Human Immunodeficiency Virus Tests

NMSA 1978 ch. 24, art. 2B

in effect

NMSA 1978, § 24-2B-1 Short title

24-2B-1. Short title Chapter 24, Article 2B NMSA 1978 may be cited as the "Human Immunodeficiency Virus Test Act". Laws 1989, ch. 227, § 1; 1993, ch. 107, § 1.

NMSA 1978, § 24-2B-2 Informed consent

24-2B-2. Informed consent No person shall perform a test designed to identify the human immunodeficiency virus or its antigen or antibody without first obtaining the informed consent of the person upon whom the test is performed, except as provided in Section 24-2B-5, 24-2B-5.1, 24-2B-5.2 or 24-2B-5.3 NMSA 1978. Informed consent shall be preceded by an explanation of the test, including its purpose, potential uses and limitations and the meaning of its results. Consent need not be in writing if there is documentation in the medical record that the test has been explained and the consent has been obtained. The requirement for full pre-test counseling may be waived under the following circumstances: A. the performance of a prenatal test to determine if the human immunodeficiency virus or its antigen is present in a pregnant woman; provided that the woman, or her authorized representative, after having been informed of the option to decline the human immunodeficiency virus test, may choose not to have the human immunodeficiency virus test performed as a part of the routine prenatal testing if she or her authorized representative provides a written statement as follows: "I am aware that a test to identify the human immunodeficiency virus or its antigen or antibody is a part of routine prenatal testing. However, I voluntarily and knowingly choose not to have the human immunodeficiency virus test performed. _______________________________________________ (Name of patient or authorized representative) _______________________________________________ (Signature and date)."; or B. when human immunodeficiency virus testing is part of routine medical care. Laws 1989, ch. 227, § 2; 1993, ch. 107, § 2; 1996, ch. 80, § 7; 2000, ch. 36, § 1; 2007, ch. 108, § 1.

NMSA 1978, § 24-2B-3 Substituted consent

24-2B-3. Substituted consent Informed consent shall be obtained from a legal guardian or other person authorized by law when the person is not competent. A minor shall have the capacity to give informed consent to have the human immunodeficiency virus test performed on himself. Laws 1989, ch. 227, § 3.

NMSA 1978, § 24-2B-4 Mandatory counseling

24-2B-4. Mandatory counseling No positive test result shall be revealed to the person upon whom the test was performed without providing or referring that person for individual counseling about: A. the meaning of the test results; B. the possible need for additional testing; C. the availability of appropriate health care services, including mental health care, social and support services; and D. the benefits of locating and counseling any individual by whom the infected person may have been exposed to the human immunodeficiency virus and any individual whom the infected person may have exposed to the human immunodeficiency virus. Laws 1989, ch. 227, § 4; 2013, ch. 72, § 1.

NMSA 1978, § 24-2B-5 Informed consent not required

24-2B-5. Informed consent not required Informed consent for testing is not required and the provisions of Section 24-2B-2 NMSA 1978 do not apply for: A. a health care provider or health facility performing a test on the donor or recipient when the health care provider or health facility procures, processes, distributes or uses a human body part, including tissue and blood or blood products, donated for a purpose specified under the Uniform Anatomical Gift Act [repealed] or for transplant recipients or semen provided for the purpose of artificial insemination and the test is necessary to ensure medical acceptability of a recipient or the gift or semen for the purposes intended; B. the performance of a test in bona fide medical emergencies when the subject of the test is unable to grant or withhold consent and the test results are necessary for medical diagnostic purposes to provide appropriate emergency care or treatment, except that post-test counseling or referral for counseling shall nonetheless be required when the individual is able to receive that post-test counseling. Necessary treatment shall not be withheld pending test results; C. the performance of a test for the purpose of research if the testing is performed in a manner by which the identity of the test subject is not known and may not be retrieved by the researcher; or D. the performance of a test done in a setting where the identity of the test subject is not known, such as in public health testing programs and sexually transmitted disease clinics. Laws 1989, ch. 227, § 5; 2000, ch. 36, § 2; 2003, ch. 342, § 1; 2007, ch. 108, § 2.

