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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW MEXICO
DEBRA HATTEN-GONZALES, et al.,
Plaintiffs,
vs. No. CIV 88-0385 KG/CGConsolidated withNo. CIV 88-0786 KG/CG
BRENT EARNEST, Secretary of theNew Mexico Human Services Department,
Defendant.
PLAINTIFFSMOTION FOR INJUNCTIVE RELIEF
AND EXPEDITED REVIEW AND HEARING
On January 1, 2016, the New Mexico Human Services Department implemented new
eligibility requirements that threaten food assistance for 17,500 New Mexicans. The new
requirements limit 17,500 adults to just three months of food assistance through the
Supplemental Nutrition Assistance Program SNAP (also known as Food Stamps). The three
month time limit on food assistance applies to adults who cannot find a job that offers 20 hours
of work a week or a qualifying job training program, regardless of how hard they are looking for
work or if applicable work training is even available. Defendant is implementing this harsh time
limit in violation of the Decree, this Courts Ordersand federal law through: (1) regulations and
worker directives that violate federal law; (2) illegal notices that contain conflicting and incorrect
information about the new applicable requirements, exemptions and the process by which
individuals can be exempted from the requirements; (3) an illegal process for enforcing the new
requirements that fails to investigate, asses, and determine whether individuals are properly
subject to the requirements, as required by law; and 4) changing standard form documents and
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application processing practices that were changed without consultation with Plaintiffs, in
violation of the Decree.
HSD has implemented this harsh time limit on food assistance despite the fact that New
Mexico continues to qualify for a statewide waiver of the requirement due to persistently high
unemployment. New Mexico has the highest unemployment rate in the country.1 Defendant
insists on implementing these sanctions even though he has not fixed widespread and systemic
problems in the administration of current work requirements and continues to violate many
Decree requirements concerning food assistance.
At the outset, Plaintiffs need to inform the Court that the status of Defendants time limit
rule is unclear since he published a different rule in the New Mexico Administrative Code than
the rule that he published as final in the New Mexico Register a few days earlier. However,
under either version of the rule, the Departments implementation of the time limit on SNAP
benefits does not comply with federal law or the Decree.2
Plaintiffs request that this Court enjoin Defendant from implementing the three month
time limit on food assistance until the work requirements can be administered in accordance with
the Decree and Federal Law. As grounds, Plaintiffs state the following:
1See U.S. Bureau of Labor Statistics, Local Area Unemployment Statistics, Unemployment Rates forStates, (December of 2015), available athttp://www.bls.gov/web/laus/laumstrk.htm(last visited Jan. 27,2016).2Defendants have published two versions of the rule as Final, in the New Mexico Register one on
August 28, 2015 and one on December 30, 2105. On January 1, 2016, the August 28, 2015 version wasplaced in the New Mexico Administrative Code and is currently the law in New Mexico. Plaintiffs do not
know whether this was a mistake. However, under either version of the rule, the Department is
implementing the time limit in violation of federal law.
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I. The Departments issuance of new work requirement rules for SNAP eligibility
must comply with the Decree since they impact New Mexicans eligibility for food
assistance.
1.
The Decree requires Defendant to guarantee each applicant a fair and equal opportunity to
participate in the Food Stamp and Medicaid programs consistent with the goal of assistance
all eligible individuals to qualify.Decree, p. 7.
2. The Decree applies to the application process, i.e. when an application for Food Stamp or
Medical Assistance is submitted to HSD and ends when a notice of eligibility decision and, if
eligible, benefits are deposited in the mail or available through electronic transfer. The
application process includes all actions taken with respect to an application including, but not
limited to, providing relevant written information to applicants, screening an application,
holding an application interview, verifying eligibility factors, responding to applicant
requests for assistance and extensions of time, and issuing and mailing an eligibility decision
and, if eligible benefits.Decree, p. 4.
3. All conditions of eligibility must be verified in accordance with the Decree. The Decree
requires that Defendant explain all eligibility factors that must be verified and must not ask
for proof of a factor that can be verified through an available government data system or that
are not necessary to determine eligiblity.Decree, p. 11-14.
4. The Decree also requires that Defendant provide eligibility decision notices and other
standard form documents used in the application process to applicants at or below a sixth
grade reading level. Decree, p. 21-22.
5. Federal law establishes that work requirements are a condition of eligibility for food
stamps. 7 C.F.R. 273.7(a). This includes: requirements to register for work, participate in
a food stamp Employment and Training Program; participating in a workfare program, if
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assigned by the state agency; providing the state information about employment and
availability for work; reporting to an employer to whom referred by the state agency;
accepting a bona fide offer of suitable employment, and not voluntarily quitting a job or
reducing hours without good cause.Id.
6. Adults age 16-60, who are not exempt, are required to register for work as a condition of
eligibility for SNAP. 7 C.F.R. 273.7 (a)(i). This must be done before an individual receives
his or her food assistance for the first month following an initial application or an application
for recertification. Id. In New Mexico, an individual meets this work registration
requirement by submitting an application for assistance. See Page 3 of NMs Draft
Employment and Training state plan for federal fiscal year 2016, attached as Exhibit A.
7.
During the application process, the Department is required to explain all rights and
responsibilities to applicants, including any applicable work requirements. See 7 C.F.R.
273.2(e) and 7 C.F.R. 273.7 (c)(1). This information must be given to applicants in writing
during the application process. 7 C.F.R. 273.7(c)(1).
8.
Where monthly work requirements exist, SNAP benefits are issued each month contingent
upon the applicants providing ongoing verification that he or she is complying with work
requirements. This is much like the expedited SNAP process, where benefits are issued and
the applicant has to take additional steps to be able to get more than one month of SNAP.
