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2023 New Mexico legislative session recap

Going into the 2023 legislative session, we at the Rio Grande Foundation had three goals.

1)    Use the state’s massive $3.6 billion surplus to reform the “pyramiding” and business service taxation inherent in New Mexico’s gross receipts tax;

2)    Push for SOME kind of serious education reform to improve upon New Mexico’s abysmal 52nd position in the National Assessment of Educational Progress (NAEP).

3)    Restore “democracy” by placing some kind of limit on this and future governors’ emergency powers.

Sadly, none of these ideas were taken up and thus the session must be considered a failure.

Additional goals included pushing the Legislature to address the impending electricity shortage which could hit New Mexico as soon as this summer, addressing the medical provider shortage, and helping to push back against bad bills.

The “omnibus” tax reform (HB 547) DID include a gross receipts tax reduction that will be both phased in and contingent on robust revenues. Sadly, it utterly failed to address business services taxation. It also included electric vehicle and energy storage subsidies, film subsidies, higher corporate and capital gains taxes, and taxes go up for drinkers (5 cents per drink), cigar smokers, corporations.

Perhaps Gov. Lujan Grisham will veto all or part of the bill? There is simply no reason for tax hikes with a massive surplus available.

Spending went up dramatically. At the start of the session the Legislature and Gov. largely agreed on a big-spending budget increase of 12% to $9.4 billion. When the dust settled in Santa Fe, the Legislature passed a $9.6 billion budget with an increase of 14% in a single year.  NM government is already bloated and has grown quickly in recent years. New Mexico continues to waste money.

4)    The best single bill of the session was SB 523 which passed late in the session as Gov. Lujan Grisham seemingly put the screws to Democrats reluctant to reconsider a 2021 law that was favorable to the trial attorney industry. Doctors and patients alike are breathing a sigh of relief, but that doesn’t mean New Mexico won’t face a doctors shortage moving forward.

5)    Voting bill HB4 included automatic registration at government offices like the MVD, mandatory drop boxes, felons voting before their time is completely served and a permanent absentee voting list. The bill will have negative impacts on the integrity of our voting process.

Thankfully, a number of bad ideas died in the session.

6)    A new paid leave scheme was put forth under SB 11 which would have resulted in tax increases borne by employees and employers alike. It fortunately died after passing the Senate.

7) Most big environmental schemes failed: SB 520 net zero, HB 426 clean fuel standard, and the “green amendment” HJR 4 all died ;

8) Bills to ban plastic bags statewide died;

9) HB 25 and HB 28 which would have increased New Mexico’s minimum wage both failed.

How did your legislators vote on these and other issues? Check out the Foundation’s Freedom Index here.

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National opinion piece: Medicaid Expansion: A Discouraging Message from New Mexico

The following appeared in National Review’s Capital Matters on March 2, 2023:

In December, New Mexico’s Legislative Finance Committee (an internal think tank for the state legislature) published a report on the state’s Medicaid program. Whether by design or accident, the report happened to coincide with the tenth anniversary of New Mexico’s Medicaid expansion. Then-governor Susana Martinez, a Republican, decided to accept the “Obamacare” expansion dollars which, at the time, were 100 percent federally funded.

The report is full of useful information about the impact of Medicaid expansion on New Mexico that likely applies to all states. In fact, the report by this internal government agency to our now-bright-blue state government gave critics of Medicaid expansion plenty of ammunition.

Today, only eleven states (including large ones such as Florida and Texas)have steadfastly refused to expand Medicaid under Obamacare. And in light of New Mexico’s experience as detailed in this new report, the decision made by those eleven states looks better today than it ever has.

In New Mexico, the LFC Medicaid study’s authors used “secret shoppers” to attempt to make appointments with primary-care physicians throughout the state. Shockingly, only 15 percent of them were able to make an appointment with a primary-care doctor.

This is just one of many data points that echo the point made by Obamacare critics over a decade ago, who said early and often that health care is not the same thing as “coverage.” But policy-makers did not heed those warnings, and since Medicaid was expanded, the number of recipients in New Mexico has exploded while the number of providers has declined rather dramatically. The LFC report, for example, revealed that 47 percent of New Mexico’s population is on Medicaid, which places the state at the very top of the list in terms of the percentage of its population receiving benefits.

