|Vol. 8, Nos. 3 & 4|| |
On Delivery of Legal Assistance to Older Persons
In recent years, legal assistance for the elderly has faced challenging times. Legal assistance has been questioned as a priority service in the Older Americans Act (OAA); Legal Services Corporation (LSC) funding has been significantly reduced; and restrictions have been placed on LSC providers, limiting the scope of permissible services.
In an effort to assess the impact of these funding cuts, restrictions, and potential legislative changes, The Center for Social Gerontology (TCSG) conducted the national survey presented in this issue. Key findings of the survey include the following:
1) Over 60% of area agencies on aging indicated that their Title IIIB legal assistance providers also receive LSC funding. Therefore, the LSC funding cuts and restrictions have a real effect on the provision of legal assistance for the elderly.
2) Although over a majority of AAAs consider legal assistance "fairly" or "extremely" important, most AAAs and legal services developers believe that if legal is not retained as a priority service in the OAA, Title IIIB funding for legal assistance will significantly decrease.
3) Legal providers across the country have had to change their delivery mechanisms. These changes include an increased reliance on technology, a switch to less complex levels of service, and overall downsizing of the organizations.
4) In general, the aging network has not been included in state-wide LSC planning efforts. Although in some states aging network representatives have played critical roles in obtaining additional funding, most states have not included Title IIIB/Non-LSC legal providers, AAA representatives or legal services developers in the LSC planning effort.
5) Each state faces unique challenges to its legal assistance system. In response, some states have created two parallel systems -- one that operates with LSC funding and under the LSC restrictions and another that relies solely on non-LSC funds; some states have found additional organizations to assist in providing legal assistance; and some have augmented their (now reduced) LSC funds with funding from their state legislature, foundations, and United Way.
Editor's Note: This article presents a revised and expanded version of an article prepared by Judith L. Falit and published in a special Elder Law issue of Clearinghouse Review, Journal of Poverty Law, Vol. 31 p. 246-255 (September/October, 1997).
In the past two years, the legal assistance community serving the elderly has faced significant turmoil as a result of the uncertainty of the status of elder rights and legal services in the Older Americans Act (the Act or By: OAA) and the Legal Services Corporation (LSC) funding cuts and Judith L. Falit restrictions on activities. To provide a basis for programmatic and policy analysis, and decision making on the national, state and local levels, The Center for Social Gerontology (TCSG) sought to assess the status of elder rights and legal assistance for the elderly across the country by conducting a national mail survey of legal assistance providers, area agencies on aging and state-level legal services developers. This national survey, among other things, examined the following issues:
Have the aging and legal networks worked together to ensure the delivery of legal assistance to the most vulnerable elderly?
Has Title IIIB funding for legal assistance for the elderly decreased, increased or remained level?
Has there been a change in the level or method of delivery of assistance being provided and/or the issue areas being addressed by the OAA-funded legal programs for the elderly in the past two years?
What types of legal assistance providers for the elderly are being funded with Title IIIB OAA monies?
TCSG's national survey provides a snapshot of the changes in the delivery of legal assistance to the most vulnerable elderly that have occurred over the past few years. This article provides a brief review of events affecting legal assistance for the elderly in the past two years, a description of the survey design, the relevant survey data, and a discussion of the meaning and importance of these findings.
A. Older Americans Act and Title IIIB Funding
In 1965, Congress enacted the Older Americans Act which was intended to "provide assistance in the development of new or improved programs to help older persons." Although legal services were not mentioned in the 1965 version of the Act, in 1975 Congress made legal services a priority in the OAA; this priority status of legal services has been maintained in the Act through the present. As a priority service, each area agency on aging (AAA) must provide an "adequate proportion" of their Title IIIB funds for legal services.
In addition to requiring a minimum percentage of funding for legal assistance for older persons, the Act specifies that legal assistance should be provided for "older individuals with economic or social needs." As a result of this required targeting and the mandated funding in the Act, the OAA provides some guarantee of funds for civil legal assistance for vulnerable older persons.
As of the writing of this article however, the status of legal as a priority service in the OAA is in question. The Act was due to be reauthorized in 1995, but as of this writing it has not occurred. However, in various drafts and discussions in both the House and the Senate there was strong sentiment for deleting the priority and funding requirements for legal assistance. Although final action has yet to be taken, it appeared to TCSG that the possibility of legal no longer being a priority was affecting support for legal assistance within the aging network. This was a major impetus for TCSG undertaking the national survey discussed here.
B. LSC Funding Cuts and Restrictions
The Legal Services Corporation was originally created by Congress in 1974 to provide access to the civil justice system for low-income, under-represented groups. Furthermore, LSC providers have historically been selected by AAAs to receive Title IIIB funds to provide legal assistance to older persons. Since 1995, Congress has severely cut funding for LSC legal services providers. For Fiscal Year 1995, Congress appropriated $415 million to LSC, but later rescinded $15 million, leaving only $400 million for LSC. For Fiscal Year 1996, Congress reduced the LSC appropriation by almost 33% to $278 million; for the current Fiscal Year, Congress slightly increased the LSC appropriation to $283 million, resulting in a net reduction of 32% since the 1995 appropriation.
Along with this reduction in funding, LSC legal assistance providers were faced with restrictions on permissible activities. Specifically, restrictions were placed on subject areas (e.g., welfare reform), who can be represented (e.g., certain aliens), and the scope of representation (e.g., class actions). These LSC restrictions and funding cuts have significant implications for legal assistance for the elderly as over 60% of the AAAs that responded to the survey indicated that their Title IIIB legal assistance provider also received LSC funding.
Because of these links between LSC and the aging network, TCSG was concerned about such things as: whether the cuts in LSC funds would mean a decrease in services to older persons as LSC funds have historically been an important supplement to OAA funds; whether the restrictions on activities by LSC programs would interfere with impact work on behalf of older persons; or whether the LSC programs and aging network were working jointly to find additional sources of funding and to devise ways of maintaining the full range of advocacy services.
