Thoughts on the Repeal of the Affordable Care Act

Valerie Bogart, Director, EFLRPThere is much we do not know – and won’t know for months – about what comes next now that Congress has taken initial steps toward the apparent repeal of the Affordable Care Act (ACA). What we do know is that the ACA has improved the lives of millions of Americans, and its repeal – along with proposals to block grant Medicaid — will affect vulnerable Americans from all age groups and populations.

It is estimated that 18 million people could lose insurance in the first year after repeal of the law, and the number will increase to 27 million the following year. Those affected would include low- and middle-income people enrolled in private plans through the ACA’s online insurance marketplaces as well as those who have taken advantage of expanded access to Medicaid. The repeal would also mean higher costs and fewer protections for people who receive insurance through their employer, or are covered under Medicare.

Since the ACA took effect 16 million Americans have gained coverage through expanded access to Medicaid. A recent report by the Department of Health and Human Services looks at the impact of Medicaid expansion under the ACA in the 31 states that have adopted it. Their findings show that the expansion states have seen a reduction of 9.2 per cent in the number of uninsured adults. There has been increased access to primary care and a greater increase in the use of preventive services. What is more, expanded Medicaid coverage has improved the financial stability for enrollees, who have a reduced likelihood of bankruptcy and a 10.5 per cent decrease in the number of people having trouble paying medical bills. No, the ACA is not perfect. Like all huge programs improvements are needed. But wholesale elimination without a comparable replacement will be catastrophic.

One particularly vulnerable population that gained coverage either through the marketplaces or Medicaid expansion are adults age 55 to 64 – an estimated 4.5 million people who would lose coverage nationwide. Before the ACA, these older individuals were caught in a double bind: they were too young to receive Medicare but were barred from Medicaid in most states, no matter how poor, if they were not disabled and if they no longer had young dependent children at home. (New York was one of the few states that provided coverage for this population before the ACA.) With the potential repeal of the law, these “singles and childless couples” under age 65 will lose coverage and have no way to pay for health care while they wait for years, literally, to be determined disabled or until they reach age 65 and become eligible for Medicare. They are also the first who will face pre-existing condition exclusions if those ACA protections are repealed from private health insurance coverage.

The ACA has increased funding for home-care services, allowing more older people and those with disabilities to stay in their homes and age in their communities. If the law is repealed, more people will be forced into nursing homes, while the loss of financial protections for married couples would mean spending more out of pocket to keep their loved one at home.

The ACA has provided a stable safety net for millions of Medicaid recipients by strengthening the partnership in which the federal government shares with participating states the actual costs of the program. If that fiscal partnership falls away and is replaced by a block grant scheme, states will receive a fixed amount of federal funds annually based on past costs instead of a percentage of actual costs incurred. With a cap on federal spending regardless of need, states would be left unprotected if costs were to go up because of a public health crisis (think Zika or the opiod epidemic), the rising costs associated with an aging population, or the impact of a natural or manmade disaster.

The repeal of the ACA without a comparable replacement would put at risk all the gains we’ve made in expanding health coverage to a greater share of people and in strengthening the nation’s health care system. Let us hope that the enormous outpouring of support from around the country for maintaining the provisions of the ACA and the voices of concern raised about the enormous human and economic costs associated with reversing it will be heard in Washington in the days ahead.

For more information on advocacy to preserve Medicaid, please find up-to-the minute analyses from Justice in Aging, Community Catalyst, the Kaiser Family Foundation, the National Health Law Program, and Families USA. On related efforts to preserve Medicare, please visit the websites of the Medicare Rights Center, AARP, and the Center for Medicare Advocacy.

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My Day and Night at JFK

grace kao blog cardWhen President Trump’s Executive Order (EO), Protecting the Nation from Foreign Terrorist Entry, was signed late on Friday, January 27, it was still unclear to many in the legal community how quickly federal agencies would begin implementing the order. Initially, a lot of people believed it could take months for Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) before the order was implemented. However, by Friday night, refugees and other arriving noncitizens flying into airports were stopped and detained. On Saturday morning, immigration advocates all over the country woke up to the news that two Iraqi refugees had been detained at John F. Kennedy International Airport.

On Saturday evening, I went down to JFK with a friend, a criminal defense attorney. We had no idea how we could be helpful, but we knew we had to at least try. We arrived close to 8:30 pm, just in time for news to break that Judge Ann Donnelly in the Eastern District of New York had granted a temporary stay, ordering that refugees, visa holders, lawful permanent residents, and others held at airports could not be sent back to their home countries. Despite the good news, my friend and I knew that there were still people being detained, and wanted to help. The scene at JFK was chaos – when we tried to walk toward the area where the attorneys had set up camp, we were physically blocked and directed outside by New York Port Authority officers. We tried unsuccessfully to reenter the terminal in various ways, wielding our attorney business cards like entry tickets, but after an hour of being shuttled outside to join the general protest, we left for the night.

