Attorneys say the state is using secret rules to disqualify applicants
Five New Mexico residents are suing the Children, Youth and Families Department (CYFD), claiming the state is effectively cheating eligible low-income families out of money to pay for child care.
According to the lawsuit, filed Tuesday in First Judicial District court in Santa Fe by the New Mexico Center on Law and Poverty (CLP), CYFD is handing out child care assistance based on secretly formulated rules without clearly defined eligibility requirements, in violation of the state constitution.
CLP brought the suit on behalf of five residents whose applications for child care assistance were denied. Olé, an Albuquerque-based community organizing group, is also a plaintiff. The complaint names Secretary Monique Jacobson, in her official capacity, as defendant.
The complaint alleges CYFD is improperly rejecting applications from families whose incomes fall within federal eligibility guidelines and is not giving applicants a chance to appeal when their request for assistance is denied. It also claims the state is illegally charging copayments to families who do receive assistance.
Plaintiffs are asking a judge to order CYFD to:
Provide child care assistance to eligible families earning up to 200 percent of the federal poverty level.
Establish clear rules laying out eligibility and co-payments by income and household size.
Tell families that were previously denied benefits why they were denied and how they may appeal.
“Our constitution protects people from vague laws and rules that lead to arbitrary decisions and give no predictability for families,” Sovereign Hager, an attorney with the Center on Law and Poverty, said in an interview with Searchlight New Mexico.
Hager said the state should have made rules for formulating copayments through a regulatory process that was transparent and gave the public a chance to comment.
Multiple attorneys who have reviewed child care assistance copayments charged to New Mexicans have been unable to determine how they were calculated, Hager said.
"To suggest CYFD has been unnecessarily limiting access to child care assistance is preposterous," department spokesman Henry Varela said. "CYFD has been fighting to grow child care assistance with our most vulnerable populations and has increased participation by 4,500 children a month over the last 3.5 years. CYFD has also increased the funding for this program by $53 million since 2015."
The child care assistance program, funded by a mix of state funds and federal block grants, pays a subsidy to families to cover the cost of child care. Budgeted at $129 million for fiscal year 2019, it is CYFD's largest early childhood program.
Child care costs, averaging over $7,500 a year in New Mexico, place an enormous financial burden on families who do not receive assistance — particularly for grandparents raising grandchildren, Searchlight reported last week.
Only 30 percent of eligible families are receiving child care assistance through CYFD.
“We have some plaintiffs who have had to choose between sending their children to childcare or purchasing diapers and wipes,” Monica Ault, an attorney for the Center on Law and Poverty told Searchlight. “Other families have had to decide, are we going to buy food today or am I going to send you to child care so that I can go to work?”
One plaintiff in the lawsuit, Annette Torres, earns $16 an hour after taxes as an employee of the New Mexico Human Services Department — a wage that attorneys say should have qualified her for assistance in New Mexico. Her application for child care assistance was denied because her income was ruled too high.
Torres said she re-applied for assistance two times, and both times was turned away without having her application processed.
“I just got to the point where I said, ‘You know what? God's going to provide. We’ll have to figure it out,’” she said in an interview with Searchlight.
Torres was eventually able to pay for child care after she was injured in a car accident and received a cash settlement.
The lawsuit against CYFD is the latest in a long series of court battles over New Mexico's procedures for distributing public assistance, which critics argue are insurmountably complex and difficult to navigate.
Historically, those legal challenges have focused on the New Mexico Human Services Department, which administers food stamps, Temporary Assistance for Needy Families (TANF) and Medicaid.
HSD has been under a consent decree to bring its practices in line with federal law for three decades, ever since a low-income mother sued the department in 1988 for stymieing her access to public assistance.
That agency has been found to be out of compliance with the consent decree multiple times in recent years.
A preliminary hearing has not yet been scheduled.