COURT UPHOLDS VALIDITY OF LAWSUIT CHALLENGING

LONG WAITS FOR WAIVER but Judge temporarily halts proceedings

It was a long time in coming, but the result was an important victory for New Mexicans with disabilities. On April 21, a federal judge issued her ruling on the state’s efforts to throw out P&A’s lawsuit seeking more home- and community-based long-term care services for New Mexicans with disabilities. Judge Martha Vásquez ruled that the lawsuit sets forth valid legal claims and must go forward.

Unfortunately, due to quirks in federal judicial procedures, Judge Vásquez stayed proceedings in the case, at least temporarily, while the state seeks to appeal her ruling.

The lawsuit, called Lewis v. New Mexico Dept. of Health, was filed in January 1999 [see the Winter 1999 issue of El Guardián]. It asserts that the state’s failure to provide more Medicaid home- and community-based “Waiver” services, more quickly, violates the Medicaid law’s “reasonable promptness” requirement, the Americans with Disabilities Act (ADA), and constitutional due process. Hundreds of New Mexicans have been on waiting lists for services under the Disabled and Elderly and Developmental Disabilities Waiver programs for years.

The lawsuit was brought by a number of individuals and by Protection and Advocacy System (P&A) in collaboration with The Arc of New Mexico. P&A is federally funded to promote and protect the rights of people with disabilities. The Arc advocates for persons with developmental disabilities and their families, and is the guardian of several of the named plaintiffs. The named defendants in the case are Governor Gary Johnson, the state Department of Health and the state Human Services Department,
and the heads of those agencies.In June 1999 the defendants filed several motions to have the case thrown out of court, contending that the lawsuit did not state valid legal claims against them, but that in any event the state is immune from suit under the doctrine of “sovereign immunity”. Judge Vásquez’s ruling completely rejected those contentions.

P&A Executive Director, Jim Jackson, welcomed the ruling as a “major victory for us and our clients,” noting that the state officials and their attorneys “have tried to delay, for as long as possible, a determination of the rights of persons to obtain Waiver services promptly.”

In rejecting the state’s “sovereign immunity” arguments, Judge Vásquez held that the provisions of the Americans with Disabilities Act, and the state’s obligation to comply with its citizens’ legal rights under the types of programs at issue in the case, override such claimed immunity.

Among other things, Judge Vásquez agreed that a federal law requiring that Medicaid services be provided with “reasonable promptness” applies to applications for Waiver services, and can be enforced by the courts. Her written ruling characterized the waiting time of two years and longer for Waiver services as “egregious.” Judge Vásquez also rejected Governor Johnson’s motion to be dismissed from the case. She ruled that according to the allegations in the lawsuit, the Governor had vetoed an appropriation for Waiver services and otherwise participated in knowingly under-funding the Waiver programs resulting in the failure of individuals with disabilities to obtain services with reasonable promptness. Therefore this is a valid legal claim against him.

State appeals the ruling. Within days of Judge Vásquez’s ruling, the state appealed to the Tenth Circuit Court of Appeals. Under technical rules of court, states are able to immediately appeal rulings denying sovereign immunity defenses. To further delay the case, they also asked Judge Vásquez to stay all proceedings until their appeal is decided—which could take many more months. Plaintiffs’ attorneys have opposed the stay request, contending, among other things, that the state’s appeal is frivolous and filed for purposes of delay.