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

1/25/07

HB

SHORT TITLE Transitional Support for Foster Youth

SB 48

ANALYST Lucero

ESTIMATED ADDITIONAL OPERATING BUDGET IMPACT (dollars in thousands)

FY07

FY08

FY09 3 Year

Total Cost

Recurring

or Non-Rec

Fund

Affected

Total

$1,200.0 $2,400.0 $2,400.0 $6,000.0 Recurring General

Fund

SOURCES OF INFORMATION

LFC Files

Responses Received From

Children, Youth and Families Department (CYFD)

Public Education Department (PED)

SUMMARY

Senate Bill 48 amends the New Mexico Children’s Code to narrow the definitions of physical

abuse, sexual abuse and sexual exploitation, provide for transitional living services for youth in

Department custody and shift the responsibility for Next-Step Plans that required by NMSA 22-

13-1.1 from the schools to CYFD for children in foster care. These provisions would mandate

the development and court review of an education plan for youth who are 14 years of age or

older, create a provision for transition plan for youth reaching 17 years of age and create a new

category of services and establish a new category of eligibility for a population of young adults

currently not covered in the Children’s Code. The target population established by this bill is

estimated between 100 and 300 young adults.

The first new provisions are in subsections 32A-4-2 (F), (G) and (H). Here the bill narrows the

definitions of physical abuse, sexual abuse and sexual exploitation by limiting such findings to

only those specific conditions and/or circumstance listed.

The second new provision is in subsection 32A-4-25.1. (G). It would mandate CYFD assume the

responsibility for the development of an education plan for youth prior to their fourteenth

birthday. The “next-step" plan is currently required by NMSA 22-13-1.1 for all New Mexico

students and is the responsibility of the local schools and school boards. The requirements for

the plan are expanded to include provisions that it would be based on an individualized

assessment of the youth’s educational needs and would be subject to court approval and revision

if necessary. It would become a court ordered plan once approved by the youth or ordered by the

court after its review of any contested issues. The educational next-step plan would be reviewed

at every subsequent permanency hearing after the youth reaches the age of 14.

Senate Bill 48 – Page

2

The third new provision is subsection 32A-4-25.1(H). It mandates what is generically referred to

as a ‘benchmark hearing.’ This hearing would occur at the permanency hearing before the youth

turns 17. At this permanency hearing the court would advise the youth of the latter’s eligibility

for transitional living services and a transition living plan.

The above-mentioned revisions to the Children’s Code lay the foundation for an entirely new

section in the Children’s Code. The new Section 3 defines transitional living services and

transition living plan. The domains of housing, education, employment, health, and mental health

would be addressed in the transition plan. This plan would be decided upon by the youth and be

reasonably calculated to increase independent living skills that will enable the youth to become

as self-sufficient as possible.

Both the education plan and the transition living plan would be subject to court review and

revision. These plans would become part of the court’s order for the youth and be subject to

periodic judicial review. The 17 year old would also have the right to a special hearing for the

enforcement or modification of the plan.

The transition planning process would mandate the Department convene a meeting at least 90

days prior to the youth’s 18 birthday. The purpose would be to review the sufficiency of the

services being offered to the young person.

FISCAL IMPLICATIONS

There is no appropriation associated with this bill.

The fiscal study done by the committee considered the costs of CYFD employees. The study

assumed approximately 180 foster care youth age out of the system on a yearly basis. It also

assumed half of these emancipating youth will opt for court jurisdiction. Calculations centered

on the costs to the Department of hiring new employees and training them, along with

administrative support to serve this population over a five year period. To adequately serve this

new population of youth at the level implied in this bill, CYFD could potentially need as many as

25 to 30 additional FTE. These FTEs would be front line workers, supervisors and Children’s

Court Attorneys. Assuming a flat average rate of $54,120 annual salary and benefits cost per

FTE, CYFD would require an additional $1,353,000 to $1,623,600. As these FTE would be

serving youth over the age of 18, the State would not be able to claim any federal match to

support their positions/efforts. This figure does not include the fiscal resources that would be

required to administratively support and provide the overhead necessary to support these

positions. Estimating 1.75% additional cost per FTE raises the total to between $2.4 million and

$2.9 million.

Additional cost would also include foster care maintenance for youth beyond their 18th birthday.

Assuming half of the emancipating youth would remain and assuming the current foster care

maintenance rate of approximately $470.00 a month, an additional $1.1 million would be

required annually. As youth over the age of 18 are not eligible for Title IV-E funds and other

available federal funding to serve this population is limited, the majority of this specific cost

would be borne by the State.

These fiscal implications do not include an analysis of the additional cost to the courts that would

result with the increased requirements and caseload.

Senate Bill 48 – Page

3

The risk involved in this bill includes the potential for much larger sums should there be court

orders requiring indefinite jurisdiction and the costs associated with housing and providing

health care and educational services that devolve onto the Department given the narrow focus on

case management responsibilities contained in the bill.

Implementation of court ordered transitional living services will require more court time,

therefore more agency time and the costs that attach to this functionality. The bill would impose

requirements that are not budgeted, require substantial recruitment efforts, training and staff

time. Court time is not calculated solely on the actual duration of a legal hearing, but on

preparation, presentation, and the unavoidable delays accompanying busy court dockets.

SIGNIFICANT ISSUES

The bill significantly narrows the definition of physical abuse, sexual abuse, and sexual

exploitation thereby limiting the State’s ability to protect vulnerable children.

The bill transfers responsibility for educational planning from the schools to CYFD and creates

additional requirements for the schools in terms of court ordered reviews of the next step plan

currently required by NMSA 22-13-1.1.

