Legal Assistance Under the 1992 Amendments to the Older Americans Act: The Act, Regulations and Legislative History

A. Historical Background

When originally enacted in 1965, the Older Americans Act did not address legal assistance. Between 1970 and 1974, however, the United States Senate Special Committee on Aging conducted hearings which provided evidence that the legal needs of the elderly were not being met. At that time, although some legal services were available to low income persons through local Legal Services Corporation (LSC) offices, few older people were receiving these services. Also, the majority of older people could not afford a private attorney and were not being served through the private bar. The problem was compounded by the scarcity of attorneys (in LSC and other legal aid offices) who had substantial knowledge of older persons' legal rights or experience in protecting those rights. It was concluded that advocacy in the form of specialized legal services had to be developed to help older persons (individually or as part of a class) enforce their rights. Congress responded to this need in 1975 when it incorporated legal assistance (then known as "legal services") into the Act.

In 1975, the Administration on Aging used $1.2 million of its section 308 Model Project funds to support law-related projects to assist in development of legal assistance programs for the elderly and substantive materials for use in training attorneys. From that beginning, the importance of legal assistance received increasing recognition. Over the years, state and area agencies have demonstrated growing support for legal assistance and increased recognition of the important role played by legal assistance providers as advocates for older persons. Under the Older Americans Act, this recognition has taken the form of specifying legal assistance since 1978 as one of three priority categories of services under Title IIIB; expanding Title IV to include training and national support on legal rights of the elderly; and requiring that each state unit on aging assign sufficient personnel to provide leadership in developing legal assistance programs for older individuals throughout the state.

A brief history and explanation of the Act are discussed below.

The Older Americans Act (42 U.S.C.A. 3001 et seq.) was enacted in 1965. Since that date, it has been amended twelve times. The Act is Congress' primary vehicle for providing services and funds for meeting the needs of older persons.

Title I of the Act declares its objectives. The Act expressly aims to improve the lives of older persons with respect to income; housing; restorative services; health; employment; retirement; civic, cultural and recreational activities; community services and aging research. Title II is the legislative basis for creation of the Administration on Aging (AoA) and the Federal Council on Aging. Title III authorizes development of supportive services, nutrition programs, in-home services for frail elders, disease prevention and health promotion services, and support services for caretakers of frail older persons through grants to the states which, in turn, allocate funds to area agencies on aging. Title IV provides funding for evaluation, training, research and demonstration projects in the field of aging. Title V provides for the development of community service employment programs for low-income persons 55 years of age and older. Title VI provides grants to Indian/tribal organizations for supportive and nutrition services. Title VII, created by the 1992 Amendments, authorizes funding for States to carry out vulnerable elder rights protection activities.

The 1967, 1969, 1972, 1973, 1974, 1975, 1977, 1978 and 1981 Amendments

A history of the amendments made to the Act between 1965 and 1981 can be found at pages 3 through 5 of the 1984 Report of the Senate Committee on Labor and Human Resources, S. REP. No. 467, 98th Cong., 2d Sess.:

"The Act was first enacted in the 89th Congress and has been amended nine times, in 1967, 1969, 1972, 1973, 1974, 1975, 1977, 1978 and 1981. The original Act established AoA as the Federal-level agency responsible for the administration of programs under the Act and authorized State and community social services programs and research, demonstration, and training projects. Provisions of the original legislation were extended by the amendments of 1967. The 1969 amendments strengthened the title III community service programs and charged State agencies on aging with statewide responsibilities for planning, coordination, and evaluation of programs for older persons. These amendments also added a program of area-wide model projects to test new approaches in meeting the social service needs of older persons, and authorized the foster grandparent and retired senior volunteer programs which provide for part-time volunteer opportunities for older persons. (These latter programs, currently administered by ACTION, were repealed as part of the Older Americans Act in 1973 and were incorporated into the Domestic Volunteer Service Act of 1973.)

"Major amendments to the Act occurred in 1972 and 1973. The 1972 amendments created the national nutrition program and authorized grants to public and nonprofit sponsors for the development of congregate meal services in order to meet the nutrition and social service needs of persons 60 years or over. In addition to providing meals, Congress envisioned the program to serve as an important vehicle for fostering social interaction among participants and to facilitate social service delivery.

