WINTER 2010 WINTER News From The Bar Foundation volume 2 issue no. 1 Help for Floridians Inside lost in the health- care system Legislators urged to support by Nancy Kinnally Florida Access to Civil Legal or five years, Jodi Guin sat on a 2 Assistance Act in 2010 busy Tallahassee, Fla., street corner F selling peanuts to earn enough Paul Doyle Justice Center money to buy the shady lot where she dedicated as Florida Legal would later put the yellow doublewide 3 Services headquarters that is now her home. Sometimes it got so hot, she’d put her Shirley Spuhler Healthcare feet – shoes and all – into a bucket of ice. Fairness Project reaches out to “On the bank it showed it was 105 STANYARD RAY Jodi Guin, 80, and her husband Bobby, 75, 4 Medicare/ recipients a lot of times, and we’d be sitting down credit Florida Legal Services for ensuring there selling peanuts,” Guin remembers. After she bought the trailer with a they received the proper Medicare and Keeping the developmentally Medicaid prescription drug benefits. disabled out of prison small inheritance, she lived there alone 6 until one night, she went to a dance at the American Legion Hall, and she met Bobby. and although declining health has brought “I walked in, and there she was, and them hardship, theirs is still a warm, happy Florida Justice Summit I said, ‘Are you married?’ and she said, home filled with small tokens of their love explores alternatives to new ‘No,’ ” Bobby Guin recalls. “I said, ‘You for each other – artificial flowers, tiny 7 prisons figurines, and their Chihuahua, Bobbie Joe. got a boyfriend?’ and she said, ‘No.’ I said, Living on Social Security, they were Foundation welcomes new ‘I’ll be right back,’ and I went over and got directors me a drink.” getting by in spite of Bobby’s diabetes Jodi interrupts her husband’s yarn to and Jodi’s congestive heart failure. Then in interject: “And he’s been here ever since.” early 2006 they went to the pharmacy to Bobby, 75, is a retired plumber; Jodi, fill their prescriptions and were told their 80, a former restaurant manager. Their life new Medicare Part D plan wouldn’t pay together goes back more than 20 years, for them. Meanwhile, Jodi’s monthly drug premiums were deducted from her Social Security check, even though she wasn’t supposed to pay a premium under Part D.

see HEALTH, p. 4

Providing greater access to justice Message from the President Last fall I had the chance to speak four legislators co-sponsored the act, to law students at Florida State University which was passed unanimously by each and to the members of the Tallahassee subcommittee that reviewed the bill and Bar Association, and it was such a received only one dissenting vote before pleasure to hear how appreciated The the full Legislature. Florida Bar Foundation is for its support Since that time, many legislators of the local legal aid community. In turn, have supported funding for FACLA each I was impressed with the Tallahassee Bar year. Sen. Mike Fasano and Rep. Association’s exemplary commitment Richard Glorioso played key roles in to pro bono service, which is, in fact, a securing $1 million in funding for FACLA requirement of membership. I was equally during last year’s legislative session. I Adele I. Stone, Esquire impressed with the commitment of the would like to take this opportunity to faculty and students at the FSU College thank them and the other members of We will again be counting on our of Law to their clinical programs. The the Florida Legislature for bringing Florida legislators to support our request for Foundation is proud to support both into the company of the vast majority of increased FACLA funding in the 2010 the law school’s civil clinic and FSU’s states that provide state funding for legal legislative session. More funding is needed Center for the Advancement of Human assistance for the poor. to meet the needs of the thousands of Rights, which was recently funded by the The FACLA funds support the work Floridians suffering the effects of the Foundation to develop a plan to combat of Florida’s legal aid organizations, which recession. If you have the opportunity, human trafficking in Florida. are confronting ever-increasing demands please tell your local legislators how While in the capital I was reminded from Floridians facing the impact of important FACLA is to your local legal aid of the vital importance of the support of a fragile economy, including job loss, organization. And when they tell you they our legislators, who signed into law the foreclosure and domestic violence. The support FACLA, please thank them. Florida Access to Civil Legal Assistance availability of legal assistance to families Act in 2002, which authorizes state in crisis serves to stabilize those families funding for civil legal assistance. Sixty- and strengthens our communities.

