AT ADVOCATE
Newsletter of the National Assistive Technology Advocacy Project
A Project of Neighborhood Legal Services, Inc.
295 Main Street, Ste. 495 · Buffalo, New York 14203 · (716) 847-0650
(716) 847-0227 FAX · (716) 847-1322 TDD · e-mail: nls01@sprynet.com · Web Page:
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Supported by the National Institute on Disability and Rehabilitation Research,
U.S. Department of Education, Through a Subcontract with United Cerebral Palsy
Associations.
Volume III Issue 5
August/September 1998
Copyright 1998, Neighborhood Legal Services, Inc.
EXPANDING PAAT RESOURCES: A PRO
BONO
REFERRAL PROJECT MAY BE THE ANSWER
Anyone who works in a Protection and Advocacy (P&A), Legal Services or Legal Aid office knows the challenge of limited resources. With more demands for service than services to deliver, we limit the kinds of cases we do, the number of cases we take and the amount of litigation we file.
This challenge is particularly true for the Protection and Advocacy for Assistive Technology (PAAT) programs. Most statewide budgets range between $40,000 and $100,000. In New York, a state with 15 million people, the PAAT operates a statewide project with an annual budget of $88,000, down from $100,000 in earlier years. As in other states, that amount is expected to be reduced further next year as we await reauthorization of the Tech Act with hopes of continued or even increased funding for the PAATs.
How do we maximize these limited resources? One way is to find public sector attorneys and advocates to take these cases, i.e., through Legal Services, Legal Aid and law school clinic programs. Another way is to recruit volunteer private attorneys.
This article explains how your PAAT can initiate a pro bono project to expand the number of individuals who get free legal services on assistive technology (AT) cases. Using New York’s experience, we will explain how one state established and continues to run a very successful project in which volunteer lawyers represent individuals in Medicaid hearings.
WHAT IS A PRO BONO PROJECT?
The tradition of providing free legal services is longstanding in the legal profession. In every state you will find attorneys and law firms who represent needy clients without charge. A Latin term, pro bono, is used to describe this activity.
A pro bono project acts as a go-between, hooking up volunteer attorneys with clients who need assistance. Often, pro bono projects are run through state and local bar associations or through well-known organizations, such as the American Civil Liberties Union. More recently, stimulated through mandates in the Legal Services Corporation Act, all federally-funded Legal Services programs are involved in some pro bono activities.
It is not clear how many P&As or their PAAT projects are involved with pro bono projects. Informal discussions suggest that only a few P&As are involved, but that many would be interested in using a pro bono project to expand services. This article presents one model, as used by New York’s PAAT project, which regularly refers Medicaid cases to private attorneys.
IDENTIFY YOUR LOCAL AND
REGIONAL PARTNERS
Any successful pro bono project will have ties to other entities that will help it identify volunteer attorneys. Who you work with will, to some extent, depend on where you are located. Some of your contacts will be the same no matter where you are.
Legal Services Programs and the
Private Attorney Involvement Mandate
Any program funded through the federal Legal Services Corporation (LSC) is mandated to spend the equivalent of 12 and ½ percent of its LSC funding on "private attorney involvement" (PAI) activities. Some LSC-funded programs meet PAI mandates with dedicated staff; others run in-house pro bono projects; others contract with separate, non-LSC programs. In New York, all three models exist.
Your state’s LSC-funded program will most likely be called by one of three names: "Legal Services," "Legal Aid" or "Legal Assistance." The LSC-funded program or the program it contracts with to meet its PAI mandate should be able to identify private attorneys who will volunteer for AT cases. Before you start your project or begin to recruit volunteer attorneys, contact your state or region’s LSC-funded program and talk to their director or pro bono coordinator (if they have one). He or she should be able to provide you with names of their counterparts in other parts of your state, names of key people with the state and local bar associations, and insights about what has worked for them.