Related to educational planning, PED states:

•

This change in the Children’s Code would require those youth who are involved in a

transitional living plan to also receive a transitional education plan within the presiding

court. The planning meeting must include participation by the child, surrogate parent,

appointed pursuant to the federal Individuals With Disabilities Education Act or other

educational decision-maker recognized by the child’s school district, the child’s court

attorney and staff from the child’s school to develop an educational next-step plan.

•

The proposed language on page 10, lines 1 thru 11, would also give authority to the

presiding court to review, approve and either adopt or order the department to convene

another planning meeting to revise the educational plan. The educational plan will be

reviewed at every subsequent permanency hearing. This process could be time

consuming and cumbersome for all parties.

•

The federal IDEA law and New Mexico state rules require that students that qualify for

special education services follow an Individual Education Plan (IEP). Adding an

education component to a transitional living plan may duplicate/interfere with a student’s

current IEP (see Technical Issues below).

•

Lines 5 through 9 on page 10 violate the IDEA. The student’s IEP must be developed by

the IEP team. Allowing a judge to overrule the IEP would be considered as a unilateral

placement.

The bill would place the burden solely upon CYFD to ensure successful transition planning

beyond age 18 unless the youth satisfies the court that waiver of the right to transitional living

services is knowing and voluntary. CYFD does not have the resources or responsibility for

services to adults in New Mexico. There is no provision in this bill that addresses at what age the

court loses jurisdiction over the young adult who chooses not to waive these services. This open-

ended jurisdiction could conceivably entitle a young adult to an interminable case at CYFD and

Senate Bill 48 – Page

4

judicial expense.

The bill does not address the inherent limitations of CYFD’s efforts to obtain housing for young

adults. The language and structure of the bill permits the legal argument that young adults could

be ordered to remain in foster homes absent available housing in their local communities. The

language of the bill states that the planning and decision-making would be youth driven, but the

provision for unlimited court jurisdiction and the potential for court orders involving placement

issues and payments for health care costs, calls into question whether this bill extends court

jurisdiction or if it could be used to extend foster care and costs attendant to the care of abused

and neglected children.

A critical issue involved in case management for young adults who do not qualify for funded

waiver programs would probably constitute the population of young adults with the greatest

needs in terms of self-sufficiency and capacity for independent living. This population consists

of young persons who are challenged emotionally, psychologically and sometimes physically,

but who do not meet stringent program requirements of other state agencies offering services to

young adults.

This multi-challenged population needs a service array that currently is lacking throughout most

of New Mexico. The consequence of a deficient service array for this sector of at risk young

adults will pose a challenge for the courts. The bill uses best interests’ standards that will put the

courts in the position of determining whether the documented efforts of the Department are

sufficient in a resource scarce environment. The bill puts this burden solely on the Department

when the Department’s expertise does not include case management provision for young adults

whose needs must be addressed by other state agencies.

PERFORMANCE IMPLICATIONS

CYFD states that the impact of potentially increased caseloads over an indefinite period of time

could result in increased staff turnover, and a dilution of average time, focus, and expertise able

to be dedicated to individual cases.

ADMINISTRATIVE IMPLICATIONS

If passed, the bill will have an administrative impact on children, youth and families department

that the bill does not address. CYFD has estimated the additional administrative cost to be $2.4

million each year.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

None identified.

TECHNICAL ISSUES

The bill uses the term “child" or “children" when referring to adolescents as well as to those

young adults who would become eligible for transitional living services. This term is not

technically applicable when referring to young persons who have legally emancipated and whose

consent to services must first be obtained.

Senate Bill 48 – Page

5

The bill also appears to address the use of gender-neutral language and replaces words

previously adopted by the legislature. The definition of physical abuse, sexual abuse and sexual

exploitation in the Children’s Code is determined by reference to the criminal definitions and

changing the existing language may give rise to the unintended consequence of limiting the

applicability of the criminal definition by deleting the phrase “including but limited to" to one

that defines sexual abuse in the Children’s Code to one that only “includes" the criteria defined.

OTHER SUBSTANTIVE ISSUES

It is anticipated that many of the young adults who will choose to remain under the jurisdiction

of the court will have challenges that do not meet criteria for waiver assistance programs but still

need considerable assistance in transitioning to adult living. This bill does not address the

responsibilities of other state agencies to join together in meeting the challenge of at risk young

adults. The Department of Health and the Public Education Department and their roles in

addressing issues affecting this population are not addressed.

This bill was submitted to a New Mexico Supreme Court constituted Court Improvement Project

(CIP) Task Force for consideration in the late fall of 2006. It was considered and debated at

length in both the larger Task Force addressing the needs of New Mexico youth as well as in the

duly designated CIP committee. This CIP group ultimately voted unanimously, with the author

of the bill abstaining, against adopting it for legislative consideration during the 2007 Legislative

Session. A Supreme Court Justice informed the committee that the Supreme Court had already

submitted its budget for the 2007 Legislative Session and would not be supporting this bill.

Youth involved in meetings where this bill was discussed declined to endorse it. The youth

emancipating from Department custody clearly stated to Task Force participants that they want a

youth driven process that does not have to include extended court jurisdiction at this point in

time.

ALTERNATIVES

The ‘benchmark hearing’ designated in this bill can occur without the need for a statutory

amendment. Permanency hearings are statutorily mandated and children’s court judges can hold

this type of hearing and require the same types of services and planning without the need for

legislative enactment.

The Department has already initiated internal systemic changes designed to improve delivery of

voluntary case management services to this population of young adults emancipating from foster

care. The CIP committee assigned the task of designing a comprehensive package of systemic

changes is working collaboratively with the Department to address these issues.

DL/csd