As a result of these concerns, and the potential changes in the OAA discussed above, TCSG conducted the national survey discussed in the remainder of this article.
II. National Legal Assistance Survey Design
The legal assistance survey solicited information from five different sources in the legal and aging networks: Legal Services Developers (LSDs or developers), Area Agencies on Aging (AAAs), legal assistance providers receiving only OAA Title IIIB funding (Title IIIB providers), legal services providers receiving OAA Title IIIB and LSC funding (Title IIIB/LSC providers), and legal services providers receiving only LSC funding (LSC providers). Five different, but related, versions of the survey -- one version for each of these five groups -- were drafted and mailed in early February, 1997.
Efforts were made to identify all AAAs and all legal assistance providers receiving OAA and/or LSC funding. A list of AAAs was obtained from the National Directory for Eldercare Information and Referral; a list of Title IIIB providers was obtained from the legal services developer in each state; and a list of LSC providers was obtained from the Legal Services Corporation. All identified AAAs, developers, Title IIIB, Title IIIB/LSC , and LSC providers were surveyed. In all, 51 LSDs, 649 AAAs, 317 Title IIIB providers, 185 Title IIIB/LSC providers, and 101 LSC providers were sent a mail survey. A follow-up mailing, conducted in early May, was sent to 51 AAAs, 241 Title IIIB providers, 102 LSC/ Title IIIB providers, and 27 LSC providers, .
III. National Legal Assistance Survey Results
Overall, response rates were satisfactory: 90% (46) of the LSDs, 59% (380) of the AAAs, 46% (158) of the Title IIIB providers, 61% (112) of the Title IIIB/LSC providers, and 47% (47) of the LSC providers responded to the survey. Fifty percent (304) of all legal assistance providers responded to the survey. Surveys that were unsuccessfully mailed are not included in these figures.
A. Profile of Legal Services Developers
Legal services developers were asked to report how long they have held their position. Based upon their responses the average tenure of developers is 4 1/2 years, although time in the position ranged from only a few months to over sixteen years.
The average developer spends 46% of their time on legal services development issues; however, time spent on the position ranges from 2-100%. Just under half (43%) of the LSD respondents indicated that they spend less time on their LSD duties than when they started. The primary reasons cited for spending less time as developer included funding cuts, increases in other work responsibilities and reduction in staff. In contrast, 16% of developers indicated they spend more time on LSD responsibilities. Reasons cited for spending more time as developer included increased community and coalition involvement, increased knowledge of LSD responsibilities and an increase in specific projects.
B. Profile of Legal Assistance Providers
Title IIIB and LSC providers were asked to report when their organization was first created. Based upon their responses, the average Title IIIB legal services organization was created 21 years ago while the average LSC organization was created almost thirty years ago.
Title IIIB legal assistance providers in Connecticut, New Hampshire, Massachusetts, and Washington, among others, indicated that they voluntarily gave up LSC funds due to their accompanying restrictions on activities. Similarly, LSC legal services providers in Massachusetts, New Hampshire, Vermont, and Washington, among others, indicated that they were created to "take the LSC funds and live within the restrictions."
C. Legal Providers Funded by Area Agencies on Aging
Area agencies on aging were asked to identify the types of providers they utilize for the provision of Title IIIB legal assistance. Among the AAA respondents, 62% indicated they use LSC providers (Title IIIB/ LSC providers); 25% indicated they used private attorneys (Title IIIB providers). Other Title IIIB legal assistance providers include University Law School clinics and in-house attorneys. Almost 90% of AAAs indicated that they had not changed their legal assistance providers over the past two years.
D. Funding for Legal Assistance for the Elderly
Ninety percent of Title IIIB providers responding to the survey receive their OAA funds from one or two area agencies on aging; only 8% receive funding from more than two AAAs. Those providers receiving funds from an area agency on aging (Title IIIB and Title IIIB/LSC providers) were asked to indicate how this funding had changed over the past few years. Although almost 50% of both Title IIIB and Title IIIB/LSC providers indicated that the funding from their AAA(s) had not changed, 28% of the Title IIIB and 33% of the Title IIIB/LSC providers indicated a decrease in their OAA funding. Only 12% of Title IIIB and 15% of Title IIIB/LSC providers indicated an increase in funding from their AAA. Over half of those providers that suffered a cut in funding attributed the decrease to overall cuts in OAA Title IIIB levels.
Area agencies on aging were also asked if the level of funding they allocate for legal assistance had changed over the past few years. Well over half of the AAAs, 61%, indicated "no change" in the level of funding; 25% indicated a decrease in funds for legal assistance; 11% indicated an increase in funds. Legal services developers were also asked if the level of funding allocated for legal assistance in their state had changed over the past few years. Fifty percent of developers indicated "no change" in the level of funding; 20% indicated a decrease in funds for legal assistance; 9% indicated an increase in funds. This data from the AAAs and the LSDs largely corroborate the change in funding levels reported by the legal assistance providers above.
According to AAA survey responses, the average AAA allocates just over $39,000 per year to legal services; the average percentage of Title IIIB funds allocated to legal services each year is 9.55%. In contrast, legal services developers indicated that the average minimum percentage of Title IIIB funding required to be spent on legal assistance is 4.23% of Title IIIB funds. The substantial difference between the percentage reported by developers and that reported by AAAs may indicate that AAAs spend significantly more than the minimum percentage required.
All three types of legal assistance providers were asked if they had sought funds in addition to OAA Title IIIB and/or LSC for legal assistance for older persons. This question was intended to identify alternative funding sources and determine how proactive legal assistance providers have been in obtaining additional funding. Although differences among provider-types were not statistically significant (p>0.05), only a majority of the Title IIIB/LSC providers indicated that they had sought additional funds. Those providers that did search for additional funds sought them from various sources (see Table I). In contrast, 51% of Title IIIB providers and 60% of LSC providers indicated that they did not look for additional funds for legal assistance for older people. Only 22% of AAAs indicated that they supplement the Title IIIB funds allocated to legal services.
