0001|                         SENATE BILL 91
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0002|     42ND LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION,
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0003|     1996
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0004|                         INTRODUCED BY
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0005|                      TIMOTHY Z. JENNINGS
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0006|     
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0007|                                
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0008|     
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0009|     
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0010|     
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0011|                             AN ACT
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0012|     RELATING TO HEALTH; REQUIRING A PERSON FORMALLY CHARGED FOR
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0013|     ALLEGEDLY COMMITTING CRIMINAL SEXUAL PENETRATION TO UNDERGO A
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0014|     TEST TO IDENTIFY THE HUMAN IMMUNODEFICIENCY VIRUS; AMENDING AND
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0015|     ENACTING SECTIONS OF THE HUMAN IMMUNODEFICIENCY VIRUS TEST ACT.
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0016|     
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0017|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0018|       Section 1.  Section 24-2B-2 NMSA 1978 (being Laws 1989,
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0019|     Chapter 227, Section 2, as amended) is amended to read:
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0020|       "24-2B-2.  INFORMED CONSENT.--No person shall perform a
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0021|     test designed to identify the human immunodeficiency virus or
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0022|     its antigen or antibody without first obtaining the informed
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0023|     consent of the person upon whom the test is performed, except as
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0024|     provided in Section 24-2B-5, <s>[or]</s> 24-2B-5.1 <u>or 24-2B-5.2</u> 
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0025|     NMSA 1978.  Informed consent shall be preceded by an explanation
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0001|     of the test, including its purpose, potential uses and
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0002|     limitations and the meaning of its results.  Consent need not be
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0003|     in writing provided there is documentation in the medical record
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0004|     that the test has been explained and the consent has been
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0005|     obtained."
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0006|       Section 2.  A new section of the Human Immunodeficiency
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0007|     Virus Test Act, Section 24-2B-5.2 NMSA 1978, is enacted to read:
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0008|       "24-2B-5.2.  [<u>NEW MATERIAL</u>]  INFORMED CONSENT NOT 
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0009|     REQUIRED--TESTING OF PERSONS FORMALLY CHARGED FOR ALLEGEDLY
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0010|     COMMITTING CERTAIN CRIMINAL OFFENSES--RESPONSIBILITY TO
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0011|     ADMINISTER AND PAY FOR TEST.--
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0012|            A.  A test designed to identify the human
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0013|     immunodeficiency virus or its antigen or antibody may be
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0014|     performed, without his consent, on a person who is formally
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0015|     charged for allegedly committing any state criminal offense:
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0016|                 (1)  involving contact between the penis and the
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0017|     vulva;
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0018|                 (2)  involving contact between the penis and
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0019|     anus;
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0020|                 (3)  involving contact between the mouth and
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0021|     penis;
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0022|                 (4)  involving contact between the mouth and
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0023|     vulva; or
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0024|                 (5)  involving contact between the mouth and
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0025|     anus.
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0001|            B.  When consent to perform a test on an alleged
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0002|     offender cannot be obtained pursuant to the provisions of
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0003|     Section 24-2B-2 or 24-2B-3 NMSA 1978, the alleged victim of a
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0004|     criminal offense described in Subsection A of this section may
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0005|     petition the court to order that a test be performed on the
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0006|     alleged offender.  The petition and all proceedings in
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0007|     connection therewith shall be under seal.  When the alleged
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0008|     victim of the criminal offense is a minor or incompetent, the
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0009|     parent or legal guardian of the alleged victim may petition the
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0010|     court to order that a test be performed on the alleged offender. 
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0011|     The court shall order and the test shall be administered to the
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0012|     alleged offender within ten days after the petition is filed by
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0013|     the victim, his parent or guardian.  The results of the test
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0014|     shall be disclosed only to the alleged offender and to the
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0015|     alleged victim or the alleged victim's parent or legal guardian. 
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0016|     When the alleged offender has a positive test result, both the
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0017|     alleged offender and the alleged victim shall be provided with
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0018|     counseling, as described in Section 24-2B-4 NMSA 1978.
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0019|            C.  The court's order shall direct the department of
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0020|     health to be responsible for the administration of and payment
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0021|     for the test and the lawful distribution of the test results.
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0022|            D.  A prosecuting attorney may not introduce into
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0023|     evidence in a criminal proceeding arising out of the alleged
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0024|     offense the fact that a test was administered to the alleged
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0025|     offender pursuant to the provisions of this section.
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0001|            E.  The administration of a test to an alleged
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0002|     offender pursuant to the provisions of this section shall not
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0003|     preclude the subsequent administration of another test pursuant
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0004|     to the provisions of Section 24-2B-5.1 NMSA 1978."
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0005|       Section 3.  EFFECTIVE DATE.--The effective date of the
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0006|     provisions of this act is July 1, 1996.
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0007|                                    
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0008|   
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0009|                    FORTY-SECOND LEGISLATURE
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0010|                      SECOND SESSION, 1996
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0011|   
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0012|   
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0013|                                              JANUARY 22, 1996
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0014|   
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0015|   Mr. President:
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0016|   
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0017|     Your COMMITTEES' COMMITTEE, to whom has been referred
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0018|   
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0019|                           SENATE BILL 91
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0020|   
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0021|   has had it under consideration and finds same to be GERMANE, PURSUANT
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0022|   TO EXECUTIVE MESSAGE NUMBER FOUR, and thence referred to the
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0023|   JUDICIARY COMMITTEE.
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0024|   
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0025|                              Respectfully submitted,
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0001|   
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0002|   
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0003|   
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0004|   
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0005|                              __________________________________
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0006|                              SENATOR MANNY M. ARAGON, Chairman 
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0007|   
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0008|   
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0009|   
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0010|   Adopted_______________________ Not Adopted_______________________
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0011|             (Chief Clerk)                        (Chief Clerk)
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0012|   
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0013|   
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0014|                     Date ________________________
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0015|   
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0016|   
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0017|   S0091CC1
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0018|     
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0019|   
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0020|                      FORTY-SECOND LEGISLATURE
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0021|                        SECOND SESSION, 1996
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0022|   
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0023|   
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0024|                                                   February 2, 1996
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0025|   
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0001|   Mr. President:
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0002|   
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0003|     Your JUDICIARY COMMITTEE, to whom has been referred
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0004|   
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0005|                           SENATE BILL 91
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0006|   
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0007|   has had it under consideration and reports same with recommendation that
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0008|   it DO NOT PASS, but that
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0009|   
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0010|                SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR
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0011|                             SENATE BILL 91                            
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0012| 
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0013|   DO PASS.
