[Federal Register Volume 61, Number 169 (Thursday, August 29, 1996)]
[Rules and Regulations]
[Pages 45747-45750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21667]


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LEGAL SERVICES CORPORATION
45 CFR Part 1620


Priorities in Use of Resources

AGENCY: Legal Services Corporation.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule completely revises the current Legal 
Services Corporation's (``Corporation'' or ``LSC'') regulation 
concerning priorities. The revisions are intended to implement a 
restriction contained in the Corporation's FY 1996 appropriations act, 
which prohibits LSC recipients from expending resources on activities 
that are outside their specific priorities. Although this rule is 
effective upon publication, the Corporation solicits public comment in 
anticipation of adoption of a final rule at a later time.

DATES: This interim rule is effective on August 29, 1996. Comments must 
be submitted on or before October 28, 1996.

ADDRESSES: Comments should be submitted to the Office of the General 
Counsel, Legal Services Corporation, 750 First Street NE., 11th Floor, 
Washington, DC 20002-4250.

FOR FURTHER INFORMATION CONTACT: Victor M. Fortuno, General Counsel, 
(202) 336-8910.

SUPPLEMENTARY INFORMATION: On May 19, 1996, the Operations and 
Regulations Committee (``Committee'') of the LSC Board of Directors 
(``Board'') requested the LSC staff to prepare an interim rule to 
implement Sec. 504(a)(9), a restriction in the Corporation's FY 1996 
appropriations act, Pub. L. 104-134, 110 Stat. 1321 (1996), which 
prohibits LSC recipients from expending resources on activities that 
are outside their specific priorities. The Committee held hearings on 
staff proposals on July 8 and 19, and the Board adopted this interim 
rule on July 20 for publication in the Federal Register. The Committee 
recommended and the Board agreed to publish this rule as an interim 
rule. An interim rule is necessary in order to provide prompt and 
critically necessary guidance to LSC recipients on legislation which is 
already effective and which carries strong penalties for noncompliance. 
Because of the great need for guidance on how to comply with 
substantially revised legislative requirements, prior notice and public 
comment are impracticable, unnecessary, and contrary to the public 
interest. See 5 U.S.C. 553(b)(3)(B) and 553(d)(3). Accordingly, this 
rule is effective upon publication.
    However, the Corporation also solicits public comment on the 
interim rule for review and consideration by the Committee. After 
receipt of written public comment, the Committee intends to hold public 
hearings to discuss the written comments and to hear oral comments. It 
is anticipated that a final rule will be issued which will supersede 
this interim rule.
    Generally, this rule is revised to prohibit any recipient from 
expending time or resources on cases or matters that are not within its 
written priorities. The current regulation, which has not

[[Page 45748]]

been revised since 1985, dealt generally with the process for 
establishing priorities for the use of resources. This new rule 
explains the obligation of the recipients to set specific written 
priorities and to assure that their staff will, except for limited 
emergency situations, engage in work within the priorities.
    A section-by-section discussion of this interim rule is provided 
below.

Section 1620.1  Purpose

    This rule is intended to clarify a recipient board's obligation to 
set written priorities that will delineate the parameters of the work 
in which the recipient's staff may engage. It is also intended to 
permit recipients to take emergency cases outside of its priorities 
within the limits set out in this rule.

Section 1620.2  Definitions

    The definitions of ``cases'' and ``matters'' are appropriately the 
same as those contained in the timekeeping regulation in 45 C.F.R. Part 
1635 because the two rules complement each other. Adopting priorities 
and using its resources only for those cases and matters that come 
within its priorities require a recipient to be accountable for and to 
use its resources wisely and effectively. The timekeeping rule, which 
requires recipients to keep track of time spent on cases and matters, 
is also intended to ensure recipient accountability for the use of 
funds. See 61 FR 14262 (April 1, 1996).

