This Month's News
The Senate Judiciary Committee approved a bipartisan bill May 15 that would provide grant funding for a new electronic National Domestic Violence Volunteer Attorney Network to be established and maintained by the ABA Commission on Domestic Violence. Read more...
The ABA urged Congress last month to increase funding and establish an independent budget line item and budget authority for the Law Library of Congress, which – as part of the Library of Congress’s collection of 130 million items – houses more than 2.3 million legal volumes and periodicals from around the world and is the world’s largest repository of legal materials. Read more...
The ABA last month expressed its strong support for the Legal Services Corporation (LSC) and its role in helping close the “justice gap” to ensure access to justice for all Americans, emphasizing the lack of resources that is preventing legal assistance to 80 percent of those who qualify. Read more...
The House passed tax legislation May 21 that includes an ABA-supported provision to reinstate for one year the tax-preferred status of qualified group legal services plans. Read more...
The ABA urged Congress last month to provide the Social Security Administration (SSA) with sufficient funds to allow the agency to continue reducing the unprecedented backlog of disability claims and to build the infrastructure necessary to manage the significant workload challenges presented by the growing number of disability and retirement claims being filed by aging baby boomers. Read more...
The House Education and Labor Committee May 14 approved legislation supported by the ABA to establish basic health and safety standards to prevent child abuse and neglect at public and private residential treatment facilities for troubled teens. Read more...
WASHINGTON NEWS BRIEFS
IRS FUNDING: An increase in funding is essential for the Internal Revenue Service to enable the agency to continue to provide enhanced assistance to taxpayers and vigorously enforce the federal tax laws, including pursuing efforts to address the “tax gap,” the ABA recently told the chairmen and ranking members of the House and Senate Appropriations Subcommittees on Financial Services and General Government. Read more...
ELDER JUSTICE ACT: The House Judiciary Committee began markup last month of H.R. 1783, which would create an infrastructure and provide resources for a nationally coordinated strategy in collaboration with the states to address the growing problem of elder abuse, neglect and exploitation. Read more...
Bill would create Domestic Violence Volunteer Attorney Network
The Senate Judiciary Committee approved a bipartisan bill May 15 that would provide grant funding for a new electronic National Domestic Violence Volunteer Attorney Network to be established and maintained by the ABA Commission on Domestic Violence.
Sponsored by Sens. Joseph R. Biden Jr. (D-Del.) and Arlen Specter (R-Pa.), S. 1515 is identical to H.R. 6088, which was introduced May 20 by House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) and Rep. Ted Poe (R-Texas).
Under the proposed legislation, the ABA Commission would work in collaboration with the ABA Standing Committee on Pro Bono and Public Service and other national domestic violence and pro bono organizations to solicit volunteer lawyers and provide appropriate mentoring, training and technical assistance to those who volunteer.
Sponsors of the legislation hope to recruit thousands of new volunteer lawyers to help the thousands of victims who go without representation each year in a system comprised of a patchwork of law school clinics, individual state domestic violence coalitions, legal services organizations and private attorneys.
Additional funding under the act would go the National Domestic Violence Hotline for updating its system and for training volunteers to provide legal referrals to callers in coordination with the ABA Commission. The Hotline, a nonprofit organization established in 1996 as a component of the 1994 Violence against Women Act (VAWA), received a total of 236,907 calls from victims of domestic violence in 2007, and the second most frequent reason victims called the Hotline was to ask for legal help.
The referral effort would begin as a pilot project and roll out in five diverse states, where state legal coordinators would administer efforts in their states to connect with the ABA Commission, the Hotline, and volunteer lawyers to meet the legal needs of domestic violence victims.
The legislation also would require the National Institute of Justice to conduct a study covering the scope and quality of legal representation and advocacy for victims of domestic violence, dating violence and stalking, including the provision of culturally and linguistically appropriate services.
