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Law Services News - September, 2005

Child Support Burden Lifted for Impoverished Adult Home Resident

Our client in this case is an adult home resident, who divorced shortly before a serious suicide attempt, and has battled significant mental illness since that time.  In his divorce proceeding in which he represented himself, he agreed to pay $1,250 per month child support. Shortly thereafter, he became totally disabled and was unable to work.  He moved to Florida and lived with his grandmother who supported him. He returned to Nassau County after his grandmother’s death.  During his residence in Florida, two default judgments for child support arrears were entered against him. Although his former wife was well aware of his serious mental illness, she did not notify the court of this fact.

After his return to New York, he applied for and received Social Security Disability, 65 percent of which was almost immediately garnished for the child support arrears leaving him with insufficient income to even pay his housing costs. He began accruing rent arrears and the adult home commenced eviction proceedings. Carolyn McQuade, staff Attorney of the Adult Home Project moved to vacate the default judgments because our client was significantly disabled when the default judgments were entered and no guardian was appointed for him. 

The motion was denied by the Family Court in Nassau County. The Hearing Examiner ’s decision found that our client failed to act to set aside the stipulation of settlement with regard to the divorce, that he did not contest the divorce, and that he never affirmatively requested a guardian ad litem.   The decision held that pursuant to the language of the stipulation of settlement, the respondent was given an opportunity to seek counsel and elected to represent himself. Therefore, despite his multiple suicide attempts and obvious, serious mental illness, it was determined that he entered into the stipulation freely and voluntarily and that the stipulation included language which asserted that each party “understands and assents" to all the provisions of the stipulation.

Ms. McQuade filed objections but the Family Court judge held that the defendant failed to establish a “change of circumstance” (the usual standard applied in modifying child support orders) since the date of the parties’ divorce. The client’s "papers indicate that he has suffered from a long psychiatric history dating as far back as 1993, approximately 4 years prior to the entry of the parties Judgment of Divorce"  therefore there was no change in circumstance! At that time, Ms. McQuade along with assistance of Barbara Liese, Staff Attorney, Mental Health Law Project, filed an appeal.

Thankfully, the Appellate Division reversed, on the law and as a matter of discretion, sustained the objections, granted the petition, vacated the judgments, and remitted the matter to the Family Court, Nassau County, for further proceedings.  The appellate court held that the judgments should have been vacated because no inquiry was held as to the possible need for the appointment of a guardian ad litem for the father. "When read together, CPLR 1201 and 1203 require, before a judgment may be entered on default, such an appointment for an adult who is incapable of adequately protecting his or her rights."

Congratulations to the McQuade/Liese team for a job well done in vacating a $38,550 judgment!

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Schools Open—No Child Left Behind

As an update to our previous articles on the case of NLCHP v. State of New York (see 12/04 issue), the State and County defendants are about to sign off on an agreement that protects all homeless school children in Suffolk*. It is important for these families in Suffolk to know that now Suffolk DSS :

1. Cannot require that homeless children be present and sit all day in the local DSS center while waiting for housing (after the first 24 hours of their initial emergency housing placement.)

. Must provide some kind of transportation to get a homeless child to school (by bus, van, taxi, etc.) after two business days, when a homeless family is in non-stable emergency services (ES) housing (where the placement changes daily).

3. Must excuse a parent or guardian from any DSS attendance or other requirement that they are likely to miss if DSS is also requiring them to accompany their child to school (in the taxi, van or other transportation.)

4. Must provide transportation for a homeless child placed in stable emergency housing (like a shelter) starting with the third day after the child is in the DSS system. If the child started out in an ES emergency housing placement and has ALREADY missed school (see #2 above) the clock starts to run on the day the child entered that first emergency housing placement, not the day the child was placed in stable emergency housing. (This should avoid excessive absences caused by successive emergency housing placements.)

