Our advocacy has included important work on pensions, Medicaid, Medicare, Social Security, Supplemental Security Income (SSI) as well as on assuring that beneficiaries of government programs retain access to the courts to enforce their rights.  What follows is merely a sampling of some of those efforts in the courts, in Congress and in the administrative agencies over the course of NSCLC’s first 35 years.

PENSIONS

Early on, NSCLC developed expertise on the law governing pensions and for its first two decades was consistently involved in litigation to secure the pension rights of retired low-wage workers.

Ponce v. Construction Laborers Pension Trust for Southern California, 628 F.2d 537 (9th Cir. 1980); 774 F.2d 1401 (9th Cir. 1985), was a successful challenge to a pension plan with a 15-year vesting requirement and a break-in-service rule that resulted in the denial of pension benefits to 96% of construction laborers.  After a decade of litigation, the plan was found to be arbitrary and thousands of retirees were found eligible for pension benefits as a result.

Dameron v. Sinai Hospital, 815 F.2d 975 (4th Cir. 1987) was an important case dealing with the ERISA provision authorizing the integration of Social Security benefits into pension plans.  The court ruled that the employer violated ERISA by estimating Social Security benefits based on an assumption that the employee earned the highest monthly wage of the previous five years over a 30-year period.  This assumption was especially prejudicial to women, who were more likely to have taken time off for child rearing.

NSCLC subsequently made use of the Dameron precedent in Forbush v. J.C. Penney (N.D. Tex.), a case which resulted in a settlement of more than $80 million for plaintiffs.

NURSING HOMES

NSCLC has been consistently involved in the effort to obtain quality care in nursing homes.  In the early 1980s, Congress, in response to the Department of Health and Human Services’ (HHS) effort to deregulate nursing facilities, ordered a study of nursing home issues by the Institute of Medicine.  When the landmark report was issued, NSCLC, together with other advocates, mobilized to press for remedial legislation. NSCLC put forth a major effort in coordination with other organizations to gain support for legislation and provided significant consumer input in the statutory language of what was ultimately to become the Nursing Home Reform Law of 1987.  Input from NSCLC was significant in strengthening the required level of care and enforcement provisions of the law.

Subsequently when California threatened to derail the whole statutory scheme by announcing it would not implement the legislation, NSCLC brought suit on behalf of a statewide class of residents and obtained an injunction requiring the state to implement the Nursing Home Reform Law.  Valdivia v. California Dept. of Health Services (E.D. Cal.). 

MEDICAID

At any point in time, NSCLC is litigating cases involving either eligibility for Medicaid or entitlement to services under the Medicaid program.  Early on, NSCLC took on challenges to the practice of deeming the income of a spouse for purpose of determining eligibility, regardless of whether it was actually available.  See, e.g. Schweiker v. Gray Panthers, 453 U.S. 34 (1981); Herweg v. Ray, 619 F.2d 1265 (8th Cir. 1980).  While these cases resulted in only limited success, they dealt with an issue that continues to be one of the most important issues affecting low-income individuals in need of long-term care.  In addition, they may have played a role in the ultimate adoption of spousal impoverishment rules, which have ameliorated the problem to some degree.

Subsequent Medicaid litigation has been more successful. An example of a successful challenge to a policy limiting the availability of services under Medicaid is  Charpentier v. Belshe, 2004 WL 792591 (E.D. Cal.) which dealt with a policy California applied to dual eligibles (persons eligible for both Medicare and Medicaid).  Under this policy, California limited payment for wheelchairs and other medical equipment to 20% of the Medicare “reasonable charge” limit, thus making it impossible for most dual eligibles to obtain wheelchairs.

More recent litigation has involved state efforts to reduce Medicaid costs by changing the medical need standard  for Medicaid coverage of long-term care.  In Kentucky, this resulted in more than 3,500 people losing benefits.  NSCLC responded in Kerr v. Holsinger and obtained an injunction restoring benefits to all those affected.  Similarly, when Oregon changed its functional eligibility criteria for determining eligibility for long term care, NSCLC brought suit.  Watson v. Weeks, 436 F.3d 1152 (9th Cir. 2006).  That suit is still pending in the district court.

MEDICARE

Gray Panthers v. Schweiker, 652, F.2d 146 (D.C. Cir. 1980); 716 F.2d 23 (D.C. Cir. 1983).  This was a successful challenge to the government’s failure to provide adequate notice or hearing in disputes involving Medicare claims for less than $100.  

Situ v. Leavitt, 240 F.R.D. 551 (N.D. Cal. 2007) - A national class has been certified in this pending action challenging the failure of the Secretary to enroll dual eligibles in Medicare Part D prescription drug plans, inform the plans of the beneficiaries enrolled in the plans or process changes between plans in timely fashion.

SOCIAL SECURITY / SSI

NSCLC has been involved in Social Security advocacy for 35 years and has been actively involved in SSI advocacy since the SSI program began in 1974. 

