Best Practice
NOTES

The Center for Social Gerontology has dedicated this entire issue of Best Practice Notes to the group of individuals whose job it is to develop and enhance legal advocacy/elder rights systems within the states -- the Legal Services Developers(LSDs). Over the years TCSG has provided support to LSDs individually and through the National Association of Legal Services Developers (NALSD); we firmly believe that LSDs are the key to strong, effective elder rights advocacy.

The impetus for focusing on LSDs at this time comes largely from recent Congressional attempts to reauthorize the OAA, several of which would have radically altered the LSDs duties, and a survey undertaken by Natalie Thomas, the Georgia LSD, demonstrating the lack of understanding actors in the Aging Network have of the LSD. For these reasons, as well as our own observations of the wide variation of the position from state to state, we feel it would be worthwhile to discuss the Legal Services Developer position and underscore the crucial role LSDs play in the Aging Network.

---

---

Legal Services Developers: The Key to a Strong Elder Rights System

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

The position of Legal Services Developer (LSD) is a crucial, yet often misunderstood part of the Aging Network. Through our work with LSDs, the National Association of Legal Services Developers (NALSD), and the Aging Network as a whole, we have seen the variance of the position from state to state -- the range of activities undertaken, the amount of staff time devoted to the position, its place in each state's Aging Network system,etc. -- that has resulted largely from the lack of specificity in the Older Americans Act (hereafter OAA or Act). This variation from state-to-state has been the norm since the inception of the position, and it, along with other recent developments, namely Congressional attempts to reauthorize the OAA (see Section I. below), and a survey undertaken by Natalie Thomas,the Georgia LSD, demonstrating the lack of understanding actors in the Aging Network have of the LSD (see Natalie's comments following this article) give cause to discuss the Legal Services Developer position and underscore the crucial role LSDs play in the Aging Network.

It is for this purpose -- to emphasize the importance of the position of Legal Services Developer, as well as the goals they seek in fulfilling the requirements of the Older Americans Act (OAA or Act) -- that we present this article. To aid in fully understanding the LSD as the key to providing a strong elder rights system, and to encourage LSDs and states to solidify the role of the LSD, we provide an in-depth look at the position.

I. Statutory Underpinnings of the Position¹

As originally enacted in 1965, the OAA did not specifically mention legal services as one of the services to be provided. It was not until regulations were developed for implementation of the 1973 Comprehensive Services Amendments that the definition of Title III social services included legal services. In 1975, Congress increased the appropriations for the Title III program by$9 million, $1 million of which was to be used for model projects to strengthen legal representation for older persons. As a result, the Administration on Aging (AoA) undertook its first systematic effort to develop legal services on a nationwide basis. To maximize the use of these funds, AoA supported (1) four innovative services delivery Model Projects; and (2) seven projects to provide technical assistance (TA) to State and Area Agencies on Aging on the inclusion of legal services components in annual State plans, and to provide the Aging Network with resource materials to train attorneys and paralegals providing legal services for the elderly.

As these eleven model projects were being implemented, Congress was seriously considering the future of legal services in the 1975 Amendments to the Act. As a result, (1) legal services was identified as one of four priority service areas under Title III; and (2) specific language relating to the training of lawyers and paralegals was added to Title IVA. In June 1976, 6 awards were made under the Title IVA program. These awards were made primarily to grantees which had been funded under the Model Projects program one year earlier. The emphasis of the IVA projects was on specific materials development and training events for lay advocates,paralegals, law students or lawyers. In some cases, grantees funded under Title IVA continued to also receive Title III, § 308 funding.

Also in June 1976, AoA issued a Program Instruction announcing the State Legal Services Development Program. The purpose of this program,similar to the earlier State Ombudsman Model Projects, was to build the capacity for leadership in the State Agencies on Aging to promote legal services for the elderly within each State. Model Project funds totaling$1.125 million were reserved for 9-month projects to begin January 1,1977, and end September 30, 1977. AoA also announced the continuation of five of the original eleven Model Projects grantees specifically for TA purposes. The following activities for the Legal Services Developers were defined in an August, 1976 TA Memorandum (AoA-TA-76-42):

1. Working with Area Agencies on Aging (AAAs) in order to help them design legal services programs for older persons and to assist them in developing plans for the implementation of such programs by public or private agencies;
2. Assisting LSC offices and/or legal aid programs to expand services and outreach efforts to eligible elderly clients and to design and secure funding for programs which would serve all older persons;
3. Assisting AAAs in involving the private bar in increasing legal representation to older people;
4. Stimulating law schools and other educational institutions to provide research, law related training, and/or direct client services to the elderly;
5. Designing and coordinating through State and Area Agencies on Aging,legal and aging training programs for State and Area Agency Staff and grantees, paralegals, lawyers, and older persons;
6. Providing assistance in developing legal back-up to the nursing home ombudsman programs at the area level;
7. Working with the State Agency, AAAs, and other interested parties on research, drafts, testimony, advocacy and monitoring for legislation a tall levels that benefits the elderly.

Because of the difficulties associated with starting this new program and with hiring Developers, many Developers did not even begin working until shortly before September 30, 1977. Convinced, however, of the importance of developing State leadership in this area, AoA reserved $1.5 million to continue the program from 10/1/77 though 9/30/78.²

In late 1978, AoA established the Older Americans Advocacy Assistance(OAAA) Program. The OAAA Program was intended to continue and enhance AoA's support for State agency leadership in legal (and ombudsman) services. It combined legal and ombudsman efforts "into a common framework in order to maximize their interrelationship, improve coordination, and more effectively deal with the concerns of institutionalized and non-institutionalized vulnerable elderly."³ The OAAA program was described as:

. . . a comprehensive system of State and community-based advocacy services designed to maximize the capacity of the aging network and older persons to secure:

8. access to the existing rights, benefits and entitlements under Federal, State and local laws essential to the freedom and enjoyment of a full life for institutionalized and non-institutionalized older persons; and 9. favorable changes and/or the development of new rights,benefits, and entitlements for institutionalized and non-institutionalized older persons. ⁴

AoA set up a new Advocacy Assistance Unit in its Office of Special Programs to work on this effort. It issued guidance in the form of Program Instructions to State agencies each year from 1978 to 1984. The states prepared proposals and received OAAA grants for State Legal Services Developers and ombudsmen to undertake the efforts indicated in the Program Instruction.

