Court asked to order HSD to implement plan to remove barriers to food and medical assistance  

HSD and Center on Law and Poverty jointly drafted the court approved corrective action plan the department now refuses to adopt  

LAS CRUCES—Families continue to go without food and medical assistance they are eligible for because the New Mexico Human Services Department has failed to implement major elements of a corrective action plan the department itself helped draft and the court approved and mandated. In a motion filed yesterday evening on behalf of plaintiffs in the lawsuit Deborah Hatten Gonzales v. David Scrase, the New Mexico Center on Law and Poverty asked a U.S. District Court to order HSD to comply with the plan, set deadlines, share information, and meet with plaintiffs.

“No family should have to go hungry or be without health coverage, but that’s exactly what’s happening in New Mexico,” said Teague Gonzalez, supervising attorney at the New Mexico Center on Law and Poverty. “We were encouraged by the plan we developed with HSD, but the department has stopped cooperating and is refusing to set deadlines and fix long standing problems. HSD needs to implement the plan they agreed to immediately.”

While HSD has made some progress, serious failures continue. In the motion, the Center charges that HSD has refused to implement a corrective action plan and court ordered changes including: 

  • Improving its notoriously faulty IT system so families with immigrant members are not illegally denied benefits or required to provide documents that are not necessary to get benefits for eligible family members; 
  • Fixing the language in form notices so they explain how families can prove their eligibility to maintain their food and medical assistance and clearly understand why they are denied benefits; and
  • Implementing basic eligibility content into a worker manual, improve regulations and worker training. 

The court mandated a review of HSD case files that was completed in February 2019. In this audit, the Center found tremendous errors in 67 percent of all cases involving immigrant families. Of these, 60 percent resulted in a delay of one month or more receiving assistance.

In 2016, the court held former HSD Secretary Brent Earnest in contempt for failing to remove systemic barriers to assistance for eligible families applying for food and Medicaid assistance and appointed a Special Master to monitor and make recommendations to the department.

Judge Kenneth Gonzales set a series of deadlines in April 2018 for HSD compliance with court ordered reforms. Under new HSD Secretary David Scrase, plaintiffs and HSD jointly drafted, and agreed upon, a corrective action plan that the court approved in July 2019. However, HSD hired a new acting general counsel in August 2019 and collaboration has halted.

The long-running Hatten-Gonzales lawsuit was originally filed in 1989. While some progress has been made, HSD has never satisfactorily addressed entrenched problems in administering food and medical assistance. In 2016, HSD whistleblowers testified that there was a statewide policy of falsifying information on emergency benefits applications so the agency could pass federal audits and deadlines. This illegal policy resulted in thousands of New Mexican families going without the food assistance they needed.

There will be a status conference on the state’s compliance with the multiple court orders to remove barriers to food and medical assistance for eligible families tomorrow at 10:00 a.m. in U.S. District Court in Las Cruces before Judge Kenneth Gonzales.

The court motion can be found here: http://nmpovertylaw.org/hatten-gonzales-v-earnest-motion-to-enforce-judgment-2019-11-19/

The New Mexico Center on Law and Poverty report on its case review can be found here: http://nmpovertylaw.org/nmclp-report-on-hsd-case-review-2019-02-25-redacted/

The jointly developed corrective action plan can be found here: http://nmpovertylaw.org/hatten-gonzales-v-scrace-joint-motion-to-approve-two-corrective-action-plans-2019-07-10/

Yazzie plaintiffs call on state to develop transformative education plan

SANTA FE—New Mexico students still lack the basics necessary for a constitutionally sufficient education, charged the Yazzie plaintiffs of the landmark education lawsuit, Yazzie/Martinez v. State of New Mexico in a motion filed with the First Judicial District Court today. The motion asks the court to order the state to develop, implement, and fully fund a long-term plan that will meet the state’s constitutional mandate that guarantees all public school students the opportunity to be college and career ready.

“New Mexico has a historical opportunity, and a constitutional obligation, to transform our education system by building a multicultural educational framework and providing all students the opportunities they need to be ready for college or career,” said Gail Evans, lead counsel for the Yazzie plaintiffs in the lawsuit brought the New Mexico Center on Law and Poverty. “It’s been almost a year and a half since the Yazzie/Martinez decision, but the state still lacks a concrete, long term plan that would put us on the right path for a constitutionally sufficient education, along with necessary funding. New Mexico’s students need action now. We are asking the court to order the state to take immediate action to comply with the court’s order.”   