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0014|                              Respectfully submitted,
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0015|   
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0016|   
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0017|   
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0018|                              __________________________________
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0019|                              Janice D. Paster, Chairman 
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0020|   
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0021|   
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0022|   Adopted_______________________ Not Adopted_______________________
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0023|             (Chief Clerk)                          (Chief Clerk)
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0024|   
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0025|   
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0001|                     Date ________________________
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0002|   
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0003|   
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0004|   The roll call vote was <u> 5 </u> For <u> 0 </u> Against
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0005|   Yes:  5
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0006|   No:        0
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0007|   Excused:   Carraro, Cisneros, Sanchez, Vernon
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0008|   Absent:    None
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0009|   
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0010|   
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0011|   S0091JU1
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0012|              SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR
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0013|                         SENATE BILL 91
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0014|     42nd legislature - STATE OF NEW MEXICO - second session, 1996
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0015|                                
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0016|     
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0017|     
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0018|                                
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0019|     
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0020|     
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0021|     
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0022|                             AN ACT
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0023|     RELATING TO HEALTH; REQUIRING A PERSON FORMALLY CHARGED FOR
    |
0024|     ALLEGEDLY COMMITTING CERTAIN CRIMINAL OFFENSES TO UNDERGO TESTS
    |
0025|     TO IDENTIFY SEXUALLY TRANSMITTED DISEASES AND THE HUMAN
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0001|     IMMUNODEFICIENCY VIRUS; PRESCRIBING PENALTIES FOR UNAUTHORIZED
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0002|     DISCLOSURE OF TEST RESULTS; AMENDING AND ENACTING SECTIONS OF
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0003|     THE NMSA 1978.
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0004|     
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0005|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
    |
0006|       Section 1.  A new Section 24-1-9.2 NMSA 1978 is enacted to
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0007|     read:
    |
0008|       "24-1-9.2.  [<u>NEW MATERIAL</u>]  SEXUALLY TRANSMITTED
    |
0009|     DISEASES--TESTING OF PERSONS FORMALLY CHARGED FOR ALLEGEDLY
    |
0010|     COMMITTING CERTAIN CRIMINAL OFFENSES.--
    |
0011|            A.  A test designed to identify any sexually
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0012|     transmitted disease may be performed on a person, upon the
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0013|     filing of a complaint, information or an indictment alleging
    |
0014|     that the person committed a state criminal offense:
    |
0015|                 (1)  involving contact between the penis and the
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0016|     vulva;
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0017|                 (2)  involving contact between the penis and anus;
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0018|                 (3)  involving contact between the mouth and
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0019|     penis;
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0020|                 (4)  involving contact between the mouth and
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0021|     vulva; or
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0022|                 (5)  involving contact between the mouth and anus.
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0023|            B.  If consent to perform a test on an alleged offender
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0024|     cannot be obtained, the victim of the alleged criminal offense
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0025|     described in Subsection A of this section may petition the
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0001|     court, through the prosecuting office or personally, to order
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0002|     that a test be performed on the alleged offender; provided that
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0003|     the same test is first performed on the victim of the alleged
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0004|     criminal offense.  The test may be performed on the alleged
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0005|     offender regardless of the result of the test performed on the
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0006|     victim of the alleged criminal offense.  If the victim of the
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0007|     alleged criminal offense is a minor or incompetent, the parent
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0008|     or legal guardian of the victim of the alleged criminal offense
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0009|     may petition the court to order that a test be performed on the
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0010|     alleged offender.
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0011|            C.  The court may issue an order based on a finding of
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0012|     good cause after a hearing at which both the victim of the
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0013|     alleged criminal offense and the alleged offender have the right to
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0014|     be present.  During the hearing, only affidavits, counter
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0015|     affidavits and medical reports regarding the facts that support or
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0016|     rebut the issuance of an order shall be admissible.  The hearing
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0017|     shall be conducted within seventy-two hours after the victim
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0018|     petitions the court for the order.  The petition and all
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0019|     proceedings in connection therewith shall be under seal.  The court
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0020|     shall issue an order and the test shall be administered to the
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0021|     alleged offender within ten days after the petition is filed by the
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0022|     victim of the alleged criminal offense, his parent or guardian.
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0023|            D.  The results of the test shall be disclosed only to the
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0024|     alleged offender and to the victim of the alleged criminal offense
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0025|     or the victim's parent or legal guardian.  When the victim of the
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0001|     alleged criminal offense or the alleged offender has a positive
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0002|     test result, both the alleged offender and the victim of the
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0003|     alleged criminal offense shall be provided with counseling.
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0004|            E.  A prosecuting attorney may not use in a criminal
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0005|     proceeding arising out of the alleged criminal offense the fact
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0006|     that a test was administered to the alleged offender or the results
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0007|     of the test.
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0008|            F.  The provisions of this section shall not affect the
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0009|     rights and remedies available to the victim of the alleged criminal
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0010|     offense and the alleged offender in any civil action. 
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0011|            G.  The administration of a test to an alleged offender
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0012|     pursuant to the provisions of this section shall not preclude the
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0013|     subsequent administration of another test pursuant to the
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0014|     provisions of Section 24-1-9.1 NMSA 1978."
