Last Year House Democrats Voted Against Increase in DD Waiver Funds – Hurting 1,266 of the Most Vulnerable Clients

New Mexico Democratic Leaders Turned Blind Eye to Mistreatment of Workers and Clients in DD Waiver Programs – Will They Course Correct in Budget Deliberations?

Last year, despite claims by the Chairman of the House Appropriations Committee and the Health Care Authority that New Mexico was going to provide long overdue increases in funding for the Developmental Disabilities Waiver (DD Waiver), more than 1,266 of the most vulnerable clients in the New Mexico DD Waiver program, saw a real time cut in the rates for the services they need.

Chair Nathan Small, a Democrat from Southern New Mexico, argued against a budget amendment that would have added funding to the Developmental Disabilities Waiver program that was needed to insure sufficient and safe residential related services and care for a large number of program recipients.

He, and the House Democratic leadership tabled the the amendment – with only one Democrat breaking ranks.

The affect recipients are amongst the Wavier Program’s most vulnerable population – 68 people in the Intensive Medical Living program and 1,198 people in the Supported Living Category 4, Extraordinary Medical/Behavioral Support program.

Despite Chairman Nathan Small’s claim that there was an increase in the overall amount of money the approved, he and the other legislators were warned during a debate on the budget that a rate study being used by the Governor’s team was a ruse.

In order to artificially reduce labor cost projections, the study ignored the illegal practice of misclassification of direct care workers as independent contractors instead of employees.

The use of that misclassification practice meant thousands of direct care workers would be denied full pay and protections.

Legislators and the Governor’s Secretary of Workforce Solutions were warned about this illegal practice before the budget debate.

In November of 2023, The Candle reported on a lawsuit filed in federal court regarding this misclassification.

From The Candle – November 29, 2023

“When a group of Las Cruces area direct care workers at Quality Life Services, LLC were paid as “independent contractors,” they were denied being paid overtime – despite routinely working more than 40 hours a week.

Misclassification of an employee as an “independent contractor” is a violation of labor law.

Yet, a consultant for the New Mexico Department of Health’s Developmental Disabilities Support Division (DDSD) wrote in a rate study report regarding rates paid to provider agencies, like and including the one being sued, that, “Ensuring compliance with labor laws is not the responsibility of DDSD … ”

And, while writing in its report that DDSD is supposed to ensure adequate reimbursement for the cost of services for Developmental Disability Waiver participants, the consultant doubled down on its assessment that “DDSD does not have the responsibility to ensure providers follow labor laws.“

Is this a matter of “see no evil, hear no evil, speak no evil?”

Well, the direct care workers, most of whom are paid at the lower end of the pay scales in New Mexico, reached a large settlement on their lost wages.

And, as will be further reported this week, the United States Department of Labor is doing what the Governor and her labor Secretary refused to do – investigate the wide-spread misclassification of direct care workers in the DD Waiver programs.

(NOTE: Since the settlement of the class action lawsuit, several of the provider agencies which were lured by the Lujan Grisham administration into the illegal practice of misclassification have since met with federal officials and are reclassifying their workers as employees and providing the proper wages and protections.

However, the current budget recommendations from both the Governor and the Legislature do not take into account funding to meet the correct rate wage calculations for these workers.

If not corrected, the end result will be more provider agencies reducing the available services.

Now you See it, Now You Don’t – A government Shell Game

During the budget debate of 2024, Legislators were also warned that the Lujan Grisham administration budget proposal would not back-fill the temporary COVID funding it used to increase rates in 2021 through 2023.

That meant the money being appropriated, while on paper looking like an increase, will in fact become a decrease in real dollars available for at least two key programs impacting 1,266 of the most vulnerable Waiver clients.

After approving a budget with insufficient funding, the Governor’s team continues their cruel ruse – claiming that there would be a rate increase, even as they reluctantly acknowledged the actual rate to be paid under their proposal was less than the current year.

In December, The Health Care Authority’s final proposal became a reality – cutting rates in real time for vital services in the programs for Intensive Medical Living and the Category 4 Supported Living Program for Extraordinary Medical and Behavioral Health Support programs.

These legislative and executive branch shell games highlight the misleading assertions of fixing the DD Waiver Programs.

Despite claims by the Lujan Grisham Administration that New Mexico no longer has a wait-list for DD Waiver services, the reality is many are waiting for vital services for which the list of professionals available to provide the services is shrinking.

In 2022, Governor Michelle Lujan Grisham and Democrats in the legislature claim they did away with a decades old DD Waiver “waiting list” comprised of thousands of developmentally disabled New Mexicans.

In reality, the waiting list still exists – people who are now approved by the state for services (some having waited for years), now have to wait to receive the care because provider agencies are withdrawing services.

Many of the agencies that provide DD waiver services have not been able to hire a sufficient number of qualified direct care employees to meet the need – low wages paid due to years of insufficient rates paid by the state drives the inability to serve this vulnerable community.

Last year, during a meeting of the Legislature’s Interim Health and Human Services Committee, Representative Liz Thomson, herself the mother of a son with developmental disabilities, warned that while the waiver wait list may have disappeared on paper, in reality people were still not receiving services.

“There aren’t services available. You may get a spot on the Waiver, but if there’s no PT [physical therapists – for example] to provide the service, you’re not on the Wait list, but you’re also not getting services. Workforce, once again strikes …”