Best Practice
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| Vol. 7, Nos. 1 & 2 | On Delivery of Legal Assistance to Older Persons |
April 1996 |
This article presents an overview of the major purposes of reporting on Title IIIB legal services, with an emphasis on its key role in ensuring that services are targeted to the most vulnerable older persons; Older Americans Act ("OAA" or "Act") reporting requirements; the Act's confidentiality requirements; and the Administration on Aging's new State Program Report (SPR) guidelines. It also examines the extent to which the SPR captures meaningful information about the delivery of legal assistance.
I. The Purposes of a Reporting System for Title IIIB Legal Assistance Programs
Why report? A carefully developed, meaningful reporting system for legal assistance serves a number of useful purposes. These purposes include: demonstrating legal compliance with reporting and targeting requirements; accountability; performance evaluation; and demonstrating the value and impact of legal services. State and area agencies on aging and legal services providers should keep these purposes in mind as they develop reporting systems in compliance with the Older Americans Act requirements and SPR guidelines set forth below. As with any reporting system, it is vital that the content and format of information to be reported be linked back to the purposes of the reporting system. This ensures that time and resources are not wasted collecting information that is neither needed nor useful. Each of the five major purposes of reporting is described below.
A. Demonstrating Legal Compliance with OAA Reporting Requirements
Reporting fulfills its first purpose -- demonstrating legal compliance with reporting requirements -- by supplying information that is required by law and that is necessary to determine whether the program meets requirements imposed by federal and state authorities. The OAA contains a number of provisions that describe the data that must be collected by the Administration on Aging (AoA) on Title III support services, including legal assistance. These reporting requirements and AoA's new reporting guidelines are discussed in detail in Sections II and IV, below.
B. Demonstrating Targeting of Services
The second, and one of the most important purposes of reporting, is to indicate the extent to which legal services are being targeted. A good reporting system can help providers, area agencies on aging (AAAs), state units or offices on aging (SUAs), and the AoA determine if limited legal assistance dollars are being used to provide services to those older individuals in greatest social or economic need. Because recent cuts in LSC dollars will reduce the availability of legal services for low-income elderly, the need for targeting will be greater than ever before.
The Older Americans Act explicitly requires that legal assistance be targeted to those older persons in greatest social or economic need. Individuals in "greatest economic need" are those with an income level at or below the poverty line. Individuals in "greatest social need" are those with need caused by noneconomic factors such as physical and mental disabilities; language barriers; and cultural, social, or geographic isolation. Of those individuals in greatest need, the Act directs that special attention be paid to low-income minorities. More specifically, the Act requires that AAAs include in each agreement made with a Title III provider of any service, a requirement that the provider will, to the maximum extent feasible, provide needed services to low-income minority individuals.
To help ensure that legal services are targeted to those in greatest social and economic need, while the prohibition on means testing is observed, the OAA requires that priority be given to legal assistance related to income, health care, long-term care, nutrition, housing, utilities, protective services, defense of guardianship, abuse, neglect, and age discrimination. The Act also places specific restrictions on the role of legal assistance in guardianship cases, to ensure that services go to those in greatest social need -- those who have lost or are at risk of losing their autonomy through guardianship. The Act allows representation of individuals who are wards, or are allegedly incapacitated, but limits representation of older individuals who seek to become guardians to cases where other adequate representation is unavailable.
Legislative history accompanying enactment of the 1992 Amendments to the Act makes evident Congress' concern with poor reporting practices and the need to determine whether effective targeting is occurring. The 1991 Report of the House of Representatives Committee on Education and Labor states:
. . . [It] is imperative that the limited resources available be managed in the most effective way possible. In particular, it is critical that limited resources be targeted to serve those elderly citizens who are in greatest social and economic need, as mandated by the Act. Without reliable data on the clients being served and the nature of services provided, it is impossible to determine whether this mandate is being met.
Similarly, the Report of the Senate Committee on Labor and Human Resources states:
The clarity and accuracy of the data are pivotal to many . . . OAA issues, especially targeting services to low-income, minority elders. The unreliability of current data makes it impossible to determine the degree to which low-income, minority, frail and other such categories of elders are being served.
