|Vol. 6, Nos. 3 & 4|| |
On Delivery of Legal Assistance to Older Persons
1992 Amendments to
the Older Americans Act, Part One: Focus on Elder Rights Advocacy in New
Sec. 2 FINDINGS AND PURPOSES
(a) FINDINGS. -- The Congress finds that --
(1) there is a need to consolidate and expand State responsibility for the development . . . of statewide programs and services directed toward ensuring that older individuals have access to, and assistance in securing and maintaining benefits and rights;
. . .
(b) PURPOSES. -- The purposes of this Act are to --
. . .
(2) require States to undertake a comprehensive approach in developing and maintaining elder rights programs;
. . .
(5) require States to give priority to protecting the rights of, and securing and maintaining benefits and services for, older individuals with the greatest economic or social need; . . .
Thus began Senate Bill 243 (S 243), the proposed Older Americans Act Amendments of 1991 -- the year in which the Act was to have been reauthorized. Because a highly controversial amendment regarding the "Social Security earnings test" was added to S 243, no amendments were passed that year. One year later, however, Congress enacted the 1992 Amendments (S 3008) which are very similar to those proposed in 1991, and are solidly based in these same "Findings and Purposes."
A primary focus of these most recent Older Americans Act (OAA or the Act) Amendments is the development of comprehensive elder rights advocacy systems to protect and enhance essential rights and benefits of older persons. One of their major purposes is to establish State leadership responsibility for developing such systems and for ensuring that those systems are geared particularly to those who are most socially and economically vulnerable. Indeed, Congress created and adopted a new "Elder Rights" Title to achieve that purpose.
In many ways, Congress' emphasis on advocacy and on protecting rights and entitlements in the '92 Amendments recaptures the spirit and purpose of the Act as originally passed in 1965.
To place the '92 Amendments in context, we begin this article by briefly tracing the history of the Act: circumstances surrounding its initial passage, its evolution in light of changing circumstances, and its renewed focus in the most recent Amendments. We then turn to what we believe to be one of the most significant developments in the Act since its original passage -- Title VII, the Vulnerable Elder Rights Protection Title -- and examine this new Title in some depth.
Historic Evolution of the OAA
When the OAA was enacted in 1965, the older population had a tremendous need for strong advocacy. For example:
In response to this dismal picture, Congress created the Older Americans Act of 1965, and drafted a Declaration of Objectives for it (Title I) that reads very much like an elder bill of rights. In setting forth the Act's objectives, Congress declared:
. . . in keeping with the traditional American concept of the inherent dignity of the individual in our democratic society, the older people of our nation are entitled to, and it is the joint and several duty and responsibility of [federal, state, local and tribal governments] to assist our older people to secure equal opportunity to the full and free enjoyment of . . .
Congress continued the Declaration of Objectives by listing a number of specific rights and benefits to which, it felt, older persons should be entitled and which government, at all levels, should work to secure and protect. These objectives include: adequate income; the best possible health care; suitable housing; non-discrimination; and autonomy and choice. Clearly the achievement of these objectives would require strong and vigorous advocacy.
While the needs of older persons were great in 1965, society was ill-equipped to address them. Very little research had been done on specific problems and needs; very few universities or para- professional programs offered specialized training; and we had very little experience in operating service programs specially geared to older persons. Thus, the original OAA made funding available only for training, research, and demonstration projects. It was not intended as an ongoing source of service funds. The idea was that after a demonstration program had been set up and proven itself, federal money could be phased out, and state and local funds would be found to continue it.
Over time, both the profile of the older population and the Act have evolved substantially. For instance, some statistics now support a common perception that, on average, the older population is relatively well off. The focus of the Act has shifted away from advocacy and become more diffuse over the years, with an ever increasing emphasis on service delivery. The most significant shift was in 1973 when the network of state and area agencies was created, and area agencies became an ongoing source of Title III service funds. The scope of the Act and its Title III services has since continued to expand, causing some to describe the Act as a "Christmas Tree" on which, at each reauthorization, various interest groups, through Members of Congress, hang their own special ornament.
Refocusing the OAA in 1992
In the '92 Amendments, Congress appears to have recognized how diffuse the Act had become, and refocused it accordingly. Congress also recognized that while the profile of the older population has improved markedly since 1965, there remain many vulnerable older persons who suffer serious deprivation, who are denied basic rights and benefits, and who need strong and vigorous advocacy on their behalf.
