"27-7-19. DEPARTMENT--DUTIES--PENALTY.--

A. The department shall:

(1) develop, maintain and update as needed a

process to receive a report or referral of suspected abuse,

neglect or exploitation of an adult;

(2) assess an adult and the adult's

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situation to determine what immediate protective services or

protective placement may be required;

(3) conduct an investigation to determine if

the report or referral of abuse, neglect or exploitation is

substantiated;

(4) document evidence, observations and

other information obtained in the course of an investigation;

(5) develop a plan to provide an adult with

or refer an adult for protective services, protective

placement or other intervention services, unless the

department determines that the adult is knowingly and

voluntarily refusing services; and

(6) ensure that the protective services or

protective placement provided by or through the department is

short term and has a termination date; provided that

appropriate arrangements have been made for follow-up care if

needed, including any long-term services for which the adult

may qualify.

B. Upon request, the department, in accordance

with federal or state laws that protect an adult's right to

privacy and confidentiality, shall have immediate access to

and may reproduce any record, including medical, personal,

psychological and financial records, of the adult that the

department determines is necessary to pursue an investigation

mandated by this section or by the Resident Abuse and Neglect

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Act if:

(1) the adult has the ability to consent and

has given written consent;

(2) the adult is unable to consent in

writing, and gives oral consent in the presence of a third

party as a witness;

(3) the adult has a guardian, conservator or

surrogate with the authority to approve review of the records

and the department obtains the permission of the guardian,

conservator or surrogate for review of the record;

(4) the adult is unable to give consent and:

(a) has no guardian, conservator or

surrogate;

(b) the department is unaware of and

has no reasonable grounds for believing that there is a

guardian, conservator or surrogate; or

(c) the department is unable to contact

the guardian, conservator or surrogate within three working

days of the initiation of the investigation; or

(5) the department obtains from the district

court an order granting access upon a showing that:

(a) consent is being withheld due to

coercion, extortion or justifiable fear of future abuse,

neglect, exploitation or abandonment of the adult; or

(b) there is reasonable cause to

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believe that the adult has been or is being abused, neglected

or exploited and that after notice by the department of the

alleged abuse, neglect or exploitation, the guardian,

conservator or surrogate has refused to give consent.

C. Upon request by the department, the provider or

a facility in which an adult is or has been residing shall

provide to the department the name, address and telephone

number of the guardian, conservator, surrogate, attorney-in-

fact, legal representative or next of kin of the adult.

D. The department shall have immediate access to

an adult, whether in a facility or provider setting, who is

alleged to be abused, neglected or exploited to determine the

accuracy of the report and the necessity of protective

services or protective placement, to evaluate the adult's

needs and develop a service plan to meet those needs and to

provide for the services or placement by or through the

department. If the department is denied access to the adult

alleged to be abused, neglected or exploited, the department

may gain access upon petition to the court for an order

requiring appropriate access if the department can demonstrate

that a facility, provider or individual has interfered with

the department's attempts to access the adult under

investigation.

E. Anyone willfully interfering with an

investigation of adult abuse, neglect or exploitation,

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pursuant to this section, is guilty of a misdemeanor.

Interference under this section shall not include efforts by a

facility, provider or individual to establish whether there is

reasonable cause to believe that there is adult abuse, neglect

or exploitation, provided that the department is notified as

soon as reasonable cause is established, whether or not the

internal investigation has been concluded.

F. The department may assess a civil penalty not

to exceed ten thousand dollars ($10,000) per violation against

a facility, provider or individual who violates the provisions

of Subsection B, C or D of this section. The department may

assess and collect the penalty, after notice and an

opportunity for hearing before a hearing officer designated by

the department to hear the matter, upon a determination that a

facility, provider or individual willfully interfered with the

department or discriminated, disciplined or retaliated against

a person who communicated or disclosed information to the

department in good faith pursuant to this section. The

hearing officer has the power to administer oaths on request

of any party and issue subpoenas and subpoenas duces tecum.

