Best Practice
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| Vol. 8, nos. 1&2 | On Delivery of Legal Assistance to Older Persons |
May 1997 |
Editor's Note: This article presents a slightly revised and updated version of an article prepared in 1996 by Penelope A. Hommel and published in a special Elder Law issue of Clearinghouse Review, Journal of Poverty Law, Vol. 30, No. 6, October 1996, pp. 635-652.
Perhaps never before has the challenge to protect essential rights of our nation's most needy older persons been so great. In both the Congress of the United States and State governments across the country, programs and benefits that have evolved over decades are being questioned. Efforts are underway on many fronts to make major changes in the basic structure of income, health, and social programs as well as substantial cuts in funding.
Simultaneously, the future of our existing legal advocacy systems for older persons is in question. There have been major cuts in funding and restrictions on activities of Legal Services Corporation (LSC) programs; and proposed changes in the Older Americans Act would de-emphasize elder rights advocacy and legal services for the most vulnerable elders.
In these tumultuous times, it is essential that those older persons most likely to be adversely affected have ready access to the system of justice -- for both individual representation and systems-level advocacy. Therefore it is more crucial than ever that the aging network and legal advocates work closely together to preserve and enhance the elder rights/legal services systems we have developed over the years. And yet, TCSG's experience indicates that such joint efforts are relatively uncommon. The major article in this issue of Best Practice Notes is therefore devoted to questions of why joint efforts are so important, particularly in light of the LSC cuts and restrictions; and how the aging and legal services networks can work together. It includes four case examples and describes the benefits for all involved.
Elder Rights
A supplemental article in the next issue of Best Practice Notes will discuss Advocacy & LSC several restricted activities for LSC programs which are of particular concern Restrictions to the aging network and elder rights activities. Specifically, it will outline two important exceptions to the LSC restrictions that allow the use of non-LSC funds, e.g., OAA funds, for some legislative and administrative/rulemaking advocacy.
As indicated in the Introduction, the challenge to protect rights and benefits of our nation's most needy older persons has perhaps never been greater. Essential elder rights are seriously at risk. Unfortunately, at the same time that By: social and health benefit programs are being fundamentally challenged and Penelope A. Hommel changed, the system that was put in place over three decades ago to provide access to civil legal services for the poor of this country -- the Legal Services Corporation (LSC) -- is also being threatened. The US Congress has recently made dramatic cuts in funding and has seriously restricted allowable activities of LSC programs.
In response to the cuts and changes, LSC programs across the country have been compelled to re-examine, and often reconfigure, their structures and priorities while simultaneously reducing staff. Typically, this review process has involved representatives of LSC programs, clients, the private bar, the judiciary, and others from the legal community. However, in working with the aging network in a large number of states and with the National Association of Legal Services Developers (NALSD), the experience of The Center for Social Gerontology (TCSG) indicates that the aging network has seldom been a part of this LSC review process. Because LSC programs have historically played a key role in the provision of legal services to older persons, and inasmuch as the aging network currently provides Older Americans Act (OAA) grants to many LSC programs to serve the most vulnerable elderly, we believe it is essential that this network -- particularly state Legal Services Developers and area agencies on aging -- become involved in the legal services planning process and in discussions about future directions.
The purpose of this article is therefore twofold -- first to provide background information on the changes that are occurring in LSC and on the importance of targeted, high impact legal services in the OAA; and second to provide examples of how the aging network and LSC programs in several states have come together to address the LSC changes and describe the results of these joint efforts. The article begins with a brief historical examination of legal services and targeting under the OAA. It reviews the cuts and restrictions that Congress has imposed on LSC programs, and examines how they might affect OAA legal services, particularly targeting and impact work. It then describes the approaches taken in four states (OK, ND, VT, WA) where the legal services and aging networks have been working together, and concludes with suggestions and advice for others based on these states' experiences.
I. Importance of Legal Services Under the Older Americans Act
The OAA has always reflected the importance of legal advocacy for the most needy older persons. When originally enacted in 1965, the Act did not specifically address legal services. However, with approximately one-third of the older population below the official poverty level at that time, the tremendous need for strong advocacy was self-evident. The overall purpose of the Act, 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. Achieving that purpose would necessarily involve legal advocacy services.
A. History of Legal Services in the OAA
In 1970 and 1971, a working paper and related hearings by the US Senate Special Committee on Aging provided the first evidence that legal needs were not being met. Although some legal services were available to low-income persons through local Office of Economic Opportunity offices (the predecessor of LSC), few older people were receiving these services; and programs with particular focus on reaching and serving older persons were almost non-existent. It was discovered that, without special outreach and education, many older persons do not perceive the legal nature of their problems and are unlikely to seek legal assistance. While they typically recognize wills as requiring legal assistance, they do not recognize the legal nature of problems with Social Security, SSI, Medicare, Medicaid, nursing homes, insurance sales, housing, consumer fraud, etc. Furthermore, the lack of law school courses and training materials relevant to helping older persons, and the scarcity of attorneys who had real knowledge of older persons' legal rights or experience in protecting those rights, effectively limited assistance not only from LSC and other legal aid offices but from the private bar. It was concluded that advocacy in the form of specialized legal services must be developed to help older persons (individually or as part of a class) pursue their rights. Congress responded in 1975, making legal services a priority in the OAA.
From that beginning, the importance of legal services received increasing recognition, and State and area agencies on aging demonstrated growing understanding of the important advocacy role played by legal providers, in particular LSC providers. In 1978, Congress specified legal services as one of three priority categories of service under Title IIIB with a requirement that all area agencies on aging fund them. There was debate over the level of funding required and over what constituted adequate funding. In 1987, the OAA Amendments required each State to define what was considered adequate by setting a minimum percentage of Title IIIB funds that every area agency must spend on legal services. Both the priority for legal services and the minimum percentage requirement continue to be in effect through the present.
