Best Practice
NOTES
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| Vol. 4, No. 1 | On Delivery of Legal Assistance to Older Persons |
July 1990 |
Editor's Note:
This issue of Best Practice Notes presents a slightly revised version of a paper prepared in 1982 by James A. Bergman. It was done at the request of the late Paul Lichterman, Special Counsel on Legal Services for the Elderly, Legal Services Corporation. Mr. Bergman presented the paper that same year in Denver at the first national conference on legal services -- "Working Bergman, Successfully With the Aging Network. "It describes the successful efforts of advocates in Massachusetts, including Paul Lichterman who played a key role in the Coalition's early years, to organize a statewide group focusing on law and aging.
The Massachusetts Elderly Legal Coalition was formed in 1978 and continues today as a vigorous coalition for rights of older persons. Three of its most noteworthy achievements are: (1) it brought lawyers and non-lawyers from all facets of the aging network together to discuss their common concerns and work on a myriad of administrative, litigative and legislative initiatives to advance the well-being of older persons; (2) it played a key role in establishing and securing funding for high quality legal delivery programs throughout Massachusetts, and coordinating the efforts of those legal programs; and (3) it dramatically increased discussion of sensitive legal services delivery issues (e.g., reporting & confidentiality) between AAA funders and legal providers before they became adversarial issues.
Since its inception, the Coalition has served as a vigorous advocate for elder rights. In its early years (the late 1970s), it engaged broadly in legislative, litigative, and administrative reform efforts. But it is important to note that as the federal government changed its laws and policies on lobbying over the years, the Coalition and its members also changed to conform to these requirements. Significantly, however, the basic character and focus of the Coalition remain the enhancement of rights of older persons and the promotion of communication about legal services delivery issues by all members of the aging network. As such, the Coalition continues -- as it approaches its fourteenth anniversary year -- to serve as a model for replication by states throughout the country.2
The Massachusetts Coalition is a prime example of the results that can be achieved when Title III-funded legal programs are an integral part of state and area agency advocacy initiatives. When legal advocates and others in the aging network form alliances to advance the rights of older persons, both the level of understanding of how legal services can best be utilized and the level of funding for legal programs increase; and older persons are the beneficiaries. The Coalition epitomizes one approach to meeting the recent call of AoA Commissioner, Joyce T. Berry, for ". . . legal services staff to work with other service providers in the aging network both to resolve a client's immediate problems and to seek long-range solutions." 3
An Elderly Legal Coalition: The Massachusetts Experience "Coordination," "interagency cooperation," "resource sharing," and "building coalitions" are terms that have long been used in community organization literature. In the past decade, these terms have been popularized and have even found their way into government regulations.
But saying the words has never made it so. Coalition building has been more a phrase than a reality. Yet when it has been done, it has frequently been extremely effective. One successful case example is the Elderly Legal Coalition in Massachusetts.
What is the Elderly Legal Coalition?
The Elderly Legal Coalition is an informal, statewide organization in Massachusetts. Its membership consists of approximately 150 to 200 individuals and organizations from all regions of Massachusetts, with a majority from the Greater Boston area. The Coalition includes lawyers, paralegals, social workers, outreach workers, caseworkers, local nursing home advocates, agency directors and planners, nurses, and volunteers from community programs serving the elderly. The membership includes people of all ages. The common denominator is that the members all consider themselves advocates on issues affecting the elderly.
Simply stated, the Coalition is an informal group of advocates for the elderly who have found that they are all more effective when they pool their time and skills on issues of common concern. As such, the Coalition provides a means for different types of advocates to take turns being in a leadership position in various efforts, thus strengthening advocacy for the elderly while developing a larger number of leaders.
Formation of the Coalition
Between 1975 and 1977, a major organizing effort was launched in Massachusetts to gain Older Americans Act Title III funding for legal projects to serve the elderly. This was led by Legal Research and Services for the Elderly (LRSE)4 under a grant from the U.S. Administration on Aging. Although the Older Americans Act at that time did not require that Title III funds be used for legal services, the effort was dramatically successful. Within two and one-half years, the number of both lawyers and paralegals in legal projects for the elderly more than quadrupled. By 1977, Title III grants and Title V Senior Aide slots in Massachusetts funded over 25 full-time lawyers and over 60 full- and part-time paralegals serving the elderly. These lawyers and paralegals were based in all regions of the state, from Cape Cod to the Berkshires, in urban Boston and in rural Franklin County.