Additionally, if the violation is against a person covered by

the Personnel Act, the department shall refer the matter to

the agency employing the person for disciplinary action. Any

party may appeal a final decision by the department to the

court pursuant to the provisions of Section 39-3-1.1 NMSA

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1978."

Section 5. Section 27-7-21 NMSA 1978 (being Laws 1989,

Chapter 389, Section 8, as amended) is amended to read:

"27-7-21. NATURE OF PROTECTIVE SERVICES--COSTS.--

A. Protective services are short-term services

furnished by the department or under arrangement through the

department to an incapacitated or protected adult who has been

abused, neglected or exploited and with the adult's consent or

appropriate legal authority.

B. The protective services furnished in a

protective services system may include social, psychiatric,

health, legal and other services provided on a short-term

basis that, if appropriate, transition to other ongoing or

long-term services outside the protective services system and

that detect, correct or eliminate abuse, neglect or

exploitation consistent with the Adult Protective Services

Act. The adult protective services system established by the

department may include outreach, public information and

education, prevention programs, referral for health or legal

services and other activities consistent with the Adult

Protective Services Act.

C. The costs of providing protective services

shall be borne by the department or other appropriate agency,

unless the adult agrees to pay for them or a court authorizes

the provider or the department or other agency to receive

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reasonable reimbursement from the adult's assets after a

finding that the adult is financially able to make payment.

As appropriate and as permitted by law, the department may

bill the adult or a third party to receive reasonable

reimbursement for protective services rendered."

Section 6. Section 27-7-23 NMSA 1978 (being Laws 1989,

Chapter 389, Section 10, as amended) is amended to read:

"27-7-23. VOLUNTARY PROTECTIVE SERVICES--PROTECTIVE

PLACEMENT--PENALTY.--

A. Any adult who has been abused, neglected or

exploited and is in need of protective services or protective

placement as determined by the department and who consents to

those services or placement shall receive them. If the adult

withdraws or refuses consent, voluntary protective services or

protective placement shall not be provided. No legal rights

are relinquished as a result of acceptance of voluntary

protective services or protective placement.

B. A person who interferes with the provision of

protective services or protective placement to an adult who

consents to receive those services or placement is guilty of a

misdemeanor. In the event that interference occurs, the

department may petition the court to enjoin that interference,

may impose a civil penalty or, at the department's discretion,

may request criminal prosecution.

C. The department may assess a civil penalty not

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to exceed ten thousand dollars ($10,000) per violation against

a person that violates the provisions of Subsection B of this

section. The department may assess and collect the penalty

after notice and an opportunity for hearing, before a hearing

officer designated by the department to hear the matter, upon

a determination that a person willfully interfered with the

department pursuant to this subsection. The hearing officer

has the power to administer oaths on request of any party and

issue subpoenas and subpoenas duces tecum. Additionally, if

the violation is against a person covered by the Personnel

Act, the department shall refer the matter to the agency

employing the person for disciplinary action. Any party may

appeal a final decision by the department to the court

pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

Section 7. Section 27-7-24 NMSA 1978 (being Laws 1989,

Chapter 389, Section 11, as amended) is amended to read:

"27-7-24. INVOLUNTARY PROTECTIVE SERVICES AND

PROTECTIVE PLACEMENT--PENALTY.--

A. If an adult lacks the ability to consent to

receive protective services or protective placement, those

services or placement may be ordered by a court on an

involuntary basis through an emergency order pursuant to the

Adult Protective Services Act or through appointment of a

guardian or conservator.

B. In ordering involuntary protective services or

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protective placement, the court shall authorize only that

intervention that it finds to be least restrictive of the

adult's liberty and rights consistent with the adult's welfare

and safety. The basis for such a finding shall be stated in

the record by the court.

C. The incapacitated or protected adult shall not

be required to pay for involuntary protective services or

protective placement unless that payment is authorized by the

court upon a showing that the adult is financially able to

pay. In this event, the court shall provide for reimbursement

of the reasonable costs of the services or placement.

