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 Miera

ORIGINAL DATE

LAST UPDATED

02/11/07

02/28/07 HB 637/aHHGAC/aHJC/HFL#1

SHORT TITLE Children's Mental Recodification

SB

ANALYST Weber

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the Courts (AOC)

Attorney General’s Office (AGO)

Human Services Department (HSD)

Children, Youth and Families Department (CYFD)

Public Education Department (PED)

SUMMARY

Synopsis of HFL Amendment

The House Floor amendment deletes the definition of “peace officer" on page 9 lines 11-14. It is

unclear why the definition would be deleted since the term “peace officer" is used ten times in

the body of the bill unless it is thought the term is generic and self-explanatory.

Synopsis of HJC Amendment

The House Education Committee amendment does the following;

On page 29, line 5 the following is stricken:

B. A child fourteen years of age or older is presumed to have capacity to consent to psychotropic

medications. When psychotropic medications are administered to a child fourteen years of age

House Bill 637/aHHGAC/aHJC/HFL#1 – Page

2

or older, the clinician shall provide immediate oral notification followed by written

documentation to the child's legal custodian.

And replaced with:

"Psychotropic medications may be administered to a child fourteen years of age or older with the

informed consent of the child. When psychotropic medications are administered to a child

fourteen years of age or older, the child's legal custodian shall be notified by the clinician."

Synopsis of HHGAC Amendment

The Attorney General summarizes the changes to HB 637 by the HHGAC amendment.

1.

Deletes the definition of “individualized education plan";

2.

Eliminates the reference to officers in the Corrections Department in the definition of

“peace officer";

3.

Deletes a reference to “socialization" assessments of a child during development of a

treatment or habilitation plan, and substitutes “psychosocial assessment";

4.

Deletes references to the Human Rights Commission, and substitutes references to a

Human Rights Committee of the Department of Health with regard to the submission and

review of certain treatment plans involving aversive intervention;

5.

Requires the Children, Youth and Families Department to work in collaboration with the

Department of Health to promulgate rules for implementing that Human Rights

Committee, and requires the Department of Health to enact those rules;

6.

Clarifies that a fourteen year old (or older) child’s right to consent to treatment does not

provide them with independent consent rights with respect to special education and

related services;

7.

Allows a child aged fourteen or older to object to a legal custodian's assumption of

authority to make mental health or developmental disability treatment decisions or

determination of lack of capacity;

8.

Changes the time period for providing a child a hearing on a request for release from

voluntary residential treatment from five to seven days; and

9.

Prohibits “re-release" of previously disclosed information regarding the treatment of a

child unless approved by the child or legal custodian authorized under the Children's

Mental Health and Developmental Disabilities Act to give consent and any other consent

necessary for redisclosure in conformance with state and federal law, including consent

that may be required from the professional or the facility that created the document.

The changes do not change the substance of HB 637.

Synopsis of Original Bill

House Bill 637 repeals and replaces the Children’s Mental Health and Developmental

Disabilities Act, Section 32A-6.1 through 32A-6.22. The proposed changes to the Act expand the

rights of the child, particularly with respect to a child who is 14 or older. The child is given

decision-making authority over treatment decisions, placement decisions and decisions over

disclosure of confidential information. The purposes of the Act are to provide children with

access to appropriate assessments that lead to early identification, intervention and treatment, and

access to a continuum of services to address habilitation and treatment needs.

House Bill 637/aHHGAC/aHJC/HFL#1 – Page

3

Treatments may include the following: individual psychotherapy, group psychotherapy, guidance

and counseling, case management, behavioral therapy, family therapy, counseling, substance

abuse treatment or other forms of verbal treatment that do no include aversive interventions and

psychotropic medications.

CYFD provides background on the process that resulted in the changes. The revisions to the

children’s code included in this bill reflect the careful review and recommendations of a wide

range of professionals and experts in New Mexico, including representatives from the court

system, children’s attorneys, behavioral health, education, and the juvenile justice and child

welfare systems. A Task Force was created to review the Children’s Mental Health and

Developmental Disabilities Code which last underwent major revision in 1996. It was charged

with assessing the code in light of emerging behavioral health practice which is moving away

from institutional care toward community based service systems. It met from mid –June until the

end of mid--November. In addition to regular Task Force meetings, the group worked in five

committees, some of which met twice a month for several hours at a time. This enabled smaller

groups to work in detail on the major conceptual issues raised in the Task Force and bring back

suggested revisions with some proposed language, to the Task Force for further discussion and

resolution.

