Best Practice
NOTES
Vol. 9, nos. 3&4 On Delivery of Legal Assistance to Older Persons December 1998
Contents


A Message from Assistant Secretary for Aging Jeanette C. Takamura

As someone who has long valued the roles of legal rights advocates, I am pleased to introduce this issue of Best Practice Notes with its focus on revitalizing legal for the elderly and elder rights advocacy.I am proud that the Administration on Aging provided the support for the Symposium on Reinvigorating Legal Assistance for the Elderly, held in Ann Arbor, Michigan in December 1997 hosted by The Center for Social Gerontology. The participants in the Symposium produced the recommendations for action that are set forth in this issue of Best Practice Notes.

Since the Older Americans Act was enacted in 1965, and the first pilot legal programs for older persons were implemented in the 1960ís, it has been clear that the legal problems of our most vulnerable elders critically affect their most basic needs - income, housing, health care,autonomy and personal safety. It is also clear that collaboration at all levels - Federal, state and local - will continue to be important if we are to effectively serve these needs, which will only increase with the growing numbers of older persons anticipated in the next century.

I commend the participants in the Symposium and, in particular, The Center for Social Gerontology, for their commitment to protecting and enhancing the rights and quality of life for Americaís most vulnerable elders. I encourage each and every one of you to continue to work together so that older persons of our nation may achieve the goal of healthy, active, longevous and secure life.

Jeanette C. Takamura


An Agenda for Action from the Symposium on Reinvigorating Legal Assistance for the Elderly
By: James A. Bergman, J.D.
Co-Director, TCSG


" While this is not the worst of times, it is also not the best of times for legal assistance for the elderly poor nor for elder rights advocacy. This is, quite simply, a time of challenges and a time for reinvigoration." With those words, The Center for Social Gerontology (TCSG) opened it's Symposium on Reinvigorating Legal Assistance for the Elderly late last year.

It was for that reason -- the need for reinvigoration of legal assistance for the most vulnerable elderly -- that TCSG invited a group of over 60 key leaders in aging and legal services to come to Ann Arbor, Michigan for a two day brainstorming session to develop an agenda for actions at the national,state and local levels which would reinvigorate legal assistance and elder rights advocacy for the most vulnerable elderly. In this Best Practice Notes, we are publishing the recommendations developed at the Symposium so that they can serve as an Agenda for Action for elder advocates.

In the time since the Symposium, much work has begun on the recommendations that came out of it. For example, TCSG is working on plans for the first annual Elder Rights Conference, which will bring together elder advocates and elder law attorneys to work on broadening elder rights advocacy and increase collaboration of the law and aging networks on elder rights activities. Improvements have also been made in information sharing and use of technology in the law and aging field.However, there is still a significant amount of work to do.

Background

As background to the Symposium, during the past few years the three major public funding sources for legal services for the most vulnerable Americans had been threatened or cut:

  • the Legal Services Corporation (LSC) budget had been cut by 1/3, LSC support centers were eliminated and restrictions were enacted on the types of cases LSC programs could handle;

  • one response to the LSC cuts and restrictions had been the creation of new legal programs for the poor which do not accept LSC funds and are unfettered by LSC restrictions;

  • the state IOLTA (Interest on Lawyers Trust Accounts) programs had been threatened with extinction by a lawsuit before the U.S. Supreme Court (see related article in this issue of Best Practice Notes); and,

  • the provision in Title III of the Older Americans Act making legal assistance one of three services which must be funded had been proposed for elimination, as had Title VII Elder Rights.

TCSG's National Survey of Legal Assistance for the Elderly showed that over 60% of Area Agencies on Aging (AAAs) funded LSC programs with their Title III-B legal grants, thereby demonstrating the importance to elders and the Aging Network of changes in LSC requirements and delivery systems.Yet, TCSG's Legal Survey indicated that, while AAAs were very supportive of legal services, most AAAs believed that funding for legal services in their state would drop if legal were not retained as a priority in the OAA; and, the Survey found that Legal Services Developers (LSDs) and AAAs were only minimally involved in state-wide LSC planning efforts which had a major impact on the re-design of LSC delivery systems. Thus, the civil justice system for the poor was being redefined -- new and changed programs, new partnerships, new approaches to delivery, increased use of technology, etc. -- but, the Aging Network had lacked significant involvement in these changes.

Simultaneously, elders faced new programs and challenges to their autonomy and rights; thereby, increasing their needs for legal and elder rights advocacy. New programs, businesses and delivery systems, such as Medicare and Medicaid managed care (including Long Term Care), assisted living, guardianship service providers (GSPs), electronic benefits transfers (EBT) of federal payments, etc., provided new opportunities, but also presented new challenges, e.g., lack of proper notifications of benefits restrictions and appeals processes in managed care, unscrupulous and negligent actions by GSPs towards elders for whom they are appointed guardians, etc. Skills, knowledge and timing are keys to effective advocacy; and, obtaining all these continued to be a major challenge.

A key challenge facing legal and elder rights advocates in the waning years of the 1990s was finding ways to reinvigorate legal assistance and elder rights advocacy in light of these adversities. This reinvigoration process included recognizing how the legal services and elder rights worlds had evolved, discerning ways of most effectively and efficiently using today's technologies, and reaching out to allies (new and old) tore-gain the sense of mission and passion needed to protect and enhance the rights of the most vulnerable elderly.

Planning and Convening the Symposium

TCSG's impressions that the legal advocacy network for elders had lost much of its energy were confirmed in 1997 by our Legal Survey which showed that communication and joint planning between legal services and aging networks was frequently inadequate and that this lack of on-going contact served to undercut support within the aging network for legal services. The findings of the Legal Survey concerning the lack of energy and communication were confirmed in TCSG's discussions with many leading elder law attorneys and Legal Services Developers. With their encouragement and the support of the Administration on Aging (AoA), TCSG convened a distinguished planning committee of aging and legal advocates to plan Symposium '97: Reinvigorating Legal Assistance for the Elderly. To enhance communication among the key stake holders in elder rights advocacy, the Planning Committee concluded that the Symposium should include key representatives from the following groups: state units on aging; area agencies on aging; national aging membership organizations; legal services developers;legal services providers serving the elderly; Legal Services Corporation local programs; pro bono and law school programs;national legal support centers serving aging and other special populations; key national legal services offices, such as LSC, NLADA and CLASP; nursing home ombudsmen; and other key advocates.

