SB0053JUS

SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR

SENATE PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR

SENATE BILL 53

52nd legislature - STATE OF NEW MEXICO - first session, 2015

AN ACT

RELATING TO HEALTH CARE; ENACTING THE ASSISTED OUTPATIENT TREATMENT ACT; PROVIDING FOR ASSISTED OUTPATIENT TREATMENT PROCEEDINGS; PROVIDING FOR SEQUESTRATION AND CONFIDENTIALITY OF RECORDS; PROVIDING FOR PENALTIES; AMENDING THE MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES CODE TO REQUIRE DATA COLLECTION FOR CERTAIN PROCEEDINGS; MAKING APPROPRIATIONS.

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

SECTION 1. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] SHORT TITLE.--Sections 1 through 15 of this act may be cited as the "Assisted Outpatient Treatment Act"."

SECTION 2. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] DEFINITIONS.--As used in the Assisted Outpatient Treatment Act:

A. "advance directive for mental health treatment" means an individual instruction or power of attorney for mental health treatment made pursuant to the Mental Health Care Treatment Decisions Act;

B. "agent" means an individual designated in a power of attorney for health care to make a mental health care decision for the individual granting the power;

C. "assertive community treatment" means a team treatment approach designed to provide comprehensive community-based psychiatric treatment, rehabilitation and support to persons with serious and persistent mental disorders;

D. "assisted outpatient treatment" means categories of outpatient services ordered by a district court, including case management services or assertive community treatment team services, prescribed to treat a patient's mental disorder and to assist a patient in living and functioning in the community or to attempt to prevent a relapse or deterioration that may reasonably be predicted to result in harm to the patient or another or the need for hospitalization. Assisted outpatient treatment may include:

(1) medication;

(2) periodic blood tests or urinalysis to determine compliance with prescribed medications;

(3) individual or group therapy;

(4) day or partial-day programming activities;

(5) educational and vocational training or activities;

(6) alcohol and substance abuse treatment and counseling;

(7) periodic blood tests or urinalysis for the presence of alcohol or illegal drugs for a patient with a history of alcohol or substance abuse;

(8) supervision of living arrangements; and

(9) any other services prescribed to treat the patient's mental disorder and to assist the patient in living and functioning in the community, or to attempt to prevent a deterioration of the patient's mental or physical condition;

E. "covered entity" means a health plan, a health care clearinghouse or a health care provider that transmits any health information in electronic form;

F. "guardian" means a judicially appointed guardian having authority to make mental health care decisions for an individual;

G. "least restrictive appropriate alternative" means treatment and conditions that:

(1) are no more harsh, hazardous or intrusive than necessary to achieve acceptable treatment objectives; and

(2) do not restrict physical movement or require residential care, except as reasonably necessary for the administration of treatment or the protection of the patient;

H. "likely to result in serious harm to others" means that it is more likely than not that in the near future a person will inflict serious, unjustified 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 person;

I. "likely to result in serious harm to self" means that it is more likely than not that in the near future the person will attempt to commit suicide or will cause serious bodily harm to the person's self by violent or other self-destructive means, including grave passive neglect;

J. "mandated service" means a service specified in a court order requiring assisted outpatient treatment;

K. "patient" means a person receiving assisted outpatient treatment pursuant to a court order;

L. "power of attorney for health care" means the designation of an agent to make health care decisions for the individual granting the power, made while the individual has capacity;

M. "provider" means an individual or organization licensed, certified or otherwise authorized or permitted by law to provide mental or physical health diagnosis or treatment in the ordinary course of business or practice of a profession;

N. "qualified professional" means a physician, licensed psychologist, prescribing psychologist, certified nurse practitioner or clinical nurse specialist with a specialty in mental health, or a physician assistant with a specialty in mental health;

O. "qualified protective order" means, with respect to protected health information, an order of a district court or stipulation of parties to a proceeding under the Assisted Outpatient Treatment Act;

P. "respondent" means a person who is the subject of a petition or order for assisted outpatient treatment;

Q. "surrogate decision-maker" means an agent designated by the respondent, a guardian or a treatment guardian; and

R. "treatment guardian" means a person appointed pursuant to Section 43-1-15 NMSA 1978 to make mental health treatment decisions for a person who has been found by clear and convincing evidence to be incapable of making the person's own mental health treatment decisions."