9. Restricting eligibility requirements for food assistance by adding new work requirements
changes the application process by 1) changing the applicants rights and responsibilities; 2)
adding eligibility factors that must be verified and 3) creating new reasons for eligibility
denial.
10.Thus, this Court must examine the law concerning work requirements, as well as the
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Departments actions in implementing new work requirements, and determine whether the
Defendant is violating the Decree as well as other federal law by illegally preventing eligible
New Mexicans from obtaining food assistance.
II. Federal law on SNAP Work Requirements and Time-Limits for Able-Bodied Adults
Without Dependents
11.As part of the SNAP program, federal law requires state agencies to operate Employment and
Training (E & T) programs. 7 C.F.R. 273.7(c)(4). The federal purpose of E & T is to
assist members of households participating in the supplemental nutrition assistance program
in gaining skills, training, work, or experience that will increase their ability to obtain regular
employment. 7 U.S.C. 2015 (d)(4)(A)(i).
12.State level E & T programming must consist of one or more components enumerated in
federal law. Id. The state may make the program mandatory or voluntary for adult SNAP
participants so long as the state agency recognizes, at a minimum, the exemptions mandated
by federal law. 7 C.F.R. 273.7(e)(4). States must submit a plan for E & T programming
every fiscal year to the United States Department of Agriculture (USDA) for approval. 7
C.F.R. 273.7 (c)(6). New Mexico has operated a mandatory E & T program with a job
search component for adults age 18-50 without children since 2013. Adults who do not meet
this requirement lose SNAP for up to one year for non-compliance.
13.Federal law places special requirements on a subgroup of adult SNAP participants, known as
Able-Bodied Adults Without Dependents (ABAWDs). ABAWDs are adults who are ages 18-
50 who do not live in a household with a minor and are not disabled. ABAWDs may not
receive SNAP for more than 3 months in a three year period, unless they are engaged in work
as defined by 7 U.S.C. 2015(a)(2)(A) - (C) or meet an exemption under sections (o)(3) - (6).
ABAWDs must work 20 hours a week in order to receive SNAP. The implementing
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2015 (d)(4) ((7 U.S.C. 2015 (o) (2) (B) and (o) (1)); or
c. participating in and complying with the requirements of a workfare program under 7
U.S.C. 2029 or a comparable program established by the State or political
subdivision of the State (7 U.S.C. 2015 (o)(2)(C)).
17.Pursuant to 7 U.S.C. 2015 (o) (3) (A) (E) and its implementing regulation, 7 C.F.R.
273.24 (c), individuals are exempt from the work requirement if they are:
a. under 18 or over 50 years of age;
b. medically certified as physically or mentally unfit for employment;
c.
a parent or other member of a household with responsibility for a dependent child;
d. otherwise exempt from general SNAP work requirements under 7 U.S.C. 2015 (d)
(2), as implemented by 7 C.F.R. 273.7 (b) (including on the basis that they are
complying with the work requirements of another program or receiving unemployment
compensation); or
e. a pregnant woman.
18.
7 C.F.R. 273.24 (b)(1) defines months counted as used towards the 3-month time limit as
months in which an individual receives benefits for the full month while not 1) exempt under
273.24 (c); 2) living in an area covered by a waiver under 7 C.F.R. 273.24(f); 3) fulfilling
the work requirement in 7 C.F.R. 273.24(a)(1); or 4) receiving SNAP benefits that are pro-
rated in accord with 7 C.F.R. 273.10.
19.7 C.F.R. 273.24 (b)(2) provides for a good cause exception for individuals who could not
comply with the 20 hour a week average requirement because of temporary circumstances
beyond the individuals control, including but not limited to illness, illness of another
household member requiring the presence of the member, a household emergency, or the
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unavailability of transportation.
20.7 U.S.C. 2015(o) (5) and its implementing regulation, 7 C.F.R. 273.24 (d) prescribes how
an individual who has lost eligibility under subsection (2) can regain and maintain eligibility.
21.On November 19, 2015 USDAs Food and Nutrition Service (FNS) issued guidance to States
regarding the ABAWD Time Limit Policy and Program Access.
http://www.fns.usda.gov/sites/default/files/snap/ABAWD-Time-Limit-Policy-and-Program-
Access-Memo-Nov2015.pdf The purpose of the guidance is to explain what the Food Stamp
Act and implementing regulations require of the states in implementing the ABAWD
requirement.
22.The November 19, 2015 FNS Guidance states that: To comply with Federal law, States
must do more than track ABAWDs. States must also carefully screen for exemption from the
time limit and connect ABAWDs to the information and resources necessary to maintain
eligibility consistent with federal requirements.Id. at 1.
23.The November 19, 2015 FNS Guidance also states that: State agencies are responsible for
assessing an individuals fitness for work methodically and comprehensively. The
certification and recertification interview is critical in identifying fitness for work.Id. at 2.
24.The November 19, 2015 FNS Guidance further summarizes the good cause exception for
failure to meet the ABAWD work requirement, how individuals can meet the work
requirements, and how individuals can regain eligibility after losing it.Id. at 2-4.
25.Defendant is required to inform SNAP applicants of all rights and responsibilities during an
interview. 7 C.F.R. 273.2 (e)(1).
