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Best Practice

Vol. 9, nos. 3 & 4

On Delivery of Legal Assistance to Older Persons

December 1998

"Our Past Successes, Our Present and Future Challenges":
Remarks from Jonathan Asher

Since our Symposium 97: Reinvigorating Legal Assistance for the Elderly last December, TCSG has received many requests for a reprint of the keynote address given by Jonathan Asher, the Executive Director of the Legal Aid Society of Metropolitan Denver. Jonathan has graciously provided them for publication in this issue of Best Practice Notes.

I am humbled by the opportunity to speak to experts and leaders about a field in which I have at most been only a foot soldier. Jim and Penny asked only that I try. We entitled these remarks "Our Past Successes, Our Present and Future Challenges."

To attempt to assess and distil, in any way, our past successes is very risky. It is like thanking people on a special occasion or listing siblings, cousins, nieces and nephews in a very large family. You inevitably will not get them all and you will, no doubt, leave out someone's favorite. I will certainly miss at least a few important achievements, but I do not expect to be exhaustive. I will leave out important issues, but the reflections may help us begin to think about how large and extensive our family really is.

Beginning with OEO funded legal services and activist lawyering for the poor in 1965 and the adoption of the Older Americans Act in 1966, then followed by the important adoption of legal services as a priority in the Older Americans Act in 1975 and the subsequent adoption of the requirement that an "adequate proportion" of Title IIIB funds be provided for legal services and that those funds be targeted for "older individuals with the greatest economic and social needs" attention was increasingly paid to the legal aspects of the needs of the elderly.

Over time these efforts focused in large part on economic and medical needs, safety from financial and physical abuse which reflect the very worst in our instincts, consumer fraud and other basic needs. The early legal issues we raised included advocacy for adequate healthcare and the establishment of the Medicaid and Medicare programs, the indexing of Social Security benefits to adjust for annual inflation, fairness in disability cases and implementation of the SSI benefits program.

We litigated and exposed, and frequently, ended consumer fraud and exploitation of the elderly, we battled insurance and home improvement and other scams. One of the earliest cases I actually worked on was the Smith case which challenged the system of unscrutinized Medicaid reimbursement to self-certified nursing homes for health care which might or might not actually have been provided and which was frequently of very questionable quality.

In retrospect, what did we do? We in legal services and other advocates supported by Title IIIB funding, dedicated our legal lives to the protection of the elderly. We focused on individual cases, impact cases, legislative advocacy, administrative advocacy, a full range of multi-forum advocacy. We engaged in strategic analysis of what was most critical to the elderly and fashioned appropriate legal responses.

We challenged nursing homes abuses. We advocated for the right of the elderly to stay out of nursing homes if at all possible and to maintain maximum personal independence. We helped secure homecare support of various kinds, but, if skilled care was needed, we said it should be available. We fought against Medicaid discrimination in admissions to long-term care facilities. We fought for fair eligibility standards and spend-down programs. We fought for quality in care. Our efforts produced federal and state Nursing Home Bills of Rights, Nursing Home Ombudsman Programs and more adequate medical care in nursing homes and other long-term care facilities. We fought for protection against spousal impoverishment when one spouse required expensive institutionalized care. We brought cases and advocated for due process and protection of the elderly in guardianship and conservatorship proceedings. We exposed financial exploitation of the elderly and helped pass legislation banning age discrimination in employment. We helped to bring to light the often denied or hidden scourge of physical abuse of the elderly.

Looking back on 30 years of legal work, and more than 25 years of my own professional life, what do I see? I see laws and court established due process protections. I see a significantly smaller proportion of the elderly who are impoverished. I see better long-term care facilities for the elderly. I see AAA's, legal service developers, and ombudsman programs for the elderly that did not exist before. I see DA's who prosecute elder abuse cases, courts that are more careful in guardianship proceedings. I see an entire bar, lawyers who now specialize, not just in estate planning, but who specialize in the growing field of elder law.

