Equal Justice America Disability Rights Clinic
John Jay Legal Services
Pace University School of Law
June 30, 2006
Completing its sixth year of operation, the Equal Justice America Disability Rights Clinic at Pace University School of Law continues its dual mission of training future lawyers and providing free legal services to low income disabled persons and their families
Pace Law School's clinical offerings, under the umbrella of John Jay Legal Services, enable students to gain proficiency in lawyering skills while representing clients pursuant to a Student Practice Order issued by the Appellate Division, Second Department of the New York State Supreme Court. Under supervision of full-time clinical faculty, students enrolled in clinical courses perform all lawyering functions normally reserved to lawyers admitted to practice. In addition to the Equal Justice America Disability Rights Clinic, John Jay Legal Services also provides representation to individuals by student attorneys enrolled in the Securities Arbitration Clinic, the Criminal Justice Clinic and the Immigration Justice Clinic. In addition to these "live client" clinics, field work in the non-profit legal arena is available to students through the Legal Services/Public Interest/Health Law Externship.
II. Equal Justice America Disability Rights Clinic
The Equal Justice America Disability Rights Clinic provides students with the opportunity to learn and apply lawyering skills as well as the substantive law relating to the rights of disabled persons in a highly controlled and intensively supervised legal practice environment. For most students, it is their first experience with law as lawyers.
In a weekly seminar, students learn and practice lawyering skills such as interviewing, counseling, negotiation, fact investigation, and conducting administrative hearings. The learning of these skills is integrated with relevant substantive law, including eligibility for the government benefit programs available to disabled persons (Social Security Disability, Supplemental Security Income, Medical Assistance) and the planning tools available to disabled persons and their families (guardianships, wills, special needs trusts). The seminar also provides the opportunity for students to present issues and choices from the cases they are working on and benefit from the critical reflection of their colleagues. Ethical issues are discussed as they arise in individual cases with particular emphasis on the complexities of working with clients of diminished mental capacity. Students learn how to read and interpret medical records and work with medical personnel to describe a client's medical condition using legally relevant terminology. Students also learn how to work with other helping professionals, such as social workers, doctors, nurses and advocates, to identify and meet clients' non-legal needs. Readings focused on learning lawyering skills are supplemented with readings directly relevant to disability law.
Clinic students, either individually or in teams, have primary responsibility for the conduct of their assigned cases. The student lawyer is responsible for planning each lawyering activity, reviewing the plan with the Clinic faculty supervisor, conducting the activity and finally, reflecting on the experience and the usefulness of the preparation. Throughout the year, each student engages in client interviewing and counseling, fact investigation and witness interviewing, legal research and analysis, and drafting a variety of legal documents and instruments. Most students have the opportunity to appear before a court or administrative tribunal.
For the 2005-2006 academic year, the Clinic was again offered as a two-semester course. Students have the option of taking the Clinic for between four and six credits each semester. The four credit option is especially appropriate for part-time and evening students, who may be working full-time in addition to attending law school. All students participate in the seminar which provides two academic credits and each student's case load for the remaining two to four credits is tailored to his or her interests and time constraints. For example, a student who is not available during normal working hours will be assigned to cases which involve transactional work only, which can be performed during the evening hours and weekends. Other students with more flexible schedules are assigned cases which may involve day-time appearances before courts or administrative tribunals. Students spend on average five hours per week per clinical credit on case-related work. Students enrolled in the Clinic for a total of four credits spend on average 10 hours per week on case-related work; students enrolled for a total of six credits spend on average 20 hours per week on case-related work.
During the 2005-2006 academic year, ten students were enrolled in the Clinic. All were full-time day students.
The cases handled involved a variety of legal issues faced by disabled persons and their families. Clients were referred by several social service agencies with which we have formed alliances, including the Veterans Administration, Montefiore Long Term Home Care Program, Westchester Human Rights Commission, SKIP of New York, Mt. Vernon Board of Education, the Program for Family Support at North Central Bronx Hospital, and Jowonio, a case management agency serving the developmentally disabled. Several clients were referred by other Clinic clients. All of the clients are low income. They are unable to pay for the legal help they need and were unable to secure representation from other sources of free legal services. Several cases completed during the year were begun during the previous year.
Lifetime and Estate Planning
Mr. and Mrs. A. came to the Clinic asking for “simple wills.” In a thorough interview, the student attorney assigned to help this elderly couple discovered that their sole asset was their home which they wished to leave to their adult disabled daughter. The couple was counseled extensively about their options and the need to do other planning, including powers of attorney and health care proxies. Wills have been prepared for the clients’ review.
Mr. and Mrs. G., a young couple with minor children signed wills, health care proxies and powers of attorney that were drafted by their student attorney. Although they are low income, the G.'s wanted to make sure that their children were provided for in the event of their deaths and were counseled concerning the need to appoint guardians and trustees if they die before all of their children reach the age of 18.
A student counseled A.W., the mother of a young disabled child about making provisions for the child’s care in the event of her death. The client decided not to proceed until she had resolved her marital situation with the child’s father.
