DISABILITY ISSUES IN THE 2009 LEGISLATURE
POST-SESSION REPORT

By Jim Jackson, Executive Director
PROTECTION AND ADVOCACY SYSTEM
March 26, 2009

Mostly Favorable Session Comes to a Close. The 2009 session of the state legislature ended at noon on Saturday, March 21. Despite the state's dismal economic situation, the disability agenda enjoyed some surprising success. The state budget for the coming year includes:
" $5.4 million in new money to serve persons on the waiting list for the Developmental Disabilities (DD) waiver (in addition to $4 million of the amount appropriated in last year's special session)
" $175,000 for a pilot program of guardianship monitoring in Albuquerque
" $250,000 for deaf outreach and interpreter services.
Guardianship reform legislation passed, as did a mandate for private health insurance policies to cover children with autism. Albuquerque drivers who illegally park in designated accessible parking spaces will soon face fines of $250 to $500 instead of the current $75 fine. And changes were made to state law to resolve some liability issues and allow an adaptive driving program being developed at the Governor's Commission on Disability (GCD) to go forward.

High Drama as Guardianship Bill Passes in Last Moments. HB 161, the package of statutory changes sponsored by Rep. Bill O'Neill that will bring more oversight and accountability of guardians of adults with disabilities, was finally called up for action by the full Senate only twenty minutes before the Legislature's noon adjournment on Saturday, and passed by a 42-0 vote. But this was not the end of the story. An amendment placed on the bill in a Senate committee meant that the House had to agree with the revised version. Rep. O'Neill, with assistance from a number of other individuals working on behalf of the bill, had prepared the House leadership for this possibility. With about five minutes left, Majority Leader Ken Martinez took the floor and cleared the way for action on the bill. The House approved the amendment, and the bill officially passed the legislature in the final moments of the session.

Plenty of Wreckage. As always, there were many disappointments in the session as well. The mental health Safe House proposal died while waiting to be heard on the Senate floor, as did a bill to repeal the misleading and rarely used "Guilty But Mentally Ill" verdict. Several memorials seeking to improve the mental health system passed the Senate and got through House committees only to die due to lack of action in the House on the final day. An amendment to earmark $2.50 from each "red light camera" fine for the Traumatic Brain Injury (TBI) Fund was defeated on the floor of the Senate. And the House defeated a Senate-passed bill that authorized stem cell research in New Mexico, a line of work holding some promise for addressing spinal cord injuries and other disabling medical conditions.
Other measures that failed included the overhaul of the education funding formula and the gross receipts tax increase to pay for it; bills that would have moved toward "health care reform"; and an expansion of the Human Services Department's (HSD) authority to investigate complaints against the Office of Guardianship. A different kind of "failure" was the last minute passage of HB 438, which would impose co-pays on Medicaid recipients who use hospital emergency rooms but are determined not to have emergency conditions. This bill drew substantial opposition on the Senate floor because it is likely to discourage many people from seeking needed care, and some of the co-pays exceed federally-imposed caps.

Governor Gets the Last Word. The governor now has three weeks from the end of the session to decide which bills to sign or veto. If the governor does not sign (or veto) a bill by that deadline, it is considered a "pocket veto" and the bill is not enacted. Over the next few weeks, various interest groups will be contacting Governor Richardson to urge him to sign or veto the bills that the legislature passed this year. The final Legislative Report will cover the action taken by the governor on the disability-related bills in this report.

Bills That Passed the 2009 Legislature

HB 2 General Appropriation Act. This is the state budget for the fiscal year beginning this coming July 1. Noteworthy aspects of the new budget include:
$5.4 million in new state funds for the DD waiver program. These funds will bring in
approximately $17 million in federal funds for a total of over $22 million.
$250,000 in additional funding for outreach and interpreter services for deaf persons
$175,000 for a pilot program of guardianship monitoring in Bernalillo County (based on
SB 135 sponsored by Sen. Jerry Ortiz y Pino)
Medicaid: The budget appears to "fully fund" Medicaid. State funds have been reduced by 25% to $601 million, but federal funds are increased by 18% to $2.9 billion due to the federal stimulus bill, for a total of $3.5 billion, an increase of 7% over the past year.
Legal services: The program of legal services for low-income New Mexicans took one of the harder budget hits, cutting about $500,000 from a $2.6 million budget. The Senate Finance Committee indicated its intention that $225,000 of that cut be inflicted specifically on the NM Center on Law and Poverty, which sued the state Medicaid agency over its autoclosure policy.
D&E Waiver: Again this year there is no new money for the Disabled and Elderly waiver waiting list

