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).
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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
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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
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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
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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.
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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
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