Diner at Airport maybe JFKWe returned the next day to find the scene was only slightly less chaotic. The attorneys had organized some sort of command center at the Central Diner in Terminal 4, the only 24-hour international arrivals terminal in the airport. People were running around, trying to collect information about detained individuals, speak to family members, field media inquiries, train new volunteers, compile data, and write habeas petitions. I went straight to check-in and identified myself as an immigration attorney. I was quickly dispatched to Terminal 7 with a team of other volunteer attorneys and law students.

At the smaller terminals, we would stand at the exit when international travelers disembarked from the planes with signs offering free legal assistance to anyone who had been detained, or whose family members had been detained. We asked disembarking travelers if they had seen anyone get pulled aside and questioned. We canvassed the area looking for family members waiting for their loved ones.

By Sunday night, no refugees were coming on these flights anymore. Most of the people requiring assistance were lawful permanent residents held for anywhere from 3 to 12 hours for secondary screening and questioning, or valid visa holders such as F1 students, who were facing problems reentering the country.

After a few hours in Terminal 7, I was dispatched to Terminal 1 to relieve the only immigration attorney staffed there. She was coming off a 9-hour shift. At each terminal, attorneys would set up camp at outlet stations near the exits of the terminal gates, and spend most of the night sitting on the floor, working on our laptops or looking for family members who needed assistance. While I was there, every detained passenger we identified and monitored was eventually released after a few hours. So, we focused on doing post-detention intakes to find out if anyone had been subjected to coercive tactics, or interrogated about their political and religious views. Speaking to the detained individuals to inform them of their rights was completely out of the question.

When, after midnight, it became clear that nobody else was coming through Terminal 1, the small group of volunteers who remained went back to headquarters at Terminal 4 to debrief and make sure all of the data we had collected was put in the right hands. By then it was 3:30 am and I had work the next day.

Attorneys at JFK 01 2017There are still many people on the ground working 24 hours a day to provide legal assistance. I was just grateful for the opportunity to do my part to help out. My experience at the airport reminded me strongly of the time I spent as part of a fellowship representing refugee women and children detained at the Texas border. Even though attorneys were working with imperfect information and on extremely short notice, I found that there was a community of people willing to stay all hours of the day just to make sure that nobody would be wrongfully deported and that families would be safely reunited.

I expect that for the next few days there will still be chaos in the airports as we try to address the constantly shifting landscape of immigration law. It remains crucial for attorneys to be present and make their presence felt. Refugees and people with valid visas or green cards will continue to be harmed without the vigilant surveillance of the legal community.

Governor Cuomo has also set up a hotline to report loved ones who are passengers on incoming flights and believed to be either missing or detained at: 1-888-769-7243. To report people abroad getting turned back from boarding airplanes to the U.S., CBP noncompliance at airports, or any other information about airport intimidation, please send information to [email protected].

 

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Guest Blog: Prepare to Dig in to Preserve Legal Aid

GUEST lonnie powers blog card 410We don’t quite know what to expect from the federal government in the weeks and months ahead in terms of support for civil legal aid. For decades, support for the Legal Services Corporation (LSC), the nonprofit that administers federal funding to legal aid programs across the country, has been seen as a smart investment by members of both parties.

In 1964, Congress passed the Economic Opportunity Act, a centerpiece of President Lyndon B. Johnson’s anti-poverty agenda. The law aimed to eliminate poverty by giving poor people access to educational and vocational programs, loans, and other services that would help them achieve greater financial security. It quickly became clear that free legal advice or representation in non-criminal legal matters like child support and custody disputes; home foreclosure or eviction; wrongful termination from a job, and accessing veterans’ services provided stability that was just as vital to fighting poverty as educational and financial supports. Civil legal aid became a key part of the effort to fight poverty in America.

Like Johnson before him, President Richard M. Nixon understood the necessity of civil legal aid for people struggling to escape poverty. In his proposal to create the LSC, which was passed by Congress in 1974, Nixon called local civil legal aid offices the places where “the old, the unemployed, the underprivileged, and the largely forgotten people of our Nation may seek help.” He added, “Perhaps it is an eviction, a marital conflict, repossession of a car, or misunderstanding over a welfare check—each problem may have a legal solution. These are small claims in the Nation’s eye, but they loom large in the hearts and lives of poor Americans.”

Numerous programs have since demonstrated the wisdom of this approach. Civil legal services can help poor people stay in their homes, prevent sudden evictions by allowing tenants to negotiate exits from housing, and ensure smooth transitions to safe, affordable housing. A pilot program launched in 2009 by the Boston Bar Association showed that poor people fighting eviction notices in housing court in Quincy, Massachusetts fared much better when they were represented by attorneys. Two-thirds of those with full representation kept their housing; only one-third of those who went through housing court without an attorney were able to do the same. Similar results have been found in New York City, San Francisco, and San Mateo County, California.

