Disability Rights New Mexico and three families filed a suit against the state and three managed care organizations for allegedly not providing necessary care to medically fragile children. The managed care organizations are New Mexico Blue Cross and Blue Shield, Presbyterian Health Plan and Western Sky Community Care.
Medicaid is required to provide at-home care to severely disabled children whose ability to live at home is dependent upon trained nursing, the complaint states. Jesse Clifton, a lawyer with Disability Rights New Mexico, said the state has about 400 medically-fragile children, some of whom are not receiving any at-home nursing despite qualifying for it. He said he anticipates more families will join the lawsuit. The state is providing federal funds for that coverage, Clifton and Holly Mell, also a lawyer for Disability Rights New Mexico, told NM Political Report.
The Federal Drug Administration ruled on Thursday that it would permanently lift restrictions around abortion patients receiving medication abortion by mail. This means, for instance, that abortion patients who live in places such as rural New Mexico can receive mifepristone, the first of the two-drug abortion regime, by mail. The FDA has maintained a restriction on in-person pickup of mifepristone at a clinic since the agency approved the drug for abortion 21 years ago. Reproductive experts have said that was a political move as, after 21 years, there were clear indications that taking medication abortion up to 10 weeks of gestation is safe. Ellie Rushforth, an attorney with the American Civil Liberties Union of New Mexico, said by text message that the FDA’s decision is “good news” for patients but some restrictions for clinics still apply.
The year 2021 has proved to be even more challenging than 2020 for Rover and Whiskers, animal shelters across New Mexico report. The problem all three animal shelters in Santa Fe, Albuquerque and Las Cruces were primarily dogged by in 2021 was a pet population explosion. At least two animal shelter representatives, in speaking with NM Political Report, said that while there were likely several ancillary reasons for the pet population numbers rising this year, the main issue could have been an unintended consequence of the state’s need to slow the spread of disease and preserve in-short supply personal protective equipment (PPE) in the early months of the COVID-19 pandemic. When the state restricted services to essential business and healthcare in the first three months of the pandemic, shelters and veterinarian clinics stopped spaying and neutering pets during March, April and May of 2020. Dylan Moore, director of shelter operations for Santa Fe Animal Shelter and Humane Society, said the shelter had an influx this year of one-year to 16-month-old unclaimed pets.
The New Mexico Supreme Court, in a ruling from the bench, ordered Gov. Michelle Lujan Grisham to stop using any unspent federal COVID-19 stimulus money without approval from the state Legislature.
New Mexico Supreme Court Justice Michael Vigil, after a brief deliberation by the justices, read the ruling.
“The court grants standing to the petitioners on the basis of great public importance,” Vigil said. “One, the court determines that a writ is appropriate in this case, and the court will order that a writ of prohibition and mandamus, prohibiting the governor and the state treasurer and all other state officials subject to their authority from transferring, encumbering, committing or appropriating any additional funds out of the state [American Rescue Plan Act] account in the state treasury absent legislative appropriation.”
The court’s decision was the culmination of weeks of court filings in a case filed by two state senators. Democratic State Sen. Jacob Candelaria of Albuquerque and Republican Sen. Greg Baca of Belen jointly filed a petition with the state’s high court, arguing that the governor overstepped her constitutional authority by appropriating federal funds without legislative oversight.
Candelaria told NM Political Report that the state supreme court “Ultimately did the right thing,” by placing the responsibility with the Legislature instead of one person. “As a citizen of this state, it gives me great comfort to know that decisions about this money are going to be made through a transparent open and public appropriations process and not behind closed doors where the governor gets to consult with her political favorites on how to dole out these funds in her political interests,” Candelaria said. “That would have been a really dangerous precedent for New Mexico.”
Four other Democratic state senators joined the case as intervenors, echoing the argument that federal funds, such as the COVID-19 stimulus money, should be controlled by the Legislature.
The New Mexico state treasurer agrees that federal COVID-19 relief funds should be handled by the state Legislature and not the governor, according to a response filed on Tuesday by his attorney.
Treasurer Tim Eichenberg was named as a party of interest in a case filed last month by state Sens. Jacob Candelaria, a Democrat, and Greg Baca, a Republican. Candelaria and Baca asked the New Mexico Supreme Court to order Gov. Michelle Lujan Grisham to stop appropriating any more money from the federal American Rescue Plan Act (ARPA) and to leave the rest of the spending decisions to the state Legislature.
In a response on behalf of Eichenberg, his attorney wrote that while the ARPA funds can be spent legally on a variety of different issues, the Legislature should decide where it would be best spent.
“The Treasurer respectfully submits that the question of whether some or all funds should be used for any or all of these areas requires considerations of public policy and public priorities that must be conducted in the open with opportunity for public participation, which can and will only happen in a legislative process,” the response reads.
During the 2021 legislative session, lawmakers tried to include spending of the federal money in the state budget. Lujan Grisham line-item vetoed that appropriation on the grounds that a previous state supreme court case ruled that the spending of certain federal funds is the responsibility of the governor, not the legislature.