SB 79 Fund transfers and reductions in appropriations. This bill, part of the "solvency package" addressing the state budget crisis for the current fiscal year, reduces the $10 million that was appropriated this past August for the DD waiver waiting list to $4 million. Due to the veto of language clarifying the legislature's intent, $1.5 million in new money for behavioral health services for children will simply get folded into the overall Medicaid budget. Already signed into law.
HB 130 Medicaid reporting and accountability. Rep. Mimi Stewart. Requires HSD to publicly report data related to Medicaid enrollment and eligibility determinations, including the number of persons denied eligibility and the reasons for such denials.
H 161 Guardianship reform. Rep. Bill O'Neill. This package of amendments to several state laws will improve oversight and review of guardianship arrangements, strengthen consumer preference in the selection of guardians, and clarify the roles of substitute decision-makers such as guardians, mental health treatment guardians, agents under advance directives, etc. The bill reflects the recommendations of the Guardianship Task Force.
H 189 Alternative deaf teacher assessment. Rep. Bobby Gonzales. Allows teachers who are deaf or hard of hearing to be assessed for licensure through a "portfolio review" rather than a traditional assessment procedure.
H 199 Special education services in Residential Treatment Centers. Rep. Tomas Garcia. Clarifies which school districts are responsible for providing and paying for any special education services that may be needed by school-age children placed in RTCs.
H 499 Adaptive driving program. Rep. Rhonda King. Allows individuals enrolled in an adaptive driving program offered by the state to drive accessible state vehicles as part of the training program. Generally, only state employees can drive state cars. Liability would be covered by considering such participants as state employees for this limited purpose. The program is being developed by GCD. Same as S 232.
H 544 Medicaid reporting and accountability. Rep Danice Picraux. Like H 130, this bill calls for transparency and reporting of information regarding the state's Medicaid program, but it covers a broader range of information about Medicaid operations, including average cost data for various programs and population groups.
S 39 Private insurance coverage of autism. Sen. Clinton Harden. Requires private health insurance policies in New Mexico (but not public employee insurance) to cover services for children with autism up to age 19, or age 22 if still in high school, with annual service caps at $36,000 and a lifetime benefit cap of $200,000. The coverage includes applied behavioral analysis, and the benefit caps are indexed so they will rise annually with medical inflation rates.
S 178 Interstate mental health compact amendments. Sen. Howie Morales. Amends the existing interstate compact to clarify that the Behavioral Health Institute at Las Vegas, administered by the Department of Health (DOH), would be the lead agency in New Mexico. The change is needed in light of an earlier law that transferred the Behavioral Health Services Division from DOH to HSD.
S 227 FIT funding formula. Sen. Jerry Ortiz y Pino. Creates a formula for DOH to follow in order to determine how much funding to request for the Family, Infant, Toddler (FIT) program each year. The approach is based on the public school funding formula; however, this bill would affect only DOH's budget request, not the distribution of whatever funds are actually provided for the FIT program each year.
S 232 Adaptive driving program. Sen. Tim Keller. Same as H 499, above.
S 519 Municipal nuisance ordinances. Sen. Michael Sanchez. Raises the maximum fine or penalty for "red light camera" violations to $100, and clarifies that the limit does not apply to citations for illegally parking in or blocking designated accessible parking spaces. Such fines, when imposed as civil nuisance violations, would have to be between $250 and $500. An amendment to require that $2.50 of each red light camera fine go to the TBI fund failed during debate on the bill in the Senate.
S 610 Time limit for parking. Sen. Cisco McSorley. Allows airport parking facilities to charge long-term parking fees for cars displaying a parking placard or license plate for persons with disabilities after the first 24 hours. Under current law, the drivers of such vehicles are exempted from parking fees in publicly-operated lots and can park for unlimited times, and the exemption is not limited to designated accessible spaces.