26.Applicants who are required to register for work under 7 C.F.R. 273.7 must do so by
submitting an application for assistance. Federal law requires the state agency provide
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c. Giving incorrect information about how an ABAWD must provide verification that he
or she is working 20 hours a week. NMAC 8.139.410.12(D)(2) states that ABAWDs
must provide verification of participation in work activities by the 5 thcalendar day of
each month following the month of participation in that activity. However, if an
ABAWD is employed, federal law provides that individual need only verify
employment once a certification period and report to HSD only if they are employed
less than 20 hours per week. See 7 C.F.R. 273.24 (b)(6) and (7). ABAWDs who are
meeting the work requirement by participating in the states E &T program are
required to do so in accordance with that program. See7 C.F.R. 273.7(a)(ii).
d. Failing to exempt individuals who have costs associated with participation in E & T
that exceed the available reimbursement. NMAC 8.139.410.12(E)(5)(b)(xii) states that
good cause for non-compliance with the states Employment and Training program
can be granted where the individuals monthly expenses for transportation and
dependent care expenses, which are necessary and directly related to participation in
the E & T program, exceed the allowable reimbursement. Federal law fully exempts
individuals from participation in the first place if the costs associated with compliance
are higher than the available reimbursement. 7 C.F.R. 273.7(d)(4)(v).
e. Failing to verify compliance with work requirements electronically where possible, as
required by the Decree. NMAC 8.139.410.12(J)(1) (b) requires individuals to submit
a copy of the registration to the E & T work program service provider to verify
completion of the registration within 30 days after the Work Participation Agreement
is approved. HSD can verify completion of this requirement through an interface
with the Department of Workforce Solutions. Defendant states in a state plan
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submitted to the United States Department of Agriculture for approval that NM
Works Contractor will utilize VOSS, interface through Workforce Solutions, to its
maximum capacity to monitor and track participation and compliance. Seepage 26
of Exhibit A. The Decree prohibits workers from seeking additional proof of
information that is available through government data systems. SeeDecree, Section II,
Paragraph 11.
f. Failing to exempt all individuals who are exempt under federal law. NMAC
8.139.410.14(A) exempts individuals from the ABAWD time limit by incorporating
by reference exemptions from mandatory participation in the states E & T program.
However, the regulation incorrectly states that the exemptions incorporated are located
in section D of this section. In fact, the referenced exemptions are in Section D of
8.139.410.12. The regulation goes on to exempt an individual medically certified as
physically or mentally unfit for employment as defined in subsection D of 8.139.410
This is also an incorrect cite. The physically and mentally unfit for employment
section is located at 8.139.410.12(D)(2)(c).
g. Having conflicting implementation dates. Defendant has stated that three groups of
people will not be mandatory for the states E & T program until October of 2016:
(1)adults age 16-18; (2) adults over age 50; and (3) adults with children over the age of
13. Seepage 24 of Exhibit A. Yet, the New Mexico Administrative Code makes those
individuals mandatory immediately. SeeNMAC 8.139.410.12(B).
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29.Plaintiffs informed Defendant of each of these illegalities previously and Defendant agreed to
correct each of them. See Plaintiffs letter to Defendant, attached as Exhibit C and
Defendantsresponse, attached as Exhibit D. However, he did not. 4
IV. Notices Defendant sends to applicants about work requirements are illegal.
30.The most critical notice regarding work requirements, the Food Stamp Program (FSP) 003
Notice, does not comply with the law.
31.The FSP 003 notice must meet the requirements of 7 C.F.R. 273.7 (c)(1) to notify all
individuals at initial application and application for recertification about pertinent work
requirements by stating (1) whether the individual is required to complete work
requirements; (2) what the requirements are; (3) who is exempt; and (4) what the
consequences are for non-compliance.
32.Defendant agreed to prioritize the FSP 003 for a January 1, 2016 release. See Paragraph 1(h)
of Doc. 611. At Defendants request, Plaintiffs provided Defendant with a new version of
the FSP 003 with text only changes on October 15, 2015 to simplify the revision process and
help the Department fix the notice by January 1, 2016. Plaintiffs offered to meet with the
Department to go over the changes. Email and sample notice sent to Defendant are attached
as Exhibit E.
33.At the October Meet and Confer with Defendant, Defendant informed Plaintiffs that the new
version of the FSP 003 could not be completed by January 1, 2016 because the IT contractor
4The current version of the regulation that is in the states administrative code was published in the New Mexico
register on August 28, 2015. Plaintiffs wrote to Defendant on September 1, 2015 and September 4, 2015 aboutnumerous sections in the regulation that violate federal law. See Exhibit C. Defendant responded to Plaintiffs andagreed to correct these problems. See letter from Defendant, attached as Exhibit D. Subsequently, Defendantproposed a completely new regulation, which Plaintiffs commented on and Defendant published in the register asfinal on December 30, 2015. Inexplicably, Defendant published the former, uncorrected August 28, 2015 final rulein the NM Administrative Code on January 1, 2016. This regulation violates federal law as set forth above. If theDepartment meant instead to be operating off of the December 30, 2015 final rule, the Department is still violatingthe law in multiple ways, including its illegal notices, practices, and processing of SNAP applications.
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said it would also require programming changes that could not be completed by that date.
Defendant told Plaintiffs that the Department was looking into whether this was accurate.
34.In November, Plaintiffs received numerous phone calls from families applying for SNAP
who had received a confusing notice about work requirements. After reviewing what the
clients received, Plaintiffs learned that Defendant had already implemented a new version of
the FSP 003. That version is attached as Exhibit F. The new version indicates that the three
month time limit is in effect and that an expanded number of adults are required to participate
in the states E & T program. Neither of these changes had yet been made in HSDspolicy.
Among other things, the notice incorrectly tells applicants that:
a. Adults age 16-60 were required to register for the E & T program. This is wrong
because there have not been and are not any E & T requirements for adults other than
18-50 year olds who are not living in a household with a minor. When this notice was
released, even the proposed regulations did not suggest requirements for this
population until October of 2016;
b.
Adults in New Mexico were already subject to the three month time limit. In fact, this
was not implemented until January 1, 2016;
c. Adults 18-49 were required to complete 20 hours in a E & T work activity to continue
getting SNAP. This requirement was not in place when the notice was implemented.
