SB0423

SENATE BILL 423

56th legislature - STATE OF NEW MEXICO - first session, 2023

INTRODUCED BY

Nancy Rodriguez

AN ACT

RELATING TO FINANCE; AMENDING THE BEHAVIORAL HEALTH CAPITAL FUNDING ACT, THE PRIMARY CARE CAPITAL FUNDING ACT AND THE CHILD CARE FACILITY LOAN ACT; MOVING THE PRIMARY CARE CAPITAL FUND TO THE NEW MEXICO FINANCE AUTHORITY; ALLOWING FOR THE PROVISION OF OPERATING CAPITAL; ALLOWING THE NEW MEXICO FINANCE AUTHORITY TO CONTRACT FOR SERVICES; PROVIDING DUTIES; DIRECTING RULEMAKING; ALLOWING THE NEW MEXICO FINANCE AUTHORITY TO PROVIDE REMEDIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 6-26-3 NMSA 1978 (being Laws 2004, Chapter 71, Section 3, as amended) is amended to read:

"6-26-3. DEFINITIONS.--As used in the Behavioral Health Capital Funding Act:

A. "authority" means the New Mexico finance authority;

B. "capital project" means acquisition, repair, renovation or construction of a behavioral health facility; purchase of land; or acquisition of capital equipment [of a long-term nature];

C. "department" means the human services department [of health];

D. "eligible entity" means:

(1) a nonprofit behavioral health facility that is a 501(c)(3) nonprofit corporation for federal income tax purposes and serves primarily sick and indigent patients; or

(2) a behavioral health care clinic that operates in a rural or other health care underserved area of the state, that is owned by a county or municipality and that meets department requirements for eligibility; [and]

E. "fund" means the behavioral health capital fund;

F. "operating capital" means funds needed to meet short-term obligations, such as accounts payable, wages, debt servicing, lease and income tax payments; and

G. "project" means a capital project or operating capital needed to support the increase of behavioral health services to sick and medically indigent persons."

SECTION 2. Section 6-26-4 NMSA 1978 (being Laws 2004, Chapter 71, Section 4, as amended) is amended to read:

"6-26-4. BEHAVIORAL HEALTH CAPITAL FUND.--

A. The "behavioral health capital fund" is created as a revolving fund in the authority. The fund shall consist of appropriations, loan repayments, gifts, grants, donations and interest earned on investment of the fund. Money in the fund shall not revert at the end of a fiscal year.

B. Money in the fund is appropriated to the authority for the purpose of making loans to eligible entities for [capital] projects pursuant to the Behavioral Health Capital Funding Act.

C. The fund shall be administered by the authority. The authority may recover from the fund the actual costs of administering the fund and originating loans [up to an amount equal to ten percent of original loan amounts]."

SECTION 3. Section 6-26-5 NMSA 1978 (being Laws 2004, Chapter 71, Section 5) is amended to read:

"6-26-5. [DEPARTMENT] AUTHORITY--RULES.--The [department] authority, in conjunction with the [authority] department, shall adopt rules to administer and implement the provisions of the Behavioral Health Capital Funding Act, including provisions:

A. establishing procedures and forms for applying for loans [for capital projects];

B. specifying the documentation required to be provided by the applicant to justify the need for the [capital] project;

C. specifying the documentation required to be provided by the applicant to demonstrate that the applicant is an eligible entity;

D. establishing procedures for review, evaluation and approval of loans, including the programmatic, organizational and financial information necessary to review, evaluate and approve an application;

E. for evaluating the ability and competence of an applicant to provide efficiently and adequately for the completion of a proposed [capital] project;

F. for the approval of loan applications, including provisions that accord priority attention to areas with the greatest need for behavioral health services;

G. that ensure fair geographic distribution of loans;

H. establishing requirements for repayment of loans, including payment schedules, interest rates, loan terms and other requirements;

I. for ensuring the [state's] authority's interest in any [capital] project by the filing of a lien equal to the total of the [state's] authority's financial participation in the project; and

J. for such other requirements deemed necessary by the department and the authority to ensure that the state receives the behavioral health services for which the legislature appropriates money and that the [state's interest] investment in a [capital] project is protected."

SECTION 4. Section 6-26-6 NMSA 1978 (being Laws 2004, Chapter 71, Section 6) is amended to read:

"6-26-6. DEPARTMENT--AUTHORITY--POWERS AND DUTIES.--

A. The department and the authority shall administer the loan programs established pursuant to the provisions of the Behavioral Health Capital Funding Act. The department and the authority shall:

(1) enter into joint powers agreements with each other or other appropriate public agencies to carry out the provisions of that act; and

(2) apply to any appropriate federal, state or local governmental agency or private organization for grants and gifts to carry out the provisions of that act.

