LSC has posted for requested comment a proposed Program Letter on “Financial Eligibility Screening Guidelines.” The whole draft is here. Comments are due April 25.
Here is the body of the proposed Program Letter (footnotes omitted):
In furtherance of the Legal Services Corporation’s (“LSC”) responsibility to enforce applicable restrictions on the use of LSC funds and to ensure that those funds are used only to provide legal services to permitted beneficiaries of LSC- funded services, LSC issues this Program Letter to provide guidance on client- eligibility screening requirements.
All methods of eligibility screening, whether conducted in person, by mail, by telephone, or online, are subject to LSC regulations, including the requirements outlined in 45 C.F.R. Parts 1611 and 1626, and the CSR Handbook (2008 Ed., as amended 2011). Under Part 1611, LSC grant recipients “may provide legal assistance supported with LSC funds only to individuals whom the recipient has determined to be financially eligible for such assistance.” In order to determine that the applicant is financially eligible, LSC grant recipients are required to, among other things, “make reasonable inquiry regarding sources of income, income prospects, and assets,” regardless of the method of eligibility screening. This requires asking sufficient questions of the applicant to determine the total amount of household income and the value of non-excluded household assets.
Over the last several years, LSC has seen a marked increase in the number of LSC grant recipients implementing online systems as part of their client-eligibility screening to improve efficiency in their intake processes. LSC has experienced a corresponding increase in compliance-related inquiries pertaining to these systems.
The guidance below is intended to assist LSC recipients in complying with eligibility screening requirements for all methods of intake, including online intake systems. It reflects LSC’s obligation to ensure compliance with statutory and regulatory requirements governing the use of LSC funds, our recognition of the importance of efficiency in program operations, and our familiarity with current practices in the field. This guidance also reflects the current and long-standing practices of LSC recipients in conducting LSC-compliant intake systems. Most importantly, the standards set forth below are founded on LSC’s experience in testing the effectiveness, efficiency, and compliance of many intake systems.
In order to ensure consistent application of LSC regulations and policies to all forms of client-eligibility screening, LSC provides the following interpretive guidance as to what LSC requires for a “reasonable inquiry” of applicants for LSC-funded services under 45 C.F.R. Part 1611:
1. A grant recipient should not make a determination that an applicant is financially eligible for the provision of legal assistance until a recipient staff person, or another person under the direction of the recipient, has reviewed the application for eligibility screening purposes.
2. If the intake was not conducted in a manner that allowed for a direct inquiry of the applicant regarding his or her eligibility, a grant recipient should not make a determination that an applicant is financially eligible for the provision of legal assistance until a recipient staff person, or another person under the direction of the recipient, has conducted sufficient direct follow-up with the applicant to confirm that the applicant understood those questions determinative of eligibility and that the applicant’s responses to those questions are accurate and complete. Direct inquiry and follow-up may include communication in person or by telephone, text, e-mail, chat, or other interactive methods.
The level of review and interaction necessary will vary for each applicant. It should be based on an experienced intake worker’s assessment of the individual applicant’s understanding of the intake questions, to ensure that the applicant has provided accurate and complete information necessary for making the eligibility determination.
LSC encourages recipients to explore the use of new technologies that allow for accurate and efficient eligibility screening. LSC will continue to evaluate recipients’ experiences with eligibility screening and will provide additional guidance or amended requirements as needed. LSC recommends that recipients contact the LSC staff listed below if they have any questions relating to these requirements.
LSC Staff Contact List
General Screening and Intake Questions
Cheryl Nolan Program Counsel III Email: email@example.com Phone: 202-295-1561
Eligibility Policy and Related Compliance Questions
M. Megan Smith Program Counsel II Email: firstname.lastname@example.org Phone: 202-295-1506
Technology and Technology Initiative Grants (“TIG”) Questions
Glenn Rawdon Program Counsel III Email: email@example.com Phone: 202-295-1552
What to make of this?
It is great to see LSC taking this on. Bottom line as I read it: 1. application must be reviewed by a human prior to acceptance; 2. there must be direct contact between human and applicant, but that can be after initial application and “in person or by telephone, text, e-mail, chat, or other interactive methods.”
This appears to rule out, at least for now, application by online forms without both human review and human interaction, although that could be electronic. It also appears to prohibit forms of authentication/verification of reliability that are automated rather than based on human questioning. For example, as statement, even in an online form process, that a number is taken from a federal or state tax or benefit form would seem to me to be sufficiently reliable, but would not fall under this Program Letter. This may make integrated triage more difficult.
It will be interesting to see what comments come in to LSC.
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I think it woul be great to revise some of the definitions of common use words that are key to the intake process as defined by LSC. Words such as “household” and “income” in LSC application terms don’t mean what the every day person thinks it means in a context outside of an intake interview–regardless the modality (phone, in person, or online). Moving some of these terms to plain language definitions and using better understood concepts would go a long way to reducing the level of resources that are expended on case acceptance review. Right now the way the rules define these frequently used terms in every day life are nuanced and really terms of art. I know that the defitions come from the Regs–and that simplifying the meaning of “household” or “income” may require a change of the Regs (administrative process of doing that is time consuming and time intensive), but I do believe if when someone on an online intake or on the phone is asked, “what is your income” that definition depends on the regulatory definition of who the program includes in a household unit or not, and what income is included or not, then the need for verification will remain, keeping the intake process high touch and resource intensive.
For example 45 CFR 1611.2 (i) defines income like this:
“Income” means actual current annual total cash receipts before taxes of all persons who are resident members and contribute to the support of an applicant’s household, as that term is defined by the recipient.Because LSC has to ensure programs are abidding by the statute and regs–the only way to eventually move to less resources being expended in the intake process so that more can be done on the litigation front, could start by simplification of some of these concepts.
Now, if you ask an applicant, “what is your income”–they don’t think of that as something that requires you to report the earnings of other household members, nor do they think to include their business expenses minus their costs. Income is in this culture is understood as an individual concept, “how much do I earn”–and I do not know how many people think when they apply to an LSC program when they hear the question on income need to spend 5-10 minutes sometimes longer to being able to provide what the intake worker needs for that part of the application, sometimes longer, as financial literacy can be an additional barrier to that conversation.
“Assets” as defined by LSC are, 45 CRF 1611.2 (d)
Assets” means cash or other resources of the applicant or members of the applicant’s household that are readily convertible to cash, which are currently and actually available to the applicant.
How many people think of assests as “readily available”? Cash is readily available if on hand, but with debit cards, is cash in the bank as readily available as cash–what if there is no power in the area for 3 days, 5 days due to a natural emergency? In this economy, is a second house readily available if it is underwater and if sold the applicant would have to bring cash to the table and can’t be rented because it may go into foreclosure? And this does not make it obvious at all that for a DV victim–assets under the control of an abuser, should not be included in the answer “what are your assets”.
The issue is not with the modality of intake but rather with the nuanced use of lay words such as income, household, in that regulation. There are other rules that add additional complexity–over and over do I see programs not really understanding 45 CRF 1626 and misapplying it, denying the opportunity of application to many who may qualify.
I wish I could offer some alternative words, or plain language definitions for 1611 and 1626–but that is work that would be best achieved with a group a diverse group. Other Federal agencies (DHHS, HUD, Agriculture, SSA, etc) also ask for similar information–and since they often work with similar income groups and client communities, at least a comparative review may yield some ideas on how to simply define the concepts. In this case I do believe “two heads are better than one”.