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Another issue in expanding the ombudsman program to serve long-term care beneficiaries is lines of authority. Currently, the ombudsman program is either located within an Area Agency on Aging or is a contractor to the agency. These agencies may become responsible for administration and case management in a long-term care program. An effective long-term care ombudsman program would have to function independently of the organization-most likely a public agency or its contractor-that develops and manages the care plans for beneficiaries.

Developmentally and Mentally Disabled Protective Services-Under federal law, states are required to establish units that provide protective services for the developmentally and mentally disabled, and to provide advocacy on their behalf, including asserting their entitlements to various federal benefits. The Maryland Developmentally Disabled Center is an example.

This center operates an advocacy and protective services program at three locations in the state. It uses trained lay advocates supervised by attorneys to handle 3,000 cases a year on a range of issues. Because the center is responsible for the developmentally disabled, it receives funds to provide similar services for the institutionalized mentally ill. The staff handles its own caseload including interviewing clients, filling out applications and other forms for SSI, and representing beneficiaries through the ALJ level in SSI cases. Center attorneys represent beneficiaries in court and implement proactive strategies to gain enforcement of rights. The Center provides technical assistance and training to its satellite offices.

Benefit Counseling Services-Particularly in the area of medical benefits, programs, staffed largely by volunteers, provide extensive counseling and related services to beneficiaries. The predominant program is the American Association of Retired of Retired Persons' (AARP) Medicare and Medicaid Assistance Program (MMAP), established 10 years ago, and currently serving 60,000 clients in 35 states. About 3,400 lay volunteers counsel beneficiaries as to their options and entitlements, and assist in understanding benefit program procedures, filling out forms, and finding experienced advocates. A unique feature of the program is that volunteers are available to meet with clients in their homes. AARP's participation in MMAP includes establishing contact with local nonprofit agencies with which MMAP can affiliate. Through these agencies with broad links to the community, clients are referred to MMAP.

In addition, AARP provides technical assistance, develops and distributes manuals and other material,

provides regular training of new volunteers, updates experienced volunteers on new benefit program developments, coordinates among MMAP programs and supervises the entire project.

Similar programs are being funded by state governments in Massachusetts, New Jersey, North Carolina, Illinois, Washington, California and Maryland. Maryland's Senior Health Insurance Counseling and Assistance Program (SHICAP) focuses on Medicare and Medigap insurance. Staff provides claims assistance, and files requests for review and reconsideration on behalf of beneficiaries. Legal backup is available for its claims assistance work. In addition, the Maryland Attorney General, through its Consumer Health Advocate Office, litigates claims and related cases.

Pro Bono Representation-Although private attorney representation of indigent clients is established practice, it only scratches the surface of the need for legal assistance. Several states have programs encouraging attorneys to provide pro bono services to the elderly. Similar programs may be available for the handicapped, mentally ill or developmentally disabled. Legal Counsel for the Elderly (LCE) provides training for attorneys interested in representing benefit program beneficiaries without receiving compensation. The American Bar Association, through its Commission on the Legal Problems of the Elderly and the Private Bar Involvement Project, publishes literature and holds conferences to facilitate the participation of the private bar in developing special projects, called Pro Bono Seniorum, to represent the elderly.

One private program, The Volunteer Lawyers Project, established by LCE in 1977, trains members of the bar, frequently affiliated with law firms, in all areas of elderlaw. LCE then assigns cases to these attorneys, providing them with technical assistance and maintaining quality control. The attorneys accept no fees for their services. In addition, LCE provides legal representation directly to low-income elderly clients.

Lay Representation-A long-term care program will drastically increase the number of benefit program beneficiaries in need of counseling, claims assistance, and representation. A partial response to this need is the establishment of a new profession of lay benefit specialist. Currently benefit program regulations and, in some states, the law inhibit the development of a corps of lay advocates to perform certain functions traditionally within the province of the legal profession.

Barriers to Developing a Substantial Corps of Lay Advocates-In order to facilitate representation by nonlawyers before benefit programs, these programs must issue clear regulations implementing the authority granted them by the Administrative Procedure Act to permit lay representation. Unless the benefit programs clarify their status, nonlawyers attempting to provide assistance to beneficiaries may fear prosecution under state laws for unauthorized practice of law. In addition, some state laws need to be amended in order to grant lay advocates the right to provide assistance, including some level of representation, without fear of reprisals from the state bar.

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A Benefit Specialist Program-The Center for Public Representation in Madison, Wisconsin has developed a statewide network of lay benefit specialists. The program was established in 1977 on the premise that low income elderly were not receiving their fair share of government entitlements because the benefit programs were too complex and the bureaucracy faceless. In order to maximize the resources available for advocacy, the Center developed mechanisms for training lay personnel to be advocates, continually updating them on benefit program developments, and providing ongoing attorney supervision. At the point when a case requires an attorney's skill, it is transferred to legal staff.

Wisconsin has placed a benefit specialist in the office of every County Committee on Aging. The Center provides back-up for county offices, direct representation and technical assistance.

168 Zona Fairbanks Hostetler, "Nonlawyer Assistance to Individuals in Federal Mass Justice Agencies: The Need for Improved Guidelines," The Administrative Law Journal, 2, (1) (1988): 114, et seq.

Consumer Education-The publication of handbooks, guidelines and pamphlets describing beneficiary entitlements and rights to review and appeal from benefit denials is widespread. Benefit programs are required to publish this sort of literature. Insurance carriers and fiscal intermediaries, providers, consumer organizations and others may also provide it. The American Association of Retired Persons publishes a large volume of information intended to inform older consumers about subjects of interest to them, including benefit entitlements. National organizations representing handicapped or developmentally or mentally disabled individuals probably provide this service to their members also. The quality of publications from so many sources is bound to vary, and the effectiveness of their distribution has not been systematically evaluated.

Consumer education efforts tend to be focused on particular topics. The development of materials, even within one organization or agency, often is not adequately coordinated, so that there may be a lot of information available about some aspects of benefit programs and not enough about others.

Summary

Advocacy and consumer information will be critical to assuring that a long-term care program's claims review and appeal procedures comply with due process and are available to all beneficiaries with a legitimate need to use them. Fortunately, there are a number of innovative programs that might serve as models for encouraging beneficiaries of this program program to be effective consumers of its services, and, when necessary, to assert their rights to the services that it provides.

Staff Memoranda and

Briefing Papers

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