D. A person who interferes with the provision of

involuntary protective services or protective placement to an

adult is guilty of a misdemeanor. In the event that

interference occurs, the department may petition the court to

enjoin interference, may impose a civil penalty or, at the

department's discretion, may request criminal prosecution.

E. The Adult Protective Services Act does not

affect other state statutes governing treatment of an adult

admitted to a mental health care institution for mental

illness or involuntary commitment of an adult to a mental

health care institution for mental illness or any other

involuntary mental health treatment.

F. The department may petition the court for the

appointment of a guardian or conservator if the department

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determines that a no less restrictive course of care or

treatment is available that is consistent with the

incapacitated adult's welfare and safety.

G. The department and its employees are prohibited

from:

(1) taking custody of an adult;

(2) acting as guardian, conservator or

surrogate for any adult in need of protective services or

protective placement, except that an employee may serve in

that role when related by affinity or consanguinity to an

adult;

(3) acting as treatment guardian under the

Mental Health and Developmental Disabilities Code, except that

an employee may serve in that role when related by affinity or

consanguinity to an adult;

(4) acting as qualified health care

professionals pursuant to the Uniform Probate Code; and

(5) acting as visitors under the Uniform

Probate Code for any adult in need of protective services or

protective placement.

H. The department may assess a civil penalty not

to exceed ten thousand dollars ($10,000) per violation against

a person that violates the provisions of Subsection D of this

section. The department may assess and collect the penalty

after notice and an opportunity for hearing, before a hearing

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officer designated by the department to hear the matter, upon

a determination that a person willfully interfered with the

department pursuant to this section. The hearing officer has

the power to administer oaths on request of any party and

issue subpoenas and subpoenas duces tecum. Additionally, if

the violation is against a person covered by the Personnel

Act, the department shall refer the matter to the agency

employing the person for disciplinary action. Any party may

appeal a final decision by the department to the court

pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

Section 8. Section 27-7-25 NMSA 1978 (being Laws 1990,

Chapter 79, Section 6, as amended) is amended to read:

"27-7-25. EX-PARTE ORDERS FOR EMERGENCY PROTECTIVE

SERVICES OR EMERGENCY PROTECTIVE PLACEMENT--NOTICE--

PETITION.--

A. Upon petition by the department, the court may

issue an order authorizing the provision of involuntary

protective services or protective placement on an emergency

basis to an adult under the criteria set forth in Subsection B

of this section.

B. At the time a petition is filed or any time

thereafter, the court may issue an ex-parte order authorizing

the provision of involuntary protective services or

involuntary protective placement upon a sworn written

statement of facts showing probable cause exists to believe

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that:

(1) the adult is incapacitated;

(2) an emergency exists;

(3) the adult lacks the ability to consent

to receive protective services or protective placement; and

(4) no person authorized by law or court

order to give consent for the adult is available or willing to

consent to the provision of protective services or protective

placement on an emergency basis.

C. The petition for an emergency ex-parte order

shall set forth:

(1) the name, address and interest of the

petitioner;

(2) the name, age and address of the adult

in need of protective services;

(3) the facts describing the nature of the

emergency;

(4) the facts describing the nature of the

adult's incapacity;

(5) the proposed protective services or

protective placement;

(6) the petitioner's reasonable belief,

together with supporting facts, about the need for emergency

intervention; and

(7) the facts showing the petitioner's

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attempts to obtain the adult's consent to the proposed

protective services or protective placement and the outcome of

those attempts.

D. An affidavit for an ex-parte order for

emergency protective services or emergency protective

placement may be signed by any person who has knowledge of the

facts alleged or is informed of them and believes that they

are true.

E. The Rules of Evidence do not apply to the

issuance of an emergency ex-parte protective services or

protective placement order.