Guidance for all of the programs under the legislation would be provided by a Domestic Violence Legal Advisory Task Force comprised of experts in the field. The task force would report to Congress every two years.
Biden, who also was an original sponsor of VAWA, said, “When victims can obtain effective protection orders, can initiate separation proceedings, and can rely on safe child custody hearings, they are more likely to come out of the shadows.”
ABA Commission Chair Pamila J. Brown emphasized that the Commission is a national leader with respect to domestic violence and is already in the business of providing training and assistance to attorneys on an ongoing basis.
“We all know that access to legal services is key to combating domestic violence,” said Brown, who is an associate judge in the Tenth Judicial District for the District Court in Howard County, Maryland. She said that the legislation would “go a long way toward providing resources for victims.”
The ABA is urging prompt Senate consideration of S. 1515, and quick action is expected in the House on H.R. 6088, which is pending in the House Judiciary Committee.
ABA seeks increased resources for Law Library of Congress
The ABA urged Congress last month to increase funding and establish an independent budget line item and budget authority for the Law Library of Congress, which – as part of the Library of Congress’s collection of 130 million items – houses more than 2.3 million legal volumes and periodicals from around the world and is the world’s largest repository of legal materials.
“The magnitude of these priceless collections renders their value to our nation and the world, as well as the challenges to their daily administration, unique,” testified former Rep. William Orton, a member of the ABA Standing Committee on the Law Library of Congress.
Orton, who appeared May 7 before the House Appropriations Subcommittee on the Legislative Branch to discuss fiscal year 2009 funding, emphasized that the Law Library, with its massive collection and the launch of auspicious initiatives such as the Global Legal Information Network, is recognized as “the ultimate source of international trade law and an anchor for the rule of law worldwide.”
He emphasized that budget shortages do not merely represent the loss of new or special projects for the Library of Congress and the Law Library but that repeated underfunding has undermined the daily operations and the aspirational mission on which each was formed.
Despite an ongoing commitment from the Librarian of Congress to dedicate surplus funds to reduce the Law Library’s backlog in cataloguing and classification, Orton said that nearly one-third of the Law Library’s volumes remain uncatalogued and are accessible only to select Law Library staff. Were it not for special funds made available by Congress a few years ago, the Law Library would not have been able to make progress with implementing the model K classification system, which is the standard for law libraries nationwide, Orton said. He added that “there have been moments when qualified observers feared the Law Library was at risk of becoming a museum” rather than a world class institution.
Recounting Congress’ repeated failure to provide adequate funding for both the Library of Congress and the Law Library, Orton said that, until some better method is derived, the most practical way to improve matters is to create and require for the future an independent line-item and budget authority for the Law Library in the Library of Congress budget, a proposal advanced by Sen. Ted Stevens (R-Alaska). Orton indicated that the ABA, along with the American Association of Law Libraries, has been working with Rep. Zoe Lofgren (D-Calif.) to draft legislation seeking implementation of the federal budget line-item. The bill also would promote other steps toward enhancing the Law Library’s services, including authorization of a private-public foundation to support the Law Library’s ongoing projects.
In addition, Orton urged the subcommittee members to provide a special appropriation of $3.5 million to the Law Library to cover staff and resources necessary for bringing the collection current, explaining that the job requires highly trained professionals experienced in the cataloguing and classification of foreign law materials.
He said the ABA also is exploring opportunities for the legal community to provide pro bono assistance to the Law Library to help reduce the catalogue and classification backlog.
ABA says LSC is key to closing justice gap
The ABA last month expressed its strong support for the Legal Services Corporation (LSC) and its role in helping close the “justice gap” to ensure access to justice for all Americans, emphasizing the lack of resources that is preventing legal assistance to 80 percent of those who qualify.
“Local legal services offices are functioning much like hospital emergency rooms, engaging in legal triage as they attempt to cope with the enormous unmet legal needs,” testified Judge Lora J. Livingston, a member of the ABA Standing Committee on Legal Aid and Indigent Defendants.