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0015|       Section 2.  A new Section 24-1-9.3 NMSA 1978 is enacted to
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0016|     read:
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0017|       "24-1-9.3.  [<u>NEW MATERIAL</u>]  SEXUALLY TRANSMITTED DISEASES--MANDATORY COUNSELING.--No positive test result for a sexually
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0018|     transmitted disease shall be revealed to the person upon whom the
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0019|     test was performed without the person performing the test or the
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0020|     health facility at which the test was performed providing or
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0021|     referring that person for individual counseling about:
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0022|            A.  the meaning of the test results;
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0023|            B.  the possible need for additional testing;
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0024|            C.  the availability of appropriate health care services,
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0025|     including mental health care, social and support services; and
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0001|            D.  the benefits of locating and counseling any individual
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0002|     by whom the infected person may have been exposed to 
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0003|     the sexually transmitted disease and any individual whom the
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0004|     infected person may have exposed to the sexually transmitted 
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0005|     disease."
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0006|       Section 3.  A new Section 24-1-9.4 NMSA 1978 is enacted to
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0007|     read: 
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0008|       "24-1-9.4.  [<u>NEW MATERIAL</u>]  SEXUALLY TRANSMITTED DISEASES--
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0009|     CONFIDENTIALITY.--Except as provided in Section 24-1-9.2 NMSA 1978,
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0010|     no person or the person's agents or employees who require or
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0011|     administer a test for sexually transmitted diseases shall disclose
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0012|     the identity of any person upon whom a test is performed or the
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0013|     result of such a test in a manner that permits identification of
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0014|     the subject of the test, except to the following persons:
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0015|            A.  the subject of the test or the subject's legally
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0016|     authorized representative, guardian or legal custodian;
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0017|            B.  any person designated in a legally effective release
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0018|     of the test results executed prior to or after the test by the
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0019|     subject of the test or the subject's legally authorized
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0020|     representative;
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0021|            C.  an authorized agent, a credentialed or privileged phy-
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0022|     sician or employee of a health facility or health care provider if
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0023|     the health care facility or health care provider itself is autho-
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0024|     rized to obtain the test results, the agent or employee provides
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0025|     patient care or handles or processes specimens of body fluids or
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0001|     tissues and the agent or employee has a need to know such informa-
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0002|     tion;
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0003|            D.  the department of health and the centers for disease
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0004|     control and prevention of the United States public health service
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0005|     in accordance with reporting requirements for a diagnosed case of a
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0006|     sexually transmitted disease;
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0007|            E.  a health facility or health care provider that
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0008|     procures, processes, distributes or uses:
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0009|                 (1)  a human body part from a deceased person, with
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0010|     respect to medical information regarding that person;
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0011|                 (2)  semen for the purpose of artificial
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0012|     insemination;
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0013|                 (3)  blood or blood products for transfusion or
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0014|     injection; or
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0015|                 (4)  human body parts for transplant with respect to
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0016|     medical information regarding the donor or recipient;
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0017|            F.  health facility staff committees or accreditation or
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0018|     oversight review organizations that are conducting program
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0019|     monitoring, program evaluation or service reviews, as long as any
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0020|     identity remains confidential; 
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0021|            G.  authorized medical or epidemiological researchers who
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0022|     may not further disclose any identifying characteristics or
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0023|     information; and
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0024|            H.  for purposes of application or reapplication for
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0025|     insurance coverage, an insurer or reinsurer upon whose request the
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0001|     test was performed."
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0002|       Section 4.  A new Section 24-1-9.5 NMSA 1978 is enacted to
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0003|     read:
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0004|       "24-1-9.5.  [<u>NEW MATERIAL</u>]  SEXUALLY TRANSMITTED DISEASES--
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0005|     DISCLOSURE STATEMENT.--No person to whom the results of a test for
    |
0006|     sexually transmitted diseases have been disclosed may disclose the
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0007|     test results to another person, except as authorized in Sections
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0008|     24-1-9.4 and 24-1-9.6 NMSA 1978.  Whenever disclosure is made, it
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0009|     shall be accompanied by a statement in writing that includes the
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0010|     following or substantially similar language:  
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0011|       "This information has been disclosed to you from records whose
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0012|     confidentiality is protected by state law. State law prohibits you
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0013|     from making any further disclosure of such information without the
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0014|     specific written consent of the person to whom such information
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0015|     pertains, or as otherwise permitted by state law.  A person who
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0016|     makes an unauthorized disclosure of this information is guilty of a
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0017|     petty misdemeanor and shall be sentenced to imprisonment in the
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0018|     county jail for a definite term not to exceed six months or the
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0019|     payment of a fine of not more than five hundred dollars ($500), or
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0020|     both."."
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0021|       Section 5.  A new Section 24-1-9.6 NMSA 1978 is enacted to
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0022|     read:
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0023|       "24-1-9.6.  [<u>NEW MATERIAL</u>]  SEXUALLY TRANSMITTED DISEASES--DISCLOSURE.--A victim of an alleged criminal offense who receives
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0024|     information pursuant to Section 24-1-9.2 NMSA 1978 may disclose the
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0025|     test results as is reasonably necessary to protect his health and
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0001|     safety or the health and safety of his family or sexual partner."
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0002|       Section 6.  A new Section 24-1-9.7 NMSA 1978 is enacted to
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0003|     read:
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0004|       "24-1-9.7.  [<u>NEW MATERIAL</u>]  PENALTY.--A person who makes an
    |
0005|     unauthorized disclosure of the results of a test designed to
    |
0006|     identify a sexually transmitted disease is guilty of a petty
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0007|     misdemeanor and shall be sentenced to imprisonment in the county
    |
0008|     jail for a definite term not to exceed six months or the payment of
    |
0009|     a fine of not more than five hundred dollars ($500), or both."
    |
0010|       Section 7.  Section 24-2B-2 NMSA 1978 (being Laws 1989,
    |
0011|     Chapter 227, Section 2, as amended) is amended to read:
    |
0012|       "24-2B-2.  INFORMED CONSENT.--No person shall perform a test
    |
0013|     designed to identify the human immunodeficiency virus or its
    |
0014|     antigen or antibody without first obtaining the informed consent of
    |
0015|     the person upon whom the test is performed, except as provided in
    |
0016|     Section 24-2B-5, <s>[or]</s> 24-2B-5.1 <u>or 24-2B-5.2</u> NMSA 1978. 