AoA ended the OAAA program when Congress, as part of the 1984 Amendments to the Act, moved funds for State Legal Services Developers from Title IV to Title III, State administrative funds. The 1984 Amendments also added a requirement that each State Agency on Aging"assign personnel to provide State leadership in developing legal assistance programs for the elderly throughout the State."

With the 1992 Reauthorization of the Act, Congress for the first time specifically recognized Developers and their importance. The Amendments added new provisions to Title III and included provisions in the new Elder Rights Title (Title VII) of the Act, requiring that all States have a Legal Services Developer (LSD).⁵ Title III indicates that states must have a Developer and other personnel "to provide State leadership in developing legal assistance programs for older individuals throughout the State."⁶ Title VII has a similar requirement and also delineates some specific responsibilities, stating that all State agencies must "provide an individual who shall be known as a State Legal Assistance Developer,and other personnel sufficient to ensure" that the State has the capacity and will provide--

• leadership in securing and maintaining legal rights of older individuals;
• coordination of the provision of legal assistance;
• technical assistance, training and other support to area agencies on aging, legal assistance providers, ombudsmen, and others as appropriate; and
• promotion of financial management services for older persons at risk of conservatorship.⁷

This Title VII provision is particularly important because it begins to define specific responsibilities for State agencies in developing a statewide legal advocacy system and, for the first time, it requires all States to have an LSD to carry out those responsibilities. Further, it recognizes the magnitude of the task, and requires states to have sufficient other personnel to accomplish it.

In other words, Title VII anticipates that the Developer will be a major player in the elder rights advocacy system. Chapter 4 of Title VII sets forth, with some specificity, what States must do to be effective advocates themselves and to establish and maintain effective advocacy systems. In explaining chapter 4 of Title VII, the Senate Report on the proposed 1992 OAA Amendments states:

The Committee believes that the Aging Network, through the statewide leadership of State agencies on aging have crucial roles to play in promoting and protecting the rights of older individuals, particularly those who are vulnerable due to such factors as their economic status,frailty including dementias, and lack of knowledge about rights and avenues for redress of grievances. . . . the Committee expects that States will provide leadership in assuring that state and local systems . . . are responsive and effective in meeting the needs of elders and in protecting their rights. . . . The Committee compliments State agencies on aging fort heir commitment to providing such services through legal services developers . . . [and] expects that States will build upon and enhance those efforts under this program. In recognition of the unique nature of legal assistance services, the Committee emphasizes the importance of States working closely with area agencies on aging and legal assistance providers.... It is the Committee's intent that such activities will increase access by older individuals to legal assistance and other advocacy and elder rights services.⁸ [Emph. added]

The OAA has not been reauthorized since 1992, although several attempts have been made since then ranging from "straight reauthorization" bills(i.e. renewing the Act "as is") to bills that would radically change the Act. In 1999, reauthorization activity in the 106th Congress was high,although ultimately all attempts either died or were pulled by leadership. Nevertheless, several of the proposed bills in the 106th Congress posed serious threats to elder rights advocacy, which, as discussed above, is a key function of Legal Services Developers as a whole.

While all of the reauthorization bills introduced in the 106th Congress included the current provision in Title III that establishes the position of Legal Services Developer, several proposed to either eliminate completely or make optional Chapter 4 of Title VII, which establishes the State Elder Rights and Legal Assistance Development program. Title VII was added in 1992 as a means of revitalizing and emphasizing the original intent of the OAA that advocacy on behalf of the rights of older Americans is an essential role of the Aging Network. Chapter 4 is the elder rights umbrella which gives cohesion to the discrete elder rights programs set forth in the Title VII -- ombudsman, elder rights advocacy, legal services development, elder abuse protection, health insurance and pension counseling. Without this umbrella to Title VII, the OAA elder rights programs would lack the cohesion that is so crucial to coordinated elder rights efforts on behalf of the most vulnerable older Americans.

If nothing else, the reauthorization activity of the 106th Congress should serve as a "wake-up call" to Developers and the Aging Network that such detrimental change is possible. Although reading Congressional teal eaves is difficult and risky, this past year's reauthorization activities at best demonstrate the sentiment of some on Capitol Hill and at worst could foreshadow future goals/actions.

II. Roles of the Legal Services Developer

Just as the LSD position as a whole varies from state-to-state,the roles LSDs play in each states' system varies as well. The OAA does provide some guidance as to what activities should be included in State Elder Rights and Legal Assistance Development programs.⁹ Who conducts these activities, however, varies considerably. It is arguable, and in fact is argued by TCSG, NALSD and others that the LSD,as the focal point of the legal assistance development, should be the individual charged with the activities discussed below. Therefore, the roles of an LSD are discussed below in terms of LSD "best practices," i.e. as if they are completely conducted by LSDs. In reality, most are carried out to some degree by all LSDs, however, the descriptions below address what we believe is an optimal level of activity.

A. Legal Program Development Work with Legal Services Providers and AAAs

A key role that distinguishes the LSD from legal service providers and other advocates for the elderly is that s/he is the one person in the state who must conceptualize, and then focus on implementing, a statewide vision of the delivery of legal advocacy services to the most vulnerable elderly in the state. No other player in the Aging Network has that role. How effective a LSD is at filling this role generally determines how effective s/he is overall in his/her job.

The vision of the statewide legal advocacy delivery system is the benchmark against which the LSD will determine what his/her priority duties/tasks should be. That is, the litmus test for whether tasks are important or high priority will be whether and to what degree they contribute to achieving that vision of having in place the most effective possible legal advocacy system to meet the needs of the vulnerable elderly in the state.

In developing and constantly refining this statewide vision, the LSD seeks advice and counsel from a wide variety of sources, including legal providers, AAAs, other SUA staff, particularly those involved in elder rights advocacy, and other local and statewide elder rights and legal advocacy leaders. Indeed, a key part of the role of the LSD is to facilitate on-going, formal and informal, statewide planning efforts regarding legal advocacy services delivery system issues, as well as to assist the AAAs in this same effort on the planning and service area level.

At the heart of the legal program development work is the recognition that the OAA envisions legal advocacy services as meeting the individual needs of the most vulnerable elderly by making available the full panoply of legal advocacy services, i.e., administrative advocacy, litigative advocacy, and/or legislative advocacy. This recognizes also that meeting the individual needs of the most vulnerable elderly requires providing access to justice through individual case representation as well as through systems change advocacy, depending on the needs of the individual client.

