Library: Policy

340:105-10-66. Legal services methods

Revised 5-13-02

(a) Policy. The Area Agency on Aging (AAA) enters into contracts with providers of legal assistance which can demonstrate the experience or capacity to deliver legal assistance.

(b) Authority. The authority for this Section is Section 307(a)(11) of the Older Americans Act (OAA) of 1965, as amended and Title 45 of the Code of Federal Regulations, Part 1321.71.

(1) Each legal services project, at a minimum, provides:
- (A) client service delivery consisting of a broad range of services including:
  - (i) legal counseling;
  - (ii) brief services;
  - (iii) referral after legal assessment; and
  - (iv) representation before judicial, administrative, and legislative bodies;
- (B) community education;
- (C) outreach to identify and assist potential clients;
- (D) training for project staff;
- (E) coordination with other social service providers;
- (F) coordination with the private bar with emphasis on securing pro bono or reduced fee services for older individuals; and
- (G) coordination with Legal Services Corporation grantees in the planning and service area, if the legal services sponsor is not a Legal Services Corporation grantee, in order to concentrate the use of Title III-B legal services funds on individuals in greatest social or economic need.
(2) Legal services providers ensure that services provided through Title III-B funds are in addition to any legal assistance for older persons being furnished with funds from other sources.
(3) Legal services providers give priority to services related to income, health care, long-term care, nutrition, housing, utilities, protective services, defense of guardianship, abuse, neglect, and age discrimination, and employ staff with expertise in these fields.
(4) Legal services providers provide effective administrative and judicial representation in the areas of law affecting older persons with economic and social need.
(5) Legal services providers provide support to other advocacy efforts including the Long-Term Care Ombudsman Program.
(6) Legal services providers provide services to institutionalized, isolated, and homebound older individuals, as appropriate.
(7) Legal services providers provide service in the principal language spoken by participants in areas where a significant number of participants do not speak English as their principal language.
(8) Legal services providers establish procedures for the referral of fee generating cases. A fee generating case is one which, if undertaken on behalf of an eligible participant by an attorney in private practice, reasonably may be expected to result in a fee for legal services from an award to a client, from public funds, or from the opposing party.
(9) Title III-B funds are only used to provide services in fee generating cases when there is an emergency requiring immediate legal action or when other adequate representation is unavailable. Other adequate representation is deemed unavailable when:
- (A) recovery of damages is not the principal object of the client;
- (B) a court appoints a provider or an employee of a provider pursuant to a statute or a court rule or practice of equal applicability to all attorneys in the jurisdiction; or
- (C) an eligible participant is seeking benefits under Title II of the Social Security Act, Federal Old Age, Survivors, and Disability Insurance Benefits, or Title XVI of the Social Security Act, Supplemental Security Income for Aged, Blind, and Disabled.
(10) When a legal services provider does represent a participant in any of the circumstances outlined in (9) of this subsection, the provider may seek and accept a fee awarded or approved by a court or administrative body, or included in a settlement. When such a case results in a recovery of damages, other than statutory benefits, a provider may accept reimbursement for out-of-pocket costs and expenses incurred in connection with the case or matter.
(11) Legal services providers, employees of the providers, or staff attorneys shall not engage in prohibited political activities to include:
- (A) contributing or making available OAA funds, personnel, or equipment to any political party or association or to the campaign of any candidate for public or party office, or for use in advocating or opposing any ballot measure, initiative, or referendum;
- (B) intentionally identifying the Title III program or provider with any partisan or nonpartisan political activity, or with the campaign of any candidate for public or party office; and
- (C) engaging in any political activity, while engaged in legal assistance activities supported under the OAA.
(12) No funds made available under the OAA are used for lobbying activities, including but not limited to, any activities intended to influence any decision or activity by any nonjudicial federal, state, or local individual or body. Nothing in this Section is intended to prohibit a legal services employee from:
- (A) communicating with a governmental agency for the purpose of obtaining information, clarification, or interpretation of the agency's rules, regulations, practices, or policies;
- (B) informing a client about a new or proposed statute, executive order, or administrative regulation;
- (C) responding to an individual client's request for advice only with respect to the client's own communications to officials unless otherwise prohibited by the OAA, Title III regulations, or other applicable law. This provision does not authorize publication of lobbying materials or training of clients on lobbying techniques or the composition of a communication for the client's use;
- (D) making direct contact with the AAA for any purpose;
- (E) providing a client with administrative representation in adjudicatory or rulemaking proceedings or negotiations, directly affecting that client's legal rights in a particular case, claim, or application;
- (F) communicating with an elected official for the sole purpose of bringing a client's legal problem to the attention of that official; or
- (G) responding to the request of a public official or body for testimony, legal advice, or other statements on legislation or other issues related to aging, provided that no such action will be taken without first obtaining the written approval of the responsible AAA.
(13) While carrying out legal assistance activities and while using resources provided under the OAA, no legal services provider or its employees:
- (A) participates in any public demonstration, picketing, boycott, or strike, except as permitted by law in connection with the employee's own employment situation;
- (B) encourages, directs, or coerces others to engage in such activities; or
- (C) at any time, engages in or encourages others to engage in any:
  - (i) illegal activity; or
  - (ii) intentional identification of programs funded under the OAA, recipient or provider, with any political activity.
(14) None of the funds made available under the OAA may be used to pay dues exceeding $100 per recipient or provider per annum to any organization, other than a bar association, for a purpose or function of which is to engage in activities prohibited under these rules unless such dues are not used to engage in activities for which OAA funds cannot be used directly.

(d) Cross references. See OAC 340:105-10-50.1(a)(11), 340:105-10-51, 340:105-10-54(a)(6), 340:105-10-64, and 340:105-10-65.