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July 01, 2013

Getting Our Priorities Straight

David M. Godfrey

(Note: For a footnoted version of this article, please download the pdf issue of BIFOCAL Vol. 34, Issue 6.)

The April issue of Bifocal included quantitative data on legal service delivery to older adults in eight jurisdictions. This article goes a step further to explore what the data may tell us about how well we are meeting the priority legal needs of older Americans with the greatest economic and social needs—to see if we have our priorities straight.

Setting Priorities
Virtually all civil legal aid programs rely on priority-setting to focus limited service capacity on the legal issues that are most critical to clients. Most programs engage in a formal priority-setting process to define the legal issues and case types on which they will focus. Some programs set priorities informally—deciding what cases to take and what cases as they come in. Still others limit their focus overall, choosing to make their mission a specific legal issue.

A formal priority-setting process is required of all Legal Service Corporation (LSC) grantees. The board of every LSC-funded program must adopt written priorities based on an assessment of the needs of potential and current clients. LSC suggests priority issues as a starting point, but individual program priority-setting must consider the needs of their eligible clients and should include “all significant segments of that population with special legal problems or special difficulties of access to legal services.” The overlapping capacity of all legal service providers must be considered in LSC priority-setting. Priorities ration limited resources to provide legal assistance to the most critical legal issues.

Priority-setting needs to include provisions for flexibility. Unexpected legal challenges can emerge very rapidly. Programs must be able to adjust priorities as needed. LSC requires that a program’s board review priorities at least annually—and as needed—based on emerging client needs. When needs change and requests for cases outside established priorities rise, priorities can change as fast as a board meeting can be held.

While the Older Americans Act (OAA) does not mandate a formal priority-setting process the way that Legal Service Corporation regulations do, the Act does require state agencies to provide assurances that the area agencies on aging will “give priority to legal assistance related to income, health care, long-term care, nutrition, housing, utilities, protective services, defense of guardianship, abuse, neglect, and age discrimination” as part of their State Plans.

Identifying and Understanding the Client
The first step in priority-setting is to understand the legal needs of clients in the service area. Most legal aid programs have guidelines for client eligibility based on definable characteristics such as geographic location, age, income, and assets. For OAA-funded programs, eligible clients are persons age 60 and older; services are targeted to those with the greatest economic need (under the poverty level) and the greatest social need (as defined in the Act). In assessing an area’s needs, it is important to look at the needs of eligible clients and not just current clients; are there segments of the population not yet being reached by your services? The assessment of the legal needs of potential client can be done by survey, interview, or focus group. Effective assessment requires more than asking clients about their legal needs, it requires understanding the lives of those in the service area, the day-to-day challenges they face, and the legal needs that arise.

What Makes an Issue a Priority?
The key to priority-setting lies in weighing the relative importance of legal problems, sometimes a difficult calculation. Some issues, such as establishing eligibility for income-based housing, result in clearly quantifiable outcomes—you can place a dollar value on the benefit to the client. Other issues, such as avoiding or terminating an unnecessary guardianship, make a huge difference in the life of the client but do not have a clear dollar value. Both quantifiable and non-quantifiable issues need to be included in effective priority-setting and need to be valued in outcomes based on the difference they make in the life of the client.

To be a priority, an issue must have a viable legal solution. Some issues, such as basic applications for income-based housing are best resolved with a non-legal approach.

The issue must have a resolution that can be accomplished with available resources. The old wisdom of picking your battles applies to complex cases; cases requiring complex litigation must be very carefully selected based on priority issues, likelihood of success, and the residual impact on other similarly situated clients.

Priority issues should also be ones that make the biggest difference in the life of a client. Successful priority-setting should not just be about generating increased numbers of cases closed or clients served. For example, helping a client collect a judgment for $100 against a former landlord makes a modest difference in the life of that client; helping a client establish eligibility for $100 in monthly rental assistance has a larger and long-term impact. When faced with this choice, the sound choice is the one that has the greater and longer-lasting impact.

Priority-Setting Under the Older Americans Act
As mentioned earlier, the OAA does not mandate a formal priority-setting process; rather, it focusses on agency assurances that priority needs are being met. However, for the assurances to be meaningful and to truly focus on the priority issues and sub-issues, legal service developers, area agencies on aging, and legal aid programs must engage in active priority-setting.