"With the enactment of the 1973 amendments, the Older Americans Act was significantly revised and expanded by the creation of a nationwide network of area agencies on aging. Area agencies were given responsibility for planning and coordination of, and advocating for, programs for older persons within planning and service areas designated by State agencies on aging. Area agencies were to use their limited service funds as catalysts for garnering other service funds for older persons. The 1973 amendments also created a National Information and Resource Clearing House for the aging and the Federal Council on the Aging, and authorized grants for multipurpose senior centers and the community service employment program for older persons.

"The 1974 amendments primarily extended authority for the nutrition program for the elderly, and the 1975 amendments extended authority for the other components under the Act including the State and area agency and the community service employment programs. The 1975 amendments also established certain services as priority services under the title III program--transportation, in-home services, legal services, and residential repair services. The amendments in 1977 made minor adjustments in the Act, including extending authorization for donated commodities assistance by the U.S. Department of Agriculture.

"Amendments made in 1978 further strengthened and expanded title III of the Act by consolidating the social services, multipurpose senior center, and nutrition services portions of the Act (previously authorized under separate titles and under separate administrative authorities) in an expanded title III. These amendments modified the requirement for priority services by requiring that 50 percent of each area agency's allotment be expended on access, in-home, and legal services. In addition, a separate authorization for home-delivered meals under title III was made. The previous requirement that State and area agencies develop annual plans on aging was altered to allow for a 3-year planning cycle. These amendments also required each state agency to develop a statewide nursing home ombudsman program and added a new title VI to the Act authorizing grants for social and nutrition services to Indian tribal organizations. The community service employment program was amended to raise the income eligibility requirement for participants from the poverty level to 125 percent of the poverty level and to increase the proportion of funding to States under the program.

"The 1981 amendments provided for a 3-year extension for the Act and made certain modifications designed to give State and area agencies more flexibility in administering the title III program. These amendments included modifying State and area planning requirements to allow for plan development on a 2-, 3-, or 4-year basis, to replace prior law requirements for a 3-year planning cycle; modifying the priority service requirement by requiring each area agency to spend an "adequate proportion" of funds on priority services to replace the prior law requirement for a fixed percentage of funds; and allowing a State to transfer up to 20 percent of the separate allotments for supportive and nutrition services between such allotments. Other amendments included placing a fixed authorization level on the U.S. Department of Agriculture commodity program which supplements title III funds for nutrition services. Under title IV, authorizations for certain training, research, and demonstration activities were consolidated. Other amendments emphasized the transition of title V participants to private sector employment under the community service employment program, and eliminated an age definition for older Indians under the program of grants to tribal organizations. Authorization for the National Information and Resource Clearing House for the Aging was eliminated." (Emphasis added.)

The 1984 Amendments

The 1984 amendments to the Act made a number of technical changes. The term "legal assistance" replaced "legal services," and "older individual" was defined for Title III purposes as "any individual who is 60 years of age or older." The amendments also required that, in the delivery of services, particular attention be paid to minority low-income individuals. "Greatest economic need" was defined as "income below the poverty threshold as established by the Bureau of the Census" and "greatest social need" was defined in terms of "non-economic factors which include physical and mental disabilities, language barriers, and cultural or social isolation including that caused by racial or ethnic status and which restrain an individual's ability to perform normal daily tasks or which threaten his or her ability to live independently."

Regarding services, the amendments: referenced services to prevent elder abuse; increased authority of states to transfer funds between supportive and nutrition services; required that states spend some service funds for effective demonstration projects in health and nutrition education; and required area agencies annually to detail the amount expended for each category of "priority service" (including legal assistance) during the previous fiscal year. The language requiring that an "adequate proportion" of funds be spent on priority services was modified to require that an "adequate proportion" be spent on "each" priority service.

The 1984 amendments authorized states to use a portion of their services allotment for state agency administration, in lieu of separate authorization of funds for state agencies. States were also required to assign personnel to provide state leadership in developing legal assistance programs and to provide in-service training for personnel of agencies and programs under the Act.