The high number of Medicaid recipients is both a cause and an effect of New Mexico’s ongoing medical-provider shortage. While large numbers of newly “covered” recipients of the program may lead to problems in accessing timely care, the underlying issue is Medicaid’s abysmal reimbursement rates for doctors. Nationally in 2020, hospitals received just 88 cents for every dollar spent caring for Medicaid patients. Specifics vary by state and provider type, but there is no question that having a larger Medicaid population results in more “cost-shifting” from other programs and customers to cover Medicaid recipients. Put another way, costs increase for other patients in order to compensate for the Medicaid shortfall.

But the consequences of New Mexico’s overwrought Medicaid program don’t stop there. Sadly, with such a massive portion of the population on benefit, it is hardly a surprise that the number of people willing to enter the workforce is quite low.

According to the Bureau of Labor Statistics, New Mexico’s workforce-participation rate in December of 2022 was just 53.5 percent. That is higher than just one state (Mississippi) and trails the U.S. as a whole, which has a workforce-participation rate over 60 percent.

At a time of exceedingly low unemployment and a tight job market nationwide (for all skill levels), Medicaid is one of many “welfare” programs that appear to keep people out of the job market.

In the meantime, the program has also caused state spending to spiral out of control. Estimated to stand at $10.5 billion next year (a 56 percent increase since just fiscal year 2019), the amount spent on Medicaid alone will be greater than New Mexico’s entire general-fund budget ($9.4 billion) next year. Simply put, this is unsustainable, both in terms of the program’s growth, but also in terms of the federal government’s financial contribution to New Mexico and other states with massive Medicaid rolls.

So, what are we getting for all this spending? The Legislature’s Medicaid report did not even consider a detailed discussion of health-care outcomes and the impact (or lack thereof) of Medicaid expansion. The report did note, however, that “the state continues to face poor health outcomes overall.” And, even more interestingly, while providing routine medical care for the poor was a stated goal of advocates for expansion, the LFC notes that an increase in “emergency room visits for non-urgent reasons” is “potentially leading to worse outcomes.”

The bottom line is that a decade on, despite massive federal and state spending growth on Medicaid, the LFC’s latest report does not point to significant positive health care outcomes from Medicaid expansion for New Mexico’s population at large. But this should not come as a surprise. A widely discussed 2013 study out of Oregon involving a large, randomized control group “showed that Medicaid coverage generated no significant improvements in measured physical health outcomes in the first 2 years.”

Well, there you have it. The largest and most expensive expansion of the American welfare state in the last 50 years seems to have resulted in bigger government and more dependency in New Mexico and across the nation. However, here in the state with the highest percentage of people on Medicaid, evidence of improved health outcomes remains elusive.

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Solutions for New Mexico’s medical provider shortage: part 2 of the two part series

New Mexico has a shortage of medical providers across most practice areas (as discussed in Part 1 of this series). So, as the 2023 legislative session gets rolling, what can be done about it?

The Rio Grande Foundation has looked high and low throughout New Mexico laws impacting medical providers and has produced a series of recommendations laid out in an extensive policy paper.

1) While forward looking in nature, HB 75 passed in 2021 and was revised later on that same year makes New Mexico’s medical malpractice much more plaintiff and attorney friendly through the increase in damage award caps is  causing a great deal of concern among providers even though it will not be implemented until 2024;

2) Stop taxing medical providers via gross receipts tax. The State is one of the few states in the entire nation that levies the equivalent of a “sales” tax on certain medical services. In New Mexico’s largest city, Albuquerque, the rate of taxation is currently 7.75 percent. Rates tend to be even higher in outlying areas of New Mexico. This could be part of a broad reform or more targeted.

3) Reduce Medicaid dependency.  According to the American Hospital Association, Medicaid underpaid hospitals by $24.8 billion in 2020. For Medicaid, hospitals received payment of only 88 cents for every dollar spent by hospitals caring for Medicaid patients in 2020. In 2020, 62 percent of hospitals received Medicaid payments less than cost.

4) Expand scope of practice/telemedicine.

There are several additional ideas outlined in the report along with more detailed discussion of the ideas listed above. All of it can be found here.

