Federal Judge Approves Settlement Agreement Requiring ACCESS-A-RIDE to Provide Due Process

Federal Judge Approves Settlement Agreement Requiring ACCESS-A-RIDE to Provide Due Process
By Nahid Sorooshyari, Senior Staff Attorney, MFY Legal Services, Inc.

Now Customers Can Have a Fair Appeals Process

On September 13, 2016, a federal judge in the Southern District of New York approved a class action settlement that will change unfair Access-A-Ride (AAR) policies for tens of thousands of New Yorkers with disabilities. Under the settlement, NYC Transit (NYCT) must give people it has found fully or partially ineligible for AAR a fair chance to challenge the decision. 

AAR is New York City’s transportation service for people whose disabilities make it very difficult to use the bus or subway. People with all types of disabilities, including psychiatric and episodic disabilities, are eligible for AAR. To apply for AAR, you must complete a written application and an in-person evaluation. You may be found: continually eligible for a lifetime; fully eligible for one year or five years; conditionally eligible, which means eligible to use AAR when a specific condition, like cold weather, is present; temporarily eligible for a period between one month and one year; or ineligible. People who are found fully or partially eligible must recertify their eligibility at least every five years. 

The lawsuit, filed by MFY Legal Services in May 2015, claimed that NYCT’s eligibility procedures violate the due process clause of the US and NY constitutions, the Americans with Disabilities Act, and state regulations. Five New Yorkers with disabilities were the named plaintiffs. All five had applied for and, at various times, been denied AAR. The five named plaintiffs represented a class of New Yorkers with disabilities who applied, or tried to recertify, for AAR service since May 2012, or will do so in the future. One named plaintiff, Ms. Walsh, had AAR for over five years. When she tried to recertify in 2014, NYCT changed its position and found her eligible for only three months, even though her disabilities had not improved. When she reapplied in hopes of getting more services, NYCT changed its position again and found her completely ineligible. 

Due process requires that the government give someone who applies for or receives government benefits meaningful notice and an opportunity to be heard before denying or reducing benefits. Ms. Walsh faced the same due process problems as thousands of others applying for AAR. NYCT sent her the same notice they send everyone who is denied AAR, regardless of their disability—a boilerplate letter saying she was denied because she could complete a list of eight tasks related to taking public transit. The letter did not tell her that she had the right to request her assessment records or how she could do so. The letter said that the decision was effective immediately and she could not take AAR to appeal in person. Ms. Walsh won her appeal with the help of attorneys, but thousands lose appeals and are not told of their right to request records from the appeal or to challenge the appeal decision in court. MFY filed the lawsuit to fix these problems. 

After months of negotiations, the parties crafted an agreement that fixed the due process problems. NYCT can no longer just send every person who is denied AAR the same letter; now, it must mail a copy of each person’s “Denial Form” with the letter. The Denial Form is an individualized summary of the assessor’s main reasons for denying the applicant. The letter will also explain a new procedure to obtain assessment records within 30 days, free of charge. This will give people more information to prepare for appeals. For current AAR users who are found ineligible or whose level of AAR is decreased after recertifying or otherwise reapplying, NYCT will provide aid continuing for the 60-day period to appeal or until the appeal is decided. NYCT will now include a statement of its eligibility criteria for AAR on its website and all new AAR applications. NYCT will also adopt a non-discrimination policy that includes a statement that it will not discriminate against people with episodic disabilities.

The named plaintiffs are thrilled that NYCT must now provide notice and an opportunity to be heard to those it finds fully or partially ineligible. Ms. Caldwell, a named plaintiff whose previous application and appeal for her nine-year-old daughter were denied, said: “I’m happy to know that if my daughter is denied Access-A-Ride again, the process for appealing will be clearer and fair.”
Plaintiffs were represented by MFY Legal Services, Inc. and Pillsbury Winthrop Shaw Pittman LLP. If you have questions about the settlement or need help with AAR, please call MFY toll-free at (877) 417-2427.

MFY Legal Services, Inc. and Center for Court Innovation Partner to Preserve Affordable Housing in East Harlem

MFY Legal Services, Inc. and Center for Court Innovation Partner to Preserve Affordable Housing in East Harlem

By Shafaq Khan, Staff Attorney, MFY Legal Services, Inc.

