Reflections on Title VII 30 Years Later

Abstract:

The 1992 Older Americans Act reauthorization included the creation of Title VII focused on advocating for rights of vulnerable older adults, improvements in the long-term care ombudsman program, efforts to prevent abuse, neglect, and exploitation, strengthened legal assistance, and critical programs for American Indian and Alaska Native elder rights. Former Congressional staffer and long-time aging advocate Bill Benson shares his reflections on the development and implementation of Title VII of the Older Americans Act, including its successes and shortcomings.

Key Words:

elder rights, elder abuse, Ombudsman, American Indian and Alaska Native, advocacy

In 1992, I was privileged to be very involved in creating Title VII, the “Elder Rights” title of the Older Americans Act (OAA), during the reauthorization of the OAA. Title VII is one of my proudest achievements over the course of nearly 50 years of work concerning the nation’s older adult population. But my sense of accomplishment is dampened somewhat in reflecting upon Title VII over the past three decades.

Much of my career has been associated with the OAA, and most of my early work at the California Department of Aging (CDA) was with programs dedicated to protecting and improving the rights of older Americans. After helping to start a new area agency on aging (AAA), I was “loaned” to a national nonprofit organization (National Paralegal Institute) to work on an Administration on Aging (AoA)–funded demonstration project training paralegals and other non-lawyer advocates to assist older adults with their legal problems.

Upon returning to CDA, I served as Legal Services Developer, then as State Long-Term Care Ombudsman, and directed the Advocacy Assistance and Civil Rights Office. In my final role at CDA I started the state’s Health Insurance and Counseling Program (HICAP)—a precursor to the national State Health Insurance Assistance Program (SHIP).

This early experience greatly influenced my subsequent work in Congress, particularly on Title VII. When I arrived in 1985 in Washington, DC, to start my stint in Congress, I believed that the most important feature of the OAA was its advocacy provisions, especially for those “in the greatest economic and social need,” an OAA cornerstone principle. And I believed the advocacy potential under the OAA was far from fully realized.

Advocacy Is Key to OAA

OAA programs—then and now—were unlikely ever to be adequately funded. Fortunately, however, there are major national entitlement programs that could reach and better serve their intended recipients, if only they had better knowledge of, access to, and help in securing and maintaining benefits under these programs; programs that don’t depend upon annual appropriations struggles.

For example, for all the benefits of the OAA’s congregate and home-delivered meals programs, it seemed equally if not more important to secure for older adults’ benefits under the Food Stamps program (now SNAP). Ensuring that older adults can pay for necessities often requires advocacy to secure and maintain income like Social Security OASDI and SSI benefits.

The importance of advocacy—including legal representation—goes well beyond individual situations. The potential for the aging network to engage in broader advocacy efforts to promote improvements in public entitlement programs, ensure the rights of older adults are respected and protected, whether in a nursing home, by a public agency, a landlord, etc., is large. I believed—and still do—that these advocacy roles are far from front and center in the aging network, despite the statutory obligation of State Units on Aging (SUAs) and AAAs to “serve as an effective and visible advocate for older individuals by reviewing and commenting upon all State plans, policies, budgets, and policies which affect older adults…,” in the case of SUAs (42 USC §3025[a][1][D]). And “serve as the advocate and focal point for older individuals within the community by … monitoring, evaluating, and commenting upon all policies, programs, hearings, levies, and community actions which will affect older individuals,” in the case of AAAs (42 USC §3026[a][6][B]).

Working on the staff of congressional committees devoted to improving the lives of older adults provided an extraordinary opportunity to apply what I had learned in California to federal legislation. I was actively involved in the 1987 OAA reauthorization, which included several new provisions in the Long-Term Care Ombudsman Program. Congress also passed in 1987 the Omnibus Budget Reconciliation Act (OBRA 87), which included a major overhaul of federal law governing nursing homes under Medicare and Medicaid, including protecting the rights of residents. The Senate Special Committee on Aging was heavily involved in crafting those provisions, some informed by our California work.

In mid-1990, Senator Brock Adams (D-WA) hired me to be staff director of the Subcommittee on Aging (today the Subcommittee on Primary Health and Retirement Security) of the Senate Committee on Labor and Human Resources (now Senate Committee on Health, Education, Labor & Pensions) which has jurisdiction over the OAA. I had responsibility for leading the subcommittee’s work preparing the Senate amendments to the Act.

The Genesis of Elder Rights in the OAA

This was an excellent opportunity to address elder rights within the OAA. After consultation with colleagues, Chairman Adams made elder rights a key part of the reauthorization.

In late January 1991, Adams introduced S. 243, “The Older Americans Act Reauthorization Amendments of 1991.” At our first hearing (January 31, 1991), Adams noted in his opening statement, “S. 243 is a straight reauthorization of the current Act; it does not include substantive amendments at this time … through the hearing process … we will work to craft a thoughtful and hopefully realistic set of amendments …”

To emphasize the significance of addressing elder rights, the opening hearing was devoted to the topic. The first witness was the venerable Dr. Arthur Flemming, a Republican who was the first Secretary of Health, Education and Welfare in the Eisenhower Administration, former Commissioner on Aging over AoA, and former Chairman of the U.S. Commission on Civil Rights.