Memorials That Passed the Legislature
Memorials generally call for studies or the establishment of task forces to review issues and recommend solutions, or they convey recommendations of the legislature. Memorials do not have the force of law. A joint memorial ("JM") must pass both the House and the Senate to take effect; a simple memorial ("M") reflects the action of only one chamber.

HJM 43 Definition and services for dyslexia. Rep. Ben Lujan. Calls upon the Public Education Department to adopt a definition of dyslexia, to include it as an eligibility category for purposes of the IDEA, and to establish intervention strategies for working with students with dyslexia. Same as SJM 48.
HJM 77 Risk of hybrid cars to blind persons. Rep. Janice Arnold-Jones. Asks the Department of Transportation and the Commission for the Blind to convene a task force to consider the risks presented to blind and other pedestrians by quiet hybrid cars that cannot easily be heard approaching an intersection, and to consider options and solutions.
HM 25 Vulnerable victims. Rep. Gail Chasey. Asks the interim Courts, Corrections and Justice Committee to hold hearings on the question of whether to establish a category in state law of "vulnerable victims", and whether this category might include persons with developmental disabilities. If such changes to law were made in the future, perpetrators of crime against vulnerable victims might have their sentences lengthened.
HM 37 Credentialing of direct caregivers. Rep. Jeff Steinborn. Calls on the DD Planning Council to convene a task force to study, plan, and implement a training and education program leading to credentialing of direct caregivers who serve persons who are elderly or have disabilities as home health aides, personal care attendants, or other care providers.
HM 46 Accommodations at DMV offices. Rep. Tom Anderson. Calls on the Motor Vehicle Division to study what additional accommodations would be useful for persons who are elderly and/or disabled who have to wait for long periods or are confused about the process in MVD offices.
HM 94 Medicaid maximization. Rep. Danice Picraux. Directs the interim Legislative Health and Human Services Committee to make recommendations on how to take maximum advantage of the extra funding for Medicaid and SCHIP made available through the recent federal stimulus package and SCHIP reauthorization.
HM 97 End the Jackson lawsuit. Rep. Miguel Garcia. Calls on P&A and the Department of Health to work together to bring the Jackson litigation to an end. The memorial claims that the case has caused DOH to issue rules that are "burdensome" to providers and assumes that if DOH didn't have to spend $4 million per year on experts, monitoring, attorney fees and administrative costs it could use this money to give rate increases to provider agencies and serve more people in the DD waiver. P&A's long-standing position is that the way to bring the case to an end is for the state to achieve the objectives it already agreed to meet. HM 97 is the same as HJM 5, and was introduced when it became clear that HJM 5 might not get through both the House and Senate by the end of the session.
HM 105 Interim disability committee. Rep. Kiki Saavedra. Calls on the Legislative Council Service to establish an interim disabilities concerns committee, to consist of legislators and public members, to advise the legislature on disability issues. Same as SM 41.
HM 107 Behavioral health screening, intervention and referral services. Rep. Lucky Varela. Calls on the BHS Purchasing Collaborative to convene a team of stakeholders to explore ways to maintain a program of screening, brief intervention and referral for behavioral health treatment ("SBIRT") in community and school-based settings. The program has been funded with federal funds for the past 5 years but that funding is ending.
HM 111 Accessible parking task force. Rep. Jeff Steinborn. Requests that the Governor's Commission on Disability convene a task force to study issues related to accessible parking, including availability and enforcement. The task force would include The Disability Coalition, DD Planning Council, Center on Development and Disability and many other agencies and groups.
SM 21 Safe driver task force. Sen. Peter Wirth. Calls on the Attorney General's Office to convene a task force to look at the issue of drivers whose skills may deteriorate due to advanced age or disability, keeping in mind the barriers to independence and social mobility that can be created by loss of driving privileges. The task force would include, among others, advocacy groups representing the interests of elders and persons with disabilities.
SM 41 Interim disability committee. Sen. Eric Griego. Calls on the Legislative Council Service to establish an interim disabilities concerns committee, to consist of legislators and public members, to advise the legislature on disability issues. Same as HM 105.
SM 79 Stimulus funding for triage center. Sen. Mary Kay Papen. This memorial calls on the governor to seek funding made available through the federal economic stimulus legislation for a mental health triage center in Dona Ana County.