Section 1620.3  Establishing Priorities

    Paragraph (a) requires recipients to adopt procedures for 
establishing priorities and to adopt priorities for the use of all of 
its resources. It also requires recipients to undertake only those 
cases and matters that are within its priorities.
    Paragraph (b) is based on the current rule and specifies that a 
recipient's procedures include an appraisal of the needs of the client 
comunity in the services area by consultation with the client 
community, the recipient's governing body members and employees, the 
private bar, and other interested persons in order to assess the needs 
of the eligible clients in the recipient's service area. This rule 
continues the use of the term ``appraisal.'' However, since adoption of 
this interim rule by the Board, it has been suggested that 
``evaluation'' may be a better word to use because ``to evaluate'' is 
to determine value by careful appraisal or study and it is an 
evaluation made pursuant to a study of the relevant factors that should 
determine a recipient's priorities. Because the Board would need to act 
on a change of words in this instance, the rule remains as adopted by 
the Board. However, comments are requested as to whether ``evaluation'' 
would be a better term.
    Paragraph (c) is largely taken from the current rule and sets out 
the factors a recipient should consider when setting priorities. New 
factors include consideration of the suggested priorities that were 
promulgated by the Corporation on May 29, 1996, 61 FR 26934, as well as 
consideration of whether there is a need to vary priorities for unique 
parts of the service area. A recipient may serve a diverse community 
each part of which has distinctive characteristics. The uniqueness may 
arise because of geographic differences, such as rural or urban areas 
or because of the characteristics of the clients, such as a 
concentration of the elderly or immigrants. Program-wide priorities may 
not be suitable for all recipients, and it may be necessary to set 
different priorities for a particular segment of the service area.
    The Corporation expects recipients to have interim priorities which 
comply with the requirements of this rule in place 30 days from the 
interim rule's effective date (publication date). In order to meet this 
deadline, recipients will not be expected to conduct a new appraisal of 
needs as set forth in part 1620.3(b).

Section 1620.4  Establishing a Procedure for Emergencies

    This section requires a recipient's governing body to develop 
procedures that the staff must follow when determining whether a 
particular circumstance is an emergency that falls outside of the 
recipient's priorities. Since the recipient is prohibited from 
expending its resources and time on any activities outside its 
priorities other than emergencies, each recipient must clearly define 
those emergencies to give its staff clear guidance regarding their 
identification and acceptance.
    Emergency situations would include circumstances where action must 
be taken in a short period of time. They would also encompass unusual 
and infrequent circumstances where no action needs to be initiated 
quickly but would cause inordinate harm to the client or client's 
family members if not addressed. Emergency situations also may include 
unusual circumstances such as a natural disaster or an unanticipated 
change in the law, where issues which severely affect a large segment 
of the client community were not anticipated at the time priorities 
were set. Because engaging in a comprehensive priority-setting process 
can be time consuming and expensive, recipients need to have the 
flexibility to deal with significant changes in the law on an emergency 
basis. The recipient's board should, however, at the earliest 
opportunity, determine whether it is appropriate to revise priorities 
to reflect those changes.
    Paragraph (b) requires a recipient's executive director to decide 
when an emergency occurs and to authorize taking the case. Paragraph 
(b) also suggests factors that a recipient may consider in determining 
what constitutes an emergency. The suggested factors address only some 
of the possibilities that may be considered for situations where 
immediate action is needed. Local conditions may require consideration 
of other factors as well.

Section 1620.5  Annual Review

    This section states the obligation of the recipient's governing 
body to review its priorities annually, or more frequently when a 
significant number of cases falling under a category or type of case 
have been accepted under the recipient's emergency procedures. The type 
of situation where this is most likely to happen is when there is a 
change in law that adversely affects a large number of eligible 
clients. For the program to continue to accept such emergency cases, 
the governing body should affirmatively include a priority that would 
encompass those cases. This section also sets out factors that should 
be considered by the governing body in determining whether to change 
the recipient's priorities.