MFY Legal Services, Inc.’s Mental Health Law Project provides free legal services to people with mental illness who live in New York City, including advice, brief service and full representation on a variety of civil legal issues. The project’s focus is to help people with mental illness continue to live and thrive in their communities. As a result, MFY attorneys are part of the battle to preserve affordable housing for all low-income New Yorkers.
In a recent pilot program, MFY has partnered with the Center for Court Innovation to establish a legal clinic for people with mental illness at the Harlem Community Justice Center community court in East Harlem (“HCJC”). Unlike other housing courts, HCJC is a community court aimed at preserving and empowering the East Harlem community. The court acts as a family court and housing court. It also provides community programs to reduce youth crime and improve school attendance, amongst other things.

East Harlem is undergoing rapid gentrification. Construction of market-rate housing is underway and some East Harlem landlords are targeting rent-regulated apartments. Once emptied, the landlords can rent the apartment at a higher rent. As a result, many landlords bring baseless lawsuits with the hope that tenants do not show up to court and then get default judgments of eviction against them, or pressure unrepresented tenants who do appear in court into unfavorable settlements.

Additionally, the New York City Housing Authority (“NYCHA”) has a number of East Harlem public housing projects and is in housing court as a landlord, bringing nonpayment of rent cases, often based on incorrect rent calculations. The housing court’s docket also has a number of repairs cases brought by tenants against NYCHA. For example, tenants file repairs cases if NYCHA fails to address bedbug infestations, or paints over mold rather than treat the underlying condition. These cases are important because substandard apartment conditions can exacerbate psychiatric symptoms and/or cause physical illness.

The HCJC provides targeted eviction prevention assistance through its Help Center (the “HCJC Help Center” or “Center”). All New York City housing courts have help centers for tenants. However, the HCJC Help Center is operated by the Center for Court Innovation and is slightly different from other help centers. It is staffed by a dedicated team of professionals to provide tenants with additional assistance. This additional assistance includes a center coordinator who meets with tenants and makes referrals to appropriate agencies. The Center also has a Human Resources Administration (“HRA”) representative to help eligible tenants with arrears assistance.

The idea for the legal clinic came from a realization that there was an unmet need to assist unrepresented tenants with mental illness. Some of these tenants receive services from an agency called Adult Protective Services (“APS”). APS provides social services to senior citizens and people with disabilities. When a case is referred to APS in housing court, the tenant is evaluated by APS to determine eligibility. APS sometimes recommends a guardian ad litem (“GAL”) when the tenant cannot adequately defend or protect her rights. The GAL reviews settlement agreements, appears in court, negotiates with landlords’ attorneys, and applies for grants to pay arrears.

However, the HCJC Help Center noticed that many tenants with mental illness were never referred to APS. If they were referred, they were found ineligible to receive services and the assistance of a GAL. Even for those who were eligible, a GAL is not the same thing as having an attorney. The staff at HCJC Help Center identified this gap and therefore established a legal clinic staffed by MFY attorneys.

An MFY attorney meets with tenants in the East Harlem housing court twice a month. The initiative has helped ease the stress of housing court cases on low-income tenants with disabilities by providing immediate and easy access to an attorney. A court-based attorney makes it easier for tenants to stay in communication with the attorney. A tenant can make an appointment or come by after her court date when the details are still fresh in her mind. Clients can tell family members, caseworkers or home health aides to drop off documents for MFY at the Center because it is a short walk from their home. Additionally, the MFY attorney can track landlords that target rent-regulated tenants, make NYCHA tenants aware of recent lawsuits that affect their rights, and build relationships with court personnel.

Following is a typical example of the types of cases we see. A notorious landlord brought a nonpayment of rent proceeding against Ms. N. Ms. N was struggling with depressive symptoms and never showed up to court. The landlord got a judgment and evicted her family. She requested emergency relief from the court and got a two-week extension to pay the arrears in order to be restored to the apartment, during which time the landlord was prohibited from renting out Ms. N’s apartment. The short timeframe was overwhelming, especially since Ms. N and her three children were in a shelter and it would be difficult for her to negotiate the various bureaucracies necessary to obtain the back rent. She was terrified she would not regain the apartment her family had lived in for twenty years.

Ms. N, a NYCHA Section 8 recipient, had tried to apply for a grant from HRA to pay the arrears. To qualify, she had to show she could afford the rent. The problem was that she received a NYCHA termination notice because she had not renewed her Section 8 voucher. HRA told Ms. N that they would not give her a grant because she could not afford the rent without a valid Section 8 voucher.

MFY took the case and reviewed Ms. N’s notices from NYCHA. Her Section 8 voucher was still valid because of a grace period. We provided proof of the valid voucher and her income and applied for an HRA grant. With our advocacy, HRA processed and approved her grant in one business day. We also helped Ms. N renew her Section 8 voucher. Ms. N and her family safely returned to their home.