5. Must provide transportation to school by the very next school day, whenever a homeless child is moved from one shelter placement to another as part of a planned move (since DSS knows of these moves ahead of time, planning for transportation is a reasonable expectation.)

6. Must provide transportation to school no later than the second business day when a homeless child is moved after 2:00 PM in the afternoon because of unforeseen but compelling circumstances (e.g. If the child is moved Monday evening there has to be transportation NO LATER than Wednesday morning.)

7. Must provide transportation for any before-school, after-school, summer school or extracurricular activities or free meal programs that are provided by the school district to other non-homeless children.

8. Must place homeless families with school-aged children as close as possible to their school district of origin, if available and appropriate, and must document the reason or reasons why the family was placed in a different district.

If you see any homeless clients experiencing school attendance problems due to lack of transportation, please call Law Services immediately. Again we congratulate the attorneys at Goodwin Proctor, Long Island Advocacy Center and the National Law Center on Homelessness for their success in this landmark case.

*The school district defendants in the case agreed to a settlement months ago.

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Changes in Medicaid and Family Health Plus

As of August 1, 2005, co-payments for brand name drugs will be increased from $2 to $3. For generic drugs the co-pay will be increased from 50 cents to $1. The annual limit on co-payments has increased from $100 to $200.

Remember that Medicaid recipients who tell their provider that they can’t afford the copayment, cannot be refused the service due to an inability to pay. Providers that fail to comply with this rule should be reported to the Medicaid Copayment Complaint hotline at 1 800 541-2831.

For Medicaid recipients who also have Medicare (dual eligibles), when the Medicare Drug law goes into effect on January 1, 2006, pharmacies do not have to waive co-pays for Medicare Part D. Co-pays for those on Medicaid/Medicare, who receive the extra subsidy, will range from $1 to $5. The pharmacy may still waive these co-pays for dual eligibles upon request as long as they do not advertise their waiver policy.

There are also changes to Family Health Plus, the alternative health insurance program for people under age 65 who do not have other insurance.

Asset Limits - For the first time there are assets limits for this program. These limits apply to new applications signed and filed after August 1, 2005, and to recertifications on existing cases where reauthorization will be effective on or after August 1, 2005. These limits are higher than Medicaid but still will disqualify many people.

Co-payments - As of September 1, 2005, people on Family Health Plus must pay copayments. As with Medicaid, providers may not refuse services to Family Health Plus enrollees who are unable to pay, but may bill the consumer for the co-payment.

Exceptions - There are no co-payments for these services: emergency services, family planning services and supplies, mental health clinic visits, chemical dependence clinic visits, psychotropic drugs, TB drugs, prescription drugs for Department of Health licensed adult care facility residents.

Those under the age of 21, pregnant woman, nursing home residents, OMH and OMRDD facility residents will not have to pay co-payments.

For more information regarding co-payments visit http://www.wynlc.net/pb/docs/Copayments_ 2005.pdf

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STATE ORDERS SCDSS TO ASSIST DISABLED ON SSI FACING UTILITY SHUTOFFS

When disabled people on SSI (Supplemental Security Income) are in danger of having the power shut off, they should apply for Emergency Assistance to Adults (EAA) from DSS (Department of Social Services.) If they can show that they do not have the income or resources necessary to take care of the emergency situation, and they are the tenant and customer of record, DSS is supposed to make a four month payment of utility arrears to stop the shut off. DSS should also issue a guarantee of payment (promise to pay LIPA if the SSI recipient does not) for the succeeding 6 months.

Before applying for EAA (Emergency Assistance for Adults) applicants must try to make a repayment agreement with the utility company (LIPA). This should be a reasonable, realistic repayment agreement not a wishful, "pie-in-the-sky" one. If they can’t realistically handle a repayment agreement or they don’t have the income or resources sufficient to make a large initial payment and enter into a realistic repayment agreement, they are eligible for EAA and the SSI guarantee.

