Employees file a class action lawsuit against Kelly’s Brew Pub and Restaurant for violating the Albuquerque Minimum Wage Ordinance

Kelly’s Brew Pub and Restaurant and its owners Dennis and Janice Bonfantine unlawfully helped themselves to their servers’ tips and didn’t pay servers for some of the time they worked, according to a lawsuit filed today in Albuquerque district court.

The class action complaint, filed on behalf of seven current and former employees, accuses the Bonfantines and Kelly’s of violating the Albuquerque Minimum Wage Ordinance (the Albuquerque MWO).

The lawsuit contends that after a November 2012 ballot initiative raised the Albuquerque minimum wage, Kelly’s and the Bonfantines “settled on an unlawful response to the minimum wage increase: servers would pay for it themselves, out of their tips. Starting in 2013, Defendants increased the wage rate that appeared on servers’ paychecks so that Defendants appeared to comply with the new law, but required servers to pay the house cash each shift, calculated at 2% of their total daily sales, plus $3.00 per hour they worked on the clock. After tipping out, servers sometimes owed more in cash than they had actually earned in cash tips during the shift. When this happened, servers were required to pay the difference from their wallets or their paychecks. When questioned about this ‘tip out’ policy, the Bonfantines and managers explained that Kelly’s needed the money to pay for the minimum wage increase and other business expenses.”

Furthermore, according to the lawsuit, “Kelly’s did not pay servers all of their customers’ credit card tips, and instead kept a portion of those tips for themselves. Kelly’s also did not pay servers any wages at all for non-tipped work they performed off-the-clock, such as rolling silverware, kitchen prep, and awaiting table assignments.”

The Albuquerque Minimum Wage Ordinance – which the voters approved in a November 2012 ballot initiative – prohibits these practices. The ordinance raised the minimum wage for tipped workers from $2.13 an hour to $3.83 an hour in 2013, and $5.25 per hour in 2014 and afterwards, with annual adjustments for the cost of living. Under the ordinance, tipped employees must be allowed to keep all of their tips, and employers cannot require employees to share their tips with the house or with management. The ordinance does not prohibit tip pooling among employees who receive tips, but by law management cannot participate in a tip pool. The ordinance also requires employers to pay employees the minimum wage for all hours worked, whether on the clock or off. Non-tipped employees are currently entitled to $8.75 per hour under the ordinance.

The plaintiffs are represented by attorneys at the New Mexico Center on Law and Poverty and Youtz & Valdez, P.C. The attorneys will seek to have the lawsuit certified as a class action to recover servers’ misappropriated tips, minimum wages, statutory liquidated damages, pre- and post-judgment interest, injunctive relief, costs and expenses of suit, and reasonable attorney’s fees

Elizabeth Wagoner, a staff attorney at the Center on Law and Poverty, stated, “A worker simply cannot live on two dollars an hour, especially when she can’t keep all of her tips and doesn’t get paid at all for some work time. This shouldn’t be happening anymore in Albuquerque, but the situation at Kelly’s shows that a strong minimum wage ordinance also needs strong enforcement. We applaud our partners at Youtz & Valdez for taking on this important case, and urge the Albuquerque City Attorney to engage in proactive enforcement efforts to root out other lawbreaking employers.”

Shane Youtz, a partner at Youtz & Valdez, P.C., stated, “Employers need to understand that there are real consequences to undercutting Albuquerque’s minimum wage law. Pay practices like Kelly’s simply aren’t lawful, and our firm has a long-standing commitment to fight for workers’ rights in cases like these.”

The case is Atyani et al v. Bonfantine et al in the Second Judicial District Court in Albuquerque, NM.

Click here to download a pdf copy of this press release.

Click here to download a pdf copy of the Complaint.

For more information, contact the Counsel for Plaintiffs:
Elizabeth Wagoner, NM Center on Law and Poverty (512) 663-9352 (mobile)
Shane Youtz, Youtz & Valdez, P.C. 505- 244-1200 (office)

NM Political Report: Employees say HSD asked them to falsify SNAP applications

Republished with permission from the NM Political Report. Click here to read the original article here.