SECTION 3. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] ASSISTED OUTPATIENT TREATMENT--CRITERIA.--A person may be ordered to participate in assisted outpatient treatment if the court finds by clear and convincing evidence that the person:

A. is eighteen years of age or older;

B. has a primary diagnosis of a mental disorder;

C. has demonstrated a history of lack of compliance with treatment for a mental disorder that has:

(1) at least twice within the last forty-eight months, been a significant factor in necessitating hospitalization or necessitating receipt of services in a forensic or other mental health unit or a correctional facility; provided that the forty-eight-month period shall be extended by the length of any hospitalization or incarceration of the person that occurred within the forty-eight-month period;

(2) resulted in one or more acts of serious violent behavior toward self or others or threats of, or attempts at, serious physical harm to self or others within the last forty-eight months; provided that the forty-eight-month period shall be extended by the length of any hospitalization or incarceration of the person that occurred within the forty-eight-month period; or

(3) resulted in the person being hospitalized or incarcerated for six months or more and the person is to be discharged or released within the next thirty days or was discharged or released within the past sixty days;

D. is unwilling or unlikely, as a result of a mental disorder, to participate voluntarily in outpatient treatment that would enable the person to live safely in the community without court supervision;

E. is in need of assisted outpatient treatment as the least restrictive appropriate alternative to prevent a relapse or deterioration likely to result in serious harm to self or likely to result in serious harm to others; and

F. will likely benefit from, and the person's best interests will be served by, receiving assisted outpatient treatment."

SECTION 4. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] PETITION TO THE COURT.--

A. A petition for an order authorizing assisted outpatient treatment may be filed in the district court for the county in which the respondent is present or reasonably believed to be present. A petition shall be filed only by the following persons:

(1) a person eighteen years of age or older who resides with the respondent;

(2) the parent or spouse of the respondent;

(3) the sibling or child of the respondent; provided that the sibling or child is eighteen years of age or older;

(4) the director of a hospital where the respondent is hospitalized;

(5) the director of a public or charitable organization or agency or a home where the respondent resides and that provides mental health services to the respondent;

(6) a qualified professional who either supervises the treatment of or treats the respondent for a mental disorder or has supervised or treated the respondent for a mental disorder within the past forty-eight months; or

(7) a surrogate decision-maker.

B. The petition shall be entitled "In the Matter of _______" and shall include:

(1) each criterion for assisted outpatient treatment as set forth in Section 3 of the Assisted Outpatient Treatment Act;

(2) facts that support the petitioner's belief that the respondent meets each criterion; provided that the hearing on the petition need not be limited to the stated facts; and

(3) whether the respondent is present or is reasonably believed to be present within the county where the petition is filed.

C. The petition shall be accompanied by an affidavit of a qualified professional and shall state that:

(1) the qualified professional has personally examined the respondent no more than ten days prior to the filing of the petition, that the qualified professional recommends assisted outpatient treatment for the respondent and that the qualified professional is willing and able to testify at the hearing on the petition either in person or by contemporaneous transmission from a different location; or

(2) no more than ten days prior to the filing of the petition, the qualified professional or the qualified professional's designee has unsuccessfully attempted to persuade the respondent to submit to an examination, that the qualified professional has reason to believe that the respondent meets the criteria for assisted outpatient treatment and that the qualified professional is willing and able to examine the respondent and testify at the hearing on the petition either in person or by contemporaneous transmission from a different location."

