A. Except as otherwise provided in the code, no person shall, without the authorization of the client, disclose or transmit any confidential information from which a person well acquainted with the client might recognize the client as the described person, or any code, number or other means that can be used to match the client with confidential information regarding the client.
B. Authorization from the client shall not be required for the disclosure or transmission of confidential information in the following circumstances:
(1) when the request is from a mental health or developmental disabilities professional or from an employee or trainee working with a person with a mental disability or developmental disability, to the extent that the practice, employment or training on behalf of the client requires access to such information is necessary;
(2) when such disclosure is necessary to protect against a clear and substantial risk of imminent serious physical injury or death inflicted by the client on the client's self or another;
(3) when the disclosure is made pursuant to the provisions of the Assisted Outpatient Treatment Act [43-1B-1 to 43-1B-14 NMSA 1978], using reasonable efforts to limit protected health information to that which is minimally necessary to accomplish the intended purpose of the use, disclosure or request;
(4) when the disclosure of such information is to the primary caregiver of the client and the disclosure is only of information necessary for the continuity of the client's treatment in the judgment of the treating physician or certified psychologist who discloses the information;
(5) when such disclosure is to an insurer contractually obligated to pay part or all of the expenses relating to the treatment of the client at the residential facility. The information disclosed shall be limited to data identifying the client, facility and treating or supervising physician and the dates and duration of the residential treatment. It shall not be a defense to an insurer's obligation to pay that the information relating to the residential treatment of the client, apart from information disclosed pursuant to this section, has not been disclosed to the insurer;
(6) when the request is from a physician, a licensed psychologist or a qualified mental health professional licensed for independent practice and responsible for the continuity of care of inmates with a mental or developmental disability who are in a jail or corrections facility, and the disclosure is only of information necessary for the continuity of the client's treatment in the judgment of an equally qualified treating professional who discloses the information;
(7) when such disclosure is by a physician, a licensed psychologist or a qualified mental health professional licensed for independent practice and responsible for the treatment of inmates in a jail or corrections facility to another equally qualified treating professional responsible for the continuation of care of the inmate upon the inmate's release from a jail or corrections facility, and the disclosure is only of information necessary for the continuity of the client's treatment in the judgment of the treating professional who discloses the information; or
(8) when the disclosure is made to a governmental agency, its agent or a state educational institution, a duly organized state or county association of licensed physicians or dentists, a licensed health facility or staff committees of such a facility for the purpose of research, subject to the provisions of Section 14-6-1 NMSA 1978 and subject to the review of an institutional review board in compliance with the federal Health Insurance Portability and Accountability Act of 1996 or any succeeding legislation.
C. No authorization given for the transmission or disclosure of confidential information shall be effective unless it:
(1) is in writing and signed; and
(2) contains a statement of the client's right to examine and copy the information to be disclosed, the name or title of the proposed recipient of the information and a description of the use that may be made of the information.
D. The client has a right of access to confidential information and has the right to make copies of any information and to submit clarifying or correcting statements and other documentation of reasonable length for inclusion with the confidential information. The statements and other documentation shall be kept with the relevant confidential information, shall accompany it in the event of disclosure and shall be governed by the provisions of this section to the extent they contain confidential information. Nothing in this subsection shall prohibit the denial of access to such records when a physician or other mental health or developmental disabilities professional believes and notes in the client's medical records that such disclosure would not be in the best interests of the client. In any such case, the client has the right to petition the court for an order granting such access.
E. Where there exists evidence that the client whose consent to disclosure of confidential information is sought is incapable of giving or withholding valid consent and the client does not have a guardian or treatment guardian appointed by a court, the person seeking such authorization shall petition the court for the appointment of a treatment guardian to make a substitute decision for the client, except that if the client is less than fourteen years of age, the client's parent or guardian is authorized to consent to disclosure on behalf of the client.
F. Information concerning a client disclosed under this section shall not be released to any other person, agency or governmental entity or placed in files or computerized data banks accessible to any persons not otherwise authorized to obtain information under this section.
G. Nothing in the code shall limit the confidentiality rights afforded by federal statute or regulation.
H. A person appointed as a treatment guardian in accordance with the Mental Health and Developmental Disabilities Code may act as the client's personal representative pursuant to the federal Health Insurance Portability and Accountability Act of 1996, Sections 1171-1179 of the Social Security Act, 42 U.S.C. Section 1320d, as amended, and applicable federal regulations to obtain access to the client's protected health information, including mental health information and relevant physical health information, and may communicate with the client's health care providers in furtherance of such treatment.
History: 1953 Comp., § 34-2A-8, enacted by Laws 1977, ch. 279, § 18; 1989, ch. 128, § 5; 1993, ch. 77, § 232; 2007, ch. 46, § 44; 2009, ch. 159, § 19; 2016, ch. 84, § 16; 2019, ch. 192, § 4.
ANNOTATIONSCompiler's notes. — For the meaning of "code", see 43-1-3C and 43-1-2 NMSA 1978.
Cross references. — For the Federal Health Insurance Portability and Accountability Act of 1996, see 42 U.S.C. § 300gg et seq.
The 2019 amendment, effective July 1, 2019, provided additional circumstances where the authorization from the client is not required to disclose or transmit confidential information regarding the client; and added Paragraphs B(6) through B(8).
The 2016 amendment, effective July 1, 2016, provided for the unauthorized disclosure of information made pursuant to the Assisted Outpatient Treatment Act under certain circumstances; and in Subsection B, added new Paragraph (3) and redesignated the succeeding paragraphs accordingly.
The 2009 amendment, effective June 19, 2009, added Subsection H.
The 2007 amendment, effective June 15, 2007, made non-substantive language changes.
The 1998 amendment, effective on May 20, 1998, substituted "that" for "which" preceding "may" in Paragraph C(2), and deleted Subsection H.
The 1993 amendment, effective July 1, 1993, deleted former Subsection B(3), which read "when the disclosure of such information to the parent or the legal guardian is essential for the treatment of the minor", and redesignated former Paragraphs (4) and (5) of Subsection B as present Paragraphs (3) and (4).
The 1989 amendment, effective June 16, 1989, substituted "the code" for "this code" in Subsections A and G; in Subsection B added present Paragraph (4) and redesignated former Paragraph (4) as present Paragraph (5); and made minor stylistic changes throughout the section.
Law reviews. — For article, "Disclosure of Medical Information - Criminal Prosecution of Medicaid Fraud in New Mexico," see 9 N.M.L. Rev. 321 (1979).
For article, "Treating Children Under the New Mexico Mental Health and Developmental Disabilities Code," see 10 N.M.L. Rev. 279 (1980).