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Law Services News - March/April, 2006

Court Rules Mom Can Remain on Indian Reservation

In an unusual case handled by Meredith Nadler of our Riverhead office, our client won the right to stay in her housing on the Poospatuck reservation in Mastic.

Ms. J. lived on the reservation with her husband of twenty years and her three blood right member children. She obtained a “stay away” order of protection against her husband in January, 2005 following a period of marital strife. Soon afterwards, two Poospatuck Land Trustees approved a transfer of the family’s land allotment, to the husband’s brother. Within a few months the Tribal Council authorized the Suffolk County District Attorney to initiate removal proceedings pursuant to Section 8 of New York State Indian Law.

Initially, the Court felt that legal status of the transfer of the allotment was an internal matter entirely within the purview of the Poospatuck Indian nation. Therefore, the court made no rulings or findings as to the legitimacy of the transfer.

The issue to be resolved by the Court was whether, within the meaning of the statute, Ms. J. is considered to be an “intruder” on the Poospatuck Reservation. The District Attorney contended that the Tribal Council’s determination that Ms. J. is an “intruder” is a tribal decision and cannot be disturbed by the Court. However, Ms. J. contends that the Poospatuck by-laws and customs allowed her to reside on the allotment as long

as they are married. She also contended that her husband initiated the transfer to his brother in retaliation for her obtaining an Order of Protection against him and therefore the transfer should not be permitted.

Because Section 8 of NYS Indian Law does not define “intruder”, Meredith Nadler, staff attorney of the civil unit in our Riverhead office, argued that case law clearly authorizes the courts to make a legal determination, independent of the Indian nation, as to whether the person is to be consider an intruder.

Section IV of the Tribal Rules, Customs and Regulations of the Poospatuck Indian Nation provides in part:

“Land rights of a non-blood right spouse:

Any non-blood right spouse shall have the right

to enjoy all privileges of his or her blood right spouse which are customary in maintaining a normal marital life”

The court found that Ms. J’s three children who are blood right members, were entitled to continue to live on the allotment as long as they desired. If the court granted the tribe’s application to evict Ms. J., it would be separating the children from their mother. Thereby the court held that Ms. J. was not an “intruder” and that she may continue to live on the allotment as long as at least the two circumstances continued to exist:

1. At least one of her blood right member children continues to reside on the allotment; and

2. At least one of her children still residing on the allotment is less than twenty one years of age.

The petitioners have appealed this case, so please look for an update in future newsletters. Great work Meredith, on a very interesting case!

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DSS Agrees to Provide Accessible Housing to Homeless Client

An Article 78 proceeding filed by Robin Sparks against the New York State Office of Temporary and Disability Assistance (OTADA) and the Suffolk County Department of Social Services (SCDSS) has been settled. In the case of Groffel v. Doar and DeMarzo, the respondents have agreed to vacate a portion of a fair hearing decision which affirmed a determination of the SCDSS not to reimburse the petitioner for the cost of adequate temporary emergency housing when SCDSS failed to make an appropriate placement to accommodate the petitioner’s physical disability.

The petitioner is 63 years of age and severely disabled. He suffers from emphysema, a degenerative bone disease, back pain, leg pain, end-stage chronic obstructive pulmonary disorder, and psoriasis, requires oxygen 24 hours per day, needs a crutch to ambulate, and often needs to utilize a wheelchair. Since, the combined income of the petitioner and his wife was only $667 in Social Security benefits each month, they were not able to locate permanent housing. Emergency temporary housing was provided by SCDSS. While homeless, they were required to submit medical documentation to SCDSS’ employment units to establish the petitioner’s inability to work and his need for his wife’s care and assistance. The documentation clearly indicated that the petitioner was wheelchair bound at the time and unable to climb any stairs at all.

Thereafter, without any prior warning, SCDSS terminated their emergency housing placement at the Town House INN - which was wheelchair accessible and contained no stairs - and directed them to housing at Project Redirect - which was not wheelchair accessible and which required the use of numerous stairs. Although an ADA (Americans with Disabilities Act) request for a reasonable accommodation was made to delay for one week the petitioners’ relocation, SCDSS denied the request. The petitioner was compelled to expend $350 of his Social Security benefits to house him and his wife for one week in a placement that did not require the use of stairs.

