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Daniel Richardson: Legal Aid services benefit all Vermonters

Editor’s note: This commentary is by Daniel Richardson, who is a partner at the Montpelier law firm of Tarrant, Gillies & Richardson. He is the president of the Vermont Bar Foundation, which oversees private grant and fundraising for Legal Aid, Law Line and other legal charities. He is also the past president of the Vermont Bar Association.

Sandwiched between the headlines last week about President Trump’s proposals for Meals on Wheels and Big Bird was news that the administration will also seek to end funding for the Legal Services Corp. (LSC). For Vermonters, the radical cuts proposed by the president portend disaster.

The LSC is a nonprofit corporation that was formed by an act of Congress in 1974. Its mission was and remains to ensure equal access to justice under the law for all Americans. In advocating for the creation of the LSC, President Richard Nixon wrote:

America’s system of law now requires equal treatment for all in our courts of criminal justice. It is no less important that equal access be afforded those who seek redress through our civil laws. We propose no special favors for any group in our society, nor do we seek to mandate the use of the legal system to the exclusion of other social institutions as instruments of social progress. We propose, simply, to protect and preserve a basic right of all Americans.

The LSC and its various state-level entities and partners, such as Legal Services Law Line of Vermont and Vermont Legal Aid, fulfill this promise by putting lawyers in courthouses across the state to represent individuals who could not otherwise afford it. The LSC model is based on a simple idea: If everyone has legal representation, then everyone benefits. This has been proven true over and over again.

Cuts to the LSC and its state partners are wrong. They threaten not only those most vulnerable, but they have the potential to deteriorate a legal system that struggles each day to do more with less. In the short term, these cuts mean fewer lawyers on the ground providing legal services to those in need. In the long term, these cuts threaten to shut off a critical set of services that benefit all Vermonters.

Even if Trump’s plans for total defunding are not enacted, cuts to the LSC and its state partners are all but guaranteed. Eric Avildsen, executive director of Vermont Legal Aid, said recently that his organization and Law Line are anticipating cuts of 5 to 10 percent within the next six months as part of continuing funding resolutions that the House and Senate are likely to approve. Any budget eventually passed will likely deepen the reductions further.

On top of cuts at the federal level Gov. Phil Scott’s budget proposal contains two steep cuts to Legal Aid that total $100,000. These cuts would also mean the loss of matching federal funds. When totaled with the anticipated federal reductions, Vermont faces a loss of over a million dollars in LSC and legal aid funds.

Spend a little time on the Vermont Legal Aid website. You will see that while Legal Aid and LSC provide legal services to the underprivileged, their services are also geared toward larger problems of society, which affect us all.

For a self-represented litigant, navigating court process is like deciding on the right spot to make an incision to remove your gallbladder.

Perhaps the best example of Legal Aid’s large mission is its work in 2008 during the mortgage foreclosure crisis. This crisis hit Vermont. like every other state. with the force of a tsunami. Overnight, banks transformed from lending and investment institutions into foreclosure mills. The number of foreclosure filings spiked to historic highs. The court system was inundated with reams of computer-generated foreclosure documents and hundreds of panicked homeowners were left trying to make sense of a dense, arcane legal process to save their homes.

Into this breach Legal Aid attorneys, led by former Poverty Law fellow Grace Pazdan, stepped up to provide both courtroom triage and advocacy on a state level for better process. As a result of Legal Aid’s work, the Vermont General Assembly and Gov. Jim Douglas adopted a foreclosure mediation program for all homeowners (regardless of income) and a process to slow foreclosures down and require banks to come to the table, negotiate and talk. This was a win-win-win situation. Homeowners gained a forum to talk directly with the banks and a last chance to save their home. Banks received a reliable process where they could negotiate repayment plans without forgoing their rights. Vermonters were spared the crash in home prices that affected so many other communities around the country.

In the past 10 years, LSC and Legal Aid services have grown more important. Vermont, like many states, is facing a legal service crisis. Each year, fewer and fewer Vermonters can afford to hire an attorney, and each year more decide to either forfeit their claims or simply go it alone. By the Vermont Supreme Court’s most recent reports, approximately 72 percent of all cases in the system involve one or more self-represented party. [...]

