{ "id": 2770184, "name": "Ossie CHAVEZ, Appellant, v. NEW MEXICO HEALTH AND SOCIAL SERVICES DEPARTMENT, Appellee", "name_abbreviation": "Chavez v. New Mexico Health & Social Services Department", "decision_date": "1973-02-02", "docket_number": "No. 983", "first_page": "734", "last_page": "738", "citations": [ { "type": "official", "cite": "84 N.M. 734" }, { "type": "parallel", "cite": "507 P.2d 795" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "83 N.M. 703", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5340350 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/nm/83/0703-01" ] }, { "cite": "296 A.2d 815", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1972, "opinion_index": 0 }, { "cite": "449 Pa. 528", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1945673 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/pa/449/0528-01" ] }, { "cite": "30 L.Ed.2d 282", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "92 S.Ct. 345", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1971, "opinion_index": 0 }, { "cite": "404 U.S. 963", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6421542, 6421674, 6421328, 6421784, 6421437 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/404/0963-03", "/us/404/0963-04", "/us/404/0963-01", "/us/404/0963-05", "/us/404/0963-02" ] }, { "cite": "320 F.Supp. 500", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5544051 ], "opinion_index": 0, "case_paths": [ "/f-supp/320/0500-01" ] }, { "cite": "354 S.W.2d 37", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10153672 ], "opinion_index": 2, "case_paths": [ "/sw2d/354/0037-01" ] }, { "cite": "84 A.L.R. 527", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1932, "opinion_index": 2 }, { "cite": "287 U.S. 45", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 369864 ], "weight": 3, "year": 1932, "opinion_index": 2, "case_paths": [ "/us/287/0045-01" ] }, { "cite": "315 U.S. 60", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 374640 ], "weight": 3, "year": 1941, "opinion_index": 2, "case_paths": [ "/us/315/0060-01" ] }, { "cite": "83 N.M. 703", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5340350 ], "weight": 2, "opinion_index": 2, "case_paths": [ "/nm/83/0703-01" ] } ], "analysis": { "cardinality": 714, "char_count": 14861, "ocr_confidence": 0.676, "pagerank": { "raw": 1.6467795303798218e-07, "percentile": 0.6920231642848675 }, "sha256": "5b9261cf6a03bc8a29ad8a1461aba8d04c1e35fe8cf5593712c257c02d48beff", "simhash": "1:b4b929a35b153f78", "word_count": 2399 }, "last_updated": "2023-07-14T17:55:55.751115+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and SUTIN, JJ., specially concurring." ], "parties": [ "Ossie CHAVEZ, Appellant, v. NEW MEXICO HEALTH AND SOCIAL SERVICES DEPARTMENT, Appellee." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nMrs. Chavez was denied Aid to the Disabled (AD) benefits on the basis that her income exceeded her need when computed by the department\u2019s standards. She appeals.\nWe reverse.\nMrs. Chavez is a diabetic with advanced heart disease. She receives disability benefits from the federal government under the Social Security Act. Prior to June 1, 1971, her social security benefits were $111.50 per month. The department standard for her need was $116.00. As a result, she was declared eligible for and did receive state welfare assistance under AD to cover the deficit between her defined needs and her resources.\nEffective June 1, 1971, social security benefits were raised 10% which raised her benefits to $122.50. The department terminated her medical assistance from the state as of May 31, 1971, because it found that Mrs. Chavez\u2019 need was $116.00, and her income exceeded her need by $6.50. In March or April, 1972, Mrs. Chavez reapplied for assistance as a disabled person. The denial of this application is the basis for this appeal. The denial was on the same basis as the termination of assistance in 1971 \u2014 that her income exceeded her need, as determined by the department, by approximately $6.50 per month.\nThe undisputed medical evidence is that certain medicine for the heart condition is required; that without this medication Mrs. Chavez will either become very ill or die. The hearing officer for the department found that Mrs. Chavez\u2019 medical needs \u201ceasily amount to $30.00 a month, and this would be a conservative figure.\u201d\nThe department takes the position that it has no obligation, under the law, to take Mrs. Chavez\u2019 undisputed medical needs into consideration in determining whether her available resources exceed her needs as determined by the department.