Volume V      Issue 2                                                                            Fall 1999
Copyright 1999, Neighborhood Legal Services, Inc.

Newsletter of the Assistive Technology Advocay Project
A Project of Neighborhood Legal Services, Inc · 295 Main Street, Room 495 · Buffalo NY 14203
(716) 847-0650 · (716) 847-0227 FAX · (716) 847-1322TDD atproject@nls.org · www.nls.org
Supported by NYS Office of Advocate for Persons with Disabilities,TRAID Project, a Project
Funded by The National Institute on Disability and Rehabilitation Research, U.S. Department of Education.
Opinions expressed herein are not necessarily those of either TRAID or NIDRR

OUR PRO BONO REFERRAL PROJECT:
HELPING US EXPAND SERVICES WITH A LIMITED BUDGET

INTRODUCTION

    Individuals with disabilities often need a wide range of goods and services just to go about their day-to-day lives. When denied funding for those goods or services, they may need an attorney or advocate to challenge the denial. With complex programs like Medicaid, it may be unrealistic to appeal without the help of a knowledgeable advocate.

    Many individuals with disabilities have limited income and cannot afford a lawyer to appeal a denial of funding. For this reason, they often seek help from local Protection and Advocacy (P&A), Legal Services, or Legal Aid agencies. Those agencies, however, have limited resources and must limit the cases they take. This is particularly true for our statewide Assistive Technology (AT) Advocacy Project, which has an annual budget of $88,000 and has lost 15 percent of its funding the last two years.

    How does our project accomplish its goal of getting more AT to persons who need it? How do we maximize our limited resources to cover the entire state? One way is to distribute written materials through newsletters, a website, and training programs. Another way is to find public sector attorneys and advocates to take AT cases, i.e., through P&A, Legal Services and Legal Aid programs. Another way is to recruit volunteer private attorneys.

    This article describes our pro bono referral project, which regularly refers Medicaid cases to private attorneys. The article is directed to different segments of our readership for different reasons. First, it is directed to all readers to describe a growing part of our service delivery model. Second, it is directed to other advocacy organizations that may wish to use our model or partner with us on a similar model. Third, it is directed at the prospective volunteer law firm or attorney who needs a better idea of the commitment we are seeking. And last, it is directed at the individual who has been denied AT funding and wonders how this modestly-funded program in Buffalo expects to handle their appeal.

    A pro bono project acts as a go-between, hooking up volunteer attorneys with clients who need assistance. These projects are often run through state and local bar associations or through well-known organizations, such as the American Civil Liberties Union. More recently, all federally-funded Legal Services programs have become involved in pro bono activities.

    In New York, a large portion of the funding to represent low income persons on civil matters comes through the federal Legal Services Corporation (LSC). Every county is served by an LSC-funded program. For example, our parent agency, Neighborhood Legal Services (NLS) is funded to serve Erie County.

    All LSC-funded programs are required to spend the equivalent of 12 and ½ percent of their LSC funding on “private attorney involvement” activities. Some programs meet these mandates with dedicated staff; others run in-house pro bono projects; others contract with separate, non-LSC programs. NLS provides funding to the Erie County Bar Association’s Volunteer Lawyers Project (VLP) to meet part of its mandate to get private attorneys involved in the delivery of free legal services to persons with low-income. Working with the VLP, we have made tremendous inroads in recruiting private law firms and individual attorneys to accept AT-related cases on a pro bono basis.

    Many private attorneys welcome the opportunity to work with our clients — persons who seek AT to overcome the limitations of their disabilities. Volunteers are most easily recruited and retained if we can give them cases that are professionally challenging and personally rewarding. Work on AT-related Medicaid hearings provides our volunteers with those professional and personal rewards.

    Attorneys are also more likely to volunteer if their commitment is not open-ended. With the exception of some litigation that has grown out of individual cases, all of our referrals have involved administrative Medicaid hearings. Generally, we ask a volunteer if he or she is willing to accept two Medicaid cases during a 12-month period. After handling those two cases, the volunteer can decide whether to continue the commitment. If Medicaid is new territory, the first case could typically take up to 15 hours of time over a six to 12 week period. With the first case out of the way, the second and subsequent cases can typically be done in 10 hours or less. These projections assume that the attorney makes use of the supporting packet that we send and calls us for support as needed.

    Our volunteers come from the full array of private practice models, including the big firm, the individual practitioner, and all that lies in between. Thanks to our special partnership with Erie County’s Volunteer Lawyer’s Project, our biggest success to date has been with big firms in the Buffalo area. Our recruitment plan assumes that it is easier for big firms to take on a fixed number of pro bono cases. A bigger firm is also more likely to use pro bono work to aid in the professional development of newer associates.

    In Buffalo, VLP attorney, Gary Gaffney, acts as liaison between the VLP and the large firms. He has provided us with entry to several of Buffalo’s largest firms and has provided us with a referral outlet for Medicaid cases that we could not handle within the resources of our project.

    The coordinator of our very successful project, Marge Gustas, is a paralegal. She has more than 10 years of advocacy experience on a wide range of public benefit programs, with a special emphasis on funding of AT, or what Medicaid refers to as “durable medical equipment.”

    To date, the pro bono project’s cases have all involved denials of funding through Medicaid. An appeal of that denial would involve an administrative “fair hearing.” Typically, a case comes to us from an equipment vendor or a community agency. Marge or other staff will take some or all of the following steps to decide if the case is appropriate for referral: speak to the vendor or provider; speak to the client or family member; review the supporting documentation and agency decision; review any relevant law, regulation, policy or fair hearing decisions; and discuss the case with a supervising attorney. The time expended for the pre-referral evaluation ranges from one to two hours.

