Best Practice
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| Vol. 9, Nos. 1 & 2 | On Delivery of Legal Assistance to Older Persons |
March 1998 |
Editor's Note: This article presents an expanded version of an article prepared by Penelope A. Hommel and published in a special Elder Law issue of Clearinghouse Review, Journal of Poverty Law, Vol. 31, Nos. 5-6, September - October, 1997, pp. 256-70.
Throughout the history of the Older Americans Act (OAA or the Act), one of the most critical services to protect rights and benefits of our nation's most needy older persons has been legal assistance. Now, more than ever, as long- standing federal entitlements and basic legal rights are being fundamentally challenged and changed, the aging network needs to have strong and effective legal assistance delivery systems in place throughout the country. These systems need to be available for both individual representation and systems- level/policy advocacy. And it is particularly important at this time that the limited OAA resources available for legal assistance be targeted to those older persons in greatest need and to those most likely to be adversely affected by the massive changes in government programs and benefits.
I. Introduction
II. Legal Assistance as a Priority in the Older
Americans Act
A. History of Legal Assistance in the
OAA
B. Requirement for Targeting OAA
Legal Assistance Services
C. Importance of High Impact Elder
Rights Advocacy
III. Importance of LSC Programs in
Delivering Legal Services to Older Persons
A. Focus by LSC on the Elderly as a
Special Client Population
B. Historic Importance of LSC as a
Provider of OAA Services
IV. Overview of LSC Restrictions on Activities
V. LSC Restrictions & Exceptions
Particularly Relevant to OAA Legal Assistance and Elder Rights Advocacy
A. Policy Advocacy: Legislative and Administrative Rulemaking Advocacy
1. Allowable
Policy Advocacy Activities When Using Any Funds
2. Exceptions/ Permissible Activities Using Non-LSC
Funds
B. Public Policy
Advocacy Training
C. Class Action Litigation
D. Welfare Reform
Activities
1. The Prior
Interim Rule
2. The Current
Final Rule
3. Exceptions When Using Non-LSC Funds
VI. Conclusion
Historically, programs of the Legal Services Corporation (LSC) -- established by Congress over three decades ago to provide access to civil legal services for the poor -- have been key providers of OAA legal assistance. Recently, however, Congress made substantial cuts in LSC funding and imposed a number of significant restrictions on activities that recipients of LSC funds can undertake. The cuts, but even more the restrictions, have given rise to questions within the aging network as to whether LSC programs are the entities best able to provide high-impact, cost-effective services targeted to those elders most in need. Underlying these questions is uncertainty about the meaning, scope, and practical implications of the LSC restrictions, i.e. about what LSC programs can and can't do.
This article does not attempt to respond to the surface questions being raised, i.e. it does not make recommendations about which entities the aging network should fund to provide legal assistance. That must be addressed on a case-by-case basis in light of specific needs, target populations, and options that exist in a particular area. What the article does attempt to do is address underlying questions of what LSC programs can and cannot do under current law and regulations, both with LSC funds and with Older Americans Act funds. It explores selected LSC restrictions that are particularly relevant to serving older persons, and highlights several exceptions that permit important elder rights activities when OAA funds are being used.
To place the discussion in context, a brief history of legal services under the Older Americans Act and the important role of LSC programs in that history is provided.
II. Legal Assistance as a Priority in the Older Americans Act
The OAA has always reflected the importance of legal advocacy. Although it did not mention legal services specifically when originally enacted in 1965; its overall purpose as described in Title I was to secure and protect essential rights and benefits for older persons, e.g. adequate income, quality health care, suitable housing, non-discrimination, and autonomy and choice. In 1970 and 1971, the US Senate Special Committee on Aging held hearings and produced a working paper on the need for special legal programs for older persons. These documented that there is a significant need for legal assistance, but that without A. History of special programs to do outreach and education, many older persons do not Legal Assistance perceive the legal nature of their problems; and many are unlikely or unable to in the OAA access legal assistance. It was concluded that the Older Americans Act needs to support specialized legal programs for the elderly.
A. History of Legal Assistance in the OAA
Congress responded in 1975 by making legal services a priority in the Act. In 1978, Congress further increased the emphasis by making legal services one of three priority categories of service under Title IIIB and requiring all area agencies on aging to fund the service. In 1987, in response to ongoing debate over the level of funding required, the OAA Amendments called for each State to establish a minimum percentage of Title IIIB funds considered adequate, and that must be spent on legal services by each area agency. Both the priority for legal assistance services and the minimum percentage funding requirement remain in the OAA today.
B. Requirement for Targeting OAA Legal Assistance Services
Particularly important for OAA legal assistance is that area agencies select OAA providers who will target services to those older persons in greatest economic need and greatest social need. While LSC services are means-tested, OAA services are not. In fact, means-testing is specifically prohibited in the OAA regulations. The OAA was conceived in 1965 to address the needs of all older persons, and was broadly directed at giving them an opportunity for full participation in the benefits of society. Since 1965, however, as the overall economic and social status of the older population improved and as OAA appropriations did not keep pace with the need for services, Congress has increasingly directed that OAA resources be targeted on those with the greatest social or economic need, with particular attention to low-income minority individuals.