The matter became the subject of an administrative fair hearing, and although SCDSS was directed to thereafter relocate the petitioners to more suitable housing, state OTADA declined to direct SCDSS to reimburse petitioner the $350 he was compelled to expend on accessible housing. According to OTADA, "...it cannot be said that [SCDSS] was on notice with respect to any medically documented need of [petitioner] to utilize a wheelchair or of any inability ... to negotiate stairs." The petitioner argued that the medical notification that was provided to SCDSS’ employment units - and which thereby became part of their "case record" - should be deemed notification to the entire agency.

The parties are finalizing settlement negotiations which look to be favorable for our client. We expect him to be reimbursed for his out of pocket expenses for accessible housing during the period that SCDSS refused to accommodate his disability.

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Consumer Debt: Exemptions and Strategies

Written by Deborah Schwartz, Former Student Intern

During times of illness, job layoffs, pay cuts and other stressful life events, outstanding personal debt can become overwhelming. It can be frustrating to deal with constant contact from creditors or collection agencies when there is no means to satisfy the debt. Filing for bankruptcy is an extreme step and if there are no assets at risk and the income is exempt, bankruptcy may not be necessary*. There may be other alternatives to solving mounting debt problems.

CEASE COLLECTION LETTER

One option is to write a “cease dunning” letter, which is a letter to the collection agency or the creditor’s attorney requesting that their collection attempts stop temporarily. Federal law requires collection agencies and attorneys to comply. Although the creditors themselves are not required to comply with the cease letter, they are usually responsive to it. The letter should also include documentation of any billing errors, or harassment to which debtor has been subject. It is important to keep a copy of this letter.

If a collector continues to contact or harass following a cease letter, it is time to consider contacting local and federal agencies. These agencies include the Federal Trade Commission 1 877 382-4357, local consumer protection agencies (Suffolk 631 853-5593, Nassau 516 571-2600) the Bureau of Consumer Protection 1 800 697-1220, and the State Attorney General’s office 1800 771-7755. If a letter is sent to any of these agencies, a copy of the letter should be sent to the collector and copies of all correspondence should be kept.

GARNISHMENT A garnishment can occur after a creditor has sued the debtor by first serving a summons and complaint and receiving a money judgment from the court. Once the creditor has a judgment, he may attempt to collect on debt obligations by receiving a court ordered garnishment or income execution, which orders the employer to withhold up to 10% of earnings to satisfy the debt. A debtor is exempt from collection efforts if his income falls below $154.50 a week or he is a recipient of certain benefits (see Exemptions).

PAYMENT ARRANGEMENTS

Another option is to attempt to arrange a realistic payment plan with the creditor. This is not always possible but it may be helpful to seek the assistance of a financial counseling service to determine what can be done to manage the expenses. Two agencies that provide this service for a nominal fee are: Family Service League in Suffolk at 631 421-5210 or Family Service Association in Nassau 516 485-3425.

STUDENT LOANS

If temporarily unable to make student loan payments due to illness, injury, or lack of work, a loan deferral may be the answer. The deferral allows postponement of the loan payments, during which time the federal government pays accrued interest. If ineligible for a deferment, the creditor may be willing to grant a forbearance, which could extend the time between payments, reduce the amount of each payment, or temporarily stop payments altogether. Finally, if the debtor is permanently and totally disabled, a waiver of the entire student loan debt may be a possibility. Note that student loans are not dischargeable in bankruptcy.

MEDICAL DEBTS

Hospitals that participate in the Medicaid program and are aware of a patient’s current Medicaid eligibility, are responsible for accepting Medicaid as payment in full on bills incurred. Hospitals also have the legal obligation in New York state to assist in filing a Medicaid application on behalf of a patient that is potentially eligible. If the hospital fails to pursue a Medicaid application in these cases, the patient may have a good legal argument for disputing the hospital debt.