The categories listed in the Older Americans Act are far too broad for effective issue prioritization; this scrutiny needs to be done at the subcategory level. For example, legal issues in long-term care can run the spectrum from private long-term care insurance to Medicaid benefits to caregiver abuse to unlawful discharge. Of older Americans with the greatest economic and social needs, few can afford private long-term care insurance—Medicaid is more likely to be a real legal need. Even within Medicaid cases there are many sub-issues; refinement in priority-setting will likely focus on core eligibility issues for the poorest of clients, rather than complex asset planning of use to clients with greater resources.

It is important to concentrate on the needs of the clients and not on the capacity or interests of staff. Talented staff can develop expertise in the issues that need to be priority issues for clients.

When setting priorities on a statewide level, it is important to consider regional differences. The priority legal needs of the target client population can vary significantly from area to area. For example, in a city with rent control, a primary housing issue may be keeping clients in affordable rental housing; in a nearby rural area without rent control and a high level of home ownership by very low income older adults, the primary housing issue may be qualifying older clients for property tax exemptions and deferrals. Priorities need to take into account the varying needs of clients at the local level.

What Does the Service Data Tell Us?
What does the legal service data tell us about how well we are meeting the priority legal needs of the neediest of older clients? In April we published legal service data we collected from eight jurisdictions last year. While the sample contains over 38,000 cases, the sample should not be construed as representing a national picture, only a report on the services from the reporting states. Here is the core data again, followed by an analysis.

Education and Juvenile Cases
Education cases represent a negligible number at 29 cases out of over 38,400 cases reported. Some of these may be access to education in later life, locating educational records, or grandparents raising grandchildren. Juvenile cases are also insignificant at far less than one percent of total cases reported. Grandparents raising grandchildren likely account for juvenile cases being included in Older Americans Act services.

Employment Cases
While the majority of older adults are retired, employment cases still come in at 2.04%, very much in line with the 2.9% reported by LSC for overall legal aid services. Continued employment is an important source of income for an increasing number of older adults and their employment issues and discrimination may account for this parity with the LSC percentage.

Individual Rights Cases
Individual Rights cases break down into subcategories of immigration, mental health, disability rights, civil rights, human trafficking, and other. At 2.25% of reported cases, it is slightly above the LSC report of 1.90% of cases. Looking at the data, there is not a noticeable source for the difference.

Income Cases
Income Maintenance case numbers are surprisingly low in comparison to LSC numbers (4.04% of Title III-B cases as compared to 12.7% of LSC cases). Breaking it down further, our data shows Social Security at 0.7% as compared to 0.3% of cases reported to LSC. Social Security retirement benefits are the cornerstone of income for lower-income retirees—accounting for more than 50% of income for more than 50% of seniors. Given this fact, one would expect legal aid programs serving older clients to be doing more work in this area. The data for Title III-B cases shows us 0.46% of the cases are Social Security Disability Income (SSDI) as compared to 1.4% for LSC cases. There is a narrow window between Title III-B eligibility at age 60 and retirement-age eligibility—but it is still surprising that the LSC number is three times what it is for Title III-B. Supplemental Security Income (SSI) was reported as just 0.59% of Title III-B cases as opposed to 3.7% of cases reported to LSC. There is likely an opportunity to reach more Title III-B clients with assistance on SSI. An argument can be made that effective priority-setting, development of staff expertise, and effective outreach would increase the number of clients facing income eligibility problems that OAA-funded legal networks are able to assist.

Health Cases
Health cases including Medicare and Medicaid seem low at 6.125%. For the overall legal aid population, LSC reports 3.1% of cases in the Health Care grouping. I would expect this number to be higher for the older population with the added complications of Medicare and Medicaid (as well as dual-eligibility for these two programs), and long-term services and supports.

Family Cases
Family Law cases at 6.91% is reasonably in line with expectations. This is much lower than the 34.4% of cases reported by LSC grantees. Older client populations are less likely to face divorce issues. When older clients do divorce, they are much less likely to have child custody and child support litigation, issues that contribute to higher LSC numbers.