As the initiative progresses, MFY will continue to represent tenants with mental illness to maintain their housing, get repairs in their apartments, provide community trainings about relevant issues and work with the HCJC Help Center to empower tenants with mental illness so they may remain in their community.

Note: The MFY legal clinic is for tenants with a mental illness who have housing court cases in Harlem Community Justice Center. This housing court serves tenants who reside in apartments located in 10035 and 10037, all tenants from NYCHA Projects located in 10029, and tenants from NYCHA's rehab projects located in 10026. The Help Center should be able to schedule appointments for legal clinic or the tenant can drop by the Help Center in the courthouse to set up an appointment. The Help Center phone number is 212-360-8752.

Pullout: “The initiative has helped...by providing immediate and easy access to an attorney...[who] can track landlords that target rent-regulated tenants, make NYCHA tenants aware of recent lawsuits that affect their rights, and build relationships with court personnel.”

Plans Underway to Get Mental Health Consumers Out of Adult Homes

Plans Underway to Get Mental Health Consumers Out of Adult Homes

By Jota Borgmann, Senior Staff Attorney, MFY Legal Services, Inc.

And into other, hopefully better, housing options

Many New York City adult home residents with mental illness are unsure what opportunities they have to move to community housing. In 2009, a federal court held that New York’s practice of segregating thousands of people with mental illness in large adult homes is discrimination in violation of the Americans with Disabilities Act. In April 2012, that decision was vacated on appeal on a technical ground, but the trial court’s finding of discrimination was not questioned.

Two important things have happened in the last year. First, in August 2012, the State Office of Mental Health issued a request for proposals for supported housing providers to create 1,050 housing units for adult home residents in Brooklyn and Queens. The supporting housing providers who were awarded contracts include: Jewish Board of Family and Children's Services, FEGS Health and Human Services, Institute for Community Living, Transitional Services for New York, Comunilife, and Federation of Organizations. Those providers, along with Health Homes and Managed Long Term Care Plans, should be reaching out to residents in Brooklyn and Queens adult homes soon and some have already begun.

January 16, 2013, the State Department of Health (DOH) issued new rules about certain adult homes, which it calls “transitional adult homes.” Transitional adult homes are adult homes with 80 beds or more where at least 25% of the residents have a serious mental illness. The new regulations say that these adult homes cannot admit new residents who have a serious mental illness. They also require the homes to create compliance plans. An adult home’s plan must set forth how the home will reduce the number of residents with a serious mental illness by placing them in housing in the community. The plan must also identify how the home will meet the needs of its residents while implementing the plan, including how it will help residents develop independent living skills and ensure they have access to mental health services.

The selected (see sidebar) adult homes must come up with compliance plans by May 16, 2013. If a transitional adult home fails to submit a compliance plan, the DOH will make a compliance plan for it. The DOH has to review the plans and decide whether to approve them by August 14, 2013. Once approved, adult homes must implement the plans over a reasonable period of time.

If you live in a transitional adult home and you are a person with a serious mental illness, the adult home’s compliance plan should provide you with other housing options. This process could take several years. Note that the regulation does not require the adult home to move all residents with serious mental illness, but merely to reduce the percentage of residents with mental illness below 25%.

Residents at some adult homes have reported receiving misinformation from adult home staff about the regulations; for example, they report that they have been told that homes will soon close or that they will have to be transferred to a nursing home. No adult homes have closed as a result of the regulations and the regulations do not require that residents be moved to a nursing home as part of any compliance plan.

Note: Adult home residents in New York City who have questions about supported housing or the transitional adult home regulations can call MFY toll-free at (877) 417-2427.

Pullout: “If you live in a transitional adult home and you are a person with a serious mental illness, the adult home’s compliance plan should provide you with other housing options.”

Keeping Your New York City Housing Authority Apartment

By Runa Rajagopal, Senior Staff Attorney, MFY Legal Services

Tips that you can follow

The New York City Housing Authority (NYCHA) provides affordable housing for low to moderate income families throughout New York City. It is the largest public housing provider in North America with approximately 404,000 residents. This means that NYCHA is home to about 8.4% of the city’s population.

Getting into public housing entails a long and extensive process. Some families wait five, ten sometimes fifteen years to get into NYCHA housing. In fact, right now there are over 135,000 families on the waiting list. Once a tenant obtains a NYCHA apartment, she is required to follow its rules and regulations; failure to do so can jeopardize a tenant’s housing.