Sources from Which Providers Sought Additional
Funding for Legal Assistance for the Elderlya
Providers: LSC Title IIIB Title IIIB/LSC All Providersb Sources (n=19) (n=69) (n=63) (n=151) IOLTA 26% 49% 30% 38% Private Fdn. 42% 49% 52% 50% State Leg. 32% 23% 30% 27% United Way 32% 33% 44% 38% Local Govt. 5% 13% 8% 10% Bar Assn. 11% 4% 0% 3% Don't Know 0% 3% 0% 1% Otherc 37% 41% 18% 30%
a Note that percentages total over 100% as respondents could indicate more than one source of additional funding.
b "All providers" includes Title IIIB, Title IIIB/LSC and LSC providers that sought additional funding. c Other includes Federal grants, donations, fundraising efforts, and miscellaneous.
Almost 62% of Title IIIB/LSC-funded providers that sought additional funding were successful; similarly, 59% of Title IIIB providers were successful. However, only 37% of the LSC providers indicated that they were successful in obtaining additional funds for their legal assistance for the elderly programs. Over two-thirds of both Title IIIB/LSC and LSC providers indicated that their search for additional funding was motivated by the recent LSC funding cuts.
Area agencies on aging were asked to speculate as to how funding for legal assistance would change if legal were no longer a priority in the Older Americans Act. Almost 55% indicated that they would expect funding for legal assistance to decrease if it were no longer a priority service. Approximately 22% indicated that they would not expect funding for legal assistance to change, while 21% indicated that they did not know how funding levels would be affected if legal were removed as a priority service.
Legal services developers were also asked how they expected funding for legal assistance to change if it was no longer a priority in the Act. Similar to the AAAs, over 70% of LSDs expected funding for legal assistance to decrease if it were no longer a priority service; approximately 20% indicated they would not expect funding for legal assistance to change.
E. Relationships with AAAs and Providers
1. Area Agencies on Aging
Title IIIB and Title IIIB/LSC legal assistance providers were asked to supply information about their working relationship with the local AAAs regarding the delivery of legal assistance to the elderly and/or elder rights advocacy. Twenty-eight percent of Title IIIB providers and 36% of Title IIIB/LSC providers indicated that they are not actively involved in planning and discussions with their AAAs. However, 95% of those Title IIIB and Title IIIB/LSC providers that are involved in discussions with their AAAs, indicated that the discussions include how best to "target limited resources to those in greatest social and economic need."
On the other hand, only 79% of these Title IIIB providers and 60% of these Title IIIB/LSC indicated that the discussions with their AAAs include how best to "ensure systems-level advocacy/impact work on behalf of the most vulnerable elderly." Finally, only 68% of Title IIIB and 63% of Title IIIB/LSC providers indicated that they have made special efforts to communicate with their AAA to demonstrate the value of legal assistance to older persons.
Interestingly, AAAs were asked to rate the importance of legal compared to other AAA-funded services. Approximately 50% of AAAs rated legal as a "fairly important" service; 36% rated legal as an "extremely important" service; and only 7% rated legal as a "relatively unimportant service." Yet, as indicated above, almost 55% of AAAs stated they expected funding for legal assistance to decrease if legal were no longer a priority service in the OAA.
2. Legal Assistance Providers
Title IIIB legal assistance providers were asked if they are "actively involved in planning and discussions with local LSC program(s)." Significantly, 58% of Title IIIB providers indicated that they were not involved in planning or discussions with their local LSC legal services providers -- the major provider of civil legal services to the poor.
F. Changes to the Delivery System
Given the major cuts and restrictions on LSC programs, TCSG was particularly interested in how these new challenges had affected legal programs and the delivery of legal services. Thus, we included several questions in both the Title IIIB/LSC and LSC surveys on delivery issues.
Title IIIB/LSC and LSC providers were asked to supply information regarding staffing changes. Over 56% of both Title IIIB/LSC and LSC legal assistance providers indicated that they have decreased the number of attorneys and support staff in the past two years; 51% of LSC providers indicated that they had also decreased the number of paralegals over the past two years. Among those providers that indicated a change in the composition of their staff, 79% of Title IIIB/LSC providers and 88% of LSC providers indicated that these changes were a result of the LSC funding cuts (p>0.05).
As would be expected given the above cuts in staffing, a majority of both Title IIIB/LSC and LSC providers indicated a decrease in their staff/client ratio. That is, over 55% of both types of providers responded that they now have less staff per client. As with the decreases in staff, over 85% of these providers attributed this decrease to the LSC cuts.
2. Organizational Restructuring
Title IIIB/LSC and LSC providers were asked to indicate if and how they had restructured their organization over the past two years. Fifty-five percent of Title IIIB/LSC providers and 79% of LSC providers have restructured over the past few years, with 52% of Title IIIB/LSC and 47% of LSC providers indicating that they down-sized their organization (p<0.01). In addition to down-sizing, organizations have merged, separated some components of the organization, and created entirely new entities (See Table II). Interestingly, 17% of LSC providers indicated that their organization had bifurcated into two distinct organizations, thus separating the LSC-funded component of legal assistance from those funded by other sources. Over 90% of Title IIIB/LSC and 66% of LSC providers attribute these changes in the structure of their organization at least in part to the recent LSC funding cuts.
LSC Title IIIB/LSC All LSC Providersb
(n=47) (n=118) (n=165) Merged with LSC 9% 3% 5% New Organization 9% 3% 5%
47% 52% 50% Separated non-LSC Parts 17% 6% 9% Did Not Restructure 21% 45% 38%
19% 7% 10%
a Note that percentages total over 100% as respondents could indicate more than one form of restructuring their organization. b"All LSC providers" includes Title IIIB/LSC and LSC providers only. c Other includes change in service areas, staffing patterns and miscellaneous.