Want to read more on this topic? Check out the coverage in:
Albuquerque Journal: Human Services Department workers testify data from SNAP applicants was doctored
Santa Fe New Mexican: State workers admit fudging numbers to deny food aid to poor
NM Political Report: NM Auditor, HSD launch probes into SNAP fraud allegations
Santa Fe New Mexican: Human Services Dept. investigating whether agency falsified welfare applications

Employees say HSD ask them to falsify SNAP applications

By Joey Peters

Multiple state employees alleged that the Human Services Department instructed them to falsify numbers on federal food stamp applications in explosive testimonies in federal court in Albuquerque Thursday afternoon.

One was Jeannette Roybal, who processes Supplemental Nutrition Assistance Program, or SNAP, applications in Las Cruces. She testified that her supervisor told her in January to inflate the assets of a SNAP applicant so the application would be considered non-expeditable.

According to federal law, those who qualify for expedited SNAP benefits based on extremely low income levels must receive their benefits within seven days of applying. These are also known as emergency SNAP benefits. But many of these cases that appeared to qualify weren’t resolved by HSD within that amount of time, leading to overdue cases, according to multiple testimonies.

“There were no resources in the case to add,” Roybal said before court. “It’s not the proper way.”

Sandra Saiz, a line manager for Income Support Division in Portales, testified that higher-ups encouraged her workplace to add fake assets to SNAP applications so the department could cut down its growing list of overdue expedited SNAP cases.

“The directive was to do whatever you had to make it non-expedite,” Saiz said in her testimony.

Usually, that meant trying to “find something you missed somewhere” in the application for benefits, according to Saiz. But when asked by a state lawyer she ever made up a number to add to an application, she replied: “I very seldom do it, I don’t like to do it, but yes, I have done it.”

The testimony came during a hearing for a legal motion asking for HSD to be held in contempt of court for not complying with provisions in a 25-year-old consent decree. The consent decree was the result of a lawsuit that alleged the department didn’t process food stamp and Medicaid applications properly.

The New Mexico Center on Law and Poverty is asking federal court to appoint an independent monitor to oversee several HSD functions, including ISD.

The directive for the Portales ISD office came from the office’s regional office manager in April 2015, according to case processor Angela Dominguez.

“He came and said they had been selected for federal review,” Dominguez said during testimony. “He was concerned how we were going to justify [the overdue expedited cases]. He said, ‘You can go in there and check and add assets.’”

Adding assets, Dominguez said, would expand the time period HSD had to process these cases. But that means people who qualify for expedited SNAP benefits won’t receive them.

“In my opinion we’re cheating those families,” Dominguez said in her testimony.

HSD management went as far as to change a processor’s case notes to show that they reflected adding assets to an application, according to Margaret Vasquez-Padilla, who works at ISD in Taos. Vasquez-Padilla testified that she processed an overdue expedited SNAP case that her superiors later added $400 in assets to.

“How did they reflect $400 in assets?” Sovereign Hager, an attorney for Center on Law and Poverty, asked during the hearing.

“They just put them there,” Vasquez-Padilla replied.

Vasquez-Padilla said she knew her superiors changed her case notes on the application. She said she kept her old case notes “because this has happened before.”

Another ISD employee, Frederick Garcia, testified that he knew employees would add fake assets to SNAP applications.

“I’ll see it quoted as ‘cash on hand,” Garcia, who works in Las Cruces, said.

During testimony, HSD Secretary Brent Earnest argued that resorting to an independent monitor, known as a receivership, “seems like a recipe for chaos.” Earnest said such measures would cost money that could otherwise go to the poor.

Addressing the lawsuit as a whole, Earnest acknowledged that he “makes mistakes” and that “everyone in the department is going to make mistakes” but that HSD “has a way to address them.”

Shanita Harrison, a deputy director for ISD, addressed the employees’ allegations by accusing four of those who testified about the fake assets of making errors on their cases.

During her own testimony, Harrison accused Garcia of marking a SNAP case as expedited that didn’t qualify because the family involved “received benefits in Alabama during the month of their application.”

Harrison also accused Dominguez of processing a case that was not expedited because the family had $2,200 in income.

She alleged Vasquez-Padilla made an error by processing a renewal application as a new application. Finally, Harrison accused Roybal of not properly updating the data on one of her cases.

All five employees who testified said they feared retaliation for coming forward.