We've done a lot through legal services for the elderly, but where are we now? The statutory priority for legal services in the Older American Act is at great risk. Funding for the Legal Services Corporation has been cut by a third over the past 3 years. Beginning in 1995 with LSC funding of $415,000,000, it has been reduced to $278,000,000 in 1996 and the last two years, 1997 and 1998, LSC has been funded nationally at $283,000,000.

The work of advocates funded by LSC has been greatly restricted. The restrictions are a more serious problem than the lost funding and resulting lost staff. The new restrictions are of three types. The restrictions limit who we can and cannot represent, what we can and cannot do for clients, and increase the internal accountability measures and program reporting requirements.

We cannot represent illegal aliens, prisoners incarcerated in any federal, state or local prison. We cannot defend residents of public housing convicted or charged with drug related activities in eviction actions. We cannot represent anyone who was solicited face to face for the purpose of informing them of their legal rights and offering representation.

What can't we do? What are the restrictions on the scope of the actual legal work we can do? We cannot file class actions, claim or retain attorneys fees, challenge welfare reform, challenge redistricting, engage in abortion counseling or litigation, conduct public policy training. The new prohibitions further restrict legislative and administrative advocacy. The prohibitions and restrictions are significant and grossly unfair.

New internal requirements are also imposed on all recipients of LSC funding. We must maintain time records, adopt lists of priorities, obtain a signed statement by casehandlers that they will only engage in work within the approved program priorities, we must obtain statements of facts signed by clients prior to litigation or pre-litigation negotiations, we must submit list of all cases brought in Court including the address of the plaintiff and defendant and the address of the Court in which the case was filed, the cause of action and the case docket number. These lists must be available to the public and be submitted to LSC twice a year. There also are significantly increased audit requirements and audit procedures.

Congress also ended all funding for state and national support centers and successfully undermined and disrupted a network of training and technical assistance which served local providers of legal services for more than 25 years. Overriding all the restrictions, however, is the total prohibition on the use of non-LSC funds for any purpose prohibited with LSC funds.

Despite all of these restrictions, we can still do a lot for our clients. Most of what we did can still be done, but the restrictions certainly hurt. I feel a deep sense of grief and loss. These new restrictions reflect changes in society generally. They reflect a change in the public sense of the appropriate role of government. We have gone from seeing government as a solution to our social problems, to believing that government cannot solve our problems, to now believing that government is the problem. While many of us hold on to traditional notions, we are swimming against the tide. There is a strong current of devolution of power from the federal to state government. There is a debate over public versus personal responsibility. The elderly have not been targeted, but are just part of larger social changes. Where does government respond best to those in need - the poor, the frail, the elderly? We see the devolution of power from the federal level to the states. Federalized authority, for those of us who remember, resulted from discrimination and abuse of minorities and the vulnerable by state and local governments. I fear we have forgotten the historic reasons for a larger federal presence. Closer government does not always protect those in need, minorities, the individual or the elderly.

We see today a far more limited role of the courts, federal courts in particular. Courts are no longer a place where rights are created and defended. More and more where we hear from courts that there is no private cause of action, that there are no legally protected rights or enforceable rights at all. We face a fundamental political attack on legal services, on lawyers, on an independent judiciary.

We can accept the need to grieve - to feel our loss at these changes in public sentiment - but we can't be paralyzed by it. So where do we go from here? How do we regroup, refocus, reenergize, rededicate and recommit ourselves to the challenges of the future? How the hell do I know?

I seriously am not at all sure, but I think our future must include the continued responsibility to advocate, innovate and collaborate on behalf of our clients.

We must continue to listen to our clients. Our best work has always flowed from our capacity to listen and touch clients and their lives and to hear their stories. All of the impact work, systemic change, policy advocacy, when done best, flowed directly from the lives and stories of the people, the elderly, we served, not from our own best intentions or fertile imaginations. It has come from the sorrows and problems and crises of our clients lives. We responded by listening, thinking and fashioning appropriate responses. There is no restriction, no cut in funding, no proposed change in the Older Americans Act or at LSC, which says we have to stop listening. The future will flow from greater creativity in responding to our clients. We know a lot about our clients and we need to continue to know a lot about them.

