TITLE 9 HUMAN RIGHTS
CHAPTER 2 AGE
PART 17 LEGAL ASSISTANCE SERVICES
9.2.17.1 Issuing
agency: New Mexico Aging and Long Term Services Department
(NMALTSD)
[9.2.17.1 NMAC - Rp, SAA Rule No. 95-17.1, 6/30/2015]
9.2.17.2 Scope:
These rules apply to members of the public and organizations that
participate in the delivery of services to New Mexico’s aging and disability
populations.
[9.2.17.2 NMAC - Rp, SAA Rule No. 95-17.2, 6/30/2015]
9.2.17.3 Statutory
authority: Aging
and Long-Term Services Department Act,
Sections 9-23-1 to 9-23-12 NMSA
1978; Older Americans Act of 1965, 42 U.S.C. Sections 3001 to 3058, and
implementing regulations.
[9.2.17.3
NMAC - Rp, SAA Rule No. 95-17.3, 6/30/2015]
9.2.17.4 Duration:
Permanent.
[9.2.17.4
NMAC - Rp, SAA Rule No. 95-17.4, 6/30/2015]
9.2.17.5 Effective
date: June 30, 2015, unless a later
date is cited at the end of a section.
[9.2.17.5
NMAC - Rp, SAA Rule No. 95-17.5, 6/30/2015]
9.2.17.6 Objective:
The
objective of this rule is to establish standards and procedures for the federal
and state-funded programs administered by the aging and long term services department.
[9.2.17.6
NMAC - Rp, SAA Rule No. 95-17.6, 6/30/2015]
9.2.17.7 Definitions:
A. A
“fee generating case” includes any matter which, if undertaken by a private
legal practitioner on behalf of a client, could reasonably be expected to
result in an awarded legal fee directly payable out of the amount awarded the
client from the opposing parties, or from public funds.
B. “Legal
assistance” means legal advice, education and representation provided by an
attorney to older individuals with economic or social needs; and includes, to
the extent feasible, counseling or other appropriate assistance provided by a
paralegal or law student under the direct supervision of a licensed attorney;
and counseling and representation provided by a non-lawyer where permitted by
law.
C. “Legal
assistance providers” are those who, pursuant to the Older Americans Act, Title
III B, provide services, legal assistance and other counseling services and
assistance.
D. “Means
test” is defined as the use of an older individual’s income or resources to
deny or limit that individual’s receipt of services.
[9.2.17.7 NMAC - Rp, SAA Rule No. 95-17.7, 6/30/2015]
9.2.17.8 Legal
references: [RESERVED]
[9.2.17.8 NMAC - Rp, SAA Rule No. 95-17.8, 6/30/2015]
9.2.17.9 Allowable
services:
A. Providers
of legal assistance, funded by the department, must provide such services to
New Mexicans age sixty (60) or older and others as described in contracts
supported by state funds. Allowable
services include, but are not limited to:
(1) Direct
service delivery programs using staff attorneys, paralegals, law students
and/or other non-lawyers under the direct supervision of an attorney;
(2) Legal
clinics which combine education addressing specific legal issues or topics of
concern to older individuals, outreach and intake efforts that target those in
greatest social and economic need, and the direct provision of legal advice,
representation, and follow-up services to individuals in attendance;
(3) Interactive
workshops at which the individuals in attendance are counseled and provided
with direct legal assistance with regard to legal and elder rights issues;
(4) Referral
programs enlisting the services of a panel of volunteer attorneys to provide
direct pro bono legal assistance;
(5) Impact
case work, for example, lawsuits that benefit entire classes of clients,
nursing home reform efforts, and Medicaid advocacy;
(6) The
production and provision of educational materials and other legal resources for
the benefit of New Mexicans age sixty (60) or older and others as described in
contracts supported by state funds; and
(7) Any
programs using any combinations of the activities described above.
B. Legal
assistance services cannot include legal representation in any fee generating
case, unless other adequate representation is unavailable or there is an
emergency requiring immediate legal action.