Livingston, appearing before the Senate Judiciary Committee at a May 22 hearing on “Closing the Justice Gap,” said that the nation’s credo of liberty and justice for all is empty rhetoric without significantly more resources to ensure a comprehensive national delivery system for civil legal aid.
She pointed out that 50 million individuals qualify for federally funded legal assistance, a marked increase from just ten years ago when 45 million Americans were eligible for LSC-funded representation. Many have become poor suddenly, she explained, because of natural disaster, loss of a job, the breakup of their family, housing loss or uninsured medical care.
Livingston emphasized that LSC-funded programs are the nation’s primary source of legal assistance for women who are victims of domestic violence, and recent studies show that the only public service that reduces domestic abuse in the long term is a woman’s access to legal aid.
The LSC’s fiscal year 2008 appropriation is $350.5 million. That figure, Livingston said, is well below the $759 million that the program would have now if funding had kept up with inflation since 1981, when the program had sufficient funding to provide two lawyers for every 10,000 poor people. The ABA is joined in its support for at least an additional $50 million in funding for the program in fiscal year 2009 by 55 senators and bar presidents in every state, the District of Columbia and two territories.
LSC President Helaine Barnett stressed that LSC programs are experiencing an alarming increase in the demand for services due to the foreclosure crisis and the impact of natural disasters. She also testified that the LSC is implementing changes in management and governance practices that were recommended by the Government Accountability Office (GAO) in two recent audits of the LSC. The LSC is scheduled to provide GAO with a final update on its implementation of the recommendations by Sept. 1, 2008.
Sen. Benjamin Cardin (D-Md.), who chaired the May 22 hearing, said he is pleased that the LSC has taken a number of strong steps to address the problems identified by GAO.
“I want to work with my colleagues to strengthen and improve the LSC,” Cardin said. Pointing out that the LSC has not been reauthorized since the 1970s, he said, “We need to comprehensively reexamine the LSC to meet the challenges of the 21st Century, which will include examining the funding authorization levels for LSC and the current restrictions on the use of LSC funds.”
Cardin specifically raised questions about whether pro bono legal services might be federally mandated or required by individual states as way to help close the justice gap. In a May 29 followup letter to Cardin, ABA Governmental Affairs Director Thomas M. Susman said the ABA strongly encourages and supports pro bono and public service benefiting low-income individuals and organizations that serve the poor. He indicated, however, that the ABA, after thorough examination and debate, rejected the inclusion of mandatory pro bono requirements when the House of Delegates approved revisions in 2002 to the ABA Model Rules of Professional Conduct.
The ABA Standing Committee on Pro Bono and Public Service maintains that mandatory pro bono would not constructively help solve the justice gap and could actually be counterproductive because it would:
•detrimentally and disproportionately impact small firms and solo practitioners and newer lawyers, who do not have the resources to absorb the impact of the requirement;
•hurt lawyers’ morale and reduce other altruistic inclinations; and
•detrimentally impact the quality of service provided to low-income clients because lawyers would be required to provide representation outside of their areas of expertise.
Susman offered the ABA’s assistance in not only strengthening the LSC and other governmental programs designed to provide free or reduced-cost legal services, but also to expand opportunities for voluntary pro bono participation.
|Judge Lora J. Livingston (left), a member of the ABA Standing Committee on Legal Aid and Indigent Defendants, testified on closing the justice gap at a May 22 Senate Judiciary Committee hearing. Other panelist included (from left): Jo-Ann Wallace, president and CEO, National Legal Aid and Defenders Association; Wilhelm Joseph, executive director, Maryland Legal Aid Bureau in Baltimore, Maryland; Kenneth Boehm, chairman, National Legal and Policy Center; Jeannette M. Franzel, director, Financial Management and Assurance Team, U.S. Government Accountability Office; and Rebekah Diller, deputy director, Justice Program, Brennan Center for Justice, New York University Law School.|
Group legal services exclusion included in tax bill
The House passed tax legislation May 21 that includes an ABA-supported provision to reinstate for one year the tax-preferred status of qualified group legal services plans.