B. Importance of Targeting OAA Legal Services
It should be noted that targeting is particularly relevant to OAA legal services. 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 needs of all older persons, and as noted above, its purpose was broadly directed at giving them an opportunity for full participation in the benefits of society. Since 1965, as the scarcity of federal dollars became more apparent and the overall economic and social status of the older population improved, Congress has increasingly directed that OAA services be focused on older individuals with the greatest economic or social need, with particular attention to low-income minority individuals. The directive to target limited resources is even greater for providers of legal services than for other OAA service providers. 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 of many area agencies on aging is that they are set up to be effective at targeting. Targeting means not operating on a "first-come, first-served" basis. It means consciously identifying who the target populations are, e.g., low-income, non-English speaking, persons in Medicaid nursing homes and adult foster care, and then establishing deliberate operational procedures to insure that the targeted groups will be reached. It means doing special outreach to educate such persons, and others who work with them, about their rights and about the availability of legal services. It means recognizing that some of the most needy target groups cannot or will not come to a legal services office, and that going out to them is necessary. It means locating offices and intake sites in locations that are accessible, and hiring staff that can communicate and work effectively with target populations. It means establishing and publicizing as the priority issue areas in which services can be provided, issues that are most likely to affect the target groups, e.g., Medicaid, public housing, SSI. Historically, LSC offices have been particularly well equipped to do this kind of targeting.
C. Importance of High Impact, Elder Rights Advocacy in the OAA
In addition to targeting, an important consideration with respect to legal services under the OAA, is the level of impact on the most needy elderly. In this regard, one of the most significant developments in the OAA came in the 1992 Amendments, i.e., a new Title VII, the Vulnerable Elder Rights Protection Title. In essence, the Elder Rights Title calls on the aging network -- through its legal advocacy services as well as its Abuse Prevention, Long-Term Care Ombudsman and Insurance/Benefits Counseling programs -- to undertake strong and vigorous advocacy to secure and maintain benefits and rights for the nation's most vulnerable older persons. And it calls for such high impact advocacy at both an individual level and the systems-change level.
With respect to legal advocacy, the Elder Rights Title promotes the notion of statewide, comprehensive advocacy systems to protect essential rights and benefits of vulnerable elders, and calls on state agencies on aging and their Legal Services Developers to take substantial leadership in developing such systems. In essence, it pushes the aging network to orchestrate through its legal services providers and other advocacy services, both individual and systems-level advocacy 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 ideal candidates to provide such targeted, high impact services, and when Title VII was enacted, the LSC providers and aging network in many states came together to plan and implement their Elder Rights efforts. The present challenge is how to maintain the experience and expertise of LSC programs in these Elder Rights efforts in light of the cuts and restrictions imposed on the LSC programs.
II. Changing Role & Resources of Legal Services Corporation
Our society holds as a basic tenet that all persons shall be assured equal access to justice. Such access necessarily encompasses not only representation in the courts but also representation before administrative agencies and legislative bodies; and it includes representation both as an individual and as part of a larger group or class. Nonetheless, many of our nation's most vulnerable persons, e.g. persons with few financial resources, with physical or mental disabilities, and those reliant on public resources, have had limited access to legal services and thus to the system of justice. It was to provide access to such underrepresented groups that Congress established and funded the Legal Services Corporation in 1974. However, since the 104th Congress convened in 1995, there have been efforts to reverse the role of government in assuring such access and in providing public funds for it. Some of the most significant changes came in the FY '96 LSC Appropriations. These were in the form of major funding cuts as well as serious restrictions on the types of activities and representation that can be undertaken by LSC programs; and they were continued in the FY '97 Appropriations.
A. LSC Funding Cuts
The funding cuts, which were extremely severe, have major implications for legal services for older persons. The LSC Appropriation for FY '95 was $415 million. In FY '96 the Appropriation was cut to $278 million, a 33% reduction. In FY '97 there was a modest $5 million increase to $283 million. The most obvious consequence is that for those poor older persons who are financially eligible for LSC services, fewer services are available. Furthermore, LSC programs have historically received a large proportion of Title III grants, not only because of their expertise, their ability to do impact work and their capacity to target services to those in greatest need, but also because the LSC programs tended to contribute significant resources beyond the Title III dollars to serving older persons. The cuts mean that fewer LSC resources are available to contribute and use as match for the area agency funds. Also, the cuts are resulting in the loss of LSC program staff -- in some cases, the attorneys and paralegals who are most experienced and knowledgeable about aging issues.
B. LSC Restrictions
Beyond the funding cuts, Congress also used the FY '96 and FY '97 Appropriations to legislate, i.e., they used the Appropriations bills to impose major restrictions on activities that can be undertaken by LSC programs. These restrictions apply to: the subject areas that can be addressed; the scope of representation that can be provided; and who can be represented. Implications of these restrictions for LSC programs that are also OAA service providers are perhaps even more significant than the funding cuts.
While in the past some restrictions on LSC activities existed, these applied only to activities undertaken with LSC dollars; and OAA funds could be used as directed by the Act and as agreed to with the area agency granting the funds. Now, not only are the restrictions much more extensive, their applicability goes beyond work done with LSC funds. With a few important exceptions that are particularly relevant to Elder Rights activities, the restrictions apply 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.
Restrictions on LSC programs that are most relevant to legal services for vulnerable older persons include:
limitations on legislative and administrative/rulemaking advocacy, though with several important exceptions relevant to Elder Rights Advocacy when using non-LSC funds;
initiating or engaging in class actions;
providing legal representation, challenging or participating in efforts to reform the Federal or State welfare systems;
representing certain aliens; and
supporting or conducting training to advocate particular public policies or political activities and training on prohibited cases or advocacy activities.
The meaning and implications of these restrictions, and exceptions to these restrictions, will be the subject of an article in the next Best Practice Notes.
Clearly, the scope of these restrictions is very broad, as the majority in the 104th Congress intended; and they impede LSC programs from undertaking the full range of legal advocacy services -- administrative, legislative and litigative -- on behalf of older individuals and groups of older persons.
In spite of the restrictions, however, LSC programs still retain many of the characteristics that have made them prime recipients of OAA legal services grants, e.g., experience and expertise in targeting the most vulnerable populations and in handling public benefits cases, such as Medicaid, SSI and Medicare; as well as long-standing working relationships with aging network agencies who work with the most socially and economically vulnerable elderly. LSC programs can continue to provide extremely valuable services to individual clients and can continue to be a very effective vehicle for targeting assistance to those most in need. Also as noted, there are several important exceptions that allow the use of non-LSC funds, e.g. Older Americans Act funds, to undertake some legislative and administrative/rulemaking advocacy; and these will be discussed further in the next issue of Best Practice Notes.
