HOUSE BILL 364
48th legislature - STATE OF NEW MEXICO - second session, 2008
INTRODUCED BY
Rick Miera
AN ACT
RELATING TO CHILDREN'S MENTAL HEALTH; AMENDING AND ENACTING SECTIONS OF THE CHILDREN'S MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: Section 1. Section 32A-6A-4 NMSA 1978 (being Laws 2007, Chapter 162, Section 4) is amended to read:
"32A-6A-4. DEFINITIONS.--As used in the Children's Mental Health and Developmental Disabilities Act:
A. "aversive intervention" means any device or intervention, consequences or procedure intended to cause pain or unpleasant sensations, including interventions causing physical pain, tissue damage, physical illness or injury; electric shock; isolation; mechanical restraint; forced exercise; withholding of food, water or sleep; humiliation; water mist; noxious taste, smell or skin agents; and over- correction;
B. "behavioral health services" means a comprehensive array of professional and ancillary services for the treatment, habilitation, prevention and identification of mental illnesses, behavioral symptoms associated with developmental disabilities, substance abuse disorders and trauma spectrum disorders;
C. "capacity" means a child's ability to:
(1) understand and appreciate the nature and consequences of proposed health care, including its significant benefits, risks and alternatives to proposed health care; and
(2) make and communicate an informed health care decision;
D. "chemical restraint" means a medication that is not standard treatment for the patient's medical or psychiatric condition that is used to control behavior or to restrict a patient's freedom of movement;
E. "child" means a person who is a minor;
F. "clinician" means a person whose licensure allows the person to make independent clinical decisions, including a physician, licensed psychologist, psychiatric nurse practitioner, licensed independent social worker, licensed marriage and family therapist and licensed professional clinical counselor;
G. "continuum of services" means a comprehensive array of emergency, outpatient, intermediate and inpatient services and care, including screening, early identification, diagnostic evaluation, medical, psychiatric, psychological and social service care, habilitation, education, training, vocational rehabilitation and career counseling;
H. "developmental disability" means a severe chronic disability that:
(1) is attributable to a mental or physical impairment or a combination of mental or physical impairments;
(2) is manifested before a person reaches twenty-two years of age;
(3) is expected to continue indefinitely;
(4) results in substantial functional limitations in three or more of the following areas of major life activities:
(a) self-care;
(b) receptive and expressive language;
(c) learning;
(d) mobility;
(e) self-direction;
(f) capacity for independent living; or
(g) economic self-sufficiency; and
(5) reflects a person's need for a combination and sequence of special, interdisciplinary or other supports and services that are of lifelong or extended duration that are individually planned or coordinated;
I. "evaluation facility" means a community mental health or developmental disability program, a medical facility having psychiatric or developmental disability services available or, if none of the foregoing is reasonably available or appropriate, the office of a licensed physician or a licensed psychologist, any of which shall be capable of performing a mental status examination adequate to determine the need for appropriate treatment, including possible involuntary treatment;
J. "family" means persons with a kinship relationship to a child, including the relationship that exists between a child and a biological or adoptive parent, relative of the child, a step-parent, a godparent, a member of the child's tribe or clan or an adult with whom the child has a significant bond;
K. "habilitation" means services, including behavioral health services based on evaluation of the child, that are aimed at assisting the child to prevent, correct or ameliorate a developmental disability. The purpose of habilitation is to enable the child to attain, maintain or regain maximum functioning or independence. "Habilitation" includes programs of formal, structured education and treatment and rehabilitation services;
L. "individual instruction" means a child's direction concerning a mental health treatment decision for the child, made while the child has capacity and is fourteen years of age or older, which is to be implemented when the child has been determined to lack capacity;
M. "least restrictive means principle" means the conditions of habilitation or treatment for the child, separately and in combination that:
(1) are no more harsh, hazardous or intrusive than necessary to achieve acceptable treatment objectives for the child;
(2) involve no restrictions on physical movement and no requirement for residential care, except as reasonably necessary for the administration of treatment or for the protection of the child or others from physical injury; and
(3) are conducted at the suitable available facility closest to the child's place of residence;
N. "legal custodian" means a biological or adoptive parent of a child unless legal custody has been vested in a person, department or agency and also includes a person appointed by an unexpired power of attorney;
O. "licensed psychologist" means a person who holds a current license as a psychologist issued by the New Mexico state board of psychologist examiners;
