Judge Holds NM Human Services Chief in Contempt

human-services-departmentOriginally published in the Albuquerque Journal September 28, 2016
https://www.abqjournal.com/854783/judge-finds-contempt-in-hsd-legal-case.html

SANTA FE – A federal judge held New Mexico’s top human services official in contempt Tuesday for failing to comply with court orders aimed at improving the administration of food aid and Medicaid health care benefits.

The contempt order against Human Services Secretary Brent Earnest by U.S. District Court Judge Kenneth Gonzales upheld findings that the cabinet secretary did not diligently attempt to comply with court orders concerning the handling of Medicaid benefit renewals, eligibility for immigrants, training for agency employees and other administrative requirements.

The judge, in his Tuesday order, also said objections filed by the agency were without merit and that the overall direction of the case was troubling.

“It remains clear that HSD and its officials have failed to exercise the leadership, control and managerial oversight to effectively come into compliance with the court orders,” Gonzales wrote.

However, a spokesman for the Human Services Department, which runs the federally funded Supplemental Nutrition Assistance Program, or SNAP, took issue with at least part of the judge’s order.

“We strongly disagree with the judge’s characterization of the department, which doesn’t take into account all of our efforts to resolve long-standing issues – some of which are three decades old and occurred under several administrations,” HSD spokesman Kyler Nerison said. “However, we are pleased that the court has agreed with us to bring in an outside monitor to help resolve those issues.”

“Regardless, we are going to continue providing services to New Mexicans who need it the most,” he added.

The contempt finding accompanies the judge’s earlier approval of plans for a court-appointed special master to help ensure federally funded benefits are administered properly amid internal investigations by state and federal agencies into allegations that food aid applications were falsified.

The civil contempt order carries no additional sanctions or penalties.

Sovereign Hager, an attorney at the New Mexico Center on Law and Poverty and advocate for aid beneficiaries in the litigation, said the order sends a strong message nonetheless.

“I think this is a message that if things don’t work out with a special master and the state doesn’t come into compliance, the court will look to harsher remedies,” she said.

New Mexico has one of the nation’s highest poverty rates, and there were more than 536,000 New Mexicans receiving food assistance benefits under SNAP, which was formerly known as food stamps, as of July, according to HSD. That figure was up by more than 7 percent – or nearly 36,000 people – from a year earlier.

The judge’s contempt order is the latest twist in a 1988 lawsuit. Earlier this year, a series of hearings were conducted by U.S. Magistrate Judge Carmen Garza, who had been tasked with monitoring compliance with a consent decree in the lawsuit and previous court orders.

Those hearings showed potential problems with the SNAP program, including testimony that state intake workers had been ordered to falsify income for some applicants, effectively denying them emergency benefits.

The testimony prompted criticism of Gov. Susana Martinez’s administration by top legislative Democrats and party officials, including a call from Sen. Gerald Ortiz y Pino, D-Albuquerque, the chairman of the interim Health and Human Services Committee, for Earnest to resign.

Earnest took over as HSD secretary – after Martinez picked him for the job – in December 2014 after the agency’s former secretary stepped down.

Read the Order from Judge Gonzales here.

Op-Ed: Underfunding Medicaid is a Foolish Decision

shutterstock baby with doctor for website -2015-12-17by Abuko Estrada & Sireesha Manne

Originally published in the Albuquerque Journal, September 26, 2016. https://www.abqjournal.com/852766/underfunding-medicaid-is-a-foolish-decision.html

As taxpayers, we expect that when government spends our money it will be leveraged toward the best investments that provide the most benefits to our state.

Currently, New Mexico receives four dollars in federal funds for every state dollar invested in Medicaid. This money goes directly into patient care and supports over 50,000 mostly private-sector jobs in the state.

Rather than maximizing this $4 to $1 return on investment, New Mexico underfunded the Medicaid budget in the 2016 legislative session.

For fiscal year 2017, New Mexico is losing over $265 million in federal matching funds for Medicaid by failing to come up with $67 million to meet Medicaid’s minimum budget needs. Our health care system is taking a massive financial loss of over $330 million this year — or nearly $1 million a day!

This is a budgeting disaster for New Mexico that is expected to result in thousands of jobs being lost and, worse yet, a reduction in care to patients. Health care had been one of the only growing job sectors in the state because of the expansion of Medicaid that has added over 4,800 jobs in 2014 alone. However, due to budget shortfalls, the state has decided to reduce Medicaid payment levels for hospitals, doctors and other medical practitioners.

