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

SPONSOR Jennings

ORIGINAL DATE

LAST UPDATED

1/25/08

HB

SHORT TITLE Insufficient Indian Health Care Lawsuit

SB 270

ANALYST Ortiz

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY08

FY09

$500.0

Recurring

General Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to SB270 and HB120

SOURCES OF INFORMATION

LFC Files

Responses Received From

Department of Health (DOH)

Attorney General’s Office (AGO)

Indian Affairs Department (IAD)

SUMMARY

Synopsis of Bill

Senate Bill 270 appropriates $500.0 thousand from the GENERAL FUND to the Office of the

Attorney General) for the purpose of preparing and filing a lawsuit against the United States for

failure to provide sufficient funding for Indian health care.

FISCAL IMPLICATIONS

The Attorney General explains that it is uncertain whether, if the bill passes, and the Attorney

General does bring suit, the funds appropriated will be sufficient to cover the costs of the

litigation.

SIGNIFICANT ISSUES

The Attorney General points out that if construed as a mandate by the State Legislature to

maintain this lawsuit, as opposed to merely providing funding should the Attorney General

Senate Bill 270 – Page

2

determine that the suit is required, the bill may implicate Article III, Section 1 of the New

Mexico Constitution (commonly referred to as the “separation of powers clause") as a possible

unlawful intrusion by the Legislative Branch of government into the managerial and

discretionary duties of a member of the Executive Branch of government.

Even if the bill is construed to mandate this litigation, several legal issues must be overcome. It

remains to be determined whether the state has standing to bring such a suit, on whose behalf the

suit will be brought (i.e. the state itself, individuals deprived of health care due to the stated lack

of “sufficient funding" or on behalf of the various Tribes, Nations, or Pueblos); whether the

United States has waived its sovereign immunity allowing such a suit; whether an adequate case

or controversy exists in order to maintain the suit; whether the facts would support such a suit;

who the proper parties would be, etc.

Indian Affairs Department reports that the federal Indian Health Care Improvement Act of 1976

(“IHCIA") reaffirmed the US federal trust responsibility, established by treaties, legislation,

executive orders, and court rulings, to provide health care services to Native Americans. The

enactment of the IHCIA was in response to evidence of inadequate funding for Indian health care

services and the huge health disparities experienced by American Indians at the time. IHCIA was

last reauthorized in 1993 and it has been functioning under continuing resolution since 2000.

However, IHCIA reauthorization is currently pending before the US Congress. The

reauthorization of IHCIA would expand resources and funding available to Native American

communities for health-related services. It would also seek to modernize the Indian health care

system, provide new funding for mental and behavioral health services, as well as create

flexibility within the health care structure, and allow health services to be provided in-home to

elderly Native Americans.

The Indian Health Service (“IHS") is the main provider of health services to American Indians.

However, according to a 2003 report by the US Commission on Civil Rights, IHS operates at 59

percent of what is needed to provide adequate health care. They also found that annual per

capital health expenditures for Native Americans total 60 percent of the amount spent on other

Americans under mainstream health plans. The Commission states that these and other

measurements “express in clear terms that funding levels are inadequate…the conclusion is

unmistakable that current funding levels are far below that necessary to maintain basic health

services and that the federal government has failed to satisfy its explicit trust obligation."

PERFORMANCE IMPLICATIONS

The AGO stresses that the bill could be construed as providing funding necessary to bring the

lawsuit referred to if, in the discretion of the Attorney General, such a suit is authorized and the

state has a sufficient interest in maintaining the suit. However, the bill could also be construed as

a mandate to bring such a suit which, if complied with, will require staff resources and time in

prosecuting the litigation.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

SB270 relates to HB120 American Indian Health Care Improvement Act which would seek to

address American Indian health disparities by establishing an American Indian Health Division

within the NM Department of Health. In addition, HB120 would appropriate $15 million dollars

to DOH for distribution for a variety of health care activities.

Senate Bill 270 – Page

3

OTHER SUBSTANTIVE ISSUES

According to IAD, persistent lack of funding may account for the continuing health disparities

experienced by American Indians and Alaska Natives. According to a 2006 IHS report,

American Indians and Alaska Natives face large health disparities when compared to other racial

groups in the US. For example, the IHS reports that American Indians and Alaska Natives have

lower life expectancy and a disproportionate disease burden when compared to all other

Americans. The infant mortality rate among American Indians and Alaska Native is 8.5 per

every 1,000 live births compared to 6.8 per 1,000 for all US races. And, American Indians and

Alaska Natives die at higher rates than the national average from tuberculosis, alcoholism,

vehicular crashes, diabetes, unintentional injuries, homicide, and suicide.

Department of Health offers a local perspective saying that American Indians in New Mexico

have the some of the highest health disparity rates when compared to other racial/ethnic groups

on the following health indicators: mental illness, suicide, alcoholism/drug addiction, cancer,

diabetes, obesity, heart disease. Based on the New Mexico American Indian Health Status Data

Report, 2005 created by the New Mexico Department of Health, the five leading causes of death

in New Mexico affecting the American Indian population (2000-2002) were cancers,

unintentional injuries, diseases of the heart, diabetes, chronic liver diseases, and cirrhosis.

American Indian Infant mortality decreased over the past 10 years but remains higher then all

other ethnic groups (7.2 and 6.1 per 1,000 live births, respectively in 2002). For American Indian

males, the leading types of cancer are prostate, colorectal, lung, kidney and stomach; for

American Indian females the leading types of cancers are breast, colorectal, ovarian, corpus,

uterus and stomach. Within all American Indian groups, shigellosis and campylobacter rates

were higher than those of all the other race/ethnic groups combined. Indian health Service is

under funded by the federal government and does not meet the current health care service needs

of Indian people in the New Mexico.

It also notes that the federal Indian Health Care Improvement Act Amendments of 2007 is

currently being considered by the United States Congress. The United States has a federal trust

responsibility established by treaties, legislation, executive orders, and court rulings to provide

health care services to members of federally recognized tribes. The primary federal agencies

responsible to provide health care for American Indians are the U.S. Department of Health and

Human Services and the Indian Health Service (IHS). There are nearly 200,000 American

Indians in New Mexico, making up 10.5% of the state’s population, of which many rely upon

IHS for medical service. Pursuant to its trust responsibility, the federal government enacted the

Indian Health Care Improvement Act of 1976 (IHCIA), however, the IHCIA expired 14 years

ago and has been operating under continuing resolution since 1993. The federal IHCIA, if

reauthorized, would expand health resources available to American Indian communities to

reduce health disparities.

ALTERNATIVES

Appropriate state agencies could be asked to investigate the issues contemplated by this bill, as

opposed to providing funding to bring suit.

EO/bb