Your State and Local Bar Associations
Every state has a statewide bar association. Most states also have local or regional bar associations. Your best bet is to first contact your state bar association to see if they have a pro bono project or a standing pro bono committee. If you find a good state-level contact, that person can provide names of key programs and individuals in various regions of your state. Your new contacts at the state and local/regional levels should also be able to provide insights on the law firms which have a tradition of pro bono work.
Big Law Firms
Big is a relative term. In Chicago, it may mean 500 lawyers; in Buffalo, it may mean 50 to 100 lawyers; in smaller communities, big may mean 10 lawyers. We assume 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 their newer associates. Before you contact law firms, see if your local or regional pro bono project is already involved in an effort to recruit law firms. If so, offer to work with them or urge them to include AT-related cases among those described to prospective volunteers.
AT CASES ARE A NATURAL FOR
PRO BONO PROJECTS
Many private attorneys will welcome the opportunity to work with our clients—persons who seek AT to overcome the limitations of their disabilities. Most of these clients have very limited income and cannot pay for lawyers.
Volunteers are most easily recruited and retained if you give them cases that are professionally challenging and personally rewarding. Work on AT-related cases, such as Medicaid hearings, provides the volunteer with the professional and personal rewards that will allow you to recruit and retain them. Attorneys are also more likely to volunteer if their commitment is not open-ended. You can never guarantee the time needed to prepare for a Medicaid hearing, but you can give a reasonable estimate. You can assure the volunteer that the case will go from start to finish in a matter of months and that their obligation will end shortly after the hearing decision comes in unless they lose the hearing and choose to represent the person in a court appeal.
PROJECT IMPLEMENTATION
The approach described below is based on New York’s experience with Medicaid cases. This approach should also work well if your project selects a different type of case.
Importance of a Good Coordinator
We strongly suggest that you designate one person to coordinate your project. The coordinator need not be an attorney. The coordinator of the very successful New York project, Marge Gustas, is a paralegal. This person must possess qualities that work well in sales: communication skills; an ability to sell; and a willingness to meet the customer’s needs. The coordinator must also understand the nature of the cases he or she is referring and what it will take to represent the client.
Recruiting Volunteer Attorneys
As explained above, a good starting point in recruitment is to identify those entities already involved in pro bono work and make them your partners. Since the other pro bono projects in your state or region may need to generate statistics to satisfy their funding sources, they may prefer that you send cases directly to them for referral to an attorney on their list. If this is done, make sure that the volunteer attorney knows that the case has come from your project and that you are available for technical assistance.
Individual recruitment is more demanding. One approach is to call up former P&A or Legal Services attorneys to see if they are willing to volunteer. If a person on your staff knows the former P&A or Legal Services attorney, maybe that person can make the first call. A good rule of thumb is to ask the attorney to take two cases each year. If you are dealing with a law firm, you may suggest a commitment for the firm without pinning down which lawyers will take the cases. When you find a volunteer, ask for the name of a friend or colleague who might also volunteer.
Many pro bono projects use training as a recruitment tool. For example, the Erie County Volunteer Lawyers’ Project (one of the New York PAAT’s pro bono partners) offers free training to private attorneys who will take two cases during the next year. If your state is a mandatory continuing legal education (CLE) state (New York has become one), the private attorney who attends your training may be able to earn CLE credits. In some states, the trainer also receives CLE credits. This may provide a "hook" for recruiting outside trainers. New York’s PAAT is exploring the use of training as a new recruitment tool.
A statewide PAAT program has a special challenge recruiting volunteers in areas of your state where you are not present. Here again, you should exhaust the traditional networks: LSC-funded pro bono projects and bar associations. When all else fails, pick up the Martindale-Hubbell directory of attorneys and contact those attorneys or firms whose profiles suggest that they might be willing to volunteer.
Pre-Referral Evaluation of Cases
Typically, a referral to New York’s project comes from an equipment vendor or a service provider. The intake screener, who is also the pro bono coordinator, generally takes some or all of the following steps to decide if the case is appropriate for referral: speaks to the vendor or provider; speaks to the client or a family member; reviews the supporting documentation and agency decision; reviews any relevant law, regulation, policy or fair hearing decision; and discusses the case with a supervising attorney. Based on the experience level of New York’s pro bono coordinator, the legal research and in-house discussion steps are often not necessary. The time expended for the pre-referral evaluation ranges from one to two hours.
