By Elizabeth Wagoner, Supervising Attorney for Workers’ Rights
On May 4, 2017, several community organizations filed motions to intervene and motions to dismiss in a lawsuit that corporate and industry groups filed to attempt to overturn the Albuquerque Minimum Wage Ordinance (MWO) and keep the Albuquerque Healthy Workforce Ordinance off the 2017 ballot. The New Mexico Center on Law and Poverty represents the intervenors in this case.
The increases to the Albuquerque minimum wage passed in 2012 with the overwhelming support of Albuquerque voters. Now, almost five years later, corporate business interests seek to undercut the democratic process and invalidate the Albuquerque Minimum Wage, cutting the wages of hard working people across Albuquerque by $1.30 – from $8.80 per hour to $7.50 per hour. The corporate interests’ legal challenge to the Healthy Workforce Ordinance ballot initiative is a similarly undemocratic effort by corporations to keep Albuquerque voters, as is their right, from deciding whether workers should have the right to earn sick leave to recover from illness or care for ill family members. The corporate plaintiffs in the lawsuit do not stop there, however. They also ask this Court to take away the voters’ democratic right to propose and vote on ballot initiatives ever again.
The community organizations that fought successfully to put these important workplace rights on the ballot are now fighting once again to protect these laws. The first Motion to Dismiss asks the court to dismiss all of the challenges to the Albuquerque Minimum Wage Ordinance, and a second Motion to Dismiss asks the court to dismiss the Healthy Workforce Ordinance challenges. Both motions argue that the industry claims are flimsy, without merit, and are wholly without respect for the democratic process.
SANTA FE – Today, New Mexico’s First Judicial Court ruled that a lawsuit charging that Department of Workforce Solutions (DWS) must enforce state laws protecting working people against wage theft from their employers can go forward. Today’s ruling denies DWS’s request to dismiss the lawsuit. The individuals and groups who filed the case will request a final ruling from the court this summer.
Wage theft is the illegal practice of not paying workers for all of their work, including violating minimum wage laws, not paying overtime, and forcing people to work off the clock.
The lawsuit, Olivas v. Bussey, was filed in January 2017 by four workers who were victims of wage theft and workers’ rights organizations El Centro de Igualdad y Derechos, New Mexico Comunidades en Accion y de Fé (CAFÉ), Organizers in the Land of Enchantment (OLÉ), and Somos Un Pueblo Unido. Elizabeth Wagoner of the New Mexico Center on Law and Poverty (the Center) is lead counsel on a legal team that includes the Center’s Gail Evans and Tim Davis, Santa Fe attorney Daniel Yohalem, and Gabriela Ibañez Guzmán of Somos Un Pueblo Unido.
“Our government should be working with us, not against us, to hold unscrupulous employers accountable when wages are stolen and our rights trampled on,” said Ibañez Guzmán. “This administration has long ignored the conditions of struggling workers in New Mexico, but our families are pushing back. It’s important that this case is moving forward so wage theft victims can be heard and the department’s disregard for the law exposed.”
“This ruling reaffirms that every hard working New Mexican – not just those with the money to hire lawyers–deserves to be paid for every hour they work,” said Wagoner. “Our state government cannot turn a blind eye when employers break laws protecting working people.”
New Mexico has some of the strongest wage enforcement laws in the country. In 2009, the legislature made them even stronger. However, DWS illegally refused to enforce these new laws and imposed onerous and arbitrary internal policies that have enabled unscrupulous employers to get away with wage theft unchecked.
“DWS’s failure to enforce New Mexico’s wage and hour laws is one more example of how hard working New Mexicans are getting the short end of the stick in our state—but they are fighting back. This case is too important to dismiss, particularly given the profound impact wage theft has on New Mexican working families. We applaud the ruling and look forward to continuing to expose systemic failures by DWS to enforce New Mexico wage and hour laws, “said Marco Nuñez, workers’ justice coordinator at El CENTRO de Igualdad y Derechos.
A copy of the ruling can be found here.
Background on the lawsuit:
New Mexico’s state-level protections against wage theft include: (1) Mandatory statutory damages to victims of wage theft, calculated as full back wages, plus interest, plus double damages; (2) At least a three-year statute of limitations, or longer when the violation is part of a “continuing course of conduct”; (3) A minimum wage of $7.50 and overtime pay for hours over 40 at one-and-one-half times the employee’s regular hourly rate; (4) the department must investigate and take legal action on valid and enforceable claims filed by workers who cannot afford private attorneys.
