0001| AN ACT | 0002| RELATING TO HEALTH; REQUIRING A PERSON FORMALLY CHARGED FOR | 0003| ALLEGEDLY COMMITTING CERTAIN CRIMINAL OFFENSES TO UNDERGO TESTS | 0004| TO IDENTIFY SEXUALLY TRANSMITTED DISEASES AND THE HUMAN | 0005| IMMUNODEFICIENCY VIRUS; PRESCRIBING PENALTIES FOR UNAUTHORIZED | 0006| DISCLOSURE OF TEST RESULTS; AMENDING AND ENACTING SECTIONS OF THE | 0007| NMSA 1978. | 0008| | 0009| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0010| Section 1. A new Section 24-1-9.2 NMSA 1978 is enacted to read: | 0011| "24-1-9.2. SEXUALLY TRANSMITTED DISEASES--TESTING OF PERSONS | 0012| FORMALLY CHARGED FOR ALLEGEDLY COMMITTING CERTAIN CRIMINAL | 0013| OFFENSES.-- | 0014| A. A test designed to identify any sexually transmitted disease may be performed | 0015| on a person, upon the filing of a complaint, information or an indictment alleging that the person | 0016| committed a state criminal offense: | 0017| (1) involving contact between the penis and the vulva; | 0018| (2) involving contact between the penis and anus; | 0019| (3) involving contact between the mouth and penis; | 0020| (4) involving contact between the mouth and vulva; or | 0021| (5) involving contact between the mouth and anus. | 0022| B. If consent to perform a test on an alleged offender cannot be obtained, the | 0023| victim of the alleged criminal offense described in Subsection A of this section may petition the | 0024| court, through the prosecuting office or personally, to order that a test be performed on the | 0025| alleged offender; provided that the same test is first performed on the victim of the alleged | 0001| criminal offense. The test may be performed on the alleged offender regardless of the result of | 0002| the test performed on the victim of the alleged criminal offense. If the victim of the alleged | 0003| criminal offense is a minor or incompetent, the parent or legal guardian of the victim of the | 0004| alleged criminal offense may petition the court to order that a test be performed on the alleged | 0005| offender. | 0006| C. The court may issue an order based on a finding of good cause after a hearing | 0007| at which both the victim of the alleged criminal offense and the alleged offender have the right | 0008| to be present. During the hearing, only affidavits, counter affidavits and medical reports | 0009| regarding the facts that support or rebut the issuance of an order shall be admissible. The | 0010| hearing shall be conducted within seventy-two hours after the victim petitions the court for the | 0011| order. The petition and all proceedings in connection therewith shall be under seal. The court | 0012| shall issue an order and the test shall be administered to the alleged offender within ten days | 0013| after the petition is filed by the victim of the alleged criminal offense, his parent or guardian. | 0014| D. The results of the test shall be disclosed only to the alleged offender and to | 0015| the victim of the alleged criminal offense or the victim's parent or legal guardian. When the | 0016| victim of the alleged criminal offense or the alleged offender has a positive test result, both the | 0017| alleged offender and the victim of the alleged criminal offense shall be provided with | 0018| counseling. | 0019| E. A prosecuting attorney may not use in a criminal proceeding arising out of the | 0020| alleged criminal offense the fact that a test was administered to the alleged offender or the results | 0021| of the test. | 0022| F. The provisions of this section shall not affect the rights and remedies available | 0023| to the victim of the alleged criminal offense and the alleged offender in any civil action. | 0024| G. The administration of a test to an alleged offender pursuant to the provisions | 0025| of this section shall not preclude the subsequent administration of another test pursuant to the | 0001| provisions of Section 24-1-9.1 NMSA 1978." | 0002| Section 2. A new Section 24-1-9.3 NMSA 1978 is enacted to read: | 0003| "24-1-9.3. SEXUALLY TRANSMITTED DISEASES--MANDATORY | 0004| COUNSELING.--No positive test result for a sexually transmitted disease shall be revealed to | 0005| the person upon whom the test was performed without the person performing the test or the | 0006| health facility at which the test was performed providing or referring that person for individual | 0007| counseling about: | 0008| A. the meaning of the test results; | 0009| B. the possible need for additional testing; | 0010| C. the availability of appropriate health care services, including mental health | 0011| care, social and support services; and | 0012| D. the benefits of locating and counseling any individual by whom the infected | 0013| person may have been exposed to the sexually transmitted disease and any individual whom the | 0014| infected person may have exposed to the sexually transmitted disease." | 0015| Section 3. A new Section 24-1-9.4 NMSA 1978 is enacted to read: | 0016| "24-1-9.4. SEXUALLY TRANSMITTED DISEASES-- CONFIDENTIALITY.