Make your mark. Plan a gift. Join the Legacy for Justice.

For those who know just how important access to justice really is, here is an opportunity to have a lasting impact. Members of the Foundation’s Legacy for Justice make planned gift commitments such as bequests, charitable gift annuities or trusts to sustain the critical work of the Foundation into the future. Gifts of life insurance or appreciated securities ISTOCKPHOTO qualify as well. Find out more. Tim Bachmeyer Establish your legacy as a proud member of your profession and a firm believer in [email protected] the principles upon which it is founded. (407) 451-9187

2 www.floridabarfoundation.org COURTESY OF FLORIDA LEGAL SERVICES COURTESY Florida Legal Services Executive Director Kent Spuhler presents a statue of Lady Justice to Paul Doyle. On the base are inscribed the names of those who contributed to the Building Justice capital campaign in honor of Doyle, for whom the new FLS headquarters is named. Paul Doyle Justice Center dedicated by Gabrielle Davis hen it came to naming the new Portland, Ore., to attend the dedication of “For the poor, home of Florida Legal Services, the new FLS headquarters. W only one person would fit “[Doyle] has served in many roles, justice is not vague or the bill, said FLS Executive Director Kent but in all those roles he has been a leader, Spuhler. an encourager and a person that says dispassionate, general “There was only one name that we can never be satisfied,” Spuhler said. could go on the state capital justice “There’s more to do, there is more we can justice for all, but center,” said Spuhler at the Dec. 10 do, no matter if the money’s up or the a living, ambitious, unveiling of the Paul Doyle Justice Center money’s down. The job is in front of you in Tallahassee. “That’s the name of the and the job is making a difference.” sometimes controversial man who has devoted 40 years of his Doyle’s commitment to legal services professional career to the oppressed and began in the 1970s when he served as and dedicated quest. those who weren’t able to get a fair deal executive director of Jacksonville Area out of our legal system.” Legal Aid. We owe the FLS staff For 35 years, FLS has been the voice For 18 years, Doyle has served as and the staff of legal aid for Florida’s poor and disadvantaged. director of The Florida Bar Foundation’s Over the years, its role has grown, both Legal Assistance for the Poor and Law programs throughout in the courtroom and in the Capitol, but Student Assistance grant programs, its attorneys and staff were still working working to fund legal aid organizations Florida our support, in cramped, rented basement offices. in Florida and to foster a love of public The need became apparent for a larger, service among tomorrow’s lawyers. respect and enduring permanent space with more room for The impacts Doyle’s efforts have debt of gratitude for statewide training programs, as well as made are nationwide, said Foundation workspace for legal services staff visiting Executive Director Jane Curran. the shouldering of the capital. As a way of honoring Doyle “I get a chance to travel all over the and helping FLS purchase a more suitable country and tell people what Paul has told this challenge.” building, 175 donors contributed more me to say and I get such recognition for it, than $625,000 through the FLS Building but it’s all Paul,” Curran said. – Paul Doyle Justice capital campaign. In accepting the honor, Doyle said December 10, 2009 About 150 of Doyle’s colleagues, the most important word in the building’s family and friends traveled from as far as name is “justice.”