For example: although the official poverty rate for those over age 65 has fallen from 33% to 12%, a 1987 report by the Villers Foundation tells us that this figure is misleading for several reasons. First, the official poverty line is different for the elderly than for other age groups; and if consistent criteria were applied, poverty would increase substantially. Second, the high poverty rate among children skews statistics. The Report states that poverty is more widespread among the elderly than any other adult age group. Poverty is also extraordinarily pervasive among certain sub-populations: older women, minorities, the very old, and people living alone. One of the most striking examples of this is that almost two-thirds of black women aged 85 or older who live alone live in poverty. Many of these women are unaware of, or have been denied, essential benefits such as SSI, Medicaid and QMB. Furthermore, although Medicare and Medicaid provide some protection, the out-of-pocket costs of older persons for health care are much greater than for other age groups. And, persons in long-term care settings continue to have significant needs with respect to quality of care and basic rights and liberties.
Thus, in crafting the '92 Amendments, Congress revitalized the original objectives, and refocused the Act on its original advocacy mission. Throughout the Amendments, Congress emphasized and strengthened provisions to target the most socially and economically vulnerable, particularly low-income, minority elders. This new emphasis includes requirements that: (1) each State's intrastate funding formula take into account the distribution of older persons with greatest economic and social need; (2) the Assistant Secretary/ Commissioner on Aging (hereafter Assistant Secretary) approve each State's funding formula; and (3) State and area agencies set specific objectives for serving low-income minority older persons, and program development, advocacy and outreach efforts be focused on them.
Title VII: A Mandate for Elder Rights Advocacy
Perhaps most important to refocusing the Act and to reinforcing the importance of targeting the most socially and economically vulnerable, was the creation of an entire, new title -- Title VII, Vulnerable Elder Rights Protection Activities. This new Title is focused exclusively on the advocacy responsibility of states to protect and enhance rights, benefits, and independence of the nation's most vulnerable elders. In fact, in very early discussions between TCSG and Congressional staff, serious consideration was given to naming it the "Advocacy" Title, rather than the Elder Rights Title.
The Senate Committee Report on the original 1991 Bill (S 243) gives the following explanation of Congress' intent with respect to Title VII.
In recognition of the unique role of the aging network in advocating on behalf of the nation's elderly, particularly those whose rights are at risk or have been violated, the bill will consolidate and expand a number of the advocacy functions . . . into a new Title VII. . .
By creating this title, the Committee bill establishes the clear expectation that State Units on Aging will provide firm leadership and will work in collaboration with area agencies on aging and others . . . to assure that the rights of older individuals. . . [are] protected . . .
. . .
. . . It is the Committee's expectation that improved and new programs incorporated or established under this title will result in more focused, better coordinated, and more effective advocacy activities of State Units on Aging and the States' aging networks.
The purpose of Title VII is not to create new programs. Rather, it is to bring together and strengthen four existing advocacy programs: Ombudsman; Abuse Prevention; Elder Rights/Legal Assistance Development; and Insurance/Benefits Counseling. What makes Title VII new, important and potentially so powerful, is highlighting these four key programs in one Title; and directing State agencies, not simply to coordinate them, but to integrate their efforts and marshall their combined force on behalf of vulnerable older persons.
The genious of Title VII is that it recognizes the dichotomy which is required if elder rights advocacy is to be most powerful, i.e. it must be both broadly based and yet very focused. Thus, through the State elder rights planning process, Title VII seeks to stimulate the growth of powerful statewide elder rights advocacy and to concentrate those advocacy efforts on issues of the highest priority for the most vulnerable elders. At the same time, through the four individual programs, it seeks to build focused advocacy in specific areas such as nursing home resident rights and elder abuse.
In TCSG's view, Title VII's greatest value is that it refocuses us on the true mission of the Older Americans Act. It pushes all of us to look beyond "units of service provided" and "numbers of clients served." It pushes us, instead, to examine the meaning, goals, and value of what we are doing, to look at broad issues and to assess the impact our advocacy efforts have on those issues. It pushes State agencies and the entire aging network to orchestrate 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.
We turn now to an examination of the major elements of this new Title.
