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AN ACT

RELATING TO CHILDREN'S MENTAL HEALTH; AMENDING AND ENACTING

SECTIONS OF THE CHILDREN'S MENTAL HEALTH AND DEVELOPMENTAL

DISABILITIES ACT.

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

Section 1. Section 32A-6A-4 NMSA 1978 (being Laws 2007,

Chapter 162, Section 4) is amended to read:

"32A-6A-4. DEFINITIONS.--As used in the Children's

Mental Health and Developmental Disabilities Act:

A. "aversive intervention" means any device or

intervention, consequences or procedure intended to cause pain

or unpleasant sensations, including interventions causing

physical pain, tissue damage, physical illness or injury;

electric shock; isolation; forced exercise; withholding of

food, water or sleep; humiliation; water mist; noxious taste,

smell or skin agents; and over-correction;

B. "behavioral health services" means a

comprehensive array of professional and ancillary services for

the treatment, habilitation, prevention and identification of

mental illnesses, behavioral symptoms associated with

developmental disabilities, substance abuse disorders and

trauma spectrum disorders;

C. "capacity" means a child's ability to:

(1) understand and appreciate the nature and

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consequences of proposed health care, including its

significant benefits, risks and alternatives to proposed

health care; and

(2) make and communicate an informed health

care decision;

D. "chemical restraint" means a medication that is

not standard treatment for the patient's medical or

psychiatric condition that is used to control behavior or to

restrict a patient's freedom of movement;

E. "child" means a person who is a minor;

F. "clinician" means a person whose licensure

allows the person to make independent clinical decisions,

including a physician, licensed psychologist, psychiatric

nurse practitioner, licensed independent social worker,

licensed marriage and family therapist and licensed

professional clinical counselor;

G. "continuum of services" means a comprehensive

array of emergency, outpatient, intermediate and inpatient

services and care, including screening, early identification,

diagnostic evaluation, medical, psychiatric, psychological and

social service care, habilitation, education, training,

vocational rehabilitation and career counseling;

H. "developmental disability" means a severe

chronic disability that:

(1) is attributable to a mental or physical

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impairment or a combination of mental or physical impairments;

(2) is manifested before a person reaches

twenty-two years of age;

(3) is expected to continue indefinitely;

(4) results in substantial functional

limitations in three or more of the following areas of major

life activities:

(a) self-care;

(b) receptive and expressive language;

(c) learning;

(d) mobility;

(e) self-direction;

(f) capacity for independent living; or

(g) economic self-sufficiency; and

(5) reflects a person's need for a

combination and sequence of special, interdisciplinary or

other supports and services that are of lifelong or extended

duration that are individually planned or coordinated;

I. "evaluation facility" means a community mental

health or developmental disability program, a medical facility

having psychiatric or developmental disability services

available or, if none of the foregoing is reasonably available

or appropriate, the office of a licensed physician or a

licensed psychologist, any of which shall be capable of

performing a mental status examination adequate to determine

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the need for appropriate treatment, including possible

involuntary treatment;

J. "family" means persons with a kinship

relationship to a child, including the relationship that

exists between a child and a biological or adoptive parent,

relative of the child, a step-parent, a godparent, a member of

the child's tribe or clan or an adult with whom the child has

a significant bond;

K. "habilitation" means services, including

behavioral health services based on evaluation of the child,

that are aimed at assisting the child to prevent, correct or

ameliorate a developmental disability. The purpose of

habilitation is to enable the child to attain, maintain or

regain maximum functioning or independence. "Habilitation"

includes programs of formal, structured education and

treatment and rehabilitation services;

L. "individual instruction" means a child's

direction concerning a mental health treatment decision for

the child, made while the child has capacity and is fourteen

years of age or older, which is to be implemented when the

child has been determined to lack capacity;

M. "least restrictive means principle" means the

conditions of habilitation or treatment for the child,

separately and in combination that:

(1) are no more harsh, hazardous or

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intrusive than necessary to achieve acceptable treatment

objectives for the child;

(2) involve no restrictions on physical

movement and no requirement for residential care, except as

reasonably necessary for the administration of treatment or

for the protection of the child or others from physical

injury; and

(3) are conducted at the suitable available

facility closest to the child's place of residence;

