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

SPONSOR Cervantes

DATE TYPED 2/10/05

HB 709

SHORT TITLE Interstate Compact on Communicable Diseases

SB

ANALYST Collard

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General’s Office (AG)

Human Services Department (HSD)

Department of Health (DOH)

Health Policy Commission (HPC)

Department of Public Safety (DPS)

SUMMARY

Synopsis of Bill

House Bill 709 enacts the Interstate Compact on Threatening Communicable Diseases and pro-

vides the compact is entered into with all other jurisdictions which have also joined. The com-

pact provides a mechanism for transporting patients with communicable diseases between states

for treatment. A threatening communicable disease is defined as “a disease that causes death or

great bodily harm, passes from one person to another and for which there is no means by which

the public reasonably can avoid the risk of contracting the disease.” Although patients who ob-

ject to a transfer have the right to request a court hearing, their consent is not necessary. The

compact provides for an allocation of costs, treatment of non-residents who are sick and in New

Mexico, transfer to more appropriate treatment facilities in other states, and priorities for admit-

ting patients. The bill provides that the director of the Public Health Division of DOH or their

designee is the “compact administrator” whose primary duty is to coordinate patient transfers

and pay the costs of transferring patients out of state.

House Bill 709 -- Page 2

Significant Issues

DOH notes the Interstate Compact on Communicable Disease would be an important public

health tool in preventing the transmission of communicable diseases, for example, active tuber-

culosis. Individuals who are diagnosed with active tuberculosis and are non-adherent in taking

their medications can, under court order, be confined in order to prevent transmission of the dis-

ease. New Mexico does not have a suitable secure facility to retain and treat these patients. An

Interstate Compact on Communicable Diseases would enable New Mexico to enter into com-

pacts with other states in order to provide access to specialized health care facilities not available

in the state.

AG notes a bill in this form has been submitted to the New Mexico Legislature for consideration

during the past several sessions. Research indicates that no other state has adopted this compact.

According to an analysis submitted by the Health Policy Commission in 2003, New Mexico re-

ceives hantavirus patients from Arizona and Colorado since the UNM hospital has expertise in

treating that disease. New Mexico also transfers tuberculosis patients to Texas because New

Mexico does not have a suitable treatment facility.

The bill and compact provide for cost allocation between the sending and receiving states. Gen-

erally the sending state pays the costs of transportation and treatment. Although there is an “anti-

donation clause” exception for treatment of the sick, New Mexico would be financially obligated

to pay the cost of transporting and treating patients sent to another state under the compact. The

receiving state must agree to receive and treat the patient.

The compact does not require patient consent before transfer to another state. Patients who agree

to detention and treatment, or who are ordered detained and treated by a court under a public

health act may be transported and treated in another state without their consent. Notice is re-

quired, and patients are given the right to request a hearing before transfer.

HPC analysis indicates, under the Eligibility and Transfer article, funds and bed space have to be

available regardless of whether the person has a communicable disease and irrespective of pri-

mary residence. This may mean that a person cannot be sent to an out-of-state institution (pursu-

ant to a written agreement with the receiving state) due to lack of funds, beds or both.

FISCAL IMPLICATIONS

Although there is no appropriation associated with this bill, AG notes the state of New Mexico

would be obligated under the terms of the compact to pay the costs of transportation and treat-

ment of patients it sends to other states.

HPC notes the bill does not describe the source of the financing for out-of-state health care ex-

penditures. Given the nature of communicable diseases, this could be a large potential liability

to the state. For example, assume hundreds of New Mexico SARS or bioterrorism patients hav-

ing to receive care out-of-state would be a significant expenditure to the state of New Mexico.

Additionally, the bill is silent about what constitutes the total time limit involved in which “send-

ing” state has the fiscal liability. Does it include follow up care for out-of-state providers. Would

it include long-term or rehabilitative care if required.

House Bill 709 -- Page 3

ADMINISTRATIVE IMPLICATIONS

DOH indicates the existence of this compact would improve DOH’s administrative efficiency

when handling individual cases. Administrative implications related to interstate transfers of pa-

tients in response to a public health emergency would be accomplished through a declared emer-

gency by the governor.

TECHNICAL ISSUES

HSD recommends adding under Article II definition of “party state.”

HPC notes the bill appears to address issues with transfers between facilities and suggests review

of federal Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA) law to en-

sure compliance with all of the current issues and language associated with patient transfers and

obligations of receiving/sending facilities. The EMTALA law deals with medical stabilization as

well, which is not noted in this section of the bill.

OTHER SUBSTANTIVE ISSUES

DOH indicates, without directly observed therapy, approximately 25 percent to 33 percent of pa-

tients with active tuberculosis will not take the required medications and will likely relapse. A

minority of individuals diagnosed with active tuberculosis may not have ties to the community,

are without a support system encouraging adherence to regimen (which may last from six months

to two years), or fundamentally refuse to take the medications. These individuals must be con-

fined in order to ensure that the prescribed regimen is completed so that they no longer threaten

the public health by infecting others.

New Mexico does not have a facility devoted to the care of infected patients who must be con-

fined in order to ensure the completion of treatment. There are no secure wards to treat such ac-

tive infectious disease in any acute care facility. Consequently, when a patient with active tuber-

culosis refuses to be treated voluntarily and a court order for treatment is obtained,

the options

for confinement essentially involve the client being placed in isolation at a local hospital or state

hospital with permanent security guards or more commonly, at a detention center which should

only serve as a temporary hold for the client’s protection.

Texas has established a secure treatment facility for infectious diseases with the necessary spe-

cialized staff. Legislation was recently passed in Texas allowing the treatment of non-residents

in state facilities. The passage of an Interstate Compact on Communicable Diseases would allow

New Mexico to take advantage of this now-available resource.

The ability of New Mexico to send a noncompliant individual to Texas for treatment would help

protect the public health by ensuring that the individual receives treatment. By utilizing an al-

ready existing facility, New Mexico would also be spared the expense of maintaining such a fa-

cility for only a few individuals.

HPC notes the Public Health Emergency Response Act was enacted to provide the state of New

Mexico the ability to manage public health emergencies, including handling “threatening com-

municable diseases” that pose a threat to the population of New Mexico. Under the act,

HIV/AIDS is not considered as threatening. Under the act, the state is charged with managing

House Bill 709 -- Page 4

public health emergencies in a manner that protects the rights and liberties of individuals and to

provide access to appropriate care, if needed, in the event of a public health emergency.

Additionally, the bill recognizes that cooperative action is needed between New Mexico and

neighboring states to find and expedite treatment for patients with threatening communicable

disease. Treatment location should be focused on the most effective and efficient care to benefit

the patient and not related to the patient’s primary residence, while at the same time considering

community safety factors.

During a public health emergency due to bioterrorism or some sort of communicable outbreak,

DOH would have the potential to rely on a pre-established compact for inter-state transfer of pa-

tients who require specialized care when the resources in New Mexico are depleted or unavail-

able. It would also allow for DOH to assist other states that have a need for assistance in such

events. Patient population and transfer patterns do not recognize state boundaries (e.g., Las Cru-

ces/El Paso; Eastern New Mexico/Western Texas; Farmington/Colorado and Silver

City/Tucson). Experience with the trauma system demonstrates that the transfer across state

lines is routine and occurs daily.

ALTERNATIVES

HPC recommends incorporating this legislation into the Public Health Emergency Response Act

(NMSA 12-10A-1), which already provides the basic rules for handling public health issues re-

garding threatening communicable diseases.

KBC/sb