More importantly, federal law limits the number of hours an individual can be required
to work in a states E & Tprogram based on the state minimum wage and their benefit
amount, not 20 hours a week. 7 C.F.R. 273.7(e)(3)(ii);
d. Adults attending school can be exempt from requirements only if they are enrolled full
time. In fact, federal law exempts adults in school half time. 7 CFR 273.7(b)(1)(viii).
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35.On November 25, 2015, Plaintiffs wrote to Defendant again about the incorrect information
in the FSP 003 notice and the Departments failure to screen current SNAP participants prior
to sending them a notice about work requirements. Plaintiffs requested a meeting about these
issues, but Defendant refused. Correspondence is attached as Exhibit G.
36.Defendant conceded that the FSP 003 notice was deficient and stated a new version would be
implemented by January 1, 2016. SeePage 2 of Doc 614.
37.On December 22, 2015, the same day that Defendant informed Plaintiffs that the final
regulation would be different from their prior proposal, Defendant sent Plaintiffs a notice
called the FSP 400. Defendant informed Plaintiffs that this new form would be implemented
on January 1, 2016 (5 business days later), and that it would replace the FSP 003. Plaintiffs
were not given 30 days to comment on the new standard form document, as required by the
Decree. Email transmitting these documents to Plaintiffs is attached as Exhibit H.
38.The FSP 400 directs new applicants that the three month time limit sanction is in effect and
that the Department does not believe the individual is exempt. The form asks SNAP
applicants to turn in the form and indicate if they are: (1) working 20 hours a week; (2) doing
work experience; (3) doing volunteer work or community services; or (4) doing something
else. The Department directed workers to begin utilizing the FSP400 on December 29,
2015. Workers were not told that the FSP 400 replaces the illegal FSP 003. Instead, workers
were told that the FSP 400 is a form that can be used to verify the Able Bodied Adult SNAP
participant is meeting their work activity requirement. The worker directive and FSP 400
are attached as Exhibit I.
39.Upon information and belief, Defendant continues to send the illegal FSP 003 to applicants.
See FSP 003 sent on January 15, 2016, attached as Exhibit J.
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40.The Defendants FSP 400 fails to meet the legal requirements to notify participants of
applicable work requirements under 7 C.F.R. 273.7(c)(1) because:
a. it does not explain who is exempt and how to claim an exemption5;
b. it contains conflicting information about how many work hours an individual will have
to do in the states E & T program to avoid the 3 month timelimit. The notice states
on the first page that if you choose to use SL Start to find work experience, the
number of hours for compliance in this component are calculated in accordance with 7
C.F.R. 273.7(e)(1). SL Start is the corporation that administers the SNAP E & T
program. 7 C.F.R. 273.7 (e)(1) states that the number of work hours is limited to the
benefit amount divided by the higher of the state or federal minimum wage. The
second page of the notice states that the individual will have to participate, for an
average of 80 hours a month, in a combination of E & T work program components
found at 8.139.410.12(I) NMAC.
c. it does not explain how to claim good cause for non-compliance;
d.
it does not explain to regain eligibility after reaching the time limit; and
e. it conflicts with existing state regulations that are referenced in the notice.
41.Additionally, on November 12, 2015, Defendant issued a Notice of New SNAP Work
Requirements. Rather than sending the notice to adults identified by the state as subject to
5On January 21, 2016, Plaintiffs found two new forms about exemptions from the time limitposted on Defendants website for the first time. The forms are called the FSP 200 Able BodiedAdult Time Limit Exemption Request and the FSP 300 SNAP Medical and CaretakerExemption Form. Plaintiffs had suggested that the Department create and implement forms thatallow for clients to claim and document exemptions. However, Defendant did not respond toPlaintiffs suggestions and Plaintiffs were not provided an opportunity to comment on theformsprior to their implementation, as required by the Decree. Further, the forms are not referenced orincluded with notices to adults about the ABAWD time limit and are not referenced in any of theemployee trainings described below.
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the rules, the Memorandum issuing the notice says it was sent to all active SNAP
recipients. Therefore, every household on SNAP, regardless of their age and status wrongly
received a notice stating you are receiving this notice because our records show that you
must complete new work activities to keep getting SNAP benefits. The notice requires
adults between 18 and 50 to 1) attend an orientation; 2) complete an assessment; 3) complete
an individual responsibility plan; and 4) complete a work participation agreement by January
1, 2016. In fact, the requirements listed on the notice were not in effect and did not exist until
January 1, 2016. The Memorandum to workers states that the early notice is to give
ABAWDs time to be placed into a qualified activity, so they can begin actively meeting their
requirements as of January 1, 2016. Rather than explaining that the intent of the notice was
to give adults subject to the new rules more time to begin complying with new rules, the
notice illegally informed all SNAP participants that if they do not meet all the requirements,
they may lose SNAP for up to three years. Seeworker directive and notice attached as
Exhibit K.
42.
In addition to not meeting the basic requirements of federal law, these notices also do not
meet the Decree requirement that all notices be at a 6thgrade reading level. The notice expert
contracted to review the notices to ensure they are easily comprehensible and below a 6th
grade reading level did not receive work requirement notices until January 4, 2016. Seeemail
from HSD transmitting these notices is attached as Exhibit L.
