Proposed Rule Legal Assistance Eligibility; Maximum Income


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Proposed Rule Legal Assistance Eligibility; Maximum Income

  1. 1. 29695 Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Proposed Rules eligibility in the NFIP. No regulatory 12612, Federalism, dated October 26, PART 67—[AMENDED] 1987. flexibility analysis has been prepared. 1. The authority citation for part 67 Executive Order 12778, Civil Justice Regulatory Classification continues to read as follows: Reform This proposed rule is not a significant Authority: 42 U.S.C. 4001 et seq.; This proposed rule meets the regulatory action under the criteria of Reorganization Plan No. 3 of 1978, 3 CFR, applicable standards of Section 2(b)(2) Section 3(f) of Executive Order 12866 of 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, of Executive Order 12778. September 30, 1993, Regulatory 3 CFR, 1979 Comp., p. 376. List of Subjects in 44 CFR Part 67 Planning and Review, 58 FR 51735. § 67.4 [Amended] Administrative practice and Executive Order 12612, Federalism procedure, flood insurance, reporting 2. The tables published under the and recordkeeping requirements. authority of § 67.4 are proposed to be This proposed rule involves no policies that have federalism Accordingly, 44 CFR part 67 is amended as follows: implications under Executive Order proposed to be amended as follows: # Depth in feet above ground Elevation in State City/town/county Source of flooding Location feet ((NAVD) Existing Modified Iowa ............... West Des Moines (City) Jordan Creek ............... Approximately 3,210 feet downstream of 68th None ........ 924. Polk and Dallas Street. Counties. Approximately 1,950 feet upstream of E.P. True None ........ 970. Parkway. Raccoon River ............. Approximately 75 feet downstream of South 814 .......... 816. First Street. Approximately 1.7 miles upstream of U.S. Inter- 832 .......... 833. state 35. Maps are available for inspection at City Hall, 4200 Mills Civic Parkway, West Des Moines, Iowa. Send comments to The Honorable Eugene Meyer, Mayor, City of West Des Moines, 4200 Mills Civic Parkway, West Des Moines, Iowa 50265. (Catalog of Federal Domestic Assistance No. clarify the focus of the regulation on the Procedural Background 83.100, ‘‘Flood Insurance.’’) financial eligibility of applicants for On June 30, 2001, LSC initiated a Dated: May 18, 2005. LSC-funded legal services. Negotiated Rulemaking and appointed a David I. Maurstad, Working Group comprised of Comments must be submitted on DATES: Acting Director, Mitigation Division, representatives of LSC (including the or before June 23, 2005. Emergency Preparedness and Response Office of Inspector General), the Comments must be ADDRESSES: Directorate. National Legal Aid and Defenders submitted in writing and may be sent by [FR Doc. 05–10299 Filed 5–23–05; 8:45 am] Association, the Center for Law and regular mail, or may be transmitted by Social Policy, the American Bar BILLING CODE 9110–12–P fax or email to: Mattie C. Condray, Association’s Standing Committee on Senior Assistant General Counsel, Office Legal Aid and Indigent Defendants and of Legal Affairs, Legal Services a number of individual LSC recipient LEGAL SERVICES CORPORATION Corporation, 3333 K. St., NW., programs. The Negotiated Rulemaking Washington, DC 20007–3522; (202) 337– Working Group met three times 45 CFR Part 1611 6519 (fax); (e-mail). throughout 2002 and developed a Draft Financial Eligibility Notice of Proposed Rulemaking (NPRM) FOR FURTHER INFORMATION CONTACT: which was the basis for the NPRM Mattie C. Condray, Senior Assistant Legal Services Corporation. AGENCY: published by LSC on November 22, General Counsel, Office of Legal Affairs, Notice of proposed rulemaking. ACTION: 2002 proposing significant revisions to Legal Services Corporation, 3333 K. St., to Part 1611 (67 FR 70376). LSC NW., Washington, DC 20007–3522; SUMMARY: The Legal Services received 15 comments on that NPRM. (202) 295–1624 (phone); (202) 337–6519 Corporation (‘‘LSC’’ or ‘‘Corporation’’) is Except as specifically noted in the (fax); (e-mail). republishing for additional comment Section-by-Section analysis below, the previously proposed amendments (with Section SUPPLEMENTARY INFORMATION: comments LSC received either certain additional revisions) to its 1007(a) of the Legal Services affirmatively supported or raised no regulations relating to financial Corporation Act requires LSC to objection to the proposals in the eligibility for LSC-funded legal services. establish guidelines, including setting November 2002 NPRM.1 The proposed revisions are intended to maximum income levels, for the Upon receipt of the comments, LSC reorganize the regulation to make it determination of applicants’ financial staff prepared a Draft Final Rule easier to read and follow; simplify and eligibility for LSC-funded legal discussing the comments and making streamline the requirements of the rule assistance. Part 1611 implements this permanent the proposed revisions. to ease administrative burdens faced by provision, setting forth the requirements LSC recipients in implementing the relating to determination and 1 For additional discussion of the Negotiated regulation and to aid LSC in documentation of client financial Rulemaking Working Group, see 67 FR 70376 enforcement of the regulation; and to eligibility. (November 22, 2002). VerDate jul<14>2003 15:14 May 23, 2005 Jkt 205001 PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 E:FRFM24MYP1.SGM 24MYP1