N. "legal custodian" means a biological or

adoptive parent of a child unless legal custody has been

vested in a person, department or agency and also includes a

person appointed by an unexpired power of attorney;

O. "licensed psychologist" means a person who

holds a current license as a psychologist issued by the New

Mexico state board of psychologist examiners;

P. "likelihood of serious harm to self" means that

it is more likely than not that in the near future a child

will attempt to commit suicide or will cause serious bodily

harm to the child by violent or other self-destructive means,

as evidenced by behavior causing, attempting or threatening

such harm, which behavior gives rise to a reasonable fear of

such harm from the child;

Q. "likelihood of serious harm to others" means

that it is more likely than not that in the near future the

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child will inflict serious bodily harm on another person or

commit a criminal sexual offense, as evidenced by behavior

causing, attempting or threatening such harm, which behavior

gives rise to a reasonable fear of such harm from the child;

R. "mechanical restraint" means any device or

material attached or adjacent to the child's body that

restricts freedom of movement or normal access to any portion

of the child's body and that the child cannot easily remove

but does not include mechanical supports or protective

devices;

S. "mechanical support" means a device used to

achieve proper body position, designed by a physical therapist

and approved by a physician or designed by an occupational

therapist, such as braces, standers or gait belts, but not

including protective devices;

T. "medically necessary services" means clinical

and rehabilitative physical, mental or behavioral health

services that are:

(1) essential to prevent, diagnose or treat

medical conditions or are essential to enable the child to

attain, maintain or regain functional capacity;

(2) delivered in the amount, duration, scope

and setting that is clinically appropriate to the specific

physical, mental and behavioral health care needs of the

child;

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(3) provided within professionally accepted

standards of practice and national guidelines; and

(4) required to meet the physical, mental

and behavioral health needs of the child and are not primarily

for the convenience of the child, provider or payer;

U. "mental disorder" means a substantial disorder

of the child's emotional processes, thought or cognition, not

including a developmental disability, that impairs the

child's:

(1) functional ability to act in

developmentally and age-appropriate ways in any life domain;

(2) judgment;

(3) behavior; and

(4) capacity to recognize reality;

V. "mental health or developmental disabilities

professional" means a person who by training or experience is

qualified to work with persons with mental disorders or

developmental disabilities;

W. "out-of-home treatment or habilitation program"

means an out-of-home residential program that provides twenty-

four-hour care and supervision to children with the primary

purpose of providing treatment or habilitation to children.

"Out-of-home treatment or habilitation program" includes, but

is not limited to, treatment foster care, group homes,

psychiatric hospitals, psychiatric residential treatment

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facilities and non-medical and community-based residential

treatment centers;

X. "parent" means a biological or adoptive parent

of a child whose parental rights have not been terminated;

Y. "physical restraint" means the use of physical

force without the use of any device or material that restricts

the free movement of all or a portion of a child's body;

Z. "protective devices" means helmets, safety

goggles or glasses, guards, mitts, gloves, pads and other

common safety devices that are normally used or recommended

for use by persons without disabilities while engaged in a

sport or occupation or during transportation;

AA. "residential treatment or habilitation

program" means diagnosis, evaluation, care, treatment or

habilitation rendered inside or on the premises of a mental

health or developmental disabilities facility, hospital,

clinic, institution, supervisory residence or nursing home

when the child resides on the premises and where one or more

of the following measures is available for use:

(1) a mechanical device to restrain or

restrict the child's movement;

(2) a secure seclusion area from which the

child is unable to exit voluntarily;

(3) a facility or program designed for the

purpose of restricting the child's ability to exit

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voluntarily; and

(4) the involuntary emergency administration

of psychotropic medication;

BB. "restraint" means the use of a physical,

chemical or mechanical restraint;

CC. "seclusion" means the confinement of a child

alone in a room from which the child is physically prevented

from leaving;

DD. "treatment" means provision of behavioral

health services based on evaluation of the child, aimed at

assisting the child to prevent, correct or ameliorate a mental

disorder. The purpose of treatment is to enable the child to

attain, maintain or regain maximum functioning;

EE. "treatment team" means a team consisting of

the child, the child's parents unless parental rights have

specifically been limited pursuant to an order of a court,

legal custodian, guardian ad litem, treatment guardian,

clinician and any other professionals involved in treatment of

the child, other members of the child's family, if requested

by the child, and the child's attorney if requested by the

child, unless in the professional judgment of the treating

clinician for reasons of safety or therapy one or more members

should be excluded from participation in the treatment team;

and

FF. "treatment plan" means an individualized plan

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developed by a treatment team based on assessed strengths and

needs of the child and family."

