CompltMcGartland v King

8/4/2019 CompltMcGartland v King

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STATE OF NEW MEXICO

COUNTY OF SANDOVAL

THIRTEENTH JUDICIAL DISTRICT COURT

LORRAINE MCGARTLAND, MARIE GARCIA, and

KATHLEEN ABERNATHY, on behalf of themselves

and all those similarly situated,

Plaintiffs,

v. Case No. _________________________

GARY K. KING, Attorney General; NEW MEXICO

HUMAN SERVICES DEPARTMENT; SIDONIE

SQUIER, in her official capacity as Secretary of theNew Mexico Human Services Department; JULIE

WEINBERG, in her official capacity as Director of the

Medical Assistance Division of the Human Services

Department; NEW MEXICO DEPARTMENT OF

HEALTH; CATHERINE TORRES, in her official

capacity as Secretary of the New Mexico Department

of Health; CATHY STEVENSON, in her official

capacity as Director of the Developmental Disabilities

Supports Division of the New Mexico Department of

Health; and SUSANA MARTINEZ, in her official

capacity as Governor of the State of New Mexico,

Defendants.

CLASS ACTION COMPLAINT FOR NONPAYMENT OF SERVICES

AND BREACH OF CONTRACT

COMES NOW the Plaintiffs, Lorraine McGartland, Marie Garcia, Kathleen Abernathy,

and all those similarly situated, (hereinafter Plaintiffs ) by and through their counsel, the

Cordova Law Firm. LLC, Marina A. Cordova, and for Plaintiffs cause of action allege the

following:

INTRODUCTION

1. This is a suit seeking compensatory, punitive relief, late charges, and civil penalties

pursuant to the common law of New Mexico, the State Procurement Code, NMSA 1978 13-1-


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158, 1.4.1.46 NMAC, 42 U.S.C. 1983, and 8 NMAC 200.430.10. This action seeks to redress

on behalf of the public in New Mexico for nonpayment of services by Defendants,

unconscionable disregard for requests for payment of the services, and interference of payment

for the services to family living providers that provide direct care giving services to recipients of

the New Mexico Developmental Disabilities Waiver program. Defendants also failed to provide

sufficient timely, written notice resulting in providers deprivation of property without due

process of law and violation of recipients freedom of choice.

PARTIES

2. Plaintiff, Lorraine McGartland ( Mrs. McGartland ), is a family living services

provider ( provider ) who delivers care giving services to her son, Bernard L. McGartland, Jr. a

recipient of the Developmental Disabilities waiver ( DD waiver ) program. Mrs. McGartland is

a resident of Bernalillo County, New Mexico.

3. Plaintiff, Marie R. Garcia ( Mrs. Garcia ), is a family living service provider who

delivers care giving services to two non-related developmentally disabled adults, D.L. and V.K.,

recipients of the DD waiver program. Mrs. Garcia is a resident of Bernalillo County, New

Mexico.

4. Plaintiff, Kathleen Abernathy ( Mrs. Abernathy ), is a family living services provider

who delivers care giving services to her daughter, J.D., a recipient of the DD waiver program.

Mrs. Abernathy is a resident of Sandoval County, New Mexico.

5. Plaintiffs include eighty-five (85) individual family living service providers

(collectively Plaintiffs and providers ) subcontractors of the New Mexico Department of

Health, Developmental Disabilities Waiver ( DD waiver ) program, domiciliaries of the State of


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New Mexico, and residents of Sandoval County, Bernalillo County, Valencia County, and Santa

Fe County, New Mexico.

6. Plaintiff, Bernard L. McGartland, Jr. (hereinafter Bernard or recipient ), son of

Lorraine McGartland, is a 35-year-old male with Cerebral Palsy, osteoporosis, curvature of the

spine, and his physical disabilities prohibit him from walking or self-transferring. Bernard is a

recipient of the New Mexico Developmental Disabilities Medicaid waiver ( DD waiver )

program. Bernard is his own legal guardian.

7. Plaintiff, Donald Lucero (hereinafter Donald or recipient ), client of Marie Garcia,

is a 41-year-old male with cerebral palsy, diabetes, legal blindness, mental retardation in the

profound range, and obsessive compulsive disorder,. Donald is a recipient of the Developmental

Disabilities Medicaid waiver ( DD waiver ) program. Maria Dresser, Mrs. Garcia s mother, is

Donald s legal guardian.

