Equal Justice America Disability Rights Clinic

John Jay Legal Services

Pace University School of Law

June 29, 2007

I.          Introduction

            Completing its seventh 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, the Prosecution Externship, the Environmental Law Externship, and new this year, the Honors Prosecution Externship, a joint undertaking with the Westchester County District Attorney’s Office. 

II.         Activities in 2006-2007

            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 2006-2007 academic year, the Clinic was offered as a two-semester course.  Eleven students enrolled for four credits for each semester, for a total of eight credits.    Three of these students were part-time evening students; two were part-time day students and the rest were full-time day students.  All students participated in the seminar which provided two academic credits each semester and each student's case load for the remaining two clinical credits was tailored to his or her interests and time constraints.  For example, a student who was not available during normal working hours was assigned to cases which involved transactional work only, which can be performed during the evening hours and weekends.  Other students with more flexible schedules were assigned cases which involved day-time appearances before courts or administrative tribunals.  Students are required to spend on average five hours per week per clinical credit on case-related work. 

              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 Legal Services of the Hudson Valley, Montefiore Long Term Home Care Program, Mt. Vernon Board of Education, NAMI of Westchester, 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 or self-referred.  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.

            A total of 38 matters were handled by students during the 2006-07 academic year.  Of these, 21 were new matters.  Fifteen matters were concluded by the end of the academic year and 23 are pending.  The cases involved the following substantive areas:

            Area                                                                 Number of Clients

            Lifetime and Estate Planning                              9

            Benefits Issues                                      9

            Art. 17-A Guardianship                                    18

            Other                                                               2

Case Examples

A student assisted Ms. S, a seriously ill elderly woman, with a will and power of attorney.  The student met with the client several times, counseled her concerning her options, and drafted documents which will accomplish her goals concerning the management of her property as her illness progresses and the distribution of her assets after her death.  Because Ms. S. does not have family nearby, she needed to empower her close friends to assist her.

A team of students worked with Mr. H., a disabled man who was a class member in the Zyprexa law suit.  Mr. H., who receives for Supplemental Security Income and Medicaid, wished to place the settlement funds in a special needs trust, so that his entitlements would not be affected.  The students counseled Mr. H. about his options, drafted the special needs trust, obtained approval of the trust document from the Social Security Administration and the Department of Social Services, and assisted the Trustee when the funds were received.  The students counseled the trustee, Mr. H.’s sister, to ensure that she understood her responsibilities and obligations.  The Clinic remains available to the Trustee to answer any questions and assist her with record keeping and reporting.

A student worked with Mrs. S, an elderly widow whose adult child is disabled.  Following her husband’s death, Mrs. S. decided to move to senior housing and have her son move to a group home.  Mrs. S. wanted to make sure that her son’s government benefits would not be jeopardized by any inheritance he might receive at her death.  The student counseled Mrs. S. about creating a special needs trust in her will and advised her that she could fund a trust for her son during her lifetime which would not affect her own eligibility for nursing home care.  The student drafted a will and a special needs trust for the client.   The student also advised the client about the usefulness of a health care proxy and power of attorney and drafted these documents for the client.

We are assisting Ms. M., an elderly woman who cared for her disabled nephew until his death.  Ms. M.’s nephew did not sign a will and she was under the impression that she would receive the contents of the nephew’s bank account upon his death.  We are assisting Ms. S. with locating her nephew’s sister, his heir, and filing a petition for administration of the estate so that the nephew’s funeral bill can be paid and Ms. M. can be reimbursed for expenses that she paid on his behalf.

            We continued to work with families who wish to become guardians of their adult disabled children.  Students worked with 18 such clients during the year.  All clients have been counseled about the guardianship process and assisted in identifying standby guardians and obtaining necessary certifications from doctors and psychologists.  In two cases, we must obtain a Certificate of Relief from Disabilities in order for the parent to be eligible to become her child’s guardian.  Petitions for guardianship have been filed in five cases, three in Westchester and two in the Bronx Surrogate’s Court.  Letters of guardianship have been issued in two of these cases, and decisions are pending in the others.  Petitions are being prepared in the remaining cases and will be filed over the summer.

            We received a favorable decision from Social Security waiving an overpayment incurred by Ms. A. when she received care in a nursing home.  The funds withheld from Ms. A’s SSI check were refunded to her.

            We represented Mr. R., a disabled man, who formerly received Supplemental Security Income and is now receiving Social Security Disability benefits on his father’s record.    The Department of Social Services incorrectly required Mr. R. to contribute over $200 a month of his income in order to maintain Medicaid coverage.  The student compiled the necessary documentation to show that Mr. R. was entitled to Medicaid without a “spend down” and represented Mr. R. at a Fair Hearing,  The Department of Social Services agreed to re-budget Mr. R. and refunded to him a total of $ 2,000.

            The case of Ms. R. before the Westchester Human Rights Commission was settled following a mediation handled by a student team.  The mediation followed a decision by an administrative law judge, following an evidentiary hearing last year, that the Commission had jurisdiction over the matter which involved a travel club sponsored by a condominium association.  The settlement included the rescission of the travel club policy which limited the participation of some disabled members.

Community Outreach

            Prof. Flint also was the featured speaker at a meeting of the National Alliance for the Mentally Ill of Westchester.  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.               Activities this Summer

            With a grant from the Westchester Women’s Bar Foundation, we have been able to hire four students to continue work on the cases which were not completed during the academic year and to begin work on new cases.    These students are working full-time at the Clinic for 10 weeks.  Two students who were enrolled in the Clinic in 2006-07 have continued working on their cases on a volunteer basis over the summer.  In addition to the 23 matters that were pending at the end of the spring semester, an additional seven cases have been opened.

IV.              Plans for 2007-2008

The Clinic is being offered again next year as a year-long course.  A maximum of eight students will be enrolled for six credits each semester.  We anticipate handling a similar mix of litigation and transaction matters.  Because of the work performed by the student interns over the summer, we hope that the students taking the clinic for credit will have the experience of working on at least one case from beginning to end.  We will also strengthen our collaborative relationships with social services and legal services providers, in an effort to fill some of the gaps in service in Westchester and Bronx Counties.