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AN ACT
RELATING TO DISABILITIES; MAKING TECHNICAL CHANGES TO
STATUTORY LANGUAGE TO REFLECT CURRENT USE OF TERMS ABOUT
PERSONS WITH DISABILITIES; CHANGING FUNDING LANGUAGE FOR THE
DISABILITY FUND; RECONCILING MULTIPLE AMENDMENTS TO THE SAME
SECTION OF LAW IN LAWS 1995.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 3-1-5 NMSA 1978 (being Laws 1985,
Chapter 208, Section 2, as amended) is amended to read:
"3-1-5. PETITIONS--EXAMINATIONS OF SIGNATURES--
PURGING--JUDICIAL REVIEW.--
A. All petitions, filing of petitions,
verification of petitions and all other acts to be performed
by petitioners, public officers or employees, regarding only
those petitions that trigger a municipal special or regular
election as authorized in the Municipal Code or otherwise
authorized by law, shall comply with the terms of this
section, except as otherwise expressly provided by law.
B. Each page or group of pages of a petition shall
be accepted for filing by a municipal clerk, a county clerk,
a governing body or a board of county commissioners only if:
(1) the municipal clerk has approved the
form of petitions to be filed with the municipality prior to
circulation of the petition; or
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(2) the county clerk has approved the form
of petitions to be filed with the county prior to circulation
of the petition; and
(3) each page of the petition to be filed
contains the approval or facsimile approval of the municipal
or county clerk and the petition heading and penalty
statement are legible when submitted for filing.
C. The municipal or county clerk shall approve a
petition as to form if the proposed petition form contains:
(1) a heading that complies with a
particular form of heading required by law; or
(2) a heading that clearly conveys the
purpose for signing the petition if no particular form of
heading is required by law;
(3) a place for the person signing the
petition to write the date and the person's name (printed),
address and signature, unless other requirements are mandated
by law and then the petition shall comply with those
requirements; and
(4) a statement that any person knowingly
providing or causing to be provided any false information on
a petition, forging a signature or signing a petition when
that person knows that person is not a qualified elector in
the municipality is guilty of a fourth degree felony.
D. The requirements of Subsection B of this
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section shall be deemed complied with if an original form of
petition is submitted to a municipal or county clerk for
approval prior to circulation and after approval by the clerk
that original form is reproduced by photocopying or other
similar means so that the form and clerk's approval are
unchanged from the original and are legible on each page of
the petition to be filed.
E. A petition filed with a municipal clerk, a
county clerk, a governing body or a board of county
commissioners shall include all individual pages of a
petition complying with the provisions of this section,
regardless of whether the pages are filed singly or in a
group. Pages complying with the provisions of this section
may be filed at different times so long as filing is within
the time period allowed by law for the filing of the
particular petition to be filed. If no time period is
established by law, petition signatures may not span a period
of time greater than sixty days from the date of the earliest
signature on the petition, and the petition shall be filed
within sixty-five days from the date of the earliest
signature on the petition.
F. Upon approval of a proposed petition as to
form, the municipal clerk shall notify the county clerk of
the approval, and the county clerk shall furnish a current
voter registration list of qualified electors entitled to
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vote in municipal elections to the municipal clerk within
fourteen days of the notification.
G. When a petition is filed with a municipal
clerk, a county clerk, a governing body or a board of county
commissioners, the governing body or board of county
commissioners shall either certify the petition as valid or
order an examination of the petition and the names, addresses
and signatures on the petition.
H. When an examination of the petition and the
names, addresses and signatures on the petition is ordered,
the municipal clerk, county clerk, governing body or board of
county commissioners shall:
(1) resolve issues of residency and major
infractions in accordance with the rules set forth in the
Municipal Election Code;
(2) determine the minimum number of valid
names, addresses and signatures, as mandated by law, that
must be contained in the particular petition filed in order
for it to be declared a valid petition;
(3) examine the petition and the names,
addresses and signatures on the petition, purge from the
petition the signature of any person who is not shown as a
qualified elector of the municipality on the list of
registered voters provided by the county clerk, purge any
signature that is a forgery or that is illegible, purge any
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signature that appears more than once or that cannot be
matched to the name, address and signature as shown on the
voter registration lists and the original affidavit of
registration, purge the signature of any person who has not
signed within the time limits set by law and purge the
signature of any person who does not meet the qualifications
for signing the petition as prescribed by law; and
(4) certify, no later than ten days after
the petition is filed or after the expiration of the period
within which the petition can be filed as prescribed by law,
whichever occurs last, whether the petition contains the
minimum number of valid names, addresses and signatures as
mandated by law.
I. Nothing in this section shall preclude a person
with a disability or an illiterate person from causing
another person to sign a petition on a person with a
disability's or an illiterate person's behalf, so long as the
person signing for the person with a disability or illiterate
person executes an affidavit acknowledged before a notary
public that the person is authorized to sign the petition for
the person with a disability or illiterate person. In order
for the signature on behalf of the person with a disability
or illiterate person to be counted and not purged, the
original affidavit shall be submitted along with the petition
containing the signature on behalf of the illiterate person
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or person with a disability.
J. If the petition is certified as valid pursuant
to Subsection G of this section or is certified as containing
in excess of the minimum number of valid names, addresses and
signatures mandated by law, then such certification shall be
recorded as part of the minutes at the next meeting of the
governing body or the board of county commissioners.
K. If the petition is certified as containing less
than the minimum number of valid names, addresses and
signatures mandated by law, then the municipal clerk, county
clerk, governing body or board of county commissioners shall:
(1) cause the names, addresses and
signatures that were purged from the petition to be posted in
the municipal or county clerk's office no later than on the
day the petition is certified;
(2) determine the total number of people
signing the petition, the number purged, the number that were
not purged and the minimum number of valid names, addresses
and signatures required by law for such a petition and post
this information along with and at the same time as the
posting required in Paragraph (1) of this subsection;
(3) publish once, pursuant to the provisions
of Subsection J of Section 3-1-2 NMSA 1978, within one week
of the certification, the information compiled pursuant to
Paragraphs (1) and (2) of this subsection; and
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(4) cause the information compiled pursuant
to Paragraphs (1) and (2) of this subsection and the date and
place of publication pursuant to Paragraph (3) of this
subsection to be recorded as part of the minutes at the next
meeting of the governing body or the board of county
commissioners after publication has occurred.
L. The following rules shall govern reinstatement
of purged signatures:
(1) within ten days after the petition is
certified as containing less than the minimum number of valid
names, addresses and signatures mandated by law, any person
whose signature has been purged from a petition may present
evidence to the clerk to show that the person's signature has
been wrongfully purged;
(2) if the clerk fails to reinstate that
person's signature within three days of demand, then that
person may, within ten days of the clerk's refusal to
reinstate, petition the district court for an order to
reinstate the person's signature on the petition. Upon a
prima facie showing by the petitioner of the right to have
that person's signature included upon the petition, the
district court shall issue an order to the municipal clerk,
county clerk, governing body or board of county commissioners
to require reinstatement of the signature of the petitioner;
(3) within ten days after receiving the
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order of the district court, the municipal clerk, county
clerk, governing body or board of county commissioners shall
reinstate the signature of the petitioner on the petition or
show cause why the signature of the petitioner has not been
reinstated. Upon hearing, if the district court finds that
the person whose signature has been purged meets the
qualifications for signing the petition, the district court
shall make final its order of reinstatement to the municipal
clerk, county clerk, governing body or board of county
commissioners; and
(4) if a sufficient number of signatures are
reinstated by the clerk, the district court or both to make
the petition valid, then the reinstatement by the clerk or
the district court, whichever occurs last, shall be deemed
the date of certification of the validity of the petition for
the purposes of adopting election resolutions, calling
elections or for other matters as provided in the Municipal
Code or otherwise provided by law.
M. Any petition that contains an insufficient
number of signatures after all signatures have been
reinstated pursuant to Subsection L of this section is
invalid.
N. When a petition governed by this section is
filed with the municipal clerk or the governing body of a
municipality, the governing body or municipal clerk shall
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perform or cause to be performed the duties required under
this section, except as otherwise prohibited by law. When a
petition governed by this section is required to be filed
with the county clerk or board of county commissioners, the
board of county commissioners or county clerk shall perform
or cause to be performed the duties required under this
section, except as otherwise prohibited by law.
O. Any person or any municipal or county official
knowingly violating the provisions of this section, knowingly
providing or causing to be provided any false information on
a petition or forging a signature or otherwise signing a
petition when that person knows the person is not a qualified
elector in the municipality is guilty of a fourth degree
felony.
P. The provisions of this section shall not be
binding upon a municipality to the extent such provisions are
inconsistent with or superseded by the terms and provisions
of:
(1) the charter of a municipality
incorporated by a special act;
(2) the charter of a municipality adopted
pursuant to Article 10, Section 6 of the constitution of New
Mexico;
(3) the charter of a municipality adopted
pursuant to the Municipal Charter Act; or
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(4) the charter of a combined municipal
organization.
Q. Once a petition has been filed with a municipal
clerk, a county clerk, a governing body or a board of county
commissioners, no name on the petition may be withdrawn
except those names purged pursuant to Subsection H of this
section."
Section 2. Section 3-8-22 NMSA 1978 (being Laws 1985,
Chapter 208, Section 30, as amended) is amended to read:
"3-8-22. CONDUCT OF ELECTION--ELIGIBILITY FOR
ASSISTANCE--ORAL ASSISTANCE FOR LANGUAGE MINORITY VOTERS--AID
OR ASSISTANCE TO VOTER MARKING BALLOT--WHO MAY ASSIST
VOTER--TYPE OF ASSISTANCE.--
A. A voter may request assistance in voting only
if the voter is:
(1) visually impaired;
(2) a person with a physical disability;
(3) unable to read or write; or
(4) a member of a language minority who is
unable to read well enough to exercise the elective
franchise.
B. When a voter who is eligible for assistance
requires assistance in marking a paper ballot or recording a
vote on a voting machine, the voter shall announce this fact
in an audible tone before receiving the paper ballot or
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before entering the voting machine.
C. The voter's request for assistance shall be
noted next to the voter's name in the signature roster and
shall be initialed by the presiding judge.
D. After noting the voter's request for assistance
in the signature roster, the voter shall be allowed to
receive assistance in marking a paper ballot or recording a
vote on a voting machine.
E. A person who swears falsely in order to secure
assistance with voting is guilty of perjury.
F. If a voter who has requested assistance in
marking a ballot has a visual impairment or physical
disability, is unable to read or write or is a member of a
language minority who has requested assistance, the voter may
be accompanied into the voting machine by a person of the
voter's own choice; provided that the person shall not be the
voter's employer, an agent of that employer, an officer or
agent of the voter's union or a candidate whose name appears
on the ballot in the election. A member of the precinct
board may assist a voter, if requested to do so by that
voter.
G. A person who accompanies the voter into the
voting booth or voting machine may assist the voter in
marking and folding a paper ballot or recording a vote on the
voting machine. A member of the precinct board who assists a
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voter shall not disclose the name of any candidate or
questions for whom any voter voted.