P. "likelihood of serious harm to self" means that it is more likely than not that in the near future a child will attempt to commit suicide or will cause serious bodily harm to the child by violent or other self-destructive means, as evidenced by behavior causing, attempting or threatening such harm, which behavior gives rise to a reasonable fear of such harm from the child;
Q. "likelihood of serious harm to others" means that it is more likely than not that in the near future the child will inflict serious bodily harm on another person or commit a criminal sexual offense, as evidenced by behavior causing, attempting or threatening such harm, which behavior gives rise to a reasonable fear of such harm from the child;
R. "mechanical restraint" means any device or material attached or adjacent to the child's body that restricts freedom of movement or normal access to any portion of the child's body and that the child cannot easily remove but does not include [a protective or stabilizing device] mechanical supports or protective devices;
S. "mechanical support" means a device used to achieve proper body position, designed by a physical therapist and approved by a physician or designed by an occupational therapist, such as braces, standers or gait belts, but not including protective devices;
[S.] T. "medically necessary services" means clinical and rehabilitative physical, mental or behavioral health services that are:
(1) essential to prevent, diagnose or treat medical conditions or are essential to enable the child to attain, maintain or regain functional capacity;
(2) delivered in the amount, duration, scope and setting that is clinically appropriate to the specific physical, mental and behavioral health care needs of the child;
(3) provided within professionally accepted standards of practice and national guidelines; and
(4) required to meet the physical, mental and behavioral health needs of the child and are not primarily for the convenience of the child, provider or payer;
[T.] U. "mental disorder" means a substantial disorder of the child's emotional processes, thought or cognition, not including a developmental disability, that impairs the child's:
(1) functional ability to act in developmentally and age-appropriate ways in any life domain;
(2) judgment;
(3) behavior; and
(4) capacity to recognize reality;
[U.] V. "mental health or developmental disabilities professional" means a person who by training or experience is qualified to work with persons with mental disorders or developmental disabilities;
[V.] W. "out-of-home treatment or habilitation program" means an out-of-home residential program that provides twenty-four-hour care and supervision to children with the primary purpose of providing treatment or habilitation to children. "Out-of-home treatment or habilitation program" includes, but is not limited to, treatment foster care, group homes, [and] psychiatric hospitals, psychiatric residential treatment facilities and non-medical and community-based residential treatment centers;
[W.] X. "parent" means a biological or adoptive parent of a child whose parental rights have not been terminated;
[X.] Y. "physical restraint" means the use of physical force without the use of any device or material that restricts the free movement of all or a portion of a child's body [but does not include:
(1) briefly holding a child in order to calm or comfort the child;
(2) holding a child's hand or arm to escort the child safely from one area to another; or
(3) intervening in a physical fight];
Z. "protective devices" means helmets, safety goggles or glasses, guards, mitts, gloves, pads and other common safety devices that are normally used or recommended for use by persons without disabilities while engaged in a sport or occupation or during transportation;
[Y.] AA. "residential treatment or habilitation program" means diagnosis, evaluation, care, treatment or habilitation rendered inside or on the premises of a mental health or developmental disabilities facility, hospital, clinic, institution, supervisory residence or nursing home when the child resides on the premises and where one or more of the following measures is available for use:
(1) a mechanical device to restrain or restrict the child's movement;
(2) a secure seclusion area from which the child is unable to exit voluntarily;
(3) a facility or program designed for the purpose of restricting the child's ability to exit voluntarily; and
(4) the involuntary emergency administration of psychotropic medication;
[Z.] BB. "restraint" means the use of a physical, chemical or mechanical restraint;
[AA.] CC. "seclusion" means the confinement of a child alone in a room from which the child is physically prevented from leaving;
[BB.] DD. "treatment" means provision of behavioral health services based on evaluation of the child, aimed at assisting the child to prevent, correct or ameliorate a mental disorder. The purpose of treatment is to enable the child to attain, maintain or regain maximum functioning;
[CC.] EE. "treatment team" means a team consisting of the child, the child's parents unless parental rights have specifically been limited pursuant to an order of a court, legal custodian, guardian ad litem, treatment guardian, clinician and any other professionals involved in treatment of the child, other members of the child's family, if requested by the child, and the child's attorney if requested by the child, unless in the professional judgment of the treating clinician for reasons of safety or therapy one or more members should be excluded from participation in the treatment team; and
[DD.] FF. "treatment plan" means an individualized plan developed by a treatment team based on assessed strengths and needs of the child and family."