We are also working with Mr. R. who inherited his house from his mother several years ago. Mr. R., who has an adult disabled child, is now in a nursing home. The students assigned to Mr. R.’s case researched the options available to Mr. R. to provide for his daughter without jeopardizing his or her public benefits. Mr. R. has been counseled. We are working with his social worker to identify appropriate fiduciaries so that a will and trust can be drafted.
Last June, the Faculty Supervisor participated in a workshop for parents of mentally retarded and developmentally disabled children in the Mt. Vernon School System. As we reported last year, the purpose of the workshop was to help these parents obtain the services they need as their children leave the school system. Planning for the future and the need for guardianship was covered in two workshops. After the workshops, parents were given the opportunity to request assistance from the Clinic. In the fall, we contacted the parents who expressed an interest in guardianship.
Students worked with nine families who had attended the Mt. Vernon program. Guardianship petitions were or will be filed for eight clients. One of these clients will need to set up a special needs trust for her son who received a small personal injury settlement, once she is appointed her son’s guardian. One family was referred to private counsel because the child had received a large malpractice settlement. In addition to the Mt. Vernon clients, we worked with six other clients seeking guardianship, three from Westchester and three from the Bronx.
In each case the family members were extensively counseled about the options available to them and how to manage their relative's funds without jeopardizing their eligibility for government benefits. Parents were encouraged to name standby and alternate guardians so that a guardian of their choosing will have authority to make decisions for their children when they die or become disabled. Clients were also counseled about other planning such as designating guardians for minor children and preparing wills and health care proxies.
Social Security Cases
A student attorney represented Mr. E. at an administrative hearing before a Social Security Administrative Law Judge. Mr. E., who is profoundly deaf, had been charged with an overpayment of disability benefits. Mr. E. had appeared at his first hearing without counsel and then, again on his own, appealed the adverse decision to Federal Court. After the case was returned to the ALJ for a second hearing, Mr. E. sought help from the Clinic. Because Mr. E. had amassed some savings the ALJ determined after the second hearing that Mr. E. can afford to pay back the overpayment, even though he was not at fault in causing the overpayment. Objections have been filed with the Appeals Council, the next level of appeal.
A student attorney also assisted L.A., a home-bound client with several chronic illnesses. After Ms. A. spend two months in a nursing home recovering from a fall, she was told that she would have to repay her SSI benefits for the months she spent in the nursing home. The student attorney representing Ms. A. researched the issue and determined that Ms. A’s doctor should have asked that her benefits be continued since she needed to be in the nursing home for only a short time. The student has appealed the determination and asked that any conferences be held in Ms. A.’s home.
The Clinic was asked by the Westchester Human Rights Commission to represent an elderly woman who had made a complaint alleging discrimination based on age and disability. The Commission had found “probable cause,” but the complainant needed representation at the administrative hearing. Unlike the State Division on Human Rights and the New York City Commission on Human Rights, the Westchester Human Rights Commission does not have the authority to prosecute cases itself beyond the probable cause stage. Complainants must either represent themselves or obtain counsel.
Ms. R. is an active 88 year old who is a member of the Travel Club sponsored by her condominium association. She occasionally uses a walker. After the Travel Club enacted a rule that persons dependent on walkers, oxygen and scooters could not travel without a companion, Ms. R. filed her complaint with the Commission. Because the hearing was scheduled to take place shortly, all the Clinic students worked on Ms. R.’s case, doing legal research, and interviewing and preparing witnesses. The day before the hearing was scheduled, the respondents went to Supreme Court and obtained a stay of the proceedings, claiming that the Commission did not have jurisdiction. The case was returned to the Commission for a hearing on jurisdiction which took place on May 18. The hearing was entirely handled by two students who made opening and closing statements and examined and cross examined witnesses. A post-hearing brief has just been filed. If the ALJ finds that the Commission has jurisdiction, a faull hearing on the merits will be scheduled for the fall.
The Clinic also assisted Ms. G., a young disabled woman who has a service dog. Ms. G.’s landlord threatened to evict her because of the dog. The students assigned to Ms. G. discovered that under Westchester law, the landlord could not evict Ms. G. because he had known about the dog for more than three months before taking action.
Last fall, the Westchester chapter of the National Alliance for the Mentally Ill (NAMI) asked for assistance concerning the Medicare prescription drug plan (Part D) that was beginning on January 1, 2006. The entire Clinic collaborated on learning about the new law and preparing a presentation for family members and beneficiaries. In addition to the presentation, which included power point slides, the students prepared a comprehensive handout. The presentation was given twice, once at the NAMI chapter meeting and a second time at the Law School for students, faculty, staff and community members. For the meeting at the Law School, the students did outreach to community groups and prepared publicity packets. Copies of the handout and flyer are attached.
Prof. Flint also was the featured speaker at a meeting of a support group for family members of high functioning persons with autism and Asperger’s Syndrome. This talk focused on benefits available to disabled persons such as Social Security and SSI, Medicare and Medicaid and how parents can assist their adult disabled children without jeopardizing their government benefits.
III. Plans for the Future
Ten students have enrolled in the Clinic for the 2006-2007 academic year. We will continue to offer high quality representation to disabled persons and their families in Westchester and neighboring counties. We expect additional referrals of discrimination cases based on age and disability from the Westchester Human Rights Commission. Because these cases provide students will a full range of litigation experience in relatively short time frame, they are ideal cases for the Clinic.