SJC/SB 270

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AN ACT

RELATING TO HEALTH AND SAFETY; ALLOWING HUMAN

IMMUNODEFICIENCY VIRUS TESTING DURING ROUTINE MEDICAL CARE

AND PROVIDING FOR THE OPTION TO DECLINE TESTING; AMENDING

SECTIONS OF THE NMSA 1978.

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

Section 1. Section 24-2B-2 NMSA 1978 (being Laws 1989,

Chapter 227, Section 2, as amended) is amended to read:

"24-2B-2. INFORMED CONSENT.--No person shall perform a

test designed to identify the human immunodeficiency virus or

its antigen or antibody without first obtaining the informed

consent of the person upon whom the test is performed, except

as provided in Section 24-2B-5, 24-2B-5.1, 24-2B-5.2 or

24-2B-5.3 NMSA 1978. Informed consent shall be preceded by

an explanation of the test, including its purpose, potential

uses and limitations and the meaning of its results. Consent

need not be in writing if there is documentation in the

medical record that the test has been explained and the

consent has been obtained. The requirement for full pre-test

counseling may be waived under the following circumstances:

A. the performance of a prenatal test to determine

if the human immunodeficiency virus or its antigen is present

in a pregnant woman; provided that the woman, or her

authorized representative, after having been informed of the

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option to decline the human immunodeficiency virus test, may

choose not to have the human immunodeficiency virus test

performed as a part of the routine prenatal testing if she or

her authorized representative provides a written statement as

follows:

"I am aware that a test to identify the human

immunodeficiency virus or its antigen or antibody

is a part of routine prenatal testing. However, I

voluntarily and knowingly choose not to have the

human immunodeficiency virus test performed.

_______________________________________________

(Name of patient or authorized representative)

_______________________________________________

(Signature and date)."; or

B. when human immunodeficiency virus testing is

part of routine medical care."

Section 2. Section 24-2B-5 NMSA 1978 (being Laws 1989,

Chapter 227, Section 5, as amended) is amended to read:

"24-2B-5. INFORMED CONSENT NOT REQUIRED.--Informed

consent for testing is not required and the provisions of

Section 24-2B-2 NMSA 1978 do not apply for:

A. a health care provider or health facility

performing a test on the donor or recipient when the health

care provider or health facility procures, processes,

distributes or uses a human body part, including tissue and

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blood or blood products, donated for a purpose specified

under the Uniform Anatomical Gift Act or for transplant

recipients or semen provided for the purpose of artificial

insemination and the test is necessary to ensure medical

acceptability of a recipient or the gift or semen for the

purposes intended;

B. the performance of a test in bona fide medical

emergencies when the subject of the test is unable to grant

or withhold consent and the test results are necessary for

medical diagnostic purposes to provide appropriate emergency

care or treatment, except that post-test counseling or

referral for counseling shall nonetheless be required when

the individual is able to receive that post-test counseling.

Necessary treatment shall not be withheld pending test

results;

C. the performance of a test for the purpose of

research if the testing is performed in a manner by which the

identity of the test subject is not known and may not be

retrieved by the researcher; or

D. the performance of a test done in a setting

where the identity of the test subject is not known, such as

in public health testing programs and sexually transmitted

disease clinics."