Section 2. Section 32A-6A-9 NMSA 1978 (being Laws 2007, Chapter 162, Section 9) is amended to read:
"32A-6A-9. RESTRAINT, GENERALLY.--[A child has the right to be free from the use of physical, chemical or mechanical restraint used for the convenience of a caregiver or as a substitute for a planned program for behavior support. However]
A. Nothing in this section shall be interpreted to diminish the rights and protections accorded to children in hospitals or psychiatric residential treatment or habilitation facilities as provided by federal law and regulation.
B. Restraint and seclusion as provided for in this section is not considered treatment. It is an emergency intervention to be used only until the emergency ceases.
C. Nothing in this [subsection] section
shall prohibit the use of:
[A. a protective apparatus needed to protect a child from imminent harm, consistent with the least restrictive means principle]
(1) mechanical supports or protective devices;
[B.] (2) a medical restraint prescribed by a physician or dentist as a health-related protective measure during the conduct of a specific medical, surgical or dental procedure; and
[C. appropriate mechanical supports used to achieve proper body position and balance]
(3) holding a child for a very short period of time without undue force to calm or comfort the child or holding a child's hand to escort the child safely from one area to another."
Section 3. Section 32A-6A-10 NMSA 1978 (being Laws 2007, Chapter 162, Section 10) is amended to read:
"32A-6A-10. PHYSICAL RESTRAINT AND SECLUSION.--
A. [In a mental health or developmental disability] When providing any treatment or habilitation [setting], physical restraint and seclusion shall not be used unless [such use] an emergency situation arises in which it is necessary to protect a child or another from imminent, serious physical harm or unless another less intrusive, nonphysical intervention has failed or been determined [inappropriate] ineffective.
B. A treatment and habilitation program shall provide a child and the child's legal custodian with a copy of the policies and procedures governing the use of restraint and seclusion.
C. When a child is in a restraint or in seclusion, the mental health or developmental disabilities professional shall document:
(1) any less intrusive interventions that were attempted or determined to be inappropriate prior to the incident;
(2) the precipitating event immediately preceding the behavior that prompted the use of restraint or seclusion;
(3) the behavior that prompted the use of a restraint or seclusion;
(4) the names of the mental health or developmental disabilities professional who observed the behavior that prompted the use of restraint or seclusion;
(5) the names of the staff members implementing and monitoring the use of restraint or seclusion; and
(6) a description of the restraint or seclusion incident, including the type and length of the use of restraint or seclusion, the child's behavior during and reaction to the restraint or seclusion and the name of the supervisor informed of the use of restraint or seclusion.
D. The documentation shall be maintained in the child's medical, mental health or educational record and available for inspection by the child's legal custodian.
E. The child's legal custodian shall be notified immediately after each time restraint or seclusion is used. If the legal custodian is not reasonably available, the mental health or developmental disability professional shall document all attempts to notify the legal custodian and shall send written notification within one business day.
F. After an incident of restraint or seclusion, the mental health or developmental disabilities professional involved in the incident shall conduct a debriefing with the child in which the precipitating event, unsafe behavior and preventive measures are reviewed with the intent of reducing or eliminating the need for future restraint or seclusion. The debriefing shall be documented in the child's record and incorporated into the next treatment plan review.