In order to encourage the maximum participation of the invitees in developing an agenda for action, the Planning Committee concluded that work groups should be central to the Symposium and should focus on the following topic areas: Networking Actions; Legal Assistance and Elder Rights Delivery Systems Actions; Congressional/Legislative Actions;Funding Actions; and Issue Specific Actions in two topic areas -- Managed Care and Guardianship. The work groups were to recommend specific actions that should be taken in the coming months and next two to three years to provide a significant boost to the provision of legal assistance to the most vulnerable elders and to stimulate high impact advocacy to protect and improve the lives of older Americans.

With this format and with an outstanding group of participants, the Symposium was opened with an inspiring keynote address, titled "Legal Services for the Elderly -- Our Past Successes, Our Present and Future Challenges," by Jonathan Asher, the Executive Director of the Legal Aid Society of Metropolitan Denver and a long-time advocate for legal assistance for the elderly. (Jon's keynote address is re-printed elsewhere in this issue of Best Practice Notes.) Other key speakers during the Symposium included Alan Houseman of CLASP, Bill Benson of the Administration on Aging, and panel presentations by: Richard Ingham and Esther Houser of Oklahoma; John Hall of Vermont; Sally Hart and Stewart Grabel of Arizona; and Lenore Gerard of California. The remainder of the two-day Symposium consisted largely of intensive brainstorming work group sessions in which participants focused on discussing and developing specific recommendations for actions that should be taken on the local/state or national levels to reinvigorate legal assistance for the elderly and elder rights advocacy.

Following the Symposium, TCSG compiled the recommendations and circulated a draft of these recommendations to Symposium participants for them to review and comment upon. Because the various work groups had met simultaneously, there was some overlap in the recommendations, so that,following the review, we were able to combine many recommendations.Further, we suggested and participants agreed that the recommendations should be prioritized to as great an extent as possible and an attempt should be made to limit the final agenda for action to a realistic set of recommendations that would be capable of being implemented and would have maximum impact. While this was an arduous task, inasmuch as the Symposium participants had developed an excellent set of recommendations, the final agenda for action has now been winnowed to twelve key recommendations.

Twelve Key Recommendations: An Agenda for Action to Reinvigorate Legal Assistance for the Elderly & Elder Rights Advocacy

The twelve key recommendations from the Symposium constitute an Agenda for Action to Reinvigorate Legal Assistance for the Elderly &Elder Rights Advocacy, and consist of the following actions that apply to the local/state or national arenas:

  • Legal assistance for the elderly and elder rights advocacy requires reinvigoration at the local, state and national levels; among key actions needed to achieve this reinvigoration are increases in the budget of and removal of the current restrictions on activities of the Legal Service Corporation, as well as retention of legal as a priority service in the Older Americans Act.

  • There is a compelling need for an annual national conference on elder rights advocacy -- to include both special sessions for elder law attorneys and sessions for elder rights advocates generally -- as a key vehicle for reinvigorating and broadening elder rights advocacy on all levels and for increasing collaboration of the law and aging networks on elder rights activities.

  • The legal assistance community needs to significantly increase collaboration with NASUA, NAAAA and the Aging Network on the national,state and local levels to reinvigorate legal services for elders and elder rights advocacy.

  • LSC, NLADA, CLASP and other national legal centers need to increase their involvement in law and aging issues and encourage their local contractors/members to do the same; likewise, SUAs, LSDs and AAAs need to become actively involved in LSC state planning efforts in order to assure that the legal needs of elders are addressed and services are provided in a manner most conducive to the needs of older Americans.

  • Legal providers for the elderly need to improve the quality of the information they compile on their services, and disseminate it more effectively to the Aging Network, policy makers and funders.

  • Inasmuch as the legal needs of the elderly are vastly unmet,alternative funding sources for legal services/elder rights advocacy(including tobacco settlement funds) need to be vigorously pursued, in a collaborative manner by the legal and aging networks, while existing sources are maintained/increased.

  • Greater use needs to be made of technology to enhance communication between/among legal providers and aging network elder rights advocates using e-mail, web sites, list serves, etc. to increase the scope and effectiveness of elder rights advocacy on key issues of concern to the most vulnerable elderly.

  • Greater attention is needed to the uses of technology in legal services delivery and their impact on vulnerable elders, to assure that such technology is increasing access to justice for elders; one possible avenue for examining these issue is through the CLASP/NLADA Project for the Future of Equal Justice.

  • State meetings like TCSG's national Symposium on Reinvigorating Legal Assistance for the Elderly should be held to coordinate and develop elder rights advocacy agendas which involve both the law and aging networks.

  • The National Support Centers on Law and Aging (funded by the Administration on Aging), with NAELA state chapters, LSDs and AAAs, should promote the expansion of pro bono services for the most vulnerable elderly in order to address the large number of unmet legal needs of these older Americans.

  • Aging network and legal providers should collaborate on conducting local training events on managed care and other emerging issues directly affecting vulnerable elders, in an effort to increase the knowledge and skills of members of the law and aging networks on these new and often complex issues and to maximize the limited resources of these elder rights advocates.

  • The National Support Centers on Law and Aging and other legal providers need to disseminate substantive information more broadly and in a more timely manner to elder rights advocates on new and emerging issues of concern to the most vulnerable elderly, e.g., managed care, patients' rights, new guardianship issues, etc.

The Challenge

The recommendations from the Symposium on Reinvigorating Legal Assistance for the Elderly, from such a knowledgeable group of participants, provide a clear statement of need and direction for future action. Together these recommendations constitute a pathway for increasing the vitally necessary collaboration of the law and aging networks in order to meet the legal needs and protect the rights of America's most vulnerable older persons. Equally important, these twelve recommendations form an Agenda for Action for reinvigorating legal assistance for the elderly and elder rights advocacy at a time when such energizing is vitally necessary.

The challenges facing elder rights advocates are well known. The recommendations from this Symposium provide the direction to meet those challenges. The time is now to confront those challenges with action, for, as Frederick Douglas stated: "Power concedes nothing without a demand. It never did and it never will. If there is no struggle, there is no progress." As we confront these challenges, we must be prepared to struggle, for legal rights for the most vulnerable in society will never be popular, but our overriding goal must be to improve the quality of life of the most vulnerable elders in America.