H. Oral assistance shall be made available to
assist language minority voters who cannot read sufficiently
well to exercise the elective franchise. "Language minority"
means a person who is Native American or of Spanish heritage,
and "inability to read well enough to exercise the elective
franchise" means inability to read the languages in which the
ballot is printed or the inability to understand instructions
for operating the voting machine.
I. The position of election translator is created.
The election translator shall be an additional member of the
regular precinct board, unless oral assistance to language
minorities can otherwise be rendered by a member of the
regular precinct board. The election translator shall be
appointed by the municipal clerk in the same manner as other
precinct board members are appointed, except that the
municipal clerk in appointing Native American election
translators shall seek the advice of the pueblo or tribal
officials residing in that municipality. The election
translator shall take the oath required of precinct board
members and shall meet the same qualifications as other
precinct board members.
J. Each municipal clerk shall compile and maintain
a list of standby election translators to serve in those
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precincts on election day when the appointed election
translator is unavailable for such service."
Section 3. Section 3-21-1 NMSA 1978 (being Laws 1965,
Chapter 300, Section 14-20-1, as amended by Laws 1995,
Chapter 170, Section 4 and also by Laws 1995, Chapter 211,
Section 3) is amended to read:
"3-21-1. ZONING--AUTHORITY OF COUNTY OR MUNICIPALITY.--
A. For the purpose of promoting health, safety,
morals or the general welfare, a county or municipality is a
zoning authority and may regulate and restrict within its
jurisdiction the:
(1) height, number of stories and size of
buildings and other structures;
(2) percentage of a lot that may be
occupied;
(3) size of yards, courts and other open
space;
(4) density of population; and
(5) location and use of buildings,
structures and land for trade, industry, residence or other
purposes.
B. The county or municipal zoning authority may:
(1) divide the territory under its
jurisdiction into districts of such number, shape, area and
form as is necessary to carry out the purposes of Sections
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3-21-1 through 3-21-14 NMSA 1978; and
(2) regulate or restrict the erection,
construction, reconstruction, alteration, repair or use of
buildings, structures or land in each district. All such
regulations shall be uniform for each class or kind of
buildings within each district, but regulation in one
district may differ from regulation in another district.
C. All state-licensed or state-operated community
residences for persons with a mental or developmental
disability and serving ten or fewer persons may be considered
a residential use of property for purposes of zoning and may
be permitted use in all districts in which residential uses
are permitted generally, including particularly residential
zones for single-family dwellings.
D. A board of county commissioners of the county
in which the greatest amount of the territory of the
petitioning village, community, neighborhood or district lies
may declare by ordinance that a village, community,
neighborhood or district is a "traditional historic
community" upon petition by twenty-five percent or more of
the registered qualified electors of the territory within the
village, community, neighborhood or district requesting the
designation. The number of registered qualified electors
shall be based on county records as of the date of the last
general election.
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E. Any village, community, neighborhood or
district that is declared a traditional historic community
shall be excluded from the extraterritorial zone and
extraterritorial zoning authority of any municipality whose
extraterritorial zoning authority extends to include all or a
portion of the traditional historic community and shall be
subject to the zoning jurisdiction of the county in which the
greatest portion of the traditional historic community lies."
Section 4. Section 3-51-46 NMSA 1978 (being Laws 1973,
Chapter 22, Section 3, as amended) is amended to read:
"3-51-46. PASSENGER MOTOR VEHICLE OF A PERSON WITH A
DISABILITY--PARKING PRIVILEGE.--Passenger motor vehicles
owned by and carrying a person with a disability and
displaying special registration plates, or passenger motor
vehicles carrying persons with severe mobility impairment and
displaying parking placards, issued pursuant to Section 66-3-
16 NMSA 1978, shall be permitted to park for unlimited
periods of time in parking zones restricted as to length of
time parking is normally permitted and are exempt from
payment of any parking fee of the state or its political
subdivisions. The provisions of this section shall prevail
over any other law, rule or local ordinance but do not apply
to zones where stopping, standing or parking is prohibited,
zones reserved for special types of vehicles, zones where
parking is prohibited during certain hours of the day in
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order to facilitate traffic during those hours when parking
is prohibited and zones subject to similar regulation because
parking presents a traffic hazard."
Section 5. Section 3-60-26 NMSA 1978 (being Laws 1975,
Chapter 341, Section 26) is amended to read:
"3-60-26. POWERS OF MUNICIPALITY.--Every municipality
shall have all the powers necessary or convenient to carry
out and effectuate the purposes and provisions of the
Community Development Law, including but not necessarily
limited to the following powers:
A. to undertake and carry out community
development projects within its area of operation, including
clearance and redevelopment, rehabilitation, conservation and
development activities and programs; to make, enter into and
execute contracts and other agreements and instruments
necessary or convenient to the exercise of its powers under
the Community Development Law; and to disseminate slum
clearance, prevention of blight and community development
information;
B. to provide, arrange or contract for the
furnishing or repair by any public or private person or
agency for services, privileges, works, streets, roads,
public utilities, public buildings or other facilities for or
in connection with a community development project; to,
within its area of operation, install, acquire, construct,
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reconstruct, maintain and operate streets, utilities, parks,
playgrounds, public buildings, including but not limited to
parking facilities, transportation centers, public safety
buildings and other public improvements or facilities as may
be required by the municipality, the state or a political
subdivision of the state; and to agree to any conditions that
it may deem reasonable and appropriate that are attached to
federal financial assistance and imposed pursuant to federal
law, including conditions relating to the determination of
prevailing salaries or wages or compliance with federal and
state labor standards, compliance with federal property
acquisition policy and the provision of relocation assistance
in accordance with federal law, in the undertaking or
carrying out of a community development project; and to
include in any contract let in connection with the project
provisions to fulfill any of these conditions as it may deem
reasonable and appropriate; provided, however, that all
purchases of personal property shall be in accordance with
the Procurement Code;
C. within its area of operation, to inspect any
building or property in any community development area in
order to make surveys, appraisals, soundings or test borings
and to obtain an order for this purpose from a court of
competent jurisdiction in the event inspection is denied by
the property owner or occupant; to acquire by purchase,
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lease, option, gift, grant, bequest, devise, eminent domain
or otherwise any real property or personal property for its
administrative or project purposes, together with any
improvements thereon; to hold, improve, clear or prepare for
redevelopment any such property; to mortgage, pledge,
hypothecate or otherwise encumber or dispose of any real
property; to insure or provide for the insurance of any real
or personal property or operations of the municipality
against any risks or hazards, including the power to pay
premiums on any such insurance; and to enter into any
contracts necessary to effectuate the purposes of the
Community Development Law. However, no statutory provisions
with respect to the acquisition, clearance or disposition of
real property by public bodies shall restrict a municipality
or other public body exercising powers under the Community
Development Law in the exercise of its functions with respect
to a community development project unless the legislature
shall specifically so state;
D. to invest any community development project
funds held in reserve or sinking funds or other project funds
that are not required for immediate disbursement in property
or securities in which municipalities may legally invest
funds subject to their control; to redeem bonds as have been
issued pursuant to Section 3-60-30 NMSA 1978 at the
redemption price established in the bonds or to purchase the
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bonds at less than redemption price. All bonds so redeemed
or purchased shall be canceled;
E. to borrow money subject to those procedures and
limitations as may be provided in the constitution of New
Mexico or the Municipal Code and to apply for and accept
advances, loans, grants, contributions and any other form of
financial assistance from the federal government, the state,
the county or other public body or from any sources, public
or private, for the purposes of the Community Development
Law; and to give security as may be required and subject to
the provisions and limitations of general law except as may
otherwise be provided by the Community Development Law and to
enter into and carry out contracts in connection therewith.
A municipality may include in any contract for financial
assistance with the federal government for a community
development project conditions imposed pursuant to federal
law and that the municipality may deem reasonable or
appropriate and that are not inconsistent with the purposes
of the Community Development Law;
F. within its area of operation, to make all plans
necessary for the carrying out of the purposes of the
Community Development Law and to contract with any person,
public or private, in making and carrying out the plans and
to adopt or approve, modify and amend the plans. The plans
may include, without limitation:
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(1) a general plan for development of the
community as a whole;
(2) community development plans for specific
areas;
(3) plans for programs of voluntary or
assisted repair and rehabilitation of buildings and
improvements;
(4) plans for the enforcement of state and
local laws, codes and regulations relating to the use of land
and the use and occupancy of buildings and improvements and
to the compulsory repair, rehabilitation, demolition or
removal of buildings and improvements; and
(5) appraisals, title searches, surveys,
studies and other preliminary plans and work necessary to
prepare for the undertaking of community development
projects.
The municipality is authorized to develop, test and
report methods and techniques and carry out demonstrations
and other activities for the prevention and the elimination
of slums and urban blight and to pay for, accept and utilize
grants of funds from the federal government for such
purposes;
G. to prepare plans and provide reasonable
assistance for the relocation of families displaced from a
community development area to the extent essential for
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acquiring possession of and clearing the area or its parts to
permit the carrying out of the community development project;
H. to appropriate, under existing authority, the
funds and make expenditures necessary to carry out the
purposes of the Community Development Law and, under existing
authority, to levy taxes and assessments for such purposes;
to close, vacate, plan or replan streets, roads, sidewalks,
ways or other places; in accordance with applicable law or
ordinances, to plan or replan, zone or rezone any part of the
municipality or make exceptions from building regulations;
and to enter into agreements with a community development
agency vested with community development project powers under
Section 3-60-34 NMSA 1978, which agreements may extend over
any period, notwithstanding any provision or rule of law to
the contrary, respecting action to be taken by the
municipality pursuant to any of the powers granted by the
Community Development Law;
I. within its area of operation, to organize,
coordinate and direct the administration of the provisions of
the Community Development Law as they apply to the
municipality in order that the objective of remedying slum
and blighted areas and preventing the causes within the
municipality may be most effectively promoted and achieved;
and to establish any new office or offices of the
municipality or to reorganize existing offices as necessary;
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J. to acquire real property, in addition to power
elsewhere conferred in the Community Development Law, that is
appropriate for the preservation or restoration of historic
sites; the beautification of urban land; the conservation of
open spaces, natural resources and scenic areas; the
provision of recreational opportunities; or is to be used for
public purposes; and
K. to engage in any or all of the following
activities as part of a community development project:
(1) acquisition, construction,
reconstruction or installation of public works, facilities
and site or other improvements, including but not limited to
neighborhood facilities, senior citizen centers, historic
properties, utilities, streets, street lights, water and
sewer facilities, including connections for residential
users, foundations and platforms for air-rights sites,
pedestrian malls and walkways, parks, playgrounds and other
recreation facilities, flood and drainage facilities, parking
facilities, solid waste disposal facilities and fire
protection or health facilities that serve designated
community development areas;
(2) special projects directed to the removal
of material and architectural barriers that restrict the
mobility and accessibility of elderly persons and persons
with disabilities;
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(3) provision of public services in the
community development area that are not otherwise available
in the area, including but not limited to the provisions of
public services directed to the employment, economic
development, crime prevention, child care, health, drug
abuse, special education, welfare or recreation needs of the
people who reside in the community development area;
(4) payment of the nonfederal share of any
federal grant-in-aid program to the municipality that will be
a part of a community development project;
(5) payment of relocation costs and
assistance to individuals, families, businesses,
organizations and farm operations displaced as a direct
result of a community development project in accordance with
applicable law governing such payment; and
(6) payment of reasonable administrative
costs and carrying charges related to the planning and
execution of community development plans and projects.