8. Plaintiffs bring this action individually, on behalf of all other persons and entities

similarly situated, and on behalf of the general public.

9. Defendant, Gary K. King (hereinafter King ), upon information and belief, is a

resident of the State of New Mexico. At all times material hereto, King, served as the Attorney

General, an elected public official of the State of New Mexico.

10. Defendant, Sidonie Squier (hereinafter Squier ), upon information and belief, is a

resident of New Mexico, and currently serves as the Secretary of the New Mexico Human

Services Department (hereinafter HSD ). At all times material hereto, Squier is an official of

the executive branch of New Mexico state government and has been acting within the scope of

her duties as Secretary of the Human Services Department since her confirmation.


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11. Defendant, Julie Weinberg (hereinafter Weinberg ), upon information and belief, is

a resident of New Mexico, and currently serves as the Director of the Medical Assistance

Division (hereinafter MAD ), of the New Mexico Human Services Department (hereinafter

HSD ). Weinberg has been acting within the scope of her duties as an official of the Medical

Assistance Division since her appointment as an employee of the State of New Mexico.

12. Defendant, Catherine Torres (hereinafter Torres ), upon information and belief, is a

resident of New Mexico, and currently serves as the Secretary of the New Mexico Department of

Health (hereinafter DOH ). At all times material hereto, Torres is an official of the executive

branch of the State of New Mexico and has been acting within the scope of her duties as

Secretary of the Department of Health since her confirmation.

13. Defendant, Cathy Stevenson (hereinafter Stevenson ) upon information and belief,

is a resident of New Mexico, and currently serves as Director of the Developmental Disabilities

Supports Division (hereinafter DDSD ) of the New Mexico Department of Health (hereinafter

DOH ). At the time of the incidents complained of herein, Stevenson served as Assistant

Director of DDSD and has been acting within the scope of her duties as an official of the

Department of Health.

14. Defendants are officials and public employees of the State of New Mexico as those

terms are defined in the State Procurement Code, NMSA 1978 13-1-90 and New Mexico Tort

Claims Act, NMSA 1978 41-4-3.

15. Defendants New Mexico Human Services Department and New Mexico Department

of Health are state agencies as defined by the State Procurement Code, NMSA 1978 13-1-90.


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JURISDICTION AND VENUE

16. All of the material acts and/or omissions to act complained of herein occurred in

Sandoval County, Bernalillo County, and Santa Fe County, New Mexico.

17. The contracts upon which this action is based were made and were to be performed in

the County of Sandoval, County of Bernalillo, and several other counties in the state of New

Mexico.

18. This Court has original jurisdiction over Plaintiffs claims pursuant to NMSA 1978

13-1-99(M), 13-1-158, 13-1-1 to 13-1-199, 13-7-1 through 13-7-12, and 41-4-18(A).

19. This Court has jurisdiction over the parties because Plaintiffs are residents of

Sandoval County, Bernalillo County, and Valencia County.

20. Venue is properly laid in this district and in this county pursuant to NMSA 1978 41-

4-18(B).

21. All of the actions complained of herein which constitute the basis for liability against

Defendants come within the scope of the Procurement Code 13-1-1 through 13-1-199, the

Health Care Purchasing Act, 13-7-1 through 13-7-12, and waiver of immunity contained

within the New Mexico Tort Claims Act, NMSA 1978 41-4-1.

22. Plaintiffs have given written notice of the claims contained herein against Defendants

in compliance with the requirements of the Tort Claims Act, NMSA 1978 41-4-16.

FACTS COMMON TO ALL CAUSES OF ACTION

23. Plaintiff providers ( providers ) contracted with Cuidando Las Familias, Inc.

(hereinafter Cuidando or CLF ), and, in turn, subcontracted with the State of New Mexico to


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provide care giving services to recipients of the Developmental Disabilities Waiver (hereinafter

DD waiver ) program. Ex. 1.

24. Per the agreement between the State of New Mexico and Cuidando, the funds paid to

Plaintiff providers was required to be paid by the New Mexico Human Services Department

( HSD ), Medical Assistance Division ( MAD ), to Cuidando to administer services to

recipients of the DD waiver program and payments to their providers for family living, respite,

substitute care, community access, and other services. Ex. 1.