  2. 2. 29696 Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Proposed Rules However, on the eve of the January implementing the regulation, facilitate entitlement to service. Rather, financial 31–February 1, 2003 Board of Directors compliance and aid LSC in enforcement eligibility is merely a threshold question meeting at which the Draft Final Rule of the regulation; and clarification of the and the issue of whether any otherwise was scheduled to be considered, LSC focus of the regulation on the financial eligible applicant will be provided with received a request from Representative eligibility of applicants for LSC-funded legal assistance is a matter for the James Sensenbrenner, Chairman of the legal services as an issue separate from recipient to determine with reference to U.S. House of Representatives Judiciary decisions on whether to accept a its priorities and resources. In addition, Committee, to suspend action on the particular client for service. In this part does not address eligibility rulemaking pending the confirmation of particular, LSC is proposing to based on citizenship or alienage status; new LSC Board of Directors members significantly reorganize and simplify the those eligibility requirements are set appointed by President Bush. The then- sections of the rule which set forth the forth in Part 1626 of LSC’s regulations, LSC Operations and Regulations various requirements relating to Restrictions on Legal Assistance to Committee deferred to Chairman establishment of recipient annual Aliens. Sensenbrenner’s request. After the income and asset ceilings, authorized Section-by-Section Analysis confirmation of the nine newly exceptions and determinations of appointed Board members, the eligibility. These changes are intended Section 1611.1—Purpose reconsitituted Operations and to clarify the regulation and include LSC is proposing to revise this section Regulations Committee further deferred substantive changes to make intake to make clear that the standards of this action on the rulemaking pending the simpler and less burdensome and part concern only the financial appointment of a new LSC President. render basic financial eligibility eligibility of persons seeking LSC- After the arrival of the new LSC determinations easier for recipients to funded legal assistance and that a President in January 2004, the make. LSC is also proposing to move the finding of financial eligibility under Part reconstituted Operations and existing provisions on group 1611 does not create an entitlement to Regulations Committee resumed representation, with some amendment, service. In addition, LSC proposes to consideration of the Part 1611 to a separate section of the regulation. remove the language in the current rulemaking. Finally, LSC is proposing simplification regulation referring to giving At its meetings of May 1, 2004, June and clarification of the retainer preferences to ‘‘those least able to obtain 5, 2004 and September 11, 2004, the agreement requirement. legal assistance.’’ Although the original Operations and Regulations Committee One other general issue merits LSC Act contained language indicating discussed and provided policy direction discussion. Section 509(h) of the FY that recipients should provide to staff on the two aspects of the 1996 LSC appropriations act, Public preferences in service to the poorest proposed changes to the regulations Law 104–134, provides that, among among applicants, that language was about which LSC and the field had other records, eligibility records ‘‘shall deleted when the Act was reauthorized failed to achieve consensus during the be made available to any auditor or in 1977 and has remained out of the Working Group meetings—retainer monitor of the recipient * * * except legislation ever since. Moreover, section agreements and group representation. for such records subject to the attorney- 504(a)(9) of the FY 1996 appropriations The Committee reviewed these client privilege.’’ This provision has act, Public Law 104–134 (incorporated proposals and the remainder of the been retained in each subsequent by reference in the current proposed revisions to Part 1611 at its appropriations measure and continues appropriations act and implemented by meeting of April 1, 2005. At the meeting to be in force. During the prior stages of regulation at 45 CFR part 1620) provides of the full Board of Directors on April this rulemaking, there had been some that recipients are to make service 30, 2005, upon the recommendation of discussion and consideration of having determinations in accordance with the Committee, the Board determined this language expressly incorporated written priorities, which take into that because two years has passed since into Part 1611. LSC continues to believe account factors other than the relative the publication of the November 2002 that, as 509(h) covers significantly more poverty among applicants. Thus, as NPRM, rather than adopting a final rule than eligibility records, having a full there is no statutory basis for a amending Part 1611, the most prudent discussion of the meaning of 509(h) in preference for those least able to afford course of action would be to republish the context of 1611, which addresses assistance and because LSC believes a revised NPRM for public comment. only financial eligibility issues, is not that the regulation should focus on Accordingly, except