New Hope For Narrowing the Justice Gap

February 4, 2010

As I wrote awhile ago, civil legal services for low-income people are hobbled by two major impediments–inadequate funding and restrictions on what local legal services providers can do if they receive funds from the Legal Services Corporation.

The Corporation’s funding, in real dollars, has been declining since 1980, when its appropriation was sufficient to provide a “minimum level of access” to legal aid, i.e., two lawyers for every 10,000 low-income people in every county.

It was clear from the get-go that the Fiscal Year 2010 budget process wouldn’t do much about the funding problem. President Obama’s budget proposed $435 million for LCS–$45 million more than the Fiscal Year 2009 appropriation, but about $50 million less than LCS had requested.

The House of Representatives approved $440 million and the Senate $400 million. The negotiators ultimately split the difference. So LCS will have $420 million for the current fiscal year–about $345 million less than the Center for American Progress Action Fund estimated would be needed to restore minimum access.

But it did seem for awhile that this year’s budget process might significantly modify the restrictions. The President’s proposed budget included amendments to the Corporation’s authorizing legislation that would have allowed LCS grantees to seek attorneys’ fees in cases where they prevailed and to use non-LCS funds for activities that had been banned.

The House adopted the attorneys’ fees recommendation but left the remaining restrictions in place. The Senate lifted most of the restrictions on uses on non-LCS funds. On this matter, the House prevailed in the negotiations that led to the final bill.

But all is not lost. Congressman Bobby Scott (D-VA) and Senator Tom Harkin (D-IA) have introduced identical bills–the Civil Access to Justice Act (H.R. 3764/S. 718)–that would eliminate all restrictions on uses of non-LCS funds, except (wouldn’t you know it) participation in litigation related to abortion.

Permissible uses of LCS funds would also be broadened to permit collection of attorneys’ fees and participation in class action suits “grounded in existing law.” The prohibition on representing prisoners would be modified to permit litigation on issues related to a prisoner’s “ability to reenter society successfully.” And some non-citizens now denied representation could be served.

H.R. 3764 and S. 718 are technically bills to reauthorize LCS–something that should have been done 30 years ago. In addition to addressing the restrictions, they would also raise the permissible ceiling on appropriations to $750 million. This, the sponsors say, would be the equivalent, in inflation-adjusted dollars, to the last appropriation that met the minimum access standard.

Of course, authorizing this much doesn’t mean that LCS will get it. But the figure establishes a reasonable target and a benchmark for the next five years.

The bills aren’t perfect. But they would bring civil legal services for low-income people into much closer alignment to what other Americans can receive. And they would enable LCS-funded nonprofits to engage in actions that would effectively and efficiently address the needs of large groups of clients.

So I think they deserve our support. And they’re going to need it because it’s obvious that our elected leaders can’t deal with more than a couple of controversial issues at a time. And if past is prologue, “equal access to the system of justice in our Nation” won’t be one of them.


Funds For Low-Income Home Energy Assistance Fall Short Of Need

January 7, 2010

Winter has hardly begun, and we’ve already had well-below-freezing temperatures–even here in Washington, D.C. I’m sitting in my warm study, thinking about the low-income households who are struggling to pay their home energy bills–or to get along without heat because their service has been cut off.

The federal Low-Income Home Energy Assistance Program (LIHEAP), is intended to help these households meet their immediate energy needs–both heat in the winter and cooling in the summer.

The program has helped save millions of poor seniors, people with disabilities, other adults and their children from the impacts of unaffordable energy bills–hypothermia and heat prostration, hunger, homelessness, unmet medical needs and deaths and injuries caused by fallbacks like space heaters and stoves. But as with the rest of our safety net, millions fall through.

LIHEAP provides block grants to states, which they channel to local government agencies or nonprofits. It also includes an emergency contingency fund that the Secretary of Health and Human Services can tap to provide extra assistance, e.g., in cases of extreme weather, spikes in energy prices or unemployment.

