Older Americans Act Reauthorization and the Legal Assistance Misconception

Volume: 33 Issue: 4

by

About the Author: Charles P. Sabatino is the director of the Commission on Law and Aging, American Bar Association, Washington, D.C.

A recent “Advocacy Alert” of the California Association of Area Agencies on Aging addressing the Older Americans Act Reauthorization contained a somewhat one-sided perspective on the legal assistance provisions in S. 2037, the reauthorization bill introduced by Sen. Bernie Sanders. The alert gives the impression that the provisions are calculated to undermine funding for legal assistance under the Older Americans Act. Senate bill 2037 contains three changes to the Act supported by the American Bar Association, the National Legal Aid and Defender Association, the National Senior Citizens Law Center, and several legal services providers. First, the bill would authorize the state to designate a state agency to contract for legal assistance services statewide. Second, it places responsibility on the state to develop an “integrated legal assistance delivery system,” a defined term in the bill. And third, it strengthens the credentials and role of the state legal assistance developer as the point person in developing the delivery system. These changes respond to key shortcomings that have stood out for the last four decades.1

A threshold, long-standing shortcoming is that we are currently meeting only a small portion of the legal needs of older Americans. A recent review of the most current data available shows that the actual need for legal assistance by older Americans living at the poverty level is about four times as great as the ability of the current system to meet the need.2 However, since neither Congress nor the states are inclined to add funding in the current environment, it is essential to use the funding most effectively and efficiently.

In FY 2008, the Administration on Aging spent slightly more than $25 million to fund legal assistance for older individuals. State and local funding sources add approximately another $25 million to the total. Despite this critical infusion of funding designed to assist elders, there are both funding and structural limitations in the current system that limit providers’ ability to achieve the full vision of the OAA.

Current Barriers

Variable Fragmented Funding

The locus of funding decisions for legal assistance is made at the local Area Agency on Aging (AAA) level, with the result that legal assistance funding is extremely variable and fragmented, both within states and from state to state. Statewide coordination and strategic planning are generally lacking. Legal assistance funded at the local level ranges from the funding of full-time attorneys working in public interest law offices, law school clinics, law firms, or governmental offices to part-time paralegals to the provision of an occasional community education program, to virtually no funding whatsoever. There are a small handful of exceptions to this fragmentation, but they represent unique circumstances not typical of the majority of states.

Unrecognized Impact Of Legal Assistance

Legal assistance funding flows through Title III-B and, therefore, competes for funding with the full panoply of elder service needs under that title. When AAAs prioritize funding or cuts in legal assistance versus concrete nutrition programs, transportation, or social services, legal assistance will often lose. This is even more likely if Title III-B providers feel compelled to target their legal assistance resources completing wills and powers of attorney or engaging in other high-volume, low-impact representation. Although legal assistance can have a profound and lasting effect on individual clients and the systems that serve them, the impact of legal assistance is typically less immediately visible. This is especially true because AAA staff overseeing these contracts and making decisions about funding allocations are likely to have little legal training and because legal assistance providers, under pressure to document large numbers of clients served, may fail to use their resources in the most compelling and effective ways.

Uneven and Fragmented Evaluation of Quality

The AAAs vary substantially in their ability to evaluate quality legal work or select capable and appropriate providers. This contributes further to the fragmentation of legal assistance functioning statewide, as there are generally no consistent statewide quality measures for choosing or evaluating legal assistance. Many AAAs have a tendency to focus on quantity rather than outcomes. Despite the cost effectiveness of systemic legal advocacy and coordinated state-wide collaboration, AAAs sometimes fail to understand the impact of that work and tend to subordinate it to one-on-one legal problem solving. Across and within states, elders sometimes benefit from full-service representation on a broad array of issues in one county, but are offered only a few informational sessions at senior centers in another county.

Conflicts of Interest

In funding legal assistance, AAAs often have an inherent conflict of interest arising from their funding of legal assistance and their ties to state and local government entities. Legal assistance providers may have to advocate on behalf of clients against the AAA or a government entity, such as when litigation is required to challenge a denial of home- and community-based services provided by the AAA, or legislative advocacy is required in which advocates support a position that differs from that of the state unit on aging. Zealous advocacy for elders is chilled when there is the real or perceived threat of loss of funding or when AAAs specifically prohibit or discourage providers from engaging in certain types of advocacy. While this kind of conflict exists whenever government funds advocacy services, it becomes extremely difficult to promote transparency in circumstances that vary across several hundred AAAs.