New Challenges to Legal Assistance to Legal Assistance for the Elderly Poor: The Texas IOLTA Case

By : Matthew G. Batista, J.D.
Staff Attorney,TCSG

Several recent developments in the provision of legal services for older persons in economic and social need have emphasized the importance of concerted state planning for those services. The Center for Social Gerontology (TCSG) has focused on many of these developments -- LSC restrictions and budget cuts, the uncertain status of the Older Americans Act, and state planning generally -- in past issues of Best Practice Notes.

Involvement in state planning is crucial for the Aging Network to ensure that legal assistance programs, regardless of funding sources,include on the state and local levels, the needs of older persons when devising their state plans. For most states, state planning centers on that of the Legal Services Corporation(LSC), which has periodically required states to devise and submit plans for delivering legal assistance to the poor. Our recentNational Survey on Elder Rights Advocacy and Legal Assistance for the Elderly found that of AAAs responding, over 60% fund LSC providers. Meanwhile, 88% of the AAAs and 57% of the Developers responding reported no involvement in LSC planning efforts. From these numbers it is clear that more participation is needed.

This article presents yet another reason for the aging network to get involved in state legal services planning: the constitutional challenge of state-sponsored Interest On Lawyer Trust Accounts (IOLTA) programs. IOLTA programs provide over $100 million nationwide to civil legal assistance programs for the poor -- including poor older Americans -- a funding source that is second only to LSC. This important source of funds is currently being challenged on constitutional grounds in the case ofPhillips et al. v. Washington Legal Foundation. It goes without saying that a loss of that magnitude would devastate efforts to provide effective legal assistance to all low-income individuals.

As an example of the impact of IOLTA programs on older people, in Michigan, programs receiving IOLTA funds assisted over 7,000 older Michiganians in 1997. Although this figure represents the number of older clients served by the programs not those served just withIOLTA funds (the Michigan State Bar Foundation, like nearly all IOLTA programs, does not have a reporting system that includes demographics of clients served with IOLTA funds specifically), it nevertheless demonstrates that IOLTA-funded programs do serve a significant number of older people and emphasizes that assistance to these individuals would be severely affected by a loss of IOLTA funds.

Background on IOLTA

IOLTA programs, which are authorized by state statute and/or state Supreme Court rule, are a significant source of funds for legal assistance programs. They provide these funds through a unique arrangement between attorneys, courts, and banks. Attorneys place certain funds they receive from clients into a separate,interest-bearing bank account. Not all client funds are required to go in the account -- only those funds that "could not reasonably be expected to earn interest for the client or [that]the interest which might be earned...is not likely to be sufficient to offset the cost of establishing and maintaining the account,service charges, accounting costs and tax reporting costs which might be incurred in attempting to obtain interest." This typically includes funds that are held for too short of a time period to accrue interest, or are too small to accrue interest on their own.Banks in which the IOLTA accounts are set up, many of which do not charge fees to IOLTA accounts, transfer interest earned on the accounts to the state IOLTA program. With those funds, the state IOLTA program finances legal assistance programs.

The idea for this arrangement began in Australia in the 1960's and was introduced in the U.S. when banks were permitted by Congress to pay interest on certain checking accounts. In 1979, Florida created the first IOLTA program. Currently IOLTA programs operate in all 50 states and the District of Columbia. The structure of these programs varies; currently,twenty-seven states have mandatory programs; twenty-one have programs in which attorneys may "opt-out" of participation; three states have voluntary programs.

IOLTA programs create a win-win situation for the delivery of legal assistance to the poor. They provide much-needed funds for legal assistance programs for low income individuals, including the most vulnerable older persons, with no cost to the public. Unlike tax-funded state and federal programs like LSC and Older Americans Act Title IIIB,IOLTA programs use funds that not only are not public funds, but are funds that would not otherwise exist but for the IOLTA program. Therefore, no one loses anything, and society as a whole gains by helping to provide access to justice.

Challenges Faced by IOLTA Programs

As rosy as the above picture seems, IOLTA programs do have their detractors. Programs in Massachusetts, Washington state,Florida, and Texas have all faced lawsuits claiming that clients have a "property interest" in the interest that accrues to their funds in their attorney's IOLTA account. These constitutional challenges are brought under the Fifth Amendment, which, made applicable to the states through the Due Process clause of the Fourteenth Amendment, states "...nor shall private property be taken for public use, without just compensation." To show that this clause, commonly referred to as the"Takings Clause," has been breached, it must be shown that: (1) there is property involved, (2) the government has taken that property, and (3)just compensation has not been provided for the property by the government.

Of these challenges to IOLTA programs, the challenge in Texas to the Texas Equal Access to Justice Foundation, Phillips et al. v. Washington Legal Foundation, has gone the farthest and poses the most serious threat to not only the program in Texas but perhaps also to all other IOLTA programs. To update those who may not have been following the case,some background information is provided.

Background on Phillips v. Washington Legal Foundation

In February 1994, the Washington Legal Foundation (WLF), a conservative non-profit policy organization; Michael Mazzone, a Texas attorney; and William Summers, a client of Mr. Mazzone, filed a suit against the Texas Equal Access to Justice Foundation, the organization that runs the Texas IOLTA program; its chairman, W. Frank Newton;and the Justices of the Texas Supreme Court alleging that the Texas IOLTA program violated their First and Fifth Amendment rights. The suit sought a declaratory judgment finding the IOLTA program unconstitutional, and an injunction prohibiting mandatory participation in the IOLTA program, as well as there turn of interest earned on Mr. Summers' money that was placed in an IOLTA account.

The U.S. District Court for the Western District of Texas dismissed the suit, holding that WLF and the other plaintiffs did not demonstrate a property interest in the funds placed in the IOLTA account. In September 96, The Fifth Circuit Court of Appeals overturned the District Court and held that the client had a property interest in the funds placed in the IOLTA account , and the client therefore owns the interest that is generated by his or her funds. After some other legal wrangling, in 1997,both sides petitioned for a writ of certiorari (i.e. ask the Supreme Court to hear the case). The U.S. Supreme Court accepted the petition of the Texas IOLTA program and the Texas Supreme Court on the limited question of"whether interest earned on client funds in IOLTA accounts is 'private property' of either the client or the attorney for purposes of the Takings Clause of the Fifth Amendment." The case was argued before the U.S.Supreme Court in January 1998.