As Vermonters and as citizens, we have to ask ourselves if the savings promised by the cuts proposed in Washington and Montpelier are worth the price we will pay in the long term. A cut to Legal Aid on the state level might save you a penny on your tax bill. A cut to LSC on the federal level is such a small drop in the bucket it won’t even show up on your return in April. But with each cut, the cost of doing business goes up substantially. For low-income Vermonters, cuts at the state and federal level will mean fewer resources to count on when trouble arises. For the rest of us, it will mean more delays, greater legal costs and longer waits. For employers and businesses, it means a more fragile workforce as employees facing issues previously covered by Legal Aid projects will have nowhere to go. Minor problems will become major. Major problems will become debilitating. That is a cost and a reckoning for each of us, and one that is likely to exceed the penny we keep today.

As we head into the final budget season in the Statehouse, the General Assembly and the governor must restore Legal Aid funding to its current levels. Keep this valuable program in place. At the same time, we need to remind the president and Congress that legal services funding is important and an essential part of protecting and preserving the basic rights of all Americans.

Policy hailstorm strikes Statehouse

Written by Rep. Dave Yacovone

As I was moving through the Statehouse last week from meeting to meeting, I could not get the words of WCAX weatherman Gary Sadowsky out of my head. When there is a big storm, Gary often says, “It’s rain’n in Canaan and pour’n in Warren.”

Well, we had a policy hailstorm raining on us last week in Montpelier.

First came the news that the proposed Trump budget would eliminate the fuel heating assistance program next year, causing roughly 21,000 Vermont households to lose $18 million in financial help to pay their heating bills.

Today, 364 households in Elmore, Morristown, Woodbury and Worcester, the towns in the Lamoille-Washington District, rely on this assistance to heat their homes.

That news was followed by word that the Community Development Block Grant that helps fund village improvements throughout the state will be eliminated. Lamoille County alone has received $7.6 million over the years, including $600,000 to help make affordable housing available in the Arthur’s Building in Morrisville.

On top of that we learned that Community Action, one of the mainstays of the social safety net, would be zeroed out of the budget, as would Vermont Legal Aid. Much of the anticipated funding to help us clean up Lake Champlain would be gone too.

This budget proposal could be the largest transfer in wealth from the poor to the rich in our lifetime as even more tax breaks for the wealthy are proposed.

If all of that was not enough, we continue to hear that the “Repeal and Replace” Trump/Ryan health care plan will cost Vermont a staggering $200 million in lost Medicaid money to help pay for insurance coverage for thousands of Vermonters.

And, finally, was the reminder that we have a $3.2 billion unfunded retirement liability for teachers and state employees that needs funding in the future.

A friend of mine suggested filling all of these budget needs with taxes from Vermont would be like trying to fill the Grand Canyon with a spoon. Legislative leaders are suggesting we should keep our calendars open so we can possibly reconvene in November, after the federal budget is finalized, to determine what we can and should do.

There will be those who rally around tax increases to solve the problem. Others will see this as an opportunity to downsize government. I think I will heed the advice of my late mother who used to tell me, “All things in moderation.”

OneCare drops opposition to open meetings bill

The Senate Health and Welfare Committee passed a bill Tuesday that would require the board of directors at Vermont’s largest health care organization to hold open meetings.

The committee approved S.4 after OneCare Vermont, which opposed a previous version, worked out a compromise with Vermont Legal Aid’s Office of the Health Care Advocate and the American Civil Liberties Union of Vermont.

The bill would require OneCare’s board of directors to hold open meetings starting Jan. 1. The board would be able to go into executive session for any of seven reasons, including discussing personnel issues, negotiating contracts and talking about confidential patient information.

A previous version of the bill had named fewer reasons for executive session. But the new version also has more requirements, saying the board of directors must publicly warn meetings and publish either meeting minutes or recordings. [...]

Mike Fisher, the chief health care advocate at Vermont Legal Aid, said OneCare “came around” on the open meetings bill. Fisher had advocated for the provisions regarding meeting warnings and the publication of minutes.

“We kept asking, ‘What is it that you object to? Is it difficult for you to provide minutes of meetings or notice of meetings or notice of agendas? What is it that’s hard for you to do?’” he said. “And when we really got down to the business of looking at those details, they didn’t have an objection.” [...]

Budget Discussions Continue in Montpelier

It's been more than a month since Governor Phil Scott's first budget address. Since then, committees for both the house and senate have been looking for ways to fill the gaps.