The directive to target OAA resources is even greater for providers of legal assistance than for other services. This is because, of all the services defined in the Act, only "legal assistance" includes as part of its definition a specific directive that services are to go to "older individuals with economic or social needs." While an in-depth discussion of targeting is beyond the scope of this article, it is important to recognize that one reason why LSC programs have been preferred providers by many area agencies on aging is that they tend to be particularly well-equipped to do effective targeting.
C. Importance of High Impact Elder Rights Advocacy
In addition to targeting, an important consideration for area agencies in selecting providers of OAA services today is the capacity for impact on the most vulnerable elders. One of the most significant developments in the Act came in 1992, i.e., a new Title VII, the Vulnerable Elder Rights Protection Title. Title VII calls on the aging network -- through its legal advocacy as well as its abuse prevention, long-term care ombudsman and insurance/benefits counseling programs -- to secure and maintain benefits and rights for vulnerable older persons. And it calls for such elder rights advocacy at both an individual level and systems/policy level.
With respect to legal advocacy, Title VII promotes statewide, comprehensive advocacy systems to protect essential rights and benefits, and calls on state agencies on aging and their Legal Services Developers to take substantial leadership in developing these systems. In essence, Title VII pushes the aging network to orchestrate through its legal providers and other advocates, elder rights initiatives to achieve changes in laws, regulations, policies and practices that have significant impact on the lives and well-being of the nation's most vulnerable elders. Historically, LSC programs have been excellent candidates to provide such elder rights advocacy, and since Title VII was enacted, the LSC programs and aging network in many states have come together to plan and implement Elder Rights initiatives.
III. Importance of LSC Programs in Delivering Legal Services to Older Persons
While the Legal Services Corporation was established to provide civil legal services to poor persons of all ages, it has, since its inception, called on recipients of LSC funds to give particular consideration to serving significant segments of the population with special difficulties of access or special legal problems. "Elderly and handicapped individuals" are specified in the LSC Act as examples of groups who have difficulties of access and who need particular consideration. Today, this can be seen in LSC's requirements for the annual priority-setting process, i.e. the process through which the types of A. Focus by LSC cases and matters where local LSC programs may provide services are on the Elderly as established. A Final Rule issued by LSC on April 21, 1997 sets forth the a Special Client process to be followed by local programs, and requires that priorities be put in Population writing and reviewed at least annually. It further prohibits any recipient of LSC funds from expending time or resources on cases or matters that are not within its written priorities, except in limited emergency situations. While the priorities established by local LSC programs tend to be fairly broad, the limitation on doing work outside the priorities means that if local LSCs are to continue as an important source of legal services for the elderly, elder rights issues need to be encompassed in their established priorities.
A. Focus by LSC on the Elderly as a Special Client Population
At this time, the stated priority in LSC's Final Rule is for family issues which may well include issues of the elderly. Beyond this, however, the Final Rule implicitly fosters some special consideration of aging issues as part of the priority-setting process. Required steps in the process include: (1) consideration of significant segments of the population in the service area with special legal problems or special difficulties of access, which unquestionably includes the elderly; and (2) consideration of the "Suggested Priorities" promulgated by LSC on May 29, 1996, which explicitly mention the elderly. While the Suggested Priorities document does indicate that primary attention be given to cases that support the integrity and well-being of the family, e.g. preserving the home, maintaining economic stability, and access to health care, it goes on to recommend that attention also be given to the elderly and others with special vulnerabilities. It states --
While the Corporation encourages programs to focus prime attention on providing support for families, this cannot and should not be to the exclusion of assistance to individuals living outside a family context. This is particularly true with respect to the growing numbers of elderly individuals in our population who are among the most vulnerable, particularly as their capacity to make independent and informed judgments diminishes. In addition to assurance of access to basic needs of life -- food, shelter and medical care -- they often require remedies against the unscrupulous who take unfair advantage in their dealings with them.
B. Historic Importance of LSC as a Provider of OAA Services
In addition to serving poor older persons as part of their LSC clientele, LSC programs have been key providers of Older Americans Act services. In fact, until 1984, the Act included a specific preference for LSC programs as recipients of OAA legal program funds. In describing the requirements for State Plans with respect to legal assistance, the OAA required that --
(B) the plan contains assurances that no legal services will be furnished unless the grantee --
(i) is a recipient of funds under the Legal Services Corporation Act; or
(ii) administers a program designed to provide legal services to all older individuals with social or economic need and has agreed to coordinate its services with existing Legal Services Corporation projects in the area ...
Although the stated preference for LSC programs as OAA providers was changed in 1984, for the reasons described above, they continue to be a critically important source of OAA legal services. They tend to focus, and have staff with expertise, on issues that are important to the most needy elders, e.g. public benefits. They have typically had capacity to provide impact advocacy at both the individual and systems/policy levels on important vulnerable elder rights issues as is now called for in Title VII. And they are effective in targeting legal services to those in greatest need, which is particularly important in the OAA. Indeed, although the OAA no longer specifies a preference for LSC programs as providers, it does continue to recognize them as an essential part of targeting. In
describing State plan requirements for legal assistance, the Act now states --
... no legal assistance will be furnished unless the grantee administers a program designed to provide legal assistance to older individuals with social or economic need and has agreed, if the grantee is not a Legal Services Corporation Project grantee, to coordinate its services with existing Legal Services Corporation projects in the planning and service area in order to concentrate the use of funds provided under this title on individuals with the greatest such need; ...
