State_Planning_Special_Report.txt

Legal Services Corporation

A Special Report to Congress



STATE PLANNING & RECONFIGURATION
September 2001
BOARD OF DIRECTORS


MANAGEMENT AND ADMINISTRATION
OFFICE OF INSPECTOR GENERAL
Douglas S. Eakeley, Chair LaVeeda Morgan Battle, Vice Chair
Hulett H. Askew John T. Broderick, Jr. John N. Erlenborn Edna
Fairbanks-Williams
F. Wm. McCalpinMaria Luisa Mercado Nancy H. Rogers Thomas F.
Smegal, Jr. Ernestine P. Watlington
John N. Erlenborn, President Victor M. Fortuno, Vice President
for Legal Affairs, General Counsel, and Corporate Secretary
Mauricio Vivero, Vice President for Governmental Relations
and Public Affairs Randi Youells, Vice President for Programs
David L. Richardson, Acting Vice President for Administration
Danilo A. Cardona, Director of Compliance and Enforcement Alice
Dickerson, Director of Human Resources Michael A. Genz, Director of
Program Performance John C. Meyer, Acting Director of Information
Management Leslie Q. Russell, Director of Information
Technology
Leonard J. Koczur, Acting Inspector General David C. Maddox,
Director of Financial and Information Resource Management Laurie
Tarantowicz, Assistant Inspector General for Legal Review