3 who coordinates the Florida Medicare/ Health Law Program on a class action How the Medicaid Prescription Drug Helpline at against Florida’s Agency for Health Care FLS. Administration. The case came in the wake Foundation helps The helpline is part of the Shirley of new requirements set by the Florida The Shirley Spuhler Health Care Spuhler Health Care Fairness Project, Legislature that certain prescriptions be Fairness Project is just one of many named for its founding director, who lost “prior authorized,” including those for programs at Florida Legal Services her own battle with cancer just over a year patients on more than four brand name supported by The Florida Bar Foundation, whose support for FLS ago. The project uses strategies including drugs, or those needing a drug not on the in 2009-10 includes: class action litigation, fair hearings, state’s Preferred Drug List (PDL). outreach and education, attorney and The case, Hernandez et al v. General Support $3.04 million paralegal training, and policy advocacy. Medows, challenged the state Medicaid Through the helpline, Koon assists agency’s failure to provide due process Migrant Farmworker Justice Project $861,052 low-income Florida residents whose when denying prescription drug claims. prescription drug claims are denied by Anthony Hernandez was a liver transplant Affordable Housing Advocacy $377,160 Medicaid or Medicare, or who have recipient living on Social Security Disability questions about the low-income subsidy. income who had to be hospitalized after Staff Attorney Salary Supplement $210,088 The Guins are among 6.4 million Medicaid stopped paying for Sporanox, U.S. seniors and disabled individuals which was helping prevent rejection of his Children’s Legal Services $159,650 known as “dual eligibles,” meaning they new liver. receive benefits through both Medicare Discovery in Hernandez revealed Pilot Pro Bono Project $156,255 and Medicaid. In 2006, when Part D was that more than 50,000 prescriptions implemented, dual eligibles lost their a month were being denied to Florida Statewide Pro Bono Project $108,000 Medicaid prescription drug coverage and Medicaid patients and that while some had to choose a Part D plan. received an alternative medication, 15,000 For more information visit: www.floridalegal.org As it turns out, the Guins weren’t a month did not receive any drug that the only ones lost in the system. Through could treat their condition. HEALTH, from p. 1 FLS, Jodi became one of the named “Some of these are folks who With more than $3,000 in monthly plaintiffs in a nationwide class action to may be on anti-psychotics – heavy-duty medication costs dwarfing their meager force the Secretary of Health and Human medications that help keep them out of income, Jodi spent hours on the phone Services to provide dual eligibles with institutions and nursing homes,” Swerlick trying to get help. A newspaper reporter effective, timely access to prescription said. “And they are really living in fear of documenting their plight called Florida medication under Medicare Part D. The spiraling downward were they without Legal Services (FLS) to ask if they could 2006 case, Situ v. Leavitt, was brought these medications. intervene. by the Center for Medicare Advocacy and “Especially with mental health FLS attorney Anne Swerlick helped the National Senior Citizens Law Center. problems, it sometimes takes years for the Guins wade through the intricacies The U.S. Federal District Court in the the doctors to try different things. It’s very of Medicaid, which still pays for certain Northern District of allowed the idiosyncratic whether something’s going to classes of drugs for low-income Medicare case to proceed, noting that the computer work, what combination of medications, recipients, and the more convoluted system of the Centers for Medicare & so if you start messing around with that, Medicare Part D. She also got the Guins Medicaid Services (CMS) could take up you’re really going to be causing the into the Medicare Part D low-income to 76 days to relay low-income subsidy recipient to be at risk.” subsidy program. information to a pharmacist’s computer. A Under a 2003 settlement Today, the Guins pay about $6 2008 settlement agreement requires CMS agreement, the state Medicaid agency every three months for their medications to implement one-business-day processing must ensure that recipients receive written through a mail-order pharmacy. and simplified documentation of eligibility notice at the time of drug coverage “I tell you what happened,” Bobby for the low-income subsidy. denials. For refills, the agency must ensure said. “We got lost in the system when they Meanwhile, Swerlick and FLS an immediate temporary supply and come out with this [Medicare Part D]…” litigator Mariam Harmatz were working ongoing coverage pending the outcome of “And they fished us out,” said Jodi, along with the Legal Aid Society of a fair hearing. Prior to Hernandez, these pointing to Swerlick and Bonnie Koon, Palm Beach County and the National points of Medicaid law were untested.