Section 2. Section 32A-6A-9 NMSA 1978 (being Laws 2007,

Chapter 162, Section 9) is amended to read:

"32A-6A-9. RESTRAINT, GENERALLY.--

A. Nothing in this section shall be interpreted to

diminish the rights and protections accorded to children in

hospitals or psychiatric residential treatment or habilitation

facilities as provided by federal law and regulation.

B. Restraint and seclusion as provided for in this

section is not considered treatment. It is an emergency

intervention to be used only until the emergency ceases.

C. Nothing in this section shall prohibit the use

of:

(1) mechanical supports or protective

devices;

(2) a medical restraint prescribed by a

physician or dentist as a health-related protective measure

during the conduct of a specific medical, surgical or dental

procedure; and

(3) holding a child for a very short period

of time without undue force to calm or comfort the child or

holding a child's hand to escort the child safely from one

area to another."

Section 3. Section 32A-6A-10 NMSA 1978 (being Laws

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2007, Chapter 162, Section 10) is amended to read:

"32A-6A-10. PHYSICAL RESTRAINT AND SECLUSION.--

A. When providing any treatment or habilitation,

physical restraint and seclusion shall not be used unless an

emergency situation arises in which it is necessary to protect

a child or another from imminent, serious physical harm or

unless another less intrusive, nonphysical intervention has

failed or been determined ineffective.

B. A treatment and habilitation program shall

provide a child and the child's legal custodian with a copy of

the policies and procedures governing the use of restraint and

seclusion.

C. When a child is in a restraint or in seclusion,

the mental health or developmental disabilities professional

shall document:

(1) any less intrusive interventions that

were attempted or determined to be inappropriate prior to the

incident;

(2) the precipitating event immediately

preceding the behavior that prompted the use of restraint or

seclusion;

(3) the behavior that prompted the use of a

restraint or seclusion;

(4) the names of the mental health or

developmental disabilities professional who observed the

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behavior that prompted the use of restraint or seclusion;

(5) the names of the staff members

implementing and monitoring the use of restraint or seclusion;

and

(6) a description of the restraint or

seclusion incident, including the type and length of the use

of restraint or seclusion, the child's behavior during and

reaction to the restraint or seclusion and the name of the

supervisor informed of the use of restraint or seclusion.

D. The documentation shall be maintained in the

child's medical, mental health or educational record and

available for inspection by the child's legal custodian.

E. The child's legal custodian shall be notified

immediately after each time restraint or seclusion is used.

If the legal custodian is not reasonably available, the mental

health or developmental disability professional shall document

all attempts to notify the legal custodian and shall send

written notification within one business day.

F. After an incident of restraint or seclusion,

the mental health or developmental disabilities professional

involved in the incident shall conduct a debriefing with the

child in which the precipitating event, unsafe behavior and

preventive measures are reviewed with the intent of reducing

or eliminating the need for future restraint or seclusion.

The debriefing shall be documented in the child's record and

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incorporated into the next treatment plan review.

G. As promptly as possible, but under no

circumstances later than five calendar days after a child has

been subject to restraint or seclusion, the treatment team

shall meet to review the incident and revise the treatment

plan as appropriate. The treatment team shall identify any

known triggers to the behavior that necessitated the use of

restraint or seclusion and recommend preventive measures that

may be used to calm the child and eliminate the need for

restraint or seclusion. In a subsequent review of the

treatment plan, the treatment team shall review the success or

failure of preventive measures and revise the plan, if

necessary, based on such review.

H. Physical restraint shall be applied only by a

mental health or developmental disabilities professional

trained in the appropriate use of physical restraint.