25. Each Plaintiff provider cares for a developmentally disabled individual in their home,

and as a result of providing those services every provider was under contract to receive

$2,235.00 once a month, per client, paid through Cuidando Las Familias, Inc., by the New

Mexico Human Services Department, Medical Assistance Division. Exs. 3, 4.

26. The New Mexico Department of Health (DOH), Developmental Disabilities Supports

Division (DDSD), and New Mexico Human Services Department (HSD), Medical Assistance

Division (MAD) administer the DD waiver program, with federal Medicaid and state of New

Mexico funds. Affid. Olga Mosher

27. The Department of Health, Developmental Disabilities Supports Division (DDSD) is

responsible for overseeing implementation of programs and services, and the Human Services

Department, Medical Assistance Division (MAD) is responsible for disbursing the Medicaid

funds to Medicaid providers, such as family living provider agencies, like Cuidando, for the DD

waiver program.

28. The claims for New Mexico Medicaid payment and disbursement of funds are billed

and distributed through an electronic system contracted through ACS, Inc.


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29. In August 2009, CLF was subcontracting with approximately eighty-five (85)

individuals who served as direct care providers to provide family living, substitute care, respite,

and community access services for DD waiver consumers in the home of the direct care provider

for the DD waiver recipient. Affid. Olga Mosher.

30. On August 11, 2009, at no fault on the part of Plaintiff providers, the State of New

Mexico served Cuidando, Olga Mosher, and Ron Mosher with a First Amended Complaint with

allegations of Medicaid fraud. Affid. Olga Mosher.

31. On or about August 19, 2009, Cuidando owner and president, Olga Mosher

(hereinafter Mrs. Mosher ), attempted to pick up funds for providers from ACS. Ex. 5, Affid.

Mrs. Mosher.

32. The ACS staff told Mrs. Mosher the Attorney General s office requested the Medical

Assistance Division of HSD to put a hold on all funds being paid to Cuidando. Ex. 5. Affid.

Mrs. Mosher.

33. On or about August 22, 2009, Cuidando filed a verified Application for a Temporary

Restraining Order and Preliminary Injunction in state district court, seeking the Court s Order

that Cuidando be paid the amounts owed to CLF and its direct care providers for respite,

substitute care, and community access for services for the month of July 2009. Affid. Mrs.

Mosher.

34. On or about August 24, 2009, Mr. and Mrs. Mosher, were informed via telephone call

from a case manager, not a representative from the State, the State directed all case managers,

the State was requiring consumers receiving family living services through Cuidando, that

recipients had 48 hours to select a new family living provider agency, or the State would select a

provider for the DD waiver recipients. Affid. Mrs. Mosher.


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35. August 24, 2009, Mrs. Mosher issued a memorandum to all Cuidando providers

explaining CLF s good faith attempts to pick up the check from MAD to pay the providers, but

the Attorney General placed an immediate hold on all payments to Cuidando. Ex. 5, Affid. Mrs.

Mosher.

36. On or about August 27, 2009, Lorraine McGartland called Mrs. Mosher to inquire as

to what was going on. Mrs. Mosher informed Mrs. McGartland the State was requiring her

son, Bernard, to find a new provider agency within twenty-four (24) hours, or the State would

choose a provider for him. Affid. McGartland.

37. On or about August 31, 2009, Marie Garcia was called by her case manager Angie

Valentine-Meyer, that her two clients, Donald and Valerie, had twenty-four (24) hours to choose

a new provider agency or the State would choose for them. Affid. Garcia.

38. September 2, 2009, during proceedings of the Thirteenth Judicial District Court, the

Court discussed the Attorney General s August 12, 2009 withholding of payment . . . to be used

to pay providers. Transcript of Record at 56, State of New Mexico v. Cuidando Las Familias,

Inc., No. D-1329-cv-2009-01795, (filed July 31, 2009).

39. Judge Louis P. McDonald recognized that providers were irreparably harmed as a

result of the Attorney General s failure to provide notice in accordance 42 CFR 455.23(B), and

the providers were not paid for services rendered. Transcript of Record at 74, State of New

Mexico v. Cuidando Las Familias, Inc., No. D-1329-cv-2009-01795, (filed July 31, 2009).

