Motion for Injunction on SNAP Work Rules 2015

7/25/2019 Motion for Injunction on SNAP Work Rules 2015

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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

Case 1:88-cv-00385-KG-CG Document 623 Filed 01/27/16 Page 1 of 31


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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.

http://www.bls.gov/web/laus/laumstrk.htmhttp://www.bls.gov/web/laus/laumstrk.htmhttp://www.bls.gov/web/laus/laumstrk.htmhttp://www.bls.gov/web/laus/laumstrk.htm


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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

http://www.fns.usda.gov/sites/default/files/snap/ABAWD-Time-Limit-Policy-and-Program-Access-Memo-Nov2015.pdfhttp://www.fns.usda.gov/sites/default/files/snap/ABAWD-Time-Limit-Policy-and-Program-Access-Memo-Nov2015.pdfhttp://www.fns.usda.gov/sites/default/files/snap/ABAWD-Time-Limit-Policy-and-Program-Access-Memo-Nov2015.pdfhttp://www.fns.usda.gov/sites/default/files/snap/ABAWD-Time-Limit-Policy-and-Program-Access-Memo-Nov2015.pdfhttp://www.fns.usda.gov/sites/default/files/snap/ABAWD-Time-Limit-Policy-and-Program-Access-Memo-Nov2015.pdf


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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).

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-expire


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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 [email protected]

and [email protected]

/s/ Gail Evans

Gail Evans

mailto:[email protected]:[email protected]:[email protected]

Documents

Motion for Injunction on SNAP Work Rules 2015