Thus, a reporting system should be able to capture information about efforts to target individuals in greatest social and economic need and the success of those efforts. Because means testing is prohibited, careful design of the system is needed to capture this type of information. Statistical information that can be useful in determining the extent and success of targeting efforts includes:
number of clients served, by age -- distinguishing between the old (e.g., 65-79) and the "old-old" (e.g., 80+);
number of female clients versus number of male clients;
number of clients living in rural areas;
ethnic/racial status of clients;
number of clients who are frail and/or socially needy;
listing of community education topics/audiences and outreach efforts.
C. Accountability
Another purpose of reporting is to demonstrate the extent of a Title IIIB legal provider's compliance with contractual obligations to its funding source. Because specifications in provider-funder contracts vary, information required to show compliance also varies. One basic measure of compliance -- also required by federal law -- is the "units of service" provided. This statistic is only the starting point; showing accountability to a funding source means much more than simply measuring units of service completed.
Another statistic in which most AAAs are interested is the number of clients served during any given reporting period. Both the AAA and the provider may find this statistic useful because (1) it serves as an indication of the legal program's progress in meeting its contractual responsibilities, and (2) it may provide a measure of the program's cost-efficiency.
Accountability also includes a determination of whether priority legal problems are being addressed, as well as the identification of target populations represented among the clients. For example, is the provider offering services in the priority areas most crucial to the target populations? Is the legal services provider serving clients with priority needs? Is the provider capable of addressing client needs? Note that many of the statistics which could be used to answer these questions are the same as those which would demonstrate compliance with the Act's targeting requirements.
Accountability may also include a determination of whether unmet legal needs exist within the service area. To determine unmet needs, a reporting system may require information about clients who requested services but were not served, the kinds of legal problems they faced, and the reasons they were not served.
Again, because the specifications in provider-funder contracts vary, and therefore information required to show compliance varies, local needs must be considered when developing a reporting system.
D. Performance Evaluation
A funding agency also can use a reporting system as a creative tool for gathering information for evaluation of the quality of legal services, and providers can use it for self-evaluation. The AAA may want answers to questions such as: Is the program doing good legal work? What is the quality of advice and services given? Are the program's outreach efforts effective? These are often more difficult measures. However, as discussed below, both statistical and narrative reporting information can be helpful to state and area agencies in answering these questions.
Certain types of statistics can be used to investigate a variety of hard-to-measure attributes of a program, while open-ended and less structured data collection methods can be used to examine other program dimensions. For example, statistics on numbers and types of cases, time spent on cases, as well as results gained and practices followed, will help a provider or funding source examine the quality of legal assistance services given. In addition, statistics on the number of new clients contacting the program, and the source of new clients' information about the program (e.g., public service announcements; referrals from social agencies; talks by program staff at such sites as nursing homes, senior housing projects) can measure a program's success in publicizing the availability of its services among the elderly. Statistical data on numbers of cases opened and closed each quarter may also indicate whether the program maintains a constant, well-controlled case flow.
Narrative reports in which programs describe certain types of important non-statistical information also can be tremendously useful. Narratives allow the provider to transmit, for example, anecdotal information that can be of great value in showing the impact of Title IIIB legal services on the lives and well-being of vulnerable older individuals. Information that can be collected through a narrative report includes: case examples; descriptions of significant litigation; self-evaluations; outreach methods used; community education efforts and training events; new publications developed and distributed by the provider (e.g., training materials or community education pamphlets); changes in program staff; and newspaper articles, press releases or public service announcements regarding the legal assistance program. Again, it should be noted that many of the numbers and other information collected for performance evaluation can also used in reporting for accountability and other purposes.
As another evaluation mechanism, an area agency can hold periodic meetings between legal program staff, the legal services developer, and AAA staff and/or boards of directors. Unlike written reports, meetings provide an opportunity for a detailed discussion with follow-up questions about the legal program's activities. A related evaluation tool used by a number of agencies is the site visit, during which agency staff personally observe the functioning of the program's offices. For a more detailed discussion of meetings and site visits as evaluation tools, see Vol. 3, No. 1 of Best Practice Notes (February 1989) or Chapter X of TCSG's Comprehensive Guide to Delivery of Legal Assistance to Older Persons.