SECTION 5. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] QUALIFIED PROTECTIVE ORDER.--

A. A motion seeking a qualified protective order shall accompany each petition for an order authorizing assisted outpatient treatment.

B. In considering the motion, the court shall determine which parties to the proceeding and their attorneys are authorized to receive, subpoena and transmit protected health information pertaining to the respondent for purposes of the proceeding. If the petitioner is a party identified in Paragraph (1), (2) or (3) of Subsection A of Section 4 of the Assisted Outpatient Treatment Act, the court may bar or limit the disclosure of the respondent's protected health information.

C. Covered entities shall only disclose protected health information pertaining to the respondent in accordance with the court's order, except as otherwise provided by state and federal health care privacy laws.

D. Parties and their attorneys are only authorized to use the protected health information of the respondent as directed by the court's order.

E. Within forty-five days after the later of the exhaustion of all appeals or the date on which the respondent is no longer receiving assisted outpatient treatment, the parties and their attorneys and any person or entity in possession of protected health information received from a party or the party's attorney in the course of the proceeding shall destroy all copies of protected health information pertaining to the respondent, except that counsel are not required to secure the return or destruction of protected health information submitted to the court.

F. Nothing in the order controls or limits the use of protected health information pertaining to the respondent that comes into the possession of a party or the party's attorney from a source other than a covered entity.

G. Nothing in the court's order shall authorize any party to obtain medical records or information through means other than formal discovery requests, subpoenas, depositions or other lawful process, or pursuant to a patient authorization."

SECTION 6. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] HEARING--EXAMINATION BY A QUALIFIED PROFESSIONAL.--

A. Upon receipt of a petition for an order authorizing assisted outpatient treatment, the court shall fix a date for a hearing:

(1) no sooner than three or later than seven days after the date of service or as stipulated by the parties, or upon a showing of good cause, no later than thirty days after the date of service; or

(2) if the respondent is hospitalized at the time of filing of the petition, before discharge of the respondent and in sufficient time to arrange for a continuous transition from inpatient treatment to assisted outpatient treatment.

B. A copy of the petition and notice of hearing shall be served, in the same manner as a summons, on the petitioner, the respondent, the qualified professional whose affidavit accompanied the petition and a current provider, if any.

C. If, on the date that the petition is filed, the respondent has a surrogate decision-maker, a copy of the petition and notice of hearing shall be served, in the same manner as a summons, on the surrogate decision-maker.

D. The respondent shall be represented by counsel at all stages of the proceedings.

E. If the respondent fails to appear at the hearing after notice, the court may conduct the hearing in the respondent's absence, provided that the respondent's counsel is present.

F. If the respondent has refused to be examined by the qualified professional whose affidavit accompanied the petition, the court may order a mental examination of the respondent as provided by Rule 1-035 (A) NMRA. The examination of the respondent may be performed by the qualified professional whose affidavit accompanied the petition. If the examination is performed by another qualified professional, the examining qualified professional shall be authorized to consult with the qualified professional whose affidavit accompanied the petition.

G. If the respondent has refused to be examined by a qualified professional and the court finds reasonable grounds to believe that the allegations of the petition are true, the court may issue a written order directing a peace officer who has completed crisis intervention training to detain and transport the respondent to a provider for examination by a qualified professional. A respondent detained pursuant to this subsection shall be detained no longer than necessary to complete the examination and in no event longer than twenty-four hours.

H. The court shall not order assisted outpatient treatment for the respondent unless a qualified professional, who has personally examined the respondent within ten days of the filing of the petition, testifies at the hearing in person or by contemporaneous transmission from a different location. The qualified professional shall provide testimony in support of the finding that the respondent meets all of the criteria for assisted outpatient treatment and testimony on the written proposed treatment plan developed pursuant to Section 7 of the Assisted Outpatient Treatment Act, including:

(1) the recommended assisted outpatient treatment, the rationale for the recommended assisted outpatient treatment and the facts that establish that such treatment is the least restrictive appropriate alternative;

(2) information regarding the respondent's access to, and the availability of, recommended assisted outpatient treatment in the community or elsewhere; and

(3) if the recommended assisted outpatient treatment includes medication, the types or classes of medication that should be authorized, the beneficial and detrimental physical and mental effects of such medication and whether such medication should be self-administered or administered by a specified provider."

