State and local agencies, legal aid or services programs, and others have acted on their own initiative, and developed legal services for the elderly well in advance of AOA's recent actions. While we do not have a compilation of legal programs for the elderly throughout the country, it is estimated that approximately 100 such programs are in operation. These programs present a broad spectrum in terms of the elderly clientele served (e.g., income limits, residency requirements), the type of assistance provided (e.g., full range of services, only nonfee generating cases) and the funding obtained to insure continued service (e.g., title XX funds, OAA funds). According to the Massachusetts Department of Elder Affairs legal services for the elderly in this State are presently provided through the activities of the nursing home ombudsman program. The department also plans to publish and distribute to the area agencies on aging a booklet on the legal problems of the elderly.

I had briefly mentioned that the role of the private bar association in assisting the elderly with their special legal problems has been limited due to the unique nature of these problems. This does not mean that the private bar association has not recognized its obligation to improve services to the elderly. Assistance can be improved, particularly where the legal problem is encountered by all citizens, and the private attorney would have considerable experience in dealing with it. The American Bar Association, at its 1975 annual meeting passed a resolution which supported a program to establish, with the cooperation of local and State bar associations, panels of retired attorneys. These panels would provide legal assistance on a pro bono basis to the elderly who are financially unable to obtain an attorney. Moreover, the family law section of the ABA is currently considering a proposal that in 1977 the association will sponsor a national institute on the legal problems of the elderly. We believe these to be very constructive programs and encourage the ABA to pursue them further.

While these facts indicate there are activities underway on various levels to improve and expand the delivery of legal services to the elderly, they also show that a vast need for such services remains. Further actions to meet this need must be forthcoming. The Congress has an important responsibility to promote and develop a comprehensive national effort. To assist you, our associations ask that you consider and study the following recommendations.

We have previously pointed out that existing legal services programs funded by the Legal Services Corporation are not fully utilized by the elderly for a number of reasons. We suggest appropriate legislation that would require any federally funded legal services program to create a special component that is designed to assist the elderly. Our associations' "legal counsel" project has successfully demonstrated that retired persons can be trained and be utilized as paraprofessionals in providing legal services to the elderly. The staff attorneys on the project have estimated that they were able to increase their caseload by 30 percent to 50 percent by working with volunteers. The creation of a special component, such as the "legal counsel" project will help to increase the utilization of existing legal services by the elderly.

We have also stated that a retired person who has a legal problem under a public benefit program may not be eligible for assistance under a legal services program and yet cannot secure a private attorney because the case may not offer sufficient monetary awards. We suggest that consideration be given to establishing conditions, in addition to income, to determine eligibility for assistance under a federally funded program. Other possible conditions are the percentage of income derived from public benefit programs or age.

In our discussion of the substantive legal problems of the elderly, we stated that the most prevalent and serious legal problem affecting this group is the denial of their rights under local and federal programs. Our associations' "legal counsel" project has demonstrated that entitlement to public benefits is a primary concern of retired persons, regardless of income. A retired person who is attempting to determine his eligibility for certain benefits cannot obtain unbiased legal counsel from the government agency that is administering the federal program. The establishment of a special office within the Government agency, which provides unbiased legal assistance to the elderly on benefit entitlement, may help to alleviate this problem.

The Administration on Aging has attempted to place the State agencies in a leadership role for the development of legal services. As we pointed out, the Older Americans Act now requires all States to spend a percentage of their title III funds on only one of the four items specified under the law. This

means that the State, if it so determines, may allocate no title III funds for legal services. In light of the pressing need for such services, perhaps the law should be amended to insure that a percentage of title III funds will be spent on legal services.

We have pointed out that the elderly may not know that they have encountered a legal problem and, even if they do, they may not know assistance is available. Furthermore, our associations' "legal counsel" project reports that it has become abundantly clear that a continuous effort is required to keep the name of the project before the elderly who need the services. The "legal counsel" project also reports that it has received letters from across the country requesting legal assistance. For these reasons we find that the public, particularly the elderly, must be made more aware of legal services. We believe specific legislation may be needed to insure that sufficient funds are available to inform and educate the public about legal services for the elderly.

In conclusion, we believe that important steps have been taken to alleviate the problem of inadequate legal services to the elderly. However, more action is required. I hope that our remarks and suggestions will be helpful to you in considering what future action is needed. Thank you.

LEGAL PROBLEMS OF THE ELDERLY

1. Social Security Old Age Benefits.-Many individuals are unaware of their eligibility to receive benefits or of their entitlement to higher benefit payments. An individual, even if he does feel that he is eligible or is entitled to higher benefits may not know how to determine such or to contact the appropriate officials. A legal services program should advise the elderly of their eligibility and assist in benefit computation.

Many individuals are unaware of their right to appeal adverse determinations by the Social Security Administration, or are unfamiliar with the appeal process. A legal service program should be able to assist and to represent those who may wish to make a formal appeal.