In late 1977, a number of lawyers from elderly law projects expressed to LRSE their need for more contact with other members of the aging network. One reason they desired more contact was that they were identifying issues of concern to their individual elderly clients, but had no efficient means of determining whether these issues affected many other elders in the state. Secondly, the lawyers were uneasy about their relationships with their funding sources, the area agencies on aging (AAAs), and desired a vehicle for establishing greater cooperative contact with the AAAs.
Following this request, James Bergman of LRSE contacted 15 to 20 lawyers and AAA directors and planners to determine whether these concerns were shared by others and to get suggestions for a way of addressing them. It immediately became evident that these concerns were common. Furthermore, almost everyone contacted agreed that no existing organizations, including a number of statewide elderly organizations, met their needs.
As a result, in March 1978, LRSE issued an invitation to all elderly law project lawyers and paralegals, AAA directors, and various other advocates for the elderly to attend a meeting to discuss whether a new group was needed in the state. Over 50 persons attended that meeting and overwhelmingly agreed that a new advocacy group was needed. LRSE agreed to serve as the convener of meetings, to prepare and mail meeting notices, and to coordinate organizational meetings.
Following this first meeting, the group selected a small steering committee to set the agenda for a meeting the following month and to develop a statement of the general purpose and structure of the Coalition. At the second meeting, about 75 people attended; the name Elderly Legal Coalition was adopted; the general statement of purpose and structure were agreed to; and members agreed that monthly meetings and mailings should take place. The Coalition was off and running.
Structure of the Coalition
Significantly, the persons at the first meeting agreed that the new group should focus on issues, and devote as little time as possible to organizational matters such as by-laws, officers, and minutes. Furthermore, participants agreed that membership in the group should be voluntary and should not commit a person or agency to support every position the group might take on public policy issues. Finally, no membership fees should be charged.
Simplicity, economy, and voluntary cooperation were to be hallmarks of the Coalition:
Simplicity in that meetings were to be held monthly and were to be devoted almost exclusively to issues, not organizational details. Economy in that the only costs the Coalition would incur would be for printing, mailings and LRSE's staff time. Total LRSE staff time averaged two to three days per month to prepare mailings, set meeting agendas, chair meetings and contact specific Coalition members as needed. Voluntary cooperation in that Coalition membership was open to anyone and members would be free to devote their time and efforts to only those Coalition actions that they supported and had time for and interest in. This last feature of the Coalition dictated that no advocacy effort of the Coalition could be expected to succeed unless it had the general support of most of the members or, in the alternative, had two to five Coalition members devoting a substantial portion of their working days to the issue. An example of the latter situation might be a class action law suit on which a number of lawyers and paralegals who belong to the Coalition work, while other Coalition members assist in identifying additional plaintiffs and witnesses.
The issues that the Coalition should focus on, as well as the agendas for the monthly meetings, are determined by the Coalition's Steering Committee, which operates as an executive committee. The bulk of the Coalition's administrative support or "gofer" work is done by its Chairperson. The Chairperson plays a crucial role in operating the Coalition, but does not serve as a prominent public leader of the Coalition. He or she chairs the Coalition and Steering Committee meetings each month and prepares the monthly mailing to members. The Chairperson and the Steering Committee share responsibility for contacting the Coalition members who are to speak at the monthly meetings.
Purposes of the Coalition:
At the second Coalition meeting, a general statement of purpose was adopted that has guided the Coalition's activities ever since. Four primary purposes were adopted:
to serve as a forum for the discussion of substantive issues of concern to the elderly; to decide upon priority issues for state delivery systems; to increase communication between area agencies on aging and Title III-funded legal projects; and to sponsor and serve as a catalyst for educational and training forums on legal and advocacy issues of concern to the elderly. Activities of the Coalition
The Coalition fulfills its purposes by holding monthly meetings, at which participants discuss key issues and decide what action the Coalition should take on them. Following these meetings, smaller committees of Coalition members take responsibility for focusing more concentrated attention on particular issues and for conducting legislative, litigative, and administrative reform efforts.
As noted, the Steering Committee determines the issues on which the Coalition will focus and sets the agenda for each monthly meeting. The monthly meetings are day-long (from 10:00 AM to 4:00 PM), allowing ample time for lengthy discussions of issues. The meeting format includes time for brief updates of ongoing legislative, litigative and administrative advocacy efforts. Most of the meeting time is devoted to one-half to one hour discussions of issues. Discussion of each issue normally consists of one or two members presenting a brief analysis of the issue, followed by a general discussion and a vote, if necessary. Of the total membership, about 50 regularly attend the monthly meetings. All members are kept informed of Coalition activities through a monthly mailing which includes an "update memorandum" from members of the Coalition who have information to share or who need assistance with litigation, legislation, or administrative reform.
