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Settlement reached over DD waiver program

ALBUQUERQUE, N.M. — Marathon discussions between state officials and disability advocates led to a settlement presented Thursday to a federal judge who previously had found unconstitutional violations in the state’s new system for gauging benefits.

U.S. District Judge Judith Herrera in March found due process violations by the state and issued a preliminary injunction against it in the so-called DD waiver program. Her ruling came after a two-day evidentiary hearing last August.

The revisions outlined in the settlement avoid the state’s plans to appeal Herrera’s previous ruling to the 10th Circuit.

The waiver program, implemented by the Department of Health, affects some 4,000 individuals and their families statewide.

The revisions also allow some people with disabilities to return to their previous levels of services, at least temporarily.

Services to many recipients were cut when the state started using the SIS, or Supports Intensity Scale, to determine needs of individuals in the program.

Actual service plans and budgets now will be based on an individual’s specific documented needs and not just on a SIS score.

The settlement also provides for an appeal process, the lack of which Herrera had found to be one of the most troubling aspects of the state’s move to what it touted as a more efficient assessment process.

Jim Jackson, executive director of Disability Rights New Mexico, noted that if participants face denials or limitations of services in the future, they will have a meaningful opportunity to appeal and regain access to therapies and services that had been denied.

For instance, a 24-year-old woman with Down syndrome and a history of wandering, setting fires and talking to strangers had her speech therapy and day programs reduced and her family living services curtailed.

Each proposed plan and budget will be analyzed by an independent disability professional outside the department who can approve or deny the plan in whole or in part.

“This agreement restores a person-centered approach to the DD waiver program”, said Randy Costales, executive director of The Arc of New Mexico. “It allows for each participant to get the scope and level of services they need – no more, but no less.”

Jennifer Hall, who represented the state, noted the language of the settlement meets the due process concerns cited by Herrera and allows minor disagreements to be ironed out at the agency level without having to return to court.

Attorney Maureen Sanders, representing the Arc, said the District Court’s oversight will continue for two years should there be more systemic issues to be addressed.

Herrera praised the parties and Chief U.S. Magistrate Judge Karen Molzen, who oversaw a resolution to the dispute during 12-hour sessions over six days in the last month. As Molzen entered the courtroom to watch the proceedings, Sanders called her “a saint” for efforts by her and her law clerk.