The 1987 Amendments

The 1987 amendments to the Act contained numerous provisions which impacted on legal assistance.

The 1987 amendments retained the requirement that an "adequate proportion" of Title IIIB funds be expended for each of the three priority services: access, in-home, and legal assistance but added a new provision requiring state plans to specify a minimum percentage of the funds received by each area agency for Title IIIB services which must (absent a waiver by the state) be used to provide each of the three priority services.

Similarly, the act retained the waiver requirements in place prior to the 1987 amendments with some additional requirements. Thus, an area agency requesting a waiver of the requirement that an "adequate proportion" of Title IIIB funds be expended on any one of the three categories of priority services must: (1) demonstrate that services being provided for such category are sufficient to meet the need for such services in the area; and (2) conduct a public hearing, after notice regarding the waiver. An area agency must seek a waiver whenever it proposes to fund legal assistance, access, or in-home services at or below the "minimum proportion" set by the state. Whenever a state agency proposes to grant a waiver, the state agency must publish its intention to do so with the justification for the waiver at least 30 days prior to the effective date of the decision to grant the waiver. During the 30 day notice period, an individual or service provider from the area may request a hearing before the state agency on the waiver request and the state shall afford an opportunity for such a hearing. State agencies granting a waiver of the minimum funding requirement for legal assistance, access or in-home services are required to provide the Commissioner on Aging with a report detailing the demonstration made by the area agency to obtain the waiver and copies of the records of the public hearings conducted by both the area agency and the state agency. The Commissioner must, in turn, provide an analysis of such reports to Congress.

For fiscal years beginning after September 30, 1988, the Administration on Aging is required to collect and report to Congress statistical data and analyses regarding programs and activities carried out with funds provided by the Act, including:

A. with respect to each type of service provided with such funds-

(1) the aggregate amount of such funds expended to provide such service;

(2) the number of individuals who received such service;

(3) the number of units of such service provided;

B. the number of senior centers which received such funds;

C. the extent to which each area agency satisfied the provision of the Act requiring that an adequate proportion of Title IIIB funds be expended for each of the three priority services (access, in-home, and legal assistance), and an analysis of information from states regarding waivers granted for funding priority services;

D. the extent to which each area agency has satisfied the requirement that preference be given to serving those in greatest social and economic need with particular attention to low-income minority individuals, and an analysis of information regarding the effectiveness of state and area agencies in targeting services to those in greatest need with particular emphasis on low-income, low-income minority, and frail individuals.

Also, under a new provision in the Act, the Commissioner on Aging was required to submit a report to Congress by September 30, 1989 assessing the unmet need for supportive services (such as legal assistance), nutrition services and multipurpose senior centers. This report was to summarize in detail for each state the results of the most recent evaluation conducted by the State Agency under the then current state plan. The report was to recommend administrative action and legislation relating to satisfying the demand for supportive services at senior centers and other sites. The Act specifically authorizes the Commissioner on Aging to issue regulations to ensure that the evaluations required to be summarized in the report include data that are objectively collected and statistically valid.

The 1987 amendments also provided that State and area agencies are prohibited from requiring a legal assistance provider from revealing information that is protected by the "attorney-client privilege."

Finally, the Act continued to stress targeting services to those in greatest social and economic need with special emphasis on low-income minority individuals. The amendments mandated that area agencies include in each agreement made with a provider of any services the requirement that the provider (1) specify how it intends to satisfy service needs of low-income minority individuals; and (2) attempt to provide services to the population of low-income minority individuals in at least the same proportion as that population bears of the older population as a whole. Similar provisions have been added to both the state and area plans sections of the Act.

The 1992 Amendments

The 1992 Amendments to the Older Americans Act brought about significant changes, many of which impacted upon legal assistance. Perhaps the most significant change was the addition of Title VII, which called for State vulnerable elder rights protection activities.

