Advocating on behalf of the disabled has been an important part of Sonnenschein’s pro bono mission. The firm has an outstanding record nationwide tackling cases on behalf of the disabled in the realms of health care, employment, and other areas covered under the Americans with Disabilities Act. Our lawyers have filed suit on behalf of disabled individuals and classes of persons, including children, who have seen their rights abridged.
Representative Engagements
Learning-Disabled Teen Wins a Major Education Victory
Rachel Balaban has won an extraordinary victory in New York, earning the right for a learning-disabled teen to receive a private-school education and private tutoring at state expense to make up for past failures to provide the boy with a proper learning environment.
The boy's mother had been trying to have her learning-disabled son placed in an appropriate special education program since he entered high school in the Bronx in 2005. The son has various disabilities, ADHD and elevated anxiety and stress levels. His Individualized Education Programs or IEPs (mandated by the Individuals with Disabilities Education Act) have stipulated throughout his high school years that he is to learn in a small classroom setting only with other special education students.
Instead, he was placed with a mix of general and special education students in a large, collaborative, team-teaching classroom. The mother's efforts to have him placed in an appropriate learning environment were ignored. Representatives of the New York state Department of Education (DOE) offered to place the boy in two other public high schools, but the mother rejected these placements because she believed that the schools were in unsafe neighborhoods where her son would be uncomfortable and unable to learn. At a hearing before an impartial hearing officer last December, the mother and her son's tenth-grade teacher testified on his behalf, seeking to have the son placed in an appropriate classroom where he would feel safe and secure and receive private tutoring selected by the mother as compensation for the DOE's failure to comply with the boy's IEPs. On Jan. 2, the hearing officer ordered that, because of its gross violations, the DOE must provide a list of special education programs at state-approved private schools and cover the boy's tuition at one of these schools as well as the cost of one-on-one tutoring at a private agency of the mother's choice. The DOE has a limited time period in which it can appeal to the Office of State Review. New York Lawyers for the Public Interest, which referred the case to Sonnenschein, views this as an extraordinary and exceptional result.
Missouri Case Presses for Voting Rights for the Mentally Ill
Imagine you had a mental disorder that, without the help of medication, left you unable to dress or feed yourself. Imagine that, to ensure proper care, you were placed under the guardianship of another. Now imagine that because of these circumstances, you were denied the right to vote. For hundreds of people in Missouri, this is reality because state law prohibits voting by persons who have been placed under full guardianship due to mental incapacity.
Sonnenschein is helping them win their rights back. The firm helped bring a lawsuit in the U.S. District Court for the Western District of Missouri on behalf of Robert Scaletty, a Missouri man who has schizophrenia and was placed under full guardianship in 1999. Under that arrangement, Mr. Scaletty was supposed to retain his rights at the ballot box, but in 2004 he received a letter from the Kansas City Board of Elections informing him that he was ineligible to vote.
The district court awarded summary judgment against the plaintiffs in July 2006, and the case is now before the U.S. Court of Appeals for the 8th Circuit, where a three-judge panel, including retired Supreme Court Justice Sandra Day O’Connor, heard oral arguments. “The heart of the case is whether Missouri’s constitution can categorically prohibit all individuals under guardianship from voting,” said associate Barrett Vahle, who is working on the case, along with the Bazelon Center for Mental Health Law, the American Civil Liberties Union (ACLU) National Voting Rights Project, the ACLU of Eastern Missouri and a professor at the Washington University School of Law. “To bar them from voting violates the 14th Amendment. If someone can fill out their registration card and vote, why would the State question anything beyond that?” says Barrett.
Indeed, Mr. Scaletty had already participated in many elections, and Barrett points to research indicating that individuals in such circumstances may, nevertheless, be capable of making reasoned decisions on ballot box issues. A decision is expected at any time, and there is reason to hope for an appeals court victory, says Barrett. A federal court in Maine overturned a state ban similar to Missouri's, and many states have held that people who are incapacitated are entitled to an individual assessment before their right to vote can be revoked.
New York Medicaid Home Health Services Fail to Serve Most Vulnerable Recipients
More than 62,000 residents of New York City currently receive home health care services through the federal Medicaid program. Administered by the New York State Department of Health, Medicaid home health care services enable seriously ill or disabled individuals to remain in their homes and communities, rather than permanently reside in hospitals or nursing homes. Levels of service vary and consist of assistance with personal hygiene, dressing and feeding, and nutritional, environmental and medical support.
When medical benefits are denied, reduced or discontinued, federal law stipulates that the state must provide applicants and recipients with a fair hearing process to challenge the termination or denial of Medicaid benefits, including home health services. Final administrative action must be taken within 90 days from the time a fair hearing is first requested. To provide final administrative action, the state must schedule a fair hearing, hold the fair hearing, render a Decision After Fair Hearing (DAFH) and take action implementing the DAFH. In case after case, medical benefits not only were terminated, but no notice of termination was given to some of the City’s most vulnerable residents.
Four named plaintiffs have filed a class-action lawsuit suit against state officials and various state agencies, charging that the state’s inability to provide or ensure final administrative action within 90 days of requests for fair hearings has created an untenable situation for helpless and needy Medicaid recipients who do not receive care for weeks, months and even years longer than is permissible under the law.
The actual harm and suffering to the plaintiffs is demonstrable and often constitutes irreparable injury. Of these plaintiffs, one is a quadriplegic, confined to a bed or stretcher, another has severe scoliosis as a result of childhood polio, the third suffers from progressive multiple sclerosis and requires total assistance with basic daily activities, and the fourth must cope with severe diabetes, hypertension and arthritis. In more than one instance, care was discontinued without notice and the individual survived through the goodwill of family members, neighbors and friends. Moreover, the state simply did not take or ensure final administrative action within 90 days after requests for fair hearings.
The complaint against the New York City Human Resources Administration, the New York State Office of Temporary and Disability Assistance, and the New York State Department of Health asserts that the state has routinely failed to provide timely and adequate notice of denials, reductions or terminations, and that it additionally has failed to provide and/or continue aid for those recipients who timely request fair hearings to challenge threatened reductions or terminations.
Sonnenschein, along with the New York Legal Assistance Group, initiated a motion for preliminary injunction and class certification on June 21, 2006, in Federal District Court, Southern District of New York.
“We expect several hundred named plaintiffs in this case, given the severity and the extent to which the system has broken down,” notes Robert Gifford, “The risk of life-threatening infections, skin breakdown and bedsores, and debilitating pain for these individuals is extremely high.” Sandy Hauser adds, “The state has failed to comply with federal and state laws and regulations; as a result, the plaintiffs are being improperly denied the medically necessary home health services they desperately need. The efforts of our entire team have been no less than heroic in bringing this case to fruition.”
Partners Sandra Hauser, Michael Gugig, associates Robert Gifford, Eva Lopez-Paredes, Joshua Akbar, and paralegal Bea Ifshin of New York are closely involved in this effort.