SECTION 7. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] WRITTEN PROPOSED TREATMENT PLAN.--

A. The court shall not order assisted outpatient treatment unless a qualified professional provides a written proposed treatment plan to the court. The plan shall state all treatment services recommended for the respondent and, for each such service, shall specify a provider that has agreed to provide the service.

B. In developing a written proposed treatment plan, the qualified professional shall take into account, if existing, an advance directive for mental health treatment and provide the following persons with an opportunity to participate:

(1) the respondent;

(2) all current treating providers;

(3) upon the request of the respondent, an individual significant to the respondent, including any relative, close friend or individual otherwise concerned with the welfare of the respondent; and

(4) any surrogate decision-maker.

C. The written proposed treatment plan shall include case management services or an assertive community treatment team to provide care coordination and assisted outpatient treatment services recommended by the qualified professional. If the plan includes medication, it shall state whether such medication should be self-administered or administered by a specified provider, and shall specify type and dosage range of medication. In no event shall the plan recommend the use of physical force or restraints to administer medication to the respondent.

D. If the written proposed treatment plan includes alcohol or substance abuse counseling and treatment, the plan may include a provision requiring relevant testing for either alcohol or abused substances; provided that the qualified professional's clinical basis for recommending such plan provides sufficient facts for the court to find that:

(1) the respondent has a history of co-occurring alcohol or substance abuse; and

(2) such testing is necessary to prevent a relapse or deterioration that would be likely to result in serious harm to self or likely to result in serious harm to others."

SECTION 8. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] DISPOSITION.--

A. After a hearing and consideration of all relevant evidence, the court shall order the respondent to receive assisted outpatient treatment if it finds by clear and convincing evidence that the respondent meets all criteria set forth in Section 3 of the Assisted Outpatient Treatment Act.

B. The court's order shall:

(1) provide for a period of outpatient treatment not to exceed one year;

(2) specify the assisted outpatient treatment services that the respondent is to receive; and

(3) direct one or more specified providers to provide or arrange for all assisted outpatient treatment for the patient throughout the period of the order.

C. If the court order includes medication, it shall state the type or types of medication and the dosage range found to be necessary, based on the treatment plan and evidence presented. The court may order the respondent to self-

administer medication or accept the administration of such medication by a specified provider. In no event shall the court require or authorize the use of physical force or restraints to administer medication to the respondent.

D. The court may not order treatment that has not been recommended by the qualified professional and included in the written proposed treatment plan, nor direct the participation of a provider that has not been specified in such plan.

E. If the respondent has a surrogate decision-maker or an advance directive for mental health treatment, the court shall follow the decisions of the surrogate decision-maker or the advance directive in determining the treatment ordered, unless there is good cause shown to order otherwise.

F. The court shall not order assisted outpatient treatment for a respondent with a surrogate decision-maker without notice to such surrogate decision-maker and an opportunity for hearing as provided in Section 6 of the Assisted Outpatient Treatment Act.

G. The court may order assisted outpatient treatment:

(1) in lieu of involuntary inpatient commitment if it finds assisted outpatient treatment to be the least restrictive appropriate alternative; or

(2) as a means of jail diversion."

SECTION 9. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] EXPEDITIOUS APPEAL.--There shall be a right to an expeditious appeal from a final order in a proceeding under the Assisted Outpatient Treatment Act."

SECTION 10. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] EFFECT OF DETERMINATION THAT RESPONDENT IS IN NEED OF ASSISTED OUTPATIENT TREATMENT.--An assisted outpatient treatment order shall not be construed as a determination that the respondent is incompetent."

