Court orders HSD to make phone line available in more languages and notify Medicaid recipients of language assistance services

ALBUQUERQUE—Late Friday, a federal court reaffirmed the New Mexico Human Services Department’s obligation to identify languages spoken by families trying to access food and medical assistance and to translate documents based on the demographics of those served by local agency offices. The court also ordered HSD to include information on the availability of language assistance services on Medicaid notices and to immediately fix its automated phone system to offer interpretation in multiple languages. Currently, individuals who don’t speak English or Spanish cannot access interpretation services using the phone line.

“The court made it clear that the Asian language speaking community does matter and, contrary to HSD’s hurtful assertion, has a significant presence in our state,” said Sachi Watase of the New Mexico Asian Family Center. “Everyone, including those who speak languages other than English, deserves to have access to the resources intended to support them. Unfortunately, too many New Mexicans’ health and safety are predefined by these inequitable barriers. Lack of translation is part of a systemic problem that ignores the existence of Asians in New Mexico. We hope HSD will change course and make an honest effort to improve access to all New Mexicans.”

The ruling comes as New Mexicans urge Governor Michelle Lujan Grisham to sign a bill mandating that state agencies plan for translation and interpretation services. For years advocates and community members have called for fair access to state services for New Mexicans who speak languages other than English. If House Bill 22: Limited English Access To State Programs is signed into law, it would require all state agencies with secretaries perform a language use analysis and develop an agency language access plan, similar to analysis required under federal food stamp regulations. 

“The court recognized that everyone, including those who speak languages other than English, should have access to food and medical assistance,” said Sovereign Hager, New Mexico Center on Law Poverty Legal Director. “The governor prioritized language access when she provided public information about Covid-19 vaccines and tests. HB 22 is an opportunity to institutionalize the same attention to equity across state agencies. New Mexicans ask her to sign this bill.”

Many New Mexicans speak languages other than English–including Vietnamese, Chinese, Dari, Arabic, Swahili, Kinyarwanda, and Diné/Navaho. Many of these languages meet population thresholds that require translation of food and medical assistance applications and documents under federal law. However, the state only provides written documents in English and Spanish and oral interpreters are nearly impossible to reach without additional help. 

The ruling was on a motion filed by applicants for food and medical assistance, represented by the New Mexico Center on Law and Poverty in the Deborah Hatten Gonzales v. David Scrase lawsuit. 

New Mexican families who speak languages other than English have reported barriers accessing food and medical assistance, which has been especially difficult during the pandemic. Some lost food assistance multiple times because notices about renewing benefits are only in English. Others reported having to pay private interpreters, despite having no income and having to deal with unnecessary in-person contact during the public health emergency. 

Despite repeated attempts since 2009 to bring these issues to HSD’s attention, the agency refused to address them. 

Currently, community-based organizations that work directly with New Mexicans that speak languages other than English or Spanish, like the New Mexico Asian Family Center and the Refugee Well-being Project, have to divert limited resources and take on additional clients to provide translation and interpretation services that are the state’s responsibility under federal and state law. 

The long-running Hatten-Gonzales lawsuit was originally filed in 1989. 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.

The court said a written order on Friday’s ruling will be forthcoming.

The January 2022 court order can be found here: https://cookieless-offload.s3.us-west-2.amazonaws.com/nmpovertylaw/Order-Language+Access-DHG-2022-01-21-compressed.pdf

The September 2021 order for HSD to implement a corrective action plan can be found here:  https://drive.google.com/file/d/1r-N6N8KCIk1sJDxxxywIY5Zz7dIeRf81/view?usp=sharing

Information on  HB 22 can be found here: https://drive.google.com/file/d/1j6ZmNw7JHYZ3KoXzTwq-nU26SIQRUxeZ/view 

MEDIA ADVISORY

Court hearing FRIDAY: HSD must translate food stamp applications immediately, argue plaintiffs

ALBUQUERQUE—On Friday in a federal court, the New Mexico Center on Law and Poverty will argue that census data shows the New Mexico Human Services Department should begin translating food and medical assistance applications and notices into Vietnamese, Chinese, and Diné/Navajo immediately.

In January 2022, Judge Kenneth Gonzales ordered HSD to collect data on the languages spoken by New Mexicans served by the state’s food and medical assistance program and affirmed the agency’s legal obligation to translate documents based on the demographics of those served by local agency offices. The ruling was on a motion filed by applicants for food and medical assistance, represented by the New Mexico Center on Law and Poverty in the Deborah Hatten Gonzales v. David Scrase lawsuit. 

Plaintiffs have provided census data showing that there are more than 100 low-income families that primarily speak Vietnamese, Chinese, and Diné/Navajo in areas served by a single office, which under federal law requires translation of the food and medical assistance application and other documents. Plaintiffs argue no further research is needed on these groups while HSD collects data on other non-English speaking populations in New Mexico.

For years advocates and community members have called for fair access to state services for New Mexicans who speak languages other than English. This last session the Legislature passed House Bill 22: Limited English Access To State Programs, which awaits the governor’s signature. If signed into law, it would require all state agencies with secretaries perform a language use analysis and develop an agency language access plan, similar to analysis required under federal food stamp regulations. 