    Satisfied that the case has reasonable merit, we seek to match the case with a volunteer. If the case is from the Buffalo area, the first choice will be to contact the Volunteer Lawyers Project. In other counties, we may go through the Legal Services program’s pro bono coordinator or call an attorney who is on our referral list.

    Attorneys who are taking cases for the first time receive a “Pro Bono Packet.” It contains all they need to get started: a summary of the fair hearing process, with a hearing check-off list; sample forms and form letters; relevant regulations and court decisions; and copies of the project’s newsletter issues on Medicaid and report writing. Volunteers also get added to the newsletter mailing list.

    This is a high priority. Our coordinator, Marge Gustas, often “closes the sale” when she assures the volunteer that our staff will be there to provide extensive support. The amount of technical assistance per case varies. Some attorneys will not call us. Others may call five or more times while preparing for the hearing.

    We make it clear that the commitment ends when the hearing decision is received and the Medicaid agency has complied with its mandates. The volunteer has no obligation to appeal an adverse decision, as we are willing to take the case back to consider a possible court appeal. If the attorney agrees to handle an appeal in state or federal court, we assure them of continuing technical assistance. An attorney who successfully appeals a fair hearing decision in state or federal court may be able to obtain attorney’s fees under the state Equal Access to Justice Act or under 42 U.S.C. § 1988.

    Our AT Advocacy Project has been funded since July 1995. In the fall of 1995, we published our first newsletter and began an outreach effort to make persons with disabilities, their families, service providers, and advocacy agencies aware of our services. We also began to identify referral sources for cases throughout the state – public sector advocacy programs and private law firms willing to represent our clients without charge.

    Our biggest success to date has been in Buffalo and Western New York. In fact, our proximity to the big firms in Buffalo and our ability to partner with the Volunteer Lawyers Project on reaching out to those firms, has allowed us to use Buffalo as a model that we hope can be replicated in other parts of the state. What follows are selected highlights of four years of activity. Since this is a summary, we are sure to leave out some attorneys and firms who have made significant contributions and for that we apologize.

    Described below, alphabetically, are firms and individual attorneys who have contributed to our project by representing a client or clients on Medicaid appeals:

Olney Clowe: He has his roots in legal services and was, in part, responsible for current state Medicaid regulations regarding prior approval of durable medical equipment. Now in private practice, he continues to represent individuals with disabilities on a pro bono basis.

Fessenden, Laumer and DeAngelo: This Jamestown firm responded to a cold call from us and agreed to represent a young man who was denied Medicaid funding for an augmentative communication device. They were successful, even though this was a new area of law to them.

Fried, Frank, Harris, Shriver and Jacobson: This New York City firm never took any case referred by us to a fair hearing. Rather, through a series of conferences with Medicaid’s decision makers, they successfully negotiated resolutions in cases involving Convaid strollers and custom wheelchairs for children.

Hodgson, Russ, Andrews, Woods and Goodyear: Since May 1997, when this firm took its first case, they have taken an average of one pro bono case per month. Over the last two and one half years, the firm’s attorneys have tackled issues involving children, the terminally ill, skilled nursing facility residents, and those trying to make it on their own. Their work has guaranteed the provision of feeders, transfer devices, and power and manual wheelchairs to those with little or no means to advocate for themselves. Additionally, they have filed two court actions which are now pending on behalf of individuals who reside in skilled nursing facilities.

Jaeckle, Fleischmann & Mugel: Another new comer to our pro bono project, this firm is already becoming a strong resource for those who need AT.

Lakewood Law: This is another Jamestown firm that agreed to accept a case after nothing more than a phone call. Because of their help, a young woman now has a power wheelchair.

John Mcgee: He has a full-time job in the field of law enforcement and is also a licensed attorney. His contribution in representing our client (and winning!) was appreciated.

Phillips, Lytle, Hitchcock, Blaine and Huber: They have willingly tackled non-routine issues, such as their work for Anne T., who needed a special type of ostomy pouch. Medicaid did not deny her prior approval request, but told the vendor to bill it at a direct pay code -- a problem because the pouches the doctor ordered were far more sophisticated and expensive than the generic brands. Ms. T. ended up paying for the pouches herself. An attorney at this firm successfully argued at a fair hearing that the specialized pouches should go through the prior approval process so that the vendor could be reimbursed at the higher Medicaid rate like other items requiring prior approval.

Walsh, Roberts and Grace: They have successfully represented several individuals with disabilities and won by showing that the requested items were necessary to maximize the their capacity for normal activity.

The law offices of Christopher Spence and Anthony Fumerelle; and the firms of Lewis and Lewis; Lipsitz, Green, et al.; and McKenna, Brady and Levi: They are part of a growing list of volunteers who unselfishly give their time to advocate for persons with disabilities who would not otherwise get legal help. Space does not allow us to highlight the specifics of their contributions.

    Our pro bono referral project has been a tremendous success to date. With the contributions of an increasing number of law firms and attorneys, we hope to expand on that success. In an effort to expand this project throughout the state and into rural areas, we encourage readers to let us know of law firms and attorneys who might be willing to volunteer their services to ensure that persons with disabilities get the AT they need.

This legislation, signed by President Clinton on December 17, 1999, represents a significant step forward in making it easier for Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) beneficiaries to go to work. The Act has two major components: the Ticket to Work and Self Sufficiency; and the Work Incentives Improvement Act.

Ticket services to be delivered through “Employment Networks”

• New York’s Office of Vocational and Educational Services to Individuals with Disabilities (VESID) and Commission for the Blind and Visually Handicapped (CBVH) may elect to participate as employment networks
• VESID/CBVH must follow their usual policies in delivering “ticket” services
• other networks are not governed by federal policies which govern VESID/CBVH
• pending full implementation of these provisions in New York, VESID or CBVH will have the “right of first refusal” to provide employment network services

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