Closing arguments for the legal motion will likely happen next week, after which the federal judge will decide on whether to appoint an independent monitor to oversee these parts of HSD.

Albuquerque Journal: NM high court hears case on workers’ comp for farm/ranch workers

Republished from the Albuquerque Journal. Click here to read the original article.

By Maggie Shepard / Journal Staff Writer
Thursday, April 28th, 2016 at 12:05am

On a small New Mexico dairy farm, an employee milking a cow does not have to be covered by workers’ compensation but the person’s supervisor, who might spend the workday in the same barn with the same animals, must be covered.

It’s a legal line that state Supreme Court justices hammered as they heard oral arguments Wednesday afternoon in a heated and possibly high-stakes case about a decades-old exemption in state law the allows farms and ranches with more than three employees to exempt laborers from workers’ compensation coverage.

A 2nd Judicial District Court judge and the Court of Appeals have ruled in one case that denying workers’ compensation to this type of farm and ranch worker is unconstitutional.

Dairy and ranch industry groups’ lawyers argued that forcing workers’ compensation coverage would cost farmers tens of millions of dollars, much of which they could not recoup from product sales, which usually are in markets that have government-set price controls.

When asked for the legal justification between the two groups of employees, like in the cow example, each of the industry lawyers arguing Wednesday struggled to find an answer that didn’t seem to anger the justices.

“It might save money by excluding certain workers, but is that a rational exclusion?” Chief Justice Charles Daniels asked the lead attorney representing the dairy and cattle industries.

Justices asked questions about how such an exemption could be considered constitutional.

Gail Evans, legal director for the New Mexico Center on Law and Poverty, argued that it is not and asked the justices to uphold a lower court’s ruling as such. She said those exempted are the “most vulnerable” employees.

She also asked that the justices make any unconstitutional judgment work retroactively.

But lawyers from the state’s Workers’ Compensation Administration and Uninsured Employer’s Fund argued that would open a flood gate of cases and a bureaucratic nightmare. They asked that if necessary, a ruling apply only to future claims to not only avoid a mess of back claims but also so that industry businesses can be fully aware of any new coverage requirement.

The coverage exemption also applies to household servants and real estate salespeople.

After more than two hours of arguments from five lawyers – oral arguments usually only last about one hour – before a packed and overflowing audience, justices took the case into consideration. It is not clear when they will make a decision.

Important Players Honored at the Center’s 20th Anniversary Celebration

As part of our joyful 20th Anniversary Celebration on April 14, 2016, we recognized some of the individuals who have played indispensable roles in the establishment and success of the Center.

The Center’s First Executive Director

thumb resized Bob EricsonBob Ericson, the first Executive Director the Center. Bob was a lifetime legal service attorney and is remembered as a meticulous, skilled, and compassionate attorney. His legal skills and leadership influenced the Center on Law and Poverty’s culture of excellent work, integrity, and service to low-income New Mexicans—values we still hold strong today. He touched the lives of so many people in New Mexico.

The Extraordinary Members of the Founding Board of Directors

thumb resized Ruth KovnatRuth Kovnat, Emerita Professor of Law at University of New Mexico School of Law. Ruth served as President of our Board of Directors. If you practice law in New Mexico, there’s a good chance you either learned from Ruth or learned from someone who learned from her. Ruth has been an ongoing supporter of the Center and equal access to justice for the poor.

THUMB resized Tim Sheehan 2010Timothy Sheehan, retired attorney from the firm of Sheehan and Sheehan, PA. Tim served as Secretary and Treasurer of our Board. He has worked extensively at state and national levels to promote and fund legal services for the poor.



thumb resized Bill StrouseBill Strouse, former Executive Director of Legal Aid in Southern New Mexico, the Community Action Agency of Southern New Mexico, and the statewide, consolidated New Mexico Legal Aid. He helped build each of those organizations substantially. Bill served as Vice President of the Center’s Board.