"I think the governor's team appreciates that the original budget as presented is not happening. Now the question is whether they can work with the legislature to come up with an alternative," said Sen. Tim Ashe, President Pro Tempore.

In January the governor level funded the state budget, education spending and also proposed making cuts to human services.

On Tuesday, the House Committee on Human Services held a hearing for advocates from across the state.

"We are problem solvers in the system and we help the system work better and that actually saves money it doesn't cost money," said Eric Avildsen, Vermont Legal Aid Executive.

Avildsen says proposed cuts will require his organization to foot a $44,000 bill for rent that will strain he and his staff.

Avildsen said, "And we will still have that cost come July 1 for next year and if this cut is made then I will have to reduce services because I will still have to pay the rent."

Ashe says there is a lot of work to do in the weeks ahead, but believes cutting programs may not be the answer.

"States that have both been dramatic in cutting programs and taxes as well as states that have been more generous and are viewed as high-taxed states are facing the same financial challenge that we are facing," explained Ashe.

From here the pressure in on as Town Meeting Day is only a week away, 'Crossover' will follow close behind on March 17th, the deadline for which bills must pass out of committee before moving on.

OneCare pushes back on bill that would require open meetings

Vermont’s largest health care organization is pushing back on a bill in the Senate that would require it to hold open meetings.

The bill, S.4, would require OneCare Vermont, which is set up to become a regulated monopoly representing virtually all doctors in the state, to hold open meetings in most circumstances.

The bill’s language is similar to the Vermont Open Meeting Law. That law requires public bodies, such as selectboards and legislative committees, to hold open meetings, with exceptions such as if the public body needs to discuss contracting or personnel issues.

OneCare is owned jointly by the University of Vermont Medical Center and Dartmouth-Hitchcock Medical Center. The company currently has a $93 million contract with the Department of Vermont Health Access to take care of about 30,000 Medicaid patients for calendar year 2017.

OneCare is in the process of joining with a similar company, Community Health Accountable Care, to morph into the Vermont Care Organization, or VCO. Once formed, the VCO would become the regulated monopoly that would take Medicaid, Medicare and commercial payments and then give that money back to doctors based on the quality of care they provide, not the quantity of procedures performed.

The Green Mountain Care Board, a state regulator that will soon be charged with overseeing the VCO, led a nearly two-year effort to have smaller groups of doctors from community health centers and independent practices merge into the VCO. The agreement was the basis for the all-payer model. [...]

Todd Moore is the chief executive officer of both OneCare and the VCO — and the senior vice president of accountable care and revenue strategy at the UVM Health Network. Moore testified against S.4 in the Senate Health and Welfare Committee on Feb. 3.

“The requirements are tantamount to imposing the Open Meeting Act (and actually offer fewer exceptions than the Act itself), despite the fact that those requirements can only apply to public bodies, and the ACOs don’t qualify as public bodies,” he wrote. “In fact, ACOs are private organizations with voluntary contracts with state and federal governments, not quasi-public.” [...]

Moore said he is working with Mike Fisher, from Vermont Legal Aid’s Office of the Health Care Advocate, and other stakeholders to reach a compromise on the bill. The Senate Health and Welfare Committee has scheduled additional testimony for Friday.

“We are in the middle of discussions, but I am of course supportive of efforts to help OneCare be as transparent and accountable as possible in their decision-making process,” Fisher said Monday.

“We’ve suggested things like, noticing meetings and agendas, definition of a meeting, being tighter on why they might go into an executive session, making sure (there are opportunities) for public comment, and publishing minutes,” Fisher said.

“I think OneCare sees itself as being transparent, and from the consumer advocate side, I am going to be continually be asking for and pushing them to practice that — both in how they run their board meetings, and in the outcomes of this contract with Medicaid,” he said. [...]

Immigration executive orders stress Vermont lawyers

Vermont's immigration lawyers have been scrambling to provide information to worried residents in the wake of President Donald Trump's executive orders, but they said earlier this week that resources available are still not enough to meet the demand.

A diverse audience showed up to an immigration rights session in the Old North End on Tuesday to get answers from legal experts.

One attendee asked if panelists Michele Jenness, Erin Jacobsen and Susan Sussman could come talk to high school students about the changes in immigration law. Another asked if the panelists could hold a session in her community.

