Elder Rights & Elder Justice Eric M. Carlson, Esq. National Senior Citizens Law Center AoA Listening Session; March 3, 2010

National Senior Citizens Law Center2 Legal Services to Preserve Older Americans’ Basic Necessities  Income  Housing  Health Care

National Senior Citizens Law Center3 Recommendations 1. Legal services should be targeted to those with greatest need. 2. Legal services should be funded sufficiently for strong advocacy. 3. Legal services should be coordinated within states to improve quality and better focus resources. 4. Work of legal services developers should be better funded and supported.

National Senior Citizens Law Center4 Legal Services with AoA Funding  Personal experiences illustrate value of legal services.  Title III B provider – Bet Tzedek Legal Services, Los Angeles. Advocacy for nursing home residents.

National Senior Citizens Law Center5 Preventing Eviction  e.g., Nursing home had promised to accept Medicaid, but then refused when resident had spent down to Medicaid eligibility. Resident served with eviction notice. After strong legal representation, hearing officer ruled in resident’s favor.  Resident stayed, paying what he could from income.

National Senior Citizens Law Center6 Requiring Readmission from Hospital  Nursing home refused to readmit resident, claiming falsely that staff could not meet her needs. Real reasons: resident was Medicaid-eligible and had significant dementia. State health department ordered readmission, but nursing home did not comply.  Lawsuit filed by Title III B program to force readmission. Nursing home lost in trial court, but avoided order by appealing. State appeals court issued emergency readmission order and resident returned to nursing home.

National Senior Citizens Law Center7 Other Cases Where Title III B Attorneys Play Critical Role  Evictions.  Financial abuse: e.g., Preventing foreclosure caused by predatory lending, forgeries, etc.  Medicaid: Eligibility denials. Refusal to cover necessary services.

National Senior Citizens Law Center8 Current Work Supporting Title III B Attorneys  National Senior Citizens Law Center (NSCLC) is part of National Legal Resource Center, funded through OAA’s Title IV. Individual consultations, along with trainings.  Four partner organizations, together providing: Case consultation, Training, Technical assistance on systems development, and Resource development and dissemination.

National Senior Citizens Law Center9 Legal Assistance Necessary to Address Systemic Problems  e.g., Social Security Administration had power to suspend benefits for anyone “fleeing to avoid prosecution,” and imposed suspensions broadly against anyone with an outstanding felony arrest warrant. Suspensions imposed against over 200,000 beneficiaries who were in no way “fleeing.”

National Senior Citizens Law Center10 Misidentification  e.g., Nevada female retiree loses benefits due to 1972 New York warrant against male. Retiree had never been in New York. Suspect had same birthday as retiree, and same surname (Thomas) as retiree’s ex-husband. Social Security office refused to honor letter from N.Y.C. Police Department.  Only resolved after intervention of Title III B attorney.

National Senior Citizens Law Center11 Old, Ignored Warrants  e.g., Benefits suspended for 75 year-old widow in wheelchair with oxygen, based on 2001 traffic violation when woman was moving from California to Oklahoma. Had lost benefits for three years, and could not heat or maintain home.  Represented by Title III B legal services program.

National Senior Citizens Law Center12 Compliance Only After Class-Action Settlement  Even after losing several federal lawsuits brought for individuals, Social Security Administration did not change its policy. Nationwide class-action lawsuit brought by National Senior Citizens Law Center compelled nationwide change in policy.  Reinstatement for potentially more than 200,000 persons.  Potentially more than $500 million in back benefits.

National Senior Citizens Law Center13 Many III B Programs Are Less Effective Than They Could Be  e.g., Focus on generating numbers of clients or service units, rather than impact.  Ineffective targeting and inadequate outreach, so that clients are those who already are most likely to access social services.  Funding of private attorneys to provide piecemeal legal services.

National Senior Citizens Law Center14 1.Services Should Be Targeted To Those With Greatest Need.  OAA defines “legal assistance” as provided “to older individuals with economic or social needs.” Title III requires targeting generally for persons with greater need. See OAA, section 305.  Continuing momentum from current grants under Model Approaches to Statewide Legal Assistance Systems.

National Senior Citizens Law Center15 Protect the Most Vulnerable and Address their Most Critical Needs  OAA currently requires that state plans assure that AAA’s “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.” (OAA, section 305(a)(11)(E)) More coordination needed to assure that these priorities become reality.

National Senior Citizens Law Center16 Improved Access for Historically Underserved Communities  Persons of Color (particularly women)  LGBT Community AoA’s funding for National Technical Assistance Resource Center is good step forward. NSCLC recently completed on-line survey of LGBT experiences in long-term care.  Findings: Both problems and success stories.

National Senior Citizens Law Center17 Improved Access for Persons of Limited English Proficiency  Legal service providers should be able to communicate effectively in languages used in the community.

National Senior Citizens Law Center18 2.Services Should Be Funded Sufficiently For Strong Advocacy.  Many problems require persistent advocacy.  Systemic problems are most efficiently resolved through systemic advocacy. Legal services should both resolve individual problems, and address systemic problems to prevent future harm.  e.g., Home equity scam artists who will prey on older victims unless forcefully prohibited from doing so.

National Senior Citizens Law Center19 Legal Services Programs Should Have Multiple Tools in Toolbox.  Counseling individual clients.  Public education. Enable persons to recognize problems and to advocate for themselves in some cases.  Administrative advocacy. Both for individual clients and systemic solutions.  Litigation. Particularly necessary in case of repeat offenders.

National Senior Citizens Law Center20 3.Legal Services Should Be Coordinated Within States.  Improve quality.  Increase impact from limited legal resources.  Better focus resources.  Currently programs too often are: Not linked with, or supported by, state’s other legal services providers. Not targeted on persons with highest need, or on the most pressing issues.

National Senior Citizens Law Center21 Coordination Specifics  Need coordinated, integrated statewide legal delivery system to have maximum impact from limited resources.  Hotlines should be part of coordinated programs, rather than stand-alone entities. Over-the-phone counseling can be useful, but cannot substitute for lengthier direct representation.  Coordination should include programs funded by Legal Services Corporation and others.

National Senior Citizens Law Center22 4.Legal Services Developers Should Be Better Funded And Supported.  Mandated by OAA since at least  Never with separate appropriation.  Best practices being developed by Center for Social Gerontology and others, but not being used by many states due to lack of funding.

National Senior Citizens Law Center Study Finds Poor Funding and Frequent State-Level Disinterest  In most states, legal service developers spent less than half of their time in legal service development. Thomas & Ingham, State Legal Assistance Development Program Study (Sept. 2003)

National Senior Citizens Law Center24 Little to No Improvement Since 2003  Report recommended that “[e]very state should have a Legal Services Developer in function and not just in name.”  In 2010, problem remains that a state often has an employee designated as legal services developer, but with little or no time to work on development.

National Senior Citizens Law Center25 Developers Should Be Attorneys or Have Other Relevant Expertise  Services should be targeted and coordinated to have maximum impact.  Attorney is better able to lead and evaluate legal services providers.  Management/organizational expertise is helpful to target services and coordinate providers.

National Senior Citizens Law Center26 Conclusion: Overall, Need for More Funding, Focus and Coordination  OAA already sets worthy principles, but mechanisms must be changed to make sure that principles are followed.  Services should be coordinated at statewide level to assure aggressive advocacy for those most in need.