In their initial petition to the state supreme court, Candelaria and Baca argued that the case Lujan Grisham cited in her veto message was narrowly focused on federal funds specifically designated for higher education. In this case, the two senators argued, the federal funds had a wide range of acceptable uses.
Eichenberg’s lawyer also argued that Congress approved the relief money to be used in a wide variety of ways, “according to needs assessments made by state decision-makers, driven by state considerations, and priorities.”
And those decision-makers, Echineberg’s lawyer argued, are legislators.
“Legislative action—the power to make law and appropriate money from the State Treasury—rests exclusively with the Legislature,” the response reads.
The New Mexico Supreme Court denied a request by two state senators to stop Democratic Gov. Michelle Lujan Grisham from further spending federal COVID-19 relief funds. But the high court also gave the governor and the state treasurer until Oct. 15 to respond to the original petition.
Sen. Jacob Candelaria, D-Albuquerque, and Senate Minority Leader Greg Baca, R-Belen, filed a petition last month asking the state supreme court to issue an order to stop Lujan Grisham from further appropriating money that New Mexico received as part of the federal American Rescue Plan Act (ARPA). The two senators also asked the court to issue a stay in order to stop any further spending until the court case is settled.
State Republicans have largely been critical of Lujan Grisham’s handling of the COVID-19 pandemic and its aftermath. Candelaria, although a member of the same political party as Lujan Grisham has often criticized the governor as well as Democratic Senate leadership.
An abortion provider in New Mexico said the increase in patients from Texas will no longer be manageable if it continues in the coming weeks. Adrienne Mansanares, chief experience officer for Planned Parenthood of the Rocky Mountains, told NM Political Report that the group’s clinics are “not in crisis right now.”
But she said they are “in an unhealthy place” and it “won’t be manageable in the coming weeks if we continue to see the percentage increase from Texas.”
Mansanares said of the roughly 3,000 abortions that take place in New Mexico annually, Planned Parenthood provides about 700 of them. “What we saw in the first week [of September] is what we typically see in a month,” she said. She said there are about 55,000 abortions in Texas each year. Abortion clinics in New Mexico cannot continue to absorb the need from Texas abortion patients indefinitely, she said.
A federal judge ruled earlier this week that two women who filed a lawsuit against Gov. Michelle Lujan Grisham did not adequately show how a state emergency public health order requiring vaccines for certain activities violated their rights.
U.S District Court Judge Martha Vásquez denied a motion filed by the two women, which asked the court to issue a temporary restraining order and a preliminary injunction to stop one of the state’s public health orders that require New Mexico State Fair attendees and public health workers to get a COVID-19 vaccine.
Vásquez wrote that the two plaintiffs failed to show how they would face irreparable harm if the court did not issue an injunction.
“To obtain preliminary injunctive relief, Plaintiffs are required to prove that they are substantially likely to succeed on the merits of their claims, that they will suffer irreparable injury if the Court denies the requested injunction, that the balance of harms weighs in their favor, and that the injunction would not be adverse to the public interest,” Vásquez wrote. “Plaintiffs fail to satisfy their burden as to any, let alone all, of these factors.”
One plaintiff works as a nurse for Presbyterian Hospital in Albuquerque and the other is a mother of children who were set to show livestock at the New Mexico State Fair. Both women claimed that the public health order violated their state and federal constitutional rights. Both women also maintained that they should not be forced to get a COVID-19 vaccine that is approved under an emergency use authorization by the Food and Drug Administration. Shortly after the suit was filed, the FDA fully authorized the Pfizer vaccine for COVID-19.
“Accordingly, the provisions of the [Federal Food, Drug, and Cosmetic Act] quoted by Plaintiff, which are applicable only to medical products under an [Emergency Use Authorization], are not applicable to the administration of the Pfizer vaccine to individuals 16 years of age and older,” Vásquez wrote.
With federal unemployment assistance ending in New Mexico on Sept. 4, Albuquerque resident Rhiannon Chavez-Ross worries she could lose her house. A single mom with two children, Chavez-Ross lost her party and event business when the COVID-19 pandemic began. She said she received a Paycheck Protection Program loan of less than $1,000 for her business last year and she has been on unemployment benefits since the early days of the virus’ spread. But, she said she has had to supplement her unemployment relief with money from her savings.
The New Mexico Department of Health is encouraging women who are pregnant or trying to become pregnant to get vaccinated because COVID-19 during pregnancy can lead to complications. DOH issued a statement Thursday reminding the public the importance of vaccinations against COVID-19 for pregnant people. The U.S. Center for Disease Control and Prevention (CDC) recently issued guidance that vaccines are safe for pregnant people. The overall risk for severe illness is low, according to the CDC, but pregnant and recently pregnant people are more likely to suffer severe illness from COVID-19 when compared to those who are not pregnant.
Severe illness can include hospitalization, intensive care, ventilator use or other breathing assistance and, possibly, death, according to the statement. The CDC issued a warning that pregnant people who contract COVID-19 are at an increased risk for preterm birth and could be at an increased risk for other adverse pregnancy outcomes comparable to pregnant people who do not contract COVID-19.