A major role, then, of the LSD is to provide statewide leadership in the development and enhancement of the legal advocacy services which are available to the most vulnerable elders in the state. In so doing, the LSD finds him/herself working at times on statewide issues, and at other times on local or regional issues. In either case, the goal is always the development and enhancement of the provision of legal advocacy services to the most vulnerable elders.

Experience has shown the following as the most frequent statewide issues in the legal program development area:

• Expansion of direct legal representation so that gaps in service are alleviated, whether through increased funding or through increased pro bono or reduced fee services or through alternative means, such as alternative dispute resolution or non-lawyer advocacy services or legal hotlines for advice-only cases.
• Enhancement of outreach techniques by both legal providers and AAAs to assure that legal advocacy services are targeted to the most vulnerable elderly.
• Development and enhancement of statewide systems advocacy efforts which include legal advocacy services to meet the needs of vulnerable elders.
• Design and implementation of programmatic systems to improve the quality of legal services delivery and/or to increase effective communication between legal providers and AAAs and other funding sources. For example: reporting systems which measure output and reduce burdensome, useless reporting; statewide standards for service delivery; etc.
• Expansion of collaboration between legal providers and other elder rights advocacy programs, such as the Long Term Care Ombudsman, the benefits counseling programs, and the elder abuse prevention programs.

On the AAA level, the LSD has a key role of providing both leadership and technical assistance. The AAAs can generally look to the LSD to provide "expert" guidance on legal service delivery system issues, whether in program development or program monitoring and assessment. While the LSD must recognize that the AAA makes the final decision about funding of legal programs, the LSD can provide very useful and welcome assistance to the AAA on these decisions.

Also on the area level, the LSD should be looked to by the legal providers for leadership and technical assistance, particularly in developing and maintaining effective working relationships with their AAA funding sources and in finding ways of expanding and improving the services available to vulnerable elders. Frequently in this relationship,the legal providers look to the LSD for guidance and assistance on"relationship" issues with the AAA or with other potential funding sources.

Recognizing that the LSD is looked to by both the AAAs and the legal providers for assistance, the LSD must work to ensure that s/he helps both, but is not perceived as the spokesperson for either. The LSD's role is to promote and enhance high quality legal advocacy services for vulnerable elders, not to promote the interests of one party or of the other.

B. Elder Rights Advocacy Development and Support

While developing the legal program is an important basic role for an LSD, her/his work as an advocate for elder rights is perhaps the most crucial responsibility under the OAA. Indeed, an LSDís work in elder rights advocacy serves as the backbone to the entire Older Americans Act.

Since the 1992 introduction of Title VII, the Vulnerable Elder Rights Title of the OAA, there has been increased attention to elder rights planning and advocacy. LSDs should always remember that elder rights planning and advocacy have been integral to the OAA since its inception,and therefore are not dependent upon Title VII for their base in law. A key role of the SUA and the AAAs is to serve as a focal point for elder rights advocacy on behalf of the most vulnerable elders.

The LSD is an integral part of the SUA elder rights advocacy efforts. This has been particularly true since the advent of Chapter 4 of Title VII, which linked legal development with elder rights advocacy. Nevertheless, with or without Title VII, by definition advocacy is a part of legal services. Thus, in the LSD's role in promoting high quality legal services for the elderly in the state, the LSD is always attempting to promote and enhance the elder rights advocacy services available in the state.

LSDs generally are either the lead player in the SUA or one of the lead players in the SUA in developing and implementing statewide elder rights activities which are to enhance the rights and benefits available to older Americans. Such efforts may include: statewide elder rights conferences; statewide elder rights task forces to focus on specific advocacy issues; legislative or administrative advocacy activities; development of statewide elder rights coalitions; or other activities.

One of the crucial elements which LSDs can bring to these elder rights efforts is the provision of assistance in creating strong local elder rights advocates to support the statewide efforts. That is, by virtue of the contacts the LSD has with local legal providers and other advocates,the LSD can play a significant role in bringing these groups and individuals into statewide elder rights initiatives.

C. Coordination with other Title VII Elder Rights Programs

Title VII of the Older Americans Act calls on State agencies on aging to ensure the coordination of Title III legal assistance services,LSC services, and those services provided by the State Long-Term Care Ombudsman; Prevention of Elder Abuse, Neglect, and Exploitation; and Insurance/Benefits Counseling Programs.¹⁰ The ultimate purpose of coordination is to maximize the impact that each of these programs can have on the needs of the vulnerable elderly.

The LSD can assist with coordination between Title VII programs by exploring ways in which the different programs can and should cooperate and collaborate to enhance their service to, and advocacy for, vulnerable older people. In doing this, the LSD along with representatives from the other programs, can explore and define how each of the four Title VII programs can be developed and operated to best address the needs of vulnerable elders and achieve the overall mission of Title VII. The challenge to the LSD and others is to learn how the purpose of each program advances the broader purpose of vulnerable elder rights protection; what barriers each program must overcome to advocate effectively for vulnerable elders; what the legal assistance program needs from other Title VII programs; and what the key advocacy issues affecting vulnerable elders are.

Keys to improving coordination include: (1) training/cross-training among Title VII programs about what they do, joint skills, and overlapping substantive areas; (2) understanding the need for Title VII programs to work in a more coordinated way and to understand each other's roles; (3) sharing of information and resources among Title VII programs; (4) the development of working agreements; and (5) the creation of elder rights units within state agencies on aging.

D. Elder Rights Units Rights and the Role of Legal Services Developers

In implementing Title VII, some of the SUAs have created special Elder Units within the SUA to better coordinate their elder rights activities. These units generally include the SUA staff who work on the programs mentioned in Title VII, that is, the Long Term Care Ombudsman, the LSD, the health insurance and benefits counseling programs and the elder abuse prevention program. Some states have a senior staff member head this unit, while others have one of the aforementioned staff head the unit, or in some cases the leadership shifts from one person to another depending on the issue being dealt with.

Generally, the Elder Rights Units are established to facilitate better communication and coordination among the "elder rights programs" which the SUA operates, and secondly, to place a heightened focus on statewide elder rights activities coordinated by the SUA. In some states, the Elder Rights Units include membership from outside the SUA, as well. In these cases, the focus is more often on statewide elder rights efforts, such as elder rights conferences or task forces.