\nThe department\u2019s position is based primarily on federal law and regulations concerning public assistance. Its view is that federal law and regulations do not require the department to assist Mrs. Chavez and, not having voluntarily established a program which would assist Mrs. Chavez, it has no legal obligation to do so.\nThis approach by the department is based on a distinction, in federal programs, between the \u201ccategorically needy\u201d and the \u201cmedically needy.\u201d See Fullington v. Shea, 320 F.Supp. 500 (D.C.Colo.1970), aff\u2019d 404 U.S. 963, 92 S.Ct. 345, 30 L.Ed.2d 282 (1971). We need not determine whether the department\u2019s view of federal requirements is a correct one. Compare Crammer v. Commonwealth Dept. of Public Welfare, 449 Pa. 528, 296 A.2d 815 (1972). We do not consider federal requirements because state law requires that Mrs. Chavez be given assistance.\nSection 13-1-11, N.M.S.A.1953 (Repl. Vol. 3) states that public assistance shall be granted to a needy person who has insufficient income or resources to provide a reasonable subsistence compatible with decency and health. In Baca v. New Mexico Health & Social Services Dept., 83 N.M. 703, 496 P.2d 1099 (Ct.App.1972), in a similar factual situation, the issue was whether there was substantial evidence to support the finding, that Baca had income greater than his need.\nThe department does not discuss the evidence at the hearing. Rather, it states that New Mexico\u2019s standard of financial eligibility for AD is $116.00, Mrs. Chavez\u2019 income was $122.50, and that these statements constitute substantial evidence to support the decision. This does not meet the standards stated in Baca, supra.\nIn Baca, supra, this court said:\n\u201c. . . However, in order to subsist (live) he must continue his medical treatment. . . . Baca does not in fact have \u2018resources available\u2019 to meet his monthly needs as determined by the Department. . . . \u201d\nThe same fact is true in this case. By deducting the medical need, Mrs. Chavez\u2019 \u201cincome\u201d from social security benefits is reduced $30.00 per month. This leaves her $92.50 per month for subsistence compatible with decency, an amount below the standard of need determined by the department. The decision of the department is not supported by substantial evidence.\nIn spite of the wording of \u00a7 13-1-11, supra, and the Baca, supra, decision, the department asserts it is not required under state law to establish a program for the medically needy. It relies on \u00a7 13-1-54, N.M.S.A.1953 (Repl.Vol. 3) and provisions in the Appropriation Acts of 1969 and 1972 (Laws 1969, ch. 282 at 1141 and Laws 1972, ch. 98 at 681). By this argument, the department attempts to re-define the issue in this appeal. We do not have as an issue whether the department must establish a program for the medically needy; thus, the above identified legislative provisions are not applicable. The issue here is whether Mrs. Chavez is eligible to receive public assistance under an existing program, and that issue is resolved by determining whether there is evidence to support the findings made. In this case, the evidence does not support the finding that Mrs. Chavez has income in excess of her needs. The evidence is insufficient because \u201c . . . resources which are not in fact available to meet current needs are not to be considered in determining eligibility for public assistance.\u201d Baca, supra.\nThis cause is reversed and remanded for proceedings consistent herewith.\nIt is so ordered.\nHENDLEY and SUTIN, JJ., specially concurring.", "type": "majority", "author": "WOOD, Chief Judge." }, { "text": "HENDLEY, Judge\n(specially concurring).\nI concur in Judge Wood\u2019s opinion. This special concurrence is written because his opinion does not discuss an additional aspect.\nMrs. Chavez\u2019 reapplication for assistance as a disabled person was formally denied on May 4, 1972, the day the New Mexico Supreme Court denied a petition for a writ of certiorari to review the Court of Appeals decision in the Baca case cited by Judge Wood.\nThe decision in the Baca case was final when, on June 1, 1972, an administrative hearing was held on Mrs. Chavez\u2019 appeal from the denial of her application for assistance as a needy person. At that hearing, a representative of the Legal Aid Society, on behalf of Mrs. Chavez, brought the Baca decision to the hearing officer\u2019s attention. The reference to the Baca decision appears in the record of the administrative hearing.