In July 2018, Judge Sarah Singleton ruled that the state is violating public school students’ rights—especially low-income, students of color, English language learners, and students with disabilities—to a sufficient and uniform education. She ordered the state to take immediate action to overhaul the state’s education system.

The 2019 New Mexico Legislature did not do enough to comply with the Yazzie/Martinez decision. As a result, school districts were unable to provide the programming and supports for at risk students like bilingual education and social services. In fact, many districts were forced to cut basic programs like reading intervention and drop-out/truancy prevention, and cannot meet the demand for pre-K programs.

“Cuba Schools serves predominantly Native American students, but we still lack the funds to provide culturally relevant curriculum and language support,” said Dr. Karen Sanchez-Griego, superintendent of Cuba Independent School District, a plaintiff in the Yazzie lawsuit. “We also can’t provide adequate programming to our students with disabilities or transportation services to get students to and from tutoring, summer school, and after-school programs. We need to make real changes to our education system now to give all our children—and our state—an opportunity to succeed.”

The motion argues that 2019 education legislation did not comply with the court order by failing to:

  • Cover basic instructional materials and technology for classrooms;
  • Ensure teaching is tailored to the unique cultural and linguistic needs of our students, including English-language learners and indigenous communities;
  • Make pre-K, summer school, after-school programs, reading specialists, and smaller class sizes available to all children who need them;
  • Ensure social services, counseling, health care and literacy specialists are available to all students who need them;
  • Invest in our educators to attract and retain new teachers and expand their qualifications, especially for special education, science, and bilingual education; and
  • Adequately increase the transportation budget to ensure all students have the opportunity to participate in after-school and summer programs.

“We still have a substandard education system for our children. Our schools not only lack the basics, they lack the essential culturally relevant resources and materials, that our children need,” said Wilhelmina Yazzie, the lead plaintiff in the case who has a son in the Gallup McKinley County Schools. “This is not acceptable. All our children deserve an equal opportunity to succeed. My hope is that the state will act upon the court’s ruling and make our children a priority. We cannot waste any more time. Our children are the future of New Mexico, and they are sacred.”

The 2019 New Mexico State Legislature increased education funding, but school districts had to spend the bulk of the increase on a much needed raise for educators. Once districts allocated funds for the modest six percent raise, they did not have enough funding for basic educational necessities that would bring the state into compliance with the court’s ruling.

The Legislature increased funding for extended learning, through the K-5 Plus and the Extended Learning programs, but ignored multiple warnings that school districts would not be able to use much of the increase due to rigid requirements imposed by the state. Many districts did not apply for funding because they determined that the money available would not cover the actual cost of the programs; the program requirements were too strict and inflexible; and they did not have time to determine whether they could implement the programs.

“We need to do what’s right for our students, and we need sufficient funding and flexibility to do it,” said Dr. V. Sue Cleveland, superintendent of Rio Rancho Public Schools, a plaintiff in the Yazzie lawsuit. “We have had to cut important instructional positions such as reading interventionists and coaches, and we remain unable to provide sufficient professional development, instructional materials, transportation, and other programs and services our kids truly need.”

Since the court’s July 2018 decision, the Yazzie plaintiffs have worked with a broad group of educators, tribal members, community groups, and school districts to craft a platform of action necessary to transform New Mexico’s educational system to address the needs of at-risk children in compliance with the court order. Most of the programs and funding in the platform, supported by plaintiffs, were blocked by legislative leaders and died in committees.

Attorneys on the case include lead counsel Gail Evans, Daniel Yohalem, and Lauren Winkler and Preston Sanchez with the New Mexico Center on Law and Poverty.

