August 24, 2016

Judge outlines what ‘special master’ will be in charge of at HSD

Joe Gratz


A federal judge has ordered an independent “special master” to oversee the division within a state department that deals with food and medical assistance for the poor.

On Tuesday, federal judge Kenneth Gonzales formally accepted a July proposal from federal magistrate judge Carmen Garza to appoint a special master. The special master will oversee the processing of Medicaid and Supplemental Nutrition Assistance Program benefits at the embattled state Human Services Department.

Gonzales also gave the special master the power to hire consultants who “will have the same access the staff, records, persons, facilities or sites of services that … the special master determines is necessary.”

This special master will be tasked with bringing HSD’s benefits processing practices into compliance with federal law.

Only the federal court will have decisionmaking power over the special master, who is yet to be determined. HSD will have to pay for the special master and all consultants.

The New Mexico Center on Law and Poverty, which represents plaintiffs in the federal lawsuit that led to Gonzales’ decision, praised Gonzales’ ruling.

“We agree with Judge Garza’s recommendations and are pleased with the order entered by Judge Gonzales,” Sovereign Hager, an attorney with the Center, said in a statement. “It will ensure that HSD has much needed expertise and oversight to provide food and medical assistance efficiently and accurately.”

HSD spokesman Kyler Nerison did not respond to NM Political Report’s request to comment on the order Tuesday afternoon.

The order comes after months of scrutiny which saw nine state employees testify in federal court about an alleged practice within HSD to commit fraud on SNAP applications.

That practice, according to testimony that first surfaced in April, was to add fake resources to applications of people seeking emergency food aid.

Federal law requires states to award emergency food aid to people who qualify for it within seven days. But HSD failed to process many of these emergency applications within that timeframe, according to several testimonies, leading to large backlogs of overdue emergency SNAP applications.

The employees testified that HSD officials encouraged employees to add fake resources to these “late” applications. This practice would clear the state’s backlogs of late SNAP applications without getting the state in trouble with the federal government for missing the seven-day deadline, according to federal court testimony.

But the collateral damage of this practice would fall onto the poor people who would otherwise have qualified for this emergency aid. Instead, they would receive delayed benefits or not receive needed benefits at all.

The New Mexico Center on Law and Poverty originally pushed for a federal receiver to take over HSD’s benefits processing.

This federal receiver would have had decisionmaking power to make changes at HSD.

The department, however, requested the court instead appoint a special master who would make recommendations to the department on how to come into compliance with federal law. Under the department’s proposal, HSD officials would retain the final say on whether the special master’s recommendations were followed or not.

Gonzales’ order instead gives the federal court, and not HSD, that ultimate authority.

Both HSD and the Center on Law and Poverty are supposed to come to terms on appointing a special master that suits them both. If they can’t, the federal court will choose from names submitted by both of them.

The special master, per Gonzales’ order, will serve through January 2018. At that time, the special master will recommend to federal court how to best proceed. If the state still hasn’t made progress in complying with federal law in its benefits processing, the federal receivership could still be on the table, Gonzales writes.

In July, federal magistrate judge Garza also recommended that HSD be held in contempt of court for not following a 26-year-old consent decree resulting from a lawsuit that accused the state department of not properly handling SNAP and Medicaid benefits.

Gonzales has yet to rule on the recommendation, as the state is currently fighting it in court.

Read the judge’s full order below:

Doc. 751_Order Appointing Special Master_2016!08!23 by New Mexico Political Report on Scribd