HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/STATE/NEWMEX.ASC

Text File | 1993-01-14 | 17KB | 403 lines

/* NEW MEXICO's statutes address contagious disease control,
physician reporting, and employment tests. */



24-1-8.   Prevention of Communication of venereal disease.

If any attending physician knows or has good reason to suspect
that a person having a venereal disease may conduct himself so as
to expose other persons to infection, he shall notify the
district health officer of the name and address of the diseased
person and the facts of the case.



24-1-9.   Capacity to consent to examination and treatment for
venereal disease.

Any person, regardless of age, has the capacity to consent to an
examination and treatment by a licensed physician for any
venereal disease.



24-1-12.  Health certificates; filing.

A.   Any person who operates or is employed in a health facility
shall, upon becoming employed or engaged in such occupation,
present to the employer or, if self-employed, file at the place
of business a health certificate from a licensed physician
stating the person is free from communicable diseases in a
transmissible state dangerous to the public health as defined by
regulation of the health services division of the health and
environment department [department of health]. The certificate
shall be obtained not more than ninety days prior to the date of
employment.

B.   All certificates shall be kept on file and be subject to
inspection by the licensing authority.



24-1-15.  Reporting of contagious diseases.

A.   whenever any physician or other person knows that any person
is sick with any disease dangerous to the public health, he shall
promptly notify the district health officer or his authorized
agent.

B.   Any health authority receiving notice that any person is
infected with disease dangerous to the public health shall secure
his voluntary isolation or, if such person refuses to submit to
isolation, he shall file a complaint with any magistrate or
district court judge having jurisdiction over the infected
person. The complaint shall state the facts as related, under
oath, by the health authority or the facts according to his
information and belief. Any magistrate or district court judge
having jurisdiction may, upon proper complaint, issue a warrant
directed to an officer authorized to serve arrest warrants
requiring such officer, under the direction of the complaining
health authority, to isolate the person.



24-1-18.  Inspection searches.

A.   Upon sufficient showing that consent to an inspectorial
search has been refused or is otherwise unobtainable within a
reasonable period of time, an inspection officer may make
application for an inspection order. Such application shall be
made to a district court judge having jurisdiction over the
premises or vehicle to be searched or an administrative official
authorized by statute or ordinance to issue inspection orders.

B. The application shall be granted and the inspection order
issued upon a sufficient showing that inspection in the area in
which the premises or vehicles in question are located, or
inspection of the particular premises or vehicles, is in
accordance with reasonable legislative or administrative
standards, and that the circumstances of the particular
inspection for which application is made are otherwise
reasonable. The issuing authority shall make and keep a record of
the proceedings on the application, and enter thereon his finding
in accordance with the requirements of this section.

C.   The inspection officer executing the order shall, if the
premises or vehicle in question are unoccupied at the time of
execution, be authorized to use such force as is reasonably
necessary to effect entry and make the inspection.

D.   The officer conducting the search shall, if authorized by
the issuing authority on proper showing, be accompanied by one or
more law enforcement officers authorized to serve search warrants
who shall assist the inspection officer in executing the order at
his direction.

E.   After execution of the order or after unsuccessful efforts
to execute the order, as the case may be, the inspection officer
shall return the order to the issuing authority with a sworn
report of the circumstances of execution or failure thereof.



24-1-19.  Emergency inspectorial searches.

A.   whenever it reasonably appears to an inspection officer that
there may be a condition, arising under the laws he is authorized
to enforce and imminently dangerous to health and safety, the
detection or correction of which requires immediate access,
without prior notice, to premises for purposes of inspectorial
search, and if consent to such search is refused or cannot be
promptly obtained, the inspection officer may make an emergency
inspectorial search of the premises without an inspection order.

B.   Upon completion of the emergency inspectorial search, the
inspection officer shall make prompt report of the circumstances
to the judicial or administrative authority to whom application
for an inspection order would otherwise have been made.



24-1-20.  Records confidential.