2. Supplemental Security Income. The problems that have arisen under SSI have been described as severe.1 Only 2.3 million people of the estimated 4 million elderly who are eligible for SSI are receiving benefits. As of January 1975, there were approximately 27,000 appeal hearings pending concerning SSI, a majority of which were eligibility claims filed by elderly persons. Being a relatively new program, many people are uncertain as to the basic provisions of SSI.

Therefore, a need does exist to alert the elderly of their right to benefits under SSI and to explain the program. Assistance can also be provided to those elderly whose checks have been lost or delayed.

3. Medicare.-A major issue is the wrongful denial of reimbursement for medical expenses and the interpretation of those provisions which limit or extend benefits (e.g., items and services which are reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of malformed body member). Issues also arise as to the delayed determination of benefits and the scope of services covered.

4. Medicaid.-Medicaid is a joint Federal-State program in which the states are given considerable latitude in determining eligibility requirements and the scope of services provided. Consequently, issues have arisen regarding eligibility, the denial of benefits based upon residency requirements, in addition to those issues arising under medicare.

5. Food Stamps.-Elderly persons, although eligible under the food stamp program, have not been provided with proper information or are reluctant to enter the food stamp office and apply. These individuals who are experiencing extreme financial difficulties are entitled to this relief. A legal services program should provide basic eligibility information for food stamps.

6. Public Housing.-Many older persons, faced with ever-increasing costs, cannot afford decent housing. A legal services program should assist those eligible older persons to obtain public housing. The older person, as well as all tenants, are entitled to the quiet enjoyment of their premises and should be protected from arbitrary action or harassment by the public landlord.

1 House Report 94-67, p. 9. Ibid.

7. Landlord-Tenant.-The older person may be uncertain of his rights to decent housing or his rights to evict a tenant who will not pay the rent and move out. The older person may also not know how to proceed in order to enforce these rights.

A legal services office should advise the older person requesting assistance as to the duties and responsibilities of the landlord to maintain the premises in a habitable condition, the law and regulation concerning rent increases and conversion of apartment units to condominiums, as well as advice on eviction procedures.

8. Real Property Taxes.-To alleviate the income drain caused by property taxes upon older persons with fixed incomes, the States have provided property tax concessions to this group. Such advantages can, however, be lost if the property has been assessed at an unreasonable amount. A legal services program should provide basic information on property tax relief and assessment appeal procedures.

9. Pensions.-Congressional studies have shown that persons rarely receive back what they contributed to a pension plan. These findings prompted the enactment of the Retirement Income Security Act of 1974. However, this act does not provide relief for those persons who retired or became disabled prior to the effective date. These individuals are not assured of their benefits and may require legal assistance.

10. Consumer Problems.-Older persons, as well as all consumers, can become victims of deceptive practices in the selling, pricing or advertising of goods and services, buying on credit or may wish to enforce their rights under a warranty or guarantee. The older person may become involved in a dispute with an insurance carrier or health care provider over the coverage included within a policy. An older person may require assistance in negotiating with a merchant over the repair or replacement of a defective good or to lower a repair bill to conform with estimates. Assistance can also be offered in negotiating with insurance carriers. Older persons would also be provided with information regarding the small claims court and how to use it to obtain relief.

11. Age Discrimination.-Discrimination based upon age can occur within a wide range of areas, e.g., employment and discharge, consumer credit, housing. The older worker can enforce his rights under the Age Discrimination in Employment Act which applies to persons between 40 and 65 years of age. Older workers must be advised of the coverage, prohibitions, enforcement, procedure and relief as set forth within the act.

Senator KENNEDY. All right, now, we have a panel who are professional and knowledgeable and active in the delivery of legal services in the State to the elderly; J. J. Donovan, director of the nursing home ombudsman project for the Massachusetts Department of Elder Affairs, retired attorney, who in his ombudsman post is establishing a clearinghouse to help people locate nursing home openings, and who has also initiated a furlough program where nursing home residents forced to be hospitalized can be assured of a bed upon returning to the nursing home. This program is funded through the Older Americans Act. Bob Spangenberg is a member of both the Boston Bar Association and the Massachusetts Bar Association, former executive director of the Action Plan for Legal Services, who, during that period, conducted a study on the legal needs of low-income persons in the Boston area, and provided the court information on the legal needs of elderly citizens. Gerald Wall is a staff attorney for the Council of Elders Legal Service Program, who filed suit on behalf of the public housing tenants to prevent the Boston Housing Authority from imposing rent hikes. The injunction was issued to prevent those hikes from taking place and now remains pending in the courts. James Bergman is New England regional director of the legal research and services for the elderly program funded by the Administration on the Aging, under the Older Americans Act. Mr. Donovan, you may start.