However, in order to provide the full range of needed legal advocacy, new approaches to delivery must be devised that include a variety of non-LSC and LSC legal providers and other advocacy groups. TCSG believes that this is the arena where it is most crucial for the aging and legal services networks to work together to plan an overall approach to legal services and elder rights advocacy to assure access to justice for the nation's most needy elders.
III. Sample Approaches Taken in Four States -- OK, ND, VT, WA
As noted above, in response to the LSC cuts and restrictions, states across the country have undertaken a planning process to re-evaluate and, in some cases, totally restructure their civil legal services to the poor. Where restructuring has occurred, it has been both on a statewide basis and at the local level. In some places, two separate entities were established, one to apply for LSC dollars subject to all of the LSC restrictions, and another to receive only non-LSC dollars, e.g. Interest on Lawyers' Trust Accounts (IOLTA), United Way, OAA. In other places, setting up two entities was not an option, and it was crucial to identify and plan for the use of other resources such as the private bar, law schools, etc. to serve clients, handle particular issue areas, and provide the types of representation currently not allowed by LSC-fund recipients.
Unfortunately, as also noted above, the aging network has seldom been involved in these important discussions and decisions about how to respond to LSC cuts and restrictions, and without that involvement, relatively little consideration has been devoted specifically to issues of serving vulnerable older persons. We believe this has been a serious gap in the review and planning process, and we wish to share several examples in which the aging network has been involved, the needs of older persons have been seriously considered, and the results have been mutually beneficial.
The four examples are of statewide efforts, though they could also have been undertaken at the local level. They are Oklahoma, North Dakota, Vermont, and Washington. They were chosen because they are states with which The Center for Social Gerontology (TCSG) has worked, they differ geographically and demographically, and they offer a variety of approaches to joint working relationships. Oklahoma and North Dakota provide examples of ways that existing LSC programs and the aging network can work effectively to mobilize other resources such as the private bar, law schools, etc. to undertake activities that LSC programs can no longer provide and to seek other sources of funding. Vermont provides an example of a former LSC program that decided to no longer seek LSC funds, but to operate with other funds, including OAA, that do not have the LSC restrictions attached. Washington provides an example where former LSC programs throughout the state were ended, and two new separate and autonomous entities were created, one of which receives LSC funds and the other of which receives only non-LSC funds, including OAA. In all of these examples, the involvement of the aging network has been extremely important.
A. Oklahoma
Oklahoma has a large geographic area (69,903 sq. miles), a fairly small population (3,271,000), and a fairly large percentage of older persons (13.4% of the population is projected to be aged 65+ in the year 2000). It has three LSC programs, Legal Aid of Western Oklahoma, Legal Services of Eastern Oklahoma, and Oklahoma Indian Legal Services, with a total of 14 offices across the state. Oklahoma did not have an option of re-structuring and forming LSC and non-LSC entities because LSC dollars comprise over 85% of funding for the two regional Oklahoma programs and nearly 100% of the Native American program funding. Due to LSC cuts, one-third of the attorney staff has been cut and several offices have been closed in the three programs.
The aging network in Oklahoma includes 11 area agencies on aging (ten of which fund one or the other of the two regional LSC programs and one of which funds the University of Tulsa Legal Clinic) and the state office on aging (Aging Services Division, Dept. of Human Services, hereafter "Aging Services"), which is a strong proponent of elder rights advocacy and several strong advocacy groups. In the past, the aging and legal services networks have worked together to a limited extent, but in 1994, Aging Services hired a new Legal Services Developer (LSD) for the state and that person has made significant strides in furthering the relationship. The Developer also works closely with the state long-term care Ombudsman and, as an advocacy team, the two have been extremely effective.
In mid to late 1995 the LSD became concerned that, as the LSC programs planned for the LSC cuts and the imminent restrictions, there was not sufficient involvement of the aging network or consideration of the needs of vulnerable older persons. He therefore organized a day-long strategy session called "Legal Services: Filling the Gaps" which occurred in early May 1996, with the Co-Directors of TCSG serving as facilitators. Participants in the session included: the Director, Developer and Ombudsman from Aging Services; area agency representatives; the Directors and some staff of the two regional LSC programs; the University of Tulsa Legal Clinic; and private bar representatives. The immediate purpose of the strategy session was to assess the implications and potential impact of the LSC cuts and restrictions on OAA legal services and develop a plan to minimize the negative impact for vulnerable older persons and younger persons. Its long-term purpose was to enhance mutual understanding and promote ongoing communication of the aging and legal services networks.
Because the aging network had little information on what was happening with LSC programs and the implications for elder rights protection, the session began with an update on the magnitude of the funding cuts and what they meant in terms of available services, closing offices, laying off staff, etc. Other funding sources were discussed and the importance of the OAA funds was stressed because, unlike some other states where LSC programs receive a fairly large amount of money from Interest on Lawyers' Trust Accounts (IOLTA), participation in IOLTA is not mandatory for Oklahoma lawyers and the amount of money it generates for LSC is fairly small. The Director of Aging Services and area agency representatives pointed out the importance of legal services doing more and better "public relations" work so that others in the aging network will understand what they do, who they serve, and why their services are so important to needy older persons. The LSD stressed the importance of developing new resources to help carry some of the load of the LSC programs, and he committed himself to pursuing the establishment of a Law & Aging Section of the OK Bar. The state Ombudsman suggested that LSC program staff work more with ombudsmen, given the OAA requirements for the Ombudsman to undertake legislative and administrative advocacy on behalf of long-term care residents. Representatives of the aging network agreed that they needed to take responsibility to help "sell" the program and "tell the LSC story." Various possibilities were explored such as monthly media releases, LSC staff participating in regular meetings that the ombudsmen hold, and creating a "Friends of Legal Aid." The Legal Services Developer offered to work with the LSC Directors to pursue these possibilities.