3. Intake Systems
All three types of providers were asked if they had made significant changes to their intake systems over the past few years. They were further asked to identify elements of their new system such as hotlines, touch-tone information systems and use of computers. Although well over a majority of both the Title IIIB and Title IIIB/LSC providers indicated that they had not made significant changes to their intake system, 68% of LSC providers responded that they had made changes to their intake system (p<0.001).
While approximately 65% of both the Title IIIB and Title IIIB/LSC providers that had new systems stated it simply supplemented their previous intake system, almost half of LSC providers with new intake systems indicated that the new system completely replaced their previous system. (p>0.05). Of the 96 providers that made changes to their intake system, almost seventy percent have altered their intake system so that there is increased reliance on phones and hotlines (See Table III).
New Intake Systemsa
LSC Title IIIB Title IIIB/LSC All Providersb Intake Systems (n=32) (n=27) (n=37) (n=96)
81% 48% 73% 69%
13% 7% 8% 9%
34% 52% 19% 30%
a Note that percentages total over 100% as respondents could indicate more than one change in their intake system.
b "All providers" includes Title IIIB, Title IIIB/LSC and LSC providers that had made significant changes to their intake system. c Technology includes new computer intake systems, new software for intake, and other new uses of computers in the intake process. dOther includes staffing changes, new screening processes, and miscellaneous.
4. Out of Office Consultations
All three types of legal assistance providers were asked if the number of clients with whom they meet outside the office had changed. Almost 60% of Title IIIB providers indicated that there had been no change in their consultations outside the office. Almost 30% of both Title IIIB/LSC and LSC providers indicated a decrease in the number of clients with whom they meet outside the office. Significantly, less than 15% of Title IIIB providers indicated a similar decrease (p<0.001).
G. Changes in Legal Assistance
Given the recent challenges to legal services, and the increasingly limited resources available for legal assistance for the elderly, TCSG was interested in identifying how legal assistance programs for the elderly had changed. Specifically, we asked all three types of providers how the time spent on legal assistance for the elderly, the level of service provided, and the types of people served had changed over the past few years.
1. Time Spent on Legal Assistance to Older Persons
Title IIIB/LSC and LSC providers were asked if there had been a change in the number of hours spent on legal assistance to the elderly. Approximately 27% of both Title IIIB/LSC and LSC providers indicated that the number of hours spent on legal assistance for the elderly had decreased over the past two years. On the other hand, 31% of Title IIIB/LSC providers indicated an increase in hours spent on legal assistance for the elderly; only 6% of LSC providers indicated such an increase (p<0.001).
2. Levels of Service
Levels of service were categorized as phone and brief advice, preparation of documents, and representation/litigation. Respondents were asked to identify how these levels of service had changed over the past few years. Although generally the most prevalent response was "no change," Title IIIB providers indicated a large increase across all types of service: 39% indicated an increase in phone and brief advice; 34% indicated an increase in document preparation; and 22% indicated an increase in representation/ litigation. The Title IIIB/LSC providers also indicated increases in all types of service: 52% indicated an increase in phone and brief advice; 24% indicated an increase in document preparation; and 21% indicated an increase in representation/ litigation (see Table IV).
On the other hand, there was an apparent shift for LSC providers from complex services requiring more resources to services that were less involved. Specifically, 21% of LSC providers indicated an increase in the level of phone and brief advice provided to their clients; 21% indicated a decrease in the preparation of documents; 26% of LSC providers indicated a decrease in representation/litigation (see Table IV). It is important to note that the differences among providers are statistically significant (p<0.001).
Changes in Levels of Legal Assistance for the Elderly Providers: LSC Title IIIB Title IIIB/LSC All Providersa Levels of Legal Assistance (n=47) (n=150) (n=118) (n=315) Phone/Brief Advice
21% 39% 52% 41%
13% 8% 5% 8%
34% 43% 39% 40%
21% 4% 3% 6% Preparation of Documents
9% 34% 24% 26%
21% 9% 13% 12%
43% 47% 60% 51%
15% 6% 3% 6% Representation/Litigation
4% 22% 21% 19%
26% 13% 20% 17%
40% 55% 57% 54%
19% 5% 3% 6%
a All providers include LSC, Title III and Title IIIB/LSC providers.
b Other includes Federal grants, donations, fundraising efforts, and miscellaneous.
3. Types of Older Persons Served
All three types of legal assistance providers were asked to indicate any changes in the types of older persons whom they serve. In particular, they were askedto identify increases or decreases in the number of minority elderly, low-income elderly, and nursing home/institutional residents for whom they provide legal assistance. Title IIIB and Title IIIB/LSC were also asked to identify changes in the number of frail/socially vulnerable elderly clients. Although the most prevalent response was "no change," a significantly larger number of Title IIIB and Title IIIB/LSC providers indicated increases in these targeted populations than LSC providers (see Table V).
Specifically, over 20% of Title IIIB providers indicated an increase in all four types of vulnerable, older clients; approximately 15% of Title IIIB/LSC providers indicated an increase in these types of older persons; under 5% of LSC providers indicated an increase in these types of older clients. Furthermore, almost a quarter of LSC providers responded "don't know" when asked about the changes in the types of their elderly clients; only 5% of Title IIIB/LSC and Title IIIB providers responded similarly (see Table V). It is important to note that these differences among providers were statistically significant (p<0.001).
Changes in Types of Older Persons Serveda
Providers: LSC Title IIIB Title IIIB/LSC All Providersb Older Persons Served (n=47) (n=150) (n=118) (n=315) Minority Elderly
4% 22% 14% 16%
11% 1% 4% 4%
45% 69% 77% 68%
26% 5% 4% 8%
13% 3% 1% 3% Low-Income Elderly
4% 29% 22% 23%
13% 1% 3% 4%
45% 62% 69% 62%
21% 5% 4% 7%
15% 3% 1% 4% Nursing Home/Institutional Residents
2% 25% 18% 19%
11% 3% 8% 6%
28% 61% 68% 60%
26% 7% 5% 9%
19% 5% 1% 6% Frail/Socially Vulnerable (n=268)
na 36% 30% 33%
na 1% 3% 2%
na 55% 60% 57%
na 5% 6% 6%
a Due to rounding, percentages may not sum to 100%.
b "All providers" includes Title III, Title IIIB/LSC and LSC providers.