THUMB resized Virginia SearsVirginia Sears (1915-2001), legal services consultant with the New Mexico State Bar Association and Northern New Mexico Legal Services. Virginia was a wonderful lifelong senior advocate and activist.



thumb resized John RobbJohn Robb (1924-2014), partner at the firm of Rodey, Dickason, Sloan, Akin & Robb, PA. John, who was the first President of our Board of Directors, demonstrated a powerful commitment to civil legal aid for the poor. In addition to serving on the Center’s board for over a decade, he also participated on the boards of the National Legal Aid and Defender Association and the ABA’s Standing Committee on Legal Aid and Indigent Defendants. Click below to hear John’s thoughts about the NM Center on Law and Poverty.

A Few Key Staff Members

Nancy Koenigsberg, current Senior Attorney at Disability Rights New Mexico. Nancy led the Center as Legal Director and Acting Executive Director for five years. She made sure the Center maintained its commitment to excellent work and service following Bob Ericson’s passing.

Sireesha Manne, Staff Attorney. Sireesha has been a leader in the Center’s healthcare advocacy and critical to the Center’s success in policy work in the legislature and executive branch.

Gail Evans, Legal Director. Gail is widely regarded as one of the best poverty law attorneys in the country. Both the excellence of the Center’s advocacy and its enviable string of successes in the courts are testament to that. She has been a persistent, unflagging voice for low-income New Mexicans.

Stacey Leaman, Development Director. Stacey’s fundraising efforts have allowed the Center to add staff, diversify our campaigns, and make a broader impact.

Kim Posich, the Center’s Executive Director. Since becoming Executive Director in October 2002, Kim has expanded the Center’s size, resources, and advocacy agenda. Under his leadership, the Center went from a team of 3 to today being a staff of 15—including a remarkable 11 attorneys! This has corresponded with an expansion of the Center’s work. Kim has dedicated his entire life to working on behalf of those with fewer resources, less privilege, and greater need. He has tirelessly championed the poor, making an enormous and measurable difference for thousands of families in this state.

The Center Celebrates 20 Years of Advocacy!

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Guests enjoy food, drink, and great company at the beautiful Indian Pueblo Cultural Center.

On Thursday, April 14th, we celebrated the New Mexico Center on Law and Poverty’s 20th Anniversary with a memorable event at the Indian Pueblo Cultural Center. It was wonderful to see so many people come together to recognize the impact our organization has made on the lives of low-income New Mexicans.

Please enjoy a few photos of the evenings’ festivities. Photography services were provided by Ideum, our Champion Level Sponsor.

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NMCLP Development Director Stacey Leaman talks with NM Legal Aid’s Executive Director Ed Marks at the registration table. 

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A woman signs the Center’s guest book.

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NMCLP Board Member Regis Pecos speaks to Judge Raymond Ortiz and Senator Ortiz y Pino.

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NMCLP Legal Director Gail Evans was the evening’s Master of Ceremonies.

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A large crowd joined us for the 20th Anniversary Celebration.

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Senator Michael S. Sanchez speaks at the event.

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Gail Evans welcomes United States Senator Jeff Bingaman to the stage to share his thoughts about the state of poverty in New Mexico.

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Ruth Kovnat receives an award for her service on the Center’s Founding Board of Directors. For more information on the honored guests, please read our article Important Players Honored at the Center’s 20th Anniversary.

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The evening ended with dancers from Jemez Pueblo. Thank you to the wonderful performers!

Once again, we’d like to thank the 20th Anniversary Celebration sponsors!

Champion Circle Sponsor
Ideum, Inc

Leader Circle Sponsor
Freedman Boyd Hollander Goldberg Urias & Ward P.A.

Defender Circle Sponsors
McGinn Carpenter Montoya & Love, P.A.
McCune Charitable Foundation
Indian Pueblo Cultural Center
Johnson Barnhouse and Keegan, LLP
Coyte Law P.C.
Kennedy Kennedy & Ives, LLC
Rodey, Dickason, Sloan, Akin, & Robb, P.A.
University of New Mexico School of Law
Brindle Foundation
First Financial Credit Union

Friend Circle Sponsors
AARP New Mexico
Ambition Consulting Group
Bogardus & Scott, Attorneys at Law, P.C.
BEStstaff
Con Alma Health Foundation
Garcia Ives Nowara, LLC
State Bar of New Mexico
Sheehan & Sheehan, P.A.

NM Political Report: Thousands of overdue applications still eligible for Medicaid payment

Republished with permission from the NM Political Report. Click here to read the original article here.