The motion can be found here: http://nmpovertylaw.org/motion-yazzie-plaintiffs-motion-for-compliance-2019-10-30/

Exhibits for the motion can be found here: http://nmpovertylaw.org/exhibits-yazzie-motion-for-compliance-2019-10-30/

The final ruling in Yazzie/Martinez v. State of New Mexico can be found here: http://nmpovertylaw.org/wp-content/uploads/2019/02/D-101-CV-2014-00793-Final-Judgment-and-Order-NCJ-1.pdf

Trump’s alarming “Public Charge” rule attacks immigrants, threatening access to food and healthcare

The Trump administration greenlights rule despite massive public opposition

ALBUQUERQUE—Widespread, devastating impact looms as the Trump administration sidesteps Congress with “Public Charge” changes. The expanded “Public Charge” rule allows the government to deny permanent residency (green cards) and visa renewals to lawfully present immigrants who participate in basic need programs like Medicaid, housing assistance, and SNAP food assistance. The rule also adds specific requirements into the public charge test, including income, age, health and English proficiency. Advocacy groups condemn the new rule, which goes into effect October 15, 2019.

“Immigrant communities contribute so much to the cultural, civic, and economic fabric of our state and nation,” said Fabiola Landeros, a community organizer with El CENTRO de Igualdad y Derechos. “Once again the Trump administration is targeting our communities, persecuting the most vulnerable based on their economic status, and trying to minimize our political power. No family should be forced to choose between feeding their children or having access to medical care or risking family separation. In New Mexico, we value taking care of our families and neighbors. As Nuevo Mexicanos, we need to look for solutions to provide safety net services for our communities and we must fight back against Trump’s racist agenda by continuing to organize and building upon our legacy in New Mexico of supporting immigrant integration.”   

“The expanded public charge rule is an attack on all immigrants, including children and seniors who, like any working American, may need to access supplemental benefits at any point such as subsidized housing or food stamps,” said Kay Bounkeua, Executive Director of the New Mexico Asian Family Center. “The Asian population has a high rate of family sponsorships and limited English proficiency—the expanded testing will result in keeping families apart and undermine the strengths and contributions of a racially diverse community.”

Congress made many lawfully present immigrants eligible for basic needs assistance to promote economic stability. Historically, administrations of both parties have only considered receipt of cash benefits and institutional care as reasons to deny lawfully present immigrants visa renewals or to deny their application for permanent residency. 

“We have a shared responsibility to make sure no one in our community, especially children, go without basic needs,” said Teague Gonzalez, an attorney at the New Mexico Center on Law and Poverty. “Immigrants contribute exponentially more to our tax system that supports basic benefit programs than they draw in direct assistance. Trump’s new rule furthers a cruel and racist agenda meant to separate families and spread fear. It will turn the U.S. immigration system into a pay-to-play game that unfairly favors the wealthiest households.”

“We envision a vibrant New Mexico where all people—regardless of immigration status—can achieve their full potential and are treated with dignity and respect,” said Eduardo García, an attorney with the New Mexico Immigrant Law Center. “This harsh change in policy targeting immigrants goes against our core values. It is a tactic to spread fear among immigrants, discourage immigration, and harm immigrants by preventing them from having access to public resources. Further, this policy change and the ugly rhetoric behind it continue to fuel hatred, xenophobia, and racism against immigrants. Nonetheless, we will fight back and NMILC will provide guidance to people that need it.” 

“We are saddened by the Trump administration’s decision to force our country’s green card applicants to make an impossible choice between legally receiving public benefits and getting their green cards, both of which they need to succeed in our country,” said Tess Wilkes of the Santa Fe Dreamers Project. “The complexity of this rule change will discourage many eligible folks in the immigrant community from even applying for much-needed public benefits for themselves and their children, at a time when many of them already feel under attack.”

The proposed changes to public charge policy are already causing significant harm. Fear and confusion is creating a chilling effect, causing people to disenroll from programs and forgo benefits. The impact is far-reaching in New Mexico—nearly one in 10 New Mexicans is an immigrant, and one in nine have immigrant parents. Over 77,000 U.S. citizen children in New Mexico live with at least one immigrant parent and are in a family that receives basic food assistance. A Manatt Health analysis estimates that, across the country, as many as 26 million people and their families could be dissuaded from using public benefits under the proposed rule change. 

“The American spirit is rooted in the welcoming of the stranger into our communities—it is in the belief that all coming to our communities should be cared for and that everyone has the opportunity to be given the resources necessary to climb out of poverty and contribute to the community,” said James Gannon, CEO of Catholic Charities. “Throughout the history of this nation, the foreign born welcomed into our community have contributed to and strengthened the fabric of our nation, and participated in our national defense and advanced our society. Penalizing through an expansion of public-charge testing of immigrants will only lead to self-injury to the American society and our nation.” 