H.R. 6049, passed by 263-160 vote, would amend the Internal Revenue Code of 1986 to extend Section 120, which was enacted in 1976 to encourage employers to provide group legal services benefits for employees and their families by allowing employees to exclude from gross income the cost of the benefit up to $70 per year.
Basic services provided under most plans include legal advice and consultation by telephone and may also include brief office consultations, review of simple legal documents, preparation of simple wills, and short letters written or phone calls made by a lawyer to an adverse party. Other plans offer more comprehensive coverage for trials, marital problems, bankruptcy and real estate matters.
When the provision expired in 1992, many employers discontinued their group legal benefit plans, which caused their employees and retirees to lose access to affordable preventative legal services.
In a May 15 letter to House Ways and Means Committee Chairman Charles Rangel (D-N.Y.), ABA Governmental Affairs Director Thomas M. Susman expressed the ABA’s longstanding support for the Section 120 provisions.
“Group legal plans efficiently and inexpensively provide basic legal services to covered workers and their families,” Susman wrote. The plans, he said, allow covered individuals to address legal issues before they become significant problems, reducing demands on already burdened court systems and instilling confidence in the justice system.
Susman emphasized that Americans are more aware than ever of the need for legal advice as a result of recent natural disasters and current economic uncertainty, pointing out that new legal issues such as consumer fraud and the mortgage foreclosure crisis continue to arise and disproportionately affect lower and middle income workers and families.
Proponents of Section 120 are urging the Senate Finance Committee to include the extension without the $70 cap when the committee takes up the tax bill, which is considered must-pass legislation for this year.
Legislation to reinstate Section 120 has been introduced in the past several Congresses. This Congress, Reps. Fortney H. “Pete” Stark (D-Calif.) and David Camp (R-Mich.) introduced H.R. 1840, a bill to make the provision permanent, and the bill has 36 cosponsors. Sens. Gordon Smith (R-Ore.) and Blanche Lincoln (D-Ark.) introduced S. 1130, a companion bill that now has eight cosponsors.
SSA needs more funding to address disability claims backlog
The ABA urged Congress last month to provide the Social Security Administration (SSA) with sufficient funds to allow the agency to continue reducing the unprecedented backlog of disability claims and to build the infrastructure necessary to manage the significant workload challenges presented by the growing number of disability and retirement claims being filed by aging baby boomers.
In a letter for the record of an April 23 House Ways and Means Committee hearing on the issue, then ABA Governmental Affairs Acting Director Denise A. Cardman commended the committee for maintaining a sharp focus on working to solve a set of agency problems that inflict “a terrible human toll on hundreds of thousands of Americans who are disabled and suffering financially due to the loss of their income and who are unable to obtain timely and fair determinations of their disability claims.”
The ABA has a long-standing interest in the SSA’s disability benefits decision-making process, and the association has worked actively for more than two decades to promote increased efficiency and fairness in the system, Cardman said. The Section of Administrative Law, the Judicial Division and the Commission on Law and Aging have worked to develop ABA recommendations over the years. The most recent policy, adopted in April 2008 by the Board of Governors, addressed the SSA’s administrative budget.
In the letter, Cardman noted that the $10.460 billion budget for fiscal year 2009 proposed by President Bush, although a six percent increase over fiscal year 2008, is inadequate to provide mandated services in a timely manner and to promptly and fairly adjudicate applications for disability insurance and supplemental security income benefits.