Structure of Title VII
Title VII is divided into three subtitles:
Subtitle B is very short. No funds have been appropriated for its implementation. It authorizes -- from grants through AoA's Associate Commissioner on American Indian, Alaskan Native, and Native Hawaiian Aging -- Vulnerable Elder Rights Protection Activities for eligible Indian tribes or entities serving Native Americans.
Subtitle C is equally short. It (1) sets forth several definitions on elder rights; (2) calls on the Assistant Secretary to provide TA and training on programs established under Title VII; and (3) allows access to records for audits by the Assistant Secretary, Comptroller General or their authorized representative, while prohibiting state and area agencies from requesting information from providers that is not pertinent to services furnished, or payment made, under Title VII.
Structure of Subtitle A
Subtitle A -- State Provisions -- is divided into five Chapters, consisting of one general chapter and four program chapters:
Chapter 1: General State Provisions
Chapter 1 of Subtitle A, General State Provisions, describes authori- zation levels and allotments to states. Most importantly, it calls on states to develop, as part of their State Plan, an Elder Rights Plan.Funding Authorized
Chapter 1 begins by authorizing funding for each of the four programs in Chapters 2-5. It authorized specific dollar amounts for FY 1992, with "such sums as may be necessary" for FYs 1993, 1994, and 1995. FY '92 authorization levels are: $40 million for State Long-Term Care Ombudsman Programs (SLTCOP); $15 million for Prevention of Elder Abuse; $10 million for State Elder Rights and Legal Assistance Development; and $15 million for Outreach, Counseling, and Assistance Programs.
Limited Funds Appropriated
Thus far, appropriations for Title VII have been very limited as compared to authorized levels. Given the year-long delay in getting the OAA reauthorized, however, this is somewhat understandable. The '92 Amendments and Title VII were not enacted until the final day of FY '92, meaning FY '92 appropriations were a moot point. Also, by the time the '92 Amendments were enacted, FY '93 monies had already been appropriated. Therefore no monies were specifically appropriated for Title VII. Chapters 2 (SLTCOP) and 3 (Abuse Prevention) of Title VII, however, had had FY '93 funds appropriated under Title III. After enactment, those funds were shifted to Title VII ($4,338,886 for ombudsman and $3,861,738 for abuse prevention).
The first time that Congress considered appropriations specifically for the four Title VII program chapters was for FY '94. Three of the four chapters received an appropriation. The amounts appropriated are slightly higher than FY '93, but still fall far short of levels authorized for FY '92. The FY '94 appropriated amounts are:
Unfortunately, nothing was appropriated for the very important new Chapter 4 (State Elder Rights/Legal Assistance Development) activities for FY '94, though $10 million had been authorized.
Fund Allotments to States and Minimums for SLTCOP and Abuse Prevention
Of the funds appropriated for Title VII, the Assistant Secretary is to allot to each State an amount that bears the same ratio to the total funds as the older population in the State bears to the total older population; but no state or territory may be allotted less than an established minimum. Chapter 1 of Title VII also specifies minimum allotments to States for the SLTCOP and elder abuse prevention programs, i.e. no State shall be allotted less than the amount allotted in FY '91 under Title III for the SLTCOP and for abuse prevention.
Reallotment to Other States and Withholding/Disbursement to Other Entities
Under certain circumstances, Chapter 1 requires the Assistant Secretary to "reallot" and also to "withhold and re-disburse" Title VII funds. If he determines that any amount allotted to a State for Chapters 2, 3, 4 and/or 5 will not be used to carry out the intended purpose, he shall reallot it to another state. Also, if he finds that any State agency has failed to carry out Title VII in accordance with the State/Elder Rights Plan "assurances and description" described below on pages 10-11, he shall withhold the State's allotment and shall disburse it directly to any public or nonprofit private agency, or political subdivision of the State submitting an approved Elder Rights Plan containing the required "assurances and description."
This means that advocates for elders in all states have an important responsibility to work with their State Agency in developing and implementing their Elder Rights Plan and programs. But they also have a responsibility -- if their State agency does not use Chapter 2, 3, 4, or 5 program funds for their intended purpose, or if the State agency fails to meet the "assurances" and implementation plan set forth to AoA in the State/Elder Rights Plan -- to make this known to the Assistant Secretary, with the potential consequence that funds may be reallotted to another State, or withheld from the State agency and disbursed to another agency in the State as provided in Chapter 1.