E. Development of Standards for the Delivery of Legal Assistance to Older Persons

Title VII of the Older Americans Act calls for State agencies to"develop, in conjunction with area agencies on aging and legal assistance providers, statewide standards for the delivery of legal assistance to older individuals."¹¹ Statewide standards can be defined as a set of guidelines which describe and define the essential elements involved in providing high quality, high impact legal assistance to older persons, and which set out the major responsibilities and roles of the actors and agencies involved in the legal advocacy system. Planning for the development of standards generally begins with the Legal Services Developer, who takes the lead in organizing the effort.

The reasons for developing statewide standards are to (1) improve the ability of AAAs to request proposals from, and contract with, legal providers for full-service, targeted legal programs; (2) assist state and area agencies and legal providers in viewing legal assistance as an integral part of the AAAs' and state agencies' larger role in protecting and enhancing elder rights and the autonomy of older persons; and(3) establish minimum standards of service which may be used by the state agency, AAAs, and legal providers to develop quality assurance systems of operation, monitoring procedures, and reporting systems which reflect the services being delivered and the impact of those services on the lives and well-being of older persons. Because developing and supporting legal assistance programs throughout the state is the basic role of the Developer, it is logical that the LSD would take the lead in bringing together a task force for the development of standards.

As an initial step in the planning, the LSD often discusses the need for and purpose of standards with the State Director on Aging and other state office staff who may have an interest in the project, and determine whether there is consensus that the concepts and process (discussed in TCSG's publication, Guide to the Development of Statewide Standards for the Delivery of Legal Assistance to Older Individuals) seem appropriate for their state. It is also helpful to discuss the development of standards with staff from area agencies and Title IIIB legal programs,members of the State Bar Elder Law Committee, representatives from the Office of General Counsel, etc. Development of standards by calling together a task force that includes even "problem" area agencies and providers can be a very effective tool in dealing with difficulties. By including the problem area agencies and providers in the process, the Developer gives them a forum for open discussion about their conceptions of the programs and the ownership of the final product.

F. Pro Bono Development Work with the Private Bar

Legal Services Developers are charged with identifying the legal needs of older persons, as well as the resources available to meet those needs. Title IIIB- funded legal assistance programs clearly are not sufficient to fulfill the needs of all older persons in any given state or local area. Therefore, it is incumbent upon the Developer to find additional sources of legal services for older individuals. One avenue that is often explored is pro bono or reduced fee work by members of the state private bar. LSDs throughout the country have developed and implemented statewide and local pro bono programs that bring together prospective clients and volunteer lawyers.

In their pro bono development work, LSDs help AAAs and providers not only to generate a substantial number of volunteer lawyers, but to use these resources in such a way as to maximize their impact within their local communities. Developers help providers to integrate systematically pro bono resources as part of their overall delivery of legal services. Developers also work to ensure that pro bono programs target for priority attention specific substantive areas or client groups, to be optimally effective.

In addition to working with AAAs and legal services providers, LSDs can work directly with members of the private bar. For instance, Developers should consider attending formal and informal meetings of relevant sections of the State or local bar associations. This helps the Developer to keep up with what the private bar is doing, and to make important contacts. In some states, the LSD has been a key player in founding,chairing or providing support to Elder Law Sections of the State Bar Association.

G. Legal Education of Practitioners, Courts, and Public

The Older Americans Act calls on Legal Services Developers to "provide technical assistance, training and other supportive functions to area agencies on aging, legal assistance providers, ombudsmen, and other persons as appropriate."¹² Among the roles that Developers may most effectively play in fulfilling this requirement are the following:

• Coordinating and assisting in planning and organizing statewide forums on substantive law topics to increase the knowledge of the public and private bar members about key elder law issues. These sessions may also be of value to judges.
• Coordinating statewide forums on elder rights issues for Aging Network advocates and older persons so as to increase both knowledge of the issues and to increase the strength of the statewide elder rights movement.
• Organizing elder law or elder rights workshops or seminars another aging conferences in the state to both increase knowledge about these key issues and to increase interaction between legal providers and other members of the Aging Network.
• Organizing special meetings or forums for members of the private and public interest bar and the courts on key elder rights issues of concern to the most vulnerable elderly, e.g., guardianship reforms issues,etc. The LSD can play a key role in coordinating this by personal persuasion and by thinking and planning how best to package the issue and who to involve.

H. Development and Maintenance of Legal Services Program Reporting Systems

When enacting both the 1987 and 1992 Amendments to the Act, Congress expressed serious concern over the lack of reliable data made available to them by the Administration on Aging (AoA) and took steps to try to correct the inadequacy. The greatest underlying concern expressed by both the House and Senate was the need for reliable information about the success of Older Americans Act programs in reaching and serving target populations -- those in greatest social and economic need, in particular low-income minority older persons. As a result, Congress added specific requirements in the Act,describing what data AoA is to collect and compile.¹³

While the OAA does not require the development of a uniform statewide reporting system, as noted above, Congress has clearly stated dissatisfaction with previous AoA reporting practices. Thus, a number of State Developers, often in conjunction with TCSG, have taken the initiative in developing statewide reporting systems specifically for Title IIIB legal programs. These new reporting systems provide substantially improved information on who is being served and how, and also delineate the value of the services.

A reporting and monitoring system typically serves a number of different purposes. These include:

• demonstrating legal compliance: reporting must supply information that is required by the Administration on Aging and that is necessary to demonstrate whether the program meets requirements imposed by federal and state authorities;
• accountability: reporting can demonstrate the extent of a program's compliance with obligations under the contract with its funding source;
• performance evaluation: a funding agency can use a reporting system as a creative tool for gathering information for evaluation of the legal services provider; and
• marketing: reporting can be used as a way to gather data on the impact and importance of legal assistance to older persons. This information can be used to "sell" legal assistance -- in fundraising efforts, for public relations, and to strengthen community support.

With increasing limits on available Title IIIB funds, the fourth purpose -- marketing -- continues to gain importance. It is often difficult for those outside of the legal services arena to understand the value of legal services programs to older persons. Often such programs are considered a threat, or unnecessary. Reporting can greatly assist in verifying the value of providing legal services. For instance, if an AAAis not aware of the fiscal and social impact that a legal services program has on the most vulnerable older persons, it is less likely to be supportive of funding those services. Reporting that fiscal and social impact has the potential of bolstering any given legal services program.