Payments made by the municipality or community
development agency under the terms of a contract for
reconstruction or rehabilitation of private property shall be
made from a special fund created for that purpose and shall
not be paid directly to the property owner but shall instead
be paid to the contractor by the municipality or agency from
such fund upon proper authorization of the property owner and
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notification that the terms of the contract have been
fulfilled. However, all such rehabilitation contracts shall
be between the property owner and contractor after a sealed
bidding procedure and award of contract approved by the
municipality have taken place."
Section 6. Section 9-7-4.1 NMSA 1978 (being Laws 2004,
Chapter 51, Section 1) is amended to read:
"9-7-4.1. COMPREHENSIVE STRATEGIC PLAN FOR HEALTH.--
A. The department, in conjunction with the New
Mexico health policy commission and other state agencies,
pursuant to Section 9-7-11.1 NMSA 1978, shall develop a
comprehensive strategic plan for health that emphasizes
prevention, personal responsibility, access and quality.
B. The department shall publish the comprehensive
strategic plan for health by July 1, 2004 and July 1 of
subsequent even-numbered years. By July 1 of odd-numbered
years, the department shall review and update or amend the
plan in response to changes and developments.
C. The department shall include the legislature,
health care providers, consumer and patient advocates, health
care financing organizations, managed care organizations,
major insurers in the state, the human services department,
the children, youth and families department, the aging and
long-term services department, pharmaceutical manufacturers
and other stakeholders in its development of the
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comprehensive strategic plan for health so as to give
geographic representation to all areas of the state. The
department shall ensure that public participation and public
input are integrated into the planning process. The
department shall convene regional meetings on the proposed
plan to allow public review and comment, including oral and
written testimony, pursuant to the Open Meetings Act.
D. The department shall consult with the
governments of Indian nations, tribes and pueblos located
wholly or partially within New Mexico to include Indian
nations, tribes and pueblos in the development of the
comprehensive strategic plan for health.
E. The department shall report its findings,
recommendations and goals in its biennial comprehensive
strategic plan for health. The plan shall address the
following areas and others that the governor and the
legislature may from time to time request:
(1) a summary of the state's health care
system that includes the financial, administrative and
delivery structure in both the public and private sector;
(2) the diseases, injuries and risk factors
for physical, behavioral and oral health that are the
greatest cause of illness, injury or death in the state, with
special attention to and recognition of the disparities that
currently exist for different population groups;
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(3) key indicators of and barriers to health
care coverage and access, with specific emphasis on reducing
the number of uninsured New Mexicans;
(4) the role of the department, other state
agencies and the private sector in identifying strategies and
interventions to provide health care coverage, access and
quality;
(5) a continuum of care model that
emphasizes prevention, early intervention and health
promotion and that includes public health services, emergency
medical services, primary care, acute care, specialized care,
tertiary care and long-term care;
(6) health education, wellness, nutrition
and exercise initiatives that emphasize personal health
responsibility;
(7) workforce initiatives to identify,
recruit and retain health care professionals;
(8) health care facility infrastructure,
capacity, capitalization and financial viability in both the
public and private sector;
(9) licensing, credentialing, oversight and
tracking initiatives designed to improve health care quality
and outcome measurements;
(10) programs, services and activities
designed to address the needs of persons who have a
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disability, are elderly or have special needs;
(11) anticipated demands and challenges on
the health care system as the need for long-term care
services increases;
(12) data and information addressing key
health status and system indicators, statistics, benchmarks,
targets and goals for the state and comparing it nationally,
regionally and to other states of similar size and
demographics; provided that individually identifiable health
information and other proprietary information is protected as
required by state or federal law; and
(13) planning and response to public health
emergencies, including bioterrorism, pandemic flu, disease
outbreaks and other situations that will require a
coordinated response by the health care system."
Section 7. Section 9-8-13 NMSA 1978 (being Laws 1977,
Chapter 252, Section 15, as amended) is amended to read:
"9-8-13. AUTHORITY TO CONDUCT SOCIAL SERVICES.--
A. The social services division of the department
has authority to:
(1) establish, administer and supervise
child welfare activities and social services to children,
including but not limited to:
(a) children placed for adoption;
(b) homeless, dependent and neglected
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children;
(c) children in foster family homes or
institutions because of dependency or neglect; and
(d) children with a physical or mental
disability who may need such services;
(2) establish, administer and supervise
social services for adults;
(3) license foster homes; and
(4) prescribe such regulations as it deems
necessary to enforce and comply with this section and the
Child Placement Agency Licensing Act and inspect and require
reports from all private institutions, boarding homes,
shelter care homes, group homes, foster homes and other
facilities providing assistance, care or other direct
services to children or aged, blind, disabled or other
dependent persons.
B. Nothing contained in this section or in the
Human Services Department Act shall authorize the secretary:
(1) to establish or prescribe standards or
regulations for, or otherwise regulate programs for or
services to, children in group homes excepting only:
(a) the right to inspect and require
reports from group homes as may be reasonably necessary to
carry out any functions that may otherwise be specifically
granted the department by law; and
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(b) the right to require annual reports
from group homes stating the name, address and telephone
number of: 1) their principal offices; 2) their residential
facilities for the care of children; 3) the membership of
their boards of directors or other governing bodies if any;
and 4) the persons in charge of the group homes and of their
residential facilities; or
(2) to accept any delegation from or to
exercise, perform or participate in any functions or duties,
including any investigations or inspections, of the
department of health or of its secretary that relate to group
homes.
As used in this subsection, "group home" includes any
home the principal function of which is to care for a group
of children on a twenty-four-hour-a-day residential basis and
that receives no funds as such directly from or through the
department and that is a member of any state or national
association that requires it to observe standards comparable
to pertinent recognized state or national group home
standards for the care of children, such as the New Mexico
Christian child care association, the national association of
homes for children or the council on accreditation or that is
certified by any such organization as complying with such
standards."
Section 8. Section 21-2-6 NMSA 1978 (being Laws 1978,
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Chapter 54, Section 1, as amended) is amended to read:
"21-2-6. STATEWIDE PLANNING--PARTICIPATING AGENCIES AND
PERSONS.--
A. The state commission in carrying out its
planning activities for post-secondary education shall
consult with and invite the active participation of:
(1) representatives of post-secondary
educational institutions of the several types enumerated in
Paragraph (2) of Subsection A of Section 21-2-2 NMSA 1978;
(2) the public education commission;
(3) the public education department;
(4) representatives of public and private
elementary and secondary schools;
(5) the secretary of labor;
(6) the tourism department;
(7) the apprenticeship council;
(8) the economic development department;
(9) the state advisory council on vocational
education;
(10) the secretary of finance and
administration or the secretary's designee;
(11) persons familiar with the education
needs of persons with a disability and persons disadvantaged
by economic, racial or ethnic status;
(12) representatives of business, industry,
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organized labor and agriculture;
(13) the general public; and
(14) private in-state post-secondary
institutions.
B. Whenever the planning activities carried out
under the provisions of Section 21-2-5 NMSA 1978 are
concerned with the types of post-secondary education
enumerated in Subparagraphs (a) through (e) of Paragraph (1)
of Subsection A of Section 21-2-2 NMSA 1978, the state
commission shall directly involve the public education
commission and the public education department in all
planning activities."
Section 9. Section 21-6-2 NMSA 1978 (being Laws 1899,
Chapter 42, Section 3, as amended) is amended to read:
"21-6-2. PURPOSES--ADMISSION AGE--ADMISSION OF
NONRESIDENTS--TUITION--CHANGE OF NAME--EXPENDITURES FOR
GRADUATES IN COLLEGE--AUDIOLOGICAL CLINIC--SCHOLARSHIPS--
PRESIDENT'S POWERS.--
A. Except as otherwise provided in this section,
the New Mexico school for the deaf shall be devoted
exclusively to the care and instruction of persons of either
sex who are residents within the state and between the ages
of five years and the age of majority and who are deaf or
hard-of-hearing; provided that the board of regents, in its
discretion, may admit residents of this state who have
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attained the age of one year for daytime care and
instruction, but not for residential purposes, and may also
admit residents of this state who are over the age of
majority.
B. The board of regents may make expenditures for
undergraduate collegiate expenses of graduates of the New
Mexico school for the deaf. The board of regents may permit
the use of facilities of the school by public and private
agencies in the state in carrying on a conservation-of-hearing
program when the agencies participate in the cost of the
operation, upon such terms and conditions as the board of
regents may prescribe.
C. The board of regents may contract with the
veterans' administration and the vocational rehabilitation
division of the public education department to provide
instruction for adults with a disability in vocations or lip
reading taught at the school, but such adults may not be
housed at the school. The board of regents may lease for a
nominal sum for periods not to exceed three months to the
public schools, institutions and agencies of the state any
hearing test equipment owned by the school.
D. The board of regents, for the purpose of
creating a source of teachers of the deaf, may pay tuition
and other necessary expenses of graduates of New Mexico
colleges desiring to take training to teach the deaf in
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out-of-state training centers and intending to make the
teaching of the deaf in New Mexico their profession.
E. All instruction shall be free. Deaf or
hard-of-hearing children from other states or territories may
be received and educated in the school under such rules and
regulations as the board of regents may prescribe, but in no
event shall such children be admitted except upon the payment
or guaranty of at least one thousand dollars ($1,000) for the
school year, on the basis of nine months for a school year.
The president of the board of regents is authorized to make
and enter into on behalf of the school all necessary
agreements and contracts with the United States government
and the proper authorities of other states and territories
for the reception and education of such children, and the
president is further authorized to receive and receipt for
all money paid upon such account and to endorse and transfer
all checks, vouchers or other evidences of payment made or
received in behalf of the school."
Section 10. Section 21-21G-3 NMSA 1978 (being Laws
1988, Chapter 111, Section 3, as amended) is amended to read:
"21-21G-3. DEFINITIONS.--As used in the Graduate
Scholarship Act:
A. "academic year" means any consecutive period of
two semesters, three quarters or other comparable units
commencing with the fall term each year;
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B. "award recipient" means a student awarded a
graduate scholarship;
C. "department" means the higher education
department;
D. "eligible institution" means any
graduate-degree-granting state university accredited by the
north central association of colleges and secondary schools;
E. "graduate and professional field" means any
program of study intended to result in a master's or doctoral
degree, excluding the degree in medicine; and
F. "groups underrepresented in graduate education"
means women, minorities, persons with a visual impairment or
other physical disability and other groups who have
traditionally been underrepresented in the specific area of
graduate study or profession for which the scholarship is
awarded."