In noting the aforementioned advocacy responsibilities of SUAs and AAAs, and the similar language governing AoA, Flemming said, “I like that language. I like that way of stating the charge,” adding that with respect to SUAs and AAAs, “The Congress expects them to be vigorous and effective advocates on behalf of older persons and especially the vulnerable.”

Flemming noted the Act’s “two very important processes—the legal service process and the ombudsman process,” adding, “It is my belief that an excellent start has been made in building a legal foundation on which an effective advocacy program designed to protect the rights of older persons, especially vulnerable older persons, can be developed.”

“Congress could play an important role in elevating advocacy in the Administration on Aging,” Flemming added, by, “One, bring the advocacy assignments and the processes supporting those assignments—the ombudsman and legal service—that are now in the Act together in a new title, a title that would be dedicated to this whole role of advocacy.”

Toward his conclusion Flemming said, “I believe that a strong advocacy program is a ‘must’ if the rhetoric of the ‘Declaration of Objectives for Older Americans’ as set forth in Title I of the Older Americans Act and the rhetoric of the titles designed to carry out the declaration is to be translated into reality for a maximum number of the older persons of our Nation. I hope this committee will start us down the road that will bring together the pieces of our present advocacy program into a new section, and then will strengthen the various components of the program.”

Other witnesses represented SUAs, the Long-Term Care Ombudsman Program, Title III legal assistance, a State Senior Health Insurance Counseling and Advocacy Program, and others.

In the following months, revisions to S. 243 were drafted, completed, and passed by the Senate. The House followed, passing their version. After the Senate and the House worked out their differences, the 1992 OAA reauthorization bill was signed into law by the President in early October 1992, just weeks before the general election.

Entering the reauthorization process, we and our House colleagues knew there weren’t going to be large new programs created within the Act, mainly because new programs would compete with current programs for OAA appropriations. There is little satisfaction in authorizing a new program that doesn’t get funded. Nevertheless, the 1992 reauthorization included many amendments—changes to existing law with some new provisions added.

The Creation of Title VII

The major addition among the 1992 amendments was the creation of Title VII, known as the “Vulnerable Elder Rights Protection Activities.” This new title largely brought together programs and services into a common framework focused on protecting the rights of vulnerable elders.

In a July 1992 interview (Long-Term Care Administrator, 1992), Chairman Adams said, “As we moved to reauthorize the OAA, there were few areas of consensus—one was to strengthen the ombudsman program. In fact, most major aging organizations called for a new ombudsman Title in the Act. The Elder Rights Title evolved from this. I am delighted with the support for Title VII, and it may turn out to be the centerpiece of the 1992 OAA Reauthorization bill.” Adams added, “Under Title VII states would be given marching orders and the tools to take a leadership role in protecting the rights and well-being of older Americans.”

Title VII consists of three parts (Subtitles A, B, and C). Subtitle A has five chapters constituting the majority of the title. Discussion about each chapter and brief commentary about Subtitle B follows (Subtitle C is not discussed here). The four programs in Title VII (chapters 2–5) each have authorizations of funding.

Chapter 1: General State Provisions

Perhaps the most significant aspect of Title VII was its intent to give SUAs more direct responsibility for vulnerable elder rights activities; that there may be greater efficiency and impact if state-level entities provide leadership over such activities. Prior to Title VII, several activities incorporated into the new title were left to individual AAAs’ decisions. Chapter 1 addressed this by adding new requirements to developing State plans (on aging), notably a new requirement that the State will hold public hearings and use other means to obtain views of interested parties about the programs of Title VII, and to assure that the state, in consultation with AAAs, will “identify and prioritize statewide activities aimed at ensuring that older individuals have access to, and assistance in securing and maintaining, benefits and rights.”

The chapter also required assurances by the State that it would place no restrictions on what entities could be designated by the State Ombudsman as “local Ombudsman entities,” other than those delineated in Title VII. This addition was in response to reports that in some jurisdictions, certain local entities like legal assistance providers and other advocacy organizations were being prohibited from serving as local ombudsman entities.

Chapter 2: Ombudsman Programs

The 1987 OAA Amendments made significant improvements to the Title III provisions governing the long-term care ombudsman program (LTCOP). The major significance in 1992 was moving it to Title VII and providing its own authorization of funds. Prior to FFY 1993, funding for states’ LTCOPs came primarily from two sources: local AAAs’ award of Title III funds and state appropriations. SUAs had the authority to take off the top of their overall Title III-B allocation funds to directly support the LTCOP; California was one of the few states that did so. Title VII’s authorization resulted in annual federal appropriations to states specifically for their ombudsman programs, SUAs the wherewithal to ensure the stability and sustainability of their LTCOP.