New Mexican families who speak languages other than English have reported barriers accessing food and medical assistance, which has been especially difficult during the pandemic. 

WHAT: 

Hearing on language access motion in Deborah Hatten Gonzales v. David Scrase

WHO:

  • U.S. District Judge Kenneth J. Gonzales
  • Counsel for plaintiffs: Sovereign Hager, Verenice Peregrino Pompa, and Teague González of the New Mexico Center on Law and Poverty and Daniel Yohalem, civil rights attorney
  • Counsel for HSD

WHEN: 

Friday, February 25, 2022 at 10:00 a.m.

WHERE:

Pete V. Domenici U.S. Courthouse, 4th Floor Chama Courtroom, 333 Lomas Avenue, Albuquerque 87102

*The hearing will take place in person. Masks are required in all federal courtrooms.

Judge Gonzales January, 2022 court order can be found here: https://cookieless-offload.s3.us-west-2.amazonaws.com/nmpovertylaw/Order-Language+Access-DHG-2022-01-21-compressed.pdf

The plaintiffs’ reply brief with census data can be found here: http://nmpovertylaw.org/doc-1036-deborah-hatten-gonzales-reply-on-motion-for-clarification_nmclp_2022-02-18/

The September 2021 order for HSD to implement a corrective action plan can be found here:  https://drive.google.com/file/d/1r-N6N8KCIk1sJDxxxywIY5Zz7dIeRf81/view?usp=sharing

State illegally denies families food and medical assistance because it fails to provide translation and interpretation

Thousands of New Mexicans who qualify for food and medical assistance are illegally denied or delayed access to benefits because the state does not provide translation and interpretation services, charges a motion filed today by the New Mexico Center on Law and Poverty on behalf of applicants for food and medical assistance in the lawsuit Deborah Hatten Gonzales v. David Scrase

The motion asks the US District Court of New Mexico to order the New Mexico’s Human Services Department to comply with federal and court ordered requirements to translate food and medical assistance applications, notices, and informational materials into languages prominently spoken in New Mexico’s communities. 

Many New Mexicans speak languages other than English in numbers that require translation of food and medical assistance applications and documents under federal laws, including Vietnamese, Chinese, Dari, Arabic, Swahili, Kinyarwanda, and Diné. However, the state only provides written documents in English and Spanish. 

Advocates and applicants in the lawsuit report experiencing long delays and barriers in accessing food and medical care, which was especially difficult during the pandemic. Some lost food assistance multiple times because the notice about renewing benefits is only in English. Others reported having to pay private interpreters, despite having no income and having to deal with unnecessary in person contact during the public health emergency.

An HSD office turned away Cuc T. Nguyen, a mother of a 13-year-old son, when she tried to apply for Medicaid because applications were in English only and the worker did not provide a Vietnamese interpreter. HSD staff illegally told her to come back with her own interpreter although by federal law HSD is required to provide applications in Vietnamese and access to an interpreter. 

Community-based organizations that work directly with New Mexicans that speak languages other than English or Spanish, like the New Mexico Asian Family Center and the Refugee Well-being Project, report having to divert limited resources to provide translation and interpretation services that are the state’s responsibility under federal law. 

To help families who could not apply for or renew benefits on their own due to language barriers, the New Mexico Asian Family Center has taken on additional clients and diverted resources meant to assist survivors of domestic violence during the pandemic. 

“Everyone who qualifies should be able to access state services regardless of the language they speak,” said AnhDao Bui of the New Mexico Asian Families Center. “Excluding some people because they don’t speak English exacerbates health and economic disparities. This kind of discrimination is not new. Lack of translation is part of a systemic problem that ignores the existence of Asians in New Mexico.” 

HSD’s continued discrimination violates families’ civil rights and illegally forces New Mexicans to go without food and medical care. The motion charges that despite repeated attempts since 2009 to bring these issues to the New Mexico Human Service Department’s attention, in April 2021, HSD refused again to take further action to comply. 

“It’s unacceptable that HSD continues to discriminate against people by failing to translate documents with full knowledge that families are being harmed as a consequence,” said Verenice Peregrino Pompa, attorney with the New Mexico Center on Law and Poverty. “Now more than ever, HSD should be working with community members and plaintiffs in this case to resolve ongoing barriers to food and healthcare.” 

The long-running Hatten-Gonzales lawsuit was originally filed in 1989. 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. While HSD has made some progress, the court recently ordered HSD to implement a corrective action plan. 

The motion can be found here: http://nmpovertylaw.org/wp-content/uploads/2021/10/Doc.-1011_Motion-to-Enforce-Translation-and-Interpretation-2021-10-05.pdf

The exhibits can be found here: http://nmpovertylaw.org/wp-content/uploads/2021/10/Doc.-1011_-Exhibits-to-Motion-to-Enforce-2021-10-05.pdf

The September 2021 order for HSD to implement a corrective action plan can be found here: http://nmpovertylaw.org/wp-content/uploads/2021/10/Doc.-1009-Order-Re-Case-Review-CAP-2021-09-09.pdf

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/

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