Legal advocacy in the form of large, class-action lawsuits to change laws and governmental policies that adversely ― and overwhelmingly ― affect poor people, has also been effective in ensuring access to justice regardless of income. In 1970, legal aid attorneys successfully argued before the U.S. Supreme Court in Goldberg v. Kelly that state welfare departments cannot terminate benefits without first providing applicants with a fair hearing. In 1973, California Rural Legal Assistance successfully sued to stop large agricultural operators from requiring migrant farm workers to use short-handled hoes while working in fields. (The short-handled hoes forced workers to stay bent over for long periods of time; field managers required their use because if they saw workers standing up, then they knew that they were resting and not working. After these hoes were banned, back injuries among farm workers dropped by more than 30 percent.) More recently, a federal lawsuit by Greater Boston Legal Services resulted in changes in policy by the Massachusetts Department of Transitional Assistance which had improperly denied benefits to people living with disabilities.

Despite these clear successes, state and federal funding for civil legal aid is well below what is needed ― studies show that more than 63 million Americans qualify for LSC-funded civil legal assistance, yet about 80 percent of the serious legal needs of low-income Americans go unmet. Civil legal aid must be deployed more broadly in future efforts to combat poverty, and public resources for legal assistance must be increased greatly in order to maintain progress. President Obama, a strong supporter of civil legal aid, secured modest funding increases during his tenure (though some were rolled back). He also expanded access to legal aid services through initiatives like the White House Legal Aid Interagency Roundtable (LAIR). The Roundtable has made available more grant funding for legal aid, conducted new research, and provided education to federal agency staff about how civil legal aid advances federal priorities, among other activities. But much more is needed, in terms of resources and political will, if we are truly serious about helping low-income Americans establish and maintain independent, financially secure lives.

Any attempts to weaken or dismantle federal civil legal aid must be met with principled advocacy and resistance by the legal community, social justice activists, and civil rights organizations. Civil legal aid is a powerful ― and much needed ― tool that helps people living in poverty build a foundation of stability so they can create a better future for themselves, their families, and our communities.

This blog originally appeared in The Huffington Post on January 3, 2017.

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The Invisible Veterans

sam kubek blog cardWomen are the fastest growing veteran population, with 2.2 million women veterans representing every branch of the military living nationwide, a number that is expected to double over the next ten years. That’s ten percent of the current veteran population. But as more women veterans return to civilian life, many are facing new battles at home.

According to the Department of Veterans Affairs, one in four women seen at a VA health facility reports experiencing military sexual trauma while in service. Women veterans are the fastest growing segment of the homeless veteran population. One in five women veterans of the wars in Iraq and Afghanistan has been diagnosed with post-traumatic stress disorder. One third of women Veterans experience intimate partner violence, an increase from the already astounding number of one in four among civilian women. The rate of suicide is two and a half times higher among female veterans when compared to civilian adult females.

The plight of returning female veterans has not gone unnoticed. Helen Thorpe, author of “Soldier Girls: The Battles of Three Women at Home and at War”, wrote a moving Op-Ed for the New York Times about the dearth of services at VA hospitals for women veterans, and the pervasive sense they share that the system seems not even to acknowledge that they exist. Thorpe cites a study published last year by Disabled American Veterans, a nonprofit and advocacy group that chronicles the many challenges women face when they leave military service, including access to health care, readjustment benefits and employment assistance.

The VA is responding. It recently launched a social media awareness campaign featuring the military and social contributions of women veterans and providing information about how they can access a range of benefits and services. A Women Veterans Call Center has also been created, where female veterans can learn more about services available to them.

In my conversations with professionals working in this sphere, the importance of creating gender-specific interventions to support our female veterans is a constant refrain. According to Jennifer Friedberg, the Women Veterans’ Program Manager at the Manhattan campus of the VA NY Harbor Healthcare System, “Some women Veterans, particularly those who have sexual violence or military sexual trauma histories, worry about privacy and respect from male Veterans when they come to VA medical centers. For this reason, at, we feel it’s essential to provide clinical and mental health services in an environment that’s sensitive and safe for women Veterans. This means that whenever possible, we offer women Veterans the option of having a woman provider and we make private treatment rooms available in the Women’s Health Clinic and Emergency Department.”

I am with NYLAG as an Equal Justice Works Fellow sponsored by Greenberg Traurig, LLP and Greystone & Co., Inc. Equal Justice Works is a national leader in creating public interest opportunities for law students and lawyers. I am part of NYLAG’s LegalHealth division, which partners with medical professionals across the city, including VA hospitals, to address the legal needs of low-income individuals with serious health problems. We are establishing new legal clinics exclusively for women veterans at the VA Hospitals in Manhattan and the Bronx. (Our first informational session, held on December 12, was attended by 30 women who had so many questions that the hour-long session ran over by half an hour.) The clinics are designed to provide holistic care to women veterans and a safe space where they can receive the legal help they need. As a survivor of trauma, I know firsthand the importance of having support networks that will serve as a voice for those who are unable to access justice.

