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Law Services News - July, 2005

WE ARE PROUD TO ANNOUNCE THAT NASSAU SUFFOLK LAW SERVICES WAS CHOSEN TO BE FEATURED AS NEWSDAY’S “COMMUNITY CHAMPION” IN THE JULY 17, 2005 ISSUE!

The Legal Support Center for Advocates (LSCA) acknowledges the generous financial support of the New York Bar Foundation.

Message from the Executive Director

In our last newsletter, we described a “perfect storm” confluence of events which had tossed Law Services onto some treacherous financial shoals. Many of you responded with concern and support, for which we are extremely grateful. So, it seems only right to give you an update to let you know how we’ve fared.

The storm has passed, but the struggle is far from over. We are now operating under a balanced budget, although we did not reach that point without pain. We have approximately 20% less staff than we had a year ago, which occurred in part by attrition, but also as a result of layoffs. None of our units have been closed, but many are severely short-handed, given the demand for our services, which is unabated. We hope that our friends will be understanding if our intake policies are somewhat more restrictive as we work to restore staff.

At the time of our last newsletter, we reported that the Mental Health Law Project, which has operated in both counties for more than two decades, had been notified that our funding from the New York State Office of Mental Health would end in June. We have since been notified that while we will receive the OMH grant for the second half of the year, we must contract with the counties to provide these services in 2006 and beyond. We are working with the counties to ensure that services continue uninterrupted. Also on the “good news” front, the TANF funding for our Disability Advocacy Project which was eliminated in last year’s New York State budget has been restored in the new budget.

I wish to thank those of you who sent contributions, sent letters of support or made telephone calls on our behalf. I also take this opportunity to thank the Law Services staff for their unstinting efforts on behalf of our clients. Although we have fewer staff, there is just as much work to do, and it is because we have such talented and dedicated staff that it is getting done!

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Trust Preserves Medicaid Managed Care Plan

The Supplemental Needs Trust (SNT) can guarantee that critical Medicaid insurance is accessible and affordable to the most severely disabled. We reported on this invaluable financial planning tool in our September 2004 issue (p. 1, p.6) with an explanation and examples of how an SNT can eliminate a costly Medicaid spenddown (aka premium or overage).

In an interesting development, a client for whom we had previously arranged for an SNT, received a notice that due to “excess income” resulting in a spenddown, she could no longer be enrolled in a Medicaid Managed Care Plan. Though the client was informed that she could revert to “regular” Medicaid, she preferred the Managed Care plan. The client appealed the decision at an administrative fair hearing and argued through her counsel, Judy Kaslow, an attorney in our Hempstead Welfare Unit, that she should be permitted to participate in Managed Care. Nassau DSS argued that the “excess income” she paid into the SNT made her ineligible for this coverage. Ms. Kaslow responded that an SNT is an exception trust so that income diverted into the trust is a disregard under the statute. In fact, this is the very point of the SNT: to shelter the excess income from being counted as income for purposes of a Medicaid spenddown!

The Administrative Law Judge agreed stating that income diverted into an exception trust is not counted for eligibility purposes and cannot result in a spenddown (which was DSS’ basis for arguing Managed Care ineligibility). As a result of Ms. Kaslow’s competent representation, the client was able to keep her Medicaid Managed Care Plan. This Decision Hearing # 4080991J was selected as Fair Hearing of the Month by the Empire Justice Center (formerly known as the Greater Upstate Law Project). Congratulations Judy!