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A decade in, LFC Medicaid report highlights program failures

Hole torn in a dollar bill with medicaid text

The following appeared in the Las Cruces Sun News on Sunday, January 22nd, 2023.

LAS CRUCES SUN-NEWS - Downtown Las Cruces Partnership

In December the Legislative Finance Committee (LFC) published a report on New Mexico’s Medicaid program. Whether by design or accident, the report happened to coincide with the 10th anniversary of New Mexico’s Medicaid expansion. Then-Gov. Susana Martinez decided to accept the “ObamaCare” expansion dollars which, at the time, was 100% federally funded.

The LFC report is full of great information, but it doesn’t attempt to assess whether Medicaid expansion was worthwhile. Unfortunately, when it comes to government programs (especially here in New Mexico) increased spending and good intentions are not often followed by thoughtful assessment of whether the spending has achieved stated goals. Even less common are analyses of whether the new program itself was cost-effective in achieving those goals.

The media covered the LFC’s report which focused mostly on difficulties the Committee’s “secret shoppers” had in making appointments with doctors for Medicaid patients. For example, the LFC found that only 15 percent were able to make an appointment with a primary care doctor. Other doctors were not accepting patients, failed to return phone calls, or were no longer at that phone number. These findings highlight an important problem with Medicaid: having “coverage” (especially from a government welfare program) doesn’t mean you have access to medical care.

Less prominent in the news reports was the fact that the LFC reported that an astonishing 47 percent of all New Mexicans are on the program and a positively mind-blowing 77 percent of births are on Medicaid.

Ample reporting has been done about New Mexico’s medical provider shortage. While there are many reasons for that shortage, our State’s massive Medicaid population and the program’s low reimbursement rates for providers are certainly factors. Any doctor will share their views on the challenges of serving large numbers of Medicaid patients.

New Mexico’s extraordinarily high number of Medicaid recipients is at least partially to blame for the State’s low workforce participation rate. The LFC itself has noted that Medicaid and other government welfare programs, “can disincentivize work through either excessive benefits or reduction of benefits as recipient wages increase.”

Furthermore, the LFC report notes that Medicaid is the largest healthcare payer in New Mexico, and the state has the largest Medicaid program per capita in the country. Between FY19 and FY23, HSD projects total Medicaid spending to increase approximately 56 percent from $5.6 billion to $8.8 billion. In other words, by next fiscal year Medicaid alone will be spending more than New Mexico’s current General Fund budget.

Sadly, the LFC did not take up a detailed discussion of health care outcomes and the impact (or lack thereof) of Medicaid expansion. The LFC did note that, “the state continues to face poor health outcomes overall.” And, even more interestingly, while providing routine medical care for the poor was a stated goal of advocates for expansion, the LFC notes that “Emergency room visits for non-urgent reasons have increased, potentially leading to worse outcomes.”

After a decade of massive federal and state spending growth on Medicaid the LFC does not point to significant positive health care outcomes from Medicaid expansion for New Mexico’s population at large. Given the incredible impact this program has on state and federal budgets, it would be nice to know whether Medicaid expansion is having a positive impact or not. The LFC didn’t even mention the lack of evidence on health outcomes much less call for such research or upbraid the legislature for failing to conduct it already.

The largest and most expensive expansion of the American welfare state in the last 50 years seems to have resulted in bigger government and more government dependency. However, here in New Mexico with the highest percentage of people on Medicaid, evidence of improved health outcomes remains elusive.

Paul Gessing is president of New Mexico’s Rio Grande Foundation. The Rio Grande Foundation is an independent, nonpartisan, tax-exempt research and educational organization dedicated to promoting prosperity for New Mexico based on principles of limited government, economic freedom and individual responsibility

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Release: RGF digs into medical provider shortage in Part 1 of two part series

In a new policy brief which explores the shortage of medical providers in the State of New Mexico, the Rio Grande Foundation digs into an analysis of which areas of medical practice face the most acute shortages and compares New Mexico counties, New Mexico with its neighbors, and also looks at geographical trends regarding the availability of medical providers nationwide.

Forming part one of a two part series on the topic, the document titled, “The Existence and Extent of a Medical Provider Shortage in New Mexico” is an attempt to gain a foothold when it comes to the statistics behind the medical provider shortage.

