29695
                                  Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Proposed Rules

     ...
29696                     Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Proposed Rules

                   ...
29697
                                Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Proposed Rules

       ...
29698                     Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Proposed Rules

                   ...
29699
                                Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Proposed Rules

       ...
29700                     Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Proposed Rules

                   ...
Rule Legal Assistance Eligibility; Maximum Income Guidelines
Rule Legal Assistance Eligibility; Maximum Income Guidelines
Rule Legal Assistance Eligibility; Maximum Income Guidelines
Rule Legal Assistance Eligibility; Maximum Income Guidelines
Rule Legal Assistance Eligibility; Maximum Income Guidelines
Rule Legal Assistance Eligibility; Maximum Income Guidelines
Rule Legal Assistance Eligibility; Maximum Income Guidelines
Rule Legal Assistance Eligibility; Maximum Income Guidelines
Rule Legal Assistance Eligibility; Maximum Income Guidelines
Rule Legal Assistance Eligibility; Maximum Income Guidelines
Rule Legal Assistance Eligibility; Maximum Income Guidelines
Upcoming SlideShare
Loading in …5
×

Rule Legal Assistance Eligibility; Maximum Income Guidelines

629 views
580 views

Published on

Published in: Business
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
629
On SlideShare
0
From Embeds
0
Number of Embeds
6
Actions
Shares
0
Downloads
3
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