40. Judge McDonald stated,

I m going to order that the State release that payment because it did not comply with thefederal rules and regulations which govern Medicaid payment. That s what this isbasically, a Medicaid payment, and I m going to require it be turned over to Cuidando,because they are entitled to the funds under their contract.


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Transcript of Record at 74-75, State of New Mexico v. Cuidando Las Familias, Inc., No. D-1329-

cv-2009-01795, (filed July 31, 2009).

41. Following the September 2, 2009 hearing, Judge McDonald did not rule on

prospective payments at the time, but ordered the State to release $121,545.28 due to Cuidando

and its direct care providers in August 2009 for services provided in July 2009. State of New

Mexico v. Cuidando Las Familias, Inc., No. D-1329-cv-2009-01795, (filed July 31, 2009).

42. Subsequent to the payment for July 2009 services, the State of New Mexico has not

issued a payment to Cuidando for providers, including the payment which is still due for August

and September 2009 services. Affid. Mrs. Mosher, Affid. McGartland.

43. September 4, 2009, Plaintiff Marie Garcia (hereinafter Mrs. Garcia ) wrote a letter

to Governor Bill Richardson s office requesting her funds for August 2009 services rendered.

44. On or about September 23, 2009, Cuidando s attorney requested both an expedited

fair hearing from HSD and a stay from HSD s Medical Assistance Division (MAD) Director

Carolyn Ingram with respect to the stop payment directive dated September 3, 2009. Ms. Ingram

declined the request for a stay. Affid Mrs. Mosher.

45. HSD challenged the jurisdiction of the HSD Fair Hearings Bureau to conduct a fair

hearing with respect to the stop payment directive, and, after briefs were exchanged, the HSD

Hearing Officer, Louise D. Schaeffer, held that she did not have jurisdiction. Affid. Mosher.

46. September 24, 2009, Mrs. Garcia wrote an email to Lynn Rucker requesting her

funds, her discussions with Mikki Rogers, Director of the Developmental Disabilities Supports

Division, and the hardship she and other providers were enduring. Ex. 7.


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47. September 25, 2009, Katie Falls, Deputy Secretary of the New Mexico Human

Services Department wrote a letter to Mrs. Garcia, as a response to Mrs. Garcia s letters and

phone calls to Governor Richardson s office requesting her funds, stating:

In mid-August 2009, HSD was informed by the Attorney General s Medicaid FraudControl Unit of an investigation involving Cuidando Las Familias Inc. As a result of theinvestigation, HSD was ordered to place an immediate hold on all Medicaid payments toCuidando Las Familias, Inc.

Ex. 8.

48. Plaintiffs McGartland, Garcia, and Abernathy, among others, wrote letters and made

phone calls to several state officials including the Attorney General, Mikki Rogers, Carolyn

Ingram, Director of the Medical Assistance Division, Catherine Torres, Secretary of the

Department of Health, Diane Denish, Lt. Governor, Governor Susana Martinez, state senators

and state representatives, for over one year in an attempt to obtain their pay checks for services

rendered. Exs. 7-11, 13-15, 17-19, Affid. McGartland.

49. The responses Mrs. McGartland and Mrs. Garcia received from the State were

typical of responses received by all Plaintiffs that inquired about their pay checks, referring to

the hold on payments to Cuidando put in place by the Attorney General King and passing the

buck to Cuidando. Exs. 8, 13, Affid. McGartland.

50. Mrs. McGartland states in her affidavit, when she called DDSD and asked to speak to

Division Director Janice Mikki Rogers, Ms. Rogers refused to speak with her personally, and

never returned her phone calls. Affid. McGartland.

51. Mrs. McGartland spoke to Ms. Roger s assistant, who gave Mrs. McGartland the

same response over and over again "if you want your money you need to get it from CLF. They

have your money. Affid. McGartland.


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52. When Mrs. McGartland asked the DOH employee how she could get money from a

closed company, the assistant just repeated herself. Affid. McGartland.

53. Another time Mrs. McGartland called DDSD she spoke to Cathy Stevenson, Deputy

Director of DDSD, Ms. Stevenson responded "let me look into what's going on." Ms. Stevenson

never called her back. Affid. McGartland.