In response, health care providers have issued serious warnings that the low Medicaid rates will force them to downsize staff and potentially even close entire facilities.

The decision to cut Medicaid is self-defeating because New Mexico desperately needs jobs and a stronger health care system.

Nearly every county in the state – 32 out of 33 counties – has shortages for primary care, dental care and mental health care. The problems are most severe for patients in rural areas, where over 30 percent of residents live.

A prime example of health care workforce shortages is the closing of the obstetrics department at Alta Vista Regional Hospital in Las Vegas, N.M. Since 2010, three other hospitals have ceased their obstetric services, forcing expectant mothers to travel unreasonable distances for prenatal care.

Medicaid patients face the most serious consequences of these shortages. The Legislative Finance Committee recently found that up to half of providers in some areas in New Mexico are refusing to take new Medicaid patients.

Another report has found that a quarter of Dona Aña County residents needing hospitalization are going to Texas to get services. However, as illustrated in a recent news article, many doctors in Texas now refuse to see these patients because our state’s Medicaid reimbursement rates are too low.

This is just the beginning.

Medicaid provides health care coverage to two out of three children in New Mexico, as well as seniors, people with disabilities and low-income families. However, due to Medicaid budget shortfalls, the state next plans to cut health care benefits and charge higher patient fees.

Studies have shown that these changes are likely to result in massive losses of coverage for low-income families and will prevent patients from accessing needed services, only deepening New Mexico’s health care crisis.

New Mexico needs to responsibly maximize Medicaid matching funds. The first step is to fix the state’s revenue system. New Mexico is losing needed dollars to tax cuts and loopholes created in the last 15 years for large corporations and the highest-income earners, which have not proven to produce jobs or benefit the state.

There are several ways to raise revenues without hurting working families, such as freezing corporate tax rates at their current levels, which are now on par with other states and further reductions are not needed, taxing capital gains and investment income at the same rate as earned income and targeting products that are undertaxed and that are not necessities, such as new vehicles, alcohol and tobacco.

By not acting, New Mexico is losing precious resources that our state needs to spur job growth and support our health care infrastructure. Let’s put our money into our wisest investments – Medicaid is certainly one of the best.

Op-Ed: State’s decision to cut Medicaid is self-defeating

by Abuko Estrada and Sireesha Manne

Originally published September 19, 2016, NMPolitics.net http://nmpolitics.net/index/2016/09/states-decision-to-cut-medicaid-is-self-defeating/

COMMENTARY: As taxpayers, we expect that when government spends our money it will be leveraged toward the best investments that provide the most benefits to our state. Currently, New Mexico receives four dollars in federal funds for every state dollar invested in Medicaid. This money goes directly into patient care and supports over 50,000 jobs in the state, mostly in the private sector.

Rather than maximizing this $4-to-$1 return on investment, New Mexico underfunded the Medicaid budget in the 2016 legislative session.

For fiscal year 2017, New Mexico is losing over $265 million in federal matching funds for Medicaid by failing to come up with $67 million to meet Medicaid’s minimum budget needs. Our health-care system is taking a massive financial loss of over $330 million this year – or nearly $1 million a day!

This is a budgeting disaster for New Mexico that is expected to result in thousands of jobs being lost and, worse yet, a reduction in care to patients. Health care had been one of the only growing job sectors in the state because of the expansion of Medicaid, which added over 4,800 jobs in 2014 alone.

However, due to budget shortfalls, the state has decided to reduce Medicaid payment levels for hospitals, doctors and other medical practitioners. In response, health-care providers have issued serious warnings that the low Medicaid rates will force them to downsize staff and potentially even close entire facilities.

The decision to cut Medicaid is self-defeating because New Mexico desperately needs jobs and a stronger health-care system. Nearly every county in the state – 32 out of 33 counties – have shortages for primary care, dental care, and mental health care. The problems are most severe for patients in rural areas, where over 30 percent of residents live.

A prime example of health-care workforce shortages is the closing of the obstetrics department at Alta Vista Regional Hospital in Las Vegas. Since 2010, three other hospitals have ceased their obstetric services, forcing expectant mothers to travel unreasonable distances for prenatal care.

Medicaid patients face the most serious consequences of these shortages. The Legislative Finance Committee recently found that up to half of providers in some areas in New Mexico are refusing to take new Medicaid patients.

Another report has found that a quarter of Dona Aña County residents needing hospitalization are going to Texas to get services. However, as illustrated in a recent news article, many doctors in Texas are now refusing to see these patients because our state’s Medicaid reimbursement rates are too low.