Written by Doug Ruff, Director of Litigation

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If Medicaid Denied, DSS Obligated to Explore Alternative Coverage Under FHP

The lack of medical insurance along with mounting hospital bills is a common and devastating story told by many of our clients and callers. But in two important Fair Hearing victories, our clients who are sick and required health insurance, won retroactive coverage under Family Health Plus (FHP) which spared them further hardship. This was especially significant because both clients were without health insurance for many months, one undergoing treatment for breast cancer, the other with a serious heart condition. Because both are single, non-disabled adults (though their conditions are serious, they are deemed non-disabled only because their impairment does not meet the 12-month durational requirement) they are not eligible for Medicaid with a spenddown. Therefore, even though they are only a few dollars over the Medicaid eligibility levels, they are not afforded the advantage of a spenddown or deductible. The applicants were also never evaluated for Family Health Plus eligibility, New York’s health insurance alternative for low income individuals

At their respective fair hearings, Nora Gonzalez, a paralegal in our Riverhead office, argued that when an applicant is denied Medicaid, the Department of Social Services (DSS) is required, pursuant to GIS Message 02 MA/033, to determine eligibility under Family Health Plus within the same time frames as Medicaid i.e. 30 days from the date of application for pregnant women and families with children, and 45 days for singles or married couples without children. Furthermore, when enrollment in Family Health Plus does not occur within 45 days due to agency delay, the applicant is entitled to reimbursement for out-of -pocket expenses from day 45 until the date enrollment is effective.

The Administrative Law Judge agreed that DSS did not properly follow through on evaluating eligibility for Family Health Plus for these applicants once it was determined they were ineligible for Medicaid because of either income or resources. DSS was ordered to reevaluate eligibility under FHP and if eligible, provide retroactive coverage which would pay back medical bills pursuant to the GIS Message.

Remember to ask your clients who are denied Medicaid whether DSS evaluated their eligibility for Family Health Plus as required. The agency’s failure to do this can often be the basis for a successful appeal.

Written by Nora Gonzalez, Paralegal, Welfare Unit

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DISABLED CLIENT WINS THE RIGHT TO SECTION 8 HEARING

Our Mental Health Law Project (MHLP) recently succeeded in saving a client’s Section 8 voucher after the Town of Hempstead terminated her participation in the voucher program without a prior administrative hearing in violation of federal regulations and due process of law. Jane Reinhardt, the Senior Staff Attorney for Nassau’s MHLP, commenced an Article 78 special proceeding in Supreme Court to get a preliminary injunction to immediately reinstate the voucher. Without this federal rent subsidy, the client could not afford housing, and she was in the process of being evicted from her current residence. After the Article 78 was filed and in hope of settling the case, Jane agreed with the Town to a post-termination administrative hearing on the issue of the Section 8 voucher termination. The Town Attorney was the judge at the hearing, and he decided that there was good cause to reinstate her voucher. The icing on the cake was a subsequent affirmative, although no longer necessary, Supreme Court decision in this case, Smith v. Victor, ordering the Town to reinstate the voucher because termination without a hearing had been illegal. So, the client won on all fronts and is now apartment hunting with the advantage of a rent subsidy.

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Mere Forgetfulness Does Not Warrant Benefits Cut

Recipients of public assistance are required to comply with work appointments such as evaluations, job search, interviews etc. as a condition of their ongoing receipt of assistance. As reasonable as these requirements sound, in practice we often observe that the rigid and unconditional imposition of the rules leaves little or no room for human error or mistake (at least not on the part of the welfare recipient!) More significantly, the penalty for a simple mixup and seemingly minor infraction is often a loss of the bare subsistence income that temporary assistance recipients rely on to pay their rent and provide food for their family. The “I forgot” defense is often just not good enough.

In a recent significant appeals decision, the court reiterated the standard necessary for imposing a work sanction/reduction of temporary assistance. The Appellate Division, Second Department in the case of Dost v. Wing (Index No 21222/03) has held that the Social Services Law requires that there be a finding that a recipient willfully and without good cause failed to comply with a work rule activity before it may legally discontinue temporary assistance and food stamp benefits. State regulations merely require a finding that the recipient did not establish a good cause reason for failing to comply with a work rule requirement. Yet, Social Services Law Section 341(1), which supercedes the regulations, requires a finding that the recipient’s failure is also willful.