    |
0017|     Informed consent shall be preceded by an explanation of the test,
    |
0018|     including its purpose, potential uses and limitations and the
    |
0019|     meaning of its results.  Consent need not be in writing provided
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0020|     there is documentation in the medical record that the test has been
    |
0021|     explained and the consent has been obtained."
    |
0022|       Section 8.  A new section of the Human Immunodeficiency Virus
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0023|     Test Act, Section 24-2B-5.2 NMSA 1978, is enacted to read:
    |
0024|       "24-2B-5.2.  [<u>NEW MATERIAL</u>]  INFORMED CONSENT NOT 
    |
0025|     REQUIRED--TESTING OF PERSONS FORMALLY CHARGED FOR ALLEGEDLY
    |
0001|     COMMITTING CERTAIN CRIMINAL OFFENSES--RESPONSIBILITY TO ADMINISTER
    |
0002|     AND PAY FOR TEST.--
    |
0003|            A.  A test designed to identify the human immunodeficiency
    |
0004|     virus or its antigen or antibody may be performed, without his
    |
0005|     consent, on a person upon the filing of a complaint, information or
    |
0006|     an indictment alleging that the person committed a state criminal
    |
0007|     offense:
    |
0008|                 (1)  involving contact between the penis and the
    |
0009|     vulva;
    |
0010|                 (2)  involving contact between the penis and anus;
    |
0011|                 (3)  involving contact between the mouth and penis;
    |
0012|                 (4)  involving contact between the mouth and vulva;
    |
0013|     or
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0014|                 (5)  involving contact between the mouth and anus.
    |
0015|            B.  If consent to perform a test on an alleged offender
    |
0016|     cannot be obtained pursuant to the provisions of Section 24-2B-2 or
    |
0017|     24-2B-3 NMSA 1978, the victim of the alleged criminal offense
    |
0018|     described in Subsection A of this section may petition the court,
    |
0019|     through the prosecuting office or personally, to order that a test
    |
0020|     be performed on the alleged offender; provided that the same test
    |
0021|     is first performed on the victim of the alleged criminal offense. 
    |
0022|     The test may be performed on the alleged offender regardless of the
    |
0023|     result of the test performed on the victim of the alleged offense. 
    |
0024|     If the victim of the alleged criminal offense is a minor or
    |
0025|     incompetent, the parent or legal guardian of the victim of the
    |
0001|     alleged criminal offense may petition the court to order that a
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0002|     test be performed on the alleged offender.
    |
0003|                 C.  The court may issue an order based on a finding of
    |
0004|     good cause after a hearing at which both the victim of the alleged
    |
0005|     criminal offense and the alleged offender have the right to be
    |
0006|     present.  During the hearing, only affidavits, counter affidavits
    |
0007|     and medical reports regarding the facts that support or rebut the
    |
0008|     issuance of an order shall be admissible.  The hearing shall be
    |
0009|     conducted within seventy-two hours after the victim of the alleged
    |
0010|     criminal offense petitions the court for the order.  The petition
    |
0011|     and all proceedings in connection therewith shall be under seal.  
    |
0012|     The court shall issue the order and the test shall be administered
    |
0013|     to the alleged offender within ten days after the petition is filed
    |
0014|     by the victim of the alleged offense, his parent or guardian.
    |
0015|            D.  The results of the test shall be disclosed only to the
    |
0016|     alleged offender and to the victim of the alleged criminal offense
    |
0017|     or the victim's parent or legal guardian.  When the victim of the
    |
0018|     alleged criminal offense or the alleged offender has a positive
    |
0019|     test result, both the alleged offender and the victim of the
    |
0020|     alleged criminal offense shall be provided with counseling, as
    |
0021|     described in Section 24-2B-4 NMSA 1978.
    |
0022|            E.  The court's order shall direct the department of
    |
0023|     health to be responsible for the administration of and payment for
    |
0024|     the test and the lawful distribution of the test results.
    |
0025|            F.  A prosecuting attorney may not use in a criminal
    |
0001|     proceeding arising out of the alleged criminal offense the fact
    |
0002|     that a test was administered to the alleged offender, or the
    |
0003|     results of the test.
    |
0004|            G.  The provisions of this section shall not affect the
    |
0005|     rights and remedies available to the victim of the alleged criminal
    |
0006|     offense and alleged offender in any civil action.
    |
0007|            H.  The administration of a test to an alleged offender
    |
0008|     pursuant to the provisions of this section shall not preclude the
    |
0009|     subsequent administration of another test pursuant to the
    |
0010|     provisions of Section 24-2B-5.1 NMSA 1978."
    |
0011|       Section 9.  Section 24-2B-7 NMSA 1978 (being Laws 1989,
    |
0012|     Chapter 227, Section 7) is amended to read:
    |
0013|       "24-2B-7.  DISCLOSURE STATEMENT.--No person to whom the
    |
0014|     results of a test have been disclosed may disclose the test results
    |
0015|     to another person except as authorized by the Human
    |
0016|     Immunodeficiency Virus Test Act.  Whenever disclosure is made
    |
0017|     pursuant to that act, it shall be accompanied by a statement in
    |
0018|     writing <s>[which]</s> <u>that</u> includes the following or substantially
    |
0019|     similar language:  "This information has been disclosed to you from
    |
0020|     records whose confidentiality is protected by state law. State law
    |
0021|     prohibits you from making any further disclosure of such
    |
0022|     information without the specific written consent of the person to
    |
0023|     whom such information pertains, or as otherwise permitted by state
    |
0024|     law. <u>A person who makes an unauthorized disclosure of this
</u>    |
<u></u>0025| <u>    information is guilty of a petty misdemeanor and shall be sentenced
</u>    |
<u></u>0001| <u>    to imprisonment in the county jail for a definite term not to
</u>    |
<u></u>0002| <u>    exceed six months or the payment of a fine of not more than five
</u>    |
<u></u>0003| <u>    hundred dollars ($500), or both</u>."
