Investigation of DD Waiver Abuse Case ‘Not So Independent’ – Governor Hires Law Firm with History of Defending Agencies Against Abuse and Whistleblower Complaints.

So-called third-party investigator has contracts from Lujan Grisham Administration totaling at least $641,571 – most to defend/negotiate settlements of claims against state.

On March 20, 2023, Governor Michelle Lujan Grisham held a press conference announcing her administration’s response to what she defined as a “horrific case of abuse” of a client in the care of the Department of Health’s Developmental Disabilities Supports Division.

She also released a statement that day, writing her administration was taking steps to investigate the abuse.

Multiple other potential cases of abuse, including at least three instances where a client in the care of the state died, have come to light as a result of recent activity of the state.

In the press release, which was jointly released by her communications people and the Department of Health (DOH), the governor wrote,

“Other steps being taken by the state include an independent, third-party investigation to evaluate the DOH Developmental Disabilities Division (DDSD) and the DOH Division of Health Improvement (DHI) procedures to determine systemic flaws that allowed the alleged incidents to occur.”

However, in words and action, the Governor drops “Independent” from “Investigation” of DD Waiver Abuse Case.

In an update on the abuse related problems that seem to be plaguing the state’s agencies that are supposed to protect vulnerable state residents, the Department of Health released a statement on Friday, March 31, 2023.

In that statement, it is clear the Governor has decided to drop her commitment for an “independent” investigation into related matters, as her health agency now writes that it is a third-party external investigation.

No longer is the qualifier “independent” included in the Lujan Grisham Administration’s description of the investigation. Here is the quote now used by the Department of Health:

“The state of New Mexico has also contracted with German Burnette & Associates in partnership with Accenture, a company that specializes in Medicaid issues, to conduct a thorough third-party external investigation.” 

Descriptive Slight-of-hand.

Characterizing the investigation as external does not make it independent.

It is noteworthy that the Governor waited at least three weeks before making a statement about the abuse of a Developmental Disability Waiver Client. In fact as of this morning she continues to hide important details of the case.

She has deftly backed away from an ‘independent” investigation, and is engaging an investigator that apparently represents the interests of her agency – a law firm that will not provide a copy of the contract detailing specifics of the charge from the Governor’s administration.

The result of a real independent investigation might have an adverse impact on the Governor’s reputation.

(In a story soon to be published, The Candle will report on the failures of the Lujan Grisham administration to protect children and vulnerable adults in the care of her agencies.)

A quick search of the New Mexico Sunshine Portal reveals German Burnette & Associates has at least nine (9) contracts with the Lujan Grisham Administration worth $641,571.12 since August of 2019 – see table below.

The majority of money received through those contracts, eighty-percent (80%) appears to be with the Rick Management Division (RMD) of the New Mexico General Services Department.

One of the main functions of the RMD is to provide “legal defense for the State of New Mexico.”

RMD contracts with many law firms, including, apparently, German Burnette & Associates to defend or negotiate settlements on behalf of the state and other public entities in abuse, neglect and whistleblower type claims brought against the government.

The Candle placed two calls last week to the law firm seeking a copy of the new contract with the state regarding the investigation it was to undertake and a description of the scope of the work it would produce.

NOTE: in an earlier version of this story, The Candle reported that “the lawyers did not return the calls.”

On Monday morning Jason Burnette, an attorney with German Burnette & Associates returned the calls from last week.

Mr. Burnette confirmed that his firm was contracted by the state, in particular by the Department of Health to perform an outside or “external” investigation in the matters related to the DDSD abuse reports the Governor spoke about in her press conference.

Burnette also acknowledged that his firm has represented agencies of the state in matters relative to claims made against the state.

When asked how the investigation he would undertake could be “independent” given the history of the work his firm has done defending the state, he said all he was able to comment on was that it would be an external investigation.

He would not provide a response to questions relative to the difference between an “external” investigation and an “independent” investigation.

Burnette was also asked for a copy of the contract through which his firm was engaged to do the investigation, but refused to provide it suggesting he could send a link to The Candle for an Inspection of Public Records (IPRA) request.

There is nothing which prevented the law firm from producing a copy of the contract papers as they are public documents.

The Candle also offered to publish a statement from the law firm for this story if Burnette cared to email one – when one is sent the story will be updated.

A review of cases for which lawyers of German Burnette & Associates have filed an appearance in New Mexico courts reveals it has handled multiple cases for state agencies and political subdivisions of the state, such as the Public Education Department and school systems representing against plaintiffs who allege being victims of abuse, and whistleblower-type cases, in which the public agency is a defendant.

In other words, the firm defends against the very types of claims that might be derivative of an unbiased, independent investigation of the Department of Health’s failure to protect clients in its care.

To now infer that any investigation by German Burnette & Associates could be independent is at best a stretch.

The Governor seems to be trying to minimize the exposure of her administration’s failure to protect the vulnerable people who were supposed to be protected and cared for by her Department of Health’s Developmental Disabilities Supports Division.

To be sure, the state and the Governor’s administration, have rights to be defended against claims – but the Governor does not have the right to stack the deck against what could be legitimate claims of abuse and neglect by suggesting or inferring the work of this law firm is actually independent of her or her agency’s influence.

NOTE: Last week, The Candle made a request of the communications directors for a copy of the contract(s) that the Department of Health and the Governor have referred to. Both communications directors chose to ignore the request.

In lieu of their anticipated lack of a response, The Candle submitted an Inspection of Public Records request for a copy of the contract(s), which should be easy to locate and forward.

Instead, the custodian of records wrote The Candle that her agency “will need additional time to respond to your request and will respond by 4/14/2023.”

The following table was created from information provided on the New Mexico Sunshine Portal:

Previous stories related to this matter:

Advocates Dismayed at Termination of DD Waiver Supports Division Director – Was he Thrown Under the Bus?

Governor Lujan Grisham is Withholding Information on Horrific Abuse of Young Woman Client of DD Waiver.

House GOP Seeks “Truly Independent Investigation,” DEMS Quiet, After Governor Keeps Legislators in Dark During Session On Full Extent of Abuse of DD Waiver Clients