[Federal Register Volume 62, Number 76 (Monday, April 21, 1997)]
[Rules and Regulations]
[Pages 19406-19409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10036]


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LEGAL SERVICES CORPORATION

45 CFR Part 1620


Priorities in Use of Resources

AGENCY: Legal Services Corporation.

ACTION: Final rule.

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SUMMARY: This final rule revises the Legal Services Corporation's 
(``Corporation'' or ``LSC'') regulation concerning priorities. The 
revisions are intended to implement a restriction first appearing in 
the Corporation's Fiscal Year (``FY'') 1996 appropriations act that is 
currently incorporated by reference in the Corporation's FY 1997 
appropriations act. The restriction prohibits LSC recipients from 
expending resources on activities that are outside their specific 
priorities.

DATES: Effective May 21, 1997.

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 an interim rule 
on July 20 for publication in the Federal Register. The interim rule 
was published on Aug. 29, 1996 (61 FR 45747), and the Corporation 
received 2 timely comments.
    After receipt of written public comment, the Committee held public 
hearings on the interim rule on December 13, 1996, and January 5, 1997. 
The Committee made revisions to the rule and recommended the revised 
version to the Board. The Board adopted the revised version on January 
6, 1997, for publication as a final rule in the Federal Register.
    The Corporation's FY 1997 appropriations act became effective on 
October 1, 1996, see Pub. L. 104-208, 110 Stat. 3009. It incorporated 
by reference the Sec. 504 condition on LSC grants included in the FY 
1996 appropriations act implemented by this rule. Accordingly, the 
preamble and text of this rule continue to refer to the applicable 
section number of the FY 1996 appropriations act.
    Generally, this final rule prohibits any recipient from expending 
time or resources on cases or matters that are not within its written 
priorities and explains the obligation of recipients to set specific 
written priorities and to assure that their staff will, except for 
limited emergency situations, only engage in work within the 
priorities.
    A section-by-section discussion of this final rule is provided 
below.

Section 1620.1  Purpose

    This rule is intended to clarify a recipient board's obligation to 
set written priorities for the use of their resources. It is also 
intended to permit recipients to take emergency cases outside of their 
priorities within the limits set out in this rule.

[[Page 19407]]

Section 1620.2  Definitions

    The definitions of ``cases'' and ``matters'' are the same as those 
contained in the timekeeping regulation in 45 CFR part 1635 to assure 
consistency in the use of terminology throughout the regulations.

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 
their resources. It also requires recipients to undertake only those 
cases and matters that are within their priorities. Comments expressed 
a concern that applicants for legal services might interpret this rule 
as providing an entitlement to legal assistance for any person needing 
representation in one of a recipient's priority areas. This was clearly 
not the intent of the rule. Congress did not create legal services as 
an entitlement program.
    In order to clarify that the rule does not create an entitlement to 
legal services, the Board replaced ``are to be undertaken'' with ``may 
be undertaken.'' The rule is simply intended to ensure that each 
recipient focuses its resources on cases and matters that its board had 
determined to be a priority. It does not require recipients to 
represent every eligible applicant who seeks assistance, even though 
the applicant's case falls within the recipient's priorities. 
Recipients may and do utilize other case acceptance criteria in 
addition to their priorities statement to determine whether to 
represent any particular applicant whose case falls within priorities. 
Recipients' funds and staffing are seldom sufficient to take every 
applicant as a client. Some recipients rank their priorities as a way 
of helping them make choices among applicants, but they are not 
required to do so by this rule. Recipients need the additional 
flexibility to utilize case acceptance criteria in addition to their 
priorities statements, because they cannot control the volume or timing 
of requests for aid, nor can they always predict their funding status.
    Paragraph (b) specifies that a recipient's procedures must include 
an appraisal of the needs of the client community in the service area 
based on consultation with the client community, the recipient's 
governing body members and employees, the private bar, and other 
interested persons.
    Paragraph (c) sets out the factors a recipient must consider when 
setting priorities. The interim rule used the term ``should consider,'' 
which replaced ``shall consider'' in the prior rule. No substantive 
change in meaning was intended. However, the change in terms created 
some confusion over the meaning of the provision, and the Board 
returned to ``shall'' for the final rule.
    This rule retains all of the factors in the interim rule. All 
except two of these factors were also found in the rule that preceded 
the interim rule. The first of the two new factors is the requirement 
to consider the suggested priorities promulgated by the Corporation 
pursuant to Sec. 504(c) of Pub. L. 104-13. The second new factor is 
consideration of whether there is a need to vary priorities for 
different parts of the service area. The rule has added the 
consideration of whether there is a need to vary priorities for unique 
parts of the service area, because some recipients serve a diverse 
community, different parts of which have distinctive characteristics. 
The differences may arise because of geographic factors, such as the 
distinctions between rural and urban areas, or because of 
characteristics of the client population, such as the fact that there 
is a concentration of the elderly or of immigrants. Program-wide 
priorities may not be suitable for all recipients, and the rule allows 
a recipient to set different priorities for a particular segment of its 
service area.
    The Corporation intends to revisit this section of the rule in the 
near future in order to consider the factors in conjunction with the 
criteria used in the Corporation's new competition process, see 45 CFR 
part 1634. If a review results in the Corporation staff making 
recommendations for additional changes, such changes will be presented 
to the Committee as a proposed rule.