I.
INTRODUCTION
Legal Services Corporation (LSC) is a private, non-membership,
nonprofit corporation in the District of Columbia. Eleven voting
members, appointed by the President of the United States with the
advice and consent of the Senate, compose the LSC Board of
Directors. By law, the Board is bipartisan: no more than six
members can be of the same political party.1
LSC was created by Congress in 1974 and continues to play a
central role in providing low-income Americans with access to legal
assistance and information concerning critical civil legal
problems. LSC is
guided by its congressionally mandated mission, spelled
out in the LSC Act of 1974, "to provide equal access to
the system of justice in our Nation for individuals who
seek redress of grievances" and "to provide high quality
legal assistance to those who would otherwise be unable
to afford adequate legal counsel."2
LSC funds local legal services programs to serve
diverse clientele in every state, county, and congressional
district in the United States, as well as in Puerto Rico,
the Virgin Islands, Guam, and Micronesia. As one of the primary
funders of civil equal justice in every state, LSC has a duty to
stimulate the most effective means of delivering legal services to
low-in-come individuals. LSC is committed to meaningful
partnerships with our grantees and the broader civil equal justice
community. LSC is also obligated to ensure that the federal
investment promotes efficient and effective client service and
complements the efforts of other providers of civil legal
services.
In 1996, Congress passed a major overhaul of LSC's grant-making
and regulatory structure that included three major reforms
impacting the legal services community.3 First, Congress adopted a
number of new accountability requirements governing what services
LSC-funded programs may provide, what they may do with non-LSC
funds, and whom they may represent. These new guidelines have
refocused the LSC delivery system on serving individual clients
with particular legal needs. Attorneys working for LSC-funded
programs may no longer, for example, initiate or participate in
class action lawsuits, collect courtawarded attorneys' fees,
represent prisoners or certain categories of aliens, or take cases
involving political redistricting, abortion, or drug-related public
housing evictions.4 Another major reform of 1996 instituted a
competitive bidding process for LSC service contracts, requiring
programs to demonstrate results and progress as a condition of
continued federal funding.5 Finally, in 1996 Congress approved a
one-third reduction in LSC's annual appropriation, from $400
million to $278 million.6
In July 1995, in anticipation of the funding cutbacks, LSC
initiated the broad outlines of its "state planning process" to
highlight strategies by which programs could stretch scarce federal
dollars to help ensure that all low-income clients have an equal
opportunity to receive the most accessible, effective legal
assistance possible. After three years of development in the field,
LSC's State Planning Initiative was formally launched in 1998. In
the ensuing
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II. LSC CONVENES RECONFIGURATION TASK FORCE
This document, the LSC Special Report to Congress - State
Planning and Reconfiguration, was prepared in response to a request
made by the U.S. House of Representatives during the FY2002
Appropriations process, in which the House Appropriations
Subcommittee on Commerce, Justice, State, and the Judiciary
stated:
The Committee supports LSC's efforts to streamline its service
area configurations through the State planning process. However,
the Committee has been made aware of concerns that LSC has
attempted to impose its own reconfiguration plans on certain States
without clearly articulating standards for such decisions. In
several instances the Corporation rejected reconfiguration plans
developed and approved by all relevant stakeholders within a State,
and provided no opportunity for the State to appeal that decision.
The Committee expects LSC to review the State planning process and
the concerns raised, and report back to the Committee by no later
than September 4, 200110, with a proposal that articulates the
reconfiguration standards and process for States to appeal LSC's
decisions. The Committee intends that LSC consult with appropriate
stakeholders in developing this proposal.11
Since implementation of the State Planning Initiative in 1998,
LSC has sought to apply a set of detailed criteria in making all
decisions on whether a given service area arrangement is optimally
configured to provide high-quality legal services to the greatest
number of eligible low-income clients. These criteria were created
to complement the goals of State Planning and to guide staff in
evaluating the efficacy of service area plans submitted by
recognized stakeholders in each state. These guidelines were
conveyed to LSC-funded programs through the release of a series of
Program Letters and other field correspondences.12 Furthermore, as
of July 19, 2001, all recognized stakeholders have a right to a de
novo review of service area decisions by both the LSC Vice
President for Programs and the LSC President when LSC decisions run
contrary to stakeholders' proposed configuration schemes.13
In response to inquiries from the legal services community and
Members of Congress, the LSC Board of Directors on June 30, 2001,
established the LSC Task Force to Study and Report on Configuration
of Service Areas. The Task Force was charged with reviewing
"existing policies, standards, and procedures governing state
planning and for defining service areas; and any revisions to
existing policies, standards, and procedures which the Task Force
concludes to warrant serious consideration by LSC."14
Co-chaired by two LSC Board members, New Hampshire Supreme Court
Justice John T. Broderick and Ernestine Watlington, the Task Force
convened the first of several meetings on August 21, 2001, in
Washington, D.C. Representing the Task Force were Hulett H. Askew
and Maria Luisa Mercado of the LSC Board; James Head of the
National Legal Aid & Defender Association; Melville
D. Miller, Jr., of Legal Services of New Jersey; Jonathan Ross
ofthe American Bar Association's Standing Committee on Legal Aid
and Indigent Defendants; Faith Rivers of the South Carolina Bar
Association; and Jeanne Charn, director of Clinical Legal Education
at Harvard Law School.
Justice Broderick delivered an interim report from the Task
Force to the LSC Board of Directors at the Board's meeting on
September 8, 2001, in Alexandria, Va. Broderick reported that the
Task Force has made considerable progress in examining concerns
pertinent to service area configuration and the right of designated
stakeholders to appeal decisions with which they disagree. He
stated that broad consensus exists on a majority of issues before
the Task Force and that remaining areas of disagreement are
expected to be resolved in short order. One specific area of
consensus among Task Force members was that all LSC reconfiguration
criteria should be codified into one document. The current LSC
reconfiguration standards, which are under review by the Task
Force, are compiled and discussed in Section IV of this Special
Report to Congress.
A final report from the Task Force is expected to be presented
to the LSC Board of Directors for consideration in October 2001.
The LSC Board will give due consideration to any and all
recommendations embodied in the Task Force's final report. In the
interim, the Board believes it crucial to relay to Congress LSC's
current standards governing state planning, service area
configuration, and review processes.
In this report, the LSC Board of Directors is pleased to provide
information addressing Congress's three principal concerns:

1 . A Review of the State Planning Process;


2.
A Report on LSC's Reconfiguration Standards;
and


3.
The Process to Appeal LSC's Reconfiguration
Decisions.


III. AN OVERVIEW OF THE STATE PLANNING PROCESS

LSC's State Planning Initiative
embraces a new vision15 for legal services in which eligible
clients in every state would be afforded an equal opportunity to
avail themselves of high-quality civil legal assistance. In an
effort to foster more consistent levels of state
wide service and to eliminate "service gaps" that leave cli
ents in geographically remote areas under-represented com
pared to their urban counterparts, LSC has asked its grant
ees to undergo a fundamental paradigm shift in their pro
gram visions. Program leaders have been instructed to aban
don the parochial thinking of "What's best for clients in my
service area?" and asked instead to consider "What's best
for clients throughout my state?"
LSC initially stressed the importance of state plan
ning in 1995 when it asked its recipients in each state to
participate in the development of plans for the design, con
figuration, and operation of LSC-funded programs in their
states. The 1995 Program Letters16 containing this directive
also enumerated the issues and criteria that state planning
should address.