43.Defendants failure to provide adequate and accurate information about the new
requirements, how to meet the requirement, how to demonstrate compliance to the agency,
how to claim an exemption, the existence of good cause for failure to comply temporarily
and how to claim good cause and how to regain eligibility after reaching the time limit
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violate the Decree, the Due Process Clause of the 14thAmendment to the United States
Constitution, and 7 U.S.C. 2015(o) and its implementing regulation, 7 C.F.R. 273.24 and
7 U.S.C. 2014(a).
V. Defendant failed to train workers on the requirements.
44.Defendants eligibility workers have received even more inconsistent and incorrect
information than applicants and SNAP participants. 6
45.On November 6, 2015, Defendant issued an interim policy memorandum instructing
workers to exempt individuals from mandatory work requirements if costs that are
reasonably necessary and directly related to participation exceed the available
reimbursement. Seepolicy attached as Exhibit M. This policy incorrectly states that
individuals will become exempt from the time limit requirement if they have expenses
related to work participation that exceed the available reimbursement. Federal law does not
exempt an individual from the ABAWD time limit based on costs of participation. Federal
law exempts individuals with costs of participation above the available reimbursement from a
mandatory state E & T program, not from the ABAWD time limit requirement. See7 C.F.R
273.7(d)(4)(v). The policy incorrectly states that the exemption for costs is for E & T and
ABAWD requirements.
6Plaintiffs first reviewed Defendants training for new employeesin October of 2015 and alerted
Defendant that the training did not contain any information about SNAP work requirements.
Defendant provided Plaintiffs with a new version of the training that was put in place effectiveNovember 1, 2015. That version contains incorrect information that is not in compliance withfederal law about SNAP work requirements. Plaintiffs did not see this version prior to its release.Plaintiffs wrote to Defendant in November about these continued problems. Defendant statedthat a new training would be developed and that the work requirements were not within the scopeof the Decree. On January 13, 2015, Defendant confirmed to Plaintiffs that he is currentlytraining new employees with the training materials that do not comply with federal law.
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46.On November 4, 2015, before finalizing any new requirements and without consultation with
Plaintiffs, Defendant revised a standard form document, called the Worker Checklist. See
Exhibit N. The checklist provides workers with a quick reference on eligibility factors and
application processing practices. The form was released to workers in a memorandum that
states use of the updated form shall begin immediately. Among other things, the form
directs workers that (1) adults age 16-59 must participate in an E & T activity, to include
work or training program; and failure to comply results in lower SNAP benefits or closure of
SNAP case and(2) adults age 18-59 can only receive three months of SNAP benefits if
you do not participate in a qualified activity for 20 hours a week. These directives conflicted
with the regulation that was in place at that time and even contradicted the then proposed
regulation by telling workers that these requirements were currently in effect, since the
proposed regulation would have implemented the 3 month time limit January 1, 2016 and
requirements for parents, and adults under 16 and over 50 were set to start October 1, 2016.
47.On November 12, 2015, Defendant issued another interim policy memorandum
establishing a definition for workers to use in determining if an individual is physically and
mentally unfit for work and therefore exempt from work requirements. SeeExhibit O. The
policy does not explain the full extent of the exemption, saying it only exempts individuals
from a mandatory Employee and Training Program. However, federal law exempts an
individual who is mentally and physically unable to work from the ABAWD time limit and
other employment related requirements, not just the state E & T program.
48.On November 25, 2015, Plaintiffs wrote a letter to Defendant about the various inconsistent
and conflicting policies issued to workers and notices issued to clients in the past month.
Plaintiffs requested a meeting with the Department. Defendant responded with an email
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stating HSD does not feel that a meeting on this information is necessary at this time. See
Exhibit G.
49.On December 22, 2015, when Defendant sent Plaintiffs the FSP 400, he also sent Plaintiffs a
new training PowerPoint on that version of the regulation. The training is attached as Exhibit
P. The training states that:
a. The state employment and training program is voluntary for all participants until
September 30, 2016. Seepage 1 of Exhibit P.
b. ABAWDs must complete an average of 80 hours a month or 20 hours of work a week,
even if that is done through the E & T program. Seepage 7 of Exhibit P.
c. All mandatory ABAWDs who do not comply with work requirements in January of
2016 will have used a countable month. Seepage 14 of Exhibit P.
d. The FSP 400 form is to be used to assist in verifying whether an ABAWD is meeting
the time limit requirements. Seepage 8 of Exhibit P.
50.The power point training conflicts with the regulation published in the NM Administrative
Code on January 1, 2016 because 1) the administrative code makes E & T mandatory for
adults age 16-60 but the training says that all E & T is voluntary and adults age 18-50 can use
the E & T program to avoid the time limit; and 2) the administrative code requires all adults
to do a number of work hours in the state E & T program based on their benefit amount and
the federal minimum wage but the training requires ABAWDs to do 80 hours of work a
month.
51.The power point training describes exemptions from the time limit and exemption procedure
on pages 5-7. The training does not instruct workers on how a client can claim an exemption
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or whether there are any Income Support Division forms that can be used to claim or verify
an exemption.
52.In a final rush, just days before the Department put the time limit rule into effect, it rescinded
the illegal policies and checklist described above. Specifically, on December 28, 2015 the
Department rescinded thepolicy described in paragraph 45 above; on December 30, 2015,
the Department rescinded thepolicy described in paragraph 47 above, and also on
December 30, 2015, the Department rescinded the worker checklist described in paragraph
46 above. To date, the Department has not replaced the two policies. The Department did the
worker checklist that is incomplete and conflicts with current New Mexico Administrative
Code, creating even further confusion.
VI. The Department is not implementing the requirements in accordance with the
Decree and Federal law
53.Upon information and belief, Defendant began requiring at least some adults to perform
mandatory work hours starting January 1, 2016. Unemployed individuals were referred to
Defendants corporate contractor,SL Start, for an orientation and assessment.
54.Upon information and belief, individuals subject to work requirements are given an
assessment attached as Exhibit Q. The assessment does not screen the individual for
exemptions, it simply asks the worker if the individual identified exemptions without
requiring the worker to screen for them.
55.