E. Demonstrating the Value and Impact of Title IIIB Legal Assistance
An often overlooked but valuable aspect of reporting is the excellent opportunity it presents to gather data on the impact and importance of legal assistance to older persons, that can be used to "sell" legal assistance to current and potential funders. This data can also be used to significantly increase the visibility and recognition of the value of legal assistance programs and to strengthen community support for these programs.
Although legal assistance has long been a priority area under the OAA, those outside the legal services community, including some AAAs, on occasion have difficulty in understanding the value and impact of legal assistance. Unlike the clearly recognizable need for, and value of, a home-delivered meal or a ride to a doctor's office, recognition of the need for, and value of, legal services is much more difficult. What this means is that it is much more important for legal services providers to communicate with AAAs, and provide reliable and persuasive information about what they do, than it is for providers of other non-legal services. One way to accomplish this is through reporting.
A good reporting system can help a provider, AAA, SUA or even AoA to explain and justify the expense and provision of legal assistance. To use reporting for this purpose, the report must include indicators of the impact on, or value to, the clients. As with performance evaluation, statistics alone may not be enough to convey fully the value of legal assistance; narrative reporting can be extremely helpful in painting a complete picture (see Section I(D) above).
At least four indicators of legal program impact have been suggested. First, the dollar value of benefits obtained, such as SSI payments, may be calculated. Second, the value of the legal services, as measured by what they would have cost from a private attorney, can be calculated. Third, the report may give information on numbers of cases affecting older persons' basic needs, such as cases in which the client's life, health, homestead, dignity or independence has been protected or saved. Fourth, the report may include information on results that positively affect more than an individual client, through law reform, class actions, or other activities. Legal programs that wish to measure and report the value and impact of the legal assistance they provide to older persons should consider using some or all of these criteria. Each measure produces some estimate of the value of legal assistance. A combination of all four measures can gauge not only economic cost and benefit of services but also intangibles such as "impact" litigation and preserving a client's dignity and independence. For a full discussion of these measures and the different ways in which they can be calculated and used, see Vol. 3, No. 1 of Best Practice Notes (February 1989), or Chapter X of TCSG's Comprehensive Guide to the Delivery of Legal Assistance to Older Persons.
II. Older Americans Act Reporting Requirements
As mentioned above, one purpose of reporting is to demonstrate compliance with the Older Americans Act's reporting requirements. So what does the OAA require? The answer has been evolving during the past 10 years; current reporting requirements represent an attempt to address serious Congressional A. Need for Reliable concern over the lack of reliable data previously collected by the Administration Information on Aging. The greatest underlying concern expressed by both the House and Senate when enacting the 1992 Amendments to the Act was the need for reliable information about the success of OAA programs in reaching and serving target populations -- those in greatest social and economic need, and in particular low- income minority older persons. Congress cited (1) problems with the data collection instrument that AoA requires States to use; (2) lack of standardized data collection procedures; and (3) lack of standardized definitions of service under the Act. These inadequacies make it impossible to do state-to-state comparisons, to aggregate data on specific services such as day care or legal assistance at the national level, and to determine if limited resources are being appropriately and effectively targeted. The Report of the House of Representatives Committee on Education and Labor on the 1992 Amendments summarized the basis for concern as follows:
At the same time that our population of senior citizens is growing and increasing the demand for services, Federal and State governments are facing tighter budget constraints. In such a climate, it is imperative that the limited resources available be managed in the most effective way possible. In particular, it is critical that limited resources be targeted to serve those elderly citizens who are in greatest social and economic need, as mandated by the Act. Without reliable data on the clients being served and the nature of services provided, it is impossible to determine whether this mandate is being met.
Similar concerns and cautions were expressed on the Senate side. The Report of the Senate Committee on Labor and Human Resources states:
The quality and usefulness of the data currently collected by the Administration on Aging has been questioned throughout the reauthorization of the Older Americans Act. The clarity and accuracy of the data are pivotal to many other OAA issues, especially targeting services to low-income minority elders. The unreliability of current data makes it impossible to determine the degree to which low-income, minority, frail and other such categories of elders are being served.