Fund Distribution from States to AAAs Not Required
Unlike Title III, there is no requirement that States allocate their allotted Title VII funds to their AAAs. For Chapters 2, 3, and 4 -- ombudsman, abuse prevention, and elder rights/legal assistance development -- Chapter 1 does not indicate that funds should flow to AAAs. Title VII funds may remain at the state level. Because Chapter 1 does not forbid distribution, however, states have the option of awarding funds to their AAAs and/or other grantees.
With respect to Chapter 5 funds for Outreach, Counseling, and Assistance, there is a bit of confusion. (Note: We discuss this further in the later section of the article devoted to Chapter 5.) Chapter 1 specifies that state agencies must assure in their Elder Rights/State Plan that they will make Chapter 5 funds available to "eligible area agencies." This Chapter 1 requirement, however, is directly contradicted in Chapter 5 itself. Because the legislative history clearly supports the provisions in Chapter 5 and not those in Chapter 1, it is possible that this confusion can be clarified in regulation. The Joint Explanatory Statement of the Committees of Jurisdiction - Older Americans Act Amendments of 1992 states:
. . . the current Title III requirements governing the allocation of funds within states are not applicable to funds made available under any part of Title VII nor are area agencies the only entitles eligible to receive grants from states under any part of Title VII. In addition, states may use funds available under Title VII to directly carry out vulnerable elder rights protection activities.Relevant Title III Funding Requirements for Legal Assistance and SLTCOP
It should also be noted here that Title III contains some important funding requirements of relevance to Title VII programs. First, with respect to legal assistance, the funding of local legal assistance providers remains with the AAAs. Title III retains the requirement that, absent a waiver, all AAAs must fund legal assistance, as a priority service, at no less than a level the state has determined to be an "adequate proportion" of IIIB funds. Title VII does not affect this. The new Title VII requirements and responsibilities for development of legal assistance and elder rights advocacy are at the state level.
Second, with respect to the SLTCOP, Title III contains maintenance of effort requirements for both State and area agencies. Section 306 requires area plans to assure that AAAs, in carrying out the SLTCOP, "will expend not less than" the total amount spent by the AAA in FY '91. Section 307 requires state plans to assure that the State agency will expend not less than the total amount expended in FY '91.
Elder Rights Plan as Part of State Plan
TCSG believes that the most significant provision in Chapter 1 is Section 705. This section directs every State -- in order to be eligible to receive funds for any of the four Title VII programs -- to develop and implement an Elder Rights Plan as part of its State Plan, though it does not label it as such. Throughout the legislative history, it is clear that a very important purpose for adding Title VII was to require states to take a comprehensive approach to elder rights advocacy, and to give priority to rights of the most socially and economically vulnerable older persons. In TCSG's opinion, such a comprehensive approach and such targeting cannot be achieved without careful and strategic planning and concerted implementation efforts. The requirement for an Elder Rights Plan is also found in Title III; it must be part of the State Plan in order for a State to be eligible for its Title III Allotment. The requirement for Elder Rights planning and implementation is not linked to funding. It must be done; and its purpose is to shift the focus of state agencies toward advocacy. It does not necessarily mean doing more. But for many states it means taking a different approach.
Although Chapter 1 provides some guidance, it does not clearly describe an Elder Rights Plan. This vagueness has left many asking what one looks like and how states should proceed to develop and implement one. As we await regulations, it falls to the "laboratory" of the states to devise their own processes and plans.
Given the clarity of Congressional intent, the Act's relatively open-ended description provides tremendous opportunity. At the same time, however, there is very real danger that some states will devote limited attention or resources to it. Thus the Plan will mean little more than additional pieces of paper in their files. The challenge for the states is to devise an action plan that does indeed protect and enhance rights and benefits, not just at an individual level, but also at a systems level.
TCSG's analysis of what Chapter 1 does require with respect to Elder Rights Plans is as follows. The State (1) must provide seven assurances which are set forth in Chapter 1; and (2) must describe an action plan/advocacy agenda for carrying out Title VII and the assurances. The seven assurances -- not in the order that they appear in the Act, but rather in our view of their importance -- are:
The eighth requirement is for the actual plan, i.e., the State must describe its plan of action or advocacy agenda.