for the retainer appropriate. Accordingly, LSC does not financial eligibility determinations agreement and group eligibility sections, propose to include regulatory language without reference to issues relating to LSC is proposing the same revisions implementing 509(h) with respect to determinations by a recipient to provide (with only a few, non-substantive records covered by this Part. For a fuller services to a particular applicant, such differences) as LSC proposed in discussion of this issue, see the language should be removed from the November 2002 and requests public preamble to the November 22, 2002 regulation. LSC also proposes to add comment thereon. NPRM, 67 FR 70376. language specifying that this Part also Proposed Revisions to Part 1611 Title of Part 1611 sets forth financial standards for groups While specific proposed revisions are LSC proposes to change the title of seeking legal assistance supported by discussed in greater detail in the Part 1611 from ‘‘Eligibility’’ to LSC funds. Finally, LSC proposes to Section-by-Section analysis below, it ‘‘Financial Eligibility.’’ This proposed include a reference to the retainer should be noted that the proposed change is intended, first, to make clear agreement requirement in the purpose revisions reflect several overall goals of that with respect to individuals seeking section to provide a notice at the the Working Group: reorganization of LSC-funded legal assistance, the beginning of the regulation that this the regulation to make it easier to read standards of this part deal only with the subject is included in Part 1611. and follow; simplification and financial eligibility of such persons. LSC Section 1611.2—Definitions streamlining of the requirements of the believes this change will help clarify rule to ease administrative burdens that a finding of financial eligibility LSC proposes to add definitions for faced by LSC recipients in under Part 1611 does not create an several terms and to amend the VerDate jul<14>2003 15:14 May 23, 2005 Jkt 205001 PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 E:FRFM24MYP1.SGM 24MYP1
  3. 3. 29697 Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Proposed Rules definitions for each of the existing terms excluded from this definition, as the proposed language accomplishes that currently defined in the regulation. LSC eligibility of groups would be addressed purpose. believes that the new definitions and wholly within proposed section 1611.6. Section 1611.2(e)—Brief Services Recipients currently may provide the amended definitions will help to LSC proposes to add a definition of legal assistance without regard to a make the regulation more easily the term ‘‘brief services’’ as it is used in person’s financial eligibility under Part comprehensible. proposed section 1611.9, Retainer 1611 when the assistance is supported Section 1611.2(a)—Advice and Counsel Agreements. LSC notes that brief wholly by non-LSC funds. LSC does not LSC proposes to add a definition of services is legal assistance characterized propose to change this (in fact, LSC the term ‘‘advice and counsel’’ as that primarily by being distinguishable from proposes to restate this principle in term appears in proposed section both extended service and advice and proposed section 1611.4(a)) and believes 1611.9, Retainer Agreements. Under the counsel. Under the proposed defintion, that the use of the term applicant as proposed definition, ‘‘advice and brief service is the performance of a proposed herein will help to clarify the counsel’’ would be defined as limited application of the rule. discrete task (or tasks) which are not legal assistance that involves the review incident to continuous representation in Section 1611.2(d)—Assets of information relevant to the client’s a case but which involve more than the LSC proposes to add a definition of legal problem(s) and counseling the mere provision of advice and counsel. the term assets to the regulation. The client on the relevant law or action(s) to Examples of brief services would proposed definition, ‘‘cash or other take to address the legal problem(s). LSC include activities such as the drafting of resources that are readily convertible to anticipates that advice and counsel documents or personalized assistance cash, which are currently and actually would generally be characterized by a with the completion of pleadings being available to the applicant,’’ is intended one-time or very short term relationship prepared and filed by pro se litigants, to provide some guidance to recipients between the attorney and the client. and making limited third-party contacts as to what is meant by the term assets, Advice and counsel does not encompass on behalf of a client in a short time yet provide considerable latitude to drafting of documents or making third- period. recipients in developing a description of party contacts on behalf of the client. Section 1611.2(f)—Extended Service assets that addresses local concerns and Thus, for example, advising a client of conditions. The key concepts intended what notice a landlord is required to LSC proposes to add a definition of in this definition are (1) ready provide to a tenant before evicting the the term ‘‘extended service’’ as that term convertibility to cash; and (2) tenant would fall under ‘‘advice and is used in proposed section 1611.9, availability of the resource to the counsel,’’ but making a phone call to a Retainer Agreements. As defined, applicant. landlord to prevent the landlord from extended service would mean legal Although the term is not defined in evicting a tenant would not be assistance characterized by the the regulation, current section 1611.6(c) considered ‘‘advice and counsel.’’ performance of multiple tasks incident states that ‘‘assets considered shall to continuous representation in which Section 1611.2(b)—Applicable Rules of include all liquid and non-liquid assets. the recipient undertakes responsibility Professional Responsibility * * *’’ The intent of this requirement is for protecting or advancing the client’s that recipients are supposed to consider LSC proposes to add a definition of interests beyond advice and counsel or all assets upon which the applicant the term ‘‘applicable rules of brief services. Examples of extended could draw in obtaining private legal professional responsibility’’ as that term service would include representation of assistance. While there was no intent to appears in proposed sections 1611.8, a client in litigation, administrative change the underlying requirement, in Change in Financial Eligibility Status adjudicative proceeding, alternate discussing the issues of assets and asset and 1611.9, Retainer Agreements. This dispute resolution proceeding, or ceilings in the Working Group it became definition is intended to make clear that extended negotiations with a third apparent that the terms ‘‘liquid’’ and the references in the regulation refer to party. ‘‘non-liquid’’ were obscuring the rules of ethics and professional Section 1611.2(f)—Governmental understanding of the regulation. To responsibility applicable to attorneys in Program for Low Income Individuals or some, the term ‘‘non-liquid’’ implied the jursidiction where the recipient Families something not readily convertible to either provides legal services or cash, while to others the term implied maintains its records. LSC proposes to change the term that an asset that was simply something is used in the regulation from Section 1611.2(c)—Applicant other than cash, without regard to the ‘‘governmental program for the poor’’ to Consistent with the intention ease of converting the asset to cash. ‘‘governmental program for low income throughout to keep the focus of the Thus, the Working Group decided that individuals and families.’’ This change regulation on the standards and criteria the terms ‘‘liquid’’ and ‘‘non-liquid’’ is not intended to create any substantive for determining the financial eligibility should be eliminated and that the change in the current definition, but of persons seeking legal assistance regulation should focus instead on the merely reflect preferred nomenclature. supported with LSC funds, LSC ready convertibility of the asset to cash. Section 1611.2(g)—Governmental proposes to use the term ‘‘applicant’’ The other key concept in the Program for Persons With Disabilities throughout the regulation to emphasize definition of asset is the availability of the distinction between applicants, the resource to the applicant. Although LSC is proposing to add a definition clients, and persons seeking or receiving the current regulation notes that the of the term ‘‘governmental program for assistance supported by other than LSC recipient’s asset guidelines ‘‘shall take persons with disabilities.’’ LSC proposes funds. Accordingly, LSC proposes to into account impediments to an to include in the authorized exceptions add a definition of applicant providing individual’s access to assets of the to the annual income ceilings an that an applicant is an individual family unit or household,’’ the Working exception relating to applicants seeking seeking legal assistance supported with Group was of the opinion that this to obtain or maintain govermental LSC funds. Groups, corporations and principle could be more clearly benefits for persons with disabilities. associations would be specifically articulated. LSC believes that the Accordingly, it is appropriate to include VerDate jul<14>2003 15:14 May 23, 2005 Jkt 205001 PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 E:FRFM24MYP1.SGM 24MYP1
  4. 4. 29698 Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Proposed Rules a proposed definition for this term. The applicant, LSC does not believe that the from the definition of total cash definition of income is the appropriate receipts. It is worth noting that the list proposed definition, ‘‘any Federal, State place in the regulation to deal with this of items included is not intended to be or local program that provides benefits issue. exhaustive, while the list of items to be of any kind to persons whose eligibility Taking the phrase ‘‘before taxes’’ out excluded is intended to be exhaustive. is determined on the basis of mental of the definition of income would Finally, LSC wishes to restate in this and/or physical disability,’’ is intended effectively change the meaning of preamble guidance on the treatment of to be similar in structure and income from gross income to net Indian trust fund monies in making application to the definition of the term income. The term income has meant income determinations. Several ‘‘governmental program for low income gross income since the original adoption provisions of Federal law regulate individuals and families.’’ of the financial eligibility regulation in whether or not income or interests in Section 1611.2(h)—Income 1976. See 41 FR 51604, at 51606, Indian trusts are taxable or should be LSC proposes to revise the current November 23, 1976. The maximum considered as resources or income for definition of income to refer to the total income guidelines are based on the Federal benefits. See 25 U.S.C. 1407– Department of Health and Human 1408; 25 U.S.C. 117a–117c. Under the cash receipts of a ‘‘household,’’ instead Services (DHHS) Federal Poverty terms of those laws, LSC has determined of a ‘‘family unit’’ and to make clear that Guidelines amounts. DHHS’ Federal that recipients may disregard up to recipients have the discretion to define Poverty Guidelines are, by law, based on $2000 per year of funds received by the term household in any reasonable the Census Bureau’s Federal Poverty individual Native Americans that are manner. Currently, the definition of Thresholds, which are calculated using derived from income or interests in income refers to ‘‘family unit,’’ while gross income before taxes. 42 U.S.C. Indian trusts from being considered the phrase ‘‘household or family unit’’ 9902(2); Office of Management and income for the purpose of determining appears in the section on asset ceilings. Budget Directive No. 14 (May 1978). financial eligibility of Native American It appears that there is no difference Changing the definition of income applicants for service, and that such intended by the use of different terms in effectively from gross to net would funds or interests of individual Native these sections and LSC believes that it introduce two different uses of the term Americans in trust or restricted lands is appropriate to simplify the regulation income into the regulations (one use in should not be considered as a resource to use the same single term in each the income guidelines published for the purpose of LSC financial provision, without creating a annually by LSC in Appendix A to Part eligibility. See LSC Office of Legal substantive change in the meaning of 1611 and another use in the text of the Affairs External Opinion 99–17, August either term. LSC proposes to use regulation). This would have significant 27, 1999. ‘‘household’’ instead of ‘‘family unit’’ As noted in External Opinion 99–17, repercussions in the application of the because it is a simpler, more the exclusion applies only to funds and regulation. LSC believes that this action understandable term. other interests held in trust by the would cause greater confusion. None of As noted above, LSC does not intend Federal government and investment the comments previously received the use of the term ‘‘household’’ to have income accrued therefrom. The supporting removal of ‘‘before taxes’’ a different meaning from the current following have been found to qualify for from the definition of income address term ‘‘family unit.’’ Under current the exclusion from income in this issue. Moreover, LSC believes that guidance from the LSC Office of Legal determining eligibility for various the practical problem (that taxes, Affairs, recipients have considerable government benefits: income from the indeed, are funds unavailable to the latitude in defining the term ‘‘family sale of timber from land held in trust; applicant), is better addressed by unit.’’ Specifically, OLA External income derived from farming and considering taxes as a separate factor Opinion No. EX–2000–1011 states: ranching operations on reservation land which can be considered by the Neither the LSC Act nor the LSC held in trust by the Federal government; recipient in making financial eligibility regulations define ‘‘family unit’’ for client income derived from rentals, royalties, determinations. LSC invites comment eligibility purposes. The Corporation will and sales proceeds from natural on this issue. This matter is presented defer to recipient determinations on this resources of land held in trust; sales in greater detail in the discussion of issue, within reason. Recipients may proceeds from crops grown on land held proposed section 1611.5, below. consider living arrangements, familial relationships, legal responsibility, financial In addition, LSC proposes to move the in trust; and use of land held in trust for responsibility or family unit definitions used information on what is encompassed by grazing purposes. On the other hand, by government benefits agencies, amongst the term ‘‘total cash receipts’’ into the per capita distributions of revenues other factors, in making such decisions. definition of income. LSC believes that from gaming activity on tribal trust LSC intends that this standard would having this information in the definition property are not protected because such also apply to definitions of ‘‘household’’ of income, rather than in a separate funds are not held in trust by the and the proposed definition would definition will make the regulation Federal government. Thus, such make this clear. easier to understand, particularly as the distributions are considered to be Field representatives on the Working term ‘‘total cash receipts’’ is used only income for purposes of determining LSC Group and several comments on the in the definition of income. In financial eligibility. November 2002 NPRM also suggested incorporating the language on ‘‘total Total Cash Receipts deleting the words ‘‘before taxes’’ from cash receipts,’’ LSC proposes to take the the definition of income. Such a change LSC proposes to delete the definition current definition of the term without is desirable, they contend, because of ‘‘total cash reciepts,’’ currently at any substantive amendment, but automatically deducted taxes are not section 1611.2(h), as a separately reorganized to make it easier to available for an applicant’s use and the defined term in the regulation. Rather, understand. Specifically, LSC proposes failure to take current taxes into account LSC proposes to reorganize the to separate the definition into two in determining income has an adverse information contained in the definition sentences, one of which sets forth those impact on the working poor. While it is things which are included in total cash and move it directly into the definition undoubtedly true that automatically receipts and one which sets forth those of ‘‘income.’’ As noted above, the only deducted taxes are not available to an things which are specifically excluded place the term ‘‘total cash reciepts’’ is VerDate jul<14>2003 15:14 May 23, 2005 Jkt 205001 PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 E:FRFM24MYP1.SGM 24MYP1
  5. 5. 29699 Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Proposed Rules used is in the defintion of ‘‘income’’ and In establishing income and asset or other assets that may not be attached LSC believes that having a separate ceilings, the recipient would have to for the satisfaction of a debt, etc. There was discussion within the definition for ‘‘total cash reciepts’’ is consider the cost of living in the Working Group about the appropriate cumbersome and unnecessary. locality; the number of clients who can scope of this provision. Field be served by the resources of the Section 1611.3—Financial Eligibility representatives suggested that the list of recipient; the potentially eligible Policies exclusions should be illustrative, and population at various ceilings; and the LSC proposes to create a new section not exhaustive, allowing recipients availability of other sources of legal 1611.3, Financial Eligibility Policies, greater discretion in developing asset assistance. With respect to assets of based on requirements currently found ceilings. Four of the comments LSC domestic violence victims jointly held in sections 1611.5(a), 1611.3(a)–(c) and received on the November 2002 NPRM with their abusers, this requirement 1611.6. The new section 1611.3 would agreed with the suggestion that the list applies when the applicant has made address in one section recipients’ should be illustrative rather than the recipient aware that he or she is a responsibilities for adopting and exhaustive. LSC, however, prefers to victim of domestic violence. implementing financial eligibility In addition, LSC proposes to permit retain the approach in the current policies. Under the proposed new recipients to adopt financial eligibility regulation in which the list of section, the current requirement that policies which provide for authorized excludable assets is set forth in toto. recipients’ governing bodies have to exceptions to the annual income ceiling LSC believes that this approach adopt policies for determining financial pursuant to proposed section 1611.5 emphasizes the policy that most assets eligibility would be retained. LSC and for waiver of the asset ceiling for an are to be considered and maintains a proposes, however, to change the applicant in a particular case under basic level of consistency nationally current requirement for an annual unusual circumstances and when with respect to this issue. However, LSC review of these policies and instead approved by the Executive Director or does agree that the regulation could require recipients’ governing bodies to his/her designee. Finally, LSC proposes afford recipients some additional conduct triennial reviews of policies. to permit recipients to adopt financial flexibility in developing asset ceilings, The Working Group agreed that an eligibility policies which permit consistent with the policy articulated annual review was unnecessary and has financial eligibility to be established by above. The Working Group believes that tended to result in rather pro forma reference to an applicant’s receipt of the proposed language meets those reviews of policies. In contrast, a benefits from a governmental program objectives, particularly in light of the triennial review requirement would be for low-income individuals or families proposed amendment to the asset sufficient to ensure that financial consistent with proposed section ceiling waiver standard discussed eligibility policies remain relevant and 1611.4(b). below. LSC invites comment on whether These proposed provisions are, with would encourage a more thorough and the list should be illustrative or two exceptions, based directly on thoughtful review when such review is exhaustive. LSC also invites comment current requirements with a few on whether additional specific assets undertaken. The section would also add substantive changes. First among the should be included in the list of an express requirement that recipients changes, recipients would no longer be excludable assets and, if so, what items adopt implementing procedures. While required to routinely submit their asset might be appropriate. this is already implicit in the current ceilings to LSC. This requirement LSC is also proposing to change the regulation, LSC believes it would be appears to serve little or no purpose, as asset ceiling waiver standard slightly. better for this requirement to be compliance with this requirement has The current regulation permits waiver expressly stated. Such implementing been spotty and LSC has taken no action in ‘‘unusual or extremely meritorious procedures could be adopted either by to obtain the information from situations;’’ the proposed rule would a recipient’s governing body or by the recipients which have not automatically permit waiver in ‘‘unusual recipient’s management. submitted it. Moreover, the information circumstances.’’ The Working Group Proposed section 1611.3 would also collected is not being put to any routine determined that the current language is contain certain minimum requirements use. In addition, LSC has not had a unnecessarily stringent and that it is for the content of recipient’s financial parallel requirement for the submission unclear what the difference is intended eligibility policies. Specifically, LSC of income ceilings. The Working Group to be between ‘‘unusual’’ and proposes that the recipient’s financial determined that this requirement could ‘‘extremely meritorious.’’ It was eligibility policy must: • Specify that only applicants for be eliminated without any adverse effect suggested in the Working Group that the on program compliance with or standard should be ‘‘where service determined to be financially Corporation enforcement of the appropriate.’’ LSC, however, felt that the eligible under the policy may be further regulation. regulation should continue to reflect the considered for LSC-funded service; • Establish annual income ceilings of Another substantive change is that policy that waivers of the asset ceilings recipients would be permitted to should only be granted sparingly and no more than 125% of the current provide in their financial eligibility not as a matter of course. The Working DHHS Federal Poverty Guidelines policies for the exclusion of (in addition Group agreed that the revised language amounts; • Establish asset ceilings; and to a primary residence, as provided for accomplishes this goal, while providing • Specify that, notwithstanding any in the existing regulation) vehicles, some additional appropriate discretion other provisions of the regulation or the assets used in producing income (such to recipients. In addition, where the recipient’s financial eligibility policies, as a farmer’s tractor or a carpenter’s current rule requires all waiver in assessing the financial eligibility of tools) and other assets excluded from decisions to be made by the Executive an individual known to be a victim of attachment under State or Federal law Director, LSC proposes to permit those domestic violence, the recipient shall from the calculation of assets. In decisions to be made by the Executive consider only the income and assets of identifying other assets excluded from Director or his/her designee. LSC the individual applicant and shall not attachment under State or Federal law, believes it is important that a person in consider any assets jointly held with the LSC has in mind assets that are significant authority be involved in abuser. excluded from bankruptcy proceedings making asset ceiling waiver decisions, VerDate jul<14>2003 15:14 May 23, 2005 Jkt 205001 PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 E:FRFM24MYP1.SGM 24MYP1
  6. 6. 29700 Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Proposed Rules but recognizes that, especially as more applicant to be financially eligible if the benefits for low-income individuals and recipients have consolidated and now applicant’s assets are at or below the families, eligibility for which includes serve larger areas, it is important for recipient’s applicable asset ceiling level an asset test. Key to this practice is that recipients to have the discretion to (or the ceiling has been properly the recipient’s governing body has to delegate certain authority to regional or waived) and the applicant’s income is at take some identifiable action to branch office managers or directors to or below the recipient’s applicable recognize the asset test of the increase administrative efficiency. income ceiling, or if one or more of the governmental benefit program being The first totally new element is the authorized exceptions to the ceiling relied upon. This ensures that the proposed language regarding victims of applies. These provisions are based on eligibility standards of the govermental domestic violence. This proposal existing provisions found in sections program have been carefully considered implements LSC’s FY 1998 1611.3, 1611.4 and 1611.6. As revised, and are incorporated into the overall appropriations law. Specifically, section the new provisions do not represent a financial eligibility policies adopted and 506 of that act provides: substantive change, but LSC believes regularly reviewed by the recipient’s having the basic statements as to who governing body. As this practice has In establishing the income or assets of an may be found to be financially eligible proved efficient and effective, it was individual who is a victim of domestic for assistance in one section makes the violence, under section 1007(a)(2) of the determined that a parallel process could Legal Services Corporation Act (42 U.S.C. regulation much clearer. In addition, also be adopted for income screening 2996f(a)(2)), to determine if the individual is where the existing regulation uses a and that these practices should be eligible for legal assistance, a recipient construction that speaks to when a expressly included in the regulations. It described in such