The lawsuit charges that DWS has:
▪ illegally imposed a $10,000 cap on wage theft: they do not investigate or take any enforcement action on wage claims worth $10,000 or more.
▪ imposed an illegal one-year time limit on liability for wage theft: they do not investigate or take any enforcement action on claims for back pay that go back more than one year from the date an employee files a claim, despite the N.M. Legislature’s 2009 decision to lengthen the statute of limitations for wage claims to at least three years.
▪ illegally imposed a policy against holding employers liable for any statutory damages at the administrative enforcement phase of a case, thereby eliminating the financial deterrent for engaging in wage theft, despite the Legislature’s 2009 decision to double the penalty for engaging in wage theft.
▪ adopted policies and procedures that require the permanent closure of wage claims for procedural reasons, such as when a claimant misses a 10-day deadline, without regard to the strength of the claim or whether the claimant received notice of the deadline.
The lawsuit seeks an order that the Department of Workforce Solutions must stop applying these unlawful policies, as well as an order that the Department must re-open and investigate cases impacted by these policies.
The defendants in the lawsuit are the Department of Workforce Solutions, Cabinet Secretary Celina Bussey, and Labor Relations Division Director Jason Dean.
In January, 2017, the First Judicial District Court issued a temporary restraining order requiring the Department of Workforce Solutions to accept wage claims without regard to the Department’s illegal $10,000 cap or illegal one-year lookback period and to keep records of claims impacted by these policies.
Republished from the Las Vegas Optic. See the original column here.
Tuesday, July 19, 2016 at 6:30 pm (Updated: July 19, 6:42 pm)
U.S. Magistrate Judge Carmen Garza has concluded that the New Mexico Human Services Department should have someone looking over its shoulder to help ensure that it complies with court orders and federal law in the administration of federally funded benefits.
According to The Associated Press, Garza is also recommending a contempt finding against the agency, which oversees the distribution of federal food aid and Medicaid health care benefits to the poor.
To be sure, those are merely proposals at this point; the department has 14 days to file its objections, and the department is already saying that it doesn’t agree with everything in the judge’s decision.
Still, it’s unfortunate — though not surprising — that such extreme measures are necessary to get the department to follow the law and to finally comply with court orders that have gone unfulfilled.
The harsh measures being recommended are not surprising because of the striking testimony presented during the court proceedings in the case.
“Caseworkers’ sworn testimony that they were instructed by managers to fraudulently alter applicant information has essentially not been refuted,” Garza said. According to The Associated Press, Garza also noted that managers overseeing supplemental nutrition benefits invoked their Fifth Amendment right against self-incrimination during the proceedings.
The Human Services Department’s office of inspector general and the U.S. Department of Agriculture are investigating that part of the case.
We don’t doubt that the state Human Services Department has a difficult job with tight deadlines and large caseloads.
But it’s also important to remember that the agency exists to serve as a safety net for our state’s most vulnerable residents.
The aid this agency provides helps our state’s poor put food on the table for their families and get medical care for them. Playing games with that aid is unconscionable and wrong.
If it takes a special master looking over the agency’s shoulder to force it to do the right thing, then so be it.
According to The Associated Press, the special master would have expertise in determining eligibility for Medicaid and food aid. That individual would also be knowledgeable with the organizational and computer systems used to manage the state’s caseload.
The New Mexico Center on Law and Poverty, which brought forth the federal lawsuit on behalf of aid beneficiaries, was pleased with Garza’s decision, which was issued Monday.
“The things we have been asking for are very simple,” attorney Sovereign Hager told AP. “Train your workers on what the law requires, make sure the IT system does what it’s supposed to, make sure notices are intelligible and make sense.”
That seems reasonable to us.
By Ruth Hoffman / Lutheran Advocacy Ministry-NM
originally published Thursday, June 9th, 2016 at 12:02am
Here in New Mexico, we have long struggled with taking care of our most vulnerable families. Recent reports that state workers at the Human Services Department were being pressured into denying emergency SNAP (food stamps) to hungry people and families are very disturbing. For over two decades, a federal court has found HSD’s track record for basic processing of medical and food assistance benefits to be in violation of federal law.
Government is one of the ways that we can work together to address the needs of our communities, and it can make a positive difference in people’s lives. But when government doesn’t work or fails to do its job, it can cause a lot of pain. Just ask a family of four in Hobbs. State workers left them without Medicaid coverage for seven months because HSD had failed to send a renewal notice or to check information the family had already given them.
Or an elderly man from Alamogordo with no income who had his SNAP assistance terminated last August because state workers forgot to send him a legally required notice. After going three weeks without food assistance, his benefits were reinstated, but only after the man went to an Income Support Division office to submit a new application for food assistance.