Substantive Bills or Memorials That FAILED to Pass the Legislature

H 21 Domestic partnerships. Rep. Mimi Stewart.
H 110 Insurance treatment of pre-existing conditions, gender discrimination. Rep. John Heaton.
H 155 Insurance coverage of autism. Rep. Joni Gutierrez.
H 168 Restroom access for persons with medical conditions. Rep. Tom Anderson.
H 192 Pharmacist initiation of prior approval. Rep. Gail Chasey.
H 212 Repeal Guilty But Mentally Ill verdict. Rep. Gail Chasey.
H 267 Health care authority. Rep. Mimi Stewart.
H 270 DOH to provide annual rate increases to DD waiver providers. Rep. Bobby Gonzales.
H 331 Public school funding formula. Rep. Mimi Stewart.
H 339 Health Security Act for universal coverage. Rep. Bobby Gonzales.
H 343 Penalties for unlawful parking in accessible spaces. Rep. Thomas Anderson.
H 346 Funding to implement the proposed new education funding formula. Rep. Mimi Stewart.
H 361 Complaints against the Office of Guardianship. Rep. Antonio "Moe" Maestas.
H 372 DOH budget requests to include cost-of-living adjustments (COLAs) for DD providers. Rep. Bobby Gonzales.
H 523 Continue behavioral health screening, intervention and referral. Rep. Lucky Varela.
H 537 Behavioral health safe houses. Rep. Nate Cote.
H 584 Exemption from jury service for physical hardship. Rep. Debbie Rodella.
H 597 Print disability access act. Rep. Joseph Cervantes.
H 641 Require hybrid vehicles to produce sounds. Rep. Janice Arnold-Jones.
H 751 Insurance coverage of autism, DD, behavioral health. Rep. Karen Giannini.
H 758 Red light camera fines as moving violations, not "nuisances". Rep. Janice Arnold-Jones.
H 779 Health Care Partnership. Speaker Ben Lujan.
H 814 Death with Dignity Act. Rep. Karen Giannini.
H 829 Behavioral health safe house fund. Rep. Nate Cote.
H 839 Abuse/neglect in individual homes. Rep. Nick Salazar.
HJR 25 Proposed constitutional amendment to provide property tax exemption for low income persons with disabilities. Rep. Miguel Garcia.
HJM 5 Bring an end to the Jackson case. Rep. Miguel Garcia. Same as HM 97, which passed.
HJM 46 Study licensed and unlicensed residential facilities. Rep. Gloria Vaughn.

S 12 Domestic partnerships. Sen. Cisco McSorley. Failed by a 25-17 vote in the Senate.
S 34 Medicaid coverage of autism services. Sen. Clinton Harden. HSD has indicated that it
will pursue this without putting the requirement in statute.
S 77 Stem cell research in NM. Sen. John Ryan. Failed by a 30-38 vote in the House.
S 101 "Red light camera" fines to TBI Fund. Sen. Dede Feldman.
S 121 Parental notification prior to abortion. Sen. William Sharer.
S 147 Extended jail detention period, with treatment. Sen. Sue Wilson Beffort.
S 197 DOH mortality review confidentiality. Sen. David Ulibarri.
S 198 Mortality review immunity for DOH. Sen. David Ulibarri.
S 238 Prohibit managed care contracts for behavioral health. Sen. Jerry Ortiz y Pino.
S 281 Health Security Act. Sen. Carlos Cisneros.
S 332 Transfer Health Policy Commission to DOH. Sen. Clinton Harden.
S 412 Funding to implement the proposed education funding formula. Sen. Cynthia Nava.
S 439 Optional health insurance coverage for domestic partners. Sen. Peter Wirth.
S 448 Require DOH to request COLA increases for DD contractors. Sen. Howie Morales.
S 473 Continue behavioral health screening, intervention and referral. Sen. Sue Wilson Beffort.
S 481 Continue behavioral health screening, intervention and referral. Sen. Sue Wilson Beffort.
S 605 Diversion of some domestic violence offenders to treatment centers. Sen. Sander Rue.
SJR 12 Constitutional amendment to remove archaic and offensive language prohibiting voting by "idiots and insane persons". Sen. Howie Morales.
SJM 11 Education services to children with autism. Sen. Clinton Harden.
SJM 26 Behavioral health information and report. Sen. Mary Kay Papen.
SJM 35 Behavioral health strategies study. Sen. Mary Kay Papen.
SJM 48 Definition and services for dyslexia. Sen. Cynthia Nava.
SJM 53 Developing a mental health early intervention plan. Sen. Mary Kay Papen.
SJM 64 Study risks of hybrid cars to blind pedestrians. Sen. Eric Griego.
SM 13 Develop broad-based behavioral health plan. Sen. John Sapien.
SM 48 Medicaid reporting of enrollment, termination data. Sen. Dede Feldman.
SM 70 Medicaid maximization task force. Sen. Dede Feldman.