NMSA 1978, § 24-2B-5.1 Informed consent not required; testing of persons convicted of certain criminal offenses; responsibility to administer and pay for test

24-2B-5.1. Informed consent not required; testing of persons convicted of certain criminal offenses; responsibility to administer and pay for test A. A test designed to identify the human immunodeficiency virus or its antigen or antibody may be performed, without the offender's consent, on an offender convicted pursuant to state law of any criminal offense: (1) involving contact between the penis and vulva; (2) involving contact between the penis and anus; (3) involving contact between the mouth and penis; (4) involving contact between the mouth and vulva; (5) involving contact between the mouth and anus; or (6) when the court determines from the facts of the case that there was a transmission or likelihood of transmission of blood, semen or vaginal secretions from the offender to the victim. B. If consent to perform a test on an offender cannot be obtained pursuant to the provisions of Section 24-2B-2 or 24-2B-3 NMSA 1978, the district attorney or other prosecutorial authority shall, upon the request of the victim of a criminal offense described in Subsection A of this section, petition the court to order that a test be performed on the offender not later than forty-eight hours from the date of the court order. If the victim of the criminal offense is a minor or incompetent, the parent or legal guardian of the victim may request the district attorney or other prosecutorial authority to petition the court to order that a test be performed on the offender. The petition and all proceedings in connection with the petition shall be under seal. The results of the test shall be disclosed as soon as practicable and only to the offender and to the victim or the victim's parent or legal guardian. If the offender has a positive test result, both the offender and victim shall be provided with counseling, as described in Section 24-2B-4 NMSA 1978. C. If the offender is sentenced to imprisonment in a state corrections facility, the court's order shall direct the department of health to be responsible for the administration of and payment for the test and the lawful distribution of the test results. D. If the offender is convicted of a misdemeanor or petty misdemeanor offense or is convicted of a felony offense that is suspended or deferred, the court's order shall direct the department of health to be responsible for the administration of and payment for the test and the lawful distribution of the test results. E. If the offender is a minor adjudicated as a delinquent child pursuant to the provisions of the Children's Code [Chapter 32A NMSA 1978] and the court transfers legal custody of the minor to the children, youth and families department, the court's order shall direct the children, youth and families department to be responsible for the administration of and payment for the test and the lawful distribution of the test results. F. If the offender is a minor adjudicated as a delinquent child pursuant to the provisions of the Children's Code and the court does not transfer legal custody of the minor to the children, youth and families department, the court's order shall direct the department of health to be responsible for the administration of and payment for the test and the lawful distribution of the test results. 1978 Comp., § 24-2B-5.1, enacted by Laws 1993, ch. 107, § 3; 2010, ch. 26, § 1.

NMSA 1978, § 24-2B-5.2 Informed consent not required; testing of persons formally charged for allegedly committing certain criminal offenses; responsibility to administer and pay for test

24-2B-5.2. Informed consent not required; testing of persons formally charged for allegedly committing certain criminal offenses; responsibility to administer and pay for test A. A test designed to identify the human immunodeficiency virus or its antigen or antibody may be performed, without the person's consent, on a person upon the filing of a complaint, information or an indictment alleging that the person committed a state criminal offense: (1) involving contact between the penis and vulva; (2) involving contact between the penis and anus; (3) involving contact between the mouth and penis; (4) involving contact between the mouth and vulva; or (5) involving contact between the mouth and anus. B. If consent to perform a test on an alleged offender cannot be obtained pursuant to the provisions of Section 24-2B-2 or 24-2B-3 NMSA 1978, the district attorney or other prosecutorial authority shall, upon the request of the victim of the alleged criminal offense described in Subsection A of this section, petition the court to order that a test be performed on the alleged offender not later than forty-eight hours from the date of the court order; provided that the same test is first performed on the victim of the alleged criminal offense. If the victim of the alleged criminal offense is a minor or incompetent, the parent or legal guardian of the victim of the alleged criminal offense may request the district attorney or other prosecutorial authority to petition the court to order that a test be performed on the alleged offender. The test may be performed on the alleged offender regardless of the result of the test performed on the victim of the alleged offense. C. The court may issue an order based on a finding of good cause after a hearing at which both the victim of the alleged criminal offense and the alleged offender have the right to be present. During the hearing, only affidavits, counter affidavits and medical reports regarding the facts that support or rebut the issuance of an order shall be admissible. The hearing shall be conducted within seventy-two hours after the district attorney or other prosecutorial authority petitions the court for the order. The petition and all proceedings in connection therewith shall be under seal. D. The results of the test shall be disclosed as soon as practicable and only to the alleged offender and to the victim of the alleged criminal offense or the victim's parent or legal guardian. When the victim of the alleged criminal offense or the alleged offender has a positive test result, both the alleged offender and the victim of the alleged criminal offense shall be provided with counseling, as described in Section 24-2B-4 NMSA 1978. E. The court's order shall direct the department of health to be responsible for the administration of and payment for the test and the lawful distribution of the test results. F. A prosecuting attorney may not use in a criminal proceeding arising out of the alleged criminal offense the fact that a test was administered to the alleged offender or the results of the test. G. The provisions of this section shall not affect the rights and remedies available to the victim of the alleged criminal offense and alleged offender in any civil action. H. The administration of a test to an alleged offender pursuant to the provisions of this section shall not preclude the subsequent administration of follow-up tests pursuant to the provisions of Section 24-2B-5.1 NMSA 1978. 1978 Comp., § 24-2B-5.2, enacted by Laws 1996, ch. 80, § 8; 2010, ch. 26, § 2.