The Phillips Decision

On June 15, 1998, the U.S. Supreme Court, in a 5-4 decision ,upheld the Fifth Circuit Court of Appeals ruling that clients do have a "property interest" in the interest accrued in IOLTA accounts.The Court specifically left open the remaining two parts of the test to determine whether IOLTA programs are unconstitutional: whether that property was "taken" by the government and whether, therefore, the clients are due "just compensation." The Court sent the case back to the Fifth Circuit to determine those issues.

The majority opinion for the Court relied on the rule that "interest follows principal." That is, when interest accrues to principal that has been deposited in a bank, that interest is the property of the owner of the principal. The majority explained that a state cannot “transform private property into public property without compensation simply by legislatively abrogating the traditional rule that 'earnings of a fund are incidents of ownership of the fund itself and are property just as the fund itself is property.'" In other words, a state cannot create a program like IOLTA and simply say that the program is exempt from traditional state law. In its petition, the Texas IOLTA program had argued that Texas law does not follow "interest follows principal" as an absolute rule and therefore it does not control. The Court did not agree.

The Supreme Court also rejected the argument that the interest from client funds is not "property" because the funds could not produce the interest on their own. In other words, because the only funds placed into IOLTA accounts are, by rule, funds that are so small in amount or are held for such a short period of time that they would not generate enough interest to offset the costs associated with opening and maintaining an interest bearing account, there is no property in which to have an interest. The Court pointed out that the rule itself acknowledges that interest is created and therefore is property; it did not matter to the majority that in practical terms, the costs would consume what little interest was accumulated on the account.

It was this difference between what is created in theory and how it plays out in reality that was focused on by the dissents inPhillips. In his dissent, Justice Souter argued that the majority’s ruling amounted to "an essentially abstract proposition" that may "ultimately turn out to have no significance in resolving the real issue raised in the case, which is whether the IOLTA scheme violates the Takings Clause of the Fifth Amendment." The basis for Justice Souter's argument is that the three issues in a takings claim can, under Fifth Amendment jurisprudence, be considered at the same time. The majority opinion considered only the first issue, whether the client has a property interest, because that was the only issue considered by the Fifth Circuit Court of Appeals and the Petitioners (the Texas IOLTA program, et al.) did not raise that fact as an error. Justice Souter acknowledged that for procedural reasons the Court should not resolve all three issues in this opinion, but rather should determine if the remaining issues, whether there was a "taking" of the property and whether there has been "just compensation" for the taking, could reasonably be resolved against the Washington Legal Foundation. If so, Justice Souter argued, the case should be sent back to the Fifth Circuit for them to consider all three issues. By considering the property issue alone, said the dissent, the Court risked "placing such undue influence on the existence of a generalized property right as to distort the taking and compensation analyses that necessarily follow before the Fifth Amendment’s significance can be known."

Justice Breyer, in his dissent, agreed with Justice Souter that the"property interest" part of a Takings Clause analysis should not be separated from the other two parts. Justice Breyer continued by arguing that even when considering the property question as presented to the Court, the Majority reached the wrong conclusion. The problem, he argued,is that the circumstances surrounding IOLTA interest "differ dramatically"from those normally associated with interest production and, therefore,the "interest follows principal" rule cannot apply. The crucial differing circumstance, according to Justice Breyer, is that without the IOLTA program and its accompanying rules, no interest would be generated.In other words, "the client could not have had an expectation of receiving interest without that [IOLTA] intervention. Nor can one say that IOLTA rules excluded, or prevented, the client’s use of his principal to generate interest that would otherwise be his." The client had no right to use the principal to generate interest because the principal was being held by the attorney for matters related to the client’s case.

Possible Scenarios

As mentioned earlier, the Supreme Court remanded Phillipsto the Fifth Circuit Court of Appeals to rule on the other two issues in the Takings Clause analysis. It will likely be many months or perhaps even years before a ruling is issued on the other two issues. The Fifth Circuit has sent the case back to the U.S.District Court for the Western District of Texas for discovery on both of the issues, which will undoubtedly be time consuming.Also, simply getting a ruling from the Fifth Circuit will take time. When the Fifth Circuit originally heard the appeal,over one year passed between the time the court heard the case and issued a decision.

When the Fifth Circuit does rule on the two issues, one side or theother will undoubtedly petition once again for a writ of certiorari onthose issues in order to make a final determination of the fate of theTexas IOLTA program. This step will take time as well; the first time theSupreme Court heard the Phillips case, it granted the Texas IOLTAprogram and the Texas Supreme Court's petition for a writ of certiorari onJune 7, 1997, the case was argued on January 13, 1998 and a decision wasreleased on June 15, 1998.

If the Supreme Court ultimately finds that the Texas IOLTA program is ataking without just compensation, and therefore unconstitutional, theTexas program and all other IOLTA programs would have to adjust thestructure of the program or shut down. Depending on the wording of such aruling, as well as how closely other state IOLTA programs follow the samesystem as Texas, other states may or may not be immediately affected. Itis conceivable that some states would refuse to shut down without aseparate ruling directly against them. Nevertheless, a clear U.S. SupremeCourt decision stating that the Texas IOLTA program is unconstitutionalwould be a major threat to all programs.

So what are the chances that the Supreme Court will find the TexasIOLTA program unconstitutional? The American Bar Association Commissionon IOLTA notes that "to find a 'taking,' the court must consider: 1) thenature of the government's action, 2) the economic impact of that action,and 3) the degree of any interference with the property owner'sreasonable, investment-backed expectations." Considering the benevolentpurpose of the program, the nature of the interest created by the IOLTAprogram, as well as the rules which create the program, it seems unlikelythat the challenge to IOLTA will succeed. However, considering theoutcome in the first round, it would be unwise to be too confident.

Although the Phillips case has thus far laid a foundation forundermining the basis for IOLTA programs, most states' IOLTA programs aretaking a "wait and see" approach. The Supreme Court did not issue aninjunction against the Texas program or any IOLTA program, so for now itis "business as usual." Several states have issued statements instructingbar members to continue to use their IOLTA accounts and assuring themthat, in the event of a ruling against the Texas IOLTA program, personalliability to their clients will most likely not be an issue.