Households qualify for a one-time payment of their past-due utility bills if their incomes are below a threshold defined by their state–generally either 150% of the federal poverty line or 60% of the state median income. But qualifying doesn’t mean getting because LIHEAP has never been adequately funded.

For Fiscal Year 2009, Congress appropriated a total of $5.1 million for LIHEAP–slightly more than $4.9 billion for basic grants and $590.3 million for the contingency fund. This was nearly double the funding for Fiscal Year 2008.

Yet the National Energy Assistance Directors Association reports that only 18.7% of eligible households received assistance. About 4.3 million households had their power shut off for non-payment.

For Fiscal Year 2010, President Obama proposed only $3.2 billion for LIHEAP, plus a trigger for additional funding if energy prices spiked again. Congress instead voted to fund the program at its Fiscal Year 2009 level. Surely a better choice because home heating costs are still much higher than in the recent past and, more importantly, because far more people need help.

NEADA projects a 20% increase in the number of households that will apply for assistance this fiscal year. Nothing like this number can be served with the level-funded block grants. States will need swift infusions from the contingency fund.

But they won’t be enough. NEADA estimates that the block grant appropriation could provide 7.8 million households with grants–nearly 1.8 million fewer than the projected number of applicants. If grants average $523, as NEADA expects, the contingency fund could cover only about 1.2 million.

A New York Times editorial recommends a supplemental appropriation when Congress returns. As it says, $2.5 million would cover the applicants who will otherwise be left in the cold.

That would be chump change in a budget that’s well over $3.5 trillion. But it could be a tough sell anyway. The White House and the Congress will be focused on job creation. And we’re hearing alarms about the deficit–from Democrats as well as Republicans.

I just wish our leaders could hear, as I do, the sirens screaming down the street to the low-income housing complex a couple of blocks away. Every winter, they’re a sad reminder of how we won’t put our bucks behind our best intentions.


Lawyers For Low-Income People In Short Supply

November 28, 2009

Anyone who hasn’t led a charmed life knows how important it can be to have an attorney. They also know that private legal help doesn’t come cheap.

In 1974, Congress established the Legal Services Corporation to help provide free legal assistance in civil matters to those who otherwise couldn’t afford it. The Corporation receives federal funds through annual appropriations.

Most of these funds go to nonprofit local legal aid programs. Many of these programs also receive funds from state and local governments, private donors and/or their state’s Interest on Lawyers’ Trust Accounts program. This program gives them the interest on clients’ funds deposited in a separate account when the costs of investing them otherwise would exceed the return.

But there’s a large and growing gap between low-income people’s needs for legal services and the capacity of the programs to provide them. According to a recent LCS report:

  • For every client served by an LCS-funded program, another is turned away because of insufficient resources.
  • Fewer than one in five legal problems low-income people experience is addressed with help from an attorney.
  • There’s only one legal aid attorney for every 6,415 people below 125% of the federal poverty line, as compared to one attorney for every 469 people above it.
  • State courts, especially those that deal with issues affecting low-income people, are handling more cases involving a litigant without an attorney. A high percentage of these litigants qualify for legal aid.

The problem here begins with the federal budget. Like many well-intentioned programs, LCS has never been adequately funded. But up until 1981, it received enough to meet a minimum access standard, i.e., two lawyers for every 10,000 low-income people, in every county in the U.S.

Then came deep cuts, prompted by the Reagan administration’s hostility to the program. Though the budget has since been increased, it’s never recovered to minimum access level. According to a Center for American Progress brief, it would need about $765 million to do so–about double the current appropriation.

A second budget-related blow came when the Republicans gained control of Congress in 1994. Programs receiving LCS funds were prohibited from engaging in class actions or advocating for legal reforms, even with funds from other sources. This left them no choice but to litigate similar cases one at a time, rather than seek systemic remedies. They were also prohibited from seeking attorneys’ fees that could otherwise be claimed.