In the last few months we have seen a number of cases where DSS has denied assistance to prevent a shut off, claiming that the client’s "income exceeds determined needs”. What DSS is claiming in these situations is that it has decided that the client should have the money available to stop the shut off even if they don’t REALLY have the money.

One severely disabled home-bound client had a great deal of unmet medical needs. DSS did not take these needs into consideration when they denied her EAA. Another client was sent back to LIPA by DSS even though Law Services attorney Mike Wigutow won a Fair Hearing Decision in which New York State ordered DSS to assist the client in any negotiations with LIPA.

People who are receiving SSI are severely disabled under federal law. Under the state EAA law, local DSS has a responsibility to assist these clients and help them avoid living without lights and heat this winter. Be sure to contact the Center for Advocates if you see a client with this problem.

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HELP FOR KATRINA EVACUEES

We have all followed the devastating effects of Hurricane Katrina. Some of our agencies may start to hear from these displaced families who have nothing and are seeking assistance. NYS Office of Temporary and Disability Assistance has issued a General Information System memo (GIS 05 TA/DC027) directing the local DSS offices to treat applications of “Refugees from Hurricane Katrina” as priorities. Usually applicants claiming an immediate need must verify identity, household composition, and citizenship, however Katrina families may not have this documentation. The State directs the local districts that if this documentation is not available, a written declaration from the applicant or the statement of the household with whom they now reside or from other friend or family will suffice. This statement may also be used to verify that the family lived in an area affected by Katrina. In the weeks and months ahead we hope to work together with community agencies to assist our southern neighbors in this dire time of need.

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Mental Health Law Project Crisis Heats Up Again

A few issues back, we informed you of a crisis in the Mental Health Law Project, when the New York State Office of Mental Health (NYS OMH) issued a letter notifying us that our grant would end June 30th of this year. The immediate crisis passed when OMH decided to continue funding until the end of the year, and indicated that future funding for legal services would be issued through the counties, via RFPs* for which we would be eligible to apply. Satisfied that this gave us a strong possibility for continued funding, we reopened intake for the Mental Health Law Project and took steps to restore staff positions which had been vacated and not replaced during the crisis.

Unfortunately, we have now re-entered a period of uncertainty. We recently learned that although at least one of the two counties has been actively preparing an RFP for the OMH funding they understood they were to receive for legal services, NYS OMH has not taken the steps necessary to make that funding available, it is unclear whether in fact it will do so, or if so, when.

As we emerge from a period of budget cuts and consequent staffing cuts, Law Services does not have resources which can be used to “tide us over” if there is an interruption in the funding that has supported our Mental Health Law Project for 25 years. Without some assurance within the next month or two that funding for legal services will be available in some form next year from OMH, we will be forced to again take the preliminary steps necessary to close down the unit by the end of the year, including closing intake and reassigning staff. Obviously, we are reluctant to do this.

At this point, we believe that the best hope for getting OMH to act so as to make the funds available would be pressure from the counties. You can help by letting OMH and your county commissioner know how important legal services are to your clients. Thanks for your continuing support.

Written by Beth M. Wickey, Senior Staff Attorney, Managing Attorney—Islandia Office
*Request For Proposal

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Domestic Violence Unit Receives Huge Cut in Funding

It is with great regret that we inform you that the Domestic Violence Unit will no longer be able to represent victims of domestic violence in matters of divorce. This applies to those clients who have been served with divorce documents, (defendants), as well as those seeking to initiate an action for divorce, (plaintiffs). Our funding source, the Suffolk County Department of Social Services, has reduced our grant by nearly $90,000 for the year 2006, making it necessary for us to further reduce our staff. We will now only be able to represent clients in a limited capacity.

Our agency will still accept referrals to our Domestic Violence Clinic where we assist clients in obtaining Orders of Protection. We will also continue to represent clients in a limited number of Custody and Neglect issues as they arise within the context of obtaining an order of protection.