Many veterans who survived military sexual trauma were given less than honorable discharges as a result of “bad behavior” or in retaliation for reporting their assaults. This can render a veteran ineligible for VA healthcare. For some, their status means they cannot secure a job, leading to housing instability and, for many, homelessness. The U.S. Department of Housing and Urban Development estimates that 39,471 veterans are homeless on any given night, and roughly 3,500 of these veterans are women. By helping them apply for a discharge upgrade, we can help many of these women access the healthcare and financial compensation they need to get back on their feet. Veterans with honorable or general discharges can apply for compensation for service-connected disabilities such as PTSD. Additionally, current VA policy states that survivors of military sexual trauma can receive care at a VA hospital, regardless of discharge status, but many women veterans are unaware of the resources that may be available to them. Thanks to our collaboration with the healthcare providers at VA hospitals we can help them know when their patients may have a legal remedy to their problems, and to better understand common issues faced by their patients.

Vice President Joe Biden recently described caring for our veterans as our “one sacred obligation”. As the number of women service members returning to civilian life increases, we cannot ignore the hurdles they face. This past Veteran’s Day was the first to take place following the lifting of the ban on women participating in ground combat. It is now more important than ever to address the needs of this growing part of the veteran community, and assure that they are not forgotten.

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Save DACA

Irina Matiychenko Blog CardIn the wake of the recent election, millions of undocumented immigrants in the United States are uncertain about what their futures hold. In particular, those who have benefited from the Deferred Action for Childhood Arrivals (DACA) program fear that they will soon become eligible for deportation from the only country they have ever known.

I strongly urge President-Elect Trump to refrain from overturning the executive order that brought DACA into existence. Immigrants eligible for DACA, known as DREAMers after the failed federal DREAM Act, exemplify the American Dream. They should be the last people we as a nation choose to exclude.

DACA-eligible immigrants are young people who were born in another country but brought to the United States as young children, often by parents searching for a better life for their families. DREAMers were raised in the United States, attend schools here, and pay taxes here. They are educated; they speak English. They serve in our military. They have the same values and aspirations as natural-born citizens, they love their country, and they want an even better future for their children. In short, they are Americans.

While not giving them a path to citizenship, DACA provides a mechanism for these young DREAMers to receive work authorization, get social security cards and driver’s licenses, and live without the constant fear of deportation. It gives them legal status so that they can contribute to their country. With the stroke of a pen, the more than 700,000 DREAMers who have obtained DACA since 2012 could immediately lose their status, and the country would lose an important and valuable resource.

If the new administration chooses to repeal DACA, the consequences will be myriad and severe. Without the benefits of DACA, hundreds of thousands of immigrants will find themselves without the opportunity to continue their education, or to work and contribute to the economy. Overnight, these immigrants will be forced back into the shadows. The U.S. will lose billions of dollars in tax revenue.

The time is now to reassure DREAMers that the United States is and always has been a nation of immigrants. Punishing them for the actions of their parents is not only unfair. It’s un-American.

immigration protest

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Housing Policy Punishes Vulnerable Immigrants, NYC Can Help

brian hilburn blog cardIn the aftermath of the election, no population has been left with more uncertainty about what their future holds than immigrants. In New York, we are fortunate to be part of a community that has long championed immigrant’s rights and celebrates the contributions they make. As the City’s leaders grapple with the best way forward to protect and defend the rights of immigrants, I have a recommendation that would help to provide vulnerable families with a measure of economic security and peace of mind.

I am an attorney with LegalHealth, a division of the New York Legal Assistance Group. My colleagues and I partner with hospitals across New York, providing free legal services to low-income patients. We train healthcare professionals to understand the non-medical barriers, such as a lack of health insurance or public assistance, that impede a patient’s treatment or recovery and work alongside them at healthcare facilities to find legal solutions to these problems.

One area of particular concern is housing instability, which has been linked to a multitude of health problems: people who are homeless are more likely to visit the emergency room, have longer stays if admitted to the hospital, and be readmitted within 30 days. Preventing homelessness for our clients, many of whom are immigrants, is a high priority.

Among the undocumented immigrants we serve are so-called “mixed-status” households in which family members include people with different citizenship or immigration statuses. Often, the parents are undocumented and the children are U.S.-born citizens. They are uniquely at risk of homelessness.

Under federal regulations, undocumented immigrants are prohibited from receiving federal housing subsidies. But if one household member has an eligible immigration status, the entire family may reside in public housing. However, the regulations require that local agencies, including the New York City Housing Authority (NYCHA), use a formula to calculate their rent by pro-rating the federal housing subsidy, which results in mixed-status families being required to pay a greater percentage of their income in rent than immigrant-eligible families.

The penalty for living in a mixed-status household is felt even more harshly by low-income families. We have a number of mixed-status clients who wind up in eviction proceedings because they cannot afford their NYCHA rent. Inexplicably, the formula, which is complex and somewhat unclear, appears to dictate that the lower a mixed-status family’s income is, the higher the percentage of their income must go to pay rent.

