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F I S C A L I M P A C T R E P O R T

SPONSOR HJC

DATE TYPED 3/17/05

HB CS66/aSJC/aSF#1

SHORT TITLE Detoxification Reform Act Changes

SB

ANALYST Hanika-Ortiz

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

$0.1

SOURCES OF INFORMATION

LFC Files

SUMMARY

Synopsis of SFL #1 Amendment

The Senate Floor amendment #1 to the HJCS/aSJC for HB 66, as amended, requires a treatment

facility to arrange translation of the application and explanation of rights for those who are un-

able to read. Removes proposed language under SJC amendment #17 that added a requirement

for a facility to also translate a person’s right to apply for a writ of habeas corpus.

Synopsis of SJC Amendment

The Senate Judiciary Committee amendment removes “and commitment” from the title of the

bill, provides a separate definition for “detention center” and clarifies the Department shall make

rules for treatment facilities concerning physical conditions for protective custody commitments.

Section H is removed relating to a facility detaining a person until a petition for involuntary

commitment is heard. Section J is removed relating to a person seeking discharge from commit-

ment. Language is added that requires a facility to arrange for translation for those unable to

read. Sections 6 and 7 are removed relating to commitment hearings, probation and discharge

procedures. Replaces the term “resident” with “client”. Clarifies that an officer may transport a

person to a treatment facility or detention center, removing jail as an option.

Synopsis of Substitute Bill

The committee substitute proposes significant changes of definitions, processes, and liability un-

der the Detoxification Reform Act. The bill also provides for the emergency civil commitment of

House Bill CS66/aSJC/aSF#1-- Page 2

individuals impaired by alcohol and drugs and allows for detention for up to 72 hours.

The committee substitute is attempting to meet the community and law enforcement’s need for

the medical versus legal intervention for alcohol or drug impaired persons who are at a risk of

harming themselves, others or property. New Mexico is part of a growing national trend to treat

alcohol and drug impairment as a health issue, rather than a criminal justice issue. The bill de-

scribes a process for the voluntary and involuntary commitment “consistent with the least drastic

means principle” to a treatment facility for persons impaired by alcohol or drugs. The bill de-

scribes the duties and responsibilities of the DOH involved with commitment procedures of both

adults and minors.

Significant Issues

The committee substitute for HB 66:

•

Defines alcohol and drug impairment as the substantially endangered health and well-

being of a person.

•

Defines “treatment facility”, allowing for detention centers providing detox services. Al-

lows for a treatment facility to refuse a client if facility is full or person too ill, disruptive

or dangerous. Decisions related to discharge and safety is left to the treatment facility.

•

Defines an “authorized person” as a physician or police officer.

•

Clarifies principle “consistent with the least drastic means”, allowing for habilitation,

treatment and protective custody to ensure treatment, security of facility and protection of

self and others from physical injury.

•

Defines intoxicated person as impaired mental or physical functioning with intentions of

serious, unjustified bodily harm on self or others.

•

Corrects language replacing “transportation to jail” with “protective custody”.

•

Treatment to include “protective custody” as one of the services extended to alcoholics,

drug-impaired, or intoxicated persons.

•

“Protective custody” defined as voluntary or involuntary, with commitment interval

shortened from 5 days to “not less than 12 hours or more than 72 hours”.

•

Protective custody occurs if the person is disorderly in public, unable to care for their

own safety, or has threatened or inflicted damage to another’s property, in addition to

harm to self or others.

•

Protective custody will occur at the nearest licensed and suitable facility, not necessarily

one closest to client’s residence.

•

Language added that ensures a detained person’s constitutional rights are protected.

•

Grants authority to treatment facility to admit voluntary clients.

•

Clarifies state policy by adding “drug impairment” in addition to alcohol intoxication as

in need of protection.

•

A record of protective custody will not be considered an arrest or be entered in a criminal

record.

•

Adds a new section protecting treatment facilities and their employees from civil liability

other than “gross negligence or intentional misconduct”.

PERFORMANCE IMPLICATIONS

DOH would be responsible for the developing policies and procedures regarding the care and

rehabilitation of persons impaired by alcohol and drugs, and facilitate meetings of community

House Bill CS66/aSJC/aSF#1-- Page 3

partners to disseminate information and provide guidance.

FISCAL IMPLICATIONS

Treatment programs can cost significantly less than incarceration, especially with new “offend-

ers”. Intoxicated or impaired persons detained under this Act will incur the costs associated with

treatment. This may or may not be difficult to enforce if the intoxicated or impaired person lacks

either a payor source or a private funding source. Less than 45% of all New Mexico counties al-

low indigent funds to be used for substance abuse treatment.

This bill could lead to an increase in the number of people the state’s treatment facilities are

asked to treat, and treatment beds are in short supply around the state.

Regarding commitment hearings, the bill indicates that costs for an examination shall be borne

by the county in which the person resides if the person is indigent.

ADMINISTRATIVE IMPLICATIONS

The DOH and the judiciary will have additional administrative, regulatory and personnel training

needs in the recognition and handling of alcohol or drug impaired persons.

TECHNICAL ISSUES

The term “Guardian” should be clarified as to what type of authority, as guardian can mean a

child’s parent or “guardian”, or a power of attorney or “legal guardian”.

The opportunity to “contact” counsel (as opposed to “consult”) may not ensure that a client’s

rights are protected.

OTHER SUBSTANTIVE ISSUES

CYFD is concerned there is no specific protection or provision for children or adolescents who

may be victims of physical harm or threat against their person.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

Inconsistencies would still exist as to the length of time in a treatment facility. The constitutional

rights of involuntarily committed incapacitated persons may not be fully protected.

POSSIBLE QUESTIONS

Is there a procedure in place to help law enforcement officials manage an intoxicated person with

a coexisting medical illness, psychiatric disorder, or acutely intoxicated.

AHO/yr:lg