We have no easy answers or clear roadmaps. We must innovate and use new and untested strategies and techniques. Technology, while it must not simply be a vehicle for doing less for more as many of us sometimes fear, can help us attend to those in greatest need through thoughtful change and technological innovation.

We are frequently our own worst enemy. We must adhere to the new restrictions, but not unnecessarily and artificially impose restraints on the work we do. We must find new capacities to respond to the need.

We certainly need to be part of a broader community of advocates. While collaboration has always been important it will be even more critical in the future. What we in federally funded legal services programs can no longer do, can still be done, must be done, just not by us. It must be done by other providers, by other paid staff and pro bono volunteers. We must be key players in the development and use of these essential additional legal resources for the elderly.

No longer do we need those who litigate in isolation, the lone rangers struggling against all odds to expand or create rights solely in court. Judge Patricia Wald, years ago spoke at a legal services meeting. Her thoughts rang true then and they certainly are an appropriate call to the future. She said that:

My ideal for a poverty lawyer is not the lone crusader against all odds, but the respected partner in community-wide efforts to advance the hope of a better life for many.

I continue to fear that what we do to each other can be more destructive than what Congress and others can do to us.

The passion we bring to our work is both our greatest strength and our greatest weakness. We should turn inward for sustenance and support. In the face of the most unfair restrictions, a devaluing of the work we do, we all too often turn on, not to each other. We are overly judgmental, not probing or inquisitive. We draw lines where there is only honest ambiguity. Our own rhetoric is not always helpful. We choose to challenge the restrictions in court, or not to. We choose to separate LSC from non-LSC funded programs, we choose to do the restricted work or only the more routine matters. We chose to adopt technologies and technological advances or continue to make house calls as we always have, feeling that technology is a threat, not a tool, by which to improve our services. We choose to hotline or not to hotline. We question who cares more, whose commitment is greatest, who is truest to our perceived values. These are all difficult choices. We need not question the motives of those with whom we may differ or disagree. Those who do our work, do it with love and passion, but without road maps. Our disagreements tend to be strategic, not really going to the underlying values and objectives we share.

Our primary role as program directors, legal services developers and those responsible for legal services for the elderly is to model behavior for others, to model to the extent possible the values we believe in - integrity, fairness, diversity, kindness, firmness, being able to disagree without being disagreeable.

J. Paul Getty described his formula for success. He said his secret was to "Rise early, work hard, strike oil."

I have been blessed to strike oil many times in my life. I struck oil when I met my wife whom I love, I struck oil with my family and friends whom I love and by whom I am nurtured, I have been blessed with work that I love, at least some of the time, but almost always find rewarding.

As we look to the future we should listen to and respect each other despite our disagreements, we must make every effort to embody civility, decency and good humor and we must persist in our cause.

Robert Kennedy once said:

Few will have the greatness to bend history itself, but each of us can work to change a small portion of events, and in the total of these acts will be written the history of (each) generation. It is from numberless diverse acts of courage and belief that human history is shaped. Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring these ripples build a current that can sweep down the mightiest walls of oppression and resistance.

I share his thoughts not for themselves alone, or because, if they were given today they would be appropriately gender neutral, but because of where and in the context in which he spoke them. The are from a Day of Affirmation speech given in June, 1966 in Capetown, South Africa. Indeed the world can change.

A great Democratic leader - there was a time when they existed - said that "patriotism was not the frenzied activity of a single moment but the steady, tranquil dedication of a lifetime."

I believe that our values at their core are certainly not class actions as opposed to a strategy of multiple individual law suits, they are not claims for attorneys fees as a tool in successful litigation or as an important program funding stream. Our values and our work must increasingly reflect flexibility, innovation and collaboration.

We should take pride in our past, be aware and struggle with the present and move boldly into the future to advocate, innovate and collaborate. We must increasingly be creative and probing and willing to work with many others who share our goals and care as we do. The question is not whether legal services for the elderly will survive, it is whether we will continue to deserve to survive. Despite the many difficulties we face, we must continue to be an important, relevant, and vibrant force for making the lives of the elderly better. That is our challenge and our responsibility.

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The Center for Social Gerontology, Inc.
A National Support Center in Law and Aging
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