G. As promptly as possible, but under no circumstances later than five calendar days after a child has been subject to restraint or seclusion, the treatment team shall meet to review the incident and revise the treatment plan as appropriate. The treatment team shall identify any known triggers to the behavior that necessitated the use of restraint or seclusion and recommend preventive measures that may be used to calm the child and eliminate the need for restraint or seclusion. In a subsequent review of the treatment plan, the treatment team shall review the success or failure of preventive measures and revise the plan, if necessary, based on such review.
H. Physical restraint shall be applied only by a mental health or developmental disabilities professional trained in the appropriate use of physical restraint.
I. In applying physical restraint, a mental health or developmental disabilities professional shall use only reasonable force as is necessary to protect the child or other person from imminent and serious physical harm.
J. Seclusion shall be applied only by mental health or developmental disabilities professionals who are trained in the appropriate use of seclusion.
K. At a minimum, a room used for seclusion shall:
(1) be free of objects and fixtures with which a child could self-inflict bodily harm;
(2) provide the mental health or developmental disabilities professional an adequate and continuous view of the child from an adjacent area; and
(3) provide adequate lighting and ventilation.
L. During the seclusion of a child, the mental health or developmental disabilities professional shall:
(1) view the child placed in seclusion at all times; and
(2) provide the child placed in seclusion with:
(a) an explanation of the behavior that resulted in the seclusion; and
(b) instructions on the behavior required to return to the environment.
M. At a minimum, a mental health or developmental disabilities professional shall reassess a child in restraint or seclusion every thirty minutes.
N. The use of a mechanical restraint is prohibited in a mental health and developmental disability treatment setting unless the treatment setting is a hospital that is licensed and certified by and meets the requirements of the joint commission for the accreditation of health care organizations.
O. This section does not prohibit a mental health or developmental disabilities professional from using a [protective or stabilizing] mechanical support or protective device:
(1) as prescribed by a health professional; or
(2) for a child with a disability, in accordance with a written treatment plan, including but not limited to a school individualized education plan or behavior intervention plan."
Section 4. Section 32A-6A-13 NMSA 1978 (being Laws 2007, Chapter 162, Section 13) is amended to read:
"32A-6A-13. LEGAL REPRESENTATION OF CHILDREN.--
A. A child shall be represented by an attorney at all commitment or treatment guardianship proceedings under the Children's Mental Health and Developmental Disabilities Act if the child is fourteen years of age or older or by a guardian ad litem if the child is under fourteen years of age.
B. When a child has not retained an attorney or a guardian ad litem in a commitment or treatment guardian proceeding and is unable to do so, the court shall appoint an attorney or a guardian ad litem to represent the child in the proceeding. Only an attorney with appropriate experience shall be appointed as an attorney or a guardian ad litem for the child. Whenever reasonable and appropriate, the court shall appoint a guardian ad litem or attorney who is knowledgeable about the child's cultural background.
C. A child of any age shall have access to the state's designated protection and advocacy system pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and the federal Protection and Advocacy for Individuals with Mental Illness Act and access to an attorney of the child's choice [provided that] regarding any matter related to the Children's Mental Health and Developmental Disabilities Act.
D. The child is not entitled to appointment of an attorney at public expense, except as set forth in Subsections A and B of this section.
[D.] E. A child shall not be represented or counseled by an attorney or guardian ad litem who has a conflict of interest, including but not limited to any conflict of interest resulting from prior representation of the child's parent, guardian, legal custodian or residential treatment or habilitation program."
Section 5. Section 32A-6A-20 NMSA 1978 (being Laws 2007, Chapter 162, Section 20) is amended to read:
"32A-6A-20. CONSENT TO PLACEMENT IN A RESIDENTIAL TREATMENT OR HABILITATION PROGRAM--CHILDREN YOUNGER THAN FOURTEEN YEARS OF AGE.--
A. A child younger than fourteen years of age shall not receive residential treatment for a mental disorder or habilitation for a developmental disability, except as provided in this section.
B. A child younger than fourteen years of age may be admitted to a residential treatment or habilitation program for a period not to exceed sixty days with the informed consent of the child's legal custodian, subject to the requirements of this section.
