2019 New Mexico Statutes
Chapter 32A - Children's Code
Article 6A - Children's Mental Health and Developmental Disabilities
Section 32A-6A-12 - Personal rights of a child in an out-of-home treatment or habilitation program; scope.
A. A child in an out-of-home treatment or habilitation program shall have, in addition to other rights set forth in the Children's Mental Health and Developmental Disabilities Act, the right to:
(1) be placed in a manner consistent with the least restrictive means principle;
(2) have access to the state's designated protection and advocacy system and access to an attorney of the child's choice, provided that the child is not entitled to appointment of an attorney at public expense, except as otherwise provided in Subsection C of Section 32A-6A-13 NMSA 1978;
(3) receive visitors of the child's own choosing on a daily basis, subject to restrictions imposed in the best interests of the child by the child's clinician for good cause. Hours during which visitors may be received shall be limited only in the interest of effective treatment and the reasonable efficiency of the program and shall be sufficiently flexible to accommodate the individual needs of the child and the child's visitors. Notwithstanding the provisions of this subsection, each child has the right to receive visits from the child's attorney; physician; physician assistant, advanced practice registered nurse or certified nurse-midwife working within that person's scope of practice; psychologist; clergy; guardian ad litem; or representatives from the state's protection and advocacy system or children, youth and families department in private at any reasonable time, irrespective of visiting hours, provided the visitor shows reasonable cause for visiting at times other than normal visiting hours;
(4) have writing materials and postage stamps reasonably available for the child's use in writing letters and other communications. Reasonable assistance shall be provided for writing, addressing and posting letters and other documents upon request. The child has the right to send and receive sealed and uncensored mail. The child has the right to reasonable private access to telephones, and, in cases of personal emergencies when other means of communication are not satisfactory, the child shall be afforded reasonable use of long distance calls; provided that for other than mail or telephone calls to a court; an attorney; a physician; a physician assistant, advanced practice registered nurse or certified nurse-midwife working within that person's scope of practice; a psychologist; clergy; a guardian ad litem; a representative from the state's protection and advocacy system; or a social worker, mailing or telephone privileges may be restricted by the child's clinician for good cause shown. A child who is indigent shall be furnished writing, postage and telephone facilities without charge;
(5) reasonable access to a legal custodian and a family member through visitation, videoconferencing, telephone access and opportunity to send and receive mail. In-person visitation is preferred, and reasonable efforts shall be made to facilitate such visitation unless the child and family choose otherwise. Access by legal custodians and family members to the child shall be limited only in the interest of effective treatment and the reasonable efficiency of the program and shall be sufficiently flexible to accommodate the individual needs of legal custodians and family members. Treatment needs that justify limitation on the access rights of a legal custodian or family member must be specifically documented by the clinician in the child's record, and any such limitation automatically expires in seven days;
(6) follow or abstain from the practice of religion. The program shall provide appropriate assistance in this connection, including reasonable accommodations for religious worship and transportation to nearby religious services. A child who does not wish to participate in religious practice shall be free from pressure to do so or to accept religious beliefs;
(7) a humane psychological and physical environment. The child shall be provided a comfortable bed and adequate changes of linen and reasonable secure storage space for personal possessions. Except when curtailed for reasons of safety or therapy as documented in the child's record by the child's physician, the child shall be afforded reasonable privacy in sleeping and personal hygiene practices;
(8) reasonable daily opportunities for physical exercise and outdoor exercise and reasonable access to recreational areas and equipment, including equipment adapted to the child's developmental and physical needs;
(9) a nourishing, well-balanced, varied and appetizing diet;
(10) prompt and adequate medical attention for a physical ailment. Each child shall receive a complete physical examination upon admission, except when documentation is provided that the child has had such examination within the six months immediately prior to the current admission. Each child shall receive a complete physical examination every twelve months thereafter;
(11) a clean, safe and comfortable environment in a structure that complies with applicable fire and safety requirements;
(12) appropriate medication and freedom from unnecessary or excessive medication. Medication shall not be used as discipline, as a substitute for programs, for the convenience of staff or in quantities that interfere with the child's treatment or habilitation program. No medication shall be administered unless by written order of a clinician licensed to prescribe medication or by an oral order noted immediately in the patient's medical record and signed by that clinician within twenty-four hours. All prescriptions for psychotropic medications must be reviewed at least every thirty days. Notation of each child's medication shall be kept in the child's medical records and shall include a notation by the clinician licensed to prescribe medication of the behavioral or symptomatic baseline data upon which the medication order was made; and
(13) a free public education. The child shall be educated in regular classes with nondisabled children whenever appropriate. In no event shall a child be allowed to remain in an out-of-home treatment or habilitation program for more than ten days without receiving educational services. If the child's placement in an out-of-home treatment or habilitation program is required by an individualized education plan that conforms to the requirements of state and federal law, the sending school is responsible for the provision of education to the child. In all other situations, the local school district in which the out-of-home treatment or habilitation program is located is responsible for the provision of educational services to the child. Nothing in this subsection shall limit a child's right to public education under state, tribal or federal law.
B. A child receiving services in an out-of-home treatment or habilitation program, including but not limited to residential treatment or habilitation programs, shall be provided notice of rights immediately upon admission to such program.
History: Laws 2007, ch. 162, § 12; 2015, ch. 116, § 12.
ANNOTATIONSCross references. — For personal rights of residential clients applicable to the Adult Mental Health and Developmental Disabilities Code, see 43-1-6 NMSA 1978.
For provisions of the 1995 Children's Mental Health and Developmental Disabilities Act, relating to personal rights of children, see the 2006 NMSA 1978 (32A-6-6) on NMOneSource.com.
The 2015 amendment, effective June 19, 2015, amended the Children's Mental Health and Developmental Disabilities Act provision, relating to children's rights, by including other health care professionals with each reference to "physician"; in Paragraph (2) of Subsection A, after "Section", deleted "13 of the Children's Mental Health and Developmental Disabilities Act" and added "32A-6A-13 NMSA 1978"; in Paragraph (3) of Subsection A, after "child's attorney; physician", added "physician assistant, advanced practice registered nurse or certified nurse-midwife working within that person's scope of practice"; and in Paragraph (4) of Subsection A, after "attorney; a physician", added "a physician assistant, advanced practice registered nurse or certified nurse-midwife working within that person's scope of practice", and after "psychologist", deleted "a".
Temporary provisions. — Laws 2015, ch. 116, § 16 provided that by January 1, 2016, every cabinet secretary, agency head and head of a political subdivision of the state shall update rules requiring an examination by, a certificate from or a statement of a licensed physician to also accept such examination, certificate or statement from an advanced practice registered nurse, certified nurse-midwife or physician assistant working within that person's scope of practice.