Given this importance of LSC programs as providers of Older Americans Act services through the years, the questions now being raised about the current restrictions and the impact of those restrictions on LSC programs' capacity to provide OAA services are very significant.
IV. Overview of LSC Restrictions on Activities
While there have always been some limits on LSC activities and those restrictions gradually increased in recent years, the most dramatic limits by far were imposed in FY '96 by the 104th Congress. Efforts were made not only to seriously restrict activities, but to eliminate LSC funding totally, thereby reversing the role of government in providing poor persons access to the civil justice system. Although efforts to eliminate funding altogether have not been successful, significant cuts and serious limitations on allowable activities were achieved through the FY '96 LSC Appropriation. The restrictions were continued by reference in the FY '97 and FY '98 Appropriations.
The restrictions are broad and complex, affecting the subject areas that can be addressed; the scope of representation that can be provided; and who can be represented. As indicated, uncertainty about their meaning and their practical implications for the provision of services has given rise within the aging network to questions about LSC programs serving as OAA providers. Some of the most serious questions are linked to the fact that, with several important exceptions discussed below, these complex restrictions apply not only to LSC funds but to all work done by any recipient of LSC funds, regardless of the source of funds being used for the specific activity. That is, the LSC funds "taint" all other funds received by the LSC grantee. In the past, although some restrictions existed, they applied only to activities undertaken with LSC dollars, or in some specified cases or matters, to private funds. OAA funds could be used without restrictions other than those imposed by the OAA and as agreed to with the area agency granting the funds.
The new restrictions cover a wide range of issues and activities. This article attempts to address only a few selected ones that have particular relevance to LSC programs serving as Older Americans Act service providers. Examples of some of the other restrictions that are not discussed here include --
Advocacy/representation/litigation to alter, revise or reapportion a legislative, judicial, or elective district at any level of government;
Attempting to influence the conduct of oversight proceedings of the Legal Services Corporation or any person or entity receiving LSC funds;
Providing legal assistance for or on behalf of certain non-citizen aliens considered to be ineligible. However, many aliens are considered eligible and can be served. These include: lawful permanent residents; aliens granted asylum and refugee status; and an alien who is married to a US citizen or is a parent or an unmarried child under age 21 of a US citizen and has filed application to become a lawful permanent resident which has not been rejected. In addition, in the 1997 Appropriation, Congress acted to permit the use of non-LSC funds for representation of an alien who personally, or whose child, has been battered or subject to extreme cruelty so long as the representation is related to addressing or preventing the battering; this was continued in the 1998 appropriation.
Claiming or collecting and retaining attorneys' fees pursuant to any Federal or State law permitting or requiring the awarding of such fees;
Participating in any litigation with respect to abortion;
Participating in any litigation on behalf of a person incarcerated in a Federal, State, or local prison;
Defending a person in a public housing eviction proceeding if the person has been charged with illegal sale or distribution of a controlled substance and the proceeding is brought because the illegal drug activity threatens the health or safety of another tenant or public housing employee.
V. LSC Restrictions & Exceptions Particularly Relevant to OAA Legal Assistance and Elder Rights Advocacy
Beyond the types of restrictions outlined above, there are others that are of particular concern to the aging network in considering the capacity of LSC programs to provide OAA services. These include restrictions on --
- Policy Advocacy: Legislative and Administrative Rulemaking Advocacy;
- Public Policy Advocacy Training;
- Class Action Litigation; and
- Welfare Reform Activities.
While these restrictions are significant and need to be carefully considered with respect to LSC programs serving as OAA providers, it is important to note at the outset that there are many activities that are not restricted and that LSC programs can undertake to protect essential rights and benefits for vulnerable elders. Further there are several very important exceptions to the policy advocacy and welfare reform restrictions when non-LSC funds, e.g. OAA funds, are being used which allow for a substantial amount of elder rights advocacy. As stated in a Clearinghouse Review article by Alan Houseman:
Even though Congress has also imposed onerous and unprecedented restrictions on what LSC-funded providers can do with both LSC and non-LSC funds, there remains a vital role for LSC-funded providers if low income persons are to be protected and their opportunities enhanced.
A. Policy Advocacy: Legislative and Administrative Rulemaking Advocacy
Perhaps the most significant restrictions, as well as the most significant exceptions, for purposes of OAA services and elder rights advocacy are those dealing with policy advocacy. In general, current LSC restrictions preclude recipients of LSC funds from using their LSC or any other moneys to engage in many forms of policy advocacy at the Federal, state or local level. This includes restrictions on: legislative advocacy before legislative bodies; participating in administrative rulemaking proceedings; and attempting to influence an executive order. These prohibitions are substantially more extensive than in the past, when rulemaking activity and direct contact with legislators on behalf of clients and self-interest lobbying were allowed, and when the use of non-LSC funds was not restricted.
