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NM agrees to settle 32-year-old lawsuit

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The Pete V. Domenici federal courthouse in Downtown Albuquerque. (Roberto E. Rosales/Journal)

Copyright © 2019 Albuquerque Journal

SANTA FE – New Mexico has agreed to clear a backlog of overdue investigations into abuse and neglect of people with developmental disabilities as part of a settlement agreement that could end 32 years of litigation.

The settlement – tentatively approved by a federal judge Thursday – outlines a path to ending one of the longest-running cases of its kind in the country.

The class-action lawsuit, filed in 1987, centers on services for people with developmental disabilities.

In 1990, a federal judge ruled that New Mexico was violating the constitutional rights of people housed in state-run institutions, where they endured inhumane treatment. The decision resulted in court oversight of services to people with developmental disabilities.

Thursday’s settlement calls for an end to monitoring by a compliance administrator. The state, in turn, committed to meeting a series of standards in its developmental disability programs.

By the end of the year, for example, the agreement calls for the state to eliminate a backlog of overdue investigations into allegations of abuse, neglect and exploitation of people with developmental disabilities.

Gov. Michelle Lujan Grisham, a Democrat who took office Jan. 1, said she made settling the case a priority. It has cost the state about $50 million in litigation expenses, according to her administration, and carrying out the terms of the settlement should cost less than continuing the suit.

“This agreement acknowledges the progress the state has made in creating programs to protect vulnerable individuals while ensuring we do not operate under extensive and intrusive monitoring obligations,” Lujan Grisham said in a written statement Thursday.

Maureen Sanders – an attorney for the Arc of New Mexico, a developmental disabilities group involved in the case – said she hopes the new administration brings a “rejuvenated” effort to addressing long-standing problems in providing services for people with developmental disabilities.

The lawsuit, she said, has already resulted in improvements. The state has since closed institutions and moved to provide services in group homes and other less restrictive settings.

“I think the important thing is, during the length of this lawsuit, people’s lives have changed for the better – dramatically,” Sanders said. “Members of the class are attaining abilities and skills that were not thought imaginable back when they were in the institutions, and that’s a good thing.”

Senior U.S. District Judge James A. Parker granted preliminary approval Thursday. Final action on the settlement is expected later this year, allowing extra time for people to evaluate the terms and raise objections.

Under the agreement, the state will conduct reviews to determine whether certain people covered by the lawsuit are receiving the appropriate level of support. State-employed nurses will also monitor and review the health care status of people covered by the suit and take action to protect them when needed.

The settlement also outlines requirements for data collection and unannounced visits to ensure people are getting the required level of services.

The case will be dismissed for good if the court determines the state has complied with all provisions of the settlement.

New Mexico provides therapy, assisted living and other services for people with developmental disabilities through “waiver” programs, sometimes called the DD waiver, or developmental disability waiver.

It’s called a waiver because the federal government, for some states, has waived the requirement to use a nursing home or other institutional setting to provide services.

The litigation itself is known as the Jackson lawsuit, named for lead plaintiff Walter Stephen Jackson.

“We, as a state, are committed to providing the best possible care to anyone who enters into one of our waiver programs, making sure they have every opportunity to create and lead a life based on their interests and abilities in the community of their choice,” Health Secretary Kathy Kunkel said Thursday in a written statement.

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