Skadden Fellow, Staff Attorney

Legal Aid’s own Skadden Fellow, David Steib, is a featured contributor on PSLawNet’ s July 16, 2010 blog.  He provides insight into the fellowship application process and how to approach project-based fellowship applications.  Great information for the prospective fellow!   Please check the blog HERE. 

Executive Director

A very disappointing “exposé” from the Center for Public Integrity (CPI) has been circulating over email lists. See: Poor Help: Federal Legal Aid Vulnerable to Fraud, Questions of Conflicts and Intimidation. The report is disappointing because it describes an instance of fraud in which a Maryland Legal Aid Bureau employee stole millions from the program — taking money desperately needed to serve poor clients. The conduct of this employee is inexcusable and especially shameful because the money could have been used to stop evictions, protect women from domestic violence or represent children in dependency proceedings.

The report was also disappointing because it paints a false picture of the network of legal aid programs and the incredible work that they do. In an effort to sensationalize the theft in Maryland, CPI linked the story to a report prepared by the Government Accountability Office (GAO) to Senator Grassley (a leading opponent of legal services) that contained recommendations to strengthen monitoring of grants made by the Legal Services Corporation.

The CPI reporting on this issue is incomplete and misleading.

First, while the Legal Services Corporation (LSC) is the largest funder of civil legal assistance in the United States, the majority of programs do not get LSC money. The Legal Aid Society of the District of Columbia is not an LSC grantee. Most legal aid is provided by independent non-profits that raise their money from private foundations and the local bar. We care about what happens to LSC and its grantees, however. Our funding is inadequate to serve all clients who need our help and our colleagues who do get LSC money are an important part of the service network.

Second, the CPI story leaves the impression that there is rampant fraud throughout the legal aid community that goes unchecked by the Legal Services Corporation. CPI cites three examples of fraud among the thousands of programs that provide civil legal assistance. These instances are terrible, but they are rare and do not characterize the legal services movement. A quick Google search of “law firm embezzlement” reveals hundreds of recent stories of thefts from corporate firms, but no one would suggest that these criminal acts taint all corporate law firms.

Legal aid programs are mission driven organizations. Staff make great sacrifices do this work because they are deeply committed to justice and to working to end poverty. The starting salary for a Legal Aid lawyer in DC is $42,000, one fourth what a starting lawyer could make at a law firm (and our lawyers are as good as any lawyer in a corporate firm.) Our offices are humble, support is limited and there are very few perks beyond the love of the work. What Legal Aid lawyers do is hard and emotional, but the impact is enormous.

The reporting goes on to insinuate that there was something unseemly about having LSC staff attend the ABA Equal Justice Conference, which attracts hundreds of legal services and pro bono lawyers, because the ABA chose to have the conference at an Arizona resort. The conference center was chosen by the ABA because it was affordable, despite its description as a “resort.” It was not the posh junket suggested by the article.

Third, the report fails to even acknowledge the legacy of assault by business groups and right wing legislators on LSC. The program has been a cause célèbre in conservative circles for years with periodic efforts to cripple or eliminate the program. Cuts, restrictions and endless audits and investigations are designed to demoralize and keep legal services lawyers from doing their jobs. One has to wonder if the spate of bad press, Office of the Inspector General (OIG) investigations and other reports is not tied to a concerted effort to defeat the reauthorization of LSC pending in Congress.

The embezzlement in Maryland damaged the cause of equal justice, but the way in which it was reported is far more harmful. The reporting fails to acknowledge that this fraud is an outlier and that some of the attacks on LSC are politically motivated. Stories like these continue to put legal services programs and their dedicated staff on the defensive.

If the reporters wanted to understand the real shame of the theft, rather than talk to the Senator Grassley or read OIG reports, they should have talked to the clients of legal services lawyers and tried to understand the importance of equal justice lawyering. While the attacks on legal services get all the ink, almost no one is writing about the family whose home was saved from foreclosure, the woman who got a civil protection order, the child who was adopted, the senior who had a Medicare problem fixed or the parent who was reunited with a child by a legal aid lawyer. Those are the real stories of legal aid.

The District of Columbia Council and Income Maintenance Administration (IMA) should be commended for recent changes to the “Supplemental Nutrition Assistance Program” (SNAP), more commonly known as the “food stamp program.”  SNAP provides over 80,000 District residents with badly needed subsidies to buy food.  Without recent reforms, many low-income District residents would have been wrongfully denied benefits, or mired in debt collection or litigation, through no fault of their own. 