F. In issuing an emergency ex-parte order, the

court shall adhere to the following limitations:

(1) only the protective services or

protective placement necessary to remove the conditions

creating the emergency shall be ordered, and the order shall

specifically designate the proposed protective services or

protective placement;

(2) protective services or protective

placement authorized by an emergency ex-parte order shall not

include hospitalization or a change of residence, unless the

order gives specific approval for the action;

(3) protective services or protective

placement may be provided by emergency ex-parte order only for

ten days; provided that the original order may be renewed once

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for a period of twenty additional days upon application to the

court showing that continuation of the original order is

necessary to remove the conditions creating the emergency. An

application for renewal of the original order shall be

supported by a written report of the results of the evaluation

required by Subsection C of Section 27-7-27 NMSA 1978 and

copies of the actual evaluations;

(4) the issuance of an emergency ex-parte

order shall not deprive the adult of any rights except those

provided for in the order;

(5) to implement an emergency ex-parte

order, the court may authorize forcible entry of premises for

the purposes of rendering protective services or protective

placement or transporting the adult to another location for

the provision of services or placement only if facts contained

in the affidavit supporting the petition for ex-parte order

show that attempts to gain voluntary access to the premises

have failed and forcible entry is necessary; provided that

persons making an authorized forcible entry shall be

accompanied by a law enforcement officer; and

(6) service of an ex-parte order authorizing

forcible entry shall be according to the following procedure.

The order shall be served on the alleged incapacitated adult

by a person authorized to serve arrest warrants and shall

direct the officer to advise the adult of the nature of the

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protective services or protective placement that have been

ordered by the court. If the order authorizes emergency

protective placement, the order shall direct the officer to

assist in transfer of the adult to a place designated by the

court.

G. Notice of the filing of the petition and the

issuance of the emergency ex-parte order, including a copy of

the petition, the ex-parte order and the affidavit for

ex-parte order, shall be given to the adult and the adult's

spouse or, if none, the adult children or next of kin,

surrogate or guardian, if any. The notice shall be given, in

language reasonably understandable by its intended recipients,

within twenty-four hours, excluding Saturdays, Sundays and

legal holidays, from the time that the ex-parte order

authorizing protective services or protective placement is

issued by the court or, if the ex-parte order authorizes

forcible entry, from the time the ex-parte order is served

upon the incapacitated adult. The notice shall inform the

recipients that a hearing will be held no later than ten days

after the date the petition is filed to determine whether the

conditions creating the emergency have been removed and

whether the adult should be released from the court's order

for protective services or protective placement.

H. Within ten days from the filing of a petition

for an emergency order for protective services or protective

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placement, the court shall hold a hearing upon any application

for renewal of the emergency order. The hearing upon an

application for renewal shall be held pursuant to the

provisions of Section 27-7-27 NMSA 1978.

I. The protected adult or any interested person

may petition the court to have the emergency order set aside

or modified at any time, notwithstanding any prior findings by

the court that the adult is incapacitated.

J. If the adult continues to need protective

services or protective placement after the renewal order

provided in Paragraph (3) of Subsection F of this section has

expired, the department or original petitioner shall

immediately petition the court to appoint a conservator or

guardian or to order nonemergency protective services or

protective placement pursuant to Section 27-7-26 NMSA 1978.

K. The petitioner shall not be liable for filing

the petition if the petitioner acted in good faith."

Section 9. Section 27-7-25.1 NMSA 1978 (being Laws

1990, Chapter 79, Section 7, as amended) is amended to read:

"27-7-25.1. EMERGENCY PROTECTIVE PLACEMENT BY A LAW

ENFORCEMENT OFFICER WITHOUT A COURT ORDER.--

A. When, from personal observation of a law

enforcement officer, it appears probable that an incapacitated

adult will suffer immediate and irreparable physical injury or

death if not immediately placed in a facility, that the adult

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is unable to give consent and that it is not possible due to

the emergency nature of the circumstances to follow the

procedures of Section 27-7-25 NMSA 1978, the law enforcement

officer making that observation may transport the adult to a

facility. No court order is required to authorize the law

enforcement officer to act upon the officer's observation

pursuant to this section.