Our client Alma (not her real name), for example, is an undocumented mother of a 19-year-old U.S. citizen daughter who suffers from muscular dystrophy. She depends on her mother for all her activities of daily living, making it impossible for Alma to work. Their sole income is the daughter’s monthly Supplemental Security Income of $733 (the maximum benefit provided). Based on the NYCHA formula, Alma’s monthly rent is $533 – 73% of her income versus the 30% rate for immigrant-eligible families. Obviously, this leaves her unable to pay the rent and other living expenses. She repeatedly ends up in Housing Court, where we first met her at a non-payment proceeding. Just a year earlier she had received a grant from the City to settle a previous non-payment proceeding. Alma will need yet another such grant to resolve the current matter.

Given New York City’s efforts to curb homelessness, it seems clear that the federal housing policy runs counter to the City’s goal. It is also putting many U.S. citizen children at greater risk of homelessness because their parents happen to be undocumented. They are, in essence, penalized for their parents’ immigration status. While this is at least in part due to federal policy, there is a step the City could take to reduce the burden of this penalty.

New York should pay the difference between the mixed-status, pro-rated rent and the statutory rent. This would allow these families to pay a cap of 30% of their income in rent, lessening their risk of homelessness and allowing them to maintain stable housing. New York City is already paying for many of these families through its grants program. The City would likely save money by providing the remainder of their housing subsidy up front, instead of depleting valuable Housing Court resources and subjecting these families to the stress of multiple court proceedings and the constant fear that they will lose their homes.

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Reverse Mortgages: Unintended Consequences

jessica scholes blog cardShirley, a 79-year-old homeowner, has lived most of her life in the Manhattan home her parents bought over 70 years ago. In 2009, Shirley decided to take out a reverse mortgage, or Home Equity Conversion Mortgage (HECM) in order to provide additional income for herself and her sister, who both rely on Social Security benefits as their sole source of income.

Reverse mortgages are designed to allow older homeowners to convert some of the equity in their homes into a loan that will enable them to remain in their homes for the rest of their lives. After they die, their heirs have a year to repay the loan. Homeowners who opt for a reverse mortgage do not make monthly mortgage payments. Instead, they take a lump sum payment at the time of closing, receive monthly installments, or use the proceeds to pay off an existing mortgage and receive no payments. They agree to be responsible for paying their homeowners insurance and property taxes. If they do not, or if they fail to meet a few other specific conditions, the bank can start foreclosure proceedings.

Shirley came to NYLAG in 2015 after she tried to pay her property taxes and discovered that Champion Mortgage, her mortgage servicer, had already done so without her consent. Champion was demanding that she repay thousands of dollars she did not have in unpaid property taxes and homeowners insurance. Worse, NYLAG discovered that Champion had instituted a foreclosure proceeding against her in court a year and a half earlier – without Shirley’s knowledge.

When I got involved in Shirley’s case, I requested numerous documents from Champion’s attorneys in order to figure out what had happened. It took four months, an order from a court Referee, and complaints to the New York State Department of Financial Services, the New York Attorney General, and the Consumer Financial Protection Bureau to get even basic information about how much money Shirley owed and for what. Champion claims that Shirley owes the servicer approximately $15,000 for a combination of unpaid property taxes and homeowners insurance. Despite the fact that New York City allows payment plans for homeowners who have outstanding property taxes, Champion paid Shirley’s arrears, called her entire loan balance due, and began a foreclosure case against her. Champion refused to provide her with a repayment plan for her outstanding charges, so Shirley is now applying for a grant from New York City’s Human Resources Administration that might allow her to keep her home.

Shirley’s case is unfortunately not unique. NYLAG has seen increasing numbers of reverse mortgage foreclosures in New York City and on Long Island. Many of the seniors we meet at legal clinics report significant problems with their reverse mortgage servicers, including failure to offer repayment plans or to honor existing plans; failure to notify homeowners about outstanding charges; and failure to communicate clearly about what is occurring. These problems are exacerbated by the fact that most seniors do not have legal assistance. Additionally, many seniors may not have understood the requirements of their reverse mortgages originally, as New York does not require an attorney to be present at the closing.

Reverse mortgage foreclosures in New York receive fewer legal protections than conventional mortgage foreclosures. Servicers are not required to give homeowners 90-day notice before a foreclosure starts, and generally reverse mortgages do not receive settlement conferences where homeowners are given the option to negotiate with the bank or apply for a loan modification. As a result, the foreclosure process is often much faster than conventional mortgage foreclosures, leaving homeowners without the time they need to work out a solution and keep their homes.