Launching the State Planning Initiative, LSC
staff developed and issued Program Letters 1998-117 and 199818
which directed programs to plan for the creation of comprehensive,
integrated, client-centered legal services systems and defined the
terms of such systems. Grantees were required to submit reports
outlining their state plans by October 1, 1998. Their plans were to
include responses to the seven central tenets of State Planning:
(1) development of intake, advice, and referral services; (2)
effective usage of technology; (3) increased access to legal
self-help and prevention information; (4) coordination of legal
work, training, information, and ex

pert assistance; (5) engagement of pro bono attorneys; (6)
development of additional state, local, and private resources; and
(7) optimal configuration of service areas.
In designing state plans, LSC instructed its programs to
collaborate with a range of local, state, and national
stakeholders, including state and local bar associations, Interest
On Lawyers Trust Account (IOLTA) administrators, state judiciaries,
client groups, pro bono commissions, state legislatures,
non-LSC-funded legal services programs, and a host of others. LSC
requires its grantees in each state to work with each other and
equal justice stakeholders to develop justice communities that best
respond to clients' most compelling needs, ensure the most
strategic and cost-effective use of all available resources, and
maximize the opportunity for clients statewide to receive timely,
effective, and appropriate legal services.
Guided by the belief that access to quality legal services is
critical to a fair adversarial justice system and committed to
making significant improvements in their delivery, the LSC Board of
Directors approved and enacted Strategic Directions 2000-2005 in
January 2000. Its twin objectives are to dramatically increase the
number of low-income Americans who can access the civil justice
system and to ensure that all clients receive quality legal
services.

IV. REPORT ON LSC'S RECONFIGURATION STANDARDS
Congress has vested in Legal Services Corporation the
responsibility of specifying the service areas for which it will
offer grants for the provision of legal services. LSC awards one
service contract per delineated service area. Some states, like
California and New Jersey, comprise multiple service areas and,
therefore, feature multiple LSC-funded grantees. Others, like
Indiana and Colorado, have one service area encompassing the entire
state and one corresponding statewide program.
Each state is different, and in some states, intra-state regions
differ significantly as well. As LSC has stated in numerous letters
to the field, there is no "magic number" of legal services programs
for a given state or a single delivery model that fits every state.
Each state plan must be viewed based on the totality of the
circumstances, with the bottom-line consideration turning on LSC's
studied determination as to whether a given service area
configuration inures to the benefit of the greatest number of
clients in the most cost-effective way.
As a general rule, service area configuration decisions are
evaluated against one overarching principle: Program configuration
should occur in a manner that maximizes the effective and efficient
delivery of high quality legal services to eligible clients
throughout the state within a comprehensive, integrated delivery
system. In some states, it may be possible to develop and implement
statewide initiatives to improve service delivery, increase
resources, and enhance the capacity of the system to meet the civil
legal needs of all low-income people without altering service areas
or historical relationships. In other states, the very development
and implementation of such initiatives may require overhauling or
establishing new organizational relationships and service
areas.
In the vast majority of cases, LSC has agreed with the
recommendations of state planning groups throughout the country and
has configured service areas accordingly. However, LSC, in the
proper exercise of its statutory authority, may sometimes reject a
state plan as insufficiently responsive to the tenets of State
Planning and substitute a reconfiguration plan adjudged to better
maximize effective and efficient delivery of high quality legal
services.

