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April 2008 Newsletter

Litigation Update

Our recent litigation has assisted over 500,000 persons by stopping challenged medical copayments; getting food stamp applications processed timely; requiring adequate notices for the denial of medical benefits; and ensuring medical care for persons needing kidney dialysis. Halting the copayments, alone, has saved poor persons over 2 million dollars each month. Here is our current on-going litigation:

Challenge to Inadequate AHCCCS Notices

In Price v. Rodgers, the Institute and the Arizona Center for Disability Law (“ACDL”) challenged the notices the Arizona Health Care Costs Containment System (“AHCCCS”) sent out to claimants when request for services were denied or terminated. These notices typically failed to provide persons specific medical facts justifying the decisions or citations to the law upon which the decisions are based. This case recently settled.

Challenge to Inadequate School Funding/ AIMS Requirement to Graduate

Espinoza v. State of Arizona is a statewide class action brought on behalf of public high school students and challenges the requirement that students must pass the Arizona Instrument to Measure Standards (“AIMS”) test in order to graduate when the school funding is not adequate in Arizona.

Challenge to Mandatory AHCCCS Copays

Newton-Nations v. Rodgers - This case challenges the mandatory copayments above the statutory limits for nominal copayments the Arizona Health Care Cost Containment System (“AHCCCS”) imposed on 100,000 persons for prescription medications and office visits. We claim that under the Medicaid Act, persons below 100% of the poverty guidelines may only be charged “nominal” copayments and they cannot be denied service if they are unable to pay the copayment. Currently there is a statewide injunction that prohibits AHCCCS from imposing the copayments. If anyone is being charged the challenged copayments ($5.00 for an office visit and $4.00 or $10.00 for prescription medications), please contact the Institute. Currently, the only copayments allowed are $1.00 for an office visit and the non-emergency use of the emergency room, and no one can be denied a service if they cannot afford to pay the copayments.

This case will be fully briefed and argued this summer.

Eviction Court Study

“Injustice In No Time:
The Experience of Tenants in Maricopa County Justice Courts”

There were over 82,000 eviction cases filed in Maricopa County in 2005 and the number of eviction cases continues to rise. Although almost 90% of the landlords are represented in court, it is estimated that fewer than 200 tenants are represented each year. In response to the need to document what happens to the thousands of unrepresented tenants in the justice courts, MIJ conducted a study during the summer of 2004 of the Maricopa County Justice Courts’ practices for eviction cases. This was the first study of its kind in Maricopa County. We prepared a detailed 51-page report in June 2005. We found that in almost every respect, court practices benefited landlords and disadvantaged tenants. In the report, we recommended sweeping changes so the justice court system would be fair to tenants.

Administrative Advocacy Update

Domestic Relations Protections

Pursuant to Rules 67 and 68 of the Rules of Family Law Procedure, as of January 2006, the superior courts were required to have policies and procedures in place to ensure the safety of victims of domestic violence in mediation and conciliation and allow the victims to waive participation in mediation and conciliation, if appropriate. Legal services staff did not think the courts had developed the required policies and procedures and asked MIJ to investigate.

ADA Complaint/Surprise Courthouse

In 2006, a regional Justice and Superior Court opened in Surprise. There is limited public transportation in Surprise and no transportation intended to get someone to the court building. These courts serve at least 250,000 persons and persons who live as far as 30 miles from the courthouse. Prior to consolidation, at least some of the courts were on accessible transportation routes. The lack of public transportation adversely affects the ability of low-income persons and persons with disabilities to have their day in court.

In February 2008, the Institute submitted two administrative complaints to the U. S. Department of Justice, one against Maricopa County and one against the Maricopa County Courts, claiming the placement of the courts where there is no accessible transportation violated the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act.

“Crime Free” Lease Provisions

In the last 5-6 years, the use of “crime free” lease provisions has spread throughout the state. These provisions make a tenant liable for the actions of anyone they know that occur “on or near” the rental premises. The Institute believes these provisions violate the Arizona Residential Landlord and Tenant Act. Often these provisions are used to evict victims of domestic violence for their abuser’s criminal conduct. In those situations, the Institute believes these provisions violate state and federal Fair Housing laws by their disparate impact on female tenants.

DES and AHCCCS

The Institute works with legal services staff and community groups to improve the programs poor persons rely upon. Legal services staff often identify policies and practices that violate federal and state laws, but because of their funding restrictions, they cannot file class actions. In those cases, they often seek the assistance of the Institute. Recently, we have addressed the following policy and procedural violations by the Arizona Department of Economic Security (“DES”) and the Arizona Health Care Cost Containment System (“AHCCCS”):

Job Sanctions Update

In 2003, the Institute and the Welfare Law Center settled the Olea federal class action case challenging DES’ procedures to sanction persons for non-cooperation with the Jobs Program requirements. After the consent decree and monitoring expired, we negotiated new policies, procedures and notices for this process that provide clients due process and fairness.

EBT-Cards for Food Stamps

Persons who receive food stamps, get an Electronic Benefit Transfer (“EBT”) Card that DES “loads” with the food stamp allotment. Until June 2007, DES handed out most of the EBT cards at the local offices; gave emergency EBT food stamps out at the local offices; and allowed homeless persons to get their EBT cards at the offices and did not require homeless persons to provide a mailing address for EBT cards.

