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Judge finds program violations

SANTA FE, N.M. — A federal judge has found constitutional violations by two state departments in charge of a federal program for people with disabilities significant enough to order reinstatement of services that were cut until a reassessment can take place.

The 57-page opinion and order filed late Tuesday by U.S. District Judge Judith Herrera finds due process violations that the court found satisfy the “heavy burden” required of advocacy groups seeking a preliminary injunction.

In granting the injunction, Herrera agreed with the disability groups that harm was indeed occurring to persons receiving benefits and services under the Medicaid DD Waiver program. The DD waiver, which serves roughly 4,000 individuals in New Mexico, provides community-based services to people with disabilities, including everything from residential help to physical, occupational and speech therapies.

“The court concludes that the most reasonable inference from the evidence presented by those disabled individuals is that a reduction in their benefits and services will likely result in harm to their physical and/or mental well-being,” Herrera said in the opinion, rejecting the state’s defense that any harm was merely speculative.

State officials said at the time the lawsuit in was filed January 2014 – about six months after its new assessment system was implemented – that it replaced a process that was obsolete and that it had resulted in trimming some of the 6,000-person waiting list for services.

A spokesman for the Department of Health could not be reached for comment Wednesday.

What brought about the lawsuit were changes to how the state decided which services to provide.

The new assessment tool, called SIS for Supports Intensity Scale, separated recipients into groups from A to H, with A and B considered those with the least complicated, or having least intensive support needs.

Nancy Koenigsberg, legal director for Disability Rights New Mexico, which joined the ARC of New Mexico to sue on behalf of individuals on the waiver, said those in groups A and B would be expected to live on their own in an apartment not paid for by the program.

The problem was not so much in how the respective classifications were defined, but rather in how the state decided to put someone into that group – and the fact that there was no recourse once an individual was there, Koenigsberg said.

“There was no way to challenge their SIS score,” she said.

For instance, Herrera’s opinion cites the case of S.F., a 24-year-old woman with Down syndrome who functions as a child under age 10. S.F. has a history of setting fires, wandering away from home and inappropriately interacting with strangers.

She received speech therapy because of difficulty making herself understood, but under the state’s new scheme, her speech therapy and day programs were reduced and her family living services eliminated entirely.

The court said the notice of her SIS group placement didn’t tell her that family living services were gone, or that she had to choose just one of the three therapies she had been receiving.

“It appears that the only way for a recipient to find out what happened at his or her SIS verification (placement) is to make a public records request to obtain documentation of the meeting,” Herrera wrote, adding that nothing in the record indicated that the state had “informed recipients of that fact.”

Herrera’s ruling is based on three days of testimony taken during an August hearing on the request for a preliminary injunction.

Koenigsberg said the organizations believe “almost everyone was adversely affected one way or another.”

The groups received hundreds of calls from worried families.

“There was the emotional strain on those who felt helpless trying to negotiate a complicated system in hopes of preserving the waiver services they believed their family member or protected person needed.”

Koenigsberg said she hopes to meet soon with state officials to work out details from the ruling.