In TCSG's opinion, how a state approaches two of the seven assurances will be key to whether its Elder Rights Plan is simply a paper plan or whether it is a strategic, meaningful, action plan that will have real impact. The first is that the state, in consultation with AAAs, will identify and prioritize statewide activities aimed at securing and maintaining benefits and rights. This assurance does not speak to any one of the four programs within Title VII, but speaks broadly to all of them. It requires states, with their AAAs, to think and plan holistically for elder rights advocacy. Further, rather than having a laundry list of issues they want to address, it requires them to prioritize the most critical issues and plan specific activities that will address those priority issues. The second is that the state will obtain the views of older persons, AAAs, and others, on Title VII programs and activities. This, we feel, should be closely linked to the priority setting process and should be used by the states not only to obtain the views of others, but to get their "buy-in" and commitment to pursuing the action plan that is developed.
As indicated, TCSG feels the Elder Rights Plan is one of the most significant provisions and one of the real opportunities provided by Title VII. We believe every state should have developed one even if there had been no Title VII appropriations. But with FY '94 Appropriations having been made for three of the four Title VII programs, the Act requires all states to have an Elder Rights Plan in place in order to be eligible for either Title VII or Title III funds.
Based on our experience working with several states, we strongly recommend that every state -- with area agencies, legal providers, ombudsmen, abuse/APS workers, older persons, etc. -- seize the opportunity to examine the most important elder rights issues in their state, prioritize those issues that need immediate and concerted attention, and develop specific goals and related activities for pursuing them. It is our feeling that a strategically planned Elder Rights Agenda that brings together the combined force of key advocates from across the state to work on elder rights issues is the essence and the excitement of Title VII.
Requirement Re: Confidentiality
A final State Plan/Elder Rights Plan requirement in Chapter 1 deals with confidentiality. It reiterates and reinforces language that existed previously in Title III, and is retained there for both State agencies and area agencies The Title VII language states that "Neither a State, nor a State agency, may require any provider of legal assistance under this subtitle to reveal any information that is protected by the attorney-client privilege." While the inclusion of this language in Title VII is somewhat confusing because Title VII funds are not for funding local providers of legal assistance, it is a valuable reinforcement of the vital importance of confidentiality in the relationships of legal providers with their clients.
It should be noted here that the legislative history from the 1987 Amendments makes it clear what information Congress intends to protect in using the phrase "information protected by attorney-client privilege." It includes not only all information in client files, but also any information that would reveal the identity of clients. Congress was concerned that older persons might be dissuaded from seeking legal assistance if they thought the fact that they sought help would be known outside the legal provider's office. Congress explained:
The Committee's intent in including the new confidentiality provisions is to clarify that names, addresses and telephone numbers of clients served with Older Americans Act funds will remain privileged information. . . . Many older individuals might be hesitant to ask for the legal advice and counsel they need if they thought others would have access to their identifying information. This assurance of confidentiality makes it easier for older persons to seek the assistance they need to resolve their legal problems, and makes it easier for legal assistance providers to serve them in good faith.Outreach Demonstration Programs Allowed
The final section of Chapter 1 deals with Outreach Demonstration Programs. It allows States (i.e., "each State may . . .") to use Title IIIB [§304(d)(1)] funds for at least one outreach demonstration project by one or more area agencies with a high proportion of older persons in economic need. The purpose of the programs is to do outreach on eligibility for, and benefits available from, SSI, Medicaid and Food Stamps; and they must be coordinated with State and local entities that administer these benefits.
Several things are somewhat confusing to TCSG about this provision. First, the use of the word "may" here in Title VII appears to conflict with language in the referenced section of Title III which deals with allotment of IIIB funds to States. Section 304(d)(1) makes an outreach demonstration mandatory, not optional. It states:
(C) not less than $150,000 and not more than 4% of the amount allotted to the State for carrying out part B shall be available for conducting outreach demonstration projects under section 706.
A second source of confusion is that the Chapter 1 Outreach Demonstration Program discussion in Title VII makes no mention of the Outreach, Counseling and Assistance Programs that States are to establish under Chapter 5. It would seem that if a State undertakes both efforts, the two need to be carefully coordinated to avoid duplication of effort, and so that expertise and resources can be shared. When proposed regulations are issued, we should look to them for clarification on both points.
Introduction to Chapters 2-5
Following Chapter 1 of Subtitle A, there are four program chapters: ombudsman; abuse prevention; legal development; and outreach and assistance. Below we examine each of the four, though not in the order they appear in the Act.