Ramifications of the Case and the Role of the Aging Network

If the Supreme Court were to ultimately rule that the TexasIOLTA program is not an unconstitutional taking, programs wouldcontinue uninterrupted (until perhaps the Washington Legal Foundationcomes up with another method to attack them ). The real questionis: What will happen to legal assistance to low income individualsif the Texas IOLTA program is ruled unconstitutional?Aside from the logistics of how other states would be effected discussedabove, losing $100 million would seriously jeopardize theprovision of legal assistance to older people and to the poorgenerally. Among other effects, it would likely forcelegal assistance programs to continue the paring down of staff andperhaps types of cases handled that began with the LSC funding cuts andrestrictions that were introduced in 1995.

The possibility of these changes alone underscores the importance tothe Aging Network and other interested organizations of not only keepingtrack of the Phillips case in particular, but also of making ormaintaining contact with both the individuals and organizationsresponsible for state planning of legal assistance and the IOLTA programsthemselves. Although a final Supreme Court decision is most likely yearsaway, TCSG encourages, at the very least, members of the Aging Network tobecome educated on the issue and get involved in a discussion with legalassistance providers and their state IOLTA program about what the loss ofIOLTA funds would mean for older people in their state and whatalternative strategies could be implemented to ensure that low incomeolder persons and low income persons generally have access to legalassistance.

The "wait and see" approach taken by most IOLTA programs means that,for the most part, active planning for the “worst case” scenario is notcurrently being undertaken. Therefore, at this time the best place formembers of the Aging Network to focus their attention is on the LSCstatewide planning process. By becoming involved in the overall stateplanning for legal assistance for the poor, members of the Aging Network,while working to ensure that the legal problems of older people areincluded, should also be kept abreast of IOLTA developments.

As noted at the beginning of this article, the Aging Network has hadminimal involvement in LSC state planning efforts, in spite of the highpercentage of AAAs that provide Title III funds to LSC programs. Thethreat of the loss of IOLTA funds -- much of which goes to LSC programs --re-emphasizes the need for the Aging Network to become active players inthe LSC and IOLTA planning processes so that the legal needs of olderAmericans are a central part of these planning efforts.


"Our Past Successes, Our Present and Future Challenges":
Remarks from Jonathan Asher

Since our Symposium 97: Reinvigorating Legal Assistance for the Elderly last December, TCSG has received many requests for are print of the keynote address given by Jonathan Asher, the Executive Director of the Legal Aid Society of Metropolitan Denver.Jonathan has graciously provided them for publication in this issue of Best Practice Notes.

I am humbled by the opportunity to speak to experts and leaders about afield in which I have at most been only a foot soldier. Jim and Penny asked only that I try. We entitled these remarks "Our Past Successes, Our Present and Future Challenges."

To attempt to assess and distil, in any way, our past successes is very risky. It is like thanking people on a special occasion or listing siblings, cousins, nieces and nephews in a very large family. You inevitably will not get them all and you will, no doubt, leave out someone's favorite. I will certainly miss at least a few important achievements, but I do not expect to be exhaustive. I will leave out important issues, but the reflections may help us begin to think about how large and extensive our family really is.

Beginning with OEO funded legal services and activist lawyering for the poor in 1965 and the adoption of the Older Americans Act in 1966, then followed by the important adoption of legal services as a priority in the Older Americans Act in 1975 and the subsequent adoption of the requirement that an "adequate proportion" of Title IIIB funds be provided for legal services and that those funds be targeted for "older individuals with the greatest economic and social needs" attention was increasingly paid to the legal aspects of the needs of the elderly.

Over time these efforts focused in large part on economic and medical needs, safety from financial and physical abuse which reflect the very worst in our instincts, consumer fraud and other basic needs. The early legal issues we raised included advocacy for adequate health care and the establishment of the Medicaid and Medicare programs, the indexing of Social Security benefits to adjust for annual inflation, fairness in disability cases and implementation of the SSI benefits program.

We litigated and exposed, and frequently, ended consumer fraud and exploitation of the elderly, we battled insurance and home improvement and other scams. One of the earliest cases I actually worked on was the Smith case which challenged the system of unscrutinized Medicaid reimbursement to self-certified nursing homes for health care which might or might not actually have been provided and which was frequently of very questionable quality.

In retrospect, what did we do? We in legal services and other advocates supported by Title IIIB funding, dedicated our legal lives to the protection of the elderly. We focused on individual cases, impact cases, legislative advocacy, administrative advocacy, a full range of multi-forum advocacy. We engaged in strategic analysis of what was most critical to the elderly and fashioned appropriate legal responses.

We challenged nursing homes abuses. We advocated for the right of the elderly to stay out of nursing homes if at all possible and to maintain maximum personal independence. We helped secure home care support of various kinds, but, if skilled care was needed, we said it should be available. We fought against Medicaid discrimination in admissions to long-term care facilities. We fought for fair eligibility standards and spend-down programs. We fought for quality in care. Our efforts produced federal and state Nursing Home Bills of Rights, Nursing Home Ombudsman Programs and more adequate medical care in nursing homes and other long-term care facilities. We fought for protection against spousal impoverishment when one spouse required expensive institutionalized care.We brought cases and advocated for due process and protection of the elderly in guardianship and conservatorship proceedings. We exposed financial exploitation of the elderly and helped pass legislation banning age discrimination in employment. We helped to bring to light the often denied or hidden scourge of physical abuse of the elderly.

Looking back on 30 years of legal work, and more than 25 years of my own professional life, what do I see? I see laws and court established due process protections. I see a significantly smaller proportion of the elderly who are impoverished. I see better long-term care facilities for the elderly. I see AAA's, legal service developers, and ombudsman programs for the elderly that did not exist before. I see DA's who prosecute elder abuse cases, courts that are more careful in guardianship proceedings. I see an entire bar, lawyers who now specialize, not just in estate planning, but who specialize in the growing field of elder law.

We've done a lot through legal services for the elderly, but where are we now? The statutory priority for legal services in the Older American Act is at great risk. Funding for the Legal Services Corporation has been cut by a third over the past 3 years. Beginning in 1995 with LSC funding of $415,000,000, it has been reduced to $278,000,000 in 1996 and the last two years, 1997 and 1998, LSC has been funded nationally at $283,000,000.

