Judge Recommends HSD Secretary Be Found In Contempt Of Court

Jul 18, 2016

In an ongoing, decades-long conflict about whether public assistance in New Mexico is available to people who need it most, a federal judge has recommended that the Human Services Department secretary be found in contempt of court.

Judge Carmen Garza’s findings on Friday noted the department’s failure to comply with court orders about delivering food assistance and Medicaid. The court’s proposal to put a monitor in place comes after employees testified that emergency food stamps applications had been falsified by HSD.

KUNM spoke with Sovereign Hager about the judge’s proposed order, which still has to be signed by another judge. Hager's an attorney with the New Mexico Center on Law and Poverty who worked on the case. 


HAGER: The judge has said the remedy for contempt—you know, sometimes people go to jail or sometimes there’s fines or sanctions—so the action the judge has implemented here in response to this finding of contempt is the appointment of a special master.

The state is going to have to bear the cost of this expert and pay for the expert to monitor them, make recommendations, pay for the expert to report to the court—that’s really the consequence of longstanding noncompliance. It’s additional and pretty heavy oversight from the court.

KUNM: But that’s not quite what you guys were looking for right? You wanted a third party with authority. And this is more like an adviser to HSD.

HAGER: The difference between what we had proposed and what the judge ordered is that we wanted someone who had the authority to implement the changes. We do maintain that that will be the fastest way to get these problems fixed.

She put in place a strong infrastructure to get them the expertise they need for a period of a year, and if the state does not come into compliance, receivership will be on the table.

KUNM: So do you think people applying for emergency food assistance in New Mexico are in any better situation today than they were before this whole case happened and before this judgment came down on Friday?

HAGER: This is a step forward for families in need of emergency food assistance. Previously we heard how the Human Services Department was doctoring applications, putting out data showing that they were timely giving families emergency food assistance. In fact, we learned that’s not true.

This court-appointed monitor has been granted full access to HSD’s computer systems, data. And I think that they will be able to dig in and get real information about how the state is doing in terms of providing assistance.

KUNM: Now, one of the things that’s come up is that when you submit a food stamps application, if you don’t receive those benefits, you don’t necessarily get a lot of information about why or what happened with your case. There’s not really a way to even see if their application had something shifted in it. Do you think that’s going to change?

HAGER: One of the court orders that HSD is out of compliance with surrounds notices and the adequacy of eligibility notices, which, under federal law, have to be comprehensible, explain why an eligibility decision was made, what it is and what the basis is for the decision.

So if someone’s denied, it’s an absolute requirement that they receive an individualized and detailed reason, do they can challenge it if they want to. It’s a basic due process right. And that is something that HSD has been out of compliance with for decades. And so I think that is just one of many issues this special master will be tackling with the department and with plaintiff’s council in the case to push these notices into compliance with federal law. So that families understand what’s going on with their food assistance and they can take action if needed.

KUNM: I bet there’s a lot of people out there who’ve been hearing about this case and about the situation with some of those applications being falsified, and I bet there are folks who are wondering if their applications were changed. Do you think there’s any way for people to find that out?

HAGER: Every New Mexican who receives food or medical assistance has a right to view their case file. And those case files are electronic. And that means that you have a right to inspect the screenshots of data entered about your application, about your household circumstances. And you have a right to inspect them in any ISD office in the state during business hours. 


In an emailed statement, an HSD spokesperson said the department doesn’t agree with everything in the court’s decision but did not respond when we asked about specific points of disagreement.

Find more of our coverage of allegations that state employees falsified food stamps applications here.

KUNM’s Public Health New Mexico project is funded by the W.K. Kellogg FoundationCon Alma Health Foundation and McCune Charitable Foundation.

Correction: An earlier version of this story incorrectly reported Garza's recommendations as final rulings. Garza has recommended to Judge Kenneth Gonzales that HSD be found in contempt of court and that a special master be hired to monitor the department. Parties to the case have 14 days to object to her findings. We regret the error.