By Joey Peters

An advocacy group says data in a legislative report confirms suspicions that a majority of pending Medicaid applications in the last two years were eligible for benefits.

For Sovereign Hager, a staff attorney with the Center on Law and Poverty, the fact that the vast majority of those applications were still eligible for benefits is vindication of her organization’s legal battles with the state on the issue.

According to figures from the state Human Services Department, which administers the federal Medicaid and Supplemental Nutrition Assistance Program, the department saw 223,000 overdue renewal applications for Medicaid benefits between May 2014 and December 2015. The state agency estimates 97 percent of those applications met Medicaid requirements, despite being overdue.

“These overdue cases are the ones HSD would like to close for procedural reasons,” Hager said.

She’s referring to a May 2014 court order that barred HSD from automatically denying unprocessed Medicaid and SNAP cases. The state agency had been automatically denying all cases that it hadn’t processed within 30 days ever since it changed its IT servers in the fall of 2013.

That court order came after the Center for Law and Poverty filed a legal motion to force HSD to follow requirements from a 1991 consent decree born out of a lawsuit against the state.

The lawsuit, filed in 1988 by Debra Hatten-Gonzales, accused HSD of jeopardizing Medicaid and food stamp eligibilities. The Center on Law and Poverty contends that in 25 years, HSD has never properly followed the consent decree.

Next week a federal judge will hear the Center’s motion asking for HSD to be found in contempt of court. The Center wants the judge to appoint independent expert to oversee key functions of the state agency until the state complies with the consent decree. Some lawmakers are joining in on the call for independent oversight.

“It really is a concern,” state Sen. Howie Morales told NM Political Report. “HSD is not addressing these issues unless a court orders them to.”

Though Hager contends the eligible overdue Medicaid applications since 2014 came thanks to the lawsuit, HSD attributes only 3 percent of them to the ongoing litigation. The state agency attributes the rest of overdue applications that otherwise meeting benefit eligibilities to Medicaid expansion from the federal Affordable Care Act.

A spokesman for HSD didn’t return a voicemail left Thursday by NM Political Report seeking comment.

The memo also estimates the lawsuit has cost the state $5.4 million since 2014. Most of that money—$3.4 million—is from administrative costs. The rest come from additional Medicaid costs.

The Legislative Finance Committee report also warns that an appointed independent monitor could “pose a significant financial risk.”

Morales acknowledges that costs are “a concern” but “not an underlying issue.”

“The underlying issue is HSD not following the law,” Morales said.

It’s a contention that HSD, which has accused the Center on Law and Poverty for not being “cooperative” or “constructive” with the process, doesn’t agree with.

In an April 11 letter to the Legislative Finance Committee, HSD Secretary Brent Earnest writes that his department “is in substantial compliance with the Debra Hatten-Gonzales court orders” and has made recent efforts to “streamline the application process via online and over-the-phone applications.”

“The department has put together a multi-disciplinary team of individuals that are focused on meeting the requirements of the DHG lawsuit,” Earnest wrote. “It is the department’s plan to continue to comply with the requirements of the consent decree and disengage from the lawsuit as soon as possible.”

The Legislative Finance Committee compares the potential independent oversight of parts of HSD to what recently happened to the California Department of Corrections. There, an independent monitor has overseen the state’s prison health care since 2006. That year, the oversight cost the state $882 million. By 2009, the costs skyrocketed to nearly $2 billion.

But Hager says this comparison is unfair. Instead, she refers to “churn”—known as the process when people eligible for benefits have an application rejected and then reapply—as in itself costly to a state.

This type of churn in Philadelphia cost Pennsylvania $9 million in “unnecessary administrative costs,” according to a 2015 Center on Law and Poverty analysis,

“Were it not for the lawsuit, those people would have reapplied and it would have cost the state money,” Hager said.

Santa Fe Reporter: A Broken Process

New Mexico is still struggling to comply with a decades-old court order to ensure benefits for indigent people

Republished with permission from the Santa Fe Reporter.
Click here to read the original article.

By Steven Hsieh

Abby Knowlton drove to the offices of the Santa Fe Income Support Division on March 23, 2015, to apply for Medicaid and food stamps. She pulled a slip from a number dispenser and sat down to wait. Along with dozens of other applicants, she answered questions on a form: Did she have income? No. Kids? No. Had she ever traded food stamps for guns or ammunition? No.

