A clear victory

Clinic students and professor win eye therapy for client

Jesse DeNike ’07, Professor Lisa Brodoff, Amie Hirsch ’07

A Seattle woman who had been denied therapy that was her only hope in curing debilitating migraines and vision problems is now getting relief, thanks to the Ronald A. Peterson Law Clinic.

The attorneys and students involved in the case fought the state’s refusal to provide the services on grounds that it violated federal and state law and that the state failed to follow its own rule-making process – and the state agreed.

“I’m only halfway through the therapy, and my vision has improved to where I have to get a new prescription,” the 50-year-old client said. “I am so grateful there is such a program as the law clinic. I didn’t know how to navigate the system. They did so much research and prepared so many arguments. I was really impressed. I was amazed with the level of care they had.”

The client, whose name is not being used because she is a domestic violence survivor, sustained a head injury in a car accident three years ago. As a result, she suffered from severe migraines, blurred vision, and difficulty reading and concentrating. After trying numerous medications and therapies, her neurologist prescribed vision therapy, which has been described as “physical therapy for the eyes.” For the first time, she experienced some relief.

“I am so grateful there is such a program as the law clinic. I didn’t know how to navigate the system. They did so much research and prepared so many arguments. I was really impressed. I was amazed with the level of care they had.” – Client

Unable to work, she maxed out her credit cards, and soon couldn’t pay for continuing therapy. Her doctor applied for coverage of her therapy through the Medicaid program. She learned that Washington’s Medicaid Program, administered by the Department of Social and Health Services, had issued a new regulation in 2005 eliminating coverage of VT for all Medicaid recipients, regardless of their need for this service.

She sought help at Solid Ground, a Seattle organization dedicated to ending poverty and prejudice, which connected her with the Administrative Law Clinic, taught by Professor Lisa Brodoff. In 2006, an Administrative Law Judge ruled that pursuant to the binding regulation, the woman’s claim for coverage would be denied.

But Brodoff and students Jesse DeNike and Amie Hirsch weren’t about to give up. They enlisted Janet Varon of Northwest Health Law Advocates to serve as co-counsel and took the case to Thurston County Superior Court.

DeNike and Hirsch, both 2007 graduates, believed the state could not legally eliminate physical therapy services for the eyes if it covered other physical therapy services.

“We argued that the regulation was inconsistent with federal and state law,” DeNike said.

Further, the students discovered the state hadn’t followed its own rule-making process in denying the coverage. They had asked for the state’s rule-making file to see if anyone had commented on the service reduction during the process. And they found out no one would’ve ever had that chance because the state never said coverage would be eliminated in the notice to the public.

“They called it a ‘clarification,’” Hirsch said. “They never said they were cutting anything.”

“We looked at it, and we all said, ‘They messed up on this,’” Brodoff said.

The students wrote briefs outlining their arguments, and the clinic team presented them to the court and to the lawyers from the Office of the Attorney General representing DSHS in the case. Coincidentally, the assistant attorney general handling the case was Tim Crandall ’81, who is an adjunct professor at the law school. He was quickly persuaded that the clinic team was right.

“The briefs were well-written and the problem was clearly identified. The rule was not properly promulgated,” said Crandall, who has been with the Attorney General’s Office since 1990 and was deputy director of the Medicaid Fraud Control Unit until 2003. “I can tell a winner from a loser, and this was a loser. I knew it was time to get the client the services she needed and figure out the best way to rectify the problem.”

The state agreed to immediately withdraw the rule that eliminated the vision therapy; notify all providers in the state that VT was still a covered service in Washington; let anyone who was denied services over the last two years apply for retroactive coverage; and cover the clinic client’s VT services. Further, the state paid her attorney’s fees for the pursuit of the appeal.

“It felt really good,” DeNike said. “Our client had serious medical problems and she got the help she needed.”

Crandall credits the students and their supervising attorneys.

“Having been a student at one point and being an adjunct, I think it’s great experience for the students in the law clinic to have a real case and to go up against a seasoned attorney and win,” he said. “We’re growing good lawyers at Seattle University School of Law.”

Word of the students’ work spread, and DeNike and Hirsch were invited to the fall Mountain West Regional Clinical Conference in San Diego to talk about the case.

“At the conference, our clinic was well-received,” Hirsch said. “I think we have a really great program here. A lot of responsibility is given to the students.”

Brodoff said it’s exciting to give students the opportunity to practice law. And just as important is making them see what attorneys committed to the public good can contribute.

“If this client hadn’t gotten representation in court, she wouldn’t have gotten the service,” Brodoff said. “Most poor people don’t have that chance. This is a social justice issue.”

The students said they benefited from having the chance to work on an actual case and to learn Washington law.

“This is the only class that taught us how to practice law,” DeNike said.

They have high praise for Brodoff.

“If this client hadn’t gotten representation in court, she wouldn’t have gotten the service. Most poor people don’t have that chance. This is a social justice issue.” – Professor Lisa Brodoff

“She’s awesome,” DeNike said. “She’s really good at breaking things down.”

Their clinic experience has carried over after law school. Both are now working in administrative law. DeNike is an associate at McCullough Hill, PS, in Seattle working on land use and environmental law. Hirsch works for the state Department of Ecology on rule-making.

“I’m glad to know how their careers are being affected,” their client said. “That’s a real joy to me. As long as there are people and students who care like they did, I really think the future is good. They are really making a difference.”

by Katherine Hedland Hansen
Winter 2008/09