In Dost, handled by Robin Sparks of the Welfare Unit in Islandia, the petitioner had forgotten about his appointment with the Department of Labor until later in the evening. The following day, he contacted the Department of Labor and the Department of Social Services to offer an explanation of the missed appointment and tried to reschedule it. Neither agency was willing to reschedule the appointment and instead took action to discontinue assistance and proposed to disqualify him from receipt of public assistance for 150 days and from receipt of food stamps for 4 months.

The appellate judges stated that the administrative law judge presiding over the fair hearing never made a finding that Mr. Dost “willfully” refused to report to his Suffolk Work Employment Program (SWEP) appointment. Dost “got the date of his appointment confused, and upon realizing his error, immediately contacted the agency to rectify it”. While the petitioner in his forgetfulness had not established a good cause reason for missing the appointment, since the Department of Social Services had not determined whether his actions were willful, the determination to sanction him was reversed.

Written by Doug Ruff, Director of Litigation

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The David Project Fights on Behalf of Clients with HIV/AIDS

Though Law Services is not specifically funded to provide Family Court representation in most cases (Legal Aid is designated to provide free representation for income-eligible clients in many Family Court cases in Nassau and Suffolk counties), the special funding of the David Project enables us to provide these desperately needed services to clients with HIV/AIDS. The David Project is funded by The Department of Health Aids Institute, the Ryan White Care Act through United Way and United Broadway Cares/Equity Fights Aids to provide legal advocacy to clients with HIV/AIDS on a variety of legal issues. Our attorneys, paralegals and social work staff work tirelessly on cases which stress families affected with HIV/AIDS.

One woman contacted our office for help in regaining custody of her daughter. Though there was an existing 1995 custody order granted to our client, she had not been able to enforce it. Instead, a family friend had physical custody of her child in violation of the order. The client did not discover the child’s whereabouts until May, 2004 and due to her financial situation, could not afford an attorney to represent her. Once she found her daughter, she sought the assistance of Corinne Lundstrum in our David Project. A petition for writ of haebeus corpus was signed by the judge and the child was soon produced in Family Court. The mother was then awarded permanent custody reuniting the two after many years.

In a complicated eviction case where a landlord brought a nonpayment action to evict a family of 6, three of whom were HIV positive, the attorney managed to preserve the housing in spite of the obstacles. The landlord claimed the family owed over $6,000 in unpaid rent but records from the Department of Social Services and Section 8 proved that the landlord had been paid all but $2,500 of the rent. In court, the client signed a stipulation to pay the correct amount of rent arrears after applying to DSS for the funds. However the problems were not over for this family. Due to delays, DSS issued the check to the landlord after the stipulation had expired and the landlord proceeded with the execution of the warrant of eviction anyway resulting in a 72-hour notice being served by the sheriff. The attorney then prepared an Order to Show Cause to stay (delay) the eviction which was signed by the judge and ordered the landlord to accept the rent arrears and withdraw the warrant of eviction, thus preserving the housing for the family.

Written by Corinne Lundstrum

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Vicky Osk – Guest Speaker at The First Annual Women’s Conference

Vicky Osk, Senior Staff Attorney in our David Project, was recently invited to speak at the First Annual Women’s Conference held at the Huntington Town House. The Women’s conference was presented jointly by The Suffolk County Executive’s Office of Women’s Services and The Suffolk County Women’s Advisory commission. Vicky’s presentation included a discussion on foster care and termination of parental rights. The conference was a huge success offering valuable information to women of all walks of life.

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Courts Tells DSS: SSI Must be Invisible when Budgeting Families

The elimination of SSI “invisibility” has meant lower public assistance grants for families containing SSI recipient members. As we reported in our September 2004 issue, the new regulation, 18 NYCRR Section 352.2(b), now requires a reduction in the public assistance grant to account for the SSI recipient’s separate income. The Public Interest Law Office of Rochester and the Greater Upstate Law Project (which have merged to become the Empire Justice Center), along with several other public interest law offices, filed a lawsuit entitled Doe v Doar to declare the rule illegal and to direct the state to return the money to everyone who was incorrectly budgeted.