Section 1620.6  Signed Written Agreement

    This section implements Sec. 504(a)(9) of the Corporation's 
appropriation's act. It clarifies that no recipient staff who work on 
cases or matters may engage in work outside the recipient's adopted 
priorities. Each such staff person must sign a written agreement not to 
undertake non-priority cases or matters except for those that are 
emergencies. Clerical staff need not sign such an agreement. A staff 
member who is part of the intake system, however, who helps determine 
whether the recipient will take or refer a case, must sign the 
agreement.

Section 1620.7  Reporting

    Paragraph (a) reflects the requirement in Sec. 504(9)(B) of the 
Corporation's FY 1996 appropriations act that a recipient must report 
on a quarterly basis to its governing body about the emergency work 
performed outside of the recipient's priorities.

[[Page 45749]]

    Paragraph (b) reflects the requirement in Sec. 504(9)(B) that a 
recipient report annually to the Corporation, on a form the Corporation 
provides, the non-priority emergency work in which it has engaged.
    Paragraph (c) contains language from the current rule instructing 
the recipient to report annually to the Corporation on its priorities.

List of Subjects in 45 CFR Part 1620

    Legal services.

    For reasons set forth in the preamble, 45 CFR Part 1620 is revised 
to read as follows:

PART 1620--PRIORITIES IN USE OF RESOURCES

Sec.
1620.1  Purpose.
1620.2  Definitions.
1620.3  Establishing priorities.
1620.4  Establishing a procedure for emergencies.
1620.5  Annual review.
1620.6  Signed written agreement.
1620.7  Reporting.

    Authority: Pub. L. 104-134, 110 Stat. 1321, 42 U.S.C. 
2996f(a)(2).


Sec. 1620.1  Purpose.

    This part is designed to provide guidance to recipients for setting 
priorities and to ensure that a recipient's governing body adopts 
written priorities for the types of cases and matters, including 
emergencies, to which the staff will limit its commitment of time and 
resources.


Sec. 1620.2  Definitions.

    (a) A case is a form of program service in which an attorney or 
paralegal of a recipient provides legal services to one or more 
specific clients, including, without limitation, providing 
representation in litigation, administrative proceedings, and 
negotiations, and such actions as advice, providing brief services and 
transactional assistance, and assistance with individual Private 
Attorney Involvement (PAI) cases.
    (b) A matter is an action which contributes to the overall delivery 
of program services but does not involve direct legal advice to or 
legal representation of one or more specific clients. Examples of 
matters include both direct services, such as community education 
presentations, operating pro se clinics, providing information about 
the availability of legal assistance, and developing written materials 
explaining legal rights and responsibilities; and indirect services, 
such as training, continuing legal education, general supervision of 
program services, preparing and disseminating desk manuals, PAI 
recruitment, intake when no case is undertaken, and tracking 
substantive law developments.


Sec. 1620.3  Establishing priorities.

    (a) The governing body of a recipient must adopt procedures for 
establishing priorities for the use of all of its Corporation and non-
Corporation resources and must adopt a written statement of priorities, 
pursuant to those procedures, that determines the cases and matters 
which are to be undertaken by the recipient.
    (b) The procedures adopted must include an effective appraisal of 
the needs of eligible clients in the geographic area served by the 
recipient, and their relative importance, based on information received 
from potential or current eligible clients solicited in a manner 
reasonably calculated to obtain the views of all significant segments 
of the client population. The appraisal must also include and be based 
on information from the recipient's employees, governing body members, 
the private bar, and other interested persons. The appraisal should 
address the need for outreach, training of the recipient's employees, 
and support services.
    (c) The following factors should be among those considered by the 
recipient in establishing priorities:
    (1) Suggested priorities promulgated by the Legal Services 
Corporation;
    (2) The appraisal described in paragraph (b) of this section;
    (3) The population of eligible clients in the geographic areas 
served by the recipient, including all significant segments of that 
population with special legal problems or special difficulties of 
access to legal services;
    (4) The resources of the recipient;
    (5) The availability of another source of free or low-cost legal 
assistance in a particular category of cases or matters;
    (6) The availability of other sources of training, support, and 
outreach services;
    (7) The relative importance of particular legal problems of the 
individual clients of the recipient;
    (8) The susceptibility of particular problems to solution through 
legal processes;
    (9) Whether legal efforts by the recipient will complement other 
efforts to solve particular problems in the area served;
    (10) Whether legal efforts will result in efficient and economic 
delivery of legal services; and
    (11) Whether there is a need to establish different priorities in 
different parts of the recipient's service area.