The recession has exacerbated the funding problem in various ways.

  • IOLTA revenues have plummeted because the Federal Reserve Board has slashed interest rates to unfreeze credit markets and stimulate spending.
  • Some state and local governments have cut their support for legal aid programs to help close their budget gaps.
  • Rising unemployment and cutbacks in hours have made more people eligible for free legal services.
  • More eligible people need help with problems like foreclosures, debt, access to public benefits, domestic violence and child support.

For Fiscal Year 2010, LCS requested $485.1 million–about $295 million less than would be needed to serve all those currently seeking help from the local programs it supports.

The House appropriations bill would provide $440 million. It would lift the restriction on attorneys’ fees, but leave the rest of the restrictions intact.

The Senate version would provide $400 million–just $10 million more than in Fiscal Year 2009. But it would lift most restrictions on grantees’ uses of non-LCS funds. Prisoners and (surprise!) women needing help with abortion issues would still be out of luck.

The Washington Post recommends that House-Senate negotiators adopt the best of both–the House funding figure and the flexibility afforded by the Senate. This won’t close the justice gap. But it’s probably the best we can hope for until the vital, unmet legal needs of poor people become a higher priority.


Earmarks Not Gone After All

August 27, 2009

Susie Cambria, the expert whose blog keeps us clued in on what’s happening with the District’s budget and policy processes, tells me that some earmarks that were in the original Fiscal Year 2010 budget aren’t really gone. They’ve just gone underground.

True, they’re not clearly identified in the revised Budget Support Act. And true, Council Chairman Vincent Gray stated that Council actions to address the projected shortfall included “elimination of one-time designated grants [earmarks] for FY 10.”

But the Council and the Mayor have agreed that certain agencies have agreed that certain agencies will provide grants of specified amounts to organizations that were formerly to receive funding as earmarks. The big difference is that only a plugged-in expert like Susie knows how to recognize them for what they really are.

I complained before about a lack of transparency in the budget. But this really takes the cake!


After Earmarks

August 26, 2009

Most people, I think, agree that earmarks are bad public policy. Legislators allocate millions of our taxpayer dollars to whatever organizations or projects they like–mostly those in the communities they represent.

These earmarks aren’t subject to public hearings. And fellow legislators don’t question them. It’s an unspoken compact: If I don’t question your earmarks, then you won’t question mine. We’ll all benefit come re-elections time.

Here in the District, we had a fine flap over some of Councilmember Marion Barry’s earmarks. In the wake of this, the City Council decided to eliminate all earmarks from the Fiscal Year 2010 budget. A quick, easy to way to save more than $22 million and avoid further embarrassments at the same time.

So now more than 130 organizations–social service providers, health education programs and clinics, youth groups, cultural programs, environmental projects, economic development, neighborhood improvement, job training and education programs, child advocacy services and more–are without funds they counted on.

Council Chairman Vincent Gray was undoubtedly right. Better wipe out all earmarks than try to pick and choose among them. To see why, take a look at Title VIII in the original Budget Support Act.

But where do we go from here? The District’s safety net consists largely of nonprofit organizations that combine private donations with public funds to deliver essential services to its poorest residents. These organizations can’t simply absorb lost earmarks.

The Fiscal Year 2010 budget is all but a done deal. But the Fiscal Year 2011 budget cycle is about to begin. Perhaps the Mayor and the City Council should agree on a no-earmarks policy and institute a better alternative.

In many areas, they already identify critical needs, appropriate funds for them and then award the funds based on a competitive grants process. Why not take a hard look at services formerly supported in part by earmarks and establish competitive grants for the the most critical of these too?


Congress Moves To Improve Nutrition for Poor Women and Children

August 19, 2009

WIC (formally, the Special Supplemental Nutrition Program for Women, Infants and Children) is one of our best public investments in the health, growth and development of the next generation.