    |
0004|       Section 10.  Section 24-2B-8 NMSA 1978 (being Laws 1989, Chap-
    |
0005|     ter 227, Section 8) is amended to read:
    |
0006|       "24-2B-8. <s>[SELF]</s> DISCLOSURE.--Nothing in the Human
    |
0007|     Immunodeficiency Virus Test Act shall be construed to prevent a
    |
0008|     person who has been tested from disclosing in any way to any other
    |
0009|     person his own test results. <u>Any victim of an alleged criminal
</u>    |
<u></u>0010| <u>    offense who receives information pursuant to Section 24-2B-5.2 NMSA
</u>    |
<u></u>0011| <u>    1978 may disclose the test results as is reasonably necessary to
</u>    |
<u></u>0012| <u>    protect his health and safety or the health and safety of his
</u>    |
<u></u>0013| <u>    family or sexual partner</u>."
    |
0014|       Section 11.  A new section of the Human Immunodeficiency Virus
    |
0015|     Test Act, Section 24-2B-9 NMSA 1978, is enacted to read:
    |
0016|       "24-2B-9.  [<u>NEW MATERIAL</u>]  PENALTY.--A person who makes an
    |
0017|     unauthorized disclosure of the results of a test designed to
    |
0018|     identify the human immunodeficiency virus or its antigen or
    |
0019|     antibody is guilty of a petty misdemeanor and shall be sentenced to
    |
0020|     imprisonment in the county jail for a definite term not to exceed
    |
0021|     six months or the payment of a fine of not more than five hundred
    |
0022|     dollars ($500), or both."
    |
0023|       Section 12.  EFFECTIVE DATE.--The effective date of the
    |
0024|     provisions of this act is July 1, 1996.
    |
0025|                                     
    |
0001|   
    |
0002|                     FORTY-SECOND LEGISLATURE
    |
0003|                       SECOND SESSION, 1996
    |
0004|   
    |
0005|   
    |
0006|                                                February 2, 1996
    |
0007|   
    |
0008|   Mr. President:
    |
0009|   
    |
0010|     Your JUDICIARY COMMITTEE, to whom has been referred
    |
0011|   
    |
0012|                          SENATE BILL 91
    |
0013|   
    |
0014|   has had it under consideration and reports same with recommendation
    |
0015|   that it DO NOT PASS, but that
    |
0016|   
    |
0017|                SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR
    |
0018|                             SENATE BILL 91                            
    |
0019| 
    |
0020|   DO PASS.
    |
0021|                              Respectfully submitted,
    |
0022|   
    |
0023|   
    |
0024|   
    |
0025|                              __________________________________
    |
0001|                              Janice D. Paster, Chairman 
    |
0002|   
    |
0003|   
    |
0004|   Adopted_______________________ Not Adopted_______________________
    |
0005|             (Chief Clerk)                          (Chief Clerk)
    |
0006|   
    |
0007|   
    |
0008|                     Date ________________________
    |
0009|   
    |
0010|   
    |
0011|   The roll call vote was <u> 5 </u> For <u> 0 </u> Against
    |
0012|   Yes:  5
    |
0013|   No:        0
    |
0014|   Excused:   Carraro, Cisneros, Sanchez, Vernon
    |
0015|   Absent:    None
    |
0016|   
    |
0017|   
    |
0018|   S0091JU1
    |
0019|              SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR
    |
0020|                         SENATE BILL 91
    |
0021|     42nd legislature - STATE OF NEW MEXICO - second session, 1996
    |
0022|                                
    |
0023|     
    |
0024|     
    |
0025|                                
    |
0001|     
    |
0002|     
    |
0003|     
    |
0004|                             AN ACT
    |
0005|     RELATING TO HEALTH; REQUIRING A PERSON FORMALLY CHARGED FOR
    |
0006|     ALLEGEDLY COMMITTING CERTAIN CRIMINAL OFFENSES TO UNDERGO TESTS
    |
0007|     TO IDENTIFY SEXUALLY TRANSMITTED DISEASES AND THE HUMAN
    |
0008|     IMMUNODEFICIENCY VIRUS; PRESCRIBING PENALTIES FOR UNAUTHORIZED
    |
0009|     DISCLOSURE OF TEST RESULTS; AMENDING AND ENACTING SECTIONS OF
    |
0010|     THE NMSA 1978.
    |
0011|     
    |
0012|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
    |
0013|       Section 1.  A new Section 24-1-9.2 NMSA 1978 is enacted to
    |
0014|     read:
    |
0015|       "24-1-9.2.  [<u>NEW MATERIAL</u>]  SEXUALLY TRANSMITTED
    |
0016|     DISEASES--TESTING OF PERSONS FORMALLY CHARGED FOR ALLEGEDLY
    |
0017|     COMMITTING CERTAIN CRIMINAL OFFENSES.--
    |
0018|            A.  A test designed to identify any sexually
    |
0019|     transmitted disease may be performed on a person, upon the
    |
0020|     filing of a complaint, information or an indictment alleging
    |
0021|     that the person committed a state criminal offense:
    |
0022|                 (1)  involving contact between the penis and the
    |
0023|     vulva;
    |
0024|                 (2)  involving contact between the penis and anus;
    |
0025|                 (3)  involving contact between the mouth and
    |
0001|     penis;
    |
0002|                 (4)  involving contact between the mouth and
    |
0003|     vulva; or
    |
0004|                 (5)  involving contact between the mouth and anus.
    |
0005|            B.  If consent to perform a test on an alleged offender
    |
0006|     cannot be obtained, the victim of the alleged criminal offense
    |
0007|     described in Subsection A of this section may petition the
    |
0008|     court, through the prosecuting office or personally, to order
    |
0009|     that a test be performed on the alleged offender; provided that
    |
0010|     the same test is first performed on the victim of the alleged
    |
0011|     criminal offense.  The test may be performed on the alleged
    |
0012|     offender regardless of the result of the test performed on the
    |
0013|     victim of the alleged criminal offense.  If the victim of the
    |
0014|     alleged criminal offense is a minor or incompetent, the parent
    |
0015|     or legal guardian of the victim of the alleged criminal offense
    |
0016|     may petition the court to order that a test be performed on the
    |
0017|     alleged offender.