After hours—enough time for Knowlton to drop by her mother’s house for a snack and bathroom break—a Human Services Department worker called her to the front window. After reviewing her paperwork, she was approved.

Applying for assistance wasn’t originally in her plan, though. Knowlton, 33, moved back home to New Mexico to pursue a doctorate in Spanish. She previously worked as an interpreter at a Colorado hospital.

Knowlton always had health problems, including migraines that started when she was a child. One day, during a routine checkup, her blood pressure reading was so high that a nurse thought the machine was broken. Confusion turned to alarm. After running tests, a doctor diagnosed Knowlton with malignant hypertension. Her heart, lungs, kidneys and brain were all losing function and getting worse. Knowlton’s professional career was over.

Days after she was approved for food stamps, Knowlton received a form from Human Services identifying her as a “mandatory work participant.” The printout instructed her to complete a jobs training program “within 15 days of receiving this notice.” It went on to say, “This form must be returned by: (Date),” without indicating a date. If Knowlton had any questions, the form stated, she should call her caseworker. Knowlton had many questions. Among them: Who was her caseworker?

She called multiple toll-free numbers but couldn’t get the answers she was looking for. On a friend’s recommendation, Knowlton contacted the New Mexico Center on Law and Poverty. Attorneys investigated her case and said it was another in a long line of instances where the state’s process for awarding benefits is failing low-income New Mexicans.

Knowlton’s medical condition should have exempted her from New Mexico’s job search requirements, as soon as she applied for benefits, says Sovereign Hager, an attorney at the center. “The law requires Human Services to explain all of this in the interview and screen her for exemptions,” Hager says. “Had they asked, Abby could have explained she is disabled.”

Knowlton’s abundant free time and education helps her navigate the tangles of state bureaucracy. She also keeps meticulous records in a bulging red folder. The same cannot be said for all 230,907 New Mexicans who applied for food stamps or Medicaid in 2015. For many, a procedural misstep by the state can result in a loss of food assistance or health coverage.

“Families shouldn’t need an attorney helping them, because it’s the department’s obligation under federal and state law to provide assistance to people in an accessible way,” Hager says.

Human Services’ own data shows that the department improperly closes cases 47 percent of the time.

In 1991, the department entered into a consent decree, agreeing to comply with laws regarding the processing of Medicaid and food stamps, officially called the Supplemental Nutrition Assistance Program (SNAP). But advocates say the state has repeatedly violated its terms. In 2013, when the Human Services Department switched to a new computer system, thousands of New Mexicans were automatically dropped from their SNAP benefits; a judge ordered the end of this practice. And in January, the court struck down increased penalties for noncompliance with requirements for food stamps.

Most recently, lawyers recommended that the court appoint a third-party “expert” to oversee functions related to the consent decree. For more than two decades, state officials have failed to implement fixes to a process that illegally delays or drops benefits, a court filing claims. Calls to customer service representatives often go unanswered.

A spokesman for the department did not respond to a request for comment for this story before presstime. Later, Kyler Nerison issued this statement: “We disagree with [the Center on Law and Poverty]. The Department is in substantial compliance with the court’s consent decree. [The center] has not been cooperative or constructive with this process and they continuously attempt to redefine the standards for compliance.”

Eleven days after her first trip to the Income Support Division, Knowlton returned with her medical records and a note from her doctor exempting her from the work requirements. She was able to keep the food assistance.

That would not be the end of her frustrations, though. In January, she applied to renew her SNAP benefits. According to her lawyers, she is eligible for a 24-month recertification, but workers granted Knowlton just three additional months of benefits after failing to schedule an interview with her, which Hager says violates procedures. After Knowlton’s attorneys followed up, the state acknowledged its oversight and granted her a yearlong recertification.

“It’s just always a pending, unclear mess,” Knowlton says.

Knowlton periodically logs onto a website set up for New Mexicans to check the status of their benefits. On Friday, the row for food stamps read: “This section is unavailable to view.”

See more at: http://www.sfreporter.com/santafe/article

Anti-poverty group: HSD needs federal monitor

Republished with permission from the NM Political Report. Click here to read the original article here.