The House Committee Report also cautioned against burdensome reporting requirements and emphasized the need for confidentiality in legal services reporting:
In designing a description and identification system for participants under the Act, great care must be given to balancing the information acquired for program purposes, with the essential need to protect the right of privacy of individuals receiving services. Efforts which result in the discouragement of individuals from participating in program services under the Act must be avoided.
. . . The Commissioner shall endeavor to ensure that the system which will be designed does not impose unnecessary burdens on network agencies. It is not the purpose of these provisions to require an additional level of reporting requirements on States and area agencies on aging and service providers. Rather, it is the intention of the committee that data collection procedures will be streamlined and that consideration will be given to collecting only that data which serves a useful purpose for planning, monitoring, and evaluating programs and by methods that are not cumbersome to those providing the data.
B. OAA Reporting Requirements
In an effort to address these concerns, reporting requirements in the Act were amended in 1987 and again in 1992. In 1987, Congress added specific provisions to the Act (42 U.S.C. §3012(a)(19)) that describe the data that AoA must collect and compile, either directly or by contract. These provisions, retained in the 1992 reauthorization, require the Assistant Secretary on Aging to collect, with respect to each type of service provided with OAA funds, the following information:
the aggregate amount of funds expended to provide each type of service;
the number of individuals who received such service;
the number of "units" of each service provided;
the extent to which each area agency satisfied the Act's requirements that (1) an adequate proportion of Title III B funds be expended for each of the three priority services -- access, in-home, and legal services; (2) preference be given to providing services to older individuals with the greatest economic or social needs, with particular attention to low-income minority individuals; and (3) each agreement/contract with a service provider contain requirements that the provider will specify how it intends to satisfy needs of low-income minority individuals and that the provider will attempt to serve low-income minority individuals in at least the same proportion as that population bears to the total older population in the service area.
In 1992, Congress added further specifications to the Act (42 U.S.C. § 3012(a)(29)), calling on AoA to design and implement "uniform data collection procedures" to be used by State agencies. These include:
uniform definitions and nomenclature;
standardized data collection procedures;
service or activity participant identification and description system;
procedures for collecting information on services needed by older individuals; and
procedures for assessing unmet needs for services funded under the Older Americans Act.
In addition, AoA must submit to the President and Congress, within 120 days after the close of each fiscal year, a full and complete report on activities carried out under the OAA, including:
the statistical data collected under 42 U.S.C. § 3012(a)(19);
statistical data that reflects services and activities provided to individuals;
an analysis of information received on state waivers granted, and related area agency and state hearings, for funding of priority services by area agencies;
statistical data and an analysis of information regarding the effectiveness of state and area agencies in targeting services to older individuals in greatest economic or social need, with particular attention to low-income minority, low-income, and frail individuals; and
a national plan for conducting and providing for the conducting of training personnel in the field of aging.
It is important to note that the report required from AoA to the President and Congress does not specifically include the information called for in 42 U.S.C. §3012(a)(29), which includes a reference to a participant identification and description system. This is particularly important to legal assistance where the identities of clients are confidential information and cannot be provided to state or area agencies on aging. (See Section III-Client Confidentiality, below.) It is also important to note that 42 U.S.C. §3012(a)(19) which calls for the number of individuals receiving services -- and which has been interpreted by some as requiring an "unduplicated count" of clients served -- calls for this figure only within each type of service provided and not across services. Again, this distinction is important to legal assistance because obtaining an unduplicated count across services would require sharing identifying information about clients receiving particular services, and this would violate client confidentiality.
III. Client Confidentiality
The Older Americans Act specifically recognizes the importance of confidentiality in the relationships of legal providers with their clients. In 1987, Congress added provisions to Title III of the Act that specify that states, state A. Older Americans agencies, and area agencies are prohibited from requiring a legal assistance Act Requirements provider to reveal information that is protected by the "attorney-client privilege." A similar provision was added to Title VII as part of the 1992 Amendments. While the provisions themselves are vague as to what falls within the "attorney-client privilege," legislative history on the 1987 Amendments makes it clear that information Congress intends to protect includes any information that would reveal to the state or area agency the identity of clients:
The bill provides that States and state [and area] agencies on aging may not require legal assistance providers under the Act to reveal any information that is protected by attorney-client privilege. . . . The Committee's intent in including the new confidentiality provisions is to clarify that names, addresses and telephone numbers of clients served with Older Americans Act funds will remain privileged information. The Committee understands that some legal assistance providers may be reluctant to contract with area agencies without this assurance. Many older individuals might be hesitant to ask for the legal advice and counsel they need if they though others would have access to their identifying information. The assurance of confidentiality makes it easier for older persons to seek the assistance they need to resolve their legal problems, and makes it easier for legal assistance providers to serve them in good faith.