The Referral
Satisfied that the case has reasonable merit, the coordinator seeks to match the case with a volunteer. For the New York project, if the case comes out of Erie County (the Buffalo area), the first choice will be to contact the Erie County Volunteer Lawyers’ Project. In other counties the coordinator may go through the Legal Services program’s pro bono coordinator or may call an attorney who is on the referral list.
All attorneys who are taking cases for the first time receive a "Pro Bono Packet." The packet 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. If the attorney faces an issue that was previously addressed in a fair hearing decision or decisions, those are also sent to the volunteer.
Technical Assistance to Attorneys
Technical assistance should be a high priority. New York’s coordinator often "closes the sale" when she assures the volunteer that the PAAT staff will be there to provide extensive support. The amount of technical assistance per case varies. Some attorneys will not call the PAAT. Others may call five or more times while preparing for the hearing. Based on New York’s experience, it is reasonable to budget one to three hours per case for technical assistance and other communications with the volunteer to gather "outcome data."
Extent of Volunteer’s Commitment
This should be clarified at the outset. New York’s coordinator makes 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 New York’s PAAT is willing to take the case back to consider a possible court appeal. However, if the attorney is willing to handle an appeal in state or federal court, New York’s coordinator assures the attorney of continuing technical assistance including the resources available through the National AT Advocacy Project.
Reporting of Outcomes: What Data to Collect
Clearly, your PAAT will want to report the number of cases handled by pro bono attorneys and the AT devices which individuals received as a result. The other important "outcome" is that your agency’s efforts have leveraged free legal services from the private sector which have a value. For example, consider the attorney who normally bills $150 per hour for legal services. If the attorney spends 20 hours on a pro bono case, your efforts have leveraged $3,000 of free legal services. If you are seeking special funding for your pro bono project, this leveraging of free services could make your project very attractive to funding sources. Ask your volunteers to keep track of their hours so that you can later report on what their services were worth.
NEW YORK’S EXPERIENCE
WITH THE
HODGSON, RUSS, ANDREWS, WOODS & GOODYEAR FIRM
For New York’s PAAT, many referrals have gone through the Erie County Volunteer Lawyer’s Project (VLP). During early 1997 one of those VLP referrals went to a partner with a very large Buffalo firm, Hodgson, Russ, Andrews, Woods & Goodyear. After successfully representing one client, this attorney suggested the potential for involving a number of the firm’s attorneys with the pro bono project. The firm agreed to accept 12 individual cases between September 1, 1997 and December 31, 1998. As this is written, 12 months into this 16-month period, Hodgson, Russ had already exceeded its commitment. The firm has extended the project to include its summer associates (i.e., law school interns); may extend its commitment to include several litigation paralegals; and is considering a commitment of resources to AT-related litigation involving Medicaid.
NEW YORK’S PROJECT:
RECENT STATISTICS
During a recent nine month period, New York’s project referred 17 cases to private attorneys and law firms. The Hodgson, Russ firm took 12 of those cases and the other five cases went to five other attorneys or firms. A very modest estimate is that the clients in question will receive $25,000 of free legal services, and the value of those free legal services could be much higher. New York’s pro bono coordinator believes that these statistics could improve significantly during the next year.
YOUR PAAT AND PRO BONO:
CAN WE HELP?
A pro bono project is just one of many initiatives PAATs have used to increase the number of individuals with disabilities who receive AT. If this is a project that your PAAT would also like to try, please call us at the National AT Advocacy project and we would be happy to help you get started. Marge Gustas, New York’s pro bono project coordinator, is also willing to speak to anyone who wants to learn more about her project.
Included as an insert to this issue is a "PAAT Pro Bono Survey." The survey asks a number of questions about your program — whether you use volunteer attorneys and whether you would like assistance in starting a pro bono project. Please fill out the survey so that we can get a better picture of what P&As are doing around the country.