Rule Legal Assistance Eligibility; Maximum Income Guidelines

  1. 1. 29695 Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Proposed Rules 12612, Federalism, dated October 26, eligibility in the NFIP. No regulatory 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 Accordingly, 44 CFR part 67 is policies that have federalism amended as follows: proposed to be amended as follows: implications under Executive Order # 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); mcondray@lsc.gov (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); mcondray@lsc.gov (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 entitlement to service. Rather, financial implementing the regulation, facilitate However, on the eve of the January compliance and aid LSC in enforcement 31–February 1, 2003 Board of Directors eligibility is merely a threshold question of the regulation; and clarification of the meeting at which the Draft Final Rule and the issue of whether any otherwise focus of the regulation on the financial was scheduled to be considered, LSC eligible applicant will be provided with eligibility of applicants for LSC-funded received a request from Representative legal assistance is a matter for the legal services as an issue separate from James Sensenbrenner, Chairman of the recipient to determine with reference to decisions on whether to accept a U.S. House of Representatives Judiciary its priorities and resources. In addition, particular client for service. In Committee, to suspend action on the this part does not address eligibility particular, LSC is proposing to rulemaking pending the confirmation of based on citizenship or alienage status; significantly reorganize and simplify the new LSC Board of Directors members those eligibility requirements are set sections of the rule which set forth the appointed by President Bush. The then- forth in Part 1626 of LSC’s regulations, various requirements relating to LSC Operations and Regulations Restrictions on Legal Assistance to establishment of recipient annual Committee deferred to Chairman Aliens. income and asset ceilings, authorized Sensenbrenner’s request. After the Section-by-Section Analysis exceptions and determinations of confirmation of the nine newly eligibility. These changes are intended appointed Board members, the Section 1611.1—Purpose to clarify the regulation and include reconsitituted Operations and LSC is proposing to revise this section substantive changes to make intake Regulations Committee further deferred to make clear that the standards of this simpler and less burdensome and action on the rulemaking pending the part concern only the financial render basic financial eligibility appointment of a new LSC President. eligibility of persons seeking LSC- determinations easier for recipients to After the arrival of the new LSC funded legal assistance and that a make. LSC is also proposing to move the President in January 2004, the finding of financial eligibility under Part existing provisions on group reconstituted Operations and 1611 does not create an entitlement to representation, with some amendment, Regulations Committee resumed service. In addition, LSC proposes to to a separate section of the regulation. consideration of the Part 1611 remove the language in the current Finally, LSC is proposing simplification rulemaking. 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 One other general issue merits Operations and Regulations Committee LSC Act contained language indicating discussion. Section 509(h) of the FY discussed and provided policy direction that recipients should provide 1996 LSC appropriations act, Public to staff on the two aspects of the preferences in service to the poorest Law 104–134, provides that, among proposed changes to the regulations among applicants, that language was other records, eligibility records ‘‘shall about which LSC and the field had deleted when the Act was reauthorized be made available to any auditor or failed to achieve consensus during the in 1977 and has remained out of the monitor of the recipient * * * except Working Group meetings—retainer legislation ever since. Moreover, section for such records subject to the attorney- agreements and group representation. 504(a)(9) of the FY 1996 appropriations client privilege.’’ This provision has The Committee reviewed these act, Public Law 104–134 (incorporated been retained in each subsequent proposals and the remainder of the by reference in the current appropriations measure and continues proposed revisions to Part 1611 at its appropriations act and implemented by to be in force. During the prior stages of meeting of April 1, 2005. At the meeting regulation at 45 CFR part 1620) provides this rulemaking, there had been some of the full Board of Directors on April that recipients are to make service discussion and consideration of having 30, 2005, upon the recommendation of determinations in accordance with this language expressly incorporated the Committee, the Board determined written priorities, which take into into Part 1611. LSC continues to believe that because two years has passed since account factors other than the relative that, as 509(h) covers significantly more the publication of the November 2002 poverty among applicants. Thus, as than eligibility records, having a full NPRM, rather than adopting a final rule there is no statutory basis for a discussion of the meaning of 509(h) in amending Part 1611, the most prudent preference for those least able to afford the context of 1611, which addresses course of action would be to republish assistance and because LSC believes only financial eligibility issues, is not a revised NPRM for public comment. that the regulation should focus on appropriate. Accordingly, LSC does not Accordingly, except for the retainer financial eligibility determinations propose to include regulatory language agreement and group eligibility sections, without reference to issues relating to implementing 509(h) with respect to LSC is proposing the same revisions determinations by a recipient to provide records covered by this Part. For a fuller (with only a few, non-substantive services to a particular applicant, such discussion of this issue, see the differences) as LSC proposed in language should be removed from the preamble to the November 22, 2002 November 2002 and requests public regulation. LSC also proposes to add NPRM, 67 FR 70376. comment thereon. language specifying that this Part also Title of Part 1611 Proposed Revisions to Part 1611 sets forth financial standards for groups LSC proposes to change the title of While specific proposed revisions are seeking legal assistance supported by Part 1611 from ‘‘Eligibility’’ to discussed in greater detail in the LSC funds. Finally, LSC proposes to ‘‘Financial Eligibility.’’ This proposed Section-by-Section analysis below, it include a reference to the retainer change is intended, first, to make clear should be noted that the proposed agreement requirement in the purpose that with respect to individuals seeking revisions reflect several overall goals of section to provide a notice at the LSC-funded legal assistance, the the Working Group: reorganization of beginning of the regulation that this standards of this part deal only with the the regulation to make it easier to read subject is included in Part 1611. financial eligibility of such persons. LSC and follow; simplification and Section 1611.2—Definitions believes this change will help clarify streamlining of the requirements of the LSC proposes to add definitions for that a finding of financial eligibility rule to ease administrative burdens several terms and to amend the under Part 1611 does not create an faced by LSC recipients in 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 proposed language accomplishes that excluded from this definition, as the definitions for each of the existing terms eligibility of groups would be addressed currently defined in the regulation. LSC purpose. wholly within proposed section 1611.6. believes that the new definitions and 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 discrete task (or tasks) which are not application of the rule. 