Yet, there continue to be many important policy advocacy activities that are not restricted and that can be undertaken with LSC or other funds. In addition, there are several very important exceptions for the use of non-LSC funds. Thus it is a two-step process to determine whether a particular policy advocacy activity is allowed -- first examine the regulations to determine whether the activity is prohibited, and then if it is prohibited, examine whether there is an exception when non-LSC funds are used.
On April 21, 1997, LSC issued a Final Rule explaining the lobbying/ rulemaking restrictions. The Rule defines key terms and clarifies what is and is not included in the definitions. For example, "grassroots lobbying," i.e. efforts intended to influence the public to contact public officials to support or oppose pending or proposed legislation, regulations, executive decisions, or ballot issues, is strictly prohibited. The "grassroots lobbying" definition specifies, however, that it does not include "communications which are limited solely to reporting on the content or status of, or explaining, pending or proposed legislation or regulations." It is therefore permissible, according to the Supplementary Information issued with the Final Rule, for LSC programs to report to the elderly and other groups, the status or content of pending or proposed legislation or regulation in order to explain what it does, changes it would make in existing law or regulation, the problems it addresses, and who would be affected by it.
The definition of "legislation" specifies that it does not include "actions of a legislative body which adjudicate the rights of individuals under existing laws," e.g. actions of zoning boards regarding shared housing among older individuals; nor does it include "legislation adopted by an Indian Tribal Council." The "Rulemaking" definition specifies it does not include: (1) administrative proceedings that do not have general applicability but affect only the private rights, benefits or interests of individuals; or (2) communication with agency personnel to obtain information, clarification or interpretation of the agency's rule, policies or practices. Rulemaking is defined as any agency process for formulating, amending, or repealing rules, regulations or guidelines of general applicability and future effect issued by the agency pursuant to Federal, State or local rulemaking procedures. This includes notice and comment rulemaking procedures under the Federal Administrative Procedures Act or similar procedures of State or local government agencies, and adjudicatory proceedings that are formal adversarial proceedings to formulate or modify an agency policy of general applicability and future effect. Agency activities that do not fall within this definition are not considered rulemaking under LSC's Final Rule.
Beyond the above activities that are allowed by definition, the LSC Final Rule describes a number of other permissible, policy advocacy activities that are very important for an Older Americans Act program to be able to undertake. They are broken into two categories -- allowable activities when using any funds and allowable activities when using non-LSC funds.
1. Allowable Policy Advocacy Activities When Using Any Funds
Using funds from any source, there are no restrictions against --
representing eligible clients in administrative agency proceedings that adjudicate the rights of an individual client, such as welfare, food stamps, Social Security or SSI, public housing, etc. including pre-litigation negotiation and negotiation in the course of litigation on the client's legal rights or responsibilities;
initiating or participating in litigation challenging agency rules, regulations, guidelines or policies, unless prohibited by law or in some other section of the LSC rules, e.g. in part 1639 on welfare reform or part 1617 on class actions, both of which are discussed below;
communicating with a governmental agency for the purpose of obtaining information, clarification, or interpretation of the agency's rules, regulations, guidelines, policies or practices;
informing clients, other LSC recipients, or attorneys representing eligible clients about new or proposed statutes, executive orders, or administrative regulations. Thus, according to the Supplementary Information published with the Final Rule, LSC programs can advise clients about the effect of agency rules and policies, analyze them and explain proposed changes and their effect, and advise their clients about their right to participate on their own behalf in agency rulemaking proceedings;
advising a client of the right to communicate directly with an elected official. According to the Supplementary Information, this includes advising specific clients of the identity of their elected representatives, how legislation is enacted and the procedures for testifying, but not preparing testimony or conducting formal training on how to participate in lobbying or rulemaking;
participating in activity related to the judiciary, such as the promulgation of court rules (e.g. rules on guardianship proceedings), rules of professional responsibility, or participating on committees appointed by the courts to advise the courts about judicial matters.
2. Exceptions/ Permissible Activities Using Non-LSC Funds
The above-listed activities are not included in the restrictions and can be undertaken by LSC programs using LSC, OAA, or any other funds. In addition, and perhaps even more important for the aging network in considering options regarding the entity to provide OAA services, is an exception to the restrictions on policy advocacy when using non-LSC, e.g. OAA, funds. This is particularly relevant in terms of the capacity of LSC programs to use OAA moneys for legislative and rulemaking advocacy on vulnerable elder rights issues as called for in Title VII. For example, as some states change their Medicaid policies to require older persons receiving Medicaid to participate in managed care programs, the comments and testimony of LSC lawyers who provide OAA services on new state laws and rules is vital to assure that the rights of older Medicaid recipients are protected.
The non-LSC funds exception, which also applies to the welfare reform restrictions discussed in section D below, has two elements: one allows participation in public rulemaking procedures; and the other permits responding to official requests regarding legislation and rulemaking. Permitted activities and related requirements are explained in Section 1612.6 of the Final Rule.