Among the findings:

  1. New Mexico is not alone in the Southwest in having a relative shortage of medical professionals. Compared to the Northeast and Midwest, there is already a shortage of healthcare workers in states in the South and West. Interestingly, the region where doctors are paid the least in nation is the Southwest, where many older adults who require healthcare services choose to retire.
  2. Physicians in the north central part of the nation average pay of $319,000 per year. In the southeast, however, physician salaries are more than $40,000 a year less, running at around $277,000 a year. New Mexico’s average physician salary was even less, ranking third from the bottom of lowest-earning states with an average annual physician compensation rate of $261,000.

  3. Our research does indicate that New Mexico has a serious shortage of health care workers in a variety of medical fields. These especially include primary care physicians, surgeons, registered nurses, OB-GYN’s, pharmacists and EMT’s. Fortunately, the state currently appears to have an adequate number of physician assistants, dentists, and nurse practitioners.

In a follow-up report Rio Grande Foundation will provide specific ideas on how policymakers, especially those here in New Mexico, can address the State’s medical provider shortage.

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New Mexico’s self-inflicted doctor shortage

The Eastern New Mexico News Homepage

There is a life-or-death issue facing New Mexicans. It has been widely reported on in the media and is important to New Mexicans from all walks of life. Voters will have a lot to say about it this November. The issue is our shortage of medical professionals.

If you live in rural New Mexico you have likely faced severe challenges in finding specialists for years, but according to one recent report, 32 of New Mexico’s 33 counties (excepting Los Alamos) face a shortage of primary care physicians. This doesn’t even consider the shortage of specialists which is even more pronounced in certain fields.

Reports have reiterated the fact that (as our population ages and our doctors age as well), our State faces an even greater need for doctors in the years ahead.

Like most challenges facing New Mexico, poor public policy is a problem. The most obvious reform needed is for the Legislature to repeal HB 75, which passed in the 2021 session and was signed by Gov. Lujan Grisham. Implementation of the law was subsequently delayed, but if it is it will make New Mexico an even less attractive place for doctors to work than it already is, worsening our shortage of medical professionals.

Here are a few details:

The Medical Malpractice Act (HB 75) increased the cap on malpractice lawsuits. That means physicians can be sued for a great deal more for punitive (punishment) damages, up to $4 million. That number rises to $6 million in just a few years. To give a comparison, in doctor-friendly Texas, the cap is limited to $250,000).

Because the cap is so high now, many Insurance Companies won’t cover doctors in private practices that do procedures like colonoscopies or other in-office surgeries. In other words, doctors can’t get malpractice insurance to cover them because they are too risky to insurance companies.

As one prominent Democrat doctor wrote in an article written earlier this year, “Our Governor is aware of the issues, but Democrats are often influenced by the Trial Attorneys because they are big contributors to the Democratic Party and, of course, they stand to gain a whole lot of money from such a large increase in the ‘cap.’

Another self-inflicted misstep that has resulted in a loss of medical professionals is Gov. Lujan Grisham’s vaccine mandate on medical professionals. While specific numbers are hard to come by, it is hard to justify such a mandate given that COVID vaccines have not prevented the spread of COVID. In August 2021 media reports quoted Dr. David Scrase as saying 90% of nurses were vaccinated and roughly 3,000 healthcare workers in New Mexico were unvaccinated.

We don’t know exactly how many medical professionals left New Mexico due to the Gov.’s vaccine mandate, but even a few hundred is far too many. And, the Gov.’s vaccine mandate continues to remain in effect along with her public health orders.

Finally, a simple way to attract more doctors is to stop taxing them. Although often hidden from the public, doctors in New Mexico often must pay gross receipts tax on services provided to Medicaid patients and “fee for service” patients.

Lawmakers recently announced the State has a $2.5 billion surplus headed into the 2023 legislative session. Reform of the gross receipts tax, including repeal of this tax on medical services, is a must that can be done with minimal revenue loss.

The U.S. Census Bureau estimates more than 30 percent of New Mexico’s population will be over age 60 by the year 2030, an increase of nearly 50 percent from 2012. All of us need doctors, but as New Mexico ages the need becomes critical. There is no panacea, but these are some of  the worst policy obstacles to attracting medical providers to our State.