New Mexico stands to lose as many as 2,700 jobs and nearly $400 million in economic activity because eligible New Mexicans will forego federal benefits that flow directly into the state’s economy. Immigrant-led households in New Mexico paid $756.9 million in federal taxes and $394.3 million in state and local taxes in 2014.

“The vast majority of children in New Mexico–97%–are U.S.-born citizens. But that shouldn’t matter. Every child living in New Mexico, regardless of where they or their parents were born, deserves the healthcare, food assistance, and other benefits they’re eligible for and need in order to thrive,” said James Jimenez, executive director of New Mexico Voices for Children. “As with the family separations–which are still going on–this is an unconscionable and racist immigration policy that will have very negative, life-long consequences for children.”

“Punishing people for accepting help with food, housing, and medical care that they are eligible for, and have contributed tax dollars to, will have devastating and widespread effects on New Mexico’s communities,” added Gonzalez. “The expanded rule will push people further into poverty, separate families, and lead to overall worse health outcomes and higher rates of food insecurity in our state. We are already hearing from families who are afraid to seek help for their children.” 

For more information please see the following handouts in English and Spanish. People concerned about their benefits or immigration status should speak to an immigration attorney about the best route for families to take.
 

Trump’s new rule would roll back civil rights protections in healthcare law

Nondiscrimination protections under the ACA are at risk

ALBUQUERQUE—In a move that will especially harm trans people, the LGBTQ+ community, patients who speak languages other than English, and people who need access to abortion services, the Trump administration proposed rolling back enforcement of nondiscrimination protections under the Affordable Care Act. New Mexico advocates who champion access to healthcare urge New Mexicans to publicly oppose Trump’s latest threat to healthcare accessibility.  

The ACA’s landmark nondiscrimination provision, known as Section 1557 or the Health Care Rights Law, protects patients from discrimination based on race, color, national origin, sex, age, and disability. Comments on proposed changes to Section 1557 must be submitted with the Federal Register by August 13, 2019.

“Discrimination has no place in health care,” said William Townley, New Mexico Center on Law and Poverty Healthcare Attorney. “Rolling back Section 1557 would allow discrimination and stereotyping to override patient care. This will endanger the health and lives of many New Mexicans and create needless confusion for providers and patients alike. We encourage individuals and groups to submit public comments with the Federal Register voicing opposition to the rollback of these important legal protections.”

“A patient’s health and wellbeing should always come first,” said Adrian N. Carver, Equality New Mexico Executive Director. “Giving healthcare professionals a license to discriminate against queer and transgender people is unacceptable. Rules that allow providers to ignore standard medical best practices and instead put their personal beliefs before patient health has the potential to gravely harm thousands of people and their families’ health. Our community must submit comment on these rules because, if enacted, these regulations threaten to completely upend the careful balance of religious freedom and other important human rights and instead grant providers a license to put their personal views before the healthcare needs of the patient.” 

The Trump administration is proposing rules that would reinterpret Section 1557 by

  • exempting a broad number of healthcare programs and entities from having to comply with Section 1557’s nondiscrimination provisions;
  • eliminating nondiscrimination protections for LGBTQ+ persons from regulations;
  • ending provisions that ensure people who speak languages other than English receive critical notices in the language they speak; 
  • removing protections against health plan designs that discriminate against people with serious or chronic health conditions.

“In addition to erasing the gender identity of individuals who identify outside of the binary choices of male or female, the proposed rule would gravely harm access to healthcare. The rule would let hospitals and clinics refuse to provide abortions based on religious or conscience concerns, even when there are no other providers in the area that could provide care,” said Terrelene Massey, Southwest Women’s Law Center Executive Director. “In a state such as New Mexico, which is largely rural, people do not always have a choice for where to go. In Santa Fe County, for example, the main provider of healthcare services is Catholic affiliated. Finding a medical provider without religious or conscience concerns would require a person to travel great distances and likely pay additional costs for using a provider out of their insurance network. The proposed Section 1557 changes could result in great bodily harm or even death to some, simply because of where they happen to live.”