Inefficiency in Service Delivery

The AAAs’ service regions are often not consistent with the regions served by local legal assistance providers. Thus, AAAs may contract with several different legal assistance providers, while legal services providers might have multiple contracts with different AAAs in the region they serve, each of which may have its own contractual and reporting requirements, funding mechanisms, and other specifications. This results in more than 1,000 separate provider agreements. For example, in Michigan, one legal assistance provider has four separate contracts to provide services in eight of the 14 counties it serves, while other entities receive funding for the remaining six counties. In this instance, the combined AAA funding represents only 1.6 percent of the legal assistance provider’s total revenues, yet the provider must complete four different applications, participate in eight different site visits, and comply with different contractual requirements.3 The chaotic assignment of Title III-B legal assistance across regions and programs leads to substantial administrative inefficiencies, confusion, waste, and fragmentation of services.

Inconsistent and Inadequate Data Collection

The AAAs vary tremendously in the nature and extent of data they collect on the value of legal assistance they fund. There is no consistent, meaningful, national data collection about the nature, type, and most importantly, outcomes and impact of cases handled by Title III-B legal services providers. On the local level, AAAs typically require legal services providers to provide quantitative data about numbers of unduplicated clients served and units of service provided, rather than crucial qualitative information about the impact of the services, the range of advocacy tools employed, or the collaborations the provider engaged in to promote cohesive, informed, effective statewide advocacy and education efforts.

Underutilized, Underfunded, And Disempowered Legal Assistance Developers

In many states, the legal assistance developer has been underutilized, under-funded, and disempowered. Section 731 of the Act sets out the functions of the developer, including leadership and coordination in the provision of legal assistance; technical assistance and training to AAAs, legal assistance providers, ombudsmen and others; ensuring the state’s capacity to aid older individuals in understanding and exercising their rights; and more. The role is demanding and requires a great deal of skill and knowledge of legal assistance and institutions of law. Yet currently, many state developers have little or no legal training, have little authority to promote advocacy initiatives, and cannot devote significant time to these critical tasks because they have many other unrelated duties. Unlike the ombudsman program, there is no appropriation for the developer in the Older Americans Act.

Lack of Collaboration with Other Advocates for Elder Justice

At the state level, the Act’s Title VII elder justice provisions are sometimes implemented without adequate collaboration with legal assistance developers and legal assistance providers. Their lack of involvement weakens efforts to develop, strengthen, and carry out the array of programs for prevention of elder abuse, neglect, and exploitation that are authorized in sections 721(b) and 752 of the Act.

There have been countless attempts over the decades to overcome the fragmentation and lack of coordination, and initiatives such as Model Approaches have made a positive difference. But, in the long run, they continue to be eroded by the statewide structural fragmentation of legal assistance. There also are some legal assistance stellar programs operating under the current funding framework. Yet, they do not represent the norm. We have come to see that the local locus of decision-making ultimately creates a constant, formidable barrier.

Advantages of State Level Contracting of Legal Assistance

A change of contracting authority to the state level offers certain distinct advantages capable of overcoming the above barriers. It also poses some dangers that must be addressed by the imposition of adequate guidelines and a strengthening of the role of the legal assistance developer. State-level funding and contracting for legal assistance can:

  • Enable employment of a meaningful strategic planning process for development of an integrated and coordinated state-wide legal assistance delivery system. This requires state-wide participation of legal assistance providers, the legal assistance developer, AAAs, and others to develop a plan that most efficiently and effectively meets the priority legal needs of seniors and targets services for elders with the greatest social and/or economic needs.
  • Foster greater statewide strategic planning and coordination of problem response and advocacy by including cross-provider collaboration provisions in all contracts.
  • Facilitate the development and use of meaningful uniform standards for the delivery of legal assistance and its evaluation, both quantitative and qualitative, on a statewide basis.
  • Ensure the use of uniform data reporting requirements to enable better state-wide assessment of outcomes.
  • Enhance the efficiency of legal assistance providers by eliminating the existing duplicative administrative and reporting requirements necessitated by multiple provider contracts.
  • Reduce the potential for conflict of interest tensions at the local level between local providers and funders and the legal assistance program.
  • Promote greater transparency and accountability of legal assistance statewide.

Potential Negatives

The feared negatives to the change in contracting authority reflect valid concerns, but are addressable in very practical ways. A primary concern is that of leaving the area agencies entirely out of the decision loop. The AAAs know local circumstance better than state agencies. Without a doubt, the creation of an integrated legal assistance delivery system requires the close coordination of AAAs in the planning and implementation process to ensure understanding of local issues, identify resources and strategies, and evaluate implementation. If there are successful legal assistance programs functioning now in a state, the only change they should encounter is a reduction in administrative overhead they expend on multiple contracts, since they will have only one contract instead of one for each area agency they currently serve. The role of AAAs in the state-wide process can be clarified in reauthorization language in order to avoid short-changing their role.