\nAccording to the letter of the executive director of the department dated June 19, 1972, the \u201cAppeals Review Committee\u201d had studied the transcript of that hearing. In denying Mrs. Chavez\u2019 appeal, the review committee wrote a legal opinion to the effect that the department was not required to provide public assistance under federal law. This opinion ignores state law and state decisions. This opinion is signed by a \u201cwelfare administrator,\u201d the \u201cchief attorney\u201d and the \u201clegal assistant to the executive director.\u201d The executive director adopted the recommendations of the appeals review committee.\nIn this court, Mrs. Chavez\u2019 brief in chief relies on and discusses the Baca decision. The department\u2019s answer brief ignores that decision. The department did not acknowledge the existence of the Baca decision until its attorney was specifically asked about the decision, from the bench, during oral argument.\nWe are not dealing here with a governmental agency that can plead ignorance of the Baca decision or that was without advice of counsel. The record charges HSS with knowledge of the Baca decision, at least from the time of the administrative hearing. The record shows HSS has proceeded with advice of counsel.\nIn this state of the record, I would have caused contempt citations to be issued by this court directed to the attorneys and high administrative officials identified of record to require an explanation of why HSS has systematically avoided acknowledging the existence of a decision to which HSS was a party, which decision was final prior to pertinent events in this case. Alternatively, I would have reversed the HSS decision in this case because of violation of Rules of Appellate Procedure. The refractoriness of HSS, disclosed by this record, should not go unacknowledged by this court.", "type": "concurrence", "author": "HENDLEY, Judge" }, { "text": "SUTIN, Judge\n(specially concurring).\nAll appeals to this court are based upon the record made at the fair hearing provided for in \u00a7 13-1-18, N.M.S.A.1953. Section 13-1-18.1 (B), N.M.S.A.1953 (Repl.Vol. 3, Supp.1971). For an indigent to recover Aid to the Disabled, this record must show an effective presentation of the indigent\u2019s case at the hearing.\nWe have authority to set aside the decision or order of the director \u201c. only if found to be: (1) arbitrary, capricious or an abuse of discretion; (2) not supported by substantial evidence in the record as a whole; or (3) otherwise not in accordance with law or department regulation.\u201d Section 13-1-18.1, supra.\nWhat is a \u201cfair hearing\u201d by a hearing officer in the manner and form prescribed by the State Board of Public Welfare as provided in \u00a7 13-1-18, supra?\n\u201c. . . The primary purpose of the fair hearing is to provide for any dissatisfied applicant ... an opportunity to assert his claim and to secure, in an administrative proceeding, equity of treatment in relation to the state\u2019s assistance laws and standards.\u201d Regulation 275.2. [Emphasis added.]\n\u201cThe right to a fair hearing includes the right to be advised of the nature and availability of such a hearing, to receive any needed help in preparing for or participating in it, to have a hearing zvhich ftdly safeguards his opporhmity to present his case. . . .\u201d Regulation 275.31. [Emphasis added.]\n\u201cResponsibility for conduct of the hearing is delegated to a hearing officer. . . . \u201d Regulation 275.32.\n\u201cThe claimant shall be given written notice of the date, time and place the hearing is to be held. He shall be given an explanation of the hearing process and of the procedures to be followed so that he will have sufficient time and a sufficiently clear understanding of what is needed, to prepare an effective presentation of his case and to secure witnesses or legal counsel, if he desires. The claimant must be advised that the agency has no provision for the payment of the costs of any legal counsel whom he may wish to secure. The County office, hozvever/zvill provide information and referral services to help the claimant avail himself of any legal services existing in the community that can provide legal representation at the hearing.\u201d Regulation 275.46. [Emphasis added.]\n(A) MRS. CHAVEZ DID NOT RECEIVE A FAIR HEARING.\nWe are bound by the record, made at the fair hearing, which comes to this court. Section 13-1-18.1 (B), supra.\n(1) Mrs. Chavez did not Have the Assistance of Legal Cotmsel.