EXEMPTIONS FROM LIENS

Generally, public benefits, including SSI, SSD,** and public assistance benefits, are exempt from creditors’ attempts to satisfy a judgment against a debtor through collection, a lien or garnishment. (As of May, 2001 the federal government may be able to garnish Social Security benefits if the beneficiary receives more than $750 per month.). If a separate bank account is used for deposits of public benefits, it is important to formally notify the bank that the account contains only exempt funds. For more information, call Law Services.

*If a client is considering bankruptcy, Law Services offers bankruptcy clinics through its respective offices’ Pro Bono and Volunteer Lawyer Projects. **Note that SSD can be garnished for child support, student loans, IRS debts and food stamp overpayments.

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Reduced Rates For Your Phone or Cell Phone Through Sprint’s Lifeline Program

If you are getting a federally funded benefit (public assistance, Medicaid, food stamps, SSI, subsidized housing) you can now receive a reduced rate wireless service under the Federal Lifeline Program. Sprint will allow you to use your Lifeline for either your home telephone or your cell phone. If you think you may be eligible, call Sprint at 1 (866) 827-3290 for an application.

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We’ll Miss You, Kim

We at Law Services are again saying goodbye to a valued staff member who is leaving to explore other aspects of public interest law. Kim Novak, of our Riverhead David Project, has accepted a position with the Legal Aid Society of Suffolk County. As a law student at Touro Law School, Kim was an outstanding participant in our Family Law Clinic, representing victims of domestic violence and parents in need of child support. After graduation, she joined Law Services housing unit in Nassau County, representing low-income tenants facing eviction. Most recently, she has been representing people living with HIV/AIDS and their families on the East End of Long Island. She will now be representing low-income parents and other litigants in Family Court. We applaud her continuing commitment to justice for disadvantaged persons, and while are sorry to lose her, wish her all the best in the future.

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Statewide Medicaid Class Action : Intra-State Moves

Peter Vollmer, a former Law Services Attorney, has recently filed a class action suit entitled Luberto v. Novello challenging the delay in the processing and opening of Medicaid cases when a client moves from one district to another causing an interruption in medical assistance.

When a client relocates from one social services district to another, the district of origin will cover the recipient for Medicaid for two months. The new district is supposed to process and approve a new Medicaid application before the two month period is over. Unfortunately, the New York State Department of Health has routinely denied Medicaid applications resulting from intra-district moves. Health and Human Services (HHS), the federal oversight agency, states in its 2001 Guide on Medicaid eligibility, “A state cannot require a family to reapply for Medicaid or have its Medicaid eligibility reviewed solely based upon a move to a new county.”

This lawsuit seeks preliminary injunctive relief. Pending the outcome of this lawsuit, if you have a client in this situation call Law Services for information and referral. At the time of print there was no settlement. Look for an update on the outcome of this very important case in future newsletters.

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Empire Justice Center Negotiating Compliance in Child Support Class Action

As a result of a class action lawsuit called Broniszewski that was filed several years ago, New York State was required to review its records and reimburse excess child support collection on behalf of public assistance recipients after their cases have been closed. The federal regulations (45 CFR 302.33(b)(2)(ii))are very clear that child support in these cases must be distributed promptly after case closing. The rule is that after the month in which the case is closed, the client should get the support redirected to them within 2 days of the date that the county receives it. Because the state is still revising its computer system, it has not be able to get its procedure in place. As a result, ex-public assistance recipient are waiting months for their child support.

If you have a client experiencing this problem please contact Susan Antos at the Empire Justice Center at (518) 462-6831 with the person’s name, county they live in, and their CSEU case number so she can rectify this matter for your client.

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JOB OPPORTUNITIES AT LAW SERVICES

Full Time Staff Attorney

(2 positions currently available)

Office Location: Riverhead

Unit: The David Project

Duties include representation of eligible HIV-infected individuals in various civil matters including Landlord/Tenant, Real Property, Medicaid/Medicare/Social Security, Welfare, Family Law, Wills/Estates, Health matters, Consumer cases, and Guardianship and Conservatorship proceedings handled by the program at the Administrative, Trial Court and Appellate levels. Duties also include interviewing clients, doing substantial community outreach, providing community legal education and some report writing.

Salary: $34,500 + D.O.E.