SECTION 11. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] APPLICATIONS FOR CONTINUED PERIODS OF TREATMENT.--

A. Prior to the expiration of the period of assisted outpatient treatment, a party or respondent's surrogate decision-maker may apply to the court for a subsequent order authorizing continued assisted outpatient treatment for a period not to exceed one year. The application shall be served upon those persons required to be served with notice of a petition for an order authorizing assisted outpatient treatment and every specified provider.

B. If the court's disposition of the application does not occur prior to the expiration date of the current order, the current order shall remain in effect until the court's disposition. The disposition of the application shall occur no later than ten calendar days following the filing of the application.

C. A respondent may be ordered to participate in continued assisted outpatient treatment if the court finds by clear and convincing evidence that the respondent:

(1) continues to have a primary diagnosis of a mental disorder;

(2) is unwilling or unlikely, as a result of a mental disorder, to participate voluntarily in outpatient treatment that would enable the respondent to live safely in the community without court supervision;

(3) is in need of continued assisted outpatient treatment as the least restrictive appropriate alternative in order to prevent a relapse or deterioration likely to result in serious harm to self or likely to result in serious harm to others; and

(4) will likely benefit from, and the respondent's best interests will be served by, receiving continued assisted outpatient treatment."

SECTION 12. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] APPLICATION TO STAY, VACATE, MODIFY OR ENFORCE AN ORDER.--

A. In addition to any other right or remedy available by law with respect to the court order for assisted outpatient treatment, a party or respondent's surrogate decision-maker may apply to the court to stay, vacate, modify or enforce the order. The application shall be served upon those persons required to be served with notice of a petition for an order authorizing assisted outpatient treatment and every specified provider. The disposition of the application shall occur no later than ten calendar days following the filing of the application.

B. A specified provider shall apply to the court for approval before instituting a proposed material change in mandated services or assisted outpatient treatment unless such change is contemplated in the order. The application shall be served upon those persons required to be served with notice of a petition for an order authorizing assisted outpatient treatment and every specified provider. The disposition of the application shall occur no later than ten calendar days following the filing of the application. Nonmaterial changes may be instituted by the provider without court approval. For purposes of this subsection, "material change" means an addition or deletion of a category of assisted outpatient treatment and does not include a change in medication or dosage contemplated in the order that, based upon the clinical judgment of the provider, is in the best interest of the patient.

C. A court order requiring periodic blood tests or urinalysis for the presence of alcohol or abused substances shall be subject to review after six months by a qualified professional, who shall be authorized to terminate such blood tests or urinalysis without further action by the court."

SECTION 13. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] FAILURE TO COMPLY WITH ASSISTED OUTPATIENT TREATMENT.--

A. If a qualified professional determines that a respondent has materially failed to comply with the assisted outpatient treatment as ordered by the court, such that the qualified professional believes that the respondent's condition is likely to result in serious harm to self or likely to result in serious harm to others and that immediate detention is necessary to prevent such harm, the qualified professional shall certify the need for detention and transport of the respondent for emergency mental health evaluation and care pursuant to the provisions of Paragraph (4) of Subsection A of Section 43-1-10 NMSA 1978.

B. A respondent's failure to comply with an order of assisted outpatient treatment is not grounds for involuntary civil commitment or a finding of contempt of court, or for the use of physical force or restraints to administer medication to the respondent."

SECTION 14. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] SEQUESTRATION AND CONFIDENTIALITY OF RECORDS.--

A. All records or information containing protected health information relating to the respondent, including all pleadings and other documents filed in the matter, social records, diagnostic evaluations, psychiatric or psychologic reports, videotapes, transcripts and audio recordings of interviews and examinations, recorded testimony and the assisted outpatient treatment plan that was produced or obtained as part of a proceeding pursuant to the Assisted Outpatient Treatment Act shall be confidential and closed to the public.