Section 1620.4  Establishing Policies and Procedures 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 case that may be taken even 
though it 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.
    Several changes were made by the Board to the interim rule's 
version of this section. Changes were made to the section's title and 
to paragraph (a). Paragraph (a) of the interim rule required the 
adoption of ``procedures'' only. Paragraph (a) in this final rule 
requires that a recipient adopt ``written policies and procedures'' to 
guide it in undertaking emergency cases outside of its priorities. 
Reference to ``non-priority cases or matters'' has been added to 
clarify the meaning of the provision, and the examples of natural 
disaster or unanticipated changes in the law have been deleted and, 
instead, are discussed below in this commentary.
    This paragraph describes emergencies as including circumstances 
where action must be taken in a short period of time as well as unusual 
and infrequent circumstances where no action needs to be initiated 
quickly, but where inordinate harm is likely to be incurred by the 
client or client's family members if action is not taken. Emergency 
situations might 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 some flexibility to deal with significant 
changes in the law on an emergency basis. The recipient's board, 
however, should determine at the earliest opportunity whether it is 
appropriate to revise priorities to reflect those changes.
    Paragraph (b) of the interim rule has not been retained in the 
final rule. The interim provision required a recipient's executive 
director to decide when an emergency occurs and to authorize taking the 
case, and suggested factors to be considered to determine what 
constitutes an emergency. The Board deleted the paragraph, because it 
decided to keep the focus of this section on the responsibilities of 
the governing body to establish policies and procedures. Besides, some 
of the factors in the paragraph are already listed in paragraph (a) of 
the interim rule.

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 similar cases have been accepted under the 
recipient's emergency procedures. This is most likely to happen 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 
encompasses those cases if the recipient is to continue accepting them. 
This section also sets out factors that should be considered by the 
governing body in determining whether to change the recipient's 
priorities.

[[Page 19408]]

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 works on 
cases or matters may engage in work outside of a recipient's adopted 
priorities. Each staff person that handles a case or matter or is 
authorized to make decisions about case acceptance must sign a written 
agreement not to undertake non-priority cases or matters except for 
those that are emergencies. This normally would not include clerical 
staff.

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. The report must 
include a rationale for taking any such non-priority cases or matters.
    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 policies and procedures for emergencies.
1620.5  Annual review.
1620.6  Signed written agreement.
1620.7  Reporting.

    Authority: 42 U.S.C. 2996f(a)(2); Pub. L. 104-208, 110 Stat. 
3009; Pub. L. 104-134,110 Stat. 1321.


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 recipient's 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 may 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 that is 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 shall be among those considered by the 
recipient in establishing priorities:
    (1) The 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 to 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 policies and procedures for emergencies.

    The governing body of a recipient shall adopt written policies and 
procedures to guide the recipient in undertaking emergency cases or 
matters not within the recipient's established priorities. Emergencies 
include those non-priority cases or matters that require immediate 
legal action to:
    (a) Secure or preserve the necessities of life,
    (b) Protect against or eliminate a significant risk to the health 
or safety of the client or immediate family members, or
    (c) Address other significant legal issues that arise because of 
new and unforeseen circumstances.


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 outside 
of its priorities.
    (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 non-priority emergency cases or matters in a

[[Page 19409]]

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 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: April 14, 1997.
Victor M. Fortuno,
General Counsel.
[FR Doc. 97-10036 Filed 4-18-97; 8:45 am]
BILLING CODE 7050-01-P