Although a good statewide reporting system is an extremely valuable tool, developing one requires a great deal of cooperation and communication. Difficulties can easily arise as a result of perceptions-- correct or not -- that (1) state and area agencies demand unnecessary information; (2) state and area agencies do not understand the ethical obligation to maintain client confidentiality; or (3) providers avoid accountability by using the excuse of "confidentiality."

The importance of a thorough, well-functioning reporting system cannot be under emphasized. It can provide an area agency with a clear picture of the real value of a legal program for the aging community. It can also facilitate communication and mutual understanding between area agency and legal program staff, thus providing an opportunity to prevent problems from developing. More broadly, a good reporting system can help area agency and legal program staff work together more closely and effectively,thus contributing to the development of a high-quality legal program for elderly clients.

In developing a uniform statewide reporting format or system, the Legal Services Developer should seek input from the area agencies and the legal providers. In addition to ensuring compliance with federal reporting requirements, the Developer should inquire as to the type of data required of the legal programs' other funding sources (such as the Legal Services Corporation or the United Way). This may avoid unnecessary duplication of reporting requirements and enable the provider to spend less time on reporting and more time assisting clients.

I. Development and Use of Monitoring Assessment Systems for Legal Programs for the Elderly

A major role of the Legal Services Developer is to work with area agencies and / legal services provider to ensure the provision of high quality, high impact legal services to older persons. This can be accomplished through the development of a system of reporting(discussed above) and evaluation/monitoring of Title IIIB legal programs. If an evaluation is to be meaningful, it should be undertaken as a cooperative effort between funder, provider and Developer. Too often the relationship between area agencies and legal providers is one of mutual skepticism, or even antagonism. The LSD should help the area agency and provider try to move beyond a mere contractual relationship to a collaborative, working partnership in which there is a shared goal of assessing and improving legal services for older persons.

III. Job Description

The 1992 Amendments to the Older Americans Act called for the creation of a job description for Legal Services Developers.¹⁴ A permanent job description for LSDs would have an enormous impact on the success of the position; it would clarify the duties, standardize them nationwide, and have the symbolic effect of permanently demonstrating the value of the position. As of now, however, the Administration on Aging has yet to finalize a draft.

In early 1994, NALSD released a draft job description, which set out the respective responsibilities of LSDs as described in Title VII Elder Rights and Title IIIB Legal Assistance, most of which is discussed above.¹⁵ Further, the job description described the tenets of an LSD's working relationships:

1. Conflicts of Interest
   The primary role of the Legal Assistance Developer is to ensure that there are adequate, effective, and high quality legal assistance services available to older persons in the state. Thus, his or her primary duty is to serve the older persons of the state. The state shall not require the Legal Assistance Developer to be involved in activities that may place him or her in conflict with this duty.
   

2. Confidentiality
   The Legal Assistance Developer shall not disclose information regarding the identity of client eligible persons who contact the Developer for information and referral for legal assistance unless he or she is authorized by the client eligible person in writing or orally,which oral consent is documented contemporaneously in a writing made by the Legal Assistance Developer or a member of his or her designated staff.The Legal Assistance Developer shall not be required to disclose the identity of any person who registers a complaint with the State Unit on Aging regarding legal assistance services.
   

3. Interference and Retaliation
   The Legal Assistance Developer shall be allowed to perform the duties and functions described in this job description and those required by the Older Americans Act and its regulations without interference or retaliation by the State Unit on Aging, AAAs, Title IIIB legal assistance providers, or others. He or she shall not be disciplined by the State Unit on Aging for completing his or her duties and responsibilities as long as he or she performs such responsibilities in good faith.
   

4. Status
   In order to complete the duties and functions described in this job description and those required by the Older Americans Act, it is necessary that the Legal Assistance Developer be a full time position with staff sufficient to ensure that all the duties and responsibilities can be carried out. The Legal Assistance Developer shall be classified, in the state system, at a level comparable to that of the Long Term Care Ombudsman, Insurance and benefits Counseling Supervisor, and the Adult Protective Services Supervisor.

The issuance of an LSD job description, along the lines of the one NALSD proposed, would greatly enhance the authority and stability of the LSD in each state and assist them in fulfilling their mission of ensuring a comprehensive elder rights system. A key provision of the above NALSD draft is the requirement that the LSD position be full-time. Currently,the amount of time an LSD allocates to the position and duties varies; many individuals serving in that position have other job titles and responsibilities. Data from TCSG's 1998 National Survey of Legal Assistance for the Elderly: Results and Implications show that percentage of time spent on the position ranges from 2% - 100%. If the LSD position is to be truly effective in carrying out the duties discussed above in Section II., it must be full-time.

IV. Conclusion

The Legal Services Developer is in a unique position. Her or his two broad roles as the catalyst for developing and maintaining high quality legal assistance to older persons and as focal point for elder rights advocacy, as described in Titles III and VII, respectively, impact all the core values in the Older Americans Act. However, variations in the amount of staff time devoted to the LSD position and in the types of activities individual states allow their LSD to conduct lead to low visibility of the position,which in turn leads to unfamiliarity and in some cases misinformation about the position, as evidenced by the survey conducted by Natalie Thomas discussed in this issue. The result is LSDs being much less effective than they could and should be.

If LSDs are to successfully carry out the role envisioned for them in the OAA and in past AoA policy issuances, they need the role definition,authority and stability that can only come from legislative language. As discussed above, specific responsibilities, authority, and qualifications would go a long way in furthering the effectiveness of LSDs. Obviously,the Older Americans Act is the place for such language. In lieu of new language in the OAA, since that is dependent on an authorization passing,the AoA could reaffirm the role of LSDs through a definitive policy issuance and job description along the lines of the drafts described above. To complement federal legislation in the OAA or AoA issuances,advocates might also attempt to add language to state laws which would define the state LSD role.¹⁶

Short of the above actions, LSDs and their states must realize that the pieces are currently in place for strong LSDs and Elder Rights Systems. The key to putting those pieces together is visibility. When the LSD is visible, he or she can better work with partners in the Aging Network to fulfill his or her duties under the Act. Maintaining a higher profile serves the dual purpose of educating the Aging Network and the general public on the potential of the position, while conducting the real work -- advocating for the rights of older persons.

---

NOTES

1. Portions of this section are excerpted from TCSG'sLegal Services Developers' Resource Manual (1995, Updated 1997). For more information, please contact TCSG.