    |
0018|            C.  The court may issue an order based on a finding of
    |
0019|     good cause after a hearing at which both the victim of the
    |
0020|     alleged criminal offense and the alleged offender have the right to
    |
0021|     be present.  During the hearing, only affidavits, counter
    |
0022|     affidavits and medical reports regarding the facts that support or
    |
0023|     rebut the issuance of an order shall be admissible.  The hearing
    |
0024|     shall be conducted within seventy-two hours after the victim
    |
0025|     petitions the court for the order.  The petition and all
    |
0001|     proceedings in connection therewith shall be under seal.  The court
    |
0002|     shall issue an order and the test shall be administered to the
    |
0003|     alleged offender within ten days after the petition is filed by the
    |
0004|     victim of the alleged criminal offense, his parent or guardian.
    |
0005|            D.  The results of the test shall be disclosed only to the
    |
0006|     alleged offender and to the victim of the alleged criminal offense
    |
0007|     or the victim's parent or legal guardian.  When the victim of the
    |
0008|     alleged criminal offense or the alleged offender has a positive
    |
0009|     test result, both the alleged offender and the victim of the
    |
0010|     alleged criminal offense shall be provided with counseling.
    |
0011|            E.  A prosecuting attorney may not use in a criminal
    |
0012|     proceeding arising out of the alleged criminal offense the fact
    |
0013|     that a test was administered to the alleged offender or the results
    |
0014|     of the test.
    |
0015|            F.  The provisions of this section shall not affect the
    |
0016|     rights and remedies available to the victim of the alleged criminal
    |
0017|     offense and the alleged offender in any civil action. 
    |
0018|            G.  The administration of a test to an alleged offender
    |
0019|     pursuant to the provisions of this section shall not preclude the
    |
0020|     subsequent administration of another test pursuant to the
    |
0021|     provisions of Section 24-1-9.1 NMSA 1978."
    |
0022|       Section 2.  A new Section 24-1-9.3 NMSA 1978 is enacted to
    |
0023|     read:
    |
0024|       "24-1-9.3.  [<u>NEW MATERIAL</u>]  SEXUALLY TRANSMITTED DISEASES--MANDATORY COUNSELING.--No positive test result for a sexually
    |
0025|     transmitted disease shall be revealed to the person upon whom the
    |
0001|     test was performed without the person performing the test or the
    |
0002|     health facility at which the test was performed providing or
    |
0003|     referring that person for individual counseling about:
    |
0004|            A.  the meaning of the test results;
    |
0005|            B.  the possible need for additional testing;
    |
0006|            C.  the availability of appropriate health care services,
    |
0007|     including mental health care, social and support services; and
    |
0008|            D.  the benefits of locating and counseling any individual
    |
0009|     by whom the infected person may have been exposed to 
    |
0010|     the sexually transmitted disease and any individual whom the
    |
0011|     infected person may have exposed to the sexually transmitted 
    |
0012|     disease."
    |
0013|       Section 3.  A new Section 24-1-9.4 NMSA 1978 is enacted to
    |
0014|     read: 
    |
0015|       "24-1-9.4.  [<u>NEW MATERIAL</u>]  SEXUALLY TRANSMITTED DISEASES--
    |
0016|     CONFIDENTIALITY.--Except as provided in Section 24-1-9.2 NMSA 1978,
    |
0017|     no person or the person's agents or employees who require or
    |
0018|     administer a test for sexually transmitted diseases shall disclose
    |
0019|     the identity of any person upon whom a test is performed or the
    |
0020|     result of such a test in a manner that permits identification of
    |
0021|     the subject of the test, except to the following persons:
    |
0022|            A.  the subject of the test or the subject's legally
    |
0023|     authorized representative, guardian or legal custodian;
    |
0024|            B.  any person designated in a legally effective release
    |
0025|     of the test results executed prior to or after the test by the
    |
0001|     subject of the test or the subject's legally authorized
    |
0002|     representative;
    |
0003|            C.  an authorized agent, a credentialed or privileged phy-
    |
0004|     sician or employee of a health facility or health care provider if
    |
0005|     the health care facility or health care provider itself is autho-
    |
0006|     rized to obtain the test results, the agent or employee provides
    |
0007|     patient care or handles or processes specimens of body fluids or
    |
0008|     tissues and the agent or employee has a need to know such informa-
    |
0009|     tion;
    |
0010|            D.  the department of health and the centers for disease
    |
0011|     control and prevention of the United States public health service
    |
0012|     in accordance with reporting requirements for a diagnosed case of a
    |
0013|     sexually transmitted disease;
    |
0014|            E.  a health facility or health care provider that
    |
0015|     procures, processes, distributes or uses:
    |
0016|                 (1)  a human body part from a deceased person, with
    |
0017|     respect to medical information regarding that person;
    |
0018|                 (2)  semen for the purpose of artificial
    |
0019|     insemination;
    |
0020|                 (3)  blood or blood products for transfusion or
    |
0021|     injection; or
    |
0022|                 (4)  human body parts for transplant with respect to
    |
0023|     medical information regarding the donor or recipient;
    |
0024|            F.  health facility staff committees or accreditation or
    |
0025|     oversight review organizations that are conducting program
    |
0001|     monitoring, program evaluation or service reviews, as long as any
    |
0002|     identity remains confidential; 
    |
0003|            G.  authorized medical or epidemiological researchers who
    |
0004|     may not further disclose any identifying characteristics or
    |
0005|     information; and
    |
0006|            H.  for purposes of application or reapplication for
    |
0007|     insurance coverage, an insurer or reinsurer upon whose request the
    |
0008|     test was performed."