STATEMENT OF J. J. DONOVAN, DIRECTOR, NURSING HOME OMBUDSMAN PROJECT, DEPARTMENT OF ELDER AFFAIRS, COMMONWEALTH OF MASSACHUSETTS, BOSTON, MASS.

Mr. DONOVAN. Good morning, Senator. My name is J. J. Donovan. I am the State nursing home ombudsman director in the department of elder affairs. The purpose of the nursing home ombudsman project is to provide a forum through which nursing home patients, or their next of kin or friends, can place complaints about nursing home care which we can process.

In a couplet, I can say that our purpose is to improve the quality of care which nursing home patients receive and to upgrade the safety of the environment in which they live. Early in our project it became apparent that it was important for us to work on the problems and also to provide information and referral for nursing home patients. We found that a problem involving the spouse remaining in the community soon became a problem for the nursing home patient and a subject of worry and concern and trauma, and therefore we expanded our operation to provide assistance in solving problems in the community.

The ombudsman developmental specialist has been recently created as an offshoot of the nursing home ombudsman project. The purpose of the ombudsman developmental specialist is to develop local resources which will provide assistance to nursing home patients by visiting them in the nursing home locale to determine what complaints and what problems exist, and how they can be resolved.

FIVE KEY LEGAL AREAS FOR NURSING HOME PATIENTS

In the past year we have added a legal service project to the ombudsman activity. This project is dedicated to providing legal aid in five areas for nursing home patients. The legal aid will also be available to the elderly in the community. The areas which we chose are those which required the greatest assistance. These are the areas of providing for the appointment of a conservator, the appointment of a guardian, guidance in incompetency issues, guidance where access to nursing homes has been denied, and assistance in preventing the involuntary nursing home transfers. Legal aid is also provided to assure that fair hearings procedures are followed. Finally, assistance in home ownership issues, so that the elderly may be informed as to the availability and procedures to be followed in obtaining assistance. in tax abatements and in tax deferrals.

We concluded that it would be practical to develop a handbook in these five areas of concern for the elderlv. and we are now in the process of its completion. This handbook will be distributed very shortly through the Home Care Corp. and area agencies on aging, which will assist in developing local resources.

A survey was made of the Commonwealth of Massachusetts through which we determined that the cape and islands area offered the best possibility of success on an initial local resources project. Working with Dr. Jim Peace and with Margaret McAdams, we initiated the activity in the Hyannis office of the Home Care Corp. The pattern

which will be developed in the Home Care Corp. on the cape and islands will be used to develop a similar program in the other seven public health regions where Home Care Corp and area agencies on aging will provide legal aid to the elderly.

In certain areas, we have found that more assistance is needed than in others for instance, in the area of conservatorships and involuntary transfers, and in the use of paralegals. We believe that vast new areas of assistance can be opened up to aid the elderly by pursuing these objectives and we intend to so do.

I think, further, that this testimony fairly well sums up my comments for this morning.

IMPACT OF TRANSFERS ON PATIENTS

Senator KENNEDY. Very good. Mr. Donovan, what about the transfers; could you tell us a little bit about that?

Mr. DONOVAN. Senator, I would be glad to elaborate on that point. We have found that elderly people are admitted to some nursing homes, and I stress some nursing homes, because this is not characteristic of the entire nursing home industry, and are kept only as long as they or their relatives can pay the cost of private care. They are admitted when they have a sum of let us say $12,000 or $15,000 in personal property, $10,000, $12,000, or $13,000 more than the maximum allowed under the criteria for public assistance. They are often asked to sign a contract under the terms of which it is stated that they will not be kept in the nursing home as publicly assisted patients. These patients pay an average amount of let us say $1,000 a month. Let us assume that for the purpose of this comparison that they had $12,000 in personal funds upon admission. About the end of the 10th month, when their funds have been spent and they have only $2,000 remaining, and where they now meet the criteria for public assistance, they are told that they must transfer out of the nursing home. They are told that the facility cannot keep them. Now, this harsh action causes unbelievable worry, trauma, and concern and a feeling of rejection. It is discrimination of the worst type in my view. It also creates two classes of citizens. The first-class citizens who can pay for their private keep in a nursing home and second-class citizens who are turned out when they become the beneficiaries of public assistance.

These elderly people, who are now nursing home residents, have, during their long and useful lives, paid their taxes, social security, raised their families, and have been upright, productive members of the community. But, they are not permitted to remain in the familiar surroundings of the nursing home where they have paid their way. Because they are no longer private paying residents, they are told that they must transfer out of the facility.

I believe, sir, that such contracts should be eliminated. I believe that this practice should be eliminated without a contract. There should be no discrimination when one passes from private pay to public assistance, and I believe that at both the State level and at the Federal level steps should be taken so that this very unhealthy practice can be eliminated. [Applause.]

79-662-77- -5