 

 
There are no loan modification programs for reverse mortgages, and repayment plans are governed by regulations created by the Department of Housing and Urban Development (HUD), which insures most reverse mortgage loans. HUD’s regulations for reverse mortgages have changed repeatedly in the last few years and have been difficult for both advocates and servicers to interpret. Many servicers, for example, mistakenly cite out-of-date HUD regulations when refusing to provide repayment plans. HUD guidelines also often leave repayment plans to the servicer’s discretion, leaving no recourse for homeowners.

The problems I’ve described—the lack of legal protections, servicers’ inadequate communications with senior homeowners and/or their attorneys, and changing guidelines from HUD—may very well prevent many seniors from holding on to their homes. The clients we assist generally do not have the ability to find alternate housing or money to move, a process which can be difficult at any age. These seniors also never thought that they would need to move when they were in their eighties, often in poor health: the reverse mortgage was supposed to prevent exactly that outcome.

There are multiple steps that can be taken to remedy these issues. New York State should enact more significant legal protections for vulnerable senior citizens in reverse mortgage foreclosures, such as allowing them to participate in settlement conferences. Enforcement agencies at both the state and federal levels should investigate reverse mortgage servicers to ensure that they communicate clearly with borrowers and are willing to work out solutions that keep homeowners in their homes. (In recent promising development, the New York State Department of Financial Services recently began an investigation into the reverse mortgage practices of Champion Mortgage and Reverse Mortgage Solutions, another servicer.) HUD should also clarify existing reverse mortgage guidelines and consider adding new ones. Possible changes might include requiring face-to-face interviews with seniors before beginning foreclosure cases and requiring repayment plans within prescribed parameters, rather than giving servicers discretion about whether to offer repayment plans.

The reverse mortgage program is intended to offer older homeowners the chance to stay in their homes for the duration of their lives, and any new guidelines or legal protections must always take that broader goal into consideration.

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Expecting a Baby? Know Your Workplace Rights

Nina MartinezThe election season has generated a good deal of conversation around women’s rights at work, from the gender pay gap, to the dearth of women in leadership positions, to incidents of sexual harassment. One particular workplace abuse, however, has not gotten much play: discrimination against pregnant employees. This is unfortunate given the fact that thousands of pregnancy-related discrimination claims are filed each year with the Equal Employment Opportunity Commission (EEOC).

When faced with discriminatory treatment in the workplace, pregnant employees in New York City should be aware that they have a range of protections available to them under city, state, and federal law. Although efforts to obtain these protections represent a hard-fought battle for women in the workplace, they are progressively expanding through the enactment of more targeted reforms.

The federal protection against discrimination on the basis of pregnancy is rooted in Title VII of the Civil Rights Act of 1964 (Title VII). Title VII prohibits discrimination on the basis of sex, race, color, national origin, and religion. Curiously, when Title VII was first enacted it did not specifically include pregnancy as a protected trait. In fact, as late as 1976 the Supreme Court ruled  that an employer who treated pregnant workers differently for the purposes of participation in a disability plan was not in violation of federal law.

In response, Congress enacted the Pregnancy Discrimination Act of 1978 (PDA), amending Title VII to include pregnant workers as a protected class. The PDA explicitly prohibits an employer from terminating, demoting, or reducing the pay of an employee solely on the basis of pregnancy, but fell short of obliging them to accommodate employees who, due to pregnancy-related conditions, require temporary assistance. Therefore, in the years following the passage of the PDA, women who had prenatal visits to attend, fell ill due to morning sickness, or took time off to give birth and recuperate were not protected by the law and were regularly terminated for “excessive absenteeism.”

When Congress amended the Americans with Disabilities Act (ADA) in 2008, it expanded the definition of disability to include impairments resulting from pregnancy, such as cervical insufficiency, anemia, sciatica, preeclampsia, gestational diabetes, or depression. The ADA Amendments Act of 2008 eases the burden of an employee to show that a medical condition is a covered disability under the Act. As a result, pregnancy-related conditions that may have prior to 2008 been difficult to request accommodations for are now generally accepted disabilities under the ADA. Because the ADA requires employers to provide reasonable accommodations to employees with disabilities, the 2008 amendments expanded protections for pregnant workers and has allowed them to retain employment prior to giving birth. According to the EEOC’s guidance, accommodations can range from altered break and work schedules in order to rest or use the restroom, permission to sit or stand, ergonomic office furniture, shift changes, and permission to work from home.

The ADA does not, however, consider pregnancy itself a disability and therefore leaves women who have normal pregnancies without the legal option of seeking accommodations at work, despite the fact that they will inevitably require time off to give birth, attend doctor’s visits, and request the occasional opportunity to sit or deviate from standard break schedules.

In 1993 Congress enacted the Family Medical Leave Act (FMLA) to ensure job protection for employees with qualified medical and family reasons, including pregnancy. However, there are significant limitations to FMLA. Most notable is the fact that FMLA leave is unpaid. Additionally, employers are required to provide FMLA leave only where there are at least 50 people employed and an individual has worked at least 1,250 hours within the past 12 months. As a result, a large segment of pregnant workers are not able to take leave either because their employer is not covered by FMLA or their financial situation makes it impossible to take unpaid time off.