Start Date: OPEN

Requirements: Admission to the New York State Bar. Applicants who have passed the Bar Examination and are pending admission will be considered. Demonstrated commitment to the goals of the legal services program.

Persons interested should submit a resume to:

Victoria Osk, Esq.

Nassau/Suffolk Law Services Committee, Inc.

1757 Veterans Highway, Suite 50

Islandia, New York 11749

Nassau/Suffolk Law Services Committee, Inc. is an equal opportunity/affirmative action employer. Women, minorities, the elderly, and persons with disabilities are encouraged to apply.

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Watch for State Tax Intercept Settlement Notices In the Mail

On February 28, the NYS Office of Temporary and Disability Assistance (OTADA) began to send out settlement notices to one tenth (approximately 2000) of the plaintiffs in the class action suits entitled Watts v. Wing & Dantzler v. Wing. These cases challenged the state OTADA state tax offset system which illegally recovered alleged public assistance overpayments.

Make sure your clients know the following:

They are receiving the notice because their state taxes were intercepted in 1997 and 1998.

Many persons had their taxes intercepted without appropriate notice and hearing rights.

They have 60 days from the date of the notice to request a review.

Once they have requested a review, they will get their refund back and THE UNDERLYING DEBT WILL BE FORGIVEN, if a review reveals that the DSS file is lacking critical information (i.e. adequate notice, hearing rights, etc)

They have nothing to lose by requesting a review. They may get their intercepted taxes back and the debt forgiven.

Class members seeking additional information can contact the New York Legal Assistance Group at (212) 613-5008 for New York City residents and The Empire Justice Center at (518) 462– 5887 for the rest of the state

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FOOD STAMPS RECIPIENTS EXEMPT FROM CERTAIN OFFSETS

Although Social Security (SSD) benefits and tax refunds are not exempt from collection to repay Food Stamps overpayments, recipients of Food Stamps benefits are not subject to collection via their tax refunds or SSD checks as a means of collecting an old Food Stamps overpayment.

Social Security (SSD) benefits are usually exempt from collection unless the debt involves child support, student loans, or Food Stamps. For student loans and Foods Stamps collection, 15% of the SSD monthly benefit is garnishable as long as it leaves the SSD recipient with at least $750 per month. Intercepting federal tax refunds is another way the government collects these debts.

One way around the SSD garnishment and tax intercept is to apply for Food Stamps. Many of our low income clients are eligible for Food Stamps and may not bother to apply, perhaps because they think it’s too much trouble or not worth the small benefit. But for those with outstanding Food Stamps overpayments from prior periods of eligibility, it is worth filing an application for Food Stamps in order to shield collection of their SSD benefits or tax refunds. In this way, once they start to receive their Food Stamps allotment, it will be reduced by 10% every month to collect the overpayment. This helps the client because their SSD and/or tax refunds, including Earned Income Tax Credit (EITC), remain protected (at least from collection on a Food Stamps debt) and their receipt of Food Stamps can be used to start paying back the overpayment, while still having some Food Stamps left over.

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LSCA’s Q & A

Community advocates who call the Legal Support Center are often caught up in the long and arduous process of documenting a public assistance application for a client. Applicants/recipients of public assistance are required to provide extensive paperwork to prove certain eligibility factors (e.g. address) but each factor may be documented in a number of ways. The Department of Social Services (DSS) should provide the client with the DSS Documentation Requirement guide which lists the various documents and alternate documents that are acceptable proof of these factors. The DSS worker must inform a client who is having trouble getting a particular document, of the alternate documents that can be used. It is important that an applicant tells the worker in writing that he/she are experiencing difficulties in getting a particular document and request suggestions for an alternate document which would be acceptable.

Administrative Directive 93 ADM-20 provides further legal authority in this regard. The ADM informs the local DSS that they must use the mandated Documentation Requirement guide for substitute documents where verification is difficult for the client. It also reminds the workers that no case can be denied or have benefits terminated for failure to provide a specific item of documentation (e.g. birth certificate) as long as the eligibility factor in question is established. For example, “an application may be denied if the applicant is unwilling to provide sufficient proof of identity, age, citizenship, etc., but not for failure to provide a birth certificate or other specific item of documentation” 93 ADM-20. Applicants can also request additional time to gather documents especially when they are experiencing delay or difficulties. 18 NYCRR 351.8b For an ongoing recipient of public assistance who is recertifying and having problems, the recipient may request an extension if he establishes good cause for the delay. 18 NYCRR 351.26. It is strongly suggested that requests for extensions be made, IN WRITING, keeping a copy for the client’s records.

