Aug 28, 2014
Recent update in the DD Waiver Case Waldrop et al. v. New Mexico Human Services et al.
On January 15, 2014, a lawsuit was filed against the state, with several named plaintiffs, including Disability Rights New Mexico (DRNM) and The Arc of New Mexico. The reason for this lawsuit is that the state is improperly denying DD Waiver participants essential Medicaid services using the Supports Intensity Scale (SIS). The state is required to use the SIS in a way that does not violate state and federal law, and to take the needs of each individual DD Waiver participant into account when deciding what services they need. Our goal is to make sure that the state meets these critical obligations, and that the health and safety of Medicaid participants is protected.
On August 18-20, 2014, a federal court judge heard part of this case for the first time. Attorneys for Plaintiffs - DRNM attorneys, Maureen Sanders and Nancy Simmons - went to court and asked a federal judge to stop the state from using the SIS until the New Mexico Department of Health and New Mexico Human Services Department meet certain conditions. This kind of request is called a preliminary injunction. It is important to note that a preliminary injunction is hard to get because it is decided before the court hears the whole case. However, even if we don't get the preliminary injunction, the case still moves forward.
The argument in our request for preliminary injunction is that the state has been placing DD Waiver participants in SIS Groups without giving them a fair opportunity to protest the changes in their services. If the judge grants the request for a preliminary injunction, then New Mexico will not be able to use the SIS until they allow DD Waiver participants to fairly contest their SIS group assignments if they chose to do so. We also asked the judge to erase the SIS Group placement for any DD Waiver participant who has not received a fair chance to protest their SIS Group. Those person would receive new SIS evaluations and an opportunity for a proper appeal once the state shows that they are in compliance with federal law.
The hearing took place over three days. We believe that we put on a good case, and that the judge was receptive to the arguments we made. A couple of named plaintiffs testified during the hearing, while others came to court to observe the proceedings.
The judge will consider everything that was said and presented during the preliminary injunction hearing and will decide whether to grant our request for relief. Before that happens, both our side and the state will submit a written statement telling the judge what we think she should do given the evidence that was presented at the hearing. We are hopeful that the judge will consider this information and rule on our request for preliminary injunction before the end of 2014.
After the judge decides what to do about the preliminary injunction we have requested, the Court will schedule a full trial concerning the complaint we filed in January 2014. This trial will cover all of the issues we raised in the complaint, including the need for the state to meaningfully consider input from a Medicaid participant's treatment team before assigning them to a SIS Group.
In June 2014, we entered into an interim agreement to preserve services for those on the Waiver who had not yet transitioned into their new SIS group service packages. The interim agreement is in effect until the judge rules on the preliminary injunction or December 31, 2014, whichever comes first.
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