--Except | 0017| as provided in Section 24-1-9.2 NMSA 1978, no person or the person's agents or employees who | 0018| require or administer a test for sexually transmitted diseases shall disclose the identity of any | 0019| person upon whom a test is performed or the result of such a test in a manner that permits | 0020| identification of the subject of the test, except to the following persons: | 0021| A. the subject of the test or the subject's legally authorized representative, | 0022| guardian or legal custodian; | 0023| B. any person designated in a legally effective release of the test results executed | 0024| prior to or after the test by the subject of the test or the subject's legally authorized | 0025| representative; | 0001| C. an authorized agent, a credentialed or privileged physician or employee of a | 0002| health facility or health care provider if the health care facility or health care provider itself is | 0003| authorized to obtain the test results, the agent or employee provides patient care or handles or | 0004| processes specimens of body fluids or tissues and the agent or employee has a need to know such | 0005| information; | 0006| D. the department of health and the centers for disease control and prevention of | 0007| the United States public health service in accordance with reporting requirements for a | 0008| diagnosed case of a sexually transmitted disease; | 0009| E. a health facility or health care provider that procures, processes, distributes or | 0010| uses: | 0011| (1) a human body part from a deceased person, with respect to medical | 0012| information regarding that person; | 0013| (2) semen for the purpose of artificial insemination; | 0014| (3) blood or blood products for transfusion or injection; or | 0015| (4) human body parts for transplant with respect to medical information | 0016| regarding the donor or recipient; | 0017| F. health facility staff committees or accreditation or oversight review | 0018| organizations that are conducting program monitoring, program evaluation or service reviews, as | 0019| long as any identity remains confidential; | 0020| G. authorized medical or epidemiological researchers who may not further | 0021| disclose any identifying characteristics or information; and | 0022| H. for purposes of application or reapplication for insurance coverage, an insurer | 0023| or reinsurer upon whose request the test was performed." | 0024| Section 4. A new Section 24-1-9.5 NMSA 1978 is enacted to read: | 0025| "24-1-9.5. SEXUALLY TRANSMITTED DISEASES--DISCLOSURE STATEMENT.--No person to whom the results of a test for sexually transmitted diseases have been disclosed | 0001| may disclose the test results to another person, except as authorized in Sections 24-1-9.4 and 24-1-9.6 NMSA 1978. Whenever disclosure is made, it shall be accompanied by a statement in | 0002| writing that includes the following or substantially similar language: "This information has | 0003| been disclosed to you from records whose confidentiality is protected by state law. State law | 0004| prohibits you from making any further disclosure of such information without the specific | 0005| written consent of the person to whom such information pertains, or as otherwise permitted by | 0006| state law. A person who makes an unauthorized disclosure of this information is guilty of a | 0007| petty misdemeanor and shall be sentenced to imprisonment in the county jail for a definite term | 0008| not to exceed six months or the payment of a fine of not more than five hundred dollars ($500), | 0009| or both."" | 0010| Section 5. A new Section 24-1-9.6 NMSA 1978 is enacted to read: | 0011| "24-1-9.6. SEXUALLY TRANSMITTED DISEASES--DISCLOSURE.--A victim of an | 0012| alleged criminal offense who receives information pursuant to Section 24-1-9.2 NMSA 1978 | 0013| may disclose the test results as is reasonably necessary to protect his health and safety or the | 0014| health and safety of his family or sexual partner." | 0015| Section 6. A new Section 24-1-9.7 NMSA 1978 is enacted to read: | 0016| "24-1-9.7. PENALTY.--A person who makes an unauthorized disclosure of the results | 0017| of a test designed to identify a sexually transmitted disease is guilty of a petty misdemeanor and | 0018| shall be sentenced to imprisonment in the county jail for a definite term not to exceed six months | 0019| or the payment of a fine of not more than five hundred dollars ($500), or both." | 0020| Section 7. Section 24-2B-2 NMSA 1978 (being Laws 1989, Chapter 227, Section 2, as | 0021| amended) is amended to read: | 0022| "24-2B-2. INFORMED CONSENT.--No person shall perform a test designed to identify | 0023| the human immunodeficiency virus or its antigen or antibody without first obtaining the | 0024| informed consent of the person upon whom the test is performed, except as provided in Section | 0025| 24-2B-5, 24-2B-5.1 or 24-2B-5.2 NMSA 1978. Informed consent shall be preceded by an | 0001| explanation of the test, including its purpose, potential uses and limitations and the meaning of | 0002| its results. Consent need not be in writing provided there is documentation in the medical record | 0003| that the test has been explained and the consent has been obtained." | 0004| Section 8. A new section of the Human Immunodeficiency Virus Test Act, Section 24-2B-5.2 NMSA 1978, is enacted to read: | 0005| "24-2B-5.2. INFORMED CONSENT NOT REQUIRED--TESTING OF PERSONS | 0006| FORMALLY CHARGED FOR ALLEGEDLY COMMITTING CERTAIN CRIMINAL | 0007| OFFENSES--RESPONSIBILITY TO ADMINISTER AND PAY FOR TEST.