United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon the Special Master's
Report (Report), filed January 31, 2018. (Doc. 810). On
February 20, 2018, both Plaintiffs and Defendant responded to
the Report. (Docs. 812 and 813). These responses contain,
inter alia, objections to the Report.
on February 20, 2018, Defendant filed a motion to modify the
Report (Motion to Modify). (Doc. 814). Plaintiffs responded
to the Motion to Modify on February 28, 2018, and filed a
supplemental response on March 9, 2018. (Docs. 822 and
830). Defendant filed a reply to that response and to the
supplemental response on March 16, 2018. (Doc. 831).
March 1, 2018, the Court held a hearing on the Special
Master's Report and objections to the Report.
See Fed. R. Civ. P. 53(f)(1) (in acting on special
master's report, “court must give the parties
notice and an opportunity to be heard” and “may
receive evidence”). Daniel Yohalem, Jane Yohalem,
Sovereign Hager, and Gail Evans represented Plaintiffs at the
hearing while Christopher Collins, Paul Kennedy, and Jessica
Hernandez represented Defendant. Defendant Secretary of the
New Mexico Human Services Department (HSD), Brent Earnest,
was also present at the hearing as were Sean Pearson, Natalie
Campbell, Mary Brogdon, Shanita Harrison, the Regional
Operation Managers, and 10 County Directors. See
Amended Order Setting Hearing (Doc. 815) (requiring certain
individuals to attend March 1, 2018, hearing). Defendant, Ms.
Brogdon (the Director of the Income Support Division (ISD)),
and Mr. Collins testified at the hearing. The Special Master,
Lawrence Parker, and the Compliance Specialist, Ramona
McKissic, were present at the hearing as well and both
reviewed the Special Master's Report, the objections and
other responses to the Report, the Motion to Modify and its
briefing, the admissible evidence, and the testimony and
argument at the March 1, 2018, hearing, the Court sustains
the objections, in part; overrules the objections, in part;
and grants the Motion to Modify, in part. The Court,
therefore, adopts the Special Master's Report, in part,
and modifies the Report as described below.
The Special Master's Report
The Special Master Appointment
November 17, 2016, the Court appointed Mr. Parker, an expert
in the federal benefits programs at issue, as Special
Master. (Doc. 762). Aside from providing expertise
and advice to Defendant on issues related to compliance with
the Consent Decree, court orders, and federal law, the Court
tasked the Special Master to report to the Court, by January
31, 2018, on Defendant's compliance with the Consent
Decree, court orders, and federal law, including the
propriety, if any, of a receivership. (Doc. 751) at 2; (Doc.
803) at 2. On January 31, 2018, the Special Master filed his
Report, together with the Compliance Specialist's
Compliance Review Report. (Doc. 810).
The Special Master's Report
Special Master first described the background of this
lawsuit, the parties, and the Consent Decree. The Special
Master included the Consent Decree's definition of the
class: “present and future applicants.” (Doc.
810) at 5. The Special Master then commented that there is no
“end date for applicants to be included in this class
Special Master further described Plaintiffs' counsel and
their monitoring activities as follows:
Plaintiffs' advocate and counsel has extended the scope
of the Consent Decree to include all SNAP and Medicaid
programmatic changes made by the agency and federal oversight
agencies. This effort allows the Plaintiffs' involvement
in all aspects of the ISD operation, including ISD daily
business operation. Plaintiffs' advocate, through a
network of ISD employee confidential informants keeps tabs on
the ISD operation and program issues. The information
received from these ISD staff is used by Plaintiffs to
demonstrate failures in the eligibility system. The evidence
often indicates that the Defendants are making errors in
processing applications. The Plaintiffs usually do not bring
the issues identified to the immediate attention of the
Defendant due to an inherent lack of trust between the
Id. at 4.
the Special Master made several “Findings.”
First, the Special Master found that, although Defendant has
historically not met the requirements of the Consent Decree,
court orders, or federal law, there were times when Defendant
complied with part of the United States Department of
Agriculture's Food and Nutrition Service (FNS)
regulations. (Doc. 810) at 6. FNS actually had, in the past,
“awarded enhanced funding bonus money for HSD's
performance in the areas of timeliness and Quality Control
accuracy, ” areas corresponding to a section of the
Consent Decree. Id. The Special Master noted that
when Defendant received these awards neither “party
filed a motion or sought relief from the court to demonstrate
improvement or movement towards a resolution of the Consent
the Special Master found that “Defendant's current
executive management team experiences difficulties in
managing the ISD program in a positive manner.”