    |
0009|       Section 4.  A new Section 24-1-9.5 NMSA 1978 is enacted to
    |
0010|     read:
    |
0011|       "24-1-9.5.  [<u>NEW MATERIAL</u>]  SEXUALLY TRANSMITTED DISEASES--
    |
0012|     DISCLOSURE STATEMENT.--No person to whom the results of a test for
    |
0013|     sexually transmitted diseases have been disclosed may disclose the
    |
0014|     test results to another person, except as authorized in Sections
    |
0015|     24-1-9.4 and 24-1-9.6 NMSA 1978.  Whenever disclosure is made, it
    |
0016|     shall be accompanied by a statement in writing that includes the
    |
0017|     following or substantially similar language:  
    |
0018|       "This information has been disclosed to you from records whose
    |
0019|     confidentiality is protected by state law. State law prohibits you
    |
0020|     from making any further disclosure of such information without the
    |
0021|     specific written consent of the person to whom such information
    |
0022|     pertains, or as otherwise permitted by state law.  A person who
    |
0023|     makes an unauthorized disclosure of this information is guilty of a
    |
0024|     petty misdemeanor and shall be sentenced to imprisonment in the
    |
0025|     county jail for a definite term not to exceed six months or the
    |
0001|     payment of a fine of not more than five hundred dollars ($500), or
    |
0002|     both."."
    |
0003|       Section 5.  A new Section 24-1-9.6 NMSA 1978 is enacted to
    |
0004|     read:
    |
0005|       "24-1-9.6.  [<u>NEW MATERIAL</u>]  SEXUALLY TRANSMITTED DISEASES--DISCLOSURE.--A victim of an alleged criminal offense who receives
    |
0006|     information pursuant to Section 24-1-9.2 NMSA 1978 may disclose the
    |
0007|     test results as is reasonably necessary to protect his health and
    |
0008|     safety or the health and safety of his family or sexual partner."
    |
0009|       Section 6.  A new Section 24-1-9.7 NMSA 1978 is enacted to
    |
0010|     read:
    |
0011|       "24-1-9.7.  [<u>NEW MATERIAL</u>]  PENALTY.--A person who makes an
    |
0012|     unauthorized disclosure of the results of a test designed to
    |
0013|     identify a sexually transmitted disease is guilty of a petty
    |
0014|     misdemeanor and shall be sentenced to imprisonment in the county
    |
0015|     jail for a definite term not to exceed six months or the payment of
    |
0016|     a fine of not more than five hundred dollars ($500), or both."
    |
0017|       Section 7.  Section 24-2B-2 NMSA 1978 (being Laws 1989,
    |
0018|     Chapter 227, Section 2, as amended) is amended to read:
    |
0019|       "24-2B-2.  INFORMED CONSENT.--No person shall perform a test
    |
0020|     designed to identify the human immunodeficiency virus or its
    |
0021|     antigen or antibody without first obtaining the informed consent of
    |
0022|     the person upon whom the test is performed, except as provided in
    |
0023|     Section 24-2B-5, <s>[or]</s> 24-2B-5.1 <u>or 24-2B-5.2</u> NMSA 1978. 
    |
0024|     Informed consent shall be preceded by an explanation of the test,
    |
0025|     including its purpose, potential uses and limitations and the
    |
0001|     meaning of its results.  Consent need not be in writing provided
    |
0002|     there is documentation in the medical record that the test has been
    |
0003|     explained and the consent has been obtained."
    |
0004|       Section 8.  A new section of the Human Immunodeficiency Virus
    |
0005|     Test Act, Section 24-2B-5.2 NMSA 1978, is enacted to read:
    |
0006|       "24-2B-5.2.  [<u>NEW MATERIAL</u>]  INFORMED CONSENT NOT 
    |
0007|     REQUIRED--TESTING OF PERSONS FORMALLY CHARGED FOR ALLEGEDLY
    |
0008|     COMMITTING CERTAIN CRIMINAL OFFENSES--RESPONSIBILITY TO ADMINISTER
    |
0009|     AND PAY FOR TEST.--
    |
0010|            A.  A test designed to identify the human immunodeficiency
    |
0011|     virus or its antigen or antibody may be performed, without his
    |
0012|     consent, on a person upon the filing of a complaint, information or
    |
0013|     an indictment alleging that the person committed a state criminal
    |
0014|     offense:
    |
0015|                 (1)  involving contact between the penis and the
    |
0016|     vulva;
    |
0017|                 (2)  involving contact between the penis and anus;
    |
0018|                 (3)  involving contact between the mouth and penis;
    |
0019|                 (4)  involving contact between the mouth and vulva;
    |
0020|     or
    |
0021|                 (5)  involving contact between the mouth and anus.
    |
0022|            B.  If consent to perform a test on an alleged offender
    |
0023|     cannot be obtained pursuant to the provisions of Section 24-2B-2 or
    |
0024|     24-2B-3 NMSA 1978, the victim of the alleged criminal offense
    |
0025|     described in Subsection A of this section may petition the court,
    |
0001|     through the prosecuting office or personally, to order that a test
    |
0002|     be performed on the alleged offender; provided that the same test
    |
0003|     is first performed on the victim of the alleged criminal offense. 
    |
0004|     The test may be performed on the alleged offender regardless of the
    |
0005|     result of the test performed on the victim of the alleged offense. 
    |
0006|     If the victim of the alleged criminal offense is a minor or
    |
0007|     incompetent, the parent or legal guardian of the victim of the
    |
0008|     alleged criminal offense may petition the court to order that a
    |
0009|     test be performed on the alleged offender.
    |
0010|                 C.  The court may issue an order based on a finding of
    |
0011|     good cause after a hearing at which both the victim of the alleged
    |
0012|     criminal offense and the alleged offender have the right to be
    |
0013|     present.  During the hearing, only affidavits, counter affidavits
    |
0014|     and medical reports regarding the facts that support or rebut the
    |
0015|     issuance of an order shall be admissible.  The hearing shall be
    |
0016|     conducted within seventy-two hours after the victim of the alleged
    |
0017|     criminal offense petitions the court for the order.  The petition
    |
0018|     and all proceedings in connection therewith shall be under seal.  
    |
0019|     The court shall issue the order and the test shall be administered
    |
0020|     to the alleged offender within ten days after the petition is filed
    |
0021|     by the victim of the alleged offense, his parent or guardian.