H. Impact Work & Elder Rights Advocacy
Given the delay in the reauthorization of the Older Americans Act, combined with the new LSC restrictions on impact work, TCSG wanted to determine the level of impact work and elder rights advocacy being provided for the most needy and vulnerable elderly. Thus, the Title IIIB survey included a question on how the level of impact work they provided had changed over the past few years. Furthermore, the AAA survey asked if they encourage their legal providers to conduct impact work.
Area agencies on aging were asked to identify in what types of impact work their legal assistance providers engaged. Over 48% indicated that their legal assistance providers conducted litigative advocacy; almost 38% indicated their providers engaged in administrative advocacy; and 22% indicated their providers engaged in legislative advocacy.
Area agencies on aging were also asked whether they encouraged or discouraged their legal assistance providers to engage in elder rights impact work. Almost 50% indicated that they encouraged their legal assistance providers to engage in impact work; 42% indicated they took no position regarding elder rights impact work; only 1% indicated they discouraged their Title IIIB legal assistance providers from engaging in elder rights impact work (see Figure I).
Title IIIB legal providers were asked if there had been any changes in the level of impact work provided over the past few years. Providers were asked specifically about class action suits, legislative advocacy and administrative reform. Approximately two-thirds of Title IIIB providers indicated that there had been "no change" in the levels of any of these types of impact work. At least 7% of Title IIIB providers indicated a decrease in all types of impact work specified; 7% indicated an increase in legislative advocacy and administrative reform; 10% did not indicate how the level of impact work provided had changed over the past few years.
I. LSC State Planning
The LSC state planning process provides an opportunity for legal assistance providers within each state to develop innovative and effective methods for the delivery of legal assistance for the poor. TCSG was interested in determining if, and to what extent, the state unit on aging, area agencies on aging and legal assistance providers for the elderly were involved in this planning process.
Title IIIB/LSC and LSC providers were asked if their state had developed a statewide LSC planning document. Significantly, only 58% of Title IIIB/LSC providers, as compared to 81% of LSC providers, indicated that the state prepared an LSC planning document (p=0.01). Over 25% of Title IIIB/LSC providers indicated that they "did not know" if the state had prepared an LSC planning document. Among those respondents that indicated the state had developed a planning document, approximately ninety percent of both types of providers stated that they were involved in the planning process.
Significantly, 54% of the Title IIIB/LSC providers and 41% of the LSC providers indicated that staff from the state unit on aging (SUA) or AAAs were not involved with the LSC planning efforts. This data is in part corroborated with the responses to the AAA survey in which 88% of AAA respondents indicated that they were not involved in the LSC planning efforts. Similarly, 57% of the LSDs indicated that they were not involved with the LSC planning efforts. However, among the 34% of LSDs that were involved with the state planning efforts, LSDs served on formal planning committees, engaged in planning discussions, and participated in informal networking.
In addition to the limited involvement of SUA and AAA staff, the state planning processes included limited consideration of older persons. Just over 50% of Title IIIB/LSC and LSC providers involved in the LSC planning process indicated that specific consideration was given to older people.
IV. Discussion of Survey Results
Prior to discussing and analyzing the results presented above, the limitations of the data should be taken into consideration. As noted above, the data were collected through a mail survey and were not corroborated with any "hard data" such as written reports or first-hand observations. As such, the data is based solely on the perceptions of the respondents and thus may be subject to bias. Furthermore, surveys were addressed to the Executive Director or managing attorney of each office; however, the actual respondent of the survey varied, as directors often passed the survey along to others within the organization to complete. It was assumed that the Director of the office would enlist the most knowledgeable staff person to respond to the survey, but this cannot be verified.
Finally, although 50% of legal assistance providers and over 50% of AAAs and LSDs responded to the survey, there can be significant self-selection bias when relying on a mail survey. That is, it is possible that those organizations that did not respond to the survey are substantially different than those that did respond to the survey. For example, those legal assistance providers that did not respond to the survey may have significantly reduced services to the elderly and did not want to report this decrease to TCSG. Unfortunately, we can not be certain of the differences between those that did and did not respond to the survey. However, even given these limitations, some interesting and useful facts can be obtained from these data.
Survey data indicate that, in general, the aging and legal networks do not work together as effectively as they might to maximize the limited resources available for the delivery of legal assistance to older persons in social and economic need.
1. State Unit on Aging & LSDs
A critical link between the aging and legal networks in each state is the legal services developer. The LSD can prove to be an invaluable asset in facilitating communication and partnerships between the aging and legal networks.
However, as reported earlier, on average developers spend less than half of their time (46%) on legal services development issues. Furthermore, almost half of the developers have indicated that they have increasingly less time to perform their LSD responsibilities. This decrease in the amount of time devoted to the role of developer is a cause for concern. Developers need to be able to concentrate their efforts on the delivery of legal services for the elderly and spend more time on legal assistance development and elder rights advocacy.
Furthermore, the LSD needs to take a leadership role in bringing the different networks together and identifying ways in which these groups can collaborate. It is essential that the LSD in each state is given the necessary time and resources to develop a comprehensive network devoted to legal assistance for the elderly and elder rights advocacy.
2. Area Agencies on Aging
Although at the writing of this article the Older Americans Act has not yet been reauthorized, there has been a significant amount of discussion regarding how the language of this Act may change. As mentioned earlier, one possibility is that legal assistance will be removed as a priority service from the Act; that is, area agencies on aging would not be required to spend a minimum percentage of their Title IIIB funds on the provision of legal assistance for the elderly. If legal assistance is removed as a priority service, it could have drastic and immediate effects: 55% of AAAs that responded to the survey indicated that if legal assistance were removed as a priority, they expected funding for legal assistance in their state to decrease.