Paul Gessing is president of New Mexico’s Rio Grande Foundation. The Rio Grande Foundation is an independent, nonpartisan, tax-exempt research and educational organization dedicated to promoting prosperity for New Mexico based on principles of limited government, economic freedom and individual responsibility

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Democracy Protection Pledge

Rebecca L Dow, Governor Travis Steven Sanchez, Lieutenant Governor Ant Thornton, Lieutenant Governor

Mark Duncan, State Representative District 2 Jerri D Rowe, State Representative District 6 Adrian Anthony Trujillo, Sr, State Representative District 11 Kimberly Ann Kaehr-MacMillan, State Representative District 15 Ellis C Mcmath, State Representative District 17 Scott Troy Cannon, State Representative District 18 Kathleen M Jackson, State Representative District 19 Robert A Salazar, State Representative District 20 Stefani Lord, State Representative District 22 Alan T Martinez, State Representative District 23 Khalid Emshadi, State Representative District 24 Robert S Godshall, State Representative District 27 Gregory G Cunningham, State Representative District 29 William R Rehm, State Representative District 31 Jenifer Marie Jones, State Representative District 32 Richelle A Peugh-Swafford, State Representative District 35 Melba T Aguilar, State Representative District 38 Jay Groseclose, State Representative District 46 Rachel A Black, State Representative District 51 John Block, State Representative District 51 Ricky L Little, State Representative District 53 Greg Nibert, State Representative District 59 Larry R Scott, State Representative District 62 Andrew G Kennedy, State Representative District 66 Jimmy G Mason, State Representative District 66

The candidates listed above have signed the following pledge: “I pledge to protect democracy. Thus, I commit to balancing power in future emergency declarations. This includes: restricting “emergencies” to a fixed period of time, clearly defining “emergency” in statute, and requiring majorities in both houses of the state legislature to approve extensions of any “emergency” declaration.”

If you are a candidate for the Legislature or Gov. who would like to sign this pledge please email us: info@riograndefoundation.org

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Las Cruces Sun-News column: New Mexico’s COVID-19 response failed on important metrics

This article appeared in the Las Cruces Sun-News on June 27, 2021. With COVID and the Gov.’s COVID policies at last receding, the race is on to determine how effective or ineffective our Gov.’s lockdown policies really were. Our analysis is below:

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New Mexico Special Election Could Further Reduce Pelosi’s House Majority

The following appeared at National Review on May 4, 2021.

national-review-logo | Jennifer C. Braceras

Nancy Pelosi’s majority in the House of Representatives continues to shrink. The recent swearing-in of Republican Julia Letlow of Louisiana has taken the House Democrats’ majority down to 218–212. This means that Pelosi has a mere two-vote governing majority with which to push the Biden administration’s big-government agenda.

The GOP will soon have another chance to reduce Pelosi’s margin for error when voters in New Mexico’s first congressional district (which includes Albuquerque and its environs) go to the polls to elect a replacement for Biden’s newly minted secretary of the Interior, Deb Haaland, a Democrat. Early voting begins today, while Election Day itself is June 1.

The district is classified by many in the national media as a “blue” district that should safely remain in Democratic hands, and as recently as November 2020, Haaland defeated Republican challenger Michelle Garcia Holmes by an overwhelming 58–42 percent margin. The seat was previously held by New Mexico’s current Democratic governor Michelle Lujan Grisham, and before that, now–senator Martin Heinrich, also a Democrat.

But Republicans have faced challenges in candidate recruitment in recent years in this congressional district. The last time they had a truly top-notch challenger was in 2010, when Jon Barela lost just 52–48 to Martin Heinrich, and in 2009 Heather Wilson, a Republican, held the seat, having done so for a decade. With this race being the sole topic of a special election and so much at stake in Washington, this could be a much more interesting contest than outsiders expect.

The candidates to replace Haaland could not be more different. While there is a serious independent contender and the Libertarians technically have major-party status, the Republican and Democrat contenders are state legislators with long histories of voting on important policy issues. Republican senator Mark Moores has been in the New Mexico Senate since 2013. In addition to his prior experience as a staffer for various Republican officeholders Moores played offensive line for the University of New Mexico Lobos.

Melanie Stansbury, on the other hand, was unknown in the state until she ran for the New Mexico house in 2018. Her prior political experience was in the Obama administration’s Office of Management and Budget.