The discussion then moved more broadly to funding. The LSC Directors expressed serious concerns that the cuts in LSC funds, if not replaced, would mean the collapse of their rural legal services system. They described ongoing efforts of legal services supporters to obtain funding from the Oklahoma Legislature through an access to justice bill (SB 1253) which was in some jeopardy. Initially, they had hoped for $1.5 million in state funds, but the legislature was considering only $500,000. The LSD indicated he had been working with the aging network to support these efforts and to ensure that the needs of older persons were recognized in any state appropriation that might be obtained. There was agreement that the aging network needed to be much more involved in this effort, and that the need for funds to support legal services for poor older persons might be persuasive with the legislature. Plans were made to include the Developer and others from the aging network in future planning meetings and to establish a clear role for the Developer in working on SB 1253.
That involvement proved to be crucial. The Developer and Ombudsman were instrumental in garnering support of aging advocacy groups who have a strong voice in the Legislature, and it was in very large part because of their efforts that SB 1253 passed in May 1996. For the first time in Oklahoma, SB 1253 made state funds available to the three LSC Programs. The amount was $450,000, which represents about one-third of the funds lost in 1996 as a result of the LSC cuts, and it was to provide family law services to indigent Oklahomans. The Developer and other aging advocates insisted that the definition of family law in SB 1253 include several issues that are very important to older persons -- elder abuse and guardianship -- and this was readily accepted.
The success with SB 1253 helped address the immediate need to replace reduced federal funding. It was also a stepping stone for a mutually beneficial relationship between the aging and legal services networks that continues to grow. To address questions raised while SB 1253 was being considered, the Legislature established an Interim Study Committee which recommended a specific appropriation as the best way for the State to fund civil legal services to the poor, i.e. as better than increased filing fees or other means. Now, in the 1997 Legislative Session, the two networks continue to work together for State funding for a second year. They succeeded in getting the same level of funding as last year ($450,000) built into the Supreme Court budget. As a result, $450,000 in State funds will again be available to the LSC programs to provide family law services to indigent Oklahomans and this will include assistance to older persons with elder abuse and guardianship problems.
The LSC/aging network success in Oklahoma clearly illustrates the importance of aging network involvement and the valuable role of the network in building support and expanding resources for legal services. Once the network under-stood the seriousness of the potential loss in services for some of the State's most needy older persons, they were dedicated, persistent and motivated by a drive to do what they could to prevent that loss. And for other states, it provides an excellent example of the leadership role that can be taken by the Legal Services Developer, Ombudsmen and other aging advocates.
B. North Dakota
North Dakota has a large geographic area (70,704 sq. miles), a very small population (637,000), and a large percentage of older persons (14.5% of the population is projected to be aged 65+ in the Year 2000). It has a statewide LSC program, Legal Assistance of North Dakota (LAND). Prior to the LSC cuts, LAND had 7 attorneys and 9 paralegals in four offices across the state. Following the LSC cuts, they had to substantially reduce both their legal and administrative staff, so that by early 1997 they have a total of eight legal staff for the four offices, with the Executive Director of LAND serving as an emergency back-up attorney as well as having to handle the bulk of the administrative work. In making these reductions, a major goal of LAND's Executive Director was to maintain experience and expertise, particularly for serving older persons, to the greatest extent possible with their limited resources. LAND's primary source of funding (65-70%) has been and continues to be LSC. Thus, re-structuring to form two separate entities -- one with and one without LSC funds -- was not an option.
The aging network in North Dakota is somewhat unusual in that the state is not divided into area agencies on aging. Rather the state office on aging (Aging Services Division, Dept. of Human Services, hereinafter "Aging Services") functions as the area agency for the entire state, and thus it is Aging Services that contracts directly for OAA legal services. Aging Services has consistently selected LAND to provide those services.
Aging Services has both a Director and a Legal Services Developer (LSD) who are firmly committed to Elder Rights advocacy and who have worked with LAND and other advocates to create an Elder Rights system that has significant impact on the laws, regulations, policies, and practices that affect the lives and well being of vulnerable elder North Dakotans. In 1994, Aging Services took the lead in establishing a statewide Elder Rights Task Force. The focus of the Task Force, until 1996, was on two major issues: (1) working to obtain state funds for Adult Protective Services in cases of elder abuse, and (2) working for an improved state guardianship law to better protect older persons from unnecessary guardianship with its accompanying loss of rights.
Aging Services has seen legal services as key to the State's Elder Rights system; and over the past several years, under the leadership of its Director and Legal Services Developer, North Dakota has become an example for the nation of a solid and effective working relationship between the aging and legal services networks. Together they have worked to build, with very limited resources, a system that is targeted to the most vulnerable, i.e. to those least able to advocate on their own behalf, and that is focused not only on individual advocacy but on issues advocacy to effect change at a systems level.
The Director of LAND has a record of dedication to services to older persons and to elder rights; and as soon as the cuts and restrictions on LSC programs were apparent, she began work to ensure that, if there were elder rights activities she could not continue, others were ready and able to undertake them. She began by convening a meeting with Bench and Bar leaders to identify and organize alternative resources. This group was extremely supportive of her elder rights efforts, but offered little in terms of new approaches or resources to share responsibilities and workload.
Given the strong working relationship with Aging Services, it was natural for the LAND Director to then look to the state LSD and the aging network for assistance in dealing with the LSC cuts and restrictions and in developing alternative approaches and resources to protect the rights of older persons. The Legal Services Developer determined that the best approach would be to re-convene the State Elder Rights Task Force, adding members who were key to re-shaping resources. The goal for the meeting was to strategize about roles and responsibilities for moving forward on legal services/elder rights issues, and to establish a plan of "next steps."
The Task Force met in April 1996, with TCSG's Co-Directors as facilitators. On the Task Force were high level representatives of: the Attorney General's Office, Office of Indian Affairs, ND Bar Association, Long-Term Care Ombudsman Program, the Insurance Commissioner, County Social Service agencies, the Long-Term Care Association, the Governor's Commission on Aging, Protection and Advocacy, the Council on Abused Women's Services, Health Care Review of North Dakota, the OAA Title III Directors Association, Community Action Programs, Securities Commission, Regional Aging Services Coordinator, Adult Protective Services, LAND and the Aging Services Division. The title of the meeting was "Strategy Session on the Maintenance of Targeted, High-Impact Legal Services for Older North Dakotans in These Times of Change."