Given that the essential core around which any effective elder rights protection system must revolve is legal advocacy, we begin our discussion with Chapter 4 -- State Elder Rights and Legal Assistance Development Program. We also choose to begin with Chapter 4 because, with the exception of the Elder Rights Plan section of Chapter 1, it is the only chapter of Title VII that actually discusses elder rights holistically. It alone delineates the broad responsibility of the State agency to develop a comprehensive, statewide, elder rights advocacy system envisioned by Congress when it created Title VII.
The other three Chapters (2, 3 and 5) describe three distinct programs: ombudsman, abuse prevention, and insurance/benefits counseling. They do not, however, describe the programs as pieces of a comprehensive elder rights system, though they do require coordination among the programs. The lack of a holistic approach in these three chapters may be explained by the fact that a fair amount of the language describing the ombudsman and abuse prevention programs existed prior to reauthorization, in Title III -- where they were not linked under an Elder Rights umbrella. Some of that language was simply moved to Title VII and was not rewritten to reflect Title VII's comprehensive approach. Likewise, a portion of the insurance/ benefits counseling language also pre-existed in Title III, and was moved under the Title VII umbrella in the '92 Amendments. Chapter 4, on the other hand, is totally new language, conceptualized and written specifically for the Elder Rights Title.
Chapter 4--Elder Rights and Legal Assistance Development Program
Chapter 4 sets forth the notion of a statewide, comprehensive advocacy system to protect and promote essential rights and benefits of vulnerable older persons, and calls on states to take substantial leadership in developing such a system. Also, for the first time in the Act's history, it specifically requires every state to have a legal assistance developer, and anticipates the developer will be a major player in the elder rights advocacy system.
Under Title III, State agencies have always been required to serve as "effective and visible advocate[s]" for older persons. But with little direction in the Act on what this entails, advocacy initiatives have been minimal in many states. Now, Chapter 4 sets forth, with some specificity, what States must do to be effective advocates themselves and to establish and maintain effective advocacy systems.
In explaining Chapter 4 of Title VII, the Senate Report on the proposed 1991 OAA Amendments states:
The Committee believes that the Aging Network, through the statewide leadership of State agencies on aging have crucial roles to play in promoting and protecting the rights of older individuals, particularly those who are vulnerable due to such factors as their economic status, frailty including dementias, and lack of knowledge about rights and avenues for redress of grievances. . . . the Committee expects that States will provide leadership in assuring that state and local systems . . . are responsive and effective in meeting the needs of elders and in protecting their rights. . . . The Committee compliments state agencies on aging for their commitment to providing such services through legal services developers . . . [and] expects that States will build upon and enhance those efforts under this program. In recognition of the unique nature of legal assistance services, the Committee emphasizes the importance of States working closely with area agencies on aging and legal assistance providers. . . . It is the Committee's intent that such activities will increase access by older individuals to legal assistance and other advocacy and elder rights services.
Establishment of the Program and Its Mission
Chapter 4 begins by establishing an overall mission for the States. It provides that, in order to be eligible for funds appropriated, the State agency shall "establish a program" to improve the "quality and quantity of legal and advocacy assistance as a means for ensuring a comprehensive elder rights system." It goes on to define the broad goals of such a program by calling on States to coordinate and assist AAAs and others to aid older persons in --
Functions of the State Agency
Chapter 4 then specifies nine functions the State agency is to undertake in working toward a comprehensive elder rights system. Enumeration of State responsibilities comprises the bulk of Chapter 4.
1. Focal Point for Advocacy Elder Rights
First, it requires state agencies to establish a "focal point" for policy review, analysis, and State-level advocacy on elder rights issues; and it lists particular issues for consideration by states:
While this first function is certainly essential, TCSG has several questions about it. One is about the use of the term "focal point." It is defined in the Act as "a facility established to encourage the maximum collocation and coordination of services for older individuals." We expect Congress did not intend to require States to set up special facilities in which elder rights advocacy would be spearheaded -- though we would applaud any such effort. We presume the term is used here to mean that the State agency must serve as a hub for policy review and analysis, and must provide real leadership in pinpointing the issues that most need concerted advocacy and in orchestrating needed advocacy initiatives.