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 LSC proposes to add a definition of what notice a landlord is required to in this definition are (1) ready the term ‘‘extended service’’ as that term provide to a tenant before evicting the convertibility to cash; and (2) is used in proposed section 1611.9, tenant would fall under ‘‘advice and availability of the resource to the Retainer Agreements. As defined, counsel,’’ but making a phone call to a applicant. extended service would mean legal landlord to prevent the landlord from Although the term is not defined in assistance characterized by the evicting a tenant would not be the regulation, current section 1611.6(c) performance of multiple tasks incident considered ‘‘advice and counsel.’’ 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 LSC proposes to change the term that maintains its records. 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 The other key concept in the proposes to use the term ‘‘applicant’’ Program for Persons With Disabilities definition of asset is the availability of throughout the regulation to emphasize LSC is proposing to add a definition the resource to the applicant. Although the distinction between applicants, of the term ‘‘governmental program for the current regulation notes that the clients, and persons seeking or receiving persons with disabilities.’’ LSC proposes recipient’s asset guidelines ‘‘shall take assistance supported by other than LSC to include in the authorized exceptions into account impediments to an funds. Accordingly, LSC proposes to to the annual income ceilings an individual’s access to assets of the add a definition of applicant providing exception relating to applicants seeking family unit or household,’’ the Working that an applicant is an individual to obtain or maintain govermental Group was of the opinion that this seeking legal assistance supported with benefits for persons with disabilities. principle could be more clearly LSC funds. Groups, corporations and Accordingly, it is appropriate to include articulated. LSC believes that the associations would be specifically 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 from the definition of total cash applicant, LSC does not believe that the a proposed definition for this term. The receipts. It is worth noting that the list definition of income is the appropriate proposed definition, ‘‘any Federal, State of items included is not intended to be place in the regulation to deal with this or local program that provides benefits exhaustive, while the list of items to be issue. 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 Finally, LSC wishes to restate in this of the definition of income would and/or physical disability,’’ is intended preamble guidance on the treatment of effectively change the meaning of to be similar in structure and Indian trust fund monies in making income from gross income to net application to the definition of the term income determinations. Several income. The term income has meant ‘‘governmental program for low income provisions of Federal law regulate gross income since the original adoption individuals and families.’’ whether or not income or interests in of the financial eligibility regulation in Section 1611.2(h)—Income Indian trusts are taxable or should be 1976. See 41 FR 51604, at 51606, LSC proposes to revise the current considered as resources or income for November 23, 1976. The maximum Federal benefits. See 25 U.S.C. 1407– income guidelines are based on the definition of income to refer to the total 1408; 25 U.S.C. 117a–117c. Under the Department of Health and Human cash receipts of a ‘‘household,’’ instead terms of those laws, LSC has determined Services (DHHS) Federal Poverty of a ‘‘family unit’’ and to make clear that that recipients may disregard up to Guidelines amounts. DHHS’ Federal recipients have the discretion to define $2000 per year of funds received by Poverty Guidelines are, by law, based on the term household in any reasonable individual Native Americans that are the Census Bureau’s Federal Poverty manner. Currently, the definition of derived from income or interests in Thresholds, which are calculated using income refers to ‘‘family unit,’’ while Indian trusts from being considered gross income before taxes. 42 U.S.C. the phrase ‘‘household or family unit’’ income for the purpose of determining 9902(2); Office of Management and appears in the section on asset ceilings. financial eligibility of Native American Budget Directive No. 14 (May 1978). It appears that there is no difference applicants for service, and that such Changing the definition of income intended by the use of different terms in funds or interests of individual Native effectively from gross to net would these sections and LSC believes that it Americans in trust or restricted lands introduce two different uses of the term is appropriate to simplify the regulation should not be considered as a resource income into the regulations (one use in to use the same single term in each for the purpose of LSC financial the income guidelines published provision, without creating a eligibility. See LSC Office of Legal annually by LSC in Appendix A to Part substantive change in the meaning of Affairs External Opinion 99–17, August 1611 and another use in the text of the either term. LSC proposes to use 27, 1999. regulation). This would have significant ‘‘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 LSC proposes to delete the definition the definition of income. Such a change current definition of the term without of ‘‘total cash reciepts,’’ currently at is desirable, they contend, because any substantive amendment, but section 1611.2(h), as a separately automatically deducted taxes are not reorganized to make it easier to defined term in the regulation. Rather, available for an applicant’s use and the understand. Specifically, LSC proposes LSC proposes to reorganize the failure to take current taxes into account to separate the definition into two information contained in the definition in determining income has an adverse sentences, one of which sets forth those and move it directly into the definition impact on the working poor. While it is things which are included in total cash of ‘‘income.’’ As noted above, the only undoubtedly true that automatically receipts and one which sets forth those place the term ‘‘total cash reciepts’’ is deducted taxes are not available to an things which are specifically excluded 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 or other assets that may not be attached In establishing income and asset used is in the defintion of ‘‘income’’ and for the satisfaction of a debt, etc. ceilings, the recipient would have to LSC believes that having a separate There was discussion within the consider the cost of living in the definition for ‘‘total cash reciepts’’ is Working Group about the appropriate locality; the number of clients who can cumbersome and unnecessary. 