The Administrative Office of the Courts provides the following section by section recap of the

pertinent information.

Section 2

: sets out the purposes of the Act. This section is not in the current Act.

Section 3

: provides that the provisions of the Act shall apply to all children in New

Mexico except as otherwise set forth in the Act.

Section 4

: defines terms used within the Act. There are many new definitions and some

changed definitions, which include:

•

“aversive intervention" = any device or intervention, consequences or

procedure intended to cause pain or unpleasant sensations, including…

•

“clinician" = a person whose licensure allows the person to make independent

clinical decisions, including a physician, licensed psychologist, psychiatric

nurse practitioner, licensed independent social worker, licensed marriage and

family therapist and licensed professional clinical counselor

•

“evaluation facility" = a community mental health or developmental disability

program, a medical facility having psychiatric or developmental disability

services available or, if none of the foregoing is reasonably available or

appropriate, the office of a licensed physician or a licensed psychologist, any

of which shall be capable of performing a mental status examination adequate

to determine the need for appropriate treatment, including possible

involuntary treatment

•

“family" = persons with a kinship relationship to a child, including the

relationship that exists between a child and a biological or adoptive parent,

relative of the child, a stepparent, a godparent, a member of the child's tribe or

clan or an adult with whom the child has a significant bond

•

“mental disorder" = a substantial disorder of the child's emotional processes,

House Bill 637/aHHGAC/aHJC/HFL#1 – Page

4

thought or cognition, not including a developmental disability, that impairs the

child's:

(1)

functional ability to act in developmentally and age-appropriate

ways in any life domain;

(2)

judgment;

(3)

behavior; and

(4)

capacity to recognize reality

•

“treatment team" = a team consisting of the child, the child's parents unless

parental rights have specifically been limited pursuant to an order of a court,

legal custodian, guardian ad litem, treatment guardian, clinician and any other

professionals involved in treatment of the child, other members of the child's

family, if requested by the child, and the child's attorney if requested by the

child, unless in the professional judgment of the treating clinician for reasons

of safety or therapy one or more members should be excluded from

participation in the treatment team

•

“treatment plan" = an individualized plan developed by a treatment team

based on assessed strengths and needs of the child and family

Section 5

: makes technical language changes to track with other changes in purpose and

theme of the bill.

Section 6

: provides that the rights set forth in the Act apply to children receiving

treatment and habilitation services both within and outside residential settings.

Section 7

: provides that a child receiving mental health or habilitation services shall have

the right to prompt treatment and habilitation pursuant to an individualized treatment plan

and consistent with the least restrictive means principle. The Act requires a preliminary

treatment plan be prepared within seven days of initial provision of mental health or

habilitation services.

Section 8

: sets out special rules applicable to aversive intervention.

Section 9

: provides for the right to be free from the use of restraints used for the

convenience of a caregiver or as a substitute for a planned program for behavior support.

Lists permitted restraints.

Section 10

: provides that physical restraint and seclusion shall not be used unless such

use is necessary to protect a child or another from imminent, serious physical harm or

unless another less intrusive, nonphysical intervention has failed or has been determined

inappropriate. Sets out procedures, documentation and action required.

Section 11

: Requires training for professionals using restraint or seclusion.

Section 12

: sets out the personal rights of a child in an out-of-home treatment or

habilitation program.

Section 13

: provides that a child shall be represented by an attorney at all commitment or

treatment guardianship proceedings under the Act if the child is 14 or older or by a

guardian ad litem if the child is under 14. Provides further that when a child has not

House Bill 637/aHHGAC/aHJC/HFL#1 – Page

5

retained an attorney or guardian ad litem in a commitment or treatment guardian

proceeding and is unable to do so, the court shall appoint an attorney or a guardian ad

litem to represent the child.

Section 14

: limits the verbal therapy to which a child under 14 may consent absent

parental consent to an initial assessment.