A second question TCSG has is why Congress chose to list the particular issues it did. While clearly they are important rights-related issues, it is unclear why they were singled out and whether Congress had specific concerns about them. None is defined generally in the Act; thus no guidance is found in definitions. There is some legislative history on a somewhat similar listing in Title III which indicates Congress' concern over a reported lack of targeting by AAA-funded legal programs. It states:
It is the Committee's expectation that [the Title III
listing] will ensure that [legal] services are targeted to those in
greatest social and economic need.
It is possible the Title VII listing reflects a similar concern by Congress that state advocacy efforts be targeted. If so, it is striking that absent from the list is an issue TCSG feels is in very serious need of review in most states in terms of its ramifications for autonomy and freedom of choice for vulnerable elders -- elder/adult abuse reporting laws. Also noteworthy is that some of the issues, e.g. consumer protection, are not necessarily linked to vulnerable elders.
Two final questions TCSG has on this section are (1) why "Guardianship," "Protective Services" and "Surrogate Decision-making" are listed separately, rather than being linked; and (2) why "Dispute Resolution," which is not an issue but rather a means of addressing issues, was included in the listing.
Despite these questions, the list does provide important guidance to States in selecting elder rights advocacy issues they will address. It demonstrates the breadth and range of issues States should consider, and guides them away from focusing solely on benefits/ entitlements issues. It is also worth noting those issues that are excluded from the listing, e.g. wills/estate planning. It is possible that the regulations will provide further guidance on TCSG's questions. They should also be raised at the time of the next reauthorization.2. Provide a Developer and Other Sufficient Personnel
The second function specified in Chapter 4 is a broad and crucial requirement for state leadership and staffing needed to develop and nurture a strong and effective legal advocacy system. It requires every state agency to provide sufficient personnel -- one of whom shall be the legal assistance developer -- to ensure that the state has the capacity, and will provide:
This provision is particularly important because, not only does it begin to define specific responsibilities for State agencies in developing a statewide legal advocacy system, but, for the first time, it requires all States to have a legal assistance developer (LAD) to carry out those responsibilities. Further, it recognizes the magnitude of the task, and requires states to have, in addition to the developer, sufficient other personnel to accomplish it. TCSG feels this is a tremendous step forward, and hopes it is a first step toward further emphasis and delineation. We hope that, in the future, states' roles, responsibilities and conflicts of interest for legal assistance/elder rights development will be described and emphasized in the Act, much as ombudsman roles, responsibilities and conflicts are described and emphasized.3. Develop Standards, Monitor, and Ensure Targeting
A third set of functions requires States to define quality legal programs, help maintain them, and ensure targeting. States must :
Having now worked with a substantial number of States to develop statewide standards, TCSG feels that this is one of the most valuable exercises a State can undertake. Standards can not only define the essential elements of a high quality, high impact legal assistance system and provide guidance on reporting and monitoring, but they can also delineate what is involved in meaningful targeting. As noted above, a forthcoming issue of Best Practice Notes will be devoted to the development of statewide standards.
Coordinate Advocacy Efforts
The fourth State function in Chapter 4 is to provide consultation and ensure broad-ranging coordination among: Title III B legal assistance services; services by Legal Services Corporation grantees; other Title VII services (ombudsman, abuse prevention, and insurance/benefits counseling); and other State or Federal programs administered at the State and local levels that address legal assistance needs of older persons. As with some other functions, this one makes it clear that Congress sees the responsibilities of State agencies going well beyond developing individual IIIB legal programs. It anticipates a coordinated elder rights advocacy system that brings together the combined force of a broad range of advocacy programs and resources. This same expectation appears in the ninth function.
5. and 6. Provide Training and Elder Rights and Guardianship
The fifth and sixth functions deal with education and training. The fifth requires State agencies to provide for education and training of professionals, volunteers, and older persons on elder rights, on requirements and benefits of specific laws, and on methods for enhancing coordination of services.
The sixth Chapter 4 function reflects Congress' concern over the inadequacies of guardianship and representative payeeship, and the need for State agencies to be pro-active in addressing those inadequacies. It calls on States to promote, and provide as appropriate, education and training for those who are or might become guardians or representative payees, giving information on both powers and duties, and on alternatives to guardianship. This underlying concern of Congress about guardianship is also reflected in the first, second and eighth functions in which the States are called upon to: (1) review, analyze, and advocate change in guardianship laws and policies; (2) promote development of financial management services as an alternative to guardianship; and (3) assess the status of substitute decision-making systems and services.