The legislative track records of these two candidates are also drastically different. For starters, Stansbury strongly believes that New Mexicans should have their tax burdens increased rather dramatically.

In 2019, she voted for HB 6, which subsequently became law. Among other provisions, the bill increased taxes on auto sales, imposed taxes on Internet purchases, and increased New Mexico’s personal income tax. Ironically, this tax hike took New Mexico’s top personal income-tax rate from 4.9 percent (set by former Democratic governor Bill Richardson and the Democrat-controlled legislature) and brought it up to 5.9 percent. Moores voted against the tax hike, but it was subsequently signed into law by Governor Lujan Grisham, despite the state having a surplus in excess of $1 billion at the time.

In their most recent legislative session, the New Mexico legislature was back to raising taxes, and Stansbury was more than happy to go along. Despite the COVID-19 pandemic and a state unemployment rate that remains among the worst in the nation, the combined forces of New Mexico’s resurgent oil and gas industry and the massive economic stimuli out of Washington again put the New Mexico budget comfortably in surplus territory.

Nonetheless, Stansbury and other Democrats in New Mexico’s legislature voted for and passed numerous tax hikes. HB 122, which failed after House approval, was subsequently folded into SB 317 and ultimately signed into law. Stansbury voted for the bills both times. The bills increase a tax imposed by the state on health-insurance premiums from 1 percent to 3.75 percent — a tax increase of 275 percent. Moores voted against the tax hike.

As if that were not enough to illustrate the stark difference between these candidates, Stansbury joined her Democratic colleagues in the New Mexico House to push even more egregious tax legislation in the form of HB 291. This bill which passed the House with Stansbury’s support would have again increased New Mexico’s personal income tax, this time to 6.5 percent, but (more problematically) would have revised the state’s personal income-tax structure to make the higher tax rates kick in at much lower income levels than under current law.

On top of this, the proposal Stansbury endorsed would have allowed property-tax assessments to increase by up to 10 percent annually if the property was not occupied by the owner. The current cap in New Mexico limits annual increases to the already-substantial rate of 3 percent per year. The measure was intended to target Texans with second homes in New Mexico, but it would have applied to apartment and condo dwellers as well.

Fortunately for New Mexicans, cooler heads prevailed in the (also Democrat-controlled) Senate Finance Committee, which eliminated the tax hikes from HB 291 before the bill passed into law.

These are just the tax hikes endorsed by Stansbury in her three short years in the New Mexico legislature. During her time in office, she has voted to ban local governments from enacting “Right to Work” laws on the local level, and she voted for New Mexico to abandon the Electoral College, saying instead that it should dedicate its five electoral votes to whatever candidate won the popular vote. The latter would have dramatically diminished what influence small-population New Mexico has in presidential races for no benefit aside from her ideology.

Stansbury is a true big-government radical. Her advocacy of big government in the New Mexico legislature places her to the left of Nancy Pelosi. At a time when every race matters in a closely divided U.S. House, conservatives cannot ignore this special election in a “blue” but winnable district.

 

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Is New Mexico REALLY “Following the Science” on COVID?

Recently (on February 29, 2021), Tracie Collins, M.D., New Mexico Secretary of Health was deposed in a case in US brought by various businesses that have opposed the Gov.’s lockdown policies relating to COVID 19.

The Deposition was videotaped, so we can provide broadcast news outlets (or even just YouTube and similar platforms) with clips. Here is the full transcript of Collins’ deposition.

Key Take-aways:

  1. The Department of Health does not consider the economic impact of lockdowns in crafting its Public Health Orders.
  2. The Department of Health does not adjust “positive COVID test” results to account for false positive tests.
  3. The Department of Health cannot explain why Florida and Texas, which are not locked down, have lower COVID fatality rates than New Mexico. The experiences of other states are not considered by the Secretary or the New Mexico Department of Health in crafting the Public Health Orders.
  4. The Department of Health does not take into consideration other adverse health impacts, like increased depression, suicide, and childhood obesity in crafting the Public Health Orders.
  5. The Secretary places significant reliance on the Department of Health’s legal staff when crafting the Public Health Orders. She does not know if any of the Department’s lawyers have any training or education in public health.
  6. The Secretary is unaware of any scientific studies that support the specific restrictions, prohibitions, and permitted activities under the Public Health Orders.
  7. The Secretary cannot say whether the risk from COVID must be zero, before the Public Health Orders will end.