B. The department and the authority may:

(1) instead of a loan, contract for services with an eligible entity to provide free or reduced-fee primary care services for sick and medically indigent persons as reasonably adequate legal consideration for money from the fund to the eligible entity so it may acquire or construct a capital project to provide the services;

[(1)] (2) make and enter into contracts and agreements necessary to carry out their powers and duties pursuant to the provisions of the Behavioral Health Capital Funding Act; and

[(2)] (3) do all things necessary or appropriate to carry out the provisions of the Behavioral Health Capital Funding Act.

C. The authority is responsible for all financial duties of the programs, including:

(1) administering the fund;

(2) accounting for all money received, controlled or disbursed for capital projects in accordance with the provisions of the Behavioral Health Capital Funding Act;

(3) evaluating and approving loans, including determining the financial capacity of an eligible entity;

(4) enforcing contract provisions of loans, including the ability to sue to recover money or property owed the state;

(5) determining interest rates and other financial aspects of a loan and relevant terms of a contract for services; and

(6) performing other duties in accordance with the provisions of the Behavioral Health Capital Funding Act, rules promulgated pursuant to that act or joint powers agreements entered into with the department.

D. The department is responsible for the following duties:

(1) defining sick and medically indigent persons for purposes of the Behavioral Health Capital Funding Act;

(2) establishing priorities for loans;

(3) determining the appropriateness of a [capital] project;

(4) evaluating the capability of an applicant to provide and maintain behavioral health services;

(5) selecting recipients of loans and persons with whom to contract for services; and

(6) determining that [capital] projects comply with all state and federal licensing [and procurement] requirements.

E. The authority may make a loan to an eligible entity to acquire, construct, renovate or otherwise improve a capital project, provided there is a finding:

(1) by the department that the project will provide behavioral health services to sick and indigent persons as [defined] determined by the department; and

(2) by the authority that there is adequate protection, including loan guarantees, real property liens, title insurance, security interests in or pledges of accounts and other assets, loan covenants and warranties or restrictions or other encumbrances and pledges for the state funds extended for the loan."

SECTION 5. Section 6-26-7 NMSA 1978 (being Laws 2004, Chapter 71, Section 7) is amended to read:

"6-26-7. ELIGIBLE ENTITY--CHANGE IN STATUS.--If an eligible entity that has received a loan or contract for services for a [capital] project ceases to maintain its nonprofit status or ceases to deliver behavioral health services at the site of the [capital] project for twelve consecutive months, the [state] authority may pursue the remedies provided in the loan agreement or contract for services or as provided by law."

SECTION 6. Section 24-1C-3 NMSA 1978 (being Laws 1994, Chapter 62, Section 9, as amended) is amended to read:

"24-1C-3. DEFINITIONS.--As used in the Primary Care Capital Funding Act:

A. "authority" means the New Mexico finance authority;

B. "capital project" means acquisition, repair, renovation or construction of a facility; purchase of land; acquisition of capital equipment of a long-term nature; or acquisition of capital equipment to be used in the delivery of primary care, telehealth or hospice services;

C. "department" means the department of health;

D. "eligible entity" means:

(1) a community-based nonprofit primary care clinic or hospice that operates in a rural or other health care underserved area of the state, that is a 501(c)(3) nonprofit corporation for federal income tax purposes and that is eligible for funding pursuant to the Rural Primary Health Care Act;

(2) a school-based health center that operates in a public school district and that meets department requirements or that is funded by the federal department of health and human services;

(3) a primary care clinic that operates in a rural or other health care underserved area of the state, that is owned by a county or municipality and that meets department requirements for eligibility; or

(4) a telehealth site that is operated by an entity described in this subsection;

E. "fund" means the primary care capital fund; [and]

F. "operating capital" means funds needed to meet short-term obligations, such as accounts payable, wages, debt servicing, lease and income tax payments;

[F.] G. "primary care" means the first level of basic or general health care for an individual's health needs, including diagnostic and treatment services and including services delivered at a primary care clinic, a telehealth site or a school-based health center; "primary care" includes the provision of mental health services if those services are integrated into the eligible entity's service array; and

H. "project" means a capital project or operating capital needed to support the increase of primary care services to sick and medically indigent persons."