I. In applying physical restraint, a mental health

or developmental disabilities professional shall use only

reasonable force as is necessary to protect the child or other

person from imminent and serious physical harm.

J. Seclusion shall be applied only by mental

health or developmental disabilities professionals who are

trained in the appropriate use of seclusion.

K. At a minimum, a room used for seclusion shall:

(1) be free of objects and fixtures with

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which a child could self-inflict bodily harm;

(2) provide the mental health or

developmental disabilities professional an adequate and

continuous view of the child from an adjacent area; and

(3) provide adequate lighting and

ventilation.

L. During the seclusion of a child, the mental

health or developmental disabilities professional shall:

(1) view the child placed in seclusion at

all times; and

(2) provide the child placed in seclusion

with:

(a) an explanation of the behavior that

resulted in the seclusion; and

(b) instructions on the behavior

required to return to the environment.

M. At a minimum, a mental health or developmental

disabilities professional shall reassess a child in restraint

or seclusion every thirty minutes.

N. The use of a mechanical restraint is prohibited

in a mental health and developmental disability treatment

setting unless the treatment setting is a hospital that is

licensed and certified by and meets the requirements of the

joint commission for the accreditation of health care

organizations or a facility created pursuant to the Adolescent

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Treatment Hospital Act.

O. This section does not prohibit a mental health

or developmental disabilities professional from using a

mechanical support or protective device:

(1) as prescribed by a health professional;

or

(2) for a child with a disability, in

accordance with a written treatment plan, including but not

limited to a school individualized education plan or behavior

intervention plan."

Section 4. Section 32A-6A-13 NMSA 1978 (being Laws

2007, Chapter 162, Section 13) is amended to read:

"32A-6A-13. LEGAL REPRESENTATION OF CHILDREN.--

A. A child shall be represented by an attorney at

all commitment or treatment guardianship proceedings under the

Children's Mental Health and Developmental Disabilities Act if

the child is fourteen years of age or older or by a guardian

ad litem if the child is under fourteen years of age.

B. When a child has not retained an attorney or a

guardian ad litem in a commitment or treatment guardian

proceeding and is unable to do so, the court shall appoint an

attorney or a guardian ad litem to represent the child in the

proceeding. Only an attorney with appropriate experience

shall be appointed as an attorney or a guardian ad litem for

the child. Whenever reasonable and appropriate, the court

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shall appoint a guardian ad litem or attorney who is

knowledgeable about the child's cultural background.

C. A child of any age shall have access to the

state's designated protection and advocacy system pursuant to

the federal Developmental Disabilities Assistance and Bill of

Rights Act and the federal Protection and Advocacy for

Individuals with Mental Illness Act and access to an attorney

of the child's choice regarding any matter related to the

Children's Mental Health and Developmental Disabilities Act.

D. The child is not entitled to appointment of an

attorney at public expense, except as set forth in Subsections

A and B of this section.

E. A child shall not be represented or counseled

by an attorney or guardian ad litem who has a conflict of

interest, including but not limited to any conflict of

interest resulting from prior representation of the child's

parent, guardian, legal custodian or residential treatment or

habilitation program."

Section 5. Section 32A-6A-20 NMSA 1978 (being Laws

2007, Chapter 162, Section 20) is amended to read:

"32A-6A-20. CONSENT TO PLACEMENT IN A RESIDENTIAL

TREATMENT OR HABILITATION PROGRAM--CHILDREN YOUNGER THAN

FOURTEEN YEARS OF AGE.--

A. A child younger than fourteen years of age

shall not receive residential treatment for a mental disorder

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or habilitation for a developmental disability, except as

provided in this section.

B. A child younger than fourteen years of age may

be admitted to a residential treatment or habilitation program

for a period not to exceed sixty days with the informed

consent of the child's legal custodian, subject to the

requirements of this section.

