"Pro Bono Team Seeks Medical Care for Children"
By Sharon E. Goldsmith
Thirteen immigrant children who were cut out of the Medical Assistance Program
when the state revealed its 2006 budget may or may not see their benefits restored
due to a recent case filed in Montgomery County Circuit Court.
On January 12, 2006, Judge Durke Thompson granted a preliminary injunction
to prevent the state from denying medical insurance to residents who had resided
in the U.S. for less than five years. The case was jointly filed by the Legal
Aid Bureau and the law firm of Bregman, Berbert, Schwartz & Gilday. The pro
bono lawsuit has the potential of impacting close to 4,000 poor children and
pregnant women across Maryland.
The exceptional partnership developed when Legal Aid attorney Regan Bailey
insisted that the plaintiffs had a legitimate claim and were entitled to the
state's health-care benefits. Hannah Lieberman, Deputy Executive Director of
the Bureau, contacted Doug Bregman about co-counseling on a pro bono basis
in an injunction against the state. Bregman readily agreed and enlisted two
additional associates from his firm to assist. Bailey, Lieberman and Bregman
then delegated various aspects of the case, utilizing the respective strengths
of the lawyers and their support systems. As Lieberman explained, "It was a
great blend of skills and knowledge. The partnership with a private firm enhanced
the effectiveness of the papers and presentation. It's been a terrific experience."
At issue in the case was whether the state government had violated the Equal
Protection clause of the Maryland Constitution when it classified legal immigrants
who had resided in the U.S. for less than five years as ineligible for the
medical insurance program. Maryland's medical assistance program was established
in 1997 specifically to cover all legal immigrant children and pregnant women
residing in the U.S. who were excluded from federal Medicaid benefits under
the welfare reform act. That act deemed most legal immigrants ineligible for
federal programs and cash assistance. Plaintiffs in this case were legal residents
but had been in the country for less than five years. They include a young
girl with the West Nile virus and a boy with a blood disorder. They and their
co-plaintiffs simply could not afford to pay for medical care.
The state argued that it had the right to eliminate funding for the children
in an attempt to save $7 million from its $4 billion Medical Assistance Budget.
The Circuit Court disagreed, finding that to carve out a group of individuals
legally entitled to the welfare benefits required a "strict scrutiny" standard
of review and that the cutbacks did not represent a compelling enough interest
to override the private rights of the individual plaintiffs. The Attorney General's
office appealed the injunction and moved for a stay, which the Court of Special
Appeals granted. (As of the time of this article, the stay is being opposed
and the case is in the process of an appeal.)
Plaintiffs' counsel hope that the case will ultimately be decided in their
favor on the merits and applied to all similarly-situated residents. According
to information provided by the state, there are close to 4,000 children and
pregnant women in a similar situation, with almost half of them residing in
Montgomery County. Plaintiffs believe that restoring their health care is fundamental
and essential to their future health and well-being. "We are trying to ensure
that the state treats them fairly," explains Bailey. "We will fight hard to
make that happen."
Despite the frustrations of an appeal after winning the preliminary injunction,
the attorneys for the plaintiffs are excited about the prospect of making such
an impact. They are also determined to see the case through. Bregman estimates
that his firm has spent close to 300 pro bono hours to date on the Perez
v. Erlich case and will be very involved in the appeal.
"Of all the cases I've handled as a lawyer for over 30 years, this is by
far the most rewarding and energizing case I've ever worked on," remarks Bregman. "This
is why I went to law school – to accomplish something important for people
in need. Frankly, it's the best thing I've ever done."
From Legal Aid's standpoint, the pro bono assistance has been a true benefit
and represents a wonderful collaborative effort. "We have a great respect for
the firm's ability and its commitment to public interest work," comments Lieberman.
She also notes that the Bureau enjoys partnering with private law firms on
these types of cases and recognizes the strength in working as a team. For
thousands of poor children in Maryland, that team approach may mean the difference
between receiving medical care or not.
Sharon E. Goldsmith is Executive Director of the
Pro Bono Resource Center of Maryland.
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