SECTION 7. Section 24-1C-4 NMSA 1978 (being Laws 1994, Chapter 62, Section 10, as amended) is amended to read:

"24-1C-4. PRIMARY CARE CAPITAL FUND--CREATION.--

A. The "primary care capital fund" is created as a revolving fund in the [state treasury] authority. The fund shall consist of appropriations, loan repayments, gifts, grants, donations and interest earned on investment of the fund. A separate account shall be maintained for appropriations, loan repayments, gifts, grants, donations and interest earned on investment of the account for loans to school-based health centers and telehealth sites. Money in the fund shall not revert at the end of a fiscal year.

B. The fund shall be administered by the authority. The authority may recover from the fund the actual costs of administering the fund and originating loans [up to an amount equal to ten percent of original loan amounts. Money in the fund shall be expended only on warrants drawn by the secretary of finance and administration pursuant to vouchers signed by the chief executive officer of the authority or the chief executive officer's authorized representative]."

SECTION 8. Section 24-1C-5 NMSA 1978 (being Laws 1994, Chapter 62, Section 11) is amended to read:

"24-1C-5. [REGULATIONS] RULES.--[A. Prior to September 15, 1994, the department, in conjunction with] The authority shall adopt [regulations] rules to administer and implement the provisions of the Primary Care Capital Funding Act, including providing for:

[(1)] A. the determination of rural or other health care underserved areas of the state in which eligible entities may receive loans or contracts for services from the fund;

[(2)] B. procedures and forms for applying for loans or contracts for services for [capital] projects;

[(3)] C. documentation required to be provided by the applicant to justify the need for the [capital] project;

[(4)] D. documentation required to be provided by the applicant to demonstrate that the applicant is an eligible entity;

[(5)] E. procedures for review, evaluation and approval of loans and contracts for services, including the programmatic, organizational and financial information necessary to review, evaluate and approve an application;

[(6)] F. evaluation of the ability and competence of an applicant to provide efficiently and adequately for the completion of a proposed [capital] project;

[(7)] G. approval of loan and contract for services applications, including provisions that accord priority attention to areas with the greatest need for primary care services;

[(8)] H. fair geographic distribution of loans and contracts for services; and

[(9) requirements for repayment of loans, including payment schedules, interest rates, loan terms and other requirements;

(10) ensuring the state's interest in any capital project by the filing of a lien equal to the total of the state's financial participation in the project; and

(11)] I. such other requirements deemed necessary by the department to ensure that the state receives the primary care services for which the legislature appropriates money and that [protects] protect the state's interest in a [capital] project.

[B. Regulations adopted by the department shall become effective when filed in accordance with the provisions of the State Rules Act.]"

SECTION 9. Section 24-1C-6 NMSA 1978 (being Laws 1994, Chapter 62, Section 12, as amended) is amended to read:

"24-1C-6. DEPARTMENT--AUTHORITY--POWERS AND DUTIES.--

A. The department and the authority shall administer the loan programs and contracts for services established pursuant to the provisions of the Primary Care Capital Funding Act. The department and authority shall:

(1) enter into joint powers agreements with each other or other appropriate public agencies to carry out the provisions of that act; and

(2) apply to any appropriate federal, state or local governmental agency or private organization for grants and gifts to carry out the provisions of that act or to fund allied community-based health care programs.

B. The department or authority may, instead of a loan, contract for services with an eligible entity to provide free or reduced fee primary care services for sick and medically indigent persons as reasonably adequate legal consideration for money from the fund to the entity so it may acquire or construct a capital project to provide the services.

C. The department and authority may:

(1) make and enter into contracts and agreements necessary to carry out their powers and duties pursuant to the provisions of the Primary Care Capital Funding Act; and

(2) do all things necessary or appropriate to carry out the provisions of the Primary Care Capital Funding Act.

D. The authority is responsible for all financial duties of the programs, including:

(1) administering the fund;

(2) accounting for all money received, controlled or disbursed for capital projects in accordance with the provisions of the Primary Care Capital Funding Act;

(3) evaluating and approving loans and contracts for services, including determining financial capacity of an eligible entity;

(4) enforcing contract provisions of loans and contracts for services, including the ability to sue to recover money or property owed the state;

(5) determining requirements for repayment of loans, including interest rates, loan terms, payment schedules and other financial aspects of a loan and relevant terms of a contract for services; [and]

(6) ensuring the authority's interest in any project by the filing of a lien equal to the total of the authority's financial participation in the project; and

[(6)] (7) performing other duties in accordance with the provisions of the Primary Care Capital Funding Act, [regulations] rules promulgated pursuant to that act or joint powers agreements entered into with the department.