If an advocate or client has done their best to gather the documents, but is still having problems, they should request IN WRITING that the DSS worker assist the client. The state regulation, 18 NYCRR Section 351.5, requires DSS to assist in this process when necessary (“collateral assistance”). This help can be in the form of payment for fees (e.g. bank statements), communicating with an uncooperative third party (landlord, relative, etc.), or contacting another agency on the applicant’s behalf to secure a document (Bureau of Citizenship, Social Security, Bureau of Vital Statistics).

In summary, the worker should inform the individual of the substitute documents that would be acceptable or assist in obtaining the information if informed that it would be difficult or impossible for the applicant on his own to obtain the information in a timely manner. If a client has written proof that he asked for help in the documentation process and his application is denied for failure to verify or document, he is likely to have a strong case at a fair hearing. Documents can even be brought in as late as the fair hearing itself and must be accepted at that time, although it is obviously more advantageous to provide documents on a timely basis.

The most important goal is to keep the application active. Avoid stopping and restarting the already complicated and protracted application process. Alert the worker to documentation difficulties and hopefully such assistance will help to move things along. If not, remember to request a fair hearing.

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Profiles in Commitment—Carrie Vasiluth

In the early 1990's, part of Carrie Vasiluth’s job as staff attorney for our Pro Bono Project was to develop and maintain contacts with the Suffolk County Bar Association. Now, as a staff attorney in the David Project, it is no longer her assignment, but remains her passion. Carrie continues to be an active and dedicated member of both the Suffolk Bar Association and the Suffolk Women’s Bar Association, serving in prestigious positions in both. She served as President of the Women’s Bar from 2000 to 2001, and this year chaired the Nominating Committee and co-chairs the Golf Program. Over the years, she has served as an Officer of the Academy of Law and on the Pro Bono Foundation for the Suffolk County Bar Association.

Perhaps Carrie’s most interesting position within the Suffolk Bar Association is the one she currently holds, as a member of the Judicial Screening Committee. This committee bears the important responsibility of reviewing potential candidates for judgeships in Suffolk County, to determine whether or not to recommend that the candidate is qualified. Recognizing the critical nature of the Committee’s task and its impact upon the quality of the judiciary in Suffolk, Carrie finds the work exciting and at the same time somewhat daunting.

Carrie is Law Services’ most active staff attorney in the Suffolk Bar Association, and has established lasting friendships among the staff and members of both the Suffolk and Women’s Bars. In many ways, she acts as our “emissary” to the Bars, and hopes that she has made members of each Bar more aware of the work of Law Services. Carrie believes the Suffolk Bar Association to be one of the better, more active bar associations in the State, and encourages her colleagues at Law Services to take a more active role. She particularly suggests that taking part in the Academy of Law is a good place to begin, because there is an opportunity to be part of the decision making process right from the start.

On a personal level, Carrie commented that, “Being a member of both the Women’s Bar and the Suffolk Bar Association has enriched my life and made me a happier attorney in Suffolk County.” We are delighted that the legal needs of the poor and the concerns of legal services lawyers are always on the agenda of the Bar Association, due in part to Carrie’s active involvement and influence.

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Suspension of Utility Repayments

Effective Immediately— Suffolk and Nassau DSS have temporarily suspended enforcement of existing and new repayment agreements for emergency utility payments made on behalf of applicants thru April 15, 2006.
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Thank you!

We would like to take this opportunity to thank our wonderful printing service, Penny Print of Patchogue, who prints our newsletter and many other Law Services’ publications. Penny Print has been printing our newsletter for over 15 years now and they are always so accommodating, professional, and reasonably priced! Thanks Stan, Judy and Matt for always being so efficient and helpful and most of all for doing such a great job on our newsletter—You’re the Best!
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