House Ways and Means Committee Chairman Charles Rangel (D-NY), called the hearing because he was “alarmed by the deterioration in service to our constituents and the suffering of those who must wait years to receive benefits they desperately need.” In recent years SSA’s workload has grown significantly due to the aging of the population and new responsibilities stemming from Medicare and homeland security legislation. Despite a productivity increase of more than 15 percent since 2001, the administrative funding SSA has received has been well below the level to provide the resources needed to keep up with this growing workload, according to background information provided by the committee. For example, by the end of calendar year 2007, SSA staffing had dropped to almost the level in 1972 even though SSA’s beneficiary population has nearly doubled since that time.
During the hearing, SSA Commissioner Michael J. Astrue said that progress is being made in fixing the SSA’s service delivery problems. He said that between Labor Day and the end of the year, changes will include streamlined online filing, at least 175 new administrative judges in place, and the full shift from paper to electronic systems in the Office of Disability Administration and Review. He emphasized, however, that the SSA needs at least the full amount of funding requested by the president for the upcoming fiscal year to meet its commitment to eliminate the hearings backlog by the end of fiscal year 2013.
Legislation seeks to end abuse in residential facilities
The House Education and Labor Committee May 14 approved legislation supported by the ABA to establish basic health and safety standards to prevent child abuse and neglect at public and private residential treatment facilities for troubled teens.
H.R. 5876, sponsored by committee Chairman George Miller (D-Calif.) and Rep. Carolyn McCarthy (D-N.Y.), would direct the Department of Health and Human Services (HHS) to develop minimum standards and then require the states to begin implementing the standards within three years of the new law’s enactment. The standards would prohibit employees at facilities from denying those in their care necessities such as food and shelter and from physically restraining them except when necessary for the safety of others. The standards also would prohibit physical, sexual and mental abuse, and would require programs to be prepared for medical emergencies.
Under the bill, HHS would conduct unannounced inspections of treatment facilities at least once every two years, and civil penalties of $50,000 per violation could be assessed. HHS would establish a website with information about each residential program. The government would be barred, however, from releasing personal information about abuse victims.
Another aspect of the legislation targets deceptive marketing practices that lead parents to believe that programs are covered by insurance plans or that those participating in the residential programs will receive transferable education credit.
Testimony last fall from parents of children who died as a result of abuse and neglect in treatment facilities left everyone “stunned, heartbroken and angry,” Miller said at an April 24 hearing. He said that his legislation “takes a first step toward finally ending the horrific abuses that have gone on for too long in private residential programs for teens.”
During the hearing, representatives of the Government Accountability Office (GAO) released the results of an investigation conducted between November 2006 and March 2008 that revealed thousands of instances where teenagers sent to residential facilities because of disciplinary and behavioral problems were allegedly abused. State data collected by HHS in 2005 revealed 1,503 incidents of maltreatment by facility staff in 34 states, and 28 states reported at least one death in residential facilities in 2006.
The report found that protecting youth in residential facilities requires particular vigilance on the part of parents and responsible government agencies, and the current federal-state oversight structure is inadequate to protect youth from maltreatment. The GAO will be issuing a followup report shortly that will include recommendations for restructuring the process.
In a statement submitted for the record of the hearing, then ABA Governmental Affairs Acting Director Denise A. Cardman expressed strong ABA support for H.R. 5876.
Parents who have to place their child in a residential facility should have the reassurance that “their child will be safe, properly cared for, their human rights and dignity protected, and that the staff of the facility is appropriately qualified to help their child,” Cardman wrote. “For such parents,” she said, “the Stop Child Abuse in Residential Programs for Teens Act represents a significant and necessary federal step to help protect American children and youth from abuse and neglect in residential care.”