Due to the length of time it takes to complete an action for Divorce and the reality that many of our current cases will continue well into the future, we have ceased taking any new referrals as of September 1, 2005. Our Pro Bono unit’s waiting list is already several years long and unfortunately we are not aware of any alternative no-cost legal services for divorces.

As you know, we take our agency’s motto, “Equal Justice Under the Law, a basic right of all Americans,” seriously. Therefore, we will do everything in our power to convince Suffolk County that this funding must be restored so that we can continue to represent those in our society who are most vulnerable.

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Pro Bono Attorney of the Month: Lewis A. Silverman Mentoring Others to Provide Pro Bono Services

By Rhoda Selvin

For his special mentoring efforts on behalf of the Pro Bono Project’s (PBP) divorce clients, Professor Lewis A. Silverman, Director of the Family Law Clinic at Touro Law Center in Huntington, is the Pro Bono Attorney of the Month for September 2005. That PBP has honored Silverman twice before--in January 1996 and September 1999--is understandable when one considers that he has devoted 2,070 hours to his pro bono work since the latter date.

In 1999 Silverman had coordinated three clinics for pro se litigants seeking divorce; but the project subsequently languished. Seeking to revive it in 2003, he worked for almost a year with Miriam Pismeny, PBP’s Managing Attorney, Lynn Poster-Zimmerman, then president of the Suffolk County Women’s Bar Association, and Margery Weinroth of the SCWBA Board, planning for the renewed clinic. His students in the Family Law Clinic helped by screening potential clients for eligibility. After all this preparation, the Self-Help Matrimonial Clinic was held in May 2004, with fifteen clients matched up with fifteen volunteer attorneys. Silverman presented an overview of New York divorce law and procedures to those assembled, then worked individually with the pairs to resolve specific problems.

The volunteer attorneys produced typed or computer-generated forms and agreed to assist the client in the filing and service of process stages. Over the year following the clinic, Silverman continued to serve as mentor for the volunteer attorneys, several of whom were not matrimonial practitioners. He also accepted one of the clients for direct representation by the Family Law Clinic, because her specific problems were too complex for the client to continue on a pro se basis.

Silverman’s PBP mentoring work goes beyond his availability to the Self-Help Clinic’s volunteer attorneys. In the past year, PBP established a partnership with the Legal Department of Computer Associates in Islandia for its attorneys to accept assignment of cases from PBP’s plaintiffs list. Since matrimonial work is outside of the normal practice of these attorneys, Silverman agreed to serve as mentor. He began last June with a PowerPoint presentation to the Computer Associates attorneys and paralegals on divorce law and procedure in New York. Since then he has answered several questions and critiqued several divorce forms for them. “I hope that the availability of mentors like me will encourage other attorneys to volunteer their time and legal services to these clients. I do expect, however, that the anticipated move of Touro Law Center to Central Islip next August will allow the Family Law Clinic to provide more direct services to pro bono clients.”

Silverman, after receiving his J.D. degree from Boston University School of Law in 1976, served as Assistant Suffolk County Attorney, rising to Supervising Attorney of the Abuse/Neglect Unit and Deputy Family Court Bureau Chief. In October 1985 he was appointed Family Court Hearing Examiner and had several of his opinions published in the New York Law Journal. During most of his tenure he also served as president of the New York Hearing Examiners Association, and his comments were solicited by the Legislature and Governor’s office when the Child Support Standards Act was being drafted.

In January 1995 he became Director of Touro Law Center’s new Family Law Clinic, where he oversees students as they represent victims of domestic violence in obtaining Orders of Protection (in conjunction with the Domestic Violence Project of Nassau/Suffolk Law Services, Inc.). Students also represent custodial parents in child support proceedings and divorce clients from the PBP list. Since September 1999 he has worked with his students on sixty-five of these PBP cases. He also teaches courses in Family Law, Civil Procedure, Sexual Orientation and Law, and Pre-Trial Litigation; and he has published numerous articles on related topics.