Section 11. Section 22-14-1 NMSA 1978 (being Laws 1967,
Chapter 16, Section 191) is amended to read:
"22-14-1. DEFINITIONS.--As used in Sections 22-14-2
through 22-14-16 NMSA 1978:
A. "vocational education" means vocational or
technical training or retraining conducted as part of a
program designed to enable an individual to engage in a
remunerative occupation. Vocational education may provide
but is not limited to guidance and counseling, vocational
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instruction, training for vocational education instructors,
transportation and training material and equipment;
B. "person with a disability" means a person with
a physical or mental disability that constitutes a
substantial handicap to employment but that is of such a
nature that vocational rehabilitation may be reasonably
expected to enable the person to engage in a remunerative
occupation;
C. "vocational rehabilitation" means services or
training necessary to enable a person with a disability to
engage in a remunerative occupation. Vocational
rehabilitation may provide but is not limited to medical or
vocational diagnosis, vocational guidance, counseling and
placement, rehabilitation training, physical restoration,
transportation, occupational licenses, customary occupational
tools or equipment, maintenance and training material and
equipment; and
D. "federal aid funds" means funds, gifts or
grants received by the state under any federal aid for
vocational education or vocational rehabilitation."
Section 12. Section 22-14-16 NMSA 1978 (being Laws
1967, Chapter 16, Section 204) is amended to read:
"22-14-16. ADMISSION TO STATE EDUCATIONAL
INSTITUTIONS--EXEMPTION FROM CERTAIN FEES.--Upon written
request of the department, all state educational institutions
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shall accept for admission, without any charge for any fees
except tuition charges, a person with a disability meeting
the standards of the institution."
Section 13. Section 24-1G-4 NMSA 1978 (being Laws 2005,
Chapter 55, Section 4) is amended to read:
"24-1G-4. TELEHEALTH COMMISSION CREATED--POWERS AND
DUTIES--MEMBERSHIP.--
A. The "New Mexico telehealth commission" is
created. The commission is administratively attached to the
department of health, which shall work in conjunction with
the New Mexico health policy commission, in accordance with
the Executive Reorganization Act.
B. The commission shall consist of no more than
twenty-five members with members, one-third of whom shall be
from rural areas, chosen from the following categories, all
of whom shall be appointed by and serve at the pleasure of
the governor:
(1) health care facilities;
(2) health care practitioners;
(3) health care workforce educators;
(4) telehealth technology experts;
(5) the telecommunications industry;
(6) the business community;
(7) health care insurance providers or other
health care payers;
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(8) Indian nations, tribes and pueblos;
(9) legislators;
(10) state agencies responsible for:
(a) telecommunications;
(b) public health;
(c) medicaid and social services;
(d) workforce development;
(e) children's health and social
services;
(f) services for the elderly and
persons with a disability;
(g) criminal justice;
(h) health policy and planning; and
(i) education; and
(11) other members as the governor may
appoint to ensure appropriate cultural and geographic
representation and the interests of the public.
C. The commission shall:
(1) identify how telehealth can be used to
increase access to care and implement state comprehensive
health plans;
(2) identify barriers to telehealth
utilization and expansion, including payment, infrastructure,
training and workforce availability;
(3) inventory the state's telehealth assets,
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map available telecommunications infrastructure and examine
the financial impact of failing to develop the state's
telehealth capacities;
(4) coordinate public and private sector
initiatives to enhance networking, portal development and
connectivity and to expand telehealth and telecommunications
capacity;
(5) establish such subcommittees as the
commission deems necessary to fulfill its purpose, powers and
duties or to address specific telehealth issues;
(6) identify specific actions to increase
collaborative efforts and public-private partnerships to
increase the use of telehealth for health care access
development, patient outcome improvement, patient and
workforce education and health care practitioner recruitment
and development;
(7) develop and disseminate specific
telehealth standards and guidelines to ensure quality of
care, positive health outcomes, appropriate use of technology
and protection of privacy and confidentiality;
(8) review and comment on initiatives,
projects or grant applications to ensure telehealth standards
and guidelines are met and maximum collaboration and
cooperation across the state is encouraged;
(9) meet at least once each quarter at the
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call of the chair or vice chair, who shall be designated by
the governor from among the membership; and
(10) report annually to the governor and the
legislature on the state of the telehealth system and the
adequacy and allocation of telehealth services throughout the
state, providing the governor and the legislature with
specific recommendations for improving telehealth and related
service systems.
D. A majority of the members of the commission
constitutes a quorum for the transaction of business."
Section 14. Section 24-2-1 NMSA 1978 (being Laws 1977,
Chapter 253, Section 40) is amended to read:
"24-2-1. AUTHORITY TO CONDUCT SERVICES FOR CHILDREN
WITH A DISABILITY.--The public health division of the
department of health has authority to establish, administer
and supervise activities to children who have a physical
disability or whose condition may become a disability. The
public health division also may supervise the administration
of those services to children with a disability that are not
administered directly by it."
Section 15. Section 24-9A-1 NMSA 1978 (being Laws 1979,
Chapter 132, Section 1, as amended) is amended to read:
"24-9A-1. DEFINITIONS.--As used in the Maternal, Fetal
and Infant Experimentation Act:
A. "viability" means that stage of fetal
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development when the unborn child is potentially able to live
outside the mother's womb, albeit with artificial aid;
B. "conception" means the fertilization of the
ovum of a human female by the sperm of a human male;
C. "health" means physical or mental health;
D. "clinical research" means any biomedical or
behavioral research involving human subjects, including the
unborn, conducted according to a formal procedure. The term
is to be construed liberally to embrace research concerning
all physiological processes in human beings and includes
research involving human in vitro fertilization, but shall
not include diagnostic testing, treatment, therapy or related
procedures conducted by formal protocols deemed necessary for
the care of the particular patient upon whom such activity is
performed and shall not include human in vitro fertilization
performed to treat infertility; provided that this procedure
shall include provisions to ensure that each living
fertilized ovum, zygote or embryo is implanted in a human
female recipient, and no physician may stipulate that a woman
must abort in the event the pregnancy should produce a child
with a disability. Provided that emergency medical
procedures necessary to preserve the life or health of the
mother or the fetus shall not be considered to be clinical
research;
E. "subject at risk", "subject" or "at risk" means
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any person who may be exposed to the likelihood of injury,
including physical or psychological injury, as a consequence
of participation as a subject in:
(1) any research, development or related
activity that departs from the application of those
established and accepted methods deemed necessary to meet the
person's needs;
(2) controlled research studies necessary to
establish accepted methods designed to meet the person's
needs; or
(3) research activity that poses a
significant risk to the subject;
F. "significant risk" means an activity that is
likely to cause disfigurement or loss or impairment of the
function of any member or organ;
G. "fetus" means the product of conception from
the time of conception until the expulsion or extraction of
the fetus or the opening of the uterine cavity, but shall not
include the placenta, extraembryonic membranes, umbilical
cord, extraembryonic fluids and their resident cell types and
cultured cells;
H. "live-born infant" means an offspring of a
person that exhibits heartbeat, spontaneous respiratory
activity, spontaneous movement of voluntary muscles or
pulsation of the umbilical cord if still attached to the
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infant ex utero; provided the Maternal, Fetal and Infant
Experimentation Act does not apply to a fetus or infant
absent the characteristics set forth in this subsection;
I. "infant" means an offspring of a human being
from the time it is born until the end of its first
chronological year;
J. "born" means the time the head or any other
part of the body of the fetus emerges from the vagina or the
time the uterine cavity is opened during a caesarean section
or hysterotomy; and
K. "in vitro fertilization" means any
fertilization of human ova that occurs outside the body of a
female, either through admixture of donor human sperm and ova
or by any other means."
Section 16. Section 27-1-2 NMSA 1978 (being Laws 1937,
Chapter 18, Section 3) is amended to read:
"27-1-2. POWERS OF HUMAN SERVICES DEPARTMENT.--
A. The human services department is an agency of
the state and shall at all times be under the exclusive
control of this state. The management and control of the
human services department is vested in the secretary of human
services.
B. Subject to the constitution of New Mexico, the
human services department has the power to:
(1) sue and, with the consent of the
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legislature, be sued;
(2) adopt and use a corporate seal;
(3) have succession in its corporate name;
(4) make contracts as authorized in Chapter
27 NMSA 1978 to carry out the purposes of that chapter;
(5) adopt, amend and repeal bylaws, rules
and regulations;
(6) purchase, lease and hold real and
personal property necessary or convenient for the carrying
out of its powers and duties, to exercise the right of
eminent domain to acquire such real property in the same
manner as the state now exercises that right and to dispose
of any property acquired in any manner;
(7) have such powers as may be necessary or
appropriate for the exercise of the powers specifically
conferred upon it in Chapter 27 NMSA 1978;
(8) receive and have custody for protection
and administration, disburse, dispose of and account for
funds, commodities, equipment, supplies and any kind of
property given, granted, loaned or advanced to the state for
public assistance, public welfare, social security or any
other similar purpose;
(9) enter into reciprocal agreements with
public welfare agencies of other states relative to the
provision for relief or assistance to transients and
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nonresidents;
(10) establish and administer programs of
old age assistance and aid to dependent children and persons
with a visual impairment;
(11) establish and administer a program of
services for children with a disability or who have a
condition that may lead to a disability, and to supervise the
administration of those services that are not administered
directly by it;
(12) establish, extend and strengthen public
welfare services for children; and
(13) establish and administer a program for
general relief."
Section 17. Section 27-1-3 NMSA 1978 (being Laws 1937,
Chapter 18, Section 4, as amended) is amended to read:
"27-1-3. ACTIVITIES OF HUMAN SERVICES DEPARTMENT.--The
department shall be charged with the administration of all
the welfare activities of the state as provided in Chapter 27
NMSA 1978, except as otherwise provided for by law. The
department shall, except as otherwise provided by law:
A. administer old age assistance, aid to dependent
children, assistance to persons with a visual impairment or
other physical disability and general relief;
B. administer all aid or services to children with
a disability, including the extension and improvement of
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services for children with such a disability, insofar as
practicable under conditions in this state, provide for
locating children who have a disability or a condition that
may become a disability, provide corrective and any other
services and care and facilities for diagnosis,
hospitalization and after-care for such children and
supervise the administration of those services that are not
administered directly by the department;
C. administer and supervise all child welfare
activities, service to children placed for adoption, service
and care of homeless, dependent and neglected children,
service and care for children in foster family homes or in
institutions because of dependency or delinquency and care
and service to a child who because of a physical or mental
disability may need such service;
D. formulate detailed plans, make rules and
regulations and take action deemed necessary or desirable to
carry out the provisions of Chapter 27 NMSA 1978 and that is
not inconsistent with the provisions of that chapter;
E. cooperate with the federal government in
matters of mutual concern pertaining to public welfare and
public assistance, including the adoption of such methods of
administration as are found by the federal government to be
necessary for the efficient operation of the plan for public
welfare and assistance;
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F. assist other departments, agencies and
institutions of local, state and federal governments when so
requested, cooperate with such agencies when expedient in
performing services in conformity with the purposes of
Chapter 27 NMSA 1978 and cooperate with medical, health,
nursing and welfare groups, any state agency charged with the
administration of laws providing for vocational
rehabilitation of persons with a physical disability and
organizations within the state;
G. act as the agent of the federal government in
welfare matters of mutual concern in conformity with the
provisions of Chapter 27 NMSA 1978 and in the administration
of any federal funds granted to this state, to aid in
furtherance of any such functions of the state government;
H. establish in counties or in districts, which
may include two or more counties, local units of
administration to serve as agents of the department;
I. at its discretion, establish local boards of
public welfare for such territory as it may see fit and by
rule and regulation prescribe the duties of the local board;
J. administer such other public welfare functions
as may be assumed by the state after June 19, 1987;
K. carry on research and compile statistics
relative to the entire public welfare program throughout the
state, including all phases of dependency, defectiveness,
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delinquency and related problems, and develop plans in
cooperation with other public and private agencies for the
prevention as well as treatment of conditions giving rise to
public welfare problems; and
L. inspect and require reports from all private
institutions, boarding homes and agencies providing
assistance, care or other direct services to persons who are
elderly, who have a visual impairment, who have a physical or
developmental disability or who are otherwise dependent.