Section 15

: provides that a child 14 or older is presumed to have capacity to consent to

treatment without consent of the child’s legal custodian, and capacity to consent to

psychotropic medications. Upon administration of psychotropic medications to a child

14 or older, a clinician shall provide immediate oral notification followed by written

documentation to the child’s legal custodian

Section 16

: provides that when a child 14 or older has been determined to lack capacity,

the child’s legal custodian may make a mental health or habilitation decision for the child

unless the child objects to such decision. Further provides that a challenge by a child 14

or older to a determination that the child lacks capacity shall prevail unless otherwise

ordered by the court in a proceeding brought pursuant to the treatment guardianship

provisions of the Act. The Act provides that a mental health treatment decision made by

a legal custodian for a child 14 or older who has been determined to lack capacity is

effective without judicial approval unless contested by the child.

Section 17

: provides for a clinician to request a children’s court attorney petition the

court for appointment of a treatment guardian to make a substitute decision for a child 14

or older determined to lack capacity, when a legal custodian is not reasonably available to

make decisions or if the clinician who proposes a course of treatment objects to a

challenge made by the child to a determination of incapacity. In a treatment guardian

proceeding, the court must appoint an attorney for the child unless the child already has

an attorney available. A petition is to be served on the child and the child’s attorney and

a hearing on the petition is to be held within three business days. The child must be

represented by council and shall have the right to be present, to present witnesses and to

cross-examine opposing witnesses. A decision of a treatment guardian may be contested

by a child, physician or other professional by filing a petition with the court within three

calendar days or the next business day, whichever is later, of receiving notice of the

treatment guardian’s decision. The child must be represented by counsel before the

court. The court may overrule the decision if it finds that it is against the best interests of

the child. The court must rule within seven days of the filing of the petition. If both a

petition for enforcement order and a petition to contest the guardian’s decision are filed,

they shall be heard at the same time in the same proceeding. If, at the end of a court-

specified guardianship period, the guardian believes the child still lacks capacity, the

guardian is required to petition the court for reappointment or for appointment of a new

guardian. If, during the period of a guardian’s power, specified individuals believe that

the child has regained capacity, an individual may petition the court for termination of the

guardianship. If the court finds the child has regained capacity, it shall terminate the

power of the guardian and restore to the child the power to make treatment decisions.

Section 18:

provides that a child of 14 or older who has capacity also has the right to

direct the child’s own treatment in the event of later incapacity. A written and signed

individual instruction shall be effective without judicial approval. Provides that if the

House Bill 637/aHHGAC/aHJC/HFL#1 – Page

6

child’s legal custodian refuses to consent to the individual instruction, the child may

petition the court for determination of whether the individual instruction is in the child’s

best interest.

Section 19:

provides that if an application is made to the court for an emergency mental

health evaluation of a child detained and transported by a peace officer, the court’s power

to act in furtherance of an emergency admission is limited to ordering that the child be

seen by a clinician prior to transport and that a peace officer transport the child to an

evaluation facility. Upon arrival at an evaluation facility, a child must be advised of the

child’s right to a hearing within 7 days, the right to counsel and the child’s right to

communicate with an attorney or guardian ad litem and an independent mental health

professional of the child’s own choosing.

Section 20

: applies to children younger than 14. Requires that upon the filing of the legal

custodian’s consent to admission document in the child’s records, the director of the

residential program or the director’s designee shall, on the next business day following

the child’s admission, notify the district court or the special commissioner regarding the

admission. The court or special commissioner shall establish a sequestered court file.

Also on the next business day, the director or designee must petition the court to appoint

a guardian ad litem for the child. When the court receives the petition, the court shall

appoint a guardian ad litem. When a child admitted to a residential program reaches 14,

the child may petition the district court for its records regarding all matter pertinent to the

child’s admission to the residential program. The district court must provide the records,

unless there is a showing that release of records would cause substantial harm to the

child. Upon turning 18, a person admitted to a program as a child may petition the court

for such records, and the court shall provide all records regarding the admission to the

petitioner. In the event that a child’s legal custodian’s request for immediate discharge is

rejected because the director of the program, a physician or a licensed psychologist

determines that the child requires continued treatment and that the child meets the criteria

for involuntary residential treatment, on the first business day following the request for

release, there must be a request that the children’s court attorney initiate involuntary

residential treatment proceedings. The children’s court attorney may petition the court

for such proceedings. The child has a right to a hearing regarding the child’s continued

treatment within seven days of the request for release.