Funding Requests That Did Not Pass the Legislature

H 32 Statewide quick response behavioral health teams - $1 million. Rep. Nathan Cote.
H 35 Native American adolescent mental health - $50,000. Rep. Ray Begaye.
H 113 State Alzheimer's disease plan - $25,000. Rep. Patty Lundstrom.
H 162 Early childhood programs in Lincoln, Otero Counties - $18,000. Rep. Gloria Vaughn.
H 169 Behavioral health safe houses - $4.1 million. Rep. Nate Cote.
H 183 Low-income legal services - $1 million. Rep. Joseph Cervantes.
H 221 Behavioral health screening and intervention - $800,000. Rep. Danice Picraux.
H 222 Continue children's enrollment in Medicaid - $10 million. Rep. Danice Picraux.
H 247 "State Use Act" implementation/enhanced employment - $150,000. Rep. Miguel Garcia.
H 264 "Quality of life" grants through GCD - $500,000. Rep. Ken Martinez.
H 310 DD waiver provider rate increases - $3.3 million. Rep. Gail Chasey.
H 385 Rate equity for state-funded DD providers - $1.5 million. Rep. Jimmie Hall.
H 398 Behavioral health services in McKinley County - $600,000. Rep. Ray Begaye.
H 424 FIT funding - $5.9 million. Rep. Danice Picraux.
H 445 Dona Ana County athletic program - $30,000. Rep. Joni Gutierrez.
H 551 Española-area TBI services - $100,000. Rep. Jim Trujillo.
H 579 Pre- and post-deployment TBI screening - $100,000. Rep. Keith Gardner.
H 711 Las Vegas area Special Olympics - $75,000. Rep. Richard Vigil. NOTE: HB 2 includes
$15,000 for this purpose.
H 746 Community mental health support services - $25,000. Rep. Gail Chasey.
H 747 Birth defects surveillance program - $150,000. Rep. Zach Cook.
H 880 Suicide prevention in northern NM - $35,000. Rep. Tomas Garcia.

S 43 Voluntary autism registry - $200,000. Sen. Dede Feldman.
S 53 NMSU therapy services - $250,000. Sen. Mary Kay Papen.
S 66 Dona Ana County mental health triage services - $4.5 million. Sen. Mary Kay Papen.
S 125 Mental health courts in three judicial districts - $532,000. Sen. Peter Wirth.
S 207 Autism spectrum disorder services - $3 million. Sen. Clinton Harden.
S 211 Housing Trust Fund appropriation - $15 million. Sen. Nancy Rodriguez.
S 301 Rate equity for state-funded DD providers - $1.5 million. Sen. Bernadette Sanchez.
S 347 Outreach services to deaf persons - $100,000. Sen. Nancy Rodriguez. NOTE: HB 2
includes $250,000 for this purpose.
S 381 Jail diversion in southwestern NM - $200,000. Sen. Howie Morales.
S 407 FIT funding - $5.9 million. Sen. Cynthia Nava.
S 409 ICF/MR rate increases - $2.1 million. Sen. Mary Kay Papen.
S 449 DD waiver provider rate increases - $3.3 million. Sen. Howie Morales.
S 543 Behavioral health services in eastern Navajo - $600,000. Sen. Lynda Lovejoy.
S 545 Behavioral health services, in eastern Navajo - $600,000. Sen. John Pinto.
S 642 Guardianship handbook - $50,000. Sen. Phil Griego.