Given this current tenuous situation surrounding legal as a priority service in the OAA, and the fact that a quarter to a third of Title IIIB and Title IIIB/LSC providers indicated that they are not involved in planning and discussions with their AAA, it appears that legal assistance providers are missing an opportunity to discuss with AAAs the negative results that could occur if legal assistance loses its priority status. During this time of uncertainty and change, it is imperative for legal providers to be communicating and working with their local AAAs, demonstrating the critical importance of legal assistance for the vulnerable elderly. According to the survey results, over 85% of AAAs consider legal assistance extremely or fairly important; it is essential for legal assistance providers to build upon this belief to assure that legal remains a priority service in the Older Americans Act.
3. Legal Assistance Providers
Just as it is important to develop a strong working relationship with the local AAA, it is essential to develop a working relationship with other legal assistance providers. As reported earlier, 58% of Title IIIB providers indicated they are not involved in discussions with the local LSC provider. This suggests a lack of coordination among two key legal providers that have a responsibility to serve vulnerable, older persons. Furthermore, the Older Americans Act requires Title IIIB providers, if they are not LSC providers, to "coordinate its services with existing Legal Services Corporation projects in the planning and service area in order to concentrate the use of funds provided under this title on individuals with the greatest such need."
While it is clear that many Title IIIB and LSC providers do have solid working relationships, it appears that there is significant room for additional coordination among these providers. Given that funding for legal assistance is increasingly difficult to find, it is imperative that all legal assistance providers, regardless of their funding source, work together to ensure access to legal assistance for the most needy and vulnerable older persons. Communication and coordination among providers should address a range of issues from determining the most effective use of Title IIIB funding to developing protocols for referrals of various types of cases and older clients given the LSC restrictions on permissible activities.
4. The Aging Network and Planning LSC State
As is clear from the data presented earlier, LSC providers were more aware of the state-wide LSC planning document than were Title IIIB/ LSC providers. While we can only surmise, this may indicate that the Title IIIB staff within LSC programs were not as actively involved in the statewide LSC planning effort as were other LSC personnel. In addition, the aging network as a whole appears to have been largely missing from the process.
The LSC planning process provides a critical opportunity for the aging network to plan and partner with the legal network. The planning stages provide an invaluable opportunity to raise awareness of the particular legal assistance needs of older persons and to discuss legal assistance delivery mechanisms to meet these needs. This is particularly the case in regard to the planning for increased use of technologies and changes to intake systems, which are a part of many of the statewide LSC planning efforts. It appears that a unique opportunity for joint planning and mutually supportive advocacy for new funding has thus far been missed due to the lack of involvement of AAAs and SUAs in the state-wide LSC planning in many areas of the country. As planning and discussions continue in the coming months, this could still be corrected.
The survey data indicate a shift towards increased use of technology in both intake systems and the delivery of legal assistance. Such a shift raises concerns about whether channels through which the most vulnerable older persons can obtain necessary legal assistance are being preserved.
Over the past few years it is apparent that legal assistance providers have made changes which affect all aspects of the delivery system. Approximately half of Title IIIB/LSC and LSC providers have downsized their organization. Furthermore, LSC providers indicated that they have experienced staff cuts across the board -- attorneys, paralegals and support staff have all decreased in the past few years.
In addition to changes in staff composition, many providers also indicated changes in their intake systems; almost half of the LSC respondents indicated that they had recently changed their intake system. Overwhelmingly, changes to intake systems have relied increasingly on technology -- hotlines, intake over the phone, and the use of computers. Finally -- most likely as a result of the above mentioned staff changes -- providers have been less able to meet with clients outside of the office.
The decreased number of out of office consultations, in conjunction with increased reliance on phone intake and hotlines, raise concerns about whether the most vulnerable and needy elderly clients will be able to access the legal assistance they require. As providers search for ways to remain viable in these times of funding cuts and limited activities, technological efficiencies become a natural alternative. However, some elderly clients that are the most vulnerable -- e.g., nursing home residents; those for whom English is not their first language; those who do not have a telephone; those who are physically unable to use a telephone -- may have difficulty navigating these technological forms of civil legal assistance and may have difficulty understanding and following advice received over the phone. This is an area in which joint planning by legal providers, legal services developers and AAAs could be particularly valuable since AAAs are generally very familiar with information and referral systems, as well as the use of technology for serving vulnerable elders. In addition, collaboration on the use of technology in the delivery of legal assistance for the elderly could serve to forge stronger relationships between the two networks.
The data indicate that approximately half of legal assistance providers do not seek additional funding or pursue all possible funding sources to assist in the delivery of civil legal assistance for older persons.
As reported earlier, almost half of all legal assistance providers did not seek additional funding for legal assistance for the elderly over the past two years. This result is particularly surprising since many providers attribute changes in their delivery of legal assistance to recent cuts in OAA and/or LSC funding. Furthermore, providers that did seek additional funding reported a high level of success, indicating that applying for additional funds to serve the elderly may be an effective use of time.
Based upon the data presented earlier, it appears that the majority of providers that do seek additional funds favor specific grants from sources such as private foundations, United Way, or local governments. These funds are typically allocated to a single organization for a specific time period. In contrast to these targeted grants, legal assistance providers in several states have successfully sought funding from their state legislatures. State appropriations generally create a long-term method for receiving funds directed towards civil legal assistance for the poor.
Obtaining funds from a state legislature is most likely when sought by a coalition of various groups, including members of the legal and aging networks. Legal providers in the following states have recently received funding from their legislatures: Iowa, Massachusetts, Oklahoma, Virginia, and Washington. Each of these states faced different circumstances and legal providers forged unique coalitions to achieve their state funding. For example, in Oklahoma and Washington the aging network played a critical role in securing funds for civil legal assistance from the state legislature; funding which included legal assistance for the elderly.