Section 21

: applies to children 14 or older. Provides that if a child’s legal custodian is

unable to obtain an independent attorney, the legal custodian may petition the court to

appoint one. The Act sets out the procedures that must be followed upon the filing of a

child’s executed voluntary consent to admission, including the establishment of a

sequestered court file upon receipt of notice of voluntary admission. Much of the process

and procedures following voluntary admission mirror the procedures set out in Section 20

following consensual admission of a child younger than 14.

Section 22

: applies to the involuntary residential treatment of a child. Provides that a

child afforded rights under the Act shall be advised of those rights at that child’s first

appearance before the court on a petition under the Act. Provides that a person who

believes that a child is in need of residential services may request that a children’s court

attorney file a petition with the court for the child’s involuntary placement. The Act sets

out the necessary contents of the petition. The court must appoint counsel for the child

House Bill 637/aHHGAC/aHJC/HFL#1 – Page

7

unless the child has retained an attorney or an attorney or guardian ad litem has been

appointed. An involuntary placement hearing must be held within seven days of the

emergency admission. A hearing must be held within five days from a child’s

declaration that the child desires to terminate the child’s voluntary admission to a

program if the child’s clinician has assessed and documented that involuntary placement

is necessary. The Act provides for the rights of the child and the child’s legal custodian

at the hearing. The court can only order involuntary admission upon a showing by clear

and convincing evidence of specified facts. The court may order the child to undergo

nonresidential treatment or habilitation as may be appropriate and necessary or it may

order no treatment.

Section 23

: provides for the liability of persons providing treatment or habilitation

services.

Section 24

: provides that except as otherwise provided in the Act, a person shall not

disclose or transmit certain confidential information about a child to specified persons

without the authorization of the child. Provides that a disclosure ordered by the court

shall be limited to the information that is essential to carry out the purpose of the

disclosure.

Section 25

: provides that a court may conduct the proceedings required by the Act or

may, by general or special order, appoint a special commissioner to do so. The special

commissioner shall be a licensed attorney. Upon conclusion of a hearing, the special

commissioner must promptly file findings and recommendations with the court.

Section 26

: provides that a court ordering placement of or authorizing return of a child

may direct appropriate persons to furnish suitable transportation.

Section 27

: provides that a child who believes that rights established by the Act or by the

U.S. or NM Constitutions have been violated shall have a right to petition the court for

redress. The child shall be represented by counsel. The court shall grant relief as

appropriate, subject to the provisions of the Tort Claims Act.

Section 28

: provides that an indigent child may receive care and treatment at a state-

operated facility without charge.

Section 29

: provides for district court recognition of tribal court involuntary placement

orders.

Section 30

: repeals the current Act, Section 32A-6-1 et. seq. NMSA 1978.

FISCAL IMPLICATIONS

All agency responses were in agreement that the bill has no fiscal impact.

House Bill 637/aHHGAC/aHJC/HFL#1 – Page

8

SIGNIFICANT ISSUES

The AOC then follows up with the significant changes in section compared to current statute.

1)

The New Mexico Children’s Mental Health and Developmental Disabilities Revision

Task Force reports that the overarching theme for the revised Code is that all children

receiving mental health services are to have basic rights regardless of setting, with

greater protections provided each child corresponding to the level of restriction.

2)

Section 4: A number of the definitions of terms used in the Act may impact the courts

or have other significant impact

•

The current Act defines “aversive intervention" to mean “anything

that, because it is believed to be unreasonably unpleasant,

uncomfortable or distasteful to a child, is administered or done to the

child for the purpose of reducing the frequency of a behavior…" HB

637 defines the term to mean “any device or intervention, consequence

or procedure intended to cause pain or unpleasant sensations,

including…" It appears that the current definition is broader as it

includes anything “unreasonably unpleasant, uncomfortable or

distasteful," rather than things “intended to cause pain or unpleasant

sensations." The definition also includes “over-correction," but does

not define what that term means. There is also a question as to

whether under Section 8 of the bill and this definition electrical

convulsive therapy as a treatment option is eliminated by the inclusion

of “electric shock" within the definition, or whether the Human Rights

Commission must approve.

•

HB 637 expands the definition of “clinician" to include a psychiatric

nurse practitioner and a licensed marriage and family counselor. This

expansion may mean that more children will be referred for mental

health treatment, and that there will be a corresponding increase in

petitions to the court.