C. In order to admit a child younger than fourteen years of age to a residential treatment or habilitation program, the child's legal custodian shall knowingly and voluntarily execute a consent to admission document prior to the child's admission. The consent to admission document shall be in a form designated by the supreme court. The consent to admission document shall include a clear statement of the legal custodian's right to [voluntarily] consent voluntarily to or refuse the child's admission, the legal custodian's right to request the child's immediate discharge from the residential treatment program at any time and the legal custodian's rights when the legal custodian requests the child's discharge and the child's physician, licensed psychologist or the director of the residential treatment or habilitation program determines that the child needs continued treatment. The residential treatment or habilitation program shall ensure that each statement is clearly explained in the child's and legal custodian's primary language, if that is their language of preference, and in a manner appropriate to the child's and legal custodian's developmental abilities. Each statement shall be initialed by the child's legal custodian.
D. The legal custodian's executed consent to admission document shall be filed with the child's treatment records within twenty-four hours of the time of admission.
E. Upon the filing of the legal custodian's consent to admission document in the child's hospital records, the director of the residential treatment or habilitation program or the director's designee shall, on the next business day following the child's admission, notify the district court or the special commissioner appointed pursuant to Section [25 of the Children's Mental Health and Developmental Disabilities Act] 32A-6A-25 NMSA 1978 regarding the admission and provide the child's name, date of birth and the date and place of admission. The court or special commissioner shall, upon receipt of notice regarding a child's admission to a residential treatment or habilitation program, establish a sequestered court file.
F. The director of a residential treatment or habilitation program or the director's designee shall, on the next business day following the child's admission, petition the court to appoint a guardian ad litem for the child. When the court receives the petition, the court shall appoint a guardian ad litem.
G. Within seven days of a child's admission to a residential treatment or habilitation program, a guardian ad litem, representing the child's best interests and in accordance with the provisions of the Children's Mental Health and Developmental Disabilities Act, shall meet with the child, the child's legal custodian and the child's clinician. The guardian ad litem shall determine the following:
(1) whether the child's legal custodian understands and consents to the child's admission to a residential treatment or habilitation program;
(2) whether the admission is in the child's best interests; and
(3) whether the admission is appropriate for the child and is consistent with the least [drastic] restrictive means principle.
H. If a guardian ad litem determines that the child's legal custodian understands and consents to the child's admission and that the admission is in the child's best interests, is appropriate for the child and is consistent with the least [drastic] restrictive means principle, the guardian ad litem shall so certify on a form designated by the supreme court. The form, when completed by the guardian ad litem, shall be filed in the child's patient record kept by the residential treatment or habilitation program, and a copy shall be forwarded to the court or special commissioner within seven days of the child's admission. The guardian ad litem's statement shall not identify the child by name.
I. Upon reaching the age of fourteen, a child who was admitted to a residential treatment or habilitation program pursuant to this section may petition the district court for the records of the district court regarding all matters pertinent to the child's admission to a residential treatment or habilitation program. The district court, upon receipt of the petition and upon a determination that the petitioner is in fact a child who was admitted to a residential treatment or habilitation program, shall provide all court records regarding the admission to the petitioner, including all copies in the court's possession, unless there is a showing that release of records would cause substantial harm to the child. Upon reaching the age of eighteen, a person who was admitted to a residential or treatment or habilitation program as a child may petition the district court for such records, and the district court shall provide all court records regarding the admission to the petitioner, including all copies in the court's possession.
J. A legal custodian who consents to admission of a child to a residential treatment or habilitation program has the right to request the child's immediate discharge from the residential treatment or habilitation program, subject to the provisions of this section. If a child's legal custodian informs the director, a physician or other member of the residential treatment or habilitation program staff that the legal custodian desires the child to be discharged from the program, the director, physician or other staff shall provide for the child's immediate discharge and remit the child to the legal custodian's care. The residential treatment or habilitation program shall also notify the child's guardian ad litem. A child whose legal custodian requests the child's immediate discharge shall be discharged, except when the director of the residential treatment or habilitation program, a physician or a licensed psychologist determines that the child requires continued treatment and that the child meets the criteria for involuntary residential treatment. In that event, the director, physician or licensed psychologist shall, on the first business day following the child's legal custodian's request for release of the child from the program, request that the children's court attorney initiate involuntary residential treatment proceedings. The children's court attorney may petition the court for such proceedings. The child has a right to a hearing regarding the child's continued treatment within seven days of the request for release.