The first part of the exception allows the use of non-LSC funds to participate in public rulemaking. LSC's Final Rule specifies that LSC recipients may use non LSC funds, e.g. OAA funds --
... to provide oral or written comment to an agency and its staff in a public rulemaking proceeding.
"Public rulemaking" is defined broadly and encompasses most rulemaking; it includes any rulemaking proceeding or portion thereof that is open to the public through notices of proposed rulemaking published in the Federal Register or similar State or local journals, announcements of public hearings on proposed rules, including notices that are routinely sent to interested members of the public and other similar public notifications. At this time, as state and federal agencies are making numerous regulatory changes with critical implications for many of the most vulnerable elders, it is essential that OAA providers of legal assistance work with others in the aging network to analyze and comment on such rules. This exception allows LSC programs to do this when using their OAA funds.
The other part of the exception allows LSC programs to use non-LSC funds to respond to official, written requests for legislative and administrative advocacy, provided that distribution of responses is limited and the LSC recipient does not arrange for the request to be made. As specified in LSC's Final Rule, they may use non-LSC funds to:
... respond to a written request from a governmental agency or official thereof, elected official, legislative body, committee, or member thereof ... to:
(1) Testify orally or in writing;
(2) Provide information which may include analysis of or comments upon existing or proposed rules, regulations or legislation, or drafts of proposed rules, regulations or legislation; or
(3) Participate in negotiated rulemaking under the Negotiated Rulemaking Act of 1990, 5 U.S.C. 561 et seq., or comparable State or local laws.The Rule also clarifies several requirements relating to this exception -- distribution of responses, solicitation of requests, and record-keeping:
(b) Communications made in response to requests ... may be distributed only to the party or parties that made the request and to other persons or entities only to the extent that such distribution is required to comply with the request.
(c) No employee of the (LSC) recipient shall solicit or arrange for a request from any official to testify or otherwise provide information in connection with legislation or rulemaking.
(d) Recipients shall maintain copies of all written requests received by the recipient and written responses made in response thereto and make such requests and written responses available to monitors and other representatives of the [Legal Services] Corporation upon request.
While the final rule is helpful in clarifying what is allowable under this part of the non-LSC funds exception, there are several questions that we have received at The Center for Social Gerontology (TCSG) that the rule does not address. TCSG has, in turn, discussed the questions and obtained guidance from The Center for Law and Social Policy (CLASP). One question comes from the fact that an "official" of a governmental agency is not defined. Therefore, there is some uncertainty as to who in the aging network qualifies as a governmental official who can request that LSC programs receiving Older Americans Act funds utilize their legal skills and expertise to undertake specific legislative or rulemaking activity on important elder rights issues. CLASP has advised us that the term is interpreted broadly to include anyone who is in a senior position with federal, state or local government. This includes such persons as state directors on aging, area agency directors in county or city government, and state ombudsmen and legal services developers.
Another question not specifically addressed in the Final Rule is how general a request can be, e.g. if a state is considering changing its guardianship law, could a government official request that a LSC program use its OAA funds to testify, etc. on all aspects of the proposed legislation, or would it be necessary to make a specific request each time a hearing is scheduled, an amendment proposed, and so forth? CLASP points out that the Final Rule does not state that requests must be specific; they may be general. They should, however, be reasonable and CLASP recommends that it is best to make requests as specific as possible, e.g. to testify at a specific hearing or at a series of scheduled hearings on an issue. It is also important to remember that there is no restriction on tracking information on laws/regulations/policies important to older persons and supplying that information to the aging network, so that the network is kept abreast of developments and aware of when requests for assistance from the LSC program might need to be made.
A related question is how broad the request for distribution of a response should be, e.g. can a LSC/OAA program respond to a request that information and analysis of proposed changes to the state's guardianship law be distributed to the legislator or official making the request as well as to all legislators who will be acting on the proposed changes? The rule states that distribution must be limited to the person making the request and others only to the extent that distribution is required to comply with the request. As above, CLASP recommends that the request regarding distribution of the response be reasonable, e.g. to the person making the request and the legislative committee working on a bill or to a list of specified individuals. Beyond this, however, there is no restriction on the person making the request distributing the response to additional parties who should have it. In many situations, distribution by the person making the request may be more effective than having information come directly from an LSC/OAA program.
Finally, there is one other important exception to the policy advocacy restrictions that allows the use of non-LSC funds for some self-help lobbying, i.e., to "contact or communicate with, or respond to a request from, a State or local government agency, a State or local legislative body or committee, or a member thereof, regarding funding for the recipient, including a pending or proposed legislative or agency proposal" for such funding. Given the dramatic cuts in LSC funding, it is particularly important for LSC programs to be able to work with the aging network and others to generate other sources of funds, including from state and local government. This exception makes that possible if non-LSC funds are used.
Thus, to repeat, there are many important policy advocacy activities that may be undertaken by LSC programs either because they are not restricted or they fall under an exception if non-LSC funds are used.