Therefore, any reporting requirements on legal assistance programs must respect the confidentiality of clients.
While Congress intended that the identity of legal assistance clients be protected, it did not intend that legal assistance providers be exempted from routine state and local reporting requirements. This does not pose a problem, since determination of the extent of targeting, numbers and types of clients being served, and the types of services those clients are receiving can be easily achieved without having to reveal any identifying information. In addition, other information needed for evaluation, planning, or needs assessment can be gathered in a way that does not violate client confidences. Legislative history clearly indicates that prohibited information-collecting does not include information needed for the purposes of evaluation, planning, or needs assessment, because this kind of information may be obtained without the disclosure of the names and addresses of Title III clients. It is incumbent upon the legal services provider to work creatively with state and area agencies to develop reporting and monitoring protocols that will provide these agencies with the information they need, while observing client confidentiality.
B. Waiver of Confidentiality Protection
Since it is for the client's sake that identifying information must be kept confidential, it is the client's privilege to waive or forego this protection. Consequently, if there is a strong and legitimate need to reveal identifying information, a legal program might request a client's consent to disclose identifying information to monitoring agencies, auditors, or other third parties. This should be done, however, only if absolutely necessary, as clients receiving free or low-cost services may feel under great pressure to "consent" involuntarily. Some potential clients might be afraid to seek representation. Should this happen in even a few cases, it would subvert the primary purpose of legal assistance within the Act, namely to extend legal services to the many older persons who remain unrepresented for reasons social as well as economic.
For an excellent article on a lawyer's ethical duty to keep client information confidential, the attorney-client privilege, and the use of an independent auditor to monitor legal services programs, see Vol. 1, No. 6 of Best Practice Notes (May 1987).
IV. AoA's State Program Report and Legal Assistance
Responding to Congressional concern about unreliable reporting practices and to mandates under the 1992 Amendments to the Act that directed AoA to refine reporting procedures, AoA has issued new reporting guidelines for state programs funded under the OAA. The new Title III State Program Report (SPR) format covers services provided under Titles III and VII of the Act; and A. Response to the National Ombudsman Reporting System (NORS) covers long-term care Congressional ombudsman programs. Each was developed to meet requirements contained Mandates in the 1992 Amendments to the Act. The new SPR requirements and the new ombudsman reporting requirements are components of and designed to support the National Aging Program Information System, commonly known as "NAPIS." NAPIS is a coordinated, comprehensive data system supported and maintained by the Administration on Aging (AoA), that will incorporate three types of performance data: data from the Title III SPR, data on ombudsman programs, and data from the Title VI Program Performance Report. The following discussion focuses only on the new SPR and how it affects legal assistance reporting.
B. Structure of New Reporting Guidelines
In revising the SPR, AoA kept three reporting goals in mind -- improved accuracy, an increased focus on service clients and their characteristics, and making performance data a part of a broader information collection and analysis strategy by AoA. The biggest change that states will observe is that the new reporting guidelines will collect information on less than half as many services as before, and the level of detail and reporting accuracy for these services has been increased.
The new SPR is designed to collect information on 14 services, which are divided into two broad categories: services requiring client registration and non-registered services. Registered services include personal care, homemaker, chore, home delivered meals, adult day care/health, case management, congregate meals, nutrition counseling and assisted transportation. These services are further subdivided into two categories -- those requiring a summary client profile and those requiring a detailed client profile. Non-registered services include legal assistance, transportation, nutrition education, information and assistance, and outreach.
