ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Tuesday, January 21, 1997 TAG: 9701210108
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
DATELINE: BLUE RIDGE
SOURCE: SANDRA BROWN KELLY STAFF WRITER
THE GENERAL ASSEMBLY will consider three bills sponsored by Del. Richard Cranwell that could provide financial relief to this couple - and change how the Birth-Related Neurological Injury Compensation Program is run.
Nine years ago, Greg and Diane Ulmer considered the two-story, four-bedroom house they purchased in Heatherstone subdivision ideal for raising a family.
Now the place is an albatross, they say, blocking them from building a house that will accommodate their 3-year old son, Brian, who is severely physically handicapped.
And even though money for housing help is available through the Birth-Related Neurological Injury Compensation Program, the Ulmers say the strings attached make the offer unacceptable. They want the General Assembly to intercede and force the program to buy their house for its appraised value of $188,000 and allow them the net proceeds toward a new home.
Their claim for financial relief is sponsored by Del. Richard Cranwell, D-Vinton.
The Ulmers said a series of uncontrollable circumstances brought them to appeal to the lawmakers.
When Brian was damaged during birth in October 1993, the Ulmers considered a lawsuit against the doctor and hospital. But Virginia has a $1 million cap on malpractice case awards, and they worried that Brian's care would cost more. Because of that concern, the Ulmers signed away the right to sue in order to get help from the state compensation program.
The program was established in 1987 as a payor of last resort for children who suffered injury to the brain or spinal cord because of a lack of oxygen at birth. Some of the children the program serves need 24-hour nursing care.
The program was initially funded through $250 annual assessments against all physicians. It now gets its money from investment growth and from fees paid by doctors and hospitals who choose to participate. Physicians pay $5,000; in turn, they get a discount on their malpractice insurance fees. Hospitals pay $150,000 annually.
So far, the program has paid almost $50,000 toward Brian's care.
Brian has been diagnosed with cerebral palsy, damage to the brain that causes his arms and legs to be weak and uncoordinated.
The family believes that Brian understands the world around him, but he can't speak, he can't hold a spoon or fork to feed himself, and he hasn't been able to walk up or down stairs. As he grows older, the strengthening of his muscles might make him able to control movements better, and a computer could enable him to communicate, his mother said.
In the meantime, Brian lives mainly inside his own mind, and his mother has to carry him upstairs to his bedroom or downstairs to the basement garage. And the only way he can enjoy the steeply sloping front walk is in her arms.
Brian weighs slightly more than 30 pounds now, but Diane Ulmer said her back already feels the strain of carrying him.
The family needs a house without stairs, on level ground before he outgrows the parents' strength, she said.
In addition to helping pay for the care of children like Brian, the Birth-Related Neurological Injury Compensation Program helps their families get appropriate housing.
One of the options given the Ulmers was a one-time payment of $100,000 toward a new house, and the couple initially decided to take it.
They drew $55,000 of the payment and bought a lot on which to build. They planned to finance the construction by selling their current house.
But it didn't sell, and they were left with a lot and not enough money to build.
Both parents are pharmacists, but Diane Ulmer can't work full time because she needs to care for Brian. She works about eight hours a month at a Roanoke Valley nursing home.
Greg Ulmer works for Rite-Aid in Big Stone Gap, a 3 1/2-hour drive from home. He lives in an apartment there during his work shifts.
The Heatherstone house has been on the market since September 1995. The only purchase offer was $40,000 less than the $179,000 the Ulmers originally paid, Diane Ulmer said.
One reason the house is not attracting buyers, she said, is that nearby lots recently were sold at half the price of the Ulmers' lot, making homes under construction more attractive in price. Also, real estate agents have told her that the house lacks the "bells and whistles," such as a jacuzzi, that buyers are seeking.
After the house failed to sell, the compensation program board agreed to buy the Ulmers' lot and build the family a house outfitted for Brian. The program would own the house through a trust that said that, if Brian died or was institutionalized, his parents and two sisters would have to move.
The program doesn't even give the family first rights to purchase the house if that happens, Greg Ulmer said.
The offer is unacceptable for the rest of the family, he said. If the program owned the house, the Ulmers would have no way to build equity or to take advantage of deducting mortgage interest from their income tax.
The Birth-Related Neurological Injury board has turned down the Ulmers' alternative suggestions: that the compensation group pay the mortgage on the current house until it sells, or build the new house and let the Ulmers pay the program back once the current house sells.
"They say they can't justify the expense to buy the house, but if Brian falls and is seriously injured, they'll pay for his care," Diane Ulmer said.
The program paid out $4.9 million last year to help injured children and their families, said Elinor Pyles, executive director. There have been 34 claims since the program started; 25 of them were accepted, including six in the Roanoke area.
Pyles declined to discuss the Ulmers' request, except to say she didn't understand why the Ulmers did not go through a normal appeal, which would have meant taking their claim to the Worker's Compensation Appeals Board.
"We tried to work it out," she said.
Greg Ulmer said they got information about the appeal process only late last year. They had already begun to work with Cranwell, he said, and decided to stick with that route.
The program is overloaded with red tape, Cranwell said Monday.
"It has tons of money, and they're running it like a bureaucracy," he said.
After talking with the Ulmers, Cranwell said he was also inspired to introduce two more pieces of legislation related to the program's operation. One would allow a family to take a disputed claim of $2,500 or less to small claims court rather than have to go through the state compensation board appeal. A second bill would give a family the right to participate in the compensation program and still have five years to decide if it wanted to sue the hospital and/or doctor involved in the birth of the injured child. If the family was successful with the lawsuit, then it would reimburse the birth-injury program.
These bills have been referred to a House of Delegates Courts and Justice subcommittee.
The Ulmers' house-purchase bill has been referred to the House of Delegates Claims Committee, of which Del. Clifton "Chip" Woodrum, D-Roanoke, is chairman. It is one of 22 claim bills introduced during the current legislative session.
In the past, the Claims Committee has been able to get relief for a variety of petitioners, but only about 40 percent of claims are successful, Woodrum said.
"That's not an indication of their merits, however," he said.
In the Ulmers' case, the legislation could serve as a "vehicle to assist in some accommodation between the board and couple," Woodrum said.
To leave a message for state legislators, call (800) 889-0229 between 7 a.m. and 7 p.m. weekdays. To track the status of bills, visit our General Assembly Web site at www.roanoke.com
LENGTH: Long : 140 lines ILLUSTRATION: PHOTO: JANEL RHODA STAFF. Brian Ulmer, who has cerebral palsy,by CNBdances to the beat of his keyboard, which is his favorite toy.
color. KEYWORDS: GENERAL ASSEMBLY 1997