K. A residential treatment or habilitation program shall review the admission of a child at the end of a sixty-day period after the date of initial admission, and the child's physician or licensed psychologist shall review the admission to determine whether it is in the best interests of the child to continue the admission. If the child's physician or licensed psychologist concludes that continuation of the residential treatment or habilitation program is in the child's best interests, the child's clinician shall so state in a form to be filed in the child's patient records. The residential treatment or habilitation program shall notify the guardian ad litem for the child at least seven days prior to the date that the sixty-day period is to end or, if necessary, request a guardian ad litem pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act. The guardian ad litem shall then personally meet with the child, the child's legal custodian and the child's clinician and ensure that the child's legal custodian understands and consents to the child's continued admission to the residential treatment or habilitation program. If the guardian ad litem determines that the child's legal custodian understands and consents to the child's continued admission to the residential treatment or habilitation program, that the continued admission is in the child's best interest, that the placement continues to be appropriate for the child and consistent with the least restrictive means principle and that the clinician has recommended the child's continued stay in the program, the guardian ad litem shall so certify on a form designated by the supreme court. The disposition of these forms shall be as set forth in this section, with one copy going in the child's patient record and the other being sent to the district court in a manner that preserves the child's anonymity. This procedure shall take place every sixty days following the child's last admission or a guardian ad litem's certification, whichever occurs first.
L. When a guardian ad litem determines that the child's legal custodian does not understand or consent to the child's admission to a residential treatment or habilitation program, that the admission is not in the child's best interests, that the placement is inappropriate for the child or is inconsistent with the least restrictive means principle or that the child's clinician has not recommended a continued stay by the child in the residential treatment or habilitation program, the child shall be released or involuntary placement procedures shall be initiated.
M. If the child's legal custodian is unavailable to take custody of the child and immediate discharge of the child would endanger the child, the residential treatment or habilitation program may detain the child until a safe and orderly discharge is possible. If the child's legal custodian refuses to take physical custody of the child, the residential treatment or habilitation program shall refer the case to the department for an abuse and neglect or family in need of court-ordered services investigation. The department may take the child into protective custody pursuant to the provisions of the Abuse and Neglect Act or the Family in Need of Court-Ordered Services Act."
Section 6. Section 32A-6A-24 NMSA 1978 (being Laws 2007, Chapter 162, Section 24) is amended to read:
"32A-6A-24. DISCLOSURE OF INFORMATION.--
A. Except as otherwise provided in the Children's Mental Health and Developmental Disabilities Act, a person shall not, without the authorization of the child, disclose or transmit any confidential information from which a person well-acquainted with the child might recognize the child as the described person or any code, number or other means that could be used to match the child with confidential information regarding the child.
B. When the child is under fourteen years of age, the child's legal custodian is authorized to consent to disclosure on behalf of the child. Information shall also be disclosed to a court-appointed guardian ad litem without consent of the child or the child's legal custodian.
C. A child fourteen years of age or older with capacity to consent to disclosure of confidential information shall have the right to consent to disclosure of mental health and habilitation records. A legal custodian who is authorized to make health care decisions for a child has the same rights as the child to request, receive, examine, copy and consent to the disclosure of medical or other health care information when evidence exists that such a child whose consent to disclosure of confidential information is sought does not have capacity to give or withhold valid consent and does not have a treatment guardian appointed by a court. If the legal custodian is not authorized to make decisions for a child under the Children's Mental Health and Developmental Disabilities Act, the person seeking authorization shall petition the court for the appointment of a treatment guardian to make a decision for such a child.