B. A law enforcement officer who transports an

incapacitated adult to a facility pursuant to the provisions

of this section shall immediately notify the department of the

placement.

C. The department shall file a petition pursuant

to Subsection A of Section 27-7-25 NMSA 1978 within two

working days after the placement of the adult by the law

enforcement officer has occurred unless the department

determines that the criteria for emergency removal and

placement have not been met or that there is no further need

for involuntary protective services or protective placement.

D. Upon receipt of notice from a law enforcement

officer that an adult has been placed in a facility pursuant

to the authority of this section, the department shall give

notice pursuant to Subsection G of Section 27-7-25 NMSA 1978

within two working days after the placement of the adult has

taken place.

E. The court shall hold a hearing on the petition

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filed by the department as a result of the law enforcement

officer's emergency placement within ten days of the filing of

the petition, pursuant to the provisions of Section 27-7-27

NMSA 1978, to determine whether the conditions creating the

need for the emergency placement have been removed and whether

the adult should be released from the protective placement."

Section 10. Section 27-7-26 NMSA 1978 (being Laws 1989,

Chapter 389, Section 13, as amended) is amended to read:

"27-7-26. NONEMERGENCY PROTECTIVE SERVICES OR

PROTECTIVE PLACEMENT--FINDINGS--PETITION--ORDER.--

A. Involuntary nonemergency protective services or

protective placement shall not take place unless ordered by a

court after a finding on the record based on clear and

convincing evidence that:

(1) the adult is incapacitated and lacks the

ability to consent;

(2) the adult is incapable of providing for

the adult's own care or custody and the adult is at

significant risk of abuse, neglect or exploitation that

creates a substantial risk of serious physical harm to the

adult or others;

(3) the adult needs care or treatment;

(4) the proposed order is substantially

supported by the evaluation provided for in Subsection E of

this section or, if not so supported, there are compelling

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reasons for ordering those protective services or that

protective placement; and

(5) no less restrictive alternative course

of care or treatment is available that is consistent with the

incapacitated adult's welfare and safety.

B. The petition for nonemergency protective

services or protective placement shall state with

particularity the factual basis for the allegations specified

in Subsection A of this section and shall be based on the most

reliable information available to the petitioner.

C. Written notice of a petition for nonemergency

protective services or protective placement shall be served

upon the adult by personal service at least fourteen days

prior to the time set for a hearing. Notice shall also be

given to the adult's legal counsel, caretaker, guardian,

conservator, surrogate, spouse and adult children or next of

kin, whose names and addresses are known to the petitioner or

can with reasonable diligence be ascertained. The person

serving the notice shall certify to the court that the

petition has been delivered and how the required notice was

given. The notice shall be in language reasonably

understandable by the adult who is the subject of the petition

and also shall be given orally if necessary. The notice shall

include:

(1) the names of all petitioners;

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(2) the factual basis of the belief that

protective services or protective placement is needed;

(3) the rights of the adult in the court

proceedings; and

(4) the name and address of the proposed

protective services or protective placement.

D. Upon the filing of a petition for nonemergency

protective services or protective placement, the court shall

hold a hearing pursuant to the provisions of Section 27-7-27

NMSA 1978.

E. In order to make the findings required in

Paragraphs (2) through (5) of Subsection A of this section,

the court shall direct that a comprehensive evaluation of the

adult alleged to be in need of protective services or

protective placement be conducted as provided in Subsection C

of Section 27-7-27 NMSA 1978.

F. In ordering nonemergency protective placement,

the court shall give consideration to the choice of residence

of the adult. The court may order protective placement in a

facility or with a provider.

G. The court may authorize nonemergency protective

services or protective placement for an adult for a period not

to exceed six months.