Nothing contained in this section shall be construed to
authorize the department to establish or prescribe standards
or regulations for or otherwise regulate programs or services
to children in group homes as defined in Section 9-8-13 NMSA
1978."
Section 18. Section 27-2B-5 NMSA 1978 (being Laws 1998,
Chapter 8, Section 5 and Laws 1998, Chapter 9, Section 5, as
amended) is amended to read:
"27-2B-5. WORK REQUIREMENTS--WORK PARTICIPATION
RATES.--
A. The following qualify as work activities:
(1) unsubsidized employment, including
self-employment;
(2) subsidized private sector employment,
including self-employment;
(3) subsidized public sector employment;
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(4) work experience, including work
associated with the refurbishing of publicly assisted housing
if sufficient private sector employment is not available;
(5) on-the-job training;
(6) job search and job readiness assistance,
as long as the department complies with the federal act;
(7) community service programs;
(8) vocational education, except that
vocational education shall not qualify as a work activity for
longer than is provided by the federal act;
(9) job skills training activities directly
related to employment;
(10) education directly related to
employment for a participant who has not received a high
school diploma or a certificate of high school equivalency;
(11) satisfactory attendance at a secondary
school or course of study leading to a certificate of general
equivalency in the case of a participant who has not
completed secondary school or received such a certificate;
and
(12) the provision of child care services to
a participant who is participating in a community service
program.
B. The department shall recognize community
service programs and job training programs that are operated
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by an Indian nation, tribe or pueblo.
C. The department may not require a participant to
work more than four hours per week over the work requirement
rate set pursuant to the federal act.
D. The department shall require a parent,
caretaker or other adult who is a member of a benefit group
to engage in a work activity once the department determines
the person is ready to engage in a work activity or once the
person has received cash assistance or services for
twenty-four months or as otherwise required by the federal
act, whether or not consecutive, whichever is earlier.
E. The following qualify as temporary alternative
work activities that the department may establish for no
longer than twelve weeks except as otherwise provided:
(1) participating in parenting classes,
money management classes or life skills training;
(2) participating in a certified alcohol or
drug addiction program;
(3) in the case of a homeless benefit group,
finding a home;
(4) in the case of a participant who is a
victim of domestic violence residing in a domestic violence
shelter or receiving counseling or treatment or participating
in criminal justice activities directed at prosecuting the
domestic violence perpetrator, for no longer than twenty-four
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weeks; and
(5) in the case of a participant who does
not speak English, participating in a course in English as a
second language.
F. Subject to the availability of funds, the
department in cooperation with the labor department, Indian
affairs department and other appropriate state agencies may
develop projects to provide for the placement of participants
in work activities, including the following:
(1) participating in unpaid internships with
private and government entities;
(2) refurbishing publicly assisted housing;
(3) volunteering at a head start program or
a school;
(4) weatherizing low-income housing; and
(5) restoring public sites and buildings,
including monuments, parks, fire stations, police buildings,
jails, libraries, museums, auditoriums, convention halls,
hospitals, buildings for administrative offices and city
halls.
G. If a participant is engaged in full-time
post-secondary education studies or an activity set out in
Paragraphs (9) through (11) of Subsection A of this section,
the participant shall engage in another work activity at the
same time. Additionally, for two-parent families that
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receive federally funded child-care assistance, the
participant's spouse shall engage in a work activity set out
in Paragraphs (1) through (5) and (7) of Subsection A of this
section unless the participant suffers from a temporary or
complete disability that bars the participant from engaging
in a work activity or the participant is barred from engaging
in a work activity because the participant provides sole care
for a person with a disability.
H. A participant engaged in post-secondary
education studies shall make reasonable efforts to obtain a
loan, scholarship, grant or other assistance to pay for costs
and tuition and the department shall disregard those amounts
in the eligibility determination.
I. For as long as the described conditions exist,
the following are exempt from the work requirement:
(1) a participant barred from engaging in a
work activity because the participant has a temporary or
permanent disability;
(2) a participant over age sixty;
(3) a participant barred from engaging in a
work activity because the participant provides the sole care
for a person with a disability;
(4) a single custodial parent caring for a
child less than twelve months old for a lifetime total of
twelve months;
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(5) a single custodial parent caring for a
child under six years of age if the parent is unable to
obtain child care for one or more of the following reasons:
(a) unavailability of appropriate child
care within a reasonable distance from the parent's home or
work as defined by the children, youth and families
department;
(b) unavailability or unsuitability of
informal child care by a relative under other arrangements as
defined by the children, youth and families department; or
(c) unavailability of appropriate and
affordable formal child-care arrangements as defined by the
children, youth and families department;
(6) a pregnant woman during her last
trimester of pregnancy;
(7) a participant prevented from working by
a temporary emergency or a situation that precludes work
participation for thirty days or less;
(8) a participant who demonstrates by
reliable medical, psychological or mental reports, court
orders or police reports that family violence or threat of
family violence effectively bars the participant from
employment; and
(9) a participant who demonstrates good
cause of the need for the exemption."
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Section 19. Section 27-2B-6 NMSA 1978 (being Laws 1998,
Chapter 8, Section 6 and Laws 1998, Chapter 9, Section 6, as
amended by Laws 2003, Chapter 311, Section 3 and Laws 2003,
Chapter 432, Section 3) is amended to read:
"27-2B-6. DURATIONAL LIMITS.--
A. Pursuant to the federal act, on or after
July 1, 1997 a participant may receive federally funded cash
assistance and services for up to sixty months.
B. During a participant's fourth, sixth and eighth
semiannual reviews, the department shall examine the
participant's progress to determine if the participant has
successfully completed an educational or training program or
increased the number of hours the participant is working as
required by the federal act. The department may refer the
participant to alternative work activities or provide
additional services to address possible barriers to
employment facing the participant.
C. Up to twenty percent of the population of
participants may be exempted from the sixty-month durational
limit set out in Subsection A of this section because of
hardship or because those participants are battered or
subject to extreme cruelty.
D. For the purposes of this section, a participant
has been battered or subjected to extreme cruelty if the
participant can demonstrate by reliable medical,
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psychological or mental reports, court orders or police
reports that the participant has been subjected to and
currently is affected by:
(1) physical acts that result in physical
injury;
(2) sexual abuse;
(3) being forced to engage in nonconsensual
sexual acts or activities;
(4) threats or attempts at physical or
sexual abuse;
(5) mental abuse; or
(6) neglect or deprivation of medical care
except when the deprivation is based by mutual consent on
religious grounds.
E. For the purposes of this section, a hardship
exception applies to a person who demonstrates through
reliable medical, psychological or mental reports, social
security administration records, court orders, police reports
or department records that the person is a person:
(1) who is barred from engaging in a work
activity because the person has a temporary or permanent
disability;
(2) who is the sole provider of home care to
a family member who is ill or has a disability;
(3) whose ability to be gainfully employed
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is affected by domestic violence;
(4) whose application for supplemental
security income is pending in the application or appeals
process and who:
(a) meets the criteria of Paragraph (1)
of this subsection; or
(b) was granted a waiver from the work
requirement pursuant to Paragraph (1) of Subsection I of
Section 27-2B-5 NMSA 1978 in the last twenty-four months; or
(5) who otherwise qualifies for a hardship
exception as defined by the department.
F. Pursuant to the federal act, the department
shall not count a month of receipt of cash assistance or
services toward the sixty-month durational limit if during
the time of receipt the participant:
(1) was a minor and was not the head of a
household or married to the head of a household; or
(2) lived in Indian country, as defined in
the federal act, if the most reliable data available with
respect to the month indicate that at least fifty percent of
the adults living in Indian country or in the village were
not employed."
Section 20. Section 27-4-2 NMSA 1978 (being Laws 1973,
Chapter 311, Section 2, as amended) is amended to read:
"27-4-2. DEFINITIONS.--As used in the Special Medical
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Needs Act:
A. "department" or "division" means the income
support division of the human services department;
B. "board" means the division;
C. "aged person" means a person who has attained
the age of sixty-five years and does not have a spouse
financially able, according to regulations of the division,
to furnish support;
D. " person with a disability" means a person who
has attained the age of eighteen years and is determined to
have a permanent and total disability, according to
regulations of the division; and
E. "blind person" means a person who is determined
to be blind according to regulations of the division."
Section 21. Section 27-4-3 NMSA 1978 (being Laws 1973,
Chapter 311, Section 3) is amended to read:
"27-4-3. PERSONS WITH SPECIAL NEEDS.--
A. The division shall by regulation establish a
program to provide essential medical care for persons who are
elderly or blind or who have a disability and who are not
eligible for public assistance under the Public Assistance
Act and who have a serious medical condition that will as a
reasonable medical probability lead to death in the near
future.
B. Such medical condition shall be certified by an
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individual licensed under state law to practice medicine or
osteopathy. The medical care shall be reviewed and approved
according to regulations of the division."
Section 22. Section 27-9-1 NMSA 1978 (being Laws 1983,
Chapter 323, Section 1) is amended to read:
"27-9-1. PROGRAM--DEMONSTRATIONS.--The human services
department, in cooperation with the department of health, is
authorized to administer demonstration programs that provide
in-home and coordinated community care services to the frail
elderly and to persons with a disability who would otherwise
require institutionalization. The programs authorized by
this section shall serve both those eligible and not eligible
for federal medical assistance programs."
Section 23. Section 27-13-7 NMSA 1978 (being Laws 2003,
Chapter 207, Section 1) is amended to read:
"27-13-7. FISCAL INTERMEDIARY--EXEMPTIONS--WORKERS'
COMPENSATION.--
A. A fiscal intermediary shall not be subject to
vicarious liability as an employer or principal for a
wrongful act committed by a personal care attendant if the
attendant:
(1) is not a current or former employee of
the fiscal intermediary;
(2) has not received training or instruction
from the fiscal intermediary with respect to providing
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personal care services to a person with a disability, not
including administrative paper work;
(3) has been hired by and received training
or instruction from the consumer or the consumer's authorized
representative to provide personal care to the consumer; and
(4) provides basic assistance with daily
living activities that do not require the education,
certification or training of a licensed health care
practitioner.
B. A fiscal intermediary may identify a personal
care attendant as a covered employee with the fiscal
intermediary's workers' compensation carrier solely to
provide workers' compensation coverage in the event of a
work-related injury. Nothing in this subsection shall be
construed to create an employer-employee relationship between
the fiscal intermediary and the personal care attendant.