    |
0022|            D.  The results of the test shall be disclosed only to the
    |
0023|     alleged offender and to the victim of the alleged criminal offense
    |
0024|     or the victim's parent or legal guardian.  When the victim of the
    |
0025|     alleged criminal offense or the alleged offender has a positive
    |
0001|     test result, both the alleged offender and the victim of the
    |
0002|     alleged criminal offense shall be provided with counseling, as
    |
0003|     described in Section 24-2B-4 NMSA 1978.
    |
0004|            E.  The court's order shall direct the department of
    |
0005|     health to be responsible for the administration of and payment for
    |
0006|     the test and the lawful distribution of the test results.
    |
0007|            F.  A prosecuting attorney may not use in a criminal
    |
0008|     proceeding arising out of the alleged criminal offense the fact
    |
0009|     that a test was administered to the alleged offender, or the
    |
0010|     results of the test.
    |
0011|            G.  The provisions of this section shall not affect the
    |
0012|     rights and remedies available to the victim of the alleged criminal
    |
0013|     offense and alleged offender in any civil action.
    |
0014|            H.  The administration of a test to an alleged offender
    |
0015|     pursuant to the provisions of this section shall not preclude the
    |
0016|     subsequent administration of another test pursuant to the
    |
0017|     provisions of Section 24-2B-5.1 NMSA 1978."
    |
0018|       Section 9.  Section 24-2B-7 NMSA 1978 (being Laws 1989,
    |
0019|     Chapter 227, Section 7) is amended to read:
    |
0020|       "24-2B-7.  DISCLOSURE STATEMENT.--No person to whom the
    |
0021|     results of a test have been disclosed may disclose the test results
    |
0022|     to another person except as authorized by the Human
    |
0023|     Immunodeficiency Virus Test Act.  Whenever disclosure is made
    |
0024|     pursuant to that act, it shall be accompanied by a statement in
    |
0025|     writing <s>[which]</s> <u>that</u> includes the following or substantially
    |
0001|     similar language:  "This information has been disclosed to you from
    |
0002|     records whose confidentiality is protected by state law. State law
    |
0003|     prohibits you from making any further disclosure of such
    |
0004|     information without the specific written consent of the person to
    |
0005|     whom such information pertains, or as otherwise permitted by state
    |
0006|     law. <u>A person who makes an unauthorized disclosure of this
</u>    |
<u></u>0007| <u>    information is guilty of a petty misdemeanor and shall be sentenced
</u>    |
<u></u>0008| <u>    to imprisonment in the county jail for a definite term not to
</u>    |
<u></u>0009| <u>    exceed six months or the payment of a fine of not more than five
</u>    |
<u></u>0010| <u>    hundred dollars ($500), or both</u>."
    |
0011|       Section 10.  Section 24-2B-8 NMSA 1978 (being Laws 1989, Chap-
    |
0012|     ter 227, Section 8) is amended to read:
    |
0013|       "24-2B-8. <s>[SELF]</s> DISCLOSURE.--Nothing in the Human
    |
0014|     Immunodeficiency Virus Test Act shall be construed to prevent a
    |
0015|     person who has been tested from disclosing in any way to any other
    |
0016|     person his own test results. <u>Any victim of an alleged criminal
</u>    |
<u></u>0017| <u>    offense who receives information pursuant to Section 24-2B-5.2 NMSA
</u>    |
<u></u>0018| <u>    1978 may disclose the test results as is reasonably necessary to
</u>    |
<u></u>0019| <u>    protect his health and safety or the health and safety of his
</u>    |
<u></u>0020| <u>    family or sexual partner</u>."
    |
0021|       Section 11.  A new section of the Human Immunodeficiency Virus
    |
0022|     Test Act, Section 24-2B-9 NMSA 1978, is enacted to read:
    |
0023|       "24-2B-9.  [<u>NEW MATERIAL</u>]  PENALTY.--A person who makes an
    |
0024|     unauthorized disclosure of the results of a test designed to
    |
0025|     identify the human immunodeficiency virus or its antigen or
    |
0001|     antibody is guilty of a petty misdemeanor and shall be sentenced to
    |
0002|     imprisonment in the county jail for a definite term not to exceed
    |
0003|     six months or the payment of a fine of not more than five hundred
    |
0004|     dollars ($500), or both."
    |
0005|       Section 12.  EFFECTIVE DATE.--The effective date of the
    |
0006|     provisions of this act is July 1, 1996.
    |
0007|                                                         State of New Mexico
    |
0008|                     House of Representatives
    |
0009|   
    |
0010|                     FORTY-SECOND LEGISLATURE
    |
0011|                       SECOND SESSION, 1996
    |
0012|   
    |
0013|   
    |
0014|                                               February 12, 1996
    |
0015|   
    |
0016|   
    |
0017|   Mr. Speaker:
    |
0018|   
    |
0019|       Your JUDICIARY COMMITTEE, to whom has been referred
    |
0020|   
    |
0021|           SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR
    |
0022|                          SENATE BILL 91
    |
0023|                                 
    |
0024|                                  has had it under consideration and reports same with
    |
0025|   recommendation that it DO PASS.
    |
0001|   
    |
0002|                                Respectfully submitted,
    |
0003|   
    |
0004|   
    |
0005|   
    |
0006|                                <u>                                 
</u>    |
<u></u>0007| <u>  </u>                            Cisco McSorley, Chairman
    |
0008|   
    |
0009|   
    |
0010|   Adopted <u>                    </u>    Not Adopted <u>                      </u>
    |
0011|            (Chief Clerk)                       (Chief Clerk)
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0012|   
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0013|                       Date <u>            </u>
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0014|   
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0015|   The roll call vote was<u> 10 </u> For<u> 0 </u> Against
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0016|   Yes:          10
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0017|   Excused: Alwin, Gubbels, Sanchez, R.G.
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0018|   Absent:  None
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0019|   
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0020|   
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0021|                                                                
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0022|   S0091JC1
    |