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 Komadina

ORIGINAL DATE

LAST UPDATED

2/3/06

HB

SHORT TITLE Study Protection of Alternative Health Care

SB SM 20

ANALYST Lewis

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY06

FY07

NFI*

(Parenthesis ( ) Indicate Expenditure Decreases)

*See narrative.

Relates to SM 21 (Health Tourism Task Force)

Relates to SB 426 (Albuquerque Alternative Medicine)

Relates to SC 1295 (Purchasing the Lovelace Medical Center for Use as an Alternative Health

Care Facility)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Regulation and Licensing Department (RLD)

Office of the Attorney General (AGO)

New Mexico Environment Department (NMED)

New Mexico Medical Board (NMMB)

Department of Health (DOH)

SUMMARY

Synopsis of Bill

Senate Memorial 20 requests that that the Regulation and Licensing Department, Office of the

Attorney General and Department of Environment collaborate on a study that will assess whether

the public’s right to freely access traditional, cultural, complementary and alternative health care

therapies and remedies is adequately protected by law and whether any changes to state law are

necessary to protect this right.

The memorial further requests that:

any legislative recommendations be reported to the appropriate interim legislative committee,

Senate Memorial 20 – Page

2

determined by the New Mexico Legislative Council, by December 2007; and that

copies of this memorial be transmitted to the Secretary of Environment, Attorney General

and Superintendent of Regulation and Licensing.

FISCAL IMPLICATIONS

The New Mexico Environment Department (NMED) notes that no funding been identified to

hire necessary consultants or resources to participate in the study.

SIGNIFICANT ISSUES

The clear intent of Senate Memorial 20 is to protect the public’s “right” to freely access tradi-

tional, cultural, complementary and alternative health care therapies and remedies and to protect

such therapies and remedies and their providers from unnecessary regulation. However, most of

the responding agencies assume that the real value of the study called for in the memorial is that

it offers an opportunity to determine the degree to which complementary and alternative health

care therapies and remedies can and should be subjected to licensing and regulation.

According to the Regulation and Licensing Department (RLD), the Legislature in 2003 amended

the Uniform Licensing Act (ULA) to give licensing boards jurisdiction over unlicensed persons

and activity. Previously licensing boards had jurisdiction only over their own licensees. This has

created a legal issue with regard to whether health care practitioners who are not required to be

licensed, but who engage in activities and therapies similar to a licensed practitioner’s scope of

practice, are at risk of being disciplined or prosecuted by various licensing boards. Newly pro-

posed federal regulations may also limit a person’s right to access raw herbs and herbal prepara-

tions that have historically and traditionally been available to citizens of New Mexico.

Analysis by the New Mexico Environment Department (NMED) focuses on the

Food Service

Sanitation Act and the Food Act, and the question of NMED’s authority to regulate food and

food supplements, herbs and herbal remedies. NMED suggests that such authority may be lim-

ited, but notes that:

food protection requirements for the wholesomeness of food and drink require that all food

be from an approved source; and that

a food shall be deemed to be misbranded if it purports to be or is represented for special die-

tary uses, unless its label bears such information concerning its vitamin, mineral, and other

dietary properties as necessary to fully inform purchasers as to its value for such uses.

NMED suggests that it may be interpreted that if food and food supplements are marketed, sold,

or administered in the curative or healing traditions, a food service or food processing permit

may be required.

The New Mexico Medical Board (NMMB) states that the issue of unlicensed individuals practic-

ing various forms of health care is of great concern to the board because of the wide variety of

individual training, methods utilized, efficacy or lack thereof, and the potential for public harm.

There are many, many traditional healers and practitioners of complementary and alternative

health care who are competent, safe, honest and ethical, and who have nothing but the best inter-

est of their clients at heart. However, there are also many individuals who are not well-trained,

who use experimental and often harmful techniques, and who make false promises of efficacy to

vulnerable patients.

Senate Memorial 20 – Page

3

NMMB argues further that, as the Legislature considers whether some form of regulation is nec-

essary for traditional and alternative practitioners, it will be important to involve and hear from a

wide array of voices. SM 20 as proposed would create a study group that excludes the Medical

Board as well as existing statewide professional associations such as the New Mexico Associa-

tion of Naturopathic Physicians, significantly limiting the range of discussion and possible rec-

ommendations of the group.

According to the NMMB, SM 20 artificially puts two very distinct groups into one category.

Indigenous, traditional and cultural healers in general utilize techniques that are non-invasive and

that have been used for generations; but the umbrella of “complementary and alternative health

care” is broad enough to include both:

trained practitioners who utilize non-invasive and well-tested therapies; and also

poorly-trained practitioners who use techniques and therapies that are not only not well-

tested but for which there is sometimes significant evidence that they can actually be

harmful.

The Department of Health (DOH) agrees that

the study requested by SM 20 would help deter-

mine whether there are any public health implications or risks to the public’s health of tradi-

tional, cultural, complementary or alternative health care that would require the intervention of

state government through licensing and regulation.

ADMINISTRATIVE IMPLICATIONS

NMED states that at least one FTE would have to be assigned to the study group and asserts that

current workload of existing staff would suffer from this increased burden. NMED further asserts

that its Food Program is understaffed and unable to dedicate an FTE for the purposes of the

study. However, none of the other agencies express concern about the study’s requirements.

OTHER SUBSTANTIVE ISSUES

According to the Office of the Attorney General (AGO), the Memorial would require three state

agencies (AGO, NMED, RLD) to accept the premise that traditional, cultural, complementary

and alternative health care therapies and remedies pose no clear risk of harm. However, no such

assertion is made in the memorial. The relevant passage in the memorial states that (with empha-

sis added), “It is in the best interests of the state and its citizens … that New Mexico avoid un-

necessary regulation when there is no clear risk of harm or endangerment to the public ….”

More directly on target is the AGO’s concern with the memorial’s premise that traditional, cul-

tural, complementary and alternative health care therapies and remedies should be unregulated as

a matter of law. In one passage, the memorial asserts that it is in the best interest of the state that

the public “enjoy the freedom” to access such therapies and remedies “without restraint.” And in

its formal resolution, the memorial states as a given, “the public’s right to freely access tradi-

tional, cultural, complementary and alternative health care therapies and remedies.”

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

The Regulation and Licensing Department states that, without this study, it will continue to be

unclear whether alternative practitioners who are not required to be licensed can be prosecuted

by licensing boards. This will continue to pose compliance problems in the administration of the

Senate Memorial 20 – Page

4

28 licensing acts overseen by the RLD. Further, licensed practitioners who wish to offer alterna-

tive therapies to their patients may be as risk of prosecution by their licensing boards for practic-

ing outside their scope of practice, even though the therapies that they wish to offer do not re-

quire licensure.

According to the New Mexico Environment Department, the study might conclude that certain

practitioners of traditional or alternative healing methods that include food and food supple-

ments, herbs and herbal remedies in their practices may be regulated under the Food Service

Sanitation Act and the Food Act. NMED suggests that the consequence of not enacting SM 20

would be that such practitioners may continue to be unregulated.

The New Mexico Medical Board adds that, without the SM 20 study, the issue of unlicensed,

unsupervised and unscrupulous individuals providing poor health care will continue to be a prob-

lem for the state; and the regulatory boards will continue to have difficulty enforcing the bounda-

ries between their licensed providers and unlicensed providers.

AMENDMENTS

The New Mexico Medical Board (NMMB) proposes that SM 20 be amended to include NMMB,

the New Mexico Association of Naturopathic Physicians, and possibly other professional organi-

zations in the study group.

ML/yr