C. Nothing in this section shall be construed to
provide the fiscal intermediary with immunity from a claim
for a wrongful act committed by the fiscal intermediary or
its employees.
D. As used in this section:
(1) "consumer" means a person who is
eligible for and receives state-funded or -operated services
based on the person's disabilities;
(2) "fiscal intermediary" means a provider
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that furnishes administrative assistance for a consumer who
selects a consumer-directed, rather than consumer-delegated,
personal care program;
(3) "personal care attendant" means a person
who provides assistance to a consumer with activities of
daily living, including bathing, dressing, eating,
transportation, shopping and similar activities; and
(4) "personal care program" means a
state-funded or -operated support program, including
medicaid, that provides the services of a personal care
attendant for certain persons with a disability."
Section 24. Section 28-7-2 NMSA 1978 (being Laws 1967,
Chapter 232, Section 2) is amended to read:
"28-7-2. POLICY.--It is the policy of this state to
encourage and enable persons who are blind, visually impaired
or who have another physical disability to participate fully
in the social and economic life of the state and to engage in
remunerative employment."
Section 25. Section 28-7-3 NMSA 1978 (being Laws 1967,
Chapter 232, Section 3, as amended) is amended to read:
"28-7-3. EQUAL RIGHT TO USE PUBLIC FACILITIES.--
A. Persons who are blind, visually impaired or who
have another physical disability have the same right as
others to the full and free use of the streets, highways,
sidewalks, walkways, public buildings, public facilities and
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other public places.
B. Persons who are blind, visually impaired or who
have another physical disability are entitled to full and
equal accommodations, advantages, facilities and privileges
of all common carriers, airplanes, motor vehicles, railroad
trains, motor buses, streetcars, boats or any other public
conveyances or modes of transportation, hotels, lodging
places, places of public accommodation, amusement or resort
and any other places to which the general public is invited,
subject only to the conditions and limitations established by
law and applicable alike to all persons.
C. Every totally or partially blind person shall
have the right to be accompanied by a guide dog, specially
trained for the purpose, in any of the places listed in this
section without being required to pay an extra charge for the
guide dog; provided that the person shall be liable for any
damage done to the property or facilities by the dog.
D. The attorney general, district attorney or any
person with a disability may file an action in the judicial
district when a building has been built or altered and the
work has not been accomplished in accordance with the current
uniform building code, other applicable publications and
established handicapped standards. The building official
shall notify those applying for a permit that they shall
comply with established standards. Any interested person may
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appeal the granting or denial of a waiver to the district
court where the building is located. If the court finds that
the building owner was required to comply with handicap
access standards of the uniform building code and has failed
to comply with such standards within a reasonable period of
time, then the party filing action shall recover the court
costs, attorney fees and appropriate injunctive relief to
remedy the violation."
Section 26. Section 28-7-5 NMSA 1978 (being Laws 1967,
Chapter 232, Section 5) is amended to read:
"28-7-5. INTERFERENCE WITH RIGHTS OF BLIND--PENALTY.--
A person, firm or corporation or the agent of a person, firm
or corporation who denies or interferes with admittance to or
enjoyment of the public facilities enumerated in Section
28-7-3 NMSA 1978 or otherwise interferes with the rights of a
blind or visually impaired person or a person who has a
physical disability enumerated in the White Cane Law is
guilty of a misdemeanor."
Section 27. Section 28-7-6 NMSA 1978 (being Laws 1967,
Chapter 232, Section 6) is amended to read:
"28-7-6. ANNUAL PROCLAMATION OF WHITE CANE SAFETY DAY
BY GOVERNOR.--Each year, the governor shall take suitable
public notice of October 15 as white cane safety day. The
governor shall issue a proclamation in which the governor:
A. comments upon the significance of the white
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cane;
B. calls upon the citizens of the state to observe
the provisions of the White Cane Law and to take precautions
necessary to the safety of persons with a disability;
C. reminds the citizens of the state of the
policies with respect to persons with a disability declared
in the White Cane Law and urges the citizens to cooperate in
giving effect to them; and
D. emphasizes the need of the citizens to be aware
of the presence of persons with a disability in the community
and to keep streets, highways, sidewalks, walkways, public
buildings, public facilities, other public places, places of
public accommodation, amusement and resort and other places
to which the public is invited safe and functional and to
offer assistance to persons with a disability upon
appropriate occasions."
Section 28. Section 28-7-7 NMSA 1978 (being Laws 1967,
Chapter 232, Section 7) is amended to read:
"28-7-7. POLICY OF STATE ON EMPLOYMENT OF PERSONS WITH
A DISABILITY.--It is the policy of this state that a person
who is blind, visually impaired or who has another physical
disability shall be employed in the state service, the
service of the political subdivisions of the state, the
public schools and all other employment supported in whole or
in part by public funds on the same terms and conditions as
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others, unless it is shown that the particular disability
prevents the performance of the work involved."
Section 29. Section 28-10-3.1 NMSA 1978 (being Laws
1995, Chapter 95, Section 1, as amended) is amended to read:
"28-10-3.1. FULL-SERVICE GASOLINE STATIONS--DECAL
DISPLAY--SERVICE TO PERSON WITH A DISABILITY.--
A. The governor's commission on disability shall
design and produce a decal for display in full-service
gasoline stations signifying that the gasoline station will
provide gasoline pumping, window washing, fluid checks and
other services provided at its full-service island to any
properly permitted or certified driver with a disability at a
self-service island.
B. Any full-service gasoline station providing the
services described in Subsection A of this section may
request and shall receive the decal upon application to the
governor's commission on disability.
C. No gasoline station shall display the decal
issued by the governor's commission on disability unless it
provides full service to any driver with a disability at a
self-service island.
D. A gasoline station owner or operator who
displays a decal signifying that the station will provide
additional services to drivers with a disability at a
self-service island and who fails to provide that service
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shall be subject to revocation of the decal for display
according to this section."
Section 30. Section 28-10-5 NMSA 1978 (being Laws 1973,
Chapter 349, Section 5, as amended) is amended to read:
"28-10-5. DISABILITY FUND CREATED.--
A. There is created in the state treasury a
"disability fund". All funds, gifts, donations, bequests and
other income of the governor's commission on disability shall
be deposited by the director of the commission in the fund
and shall be appropriated to the commission to further the
purpose of Sections 28-10-1 through 28-10-8.1 NMSA 1978 or
for the purposes stated by the donor or grantor of the funds.
B. Distributions made to the disability fund from
the housing modification for persons with a disability
permanent fund shall constitute a separate account in the
fund and are appropriated to the governor's commission on
disability for the purpose of carrying out a residential
accessibility modification program.
C. Money in the disability fund shall not revert
but shall be used only as provided in Sections 28-10-1
through 28-10-8.1 NMSA 1978."
Section 31. Section 28-10-5.1 NMSA 1978 (being Laws
2001, Chapter 226, Section 1) is amended to read:
"28-10-5.1. HOUSING MODIFICATION FOR PERSONS WITH A
DISABILITY PERMANENT FUND--INVESTMENT--DISTRIBUTION.--
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A. The "housing modification for persons with a
disability permanent fund" is created in the state treasury.
The fund shall consist of money appropriated to the fund and
any gifts, donations or bequests made to the fund. Money in
the fund shall be invested by the state investment officer as
land grant permanent funds are invested pursuant to Chapter
6, Article 8 NMSA 1978, and earnings from investment of the
fund shall be credited to the fund. Money in the fund shall
not revert at the end of any fiscal year and shall not be
expended for any purpose, except that an annual distribution
shall be made to the fund for persons with a disability in
accordance with Subsection B of this section.
B. On July 1 of fiscal year 2002 and on July 1 of
each fiscal year thereafter, an annual distribution shall be
made from the housing modification for persons with a
disability permanent fund to the disability fund in an amount
equal to three hundred thousand dollars ($300,000) until that
amount is less than an amount equal to five percent of the
average of the year-end market values of the housing
modification for persons with a disability permanent fund for
the immediately preceding five calendar years. Thereafter,
the amount of the annual distribution shall be five percent
of the average of the year-end market values of the housing
modification for persons with a disability permanent fund for
the immediately preceding five calendar years."
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Section 32. Section 28-10-9 NMSA 1978 (being Laws 1969,
Chapter 129, Section 1) is amended to read:
"28-10-9. SHORT TITLE.--Sections 28-10-9 through
28-10-12 NMSA 1978 may be cited as the "Disability Employment
Act"."
Section 33. Section 28-10-10 NMSA 1978 (being Laws
1969, Chapter 129, Section 2) is amended to read:
"28-10-10. DEFINITION.--As used in the Disability
Employment Act, "persons with a disability" includes persons
with a mental or physical disability."
Section 34. Section 28-10-11 NMSA 1978 (being Laws
1969, Chapter 129, Section 3) is amended to read:
"28-10-11. STATE POLICY.--In order to further the
efforts of New Mexico in alleviating the problems of persons
with a disability, full consideration shall be given to the
employment of such persons in state government in positions
in which they meet the necessary performance requirements or
in positions in which performance requirements can be
modified to take advantage of their abilities without
detriment to the state service."
Section 35. Section 28-10-12 NMSA 1978 (being Laws
1969, Chapter 129, Section 4) is amended to read:
"28-10-12. PERSONNEL BOARD--RULES.--The personnel board
shall establish rules and procedures consistent with the
state policy of employment of persons with a disability. The
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rules and procedures shall be adopted after consultation with
appropriate vocational rehabilitation agencies, state
institutions, interested private associations and
organizations and interested individuals. Any rules or
procedures adopted by the personnel board shall provide that:
A. certification in an appropriate form shall be
required from an appropriate agency to the effect that:
(1) the person with a disability has the
ability to perform the duties of the position sought;
(2) the person with a disability is
physically qualified to do the work without hazard to that
person or to others; and
(3) the person with a disability is socially
competent in a work environment and, either independently or
with continuing help as has been provided, in
after-working-hours living;
B. there are suitable periods of probation or
trial employment for persons with a disability before the
employment becomes permanent under the provisions of the
Personnel Act; and
C. the processes set forth in this section for
establishing the eligibility of persons with a disability are
construed to meet the requirements of competitive entrance
examinations under the provisions of the Personnel Act."
Section 36. Section 30-16-12 NMSA 1978 (being Laws
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1963, Chapter 303, Section 16-12) is amended to read:
"30-16-12. FALSELY REPRESENTING ONESELF AS
INCAPACITATED.--Falsely representing oneself as disabled
consists of a person falsely representing the person's own
self to be blind, visually impaired, deaf or having a
physical disability for the purpose of obtaining money or
other thing of value.
Whoever commits falsely representing oneself as disabled
is guilty of a petty misdemeanor."
Section 37. Section 31-18B-2 NMSA 1978 (being Laws
2003, Chapter 384, Section 2) is amended to read:
"31-18B-2. DEFINITIONS.--As used in the Hate Crimes
Act:
A. "age" means sixty years of age or older;
B. "gender identity" means a person's
self-perception, or perception of that person by another, of
the person's identity as a male or female based upon the
person's appearance, behavior or physical characteristics
that are in accord or opposed to the person's physical
anatomy, chromosomal sex or sex at birth;
C. "disability" means that the person has a
physical or mental disability that substantially limits one
or more of that person's functions, such as caring for
oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning and working;
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D. "motivated by hate" means the commission of a
crime with the intent to commit the crime because of the
actual or perceived race, religion, color, national origin,
ancestry, age, handicapped status, gender, sexual orientation
or gender identity of the victim, whether or not the
offender's belief or perception was correct; and
E. "sexual orientation" means heterosexuality,
homosexuality or bisexuality, whether actual or perceived."