4 www.floridabarfoundation.org A subsequent class action brought a medication from the list, or provide a legal and medical, Swerlick often struggles by FLS and other legal aid and advocacy transitional benefit to allow the physician to be heard by legislators, agency heads organizations, Edmonds et al v. Levine, time to pursue prior authorization. and other decision-makers. successfully challenged the state’s denial Drug substitutions and denials can Still, the value to the millions of Medicaid prescription drug claims for be life-threatening to the patient as well of Florida Medicare and Medicaid the off-label use of Neurontin, a drug as costly to the state when the result is a beneficiaries of an advocate like her is widely prescribed for pain and mood hospitalization or emergency room visit. clear. Just ask Bobby Guin, who can now disorders. Swerlick cited the case of a 19-year afford his insulin and other medications. FLS is now using the helpline to old developmentally disabled man whose “We wouldn’t have never got that keep tabs on government compliance with mother called the helpline after his seizure if it hadn’t been for Anne and her crew, the settlement agreements and to detect medication was taken off the PDL. She because they’re the ones who went to emerging trends. To address systemic resorted to taking him the emergency bat for us for our medicine,” Guin said. issues, FLS often works first through room to get the drug, as the last time his “They’ve really come through for us.” administrative and legislative channels doctor had tried to switch his medication, rather than the courts. he’d had a dozen seizures in one day. Recently, Swerlick wrote the “In addition to anti-convulsants, Florida Medicaid Pharmaceutical and of particular concern are PDL changes Therapeutics Committee, which makes relating to psychotropic medications,” recommendations to the Agency for Health Swerlick wrote the committee. “When Care Administration on prior authorization these changes have been made in the requirements, to urge that they provide past, we have received heartbreaking calls, continuity of care for patients on anti- typically from distraught family members depressants, anti-convulsants and anti- whose loved ones have ended up in a psychotics. hospital because they could not get their She requested that the committee medications.” STANYARD RAY recommend allowing these patients to It remains to be seen what action, continue coverage when such drugs if any, the committee will take based “Especially with mental are removed from the PDL, provide 60 on Swerlick’s advocacy. Although her health problems, it days’ written notice to patients and their arguments on behalf of Florida’s medically doctors when affected by elimination of needy are backed by hard evidence, both sometimes takes years for the doctors to try FLORIDA MEDICARE/MEDICAID different things. It’s very PRESCRIPTION DRUG HELPLINE idiosyncratic whether 1-800-436-6001 something’s going to In 2009, the helpline provided counsel and assistance to 407 callers work, what combination with Medicaid and/or Medicare prescription drug problems. These callers included Medicaid and Medicare beneficiaries as well as social workers, of medications, so if advocates, physicians and medical office staff. The helpline offered advice you start messing around on the legal right to appeal a prescription denial, as well as assistance to medical office staff in requesting prior authorizations, coverage with that, you’re really determinations, and exceptions to step therapy, in which recipients going to be causing the prescribed a drug not on the Preferred Drug List have to try an alternative drug until it is proven ineffective. Most callers were able to get coverage recipient to be at risk.” for their denied medications. – Anne Swerlick Florida Legal Services