"One of the problems that's happening right now is that immigration and this stuff is changing all the time," said Barb Prine, a Vermont Legal Aid attorney who helped facilitate the Q&A. "So these three people are three of the eight or ten people in the state who know the answers and then there's a bunch of other people who don't know the answers, so everybody wants to talk to them all the time," she said.

Instead, Prine suggested residents in need of answers come to one of the information sessions that are organized by Vermont Legal Aid and the American Civil Liberties Union of Vermont, which do not represent immigrants in individual cases but have been helping provide information.

Privately practicing immigration attorneys are also helping to fill the gap.

"I'm volunteering more of my time than I ever have before," said Debbie Volk, a Burlington-based attorney. Volk has also been involved with Attorney General TJ Donovan's immigration task force.

The two attorneys, Jenness and Jacobsen, on Tuesday's panel represented local nonprofits that provide legal counsel on immigration issues. Jenness is the only lawyer working at Burlington-based Association of Africans Living in Vermont.

Jacobsen, who works for the Vermont Law School's South Royalton Legal Clinic, said she sees many from Chittenden County. Another attorney at the South Royalton clinic also works on immigration cases, and the clinic just hired a graduate of Vermont Law School to help the two attorneys.

The clinic handled 52 immigration cases in 2016 across Vermont, which includes asylum seekers and domestic violence victims. Immigration casework made up about 29 percent of the caseload and accounts for about 20 percent of the clinic's $660,000 budget, according to Executive Director James May.

Future funding is a concern, Jacobsen said. About half of the money that goes towards immigration work comes from the federal government. In the current political climate, she's concerned about that money going away.

Lawyers, like Jacobsen, have to adapt to helping clients when the legal landscape of immigration law can shift very quickly and very suddenly. [...]

Court Rules against Right to Self-Represent in Involuntary Mental Health Treatment Cases (link is external)

Vermont's Supreme Court ruled earlier this month that Vermonters in proceedings related to involuntary hospitalization or medication do not have the right to represent themselves in court.

The case was brought by a man identified as G.G., who was fighting a court ruling that allowed the state to medicate him against his will. G.G. wanted to fight the case himself, but the lower court said that wasn't allowed — G.G. had to have a lawyer representing him.

Jack McCullough is an attorney at Vermont Legal Aid, and he directs the Mental Health Law project based in Montpelier.

He says that happens in a few of the project's 100-to-200 court cases every year: There’s “some reason that the client decides they don’t want to be represented by Vermont Legal Aid, so they tell us they want to represent themselves.”

Up until now, courts evaluated these requests on a case-by-case basis, but people had to prove that they understood the proceeding and knew the consequences of their decision.

The Supreme Court ruled that because there are necessarily doubts about a person's mental fitness in these cases, people fighting involuntary medication don't have a right to represent themselves because that could raise doubts about the fairness of the proceeding. [...]

The court also ruled that ineffective legal representation runs the risk of causing the state to wrongly infringe a person’s rights. [...]

McCullough said the court’s ruling left some things open to interpretation, such as whether Vermonters wishing to represent themselves may sometimes be allowed do so even if they don’t technically have the right.

The Supreme Court also suggested that it may be appropriate for client and attorney to work together on such cases, with the client participating in parts of the proceedings as his or her own attorney, and a trained attorney helping.

Legal Session Over Immigration Executive Order Draws a Crowd

"Will we be allowed back in?"

That question was on the minds of more than 100 people — mostly from refugee communities — who attended an information session on immigration rights Thursday night at the Association of Africans Living in Vermont in Burlington's Old North End. They wondered what would happen if they leave the country.

Vermont Legal Aid and the Burlington Parks and Recreation Department organized the session to address concerns from the community after President Donald Trump signed an executive order that closed the U.S. to refugees and nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.

Arthur C. Edersheim and Erin Jacobsen, attorneys from the South Royalton Legal Clinic; Michele Jenness, legal services coordinator at the AALV; and Jay Diaz, a staff attorney with the Vermont chapter of the American Civil Liberties Union, each gave a short presentation on the travel and immigration ramifications of the executive order.


Representatives of Vermont's congressional delegation also affirmed their commitment to helping those who are affected by the changes. Many attendees took down the contact information of the attorneys and delegates.