Until recently, the rules used to determine whether a household was financially eligible to receive Food Stamps were complex.  Federal law required state employees to calculate a household’s expenditures on certain goods and services, such as housing and utilities, and the value of certain household assets, such as personal savings, that could be used to purchase food.  Unsurprisingly, the states made a significant number of mistakes, resulting both in eligible households being denied benefits to which they were entitled, and in ineligible households receiving benefits to which they were not entitled.

The federal government realized it was inefficient to calculate households’ assets to the last penny, and simplified SNAP by allowing states to eliminate the asset requirement for certain Food Stamps households that are deemed “categorically eligible” for benefits.  Through the use of categorical eligibility, states can also increase the gross income level beneath which households will be eligible for Food Stamps to 200 percent of the federal poverty guidelines, a change that reflects much more realistic assumptions about the cost of nutritious food.  

Last fall, the District enacted the Food Stamps Expansion Act, co-sponsored by Councilmembers Michael Brown and Tommy Wells.  Through the Food Stamps Expansion Act, the District used the flexibility of categorical eligibility to eliminate the asset test and increase the gross income eligibility level to 200 percent of the federal poverty level.  Additionally, as of May 2010, the District has also simplified the Food Stamps program and increased benefits for many Food Stamps recipients by allowing individuals to get a higher deduction for utility expenses.  The Council and the Administration should be commended for taking these badly needed steps to expand Food Stamps eligibility in a time of economic crisis.  Legal Aid is concerned, though, about the timing of the implementation of these expansions and would call upon the District to ensure that all who were eligible for these benefits at the time of enactment receive them.     

In addition to expanding access to benefits, IMA also recently addressed a different problem: what to do when it mistakenly awards households more Food Stamps than they are entitled to receive.  Although it might seem obvious that IMA should recover money it mistakenly overpays, the problem is actually more complex.  Households that are overpaid receive benefits in the form of Food Stamps; but IMA frequently demands repayment in cash, even if the household was not at fault for the overpayment.  Cash is more valuable than Food Stamps (which can only be spent on food), but IMA does not discount the amount it seeks to recover in cash.  As a result, a household that mistakenly receives an overpayment of Food Stamps could end up losing money, or become saddled with a debt it cannot repay, worse off than had it never applied for Food Stamps at all. 

It is also inefficient for IMA to pursue every overpayment.  Many overpayments are for small dollar amounts; but the cost of pursuing an overpayment is essentially the same regardless of the dollar amount at stake.  As a result, it will frequently cost IMA far more than it is worth to recover small overpayments.  And, of course, many households that receive an overpayment have already spent the benefits by the time IMA catches its mistake, and cannot afford to pay back the debt. 

To fix these problems, federal law allows participating states to “compromise” (that is, to reduce or eliminate) Food Stamps overpayment claims if the state reasonably believes that a household will be unable to repay the benefits it received within three years.  Until recently, IMA denied it had such authority.  Instead, IMA argued that it was required to pursue every overpayment, no matter the circumstances or the dollar amount at stake.  This position was both inefficient and unfair to households that received overpayments of Food Stamps through no fault of their own.  It was also contrary to federal law. 

Thanks in large part to legal and policy advocacy by the Legal Aid Society and other public interest organizations, IMA has now reversed its position and adopted guidelines that will require it to consider households’ requests to compromise overpayment claims.  This change will benefit Food Stamp recipients, the District, and taxpayers alike.  IMA should exercise its compromise authority to promote fairness and good government, and focus its collection efforts on the largest overpayments and overpayments that are the result of fraud.  Households that receive Food Stamps in good faith should not be penalized because of the government’s errors. 

Peter Wilson, former Legal Aid Equal Justice Works Fellow
Jennifer Mezey, Supervising Attorney for Public Benefits

Yesterday, the Senate failed to overcome a Republican filibuster of the jobs bill. The bill would have extended unemployment benefits to more than a million of people who are out of work and would have also provided relief to state and local governments.

State and local government employment has been battered by the recession. Thousands of teacher, firefighter, police and other jobs have been eliminated as a consequence of the rapid decline in tax revenues. The Center for Budget and Policies Priorities calculates that 231,000 government positions have been eliminated since 2008. In an effort to offer assistance to the states to staunch the job loss, the jobs bill would have extended the enhanced Medicaid match that was contained in the original stimulus bill. Over the next year, these benefits would provide $15 billion in assistance.

The District just completed its budget for fiscal year 2011. As part of its revenue projections, the District assumed that the enhanced Medicaid match would be renewed. (About two-thirds of the states have also assumed that Congress would renew the program). The loss of these funds will open up a $54 million hole in the District’s budget. Unfortunately, when the District has been forced to fill gaps like these in the past, social services have been the first to be cut.