Upon information and belief, individuals subject to work requirements are given an
orientation that includes the power-point attached as Exhibit R.
56.
The orientation power-point does not include information about exemptions from the time
limit. In fact, the power-point incorrectly states that an individual will use a countable month
towards the 3 month time limit if he or she receives benefits and does not work 20 hours a
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week. In fact, individuals who become exempt will not have met a work requirement and will
not have used a countable month. For example, someone who became pregnant or started
going to school part time would become exempt from the requirement and have no way of
knowing based on the information given at the orientation.
57.The orientation states that individuals will be disqualified if they do not work 20 hours per
week or hours based on your FLSA in a WE/CS activity. Seepage 5 of the Exhibit R. This
strangely worded statement conflicts with earlier trainings to workers and notices to
applicants indicating that an individual may have to do 20 hours a week or a number of hours
based on their benefit amount and minimum wage.
58.The orientation states that work hours are tracked and reported by the client on a monthly
time sheet.Seepage 4 of Exhibit R. However, the contract given to clients states that the
sponsoring agency must submit monthly attendance reports to NM Works or a designee. See
a sample community service and work participation agreements, attached to Exhibits V and
W. Both of these statements conflict with state regulations. The regulation currently in the
NM Administrative Code requires ABAWDs to report their hours worked by the fifth
calendar day of each month following the month of participation in work activities. NMAC
8.139.410.14(D)(2). Defendants state plan contains a completely differentmethod of
verification, stating that compliance will be monitored by random reviews of participation at
each organization.Seepage 17 of Exhibit A.
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VII. Individual class members harmed by Defendants illegal practices.
Robert Jenkins
59.
Mr. Jenkins has been homeless for over two years due to persistent mental health
impairments. Mr. Jenkins relies on SNAP benefits to eat.7
60.Despite his limitations, Mr. Jenkins had been required to participate in the state Employment
and Training program through October of 2015.
61.On November 9, 2015, Mr. Jenkins received a phone call from a worker who told him that he
needed to come into the Income Support Division and start volunteering 20 hours per week
to keep getting SNAP benefits. The worker scheduled Mr. Jenkins for an orientation on
November 13, 2015.
62.Mr. Jenkins was unable to attend the orientation on November 13, 2015.
63.On November 18th, Defendant sent Mr. Jenkins a notice titled E & T and ABAWD
Requirements- Supplemental Nutrition Assistance Program. The notice stated I understand
that I am mandatory to register for the E & T program.
64.On December 28, 2015, Mr. Jenkins contacted the NM Center on Law and Poverty about the
notice he received. The Center notified Mr. Jenkins that he should be determined to be
exempt from work requirements because of his impairments and chronic homelessness,
which make him unfit for work under federal SNAP rules.
65.On December 29, 2015, Mr. Jenkins completed his orientation and assessment at the Income
Support Division.
7A sworn statement from Mr. Jenkins attorney, Louise Pocock, as well as documents from Mr.
Jenkins ISD casefile are attached as Exhibit S.
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66.During his assessment, Mr. Jenkins indicated that he has barriers to employment that include
homelessness, lack of work history, not having a social security card, lack of transportation,
and mental health impairments.
67.After the assessment, the worker required Mr. Jenkins to continue through the process, and
complete an Individual Responsibility Plan. Mr. Jenkins reiterated that he was exempt and
that the NM Center on Law and Poverty said he should not have to do any work
requirements. After Mr. Jenkins insisted that he was exempt under the rules, the worker
agreed that he should not be assigned work hours and he was allowed to leave the
orientation.
68.On January 12, 2016, Louise Pocock, an attorney at the NM Center on Law and Poverty
requested Mr. Jenkinsscase file. Ms. Pocock saw that an exemption was not documented in
the case file. Ms. Pocock asked the worker for documentation of the exemption. The worker
was unable to tell that Mr. Jenkins was exempt and instead thought he had left the orientation
before being assigned a placement.See emails from HSD eligibility worker, attached as
Exhibit T.
69.Ms. Pocock inquired further about records from the case file that are held with the SL Start,
the corporation that runs the state Employee and Training program, as these notes might
indicate Mr. Jenkins exempt status. The worker explained that ISD does not have access to
those records. See Exhibit T.
70.Mr. Jenkins was only noted as exempt in the HSD system after the intervention of the NM
Center on Law and Poverty. On January 12, 2015, the HSD worker followed up with SL
Start and learned that Mr. Jenkins exempt status was not updated in the system. The worker
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sent Ms. Pocock updated case comments on January 15, 2015 documenting that Mr. Jenkins
is exempt. See updated case comments from Mr. Jenkins case fileattached as Exhibit U.
Eloy Hermosillo
71.Mr. Eloy Hermosillo applied for SNAP on December 28, 2015 for himself and his wife. Mr.
Hermosillo lost his job in November, after his employer learned that he did not have a high
school diploma. Mr. and Ms. Hermosillo rely on SNAP food benefits to eat and conserve Ms.
Hermosillos small income for housing and other shelter costs.8
72.An eligibility worker informed Mr. Hermosillo during an interview that, because he was
unemployed, Mr. Hermosillo would have to do unpaid work to get food assistance.
73.Ms. Hermosillo went to a work program orientation on January 12, 2016. At that orientation,
Mr. Hermosillo and other participants were given a presentation that describes the
requirements. The orientation did not explain who was exempt from the requirements.
74.After the orientation, each person attending was required to go to the front and interview with
a worker to complete an assessment, the Individual Responsibility Plan and Work
Participation Agreement.