54. When Mrs. McGartland attempted to contact Ms. Stevenson, again she was given to

her assistant who repeated "if you want your money you need to get it from CLF. They have

your money". Affid. McGartland.

55. Mrs. McGartland then tried to contact Kathleen M. Linnehan, Department of Health,

and her response was "you people need to learn to make due." Affid. McGartland.

56. Mrs. McGartland then contacted the Attorney General s office and spoke to Assistant

Attorney General Robert Koeblitz. He also repeated "if you want your money, get it from

Cuidando, they have it." Affid. McGartland.

57. Mrs. McGartland asked Mr. Koeblitz "how CLF could have our money if the AG's

office froze the funds?" Affid. McGartland.

58. Mr. Koeblitz continued to hinder Mrs. Garcia s efforts and replied "if you want your

money you need to get it from CLF, they have your money." Affid. McGartland.

59. Mrs. McGartland terms how she was treated by State officials as a dance step she

likes to call the New Mexico Shuffle in that she would contact the AG's and they would tell

her she needed to contact DOH. She would contact DOH and they would tell her she had to talk

to the AG. Affid. McGartland.


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60. On or about October 16, 2009 through October 23, 2009, Mrs. McGartland and Mrs.

Garcia protested in front of the Attorney General s office and in front of the Department of

Health. Affid. McGartland, Affid. Garcia.

61. Upon information and belief, Kathryn Falls served as Secretary of the Human

Services Department (HSD) until on or about December 30, 2010. Thereafter, Sidonie Squier

took Ms. Fall s place as Secretary of HSD.

62. Upon information and belief, Carolyn Ingram served as Director of the Medical

Assistance Division (MAD) of the Human Services Department (HSD) prior to Defendant Julie

Weinberg. At the time of the incidents complained of herein, Weinberg served as Deputy

Director of the Medical Assistance Division since August 2007. Weinberg now serves as

Director of the Medical Assistance Division.

63. Alfredo Vigil served as Secretary of the Department of Health (DOH) until on or

about February 27, 2011. Thereafter, Catherine Torres was confirmed to serve as Secretary of

DOH.

64. Janice Mikki Rogers served as Director of the Developmental Disabilities Supports

Division (DDSD), of DOH, at the time of the incidents complained of herein, until, Cathy

Stevenson was appointed to serve as Acting Director of DDSD on or about June 24, 2011. Prior

to that time Cathy Stevenson served as Deputy Director of DDSD.

65. On July 16, 2010, the Lieutenant Governor s letter to Mrs. Garcia made

misrepresentations to providers by asserting the State issued two payments to Cuidando Las

Familias for two months of compensation owed, when the state s payment was for one month

July compensation. Ex. 13, Affid. Mrs. Mosher.


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66. September 2, 2010, Plaintiff s counsel, Marina A. Cordova, wrote a letter to Attorney

General Gary King requesting the providers be compensated for the services rendered.

Plaintiff s counsel did not receive a response from the State. Ex. 11.

67. Plaintiffs made diligent efforts to resolve this matter with the State prior to seeking

court action, but were delayed, hindered, and given misrepresentations by State officials several

times over the past two years. Exs. 7-11, 13-19, Affid. McGartland, Affid. Garcia.

FIRST CAUSE OF ACTIONClaimsagainst HSD, Squier, Weinberg, DOH, Torres, Stevenson, and

Martinez for breach of contract

68. The contents of paragraphs 1-67 above, are incorporated herein, by reference as if set

forth in full.

69. When Cuidando Las Familias, Inc. was served by the state, on or about August 11,

2009, eighty-five (85) providers, as subcontractors through Cuidando, had a written agreement,

that was effective with the state through September 30, 2009, whereby Plaintiffs agreed to

provide caregiver family living services to recipients of the DD waiver, and each of them, in turn

would receive $2,235.00 per month, per client, to be paid by Defendant Human Services

Department. Exs. 1, 2, 3, 4.

70. Plaintiffs performed all of the conditions, covenants and promises required by them to be

performed in accordance with the terms and conditions of the contract, by providing family living

services to persons with developmental disabilities in their home, and by providing services in

compliance with all applicable state and federal laws. Affid. McGartland, Affid. Garcia.