This is a double hit for people living in poverty in the District. Unemployment is extraordinarily high in low-income neighborhoods, long term unemployment is especially acute, federal benefits have been cut and the District will have fewer resources to provide a safety net. One can only imagine if those who opposed this legislation have Thomas Hobbes’ state of nature in mind for those at the bottom of our economic scale: "solitary, poor, nasty, brutish, and short."

In March 2010, President Obama signed into law federal health care legislation that will change dramatically the way health care services are delivered in this country.  The Patient Protection and Affordable Care Act (PPACA) will provide the District of Columbia and all states with the opportunity to make health care accessible and affordable for all of their residents.

On Monday, the Legal Aid Society of DC, a member of the District of Columbia Coalition on Health Care Reform, a coalition of organizations who represent consumers and providers participating in public and private health insurance programs in the District of Columbia, sent the attached letter to the Mayor, City Council and executive officials.  The letter presented our combined views regarding the opportunities presented with health care reform and the implementation of the new federal health care reform law. 

The District should be commended for making access to health care a major priority long before federal health care reform was enacted.  Instead of cutting back on Medicaid, as other states are doing, the District is expanding Medicaid income eligibility four years before it is required to do so, proposing higher income eligibility limits than are required under the PPACA and providing full Medicaid benefits to those who are newly eligible.  These efforts are laudable and have positioned the District as a national leader in ensuring that District residents have access to affordable health care.  This leadership is even more commendable given the tough budget pressures the District is facing. 

As the Mayor and Council have acknowledged, in implementing the PPACA, coordination, collaboration, and partnership across government agencies, and between agencies and the provider and consumer communities will be critical.  Health care reform need not increase the complexity of the health care system – though it could without careful planning.  Rather, it provides an unprecedented opportunity for development of a unified system encompassing all of the public payor options, i.e. Medicaid, safety net programs, expansions, and the soon to be created Health Exchange. 

The undersigned organizations urge the District to create a health care system that ensures that: (1) consumers can easily access benefits through a single point of entry system, and (2) providers can deliver high quality care assured of prompt and reasonable payments. 

To that end, we propose that the following principles guide the District as it moves forward in its implementation of the PPACA:

•  Principle 1:The District should have a coordinated policy development and implementation plan allowing for all affected District agencies and critical stakeholders to provide input.
   
•  Principle 2:The District should ensure that no one loses coverage as a result of health care reform implementation and that all individuals can access quality, affordable health care safely. 
   
•  Principle 3:The District should streamline its eligibility rules and processes for public insurance and the Exchange. 
   
• Principle 4:Any money saved through the implementation of the PPACA should be reinvested into the health care system.

We discuss each of these principles in greater detail in the attachment to this letter and offer initial recommendations designed to work toward that achievement.

For decades, there has been concern about the way that the United States measures poverty.   The current measure was developed in the 1960’s.   At the time, a family was considered poor if they had income below a line that was roughly equal to 50% of the median income.   Because of the way that the measure was calculated, as income and costs increased, the poverty line did not keep pace.   Under the current measure, a family must have a significantly lower income today as compared to the general population than when the measure was devised.

A family of four lives under the poverty line if they have income of less than $22,050.    There are many District families with incomes well above the poverty line who struggle to make ends meet.   The National Low Income Housing Coalition found that the average two bedroom apartment in the District costs nearly $20,000 per year.   Following the generally accepted affordability definition that housing should make up 30% of income, a District family would need to earn $60,000 per year, nearly three times the federal poverty measure.  

In 1995, the National Academy of Sciences developed an alternative poverty measure that more closely matches the actual costs that a family needs to meet in order to live.    The Census Bureau has collected data on the new measure and for several years has published it as a supplement to the official poverty data.   The Census is now seeking comments on the measure and how it should be applied. 

 Comments on the poverty measure are due Friday June 25, 2010.   See the public notice HERE. 

One of the best ways to lift low-income District residents out of poverty is to provide them with a job that pays a living wage.   In an effort to provide good jobs to District residents, the Council enacted and the Mayor signed the First Source Act and the Living Wage Act.   The laws require that 51% of the employees hired for a City funded development projects be District residents and that the jobs pay a living wage.

The District Auditor released an evaluation of the compliance with these laws in connection with certain projects within the jurisdiction of the Deputy Mayor for Planning and Economic Development (specifically those that were started by the former Anacostia Waterfront Development Corporation and the National Capital Development Corporation.)   The auditor found that the District’s implementation was woefully inadequate. 

Among the findings of the Auditor are:

1.        The Department of Employment Services had inadequate procedures to monitor compliance with the statutes.

2.       The failure to monitor resulted in wide spread no- compliance.   Only 4 of 16 covered projects met the 51% goal.   As a result, there were 361 jobs that should have gone to District residents that were given to persons living outside the District.