75.Mr. Hermosillo indicated that he does not have a valid drivers license and the worker wrote
this down in the barrier identification section of the application. However,in the office
use only section of the assessment,the worker indicated that Mr. Hermosillo had not
identified any barriers and no referrals for assistance were offered. The worker marked on the
form that Mr. Hermosillo had not identified reasons why good cause would be granted, but
the worker did not explain what good cause was. The worker marked on the assessment that
8A sworn statement and work requirements materials given to Mr. Hermosillo are attached as
Exhibit V.
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Mr. Hermosillo had not identified any exemptions, but the worker did not explain what the
exemptions are.
76.Mr. Hermosillo listed his employment and education goals as to get back into school on his
Individual responsibility plan.
77.Mr. Hermosillo was given a list of places to perform unpaid work hours. Upon information
and belief, every participant is given the same list regardless of the content of their
assessment. Mr. Hermosillo picked Donut Mart as his work hour site because it was closest
to his home. The SL Start worker categorized this activity as community service. A work
schedule was not established.
78.While the training states that participants must track their work hours on time sheets if they
do community service, no time sheets were distributed. Mr. Hermosillo was not told how he
is supposed to document that he is meeting the work requirements.
79.Mr. Hermosillos Work Participation Agreement states that beginning January 1, 2016, the
ABAWD program will be implemented and instructs him to complete 27 hours per month
starting February 1, 2016.
80. Mr. Hermosillo applied for SNAP on December 28, 2015 and will be eligible for a full
months benefit in January, yet he was not provided any information about work hours for
January and will thus use a countable month towards the three month time limit. He was not
provided information about this and was instead told that if he does what is on his WPA
starting in February of 2015, he will not use a countable month towards the time limit. This
is incorrect.
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81.Mr. Hermosillo will have improperly used a month towards the time limit and face the loss of
food assistance after three months because he was not given information about how to prove
he is complying with the requirements.
Ellana Tsethlikai
82.Ellana Tsethlikai relied on food assistance while she completed her GED and her associates
certificate in office technology. She relies on SNAP to afford housing while in school and
continues to need SNAP, since she has been unable to find a job since graduating.9
83.HSD terminated Ms. Tsethlikai from SNAP several times even though she was complying
with job search requirements. Each time she showed proof that she attended a required
meeting or met the requirements and her benefits were restored.
84.Over the last year, Ms. Tsethlikai has received several conflicting and confusing notices
about new work requirements for people called ABAWDs.
85.In November, Ms. Tsethlikai received a notice which states that she must attend an
orientation and complete a work participation agreement by January 1, 2016. Ms. Tesethlikai
called the Income Support Division to find out how she could comply with the new
requirement. The worker gave her some dates to come to the local office for an orientation.
Ms. Tsethlikai went in for an orientation and was told that none would be held that day and a
worker would call her to do one by phone. Ms. Tsethlikai never received a phone call.
86.In December, Ms. Tsethlikai received another notice about work requirements. Ms.
Tsethlikai went into the income support division office. A worker informed her that
orientations were being held at another locations.
9A sworn statement from Md. Tsethlikai and documents she received at the orientation are
attached as Exhibit W.
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87.On January 12, 2015, Ms. Tsethlikai attended an orientation for the SNAP work program. At
the orientation, all participants were given a presentation with the power point.
88.After the presentation, Ms. Tsethlikai met with a worker who completed an application,
Individual Responsibility Plan and Work Participation Agreement with her.
89.On the assessment, Ms. Tsethlikai indicated that she has barriers that include, transportation,
housing and legal history. Yet, on the staff use onlyportion of the assessment, SL Start
documented that Ms. Tsethlikai had no barriers and no referrals were made.
90.The orientation presentation and assessment did not describe or ask about exemptions from
participation or good cause for non-compliance. On the staff use only section of the
assessment, the worker indicated that Ms. Tsethlikai had not identified any exemptions or
good cause for non-compliance.
91.Ms. Tsethlikai was presented with a list of available work hour sites. Upon information and
belief, this is the same list that is given to all participants regardless of the outcome of their
assessment. Ms. Tsethlikai asked to work at the Donut Mart because it is closest to her home.
The SL Start worker categorized her work at Donut Mart as Work Experience.
92.Ms. Tsethlikai was assigned 25 hours of work a month from January 12, 2015June 30,
2016. She was not told when or how she needs to complete each months hours. The
orientation presentation that Ms. Tsethlikai received stated that she must turn in time sheets
to show she is meeting the requirement every month, but she was not given any time sheets.
VIII. Grounds for Injunctive Relief
Plaintiffs seek an injunction preventing Defendant from implementing the three month
time limit and any other work requirements until the Department can do so in compliance with
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the Decree and Federal Law. For plaintiffs to be entitled to a preliminary injunction, they must
show:
a. a substantial likelihood of prevailing on the merits;
b. irreparable harm unless the injunction is issued;
c. that the threatened injury outweighs the harm that the preliminary injunction may
cause the opposing party; and
d. that the injunction, if issued, will not adversely affect the public interest.
Soskin v. Reinertson, 353 F.3d 1242, 1247 (10th Cir. 2004)If Plaintiffs can establish that the
latter three requirements tip strongly in their favor, the test is modified, and Plaintiffs may meet
the requirement for showing success on the merits by showing that questions going to the merits
are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and
deserving of more deliberate investigation.Id.
Defendants current regulations explicitly conflict with federal law and the Decree and
contain errors that make them incomprehensible. Eligibility workers, Administrative Law Judges
and members of the public reference these regulations and are told to do so in notices, trainings
and other policy documents issued by the Defendant. Defendant concedes in multiple pleadings
with this court that the Departments notices do not meet the requirements of the Decree.