In addition to federal laws, New York City employees are covered by city and state human rights laws. In fact, New York’s anti-discrimination laws are the oldest in the country and predate the creation of Title VII. The New York laws are constantly evolving to address the needs of pregnant workers and tend to cover employees who would not be eligible for protection under the federal law. Where Title VII requires that at least 15 individuals be employed for coverage, the state and city human rights laws require just a minimum of four employees. Additionally, the have been liberally interpreted to provide more expansive protections to workers than the federal law. More recent legislation stipulates that employees with normal pregnancies are entitled to the same accommodations as those with ancillary medical issues like preeclampsia. In May 2016, the New York City Commission on Human Rights released robust guidance on pregnancy discrimination. This guidance sets forth very clearly the obligations of employers and the rights of employees in the context of discrimination and accommodations.

Pregnant workers in New York City should reach out for assistance in the face of discriminatory treatment and feel confident that such treatment will be remedied under the law.

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In Support of Intro 214-A

ann dibble blog card 410Yesterday, Beth Goldman, President of the New York Legal Assistance Group, had the opportunity to join a number of advocates, tenants, academics and legal services providers in testifying before the New York City Council Committee on Courts & Legal Services. She was there to speak in support of Intro 214-A, legislation introduced in March 2014 by Council Members Mark Levine and Vanessa Gibson. It has been sponsored by 41 members of the Council and the Public Advocate, and endorsed by the New York Times Editorial Board. The bill would create a right to legal representation for low-income New Yorkers in eviction, ejectment and foreclosure proceedings.

The lack of affordable housing in New York City has become a true humanitarian crisis, increasing homelessness, displacing families that have lived here for decades and irreversibly altering the character of neighborhoods. Low-income New Yorkers at risk of eviction and foreclosure face an enormous justice gap. There is a drastic imbalance in the level of legal representation between landlords and tenants in eviction proceedings, as well as between banks and homeowners in foreclosure actions. These challenges are compounded for low-income elderly, disabled and non-English speaking clients. While the recent increased funding has been highly impactful, funding can be decreased or eliminated. Establishing access to legal counsel as a right for low-income New Yorkers facing eviction and foreclosure would level the playing field and ensure a fairer resolution of such disputes.

As a recent report from the NYC Office of Civil Justice demonstrated, even with the significant additional funding the City has committed to civil legal services, which has significantly increased the number of tenants represented, it remains the case that almost 75% of  most tenants facing eviction and 40% of homeowners facing foreclosure are still unrepresented. The only way to guarantee full representation for all vulnerable tenants and homeowners is to create a right to counsel.

Every day, NYLAG attorneys meet tenants who have unwittingly waived crucial rights and defenses in their eviction proceedings because they were unrepresented and unware of their legal options and remedies. New York City housing law is a vast and complex subject and even the most sophisticated tenants simply don’t know all of their rights. Landlords, on the other hand, are almost always represented by an attorney. This power imbalance results in tragic outcomes every day, including: tenants who sign agreements to move out of an apartment they have a legal right to remain in; who agree to pay large sums for back rent or fees they don’t legally owe; who are intentionally misled to believe that their landlord’s attorney was actually their attorney or a neutral court attorney and as a result enter into an unfair agreement that is not in their best interest; who don’t know how to undo a default judgment that was entered against them because their landlord failed to serve them with court documents; and who agreed to move out of their life-long homes after the death of a spouse or parent because they did not understand their succession rights.

Among homeowners, we regularly meet clients who have been victims of mortgage scams, have already been foreclosed upon, or are on the verge of losing their homes to foreclosure. Often they were unaware that an action had been commenced against them until it was too late, cannot determine who owns their mortgage and therefore whether the person who sued them has standing to do so, and cannot determine whether the amount that is claimed is what they actually owe. Homeowners are often unaware of what modification and other workout options are available to them.

One of the most effective ways for the City to address homelessness and maintain affordable housing is to provide all low-income tenants and homeowners facing eviction with access to legal services. It is far easier and more cost-effective to preserve housing than it is to find housing for an individual or a family that has become homeless. Attorneys are able to protect tenants’ rights, keep tenants in stabilized apartments, assist tenants with obtaining appropriate subsidies, preserve subsidies, ensure housing is safe and habitable and arm tenants with knowledge regarding their rights. When a tenant has an attorney, a landlord is much less likely to pursue a frivolous claim or a course of harassment. Individuals facing the threat of homelessness who are given access to an attorney are less likely to become homeless than those who do not have access to one.

New York City cannot resolve its housing crisis without providing individuals and families at risk of homelessness access to legal counsel as a matter of right.

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No Lawyer on Your Case? Alternatives Can Help.

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randal jeffrey blog cardEver since the Supreme Court handed down its landmark 1963 decision in Gideon v. Wainwright establishing the right to counsel at state expense in criminal cases, those concerned with access to justice have advocated for an extension of this right in civil cases.