5 Keeping the developmentally disabled out of prison by Nancy Kinnally rowing up in Parsons, Kan., that can result in behaviors that people Katy DeBriere was surrounded find unacceptable in public, and this can G by people with developmental sometimes lead to arrest. disabilities, many of them residents at a It can begin with something as state hospital and research center where simple as an outburst at a library, as in the her parents worked. case of one of DeBriere’s clients, who was “I went to school with a lot of kids arrested and served with a trespass order. with developmental disabilities and had DeBriere eventually got the trespass a special connection to them because order lifted, but meanwhile he faced an they were often also my parents’ clients,” even bigger problem – a potential cut said DeBriere, now an Equal Justice in the support services available to him Works Fellow at Florida Institutional Legal through the Developmentally Disabled Katy DeBriere Services in Newberry, Fla. The nonprofit, Medicaid Waiver. Now, she is working to , DC-based Equal Justice ensure he’ll be able to keep the services of Works provides public service work a supportive living coach and companion divert the flow of people into that system experience for law students and lawyers. who can help him avoid situations like the with some education.” A 2008 graduate of the University one he got into at the library. DeBriere’s work during the two-year of Florida Levin College of Law, DeBriere FILS Executive Director Chris fellowship is supported by a $104,000 has taken her in-depth knowledge of a Jones said people with intellectual or grant from The Florida Bar Foundation, but population that is particularly vulnerable developmental disabilities also are it began when DeBriere first worked at within the criminal justice system and sometimes manipulated into participating FILS as a law-school intern. The following turned it into a project that is the only one in criminal behavior. summer she returned as a Florida Bar of its kind in Florida. “A lot of times they’re used Foundation Legal Services Summer Fellow Through education, outreach, as runners or go-betweens in drug and began to hone her Equal Justice resource development and direct transactions with no criminal intent, no Works proposal with inspiration and help advocacy, DeBriere is working to idea what they’re being put up to,” Jones from several FILS attorneys whose career prevent the unnecessary incarceration said. “So, they’ll get sucked into a huge paths had begun the same way. and institutionalization of people with drug bust, and then typically they’ll be Her plan for the remainder of intellectual and other developmental very cooperative with police and agree to her fellowship is to take the handbook disabilities, such as autism. whatever they’re accused of.” statewide and make presentations in “Statistics show that although 1.5 After that, the person might not various judicial circuits around Florida. percent of the general population have understand the charges or be able to Jones believes those who meet developmental disabilities, they represent explain his view of what happened. her – even those with years of experience 4 to 10 percent of the prison population,” His defense attorney might not know working in Mental Health Court – will DeBriere said. “And I’ve found that when I the legal defenses applicable to the leave having learned something new. go and talk to care providers and families developmentally disabled or even be “Katy has been an admitted lawyer of people with developmental disabilities, aware of his disability. Once in the prison for about a year, and I think she’s probably this is a concern.” system, where he may not understand the now an expert in the state on this area of She has developed and is rules and is still subject to manipulation the law,” said Jones, who hopes to hire distributing an 82-page handbook for and miscommunication, it only gets worse. her as a staff attorney after the fellowship. defense attorneys designed to help “And if you get frustrated and you them identify and communicate with the act out physically, now you’re a security developmentally disabled, understand risk,” said Jones, adding that this can lead View the defense attorney state and federal benefits programs to being put in isolation in a lockdown handbook, “Developmental that could help them, document their cell. “We’re talking about people who are Disabilities & The Criminal disabilities and seek special sentencing probably not literate or capable of asking Justice System,” at www. considerations. for the help they need, and it’s a very long, floridabarfoundation.org/ Developmental disabilities can very lonely time for them. We’re hoping handbook. include problems like impulse control that with Katy’s project we can slow and

6 www.floridabarfoundation.org Florida Justice Summit explores alternatives to new prisons Juvenile justice and prison reform program to prevent at-risk youth from were the chief topics of discussion in entering the system in the first place, said November at the Collins Center for Public April Young, Collins Center vice president Policy’s Florida Justice Summit in Tampa. for justice initiatives. Co-sponsored by The Florida Bar “This is the question: Are we going Foundation, the Summit brought together to pour Florida’s future into corrections, or nearly 300 law enforcement and justice are we going to invest in measures that officials, nonprofit organizations, business improve our state?” Young said. owners and legislators – all calling for an Florida Department of Children and overhaul of the state’s overpopulated and Families and Juvenile Justice secretaries expensive penal system. George Sheldon and Frank Peterman were April Young Prison reform advocates argue that among the conference speakers, along investing in rehabilitation and job training with state business leaders Barney Bishop, our justice system so that it costs less, programs in prison is a small investment CEO of Associated Industries of Florida, but not just so it costs less, but so it compared to the $100 million to build one and Tony Carvajal, executive vice president produces people who can come back into state prison and the additional $25 to $30 of the Florida Chamber Foundation. our neighborhood and be citizens again,” million in annual operations costs. It would “We’re trying to pull together said Collins Center President Rod Petrey. cost even less to invest in a diversion people who are interested in changing “We’re not doing that now.” Foundation welcomes new board members (continued from fall 2009)