One of the unique accomplishments of the Coalition has been to involve lawyers and non-lawyers in the initial and ongoing strategy discussions concerning litigation, legislation and administrative reform activities. A typical Coalition meeting might include the following hour-long discussion: A lawyer presents a brief analysis of a Social Security Disability problem that her client encountered, and asks whether other Coalition members have discovered similar cases. If so, the group will discuss the problem in more detail to attempt to determine the scope of the problem statewide. They will then explore potential remedies and the resources necessary to utilize those remedies, and decide whether to litigate the issue, seek a legislative change, or seek to address the problem administratively. If litigation is to be pursued, the group will identify Coalition attorneys representing clients with similar problems who are willing to work toward judicial solution.
The active involvement of lawyers and non-lawyers and the extensive discussion of legal issues at the monthly meetings has been a key factor in the success of the Coalition's advocacy efforts. On the other hand, it is the feature that has required the most delicate handling in the monthly meetings. From the beginning, a balance has had to be struck between the interests of the lawyers and non-lawyers; and this balance has had to be re-established at least once a year. The balance has been achieved by, among other things: having lawyers avoid speaking in "legalese" (e.g., by explaining litigation in lay terms, but in enough detail to be of value to lawyers); allowing non-lawyers to have a role in discussing litigation strategy and in finding plaintiffs; discussing administrative and legislative matters more frequently than litigation; and, most importantly, recognizing that experience and knowledge of a subject are more important than professional degrees when advocacy is the goal of a group. At times, the balance has been maintained only by holding special meetings that are geared to one group or another, e.g., a meeting on litigation strategies in Medicaid suits, directed especially to lawyers.
Following open discussion of a particular issue, the group decides on its position. These decisions are normally made by consensus. Occasionally, however, a general consensus does not emerge. In such cases, majority rule prevails. However, since the Coalition is a voluntary organization and cannot bind members to support its positions, decisions by consensus are preferred because chances for a successful advocacy effort are thus increased.
Leadership on various Coalition efforts shifts with the issues, with the leadership being assumed by whichever Coalition member has the most responsibility for working on the matter. As a result, the Coalition has never spoken with a monolithic voice; and one personality has never dominated it.
Since its inception, the Coalition has utilized committees to be able to devote concentrated attention to certain issue areas. While the committees have changed over the years, the major ones have been: an SSI and Social Security Committee; a Health and Nursing Home Committee; a Nursing Home Ombudsman Committee; a Legislative Committee; and a Home Care Committee. Each committee has approximately five to ten members and meets on an as-needed basis.
The committees identify specific problems, develop strategies to address the problems, and monitor progress on achieving reforms. For example, the Nursing Home Ombudsman Committee worked for almost two years5 during the Coalition's early years to encourage vigorously the state Department of Elder Affairs (DEA) to improve the operation of its Nursing Home Ombudsman (NHO) program. This included developing a statewide network of local nursing home ombudsman projects; writing a detailed, critical analysis of the state NHO program; negotiating with DEA; monitoring nursing home access and ombudsman legislation; and disseminating a nursing home advocacy newsletter. As a result of ongoing negotiations between the Committee and DEA over a two-year period, most of the points of disagreement were resolved, and the Massachusetts NHO program was substantially improved.
It would be fair to say that since 1978, most of the important law reform activities on behalf of the elderly in Massachusetts, as well as many of the innovations in the delivery of legal services to the elderly, have been a direct result of the actions of Coalition members and the activities of the Coalition. This is not to suggest that none of these things would have occurred if the Coalition had not been created. Some of them would have, because the needs of the times would have driven the many skilled individuals who are a part of the Coalition to act on their own. However, it is correct to suggest that the Coalition served as a catalyst for generating ideas, identifying problems, and formulating solutions. Most importantly, the Coalition has enabled advocates from all areas of the state to stay up-to-date on elderly issues and to pick and choose those issues on which they have the time and interest to work. The Coalition has thus enabled, for example, four persons in different parts of the state to work on one lawsuit that none of the four could have handled alone due to constraints of time and experience.
Examples of Coalition activities
Following are four examples of specific that have Coalition focused on (1) state benefit program policies; (2) federal and state lawsuits (especially involving SSI and Social Security issues); (3) state legislation affecting older persons; and (4) the delivery of Title III-funded legal services.