The stated purpose of client registration for the nine registered services is to ensure accurate unduplicated client counts for each individual service and across the registered services. These figures are to be based on the use of a master client registry of persons served by the registered services in each planning and service area or the state as a whole. In most states, this registry will be maintained by area agencies; in states with only one planning and service area, it will be maintained by the state. Because of the vital importance of preserving client confidentiality, which would not be possible with the use of master client registry, AoA classified legal assistance as a non-registered service.
For each of the 14 services covered by the SPR, the state office on aging must collect information on "all clients, service units and expenditures for services which are funded in whole or in part by Older Americans Act funding." That is, even if OAA funding is only one of several funding sources used to support the service, performance data must be supplied with respect to the "whole" service.
The state office on aging is responsible for compiling the requested data, completing the SPR, and submitting it to AoA by November 30 of each year. Certain data elements of the SPR need not be reported until FY 97.
C. SPR Requirements Concerning Legal Assistance Programs
The SPR is divided into seven major sections. Only those sections relevant to legal assistance are discussed here.
1. Section I - Estimated Unduplicated Counts of Clients Served Under Title III.
For non-registered services as a whole (legal assistance, transportation, nutrition education, information and referral, and outreach), Section I-A asks for a "best estimate" of unduplicated persons served. Section I-B requires that this estimate then be broken down by client characteristics. Four client characteristics are listed: (1) minority status (African American, Hispanic, American Indian/Native Alaskan, Asian American/Pacific Islander, or non-minority); (2) rural clients; (3) clients in poverty; and (4) minority clients in poverty. Note that for both Sections 1-A and 1-B, the state need only report these numbers for unregistered services as a whole, not for each individual service.
2. Section II - Title III Utilization Profile.
Section II is subdivided into three parts. Only the first, Part A, is relevant to legal assistance. Section II-A requests specific information regarding individual registered and non-registered services. For legal assistance, the SPR requests:
an unduplicated count of legal assistance providers;
a count of "minority providers";
the number of area agencies on aging directly providing legal assistance, using paid or volunteer personnel; and
a count of "total service units" provided during the year. Note that this number includes all units of legal assistance provided, even if the OAA is not the only source of funding.
In determining the "total service units" of legal assistance provided, Appendix I-Definitions of the SPR Guidelines must be consulted. One service unit of legal assistance is defined as the provision of one hour of "legal advice, counseling and representation by an attorney or other person acting under the supervision of an attorney." Thus, for purposes of the SPR, legal assistance includes casework, but does not include time spent by the legal assistance provider on community education and training, and outreach activities.
For federal reporting purposes therefore, the state should report any "information and referral" activities performed by a legal program (e.g., referring a caller to a local social services office) under the "information and assistance" category. Similarly, any outreach activities performed by the legal program should be reported by the state under the "outreach" service category. Also, community training and education by the legal program can be reported, at the state's option, under "Other Services" (see Section IV(C)(4) below).
As discussed below in D. Implications of New Reporting Guidelines, these federal definitions which restrict what can be counted under the legal assistance category will result in under-reporting the actual legal assistance services provided.
3. Section III - Service Expenditures Profile.
With respect to legal assistance, Section III-A of the SPR elicits information on:
the total amount of federal Title III expenditures for legal assistance in the given state;
the percentage of the total service expenditure attributable to OAA Title III federal funding;
an estimate of total program income resulting from service provision; and
OAA Title III expenditures by Title III part.
Section III-B requests information about total Title VII expenditures, by Title VII chapter. Because no funds were ever appropriated for Chapter 4 of Title VII -- State Elder Rights and Legal Assistance Development Program -- and because no Title VII funds at all were appropriated in FY '96, no legal assistance expenditures need to be reported here.
4. Section IV - Other Services Profile (Optional).
Under this section, the state office on aging has the option of providing certain descriptive information about any "other services." This section may be of interest to legal assistance providers because it gives the state an opportunity to highlight legal assistance providers' community education and training efforts, and any other legal assistance activities that do not fall under one of the SPR's 14 listed categories. The data elements requested for each "other service" are: service name; mission/purpose of service; OAA service expenditure amount; percentage of the total service expenditure attributable to OAA Title III federal funding; estimated unduplicated persons served; and estimated service units.
