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 Rodella

ORIGINAL DATE

LAST UPDATED

1/31/06

2/8/06 HB 588/aHCPAC

SHORT TITLE Chimayo Health & Mental Health Services

SB

ANALYST Lewis

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY06

FY07

175.0

Recurring

General Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

Similar to SB298 (Espanola-Area Health Care & Drug Prevention).

Relates to SB 519 (Chimayo Youth Corps Drug Abuse Prevention)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Department of Health (DOH)

Health Policy Commission (HPC)

Attorney General’s Office (AGO)

SUMMARY

Synopsis of HCPAC Amendment

The House Consumer and Public Affairs Committee amendment removes language directing that

the appropriation shall go to drug prevention efforts coordinated with public and private agencies

at the John Hyson Family Resource Center in Chimayo.

Synopsis of Original Bill

House Bill 588 appropriates $175,000 from the general fund to the Department of Health for

health, mental health and community development services in the Chimayo and Espanola areas

in district two of the Public Health Division. The appropriation shall go to drug prevention ef-

forts coordinated with public and private agencies at the John Hyson Family Resource Center in

Chimayo.

House Bill 588/aHCPAC – Page

2

FISCAL IMPLICATIONS

The appropriation of $175,000 contained in this bill is a recurring expense to the general fund.

Any unexpended or unencumbered balance remaining at the end of fiscal year 2007 shall revert

to the general fund.

SIGNIFICANT ISSUES

According to the Department of Health (DOH), in 2002 (most recent data available) Rio Arriba

County had the highest combined alcohol- and drug-related death rate (134.5 per 100,000) in the

state. The rate was almost seven times the national rate. Alcohol-related chronic liver disease

(AR-CLD) is the principle driver of New Mexico’s consistently high alcohol-related chronic dis-

ease death rate. AR-CLD death rates are extremely high among American Indians, both male and

female, and Hispanic males. Rio Arriba County stands out with high death rates due to AR-CLD,

and has consistently had among the highest death rates in the state from alcohol-related causes.

DOH notes that the devastation caused by alcohol abuse is not limited to death, but can also be

linked to domestic violence, crime, poverty, and unemployment, as well as chronic liver disease,

motor vehicle crashes and assault injuries, mental illness, and a variety of other medical prob-

lems. Researchers have discovered that a large percentage of those who have alcohol or drug

problems also have at least one personality disorder or mental illness.

DOH adds that the Espanola Valley has long been an epicenter of heroin abuse. Despite several

crackdowns by law enforcement, the region continues to have the nation’s highest per capita

overdose death rate.

According to the DOH, the appropriation in HB 588 is not part of the DOH executive budget.

According to the Health Policy Commission (HPC), ArribaCare, a project established to address

barriers to access to healthcare in Rio Arriba County, reports that Rio Arriba has achieved noto-

riety nationally for having one of the highest drug-related death rates in the nation, with heroin

and cocaine use reaching epidemic proportions, according to hospital admission statistics. Death

rates from alcohol-related causes (alcoholism, liver disease, and auto accidents) are also among

the highest in the nation. The standardized mortality ratio for cirrhosis of the liver is twice the

New Mexico average and three times the national average.

The HPC asserts that faith-based health care utilizes volunteer and professional resources to pro-

vide multi-healthcare and social services and programs for their communities, but does not nec-

essarily promote religion as its primary criteria for participating in those services or programs.

The HPC adds that, although there is controversy regarding the intent of faith-based services and

organizations, the Health Resources and Services Administration (HRSA) has partnered with

community-based and faith-based organizations for the provision of local services.

Constitutional issues:

However, according to the Attorney General’s Office (AGO), HB 588 raises serious and substan-

tial federal and state constitutional questions. HB 588 implicates (1) the Establishment Clause of

the First Amendment and (2) N.M. Const. art. IV, § 31.

1. Establishment Clause of the First Amendment

House Bill 588/aHCPAC – Page

3

A direct or indirect appropriation to faith-based entities implicates the First Amendment Estab-

lishment Clause. First Amendment Establishment Clause inquiries involve a three-prong test.