71. Defendants breached their written agreement with Plaintiffs by failing and refusing to perform

in good faith their promise to pay Plaintiffs on time for services provided July 2009, August 2009, and

September 2009.


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72. Defendants paid Plaintiffs for July 2009 services, in September 2009, and only by order of the

Honorable Judge McDonald. Stateof New Mexico v. Cuidando Las Familias, Inc., No. D-1329-cv-

2009-01795, (filed July 31, 2009). Affid. Mosher.

73. Defendants, each of them, breached their written agreements with Plaintiffs by failing

and refusing to pay Plaintiff providers for their services performed August 2009 and September

2009.

74. As a result of the breach of Defendants, each of them, in the obligations to eighty-five

(85) family providers, four providers had two clients, pursuant to the written contract, is now

due, owing, and unpaid.

75. Demand has been made on Defendants, and each of them have failed and refused, and

continue to fail and refuse, to repay the sums owed to eighty-five family living providers for

services rendered. Exs. 7-11, 13-19, Affs. McGartland, Garcia.

76. Defendants, and each of them, have therefore breached their written contract and

promise to pay Plaintiffs, for services rendered August 2009 and September 2009, plus interest at

the legal rate, with late penalties, and civil penalties, from and after the date due.

77. Defendants are in breach of their duty of good faith and fair dealing, and are in breach

of their agreement to Plaintiff family living service providers under the DD waiver program,

under the common law of New Mexico and in violation of the State Procurement Code, NMSA

1978 13-1-158..

SECOND CAUSE OF ACTION

Claims against King, HSD, Squier, Weinberg, DOH, Torres,

Stevenson, and Martinez for money had and received.

78. Plaintiffs re-allege and incorporate by reference each and every allegation contained

in paragraphs one through seventy-seven above.


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79. On or about August 15, 2009, Defendant Human Services Department received

money, billed by Cuidando Las Familias, Inc. from ACS, Inc., that was intended to be used for

the benefit of Plaintiff providers.

80. Defendants have not paid Plaintiffs, the amounts owed for August 2009 and

September 2009, although the amounts owed to Plaintiffs were paid to Defendant Human

Services Department. Ex. 8, Affid. Mosher.

81. Defendants Attorney General King and Human Services Department have not

accounted for where the money paid to HSD, for services rendered August 2009 and September

2009, is held for the benefit of Plaintiffs.

82. Neither Plaintiffs, nor the developmentally disabled clients in their care, have

benefited from the funds received by Defendant HSD, or been paid the funds owed to each

provider for each client cared for by the provider.

THIRD CAUSE OF ACTION

Claims against King, HSD, Squier, Weinberg, DOH, Torres, Stevenson, andMartinez for tortious interference with a contract.


in paragraphs one through eighty-two above.

84. On or about August 1, 2009, eighty-five (85) Plaintiff providers, were contractors

with the State of New Mexico, whereby Plaintiffs agreed to provide family living services to

recipients of the DD waiver, and each of them, in turn would receive $2,235.00 per month, per

client, to be paid by Defendant HSD, through the expiration of the state s contract with Cuidando

September 30, 2009. Exs. 1, 2, 3, 4.

85. Defendant Attorney General King (hereinafter King ) knew of the contracts, at the

time that King issued a stop payment to Defendant HSD. Ex. 8.


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86. Defendant King was also provided actual notice of the provider contracts through the

providers diligent efforts to contact King through Plaintiffs letters, phone calls, emails,

picketing for several days in front of his office, Plaintiff counsel s letter, and newspaper articles

concerning the money owed to the contractors. Exs. 7-11, 13-19, Affid. McGartland, Affid.

Garcia.

87. Mrs. Mosher also attempted to convince King to lift the hold on funds to Plaintiff

providers by Applying for a Temporary Restraining Order and Preliminary Injunction. State of

New Mexico v. Cuidando Las Familias, No. D-1329-CV-2009-1795 (filed July 31, 2009). Affid

Mosher.

88. Defendant King intended to disrupt the performance of the contract by refusing to lift

the hold and refusing to pay Plaintiff providers, despite Plaintiffs and Mosher s diligent efforts

to convince King to lift the hold on Plaintiffs payments.