For more than 34 years, it’s helped eligible pregnant women and parents with young children purchase foods and beverages needed for a healthful diet. It also provides breastfeeding counseling, other nutrition education and links to local health care services.

Like other child nutrition programs, WIC depends on annual appropriations. They’ve never been large enough to serve everyone who’s eligible. But WIC still has far more participants now than in pre-recession days.

In 2007, participation averaged somewhat under 8.3 million women and children. In May of this year, it was up to more than 9 million. The Obama administration projects Fiscal Year 2010 participation at a monthly average of 9.8 million.

Just before the Senate recessed, it passed its version of the Fiscal Year 2010 agriculture appropriations bill (S. 1406). This is the bill that provides funding for WIC, as well as food stamps and the other child nutrition programs.

The WIC part of the bill is similar, though not identical, to the provisions in the agriculture appropriations bill the House passed in July (H.R. 2997). They’re both good news.

First off, both bills will increase funding for WIC. The Senate version would provide $192 million more in new funds than the appropriations for this fiscal year, including the increase that was part of the economic recovery package. With the estimated balance in contingency funds, the total available for WIC would be somewhat more than $8 million–nearly 15% more than the original Fiscal Year 2009 appropriation.

The House bill would provide $10 million less than the Senate bill. However, the House Appropriations Committee states in its report that it will monitor food costs, participation and available funds and “take additional action, as necessary” to ensure that there’s enough funding for all eligible applicants.

The funding increase is just part of the good news. Both the House and Senate committee reports specifically state that some portion of the appropriations are to be used to increase fruit and vegetable vouchers up to the amounts recommended by the Institute of Medicine.

The bills thus override a decision the Bush administration made to limit program costs by covering considerably smaller allotments of fruits and vegetables than what IOM had determined was necessary for a healthy diet. So we should expect further improvements in the recently-expanded WIC food packages.

Of course, WIC is a small part of the agriculture appropriations bills. There are many differences between them that have to be resolved before the Department of Agriculture has a final Fiscal Year 2010 budget. The new fiscal year begins October 1, so we may see a final version some time in September.


DC Council Blocks Benefit Cutoffs For TANF Families

August 4, 2009

The City Council took its next-to-final action on the District’s Fiscal Year 2010 budget last Friday. It went along with a lot, though not all, of what Mayor Fenty had proposed. But it choked on his proposal to impose harsher sanctions on families in the TANF (Temporary Assistance for Needy Families) program. And a good thing too.

As I’ve written before, the Mayor’s proposed budget included plans to reduce TANF benefits by 50% when the adult recipient had been subject to lesser sanctions and still wasn’t meeting the program’s work requirements. If the adult still didn’t comply, all benefits to the family would have been cut off–even the funds to support the children.

The City Council struck these proposals from the legislation. However, this doesn’t mean that the Income Maintenance Administration, which administers the District’s TANF program, has no tools to encourage compliance.

It’s perfectly free to enforce its existing progressive sanctions rules. These allow the agency to reduce benefits so that they cover only the children in the family and for successively longer periods each time the adult fails to comply with the work requirements. If the money’s there, IMA can provide the proposed bonuses for full compliance too.

Unfortunately, the Council left intact the Mayor’s proposals to make eligibility for TANF contingent on an applicant’s completing an orientation and an assessment.

Some states have used requirements like these to discourage enrollment. That could happen here too. Recall that federal rules give states incentives to reduce their caseloads. At the very least, the requirements could delay delivery of urgently-needed help.

The City Council will take a final vote on the budget legislation in September. It would be well-advised to strike the new eligibility requirements. Let IMA first show that it can ensure all TANF applicants timely, appropriate orientation sessions and timely assessments that accurately identify “skills, prior work experience, employability, and barriers to employment.”

Then IMA should explain why eligibility should hinge on anything more than the criteria it’s been using. What does it hope to gain from creating more hoops for poor people to jump through before they’re even admitted to the program?


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