The work of advocates funded by LSC has been greatly restricted. The restrictions are a more serious problem than the lost funding and resulting lost staff. The new restrictions are of three types. The restrictions limit who we can and cannot represent, what we can and cannot do for clients, and increase the internal accountability measures and program reporting requirements.

We cannot represent illegal aliens, prisoners incarcerated in any federal, state or local prison. We cannot defend residents of public housing convicted or charged with drug related activities in eviction actions. We cannot represent anyone who was solicited face to face for the purpose of informing them of their legal rights and offering representation.

What can't we do? What are the restrictions on the scope of the actual legal work we can do? We cannot file class actions, claim or retain attorneys fees, challenge welfare reform, challenge redistricting, engage in abortion counseling or litigation, conduct public policy training. The new prohibitions further restrict legislative and administrative advocacy.The prohibitions and restrictions are significant and grossly unfair.

New internal requirements are also imposed on all recipients of LSC funding. We must maintain time records, adopt lists of priorities, obtain a signed statement by case handlers that they will only engage in work within the approved program priorities, we must obtain statements of facts signed by clients prior to litigation or pre-litigation negotiations, we must submit list of all cases brought in Court including the address of the plaintiff and defendant and the address of the Court in which the case was filed, the cause of action and the case docket number. These lists must be available to the public and be submitted to LSC twice a year.There also are significantly increased audit requirements and audit procedures.

Congress also ended all funding for state and national support centers and successfully undermined and disrupted a network of training and technical assistance which served local providers of legal services for more than 25 years. Overriding all the restrictions, however, is the total prohibition on the use of non-LSC funds for any purpose prohibited with LSC funds.

Despite all of these restrictions, we can still do a lot for our clients. Most of what we did can still be done, but the restrictions certainly hurt. I feel a deep sense of grief and loss. These new restrictions reflect changes in society generally. They reflect a change in the public sense of the appropriate role of government. We have gone from seeing government as a solution to our social problems, to believing that government cannot solve our problems, to now believing that government is the problem. While many of us hold on to traditional notions, we are swimming against the tide. There is a strong current of devolution of power from the federal to state government. There is a debate over public versus personal responsibility. The elderly have not been targeted, but are just part of larger social changes. Where does government respond best to those in need - the poor, the frail, the elderly? We see the devolution of power from the federal level to the states. Federalized authority, for those of us who remember, resulted from discrimination and abuse of minorities and the vulnerable by state and local governments. I fear we have forgotten the historic reasons for a larger federal presence. Closer government does not always protect those in need, minorities, the individual or the elderly.

We see today a far more limited role of the courts, federal courts in particular. Courts are no longer a place where rights are created and defended. More and more where we hear from courts that there is no private cause of action, that there are no legally protected rights or enforceable rights at all. We face a fundamental political attack on legal services, on lawyers, on an independent judiciary.

We can accept the need to grieve - to feel our loss at these changes in public sentiment - but we can't be paralyzed by it. So where do we go from here? How do we regroup, refocus, reenergize, rededicate and recommit ourselves to the challenges of the future? How the hell do I know?

I seriously am not at all sure, but I think our future must include the continued responsibility to advocate, innovate and collaborate on behalf of our clients.

We must continue to listen to our clients. Our best work has always flowed from our capacity to listen and touch clients and their lives and to hear their stories. All of the impact work, systemic change, policy advocacy, when done best, flowed directly from the lives and stories of the people, the elderly, we served, not from our own best intentions or fertile imaginations. It has come from the sorrows and problems and crises of our clients lives. We responded by listening, thinking and fashioning appropriate responses. There is no restriction, no cut in funding, no proposed change in the Older Americans Act or at LSC, which says we have to stop listening. The future will flow from greater creativity in responding to our clients. We know a lot about our clients and we need to continue to know a lot about them.

We have no easy answers or clear road maps. We must innovate and use new and untested strategies and techniques. Technology, while it must not simply be a vehicle for doing less for more as many of us sometimes fear,can help us attend to those in greatest need through thoughtful change and technological innovation.

We are frequently our own worst enemy. We must adhere to the new restrictions, but not unnecessarily and artificially impose restraints on the work we do. We must find new capacities to respond to the need.

We certainly need to be part of a broader community of advocates.While collaboration has always been important it will be even more critical in the future. What we in federally funded legal services programs can no longer do, can still be done, must be done, just not by us. It must be done by other providers, by other paid staff and pro bono volunteers. We must be key players in the development and use of these essential additional legal resources for the elderly.

No longer do we need those who litigate in isolation, the lone rangers struggling against all odds to expand or create rights solely in court.Judge Patricia Wald, years ago spoke at a legal services meeting. Her thoughts rang true then and they certainly are an appropriate call to the future. She said that:

My ideal for a poverty lawyer is not the lone crusader against all odds, but the respected partner in community-wide efforts to advance the hope of a better life for many.

I continue to fear that what we do to each other can be more destructive than what Congress and others can do to us.

The passion we bring to our work is both our greatest strength and our greatest weakness. We should turn inward for sustenance and support. In the face of the most unfair restrictions, a devaluing of the work we do,we all too often turn on, not to each other. We are overly judgmental,not probing or inquisitive. We draw lines where there is only honest ambiguity. Our own rhetoric is not always helpful. We choose to challenge the restrictions in court, or not to. We choose to separate LSC from non-LSC funded programs, we choose to do the restricted work or only the more routine matters. We chose to adopt technologies and technological advances or continue to make house calls as we always have,feeling that technology is a threat, not a tool, by which to improve our services. We choose to hot line or not to hot line. We question who cares more, whose commitment is greatest, who is truest to our perceived values.These are all difficult choices. We need not question the motives of those with whom we may differ or disagree. Those who do our work, do it with love and passion, but without road maps. Our disagreements tend to be strategic, not really going to the underlying values and objectives we share.

Our primary role as program directors, legal services developers and those responsible for legal services for the elderly is to model behavior for others, to model to the extent possible the values we believe in -integrity, fairness, diversity, kindness, firmness, being able to disagree without being disagreeable.

J. Paul Getty described his formula for success. He said his secret was to "Rise early, work hard, strike oil."

I have been blessed to strike oil many times in my life. I struck oil when I met my wife whom I love, I struck oil with my family and friends whom I love and by whom I am nurtured, I have been blessed with work that I love, at least some of the time, but almost always find rewarding.

