Legal Services for Persons with Brain Injury

By Bill Combes A.C.S.W.

Legal services for someone who has sustained a brain injury might be interpreted as bringing an action against the individual or entity that caused the injury; for example a malpractice or auto insurance civil suit. These types of actions are actually handled by private attorneys who are expert in personal injury cases. What I would like to discuss is the unveiling of a federally funded Protection and Advocacy program that will not bring personal injury suits but rather will provide legal interventions and other advocacy strategies to assist individuals with brain injury as they face issues post acute care.

Since 1980, the New York State Commission on Quality of Care has been the governor's designee for a succession of federally funded protection and advocacy programs. Starting with a program for individuals with developmental disabilities, the Commission created a model of funding private legal services and non-profit advocacy agencies to provide legal assistance, information and referral, advocacy training for consumers and technical assistance for agencies and families on how to make systemic change. There are between one and nine regional contract offices per federal program to make-up a statewide network of advocacy services.   

Thanks to the lobbying efforts of many consumers with brain injury, a new Protection and Advocacy for Persons with Traumatic Brain Injury (PATBI) program has been created solely for individuals who have sustained such an injury.  The funding comes from the Health Resources and Services Administration's Maternal and Child Health Bureau.  The present level of federal funding is anticipated to increase in the future, but, at this time, there will be only one Commission contracted, statewide office at Legal Services of Central New York (LSCNY) in Syracuse New York. 

Beginning on February 1, 2004, LSCNY will take calls at 315-475-3127 and later toll-free from individuals with brain injury, their family members, advocates or other concerned parties. There will be linkage with the BIANYS toll-free number 1-800-228-8201. In addition, individuals can call Bill Combes toll-free at 1-800-624-4143 or directly at 518-388-2887, e-mail at billc@cqc.state.ny.us .

Why would I want to call for assistance?  Although the field of treatment for individuals with brain injury is well established, some stumbling blocks might arise in getting appropriate service. For example, a child with a brain injury must transition from rehabilitation services back to school. The school district might not be well prepared for the student's changed behavior or cognitive difficulties. There may be a need to negotiate with the school district or the district's Committee on Special Education (CSE). This would be a time to call for protection and advocacy. 

Adults or children with brain injury might have to move from acute care to a rehabilitation facility and the family's health insurance provider might refuse to give approval. Such decisions by health insurers can be appealed both internally and then externally through application to the New York State Insurance Department. During times of stress related to the aftermath of an injury, it may be helpful to have an advocate on your side. Further, let's assume that the individual provider agrees to the rehabilitation facility, there may be a problem later with regard to an appropriate length of stay at such a program.  Again, an advocate might be necessary to assist with an appeal.

Last, New York State has established a very successful Home and Community- Based Waiver (HCBS) program for individuals with brain injury who typically would be eligible for nursing home care. The waiver has assisted over 1500 individuals to move from out of state nursing homes into the community.  In addition, the waiver has assisted individuals with brain injury, who are living in the community and in danger of being moved to a nursing home, to receive more appropriate community services. With the waiver, the individuals received additional community services not normally covered by Medicaid

However, since the waiver is a Medicaid funded program, there are certain “due process” rights available to participants. For example, any modification or termination of service is subject to a participant appeal.  So, if a provider terminates an individual from a service, the participant can request an appeal and the service continues pending the result of that appeal.  Similarly, if the Department of Health (DOH) terminates an individual from the waiver, the individual is entitled to written notice of the right to an appeal with “aid continuing” during the pendency of the appeal.  This would be another time to call LSCNY for assistance.

Not every issue will become a case. There will be times when a referral will meet the need or the advocate will offer the individual or family member some technical advice on where to go or what to do.  At other times, the advocate might need only to make a few quick phone calls and then keep the case open in case of changes. Advocacy training, consumer rights handbooks and the development of resource lists will complement the individual case advocacy.

The best advice as to when to call is: when in doubt, feeling blocked by the system, or just not sure what to do next, pick up the phone. You might want to start first with BIANYS or by calling Bill Combes at the Commission or going directly to LSCNY. Whatever route you take, when you reach LSCNY, someone who is experienced and who wants to help will greet you.