section shall consider only recipient may provide legal assistance, is important to note that this provision the assets and income of the individual and the proposed new language emphasizes would only apply to applicants whose shall not include any jointly held assets. the point that the requirements speak sole source of income is derived from Although this law has been in effect only to determinations of financial such benefits. Applicants who also have since 1997, it has never been formally eligibility and not to decisions regarding income derived from other sources incorporated into Part 1611. This whether or not to actually provide legal would be subject to an independent provision of law applies regardless of assistance. inquiry and assessment of financial whether it appears in the regulation. LSC also proposes to incorporate into eligibility. However, incorporating this language this section a significant substantive Finally, in the November 2002 NPRM, into the regulation is appropriate, change to the regulation. Consistent LSC proposed to include in this section particularly in light of the goal of this with proposed section 1611.3 as a provision requiring recipients to make rulemaking to clarify the requirements discussed above, if adopted, the reasonable inquiry into an applicant’s relating to financial eligibility regulation would permit recipients to financial status in making financial determinations. determine an applicant to be financially eligibility determinations. Upon Finally, the proposal to permit eligible because the applicant’s income reflection, LSC believes that this recipients to adopt financial eligibility is derived solely from a governmental requirement is better included in policies which permit financial program for low-income individuals or proposed section 1611.7, Manner of eligibility to be established by reference families, provided that the recipient’s Determining Financial Eligibility and to an applicant’s receipt of benefits from governing body has determined that the has moved this proposal to that section. a governmental program for low-income income standards of the governmental For a detailed discussion of this issue, individuals or families consistent with program are at or below 125% of the see the discussion of proposed section proposed section 1611.4(b) is also new. Federal Poverty Guidelines amounts. 1611.7, below. This proposal is discussed in greater For many recipients, a significant detail below. proportion of applicants rely on Section 1611.5—Authorized Exceptions governmental benefits for low-income to the Annual Income Ceiling Section 1611.4—Financial Eligibility for individuals and families as their sole Legal Assistance This proposed section provides for source of income. In order to qualify for This proposed section would set forth authorized exceptions to the annual these benefits, such persons have the basic requirement that recipients income ceiling. The proposed language, already been screened by the agency may provide legal assistance supported like the current language of sections providing the benefits (using an with LSC funds only to those 1611.4 and 1611.5, on which it is based, eligibility determination process that is individuals whom the recipient has is permissive. A recipient would be at stricter than the one required under LSC determined are financially eligible for liberty to include some, none, or all of regulations) and determined to be such assistance pursuant to their the authorized exceptions discussed financially eligible for those benefits. In policies, consistent with this Part. This below in its financial eligibility policies. Working Group discussions, many section also contains a proposed Thus, to the extent a recipient would representatives of the field noted that if statement that nothing in Part 1611 choose to avail itself of the authority they could rely on the determinations prohibits a recipient from providing provided in this proposed section, a made by these agencies without having legal assistance to an individual without recipient would be permitted to to otherwise make an independent regard to that individual’s income and determine an applicant to be financially inquiry into financial eligibility, it assets if the legal assistance is supported eligible for assistance, notwithstanding would substantially ease the wholly by funds from a source other that the applicant’s income is in excess administrative burden involved in than LSC (regardless of whether LSC of the recipient’s applicable income making financial eligibility funds were used as a match to obtain ceiling. In making such determinations, determinations. such other funds, as is the case with however, the recipient would have to The Working Group also noted that Title III or VOCA grant funds) and the detemine that the applicant’s assets current LSC practice permits recipients assistance is otherwise permissible were at or below the recipient’s to determine that an applicant’s assets under applicable law and regulation. are within the recipient’s asset ceiling applicable asset ceiling (or the ceiling This proposed section would further level without additional review if the would have had to have been waived). provide that a recipient may find an applicant is receiving governmental This requirement is consistent with the VerDate jul<14>2003 15:14 May 23, 2005 Jkt 205001 PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 E:FRFM24MYP1.SGM 24MYP1