89. Defendants HSD, Squier, Weinberg, DOH, Torres, and Stevenson, colluded with

King, and intended to disrupt the performance of the contract by refusing to honor their promise

to pay, in spite of Plaintiffs numerous notices of nonpayment and requests for payment. Exs. 7-

11, 13-19, Affid. McGartland, Affid. Garcia.

90. Defendants King, Squier, Weinberg, Torres, and Stevenson s malicious conduct

prevented performance of Defendants obligations under the contract.

91. Defendants refusal to pay the income providers relied on for shelter, food, medical

supplies, and other living expenses for themselves and the developmentally disabled clients in

their care, caused Plaintiffs severe emotional distress and irreparable harm.

92. Defendants misrepresentations and refusal to pay was a substantial factor in causing

Plaintiffs injuries.


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FOURTH CAUSE OF ACTIONClaims against King, HSD, Squier, Weinberg, DOH, Torres, Stevenson, and

Martinez for abatement and revivor.


in paragraphs one through ninety-two above.

94. Defendants partial payments of monies owed to Plaintiffs for July 2009 services,

which was paid to Cuidando on or about September 9, 2009, revived the causes of action for

their contractual liability. NMSA 1978 37-1-16. Affid. Mosher.

95. Defendants liability shall be deemed re-accrued upon the date of such partial

payment.

FIFTH CAUSE OF ACTIONClaims against King, HSD, Squier, Weinberg, DOH, Torres, Stevenson,

and Martinez for fraud.

96. Plaintiff re-alleges and incorporates by reference each and every allegation contained

in paragraphs one through ninety-five above.

97. On or about October 2008 through July 30, 2009, Defendants represented to Plaintiffs

the providers would be paid by Defendants every month in return for Plaintiffs providing family

living services to clients of the DD waiver program. These representations were false and

Defendants knew the falsity of these statements at the time they were made.

98. Defendants made false representations with the intent that Plaintiffs would continue

to provide family living services, but Defendants had no intention of paying Plaintiff providers

for their services.

99. Plaintiffs continued to provide family living services to DD waiver clients, in

reliance upon Defendants representations.


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100. As a result of Plaintiffs reliance on Defendants representations Plaintiffs suffered

the loss of their income for three months, loss of use of their funds, severe emotional distress,

and irreparable harm. Plaintiffs seek compensatory and punitive damages for their losses.

101. Second, Defendants, with full knowledge, falsely represented to Plaintiffs that HSD

released two payments to Cuidando, when Cuidando received one payment of $121,545.28

only for July 2009, as permitted by Judge McDonald. Ex. 8, 13, Affid. Mosher.

102. Defendants further misrepresented that CLF had Plaintiffs money and to get it

from them, although HSD received and retained Plaintiffs funds. Affs.Mosher, McGartland,

Garcia.

103. Defendants made the false representations with the intent that Plaintiffs would act

upon Defendants representations against Cuidando, although Defendants knew Cuidando was

only released payment for July 2009.

104. Plaintiffs, relying on Defendants false representations, were delayed in bringing this

action.

105. Plaintiffs reliance caused Plaintiffs to suffer severe emotional distress, irreparable

harm, and incur attorney s fees, as a result of Defendants false representations.

106. These acts were malicious, fraudulent and oppressive, justifying an award of

punitive damages so that Defendants, and each of them, will not engage in such conduct in the

future, and to make an example of them.

SIXTH CAUSE OF ACTIONClaims against King, HSD, Squier, Weinberg, DOH, Torres, Stevenson, and

Martinez for Deprivation of Recipients Freedom of Choice


in paragraphs one through one hundred six above.


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108. On or about August 24, 2009, Defendants had case managers verbally contact

Plaintiffs, that Medicaid recipients and their providers had 48 hours to choose a new agency, or

the state would choose for them.

109. Federal and state guidelines require that a medicaid recipient has the freedom to

obtain medical services from the medicaid provider(s) of their choice. Ex. 12; 8 NMAC

200.430.10.

110. When restrictions are placed on a recipient, federal guidelines require the agency

gives the recipient notice and opportunity for a hearing (in accordance with procedures

established by the agency) before imposing the restrictions. 42 CFR 431.54(e)

111. Plaintiff recipients and their guardians were not provided written notice, a list of

providers approved by the Developmental Disabilities Supports Division (DDSD), opportunity

for a hearing, nor enough time to select a new provider agency of their choice to administer their

Medicaid waiver services.