C. In order to admit a child younger than fourteen

years of age to a residential treatment or habilitation

program, the child's legal custodian shall knowingly and

voluntarily execute a consent to admission document prior to

the child's admission. The consent to admission document

shall be in a form designated by the supreme court. The

consent to admission document shall include a clear statement

of the legal custodian's right to consent voluntarily to or

refuse the child's admission, the legal custodian's right to

request the child's immediate discharge from the residential

treatment program at any time and the legal custodian's rights

when the legal custodian requests the child's discharge and

the child's physician, licensed psychologist or the director

of the residential treatment or habilitation program

determines that the child needs continued treatment. The

residential treatment or habilitation program shall ensure

that each statement is clearly explained in the child's and

legal custodian's primary language, if that is their language

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of preference, and in a manner appropriate to the child's and

legal custodian's developmental abilities. Each statement

shall be initialed by the child's legal custodian.

D. The legal custodian's executed consent to

admission document shall be filed with the child's treatment

records within twenty-four hours of the time of admission.

E. Upon the filing of the legal custodian's

consent to admission document in the child's hospital records,

the director of the residential treatment or habilitation

program or the director's designee shall, on the next business

day following the child's admission, notify the district court

or the special commissioner appointed pursuant to Section

32A-6A-25 NMSA 1978 regarding the admission and provide the

child's name, date of birth and the date and place of

admission. The court or special commissioner shall, upon

receipt of notice regarding a child's admission to a

residential treatment or habilitation program, establish a

sequestered court file.

F. The director of a residential treatment or

habilitation program or the director's designee shall, on the

next business day following the child's admission, petition

the court to appoint a guardian ad litem for the child. When

the court receives the petition, the court shall appoint a

guardian ad litem.

G. Within seven days of a child's admission to a

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residential treatment or habilitation program, a guardian ad

litem, representing the child's best interests and in

accordance with the provisions of the Children's Mental Health

and Developmental Disabilities Act, shall meet with the child,

the child's legal custodian and the child's clinician. The

guardian ad litem shall determine the following:

(1) whether the child's legal custodian

understands and consents to the child's admission to a

residential treatment or habilitation program;

(2) whether the admission is in the child's

best interests; and

(3) whether the admission is appropriate for

the child and is consistent with the least restrictive means

principle.

H. If a guardian ad litem determines that the

child's legal custodian understands and consents to the

child's admission and that the admission is in the child's

best interests, is appropriate for the child and is consistent

with the least restrictive means principle, the guardian ad

litem shall so certify on a form designated by the supreme

court. The form, when completed by the guardian ad litem,

shall be filed in the child's patient record kept by the

residential treatment or habilitation program, and a copy

shall be forwarded to the court or special commissioner within

seven days of the child's admission. The guardian ad litem's

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statement shall not identify the child by name.

I. Upon reaching the age of fourteen, a child who

was admitted to a residential treatment or habilitation

program pursuant to this section may petition the district

court for the records of the district court regarding all

matters pertinent to the child's admission to a residential

treatment or habilitation program. The district court, upon

receipt of the petition and upon a determination that the

petitioner is in fact a child who was admitted to a

residential treatment or habilitation program, shall provide

all court records regarding the admission to the petitioner,

including all copies in the court's possession, unless there

is a showing that release of records would cause substantial

harm to the child. Upon reaching the age of eighteen, a

person who was admitted to a residential or treatment or

habilitation program as a child may petition the district

court for such records, and the district court shall provide

all court records regarding the admission to the petitioner,

including all copies in the court's possession.

J. A legal custodian who consents to admission of

a child to a residential treatment or habilitation program has

the right to request the child's immediate discharge from the

residential treatment or habilitation program, subject to the

provisions of this section. If a child's legal custodian

informs the director, a physician or other member of the

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residential treatment or habilitation program staff that the

legal custodian desires the child to be discharged from the

program, the director, physician or other staff shall provide

for the child's immediate discharge and remit the child to the

legal custodian's care. The residential treatment or

habilitation program shall also notify the child's guardian ad

litem. A child whose legal custodian requests the child's

immediate discharge shall be discharged, except when the

director of the residential treatment or habilitation program,

a physician or a licensed psychologist determines that the

child requires continued treatment and that the child meets

the criteria for involuntary residential treatment. In that

event, the director, physician or licensed psychologist shall,

on the first business day following the child's legal

custodian's request for release of the child from the program,

request that the children's court attorney initiate

involuntary residential treatment proceedings. The children's

court attorney may petition the court for such proceedings.