COMPLETE WASHINGTON NEWS BRIEFS
IRS FUNDING: An increase in funding is essential for the Internal Revenue Service to enable the agency to continue to provide enhanced assistance to taxpayers and vigorously enforce the federal tax laws, including pursuing efforts to address the “tax gap,” the ABA recently told the chairmen and ranking members of the House and Senate Appropriations Subcommittees on Financial Services and General Government. The tax gap measures the extent to which taxpayers do not file their tax returns and pay the correct tax on time. “Given the complexity of our tax laws, taxpayer services provided by the IRS are critical to ensuring that taxpayers meet their obligations under the law, avoid unintentional mistakes, and obtain the benefits to which they are entitled,” Stanley L. Blend, chair of the ABA Section of Taxation, wrote April 29. The IRS, according to Blend, is addressing the tax gap through increased taxpayer services, investments in information technology, enhanced and smarter enforcement activities, and more effective administration. He noted that a critical aspect of the IRS efforts to combat the tax gap is its ability to attract and retain personnel with the skills and experience necessary to support those efforts. Another important mission of the IRS, he said, includes support for initiatives that provide important assistance to low-income taxpayers, noting that the volunteer income tax assistance (VITA) and low-income taxpayer clinic (LITC) programs have the support of the ABA and its Section of Taxation. Blend recommended that the appropriators provide the IRS with increased funding at least equal to the $11.36 billion requested by the Bush administration for fiscal year 2009, but added that the IRS Oversight Board, an independent body charged with providing the IRS with long-term guidance and direction, recommended $11.73 billion. He also recommended that consideration be given to adopting a budgeting process for the IRS that takes into account that increases in the IRS budget can result in increased overall revenue for the federal government.
ELDER JUSTICE ACT: The House Judiciary Committee began markup last month of H.R. 1783, which would create an infrastructure and provide resources for a nationally coordinated strategy in collaboration with the states to address the growing problem of elder abuse, neglect and exploitation. The bill, sponsored by Rep. Rahm Emanuel (D-Ill.), would provide grants to support training about elder abuse and other types of support to local and state prosecutors and well as police and other front-line law enforcement responders handling elder justice-related cases. A national Elder Justice Coordinating Council would make recommendations for the coordination of elder justice activities at all levels. The legislation also would establish fines to be imposed on nursing homes that fail to report abuse. During the May 14 markup session, the committee approved several amendments, including language to apply the bill’s provisions to mail, telemarketing and Internet fraud aimed at elderly people and provisions to increase authorization levels for a study of state laws and practices relating to elder abuse, for grants for local law enforcement and courts, and for grants to state prosecutors. The committee also began consideration of a related bill, H.R. 5352, which would establish programs to aid victims of elder abuse. Joseph D. O’Connor, chair of the ABA Commission on Law and Aging, expressed the association’s support for H.R. 1783 in a statement for an April 17 hearing before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security (see May 2008 Letter). No additional markup has been scheduled yet by the committee. There has been no action on the Senate version of the bill, S. 1070, which is pending in the Senate Finance Committee.
JUDICIAL SALARIES: The ABA continues to urge Congress to take definitive action this year to finally resolve the “pernicious and persistent problem of eroding judicial pay.” In recent correspondence to congressional leaders, then ABA Governmental Affairs Acting Director Denise A. Cardman said that legislative action on judicial pay should be separated from the “difficult and politically charged” job of raising congressional salaries. Because judicial and congressional salaries are linked by custom and by statute, judges do not get a raise or cost-of-living adjustment (COLA) unless Congress legislates a salary adjustment for itself. The association is also urging Congress to repeal the language of Section 140 of P.L. 97-02, which was originally enacted in 1982 and made permanent in 2001 by P.L. 1087-77. That language requires an extra step of explicit congressional approval of any COLA for federal judges. Cardman pointed out that this Congress the House and Senate Judiciary Committees have approved bills, S. 1268 and H.R. 3753, calling for a 31.9 percent increase in judicial pay and repeal of Section 140. Concerns have been raised, however, about Section 10 of the Senate bill, which some feel would unduly limit reimbursement for attendance by federal judges at important ABA events that are not sponsored by the association’s Judicial Division. The association has taken no position on these provisions but has requested that the provisions be examined as the House and Senate work out differences between the two bills.