In the 1980s, the Department of Health and Human Services (HHS, then the parent agency of SSA) embarked on a major drive to pare down the Social Security and SSI Disability rolls by ruling that individuals were no longer disabled.  NSCLC played an important role in resisting this effort 1) by joining other organizations in advocacy before Congress, 2) by direct involvement in litigation and 3) by playing a coordinating role in litigation undertaken by others in various parts of the country.

As part of its initiative, SSA adopted a formal policy of nonacquiescence and declined to follow applicable Court of Appeals precedents with which it disagreed.  NSCLC joined with other organizations in a successful challenge to SSA’s refusal to follow Ninth Circuit precedent requiring SSA to show medical improvement before terminating benefits on the basis that the individual is not disabled.  Lopez v. Heckler, 725 F.2d 1489 (9th Cir. 1984).  Subsequently, as a result of advocacy by NSCLC and others,  the Social Security Act was amended 1) to include the medical improvement standard in the statute and 2) to require that when SSA proposed to terminate Social Security Disability Insurance (SSDI) benefits on the basis that the individual is no longer disabled that full benefits be continued pending the outcome of the initial reconsideration and Administrative Law Judge (ALJ) stages of appeal.

This was followed by a good number of successful challenges to various aspects of the disability determination process in states across the country.  While NSCLC was not directly involved in most of this litigation, it did play a critical role as a clearinghouse for information in the pre-internet age and NSCLC attorneys also played an important consulting role for plaintiffs’ attorneys.

Bondy v. Sullivan (N.D. Cal. 1991) - This case established that Austrian social insurance payments to Holocaust victims should not count as income for determining SSI eligibility.  SSA had argued that these payments should count as income on the ground that Austria was a victim in World War II.

Singleton v. Apfel (S.D. Georgia 1994 - 1998) SSA had a policy of paying past due SSDI and SSI Disability benefits to concurrent beneficiaries in random order.  Although the cash received was almost the same, the result of this seemingly innocuous policy was that those who received SSI benefits first were entitled to Medicaid benefits for the entire past due period in most states where SSI recipients were automatically eligible for Medicaid, while most of those who were paid SSDI benefits first were not entitled to any SSI payments because the SSDI payment was offset against any SSI payment that might be due.  NSCLC contended in this action brought on behalf of all concurrent beneficiaries in the Eleventh Circuit (Georgia, Alabama and Florida) that the Social Security Act mandated payment of SSI benefits first.  SSA strongly contested the action at first, but then changed its policy in the course of the litigation to pay past due SSI benefits first as sought by plaintiffs.  This policy change was significant because individuals newly determined to be disabled generally have high medical expenditures in the period after onset of disability.  It is estimated to have resulted in an additional $50 million dollars per year in Medicaid payments in the three state area alone.

NSCLC has also been successful in litigation in Alabama, Georgia and California in obtaining continuation of SSI-linked Medicaid pending a redetermination by the state Medicaid agency to see if there is another basis for eligibility.

Fowlkes v. Adamec, 432 F.3d 90 (2nd Cir. 2005) and Garnes v. Barnhart, 352 F.Supp.2d 1059 (N.D. Cal. 2004) are successful challenges to SSA’s policy of determining on the basis of nothing more than an arrest warrant that an individual is “fleeing to avoid prosecution” for a felony and thus not entitled to receive Social Security or SSI benefits.  This policy has resulted in the suspension of benefits for hundreds of thousands of elderly and disabled individuals.  NSCLC is also litigating a related SSA policy of suspending benefits whenever an individual has an outstanding warrant for an alleged violation of probation or parole, even though the individual has never been found to be in violation of probation or parole.  Clark v. Astrue (S.D.N.Y.).

Pirus v. Bowen, 869 F.2d 536 (9th Cir. 1989) was a successful action establishing the eligibility of a class of divorced spouses who remarried after age 60 before the wage earner died.  What is most significant about the case is that it is the only appellate decision awarding attorneys fees under the Equal Access to Justice Act (EAJA) in excess of the EAJA rate ($75 per hour at the time) on the basis of “special factors” including specialized expertise in Social Security law and the limited availability of qualified attorneys.  This precedent has been the basis for obtaining market rate fees in a number of later cases.

LANGUAGE ACCESS

NSCLC has long recognized that language access is especially important for older people who find it far more difficult to learn a new language late in life.  It is also especially important in the SSI program where today 37% of applicants over the age of 65 prefer to speak a language other than English.  Throughout the 1990s NSCLC advocated, both at the agency level and before Congress, to establish meaningful access to Social Security Administration programs for Limited English Proficient (LEP) claimants.  After several years of initial resistance to any accommodation for people unable to communicate in English, SSA gradually began to change its policy in the mid-90s and established an LEP workgroup to improve LEP services.  NSCLC met frequently with members of the workgroup and before the end of the decade, SSA had the best LEP policy of any federal agency.  NSCLC received an award from Vice President Gore for its achievements in working with SSA’s LEP workgroup.

NSCLC continues its language access work today on behalf of the large number of LEP dual eligibles in the Medicare Part D prescription drug program.  Earlier this year NSCLC issued a report on how Medicare prescription drug plans in California fail to adequately communicate with significant populations of LEP dual eligibles and made several recommendations on how the plans and CMS might improve services to LEP beneficiaries.