The child has a right to a hearing regarding the child's

continued treatment within seven days of the request for

release.

K. A residential treatment or habilitation program

shall review the admission of a child at the end of a sixty-

day period after the date of initial admission, and the

child's physician or licensed psychologist shall review the

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admission to determine whether it is in the best interests of

the child to continue the admission. If the child's physician

or licensed psychologist concludes that continuation of the

residential treatment or habilitation program is in the

child's best interests, the child's clinician shall so state

in a form to be filed in the child's patient records. The

residential treatment or habilitation program shall notify the

guardian ad litem for the child at least seven days prior to

the date that the sixty-day period is to end or, if necessary,

request a guardian ad litem pursuant to the provisions of the

Children's Mental Health and Developmental Disabilities Act.

The guardian ad litem shall then personally meet with the

child, the child's legal custodian and the child's clinician

and ensure that the child's legal custodian understands and

consents to the child's continued admission to the residential

treatment or habilitation program. If the guardian ad litem

determines that the child's legal custodian understands and

consents to the child's continued admission to the residential

treatment or habilitation program, that the continued

admission is in the child's best interest, that the placement

continues to be appropriate for the child and consistent with

the least restrictive means principle and that the clinician

has recommended the child's continued stay in the program, the

guardian ad litem shall so certify on a form designated by the

supreme court. The disposition of these forms shall be as set

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forth in this section, with one copy going in the child's

patient record and the other being sent to the district court

in a manner that preserves the child's anonymity. This

procedure shall take place every sixty days following the

child's last admission or a guardian ad litem's certification,

whichever occurs first.

L. When a guardian ad litem determines that the

child's legal custodian does not understand or consent to the

child's admission to a residential treatment or habilitation

program, that the admission is not in the child's best

interests, that the placement is inappropriate for the child

or is inconsistent with the least restrictive means principle

or that the child's clinician has not recommended a continued

stay by the child in the residential treatment or habilitation

program, the child shall be released or involuntary placement

procedures shall be initiated.

M. If the child's legal custodian is unavailable

to take custody of the child and immediate discharge of the

child would endanger the child, the residential treatment or

habilitation program may detain the child until a safe and

orderly discharge is possible. If the child's legal custodian

refuses to take physical custody of the child, the residential

treatment or habilitation program shall refer the case to the

department for an abuse and neglect or family in need of

court-ordered services investigation. The department may take

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the child into protective custody pursuant to the provisions

of the Abuse and Neglect Act or the Family in Need of Court-

Ordered Services Act."

Section 6. Section 32A-6A-24 NMSA 1978 (being Laws

2007, Chapter 162, Section 24) is amended to read:

"32A-6A-24. DISCLOSURE OF INFORMATION.--

A. Except as otherwise provided in the Children's

Mental Health and Developmental Disabilities Act, a person

shall not, without the authorization of the child, disclose or

transmit any confidential information from which a person

well-acquainted with the child might recognize the child as

the described person or any code, number or other means that

could be used to match the child with confidential information

regarding the child.

B. When the child is under fourteen years of age,

the child's legal custodian is authorized to consent to

disclosure on behalf of the child. Information shall also be

disclosed to a court-appointed guardian ad litem without

consent of the child or the child's legal custodian.

C. A child fourteen years of age or older with

capacity to consent to disclosure of confidential information

shall have the right to consent to disclosure of mental health

and habilitation records. A legal custodian who is authorized

to make health care decisions for a child has the same rights

as the child to request, receive, examine, copy and consent to

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the disclosure of medical or other health care information

when evidence exists that such a child whose consent to

disclosure of confidential information is sought does not have

capacity to give or withhold valid consent and does not have a

treatment guardian appointed by a court. If the legal

custodian is not authorized to make decisions for a child

under the Children's Mental Health and Developmental

Disabilities Act, the person seeking authorization shall

petition the court for the appointment of a treatment guardian

to make a decision for such a child.