Below are Page and Line references to deposition testimony:

Data and Experience from other States “can” be considered in crafting New Mexico’s Public Health Orders, but Secretary Collins will not say that it “should” be considered.  See, page 11, line 2 to line 14 (“11:2 – 14”)

The Department of Health has minimized economic harm from the shutdowns by reducing morbidity and mortality from COVID-19 and keeping people alive so that they will have an opportunity at some time in the future to reopen their business.  See page 32, line 24 to page 34, line 5 (“32:24 – 34:5”)

The Department does not track or control for false positive tests, or make adjustments to their numbers based on the presence of false positive tests.  34:11 – 37:17; and 37:21 – 41:11

The Secretary cannot explain why Florida and South Dakota, which are not locked down, have a lower COVID-related fatality rate than New Mexico.  Nor is she interested in using such data to determine whether lockdowns work.  48:3 – 53:19

The Secretary does not know why New Mexico has not done a regression analysis to determine whether the shutdown orders have had a positive impact on COVID transmission rates.  54:2 – 56:2

The Secretary is not aware of New Mexico attempting any other analysis of the adverse economic impact of the shutdown orders.  She does not know if the State has done anything to consider the economic cost and damage caused by the shutdown orders.  She does not know if the economic costs and damages arising from the shutdown orders is significant.  57:15 – 58:22; and 100:15 – 20

The Secretary does not know what adverse health consequences have arisen as a result of having to close business and losing jobs.  The Secretary has done no study regarding the adverse health consequences caused by lockdowns (increased depression, suicide, childhood obestity, etc.).   58:23 – 63:3

The Secretary is not aware of any studies that the business activities that are permitted under the Public Health Orders are less risky than the business activities that have been prohibited.  63:4 – 64:7

The Secretary would have to confer with the Department’s general counsel (i.e., its lawyers) to understand why certain businesses, like TopGolf and New Mexico United are allowed to operate, and others are not.  64:8 – 66:13

The Public Health Orders do not consider the potential harm or damage to the businesses that are being closed.  The Secretary does not know who, if anyone, in State government is supposed to look at the cost and damage to the businesses and people subject to the Public Health Orders.  67:10 – 69:1

The fatality rate from COVID for children ages 5 to 14 is 0.001%, or 1 out of every 100,000 children who contract the virus.  For children age 19 and under, the fatality rate is 0.003% or 3 out of every 100,000 children who contract the virus.  This is lower than the fatality rates for other infectious diseases.  69:4 – 70:4.

New Mexico has not studied the effect of the pandemic on childhood obesity.  72:20 – 74:13

The Secretary is unaware of any studies by the Department of Health of the impact of play deprivation on children resulting from the lockdowns and public health orders.  80:11 – 82:4

The Secretary cannot say whether the Public Health Orders will continue until the risk of COVID is zero.  82:5 – 83:5

In general, other factors such as adverse health consequences to children and adults and adverse economic impacts on businesses and employees are not taken into consideration by the Department or the Secretary when it comes to the contents of the Public Health Orders.  84:5 – 85:8.

Decisions about which businesses are in what category in the Public Health Orders is determined by the legal department working with the Secretary.  The Secretary does not know if there is a “written trail” for the decision as to which type of businesses will go in which category; nor does she know if any of the lawyers in her department have any education in public health.  89:1 – 18

The Secretary is unaware of any analysis or studies that were performed before gyms, group fitness classes, skating rinks, bowling alleys, and personal trainers were taken off the “prohibited from opening list” in the Public Health Order, to the permitted to open under limited capacity list.  93:23 – 94:14

The Secretary would have to confer with the Department’s lawyers before she could say how an industry or particular business activity can have its category or definition changed and be allowed to open.  94:15 – 95:7.

The Secretary would have to confer with the Department’s lawyers to understand why some business that cannot practice social distancing, like massage parlors, barbershops and nail salons are open, while other businesses, like trampoline parks and other “close-contact recreational facilities” where the Department is concerned about social distancing, are closed.  100:21 -101:23.