A.   The files and records of the department giving identifying
information about individuals who have received or are receiving
from the department treatment, diagnostic services or preventive
care for diseases, disabilities or physical injuries, are
confidential and are not open to inspection except where
permitted by rule of the department, as provided in Subsection C
of this section and to the secretary of health and environment
[secretary of health] or to an employee of the health and
environment department [department of health] authorized by the
secretary to obtain such information, but the -information shall
only -be revealed for use in connection with a governmental
function of the secretary or the authorized employee. Both the
secretary and the employees are subject to the penalty contained
in Subsection F of this section if they release or use the
information in violation of this section.

B.   All information voluntarily provided to the director or his
agent in connection with studies designated by him as medical
research and approved by the secretary of health and environment
[secretary of health], either conducted by or under the authority
of the director for the purpose of reducing the morbidity or
mortality from any cause or condition of health, is confidential
and shall be used only for the purposes of medical research. The
information shall not be admissible as evidence in any action of
any kind in any court or before any administrative proceeding or
other action.

C.   The human services department and the office of the state
long-term care ombudsman shall have prompt access to all files
and records in the possession of the licensing and certification
bureau of the department that are related to any health facility
investigation. Officers and employees of those agencies with such
access are subject to the penalty in Subsection F of this section
if they release or use the information in violation of this
section.

D.   The files and records of the department are subject to
subpoena for use in any pending cause in any administrative
proceeding or in any of the courts of the state, unless otherwise
provided by law.

E.   No person supplying information to the department for use in
a research project or any cooperating person in a research
project shall be subject to any action for damages or other
relief as a result of that activity.

F.   Any person who discloses confidential information in
violation of this section is guilty of a petty misdemeanor.



24-1-21.  Penalties.

Any person violating any of the provisions of the Public Health
Act or any order, rule or regulation adopted pursuant to the
provisions of the Public Health Act is guilty of a petty
misdemeanor and shall be punished by a fine not to exceed one
hundred dollars ($100) or imprisonment in the county jail for a
definite term not to exceed six months or both such fine and
imprisonment in the discretion of the court. Each day of a
continuing violation of Subsection A of Section 24-1-5 NMSA 1978
after conviction shall be considered a separate offense. The
department also may enforce its rules and orders by any
appropriate civil action. The attorney general shall represent
the department.



ARTICLE 2B

Human Immunodeficiency Virus Tests

24-2B-1. Short title.

This act [24-2B-1 to 24-2B-8 NMSA 1978] may be cited as the
"Human Immunodeficiency Virus Test Act".



24-2B-2. Informed consent.

No person shall perform a test designed to identify the human
immunodeficiency virus or its antigen or antibody without first
obtaining the informed consent of the person upon whom the test
is performed, except as provided in Section 6 [24-2B-6 NMSA 1978]
of the Human Immunodeficiency Virus Test Act. Informed consent
shall be preceded by an explanation of the test, including its
purpose, potential uses and limitations and the meaning of its
results. Consent need not be in writing provided there is
documentation in the medical record that the test has been
explained and the consent has been obtained.



24-2B-3. Substituted consent.

Informed consent shall be obtained from a legal guardian or other
person authorized by law when the person is not competent. A
minor shall have the capacity to give informed consent to have
the human immunodeficiency virus test performed on himself.



24-2B-4. Mandatory counseling.

No positive test result shall be revealed to the person upon whom
the test was performed without the person performing the test or
the health facility at which the test was performed providing or
referring that person for individual counseling about:

A.   the meaning of the test results;

B.   the possible need for additional testing;

C.   the availability of appropriate health care services,
including mental health care, social and support services; and

D.   the benefits of locating and counseling any individual by
whom the infected person may have been exposed to the human
immunodeficiency virus and any individual whom the infected
person may have exposed to the human immunodeficiency virus.



24-2B-5. Informed consent not required.

Informed consent for testing is not required and the provisions
of Section 1 [Section 21 [24-2B-2 NMSA 1978] of the Human
Immunodeficiency Virus Test Act do not apply for:

A.   a health care provider or health facility performing a test
on the donor or recipient when the health care provider or health
facility procures, processes, distributes or uses a human body
part, including tissue and blood or blood products, donated for a
purpose specified under the Uniform Anatomical Gift Act [Chapter
24, Article 6 NMSA 1978], or for transplant recipients or semen
provided for the purpose of artificial insemination and such test
is necessary to assure medical acceptability of a recipient or
such gift or semen for the purposes intended;