B. The records described in Subsection A of this section may only be disclosed to the parties and:

(1) court personnel;

(2) court-appointed special advocates;

(3) attorneys representing parties to the proceeding;

(4) surrogate decision-makers;

(5) peace officers requested by the

court to perform any duties or functions related to the respondent as deemed appropriate by the court;

(6) qualified professionals and providers involved in the evaluation or treatment of the respondent;

(7) public health authorities or entities conducting public health surveillance or research, if authorized by law; and

(8) any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court.

C. A person who intentionally releases any information or records closed to the public pursuant to the Assisted Outpatient Treatment Act or who releases or makes other use of the records in violation of that act is guilty of a fourth degree felony and shall be punished in accordance with the provisions of Section 31-18-15 NMSA 1978."

SECTION 15. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] EDUCATIONAL MATERIALS.--The division and the interagency behavioral health purchasing collaborative, in consultation with the administrative office of the courts, shall prepare educational and training materials on the provisions of the Assisted Outpatient Treatment Act, which shall be made available no later than January 1, 2016 to providers, judges, court personnel, peace officers and the general public."

SECTION 16. Section 43-1-3 NMSA 1978 (being Laws 1977, Chapter 279, Section 2, as amended) is amended to read:

"43-1-3. DEFINITIONS.--As used in the Mental Health and Developmental Disabilities Code:

A. "aversive stimuli" means anything that, because it is believed to be unreasonably unpleasant, uncomfortable or distasteful to the client, is administered or done to the client for the purpose of reducing the frequency of a behavior, but does not include verbal therapies, physical restrictions to prevent imminent harm to self or others or psychotropic medications that are not used for purposes of punishment;

B. "client" means any patient who is requesting or receiving mental health services or any person requesting or receiving developmental disabilities services or who is present in a mental health or developmental disabilities facility for the purpose of receiving such services or who has been placed in a mental health or developmental disabilities facility by the person's parent or guardian or by any court order;

C. "code" means the Mental Health and Developmental Disabilities Code;

D. "consistent with the least drastic means principle" means that the habilitation or treatment and the conditions of habilitation or treatment for the client, separately and in combination:

(1) are no more harsh, hazardous or intrusive than necessary to achieve acceptable treatment objectives for the client;

(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 client or others from physical injury; and

(3) are conducted at the suitable available facility closest to the client's place of residence;

E. "convulsive treatment" means any form of mental health treatment that depends upon creation of a convulsion by any means, including but not limited to electroconvulsive treatment and insulin coma treatment;

F. "court" means a district court of New Mexico;

G. "department" or "division" means the behavioral health services division of the human services department;

H. "developmental disability" means a disability of a person that is attributable to mental retardation, cerebral palsy, autism or neurological dysfunction that requires treatment or habilitation similar to that provided to persons with mental retardation;

I. "evaluation facility" means a community mental health or developmental disability program or a medical facility that has psychiatric or developmental disability services available, including the New Mexico behavioral health institute at Las Vegas, the Los Lunas medical center or, if none of the foregoing is reasonably available or appropriate, the office of a physician or a certified psychologist, and that is capable of performing a mental status examination adequate to determine the need for involuntary treatment;

J. "experimental treatment" means any mental health or developmental disabilities treatment that presents significant risk of physical harm, but does not include accepted treatment used in competent practice of medicine and psychology and supported by scientifically acceptable studies;

K. "grave passive neglect" means failure to provide for basic personal or medical needs or for one's own safety to such an extent that it is more likely than not that serious bodily harm will result in the near future;

L. "habilitation" means the process by which professional persons and their staff assist a client with a developmental disability in acquiring and maintaining those skills and behaviors that enable the person to cope more effectively with the demands of the person's self and environment and to raise the level of the person's physical, mental and social efficiency. "Habilitation" includes but is not limited to programs of formal, structured education and treatment;

M. "likelihood of serious harm to oneself" means that it is more likely than not that in the near future the person will attempt to commit suicide or will cause serious bodily harm to the person's self by violent or other self-destructive means, including [but not limited to] grave passive neglect;