Section 38. Section 31-18B-3 NMSA 1978 (being Laws
2003, Chapter 384, Section 3) is amended to read:
"31-18B-3. HATE CRIMES--NONCAPITAL FELONIES,
MISDEMEANORS OR PETTY MISDEMEANORS COMMITTED BECAUSE OF THE
VICTIM'S ACTUAL OR PERCEIVED RACE, RELIGION, COLOR, NATIONAL
ORIGIN, ANCESTRY, AGE, DISABILITY, GENDER, SEXUAL ORIENTATION
OR GENDER IDENTITY--ALTERATION OF BASIC SENTENCE.--
A. When a separate finding of fact by the court
or jury shows beyond a reasonable doubt that an offender
committed a noncapital felony motivated by hate, the basic
sentence of imprisonment prescribed for the offense in
Section 31-18-15 NMSA 1978 may be increased by one year. An
increase in the basic sentence of imprisonment pursuant to
the provisions of this subsection shall be in addition to an
increase in a basic sentence prescribed for the offense in
Section 31-18-17 NMSA 1978. A sentence imposed pursuant to
the provisions of this subsection may include an alternative
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sentence that requires community service, treatment,
education or any combination thereof. The court may suspend
or defer any or all of the sentence or grant a conditional
discharge, unless otherwise provided by law.
B. If a finding was entered in a previous case
that the offender was convicted for committing a crime that
was motivated by hate, and if a separate finding of fact by
the court or jury shows beyond a reasonable doubt that in the
instant case the offender committed a noncapital felony that
was motivated by hate, the basic sentence of imprisonment
prescribed for the offense in Section 31-18-15 NMSA 1978 may
be increased by two years. An increase in the basic sentence
of imprisonment pursuant to the provisions of this subsection
shall be in addition to an increase in a basic sentence
prescribed for the offense in Section 31-18-17 NMSA 1978. A
sentence imposed pursuant to the provisions of this
subsection may include an alternative sentence that requires
community service, treatment, education or any combination
thereof. The court may suspend or defer any or all of the
sentence, or grant a conditional discharge unless otherwise
provided by law.
C. If the case is tried before a jury and if a
prima facie case has been established showing that in the
commission of the offense the offender was motivated by hate,
the court shall submit the issue to the jury by special
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interrogatory. If the case is tried by the court and if a
prima facie case has been established showing that in the
commission of the offense the offender was motivated by hate,
the court shall decide the issue and shall make a separate
finding of fact regarding the issue. If the court or jury
determines that the offender is guilty of the crime and finds
beyond a reasonable doubt that the offender was motivated by
hate, the court shall include that determination in the
judgment and sentence.
D. When a petty misdemeanor or a misdemeanor is
motivated by hate, the basic sentence of imprisonment
prescribed for the offense in Section 31-19-1 NMSA 1978 may
include an alternative sentence that requires community
service, treatment, education or any combination thereof.
The court may suspend or defer any or all of the sentence or
grant a conditional discharge, unless otherwise provided by
law."
Section 39. Section 32A-5-44 NMSA 1978 (being Laws
1993, Chapter 77, Section 171) is amended to read:
"32A-5-44. ELIGIBILITY FOR SUBSIDIZED ADOPTIONS.--
A. The social services division of the human
services department may make payments to adoptive parents or
to medical vendors on behalf of a child placed for adoption
by the division or by an agency when the division determines
that:
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(1) the child is difficult to place; and
(2) the adoptive family is capable of
providing the permanent family relationship needed by the
child in all respects, except that the needs of the child are
beyond the economic resources and ability of the family.
B. As used in Sections 32A-5-43 through 32A-5-45
NMSA 1978, a "difficult to place child" means a child who has
a mental, physical or emotional disability or who is in
special circumstances by virtue of age, sibling relationship
or racial background."
Section 40. Section 32A-6-2 NMSA 1978 (being Laws
1995, Chapter 207, Section 2, as amended) is amended to read:
"32A-6-2. DEFINITIONS.--As used in the Children's
Mental Health and Developmental Disabilities Act:
A. "aversive stimuli" means anything that,
because it is believed to be unreasonably unpleasant,
uncomfortable or distasteful to the child, is administered or
done to the child 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. "clinician" means a physician, licensed
psychologist, licensed independent social worker or licensed
professional clinical counselor;
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C. "consistent with the least drastic means
principle" means that the habilitation or treatment and the
conditions of habilitation or treatment for the child,
separately and in combination:
(1) are no more harsh, hazardous or
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;
D. "convulsive treatment" means any form of
mental health treatment that depends upon creation of a
convulsion by any means, including electroconvulsive
treatment and insulin coma treatment;
E. "developmental disability" means a severe
chronic disability that:
(1) is attributable to a mental or physical
impairment or a combination of mental or physical
impairments;
(2) is manifested before a person reaches
twenty-two years of age;
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(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
generic treatments or other supports and services that are of
lifelong or extended duration and that are individually
planned or coordinated;
F. "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
the need for involuntary treatment;
G. "experimental treatment" means any mental
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health or developmental disabilities treatment that presents
significant risk of physical harm, but does not include
accepted treatment used in the competent practice of medicine
and psychology and supported by scientifically acceptable
studies;
H. "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;
I. "habilitation" means the process by which
professional persons and their staff assist a child with a
developmental disability in acquiring and maintaining those
skills and behaviors that enable the child to cope more
effectively with the demands of the child's own person and of
the child's environment and to raise the level of the child's
physical, mental and social efficiency. "Habilitation"
includes programs of formal, structured education and
treatment;
J. "likelihood of serious harm to oneself" means
that it is more likely than not that in the near future the
child will attempt to commit suicide or will cause serious
bodily harm to the child's self by violent or other
self-destructive means, including grave passive neglect;
K. "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, 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 child;
L. "mental disorder" means a substantial disorder
of the child's emotional processes, thought or cognition that
grossly impairs judgment, behavior or capacity to recognize
reality, but does not mean developmental disability;
M. "mental health or developmental disabilities
professional" means a physician or other professional who, by
training or experience, is qualified to work with persons who
have a mental disorder or a developmental disability;
N. "physician" or "licensed psychologist", when
used for the purpose of hospital admittance or discharge,
means a physician or licensed psychologist who has been
granted admitting privileges at a hospital licensed by the
department of health, if such privileges are required;
O. "psychosurgery" 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 following purposes:
(1) modification or control of thoughts,
feelings, actions or behavior rather than the treatment of a
known and diagnosed physical disease of the brain;
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(2) treatment of abnormal brain function or
normal brain tissue in order to control thoughts, feelings,
actions or behavior; or
(3) 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.
"Psychosurgery" does not include prefrontal sonic
treatment in which there is no destruction of brain tissue;
P. "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 individual 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
voluntarily; or
(4) the involuntary emergency administration
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of psychotropic medication; and
Q. "treatment" means any effort to accomplish a
significant change in the mental or emotional condition or
behavior of the child."
Section 41. Section 32A-16-4 NMSA 1978 (being Laws
1989, Chapter 290, Section 4, as amended) is amended to read:
"32A-16-4. POWERS AND DUTIES OF THE BOARD.--The child
development board shall:
A. recommend to the secretary of children, youth
and families the hiring of a director of child development;
B. consider and adopt licensure requirements,
policies and procedures for individuals working in licensed
or registered health facilities with children from birth to
age five; provided that such licensure requirements shall not
apply to individuals working in group homes pursuant to
Section 9-8-13 NMSA 1978;
C. consider and make recommendations to the
public education department regarding additional licensure
requirements for public school personnel working with public
school children up to age eight;
D. work with other state agencies to promote a
uniform and comprehensive method of licensing child care
personnel;
E. develop and adopt policies and procedures for
the office of child development;
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F. develop levels of licensure for nonpublic
school personnel depending upon the age of children served,
the training facility used and the program in which the
individual is employed;
G. work with the department of health to develop
levels of licensure for nonpublic school personnel serving
children who are developmentally delayed or at risk for
developmental delay, birth through two years;
H. develop and adopt program criteria for
state-funded preschool programs serving children from birth
to age five; provided that criteria shall not apply to
programs serving children who have a developmental delay or
are at risk for developing a delay, birth through two years,
and programs serving children who have a developmental delay,
three through five years; and
I. work with other state agencies to monitor the
implementation of state-funded preschool program criteria."
Section 42. 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
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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
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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 department of
health;
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, a medical
facility having 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 licensed physician or a
certified psychologist, any of which shall be capable of
performing a mental status examination adequate to determine
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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 a
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
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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 disability" 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 disability 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. "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
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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) "psychosurgery" does not include
prefrontal sonic treatment in which there is no destruction
of brain tissue;
S. "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
T. "treatment" means any effort to accomplish a
significant change in the mental or emotional condition or
behavior of the client."
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Section 43. Section 43-1-4 NMSA 1978 (being Laws 1977,
Chapter 279, Section 3, as amended) is amended to read:
"43-1-4. LEGAL REPRESENTATION OF CLIENTS.--
A. Clients shall be represented by counsel at all
proceedings under the code and shall be entitled to obtain
advice of counsel at any time regarding their status under
the code.
B. The court shall appoint counsel to represent a
client who has not retained counsel and is unable to do so.
When appointing counsel, the court shall give preference to
nonprofit organizations offering representation to persons
with a mental illness or a developmental disability. A
client shall be liable for the cost of legal representation
unless the client is indigent."
Section 44. 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.
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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 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) 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
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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
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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."
Section 45. Section 50-4-21 NMSA 1978 (being Laws
1955, Chapter 200, Section 2, as amended) is amended to read:
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"50-4-21. DEFINITIONS.--As used in the Minimum Wage
Act:
A. "employ" includes suffer or permit to work;
B. "employer" includes any individual,
partnership, association, corporation, business trust, legal
representative or any organized group of persons employing
one or more employees at any one time, acting directly or
indirectly in the interest of an employer in relation to any
employee, but shall not include the United States, the state
or any political subdivision thereof; and
C. "employee" includes any individual employed by
any employer, but shall not include:
(1) any individual employed in domestic
service in or about a private home;
(2) any individual employed in a bona fide
executive, administrative or professional capacity and
forepersons, superintendents and supervisors;
(3) any individual employed by the United
States or by the state or any political subdivision thereof;
(4) any individual engaged in the activities
of an educational, charitable, religious or nonprofit
organization where the employer-employee relationship does
not, in fact, exist or where the services rendered to such
organizations are on a voluntary basis. The employer-
employee relationship shall not be deemed to exist with
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respect to any individual being served for purposes of
rehabilitation by a charitable or nonprofit organization,
notwithstanding the payment to the individual of a stipend
based upon the value of the work performed by the individual;
(5) salespersons or employees compensated
upon piecework, flat rate schedules or commission basis;
(6) students regularly enrolled in primary
or secondary schools working after school hours or on
vacation;
(7) registered apprentices and learners
otherwise provided by law;
(8) persons eighteen years of age or under
who are not students in a primary, secondary, vocational or
training school;
(9) persons eighteen years of age or under
who are not graduates of a secondary school;
(10) persons employed by ambulance services;
(11) G.I. bill trainees while under
training;
(12) seasonal employees of any employer
obtaining and holding a valid certificate issued annually by
the director of the labor and industrial division of the
labor department. The certificate shall state the job
designations and total number of employees to be exempted.