B. Public Policy Advocacy Training
In addition to the legislative and rulemaking advocacy restrictions discussed above, the FY '96, '97 and '98 Appropriations restrict advocacy training activities. These generally prohibit recipients of LSC funds from training for the purpose of advocating a particular public policy or encouraging a political activity, including dissemination of information about such a policy or activity. Similar restrictions existed previously for LSC funds, however, they now also apply to non-LSC funds such as OAA.
A Final Rule on the training restriction was published on April 21, 1997 as part of the Lobbying Rule. The Rule clarifies that recipients of LSC funds may not support or conduct training programs that (1) advocate particular public policies; (2) encourage or facilitate political activities or the development of strategies to influence legislation or rulemaking; (3) disseminate information about such policies or activities; or (4) train participants to engage in activities prohibited by the LSC Act, other law, or LSC regulations or guidelines, e.g. they may not conduct training on how to engage in class action litigation, lobbying, or welfare reform. It is allowable, however, to participate in training necessary to prepare participants to provide adequate legal assistance to eligible clients and to advise eligible clients of the clients' rights under existing law or regulation or about the meaning or significance of particular proposed regulations or legislation. Supplementary Information to the Final Rule also points out that it is permissible for LSC employees to attend/participate in bar association or continuing legal education programs even if a portion of the training involves a prohibited activity.
C. Class Action Litigation
A third important restriction is on class action litigation. FY '96, '97 and '98 Appropriations prohibit recipients of LSC funds from initiating or engaging in any class action litigation. There was a phase-in period for this restriction allowing class actions pending on April 26, 1996 to be worked on until August 1, 1996, at which time all such work was to end.
On December 2, 1996, LSC issued a Final Rule on the class action restriction, effective January 1, 1997. The Rule defines "class action," contains a strict prohibition on all types of involvement at all stages of a class action litigation, and clarifies what activities constitute such involvement. As explained in the Supplementary Information to the Final Rule, recipients of LSC funds are to focus their resources on representation of individual poor clients. They may not initiate a class action or participate in one initiated by others, whether at the trial or appellate level, nor may they continue involvement in a case that is later certified or otherwise determined by the court to be a class action. LSC recipients may not act as amicus curiae or co-counsel in a class action or intervene in a class action on behalf of individual clients who seek to intervene in, modify, or challenge the adequacy of the representation of a class. And they may not represent defendants in a class action.
While this restriction is very significant, and as noted above, applies to all of an LSC program's activities whether LSC funds or other funds are being used, it is important to point out what is not prohibited, as well as what is and what is not included in the definition of class action. It is permissible for LSC recipients to advise a client about a class action and its potential effect on them, and what the client would need to do to benefit. They may represent a client in withdrawing from a class action. If an LSC recipient is representing an individual client in a case that was not filed as a class action and another party moves to have the case certified as a class action, the recipient of LSC funds can continue the representation until the court certifies it as a class action. Recipients may also represent an individual client seeking the benefit of a class action order, provided the involvement is only on behalf of an individual; and they may undertake non-adversarial activities to remain informed about or to educate or advise others about the terms of an order.
Further, as pointed out in a Clearinghouse Review article by Alan Houseman, the class action restriction does not preclude LSC recipients from other forms of impact litigation which may affect more than an individual client. Class action is defined as
... a lawsuit filed as, or otherwise declared by the court having jurisdiction over the case to be, a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure or the comparable State statute or rule of civil procedure applicable in the court in which the action is filed.
Mr. Houseman points out that in some states, procedures may exist that do not fall within the definition of class action, but that include remedies affecting persons other than named plaintiffs. Furthermore, there is no restriction on suing the government per se; LSC recipients may sue governmental entities on behalf of individual named clients. With the exception of welfare reform litigation, LSC recipients can sue to overturn state laws on constitutional grounds or as violative of federal law, state agency policies as violative of state or federal law, or local policies on statutory or constitutional grounds. They may represent a number of named individual clients with the same or similar legal problem; and they may represent eligible community or client groups, so long as the representation does not involve prohibited welfare reform activity. Through these types of cases, although done for named clients and not a class, LSC recipients can affect other persons in similar situations and achieve very significant elder rights "impact work."
D. Welfare Reform Activities
A fourth extremely important restriction in the FY '96, '97 and '98 LSC Appropriations relates to welfare reform and the ability of recipients of LSC funds to represent and advocate on behalf of older persons adversely affected by the recent dramatic changes in federal welfare law. Essentially, it restricts LSC recipients from initiating legal representation or challenging or participating in litigation, lobbying or rulemaking involving an effort to reform a Federal or State welfare system. However, it is also important to note that as with the policy advocacy restrictions discussed in section A above, many important activities relating to welfare reform are not restricted and there is an exception which allows the use of non-LSC funds to (1) respond to official requests for legislative and administrative advocacy and (2) participate in public rulemaking. Thus, as with policy advocacy, there is a two-step process to determine whether a particular welfare reform activity is allowed -- first examine the regulations to determine whether the activity is prohibited, and then if it is prohibited, examine whether there is an exception when non-LSC funds are used.