7. Expand Access and Advocacy Resources
State agencies must work to expand access to legal and advocacy assistance and vulnerable elder rights protection activities by promoting development of, and providing technical assistance to, a wide range of advocacy resources. These include:
Assess Status of Elder Rights and Unmet Needs
State agencies are required to provide for periodic assessment of the status of elder rights and unmet needs -- with respect to individual client advocacy, at the systems level, and programmatically. With respect to individual advocacy, states must assess and analyze the unmet need for assistance in resolving legal and benefits-related problems. At the systems level, they are required to analyze: methods for expanding advocacy services and access to courts and the justice system; implementation of civil rights and age discrimination laws in the state; and the status of substitute decisionmaking, including systems and services on guardianship, representative payeeship and advance directives. With respect to programs, states must analyze problems and unmet needs identified in Title III and other programs.
9. Coordinate Elder rights Activities and Develop Working Agreements
The ninth and final State function specified in Chapter 4 is, like the fourth, a coordination function aimed at building an elder rights advocacy system consisting of a broad range of actors and entities. In order to identify and coordinate elder rights activities carried out under Title VII as well as under Title III, it calls on States to develop working agreements with state and federal entities including:
Clearly this list of agencies is not exhaustive, but is meant to provide examples of the range of important agencies with which to coordinate. TCSG would suggest, however, that at the next reauthorization, a crucial agency that has not been sufficiently recognized in the past decade be specifically listed, i.e., Legal Services Corporation.
State Duties and Responsibilities With No Chapter 4 Appropriation
While the lack of an appropriation for Chapter 4 in FY '94 means that States are not legally bound by these particular requirements for this Fiscal Year, TCSG strongly encourages, and is eager to work with, states who take on some of the most important tasks, e.g. statewide standards, monitoring of legal assistance programs and development of special plans for targeting. It must also be noted that there are a number of related new provisions in both Titles II and III that must be implemented, regardless of a Chapter 4 appropriation.
Related Title III Requirements for AoA
Linked to the Chapter 4 requirements for states to have a developer and to assure that AAAs choose the legal provider that best meets established "standards for selection," are two new Title II responsibilities for AoA. First, Title II requires AoA to develop guidelines and a model job description for LADs. Preparing the job description will necessitate AoA thinking through the goals of legal assistance development and the specifics of what states, through their developers, must do to achieve those goals. Second, AoA must develop guidelines for area agencies to follow in choosing and evaluating legal assistance providers. As with the job description, it can be anticipated that the process of preparing the selection guidelines will generate within AoA greater understanding, interest, and concern about the selection of providers. This increased concern should mean greater scrutiny by AoA of the work being done in these areas by the State agencies.
Related Title III Requirements for States
In Title III, the '92 Amendments added stronger requirements for State agencies with respect to development and support for legal assistance. Like Title VII, Title III now requires every State to have a Legal Assistance Developer. It provides that each State shall:
. . . assign personnel (one of whom shall be known as a legal assistance developer) to provide State leadership in developing legal assistance programs for older individuals throughout the State.
Also, as in Title VII, this new Title III language seems to anticipate that more than one person will be needed at the state level.
Title III has a new provision regarding priority legal issues. It requires States to assure that AAAs give priority to legal assistance related to:
income; health care; long-term care, nutrition, housing, utilities, protective services, defense of guardianship, abuse, neglect, and age discrimination.
States also have added responsibility in Title III with respect to selection of providers by AAAs. The State must make sure that AAAs first make an assessment of potential providers pursuant to the AoA "Guidelines for Selection" described above; and that AAAs then choose the entity best able to provide the services.
Other Title III requirements for States include such things as: (1) assuring that AAAs attempt to involve the private bar, including pro bono and reduced fee services; (2) assuring that legal programs serve those in social or economic need; (3) providing for coordination, advice and TA on the provision of legal assistance; and (4) supporting the furnishing of training and TA.
Thus, even though States are not technically required to abide by Title VII, Chapter 4 requirements in FY '94 because there was no appropriation, the new and expanded requirements under Titles II and III will move the States very much in the same direction.
(Please Note: Given the length of the Title VII examination, this article is divided and is being published in two separate issues of Best Practice Notes.)
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