In deciding to accept or reject a proposed state plan, LSC must
ultimately determine whether, when taken together with strategies
outlined in the plan in question, the proposed configuration is
best calibrated to:

Until the implementation of the State Planning Initiative,
determining service areas in a given state was more a product of
geographic and historical happenstance than a reasoned judgment
about the precise configuration that would yield the best legal
services system for the greatest number of clients. But Congress'
1996 reform replacing presumptive refunding of grantees with
competitive bidding for LSC service contracts19
- coupled with budget cuts of the same year - necessitated a
thoroughreexamination of the efficacy of existing service area
arrangements in each state. With fewer resources to expend and a
growing client base to serve, LSC has embraced service area
reconfiguration as one important way to "insure that grants and
contracts are made so as to provide the most economical and
effective delivery of legal assistance to persons in both urban and
rural areas."20 Rather than viewing service area reconfiguration as
a punitive measure against under-performing programs currently
receiving federal funds, LSC instead considers statewide
reconfiguration to be one of several tools to ensure that federal
dollars are being spent in the most efficient, cost-effective
manner possible, in a way that will result in the best service to
the most low-income clients.



11

V. RECONFIGURATION REVIEW PROCESS
On July 19, 2001, LSC implemented a Reconfiguration Re
view Process establishing an official framework by which
designated state planning bodies21 may seek review of LSC
reconfiguration decisions. This formal Review Process guarantees
representatives of every designated state planning body the right
to direct communication with LSC officials at the highest level in
seeking reconsideration of an LSC decision. The objective of the
Review Process is to maximize the potential for full communication
between stakeholders and LSC officials before any configuration
decisions are made final and effective.
Central to the Review Process is the right of designated
stakeholders to de novo reviews of all configuration decisions,
first by the LSC Vice President for Programs and then by the LSC
President, whose decision is final and binding. The Review Process
guarantees DSPB representatives a face-to-face meeting with the
Vice President of Programs to make their case. If the state
planning body disagrees with the Vice President's decision, they
may then request a face-to-face meeting with the LSC President to
seek reconsideration of the Vice President's recommendation. After
due consideration of the stakeholders' ultimate appeal, the LSC
President will promptly advise the state planning body of a final
decision on configuration.
LSC is committed to effective communication and coordination
with designated state planning bodies (DSPB) on matters in which
decisions are likely to have a direct impact on other civil equal
justice planning initiatives in a state. LSC recognizes the
increasingly active role that state planners have assumed in
overseeing state civil equal justice delivery activities. LSC
further recognizes that its decisions have the potential to
directly affect state funding, resource allocation, and other
considerations. In recognition of this crucial symbiosis, LSC's
Reconfiguration Review Process prescribes a clear review mechanism
that guarantees recognized stakeholders a full opportunity to make
their case:
1) At the earliest possible time, LSC's state planning team will
advise the DSPB in each state of any issues of concern with respect
to service area configuration and provide guidance on how to
address those concerns consistent with the enumerated
reconfiguration standards.
2) To the extent reasonably practical, LSC's state planning team
will work with the DSPB, grantees, and other stakeholders to foster
timely and effective consideration of issues relating to service
area reconfiguration.
3) LSC will identify in which states, if any, it proposes to
define new service areas at least sixty (60) days prior to
publishing those service areas in the Federal Register. At that
time, LSC also will notify the relevant state planning bodies of
pending service area changes.
4) If the LSC state planning team recommends a service area
configuration that differs from that proposed by the DSPB,
authorized representatives of the DSPB may seek a meeting with
LSC's Vice President for Programs to ask for reconsideration. The
representatives will be asked to articulate in writing their
concerns and objections.
5) Upon such a request, the VP for Programs will convene a
face-to-face meeting with the authorized representatives of the
DSPB. As soon as practical thereafter, the VP for Programs shall
advise the DSPB of the service area configuration recommendation to
be forwarded to the LSC President. In making the recommendation,
the VP for Programs shall be guided by state planners'
responsiveness to the enumerated reconfiguration standards; the
analysis and recommendations of the LSC state planning team; the
articulated concerns of the DSPB; and any other information deemed
to be relevant by the VP of Programs.
6) If the DSPB is not satisfied with the VP for Programs'
recommendation, it may seek a meeting with the LSC President to ask
for reconsideration. The DSPB will be asked to provide any
additional written information it wishes to be considered to assist
the LSC President in fully and fairly entertaining all concerns and
objections.
7) Upon such a request, the President will convene a
face-to-face meeting with the authorized representatives of the
DSPB. As soon as practical thereafter, the LSC President will
advise the DSPB of the final decision on service area configuration
in the affected state or territory. In making the decision, the
President shall be guided by state planners' responsiveness to
enumerated reconfiguration standards; the analyses and
recommendations of the LSC state planning team and the VP for
Programs; the articulated concerns of the DSPB; and any other
information deemed relevant by the President.