The data indicate that there has been an increase in the provision of less complex levels of legal assistance for the elderly such as brief interactions and phone advice.
As discussed earlier (see page 9), LSC providers indicated an increase in the level of phone and brief advice and a decrease in the other types of services identified. These data imply a subtle shift away from the more complex types of legal assistance (document preparation and representation/ litigation) to the more simple (phone and brief advice). Whether this change in levels of service is directly related to the above mentioned staff and funding changes is unclear. As one respondent stated: "Static and decreased funding means less service per client or less clients."
Although the survey data indicate that Title IIIB and Title IIIB/LSC legal assistance providers have increased the provision of more complex levels of service, they have also increased the provision of phone and brief advice. Thus, Title IIIB providers as a whole appear to have experienced increases in the provision of legal assistance across the range of service levels. Perhaps the Title IIIB funds, expressly targeted to those older persons in social and economic need, compel these providers to perform a range of legal assistance. Similarly, the partnership with AAAs and the aging network inherent in receiving Title IIIB funds may underscore the importance of providing a wide array of service levels for older persons.
Regardless, it is important to ensure that the necessary level of service is being provided and is available to the most needy and vulnerable older persons. As with the technological changes to intake systems, emphasis on brief services may interfere with the most needy and vulnerable older persons receiving the legal assistance they need. Further, it may suggest that impact work is being decreased. If that is the case, it may cause AAAs to look increasingly to non-LSC providers so that high impact elder rights work and complex services continue to be provided for all older persons.
The data indicate that the majority of non-LSC providers have not increased the level of their impact and elder rights advocacy work. As a result, there may be an overall decrease in impact/elder rights advocacy work on behalf of vulnerable elders given the restricted ability of LSC providers to perform impact work.
As reported earlier (see page 11), approximately two-thirds of Title IIIB providers indicated that there had been "no change" in the levels of impact work they provided to older persons. While the large majority of Title IIIB providers have not increased the level of impact work they provide, LSC providers have had to reduce the level of impact work they provide since some of these activities are expressly prohibited by the recent LSC restrictions.
The stagnant level of impact work reported by Title IIIB providers, coupled with the mandated limitations on impact work provided by LSC providers, implies an overall decrease in the level of impact work provided on behalf of older persons.
Furthermore, 42% of area agencies on aging indicated that they do not encourage their legal assistance providers to participate in elder rights impact work (see page 11). As a result, impact work for older persons is often not viewed as a priority for legal assistance providers. Therefore, it is possible that some of the most meaningful types of elder rights advocacy are not being vigorously pursued on behalf of the most vulnerable elderly.
Over the past few years, the environment surrounding legal assistance for the most vulnerable elderly has become increasingly unstable. Funding cuts from Legal Services Corporation; stagnant or decreased Title IIIB funding; and the uncertainty of the Older Americans Act and legal as a priority service, have all affected the delivery of legal assistance to older persons. TCSG's national survey on legal assistance provides one of the first examinations of how states and localities are adjusting to these new limitations.
TCSG's survey suggests that the past few years have produced both positive and negative changes in the delivery of legal assistance to the elderly. However, the survey results raise real concerns about the level of joint planning between legal providers and the aging network in these times of upheaval. This period of crisis could have been a great opportunity for forging mutually supportive efforts to obtain new funding for legal assistance for the elderly (as happened in some states, such as Oklahoma and Washington) and/or for creating new delivery system methods that focused on elders' needs (states such as Vermont, Massachusetts, and Washington). These opportunities still exist, but it appears that more active efforts must be made in this area.
Furthermore, the survey results suggest that there is a need for a detailed examination by legal assistance providers for the elderly and the aging network of how the delivery system changes that have occurred have affected the delivery of legal assistance to the most vulnerable elderly. In particular the increased use of technology in intake systems, the increase in phone/brief advice and the decrease in the provision of complex legal assistance needs further study in relation to its impact on access to legal assistance by the most vulnerable elderly, as well as its impact on overall elder rights legal advocacy services.
Finally, the aging network must examine whether impact work on key elder rights issues is being reduced, and how it can be retained, expanded or enhanced. The reported shift towards brief advice and away from more complex levels of service may limit the degree of impact work provided for older persons. Further, the aging network needs to examine its own view of the role of legal providers in overall elder rights advocacy, especially in light of the survey finding that 42% of area agencies on aging do not encourage impact work by their Title IIIB legal providers.
This is a critical period for legal assistance for the elderly, and the results of TCSG's national survey suggest that much too little attention is currently being focused on the forces that are at work and their impact on protecting the legal rights of the most vulnerable elderly. The time is ripe for a concerted joint effort by legal providers and the aging network to reinvigorate legal assistance for the elderly at the local, state and national levels.
As reported in the September, 1996 issue of Best Practice Notes, on August 21, 1996, President Clinton signed the Health Insurance Portability and Accountability Act of 1996. Buried in this Act was the Medicaid Asset Transfer Criminalization provision which made it a federal crime to transfer certain assets in order to qualify for Medicaid. As advocates struggled with this vague and poorly worded law, public outrage began to grow. Often referred to as the "granny goes to jail" law, it appeared that the focus of this criminal penalty was the typical or prospective nursing facility resident: a frail older woman.
Reacting to a growing chorus of indignation over older, sick people in need of nursing home care being threatened with prison, Congress amended the Medicaid Asset Transfer provision one year later. The amendment, which was included in the Balanced Budget Act of 1997, was signed by the President on August 5, 1997. The amendment changes the focus of the criminal penalty: rather than criminalizing the actions of the older person who transfers assets to become eligible for Medicaid, the amendment criminalizes the actions of any individual who, for a fee, counsels or assists an individual to transfer his or her assets in order to become eligible for Medicaid. Thus, the essence of the old law remains, but the person to be punished shifts from the older person to the older person's advisor.