5. Section V-B - Developmental Accomplishments for a System of Elder Rights.
This section directs the state office on aging to identify and describe three accomplishments during the given fiscal year which enhanced the development of a system of elder rights in that state. For each accomplishment narrative, the state office on aging should describe the result, potential impact on older individuals, the process followed, organizations with primary responsibility for the accomplishment, and the type of development activities undertaken. Examples of accomplishments a state might describe in this section include the development of statewide standards for legal assistance; specific statewide elder rights advocacy initiatives; and coordinated activities by legal assistance providers, state long-term care ombudsmen, elder abuse prevention programs, and other programs.
D. Implications of New Reporting Guidelines
TCSG recognizes the difficulty of AoA's task of achieving a successful balance between the need to collect meaningful information and the need to streamline and reduce the burden of reporting requirements, and commends the AoA for the positive changes found in the new reporting system. Overall, the new reporting guidelines represent a strong effort by AoA to standardize reporting practices in order to collect more meaningful information, and to compile data that indicate whether Title III services are being appropriately targeted to older individuals in need. In addition, by not requiring client registration for clients of legal assistance programs, the SPR supports legal providers' obligation to protect client confidentiality. With respect to specific data collected on legal program activities, however, certain concerns remain. These concerns are discussed below.
1. Units of Service and Definition of Legal Assistance.
As stated above, Section II-A of the SPR requests a count of the total units of legal assistance provided during the year. The SPR defines a unit of legal assistance as one hour of legal advice, counseling, and representation by an attorney or other person acting under the supervision of an attorney. Three shortcomings of this definition are readily apparent.
First, while for many types of services, a "unit" concept can provide a useful overall measure of services being provided, legal services are not as readily measured in terms of units. Different types of legal cases and clients require vastly different expenditures of program resources. Answering a one-time telephone inquiry from an older person about his or her legal rights clearly represents a discrete "unit" of legal assistance delivered, much like a single meal served at a nutrition site. Yet this "unit" of legal assistance is not equivalent to the "unit" represented, for example, by an hour spent on in-depth work on a client's case.
Second, the definition of legal assistance clearly indicates that individual casework is the only type of service counted and that other non-casework legal activities are not recognized as legal assistance at the national level. Most legal programs carry out a variety of advocacy activities other than direct casework, such as community education presentations. However, the SPR does not capture information on these activities as part of legal assistance services. As stated above in Section IV(C)(2), information about legal programs' outreach and information and assistance activities may be reported by the state as general "outreach" and "information and assistance" services. In addition, community education and other activities may be reported by the state separately under the "Other Services" section of the SPR. These reporting options, however, will lead to an inaccurate portrayal -- at the national level -- of the depth, reach, and cost-efficiency of legal assistance activities. For instance, if a legal program contracts with an AAA to provide legal casework, advice, outreach, community education, training, and information and referral, but only reports casework and advice, statistics for legal services on numbers of persons served and "units of service" provided are likely to be low, while the cost figures will be higher than if all activities were reported.
Third, the definition of legal assistance in the SPR Guidelines does not include an important category of service that is part of the definition in the Older Americans Act. The SPR definition is limited to services "by an attorney or other person acting under the supervision of an attorney." The Older Americans Act is more broad and also includes "counseling or representation by a nonlawyer where permitted by law." Such a nonlawyer does not need to be supervised by an attorney. Examples are nonlawyers who are specifically permitted under the Social Security Act to assist and represent clients with appeals in Social Security, SSI, and Medicare through the administrative hearing level. In many areas of the country, such administrative representation by nonlawyers is an important part of legal assistance services provided to older persons, but it will not be reflected in AoA's national data.
All three of the above forms of under-reporting have serious implications for legal assistance. When compared to other Title III services such as transportation or congregate meals, a straight cost/benefit analysis could result in Title III legal assistance appearing to have less impact and importance for older persons than other Title III services. This may reduce Congressional support for legal assistance as a priority service. Therefore, because AoA's reporting requirements do not include all advocacy activities, reporting on legal assistance is incomplete.