H. At the time of expiration of an order for

nonemergency protective services or protective placement, the

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original petitioner may petition the court to extend its order

for protective services or protective placement for an

additional period not to exceed six months. The contents of

the petition shall conform to the provisions of Subsections A

and B of this section. Notice of the petition for the

extension of protective services or protective placement shall

be made in conformity with Subsection C of this section. The

court shall hold a hearing to determine whether to renew the

order. Any person entitled to a notice under Subsection C of

this section may appear at the hearing and challenge the

petition. The court shall conduct the hearing pursuant to the

provisions of Section 27-7-27 NMSA 1978.

I. The services provided to or the residence of an

adult that had been established pursuant to an order for

nonemergency protective services or protective placement shall

not be changed unless the court authorizes the change of

services or transfer of residence. The adult or the adult's

legal representative may petition the court to order such a

change of services or transfer of residence.

J. Prior to the expiration of the nonemergency

protective services or protective placement, the department

shall review the need for continued services or placement,

including the necessity for appointment of a conservator or

guardian, and shall make such recommendation to the court."

Section 11. Section 27-7-27 NMSA 1978 (being Laws 1989,

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Chapter 389, Section 14, as amended) is amended to read:

"27-7-27. HEARING ON PETITION.--

A. The hearing on a petition for renewal of an

emergency ex-parte order for protective services or protective

placement or for an order for nonemergency protective services

or protective placement shall be held under the following

conditions:

(1) the adult shall be present unless the

court determines it is impossible for the adult to be present

or it is not in the adult's best interest because of a threat

to that adult's health and safety;

(2) the adult has the right to counsel

whether or not the adult is present at the hearing. If the

adult is indigent, the court shall appoint counsel no later

than the time of the filing of the petition;

(3) counsel appointed by the court pursuant

to Paragraph (2) of this subsection shall interview the

allegedly incapacitated adult prior to any hearing on the

petition or any application for renewal of the original

emergency order;

(4) the adult shall have the right to trial

by jury upon request by the adult or the adult's counsel only

in hearings held on petitions for nonemergency protective

services or protective placement; and

(5) the adult has the right at the adult's

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own expense or, if indigent, at the expense of the state to

secure an independent medical, psychological or psychiatric

examination relevant to the issue involved in any hearing

under this section and to present a report of this independent

evaluation or the evaluator's personal testimony as evidence

at the hearing.

B. The duty of counsel representing an adult for

whom a petition for an order for emergency protective services

or for nonemergency protective services or protective

placement has been filed shall be to represent the adult by

protecting the adult's legal rights and presenting the adult's

declared position to the court.

C. The department shall establish an evaluation or

assessment process for the conduct of a comprehensive

physical, mental and social evaluation of an adult for whom a

petition has been filed in a court for an order for

nonemergency protective services or protective placement or

for whom an application for renewal of an original emergency

order has been made. The court shall consider the

department's evaluation or assessment in determining whether

to issue an order or renewal of an order for nonemergency

protective services or protective placement.

D. The court shall issue for the record a

statement of its findings in support of any order for renewal

of emergency protective services or for nonemergency

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protective services or protective placement."

Section 12. Section 27-7-29 NMSA 1978 (being Laws 1989,

Chapter 389, Section 16, as amended) is amended to read:

"27-7-29. CONFIDENTIALITY OF RECORDS--PENALTY.--

A. All records of the department, the department's

designee, including a multidisciplinary team, the court and

state and local agencies that are created or maintained

pursuant to investigations under the Adult Protective Services

Act or for whom application has ever been made for protection

shall be confidential and shall not be disclosed directly or

indirectly to the public.