Further, the multiple conflicting notices and policies issued by Defendant directly conflict with
the state regulations and federal law. At least 17,500 New Mexicans are subject to the federal
time limit requirements and will improperly lose months of eligibility every month they receive
SNAP and do not comply with the new requirements. Further, individuals who are exempt or
become exempt will be required to comply with requirements in violation of the law in order to
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keep food assistance, as Defendant does not have policies, trainings, or notices that clearly
explain who is exempt.
Conversely, Defendant will not suffer any damage by withholding implementation of the
ABAWD time limit and other work requirements until the Department can do so in compliance
with the Decree and Federal Law. Defendant has not started counting months towards the three
month time limit. Until December 31, 2015, Defendant operated under a federal waiver of the
ABAWD time limit. Such a waiver is currently available to Defendant. Suspending the time
limit serves the public interest by ensuring tens of thousands of New Mexicans can maintain
access to federal food benefits, while this action is pending. One in five New Mexicans utilizes
SNAP food benefits and Defendant estimates that as many as 17,500 individuals will be subject
to the time limit requirements. On average, adults subject to the requirements receive $ 150-170
per month in food assistance, live below 17% of the federal poverty level, and are typically not
eligible for any other form of assistance.10The loss of food benefits will likely cause serious
hardship and hunger. New Mexico has one of the highest rates of food insecurity in the United
States and the highest unemployment rate in the United States. Issuing an injunction ensures that
unemployed adults and their families have continued access to federal food assistance in this
environment while the motion is pending.
There is substantial likelihood that Plaintiffs will prevail on the merits of this case. The
version of the regulations published in the New Mexico Administrative Code violates federal law
on its face and Defendant has admitted that notices issued about work requirements are not
federally compliant. SeePage 2 of Doc. 614. Defendant is under multiple court orders in this
10Ed Bolen,More Than 500,000 Adults Will Lose SNAP Benefits in 2016 as Waivers Expire
Affected Unemployed Childless Individuals Are Very Poor; Few Qualify for Other Help, (updated January21, 2015) p. 3, available athttp://www.cbpp.org/research/food-assistance/more-than-500000-adults-will-lose-snap-benefits-in-2016-as-waivers-expire orhttp://www.cbpp.org/sites/default/files/atoms/files/1-5-15fa.pdf (last accessed Jan. 27, 2015).
Case 1:88-cv-00385-KG-CG Document 623 Filed 01/27/16 Page 29 of 31
http://www.cbpp.org/research/food-assistance/more-than-500000-adults-will-lose-snap-benefits-in-2016-as-waivers-expirehttp://www.cbpp.org/research/food-assistance/more-than-500000-adults-will-lose-snap-benefits-in-2016-as-waivers-expirehttp://www.cbpp.org/research/food-assistance/more-than-500000-adults-will-lose-snap-benefits-in-2016-as-waivers-expirehttp://www.cbpp.org/research/food-assistance/more-than-500000-adults-will-lose-snap-benefits-in-2016-as-waivers-expirehttp://www.cbpp.org/sites/default/files/atoms/files/1-5-15fa.pdfhttp://www.cbpp.org/sites/default/files/atoms/files/1-5-15fa.pdfhttp://www.cbpp.org/sites/default/files/atoms/files/1-5-15fa.pdfhttp://www.cbpp.org/sites/default/files/atoms/files/1-5-15fa.pdfhttp://www.cbpp.org/sites/default/files/atoms/files/1-5-15fa.pdfhttp://www.cbpp.org/sites/default/files/atoms/files/1-5-15fa.pdfhttp://www.cbpp.org/research/food-assistance/more-than-500000-adults-will-lose-snap-benefits-in-2016-as-waivers-expirehttp://www.cbpp.org/research/food-assistance/more-than-500000-adults-will-lose-snap-benefits-in-2016-as-waivers-expire7/25/2019 Motion for Injunction on SNAP Work Rules 2015
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case to bring many aspects of his food assistance program into compliance with federal law,
which alone should prevent Defendant from restricting SNAP eligibility until basic procedures
have been brought into compliance with federal law and the Decree.
The Decree allows the parties to seek a ruling from the Court if the parties cannot resolve
their differences. Decree, p. 3. Plaintiffs have spent the past year attempting to bring Defendants
administration of SNAP work requirements into compliance with the law. Defendants
substantial failure to address the problems identified by Plaintiffs in the past year leave Plaintiffs
no choice but to turn to the Court for assistance. Because of the nature of this motion, Plaintiffs
did not seek Defendants position on the motion.
WHEREFORE, Plaintiffs respectfully request that this Court:
1) Hold an expedited hearing on this Motion due to the great harm to class members
from Defendants illegal program;
2) Issue an Order enjoining Defendant from implementing any SNAP work
requirements, including the ABAWD time limit, until Defendant can do so in
accordance with the Decree and federal law;
3) Any further relief that this Court may deem necessary and proper.
Respectfully submitted,
/s/ Sovereign HagerGail Evans and Sovereign HagerNew Mexico Center on Law and Poverty720 Vassar Dr. NEAlbuquerque, NM 87106(505) 255-2840 FAX (505) 255-2778
Jane B. Yohalem
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P.O. Box 2827Santa Fe, NM 87504(505) 988-2826 FAX (505) 982-6692
Daniel Yohalem
1121 Paseo de PeraltaSanta Fe, NM 87501(505) 983-9433 FAX (505) 989-4844
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that on this 27th day of January 2016, I filed the foregoing pleading
electronically with the United States District Court, causing the same to be electronically served
on opposing counsel, Christopher Collins. A copy of the foregoing Motion and this certificate
were also served this day on these counsel by emailing a copy toChristopher.Collins@state.nm.us
and Natalie.bruce@state.nm.us
/s/ Gail Evans
Gail Evans
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mailto:Christopher.Collins@state.nm.usmailto:Christopher.Collins@state.nm.usmailto:Christopher.Collins@state.nm.us