The governmental action (1) must have a secular legislative purpose, (2) the primary effect must

be one that neither advances nor inhibits religion, and (3) the action must not foster an excessive

government entanglement with religion. Lemon v. Kutzman, 403 U.S. 602, 512-13 (1971). HB

588 probably could be challenged under all three aspects of the test.

(1) First, lack of secular legislative purpose will invalidate governmental action as a violation of

the Establishment Clause. The motivation behind the governmental action must be secular. It is

appropriate to ask what is the actual purpose of the legislation. While the legislative purpose of

providing aid to agencies that provide drug education and prevention is secular, HB 588 specifies

that the appropriation is to go to the John Hyson Family Resource Center in Chimayo, a division

of Catholic Charities, thereby funding “faith-based” entities. The Department of Health is

charged with providing services related to the public health of the people of the state. The Legis-

lature already appropriates millions of dollars for this purpose. Making a specific appropriation

to faith-based entities is contrary to the position that HB 588 has a secular legislative purpose,

because there is no particular reason for HB 588 unless the purpose and intent is other than secu-

lar.

(2) Second, the principle or primary effect of the government action must not be to endorse or

inhibit religion. By making an express statement that the appropriation is to fund “faith-based”

entities, it is hard to defend HB 588 as neutral legislation. The question is whether the govern-

mental action promotes religion. Symbolic benefit to religion is enough; it “need not be material

and tangible advancement.” Friedman v. Bd. of County Comm'rs of Bernalillo County, 781 F.

2d. 777, 781 (10th Cir. 1985). Because HB 588 specifies funding to DOH for faith-based enti-

ties, it is difficult to see how HB 588 does not promote religion.

(3) The third test is that the governmental action must not foster an excessive government entan-

glement with religion. Although the “excessive entanglement” test will be determined according

to the facts of the specific government action, programs that involve vulnerable populations are

usually highly regulated by state agencies. Public funding of these services typically involve

outcome results measures and other oversight responsibilities. The public funding source fre-

quently analyses service delivery models to determine program effectiveness and cost benefits.

The programs usually involve compliance with minimum program criteria for services, minimum

qualifications for service providers, and periodic fiscal and program audits. Budget and program

oversight mechanisms are routine. It would be unusual for a government agency to fund a service

in such a sensitive area and not mandate minimum reporting requirements and possible on site

visits. Funding of faith-based programs to provide health care could very likely involve govern-

ment intrusion into all aspects of the funded programs sufficient for a court to find excessive

government entanglement in religion.

2. N.M. Const. art IV, § 31.

Art. IV, § 31 states in pertinent part: “No appropriation shall be made for charitable, educational

or other benevolent purposes to any person, corporation, association, institution or community,

not under the absolute control of the state....” Although the appropriation is identified as going to

DOH, a state agency, HB 588 expressly mandates that DOH fund the “John Hyson Family Re-

source Center,” a faith-based entity. A valid constitutional challenge may be raised on the theory

that HB 588 attempts to do indirectly (make an appropriation to private entity not under the abso-

House Bill 588/aHCPAC – Page

4

lute control of the state) that it cannot do directly. This indirect appropriation to private entities

may be held by a court to be a violation of N.M. Const. art. IV, § 31.

ADMINISTRATIVE IMPLICATIONS

DOH notes that, as this appropriation is specific to Behavioral Health Services, it is likely that

the resources would be appropriated and managed through the Behavioral Health Collaborative

process. Existing appropriations for substance abuse and mental health services are provided

through a contract with Value Options New Mexico.

OTHER SUBSTANTIVE ISSUES

DOH suggests that the pre-selection of the John Hyson Family Resource Center may violate the

New Mexico Procurement Code.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

The HPC suggests that, without this appropriation,

rural location and cost may continue to be

barriers to Chimayo and Espanola area residents who might otherwise be helped to manage their

mental health and drug related crisis. The need for targeted prevention programs and treatment

services for residents of Chimayo and the Espanola area will continue to be substantial.

ML/yr