 On July 13, 2005,  Justice David Egan of Monroe County Supreme Court certified a statewide plaintiff class consisting of households with children where at least one member receives SSI benefits and one member receives public assistance, and held that 18 NYCRR 352.2(b)  is an invalid regulation because it violates state statutory provisions. The state law prohibits the consideration of  SSI benefits when determining eligibility for or the amount of public assistance benefits. The court ordered the attorneys to develop a stipulated remedial plan within 45 days that will restore all benefits lost to class members since the regulation took effect in July 2004.

A similar victory was recently won in Matter of Melendez v. Wing, a decision in the Appellate Division, First Dept. The decision held that the current regulations eliminating SSI invisibility when calculating the E-5 HIV/AIDS shelter allowances for families with children, “are in conflict with Social Services Law Section 131-c”. This decision along with Doe have positive implications in budgeting SSI for families with children on Long Island.

We are not sure how long it will take to see the impact of the court decision and encourage anyone who has received a notice and had their family ‘s public assistance budget adjusted due to SSI income, to request a fair hearing and call Nassau Suffolk Law Services for advice and direction. These fair hearings may not be immediately successful but it pays to appeal so that the State’s computer system will be more readily able to identify these appellants for retroactive payment. All fair hearing decisions in these cases, even if unsuccessful, can be forwarded to Susan Antos at the Empire Justice Center 119 Washington Ave. Albany, NY 12210. Persons who had their public assistance reduced, but did not request a fair hearing should send their name, address, case # and reduction notice to Ms. Antos who can also be contacted at: santos@empirejustice.org

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MEDICARE PRESCRIPTION DRUG PROGRAM “PART D” IS PHASING IN

The Medicare Prescription Drug Program Part D is due to begin in January 2006. There has been discussion of the impending program and some questions and confusion.

Here are some of the facts:

The Medicare Prescription Drug Plan will be offered through private prescription drug companies or Medicare Advantage Plans

Initial enrollment will begin 11/15/05-5/15/06.

Medicaid/Medicare recipients (includes SSI/SSD dual recipients) will be enrolled automatically and their Medicare prescription coverage will start 1/1/06 replacing the Medicaid prescription coverage they now get. Non-prescription Medicaid coverage will remain intact.

For those not automatically enrolled in Part D, applications will be taken until 5/15/06 for coverage beginning 6/1/06

Those who choose to postpone enrollment could face higher premiums if they change their mind in the future

There are premiums, deductibles and copayments that apply to the Medicare prescription drug coverage but “extra help” is available to pay for these costs for low income people so that it should not cost more than Medicaid did.

“The Extra Help” groups are: (1) those who get full Medicaid without a spenddown (2) those who currently get their Medicare premiums paid under QMB, SLMB, QI-1 plans (these groups are automatically eligible for the drug plan and don’t have to file an “Extra Help” application), (3) low income Medicare beneficiaries whose income is below 150% of poverty and have limited resources (this group must file an application for the Extra Help). Depending on the “Extra Help” income category, the Medicare Prescription program will require low or no premium, deductible and/or copayments.

Enrollment in Part D is done directly with the drug plans and will mean making choices.

Advocacy Tips: The Extra Help or Low Income Subsidy is extremely important, but for those who will not be automatically enrolled and have to file the application, it may get a little complicated. Advocates should be on the lookout for these seven-page applications and call us if they need direction in helping their clients fill it out.

Supplemental Needs Trusts (see p. 1) can also help a low income client reduce their income below the applicable poverty levels so that they get help to pay their premiums (QMB,SLMB,QI-1) These plans help to pay the cost of the Medicare premium,which is now about $78 per month, but will also get recipients in the back door to be automatically enrolled in the Medicare drug program.