VI. CONCLUSION
Congressional reforms passed in 1996 necessitated a fundamental
shift in how LSC apportions federal dollars to legal services
providers across the country. The shift to a competitive bidding
process, coupled with sizeable reductions in Legal Services
Corporation's annual budget, compelled the LSC Board of Directors
to adopt a new approach to allocating Congress' annual investment
in civil equal justice for the poor. The expectations underlying
this new approach have been spelled out in considerable detail in
Program Letters issued broadly to the field, and in state-by-state
correspondences between LSC's state planning team and various equal
justice stakeholders.
In the current climate of scarce resources, LSC must remain
committed to pursuing bold new approaches that foster effective
legal assistance to low-income clients, including overhauling
service areas adjudged to be insufficiently responsive to the
tenets of State Planning. In an overwhelming majority of instances,
LSC has used the competitive bidding process to forge deeper bonds
with its grantees and stakeholders, allowing LSC to serve as an
active partner in planting the seeds of comprehensive, integrated
state justice communities nationwide. In fact, stakeholders in
dozens of states have embraced the new approach fully and reported
back enthusiastically on their progress since initiating their own
state planning processes.
LSC understands that organizations can be reluctant to embrace
major change. LSC also recognizes that opinions may differ as to
the most appropriate configuration of service areas, and that
grantees and other stakeholders may have a better perspective on
how to best serve clients and enhance access in their states. In
recognition of these tensions, LSC has worked diligently since 1995
to convey the expectations of the State Planning Initiative and to
establish meaningful partnerships with stakeholders aimed at
fostering a new symbiosis between the federal provider and
recipients of legal services funding. However, if an impasse is
ultimately reached in a particular state, it is critical that LSC
maintain its statutory right to decide the configuration of service
areas in order to foster greater access and service for all
eligible low-income clients.
ENDNOTES
1 Legal Services Corporation Act of 1974, as amended, § 1004, 42
U.S.C. § 2996c. (2001) ("LSC Act of 1974"). 2 Id. at § 1001, 42
U.S.C. § 2996. 3 Omnibus Consolidated Rescissions and
Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321
(1996). These new LSC administrative provisions have been
incorporated into each LSC appropriation since 1996, subject to
some modifications made in the Departments of Commerce, Justice,
and State, the Judiciary and Related Agencies Appropriations Act,
1998, Pub. L. 105-119, 111 Stat. 2440 (1997). 4 Id. at § 504. 5 Id.
at § 503. 6 Id. LSC's current Congressional FY01 appropriation is
$329.3 million. Consolidated Appropria- tions Act, 2001 Pub. L. No.
106-553, 114 Stat. 2762 (2000). 7 Strategic Directions 2000-2005,
page 4, "Programmatic Strategies." 8 LSC Act of 1974 at §
1007(a)(3), 42 U.S.C. § 2996f(a)(3). 9 LSC's budget was $400
million, its highest level ever, when the American Bar
Association's (ABA) legal needs study was concluded in 1994. Using
a variety of methodologies for estimating the unmet legal need of
the poor, several states have since reached conclusions similar to
the ABA study, including Florida, Georgia, Hawaii, Illinois,
Indiana, Kentucky, Maryland, Massachusetts, Missouri, Nevada, New
York, and Virginia. LSC asked for funding to conduct a new national
legal needs study in its FY2001 budget request to Congress;
however, no funds were allocated for that purpose. 10 The Committee
subsequently extended its deadline until September 12, 2001. 11 H.
Rep. No. 139, 107th Cong., 1st Sess. (2001). 12 The reconfiguration
standards spelled out in this Special Report to Congress
consolidate informa- tion taken from the following previously
published LSC sources: Building State Justice Communi- ties: A
State Planning Report from the Legal Services Corporation, April
2001; Letter to NLADA, CLASP, and PAG, May 1999; Program Letter
98-1; Program Letter 98-6; Program Letter 2000-1; and Program
Letter 2001-7. Additionally, LSC's state planning team has issued
numerous other targeted field correspondences to individual states'
stakeholders who have submitted configuration plans adjudged