N. "likelihood of serious harm to others" means that it is more likely than not that in the near future a person will inflict serious, unjustified 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 person;

O. "mental disorder" means substantial disorder of a person's emotional processes, thought or cognition that grossly impairs judgment, behavior or capacity to recognize reality, but does not mean developmental disability;

P. "mental health or developmental disabilities professional" means a physician or other professional who by training or experience is qualified to work with persons with a mental disorder or a developmental disability;

Q. "physician" or "certified psychologist", when used for the purpose of hospital admittance or discharge, means a physician or certified psychologist who has been granted admitting privileges at a hospital licensed by the department of health, if such privileges are required;

R. "protected health information" means individually identifiable health information transmitted by or maintained in an electronic form or any other form or media that relates to the:

(1) past, present or future physical or mental health or condition of an individual;

(2) provision of health care to an individual; or

(3) payment for the provision of health care to an individual;

[R.] S. "psychosurgery":

(1) means those operations currently referred to as lobotomy, psychiatric surgery and behavioral surgery and all other forms of brain surgery if the surgery is performed for the purpose of the following:

(a) modification or control of thoughts, feelings, actions or behavior rather than the treatment of a known and diagnosed physical disease of the brain;

(b) treatment of abnormal brain function or normal brain tissue in order to control thoughts, feelings, actions or behavior; or

(c) treatment of abnormal brain function or abnormal brain tissue in order to modify thoughts, feelings, actions or behavior when the abnormality is not an established cause for those thoughts, feelings, actions or behavior; and

(2) does not include prefrontal sonic treatment in which there is no destruction of brain tissue;

[S.] T. "qualified mental health professional licensed for independent practice" means an independent social worker, a licensed professional clinical mental health counselor, a marriage and family therapist, a certified nurse practitioner or a clinical nurse specialist with a specialty in mental health, all of whom by training and experience are qualified to work with persons with a mental disorder;

[T.] U. "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 or supervisory residence or nursing home when the client resides on the premises; and

[U.] V. "treatment" means any effort to accomplish a significant change in the mental or emotional condition or behavior of the client."

SECTION 17. Section 43-1-19 NMSA 1978 (being Laws 1977, Chapter 279, Section 18, as amended) is amended to read:

"43-1-19. DISCLOSURE OF INFORMATION.--

A. Except as otherwise provided in the code, no person shall, without the authorization of the client, disclose or transmit any confidential information from which a person well acquainted with the client might recognize the client as the described person, or any code, number or other means that can be used to match the client with confidential information regarding the client.

B. Authorization from the client shall not be required for the disclosure or transmission of confidential information in the following circumstances:

(1) when the request is from a mental health or developmental disability professional or from an employee or trainee working with a person with a mental disability or developmental disability, to the extent that the practice, employment or training on behalf of the client requires access to such information is necessary;

(2) when such disclosure is necessary to protect against a clear and substantial risk of imminent serious physical injury or death inflicted by the client on the client's self or another;

(3) when the disclosure is made pursuant to the provisions of the Assisted Outpatient Treatment Act, using reasonable efforts to limit protected health information to that which is minimally necessary to accomplish the intended purpose of the use, disclosure or request;

[(3)] (4) when the disclosure of such information is to the primary caregiver of the client and the disclosure is only of information necessary for the continuity of the client's treatment in the judgment of the treating physician or certified psychologist who discloses the information; or

[(4)] (5) when such disclosure is to an insurer contractually obligated to pay part or all of the expenses relating to the treatment of the client at the residential facility. The information disclosed shall be limited to data identifying the client, 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 client, apart from information disclosed pursuant to this section, has not been disclosed to the insurer.

C. No authorization given for the transmission or disclosure of confidential information shall be effective unless it:

(1) is in writing and signed; and

(2) contains a statement of the client'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.