Individuals can submit comments on proposed changes to Section 1557 at: https://www.federalregister.gov/documents/2019/06/14/2019-11512/nondiscrimination-in-health-and-health-education-programs-or-activities

Workers win wage theft fight against former owners of Kellys Brew Pub

ALBUQUERQUE—The former owners of Kellys Brew Pub and Restaurant violated Albuquerque’s minimum wage ordinance, Judge Benjamin Chavez of the Second Judicial District Court ruled late Friday. The court also determined that because Kellys failed to follow the rules for paying the tipped minimum wage, the former owners owed their employees the full minimum wage for those hours worked. 

Under Albuquerque’s minimum wage ordinance, if employers fail to pay workers their full wage, they must pay triple the wages that were withheld as well as attorneys’ fees. The business and the business owners, executives, and officers can be liable. A trial to determine the exact amount of damages and attorneys’ fees the business and its owner owe the servers is currently set for October 2019.

“This victory puts all restaurants on notice that they must pay every worker, by law, for every hour they have worked,” said Bianca Garcia, a plaintiff in the case. “The law is on the side of fair pay. Dennis and Janice Bonfantine should be ashamed of themselves for going through such extremes—trying to overturn the minimum wage law altogether—just to avoid paying back the money they took from us.”

15 servers, represented by Youtz & Valdez, P.C. and the New Mexico Center on Law and Poverty, brought the class action lawsuit, Atyani v. Bonfantine, in April 2016 on behalf of about 150 former servers who worked at Kellys from 2013 to 2016. The lawsuit contends that after city voters overwhelmingly passed a ballot initiative in 2012 raising the Albuquerque minimum wage, the Bonfantines “settled on an unlawful response to the wage increase: servers would pay for it themselves, out of their tips.” 

Kellys required servers to pay their employers cash each shift, calculated at two percent of their total daily sales, plus three dollars per hour they worked on the clock. After making these required payments to their employer, 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. 

To defend against these claims, the Bonfantines argued that the Albuquerque minimum wage was invalid because it was increased through a voter initiative that put a summary of the wage increase on the 2012 ballot rather than the entire ordinance. In May 2017, the Second District Court rejected this argument, ruling that any challenge to how the 2012 election was conducted must have been made right after the election.

“Albuquerque’s minimum wage law has teeth. Unscrupulous employers who don’t pay their workers the legal wage can be sued and end up paying much more in damages than if they had just paid their employees fairly,” said Stephanie Welch, supervising attorney with the New Mexico Center on Law and Poverty. “Workers have the right to a fair and legal wage. This includes people who work for tips.” 

“The Kellys servers showed incredible persistence in fighting the Bonfantines, who literally took their hard-earned money out of their pockets,” said Shane Youtz, an attorney at Youtz & Valdez, P.C. “We encourage every employee who is a victim of wage theft to come forward. You deserve to collect every dollar you worked for and are owed.“

Attorneys on the case are Stephanie Welch and Sovereign Hager of the Center and Shane Youtz and James Montalbano of Youtz & Valdez, P.C.

The order on Atyani v. Bonfantine can be found here: http://nmpovertylaw.org/case-law-summary-judgement-order-atyani-v-bonfantine-2019-07-12/

The transcript of the hearing in which the judge explains his ruling can be found here: http://nmpovertylaw.org/transcript-atyani-v-bonfantine-hearing-ruling-only-2019-05-29/

The Atyani v. Bonfantine complaint can be found here: http://nmpovertylaw.org/complaint-kellys-final-2016-04-28-filed

Public hearing on cuts to CYFD’s child care assistance on Monday, July 8

SANTA FE—There is a public hearing on proposed cuts to the Children, Youth and Families Department’s Child Care Assistance program on Monday, July 8 in Santa FeCYFD’s proposed regulation changes will prevent thousands of parents who are working or in school from getting much needed child care and continue to require families to pay an unaffordable share of costs. 

The regulation would hurt hard working New Mexico families by cutting child care assistance eligibility to 160% of the Federal Poverty Level from 200%. This means fewer working families will have access to child care assistance, even though the program is one of the best work support programs available to help families exit poverty and increase financial stability.

