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Judge recommends NM’s HSD be found in contempt of court

ALBUQUERQUE, N.M. — A federal magistrate judge overseeing a decades-old class action lawsuit about the state’s track record in getting federal food and medical benefits to low-income New Mexico families has recommended that an appointed special master monitor those programs at the state Human Services Department.

Garza said she appreciated the department’s acknowledgement earlier this month of the need to make serious and fundamental changes to come into compliance with federal law and court orders.EBTcard2

U.S. Magistrate Judge Carmen Garza also said in proposed findings filed over the weekend that HSD should be found in contempt of court for violating previous orders, and observed that the department’s epiphany about its own shortcomings came far “too late.”

In response, a Human Services Department spokesman indicated the agency is largely on board with the judge’s recommendation. The department would have to foot the bill for the special master from its already cash-strapped budget.

“While we don’t agree with everything in the judge’s decision, it does include our proposal that would bring in an outside, impartial monitor to review compliance and help resolve any of these long-standing issues – some three decades old – while at the same time allowing us to continue providing resources to New Mexicans who need them most,” HSD spokesman Kyler Nerison said.

Judge Garza said she appreciated the department’s July 6 acknowledgment of its need to make serious and fundamental changes to come into compliance with federal law and court orders.

But she said she was “troubled” about what it took for the Human Services Department to own up to its problems and discuss changes – 30-plus hours of status conferences, 500-plus pages of status reports, three days of evidentiary hearings, testimony by department employees alleging fraud and top HSD officials invoking their Fifth Amendment rights.

“For the question currently before the court as to whether (HSD) is in compliance with court orders … the realization has come entirely too late,” Garza said in the filing.


The recent court testimony about altered food assistance applications has prompted criticism of Gov. Susana Martinez’s administration by top legislative Democrats and party officials.

Senate Majority Whip Michael Padilla, D-Albuquerque, on Monday applauded the judge’s recommendation and called HSD’s operation of the food assistance program “inexcusable.”

“It appears to be a culture of corruption, and a culture of falsification of data and applications,” Padilla said.

He also said it raises questions about the possibility that other federally funded programs are being mishandled by New Mexico state government.

New Mexico has one of the nation’s highest poverty rates and there were more than 527,000 New Mexicans receiving food assistance benefits under the Supplemental Nutrition Assistance Program – or SNAP, formerly known as food stamps – as of May, according to HSD.

The program has been the focus of a 1988 class action lawsuit, and Garza was tasked in February 2015 by U.S. District Judge Kenneth Gonzales with monitoring the state’s compliance with a consent decree stemming from that lawsuit and with a series of court orders over the previous year. She heard testimony at hearings in April, May and July that generated 700 pages of transcripts.

At the April hearing, attorneys for the New Mexico Center on Law and Poverty, which filed the lawsuit, questioned HSD caseworkers handling emergency requests for SNAP benefits. They testified they were regularly pressured or required to falsely inflate the income of eligible families so the department could have more time to meet its federal deadline for processing cases. In the meantime, families that were eligible did not get help.

Supervisors asked about the same practice took the Fifth Amendment repeatedly, among them the then-head of the Income Support Division and its former deputy director.

‘Profound effects’

Center attorneys asked for the court to place those parts of HSD handling the food and medical programs in a limited federal receivership to achieve compliance with the court’s orders.

Instead of that more drastic remedy, Garza is recommending a special master to be a full-time adviser and consultant who answers to the court, but is paid by the state.

Gail Evans, legal director of the center, said Monday that she was pleased the court will appoint a special master to bring the department into compliance.

Garza emphasized in her 32 pages of findings that HSD’s inability to get its shop in order “has profound effects on the citizens of New Mexico.”

“Indeed, when an eligible SNAP or Medicaid applicant is denied or delayed in receiving benefits, that individual loses benefits he or she may rely on to eat, to feed his or her children or to receive essential medical coverage,” the judge wrote.

The department also has had a backlog of thousands of cases not processed within federal guidelines. Gonzales ordered HSD to end procedural denials of applications – for instance, someone who failed to show up for an interview – without an individual review.

The department is required to send notices of eligibility decisions and delays using language that can be understood at a sixth-grade level, but not all have been revised, despite deadline extensions.

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