-- | 0008| A. A test designed to identify the human immunodeficiency virus or its antigen | 0009| or antibody may be performed, without his consent, on a person upon the filing of a complaint, | 0010| information or an indictment alleging that the person committed a state criminal offense: | 0011| (1) involving contact between the penis and the vulva; | 0012| (2) involving contact between the penis and anus; | 0013| (3) involving contact between the mouth and penis; | 0014| (4) involving contact between the mouth and vulva; or | 0015| (5) involving contact between the mouth and anus. | 0016| B. If consent to perform a test on an alleged offender cannot be obtained | 0017| pursuant to the provisions of Section 24-2B-2 or 24-2B-3 NMSA 1978, the victim of the alleged | 0018| criminal offense described in Subsection A of this section may petition the court, through the | 0019| prosecuting office or personally, to order that a test be performed on the alleged offender; | 0020| provided that the same test is first performed on the victim of the alleged criminal offense. The | 0021| test may be performed on the alleged offender regardless of the result of the test performed on | 0022| the victim of the alleged offense. If the victim of the alleged criminal offense is a minor or | 0023| incompetent, the parent or legal guardian of the victim of the alleged criminal offense may | 0024| petition the court to order that a test be performed on the alleged offender. | 0025| C. The court may issue an order based on a finding of good cause after a hearing | 0001| at which both the victim of the alleged criminal offense and the alleged offender have the right | 0002| to be present. During the hearing, only affidavits, counter affidavits and medical reports | 0003| regarding the facts that support or rebut the issuance of an order shall be admissible. The | 0004| hearing shall be conducted within seventy-two hours after the victim of the alleged criminal | 0005| offense petitions the court for the order. The petition and all proceedings in connection | 0006| therewith shall be under seal. The court shall issue the order and the test shall be administered to | 0007| the alleged offender within ten days after the petition is filed by the victim of the alleged | 0008| offense, his parent or guardian. | 0009| D. The results of the test shall be disclosed only to the alleged offender and to | 0010| the victim of the alleged criminal offense or the victim's parent or legal guardian. When the | 0011| victim of the alleged criminal offense or the alleged offender has a positive test result, both the | 0012| alleged offender and the victim of the alleged criminal offense shall be provided with | 0013| counseling, as described in Section 24-2B-4 NMSA 1978. | 0014| E. The court's order shall direct the department of health to be responsible for | 0015| the administration of and payment for the test and the lawful distribution of the test results. | 0016| F. A prosecuting attorney may not use in a criminal proceeding arising out of the | 0017| alleged criminal offense the fact that a test was administered to the alleged offender, or the | 0018| results of the test. | 0019| G. The provisions of this section shall not affect the rights and remedies | 0020| available to the victim of the alleged criminal offense and alleged offender in any civil action. | 0021| H. The administration of a test to an alleged offender pursuant to the provisions | 0022| of this section shall not preclude the subsequent administration of another test pursuant to the | 0023| provisions of Section 24-2B-5.1 NMSA 1978." | 0024| Section 9. Section 24-2B-7 NMSA 1978 (being Laws 1989, Chapter 227, Section 7) is | 0025| amended to read: | 0001| "24-2B-7. DISCLOSURE STATEMENT.--No person to whom the results of a test have | 0002| been disclosed may disclose the test results to another person except as authorized by the Human | 0003| Immunodeficiency Virus Test Act. Whenever disclosure is made pursuant to that act, it shall be | 0004| accompanied by a statement in writing that includes the following or substantially similar | 0005| language: "This information has been disclosed to you from records whose confidentiality is | 0006| protected by state law. State law prohibits you from making any further disclosure of such | 0007| information without the specific written consent of the person to whom such information | 0008| pertains, or as otherwise permitted by state law. A person who makes an unauthorized | 0009| disclosure of this information is guilty of a petty misdemeanor and shall be sentenced to | 0010| imprisonment in the county jail for a definite term not to exceed six months or the payment of a | 0011| fine of not more than five hundred dollars ($500), or both."" | 0012| Section 10. Section 24-2B-8 NMSA 1978 (being Laws 1989, Chapter 227, Section 8) is | 0013| amended to read: | 0014| "24-2B-8. DISCLOSURE.--Nothing in the Human Immunodeficiency Virus Test Act | 0015| shall be construed to prevent a person who has been tested from disclosing in any way to any | 0016| other person his own test results. Any victim of an alleged criminal offense who receives | 0017| information pursuant to Section 24-2B-5.2 NMSA 1978 may disclose the test results as is | 0018| reasonably necessary to protect his health and safety or the health and safety of his family or | 0019| sexual partner." | 0020| Section 11. A new section of the Human Immunodeficiency Virus Test Act, Section 24-2B-9 NMSA 1978, is enacted to read: | 0021| "24-2B-9. PENALTY.--A person who makes an unauthorized disclosure of the results of | 0022| a test designed to identify the human immunodeficiency virus or its antigen or antibody is guilty | 0023| of a petty misdemeanor and shall be sentenced to imprisonment in the county jail for a definite | 0024| term not to exceed six months or the payment of a fine of not more than five hundred dollars | 0025| ($500), or both." | 0001| Section 12. EFFECTIVE DATE.--The effective date of the provisions of this act | 0002| is July 1, 1996. |