As we look to the future we should listen to and respect each other despite our disagreements, we must make every effort to embody civility,decency and good humor and we must persist in our cause.

Robert Kennedy once said:

Few will have the greatness to bend history itself, but each of us can work to change a small portion of events, and in the total of these acts will be written the history of (each) generation. It is from numberless diverse acts of courage and belief that human history is shaped. Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring these ripples build a current that can sweep down the mightiest walls of oppression and resistance.

I share his thoughts not for themselves alone, or because, if they were given today they would be appropriately gender neutral, but because of where and in the context in which he spoke them. The are from a Day of Affirmation speech given in June, 1966 in Capetown, South Africa. Indeed the world can change.

A great Democratic leader - there was a time when they existed - said that "patriotism was not the frenzied activity of a single moment but the steady, tranquil dedication of a lifetime."

I believe that our values at their core are certainly not class actions as opposed to a strategy of multiple individual law suits, they are not claims for attorneys fees as a tool in successful litigation or as an important program funding stream. Our values and our work must increasingly reflect flexibility, innovation and collaboration.

We should take pride in our past, be aware and struggle with the present and move boldly into the future to advocate, innovate and collaborate. We must increasingly be creative and probing and willing to work with many others who share our goals and care as we do. The question is not whether legal services for the elderly will survive, it is whether we will continue to deserve to survive. Despite the many difficulties we face, we must continue to be an important, relevant, and vibrant force for making the lives of the elderly better. That is our challenge and our responsibility.


Elder Rights Advocates Lose a Treasure
By: Penelope A.Hommel
TCSG Co-Director

Earlier this year, the Elder Rights Community lost one of its most valued members -- Jacquelyn Koenig. After a courageous and hard-fought battle against cancer, Jackie died peacefully at her home on June 2, 1998, surrounded by loved ones. She died as she lived -- an example for us all -- full of love and concern for others rather than for herself and with a commitment to those of us left behind that she will continue to be there to support us in our efforts.

While the loss of Jackie, the skillful and dedicated advocate at the federal, state, and local levels, is tremendous, the loss that those of us privileged to know her will feel even more acutely, is the loss of Jackie the friend, the ever-ready source of encouragement, strength and support in all of our endeavors. Although Jackie's particular passion was for rights of long term care residents, she shared a sense of mission with all elder rights advocates. She understood completely the importance of working together toward shared goals and she was remarkable in her ability to bring us together for that purpose.

Jackie's professional life started in Cincinnati, where she moved after graduating from the University of Wisconsin. She first did counseling at a Planned Parenthood Office and then moved into the area to which she would dedicate her life's work -- protecting the rights of residents of long term care institutions. She joined PRO Seniors where she directed its very successful Long-Term Care Ombudsman Program, combining her advocacy skills with her artistry and poetry to paint for the community vivid pictures of the difficulties and indignities faced by many nursing home residents. Always ready to take the lead in bringing people together, Jackie served as President of the Ohio Association of Regional Long-Term Care Ombudsmen. It was during this period in the late 70s that TCSG's Penny Hommel first met Jackie; the caring and admiration she prompted at that first meeting has only continued to increase since.

At the national level, Jackie served on the Board of Directors of the National Citizens' Coalition for Nursing Home Reform (NCCNHR), and in 1994, she moved to Washington DC to become director of the National Long-Term Care Ombudsman Resource Center at NCCNHR. It was here that ombudsmen and other advocates across the country had the opportunity to experience the gift of Jackie's friendship. That gift is best described by Oklahoma Ombudsman, Esther Houser writing as "Friend and Sister Advocate" in her tribute to Jackie in NCCNHR's September 1998 newsletter,Quality Care Advocate.

Jackie taught many lessons for those of us who paid attention. She had an incredible work ethic, throwing her whole heart into her task with terrific powers of concentration and creativity. The person I knew also was intensely analytic, striving to understand her own mind as well as other mysteries. Jackie was willing to discuss intimate details of her feelings and beliefs and hold them up for scrutiny in a way few of us are brave enough to try. She set a tough standard by her example, but she connected with fellow humans in a most genuine way.

... And she always knew just the right way to make us all feel better,well tended, and connected to each other in a truly loving, supportive network. I miss her, I know you miss her. But, I also know that we each have her forever in our hearts, and I am sure she is somewhere watching out for us and trying to forward the mission!


The Tobacco Settlement Funds and Aging Programs

The Attorneys General of 46 states, the District of Columbia, and 5 territories have stated their intentions to sign an agreement with the tobacco industry which will bring up to$206 billion to the states in the next 25 years and then additional billions in subsequent years. (Four states -- MS, FL, TX and MN --had already signed separate settlements for over $40 billion over 25 years.) In short, while the 46 state settlement may have many substantive flaws, once it is consummated, the states will be receiving huge sums of no-strings-attached money. We call this OPPORTUNITY!

The Center for Social Gerontology is available to assist the Aging Network in seeking to assure that older Americans obtain a share of the tobacco settlement funds coming to their state. In most states, this is the time of year that the FY'2000 state budget request is being prepared,and it is in the FY'2000 budget that most states will first be deciding how to spend the tobacco settlement funds. If aging programs are to share in this new funding opportunity, it is imperative that action be taken in the coming weeks and months to get this into the FY'2000 budget and appropriations.

States will be receiving millions of dollars; dollars that were obtained to reimburse the state for Medicaid expenditures for health care costs spent on persons with tobacco-related diseases. Most of these persons were older; and most of the future health care costs the state incurs due to tobacco-related diseases will also be for older persons.TCSG believes that aging programs, particularly health-related ones,should receive a fair share of the settlement funds.

To assist in assuring that aging shares in the tobacco settlement, TCSG is doing the following:

  • We have sent materials to State Units on Aging and others in the Aging Network notifying them of this opportunity and recommending strategies to obtain funds for aging programs, including smoking cessation and clean indoor air initiatives.

  • We are available to provide telephone consultation on: the background and details of the settlement, how other states are pursuing this opportunity, and strategies to pursue.

  • We have added a number of very useful items on tobacco and the elderly and the settlement to our web site for the Aging Network to easily access and download at http://www.tcsg.org just by clicking on Tobacco & Elderly. On the site are: the settlement payment schedule; the fact sheet; a detailed bibliography on tobacco & the elderly; and past copies of our Tobacco & the Elderly Notes newsletters which contain much useful information that could support arguments for tobacco settlement funds going to aging programs.