CYFD’s proposed regulations also fail to address affordability for the child care assistance program. Unfortunately, CYFD requires low-income working families to pay an unaffordable share of their income toward copayments. The federal government has urged states to ensure affordability for child care assistance by capping the family’s share of costs at no more than 7% of their income. Under CYFD’s current copayment requirements, families often pay 10% or more. This makes it difficult for families to pay for other necessary expenses like food and housing. 

The proposed regulation and public comments on the proposed cuts can be found here: https://www.newmexicokids.org/ 

WHAT:          
Public hearing on proposed CYFD regulation that would cut eligibility to the state’s Child Care Assistance program

WHEN: 
Monday, July 8, 2019 at 11:00 am          

WHERE:          
Apodaca Hall, 1120 Paseo De Peralta, Santa Fe, NM 87502.

WHO:             
CYFD
Families who would be impacted by the proposed cuts
Other members of the public  

Law guaranteeing basic wage protections for home care and domestic workers goes into effect today

SANTA FE—A law goes into effect today that ensures home care and domestic workers—the people who clean homes and deliver care for others—are protected by New Mexico’s minimum wage standards and other wage protections.

Under the Domestic Service in Minimum Wage Act, domestic and home care workers are now covered by New Mexico’s wage laws, and the New Mexico Department of Workforce Solutions can investigate their complaints, enforce their rights, and recover their wages and damages.

“Talking with domestic workers, we have found that this is a growing industry and many of these workers in the past didn’t have anywhere to go to when they have been the victims of wage theft,” said Hilaria Martinez, a community organizer for El CENTRO de Igualdad y Derechos.

“Our domestic worker committee has found that cases like these keep increasing, especially to women in this field and other minorities in our community,” Martinez added. “Therefore, after years of hard work and community organizing, I am glad to see this law go into effect to deter workplace exploitation for domestic workers and for them to finally be valued like any other worker in our state.”

Domestic workers have been left out of many labor protections throughout history, and typically had very few options when they were not paid.

The Domestic Service in Minimum Wage Act, sponsored by Sen. Liz Stefanics and Rep. Christine Trujillo, ended the exemptions for domestic workers from New Mexico’s wage laws—as has already been done at the federal level.

New Mexico law generally requires employers to pay employees minimum wage and overtime, keep records, and pay employees in full and on time. However, like other wage laws enacted in the 1930s, it excluded large categories of work typically performed by women and people of color from the minimum wage and other protections.

Federal law eliminated its exclusion of domestic workers years ago, but lacking state protections, New Mexicans who work in people’s homes were not protected and were subject to low or no pay and exploitative situations.

“The Domestic Service in Minimum Wage Act was a culmination of years of work, including listening sessions with caregivers. The New Mexico Legislature recognized that it’s high time to ensure all workers, including people who work hard in other people’s homes, are guaranteed fundamental labor protections just like everyone else,” said Adrienne R. Smith of New Mexico Caregivers Coalition. “Domestic workers’ historical exclusion from the federal labor laws is an ugly vestige of slavery. The federal government righted that wrong years ago. We are overjoyed that today New Mexico has finally done so as well.”

In the 2017 New Mexico legislative session, the New Mexico Caregivers Coalition successfully spearheaded Senate Joint Memorial 6 that created a statewide taskforce to recommend short-term and long-term actions to promote a stable and growing workforce to meet the needs of seniors and individuals with disabilities who rely on these services in order to live independently in their communities.

“There is nothing more important than taking care of New Mexico’s children, elderly, and family members with disabilities,” said Alicia Saenz a member of El CENTRO de Igualdad y Derechos. “It is invisible work and historically, our work has not been given the value it deserves. I am proud to provide these services to my community. The implementation of this law today is a step in the right direction to give domestic workers the respect and dignity they deserve.”

“This law was the result of people doing some of the toughest jobs—like caring for others’ loved ones—coming from around the state, sharing their stories, and speaking up for fairness,” said Stephanie Welch, supervising attorney at the New Mexico Center on Law and Poverty. “Domestic and home care workers are now entitled to the state minimum wage and can file a claim with DWS when they are not properly paid.”  

###


The New Mexico Caregivers Coalition advocates for direct care workers’ education, training, benefits, wages and professional development so they may better serve people who are elderly and those with disabilities.

