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CYFD hit with lawsuit over child care program

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Monica Ault, staff attorney with the New Mexico Center on Law and Poverty, on Wednesday talks about a lawsuit filed against CYFD. At left is Annette Torres, one of the plaintiffs named in the lawsuit. (Rick Nathanson/Albuquerque Journal)

Copyright © 2018 Albuquerque Journal

For the second time in less than a week, a lawsuit has been filed against the state Children, Youth and Families Department – this time over its child care assistance program.

The 31-page complaint filed late Tuesday in state District Court in Santa Fe seeks class action status and names as plaintiffs several parents who were denied child care assistance. Also named as a plaintiff is OLÉ (Organizers in the Land of Enchantment), a nonprofit that represents low-income and working families.

Monique Jacobson, secretary of the state Children, Youth and Families Department, is named as the sole defendant.

The centerpiece of the lawsuit is the allegation that CYFD is illegally denying child care assistance to families who make between 150 and 200 percent of the federal poverty level. The lawsuit maintains that CYFD guidelines say assistance is to be provided to families who make up to 200 percent of the federal poverty level.

“We’d like them to actually honor their own guidelines,” said Monica Ault, staff attorney with the public benefits team at the New Mexico Center on Law and Poverty, which filed the lawsuit.

But CYFD spokesman, Henry Varela said Wednesday, “To suggest CYFD has been unnecessarily limiting access to child care assistance is preposterous. Secretary Jacobson has been fighting to grow child care assistance with our most vulnerable populations and has increased participation by 4,500 children a month over the last 3.5 years. CYFD has also increased the funding for this program by $53 million dollars since 2015.”

Varela said the claim regarding assistance for families making up to 200 percent of the federal poverty level appears to be a misreading of CYFD’s regulations.

“People qualify and receive a 12 month contract if family income is 150 percent or below of the federal poverty level, but they can remain in the program if their income increases during that time to 200 percent of the federal poverty level,” he explained.

“As long as a family continues to earn less than 200 percent of the federal poverty level, they will get another 12 month contract, providing they get recertified with CYFD by showing proof of income and going to work or going to school,” Varela said.

The lawsuit also claims families who receive child care assistance are required to make co-payments.

“These are essentially illegal because CYFD didn’t actually go through a public process, which they are required to do,” Ault said during the news conference.

“There is nothing in regulation that shows how the co-payment is calculated, and nothing that’s public about that. They calculate co-payments using a computer system and some other federal poverty guideline charts, but when you actually engage with a case worker, they have a very hard time explaining how the co-payment came about,” she said.

According to CYFD guidelines for child care assistance, the amount of a subsidy the state gives a family to help pay for child care varies depending on the number and age of the children, the type of child care, the location of the program, and the rating of the program as determined by the STARS Quality Rating System.

Ault said CYFD regulations often contradict themselves and are confusing, “so they are constitutionally vague.”

And, she said, families who have been denied child care assistance have also been denied basic due process rights.

“Case workers aren’t informing them that they have a right to a fair hearing,” Ault said. “There should be a fair hearing process in place, but what we know is they rarely if ever have these hearings.”

Varela, however, provided the Journal a copy of a CYFD form titled Notice of Action that is made available to CYFD clients and which states: “If you do not agree with any decision made on any matter concerning your application/case, you may request a Fair Hearing within 30 days from the date of action. You have the right to examine, prior to your hearing, your case record and documents used in determining the action taken.”

Plaintiffs named in the lawsuit are: Annette Torres, Annabel Torres, Lauren Cambra, Monica Broshious, Samantha Rivera, “all residents of New Mexico on behalf of themselves and individuals similarly situated,” and OLÉ.

On Wednesday, single parents in the lawsuit and representatives of OLÉ gathered in front of the CYFD building on Pan American Freeway in Albuquerque to talk about the lawsuit.

Among the families represented was a parent who will not be able to return to her managerial job because she cannot afford full-time child care. Instead, she will take another job with a different employer – fewer hours and lower wages.

Other parents in the lawsuit are preschool teachers and a medical assistant who cannot afford “the ever changing and unpredictable co-pays, some as high as $400 a month, that CYFD assigns to them,” Ault said.

Regarding co-pays, the lawsuits states: “The U.S. Department of Health and Human Services recommends that states require family co-payments be no more than 7 percent of family income in order to be affordable. Despite this, the CYFD co-payment chart sets co-payments as high as 9 percent of monthly income for just one child in care, and a large share of families pay more than 9 percent of their income because they have multiple children.”

Plaintiff Annette Torres, who spoke at the news conference, said she applied for child care assistance three times since her daughter was born three years ago and was denied each time, being told that her monthly income was too high. A single mother, Torres, who works for the state, has a monthly income that places her at 190 percent of the federal poverty level, according to the lawsuit.

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Plaintiff Annette Torres was denied child care assistance three times. Without assistance the single mother of one pays nearly 12 percent of her monthly income for child care. (Rick Nathanson/Albuquerque Journal)

Without assistance, Torres pays about $300 a month for child care, or 11.71 percent of her income.

The lawsuit asks CYFD to cease denying eligible families child care assistance, to clearly state all standards that are used to determine family eligibility for such assistance, how much assistance a family will receive and the method CYFD uses to calculate co-payments.

In addition, the lawsuit asks that CYFD immediately implement a standardized system to notify families in writing of the reason for denial or reduction in benefits, and information about their right to appeal.

In defense of the agency’s current practices, Varela said, “The secretary has improved the continuity of care for children by ensuring children can remain in childcare for 12 months without disruption, we started an at-risk child care program serving nearly 1,000 of our most vulnerable families, and we have created new tools to make it easier for people to determine their eligibility and begin their application process.”

Just last week, CYFD and the State Human Services Department were named in a lawsuit filed by 13 foster children and two nonprofit organizations alleging that abused and neglected children have been removed from unsafe conditions at home, only to be placed in foster homes, group housing or residential treatment facilities that in some cases fail to treat their trauma and are overly restrictive.

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