D. Authorization from the child or legal custodian

for a child less than fourteen years of age shall not be

required for the disclosure or transmission of confidential

information when the disclosure or transmission:

(1) is necessary for treatment of the child

and is made in response to a request from a clinician;

(2) is necessary to protect against a clear

and substantial risk of imminent serious physical injury or

death inflicted by the child on self or another;

(3) is determined by a clinician not to

cause substantial harm to the child and a summary of the

child's assessment, treatment plan, progress, discharge plan

and other information essential to the child's treatment is

made to a child's legal custodian or guardian ad litem;

(4) is to the primary caregiver of the child

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and the information disclosed was necessary for the continuity

of the child's treatment in the judgment of the treating

clinician who discloses the information;

(5) is to an insurer contractually obligated

to pay part or all of the expenses relating to the treatment

of the child at the residential facility. The information

disclosed shall be limited to data identifying the child,

facility and treating or supervising physician and the dates

and duration of the residential treatment. It shall not be a

defense to an insurer's obligation to pay that the information

relating to the residential treatment of the child, apart from

information disclosed pursuant to this section, has not been

disclosed to the insurer;

(6) is to a protection and advocacy

representative pursuant to the federal Developmental

Disabilities Assistance and Bill of Rights Act and the federal

Protection and Advocacy for Individuals with Mental Illness

Act; or

(7) is pursuant to a court order issued for

good cause shown after notice to the child and the child's

legal custodian and opportunity to be heard is given. Before

issuing an order requiring disclosure, the court shall find

that:

(a) other ways of obtaining the

information are not available or would not be effective; and

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(b) the need for the disclosure

outweighs the potential injury to the child, the clinician-

child relationship and treatment services.

E. A disclosure ordered by the court shall be

limited to the information that is essential to carry out the

purpose of the disclosure. Disclosure shall be limited to

those persons whose need for the information forms the basis

for the order. An order by the court shall include such other

measures as are necessary to limit disclosure for the

protection of the child, including sealing from public

scrutiny the record of a proceeding for which disclosure of a

child's record has been ordered.

F. An authorization given for the transmission or

disclosure of confidential information shall not be effective

unless it:

(1) is in writing and signed; and

(2) contains a statement of the child's

right to examine and copy the information to be disclosed, the

name or title of the proposed recipient of the information and

a description of the use that may be made of the information.

G. The child has a right of access to confidential

information about the child and has the right to make copies

of information about the child and submit clarifying or

correcting statements and other documentation of reasonable

length for inclusion with the confidential information. The

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statements and other documentation shall be kept with the

relevant confidential information, shall accompany it in the

event of disclosure and shall be governed by the provisions of

this section to the extent the statements or other

documentation contain confidential information. Nothing in

this subsection shall prohibit the denial of access to the

records when a physician or other mental health or

developmental disabilities professional believes and notes in

the child's medical records that the disclosure would not be

in the best interests of the child. In all cases, the child

has the right to petition the court for an order granting

access.

H. Information concerning a child disclosed under

this section shall not be released to any other person, agency

or governmental entity or placed in files or computerized data

banks accessible to any persons not otherwise authorized to

obtain information under this section. Notwithstanding the

confidentiality provisions of the Delinquency Act and the

Abuse and Neglect Act, information disclosed under this

section shall not be re-released without the express consent

of the child or legal custodian authorized under the

Children's Mental Health and Developmental Disabilities Act to

give consent and any other consent necessary for redisclosure

in conformance with state and federal law, including consent

that may be required from the professional or the facility

that created the document.

I. Nothing in the Children's Mental Health and

Developmental Disabilities Act shall limit the confidentiality

rights afforded by federal statute or regulation.

J. The department shall promulgate rules for

implementing disclosure of records pursuant to this section

and in compliance with state and federal law and the

Children's Court Rules."

Section 7. A new section of the Children's Mental

Health and Developmental Disabilities Act, Section 32A-6A-30

NMSA 1978, is enacted to read:

"32A-6A-30. RULES.--The department shall promulgate

rules for the operation of out-of-home treatment and

habilitation programs identified as psychiatric residential

treatment facilities or non-medical community-based

residential programs in keeping with the purposes of the

Children's Mental Health and Developmental Disabilities Act

and in conformance with applicable federal law and

regulation."

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