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SPONSOR Martinez
SHORT TITLE Espanola-Area Health Care & Drug Prevention
SB 298
APPROPRIATION (dollars in thousands)
or Non-Rec
General Fund
(Parenthesis ( ) Indicate Expenditure Decreases)
Similar to HB 588 (Chimayo Health & Mental Health Services).
LFC Files
Responses Received From
Department of Health (DOH)
Health Policy Commission (HPC)
Attorney General (AGO)
Synopsis of Bill
Senate Bill 298 appropriates $175,000 from the general fund to the Public Health Division of the
Department of Health to work with public and private agencies to provide faith-based health
care, drug education and prevention programs and community development services in Chimayo
and Espanola.
The appropriation of $175,000 contained in this bill is a recurring expense to the general fund.
Any unexpended or unencumbered balance remaining at the end of fiscal year 2007 shall revert
to the general fund.
According to the Department of Health (DOH),
Rio Arriba County has the highest combined al-
Senate Bill 298 – Page
cohol and drug related death rate in the state. The drug related death rate in Rio Arriba County is
almost twice the rate of any other county, almost three times the statewide rate, and six times the
national rate. According to Epidemiology data, much of the problems faced by Rio Arriba
County are concentrated in Espanola and Chimayo.
The services funded by this appropriation are currently a part of the DOH base in the executive
budget recommendation, but are limited to substance abuse prevention with a total allocation of
$19,000 for faith-based services in Chimayo and Espanola. The department currently provides
funding for the New Mexico Access to Recovery (ATR) program that includes faith-based clini-
cal and recovery support services in Santa Fe, Dona Anna and Bernalillo counties. The funding
for this program is supported with $7,000,000 in federal funds.
DOH notes that it is imperative that all services meet best practice standards including evaluation
and implement evidence-based culturally relevant services. In addition, faith-based providers
must comply with all relevant federal and state service requirement/laws.
According to the Health Policy Commission (HPC), ArribaCare, a project established to address
barriers to access to healthcare in Rio Arriba County, reports that Rio Arriba has achieved noto-
riety nationally for having one of the highest drug-related death rates in the nation, with heroin
and cocaine use reaching epidemic proportions, according to hospital admission statistics. Death
rates from alcohol-related causes (alcoholism, liver disease, and auto accidents) are also among
the highest in the nation. The standardized mortality ratio for cirrhosis of the liver is twice the
New Mexico average and three times the national average.
The HPC asserts that faith-based health care utilizes volunteer and professional resources to pro-
vide multi-healthcare and social services and programs for their communities, but does not nec-
essarily promote religion as its primary criteria for participating in those services or programs.
The HPC adds that, although there is controversy regarding the intent of faith-based services and
organizations, the Health Resources and Services Administration (HRSA) has partnered with
community-based and faith-based organizations for the provision of local services.
Constitutional issues:
However, according to the Attorney General’s Office (AGO), SB 298 raises serious and substan-
tial federal and state constitutional questions. SB 298 implicates (1) the Establishment Clause of
the First Amendment and (2) N.M. Const. art. IV, § 31.
1. Establishment Clause of the First Amendment
A direct or indirect appropriation to faith-based entities implicates the First Amendment Estab-
lishment Clause. First Amendment Establishment Clause inquiries involve a three-prong test.
The governmental action (1) must have a secular legislative purpose, (2) the primary effect must
be one that neither advances nor inhibits religion, and (3) the action must not foster an excessive
government entanglement with religion. Lemon v. Kutzman, 403 U.S. 602, 512-13 (1971). SB
298 probably could be challenged under all three aspects of the test.
(1) First, lack of secular legislative purpose will invalidate governmental action as a violation of
the Establishment Clause. The motivation behind the governmental action must be secular. It is
appropriate to ask what is the actual purpose of the legislation. While the legislative purpose of
Senate Bill 298 – Page
providing aid to agencies that provide drug education and prevention is secular, SB 298 specifies
that the appropriation is to provide services through funding “faith-based” entities. The Depart-
ment of Health is charged with providing services related to the public health of the people of the
state, and the Legislature already appropriates millions of dollars for this purpose. Making a spe-
cific appropriation to faith-based entities is contrary to the position that SB 298 has a secular leg-
islative purpose because there is no particular reason for SB 298 unless the purpose and intent is
other than secular.
(2) Second, the principle or primary effect of the government action must not be to endorse or
inhibit religion. By making an express statement that the appropriation is to fund “faith-based”
entities, it is hard to defend SB 298 as neutral legislation. The question is whether the govern-
mental action promotes religion. Symbolic benefit to religion is enough; it “need not be material
and tangible advancement.” Friedman v. Bd. of County Comm'rs of Bernalillo County, 781 F.
2d. 777, 781 (10th Cir. 1985). Because SB 298 specifies funding to DOH for faith-based enti-
ties, it is difficult to see how SB 298 does not promote religion.
(3) The third test is that the governmental action must not foster an excessive government entan-
glement with religion. Although the “excessive entanglement” test will be determined according
to the facts of the specific government action, programs that involve vulnerable populations are
usually highly regulated by state agencies. Public funding of these services typically involve out-
come results measures and other oversight responsibilities. The public funding source frequently
analyses service delivery models to determine program effectiveness and cost benefits. The pro-
grams usually involve compliance with minimum program criteria for services, minimum quali-
fications for service providers, and periodic fiscal and program audits. Budget and program over-
sight mechanisms are routine. It would be unusual for a government agency to fund a service in
such a sensitive area and not mandate minimum reporting requirements and possible on site vis-
its, especially for residential programs. Funding of faith-based programs to provide health care
could very likely involve government intrusion into all aspects of the funded programs sufficient
for a court to find excessive government entanglement in religion.
2. N.M. Const. art IV, § 31.
Art. IV, § 31 states in pertinent part: “No appropriation shall be made for charitable, educational
or other benevolent purposes to any person, corporation, association, institution or community,
not under the absolute control of the state....” Although the appropriation is identified as going to
DOH, a state agency, SB 298 expressly mandates that DOH fund “faith-based health care” re-
lated to drug education and prevention. A valid constitutional challenge may be raised on the
theory that SB 298 attempts to do indirectly (make an appropriation to private entity not under
the absolute control of the state) that it cannot do directly. This indirect appropriation to private
entities may be held by a court to be a violation of N.M. Const. art. IV, § 31.
DOH notes that the purchase of all behavioral health services is overseen by the Behavioral
Health Collaborative, and it is likely that the appropriation would go to the statewide entity
(Value Options) for administration and implementation purposes.
Senate Bill 298 – Page
The HPC notes that
SB 298 is a companion bill to HB 588, and that the house bill specifies that
“the appropriation shall go to drug prevention efforts coordinated with public and private agen-
cies at the John Hyson family resource center in Chimayo.” The appropriation of $175,000 is the
same in both bills.
Although HB 588 does not reference faith-based programs or services per se, the John Hyson
Family Resource Center houses Interfaith LEAP, a collaboration between the Santa Fe Presby-
tery, Catholic Charities, District II of the Public Health Department and 15 congregations that
want to combat alcohol and drug abuse in the area.
DOH recommends a technical amendment as follows:
On Page 1, line 18 replace the words “public health division” with “behavioral health services