NMSA 1978, § 24-2B-5.3 Informed consent not required; testing of persons who are source individuals

24-2B-5.3. Informed consent not required; testing of persons who are source individuals A. As used in this section: (1) "exposed individual" means a health care provider, first responder or other person, including an employee, volunteer or independent contracted agent of a health care provider or law enforcement agency, while acting within the scope of his employment; or a person who, while receiving services from a health care provider, is significantly exposed to the blood or other potentially infectious material of another person, when the exposure is proximately the result of the activity of the exposed individual or receipt of health care services from the source individual; (2) "significantly exposed" means direct contact with blood or other potentially infectious material of a source individual in a manner that is capable of transmitting the human immunodeficiency virus; and (3) "source individual" means a person whose blood or other potentially infectious material may have been or has been the source of a significant exposure. B. A test designed to identify the human immunodeficiency virus or its antigen or antibody may be performed without the consent of a source individual when an exposed individual is significantly exposed. C. If consent to perform a test on a source individual cannot be obtained pursuant to the provisions of Section 24-2B-2 or 24-2B-3 NMSA 1978, the exposed individual may petition the court to order that a test be performed on the source individual; provided that the same test shall first be performed on the exposed individual. The test may be performed on the source individual regardless of the result of the test performed on the exposed individual. If the exposed individual is a minor or incompetent, the parent or guardian may petition the court to order that a test be performed on the source individual. D. The court may issue an order based on a finding of good cause after a hearing at which both the source individual and the exposed individual have the right to be present. The hearing shall be conducted within seventy-two hours after the petition is filed. The petition and all proceedings in connection with the petition shall be under seal. The test shall be administered on the source individual within three days after the order for testing is entered. E. The results of the test shall be disclosed only to the source individual and the exposed or the exposed individual's parent or guardian. When the source individual or the exposed individual has a positive test result, both shall be provided with counseling as provided in Section 24-2B-4 NMSA 1978. 1978 Comp., § 24-2B-5.3, enacted by Laws 2000, ch. 36, § 3.

