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

SPONSOR Martinez

ORIGINAL DATE

LAST UPDATED

1/31/06

HB

SHORT TITLE Espanola-Area Health Care & Drug Prevention

SB 298

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 HB 588 (Chimayo Health & Mental Health Services).

SOURCES OF INFORMATION

LFC Files

Responses Received From

Department of Health (DOH)

Health Policy Commission (HPC)

Attorney General (AGO)

SUMMARY

Synopsis of Bill

Senate Bill 298 appropriates $175,000 from the general fund to the Public Health Division of the

Department of Health to work with public and private agencies to provide faith-based health

care, drug education and prevention programs and community development services in Chimayo

and Espanola.

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),

Rio Arriba County has the highest combined al-

Senate Bill 298 – Page

2

cohol and drug related death rate in the state. The drug related death rate in Rio Arriba County is

almost twice the rate of any other county, almost three times the statewide rate, and six times the

national rate. According to Epidemiology data, much of the problems faced by Rio Arriba

County are concentrated in Espanola and Chimayo.

The services funded by this appropriation are currently a part of the DOH base in the executive

budget recommendation, but are limited to substance abuse prevention with a total allocation of

$19,000 for faith-based services in Chimayo and Espanola. The department currently provides

funding for the New Mexico Access to Recovery (ATR) program that includes faith-based clini-

cal and recovery support services in Santa Fe, Dona Anna and Bernalillo counties. The funding

for this program is supported with $7,000,000 in federal funds.

DOH notes that it is imperative that all services meet best practice standards including evaluation

and implement evidence-based culturally relevant services. In addition, faith-based providers

must comply with all relevant federal and state service requirement/laws.

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), SB 298 raises serious and substan-

tial federal and state constitutional questions. SB 298 implicates (1) the Establishment Clause of

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

1. Establishment Clause of the First Amendment

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). SB

298 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

Senate Bill 298 – Page

3

providing aid to agencies that provide drug education and prevention is secular, SB 298 specifies

that the appropriation is to provide services through funding “faith-based” entities. The Depart-

ment of Health is charged with providing services related to the public health of the people of the

state, and the Legislature already appropriates millions of dollars for this purpose. Making a spe-

cific appropriation to faith-based entities is contrary to the position that SB 298 has a secular leg-

islative purpose because there is no particular reason for SB 298 unless the purpose and intent is

other than secular.

(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 SB 298 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 SB 298 specifies funding to DOH for faith-based enti-

ties, it is difficult to see how SB 298 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 out-

come results measures and other oversight responsibilities. The public funding source frequently

analyses service delivery models to determine program effectiveness and cost benefits. The pro-

grams usually involve compliance with minimum program criteria for services, minimum quali-

fications for service providers, and periodic fiscal and program audits. Budget and program over-

sight 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 vis-

its, especially for residential programs. Funding of faith-based programs to provide health care

could very likely involve government 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, SB 298 expressly mandates that DOH fund “faith-based health care” re-

lated to drug education and prevention. A valid constitutional challenge may be raised on the

theory that SB 298 attempts to do indirectly (make an appropriation to private entity not under

the absolute 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 the purchase of all behavioral health services is overseen by the Behavioral

Health Collaborative, and it is likely that the appropriation would go to the statewide entity

(Value Options) for administration and implementation purposes.

Senate Bill 298 – Page

4

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

The HPC notes that

SB 298 is a companion bill to HB 588, and that the house bill specifies that

“the appropriation shall go to drug prevention efforts coordinated with public and private agen-

cies at the John Hyson family resource center in Chimayo.” The appropriation of $175,000 is the

same in both bills.

Although HB 588 does not reference faith-based programs or services per se, the John Hyson

Family Resource Center houses Interfaith LEAP, a collaboration between the Santa Fe Presby-

tery, Catholic Charities, District II of the Public Health Department and 15 congregations that

want to combat alcohol and drug abuse in the area.

AMENDMENTS

DOH recommends a technical amendment as follows:

On Page 1, line 18 replace the words “public health division” with “behavioral health services

division”.

ML/nt