The Task Force meeting began with an update from LAND and Aging Services on the severe cuts, and the restrictions under which LAND would be operating and how those restrictions might affect LAND's work on elder rights in North Dakota. Following this, the Task Force determined that the most crucial elder rights issue in North Dakota was the preservation of a strong, targeted legal assistance system. And there was consensus that everyone on the Task Force needed to take responsibility to make that happen. The remainder of the session was devoted to developing a plan of action for maintaining effective targeting and preserving issues/systems-level advocacy, and to identifying other resources and assigning specific responsibilities for doing the things that LAND could no longer do. Questions that were discussed included: Who else needs to be part of a strong targeted legal assistance system? What strategies can be used to persuade the private bar to really help and what is realistic to expect of private practitioners? What other options are there, e.g. lay advocates, volunteers? What is the appropriate role of the AG's office, the LSD and Aging Services Division, other non-legal aging service providers, etc.?
An ambitious plan was developed and the LSD agreed to take the lead in making sure the plan was implemented and everyone carried out their tasks. It was agreed that LAND would do community education/outreach directed at targeted populations, training on advocacy skills and substantive legal rights as permitted under the LSC restrictions, and handling of individual cases in areas where they are not restricted. Others such as the AG's office and members of the ND Bar with special interest in aging organized to take on activities that LAND could not do, e.g., impact work -- class actions, legislative advocacy, administrative reform efforts, etc. It was decided that the Director of LAND should not chair the Elder Rights Task Force, and two Co-Chairs took that responsibility. One is a County Social Services Board Director and the other an OAA Title III Project Director. Finally, although the odds against success were high, the Task Force agreed that there is no chance of success without trying, and they decided to develop a plan to go to the North Dakota Legislature for state funds for civil legal services to the poor, particularly the elderly poor.
TCSG has not been able to return to North Dakota to continue working with the Elder Rights Task Force. We do, however, maintain contact by phone; and we have learned that the North Dakota Bar Association led an effort to obtain State funds. Although no final action has been taken by the Legislature as of early-April 1997, it appears that there is a reasonable chance of success in obtaining some funding for civil legal services for the poor of North Dakota from increased filing fees in courts throughout the State.
While the options and resources in North Dakota are clearly limited, it provides an excellent example of how much can be accomplished on behalf of needy older persons when the aging and legal services networks recognize that they are dedicated to common goals and are committed to working together toward those goals for both younger and older persons.
C. Vermont
Vermont has a fairly small geographic area (9,615 sq. miles), a small population (579,000), and an average-sized aging population (12.2% of the population is projected to be aged 65+ in the Year 2000). Prior to recent changes, it had a statewide LSC program -- Vermont Legal Aid (VLA) -- which included a very strong, well established Senior Citizens Law Project (SCLP). VLA had 6 offices across the state, each of which had a SCLP component. In early 1995, VLA had 38 full- or part-time attorneys; because of reduced funding, however, it has had to cut staff by approximately 25%, and as of July 1996, it had 26 full- or part-time attorneys.
The aging network in Vermont includes five area agencies on aging all of whom fund the Senior Citizens Law Project, and the State Department of Aging and Disabilities (hereinafter Dept. of Aging) that has historically been a very strong advocate in the state and has worked closely with the Senior Citizens Law Project. A somewhat unique aspect of Vermont is the fact that the Legal Services Developer for the Dept. of Aging and the Director of the Senior Citizens Law Project have historically been unified, i.e. one person served in both capacities, and that person was located in VLA. This resulted in closer consultation between the aging and legal services networks than in many states, and has helped ensure that a strong "aging" voice is an integral part of VLA's planning, including in the VLA reorganization described below. In late 1996, the situation changed and the two positions were separated. However, the Developer is the same individual who previously served in the dual role. He has strong and well-established linkages with the aging and legal services networks throughout the state; and he is committed to continuing the tradition of a close working relationship between the two networks.
For a number of years prior to the recent LSC cuts and restrictions, VLA had been expanding its services and broadening its sources of funding to include significant amounts from the Older Americans Act, Interest on Lawyers' Trust Accounts (IOLTA), state government appropriations and Developmental Disabilities. Thus when the LSC cuts and restrictions did occur, only 30% of VLA's budget was LSC funds and this gave them options many other states did not have. The option they chose was to restructure the service system to include two separate, but coordinated, entities. One is Vermont Legal Aid which now receives no LSC funds and has the variety of other funding sources mentioned above, including Older Americans Act. Because it receives no LSC money, it is not limited by the restrictions and can continue to do high impact work such as class action litigation and legislative and administrative advocacy as well as individual casework on a wide range of issues.
The second entity is a new independent, non-profit corporation that applied for and now receives LSC funds, Legal Services Law Line of Vermont (Law Line). Because of the LSC restrictions and modest staffing, Law Line provides only limited assistance, i.e. telephone advice and self-help information. Law Line also manages and operates the Volunteer Lawyers Project -- the LSC-mandated pro bono private bar involvement program.
In an effort to facilitate client access and to make the most efficient use of all available legal services resources in the state, Vermont established an "800" number which serves as a central entry point for civil legal services to the poor. Vermont Legal Aid hosts the "800" number, and directs calls to the service provider that can most appropriately and efficiently meet callers' needs. Callers needing telephone advice and information are directed to Law Line. Many of the calls which cannot be resolved with brief advice by Law Line staff are handled by VLA attorneys. Others are directed, via Law Line and its Volunteer Lawyers Project, to private attorneys or to other social service agencies.
Following the creation of Law Line and the loss of LSC funds by VLA, Vermont Legal Aid underwent a significant reorganization of its remaining programs. Seven major program divisions were consolidated into three larger units. One of the three units is a new Elderly Law Unit (ELU), which contains three of the seven previous program divisions -- the Senior Citizens Law Project, the State Long-Term Care Ombudsman Program, and the Medicare Advocacy Project.