3.       District residents lost more than $14 million in wages that were paid for by public funds.

4.       The living wage provisions have not been adequately implemented.   The Auditor specifically blamed the Mayor and the Attorney General for failing to support efforts by DOES to comply with the obligations of the law.

The results of the audit are very disturbing.   At a time when the unemployment rate in the District is near 11% and in some wards near 30%, nothing could be more important than job creation.   Given the structural imbalance created by the District’s “unique” relationship with the federal government and its suburban neighbors, it is particularly unfortunate to provide government funds for jobs for people living outside the District.

If the District government is serious about helping reduce poverty in the District, fixing First Source and Living Wage compliance monitoring is a great first and easy step.

I have the honor of attending the District of Columbia Circuit Judicial Conference this week.  (Thank you, Judge Kessler).  Among the presentations this morning was a panel on the Future of Legal Education.  Deans Erwin Chemerinsky from Irvine School of Law, Veryl Miles from Catholic Columbus School of Law and David Van Zandt from North Western presented.

Legal Aid is thrilled that two of Legal Aid’s key pro bono partners – the law firm of Thompson, Loss & Judge LLP (TLJ) and Zuckerman Spaeder LLP (Zuckerman) – will be honored at the 2010 D.C. Bar Annual Business Meeting and Awards Dinner, on, Thursday, June 24, 2010 as the Pro Bono Law Firms of the Year, for small and large firms respectively. 

        Thompson, Loss & Judge

TLJ is truly deserving of the law firm of the year award for small firms.  Since 2006, TLJ has partnered with Legal Aid to provide pro bono representation to some of our community’s most vulnerable individuals their effort to secure essential government benefits.  The firm has assisted numerous clients referred from Legal Aid, guiding them through the Social Security Administration bureaucracy and helping those who have disabling conditions secure the benefits they need and deserve.  In several cases, TLJ’s clients were entitled to thousands of dollars of back benefits after years of pursuing their claims on their own. 

The 12-attorney firm has provided more than 1,000 hours of pro bono attorney service since beginning its partnership with Legal Aid.  Nearly 500 of these hours were in the past year alone.   TLJ’s sustained commitment over several years to its pro bono partnership with Legal Aid rivals that of law firms 20 or more times the size.

 “Partnering with Legal Aid has been great for our firm,” said TLJ partner Tom Judge.  “Legal Aid helped us develop a pro bono program that best suits a firm of our size.  Through close coordination with Legal Aid, we have helped some of D.C.’s poorest disabled citizens obtain essential government benefits and have found that most rewarding.” 

            Zuckerman Spaeder LLP

Like TLJ, Zuckerman has a particularly close relationship with Legal Aid.  In the past year, for Legal Aid alone, Zuckerman has provided ethics advice and representation, as well as trial level representation to clients living in poverty.  Even if this is all Zuckerman had done, it would have been an impressive contribution.  However, Zuckerman is particularly deserving of the award given the firm’s extraordinary – and literally unparalleled – commitment to Legal Aid’s Appellate Advocacy Project, which focuses on litigating cases of importance to persons living in poverty before D.C.’s highest court.

Legal Aid’s Appellate Advocacy Project would not be what it is today without the tireless efforts (and hundreds of pro bono hours) of Zuckerman Spaeder, particularly Zuckerman Counsel David Reiser.  Zuckerman’s efforts in this regard have had a substantial impact on access to justice. 

As James Klein, Chief of the Appellate Division of the Public Defender’s Service has put it, the Appellate Advocacy Project “has not merely satisfied a previously unmet need by providing top quality appellate advocacy on behalf of indigent civil litigants, but may fairly be described as having changed the culture of the District of Columbia Court of Appeals by ensuring that the appeals presented by the Legal Aid Society are eagerly anticipated by the judges of that court who appreciate those cases as an opportunity to grapple with vital issues that far too long suffered in the absence of first-rate advocacy.” 

Legal Aid’s Pro Bono Referral Program helps numerous low income individuals every year, in a multitude of ways.  The program refers cases to attorneys working in private law firms and government agencies who are willing to represent clients on a pro bono basis.  The matters initially are screened by Legal Aid staff and an experienced Legal Aid attorney is assigned as a mentor for each matter referred.  Legal Aid mentors are available to answer questions, provide sample pleadings, discuss relevant case law and strategy, and offer ongoing guidance as the case moves forward.  

TLJ and Zuckerman have been key partners in Legal Aid’s pro bono effort.  We could not be more pleased with their recognition by the D.C. Bar.