Hatten-Gonzales v. Earnest

Filing 937

AMENDED ORDER by District Judge Kenneth J. Gonzales granting 928 Plaintiff's Request for Hearing on Two Pending Motions. Hearing is set on 4/1/2020 at 9:00 a.m. in the 3rd Floor Pecos Courtroom, Albuquerque, NM. [Amended only to correct typos in paragraph 5(e) and paragraph 5(i).] (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DEBRA HATTEN-GONZALES, et al.,
Plaintiffs,
vs.

Civ. No. 88-385 KG/CG
Consolidated with
Civ. No. 88-786 KG/CG

DAVID R. SCRASE, Secretary of the
New Mexico Human Services Department,
Defendant.
AMENDED ORDER SETTING HEARING
This matter comes before the Court upon Plaintiffs’ Request for Hearing on Two Pending
Motions, filed February 3, 2020. (Doc. 928). Plaintiffs seek a hearing on (1) Defendant’s Rule
60(b) Motion to Modify Second Revised Modified Settlement Agreement and Order Sections II,
III and IV(F)(1), (Doc. 893), filed November 20, 2019; and (2) Plaintiffs’ Amended Motion to
Enforce Compliance with the Consent Decree and Orders of this Court and Request for Relief,
(Doc. 926), filed February 3, 2020.1 Defendant has not responded to Plaintiffs’ Request for
Hearing on Two Pending Motions. The Court, therefore, finds that Defendant consents to
Plaintiffs’ request for a hearing. See D.N.M. LR-Cv 7.1(b) (failure to respond to motion
“constitutes consent to grant the motion”).

Plaintiffs’ Request for Hearing on Two Pending Motions originally requested a hearing on
Plaintiffs’ Motion to Enforce Compliance with the Consent Decree and Orders of this Court and
Request for Relief, (Doc. 892), filed November 19, 2019. The Court, however, ordered Plaintiffs
to re-file that motion, which they did as an amended motion. See (Doc. 925). Accordingly, the
Court construes Plaintiffs’ Request for Hearing on Two Pending Motions to apply to Plaintiffs’
Amended Motion to Enforce Compliance with the Consent Decree and Orders of this Court and
Request for Relief, (Doc. 926).
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Also, before the Court is Defendant’s related Motion to Strike Plaintiffs’ Amended
Motion to Enforce (Doc. 926) and Plaintiffs’ Amended Response to Defendant’s Motion (Doc.
927) (Motion to Strike). (Doc. 930).
Having reviewed the two motions which are the subject of Plaintiffs’ request for a
hearing, and Defendant’s Motion to Strike,
IT IS ORDERED that Plaintiffs’ Request for Hearing on Two Pending Motions (Doc.
928) is granted in that
1. a hearing is set on April 1, 2020, at 9:00 a.m., in the Pecos Courtroom, Third Floor,
Pete V. Domenici United States Courthouse, 333 Lomas Blvd. NW, Albuquerque, NM 87102;
2. the Court will address Defendant’s Rule 60(b) Motion to Modify Second Revised
Modified Settlement Agreement and Order Sections II, III and IV(F)(1), (Doc. 893), at the
hearing but will take evidence only on the factual issue of whether Defendant is currently
“[m]aking incorrect eligibility determinations for Medicaid by counting income that should not
be counted under federal law,” see (Doc. 927) at 5;
3. additional argument by counsel on Defendant’s Rule 60(b) Motion to Modify Second
Revised Modified Settlement Agreement and Order Sections II, III and IV(F)(1), (Doc. 893),
will be limited as follows: 10 minutes for Defendant, 15 minutes for Plaintiffs’ response, and
five minutes for Defendant’s rebuttal;
4. the Court also will address Plaintiffs’ Amended Motion to Enforce Compliance with
the Consent Decree and Orders of this Court and Request for Relief, (Doc. 926), at the hearing
but will allow a total of 10 minutes for additional argument and presentation of evidence for each
compliance issue raised by Plaintiffs in their amended motion to enforce compliance, unless the
issue has been resolved between the parties and/or the issue is now moot;

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5. the compliance issues raised by Plaintiffs which are now before the Court are:
a. whether Defendant should implement all Corrective Action Plan (CAP) Items
by April 1, 2020;
b. whether Defendant has set deadlines to stop immigrant eligibility errors caused
by ASPEN;
c. whether Defendant has complied with non-CAP Item 4.b.3.c, which requires
an immigration training webinar;
d. whether Defendant complied with the CAP Item deadline of December 22,
2019, to implement Change Request (CR) 2840, which will ensure that notices contain
correct denial and closure reasons in English and Spanish, as required by CAP Item 2.c.3;
e. whether Defendant has complied with non-CAP Item 4.d.2, which requires
Defendant to provide a denial reason code in the Notice of Case Action (NOCA) when an
individual is denied Emergency Medical Services for Aliens;
f. whether Defendant complied with the CAP Item deadline of December 22,
2019, to implement CR 2958, which ensures a literacy review of the Help Us Make a
Decision (HUMAD) request for verification form, as required by CAP Item 2.a.3;
g. whether Defendant complied with the CAP deadline of December 22, 2019, to
implement CR 2958 to ensure HUMAD requests seek accurate information, as required
by CAP Item 2.a.1.
h. whether Defendant complied with the CAP Item deadline of December 22,
2019, to provide calculation tables in NOCAs to explain benefit denials, including
reductions, as required by CAP Item 2.c.1;

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i. whether Defendant complied with the CAP Item deadline of September 10,
2018, to correct NOCAs that state benefits have changed when they have not, as required
by CAP Item 2.c.2;
j. whether Defendant has complied with the December 22, 2019, deadline to
implement CR 2931 in order to improve automated administrative renewals for Medicaid,
as required by CAP Item 1.c;
k. whether Defendant has implemented important content into a worker manual,
as required by the CAP and (Doc. 712);
l. whether Defendant has complied with the October 31, 2019, deadline to make
regulatory changes, as required by CAP Item 1.e.2;
m. whether Defendant is complying with Section IV(E) of the Consent Decree
which requires Defendant to provide Plaintiffs information prior to changing an
application process;
n. whether Defendant is timely providing data required by Section IV(F)(2)
and (3) of the Consent Decree;
o. whether Defendant refuses to allow subject matter experts to serve as liaisons;
p. whether Plaintiffs are entitled to fees related to Plaintiffs’ Amended Motion to
Enforce Compliance with the Consent Decree and Orders of this Court and Request for
Relief, (Doc. 926); and
6. the Court also will consider testimony from the Special Master and the Compliance
Officer at the hearing.

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IT IS FURTHER ORDERED that the Court may rule on Defendant’s Motion to Strike
Plaintiffs’ Amended Motion to Enforce (Doc. 926) and Plaintiffs’ Amended Response to
Defendant’s Motion (Doc. 927), (Doc. 930), at the hearing.

_______________________________
UNITED STATES DISTRICT JUDGE

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