At the time of restructuring, the ELU Director and Developer positions were still unified. The Director/Developer was concerned that there were gaps in VLA's capacity because of the loss of LSC funds, and he worked with the state and area agencies and others to fill them. LSC funds had paid for approximately half of the previous Senior Citizen Law Project staff, and with the loss of those funds, the SCLP staff was cut from six to three full-time equivalents.
The Director/Developer used the difficulties of the loss of LSC funds and the re-configuration of the Elderly Law Unit as an opportunity to further strengthen the working relationship with the aging network and make the network an integral part of the planning process. He met several times with the area agencies as a group and worked regularly with each of them. They had particular concerns about the new "800" number that was to serve as the primary access point for older persons as well as for younger persons needing legal services across the entire state. One of their concerns is that such an intake system will miss many of the most vulnerable elderly who are to be targeted for services under the OAA -- e.g. nursing home or boarding home residents, non- or limited-English speaking, etc. -- because they do not have access to a private telephone, would have difficulty in articulating their problems and in understanding and following advice received by phone, etc. Another concern of the area agencies is that VLA, in managing the "800" number, may not direct sufficient numbers of cases to Law Line and thus may not make adequate use of its resources to expand the range of services available to older persons.
The Director/Developer worked with the area agencies to address these concerns and to ensure that the Law Line referral system results in a genuine expansion of services available to older persons, and does not cause difficulties or delays for vulnerable older persons trying to access services. The Director/ Developer's long history with the Senior Citizens Law Program greatly enhances his capacity here, for in designing the SCLP, he recognized early on that many of the most needy elderly are unlikely to recognize their need for legal services or be unable to access those services on their own. As a result, the SCLP always relied heavily on lay advocates employed by area agencies to do outreach and community education among targeted populations. Maintaining and integrating these non-lawyer advocates into the new intake system will be an important way of addressing the area agencies' present concerns.
The Director/Developer also used this opportunity to re-examine with the area agencies the range of cases and the current priorities for OAA funds, and asked whether there are certain things that could be better and more efficiently handled by Law Line. He worked jointly with the area agencies to create new resources to help fill gaps from the loss of LSC dollars. One such effort teams State and local bar groups with area agencies to operate pro bono legal clinics to assist older persons in certain areas where private bar members have expertise and experience, e.g. wills, probate, and consumer matters. The area agencies agreed to provide space, schedule appointments, and help recruit attorneys. Bar groups agreed to provide the attorneys on a pro-bono basis. The pro bono clinics were piloted in two of the five area agencies starting in the Fall of 1996.
As noted above, in late 1996 as the changes and new directions for Vermont Legal Aid were being finalized, the positions of Legal Services Developer and Elderly Law Unit Director were separated. The person who had been serving in the dual position went to the State Dept. of Aging as full-time Developer. He brought with him an understanding of the challenges presented by the changes, and a recognition that the challenges also presented opportunities.
As Developer, he continues to stress the importance of the aging network to legal services for the elderly, and maintains his commitment to working with the area agencies to further strengthen their support and involvement in legal services. In spite of past successes, he has an underlying concern that there is a natural temptation for legal services providers to react to reduced funding and staffing cuts by handling fewer cases, doing less impact work, and doing less to target the most vulnerable who are often the hardest clients to serve. And, he continues to believe that not allowing this to happen is one of the most important challenges confronting Vermont's aging and legal services networks today. Thus he is working with, and encouraging, the area agencies and attorneys to take a different approach -- one that is not simply reactive, but that begins with client needs, then looks at available resources, and then sets priorities to use the limited resources in ways that will have maximum impact on older persons who most need legal assistance and representation.
At the state level, the Developer is now working with others in the Dept. of Aging to ensure a strong commitment to maintaining a statewide priority for legal services for the elderly. Mechanisms for accomplishing this were carefully explored within the Dept. of Aging, and are now being discussed with, and support is being garnered from, the area agencies and legal providers. Vermont's plans include the following:
through State rules, to maintain legal services as a priority service in Vermont;
to establish state-wide criteria for use by area agencies in selecting legal services providers. The criteria are intended to assist AAAs to select the entity that is best able to provide targeted, cost-effective, high impact services to the most vulnerable elders and that makes the best use of all available resources to address legal needs of older persons. They are also intended to assure existing providers that they will not be forced to compete against low-priced, unskilled, competitive bidders;
to establish a "maintenance of effort" provision so that legal services is maintained as a priority in all areas of the State. The goal of this provision is to assure that support for legal services is not arbitrarily diminished; and if an area agency proposes to decrease its support, the agency will have to explain what has changed to warrant the decrease in priority service funding. The question of how to measure "maintenance of effort" (e.g. by units of service, numbers of cases, numbers of clients, funding level, etc.) has not been decided and the state and area agencies have chosen to set up a small sub-group to work on this; and
to establish a system and begin to collect outcome data from the legal services providers so that their statistics are more meaningful and more persuasive to Vermont's area agencies in terms of the impact the area agencies' investment in legal services is having on the lives and well being of particularly vulnerable older persons.
D. Washington
Washington has a large geographic area (71,302 sq. miles), a medium-sized population (5,497,000), and a slightly below-average sized aging population (11.1% is projected to be aged 65+ in the Year 2000). Prior to a recent reorganization, its legal services system consisted of three LSC programs: Evergreen Legal Services, Puget Sound Legal Assistance Foundation and Spokane Legal Services Center. Evergreen and Puget Sound both received OAA legal services funds and had strong and dedicated elder law components each with attorneys with special expertise and a portion of their time committed to legal services for the elderly. Like Vermont, both Evergreen and Puget Sound placed high value on targeting and impact work for the elderly including legislative and administrative advocacy, and worked closely with the aging network.
The aging network in Washington includes thirteen area agencies (eleven plus two tribal) on aging, all of which have a long history of support for legal services. The state agency on aging, Aging & Adult Services, WA Dept. of Social and Health Services (hereinafter Aging Services), is recognized nationally for its strong and effective advocacy work, and has been a strong supporter of legal services as a crucial component of the State's elder rights advocacy system.