As president of Florida Legal Judge Marva L. Crenshaw has As president-elect of The Florida Services, Miami attorney Cristina Alonso been appointed by Florida Supreme Bar, Mayanne Downs is a designated is a designated director on the Foundation Court Chief Justice Peggy Quince to director on the Foundation board. board. A shareholder with Carlton Fields replace Judge Thomas S. Wilson Jr., who A shareholder with King, Blackwell, in Miami, Alonso is a member of the firm’s retired from the bench, and accordingly Downs & Zehnder, P.A. in Orlando, Appellate Practice and Trial Support Group from the Foundation board, in October. Downs practices civil, trial, appellate and and serves as the group’s continuing legal Crenshaw was appointed to the Second domestic relations law. She is also the city education training director. She practices District Court of Appeal in January 2009. attorney for the city of Orlando. Downs in the areas of product liability, complex Her career began as a prosecutor with has been a member of The Florida Bar commercial litigation and personal injury the State Attorney’s Office in Miami- Board of Governors since 2002 and has defense. Alonso is a member of The Dade County. She later served as deputy served on the Executive Committee since Florida Bar Young Lawyers Division Board director of Bay Area Legal Services until 2005. She is past president of the Orange of Governors and serves as chair of its she was appointed to the Hillsborough County Bar Association and The Legal Pro Bono and Community Involvement County Court in 1989. In 2000, she was Aid Society of the Orange County Bar Committee. She also is a member of The appointed to the Thirteenth Judicial Circuit. Association and serves as a Guardian ad Florida Bar Appellate Section’s Pro Bono As a trial judge, she served in the civil, Litem for neglected and abused children. Committee. She earned her bachelor’s family, criminal and juvenile divisions. An She earned her bachelor’s degree from degree at the University of North Carolina honors graduate of the Tuskegee Institute, the University of Florida and her juris at Asheville and her juris doctorate at the she received her juris doctorate from the doctorate from the University of Florida University of Florida College of Law. University of Florida College of Law. College of Law.

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The Florida Bar Foundation is the only statewide organization that provides funding for Legal Aid and promotes improvements in addressing the civil legal needs of the poor.

FOUNDATION FACTS Individual donations supporting Children’s Legal Services totaled $220,763 in 2009. More than 5,000 donors contributed to one or more of the following fundraising efforts CONTACT THE FOUNDATION OFFICERS supporting children’s grants: the (407) 843-0045 Adele I. Stone, President Lawyers’ Challenge for Children (800) 541-2195 (Toll free in Florida) John A. Noland, President-elect

Michele Kane Cummings, First Vice President on The Florida Bar Annual Fee EXECUTIVE Statement; the Foundation’s 2009 Jane Elizabeth Curran, Executive Director & Maria E. Henderson, Second Vice President end-of-year campaign for Children’s Director, Improvements in the Administration of Justice Kathleen S. McLeroy Immediate Past President Legal Services; or the purchase or Grant Program [email protected] renewal of a Kids Deserve Justice DIRECTORS license plate. DEVELOPMENT Tim Bachmeyer, Director of Development Cristina Alonso Philip N. Kabler These donor contributions are [email protected] Solomon L. Badger, III George F. Knox, Jr. added to regular Foundation Michael Cooper, Annual Giving Manager Michael A. Bander Donna M. Krusbe [email protected] funding for Children’s Legal Matthew G. Brenner Vee H. Leonard Services. In 2008-09, the Foundation COMMUNICATIONS Anthony J. Carriuolo Dominic C. MacKenzie Nancy Kinnally, Director of Communications awarded 23 grants to local legal aid Jewel White Cole L. Christian Marlin [email protected] programs for their Children’s Legal Hon. Marva L. Crenshaw Miles A. McGrane, III Gabrielle Davis, Communications Coordinator Services projects, enabling them [email protected] J. Blair Culpepper Roberto R. Pardo to represent the legal needs of Jesse H. Diner John C. Patterson, Jr. FINANCE & IOTA OPERATIONS children in nearly 3,000 cases. Lou Ann Powell, Director of Finance & IOTA Operations Mayanne Downs Scott R. Rost The Foundation’s priorities for its [email protected] Michael J. Faehner Damian E. Thomas Lushawn Phillips, IOTA Operations Manager Michael M. Fields Hon. Emerson R. Thompson, Jr. Children’s Legal Services grants [email protected] include representation of foster Leo J. Govoni John G. White, III GRANTS children and access to special Julio C. Jaramillo Hon. Reginald K. Whitehead Paul Doyle, Director, Legal Assistance for the Poor & education, as well as medical, Law Student Assistance Grant Programs developmental and mental health [email protected] services that are required under law. Every day, in every city in Florida, we help Legal Aid help those least able to afford a lawyer. We are The Florida Bar Foundation, and we believe the system works best when it works for everyone.

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