In the area of state policy, the State Department of Public Welfare (DPW) developed a plan in 197879 to reduce Medicaid costs by requiring the adult children of institutionalized parents to pay a portion of the cost of the nursing home care. While the plan may have had a superficial appeal to the public, lawyers within the Coalition determined that the plan, which had been vaguely conceived and outlined, would violate due process and equal protection principles. The result was a plan that would unfairly require only some adult children to pay, possibly creating great friction among family members. Coalition members prepared a detailed analysis of the plan and how it would adversely affect older clients. Further, the Coalition's analysis indicated that the plan would have raised less money than it would have cost to operate. The analysis generated considerable publicity as to the shortcomings of the plan. Numerous individuals expressed their opposition to the plan to the federal Department of Health, Education and Welfare (now HHS), which then placed such stringent conditions upon plan approval that DPW could not meet them. As a result of considerable public opposition by agencies, elderly individuals, state legislators and taxpayers, the plan was ultimately dropped. Through litigation, one of the Coalition's attorney members challenged the Social Security Administration's operation of the representative payee system, charging that it was administered so loosely that it violated many recipients' rights. At a Coalition meeting, the attorney discussed the problems one of her clients had had with the system and asked if other Coalition members had encountered similar problems. The result was the identification of a number of additional plaintiffs for the suit, which ultimately received nationwide class action certification.
In the area of legislation, Coalition members have been most interested in developments in the areas of Medicaid budget cuts, SSI cost-of-living increases, nursing home resident personal needs allowances, and the Massachusetts home care services budget.
In the area of delivery of legal services, the continuous high level of funding for legal services in Massachusetts can be attributed to the visibility of legal services workers as indispensable partners in addressing the serious problems of older persons. The total amount of Title III funding for legal services in Massachusetts is nearly $1 million -- approximately 16% of all Title III social service allocations. Every area agency in the State funds legal services.
Some measure of the success of legal services for older persons in Massachusetts must be attributed to the close working relationships between legal services and Area Agency staff fostered by the Coalition. Through regular interaction, area agency planners and legal services providers are able to prevent potential problems from growing into major disagreements. Coalition meetings regularly include discussions of delivery system issues such as Title III reporting requirements, confidentiality, and maintenance of effort levels of Legal Services Corporation programs. At the same time, this regular contact has increased the knowledge and skills of both legal services and aging services workers, so that very sophisticated discussions of such difficult issues as medical reimbursement rates and Medicaid deeming are commonplace.
Conclusion
Operating only on the interest of its members and contributions of less than $2,000 a year, the Elderly Legal Coalition became a major advocacy force for the elderly in Massachusetts. Through sensitivity to the needs of its members, the Coalition has efficiently brought the legal and aging networks together. The result has been more effective advocacy for elders by both lawyers and non-lawyers and a strong support base for quality legal services programs serving older persons.
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1 James A. Bergman is Executive Director of The HealthWays Foundation, 485B U.S. Route 1, Iselin, New Jersey 08830. Telephone: (201) 636-6200. During the period in which the Elderly Legal Coalition was developed, Mr. Bergman was Regional Director of Legal Research and Services for the Elderly in Boston. In the late 1960's, he directed one of the country's first legal programs for the elderly, located in Boston and funded by the Office of Economic Opportunity.
2 Editor's Note: The Coalition continues to be the focal point for legal responses to issues affecting the elderly in Massachusetts. The group still publishes a monthly newsletter and sponsors day-long monthly meetings to provide a forum for advocates for the elderly to share strategies and discuss common legal problems and issues. The Coalition has spawned a number of other groups to work on specific problems of older persons, such as nursing home access, rest home issues, and Medicaid/long-term care assets issues. Other elder advocacy groups also come to the Coalition for technical assistance with specific legal problems or for advice on legal aspects of issues they confront.
3 "Commissioner's Corner," Aging, No. 360, 1990, Special Issue on Legal Services: U.S. Department of Health and Human Services, Office of Human Development Services, Administration on Aging, Washington, D.C.
4 Legal Research and Services for the Elderly was part of National Council of Senior Citizens in Washington, D.C., which had a grant from the U.S. Administration on Aging to aid state and area agencies on aging to expand quality legal services for the elderly.
5 Editor's Note: This paper was written in 1982 and, as the author states, the Ombudsman program improved significantly. Today, the Massachusetts Ombudsman program is viewed by many persons as a model for other states. Editor's Note: These are 1982 figures.
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