By Joey Peters

Tens of thousands of New Mexicans are put at risk because of the state’s continued failure to adequately provide health care and food benefits to the poor, according to a legal motion filed by a group seeking to protect low-income residents.

Later this month, the New Mexico Center on Law and Poverty will argue that a federal court should appoint an independent monitor to oversee some of these key tasks from the New Mexico Human Services Department.

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It all stems back to a decades-old federal consent decree that advocates say the state is still struggling to meet.

Issued in 1990, the consent decree came as a result of a class action lawsuit that accused HSD of failing to provide food stamps and Medicaid benefits to recipients.

“The state wasn’t processing [food stamp and Medicaid] applications on time. People weren’t getting their benefits,” Sovereign Hager, a staff attorney with the Center on Law and Poverty, said in an interview. “The state agreed and it resulted in this order.”

human services departmentBut under the leadership of multiple New Mexico governors, HSD has still never been under full compliance of the consent decree.

The call for a monitor comes over the handling of specific sections of the consent decree.

Hager says things really came to a head in 2013, when HSD switched to a new IT system. The change led to the automatic denial of federal food assistance benefits, officially known as Supplemental Nutrition Assistance Program, to between 10,000 and 30,000 applicants.

“Federal law requires the state to look on the last day, make a decision and give notice of who’s at fault for the application not being processed in time,” Hager said.

Instead, HSD automatically denied these unprocessed cases in the fall of 2013, Hager says. The Center on Law and Poverty filed a motion accusing this practice of being illegal.

As a result, a federal court ordered HSD to stop “all procedural denials and closures” on SNAP applications.

As part of an agreement, HSD then allowed the Center on Law and Poverty to review two random samples of cases the department marked as “ready to deny or close,” according to the Center’s recent legal filing.

To its “shock,” the Center on Law and Poverty said in a legal filing it found only more problems with the state’s handling of federal benefits for low-income residents, including a backlog of 129,000 SNAP and Medicaid cases.

Since 2013, the Center on Law and Poverty has filed five court motions to try to get HSD to comply with the consent decree. Now, the organization is asking for the federal monitor.

HSD, according to the legal filing, is not properly delivering delay notices, conducting SNAP interviews on time, or issuing proper renewal notices. The legal advocacy group also faults the state department for using an outdated phone system and requiring “excessive Medicaid verification” requirements for applicants.

The Center on Law and Poverty wants the court to appoint a mediator to oversee these parts of HSD until it comes into full compliance with the consent decree.

An HSD spokesman didn’t return an email and voicemail message left Monday seeking comment for this story. But in a response to the Center on Law and Poverty’s legal filing earlier this month, HSD counsel calls the request to appoint a monitor an “extraordinary remedy” and says the advocacy group has not proved the department failed to take “all reasonable steps” to comply with court orders.

HSD instead contends it’s in “substantial compliance” with the consent decree. The department also criticizes the Center on Law and Poverty for not being “cooperative” or “constructive” with the process.

HSD blames its problems to meet federal requirements on “the complexity involved in compliance” with the consent decree. The department maintains that the “real confines” are working with outside companies it contracts with “to program necessary IT changes.”

“The changes being made are very complex, HSD’s task is large, and the recognition that to effectuate change requires time reflects reality,” HSD’s legal response reads.

The department also blames its failures on “new requests made by Plaintiffs.”

Hager, for her part, denies that requesting a monitor to oversee HSD compliance with federal law is extreme.

“We don’t want the state to pay fines or do anything punitive,” Hager said. “They need the leadership and the expertise to get things done.”

Medicaid Advisory Subcommittee Lacks Transparency

By Abuko D. Estrada, Staff Attorney
(505) 255-2840, abuko@nmpovertylaw.org

As you know, New Mexico’s Medicaid program is facing a huge budget shortfall amounting to over $400 million dollars in combined state and federal funds. A broad group of stakeholders and a meaningful, ongoing level of public input are necessary to deal with this shortfall. However, the current process is insufficient in these areas. Below, please read our press release regarding the lack of transparency and need for a greater level of input in the process. Additionally, you will find more information on the budget shortfall and the Medicaid program’s impact on the state.

Press Release: MAC Subcommittee Lacks Transparency

Factsheet: Medicaid Budget Shortfall