Because his contributions as mentor to volunteer attorneys as well as to students have been invaluable for its work, the Pro Bono Project basks in reflected honor as it names Lewis A. Silverman Pro Bono Attorney of the Month once again.

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Profiles in Commitment—Carole Benjamin

With this article, we begin a series of profiles of staff members who take their commitment to the community beyond work hours and beyond the doors of Law Services. In this way, we hope to give the readership insight into the kind of dedicated people we have on staff, while giving the individuals profiled a little of the recognition they deserve. Look for your favorite Law Services staff member in future issues!

With a winning smile and energy enough to power a small city, Carole Benjamin’s work doesn’t end when she leaves her job each day as Social Worker in our David Project. She devotes her “leisure time” to an impressive number of organizations and causes.

Carole serves on the Suffolk County Advisory Committee for Women’s Services, which focuses on an array of women’s issues, and Carole is especially involved in the Commission’s goal to improve the foster care system. Carole also serves on the Board of Directors of the League of Women Voters of Smithtown. There, she is particularly interested in the League’s advocacy of more treatment programs as an alternative to creating an additional jail in Suffolk. She is also Assistant Secretary for the Islip Town NAACP, Assistant Secretary of the Islip Town Black Republican Club and Secretary for the Association of Black Social Workers of Nassau and Suffolk Counties.

As if all of this were not enough, Carole - who works with Law Services clients who are HIV+ or have AIDS - is also deeply involved with the HIV community, as part of the Suffolk County HIV Care Network and the Women and AIDS Coalition of Suffolk. With two degrees in Public Administration in addition to her MA in Social Work, Carole is putting all of her knowledge and skills to work to help make positive changes on Long Island.

Asked why she devotes so much time and energy to the community, Carole credited her upbringing. Her parents and especially her grandmother were activists. Community service is certainly a family affair for Carole. Her husband, Darryl Samples, is a Trustee of the Village of Islandia, and serves as a Captain in the U.S. Army and a Vice President of the Islip Town Black Republican Club. Her children are actively involved in the community, as well, having taken to heart her admonition that you have to give something back to the community.

Carole likes to repeat to her children what her mother always said to her, “When you die, you want the next generation to know you were there, and the way you do that is to make changes that make a difference in their lives.” Without a doubt, Carole is making a difference in the lives of many Long Islanders.

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We Can’t Thank You Enough

Thanks to the initiatives, of Rick Stern, The Suffolk County Bar Pro Bono Foundation raised $20,000 for Nassau/Suffolk Law Services Pro Bono Project by running a raffle. "I had observed a limited-share raffle in other organizations and thought it might be a very good vehicle for us to raise money," Stern explained. "It reflects an opportunity to make a donation to a good cause and also maybe win; yet we could keep our expenses low."

Due to Stern’s hard work and the hard work of others, the raffle surpassed expectations for several reasons. "Several people," he continued, "still contributed after the original one hundred $300 tickets were sold; several winners donated money back; and the delicious catering [for the reception at which the drawing took place] was provided compliments of Fireside Caterers." Stern insisted on sharing the credit. "I don’t want to be singled out," he said, resisting the idea of being rewarded for the raffle. "Many people, especially on the Board, extended themselves to family, friends, and business associates to donate. They made phone calls at the end of the drive to push people into sending their checks. George Roach was terrific as emcee."

Especially gratifying to Stern was the reaction of Jeffrey A. Siegel, Executive Director of the Nassau/Suffolk Law Services Committee, Inc., which administers the Pro Bono Project, upon receiving the check. Not only would the $20,000 cover PBP’s 2005 shortfall, Siegel told him, but $7,000 will be applied to next year’s budget.