A lively hourlong question-and-answer session ensued. A Muslim man said he was worried he would not be granted citizenship because of his religion. A Somali-born parent wondered if her U.S-born children would be stripped of their citizenship. A Bhutanese woman said she wants to bring her husband, who's a Nepali citizen, to Vermont.

Despite the attorneys' repeated assurances that U.S. green card holders will not be affected by the executive order, many Bhutanese attendees, including those who have already acquired U.S. citizenship, were worried they would be barred entry into the U.S. after visiting their relatives in Nepal.

As a safety precaution, Diaz advised green card holders whose country of origin is one of the seven countries to inform family members or friends of their travel plans, in hopes they can get them assistance if they're detained.

 

 

Legal Dispute Continues Over Medicare Coverage of Physical Therapy

Four years after Medicare officials agreed in a landmark court settlement that seniors can't be denied coverage for physical therapy and other skilled care simply because their condition isn't improving, patients are still being turned away.

As a result, federal officials and Medicare advocates have renewed their federal court battle, acknowledging that they cannot agree on a way to fix the problem. Earlier this month, each submitted ideas to the judge, who will decide — possibly within the next few months — what measures should be taken.

Several organizations report that the government's initial education campaign following the settlement has failed. Many seniors have only been able to get coverage once their condition worsened. But once it improved, treatment would stop — until the people got worse and were eligible again for coverage.

Every year thousands of Medicare patients receive physical therapy and other treatment to recover from a fall or medical procedure, as well as to help cope with disabilities or chronic conditions including multiple sclerosis, Alzheimer's or Parkinson's diseases, stroke and spinal cord or brain injuries. Although the settlement removes the necessity to show an improving health condition, it doesn't affect other criteria and limitations on Medicare coverage. [...]

The agreement, approved in 2013, settled a class-action lawsuit against the Centers for Medicare & Medicaid Services filed by Center for Medicare Advocacy and Vermont Legal Aid on behalf of five Medicare beneficiaries, including Glenda Jimmo, and six nationwide patient organizations. Coverage doesn't depend on the "potential for improvement from the therapy but rather on the beneficiary's need for skilled care," the Jimmo settlement said. [...]

Medicare's proposals include such educational efforts and a special webpage with "frequently asked questions" spelling out the proper procedures for handling claims. The government would also issue a clear statement confirming that Medicare covers physical, speech and occupational therapy along with skilled care at home, and in other settings, even if the patient has "reached a plateau" — a term seniors still hear — and isn't improving.

Attorneys for the seniors want to monitor how Medicare officials implement these new measures and have offered to write the policy statement disavowing what's known as the "improvement standard." They also want the government to repeat its 2013 conference call with providers, contractors and others involved in the process in order to correct mistakes, according to papers filed with the court Jan. 13. [...]

Two Area Nursing Homes Were Sold: One Got Better, the Other Got Worse

Recent ownership changes at two large nursing homes in the heart of the Upper Valley have had opposite effects on the conditions and quality of care for dozens of residents, according to observations and ratings from regulators and advocates.

Brookside Health and Rehabilitation, a 67-bed facility in White River Junction, has seen its overall rating by Medicare fall from five stars to two stars since August 2015, when it was purchased by a New York-based group of real estate investors and nursing home operators.

Five stars indicate a “much above average” rating, while two stars indicate “below average,” according to the U.S. Centers for Medicare and Medicaid Services, which awards the stars using data from state inspections and reports from nursing home operators.

“They appear to be on a downward path,” said Eric Avildsen, executive director of Vermont Legal Aid, which operates the state’s Long Term Care Ombudsman program. Problems showed up in Brookside’s last relicensing inspection, he said: “We’re taking it pretty seriously.”

Last year the ombudsman conducted five cases and received 14 complaints against Brookside, which Avildsen termed “a relatively high number.” [...]

While the state ombudsmen don’t currently have an individual client who has an open complaint against Brookside, Avildsen said, they are aware that there have been significant problems and a number of residents have been in touch “informally” about staffing and care quality problems.

Brookside’s fall to its current two-star overall rating resulted from health inspections that left it with only one star in that category. Star ratings are primarily based on the results of health inspections by state officials, but also reflect adjustments for staffing numbers and health care services and outcomes reported by facilities. [...]

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