NMSA 1978, § 24-2B-6 Confidentiality

24-2B-6. Confidentiality A. No person or the person's agents or employees who require or administer the test shall disclose the identity of any person upon whom a test is performed or the result of such a test in a manner that permits identification of the subject of the test, except to the following persons: (1) the subject of the test or the subject's legally authorized representative, guardian or legal custodian; (2) any person designated in a legally effective release of the test results executed prior to or after the test by the subject of the test or the subject's legally authorized representative; (3) an authorized agent, a credentialed or privileged physician or employee of a health facility or health care provider if the health care facility or health care provider itself is authorized to obtain the test results, the agent or employee provides patient care or handles or processes specimens of body fluids or tissues and the agent or employee has a need to know such information; (4) the department of health in accordance with reporting requirements established by regulation; (5) the department of health for the purpose of providing partner services; (6) a health facility or health care provider that procures, processes, distributes or uses: (a) a human body part from a deceased person, with respect to medical information regarding that person; (b) semen provided prior to the effective date of the Human Immunodeficiency Virus Test Act for the purpose of artificial insemination; (c) blood or blood products for transfusion or injection; or (d) human body parts for transplant with respect to medical information regarding the donor or recipient; (7) health facility staff committees or accreditation or oversight review organizations that are conducting program monitoring, program evaluation or service reviews, so long as any identity remains confidential; (8) authorized medical or epidemiological researchers who may not further disclose any identifying characteristics or information; and (9) for purposes of application or reapplication for insurance coverage, an insurer or reinsurer upon whose request the test was performed. B. The department of health may disclose human immunodeficiency virus test results, including the identity of any person upon whom a test is performed: (1) to the subject of the test or the subject's legally authorized representative, guardian or legal custodian; (2) to the person who ordered the test or that person's agents or employees; (3) in the conduct of public health practice, to appropriate municipal, county, state, federal or tribal public health agencies having at least equivalent security and confidentiality standards for human immunodeficiency virus test results as maintained by the department of health; and (4) to health care personnel where necessary to protect the health of the individual who is the subject of the test or an individual who was significantly exposed to the subject of the test, provided that the health care personnel first provide to the department of health for review relevant medical records or other written attestations that document the need for access to the person's confidential human immunodeficiency virus test results. C. For the purposes of this section: (1) "partner services" means a protocol that the department of health establishes by regulation similar to those protocols and regulations for other reportable sexually transmitted diseases for contacting individuals whom it identifies to be at risk of human immunodeficiency virus infection due to contact with an individual whom it has identified, through reporting made pursuant to Paragraph (4) or (5) of Subsection A of this section, as having been infected with human immunodeficiency virus; (2) "test" means a procedure that definitively diagnoses the presence of human immunodeficiency virus infection, either through the detection of the virus itself or the detection of antibodies against the virus; and (3) "public health practice" means a population-based activity or individual effort aimed primarily at the prevention of injury, disease or premature mortality or the promotion of health in a community, including: (a) surveillance and response; and (b) developing public health policy. Laws 1989, ch. 227, § 6; 1997, ch. 214, § 1; 2010, ch. 4, § 1; 2013, ch. 72, § 2.

NMSA 1978, § 24-2B-7 Disclosure statement

24-2B-7. Disclosure statement No person to whom the results of a test have been disclosed may disclose the test results to another person except as authorized by the Human Immunodeficiency Virus Test Act. Whenever disclosure is made pursuant to that act, it shall be accompanied by a statement in writing that includes the following or substantially similar language: "This information has been disclosed to you from records whose confidentiality is protected by state law. State law prohibits you from making any further disclosure of such information without the specific written consent of the person to whom such information pertains, or as otherwise permitted by state law. A person who makes an unauthorized disclosure of this information is guilty of a petty misdemeanor and shall be sentenced to imprisonment in the county jail for a definite term not to exceed six months or the payment of a fine of not more than five hundred dollars ($500), or both." Laws 1989, ch. 227, § 7; 1996, ch. 80, § 9.

NMSA 1978, § 24-2B-8 Disclosure

24-2B-8. Disclosure Nothing in the Human Immunodeficiency Virus Test Act shall be construed to prevent a person who has been tested from disclosing in any way to any other person his own test results. Any victim of an alleged criminal offense who receives information pursuant to Section 24-2B-5.2 NMSA 1978 may disclose the test results as is reasonably necessary to protect his health and safety or the health and safety of his family or sexual partner. Laws 1989, ch. 227, § 8; 1996, ch. 80, § 10.

NMSA 1978, § 24-2B-9 Penalty

24-2B-9. Penalty A person who makes an unauthorized disclosure of the results of a test designed to identify the human immunodeficiency virus or its antigen or antibody is guilty of a petty misdemeanor and shall be sentenced to imprisonment in the county jail for a definite term not to exceed six months or the payment of a fine of not more than five hundred dollars ($500), or both. 1978 Comp., § 24-2B-9, enacted by Laws 1996, ch. 80, § 11.

Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18524/index.doFetched: 10/20/2026