2. By 1980, all states had received a Developer grant.

3. AoA-II-78-12, June 7, 1978.

4. Id.

5. The Older Americans Act uses the term "Legal Assistance Developer," but since the more commonly used description is"Legal Services Developer," that is what will be used in this article.

6. 42 U.S.C. § 3027(a)(18); OAA§ 307(a)(18)

7. 42 U.S.C. § 3058j(b)(2); OAA§ 731(b)(2).

8. Older Americans Act Reauthorization Amendments of 1991, S. Rep. No. 102-151, 102nd Cong., 1st Sess., 107 (1991) (empahsis added).

9. 42 U.S.C. § 3058j; OAA § 731.

10. 42 U.S.C. § 3058j(b)(4), (9); OAA§ 731(b)(4)(9).

11. 42 U.S.C. § 3058j(b)(3)(A); OAA§ 731(b)(3)(A).

12. 42 U.S.C. § 3058j(b)(2)(C); OAA§ 731(b)(2)(C).

13. 42 U.S.C. § 3012(a)(19),(29) and 3018(a)-(c); OAA § 202(a)(19)(29) and 207(a)-(c).

14. 42 U.S.C. § 3012(a)(26); OAA§ 202(a)(26).

15. A copy of the NALSD job description is on file with TCSG.

16. The 1999 Oklahoma Silver Haired Legislature has approved a bill to establish the "Oklahoma Elder Rights and Legal Assistance Development Program," and has made it a priority for the coming legislative session. The Silver Haired Legislature is currently in the process of finding a sponsor in the Oklahoma House of Representatives.

---

---

Meet the Orphan of the Elder Rights System

By: Natalie Thomas
Georgia Legal Services Developer

"If a program is mandated, expected to achieve goals and carry out a few express and many implied responsibilities but is never funded and hardly supported, can it still succeed?"

That depends, one should say, on the program and the people involved. That is the perfect setup for a new question: "Is there a need for the Legal Services Development Program, and the State Legal Services Developer even though there are more barriers in place against success than stepping stones to achieve it?" Being somewhat biased as the Legal Services Developer (LSD) for the State of Georgia and as Vice Chair of the National Association of Legal Services Developers(NALSD), my answer is an unconditional and emphatic "Yes, there is!"

In doing a job every day, year after year,getting to know that role so well, it can become easy to assume that people throughout the state and throughout the country know what I and other Legal Services Developers (LSDs) do. Unfortunately, as I have found,this is not the case.

In April 1999, I was asked to conduct a joint presentation with Esther Houser, Oklahoma State Long Term Care Ombudsman(SLTCO), at the Annual Meeting of the National Association of State Ombudsman Program (NASOP) held in Atlanta, Georgia. The purpose of the session was to help clarify the role of LSDs, with the ultimate goal of improving overall the working relationship between State Long Term Care Ombudsmen and State Legal Services Developers.

For my part of the presentation, I chose to use a survey to determine how much the State Long Term Care Ombudsmen in attendance knew about the role of the State Legal Services Developer.¹ I developed the survey using Title III and Chapter 4 of Title VII of the Older Americans Act (OAA)²which specifically address the role of the Title III-B legal provider and the role of the person charged with the development of legal services for the elderly, amongst other duties and experiences gathered from being a LSD.

Since the 1975 amendments to the OAA, legal services has been one of the priority services that each state was required to have to ensure the receipt of Title III funding. In 1976, the Administration on Aging (AoA) issued a Program Instruction announcing the State Legal Services Development Program. The purpose of the program was to provide within State Units on Aging (SUA) the capacity for leadership in order to be able to promote legal services for the elderly within each state.³ The 1992 amendments to the OAA added provisions to Titles III andVII requiring each state to have a LSD to provide state leadership in developing legal services for older persons.

The survey was distributed to each SLTCO to be completed and returned en masse to maintain anonymity. Ombudsmen, the very people with whom I personally believe LSDs should work closest, showed me just how little is known about LSDs and what they do. A week later,in the same fashion, at the request of the SLTCO, I asked LSDs to complete the same survey while attending the 6th Annual NALSD Symposium in Boulder,Colorado.

The NASOP workshop was a most illuminatingforty-five minutes. The preliminary question and answer session at the workshop, if indicative of the actual knowledge that State Long-Term Care Ombudsmen have of LSDs, revealed that self-promotion is obviously not one of our strong traits. During the 45-minute session with people(SLTCO) whom I believe LSDs should work closest, I’m afraid I found out just how much like orphans LSDs are. For example, of the 34 SLTCOpresent and 37 states represented–

• 10 knew what their LSDdoes

• 3 did not know that they had aLSD

• 8-10 have LSDs who are attorneys

• 8-10 have LSDs who are non-attorneys

• 5 can get general questions of law related to either a specific long term care issue or long term care resident’s issue answered by their LSD

From the above responses, it appears that the draft job description that was disseminated in November 1995 by AoA under the signature of then-Assistant Secretary Fernando M. Torres-Gil did not make a significant dent in illuminating, clarifying or solidifying the role of State Legal Services Developer.⁴ In that cover letter, former Assistant Secretary Torres-Gil identified legal assistance to the elderly as "one of the most important services the National Network on Aging provides" and acknowledges "The legal assistance developer is a vital cog in insuring that an effective legal assistance program exists in a state."⁵ The former Assistant Secretary recommends in that Model Job Description all the activities that a SUA should perform through its full-time developer or other personnel but concedes the fact that Title VII, Chapter 4 of the OAA is not funded and for AoA to prescribe duties to be performed and to prescribe full-time status of the developer would be an unfunded mandate which AoA chose to avoid. Former Assistant Secretary Torres-Gil did recognize however that a part time legal assistance developer will not be able to perform effectively as many of the functions of the model job description as a full-time developer.

Among the duties/functions believed appropriate, at least one is identified by AoA as the basic role"developing and supporting legal assistance programs throughout the state." AoA characterized an additional function of the legal assistance developer pursuant to the 1992 amendments to the OAA, elder rights system development. Interestingly enough, the clarification of these roles of the LSD, which would require one to compile the June 1976 AoA Program Instruction, the August 1976 TA Memoranda,⁶ Program Instructions, Technical Assistance Memoranda and Model Job Descriptions would still be inadequate to establish the orphan Legal Services Development Program as a vital component with clearly identified roles within the Elder Rights System such as the Elder Abuse Prevention, State Long Term Care Ombudsman and the Outreach Counseling and Assistance Programs are as a result of the language in the OAA and the resultant guidance from AoA.