Housing Cases
Census data tells us that homeownership peaks with the age group of 70-74 with more than 4 in 5 older adults owning a home. This is going to impact the kind of housing issues presented by Older Americans Act clients and, as expected, the data shows that the most common housing issues were related to homeownership. Overall Housing cases were a much smaller factor for this sample than for the general LSC legal aid population (16.6% for the Title III-B data compared to 26% for the general LSC population). Home owners face fewer legal challenges than renters. Low income homeowners will need help with foreclosure, tax exemptions, tax deferrals and home repair and modification programs essential to remaining in their home. Older renters, while smaller in number, will still need legal assistance with the challenges of being a tenant. While the numbers of cases will be smaller for older clients, legal assistance aimed at maintaining stable housing should be considered for the program priority list. The numbers reported by the Title III-B providers appear to be in line with expected needs.

Consumer Cases
Consumer law cases coming in at over 19% comprised a surprisingly large percentage. By comparison, LSC data for 2011 shows that consumer law issues were 11.7% of reported cases. Unless supported by evidence that older clients have a higher than average incidence of consumer law issues, the data could be interpreted to suggest the need for closer scrutiny in the amount of resources allocated to consumer cases.

Miscellaneous Cases
LSC includes wills and estates, and advance directives and powers of attorney in the broad category of Miscellaneous. You need to look at the sub-problem codes to see the details for these important issues for older clients. For an aging client base this will always be a high-demand area and some inheritance and planning for incapacity issues should be considered a priority. But, at 33.63% of services, with 14.61% for wills and estates, this number seems high. By contrast, in the general legal aid population, LSC reports only 5% of all cases fall into the Miscellaneous category. Some estate planning and probate work is necessary to retain housing or income that would otherwise be at risk. Successful advance directives and powers of attorney can minimize the need for guardianship. While some advance health care directives can be done by consumers, powers of attorney are a very complex area of the law that benefit greatly from legal counsel. Even taking into account these factors, the numbers here seem high. It is easy to say that older clients want wills, but priority-setting requires focusing on the legal needs as opposed to legal wants of clients.

Parsing out under what circumstances a legal provider serving seniors should draft a will or probate an estate for a client requires detailed priority-setting. An example from my earliest legal aid clerkship days is instructive. Because of limited capacity, the legal aid program I was working with only accepted divorce cases if a domestic violence restraining order had been filed and the couple had lived separately for more than 30 days. The logic behind this was twofold. An important priority was assisting victims of domestic violence. The law required a minimum 30-day separation before a hearing could be scheduled on a divorce case. By applying this detailed priority process, the program focused on helping victims of domestic violence with cases that could be scheduled immediately in the courts. Following this example, a program could limit writing wills or probating estates to cases essential to retaining housing, access to health care, or income. It is not easy to turn a case away, but the reality is that legal aid programs are forced to turn cases away when they reach capacity. When we can focus on the highest impact issues, we are getting our priorities straight.

A Gap in the Data
The increased focus on elder abuse, neglect and exploitation reveals a weakness in the LSC data reporting categories, a lack of a clear category for the tracking of cases relating to elder abuse, neglect, and exploitation. Domestic abuse is included as a sub-category of family law, but many elder abuse cases do not fit easily into the category of domestic violence. Some abuse, neglect, and exploitation issues are addressed through adult guardianship or via powers of attorney or advance directives, or even contract or real property. But without a clear reporting category, these cases are merged into the data for those issues. I encourage LSC to create reporting subcategories to measure the legal aid communities’ work to prevent and respond to the abuse, neglect and exploitation of vulnerable adults.

Priority-setting and data analysis work hand-in-glove to help us understand the high-impact needs of older Americans and how well we are meeting them. Data from Legal Service Corporation provides a starting point for data comparison, adjusting for differences between the priority needs of the general legal aid population and the unique needs of older clients. While data from eight states does not provide a perfect picture for the entire Title III-B legal service delivery system, a pool of over 38,000 reported cases give us a feel for how well we are meeting the priority legal needs of older clients. Every state and each provider needs to examine, at least annually, the priority legal needs of current clients and of potential clients and review the services being delivered. Comparing the two will tell us if we are meeting the most critical needs of clients, if we have our priorities straight.

David M. Godfrey

About the Author: David M. Godfrey is a Senior Attorney at the ABA Commission on Law and Aging.