[9.2.17.9 NMAC - Rp, SAA Rule No. 95-17.9, 6/30/2015]
9.2.17.10 Selection of
providers: The department or an area agency on aging
shall consider the following factors when awarding funds to legal assistance
providers:
A. Staff
with expertise in those specific areas of law affecting older individuals in
greatest economic and greatest social need, such as income, public benefits,
institutionalization and alternatives to institutionalization, defense of
guardianships, protective services, age discrimination, health care, long-term
care, nutrition, housing, utilities and abuse and neglect.
B. The
ability to develop and implement outreach efforts designed to identify and
serve targeted populations.
C. The
ability to provide administrative and judicial representation in the specific
areas of law affecting older individuals in greatest economic and greatest
social need.
D. The
ability to provide legal services to institutionalized, isolated and homebound
older individuals.
E. The
ability to provide legal assistance in the principal language spoken by clients
in those areas of the state where a significant number of clients do not speak
English as their principal language.
F. The
ability to provide support and advice to the long-term care ombudsman program.
G. The
ability to provide support to aging network elder rights initiatives.
H. The
ability to provide support to other advocacy efforts, adult protective
services, and protection and advocacy and public guardianship programs; and.
I. A
commitment to the statewide aging network, including participation in aging
network training sessions; coordination with, and referrals to and from, other
service providers; involvement in local and statewide publicity efforts to
identify the availability of legal assistance services; and training local
service providers, site managers, staff, and the like as to the availability
and extent of legal assistance services.
[9.2.17.10 NMAC -
Rp, SAA Rule No. 95-17.10, 6/30/2015]
9.2.17.11 Evaluating
providers: The department or area agencies on aging
should evaluate providers at least annually using procedures and instruments
developed by such groups as the National senior citizens law center, the center
for social gerontology, or other similar groups with proven experience in the
evaluation of Older Americans Act, Title III(B), legal assistance
providers. If applicable, random tests
of client services should be administered in the evaluation process. Copies of written evaluations conducted by
area agencies on aging must be provided to the department when they are
released to the providers.
[9.2.17.11 NMAC -
Rp, SAA Rule No. 95-17.11, 6/30/2015]
9.2.17.12 Means test and
targeting:
A. Legal
assistance providers may not use a means test as a criterion for determining
whether an individual is entitled to legal assistance services. Legal assistance providers may question an
older individual about his/her financial circumstances as part of the process
of providing legal advice, counseling and representation, or for the purpose of
identifying additional resources and benefits for which an older individual may
be eligible.
B. The
Older Americans Act requires that providers target minority older individuals
with low incomes, older individuals residing in rural areas, and older
individuals with the greatest economic and social needs.
[9.2.17.12 NMAC -
Rp, SAA Rule No. 95-17.12, 6/30/2015]
9.2.17.13 Confidentiality:
Legal assistance providers shall not be required to reveal any
information that is protected by the attorney-client privilege. The fiduciary relationship between lawyer and
client and the proper functioning of the legal system require the lawyer to
preserve client confidences and secrets.
Legal assistance providers must comply with client confidentiality
requirements, as defined in the Older Americans Act, and all federal and state
financial management requirements, including the collection, documentation and
use of program income.
[9.2.17.13 NMAC -
Rp, SAA Rule No. 95-17.13, 6/30/2015]
9.2.17.14 Coordination
with legal services corporation and other separately funded legal assistance
programs: Legal assistance providers must coordinate
with legal services corporation (LSC) providers and any other providers of
legal assistance to older individuals to supplement current service
levels. Area agencies on aging and
providers must also attempt to involve the private bar on a reduced fee and pro bono basis.
[9.2.17.14 NMAC -
Rp, SAA Rule No. 95-17.14, 6/30/2015]
HISTORY OF 9.2.17 NMAC:
Pre-NMAC History: The material in this part was derived from
that previously filed with the State Records Center:
SAA Rule No. 95-17, Legal Assistance
Services, filed 4/13/1995.
History of
Repealed Material:
SAA
Rule No. 95-17, (filed 4/13/1995) - Repealed 6/30/2015.