B. The records described in Subsection A of this

section shall be open to inspection only by persons with a

legitimate interest in the records as follows:

(1) the alleged abused, neglected or

exploited adult, or the adult's surrogate, except as to the

identity of the referral source and second source information,

such as medical or psychological evaluations;

(2) court personnel;

(3) law enforcement officials;

(4) department personnel;

(5) any state government social services

agency in any other state;

(6) health care or mental health

professionals involved in the evaluation, treatment,

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residential care or protection of the adult;

(7) parties and their counsel in all legal

proceedings pursuant to the Adult Protective Services Act or

legal actions pursuant to the Uniform Probate Code;

(8) persons who have been, or will be in the

immediate future, providing care or services to the adult,

except the alleged perpetrator of the abuse, neglect or

exploitation;

(9) persons appointed by the court pursuant

to the Uniform Probate Code to be the adult's guardian ad

litem, guardian, conservator, visitor or qualified health care

professional;

(10) any of the persons whom the department

petitions the court appoint pursuant to the Uniform Probate

Code;

(11) any other person or entity, by order of

the court, having a legitimate interest in the case or the

work of the court; and

(12) protection and advocacy representatives

pursuant to the federal Developmental Disabilities Assistance

and Bill of Rights Act, Protection and Advocacy for

Individuals with Mental Illness Act or the protection and

advocacy of individual rights provisions of the Rehabilitation

Act.

C. Records of cases involving substantiated abuse,

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neglect or exploitation shall be provided as appropriate to

the department of health, the district attorney's office, the

medicaid fraud control unit in New Mexico, the office of the

attorney general and the office of the long-term care

ombudsman for appropriate additional action.

D. Any person who intentionally, unlawfully

releases any information or records closed to the public

pursuant to this section or releases or makes other unlawful

use of records in violation of this section is guilty of a

misdemeanor.

E. The department may assess a civil penalty not

to exceed ten thousand dollars ($10,000) per violation against

any person that intentionally, unlawfully releases any

information or records closed to the public pursuant to this

section or releases or makes other unlawful use of records.

The department may assess and collect the penalty, after

notice and an opportunity for hearing before a hearing officer

designated by the department to hear the matter, upon a

determination that a person violated the provisions of this

subsection. The hearing officer has the power to administer

oaths on request of any party and issue subpoenas and

subpoenas duces tecum. Additionally, if the violation is

against a person covered by the Personnel Act, the department

shall refer the matter to the agency employing the person for

disciplinary action. Any party may appeal a final decision by

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the department to the court pursuant to the provisions of

Section 39-3-1.1 NMSA 1978."

Section 13. Section 27-7-30 NMSA 1978 (being Laws 1989,

Chapter 389, Section 17, as amended) is amended to read:

"27-7-30. DUTY TO REPORT--PENALTY.--

A. Any person, including financial institutions,

having reasonable cause to believe that an incapacitated adult

is being abused, neglected or exploited shall immediately

report that information to the department.

B. The report required in Subsection A of this

section may be made orally or in writing. The report shall

include the name, age and address of the adult, the name and

address of any other person responsible for the adult's care,

the nature and extent of the adult's condition, the basis of

the reporter's knowledge and other relevant information.

C. Any person failing or refusing to report, or

obstructing or impeding any investigation, as required by

Subsection A of this section is guilty of a misdemeanor.

D. The department may assess a civil penalty not

to exceed ten thousand dollars ($10,000) per violation against

a person that violates the provisions of Subsection A of this

section or obstructs or impedes any investigation as required

pursuant to Subsection A of this section. The department may

assess and collect the penalty, after notice and an

opportunity for hearing before a hearing officer designated by

the department to hear the matter, upon a determination that a

person violated the provisions of Subsection A of this section

or obstructed or impeded any investigation as required

pursuant to this section. The hearing officer has the power

to administer oaths on request of any party and issue

subpoenas and subpoenas duces tecum. Additionally, if the

violation is against a person covered by the Personnel Act,

the department shall refer the matter to the agency employing

the person for disciplinary action. Any party may appeal a

final decision by the department to the court pursuant to the

provisions of Section 39-3-1.1 NMSA 1978."

Section 14. REPEAL.--Sections 27-7-20 and 27-7-22 NMSA

1978 (being Laws 1989, Chapter 389, Sections 7 and 9, as

amended) are repealed.

Section 15. EFFECTIVE DATE.--The effective date of the

provisions of this act is July 2, 2007.

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