CONCLUSION
The irony for PAATs is that demand for services is increasing in most states at a time when most of us are living with or preparing to live with reduced annual funding. Although there is room for cautious optimism that a reauthorized Tech Act could result in level funding or even increased funding, we must think about how we will meet our clients’ needs if our resources go down. A pro bono referral project could provide part of the answer.
The experience of New York’s PAAT could serve as a blueprint for your state’s efforts. If you prefer to look at special education cases rather than Medicaid cases, you may want to contact your colleagues in Wisconsin or Maryland to see how their pro bono project works. If you are more ambitious, you may want to contact New York Lawyers for the Public Interest to find out more about their model of using more than 70 New York City law firms for their pro bono work. (See box, p. 127, describing the pro bono projects at the P&As in Wisconsin, Maryland and at New York Lawyers for the Public Interest.)
We caution you that like any other ambitious initiative, you must be prepared to devote considerable resources to planning and start-up of your pro bono project. If you are willing to make that initial commitment, chances are very good that the returns on that investment will be very significant, allowing you to represent many more clients than would otherwise be possible.
OTHER P&A PRO BONO MODELS
The Maryland Disability Law Center, in conjunction with the State Bar Association’s Litigation section, established a special education pro bono referral project 10 years ago. Four regional panels of private attorneys (20 to 25 in total) accept cases. Each panel has a volunteer coordinator. The P&A provides technical assistance and conducts periodic training for volunteers. The program has handled 500 cases over the last 10 years and has received a State pro bono award. Attorneys do the cases without charge but can receive attorneys’ fees against the school district if they prevail at a hearing. However, almost every case settles as soon as the attorney steps into the picture. Referral forms and sample letters are available. Contact Alyssa Fieo or Leslie Seid Margolis (the PAAT attorney) at 410-727-6352 for further information.
The Wisconsin Coalition for Advocacy, through sponsorship of a local bar association’s pro bono trust fund, has put on a special education training during 1996 and 1997. Private attorneys who attend obtain CLE credits and can attend for free if they agree to take at least one pro bono special education case during the next year. The bar association pays for the training. Through these trainings, the P&A has developed a list of private attorneys to accept pro bono referrals. The P&A provides technical assistance to the attorneys, as needed. This year, the P&A plans a training on Fair Housing for the project. Contact Monica Murphy (the PAAT attorney) at 414-342-8700 for further information.
New York Lawyers for the Public Interest ( NYLPI), now in its 22nd year, was founded to do public interest law and act as a clearinghouse for pro bono activity in New York City. Its pro bono project is central to the agency’s operation and is called the "Clearinghouse." The participants, private firms and corporate law departments, are members of the agency and support it financially. Wendy Brennan, Director of Private Bar Involvement for NYLPI, coordinates the Clearinghouse and is the point person with pro bono coordinators in member firms. Every few weeks she distributes a newsletter, describing pro bono projects which firms can select. Emergency projects are immediately faxed to member firms.
The Disability Rights Task Force, now in its second year, is a special Clearinghouse project. It is coordinated by Kim Sweet at NYLPI and includes attorneys in member firms with an interest in disability issues. It meets four times per year to discuss a topic of interest and to discuss cases for referral. In between meeting dates, cases are referred directly.
Projects are not limited to disability law and typically involve "impact" issues. Clients must be unable to afford an attorney. Cases come directly to NYLPI or are referred by others. Most cases are handled independently, but some are co-counseled with NYLPI. Agency staff provides technical assistance and conducts training seminars on specialized topics. Prior trainings include the changes in children’s SSI disability eligibility, Medicaid home health care, Housing, public accommodations under the Americans with Disabilities Act and special education.
AT COURT WATCH
Plaintiffs Petition for Certiorari in DeSario Case
We previously reported on Desario v. Thomas, 139 F.3d 80 (2nd Cir. 2/24/98), in which the U.S. Court of Appeals for the Second Circuit held that Connecticut’s Medicaid program can limit the availability of AT to items which appear on an exclusive list. [See February-March 1998 issue of AT Advocate.] In late May 1998, the Second Circuit denied the plaintiffs’ Petition for Rehearing. In July 1998, plaintiffs filed a Petition for Certiorari with the United States Supreme Court with the case now referenced as Slekis v. Thomas. [Copies of the cert petition, an amicus curiae brief in support of the petition and several other briefs previously filed are available through the AT Advocacy Project.]
