Rule jsc-23. Medical examinations, psychological evaluations, and drug and alcohol testing.

A. Requirement to undergo examination. If, at any stage of a proceeding, it appears that a judge has, or may have, a disability seriously interfering with the performance of the duties of office, the Commission may, upon issuance and service of a notice of investigation, and receipt of the judge’s response to a notice of investigation, order the judge to undergo a medical examination or a psychological evaluation by an appropriate, licensed medical or mental health provider of the Commission’s choice. If the Commission is seeking the judge’s temporary suspension or other interim relief pursuant to Rule 24, receipt of the judge’s response to a notice of investigation is not required before issuance of a Rule 23 Order. The provider shall report findings to the Commission, investigative trial counsel, and the judge. B. Drug and alcohol tests. A judge may be ordered to submit to drug/alcohol testing for any of the reasons set forth in the New Mexico Judicial Branch drug/alcohol testing policy. Testing shall be conducted in accordance with the Commission's drug/alcohol testing protocols published on the Commission's website, a copy of which shall be served upon the judge along with the order. C. Examination or test at judge’s election. A judge may submit to a medical examination, a psychological evaluation, or a drug/alcohol test with a qualified provider of the judge’s choice. D. Payment. Any examination, evaluation or test conducted pursuant to paragraphs A or B, or C above, shall be paid by the party initiating the examination, evaluation, or test. E. Judge to provide waivers and releases. The judge shall provide the Commission with: (1) All waivers and releases necessary to authorize the Commission to obtain all records, reports, test results, and other information from any medical or mental health provider or drug/alcohol testing facility to which the judge is ordered to submit, or which is selected by the judge. (2) Names and contact information for all medical and mental health providers from which the judge has received medical or mental health treatment and waivers and releases for each provider so identified. (3) Notices of all medical examinations, psychological evaluations, and drug/alcohol tests by providers of the judge’s choice. F. Subpoenas. If the judge fails to provide the Commission with all waivers and releases necessary to authorize the Commission to receive all records, reports, test results, and information from any medical or mental health provider regarding the judge's physical or psychological condition or drug/alcohol testing facility regarding testing, the Commission may issue a subpoena or may otherwise order the medical and mental health provider or drug/alcohol testing facility to provide it with such records, reports, results, and information. The Commission shall promptly provide the judge with a copy of each subpoena or order served on a provider. The Commission shall promptly inform each provider that a judge has been provided a copy of the subpoena or order served on that provider. G. Other records. Pursuant to this Rule, the Commission may obtain medical and mental health records from the judge’s treating providers, and may obtain the results of alcohol and drug testing conducted, other than in accordance with this Rule. The judge is required to provide releases and waivers therefore as set forth herein. The Commission may issue subpoenas for such records as set forth herein. H. Confidentiality of records. All medical, mental health, and alcohol and drug testing records obtained by the Commission pursuant to this Rule shall be kept confidential. The Commission shall notify all consultants who are provided access to these records that these records shall be protected by the requirements of the Health Insurance Portability and Accountability Act, Pubic Law No. 104-191, 110 Stat. 2936 (“HIPAA”) The Commission shall require all persons who have access to these records to keep them confidential pursuant to HIPAA. I. Limit in scope and time. All waivers and releases as set forth in Rule 23(E), all subpoenas as set forth in Rule 23(F) and all other records as set forth in Rule 23(G) shall be limited in scope and time to issues relevant to the proceedings before the Commission. J. Copies to judge. Copies of all records obtained by the Commission pursuant to this rule shall be provided to the judge. K. Failure to participate. Failure or refusal of a judge to submit to a medical examination, a psychological evaluation, or a drug/alcohol test, or to provide releases or waivers as set forth herein as requested, may be a failure to cooperate with the Commission in violation of Rule 11 of these rules and the Code, Rule 21-216 NMRA.