Medicare is the primary health care insurance for almost all Americans age 65 years or older. Medicaid is a needs-based health care program for uninsured Americans whose income and assets do not exceed certain state-specific limits. Since Medicare provides very limited coverage for long-term care such as nursing facilities, and only about five percent of nursing home residents have long-term care insurance, many older people that require long-term care must either pay for nursing care facilities privately or rely on Medicaid. Further, when many private-pay individuals ultimately deplete their savings, they turn to Medicaid for assistance. In an effort to qualify for Medicaid benefits, some individuals may attempt to divest themselves of their assets by transferring them to family members or setting up trusts rather than use their assets to support their long-term care needs.
B. Previous Laws & Penalties
Prior to August 21, 1996, Congress had addressed the issue of improper transfers and had established civil penalties for those people improperly transferring assets to qualify for Medicaid. Generally, under the Medicaid law, there is a set period of time (the "look back" period) during which the transfer of assets results in a period of ineligibility for Medicaid payment of nursing home care or care under a home and community based waiver. For most transfers, the look back period is the thirty-six months prior to application; in the case of certain trusts, it is sixty months prior to application.
For example, such things as making gifts or selling property without receiving fair market value during the three years prior to applying for Medicaid makes the applicant ineligible for Medicaid benefits for a certain amount of time. The period of ineligibility is equal to the value of all uncompensated asset transfers during the "look back' period, divided by the monthly cost of nursing facility services in the given state. There is no set limit on the resulting period of ineligibility. An individual may attempt to prevent the penalty by demonstrating that the assets were transferred for a purpose other than to qualify for Medicaid.
As mentioned above, on August 21, 1996, President Clinton signed the Health Insurance Portability and Accountability Act of 1996 ("Health Reform Act"). Although the primary focus of this act was to address issues of coverage and portability of health insurance, the act also established criminal penalties for transferring assets to become eligible for Medicaid. Specifically, the 1996 law added the new criminalization provision to the existing Medicare/Medicaid fraud law as follows. (New language is in bold) ("Title XIX" is the Medicaid Title in the Social Security Act.)
(a) Making or causing to be made false statements or representations.
(1) - (5)
(6) knowingly and willfully disposes of assets (including by any transfer in trust) in order for an individual to become eligible for medical assistance under a State plan under title XIX, if disposing of the assets results in the imposition of a period of ineligibility for such assistance under section 1917 (c)...
This new provision in the Medicare/Medicaid Fraud law was very poorly drafted and raised many questions among elder law attorneys, health care advocates and older persons themselves. It was not clear from the writing if the crime was a misdemeanor or felony, or if any penalty would occur for the transfer of assets; furthermore, it was not clear which transfers would be considered criminal or even if the provision would pass constitutional scrutiny.
C. Current Laws & Penalties
On August 5, 1997, President Clinton signed The Balanced Budget Act of 1997 which included an amendment to the Health Reform Act language by amending paragraph (6) above and clarifying the penalty section somewhat. The amendment reads as follows, new language is in bold:
(a) Making or causing to be made false statements or representations.
(1) - (5)
(6) for a fee knowingly and willfully counsels or assists an individual to dispose of assets (including by any transfer in trust) in order for the individual to become eligible for medical assistance under a State plan under title XIX, if disposing of the assets results in the imposition of a period of ineligibility for such assistance under section 1917 (c), shall
(ii) in the case of such a statement, representation, concealment, failure, conversion, or provision of counsel or assistance by any other person, be guilty of a misdemeanor and upon conviction thereof fined not more than $10,000 or imprisoned for not more than one year, or both. (To be codified at 42 U.S.C. _1320a-7b(a).)
Thus the potential criminal is no longer the individual who transfers the assets but the lawyer or financial planner who, for a fee, advises an individual in certain circumstances to transfer their assets in order to become eligible for Medicaid.
Further, the amended language clarifies that the provision of counsel or assistance for a fee is a misdemeanor rather than a felony, and is punishable by a fine of not more than $10,000 or imprisonment for not more than one year, or both.
As with the original Medicaid asset transfer provision in the Health Reform Act, there are serious ambiguities and questions surrounding this amended version. Much of what was unclear and ambiguous in the original language remains unclear. For a more detailed analysis of those ambiguities, see Best Practice Notes September, 1996.
Beyond this, the amended language poses new questions and concerns, particularly regarding the First Amendment right to free speech. The amended language indicates that disposing of assets itself is not criminal, but the counseling and assistance associated with such disposal is criminal. According to one expert in law and aging, this "raises a constitutional 'red flag' because of its criminalizing of certain speech regarding actions that are not themselves criminal." As a result of this amendment, lawyers, financial advisors and others commit a crime when they advise their clients of actions that are not themselves a crime.
Although the ramifications of this amendment are not yet clear, it is evident that this law has the potential to greatly affect older individuals' ability to obtain full and complete representation from lawyers, financial advisors, or other persons who provide advice or assistance for a fee. Such advisors are likely to be hesitant to discuss any aspect of Medicaid asset transfers, for fear that it will be misconstrued as counseling or assisting in a transfer of assets covered by this law and result in a criminal offense.
At this point, TCSG does not feel it can draw conclusions or provide answers as to how the aging network should deal with the criminalization of advising on Medicaid asset transfers. We will try to stay current on any and all developments and will be happy to share that information with anyone who contacts us.
A final note: At the time the 1996 law was enacted, there was much confusion about the origin of this amendment, with no one claiming authorship. The likely culprit seemed to be the long-term-care insurance industry. In the October, 1997 Consumer Reports article on long-term-care insurance, they clearly point the finger at the insurance industry, particularly regarding the 1997 amendment, and quote New York attorney Robert Freedman, as follows: "it's [the 1997 amendment] designed to have a chilling effect. The industry feels that if people can't do Medicaid planning, more people will buy [LTC] insurance."
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