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We Can’t Thank You Enough

On Thursday, July 28, Law Services staff from all our offices enjoyed the First Annual (we hope!) Staff Get-away Picnic at Sunken Meadow State Park. We must be doing something right, because the oppressive heat and humidity of the preceding days broke into a glorious, perfect summer day - the kind that reminds us why we love Long Island! The birds were singing, the turtles were swimming and the hot dogs and hamburgers were sizzling! There was plenty of time to chat and discover that we have lots in common with each other besides work, and time to admire each other’s children and grandchildren, some of whom were able to attend. We also had a chance to show off our competitive spirit in games such as tug-of-war, volley ball and sack races. Honorable mention goes to Tom Kirdahy of our David Project, who stunned us all with his heretofore unknown talent in the sack race!

Throughout a difficult year of budget and staff cuts, the staff has demonstrated its commitment to Law Services’ mission by pulling together and working hard to minimize the effect of these cuts on our clients. They deserved this day of relaxation and recognition for their efforts, and by all accounts, everyone thoroughly enjoyed it. Thanks to all the members of the Labor-Management Committee for organizing this wonderful day, and special thanks to MIS/Office Administrator Nancy Green and to Bill Bode of the Civil Unit for spending so much of their get-away day cooking for the rest of us! May we sign you both up for Chef’s duty again next year?

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Congratulations to Jeffrey Simes - Pro Bono Lawyer of the Year

Congratulations to Jeffrey Simes, partner at Goodwin and Procter, for being selected by the American Bar Association as the Pro Bono Lawyer of the Year!

You may remember Jeffrey’s name from the filing of a lawsuit on behalf of homeless children in Suffolk County under the Mckinney-Vento Homeless Assistance Act and the right to go to school. He, along with the Long Island Advocacy center worked closely together on this case. While living in the shelter, children of homeless families were faced with many obstacles which included enrolling in school, continuing their education at their original school, and bussing problems which prevented them from going to school.

For more information regarding the status on the settlement of this lawsuit and the educational rights of homeless children, please see article entitled “Schools Open—No Child Left Behind”.

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More Sad Goodbyes

Karen Fiumano - Law Services sadly reports the resignation of Karen Fiumano, a staff attorney with the Nassau Mental Health Law Project from March, 2003, through August, 2004. Karen gave her cases thorough and prompt attention and, nonetheless, found time to work on organizational issues such as Law Services’ intake system and its maintenance of resource materials. As much as anyone who has ever worked at Law Services, she made us feel like a family, working on office-wide and program-wide events that improved communications among staff, and offering others help with difficult clients and cases. We wish her success in her new career of private practice.

Toks Sofola - Toks Sofola left Law Services in March of 2005, after almost eight years as a staff attorney in the Nassau Mental Health Law Project. Toks was a persistent, poised, and practical advocate with considerable expertise in the laws concerning Social Security benefits, welfare, family court, and eviction. She was unstinting in pursuit of the best results for her clients–litigating fiercely, providing personal support that was almost social work, and making as many house calls as needed to bring timely help to them. She devoted her “spare time” to her daughter, Molly, and the international cause of women’s rights through work at the United Nations. We miss her greatly and know that her new clients in private practice are very lucky to have her services.

Susan Kemp - A tremendous loss to Nassau’s Senior Citizen Law Project occurs with the resignation of Susan Kemp, who started with us in November, 1995, and will leave in October of 2005. Sue has been our in-house expert on seniors’ issues. Not only does she know all the things lawyers can do for seniors, she can instantly recommend agencies throughout Nassau County to do the things lawyers aren’t necessary for. She spoke at libraries and senior centers all over the county to Nassau County’s seniors and regularly addressed social workers and other providers about elder law. We’ll most remember Susan for caring deeply about her clients and persisting tirelessly in seeking remedies for them–remedies for the problems brought to her and for ramifications the clients had never considered.

Mark McRedmond—Mark McRedmond, who came to Law Services in April 2003 as a staff attorney to work in our PAIR Project (Protection and Advocacy for Individual Rights) and recently transferred to our Mental Health Law Project, has accepted employment with the Legal Aid Society of Suffolk and will be leaving us this month. Mark proved himself a patient, caring and conscientious advocate for his disabled clients and will be missed.

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