The full meaning and implications of this restriction are complex as they are directly linked to the tremendous and ongoing changes in various welfare programs at the Federal and State levels -- e.g. cash and medical assistance for needy families; SSI, food stamps and Medicaid for aliens; SSI for children with disabilities; and cuts in food stamp benefits. A full discussion is well beyond the scope of this article. This section will simply highlight the types of activities that can and cannot be undertaken under current LSC regulations. An excellent and much more in-depth discussion by Mr. Alan Houseman can be found in the January-February 1997 issue of Clearinghouse Review.
What is or is not allowed under LSC's rule has evolved in response to Congressional action. Following the FY '96 Appropriation, LSC issued an interim rule with a request for comments on August 29, 1996. It had been adopted by the LSC Board on July 20, 1996, just prior to Congress' enactment of the major welfare reform legislation, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Personal Responsibility Act). On March 26, 1997, a new proposed rule was published; and a Final Rule issued June 5, effective July 7, 1997.
1. The Prior Interim Rule
In several ways that are important to legal services to the elderly and elder rights Interim Rule advocacy, the prior was more permissive than the current Final Rule. First, it defined "an effort to reform a Federal or state welfare system" in a more limited manner. Second, it did not include "regulations" in the definition of "existing law."
In defining what constitutes an effort to reform a Federal or State welfare system, the Interim Rule limited the definition -- and therefore limited restricted activities -- to the then current Federal-State welfare cash assistance programs for needy families with dependent children. The definition included "Federal and State AFDC programs under Title IV-A of the Social Security Act and new programs or provisions enacted by Congress or the States to replace or modify these programs, including State AFDC programs conducted under Federal waiver authority" and "General Assistance or similar state means-tested programs." The Interim Rule specified that other public benefit programs were not included "unless changes to such programs are part of a reform of the AFDC or General Assistance programs." When the Personal Responsibility Act was passed and the AFDC program was replaced with the Temporary Assistance for Needy Family (TANF) Block Grant, restricted LSC activities were limited to those related to TANF and not to the other provisions having greater impact on older persons, e.g. benefits to aliens, SSI for disabled children, and food stamp cuts. This allowed Alan Houseman in his January 1997 article, written under the Interim Rule to state --
Thus, clients with SSI problems arising out of the congressional changes in eligibility for adults and disabled children, and clients adversely affected by the food stamp changes, may be represented throughout the administrative process and in court, and LSC-funded advocates may raise any statutory or constitutional arguments that support their clients' position.
A second less restrictive provision in the prior Interim Rule was a somewhat limited definition of "existing law." This included Federal, State or local statutory laws or ordinances, but did not include regulations. This is significant because both the Interim and Final Rule describe as permissible, representation of an individual eligible client seeking specific relief from a welfare agency if such relief does not involve an effort to amend or otherwise challenge existing law. Given this limited definition, the Supplementary Information to the Interim Rule indicated that recipients of LSC funds were allowed to represent individual eligible clients adversely affected by a welfare reform law not only to enforce existing law, but to "challenge a regulation or policy on the basis that it violates a higher State or Federal law," or to "challenge the agency's interpretation of the law."
2. The Current Final Rule
Unfortunately, both the definitions of "efforts to reform a Federal or State welfare system" and of "existing law" became more restrictive in the Final Rule.
In the Final Rule, the definition of "Federal or State welfare system" was revised to include not only the TANF-related provisions from the Interim Rule but also all other provisions of the Personal Responsibility Act, except for the Child Support enforcement provisions. The Supplementary Information published with LSC's revised Proposed Rule explains that this was done to respond to stated Congressional concerns and in consideration of the entire welfare reform debate by Congress. It does, however, further explain that the definition "does not include provisions in Federal programs which were not amended by the Personal Responsibility Act. Such programs as the Job Training Partnership Act, Medicaid, Medicare, Unemployment Insurance, Veterans Benefits, and Social Security would not be included ...." Further, the broadened definition does not include all aspects of programs such as SSI and Food Stamps addressed in the Personal Responsibility Act, but only the specific provisions in the Act.
An effort to reform a Federal or State welfare system is now defined as:
... all of the provisions, except for the Child Support Enforcement provisions of Title III, of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Personal Responsibility Act), 110 Stat. 2105 (1996), and subsequent legislation enacted by Congress or the States to implement, replace or modify key components of the provisions of the Personal Responsibility Act or by States to replace or modify key components of their General Assistance or similar means-tested programs conducted by States or by counties with state funding or under State mandates. (emphasis added)
Because this broadened definition was a significant change from the Interim Rule, LSC provided guidelines for transition in the Supplementary Information to the Final Rule. LSC recipients must take immediate steps to withdraw from pending cases permitted under the Interim Rule, e.g. provide "written notice to the client and written pleadings to the courts or administrative agencies involved. However, where a court or agency will not permit withdrawal in spite of a recipient's best efforts, the Corporation will determine on a case-by-case basis whether continued representation violates the regulation."
Welfare reform activities prohibited under LSC's Final Rule are broad. Recipients of LSC funds may not --
... initiate legal representation, or participate in any other way in litigation, lobbying or rulemaking, involving an effort to reform a Federal or State welfare system. Prohibited activities include participation in:
(a) Litigation challenging laws or regulations enacted as part of an effort to reform a Federal or State welfare system.
