On Wednesday, at a hearing of the New Mexico Legislative Health and Human Services Committee, when Chairman Gerald Ortiz y Pino asked specific questions about what the Department of Health knew regarding the practice of classifying direct service workers as independent contractors instead of employees, both DOH Secretary Patrick Allen and Developmental Disabilities Supports Division Director José Acosta said they did not have sufficient information to meaningfully respond.
Ortiz y Pino also raised the matter of a related class action federal lawsuit filed by direct service workers against a provider agency in southern New Mexico seeking years of overtime pay they were denied.
Despite the fact that the provider agency being sued receives substantial funding via the state’s DD Waiver program, Allen and Acosta essentially offered the same response – kind of like they didn’t know very much about it.
But the DOH has known for a while that most provider agencies the state funds have allegedly been classifying many direct care workers as independent contractors instead of employees in order to save money.
These provider agencies also claim that the state pays them at rates so low such practices are the only way they can operate.
For several years, such misclassification has led to some providers not paying overtime for hundreds of hours worked by already underpaid direct care givers.
Allen and Acosta seemed caught off guard at yesterday’s Legislative Health and Human Services Committee meeting when Senator Ortiz y Pino and other members of the committee pressed them for answers.
Evidence produced from an Inspection of Public Records Act request made by The Candle last month reveals the DOH legal office has been aware of the lawsuit since at least October 20, 2023.
The email was from attorney Krystle Thomas of the Rodey Law Firm, which represents the DD Waiver services provider agency being sued.
It states that DOH employee Angie Brooks has talked with the defendants regarding the practice by agencies of classifying direct service providers as independent contractors rather than employees.
Thomas wrote DOH attorney Chris Woodward:
“Quality Life Services’ owners, April Licon and Sally Chavez, have spoken to Angie Brooks regarding the same. It is my understanding that Ms. Brooks has knowledge regarding the DD Waiver provider agency landscape and, specifically, knows that most agencies classify their DSPs as independent contractors rather than employees.”
(A copy of the email can be read at the end of this article)
The DOH wrote to The Candle that it had no record, other than this one email, about the lawsuit.
According to the standard contract that DOH usually uses with provider agencies such as Quality Life Services, if the provider is sued, it must promptly notify the DOH. The standard language reads:
“In the event that any action, suit or proceeding related to the service PROVIDER is initiated, the PROVIDER as soon as practical, but no more than two (2) working days after notice of such action, suit or proceeding, shall notify the Office of General Counsel of the DEPARTMENT by certified mail.”
The lawsuit was filed in August of 2022. There have been at least 148 actions docketed in the case, and DOH’s response to The Candle’s IPRA request indicates no such notification was made.
It is interesting, however that the defendants have had conversations with DOH personnel about the case.
A State Personnel Office Organizational Listing Report for October identifies Angie Brooks as working directly for Acosta.
The existence of this email begs the question:
If the legal office at DOH is being asked to produce a DOH employee for an interview as a potential witness, why did Allen and Acosta profess to know little about the case?