Judge: DOH must regulate boarding for mentally ill

The New Mexico Department of Health has a duty under state law to regulate boarding homes for people with mental illness and others, a judge ruled Monday.

But state District Judge David Thomson stopped short of laying out what that regulation must look like.

“The Court prefers to defer to the Department of Health to promulgate rules and conduct open meetings as to its scope and authority,” Thomson wrote.

He added the decision would create “a better record to support any final regulation,” and also “confers deference to the executive branch to perform their statutory duty.”

The ruling was a victory — albeit a limited one — for advocates of people with mental illness.

“This is a huge first step for us,” said Alice Liu McCoy, an attorney for Disability Rights New Mexico, which brought the court action seeking to force the Health Department to regulate boarding homes.

Under the judge’s ruling, the department must now propose regulations for boarding homes and is seeking public comment on the planned rules.

“We’ll see where it goes,” McCoy said. “We’re going to have to go through the process.”

A Health Department spokesman said the agency was reviewing the judge’s ruling and considering its next steps. The department’s attorneys had argued the agency has the authority to regulate board homes but doesn’t have to.

Without success, Disability Rights New Mexico, state legislators and others have been pressing the administration of Gov. Susana Martinez for years to regulate boarding homes throughout New Mexico. They are big business in Las Vegas, N.M., where the state’s only public psychiatric hospital is located. The Las Vegas homes primarily serve patients released from the hospital.

Reports show some residents of Las Vegas boarding homes 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.

Two men released from the psychiatric hospital died of carbon monoxide poisoning in 2013 while paying a Las Vegas boarding home $1,100 a month to live in a backyard shed.

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 does regulate boarding homes if they meet the definition of an assisted living facility, which are licensed. But no boarding home in Las Vegas has an assisted living facility license.

The state enacted a boarding home licensing law in 1972, but licensing of boarding homes ended in 2000.