B.   the performance of a test in bona fide medical emergencies
when the subject of the test is unable to grant or withhold
consent, and the test results are necessary for medical
diagnostic purposes to provide appropriate emergency care or
treatment, except that post-test counseling or referral for
counseling shall nonetheless be required when the individual is
able to receive that post-test counseling. Necessary treatment
shall not be withheld pending test results;

C.   the performance of a test for the purpose of research if the
testing is performed in a manner by which the identity of the
test subject is not known and may not be retrieved by the
researcher;

D.   the performance of a test in order to provide appropriate
care or treatment to a health care worker who may have been
exposed to excessive amounts of blood or bodily fluids when the
subject of the test is unable to grant or withhold consent and
the test results are necessary for medical diagnostic purposes;
or

E.   the performance of a test done in a setting where the
identity of the test subject is not known, such as in public
health testing programs and sexually transmitted disease clinics.



24-2B-6. Confidentiality.

No person or the person's agents or employees who require or
administer the test shall disclose the identity of any person
upon whom a test is performed, or the result of such a test in a
manner which permits identification of the subject of the test,
except to the following persons:

A.   the subject of the test or the subject's legally authorized
representative, guardian or legal custodian;

B.   any person designated in a legally effective release of the
test results executed prior to or after the test by the subject
of the test or the subject's legally authorized representative;

C.   an authorized agent, a credentialed or privileged physician
or employee of a health facility or health care provider if the
health care facility or health care provider itself is authorized
to obtain the test results, the agent or employee provides
patient care or handles or processes specimens of body fluids or
tissues and the agent or employee has a need to know such
information;

D.   the health and environment department [department of health]
and the centers for disease control of the United States public
health service in accordance with reporting requirements for a
diagnosed case of acquired immune deficiency syndrome;

E.   a health facility or health care provider which procures,
processes, distributes or uses:

(1)  a human body part from a deceased person, with respect to
medical information regarding that person;

(2)  semen provided prior to the effective date of the Human
Immunodeficiency Virus Test Act for the purpose of artificial
insemination;

(3)  blood or blood products for transfusion or injection; or

(4)  human body parts for transplant with respect to medical
information regarding the donor or recipient;

F.   health facility staff committees or accreditation or
oversight review organizations which are conducting program
monitoring, program evaluation or service reviews so long as any
identity remains confidential;

G.   authorized medical or epidemiological researchers who may
not further disclose any identifying characteristics or
information; and

H.   for purposes of application or reapplication for insurance
coverage, an insurer or reinsurer upon whose request the test was
performed.



24-2B-7. Disclosure statement.

No person to whom the results of a test have been disclosed may
disclose the test results to another person except as authorized
by the Human Immunodeficiency Virus Test Act [24-2B-1 to 24-2B8
NMSA 1978]. whenever disclosure is made pursuant to that act, it
shall be accompanied by a statement in writing which includes the
following or substantially similar language: This information has
been disclosed to you from records whose confidentiality is
protected by state law. State law prohibits you from making any
further disclosure of such information without the specific
written consent of the person to whom such information pertains,
or as otherwise permitted by state law.



24-2B-8. Self-disclosure.

Nothing in the Human Immunodeficiency Virus Test Act [24-2B-1 to
24-2B-8 NMSA 1978] shall be construed to prevent a person who has
been tested from disclosing in any way to any other person his
own test results.



ARTICLE 10A

Human Immunodeficiency Virus Tests as Condition of Employment

28-10A-1. Human immunodeficiency virus related test; limitation.

A.   No person may require an individual to disclose the results
of a human immunodeficiency virus related test as a condition of
hiring, promotion or continued employment, unless the absence of
human immunodeficiency virus infection is a bona fide
occupational qualification of the job in question.

B.   A person who asserts that a bona fide occupational
qualification exists for disclosure of an individual's human
immunodeficiency virus related test results shall have the burden
of proving that:

(1)  the human immunodeficiency virus related test is necessary
to ascertain whether an individual is currently able to perform
in a reasonable manner the duties of the particular job or
whether an individual will present a significant risk of
transmitting human immunodeficiency virus to other persons in the
course of normal work activities; and

(2)  there exists no reasonable accommodation short of requiring
the test.