Whether it involves Medicaid or SNAP, these stories and others point to an unacceptable problem at HSD of improperly denying families needed services and failing to notify recipients about delays. Seniors and low-income families are on their own to figure out how to resolve these issues. Indeed, according to a study by the New Mexico Center on Law and Poverty, HSD failed to send Medicaid clients the required renewal forms 50 percent of the time. Over 65 percent of the time, they failed to alert families about delays in their SNAP applications or about ways to resolve the delays.
As the government agency charged with assisting low-income people, families and seniors, the Human Services Department should implement common-sense steps to improve efficiency and save money. This can be done by eliminating requests for unnecessary documents, making client notices more accurate and understandable, and automating Medicaid renewals.
Additionally, it is critical that HSD provide much better job training, support and resources for the state workers who determine eligibility for badly needed assistance. Creating a comprehensive, accurate online worker manual would help workers process cases efficiently and as required by law.
We believe that we are called to do everything in our power to serve our neighbors. While faith communities throughout our state serve and help people living in poverty and experiencing hunger every day, they can’t do all that is needed and must be done. Our government has a role to play, and the agencies of our government must carry out that role by implementing a benefits system which is efficient and does its best to not put up barriers to accessing the assistance that eligible low-income New Mexicans need.
We know that eligible families are trying to get back on their feet; they are trying to do the right thing. We should expect nothing less from state leaders. Creating a more efficient benefits system won’t solve everything, but it can make a big difference in the lives of families and the people who most need help.
Hungry people in New Mexico may have been denied expedited food assistance after their applications were falsified and put on hold. That’s according to testimony from state workers in recent weeks during an ongoing hearing about whether the Human Services Department is fit to process applications.
In December, Kimberly Jones was struggling to get the hours she needed as a home health aide, a job she’s done for 18 years. She was living in a hotel room, and every day, she had to make a choice. “Do I eat or do I pay for the room? Or how can I squeeze them both? Because, you know, the hotel wants their money,” she said. “They don’t care if you eat or not.”
She decided to apply for food stamps. She said the Supplemental Nutrition Assistance Program told her she was eligible for emergency help, and that she should see her EBT card fill up soon. “Food is the only thing that you can do to get by,” Jones said. “To make things a little easier is not having to worry if you’re going to be able to eat.”
According to emergency food stamps rules, the money should have shown up within seven days. But it didn’t, not for weeks. After asking around, Jones found a lawyer focused on poverty issues who helped her make the call to find out what happened. Jones remembered they waited on hold for more than an hour. But when they finally spoke to someone, she said she got her food stamps right then and there. It was February—two months after she applied.
“When you take someone’s food from them, they don’t have anything, and that’s really sad,” she said. “And for them to take that away, it makes you feel like nothing.”
These days, Jones lives in her own apartment. She works seven days a week, from about 9 a.m. to 7:30 p.m. She says she still gets about $75 a month in food assistance and has to make use of church charity programs and food pantries around town. “It doesn’t matter if you have a piece of job or try to have a piece of job, you know, food helps,” she said.
Lawyer Sovereign Hager with the New Mexico Center on Law and Poverty said Jones’ story is common. “Some of the poorest people in New Mexico are being denied those benefits in order to make processing numbers look better,” she said.
In recent hearings, state workers took the stand to testify that applications were changed, falsified, by the division so they showed people who were seeking food assistance had more assets than they did. That way it wouldn’t look like the state was blowing deadlines.
Hager watched high-ranking Human Services Department officials plead the fifth over and over in court—97 times, even when they were asked basic questions. HSD did not respond to KUNM’s half a dozen requests for an interview. So it’s not clear who knew what.
Hager said their inability to answer questions in court speaks for itself. “Well, of course they know what’s going on. If they didn’t know what was going on, they could testify to that,” she said. “So, obviously this goes up to the highest levels. It’s extremely troubling.”
Hager said the feds should investigate the department—and the state auditor should, too. But, she added, people need help now. The center’s asking the court to put a third-party expert in charge of processing applications in New Mexico. “We want the judge to enter an order as soon as possible to that effect just to protect those families,” she said.
Miles Conway said these issues have been going on for a long time and he’s proud of the whistleblowers who put their jobs on the line by speaking out in court. He’s with the public service employees union.
“There are constantly new mandates being handed down from Santa Fe,” he said. “It’s just becoming very difficult to even to do the jobs that these individuals are trained to do, and that they are ethically sworn to do in a certain manner.”