insufficiently responsive to the tenets of State Planning. 13 On
July 19, 2001, prior to Congress' request for this Report, LSC
issued Program Letter 01-4 (LSC's Reconfiguration Review Process),
which implemented a review mechanism by which designated state
planning bodies may appeal LSC reconfiguration decisions. 14 LSC
Resolution #2001-008, "Resolution Establishing A Task Force To
Study and Report on Configuration of Service Areas," June 30,
2001.
15 Twenty-seven years ago, our government made a pledge to help
ensure that all persons have access to America's civil justice
system by enacting legislation that created Legal Services
Corporation. LSC has helped millions of low-income citizens solve
important, sometimes life-threatening, civil legal problems.
Despite the success of LSC and its many contributions to access to
justice for low-income Americans, its achievements are overshadowed
by the fact that so many in our society continue to suffer
injustice and are unable to gain access to our system of justice.
Until all members of our society are afforded that access, this
promise of our government will continue to be unfulfilled. LSC is
committed to promoting a new vision of legal services that will
achieve the goal of bringing legal services to those currently
denied access to the justice system. 16 Program Letter 1995-1
directed LSC recipients to develop plans to stretch scarce federal
dollars in the most effective, efficient ways possible. The letter
also anticipated the passage of congressional restrictions on the
activities of LSC programs, prompting LSC to instruct its programs
to forge deeper bonds with other stakeholders, including non-LSC
funded programs, state and local bar associations, IOLTA
administrators, the judiciary, and client groups. Program Letter
1995-4 provided a general outline as to the issues and criteria
that the state planning process should address. Significant
emphasis was placed on the integration of LSC-funded programs into
statewide legal services delivery systems and the seven central
tenets of state planning were identified. 17 Program Letter 1998-1,
published on February 12, 1998, called upon all LSC recipients to
analyze any progress made toward the development of the legal
services model envisioned by state planners. Programs were to
evaluate whether all programs were working cohesively to assure
that urgent clients needs were being addressed; whether sufficient
capacities for training and information-sharing existed; whether
programs were moving forward on technology; and whether they were
collaborating to increase resources and develop new initiatives to
expand the scope of their services. Grantees were also asked to
examine whether the existing program configuration was conducive to
the most effective state delivery system. Grantees were asked to
examine their progress in each of the seven principal areas of
State Planning in a manner that included assessing the strengths
and weaknesses of the current approach, establishing goals to
strengthen and expand services to eligible clients, and determining
the major steps yet to be taken and a timetable necessary to
achieve those goals. LSC set a deadline of October 1, 1998, for
submission of state planning reports. 18 Program Letter 1998-6,
published on July 6, 1998, responded to recipient requests for
guidance and additional information on what was expected in their
state planning reports. It included "State Planning Considerations"
designed to address requests for additional information regarding
statewide goals, capacities, and approaches recipients should
consider in their state planning processes. Program Letter 1998-6
stated that the State Planning Initiative will provide information
to aid LSC in exercising its statutory responsibility to "insure
that grants and contracts are made so as to provide the most
economical and effective delivery of legal assistance to persons in
both urban and rural areas." 19 As part of the competitive bidding
requirement, Congress mandated that current and past LSC recipients
may not "be given any preference in the competitive selection
process." Omnibus Consolidated Rescissions and Appropriations Act
of 1996 § 503(e), Pub. L. No. 104-134, 110 Stat. 1321 (1996). 20
LSC Act of 1974 at § 1007(a)(3), 42 U.S.C. § 2996f(a)(3). 21 If no
designated state planning body has been recognized by LSC, the
state bar and state IOLTA administrators may avail themselves of
the Review Process.
17