U.S. Supreme Court to Hear AT-Related Special Education Case
In Cedar Rapids Community School District v. Garret F. 106 F.3d 822 (8th Cir. 1997), the Eighth Circuit ruled that, under the Individuals with Disabilities Education Act (IDEA), a school district is required to provide as "related services" ventilator management services and other services which the district characterized as excluded "medical services." Thereafter, the school district filed a Petition for Certiorari with the United States Supreme Court and the Court agreed to hear the case. Briefs were filed in August 1998 by the parents. Separate amicus curiae briefs were also filed on behalf of the United States and the National Association of Protection and Advocacy Systems (NAPAS) which joined with more than a dozen other organizations, including the National AT Advocacy Project. [Copies of the cert petition, op cert briefs and the briefs just filed are available through the AT Advocacy Project.]
Latest Round of Briefs Filed in Fred C. Case
We have previously reported on Fred C. v. Texas Health and Human Services Commission, a challenge to the Texas Medicaid policy in which augmentative communication devices are approved for children but not for adults over age 21. Following a favorable decision in the District Court, the Fifth Circuit Court of Appeals remanded and the District Court again ruled in favor of the plaintiff. The state has appealed again to the Fifth Circuit and the plaintiff recently filed briefs with the court. [Copies of the latest briefs, including amicus curiae briefs filed on behalf of the American Speech-Language Association, the Association of Tech Act Projects and a number of disability-related organizations are available through the AT Advocacy Project.]
LATE BREAKING NEWS: HCFA’s RESPONSE TO DESARIO DECISION
On September 4, 1998, the Federal Health Care Financing Administration (HCFA), responding to inquiries concerning coverage of "medical equipment" (ME) in light of the Second Circuit’s decision in DeSario v. Thomas, issued a letter to State Medicaid Directors. HCFA stated that a state "may develop a list of pre-approved items of ME as an administrative convenience". The HCFA letter then states that "[a]n ME policy that provides no reasonable and meaningful procedure for requesting items that do not appear on a State’s pre-approved list, is inconsistent with [federal Medicaid law]." This interpretation would appear to outlaw Connecticut’s use of the exclusive list that was sanctioned by the court in DeSario. (Copies of this HCFA letter are available through the AT Advocacy Project or on line by clicking here on NHeLP) An Inquiry From the FieldThe California Protection and Advocacy program is working on a Medicaid fair hearing involving funding for a van lift. Taymour Ravindi is aware of a court decison in Colorado and a hearing decision in New York approving funding for a vehicle lift. If you are aware of an agency decision, hearing decision or court decision from your state approving funding for a vehicle lift, please call Taymour at 916-488-9950.
SAVE THESE DATES
MARCH 11-13, 1999
Hyatt Regency — Austin, Texas
Assistive Technology Conference For
Protection and Advocacy Advocates
A Conference Planning Committee is already working to identify topics and speakers for the conference
If you have ideas for a session, please contact Jim Sheldon at the AT Advocacy Project
Update on The National Assistive Technology Resource Library
We have designed a word-searchable digest, using computer technology, to store and retrieve hearing decisions and other administrative documents. We also have indexed more than 250 documents from more than 70 pending and decided court cases. All documents are available through our AT Resource Library. Please send us your hearing decisions, briefs and other documents involving AT.
Please send information to: TEL: (716) 847-0650 Handsnet: HN0627The AT Advocacy Project
will provide nationwide services to PAAT projects including technical assistance to advocates wanting to access funding for assistive technology for individuals with disabilities.
In future issues.....
- AT Funding through the Americans with
Disabilities Act (ADA)
- Final IDEA Reauthorization Regulations
- Reauthorization of the Rehabilitation Act