Mailings to look for:

May 2005: Medicare/Medicaid recipients (dual eligibles) should have received notices informing them they would be getting their prescription coverage through Part D starting in January 2006 and that the Low Income, (extra help) subsidy would be automatic.

June 2005: Those on QMB, SLMB. QI-1 (these are the Medicare recipients who currently get their Medicare premium paid for them by Medicaid) should have gotten their information about Part D transition.

October, 2005: Dual eligibles (Medicaid/Medicare) will receive a notice that they will be automatically assigned to a drug plan unless they choose their own plan before the end of the year.

For more information visit www.medicarerights.org.

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Social Security Eases Income and Resource Rules for SSI

Supplemental Security Income (SSI) is a federal entitlement program which provides minimum monthly income for disabled low income persons over age 65, the blind, or disabled. It is a need-based program; as such, the actual amount received per month will depend upon not only resources but also upon other income and living arrangements. The Social Security Administration considers all types of income that comes to the SSI recipient that can be used to meet the beneficiary’s needs. Income may be earned or unearned, in cash or in-kind. “In-kind” income is basically the value of a gift or service received yet paid for by someone else. SSA’s rationale is that the SSI grant is specifically earmarked to pay for the basic necessities of life. The agency views certain “in kind” contributions as diminishing the Federal government’s obligation to meet these needs.

In March, 2005 Social Security law changed concerning SSI income and resources. It now reads "Income is anything you receive in cash or in-kind that you can use to meet your needs for food and shelter." Gifts of clothing will no longer count as income for determining eligibility for SSI benefits. The new rule also excludes from resources all household goods and personal effects regardless of value. This compares to the present exclusion, which is limited to the first $2,000. Also excluded from resources is the value of one automobile regardless of value "if it is used for transportation for the individual or a member of the individual's household". The old rule limited the automobile to the first $4,500 of the automobile's market value unless it was used for a specific purpose, such as for employment or for medical treatment.

Written by Candace Scott Appleton, Senior Staff Attorney, Disability Advocacy Project

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Volunteer Attorneys Recognized for Their Work

Nassau’s Recipient

Even after earning his J.D. in 1988, John M. Zenir, Pro Bono Attorney of the Month for June 2005, did not intend to become a full-time attorney. He was still busy with the family business that he had developed starting in 1973. Although he had a long-standing interest in criminal justice and had earned an M.A. in the field from John Jay College of Criminal Justice in 1972, his interest in studying law developed later as he faced the legal questions that arose in both his business and volunteer activities. He kept working in the business even after he sold it in 1991 and had the law degree, which he earned from the Jacob D. Fuchsberg Law Center of Touro College. It was only in 1992 that he began to practice law full time.

As soon as his law practice started, Zenir began his pro bono work through both the Nassau Bar’s (NCBA) Volunteer Lawyers Project and the Pro Bono Project in Suffolk County, receiving the 1995 Pro Bono Attorney of the Year Award in Nassau County and one of the 1994 Pro Bono Attorney of the Month Awards in Suffolk. Since 1995 alone, his 312 pro bono hours in fourteen cases indicate his commitment to representing the indigent.

Zenir currently sits on NCBA’s Board of Directors, chairs its Family Court and Procedure Committee, and is a member of its Judiciary and Matrimonial Committees. In 1997-99 he chaired the NCBA Lawyer Referral Committee. He is also a member of the Suffolk County Bar Association, the New York State Bar Association and its Family Law, Matrimonial Law, and Children and the Law Committees. In addition to these bar association posts, he is a member of the Board of Directors of the Legal Aid Society of Nassau County. John M. Zenir’s long, outstanding service to Nassau County’s indigent citizens make him a most deserving recipient of the Pro Bono Attorney of the Month Award. It honors the Volunteer Lawyers Project to honor him.