Like Vermont, for a number of years prior to the recent LSC cuts and restrictions, the Washington LSC programs had worked cooperatively to expand services and broaden funding sources. By 1995, the diversified funding mix included Older Americans Act, Interest on Lawyers' Trust Accounts (IOLTA), State Court Filing Fees, LAW Fund, United Way and a number of other local funding sources. Thus they also had some options in responding to the LSC cuts and restrictions. When Washington began its LSC review and restructuring in 1995, 56% of the combined budget of the three programs consisted of LSC funds ($6.2 million of $11.8 million). Following the FY'96 LSC cuts, 41% was LSC.
By 1995, Washington was singularly well positioned to undertake a comprehensive review of the civil legal services delivery system. The Washington "Access to Justice Network" (the Network) had diversified its funding base and constructed a strong infrastructure that included core LSC-funded providers, local volunteer lawyer programs, specialty legal services providers, and effective clinical law programs. In addition, the Network had come together to develop an integrated private fundraising capacity (through the independent LAW Fund). Finally, the Network had, in 1994, persuaded the Washington Supreme Court to establish an Access to Justice Board (ATJ Board) -- the first of its kind in the nation -- to coordinate all aspects of Washington's civil legal services delivery system. Thus, when LSC called for a state planning process in July 1995, the Supreme Court's Access to Justice Board was prepared and ready to take responsibility for it.
Acting at the request of the three LSC-funded programs, the ATJ Board initiated a comprehensive and inclusive planning process. Its purpose was to study the existing legal services system and resources, including the prospective LSC restrictions, and make recommendations for changes to the system that would ensure equal access to the civil justice system for low and moderate income people. In deciding on a recommended plan, the ATJ Board first moved to articulate the mission and values that must guide an integrated civil legal services delivery system, and the corresponding core capacities that must be maintained in order to serve this mission and values. This was presented in the document Visualizing Justice: Hallmarks of an Effective Statewide Civil Legal Services Delivery System. The ATJ Board's Hallmarks spoke of a service delivery system which maintained the capacity to provide a full range of services in a variety of legal forums for low-income clients throughout the State. When considered against the then-proposed LSC restrictions, the conflict with the mission was all too apparent. The ATJ Board found that --
These LSC restrictions will limit the nature, substance and scope of client representation, as well as who can receive legal services, in ways that are fundamentally inconsistent with the values and core capacities identified [by the ATJ Board]. They will interfere with professional decision making ..., undermine the ability of legal services attorneys to effectively represent their clients, and deny to legal services clients attorneys who can provide a full range of legal representation. ... Substantial relevant client representation will continue to be allowed under new LSC guidelines, and LSC funds should continue to be part of the overall effort to fund equal justice activities in our state. But, application of these LSC restrictions to all funds renders the current LSC-funded programs incapable of providing a full range of client services ...; and this is the impetus to reconfigure the current delivery system.
The plan that emerged in November 1995 recommended: (1) merging the three LSC programs into one full service, non-LSC-funded provider; (2) encouraging the establishment of a new program to competitively bid for LSC funds; and (3) maintaining support for and integrating local pro bono programs into the reconfigured delivery system. These recommendations were embraced by Washington's Access to Justice Network. Effective January 1, 1996, the three LSC programs merged to form a new statewide legal services program, Columbia Legal Services (CLS). The programs and their successor, CLS, declined to bid for LSC funds. Simultaneously, a new, wholly independent legal services program, the Northwest Justice Project, was organized and successfully bid for 1996 and 1997 LSC funding. Finally, contractual arrangements were developed to ensure continuity of funding for Washington's 23 local volunteer attorney programs to maintain and enhance their ability to fill some of the gaps caused by a 35% loss in LSC funding and the one-time costs associated with reconfiguring the State's Equal Justice Delivery System.
The new Columbia Legal Services is dedicated to providing a full range of civil legal services to all segments of the poverty population, through representation of individual clients, multiple clients in class actions, or before legislative or administrative bodies. It continues to receive the Older Americans Act funds that formerly went to Evergreen and Puget Sound as well as the IOLTA and other non-LSC funds. In early 1996, the loss of $6.2 million in LSC funding forced the closure of offices in six locations, leaving only seven offices in five geographic regions over the entire state. In partnership with Washington's Equal Justice Coalition, CLS is undertaking intensive efforts to develop and expand funding and other resources to assist in provision of services, e.g. state and local funding, volunteer attorney programs and law school clinics, and is working hard to ensure maximum effective use of scarce resources. This includes partnering, where appropriate, with the Northwest Justice program.
The new Northwest Justice Project (NJP) was first awarded LSC funds in 1996. Its goal is to provide high quality services to as many eligible clients as possible (given limited funding and the LSC restrictions) directly or through referral of clients to other providers. NJP is developing an innovative and centralized client intake, brief service and referral program through a toll-free hotline system. By January 1997, this system was expected to be available to low income clients statewide, with referrals being made to a wide variety of providers, including the seven CLS offices, 23 volunteer attorney programs, and many others. The system is staffed by attorneys and paralegals who answer basic legal questions and provide brief counseling. Callers to the toll-free number reach a greeting in English and Spanish with instructions for reaching an operator who can arrange AT&T Language Line interpreters for other languages. Once the caller is connected with an attorney or paralegal, an assessment is made as to whether the caller needs a face to face interview, and if so, a referral is made to the appropriate legal services provider.
In order to involve the aging network as the restructuring evolved and as questions were raised by the network about its impact on legal services to the elderly, Columbia Legal Services and the state Legal Services Developer organized a two-day meeting in April 1996. As in Oklahoma and North Dakota, the Co-Directors of TCSG facilitated that meeting. The meeting was based on the premise that Washington had an exemplary delivery system for older persons that had consistently taken on high impact issues and successfully reached the most needy elderly, and was now challenged to maintain its targeted, high impact delivery system in the face of unavoidable changes and decreased resources. The meeting's purpose was to bring together those who are key to re-shaping and rebuilding the system in order to strategize about how best to move forward and how to ensure ongoing communication and collaboration as the new system moves forward.