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 retain the approach in the current In addition, LSC proposes to permit policies. Under the proposed new regulation in which the list of recipients to adopt financial eligibility section, the current requirement that excludable assets is set forth in toto. policies which provide for authorized recipients’ governing bodies have to LSC believes that this approach exceptions to the annual income ceiling adopt policies for determining financial emphasizes the policy that most assets pursuant to proposed section 1611.5 eligibility would be retained. LSC are to be considered and maintains a and for waiver of the asset ceiling for an proposes, however, to change the basic level of consistency nationally applicant in a particular case under current requirement for an annual with respect to this issue. However, LSC unusual circumstances and when review of these policies and instead does agree that the regulation could approved by the Executive Director or require recipients’ governing bodies to afford recipients some additional his/her designee. Finally, LSC proposes conduct triennial reviews of policies. flexibility in developing asset ceilings, to permit recipients to adopt financial The Working Group agreed that an consistent with the policy articulated eligibility policies which permit annual review was unnecessary and has above. The Working Group believes that financial eligibility to be established by tended to result in rather pro forma the proposed language meets those reference to an applicant’s receipt of reviews of policies. In contrast, a objectives, particularly in light of the benefits from a governmental program triennial review requirement would be proposed amendment to the asset for low-income individuals or families sufficient to ensure that financial ceiling waiver standard discussed consistent with proposed section eligibility policies remain relevant and below. LSC invites comment on whether 1611.4(b). These proposed provisions are, with would encourage a more thorough and the list should be illustrative or two exceptions, based directly on exhaustive. LSC also invites comment thoughtful review when such review is 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 LSC is also proposing to change the ceilings to LSC. This requirement regulation, LSC believes it would be asset ceiling waiver standard slightly. appears to serve little or no purpose, as better for this requirement to be The current regulation permits waiver compliance with this requirement has expressly stated. Such implementing in ‘‘unusual or extremely meritorious been spotty and LSC has taken no action procedures could be adopted either by situations;’’ the proposed rule would to obtain the information from a recipient’s governing body or by the permit waiver in ‘‘unusual recipients which have not automatically recipient’s management. circumstances.’’ The Working Group submitted it. Moreover, the information Proposed section 1611.3 would also determined that the current language is collected is not being put to any routine contain certain minimum requirements unnecessarily stringent and that it is use. In addition, LSC has not had a for the content of recipient’s financial unclear what the difference is intended parallel requirement for the submission eligibility policies. Specifically, LSC to be between ‘‘unusual’’ and of income ceilings. The Working Group proposes that the recipient’s financial ‘‘extremely meritorious.’’ It was determined that this requirement could eligibility policy must: • Specify that only applicants for suggested in the Working Group that the be eliminated without any adverse effect standard should be ‘‘where on program compliance with or service determined to be financially appropriate.’’ LSC, however, felt that the Corporation enforcement of the eligible under the policy may be further regulation should continue to reflect the regulation. 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 assets used in producing income (such other provisions of the regulation or the to recipients. In addition, where the as a farmer’s tractor or a carpenter’s recipient’s financial eligibility policies, current rule requires all waiver tools) and other assets excluded from in assessing the financial eligibility of decisions to be made by the Executive attachment under State or Federal law an individual known to be a victim of Director, LSC proposes to permit those from the calculation of assets. In domestic violence, the recipient shall decisions to be made by the Executive identifying other assets excluded from consider only the income and assets of Director or his/her designee. LSC believes it is important that a person in attachment under State or Federal law, the individual applicant and shall not significant authority be involved in LSC has in mind assets that are consider any assets jointly held with the making asset ceiling waiver decisions, excluded from bankruptcy proceedings abuser. 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 benefits for low-income individuals and applicant to be financially eligible if the but recognizes that, especially as more applicant’s assets are at or below the recipients have consolidated and now families, eligibility for which includes recipient’s applicable asset ceiling level serve larger areas, it is important for an asset test. Key to this practice is that (or the ceiling has been properly recipients to have the discretion to the recipient’s governing body has to waived) and the applicant’s income is at delegate certain authority to regional or take some identifiable action to or below the recipient’s applicable branch office managers or directors to recognize the asset test of the income ceiling, or if one or more of the increase administrative efficiency. 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 authorized exceptions to the annual This proposed section would set forth these benefits, such persons have income ceiling. The proposed language, the basic requirement that recipients already been screened by the agency like the current language of sections may provide legal assistance supported providing the benefits (using an 1611.4 and 1611.5, on which it is based, with LSC funds only to those eligibility determination process that is is permissive. A recipient would be at individuals whom the recipient has stricter than the one required under LSC liberty to include some, none, or all of determined are financially eligible for regulations) and determined to be the authorized exceptions discussed such assistance pursuant to their financially eligible for those benefits. In below in its financial eligibility policies. policies, consistent with this Part. This Working Group discussions, many Thus, to the extent a recipient would section also contains a proposed representatives of the field noted that if choose to avail itself of the authority statement that nothing in Part 1611 they could rely on the determinations provided in this proposed section, a prohibits a recipient from providing made by these agencies without having recipient would be permitted to legal assistance to an individual without to otherwise make an independent determine an applicant to be financially regard to that individual’s income and inquiry into financial eligibility, it eligible for assistance, notwithstanding assets if the legal assistance is supported would substantially ease the that the applicant’s income is in excess wholly by funds from a source other administrative burden involved in of the recipient’s applicable income than LSC (regardless of whether LSC making financial eligibility ceiling. In making such determinations, funds were used as a match to obtain determinations. however, the recipient would have to such other funds, as is the case with The Working Group also noted that detemine that the applicant’s assets Title III or VOCA grant funds) and the current LSC practice permits recipients were at or below the recipient’s assistance is otherwise permissible to determine that an applicant’s assets applicable asset ceiling (or the ceiling are within the recipient’s asset ceiling under applicable law and regulation. would have had to have been waived). level without additional review if the This proposed section would further This requirement is consistent with the applicant is receiving governmental provide that a recipient may find an VerDate jul<14>2003 15:14 May 23, 2005 Jkt 205001 PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 E:FRFM24MYP1.SGM 24MYP1

×