The following queries and comments raised by SLTCO during the NASOP workshop clearly indicate that the lack of specific language in the OAA detailing the functions of the State Legal Services Developers contributes to the lack of information and understanding some SLTCO and others in the aging network have about LSDs:

• What exactly is a Legal Services Developer supposed to do? I’m not sure that I understand the function/purpose of a LSD.

• How does a non-attorney LSD have the credibility to deal with legal issues?

• How is it that LSDs seem to have so many different things to do that seem unrelated to the whole area of elder rights?

• I remember years ago the person who was developer did one thing and people after that person have done different things from the one before. Has the position itself evolved?

• I see the role of the LSD as a facilitator and not one who provides actual services to clients or to the local or State Ombudsman.

• The core function of the LSD has to be ensuring that adequate legal services for the elderly exist. They should be able to do something if a program is not delivering adequate legal services and make sure that whatever problems are corrected. LSDs shouldn’t do anything else unless this core job is done. No coordination of other programs, services, advocacy,etc.

These comments demonstrate the fundamental level on which individuals, even those within the Aging Network, lack an understanding of what LSDs do. As discussed briefly above, this lack of understanding is likely due to a combination of the language of the Older Americans Act (OAA), the variation from state to state of LSD duties, and a lack of self-promotion on the part of the LSD. Whatever the cause, it is crucial that the role of the LSD be clear to everyone the LSD works for and with -- legal services providers, members of the Aging Network, the general public, and most importantly, the LSD him- or herself. This NASOP workshop and the responses to the surveys from both the SLTCO andthe LSDs clearly indicate the need for improvement in this area.

Survey Results

 

Of the 30+ SLTCO present at the NASOP meeting and the approximately 20 LSDs in attendance at the NALSD Symposium,ten (10) completed surveys were returned from each of the two meetings. The survey walked through Chapter 4 of Title VII, which specifically addresses the requirement of the LSD and the State Units on Aging’s responsibilities under the Legal Services Development Program whether carried out through the LSD or other personnel.

Questions in the survey are divided into three sections:

(1) What does the Older Americans Act require the LSD to do?

(2) What do you wish that your LSD did?

(3) Describe the working relationship between the LSD and the SLTCO in your state.

Each section contained a series of multiple choice questions; details on the sections are discussed below.

 

Section 1: What Does the OAA Require the LSD to Do?

Section 1 listed a series of activities carried out by LSDs under the Older Americans Act (OAA) and asked respondents to answer two questions: (1) whether the activity is"required," "optional," or "prohibited" by the OAA; and(2) whether the respondent’s particular LSD "does," "doesn’tdo," or "don’t know."

Of those SLTCO responding to the survey,at least 50% accurately stated that the following activities are required by the OAA. Interestingly, nearly the exact proportion of respondents reported that the LSD in their state performs these duties:

1. Provide state leadership in developing legal services for older persons;

2. Provide or ensure technical assistance(TA) and training is provided to AAAs, LTCOs, legal services providers and others;

3. Work with AAAs and legal providers to develop and maintain standards for delivering legal services to older persons;

4. Provide TA to AAAs to assist them in monitoring legal providers;

5. Assist states in establishing focal points for elder rights, policy review, analysis and advocacy at the state level;

6. Provide TA to insurance counseling and elder abuse prevention programs;

7. Provide or ensure education and training of professionals and volunteers and older persons on elder rights and public benefits;

8. Conduct education/training on the benefits of specific law requirements and in the elder rights area;

9. Assess the state periodically on the problems and unmet need for legal assistance and benefits related problems;

10. Serve as state’s leader in securing and maintaining legal rights of older individuals; and

11. Review and analyze legislation concerning any of the elder rights programs or issues.

In comparison, responses of the LSDs to the survey matched the results of the SLTCO on all of the above named duties except for the last one for which only 40% of LSDs considered this a required duty; 60% believed it optional but 80% actually perform it.

In addition, at least 50% of the LSDs also identified the following as required duties and said that they actually perform them in their states:

• Actually coordinate legal services for older persons

• Monitor legal providers for quality and quantity of legal services to older persons

• Assist LTCO in obtaining legal services for residents in long term care facilities

• Review delivery of legal services to ensure that target population is being reached

• Ensure that legal providers are considering as priorities for case representation: income related issues; health care; long term care; nutrition; housing; utilities; protective services; defense of guardianship; abuse, neglect and age discrimination

• Ensure that legal providers for elder persons are coordinating with Legal Services Corporation(LSC) grantees

• Promote development of and provide TA on expanding access by older persons to legal assistance, advocacy and vulnerable elder rights protection activities

 

• Work with adult protective services,ombudsmen and other state entities on elder abuse issues

Of these additional eight (8) duties that SLSDs felt are required and believe they do, at least 50% of the SLTCO responding to this survey⁷ indicate that the last four duties listed above are required but are not performed by the LSDs in their states.

Prohibited Duties According to SLTCO

An interesting difference between the responses from the SLTCO and LSDs was found in what are and are not considered "prohibited activities." In the list of activities provided on the survey, LSDs did not indicate any were prohibited. However, each of the following duties was indicated by at least one SLTCO as being a prohibited duty for a LSD:

• Actually coordinate legal services for older persons;

• Provide or sees to it that Technical Assistance is provided to AAAs, ombudsmen, legal providers and others;

• Work with law schools and other institutions of higher learning on program and curricula;

• Develop as necessary, working agreements with SSA, HCFA, VA and other federal agencies;

• Serve as the state’s leader in securing and maintaining legal rights of older individuals; and

• Review and analyzes legislation concerning any of the elder rights programs or issues.

None of the activities listed above are actually prohibited by the Older Americans Act.

Optional And Unperformed Duties According to LSDs

At least 50% of LSDs responding included the following as optional duties that they do not perform in their states:

• Promote the development of and provide technical assistance on Alternative Dispute Resolution;

• Work with law schools and other institutions of higher learning on programs and curricula;

• Assess the state periodically on the problems and unmet needs for other programs and services established under Title III of the OAA;

• Develop as necessary working agreements with the Courts, the Consumer Protection agency; the Attorney General, other state agencies;

• Develop as necessary working agreements with SSA; HCFA; VA and other federal agencies;

• Help to develop and provide TA to hotlines.

