Fiscal impact reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for standing finance

committees of the NM Legislature. The LFC does not assume responsibility for the accuracy of these reports

if they are used for other purposes.

Current FIRs (in HTML & Adobe PDF formats) are a vailable on the NM Legislative Website (legis.state.nm.us).

Adobe PDF versions include all attachments, whereas HTML versions may not. Previously issued FIRs and

attachments may be obtained from the LFC in Suite 101 of the State Capitol Building North.

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

SPONSOR SJC

DATE TYPED 3/18/05

HB

SHORT TITLE Mental Health Treatment Directives

SB CS/749/aSFl#1/aSFl#2

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 Amendment #2

The Senate Floor amendment number two strikes Senate Floor amendment number one and

clarifies the language relating to a successful challenge to a determination of incapacity.

Synopsis of SFl Amendment #1

The Senate Floor amendment #1 seeks to provide clarifying changes to the bill. However, the

proposed changes do not track with the substitute bill.

Synopsis of Substitute Bill

The Senate Judiciary Committee substitute for SB 749 leaves the Uniform Health Care Decisions

Act (UHCDA) as is and enacts the newly proposed Mental Health Care Decisions Act sepa-

rately. SB 749 as originally written added confusion and complexity to the UHCDA and uninten-

tionally added new and restrictive provisions to the UHCDA.

SB 749/SJCS provides for mental health treatment directives (advance directives) as follows:

•

Section 1 cites the title of the Act.

•

Section 2 provides definitions for use within the Act.

•

Section 3 states conditions for acceptance and use of advanced health care directives re-

garding persons with mental illness, their agents and mental health providers.

Senate Bill CS/749/aSFl#1/aSFl#2 -- Page 2

•

Section 4 explains prohibited practice for insurers or other providers of benefits.

•

Section 5 allows for revocation of an advance directive for mental health treatment. Clari-

fies that an advance health-care directive and an advance directive for mental health

treatment will be treated separately.

•

Section 6 proposes an “optional form” for an advance directive for mental health treat-

ment that includes preferences and instructions about treatment, facilities and physicians;

appointment of agents; addresses conflicting provisions relating to legal rights and child

care desires.

•

Section 7 clarifies decisions by a guardian as opposed to an agent or ward.

•

Section 8 describes the legal obligations of mental health treatment providers pursuant to

the Act.

•

Section 9 clarifies the rights of a person authorized to make mental health treatment deci-

sions for another, to have access to health information.

•

Section 10 provides immunity from civil or criminal liability or discipline for unprofes-

sional conduct for providers or facilities that act in good faith and in accordance with ac-

cepted standards of care.

•

Section 11 describes statutory damages for violations of the Act.

•

Section 12 describes capacity and determinations of lack of capacity. A determination of

incapacity may only be made by two persons; a physician or qualified health care profes-

sional and a licensed mental health professional. Provides an optional examiner’s certifi-

cate to determine the need for mental health treatment and capacity to participate in deci-

sions about mental health treatment.

•

Section 13 states copies of a written directive the same as original.

•

Section 14 further clarifies the intention of the Mental Health Care Treatment Decisions

Act.

•

Section 15 further states the Act does not impair a guardianship, living will, durable

power of attorney, right-to-die statement or other similar document.

In practical terms, “advance directives” is a term used for the various means by which people

communicate their wishes about end-of-life care to their health care providers. Advance direc-

tives are legal documents that tell others what an individual’s treatment preferences or services

needs are. They are directions for others to follow that are made in advance of a need for certain

kinds of treatment or that express a treatment decision in both physical health and mental health

contexts. New Mexico’s Uniform Health-Care Decisions Act already makes such provisions for

physical health decisions and much of the UHCDA provisions were pulled into the proposed

Mental Health Care Decisions Act.

Significant Issues

This bill seeks to help resolve ethical issues related to mental health treatment.

New Mexico has no comparable legal provisions at this time that are specific to mental health

consumers. Advance directives will allow consumers to designate mental health treatment mo-

dalities and their duration for those times when they may be unable to make those decisions.

These changes in the treatment-decision process will assist individuals with mental health dis-

abilities to self-direct in accessing services.

A

ll states in the United States have a statute allowing advance directives for general medical pur-

poses. During the past few years, 20 states have passed legislation specific to mental health ad-

Senate Bill CS/749/aSFl#1/aSFl#2 -- Page 3

vance directives because general laws did not address the specific treatment and recovery needs

of people receiving mental health treatment. Where states have thorough and robust existing

statutes, such as New Mexico’s Uniform Health-Care Decisions Act, they have often enacted

amendments to those statutes rather than creating separate legislation.

PERFORMANCE IMPLICATIONS

Mental health services providers funded by Medicaid or Medicare will need to include mental

health advance directives in their care and treatment of consumers.

FISCAL IMPLICATIONS

Additional staff training costs on implementing advance directives for mental health treatment

could be significant and will need to be absorbed by agencies, facilities and other health care sys-

tems.

Proper planning for mental health care can help prevent and reduce costs associated with invol-

untary psychiatric hospitalization and care in an overburdened public health system.

According to the 2003 report of the President’s New Freedom Commission on Mental Health,

major mental illness ranks first among illnesses that cause disability in the United States, Canada

and Western Europe. The National Alliance for the Mentally Ill says that 23% of North Ameri-

can adults will suffer from a clinically diagnosable mental illness in a given year. In addition to

its harm to people and their families’ lives, mental illness comes with a high financial cost. In

the U.S., the annual economic, indirect cost of mental illnesses is estimated to be $79 billion.

Mental health expenditures are predominantly publicly funded at 57%, compared to 46% of

overall health care expenditures.

ADMINISTRATIVE IMPLICATIONS

SB749 is consistent with New Mexico’s mental health policies as expressed in the creation of the

Interagency Behavioral Health Purchasing Collaborative and its subsequent adoption of values

and principles.

Congress has noted the importance of advance directives and requires providers participating in

Medicaid or Medicare programs to inform patients about the state law concerning such direc-

tives.

NMCD notes effective administration of mental health services at the Department’s facilities

could significantly be impaired if some patients can disallow their treatment. The Department

believes this situation may severely endanger the lives of the patient, other inmates and NMCD

staff.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

There will be no provisions for mental health treatment advanced directives in New Mexico.

AHO/sb