“Over a month ago, Mr. Gardner sent an email to state officials requesting to meet with them over this recent death. To this date, we have not received any type of response from them. We are exploring other courses of action because of the failure of state officials to be responsive.” – Statement from Disability Rights New Mexico
For more than two months, New Mexico’s Governor has used the excuse of an ongoing law enforcement investigation to avoid answering questions from the media about the death of a young woman in the care of the state’s Developmental Disability Waiver programs.
The Governor will not even acknowledge whether the young woman has passed away, reminiscent of her predecessor refusing to speak, during a state of the state address, about the failure of the state to protect nine year old Omaree Varela of Albuquerque, from a terrible death.
While her administration’s public relations personnel attempt to control any narrative about the matter which the Governor herself described as “horrific,” the state is required by federal law to be responsive to requests for information from New Mexico’s Protection & Advocacy agency.
Federal Law, specifically 42 U.S. Code § 15043 (a) (1), requires each state receiving federal money on behalf of residents in need of disability care to provide “a system to protect and advocate the rights of individuals with developmental disabilities[.]”
That federal law also requires that system “be independent of any agency that provides treatment, services, or habilitation to individuals with developmental disabilities[.]”
Every state has such a system, and they are known as Protection & Advocacy agencies (click here for a list of such agencies throughout the country).
New Mexico’s Protection & Advocacy agency is Disability Rights New Mexico, DRNM.
Protection & Advocacy agencies are required to “be independent of any agency that provides treatment, services, or habilitation to individuals with developmental disabilities[.]”
They also have the authority to investigate abuse and neglect of individuals with developmental disabilities, if they determine “there is probable cause to believe that the health or safety of the individual is in serious and immediate jeopardy; or in any case of death of an individual with a developmental disability.” – 42 U.S. Code § 15043 (a) (2) (B), and 42 U.S. Code § 15043 (a) (2) (J).
New Mexico receives hundreds of millions of federal dollars for the care of residents of the state in its care – and the state is required to abide by the rules established for the programs paid for by those federal funds.
Governor Lujan Grisham knows the rules, if for no other reason than, before she was elected governor over four years ago, she was Albuquerque’s representative in the U. S. House.
Her Secretary of the Department of Health, Patrick Allen, Secretary Katrina Hotrum-Lopez of the Aging and Long-Term Services Department, and New Mexico’s Human Services Department Acting Deputy Secretary Alex Castillo Smith, all know the rules.
Yet, the state has ignored requests for a meeting from Disability Rights New Mexico.
On Monday, May 15, 2023, The Candle emailed Disability Rights of New Mexico the following (including the list of questions), seeking a statement:
“…For more than two months The Candle has made multiple and specific queries of both DOH and the Office of the Governor (GOVERNOR), regarding the condition of the consumer(s) who have been reported as having experienced life-threatening abuse or death.
The DOH and the GOVERNOR have each refused to answer any of the questions we have asked of them regarding the matter. And while we have received some responses to an Inspection of Public Records Act (IPRA) request, it is clear to The Candle that the administration is dragging its feet.
The administration uses a blanket excuse to the media in general that the ‘matters are under investigation by law enforcement’ and they have been asked not to reveal any information.
A majority of the law enforcement agencies referred to by the DOH and the GOVERNOR are under some control of the executive branch of the state government.
It is my understanding that Disability Rights New Mexico (DRNM) is the organization engaged to fill the role described by federal law for the state to have “a system to protect and advocate the rights of individuals with developmental disabilities” – 42 U.S. Code § 15043 (a) (1) …”
“Can you please provide responses to the following questions?
1) Given that the matters referred to in the various DOH and GOVERNOR statements described above, have been publicly known since at least March 10, 2023, has DRNM conducted its own investigation into the matters?
2) If so, when was DRNM notified by the DOH or GOVERNOR of the abuse, neglect, and exploitation?
3) Has the state, as is required, provided DRNM access to all documents and other information relative to its investigations of the matters referred to in this email?
4) What is the status of the DRNM investigation(s), and if not completed, when do you expect that they will be completed?
5) Other than providing information requested for its independent investigation of any abuse, neglect, or exploitation matters undertaken by DRNM, has the DOH and/or GOVERNOR (including any employees of each agency) communicated in any way with DRNM seeking to influence in any way the timing, scope, or conclusions of the investigations?”
The Candle received the following statement from the Chief Executive Officer of DRNM in reply to the emailed questions above:
“Thank you for reaching out to DRNM and Tim Gardner, our Director of Legal Services. We appreciate your deep concern over the tragic death of an individual on the DD Waiver in New Mexico. We share that concern about what needs to be done in order for individuals with disabilities be safe and provided care that they need.
“Over a month ago, Mr. Gardner sent an email to state officials requesting to meet with them over this recent death. To this date, we have not received any type of response from them. We are exploring other courses of action because of the failure of state officials to be responsive. (Emphasis added.)
“With respect to conducting our own investigation, we certainly have the authority to conduct our own investigation based upon the information that has been disclosed. However, with an ongoing criminal investigation and possible prosecution, we have decided to wait until that investigation is over and a final report produced. We expect to review the report and make a decision whether we need to conduct a further investigation. We are greatly concerned about this loss of life, and the safety of program participants generally, but we have limited resources that require DRNM to decide how best to utilize our resources strategically with such an investigation. In this case, we have determined that we could not shift our resources from other responsibilities to our client community to conduct an immediate investigation while law enforcement had started their own. As of this date, we have not collected any investigatory information.“