60 Month TANF Limit

MIJ, working with SALA, requested that DES establish policies, procedures and notices that comport with due process as TANF recipients start to hit their 60 month limit for benefits. The first recipients hit 60 months in October 2007. Advocates had negotiated with DES for several months in 2007 and could not achieve a satisfactory process. DES refused to establish policies required by federal law; provide clients with adequate notice of the policies; and provide adequate decisions with notice of appeal rights.

Federal Emergency Services Applications

MIJ, working with SALA, requested that DES and the Arizona Health Care Cost Containment System (“AHCCCS”) coordinate the application process for the federal emergency services part of the Medicaid program in Arizona. AHCCCS contracts with DES to assist in processing claims for medical benefits under the Federal Emergency Services program (“FES”). The coordination of the FES program by the two agencies is inadequate and has many gaps where claim processing simply stalls. We focused on improving this process so disabled and elderly persons receive the medical care they need to survive.

KidsCare Applications

MIJ, working with SALA, requested that DES and AHCCCS address the delays in processing KidsCare eligibility determinations. Clients often had to file two applications and wait several weeks for determinations. After meeting with DES and AHCCCS, they agreed to make the requested changes to the processing of the KidsCare applications, including sharing information between the agencies so a second application is not needed and information is not requested twice. Our negotiations continue.

Monitoring

Once the Institute resolves a matter, we often will continue to receive reports or statistics from the agency to ensure the new policies/ practices continue. Some recent examples of our successful advocacy work and monitoring are described below.

Timely Processing of Unemployment Insurance Claims

DES operates the Unemployment Insurance (“UI”) program in Arizona. There are time parameters in which DES must determine eligibility and begin to pay benefits. As a result of claimed budgetary issues, the loss of staff and the closing of the Phoenix Call Center starting in April 2006, DES began to fall substantially behind the time frames for timely processing of UI claims. DES is required to make the first UI payment within 14 days of the application and resolve disputed claims within 21 days of the application. These time frames are crucial for families to be able to pay their bills and remain in their housing.

Due Process in Office of Special Investigation Reports

When DES suspects fraud, it conducts an investigation. Approximately 11,000 investigations were conducted in 2005 and over 75% of the time, fraud was indicated. These “investigations” usually relied on unnamed sources for information. The information from unnamed sources then was used to reduce or deny benefits. DES usually did not provide the claimant a copy of the report and often the claimant was unaware there was an “investigation.” We informed DES this process violated claimants’ rights to due process. In response, DES agreed to revise its OSI policies.

DES Processing Times

We obtained information that DES was exceeding the federal time periods in which it is required to make administrative hearing decisions. In response to our written request that DES become timely in the processing of appeals, DES went from processing 15-50% of the administrative cases untimely to a 98% timeliness rate. This means that several hundred families now have their appeals decided in a timely manner, which is critical for families who are waiting to receive their benefits. We receive weekly reports from DES of its processing time for administrative hearings.

Legislative Update

Susan Cannata continues as the Institute’s Lobbyist for the 2008 Arizona Legislative Session. This is Susan’s third year as our Lobbyist. Susan lobbies for the interests of poor Arizonans and will focus on the budget, as well as legislation concerning issues related to housing, consumer affairs, public benefits, child support and other bills affecting poor persons. We have also opposed anti-immigrant bills.

2008 Legal Services Directory

The February 2008 Legal Services Directory is available on the MIJ website, morrisinstituteforjustice.org, or by calling or e-mailing the Institute.

Westlaw

A special thanks to Bryan Cave for providing the Institute with Westlaw.

The Institute’s Board Members

The Institute’s Board of Directors are:

Andy Silverman, President
Mary Jo O’Neill, Vice-President
John Gallagher, Treasurer
Randy Papetti, Secretary
Ronda Beckerleg-Thraen
Garry Bryant
Jeremy Butler
Eric Dahlstrom
Rachel Hobson
Ben Hufford
Leslie Nixon
Luis Ochoa

We thank them for all they do to support the Institute.

Staff

Ellen Katz, Litigation Director (Phoenix)
Kathleen Barney, EideBailly, Volunteer Accountant
Lydia Glasson, Staff Attorney (Tucson)

Comings and Goings

Lydia Glasson joined the Institute in February 2008 as our staff attorney in Tucson. Lydia brings many years of legal services experience to the Institute and will add significantly to our advocacy efforts.

Phoenix Fundraiser

The Institute’s annual Phoenix fundraiser will be on May 22, 2008, from 5-7 at the 101 Bistro at First Avenue and Adams, Phoenix. We will honor Eric Dahlstrom, the Institute’s prior board president, and celebrate our work. Food will be provided by the law firm of Lewis and Roca.

Donations

Your support is needed to continue the many projects we have undertaken on behalf of low-income persons in Arizona.

Please send your donations to support our work to the William E. Morris Institute for Justice, 202 East McDowell Road, Suite 257, Phoenix, Arizona 85004-4536.