Judge to rule on state regulating boarding homes

As Martinez administration fights licensing requirement, advocate says oversight is needed

The refusal of the Martinez administration to regulate New Mexico boarding homes places residents, including people with mental illness, in imminent danger, a lawyer told a state judge Wednesday.

“The disastrous state of boarding homes today is a matter of public health and safety,” said Alice Liu McCoy, an attorney for Disability Rights New Mexico. “There is nothing stopping these operators from doing whatever they want.”

Disability Rights New Mexico, a nonprofit advocacy group, in February asked the state District Court in Santa Fe to force the Health Department to regulate boarding homes.

Judge David Thomson said after hearing arguments in the case, he plans to rule by Monday.

State Health Department attorneys argued the agency can’t and doesn’t have to regulate all boarding homes. The agency does license those that meet the definition of assisted living facilities.

The administration of Gov. Susana Martinez for years has resisted calls by Disability Rights New Mexico, legislators and others to regulate boarding homes.

Those calls increased in 2013 after two men released from the state psychiatric hospital in Las Vegas, N.M., died of carbon monoxide poisoning while a Las Vegas boarding home was charging them $1,100 a month to live in a backyard shed.

In 2017, Martinez vetoed a compromise scheme that had been overwhelmingly approved by the Legislature. The legislation would have required boarding homes to register with the Health Department and mandated the department to develop model regulations for boarding homes that local governments could adopt.

Las Vegas boarding homes that house people released from the New Mexico Behavioral Health Institute have received the most public attention in recent years, but there are boarding home across the state, and they house more than just people with mental illness. No one knows exactly how many homes there are and where they are all located.

The conditions in boarding homes in Las Vegas vary. Some residents live in crowded, substandard conditions and may go hungry because of inadequate meals. There also have been reports of violence, drug and alcohol abuse, and financial exploitation of residents by home operators.

State law prohibits any “health facility” from operating without a license from the Health Department. Included in that law’s definition of a health facility is a “boarding home not under

the control of an institution of higher learning.”

But the department hasn’t adopted a definition of boarding homes and doesn’t issue a boarding home license.

The Health Department’s position is that it has the authority to regulate boarding homes but isn’t required to do so.

Erin McSherry, the agency’s general counsel, told Thomson that the department does regulate boarding homes that provide health services, which are defined as assistance with daily living activities. Homes that provide those services are licensed as assisted living facilities.

McSherry said the Health Department can’t regulate all boarding homes regardless of what services they provide.

“There needs to be some type of dividing line,” she said.

No Las Vegas boarding home is currently licensed as an assisted living facility. The last Las Vegas home licensed as an assisted living facility, a ramshackle place between a mobile home and a burned-out house, closed in 2016 after a Health Department inspection found residents lived in filth and received medical care that placed them at risk of injury, illness and death.

McSherry told Thomson that while the Health Department doesn’t regulate boarding homes unless they qualify as assisted living facilities, but all homes are subject to landlord/tenant laws, building codes and potentially local regulation.

McCoy argued the department could decide to regulate boarding homes that provide a broader range of health care services than assisted living facilities but don’t now meet the definition of assisted living facility. One example would be a boarding home that helps residents with medication use, she said.

McSherry said the department isn’t indifferent to the problems in some boarding homes and added the agency is open to suggestions about regulation.

“It’s not something we’re adamantly opposed to,” she said. “It’s something we are willing to look at.”

The Health Department is considering a change in state regulations but that change would only make it clear that an assisted living facility can be boarding home. It wouldn’t establish a separate license for boarding homes and set requirements for that license.