Another concern has been a feared loss of local funding resources that currently supplement Title III-B funds in many areas. There is no reason that direct state funding should trigger a severing of local relationships or supplemental local funding. The funding structure does not make the legal needs of elders any less important locally. Nor should it eliminate a role for AAAs in the selection and implementation process. To the contrary, if these proposed changes demonstrably do a better job of meeting the legal needs of local residents more effectively, the motivation for local supplementation may be a greater delivery system.

States currently report the actual amount of Title III-B monies spent on legal assistance, as well as state and local supplementation, so there is no barrier to determining the baseline amount now spent versus funding under future scenarios. States are also currently required under the Act to specify a minimum percentage of III-B funds that are to be spent on legal assistance. Accountability for those expenditures can be enhanced by the greater transparency potential under a uniform statewide contracting and evaluation approach. This approach also substantially enhances to role of the state legal assistance developer who is in the pivotal position to foster and oversee the state’s responsibility for the planning, contracting, implementation, evaluation, and quality improvement. The legal assistance provisions in S. 2037 include important enhancements to the legal assistance developer’s qualifications and role.

One other structural piece that is not in the Sanders’ bill is a top priority for promoting success, regardless of whether the locus of funding decisions is changed. The Office of the Assistant Secretary has the authority to develop guidelines for states to use in selecting and evaluating legal assistance providers, but has never acted on that authority. Among likely reasons for inaction are the lack of expertise and the sheer number of competing priorities under the Act faced by the Assistant Secretary. The creation of a national legal advisory committee could effectively assist the administration in the development of quality standards and procedures.

Establishing quality standards for selection of providers and for program operations and reporting is a tremendously complex task. It benefits most from the diverse expertise of entities involved in and knowledgeable about legal assistance systems. Such standards are key to ensuring the accountability of states and legal assistance providers in carrying out their responsibilities. An example of this kind of advisory committee is included in S. 1819, another reauthorization bill introduced by Sens. Kohl and Mikulski. The bill creates “an Advisory Committee to Assess, Coordinate, and Improve Legal Assistance Activities.” This provision deserves to be merged with those in the Sanders’ bill to ensure the quality of a statewide legal assistance strategy.

Title III-B-funded legal assistance has a vast potential to change and improve the lives of vulnerable elders. While much good work is currently being accomplished, the success of the program is hampered by numerous needless barriers, inefficiencies, lack of coordination, and absence of a clear vision embracing individual representation, creative and varied systemic advocacy efforts, and coordination and collaboration with other legal and aging advocates. Many of the obstacles to achieving that vision are embedded in the current system of AAAs distributing and having complete discretion over Title III-B funding, coupled with inadequate coordination and support on the state and national levels. This proposal seeks to provide an alternative way of distributing funds and evaluating and coordinating services to more fully realize the goals of the Older Americans Act and to more effectively serve elders in the greatest social and economic need. 

Notes

  1. This article has adapted with permission substantial portions of the white paper by Alison E. Hirschel, Catherine C. Carr, Claire Curry, Robert Gillett, Paul Nathanson, and Don Saunders, Older Americans Act Title III-B Legal Services Funding: Ensuring Funds Support High Quality, Effective, Legal Advocacy (2010).
  2. David Godfrey, “In Search of Adequate Funding for Legal Assistance for Low-income Seniors,” 32 BIFOCAL 1 (Sept.- Oct. 2010).
  3. Alison E. Hirschel, et al., supra n. 1, at 4-5.

Advertisement

About Bifocal

Bifocal, the Commission on Law and Aging's bi-monthly journal, provides timely, valuable legal resources pertaining to older persons, generated through the joint efforts of public and private bar groups and the aging network.

Subscriptions

The Commission distributes Bifocal for free six times a year to elder bar section and committee members, legal services providers, elder law and other private practitioners, judges, court staff, elder advocates, policymakers, law schools, elder law clinics, law libraries, and other professionals in the law and aging network.

    Subscribe to Bifocal by e-mailing your name and professional affiliation to Trisha Bullock. Include the word "SUBSCRIBE" in the subject heading.

Contributing

Bifocal invites the submission of news about your elder bar section’s activities, as well as brief articles of interest to elder law and other professionals in the aging advocacy network.

    Share news about your entity’s initiatives towards the delivery of direct legal assistance to older persons in your particular area; pro bono and reduced fee programs; community legal education programs; multi-disciplinary partnerships; and new resources that are helpful to professionals and consumers.

    Also welcome are substantive law articles on legal issues of interest to state area agencies on aging, bar association entities, private attorneys, legal services projects, law schools, and others in the law and aging network.

    Bifocal is published bi-monthly. E-mail Andrea Amato for manuscript guidelines and deadline information for upcoming issues.

Bifocal Archive

Older issues of Bifocal are archived here.