To avoid undercounting legal assistance activities, states may want to consider developing a reporting system that collects data about legal providers' other activities. (See "Focus on Michigan: A New Statewide Legal Assistance Reporting System," below.) Establishing such a system would help to ensure that the impact and value of legal services is recognized at least at the state and local levels. In addition, it behooves legal providers, AAAs and SUAs to use this additional information to educate other funding agencies, the AoA, and Congress about the SPR's limitations and about what Title IIIB-funded legal programs can and do accomplish.
2. Measuring the Extent of Targeting of Legal Assistance to Individuals in Greatest Need.
Another significant shortcoming of the new SPR is its limited ability to measure the extent of targeting of legal assistance to older individuals in greatest social or economic need, as called for in the Older Americans Act. The new SPR effectively captures an unduplicated count of minority clients, rural clients, clients in poverty, and minority clients in poverty of non-registered services as a whole. However, it does not collect these numbers specifically for legal assistance services. As a result, AoA and Congress will not know how these target groups benefit from legal assistance in particular.
In addition, the SPR does not request information about the kinds of issues addressed by legal assistance programs. For instance, are legal assistance providers primarily addressing "priority" legal issues that are most crucial to target populations such as SSI, Medicaid, long-term care, or defense of guardianship? Or, are they handling wills and estate matters or other non-priority cases? Because priority legal issues are those issues most likely to affect older individuals in social or economic need, tracking the types of cases handled by legal assistance providers would provide valuable information about the effectiveness of legal programs' targeting efforts.
The absence of any request for information specifically about legal programs' outreach, community education, and information and referral services also contributes to the development of an incomplete picture of legal providers' targeting efforts and successes. Community presentations and other attempts to reach at-risk individuals are critical to achieving the OAA's targeting objectives, and should be considered when evaluating both the value of legal assistance and legal programs' compliance with targeting requirements.
Because of the SPR's limited ability to collect targeting information concerning legal assistance, providers need to work with state and area agencies to develop systematic ways of measuring the effectiveness of legal assistance programs and their impact on the lives of older individuals in greatest social or economic need. Once collected, this key information should be shared with funding agencies, state agencies on aging, and the AoA.
3. Capturing the Value and Impact of Legal Assistance.
While the SPR collects the basic "units of service" figure described above, it does not request numbers that clearly convey "impact" information, critical to understanding the value of legal assistance and to demonstrating the need for these services to funding agencies. A variety of measures, described above in Section I(E), may be used to assess the impact of services provided. For instance, a reporting system may request the dollar value of benefits obtained or the cost of legal services, had they been obtained from a private attorney.
Furthermore, although thoughtfully requested statistics can be useful as indicators of the value of legal assistance (as well as the cost-efficiency of a program, characteristics of individuals served and other performance criteria), statistics alone do not fully illustrate the impact of a legal assistance program. For example, statistics are unlikely to capture the import of defending an older person from an unnecessary guardianship; saving an individual resident from losing her home due to fraud; ensuring that an elderly client receives the wheelchair for which he has paid; obtaining a Social Security entitlement for a widow who otherwise would have no income; or protecting the right of an elderly person to visit his spouse who lives in a nursing home. Incorporation of narrative information, while admittedly beyond the scope of a national reporting system, is worth serious consideration at the local and state levels.
Because data required by Congress and AoA does not measure this type of impact information, providers may need to work with their state and area agencies to devise reporting systems that reflect more clearly the value of legal services, both in monetary and in human terms. For methods on capturing the impact of legal assistance, see Vol. 1, No. 5 (April 1987); and Vol. 3, No. 1 (February 1989) of Best Practice Notes.
V. Looking Ahead
AoA's new reporting guidelines make great strides toward achieving standardized and more meaningful reporting practices. However, because of their inability to capture targeting and value/impact information, the SPR paints an incomplete picture of legal assistance programs' activities, accomplishments, and value. These limitations present a challenge to state and area agencies and legal providers to examine existing local and state reporting methods and to develop creative responses which allow for compliance with Older Americans Act requirements and which accurately measure the full value of legal services to older persons. These groups must work together to ensure that legal services are indeed being provided to older individuals in greatest social or economic need, and that local communities, funding agencies, and Congress become aware of the major, positive impact that legal assistance has on the lives of older individuals.
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