E. The department is responsible for the following duties:

(1) defining sick and medically indigent persons for purposes of the Primary Care Capital Funding Act;

(2) establishing priorities for loans and contracts for services;

(3) determining the appropriateness of the [capital] project;

(4) evaluating the capability of an applicant to provide and maintain primary care or hospice services;

(5) selecting recipients of loans and persons with whom to contract for services;

(6) determining that capital projects comply with all state and federal licensing [and procurement requirements]; and

(7) contracting with an eligible entity to provide primary care services without charge or at a reduced fee for sick and medically indigent persons as defined by the department.

F. The authority may make a loan to an eligible entity to acquire, construct, renovate or otherwise improve a capital project or to fund operating capital, provided there is a finding:

(1) by the department that the project will provide primary care services to sick and medically indigent persons as defined by the department; and

(2) by the authority that there is adequate protection, including loan guarantees, real property liens, title insurance, security interests in or pledges of accounts and other assets, loan covenants and warranties or restrictions on other encumbrances and pledges for the state funds extended for the loan.

G. The authority may make a loan to a school-based health center that operates in a [public] school district or to a telehealth site for a capital project; provided, however, that the loan shall not exceed the amount in the account reserved for school-based health center or telehealth site funding."

SECTION 10. Section 24-1C-9 NMSA 1978 (being Laws 1994, Chapter 62, Section 15, as amended) is amended to read:

"24-1C-9. ELIGIBLE ENTITY--CHANGE IN STATUS.--If an eligible entity that has received a loan or contract for services for a capital project ceases to maintain its nonprofit status or ceases to deliver primary care services at the site of the capital project for twelve consecutive months, the [state] authority may pursue the remedies provided in the loan agreement or contract for services or as provided by law."

SECTION 11. Section 24-24-3 NMSA 1978 (being Laws 2003, Chapter 316, Section 3) is amended to read:

"24-24-3. DEFINITIONS.--As used in the Child Care Facility Loan Act:

A. "department" means the [children, youth and families] early childhood education and care department;

B. "facility" means a child care facility operated by a provider, including both family home-based and

center-based programs, licensed by the department to provide care to infants, toddlers and children;

C. "fund" means the child care facility revolving loan fund; [and]

D. "operating capital" means funds needed to meet short-term obligations, such as accounts payable, wages, debt servicing, lease and income tax payments; and

[D.] E. "provider" means a person licensed by the department to provide child care to infants, toddlers and children pursuant to Section 9-2A-8 NMSA 1978."

SECTION 12. Section 24-24-4 NMSA 1978 (being Laws 2003, Chapter 316, Section 4) is amended to read:

"24-24-4. FUND CREATED--ADMINISTRATION.--

A. The "child care facility revolving loan fund" is created in the New Mexico finance authority to provide low-interest, long-term loans to providers to make health and safety improvements in their facilities and for operating capital. The fund shall consist of appropriations, gifts, grants and donations to the fund, which shall be invested as provided in the New Mexico Finance Authority Act. Money in the fund shall not revert and is appropriated to the department, which shall utilize the fund for the purposes of the Child Care Facility Loan Act. Administrative costs of the authority may be paid from the fund. [Expenditures from the fund for loans to providers shall be made upon warrants of the secretary of finance and administration pursuant to vouchers signed by the secretary of children, youth and families or his authorized representative.]

B. Money in the fund shall be used to make loans to providers that demonstrate the need to make health and safety improvements, including space expansion, in order to maintain an adequate and appropriate environment for their clients. Loans from the fund are to be made at [the lowest legally permissible] an interest [rates] rate greater than zero percent for [the longest amount of time in order to allow the providers the maximum opportunity to maintain the business while repaying the loan] a term that does not exceed the useful life of the project being financed.

C. No more than twenty percent of the fund may be loaned [to] for a single provider in a single [loan. A provider that has received a loan from the fund in the immediately preceding five years or that has not completed repayment of a previous loan from the fund is ineligible for a new loan] project. The department shall give priority for loans to facilities of providers that serve proportionately high numbers of state-subsidized clients and low-income families.

D. The department, in conjunction with the New Mexico finance authority, shall adopt rules to administer and implement the Child Care Facility Loan Act. The rules shall become effective when filed in accordance with the State Rules Act."

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