As lawyers who, with the late Phil Davis, worked on the Jackson lawsuit since 1987, we write to respond to the Journal’s April 28 article regarding its dismissal and to urge the state to protect the benefits of the case.
As stated in the Journal, Gov. Michelle Lujan Grisham deserves much credit for ending the lawsuit, as does Kathy Kunkel, the former Health secretary whose tireless work improved the Intellectual and Developmental Disabilities (I/DD) system. The Jackson community monitor, Lyn Rucker, and Jackson compliance administrator, Dr. Sue Gant, also deserve much credit. Their decades of guidance taught innumerable New Mexicans essential values and much-needed state-of-the-art methodologies.
However, the people who most deserve credit are the dedicated and capable employees of the Department of Health. The hard work, strong values and genuine concern for our clients shown by DDSD Director Jason Cornwell and Deputy Directors Scott Doan and Jennifer Rodriguez, and by DHI Deputy Division Director Shadee Brown, deserve special acknowledgement. Their dedication, and that of many other state staff, influenced our decision not to appeal dismissal.
Despite the court’s ruling that defendants achieved most of what they promised in 2019, the 5,000 people in New Mexico’s I/DD service system are, in our opinion, in danger. They are not receiving the services required by their Individual Service Plans (ISPs) in violation of the Medicaid Act, and participants who have severe disabilities are not receiving the reasonable accommodations required by the Americans with Disabilities Act.
A major threat is underfunding; particularly regarding: (1) wages for direct support professionals (DSPs) who must implement the ISPs; (2) improper compensation for nursing services and (3) inadequate therapy service rates. Wages paid to DSPs are comparable to Burger King employees; accordingly, many DSPs are young, with limited education and without the sophistication ISP implementation requires. This problem is now a crisis. Therefore, the state must: (1) increase the rates paid to provider agencies to enable them to pay sufficient wages to attract people who can properly implement ISPs; and (2) mandate the wages provider agencies pay are a “living wage” enabling sophisticated adults to be DSPs as a career. In 2002, the state required Medicaid-funded “personal care option” provider agencies to pay $9 per hour. DSP wages should be similarly mandated.
The second threat is the 1,500 people in the “self-directed” Mi Via Waiver don’t get the oversight and protections from harm that “traditional waiver” participants receive, and reasonable accommodations are not provided to Mi Via participants with severe disabilities. The residential rates paid, and the health care oversight and nursing services required, are not stratified based on level of need, unlike in the traditional waiver. People have died due to Mi Via’s failure to accommodate their severe disabilities.
The third threat is that, although the ink is barely dry on the dismissal order, officials are reportedly discussing eliminating vital improvements caused by the Jackson case, including: (1) post-hospitalization discharge planning by state staff, (2) periodic on-site monitoring of people with highest medical risks by state nurses, and (3) eliminating detailed service standards established through court supervision.
If these concerns are not promptly corrected, New Mexico’s celebration of our I/DD system being freed from court oversight could be short-lived. That would be tragic and must be avoided now.