In approving or disapproving an application for a certificate
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of exemption, the director shall consider the following:
(a) whether such employment shall be
at an educational, charitable or religious youth camp or
retreat;
(b) that such employment will be of a
temporary nature;
(c) that the individual will be
furnished room and board in connection with such employment,
or if the camp or retreat is a day camp or retreat, the
individual will be furnished board in connection with such
employment;
(d) the purposes for which the camp or
retreat is operated;
(e) the job classifications for the
positions to be exempted; and
(f) any other factors that the
director deems necessary to consider;
(13) any employee employed in agriculture:
(a) if such employee is employed by an
employer who did not, during any calendar quarter during the
preceding calendar year, use more than five hundred man-days
of agricultural labor;
(b) if such employee is the parent,
spouse, child or other member of the employer's immediate
family; for the purpose of this subsection, employer shall
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include the principal stockholder of a family corporation;
(c) if such employee: 1) is employed
as a hand-harvest laborer and is paid on a piece-rate basis
in an operation that has been, and is customarily and
generally recognized as having been, paid on a piece-rate
basis in the region of employment; 2) commutes daily from the
employee's permanent residence to the farm on which the
employee is so employed; and 3) has been employed in
agriculture less than thirteen weeks during the preceding
calendar year;
(d) if such employee, other than an
employee described in Subparagraph (c) of this paragraph:
1) is sixteen years of age or under and is employed as a
hand-harvest laborer, is paid on a piece-rate basis in an
operation that has been, and is generally recognized as
having been, paid on a piece-rate basis in the region of
employment; 2) is employed on the same farm as the employee's
parent or person standing in the place of the parent; and
3) is paid at the same piece-rate as employees over age
sixteen are paid on the same farm; or
(e) if such employee is principally
engaged in the range production of livestock; or
(14) employees of charitable, religious or
nonprofit organizations who reside on the premises of group
homes operated by such charitable, religious or nonprofit
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organizations for persons who have a mental, emotional or
developmental disability."
Section 46. Section 50-4-23 NMSA 1978 (being Laws
1967, Chapter 242, Section 1) is amended to read:
"50-4-23. PERSONS WITH A DISABILITY--MINIMUM WAGE--
DIRECTOR POWERS AND DUTIES.--
A. The director of the labor and industrial
division of the labor department, to the extent necessary in
order to prevent curtailment of opportunities for employment,
shall, by regulation, provide for the employment under
special certificates of individuals, including individuals
employed in agriculture, whose earning or productive capacity
is impaired by physical or mental disability or injury or any
other disability, at wages that are lower than the minimum
wage applicable under Section 50-4-22 NMSA 1978, but not less
than fifty percent of such wage.
B. The director, pursuant to regulations and upon
certification of any state agency administering or supervising
the administration of vocational rehabilitation services, may
issue special certificates that allow the holder thereof to
work at wages that are less than those required by Subsection
A of this section and that are related to the workers'
productivity, for the employment of:
(1) workers with a disability who are
engaged in work that is incidental to training or evaluation
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programs; and
(2) persons with multiple disabilities and
other persons whose earning capacity is so severely impaired
that they are unable to engage in competitive employment.
C. The director may, by regulation or order,
provide for the employment of persons with a disability in
work activities centers under special certificates at wages
that are less than the minimums applicable under Section
50-4-22 NMSA 1978, or less than that prescribed in Subsection
A of this section, and that constitute equitable compensation
for such persons. As used in this subsection, "work
activities centers" means centers planned and designed
exclusively to provide therapeutic activities for persons
with a disability whose physical or mental disability is so
severe as to make their productive capacity inconsequential.
D. The state agency administering or supervising
the administration of vocational rehabilitation may issue a
temporary certificate for a period not to exceed ninety days
pursuant to Subsections A, B and C of this section and may
request an extension of the certification by the director
when it is determined that the severity of disability of an
individual or circumstances warrants an extension of the
certification."
Section 47. Section 58-18-3.1 NMSA 1978 (being Laws
1982, Chapter 86, Section 3, as amended) is amended to read:
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"58-18-3.1. ADDITIONAL DEFINITIONS--MULTIPLE-FAMILY
DWELLINGS, TRANSITIONAL AND CONGREGATE HOUSING FACILITIES.--
As used in the Mortgage Finance Authority Act:
A. "multiple-family dwelling project" means
residential housing that is designed for occupancy by more
than four persons or families living independently of each
other or living in a congregate housing facility, at least
sixty percent of whom are persons and families of low or
moderate income, including without limitation persons of low
or moderate income who are elderly and who have a disability
as determined by the authority, provided that the percentage
of low-income persons and families shall be at least the
minimum required by federal tax law;
B. "transitional housing facility" means
residential housing that is designed for temporary or
transitional occupancy by persons or families of low or
moderate income or special needs;
C. "congregate housing facility" means
residential housing designed for occupancy by more than four
persons or families of low or moderate income living
independently of each other. The facility may contain group
dining, recreational, health care or other communal
facilities and each unit in a congregate housing facility
shall contain at least its own living, sleeping and bathing
facilities;
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D. "project mortgage loan" means a mortgage loan
made to a sponsor to finance project costs of a
multiple-family dwelling or transitional or congregate
housing facility; and
E. "sponsor" means an individual, association,
corporation, joint venture, partnership, limited partnership,
trust or any combination thereof that has been approved by
the authority as qualified to own and maintain a
multiple-family dwelling or transitional or congregate
housing facility in New Mexico, maintains its principal
office or a branch office in New Mexico and has agreed to
subject itself to the regulatory powers of the authority and
the jurisdiction of the courts of the state."
Section 48. Section 60-13-44 NMSA 1978 (being Laws
1967, Chapter 199, Section 52, as amended) is amended to
read:
"60-13-44. TRADE BUREAUS--STANDARDS--CONFLICTS.--
A. The electrical bureau shall recommend to the
commission minimum standards for the installation or use of
electrical wiring. The recommendations shall substantially
embody the applicable provisions of an electrical code for
safety to life and property promulgated by a nationally
recognized association and developed through an open,
balanced consensus process.
B. The mechanical bureau shall recommend to the
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commission minimum standards for the installation of all
fixtures, consumers' gas pipe, appliances and materials
installed in the course of a mechanical installation. The
recommendations shall be in substantial conformity with codes
and standards that are developed through an open, balanced
consensus process. Manufacturers may choose the independent
certification organization they wish to certify their
products if the certification organization is accredited by
the American national standards institute or other
accreditation organization selected by the commission.
C. The general construction bureau shall
recommend to the commission minimum standards for the
construction, alteration or repair of buildings, except for
those activities within the jurisdiction of the electrical
bureau or the mechanical bureau. The recommendations shall
substantially embody the applicable provisions of a
nationally recognized building code that is developed through
an open, balanced consensus process and shall give due regard
to physical, climatic and other conditions peculiar to New
Mexico. The standards shall include the authority to permit
or deny occupancy of existing and new buildings or structures
and authority to accept or deny the use of materials
manufactured within or without the state. The general
construction bureau may set minimum fees or charges for
conducting tests to verify claims or specifications of
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manufacturers.
D. The general construction bureau shall
recommend to the commission additional specifications for any
public building constructed in the state through expenditure
of state, county or municipal funds, bonds and other
revenues, which specifications shall embody standards making
the building accessible to persons who have a physical
disability, and the specifications shall conform
substantially with those contained in a nationally recognized
standard for making public facilities accessible to persons
with a physical disability that is developed through an open,
balanced consensus process. All orders and rules recommended
by the general construction bureau and adopted by the
commission under the provisions of this section shall be
printed and distributed to all licensed contractors,
architects and engineers and to the governor's commission on
disability. The orders and rules shall take effect on a date
fixed by the commission, which shall not be less than thirty
days after their adoption by the commission, and shall have
the force of law.
E. The general construction bureau shall have the
right of review of all specifications of public buildings and
the responsibility to ensure compliance with the adopted
standards.
F. All political subdivisions of the state are
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subject to the provisions of codes adopted and approved under
the Construction Industries Licensing Act. Such codes
constitute a minimum requirement for the codes of political
subdivisions.
G. The trade bureaus within their respective
jurisdictions shall recommend to the commission standards
that are developed through an open, balanced consensus
process for the installation or use of electrical wiring, the
installation of all fixtures, consumers' gas pipe, appliances
and materials installed in the course of mechanical
installation and the construction, alteration or repair of
all buildings intended for use by persons with a physical
disability or persons requiring special facilities to
accommodate the aged. The recommendations shall give due
regard to physical, climatic and other conditions peculiar to
New Mexico.
H. The trade bureaus within their respective
jurisdictions shall recommend to the commission standards for
the construction, alteration, repair, use or occupancy of
manufactured commercial units, modular homes and
premanufactured homes. The recommendations shall
substantially embody the applicable provisions or standards
for the safety to life, health, welfare and property approved
by the nationally recognized standards association and
developed through an open, balanced consensus process and
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shall give due regard to physical, climatic and other
conditions peculiar to New Mexico. Wherever existing state
codes or standards conflict with the codes and standards
adopted by the commission under the provisions of this
subsection, the provisions of the applicable New Mexico
building codes adopted pursuant to the Construction
Industries Licensing Act and the LPG and CNG Act in effect at
the applicable time shall exclusively apply and control,
except for codes and standards for mobile housing units.
I. Modular homes and premanufactured homes in
existence at the time of the effective date of the
Construction Industries Licensing Act shall have their use or
occupancy continued if such use or occupancy was legal on the
effective date of that act, provided such continued use or
occupancy is not dangerous to life. Any change in the use or
occupancy or any major alteration or repair of a modular home
or premanufactured home shall comply with all codes and
standards adopted under the Construction Industries Licensing
Act.
J. The commission shall review all
recommendations made under the provisions of this section and
shall by rule adopt standards and codes that substantially
comply with the requirements of this section that apply to
the recommendations of the trade bureaus."
Section 49. Section 66-7-352.2 NMSA 1978 (being Laws
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1983, Chapter 45, Section 2) is amended to read:
"66-7-352.2. LEGISLATIVE INTENT.--The policy and
intent of the legislature is declared to be as follows:
A. that the legislature finds there is a
significant safety hazard for persons with a physical
disability crossing through parking lots and that this hazard
is greatly reduced when parking is provided adjacent to a
building entrance;
B. that many commercial and governmental
establishments now provide reserved parking for persons with
a disability, ensuring full and equal opportunity for persons
with a disability to maintain independence and self-respect;
and
C. that ultimately society will benefit from the
increased interaction of persons with a disability with the
mainstream that these parking spaces will provide."