Sec. 1620.4  Establishing a procedure for emergencies.

    (a) The governing body of a recipient must adopt procedures for 
undertaking emergency cases or matters that are not within the 
recipient's established priorities. An emergency may include a case or 
matter requiring immediate legal action, circumstances involving the 
necessities of life, a significant risk to the health or safety of the 
client or immediate family members, or issues that arise because of new 
and unforeseen circumstances, such as natural disasters or 
unanticipated changes in the law.
    (b) Pursuant to procedures adopted by the governing body, the 
recipient's Executive Director or designee shall determine whether a 
particular case or matter not within the recipient's established 
priorities constitutes an emergency that may be undertaken by the 
recipient. The following factors may be among those considered by the 
Executive Director or designee:
    (1) The time period in which action must be taken to protect the 
client's interest;
    (2) The severity of the consequences to the client if no action is 
taken;
    (3) The likelihood of success if urgent legal action is taken;
    (4) The capacity of another source of free or low-cost legal 
assistance to undertake the particular case;
    (5) The effect the problem presented by the emergency case or 
matter will have on the client community; and
    (6) The consequences of diverting resources from existing priority 
cases or matters.


Sec. 1620.5  Annual review.

    (a) Priorities shall be set periodically and shall be reviewed by 
the governing body of the recipient annually or more frequently if the 
recipient has accepted a significant number of emergency cases.
    (b) The following factors should be among those considered in 
determining whether the recipient's priorities should be changed:
    (1) The extent to which the objectives of the recipient's 
priorities have been accomplished;
    (2) Changes in the resources of the recipient;
    (3) Changes in the size, distribution, or needs of the eligible 
client population; and
    (4) The volume of emergency cases or matters in a particular legal 
area since priorities were last reviewed.


Sec. 1620.6  Signed written agreement.

    All staff who handle cases or matters, or are authorized to make 
decisions

[[Page 45750]]

about case acceptance, must sign a simple agreement developed by the 
recipient which indicates that the signatory:
    (a) Has read and is familiar with the priorities of the recipient;
    (b) Has read and is familiar with the definition of an emergency 
situation and the procedures for dealing with an emergency that have 
been adopted by the recipient; and
    (c) Will not undertake any case or matter for the recipient that is 
not a priority or an emergency.


Sec. 1620.7  Reporting.

    (a) The recipient shall report to the recipient's governing body on 
a quarterly basis information on all emergency cases or matters 
undertaken that were not within the recipient's priorities, and shall 
include a rationale for undertaking each such case or matter.
    (b) The recipient shall report annually to the Corporation, on a 
form provided by the Corporation, information on all emergency cases or 
matters undertaken that were not within the recipient's priorities.
    (c) The recipient shall submit to the Corporation and make 
available to the public an annual report summarizing the review of 
priorities; the date of the most recent appraisal; the timetable for 
the future appraisal of needs and evaluation of priorities; mechanisms 
which will be utilized to ensure effective client participation in 
priority-setting; and any changes in priorities.

    Dated: August 20, 1996.
Suzanne B. Glasow,
Senior Counsel for Operations and Regulations.
[FR Doc. 96-21667 Filed 8-28-96; 8:45 am]
BILLING CODE 7050-01-P