It was sad, Conway said, watching these court hearings unfold, and he’s apologetic to all the New Mexicans who had to struggle to feed themselves or their kids. “I felt bad that we hadn’t been able to connect the dots to find this smoking gun sooner so that we could have begun to make this very serious change in how New Mexico is running its Income Support Division,” he said.
And as for Jones? She said the state has to step up. “I hope they get it right. For us little people, get it right.”
The next hearing is set to begin July 6 in Las Cruces.
The Human Services Department wouldn’t make anyone available for an interview, but right before airtime, a spokesperson emailed a statement saying the department takes the allegations seriously and has launched an internal investigation.
Thanks to Samantha Sonner of KRWG in Las Cruces for contributing to this report.
KUNM’s Public Health New Mexico project is funded by the W.K. Kellogg Foundation, Con Alma Health Foundation and McCune Charitable Foundation. Find more info on our site, publichealthnm.org, along with links to more coverage by our partner KNME / New Mexico PBS.
Republished from the Santa Fe New Mexican. Click here to read the original article.
By Justin Horwath
A panel appointed by the New Mexico Human Services Department voted Thursday against imposing copays or premiums on low-income patients who receive Medicaid.
Meeting at the state Capitol, the committee voted down the proposal to recommend the department impose premium payments for Medicaid enrollees with an income between 125 percent and 138 percent of the federal poverty level. New Mexicans within 138 percent of the federal poverty level — an annual income of $16,404 for a household of one — or below are eligible for Medicaid.
The department does not necessarily have to abide by recommendations of the Benefit Package, Eligibility Verification and Recipient Cost-Sharing Cost-Containment Subcommittee. The department appointed the subcommittee after the Legislature passed and Gov. Susana Martinez signed into law a budget bill that directed the department to plug an $87 million shortfall in state funding for Medicaid — which translates into a potential $417 million cut in services due to federal matching money.
Medicaid, also known as Centennial Care, is a state-federal program that provides health insurance to children, the disabled and poor adults. It currently provides primary and emergency care as well as behavioral health services to 766,000 people in the state.
But the number of those who qualify for the program has risen under the Affordable Care Act, which now allows states to bring low-income adults into Medicaid. And those costs are rising faster than the state budget.
In trying to limit the cost increases, the state is moving forward with another set of proposals that would trim reimbursements for many services to doctors, specialists, dentists, therapists and hospitals. Those changes are awaiting approval from the federal government and expected to go into effect July 1.
The subcommittee looking at copays and premiums included those from the health care industry as well as advocates for the poor. Larry Martinez, the regional director for Presbyterian Medical Services, drafted the motion to impose premiums on enrollees.
Ruth Hoffman, director of the Lutheran Advocacy Ministry of New Mexico, voted against the proposal. She said the department should make a report to the Legislature about how it’s responding to the budget language directing it to make cuts to Medicaid.
“We all know this is not going to generate much money at all,” Hoffman said.
Sandy Potter, a vice president for Blue Cross Blue Shield, one of the four insurance companies that oversees Medicaid, agreed. “I just think it’s not going to make a hill of beans,” she said.
Joe Martinez, consumer outreach coordinator for Health Action New Mexico, told panel members they should vote down the motion because New Mexicans newly enrolled in Medicaid are just beginning to understand its benefits.
“Then to impose premiums and cost-sharing, it’s nothing more than making it more difficult and getting another pattern of denial” from the department, he said.
Members also voted down 5-4 a proposal to impose copays on Medicaid enrollees who use hospital emergency rooms for nonemergency care.
Erik Lujan, a subcommittee member with the All Pueblo Council of Governors, said that tribal members often go to the emergency room because it’s difficult to see a specialist on the spot.
Subcommittee members voted in favor of making a recommendation to the department that it impose copays on members purchasing more expensive brand-name drugs as opposed to the cheaper generics.
Nancy Smith-Leslie, Medicaid director for the Human Services Department, told the panel that Medicaid members currently use about 80 percent generic and 20 percent brand-name drugs.
Potter, of Blue Cross Blue Shield, made the proposal. She said other state Medicaid programs have higher rates of generic drug use.
“There’s an enormous opportunity to reduce costs,” Potter said.
Abuko Estrada, staff attorney for the New Mexico Center on Law and Poverty, urged the panel to vote against the recommendation because of a lack of data about its impact. He said the department should look for other ways to find Medicaid savings beyond cutting the benefits package.
The recommendation passed on a 5-3 vote.
Justin Horwath can be reached at 505-986-3017 or email@example.com.
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.
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.
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.