Transcript Elder Rights & Elder Justice

Elder Rights
& Elder Justice
Eric M. Carlson, Esq.
National Senior Citizens Law Center
AoA Listening Session; March 3, 2010
Legal Services to Preserve Older
Americans’ Basic Necessities
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Income
Housing
Health Care
National Senior Citizens Law Center
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Recommendations
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Legal services should be targeted to those with
greatest need.
Legal services should be funded sufficiently for
strong advocacy.
Legal services should be coordinated within states
to improve quality and better focus resources.
Work of legal services developers should be better
funded and supported.
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Legal Services with AoA Funding
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Personal experiences illustrate value of legal
services.
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Title III B provider – Bet Tzedek Legal
Services, Los Angeles.
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Advocacy for nursing home residents.
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Preventing Eviction
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e.g., Nursing home had promised to accept
Medicaid, but then refused when resident had
spent down to Medicaid eligibility.
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Resident served with eviction notice.
After strong legal representation, hearing officer
ruled in resident’s favor.
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Resident stayed, paying what he could from income.
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Requiring Readmission from Hospital
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Nursing home refused to readmit resident, claiming
falsely that staff could not meet her needs.
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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.
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Nursing home lost in trial court, but avoided order by
appealing.
State appeals court issued emergency readmission order
and resident returned to nursing home.
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Other Cases Where Title III B
Attorneys Play Critical Role
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Evictions.
Financial abuse:
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e.g., Preventing foreclosure caused by predatory
lending, forgeries, etc.
Medicaid:
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Eligibility denials.
Refusal to cover necessary services.
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Current Work Supporting
Title III B Attorneys
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National Senior Citizens Law Center (NSCLC) is
part of National Legal Resource Center, funded
through OAA’s Title IV.
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Individual consultations, along with trainings.
Four partner organizations, together providing:
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Case consultation,
Training,
Technical assistance on systems development, and
Resource development and dissemination.
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Legal Assistance Necessary to Address
Systemic Problems
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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.
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Suspensions imposed against over 200,000
beneficiaries who were in no way “fleeing.”
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Misidentification
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e.g., Nevada female retiree loses benefits due
to 1972 New York warrant against male.
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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.
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Old, Ignored Warrants
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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.
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Had lost benefits for three years, and could not
heat or maintain home.
Represented by Title III B legal services
program.
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Compliance Only After
Class-Action Settlement
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Even after losing several federal lawsuits
brought for individuals, Social Security
Administration did not change its policy.
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Nationwide class-action lawsuit brought by
National Senior Citizens Law Center compelled
nationwide change in policy.
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Reinstatement for potentially more than 200,000
persons.
Potentially more than $500 million in back benefits.
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Many III B Programs Are Less
Effective Than They Could Be
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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.
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1. Services Should Be Targeted To
Those With Greatest Need.
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OAA defines “legal assistance” as provided
“to older individuals with economic or social
needs.”
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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.
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Protect the Most Vulnerable and
Address their Most Critical Needs
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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))
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More coordination needed to assure that these
priorities become reality.
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Improved Access for Historically
Underserved Communities
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Persons of Color (particularly women)
LGBT Community
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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.
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Findings: Both problems and success stories.
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Improved Access for Persons
of Limited English Proficiency
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Legal service providers should be able to
communicate effectively in languages used in
the community.
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2. Services Should Be Funded
Sufficiently For Strong Advocacy.
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Many problems require persistent advocacy.
Systemic problems are most efficiently
resolved through systemic advocacy.
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Legal services should both resolve individual
problems, and address systemic problems to
prevent future harm.
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e.g., Home equity scam artists who will prey on older
victims unless forcefully prohibited from doing so.
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Legal Services Programs Should Have
Multiple Tools in Toolbox.
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Counseling individual clients.
Public education.
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Administrative advocacy.
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Enable persons to recognize problems and to
advocate for themselves in some cases.
Both for individual clients and systemic solutions.
Litigation.
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Particularly necessary in case of repeat offenders.
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3. Legal Services Should Be
Coordinated Within States.
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Improve quality.
Increase impact from limited legal resources.
Better focus resources.
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Currently programs too often are:
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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.
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Coordination Specifics
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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.
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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.
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4. Legal Services Developers Should
Be Better Funded And Supported.
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Mandated by OAA since at least 1992.
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.
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2003 Study Finds Poor Funding and
Frequent State-Level Disinterest
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In most states, legal service developers spent
less than half of their time in legal service
development.
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Thomas & Ingham, State Legal Assistance
Development Program Study (Sept. 2003)
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Little to No Improvement
Since 2003
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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.
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Developers Should Be Attorneys or
Have Other Relevant Expertise
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Services should be targeted and coordinated
to have maximum impact.
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Attorney is better able to lead and evaluate
legal services providers.
Management/organizational expertise is
helpful to target services and coordinate
providers.
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Conclusion: Overall, Need for More
Funding, Focus and Coordination
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OAA already sets worthy principles, but
mechanisms must be changed to make sure
that principles are followed.
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Services should be coordinated at statewide
level to assure aggressive advocacy for those
most in need.
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