Participants included representatives of: Columbia and Northwest Justice, other Older Americans Act legal providers, the private bar, Attorney General, area agencies, the state agency and others. The session began by asking each area agency to describe outstanding issues and concerns they had and wanted to address. Major concerns were with the reductions in legal services offices and staff which made them less local and less accessible. They had serious concerns about how Columbia's OAA services could be effectively targeted to the most vulnerable if all intake depended on those older persons initiating and negotiating calls through a technologically advanced telephone system, and they wanted to be sure there was a system for their case managers, etc. to have direct access to the Columbia offices to get needed help locally. They had concerns about the telephone intake system doing a means test for LSC eligibility and possibly screening out OAA clients for whom a means test is not permitted. There was discussion about how to deal with these concerns and still maintain the efficient use of very limited resources that the legal services programs were trying to achieve. There was also discussion of Columbia's need for more efficient ways to administer OAA grants, e.g. uniformity among area agencies in contracting, reporting requirements, and billing processes, and the need to review the types and quantity of referrals to legal services by the aging network.
The group found the discussion to be a valuable exchange of ideas and information, and decided that what was most needed was continuing discussion -- i.e., a system for regular communication between the aging and legal services networks during the period of transition--and the group asked the state Legal Services Developer to take the lead in organizing it. They suggested it might be done through regular conference calls initiated by the state office on aging and a regularly issued bulletin to keep area agencies updated. They agreed that the following were needed: (1) more discussion about outreach and targeting and the roles and responsibilities of both legal services and the aging network in that outreach and targeting; (2) a flow chart and written description of the overall new system specific to services for the elderly to go to all area agencies; (3) local protocols developed for the hotline/intake system and involvement of area agencies in their development; (4) a clear system for serving older persons who cannot effectively use the hotline/intake system; (5) an efficient and meaningful statewide reporting system; (6) a mechanism for Columbia and the aging network to jointly and periodically review priority issues and populations that need to be targeted for legal services; (7) more joint efforts to expand resources, e.g. the Attorney General is exploring how that office should be working better on aging issues, including legal services; and (8) greater use of law schools and law students. The participants wanted to form a small working group consisting of Columbia Legal Services, Northwest Justice Project, a pro-bono representative, 1-2 area agencies and the state agency to meet every couple of months to discuss how the legal programs are operating and to identify problems and misunderstandings before they become serious. Finally they decided to contact the Access to Justice Board, through the Legal Services Developer, to see if an aging advocate could be added to that important body.
Against the compressed time frame necessitated by federal cuts and imposition of a broad range of new restrictions on client representation, Washington's access to justice network labored long and hard to create and maintain a structure to meet the highest priority needs of vulnerable and hard-to-serve client populations, including the elderly. Both the aging and legal services networks recognize that while great strides have been taken, it will require patience, perseverance, and, most importantly, a sense of common mission and commitment, for the promise of Washington's experiment to be realized -- for elders as well as others for whom access to the justice system is critical.
As follow-up to the April 1996 meeting, Columbia Legal Services and the area agencies have continued to work together to reconfigure their system to best serve older and younger persons. They have worked cooperatively to try to reduce administrative tasks for CLS by making contracts and rates more uniform among AAAs across the state. The area agencies have made particular efforts to understand the need for CLS to downsize and close some offices because of decreased funding. Together they have tried to plan the downsizing to minimize the effect on older persons most in need of assistance.
Most recently, the aging and legal services networks joined forces in working very successfully for increased State funds for civil legal services for the poor and to expand the types of cases that can be handled. Legal services had been receiving an annual state appropriation of $2.4 million since 1992, though cases that could be handled were limited to public assistance, family law, public housing and unemployment compensation. During the 1995-96 period, federal budget cuts and increases in the poverty population severely reduced the capacity of the civil justice system to meet needs. In response, Washington's senior advocates worked with others to have additional money appropriated, and to add cases that older as well as younger persons need help with such as housing and long-term care. Together they achieved an additional $2 million appropriation for the 97-99 biennium, and unanimous passage of ESHB 2276 that substantially expands the areas of client representation to include the full range of housing cases, guardianship, elder abuse, consumer fraud and enforcement of rights of residents in long-term care facilities. It also formally recognizes in the intent section, the important role the state plays in providing legal services to the poor; and creates a joint legislative oversight committee which affords an opportunity for the Senior Lobby to provide information to key legislators, staff and the legislative leadership on matters related to legal problems of the elderly and needs of Washington's access to justice system.
The success thus far and the continuing dialogue among the aging network, legal services community, and Washington's emerging integrated Access to Justice Network holds great promise at a time of unprecedented challenge.
IV. Conclusion
If meaningful access to justice by the most needy older persons is to be protected as we continue to move through these times of decreasing legal services resources and evolving legal services delivery systems, it is more crucial than ever that the legal services and aging networks work together. Possibly a medical metaphor is in order, given the traumatic nature of the changes we are experiencing. In cases of medical crisis, triage -- which is a system dependent on the working together of all the medical disciplines -- is used to determine, among the scarce resources available, the priority and allocation of services needed to save the patient. Guiding all the efforts is the Hippocratic oath which, loosely translated, states, whatever you do, don't make it worse. Today, with the LSC cuts and restrictions which Congress has imposed, great care must be taken to assure that determinations about how to allocate scarce resources for the general LSC client population also preserve access to justice for the most needy older persons.
As in triage, all the key personnel need to be involved in the planning process. In the examples discussed above, clearly the most successful results have been achieved when the legal services and aging networks (including clients) have jointly examined and planned how to reconfigure the legal services systems serving the poor and the elderly. When such joint efforts have been initiated at the front-end of the planning process, misunderstandings and disagreements have been minimized. Further, methods of targeting services to the most vulnerable elderly has had priority attention. Among the most important results of these successful joint planning efforts has been the development of alternative, non-LSC resources that have allowed for the preservation of impact advocacy as a key component of legal services for the most vulnerable elderly.
And, as Oklahoma has demonstrated, joint planning and advocacy efforts of the aging and legal services networks can produce new financial resources for poor persons, both younger and older. Working alone, neither group would have been successful. Working together produced a bold new beginning.
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