(b) Rulemaking involving proposals that are being considered to implement an effort to reform a Federal or State welfare system.
(c) Lobbying before legislative or administrative bodies undertaken directly or through grassroots efforts involving pending or proposed legislation that is part of an effort to reform a Federal or State welfare system.
As with the other restrictions, however, there are important activities that recipients of LSC funds can continue to undertake. They may represent individual eligible clients seeking specific relief from a welfare agency so long as this does not involve an effort to amend or otherwise challenge existing law in effect on the date of the initiation of the representation, i.e. they may undertake to enforce existing welfare law in individual cases. For example, in representing an eligible older person adversely affected by the food stamp cuts, a recipient of LSC funds may challenge an agency policy that is not part of existing law on the basis that it violates a regulation or State or Federal law, or may challenge the application of an agency's regulation or the law on which it is based to the individual client.
Under the Final Rule, however, this permissible activity is more restricted than before insofar as the definition of "existing law" is expanded. It now includes not only Federal, State or local statutory laws or ordinances enacted to reform a Federal or State welfare system, but also regulations. The Supplementary Information explains the inclusion as being because the statutory restriction uses the term "existing law" without qualification; and properly adopted regulations constitute law. Thus while under the Interim Rule, it was possible, in representing an individual client, to challenge a welfare reform regulation as violative of Federal or State law, this is not permitted under the Final Rule. However, the definition of regulation is significant. It is defined to include only regulations "that have been formally promulgated pursuant to public notice and comment procedures." Thus agency policies that have not been formally promulgated are not considered regulations/existing law under the Final Rule.
3. Exceptions When Using Non-LSC Funds
Though important activities are permitted, the welfare reform restrictions are extremely significant for legal services for the elderly and elder rights advocacy. However, as is the case with the policy advocacy restrictions described in section A above, there is a very important exception to the restrictions when non-LSC, e.g. OAA, funds are used. Under the exception, non-LSC funds may be used to "comment in a public rulemaking proceeding or respond to a written request for information or testimony ... regarding an effort to reform a Federal or State welfare system," so long as such activities are consistent with the provisions of section 1612.6 of the Rules.
This exception has become even more important to elder rights advocacy since the Final Rule (1) broadened restricted activities to all provisions of the Personal Responsibility Act (with the exception of Child Support Enforcement) rather than limiting them to TANF-related provisions, and (2) broadened the definition of existing law to include formally promulgated regulations. To summarize from Section A, the exception has two parts. First, it allows LSC recipients to use non-LSC funds to participate in any public rulemaking proceedings relating to welfare reform. And public rulemaking is defined broadly to include proceedings open to the public through notices in the Federal Register or similar State or local journals, and other similar public notifications.
Second, the exception allows LSC recipients to use non-LSC funds to respond to written requests from a governmental agency or official, elected official, or legislative body, committee, or member, to testify orally or in writing and provide information including analysis and comments on existing or proposed rules, regulations or legislation or drafts thereof. This is allowed, provided the response is distributed only to the parties that make the request and others to the extent necessary to comply fully with the request, and the LSC recipient does not arrange for the request to be made. Thus under the exception, there are many important policy advocacy activities that may be undertaken in the area of welfare reform, when non-LSC funds are used.
There can be no question that the LSC restrictions written into law by the 104th Congress (particularly when coupled with the nearly one-third cut in appropriations) place real limitations on LSC providers; and the aging network needs to be aware of them and understand them. Whether LSC or other non- LSC entities should be funded to provide OAA legal assistance will depend on the particular provider's capacity to serve the legal needs of vulnerable elders and their communities. This issue must be addressed at the local level by individual area agencies on aging with the assistance of their state legal services developers.
In considering options and selecting OAA service providers, the aging network needs to put strong emphasis on the capacity of providers: to provide the full range of legal advocacy services (litigative, administrative and legislative); and to target and reach those in greatest need. Factors to be considered in making the decision include such things as: target population(s) to be served; needs and issue areas of importance to the target groups; type/scope of legal advocacy needed to address those needs and issues as effectively and efficiently as possible; and perhaps most significant, provider options that exist in the area.
At this time, provider options in any particular area may well be changing. As described in an article in the September - October, 1997 Elder Law issue of Clearinghouse Review, all states are now engaging in state planning processes to examine their civil legal services for the poor. They are re-evaluating; and some are substantially restructuring their service delivery system. In some places, two separate entities have been established, one funded by LSC and the other funded only by non-LSC sources and therefore not subject to LSC restrictions. In other places, the single LSC-funded system has been maintained.
There remain significant areas of advocacy and representation that LSC recipients can undertake to protect essential rights and benefits for vulnerable elders; and this is particularly true when non-LSC funds, e.g. OAA funds, are used. While the restrictions Congress has placed on LSC recipients are onerous, they should not be seen as a barrier to their continuing as key providers of OAA services. The essential question will always be: who is the most qualified and capable provider of vulnerable elder rights advocacy?
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