While the Supreme Court has extended the right to counsel past the specific holding in Gideon, including to certain “quasi-criminal” cases, it has never interpreted the United States Constitution to require that the government provide a lawyer in purely civil cases. Thus, the provision of counsel to those who cannot afford an attorney has long been left to a patchwork of programs throughout the country. In recent years, however, the right to counsel movement has gained increased attention throughout the United States.

In 2014, several bills were introduced to the New York City Council providing for the right to counsel in Housing Court. While none has been enacted (cost continues to be a factor), the advocacy surrounding the right to counsel in housing court has informed the dramatic increase in funding for legal services. In stark contrast to the federal government, whose funding for legal services has remained flat for years, there has been a renaissance in funding in New York State.

Former Chief Judge Jonathan Lippman led the charge by steadily increasing Judiciary Civil Legal Services funding, set to reach $100 million annually in State fiscal year 2017. New York City has dramatically increased its budget for eviction prevention and anti-harassment tenant protection legal services, and for legal services for the working poor, while the State has increased funding for legal services for homeowners at risk of foreclosure and those seeking disability benefits.

It is beyond dispute that it is better for someone with a legal issue – whether it is an adversarial case in court or an out-of-court legal matter – to have full representation by a lawyer than to be unrepresented. But even if right to counsel efforts are successful for certain types of cases and funding for civil legal services increases even more substantially than it has already, the majority of New Yorkers who cannot afford an attorney will continue to go without full representation for the foreseeable future. This does not mean, though, that they have no options. There are programs in place that can and do play an important role in bridging the justice gap.

A View From the Field

New York State, with the judiciary at the helm, has been a leader in establishing programs that provide legal information to a large number of litigants and limited representation to others, recognizing that current resources are insufficient to provide full representation in all cases, and that alternatives can have a positive impact. Each of these programs is unique, filling a niche within the broader effort to improve access to justice. NYLAG has participated in many of these efforts.

Legal help desks represent the highest volume of legal assistance to unrepresented litigants. Housing Court Answers, for example, has been providing information and assistance to housing court clients since 1981. With so many unrepresented litigants in the courts and before administrative agencies, help desks play a pivotal role in ensuring that these litigants have access to at least some legal information to assist them with their cases.

Other valuable programs include the Court Navigators Program in Brooklyn the Bronx, whose services range from what can best be termed as moral support to explaining the court process to litigants, and Legal Hand, an initiative to provide legal information, assistance, and referrals at neighborhood storefronts in areas with a high need for legal services.

The Mobile Legal Help Center (MLHC) was launched by the Access to Justice Program in partnership with NYLAG in 2012. The first of its kind in the country – a law office on wheels – the MLHC provides direct community access to legal services at a different location, every day. Another Access to Justice initiative, Court Do-It-Yourself forms, offers pro se litigants 24 interactive programs for the drafting of forms for various court actions.

The Volunteer Lawyer For a Day program, launched by Access to Justice in 1997, provides limited scope representation to pro se litigants who are being sued for consumer debts. Pro bono attorneys and student volunteers advise clients under the supervision of an attorney from one of several legal services agencies, including NYLAG. Since its inception, the program has represented over 20,000 litigants.

A final program of note began in the wake of the Great Recession, when New York State instituted settlement conferences as a mandatory first step for mortgage holders pursuing foreclosure litigation. Representation in settlement conferences has proven to be an effective means to resolve some foreclosure cases without the need for full litigation.

Alternatives to Full Representation in Practice

US Supreme Court

Beyond the direct impact these programs have on improving outcomes for litigants, they also place lawyers directly on the ground, where they become aware of systemic problems both with the administration of justice and in the substantive areas of law. For example, lawyers providing limited legal services in court have been instrumental in changing the culture of the courtroom, ensuring that represented plaintiffs do not take advantage of unrepresented litigants. Similarly, help desk staff have identified trends and problems that the courts have then been able to address.

It is important to note that, just as seeking the right to counsel in certain limited types of cases does not diminish the argument or necessity for seeking this right for other types of cases, so too the provision of less than full representation for some clients does not diminish the argument that full representation should be provided in those types of cases in the future. Judge Lippman has advocated for such an incrementalist approach, while recognizing the benefits of full representation. Under this approach, the courts, in partnership with the legal services community and the bar more generally, pursue a wide range of initiatives that allow us to “incrementally move closer to a civil Gideon.”

Ultimately, there should be a greater investment in continuing to review these programs in order to more fully appreciate their impact. Such evaluations will go far to confirm what those involved in these programs already know: in a world where low-income families and individuals face pervasive civil legal services needs – and resources are limited – alternatives to full representation play an important and effective role in expanding access to justice.

This article is excerpted from an essay by Mr. Jeffrey in IMPACT, a collection of essays published by the New York Law School’s Impact Center for Public Interest Law. You can read the full essay here.

 

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