D. Authorization from the child or legal custodian for a child less than fourteen years of age shall not be required for the disclosure or transmission of confidential information when the disclosure or transmission:
(1) is necessary for treatment of the child and is made in response to a request from a clinician;
(2) is necessary to protect against a clear and substantial risk of imminent serious physical injury or death inflicted by the child on self or another;
(3) is determined by a clinician not to cause substantial harm to the child and a summary of the child's assessment, treatment plan, progress, discharge plan and other information essential to the child's treatment is made to a child's legal custodian or guardian ad litem;
(4) is to the primary caregiver of the child and the information disclosed was necessary for the continuity of the child's treatment in the judgment of the treating clinician who discloses the information;
(5) is to an insurer contractually obligated to pay part or all of the expenses relating to the treatment of the child at the residential facility. The information disclosed shall be limited to data identifying the child, facility and treating or supervising physician and the dates and duration of the residential treatment. It shall not be a defense to an insurer's obligation to pay that the information relating to the residential treatment of the child, apart from information disclosed pursuant to this section, has not been disclosed to the insurer;
(6) is to a protection and advocacy representative pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and the federal Protection and Advocacy for [Mentally Ill] Individuals [Amendments] with Mental Illness Act [of 1991; and]; or
(7) is pursuant to a court order issued for good cause shown after notice to the child and the child's legal custodian and opportunity to be heard is given. Before issuing an order requiring disclosure, the court shall find that:
(a) other ways of obtaining the information are not available or would not be effective; and
(b) the need for the disclosure outweighs the potential injury to the child, the clinician-child relationship and treatment services.
E. A disclosure ordered by the court shall be limited to the information that is essential to carry out the purpose of the disclosure. Disclosure shall be limited to those persons whose need for the information forms the basis for the order. An order by the court shall include such other measures as are necessary to limit disclosure for the protection of the child, including sealing from public scrutiny the record of a proceeding for which disclosure of a child's record has been ordered.
F. An authorization given for the transmission or disclosure of confidential information shall not be effective unless it:
(1) is in writing and signed; and
(2) contains a statement of the child's right to examine and copy the information to be disclosed, the name or title of the proposed recipient of the information and a description of the use that may be made of the information.
G. The child has a right of access to confidential information about the child and has the right to make copies of information about the child and submit clarifying or correcting statements and other documentation of reasonable length for inclusion with the confidential information. The statements and other documentation shall be kept with the relevant confidential information, shall accompany it in the event of disclosure and shall be governed by the provisions of this section to the extent the statements or other documentation contain confidential information. Nothing in this subsection shall prohibit the denial of access to the records when a physician or other mental health or developmental disabilities professional believes and notes in the child's medical records that the disclosure would not be in the best interests of the child. In all cases, the child has the right to petition the court for an order granting access.
H. Information concerning a child disclosed under this section shall not be released to any other person, agency or governmental entity or placed in files or computerized data banks accessible to any persons not otherwise authorized to obtain information under this section. Notwithstanding the confidentiality provisions of the Delinquency Act and the Abuse and Neglect Act, information disclosed under this section shall not be re-released without the express consent of the child or legal custodian authorized under the Children's Mental Health and Developmental Disabilities Act to give consent and any other consent necessary for redisclosure in conformance with state and federal law, including consent that may be required from the professional or the facility that created the document.
I. Nothing in the Children's Mental Health and Developmental Disabilities Act shall limit the confidentiality rights afforded by federal statute or regulation.
J. The department shall promulgate rules for implementing disclosure of records pursuant to this section and in compliance with state and federal law and the Children's Court Rules."
Section 7. A new section of the Children's Mental Health and Developmental Disabilities Act, Section 32A-6A-30 NMSA 1978, is enacted to read:
"32A-6A-30. [NEW MATERIAL] RULES.--The department shall promulgate rules for the operation of out-of-home treatment and habilitation programs identified as hospitals, psychiatric residential treatment facilities or non-medical community-based residential programs in keeping with the purposes of the Children's Mental Health and Developmental Disabilities Act and in conformance with applicable federal law and regulation."
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