El CENTRO de Igualdad y Derechos is a grassroots, Latino immigrant-led organization based in Central New Mexico that works with Latino immigrant communities and allies to defend, strengthen, and advance the rights of our community.

The New Mexico Center on Law and Poverty is dedicated to advancing economic and social justice through education, advocacy, and litigation. We work with low-income New Mexicans to improve living conditions, increase opportunities, and protect the rights of people living in poverty.

Proposed cuts to child care assistance will force parents to give up employment and educational opportunities

Eligible families sued department last year over arbitrary denials of assistance

SANTA FE—In a move that will prevent families from getting much needed child care, the State of New Mexico proposes to cut eligibility to child care assistance available to parents who are working or in school. A regulation released yesterday, would reduce families’ eligibility to incomes of 160% and lower of the federal poverty level. Currently, families with incomes up to 200% of the FPL qualify for assistance. The regulation also provides some information used to determine family copays, which continue to be unaffordable according to federal standards.

The proposed rule will reduce the number of families eligible for child care assistance and continue to burden parents with unaffordable copays that force them to go without child care and forego education or employment opportunities. Children, Youth and Families Department data from FY2017, shows a 66% drop in participation in the program once families are charged a copay, beginning with incomes as low as 25% to 50% of the FPL. According to CYFD data, just a third of eligible families participate in the program.

“We urge CYFD to change this proposed regulation so that more, not fewer, families have access to the child care they desperately need. We know that CYFD wants to increase opportunities for New Mexico’s families. One clear way to do that is to help hard-working parents keep their jobs and stay in school by providing help with the exorbitant costs of child care. Unfortunately, too few families qualify, and those who do must come up with copays that are so high that many are forced to leave the program and give up on careers and their education or resort to unreliable and unlicensed care,” said Maria Griego, supervising attorney at the New Mexico Center on Law and Poverty.

Griego added, “We are concerned that the state is cutting benefits when enrollment has decreased. We need safeguards that ensure child care copayments are actually affordable so families can benefit from the program. This means adequate funding at the legislature that is based on the economic reality facing New Mexico families. The state should seek supplemental funding to prevent cuts right now.”

CYFD agreed to issue regulations that detail eligibility requirements for the Child Care Assistance Program following a lawsuit filed by Organizers in the Land of Enchantment (OLÉ) and families represented by the New Mexico Center on Law and Poverty. The lawsuit, Torres v. Jacobson, argued that the department illegally reduced eligibility and determined the amount of child care assistance without going through the public regulatory process required by law.

After the lawsuit was filed, CYFD immediately increased eligibility to 200% of the federal poverty level, which it now proposes to cut.

“When CYFD extended the eligibility requirements, it opened the doors for more parents out there struggling to find childcare and now they are looking to close that door again,” said Brian Gelepsie, OLÉ member. “The state is messing with families’ livelihoods when families have to decide between paying for childcare or having a roof over their heads. Our parents and children deserve better.”

The proposed Child Care Assistance Program regulation:

  • Cuts eligibility to 160% FPL—even though enrollment in the program is dropping.
  • Sets child care copayments at unaffordable levels and fails to explain the details of how copayments are calculated. For example, the department applies a 10% increase to base copayments for every case, but this is not in regulation.
  • Does not clearly articulate how CYFD calculates income to determine eligibility or how the application process works.
  • Does not require applications and eligibility documents to be in languages other than English.

A public hearing on the rule is scheduled to take place in Santa Fe on July 8, 2019.

Court hearing on HSD compliance with orders to remove barriers to food and medical assistance on Thursday


LAS CRUCES—On Thursday at 10:30 a.m., in U.S. District Court in Las Cruces, Judge Kenneth Gonzales will hear an update on the New Mexico Human Services Department’s compliance with multiple court orders to remove barriers to food and medical assistance for eligible families.

At the hearing, the New Mexico Center on Law and Poverty will provide information about a statistically significant review of food and medical assistance cases conducted between September 2018 to February 2019. Both the court appointed Special Master and the plaintiffs, represented by the Center, found that New Mexicans are still not getting the food and medical assistance they need because HSD continues to violate the law.