D. The client has a right of access to confidential information and has the right to make copies of any information and to submit clarifying or correcting statements and other documentation of reasonable length for inclusion with the confidential information. The 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 they contain confidential information. Nothing in this subsection shall prohibit the denial of access to such records when a physician or other mental health or developmental disabilities professional believes and notes in the client's medical records that such disclosure would not be in the best interests of the client. In any such case, the client has the right to petition the court for an order granting such access.

E. Where there exists evidence that the client whose consent to disclosure of confidential information is sought is incapable of giving or withholding valid consent and the client does not have a guardian or treatment guardian appointed by a court, the person seeking such authorization shall petition the court for the appointment of a treatment guardian to make a substitute decision for the client, except that if the client is less than fourteen years of age, the client's parent or guardian is authorized to consent to disclosure on behalf of the client.

F. Information concerning a client 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.

G. Nothing in the code shall limit the confidentiality rights afforded by federal statute or regulation.

H. A person appointed as a treatment guardian in accordance with the Mental Health and Developmental Disabilities Code may act as the client's personal representative pursuant to the federal Health Insurance Portability and Accountability Act of 1996, Sections 1171-1179 of the Social Security Act, 42 U.S.C. Section 1320d, as amended, and applicable federal regulations to obtain access to the client's protected health information, including mental health information and relevant physical health information, and may communicate with the client's health care providers in furtherance of such treatment."

SECTION 18. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] COMPILATION OF DATA FOR COURT-ORDERED MENTAL HEALTH TREATMENT AND APPOINTMENT OF TREATMENT GUARDIAN.--

A. The clerk of each court with jurisdiction to order assisted outpatient treatment pursuant to the Assisted Outpatient Treatment Act or involuntary commitment pursuant to the Mental Health and Developmental Disabilities Code shall provide a monthly report to the administrative office of the courts with the following information for the previous month:

(1) the number of petitions for assisted outpatient treatment filed with the court;

(2) the number of petitions for involuntary commitment of an adult pursuant to Section 43-1-11 NMSA 1978 filed with the court;

(3) the number of petitions for extended commitment of adults pursuant to Section 43-1-12 NMSA 1978 filed with the court;

(4) the number of petitions for involuntary commitment of developmentally disabled adults to residential care pursuant to Section 43-1-13 NMSA 1978 filed with the court;

(5) the number of petitions for appointment of a treatment guardian pursuant to Section 43-1-15 NMSA 1978 filed with the court; and

(6) the disposition of each case included in the monthly report, including the number of orders for inpatient mental health services and the number of orders for outpatient mental health services.

B. Beginning September 1, 2015, the administrative office of the courts shall quarterly provide the information reported to it pursuant to Subsection A of this section to the:

(1) department; and

(2) interagency behavioral health purchasing collaborative.

C. The provisions of Subsections A and B of this section do not require the production of protected health information, information deemed confidential under Subsection A of Section 14 of the Assisted Outpatient Treatment Act or information protected from disclosure under Section 43-1-19 NMSA 1978."

SECTION 19. APPROPRIATIONS.--

A. Two hundred seventy-five thousand dollars ($275,000) is appropriated from the general fund to the administrative office of the courts for expenditure in fiscal year 2016 to hire personnel and to conduct necessary training to compile and report data relating to court-ordered mental health treatment and proceedings to appoint treatment guardians as required by the Mental Health and Developmental Disabilities Code; and to contract for attorney services required by the Assisted Outpatient Treatment Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2016 shall revert to the general fund.

B. Two hundred thousand dollars ($200,000) is appropriated from the general fund to the behavioral health services division of the human services department for expenditure in fiscal years 2016 through 2018 to contract with a state university for a study to evaluate the implementation and effectiveness of assisted outpatient treatment in New Mexico for the period of July 1, 2015 through December 31, 2017. Any unexpended or unencumbered balance remaining at the end of fiscal year 2018 shall revert to the general fund.

SECTION 20. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.

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