•

HB 637 includes within the definition of “family," “an adult with

whom the child has a significant bond." This provides for children

who do not have active parents/legal custodians to include an

appropriate adult in their treatment process.

•

HB 637 defines “mental disorder" to mean a disorder that impairs

certain functions. The current statute requires gross impairment for

there to be a mental disorder.

•

HB 637 provides that a “treatment plan" be based on the assessed

strengths and needs of a child and the child’s family.

•

HB 637 defines “treatment team" to include parents and others who

may be requested by a child.

3)

Section 4: Although there is no definition of “children’s court attorney" in the Act,

Section 32A-1-6 NMSA 1978 provides

E.

In cases involving a child subject to the provisions of the Children's

Mental Health and Developmental Disabilities Act [32A-6-1 NMSA 1978]

that also involves civil abuse, civil neglect or a family in need of court-

ordered services, the attorney selected by and representing the department

House Bill 637/aHHGAC/aHJC/HFL#1 – Page

9

is the children's court attorney. In cases involving a child subject to the

provisions of the Children's Mental Health and Developmental Disabilities

Act that does not also involve civil abuse, civil neglect or a family in need

of court-ordered services, the district attorney is the ex-officio children's

court attorney.

F.

Section 6: HB 637 broadens the scope of rights related to treatment and

habilitation to include all children receiving out-of-home treatment and

habilitation, not just those in residential settings.

4)

Section 7: HB 637 provides that a preliminary treatment plan shall be prepared within

seven days of initial provision of mental health or habilitation services. The current

law requires a plan within seven days of admission to a residential treatment program.

5)

Section 8: the Human Rights Commission exists pursuant to Section 28-1-3 NMSA

1978.

6)

Section 9: the current law applies only to children in residential treatment or

habilitation settings.

7)

Section 12: HB 637 addresses the varying levels of rights that attach and procedures

that apply when children receive treatment and habilitation services in out-of-home

and residential treatment and habilitation settings.

8)

Section 13: HB 637 clarifies that children are entitled to a court appointed attorney

only in commitment and guardianship proceedings. The courts are required to ensure

appointment of an attorney or guardian ad litem. The current law has a specific

requirement for parents, guardians or legal custodians to obtain representation. This

requirement may impact the courts in terms of ensuring timely appointment of

attorneys for youth in commitment or guardianship proceedings, and may impact the

AOC’s court appointed attorney fee fund.

9)

Section 14: the current law allows “any child" to consent to verbal therapies without

parental consent. HB 637 limits the verbal therapy to which a child under 14 may

consent absent parental consent to an initial assessment.

10)

Section 16: provides guidance for determining capacity to consent to services for

children 14 or older and allows parents to make outpatient treatment or habilitation

decision for children 14 or older without judicial involvement. The current code has

a provision for treatment guardianship, including appointment of an attorney or

guardian ad litem whenever a child 14 or older was unable to consent to medications

or treatment. HB 637’s allowance for parents to make certain decisions without

judicial involvement could theoretically result in fewer court appointments of

attorneys.

11)

Section 18: provides a framework for parents and youth to discuss treatment options

and to allow older youth an opportunity to direct their treatment in the event of later

incapacity.

12)

Section 21: a child of 14 or above who was a voluntary admittee may petition the

district court for the records of the court regarding all matters pertinent to the child’s

admission. An 18-year-old may petition for the records of any admission. There

could be an increased amount of requests for records increasing the work of court

staff who are reviewing the petitions.

13)

Section 21(L) provides that a child has a right to a hearing on the child’s continued

voluntary residential treatment within seven days of the child’s request for release.

Section 22(G) provides that an involuntary placement hearing shall be held within

five days from a child’s declaration that the child desires to terminate the child’s

House Bill 637/aHHGAC/aHJC/HFL#1 – Page

10

voluntary admission to a residential treatment or habilitation program. Apparently,

the task force intended that when a child wants a hearing it should be held within five

days, the time provision contained in the mental health code for adults.

14)

Although the new Act, like the old Act, requires and provides for a multitude of

actions by the courts, Section 25 provides that a court may conduct the proceedings

required by the Act or may, by general or special order appoint a special

commissioner to do so.

MW/mt:csd