\nThe recoi'd shows that Mrs. Chavez was represented at the hearing by a law clerk of the Legal Aid Society of Albuquerque; Inc. The hearing officer knew this. A law clerk is not authorized to practice law before an administrative agency. The Legal Aid Society \u2019of Albuquerque has furnished legal services to Bernalillo County\u2019s indigents since 1947. It has a full-time director, eleven full-time staff attorneys and others, with three full-time law clerks. The reasons for free legal services are obvious. The machinery of justice operates through attorneys, and the poor cannot pay for their services. Krehbieh, Legal Aid; New Mexico\u2019s Unfulfilled Responsibility, 1 N.M.Law Rev. 299 (1971); see, Robb, Poverty Lawyers\u2019 Independence \u2014 Battle Cry for Justice, 1 N.M.Law Rev. 215 (1971).\nThe rules and regulations adopted by the State Board are manifold. The problems of procedure, the examination and cross-examination of witnesses, knowledge of law, are all solved by experienced attorneys. The assistance of counsel has been held a fundamental requisite of \u201cfair hearing.\u201d Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527 (1932); see, 35 C.J.S. at 598 (1960). The State Board had a duty to inform Mrs. Chavez that she should obtain legal representation at the hearing.\nThe hearing officer is a quasi-judicial officer. In this administrative hearing, the proceedings should be conducted as much in accordance with fundamental principles of justice and fairness as are judicial trials. Jones v. State Dept. of Public Health and Welfare, 354 S.W.2d 37 (Mo.Ct.App.1962).\nA review of the record on appeal shows that Mrs. Chavez, without legal assistance, did not receive a fair hearing.\n(2) Mrs. Chaves zttas not Informed of her Rights.\nThe record does not disclose that Mrs. Chavez was given an explanation of the hearing process or how to prepare an effective presentation of her case, nor any of the other rights to which she was entitled under the regulations, supra. Neither does the record show a proper investigation of Mrs. Chavez\u2019 application. Section 13-1-13, N.M.S.A.1953 (Repl.Vol. 3).\nThe decision and order of the director was not in accordance with law or department regulations.\n(B) MRS. CHAVEZ\u2019 INCOME DID NOT EXCEED HER NEED.\nThe director denied Mrs. Chavez assistance because there was no deficit between need and income as required by Regulation 231.84 for eligibility.\nRegulation 231.841 provides that total needs are determined by adding up the requirements for the budget group, i.e., shelter, $37.00; utilities, $19.00; one adult living alone, $60.00; for a total of $116.00 per month for a lone indigent. The director did not add on to this total need the medical needs of $30.00 per month which would make her needs greater than her income of $122.50. The department admits in its brief:\nA State plan must provide that medical assistance will be available to certain \u201ccategorically needy\u201d individuals. 45 C. F.R. 248.10(b)(1). The \u201ccategorically needy\u201d are those individuals who are in need under the State\u2019s standards of financial eligibility in the State\u2019s approved plan for categorical assistance, i.e., cash assistance for the . . . disabled. ... 45 C.F.R. 248.10(a)(1).\nBased on these rules, the department claims it can omit medical assistance because the state does not have a cash assistance program for Mrs. Chavez. She receives her income from social security benefits.\nThe department does not explain away Baca v. New Mexico Health & Social Services Dept., 83 N.M. 703, 496 P.2d 1099 (Ct.App.1972), directly in point. Until it is able to skirt around Baca, it has a duty to follow that decision. It must not arbitrarily or capriciously deny an indigent \u201creasonable subsistence compatible with decency and health.\u201d Section 13-1-16, N.M. S.A.1953 (Repl.Vol. 3).\nThe judgment of the department was arbitrary and capricious.\nThis judgment should be reversed.", "type": "concurrence", "author": "SUTIN, Judge" } ], "attorneys": [ "Joseph T. Sprague, Albuquerque, for appellant.", "David L. Norvell, Atty. Gen., James G. Huber, Agency Asst. Atty. Gen., Richard A. Griscom, General Counsel, N. M. H. S. S. D., Santa Fe, for appellee." ], "corrections": "", "head_matter": "507 P.2d 795\nOssie CHAVEZ, Appellant, v. NEW MEXICO HEALTH AND SOCIAL SERVICES DEPARTMENT, Appellee.\nNo. 983.\nCourt of Appeals of New Mexico.\nFeb. 2, 1973.\nRehearing Denied Feb. 26, 1973.\nJoseph T. Sprague, Albuquerque, for appellant.\nDavid L. Norvell, Atty. Gen., James G. Huber, Agency Asst. Atty. Gen., Richard A. Griscom, General Counsel, N. M. H. S. S. D., Santa Fe, for appellee." }, "file_name": "0734-01", "first_page_order": 890, "last_page_order": 894 }