Title VII consolidates and strengthens four key advocacy programs: ombudsman (Chapter 2); prevention of elder abuse, neglect and exploitation (Chapter 3); state elder rights and legal assistance development (Chapter 4); and outreach, counseling, and assistance for insurance and public benefits (Chapter 5). Each of these programs previously existed in other sections of the Act; Title VII brings them all together. In order to be eligible to receive funding for any Title VII program, a State must fulfill all Sec. 305 requirements, and must include seven new assurances, and a plan for implementing those assurances (an "Elder Rights Plan") in its State Plan. Any funds which a State does receive must be used to expand existing vulnerable elder rights protection activities, or to develop new ones.

Chapter 4 of Title VII outlines a program at the state level for improving the quality and quantity of legal and advocacy assistance "as a means for ensuring a comprehensive elder rights system." State agencies are required to foster legal assistance and advocacy activities through coordination with, and assistance to, area agencies on aging and other entities engaged in advocacy activities. Chapter 4 specifically sets out nine functions which a State is to undertake in order to achieve the objective of promoting and protecting the rights of older individuals. This enumeration of State roles and responsibilities comprises the bulk of Chapter 4.

The provisions of the Act concerning the ombudsman program have been moved from Title III to Chapter 2 of Title VII. The Amendments clarify these provisions, and further delineate the ombudsman's duties and responsibilities. Included among the ombudsman's duties are: (1) representation of the interests of residents before governmental agencies and investigation of legal and other remedies to protect the residents' health, safety, welfare, and rights; (2) identification and resolution of complaints regarding guardians and representative payees of residents; and (3) ensuring that residents have access to ombudsman services. The Amendments also specify procedures for access to records, and clarify what constitutes consent to disclosure of a resident's identity. In addition, the Amendments explain the State's duties regarding provision of legal counsel to the ombudsman and representatives of the Office, and provision of legal assistance services to residents of long-term care facilities.

The 1992 Amendments require the Assistant Secretary to develop guidelines for choosing and evaluating legal assistance providers and legal assistance developers; to encourage and provide TA to State and area agencies on aging; and to implement uniform data collection procedures for State agencies. In addition, the Assistant Secretary must monitor state compliance with the prohibition of conflicts of interest under the Act, and issue regulations containing certain requirements for the designation of an area agency on aging.

Also established by new provisions are a National Center on Elder Abuse, a National Aging Information Center, and a National Ombudsman Resource Center.

The 1992 Amendments clarify and expand the duties and functions of State agencies on aging. The State Plan now requires area agencies to give priority to legal problems related to health, long-term care, nutrition, income, housing, utilities, abuse, neglect, defense of guardianship, and age discrimination. In addition, the Plan must specify that the State will assign a legal assistance developer who will provide leadership in the development of legal assistance programs for older individuals. The State Plan must also provide assurances that individuals within State and area agencies on aging are not subject to a conflict of interest. Finally, the State Plan must contain several new assurances and an implementation plan (an Elder Rights Plan), as required by Sec. 705(a).

New provisions specify which factors the State agency must take into account in developing its intrastate funding formula, and require that the formula be submitted to the Assistant Secretary for approval. If the Assistant Secretary does not approve the formula provisions, and the State does not fulfill the State Plan requirements, the Assistant Secretary is authorized to withhold that State's funding.

Throughout the Amendments, the drafters strongly emphasize targeting by State and area agencies on aging and all service providers including legal assistance providers, to those in greatest social and economic need, with particular attention to low-income minorities.

The 1992 Amendments also added various provisions regarding area agencies on aging. These indicate that area plans must establish procedures for coordinating entities which provide services to older persons; establish grievance procedures for older persons who are dissatisfied with or denied services under Title III; and coordinate with nonprofit entities to provide for the development, provision, and expansion of supportive services. In addition, area plans must ensure that special outreach efforts will be used to identify older individuals residing in rural areas; those with severe disabilities, with limited English-speaking ability, or with Alzheimer's disease, who are eligible for assistance under the Act.

The Technical Amendments of 1993 also made a number of changes to the Act. The amendments redesignated the Commissioner on Aging's position as Assistant Secretary for Aging, and changed the titles of various other officers within the Administration on Aging. In addition, the technical amendments deferred the effective dates of certain provisions of the Act, and extended the date for holding a White House Conference on Aging to May 31, 1995.