While multiple choice answers are somewhat limiting in revealing additional thoughts respondents might have, comments associated with the questions, which all were at liberty to provide, were a little more revealing.

From SLTCO, some of the more notable comments include:

• Our state has a LSD in name only. This position was assigned to the only attorney in our office and he does nothing. No one has ever explained the duties to him or required any particular action of him. Prior to that assignment the SLTCO functioned as the LSD and is not at all familiar with what is required of aLSD.

• The primary function of the LSD [in my state] appears to be to provide legal advice to the SUA, draft legislation for the SUA, and act as the SUA’s spokesperson in the legislature. The position was originally within the LTCOP and was advocacy oriented.

• Although the LSD provides/ensures the provision of training to legal services providers, the LSD does not include AAAs, and Ombudsmen.

• The LSD provides education/training of professionals, volunteers and older persons on elder rights except for elder abuse and long term care.

• The LSD does not assist ombudsmen in obtaining legal services for residents in long term care facilities, this is done by the SLTCO.

• Not only does our LSD assist with technical assistance to the legal hot line but has become almost an adjunct staff member to the hot line.

The LSDs also offered comments to Section 1 of the survey:

• I don’t work with the AAAs and legal providers to develop, revise and maintain standards for delivering legal assistance and I don’t know if this required or not.

• I’m not sure whether assisting the ombudsmen in obtaining legal services for residents in long term care facilities is a required duty.

• It is a requirement that I fulfill to provide or ensure that training is provided to AAAs, and legal providers and others but it is optional [emphasis added] to provide such to the ombudsmen.

• Reviewing and analyzing legislation concerning any of the elder rights programs or issues is a requirement but as the LSD, I’m not allowed to perform this duty in this state.

 

Section 2: What Do You Wish That Your LSD Did?

Section 2 of the survey listed a variety of possible activities for LSDs and asked respondents to note(1) whether they "wish their LSD did", "their LSD does","would not want their LSD to do"; and (2) whether they believe the listed activity is an "essential duty for an effective LSD."

At least 40% of the SLTCO selected the following activities as ones they wish their LSD did, and at least 40% of SLTCO also indicated that these activities are ones their LSD did not do:

• Available to work with the Title III-B legal providers on structure of programs, individual cases, legal issues

• Conducts on-site visits to the local legal providers

• Monitors legal providers

• Coordinates with SLTCO on legislation concerning matters common to both

• Works closely with the legislature on legislation and issues of importance to the aging community

• Assists the ombudsmen in locating legal representation on problem cases

• Works with state ombudsman to resolve disputes between local ombudsman programs and local legal programs

• Advocates within the agency and the aging network on behalf of long term care residents, ombudsmen and elder rights programs other than legal services

• Ensures that local legal providers provide advice and representation to residents referred by SLTCOs

• Ensures that the long term care residents are a priority for representation by the Title III-B legal programs

• Assists the ombudsmen in providing assistance to residents who need but lack the mental capacity to request legal assistance

• Ensures that SLTCO are included in some trainings and conferences for legal providers

• Develops educational materials that can be used by legal providers, ombudsmen and the aging network in general

• Has or would develop a specific educational material upon request by the state or local SLTCO

• Involves the SLTCO in discussions with other programs which might have some affect on the ombudsman program or long term care residents

• Assists the SLTCO, ICAs, Advocacy,and Elder Abuse Prevention programs in finding, securing and analyzing legislation upon request

• Assists in locating and/or writing grants for elder rights programs other than legal

• Promotes or conducts cross trainings and/or joint trainings with other programs and/or other agencies: APS; ICAs; EAP; SLTCO

In comparison, the LSDs responding hada much shorter list of activities they wish they did but are currently not doing. At least 40% of the responding LSDs said they wish they would/could:

• Assist in contracting process of selecting the Title III-B legal providers by either reviewing RFPs or voicing assessment of potential providers to the AAA or actively approving or rejecting potential providers;

• Work closely with the legislators on legislation and issues of importance to the aging community;

• Develop educational materials that can be used by legal providers, ombudsmen and the Aging Network in general; and,

• Assist in providing or monitoring fiscal management for funding for local legal providers.

While cross-comparisons of the responses cannot be made, the dramatic difference in the number of activities listed by SLTCOs and LSDs can certainly be read as yet more evidence that what LSDs do and what they are perceived as doing do not necessarily match up. At the very least they reflect the extreme variation in the duties of LSD from state to state.

The responses also provide clear evidence that SLTCO are supportive and desirous of LSDs expanding the scope of their activities in their states and being more involved in LTCO-related activities. My work as Vice Chair of NALSD has shown me that just because I do the job of LSD a certain way in Georgia does not mean that every LSD throughout the country does the job the same way. Quite the contrary. Just as every person is different from another, so is each state and US territory different from another; the same is true for each LSD in his or her own state.

 

Comments from Section 2 of the Survey

Two significant comments were made by LSDs in this section of the survey. One expressed the desire to be able to conduct periodic site visits to local legal providers because this is viewed as an essential duty for an effective LSD. The other comment came from a LSD who apparently is required to assist the SUA and/or umbrella agency in legal matters which are not related to elder rights and indicated this is an activity that he/she would not want a LSD to do.

Significant comments made by the SLTCO:

• The LSD will coordinate with the SLTCO office on legislation which concerns matters common to both only if the SLTCO initiates the coordination.

• It’s essential for an effective LSD to provide legal advice on issues affecting residents to the SLTCOP but our LSD does not. I believe that most states have an alternative resource to perform this function.

• On occasion the LSD provides legal advice on issues affecting residents to the SLTCOP and assists the ombudsmen in locating legal representation on problem cases.

• The SLTCOP wishes that the LSDcould provide advice and representation to residents referred by the local LTCOPs and that these residents were a priority for representation by the Title III-B legal programs.

These responses demonstrate that, in at least four states, LSDs are either not maximizing or are not permitted to maximize the working relationship with the SLTCO. This relationship is extremely important to ensure effective elder rights advocacy.

Section 3: Describe the Working Relationship Between the LSD and the SLTCO

The results of this section are shown as provided in the survey in order to offer readers the opportunity to compare the responses. Bear in mind that the 10 SLTCO responding may not be from the same states as the 10 SLSDs responding.

SLTCO SLSD