Id. The Special Master acknowledged that the current
Defendant, appointed in December 2014, and the previous
Deputy Cabinet Secretary, appointed in January 2015 with his
tenure ending in December 2017, inherited an ISD
“program with a history of failure related to the
Consent Decree and execution of the program requirements and
during times of major operational change (Affordable Care Act
and ASPEN implementation).” Id. at 7.
Nonetheless, the Special Master found that the former Deputy
Cabinet Secretary, who was “responsible for
administration of the ISD program, ” had
“distinct responsibility” for the following five
program failures or crises, id. at 7-8, :
1. a September 26, 2016, FNS advance warning directive and
request for a corrective action plan “for failure to
meet FNS requirement in providing SNAP [Supplemental
Nutrition Assistance Program] services to clients, ”
id. at 7;
2. a January 20, 2017, Centers for Medicaid and Medicare
Services (CMS) request for a corrective action plan
“for failure to meet requirements in providing services
to clients, ” id.;
3. the statewide denial of benefits when employees violated
the law by adding “resources to client eligibility
screens in ASPEN, ” id.;
4. an April 6, 2017, backlog of 36, 622 SNAP applications,
recertifications, and interim reports; and
5. an April 6, 2017, backlog of 63, 141 Medicaid applications
Special Master then found that “[a]ccountability at all
levels is almost nonexistent, creating an environment where
failure is an accepted part of the ISD operation and
culture.” Id. at 8.
the Special Master found that “[t]imelines and
deadlines for meeting expectations have little or no
relevance in the ISD business operations, processes, or
methods of administration” as evidenced by
Defendant's actions with respect to “court orders,
and federal requirements, including Plaintiffs'
requests” and by the fact that Defendant did not meet
time requirements and timeframes set forth in the Consent
Decree in 1998. Id.
Special Master then came to several conclusions as a result
of his Findings. First, he concluded that Defendant is not in
full compliance with the Consent Decree, court orders, and
federal law. Specifically, the Special Master concluded that
client services and employee development have not progressed
because of deficient management decisions and communications.
Even so, the Special Master recognized that since July 2017
Defendant has improved in “Consent Decree reporting,
hiring of Family Assistant Analyst level staff, and
performance in the area of eligibility determination approval
timeliness.” Id. Nonetheless, the Special
Master concluded that “management continues to struggle
with strategic decision making and implementation of
changes” due to a “reactionary management
philosophy, ” and due to a lack of “sufficient
knowledge, skills and abilities (KSA's) to appropriately
manage the program or bring it into full compliance with the
Consent Decree.” Id. at 8-9.
the Special Master concluded that despite “limited
progress by the ISD program management, ” instituting a
receivership, at this time, would “not result in
immediate resolution of the ISD program deficiencies.”
Id. at 9. The Special Master supported this
conclusion by noting that “there is no evidence of
immediate and irreparable harm to the class members.”
Id. The Special Master further stated that
“the issue of receivership should be
reconsidered” if Defendant makes “limited or
insufficient progress in meeting the requirements of the
recommendations for improvement….” Id.
Special Master then made the following nine Recommendations.
1. Remove from any position that directly or indirectly
impacts ISD Field Operations: Assistant General Counselor,
Former Deputy Cabinet Secretary, Income Support Director,
Field Operations Deputy Director, and a Regional Operations
Manager. After the changes are implemented, an assessment of
County Directors and Line Managers will be completed to
determine additional changes required.
Implementation Timeframe: 45 Calendar Days
from the order
2. Revise the Consent Decree to give recognition to the parts
that have been completed, update requirements, close the
class (if allowed by law) and dismiss all court orders, in
which the requirements have been met.
Implementation Timeframe: 30 Calendar Days
from the Order
3. Implement an unbiased case review process to assist in
validating that the ISD program is meeting the requirements
of the Consent Decree. The case review process should
a) An independent random selection of the case sample.
b) A case sample that includes all case action types.
c) An independent dispute resolution process.
Implementation Timeframe: April 1, 2018
4. ASPEN-Develop and Implement ASPEN refresher training to
include functionality and known work arounds for staff
Implementation Timeframe: 120 Days from
5. Reinstate auto denial and closure functions within ASPEN
and eliminate manual eligibility review and completion of the
Individual Eligibility Review form by workers.
Implementation Timeframe: March 1, 2018
6. Training-Enhance new employee training to align with
realistic job expectations. Improve the accuracy of the
training materials (e.g., streamline reporting and
Implementation Timeframe: 180 Days from
7. Implement an agreed upon tolerance level for determining
compliance in the area of timeliness to allow for client
services and human error.
Implementation Timeframe: 60 Days from Order
8. Appoint knowledgeable subject matter experts for the ISD
program areas for SNAP, Medicaid, and Immigration. The three
positions will have exclusive responsibility for serving as
liaison between ...