According to an extensive review by the Center of HSD client cases, HSD made errors in 202 out of 288 cases—an error rate of 70%. These errors led to 109 households of the 288 cases reviewed losing food or medical assistance, sometimes both. The Special Master validated nearly all these findings. The review found that HSD continues to illegally deny food and medical assistance in the following ways:

  • HSD illegally denies food and medical assistance to families who fail to provide unnecessary paperwork.
  • HSD’s own quality assurance team failed to find the vast majority of the errors found by the Center and the Special Master.
  • HSD does not consistently apply eligibility policy and application procedures.
  • HSD does not accurately inform families about their eligibility and what is needed to process their case.
  • HSD’s management team lacks expertise to administer food and medical programs in accordance with federal law.
  • HSD’s IT system requires changes to accurately process applications for benefits.

In September 2016, Judge Gonzales held former HSD Secretary Brent Earnest in contempt for failing to remove barriers to assistance for eligible families. The court appointed a Special Master to monitor and make recommendations to the department. In April 2018, the judge set a series of deadlines for HSD compliance with court ordered reforms.

The New Mexico Center on Law and Poverty report on it’s case review can be found here: http://nmpovertylaw.org/nmclp-report-on-hsd-case-review-2019-02-25-redacted/

The Gonzales v. Earnest joint status report can be found here: http://nmpovertylaw.org/doc-873-joint-status-report-2019-05-01/

WHAT:
U.S District Court status conference on HSD compliance with court orders in Deborah Hatten Gonzales v. Brent Earnest, No. 88-385 KG/CG

WHEN:
Thursday, May 16, 2019 at 10:30 a.m.

WHERE:
United States Courthouse
4th Floor, North Tower, Mimbres Courtroom
100 N. Church Street
Las Cruces, New Mexico 88001

WHO:
New Mexico Center on Law and Poverty attorneys
Court Appointed Special Master Lawrence M. Parker
HSD Secretary and Attorneys

Court orders CYFD to lawfully manage Child Care Assistance Program

Department increased eligibility levels after families sued last year

SANTA FE—Working families will have increased access to much needed child care assistance as a result of a court order approving an agreement between working families and the New Mexico Children, Youth and Families Department. The order, entered by the First Judicial District Court in Santa Fe yesterday, mandates that CYFD will follow the law in managing New Mexico’s Childcare Assistance Program.

“Every family deserves access to quality child care while parents are at work or in school,” said Maria Griego, supervising attorney at the New Mexico Center on Law and Poverty. “Only a third of eligible families in New Mexico currently access child care assistance because the application process and eligibility requirements are inconsistent and confusing. The settlement is a critical opportunity for CYFD to improve the well-being of children. We look forward to working with this administration to fix long standing barriers.”

Several families and OLÉ, represented by the New Mexico Center on Law and Poverty, sued the department in September 2018, charging that CYFD illegally established a policy of denying child care assistance to families with incomes over 150% of the federal poverty level—a yearly income of $31,170 for a family of three—without publishing a regulation or going through the required public comment and hearing process. The lawsuit also argued that CYFD illegally failed to provide adequate notice to families about their child care benefits or establish a regulation that explains how CYFD determines the share of costs the family has to pay.

After the lawsuit, CYFD immediately increased eligibility for child care assistance to families with incomes up to 200% of the federal poverty level.

The court order requires CYFD to:

  • Maintain the current eligibility level until or unless CYFD lawfully passes regulations with public comment with a different eligibility level;
  • Put into regulation child care assistance eligibility requirements, including how CYFD calculates the amount of costs shared by parents;
  • Revise notices and forms that families receive or fill out in the application process;
  • Revise the manual CYFD workers use to determine eligibility for assistance;
  • Post eligibility information and application rights in all CYFD offices.

“We know that the earliest years in children’s lives are the most important in their development and lay the foundation for all that is to come,” said Traeshaun Buffin a community organizer at OLÉ. “The astronomical costs of child care prevent tens of thousands of New Mexican families with children from accessing meaningful work and educational opportunities. We’re so pleased that CYFD has agreed to stop denying eligible families the child care assistance they need and to adopt standards with public input to make the program affordable and predictable.”

The court order can be found here: http://nmpovertylaw.org/9-order-torres_2019_05_06/

The Torres v. Jacobson complaint can be found here: http://nmpovertylaw.org/torres-v-jacobson-first-amended-complaint-with-exhibits/