Suffolk's Recipient

For Leif I. Rubinstein, Pro Bono Attorney of the Month for June 2005, working with indigent clients through the Pro Bono Project is a treat. "When you’ve had a bad day, you take a pro bono case and you feel better," he declared. This attitude surely accounts for the 297 hours he has devoted to 130 cases since January 2000, the last time he was named Pro Bono Attorney of the Month. Although short interviews with clients at each bi-monthly Bankruptcy Clinic account for most of these cases, he often takes on Chapter 7 bankruptcy cases to follow through to completion after the Clinic. At the moment he is working on nineteen such cases accepted between April 2004 and February 2005.

He maintained that paying clients treat their attorneys differently from those receiving pro bono representation. One of his current clients, is an eighty-two-year-old woman on disability caring for her eighty-six-year-old husband who has Parkinson’s disease. When he told her he would take her case, she gave him a big hug and kiss.

After graduating from Queens College he attended Hofstra University School of Law, receiving his degree and being admitted to the New York State Bar in 1978. A member of the Suffolk County Bar Association, the New York State Bar Association, the American Bankruptcy Institute, and an associate member of the National Association of Chapter 13 Trustees, Rubinstein serves on the Board of the Suffolk County Bar Pro Bono Foundation. In 2001-03 he co-chaired SCBA’s Bankruptcy Committee. He has been a solo practitioner in Lake Ronkonkoma since 1980.

Rubinstein views the new bankruptcy law, which goes into effect next October, as a "disaster." It will make filing for bankruptcy very difficult for the Bankruptcy Clinic’s clients. His eighty-two-year-old client struggling to get through each day, with no interest in extravagant purchases, hardly needs a consumer debt education course, which she would have to take, and possibly pay for, under the new law. The onus put on pro bono attorneys is also "scary," for they must verify the information given by clients and could be held liable for error.

Attorneys like Leif I. Rubinstein, who are dedicated to assisting people who have nothing and nowhere else to turn, account for the success of the Pro Bono Project. It honors the Project to honor him once again as Pro Bono Attorney of the month.

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Litigation Roundup

Matter of Windmill Housing Development Fund Co., Inc v. Winchell.
New York State Supreme Court, Appellate Division, Second Department

The landlord petitioner brought this proceeding to recover possession of a federally subsidized Section 202 apartment. Our client, the tenant, moved into the apartment in 1994 with the knowledge and consent of the landlord, to care for his elderly mother who had suffered a stroke. She had been a tenant in the apartment since 1987.

After the mother died, the landlord sought to evict the surviving son relying upon the current version of Section 202 of the Housing Act of 1959. The law, which had been amended in 1990, no longer provided for succession rights. However, two of Law Services’ attorneys, Meridith Nadler and Jane Schiano, successfully argued that the earlier version of Section 202 applied in this case. Prior to the 1990 amendments, the term “elderly family” was defined as including the surviving member of a family “who was living in a unit assisted under this section, with the deceased member of the family at the time of his or her death”.

The court agreed that the tenant was entitled to succeed to his mother’s possession of the subsidized apartment because he was a surviving member of his mother’s family living with her at the time of her death.

Meridith Nadler and Jane Schiano represented the tenant.

LSCA’S Q & A

Advocate Question: My client is going to court on an eviction proceeding. He is a Section 8 tenant. He raised the money to pay the rent arrears but the landlord is also suing for late charges and attorney fees in the course of the nonpayment proceeding. My client can’t raise the money for these additional charges. Will the landlord win?

LSCA’s Answer : Landlords of Section 8 tenants are not entitled to late charges and legal fees from a Section 8 tenant in a summary proceeding. 42 USC Section 1437a(a)(1); Port Chester Housing Authority v Turner 189 Misc2d, 603. This defense should be raised in court because if the tenant can come up with the full amount of the rent owed in this nonpayment proceeding, the payment of the arrears should mean a “win” for the tenant regardless of the fact that he does not pay the late charges and legal fees being claimed by the landlord.

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