A. All records of the department, the department's designee, including a multidisciplinary team, the court and state and local agencies that are created or maintained pursuant to investigations under the Adult Protective Services Act or for whom application has ever been made for protection shall be confidential and shall not be disclosed directly or indirectly to the public.

B. The records described in Subsection A of this section shall be open to inspection only by persons with a legitimate interest in the records as follows:

(1) the alleged abused, neglected or exploited adult, or the adult's surrogate, except as to the identity of the referral source and second source information, such as medical or psychological evaluations;

(2) court personnel;

(3) law enforcement officials;

(4) department personnel;

(5) any state government social services agency in any other state;

(6) health care or mental health professionals involved in the evaluation, treatment, residential care or protection of the adult;

(7) parties and their counsel in all legal proceedings pursuant to the Adult Protective Services Act or legal actions pursuant to the Uniform Probate Code [45-1-101 NMSA 1978];

(8) persons who have been, or will be in the immediate future, providing care or services to the adult, except the alleged perpetrator of the abuse, neglect or exploitation;

(9) persons appointed by the court pursuant to the Uniform Probate Code to be the adult's guardian ad litem, guardian, conservator, visitor or qualified health care professional;

(10) any of the persons whom the department petitions the court appoint pursuant to the Uniform Probate Code;

(11) any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court; and

(12) protection and advocacy representatives pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act, Protection and Advocacy for Individuals with Mental Illness Act or the protection and advocacy of individual rights provisions of the Rehabilitation Act.

C. Records of cases involving substantiated abuse, neglect or exploitation shall be provided as appropriate to the department of health, the district attorney's office, the medicaid fraud control unit in New Mexico, the office of the attorney general and the office of the long-term care ombudsman for appropriate additional action.

D. Any person who intentionally, unlawfully releases any information or records closed to the public pursuant to this section or releases or makes other unlawful use of records in violation of this section is guilty of a misdemeanor.

E. The department may assess a civil penalty not to exceed ten thousand dollars ($10,000) per violation against any person that intentionally, unlawfully releases any information or records closed to the public pursuant to this section or releases or makes other unlawful use of records. The department may assess and collect the penalty, after notice and an opportunity for hearing before a hearing officer designated by the department to hear the matter, upon a determination that a person violated the provisions of this subsection. The hearing officer has the power to administer oaths on request of any party and issue subpoenas and subpoenas duces tecum. Additionally, if the violation is against a person covered by the Personnel Act [10-9-1 NMSA 1978], the department shall refer the matter to the agency employing the person for disciplinary action. Any party may appeal a final decision by the department to the court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.

History: Laws 1989, ch. 389, § 16; 1997, ch. 132, § 14; 2007, ch. 91, § 12.

Cross references. — For the federal Developmental Disabilities Assistance and Bill of Rights Act, see 42 U.S.C.S. § 6000 et seq.

For the federal Protection and Advocacy for Mentally Ill Individuals Act, see 42 U.S.C.S. § 10801 et seq.

The 2007 amendment, effective July 2, 2007, provided that records of the department's designee, including a multidisciplinary team, are confidential and provided that an adult's record may inspected by the adult's surrogate and protection and advocacy representatives pursuant to the protection and advocacy of individual rights provisions of the Rehabilitation Act; and authorized the department in new Subsection E, after a hearing, to assess a civil penalty of not to exceed $10,000 against a person who violates provisions of this section.

The 1997 amendment, effective June 20, 1997, substituted "the court, state and local agencies and protective services agencies that are created or maintained pursuant to investigations" for "that are protected" in Subsection A; rewrote Subsection B; substituted "department of health, the district attorney's office" for "health and environment department" in Subsection C; and deleted "petty" preceding "misdemeanor" in Subsection D.