Bill would stop payments on 23-year-old suit

By Steve Terrell: The Santa Fe New Mexican

State Sen. Rod Adair is sponsoring legislation that would cease payments to lawyers in a 23-year-old lawsuit against the state and earmark that money to help those with developmental disabilities.

Adair, R- Roswell, says the Jackson vs. Ft. Stanton lawsuit has served its purpose in improving care for the developmentally disabled. But in the past decade, lawyers for the plaintiffs have made millions of dollars from the suit, he said Tuesday.

“There’s no incentive for the plaintiff’s attorneys to ever end this lawsuit,” Adair said. “Enough is enough.”

The Department of Health has requested $4.75 million in next year’s budget for attorneys fees and expenses, Adair said. That amounts to about 1 percent of the department’s budget. The total cost to the state over the years has been about $75 million.

Part of Senate Bill 173 would earmark money saved from the legal expenses to go to the state Developmentally Disabled Medicaid Waiver program, which provides services to families of those with developmental disabilities, which currently has nearly 4,800 people on its waiting list — some who have been there nearly 10 years.

With a 3-to-1 federal match, Adair said, the state would have an extra $20 million for the waiver program.

Among those who signed on as co-sponsors to Adair’s bill are Senate President pro-tem Tim Jennings, D-Roswell and Sen. John Arthur Smith, D-Deming, who is chairman of the Senate Finance Committee.

A spokeswoman for the Health Department on Tuesday didn’t dispute Adair’s figures. But Deborah Busemeyer said, it would be impossible to just quit paying the lawyers.

“We would love to spend the money (on the DD Waiver program) if we were legally allowed,” Busemeyer said.

But she said the legal fees are part of a settlement of the Jackson suit. To stop the payments “would violate our legal agreement,” she said.

Peter Cubra, an Albuquerque lawyer who represents the plaintiffs in the case, couldn’t be reached for comment Tuesday.

The Health Department is obligated to pay those lawyers until it completes a list of requirements, she said.

Among the areas in which specific requirements need to be met, Busemeyer said are checking to make sure needed services are provided; investigating abuse, neglect and exploitation with appropriate follow up; crisis plans and specialists who can respond when clients have a crisis; and making sure clients have appropriate support for employment.

“We are committed to resolving the settlement during this administration,” Busemeyer said in an e-mail. The administration of Gov. Bill Richardson is over at the end of the year.

However Adair and some involved in the developmentally disabled community said they doubted that timeline.

“We’ve been hearing that for years and years,” said Mike Kivitz, president of Adelante Development Center, who attended the news conference. If those requirements are meant, the plaintiffs will come up with more, Kivitz said. Adelente is a nonprofit agency that works with people with disabilities.

Anna Otero Hatanaka, executive director of the Association of Developmental Disabilities Community Providers also expressed support for Adair’s bill.

But not all the activists there agreed with Adair. Doris Husted, director of public policy for The ARC, an organization serving the developmentally disabled, said she doesn’t think the state could stop paying the lawyers. She also said there’s fear among some families that the quality of service could drop if programs aren’t under court supervision.

But she said she hopes Adair’s bill will be a “wakeup call.” Living under constant monitoring and inspections, she said has been intrusive for the developmentally disabled, shesaid. “We want people to have real lives.”

The class-action lawsuit was filed in 1987 against two state facilities for developmentally disabled in Fort Stanton and Los Lunas. Because of the lawsuit the two facilities eventually were closed.

Contact Steve Terrell at 986-3037 or