112. Defendants actions deprived recipients of their due process right to freedom of

choice.

SEVENTH CAUSE OF ACTIONClaims against King, HSD, Squier, Weinberg, DOH, Torres, Stevenson, and Martinez for

42 U.S.C. 1983 Lack of Due Process and Deprivation of Property


in paragraphs one through one hundred twelve above.

114. Defendant officials in August 2009, acting under color of state law, placed a hold on

payments and continued to withhold those payments for August 2009 and September 2009.


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115. Defendant officials, acting under color of state law, failed to provide proper due

process notice, including notice required under 42 U.S.C. 455.23 and 42 U.S.C. 431.54(e)

depriving Plaintiffs of their property.

116. Family providers that contracted, through Cuidando, with the State of New Mexico,

hold a legitimate claim and property interest in their payments, because they are entitled to those

payments, in exchange for services rendered.

117. Defendants lack of written notice, hold on the funds, and continued nonpayment

was the moving force behind violation of Plaintiffs due process deprivation of property.

EIGHTH CAUSE OF ACTIONClaims against King, HSD, Squier, Weinberg, DOH, Torres, Stevenson, and

Martinez for Intentional Infliction of Emotional Distress.


in paragraphs one through one hundred seventeen above.

119. The Defendants have intentionally withheld the sums due Plaintiffs for almost two

years after the services were rendered for August 2009 and September 2009.

120. If Defendants intended on fulfilling the terms of their agreement, they would have

done so by this time.

121. Plaintiffs injuries not only included nonpayment and the stress resulting from lack

of income to pay for food, shelter, and medical supplies; but also stress from being rushed to find

to assist their sons and daughters to find a new agency within 48 hours; and seeing their friends

company and livelihood destroyed over night over false allegations. Plaintiffs were very

distressed as a result of the Defendants actions, and felt as if they were being punished. Affs.

McGartland, Garcia.


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122. As a result, Plaintiffs now suffer ongoing fear that their current agency may be shut

down, they may not be paid, and they may have to find a new agency over night again. Affs.

McGartland, Garcia.

123. Defendants conduct was so extreme and outrageous, Defendants not only delayed

payment and refused to pay, but also falsely directed Plaintiffs to seek the money for their

services from another party.

124. In addition, despite Plaintiffs diligent phone calls, letters, emails, and picketing in

front of the state agencies, Defendants refused to respond to Plaintiffs requests, and when

Defendants did respond they did so with false and misleading information.

125. Defendants conduct was so extreme and outrageous, that Plaintiffs endured and

continue to suffer severe emotional distress as a result of Defendants actions.

PUNITIVE DAMAGES


in paragraphs one through one hundred twenty-five above of the Complaint.

127. Defendants' actions were willful, wanton, and in reckless disregard of the rights of

providers rendering care giving services to developmentally disabled clients of the State s waiver

program.

128. Plaintiffs are entitled to recover punitive damages in an amount sufficient to deter

and punish Defendants.

PRAYER FOR RELIEF

For the foregoing reasons, Plaintiffs pray the Court enter judgment for them on their

Complaint, and award:

1. Compensatory damages, including for breach of contract and the value of Plaintiffs


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performance for services provided August 2009 and September 2009.

2. Interest thereon at the legal rate from and after July 1, 2009.

3. General damages for Defendants' fraud.

4. Treble damages.

5. Punitive damages to be 40% of actual damages for tortious interference of contract and 40%

of actual damages for fraud.

6. Attorneys' fees and costs incurred herein.

7. For such other and further relief as the Court may deem just and proper.

JURY DEMAND

Trial by jury is requested on all issues so triable.

AUDIO RECORDING

An audio recording of all trial proceedings is requested.

DATED this 25th day of August, 2011.

Respectfully Submitted,

THE CORDOVA LAW FIRM, LLC

________________________Marina A. CordovaAttorney for Plaintiffs551 W. Cordova Road, # 234

Santa Fe, NM 87505Phone: (505) 467-8395

Documents

CompltMcGartland v King