  • Recently we created two posters highlighting tobacco as an elderly issue -- particularly a poster that shows the percentage of tobacco victims who are older persons. We have a limited number of additional copies of these posters, and they are available if they might assist groups in publicly demonstrating the need for some of the settlement funds going to elders.


    Key Strategies for Obtaining Tobacco Settlement Funds for Aging Programs

    We have been asked by aging advocates in numerous states for advice on strategies to use in seeking funds for aging programs.The following is a listing of tips:

    1. Think big! (Millions of new dollars are coming to the states, so don't think small. One state's proposed over $40 million annually for the prescription drug program for seniors.)

    2. Be politically realistic in what you seek.

    3. Focus on just one (or two at most) programs on aging for which to seek funds.

    4. Form partnerships/coalitions with tobacco control groups in your state, as well as aging, children's and health groups/coalitions, and try to reach consensus among you about spending priorities for the tobacco settlement funds.

    5. Support major funding for tobacco control, prevention and cessation programs -- including programs which focus on smoking cessation for elders and clean indoor air laws.

    6. Begin immediately discussing with key Executive Branch officials and with key legislators the need for some tobacco settlement funds to go to aging programs.

    7. Constantly emphasize that older Americans are the primary victims of tobacco-related diseases. Always refer to the facts that: over 94% of tobacco-related deaths annually in the U.S. are to persons aged 50 and over, and over 70% of the total deaths are to persons aged 65 and over --and almost 500,000 tobacco-related deaths occur annually in the U.S.

    8. Use TCSG's data/materials; visit our web site athttp://www.tcsg.org for new information; and call us for assistance. We want you to obtain some of these funds for older persons-- they are the victims, and they deserve to benefit from the settlement.

    For more detailed information, call Jim Bergman at (734) 665-1126.This is an opportunity that comes only once; lets make sure the Aging Network takes advantage of it.


    Adult Guardianship Mediation Training Seminar


    The Center for Social Gerontology presents its Fourth Annual training seminar on Adult Guardianship Mediation on March 20-21, 2000 in Ann Arbor,MI.

    Who should attend?

    • Experienced mediators who want to be in the forefront of a new area of family mediation and wish to expand their practice to include mediation of disputes that arise when guardianship over an adult is being considered.
    • Administrators who want to establish an adult guardianship mediation program.


    Topics covered

    • Mediation Preparation and Process-- Referral, Intake & Screening-- Role of the Respondent-- Role of Attorneys & Other Advocates-- Generating Options-- Identifying Common Issues-- Managing the Process-- Family Dynamics

    • Ethical Issues-- Protection of the Respondent-- Confidentiality

    • Establishing a Program-- Building a Network-- Relationship to Court-- Establishing & Maintaining Referral Mechanisms

    • Guardianship Law & Practice

    • Working with Older Persons & Others Likely to be Subject to Guardianship

    • Extensive Mediation Role Play


    AFM accreditation

    Training is approved for 16 hours of Continuing Education Credits by the Academy of Family Mediators.


    Trainers

    Susan Hartman, J.D., Consultant and Trainer, Adult Guardianship Mediation Project, TCSG, is a mediator as well as the author of the Adult Guardianship Mediation Manual, and has worked with and helped establish adult guardianship mediation programs in eight states.

    Zena Zumeta, J.D., Principal, The Collaborative Workplace, Former President, Academy of Family Mediators, former board member of SPIDR, is a nationally known family mediation trainer.

    TCSG staff & others expert in guardianship, aging, law and/or mediation.


    Logistics

    Dates:
    Monday,March 20 and Tuesday, March 21, 2000. Each day's program runs from 8:30 am to 5:30 pm.

    Registration/Costs:
    Deadline for registration is February 18th. For registrations received by February 18th, the fee for the entire seminar is $375 per person -- no increase from last year. Registration price includes a copy of the Adult Guardianship Mediation Manual. Continental breakfast and snacks are included in the fee. For registrations received after February 18th, the fee is $425, and these will be accepted on a space-available basis.

    Cancellation Policy:
    TCSG reserves the right to cancel the seminar up to a month prior to the seminar because of insufficient registrations. In such cases, paid registrants will receive a full refund. If the registrant cancels before March 3, 2000, a$50 administrative fee will be withheld from any refund. Thereafter, are fund cannot be issued, although you may send a substitute attendee.

    Location/Room Reservations:
    Holiday Inn North Campus
    3600 Plymouth Road, Ann Arbor, Michigan
    Phone: (734) 769-9800
    Room Rate: $78 + tax for single or double room
    When making reservations, please mention The Center for Social Gerontology (TCSG). A block of rooms is reserved for the seminar until February 21, 2000.


    Transportation:
    Ann Arbor is served by Detroit Metro Airport. Information about ground transportation will be sent to you with your registration materials.


    For further information contact Penny Hommel at:


    The Center for Social Gerontology
    2307 Shelby Ave.
    Ann Arbor, MI 48103

    phone: (734) 665-1126
    fax: (734) 665-2071
    email: phommel@tcsg.org


    Below is a registration form for the Mediation Training. Please feel free to print this form, fill it out, and mail to TCSG at the address below.


REGISTRATION FORM
The Center for Social Gerontology
Adult Guardianship Mediation Training
March 20-21, 2000
Ann Arbor,Michigan




Please Check:

  • Trained Mediator (Please attach a brief description of your experience)
  • Non-Mediator
  • $375 fee enclosed
  • $50 late fee enclosed (received after 2/18/00)


Name_____________________________________________________________

Organization_______________________________________________________

Address___________________________________________________________

City, State, Zip_____________________________________________________

Phone________________________________________

Fax_________________________________________

Email________________________________________

If you have any special accommodation or dietary needs, or would like help finding a roommate, please list below:





Please attach a brief description of your background and experience in mediation/aging/guardianship.

Please mail this form and your full payment (check payable to TCSG)to:

The Center for Social Gerontology
2307 Shelby Ave.
Ann Arbor, MI 48103


Back to TCSG Home 

The Center for Social Gerontology, Inc.
A National Support Center in Law and Aging
2307 Shelby Avenue  Ann Arbor, MI  48103
Tel: (734) 665-1126  Fax: (734) 665-2071
Email:  tcsg@tcsg.org