Maryland Bar Bulletin
Publications : Bar Bulletin : February 2006

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 PRO BONO Profile:  

"Pro Bono Team Seeks Medical Care for Children"

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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Publications : Bar Bulletin: February 2006

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