MFY Legal Services, Inc.’s Mental Health Law Project is contacted daily by mental health consumers seeking legal help regarding their NYCHA apartment. Often they are on the verge of losing their NYCHA apartment due to misunderstanding the rules, being unaware of their rights and even due to discrimination, among other reasons. Considering how difficult it is to obtain a NYCHA apartment and with the ever-shrinking stock of affordable housing in New York City, it is increasingly important for mental health consumers who live in public housing to be able keep their homes.

The following are some useful tips when living in a NYCHA apartment:

Know the Rules

It is important for tenants to familiarize themselves with NYCHA’s rules and regulations. The first place a tenant can start is with her lease, which outlines tenant rights as well as responsibilities. A tenant can also go to the management office to obtain additional information regarding NYCHA rules. Lastly, several community and legal services organizations educate tenants and provide additional literature regarding tenant rights. For example, MFY has several fact sheets about NYCHA housing on our website (see www.mfy.org to “Get the Facts”).

Put It In Writing and Get a Stamped Copy

Any requests made to the management office should be documented in writing. Additionally, any letters or other documents you submit to the management office should be copied, stamped with the date and marked as “received,” and the copy should always be retained for your files.

Often times I have had tenants say they went to their management office several times about a certain issue and that management never responded to their requests; when I follow up management usually says this was the first time they heard about the issue. By following up with written requests, you are memorializing conversations you have had with your management office. NYCHA management will be unable to say they have not heard about a certain issue if they have received three letters from you about it.

Grievances

There are some issues that cannot be resolved by the management office. Where a tenant has a dispute regarding an action or failure to act by NYCHA which adversely affects the tenant’s rights, duties, welfare or status, the tenant has a right to pursue the grievance process. The tenant can ask orally or in writing for the housing manager to informally address the dispute. If the tenant is not satisfied with the manager’s decision, the tenant can request in writing within ten days that the matter be reviewed by the Borough Management Office. If a tenant does not agree with the Borough Management Office decision, the tenant can make a written request for a hearing before an impartial hearing officer within ten days.

Add Family Members to the Household

Unlike in private apartments, when a tenant wants a family member to live with her permanently, she must get permission from NYCHA first. To do this, the tenant must request the form to add a family member from her management office which is filled out by the tenant of record and the family member. Within 60 days of submitting the form with all requested documentation, the housing manager will either approve or disapprove the request. If the request is disapproved, the tenant may pursue the grievance process. If approved, the family member can move in.

If the tenant of record ever vacates the apartment or dies, the family member will get a lease in her name if she lived with the tenant of record for a full year after being approved.

Get Repairs

Tenants have complained about how difficult it can be to get repairs fixed in their NYCHA apartments. The first step is to notify your management office about conditions you have and how they are affecting you. Follow up in writing to document complaints you have made to the management staff and ask that they follow up by a certain date. NYCHA tenants should also call 718-707-7771 to make complaints, to schedule emergency repairs and to get an emergency work ticket. MFY has a fact sheet on how to obtain repairs in NYCHA housing (see www.mfy.org to “Get the Facts”).

If after taking these steps, NYCHA has failed to make repairs, you can take NYCHA to court. There is a special proceeding in Housing Court called an HP Action, which allows tenants to sue their landlords when they fail to make repairs.

Request Reasonable Accommodations

If there are things you are required to do as a tenant but cannot do because of your disability, fair housing laws allow you to request a reasonable accommodation. A reasonable accommodation is basically an exception in rules, policies, practices, or services when such an exception may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling. MFY has fact sheets on the issue of reasonable accommodations (see www.mfy.org to “Get the Facts”).

Reasonable accommodations can be helpful to assist a tenant in complying with her obligations. Residents can also contact the Services for the Disabled Unit at NYCHA at 212-306-3652 regarding reasonable accommodation requests.

Report Discrimination

Where a tenant believes she has been the subject of unlawful discrimination because of a disability or other reason, the tenant has several options. If a tenant wants to work with NYCHA to report discrimination, she can contact NYCHA’s Office of Employment and Fair Housing Investigations at 212-306-4468 or can visit 250 Broadway, 27^th floor, New York, NY 10007.

Access Resources

Where a tenant has a possible legal issue regarding her NYCHA apartment, she should remember there are several resources where information, advice or even legal help may be available. It is important to communicate issues and problems with your housing manager, who then may be required to make referrals and connect tenants with services where necessary. Also, reaching out to organizations like MFY as early as possible will enable the tenant to strategize about potential issues, to obtain advocacy regarding problems and may even help to prevent eviction from her NYCHA apartment.

The above are just a few tips to keep in mind with respect to living in NYCHA housing. By being aware of your responsibilities, invoking rights and accessing services, mental health consumers who live in public housing can continue to enjoy and maintain their affordable homes.