This is just the beginning. Medicaid provides health-care coverage to two out of three children in New Mexico, as well as seniors, people with disabilities and low-income families. However, due to Medicaid budget shortfalls, the state next plans to cut health-care benefits and charge higher patient fees.

Studies have shown that these changes are likely to result in massive losses of coverage for low-income families and will prevent patients from accessing needed services, only deepening New Mexico’s health-care crisis.

New Mexico needs to responsibly maximize Medicaid matching funds. The first step is to fix the state’s revenue system. New Mexico is losing needed dollars to tax cuts and loopholes created in the last 15 years for large corporations and the highest income earners, which have not proven to produce jobs or benefit the state.

There are several ways to raise revenues without hurting working families, such as freezing corporate tax rates at their current levels, which are now on par with other states and further reductions are not needed; taxing capital gains and investment income at the same rate as earned income; and targeting products that are being under-taxed and that are not necessities, such as new vehicles, alcohol and tobacco.

By not acting, New Mexico is losing precious resources that our state needs to spur job growth and support our health-care infrastructure. Let’s put our money into our wisest investments – Medicaid is certainly one of the best.

Abuko Estrada and Sireesha Manne are attorneys with the New Mexico Center on Law and Poverty.

Action Alert: Stop Damaging Cuts to Medicaid!

New Mexico’s healthcare system is facing a crisis due to budget cuts for Medicaid. Over 875,000 people in our state get healthcare coverage through Medicaid and the program supports over 50,000 jobs in New Mexico.

Medicaid lost significant federal match funds this year – $4 for every $1 in state funding cuts – losing over $265 million in federal funds that would have gone into our economy to support patient care and thousands of jobs. Soon, the Governor and Legislature will be going into a special session to cut even more of the state budget due to revenue shortfalls.

The budget shortfalls have already cut Medicaid to the bone – resulting in lower payments to healthcare providers that are expected to cause job loss, intensify workforce shortages and make it even harder for Medicaid patients to find doctors and services. The next step will be to begin cutting Medicaid healthcare benefits and charge higher fees for low-income patients – changes that will cause people to lose coverage and reduce access to care.

The Governor and these legislators below are making critical decisions about the budget and MUST hear from you by next Thursday, September 22. Please call them todayThis will only take 5 minutes. For each call, leave a short message with the Governor’s staff, the legislators or a voicemail that includes your name, phone number, and an ask to not cut Medicaid.

Thank you!


Name Phone Number
Governor Martinez (505) 476-2200
Rep. Larry Larrañaga ‪(505) 821-4948
Rep. Jason Harper ‪(505) 554-7970
Rep. Patricia Lundstrom ‪(505) 722-2980
Sen. John Arthur Smith (575) 546-8546
Sen. Stuart Ingle (575) 356-3088

JUST IN: Judge Signs Temporary Restraining Order on Printing of November Ballot

District Judge Alan Malott signed a Temporary Restraining Order this afternoon preventing the Clerk of Bernalillo County from printing ballots for the November 8, 2016 general election without a summary of the Healthy Workforce Ordinance until further Order from his court. A hearing on this matter will take place on Monday, September 12, 2016 at 4:00 p.m.

The Temporary Restraining Order can be found here.

Complaint Filed to Add Summary of Healthy Workforce Ordinance on 2016 Ballot

healthy-workforce-abq-logoToday, attorneys with the New Mexico Center on Law and Poverty filed a complaint for declaratory and injunctive relief requesting a court order to put the summary of the Healthy Workforce Ordinance on the 2016 general election ballot. The complaint named as defendants the City of Albuquerque and Bernalillo County. Both the City and the County failed to fulfill their legal obligations to send this question to the voters in November.

The summary of the Healthy Workforce Ordinance reads as follows:

Proposing to enact the Albuquerque Healthy Workforce Ordinance such that, beginning 90 days after enactment: First, Albuquerque employers must allow employees to accrue sick leave at the rate of one hour of leave per 30 hours worked. Second, employees may use sick leave for their own or a family member’s illness, injury, or medical care, or for absences related to domestic violence, sexual assault or stalking. Third, employers with 40 or more employees must allow each employee to use up to 56 hours of accrued sick leave each year, and employers with fewer than 40 employees must allow each employee to use up to 40 hours of accrued sick leave each year. Fourth, employers must notify employees of their rights and maintain records. The ordinance also provides for public enforcement, a private right of action, and liquidated damages and penalties for noncompliance or retaliation.

The complaint filed in the Second Judicial District Court is available here.

Editorial: Shortchanging the Poor

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.

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.