We were concerned that with no guarantee of Congress appropriating funding for the new Title VII, and even if they did, it might result in some AAAs withdrawing or reducing their Title III-B funding of local ombudsman programs. To block this possibility, a provision added to Title III in the 1992 reauthorization required that AAAs, with respect to the LTCOP, “will expend not less than the total amount of funds … expended by the agency in fiscal year 1991 …” This meant that any new funds provided by Congress for Title VII would be in addition to what had previously been provided by AAAs, and keep such agencies engaged in the LTCOP.

Numerous other significant improvements were made to the Ombudsman Program in the 1992 amendments, building upon changes made in the 1987 reauthorization. These included new language addressing potential conflicts of interest among those who appoint ombudsmen, access to facility records including their administrative records, training, data collection, and other matters.

Another important addition to the statute made in 1992 regarding the LTCOP was in the part of the Act governing the AoA (now within the Administration for Community Living [ACL]). The amendments established at AoA a formal Office of Long-Term Care Ombudsman Programs to “be headed by an Associate Commissioner for Ombudsman Programs.” The new provision enumerated considerable responsibilities for this office, including, “serve as an effective and visible advocate on behalf of older individuals who reside in long-term care facilities within the Department of Health and Human Services and with other departments, agencies, and instrumentalities of the Federal Government regarding all Federal policies affecting such individuals.” Another duty is the “authority to investigate the operation or violation of any Federal law administered by the Department of Health and Human Services that may adversely affect the health, safety, welfare, or rights of older individuals.” This is a very significant responsibility, one for which its full potential is yet to be realized.

The new law authorized appropriations to states at $40 million nationwide for FFY 92 and “such sums” (as Congress is willing to provide) for the balance of the reauthorization period. The highest amount appropriated thus far for the LTCOP is just under $19 million in FFY 21, less than half of what was authorized in 1992. The gap between vision and reality remains huge for the Ombudsman Program.

Chapter 3: Programs for Prevention of Elder Abuse, Neglect, and Exploitation

The elder abuse prevention chapter of Title VII was a response to numerous Congressional hearings and legislative proposals concerning elder abuse, especially bills introduced several times to amend the OAA. It built upon language in Title III encouraging AAAs to engage in elder abuse prevention activities. Title VII directs the state to provide leadership and a direct role in elder abuse prevention activities rather than leaving it entirely to the discretion of local AAAs.

It authorized SUAs “to develop, strengthen and carry out programs for the prevention and treatment of elder abuse, neglect, and exploitation,” and detailed a series of activities that can be carried out, including, among others, public education and outreach, training, development of information and data systems (e.g., elder abuse reporting systems), and promoting the development of an elder abuse, neglect, and exploitation system in the state that includes immunity protection for those making reports of abuse.

There are several “elephant in the room” issues in Title VII. One of them is why Title VII did not incorporate states’ Adult Protective Services (APS) into its framework. The short explanation is that APS was outside the purview of the OAA because it was then state funded (sometimes using Social Services Block Grant [SSBG] funds) and typically not provided by SUAs or AAAs. Including APS in the OAA, in Title VII or elsewhere, would have meant establishing a program new to the Act, and would have required authorizing substantial new funds for a program that previously did not exist under the OAA.

The reauthorization wasn’t silent regarding APS. Under the new program, SUAs were responsible for “ensuring the coordination of services provided by AAAs with services instituted under the State adult protection service program.” And we required that “all information gathered in receiving a report (of abuse) … and making a referral … shall remain confidential except … if the release of such information is to a law enforcement agency, public protective service agency, licensing or certification agency, ombudsman program, or protection or advocacy system.”

The intent of Chapter 3 was for SUAs to provide leadership in developing, strengthening, and carrying out programs for the prevention and treatment of elder abuse, neglect, and exploitation, and promoting the development of an elder abuse, neglect, and exploitation system. The new program authorized the SUA to “designate a State entity to carry out the programs and activities described in this chapter.” A logical State entity would have been the State APS agency. I am unaware of a single state where this happened.

Instead, the response in most (if not all) states was to use the state’s intrastate funding formula to allocate a portion of the state’s Title VII elder abuse funds to each AAA. Considering the small sums of money appropriated for this chapter, the practical outcome of spending the new funds this way seems obvious: a very limited capacity to do much at all. Since 1993, the amount of annual funding for Chapter 3 has hovered around $5 million ($4.773 million since FFY 14).

There are 618 AAAs in the United States. Some states have many, others far fewer. Eight states have no AAAs. If the $4.773 million for elder abuse prevention were divided evenly among the AAAs (which it is not due to population size differences that can be considerable), the average amount of Title VII elder abuse prevention funding per AAA would be $7,723. Factoring the funding to the seven states without AAAs would reduce the average amount. Because of population size, some AAAs would get more and others even less. It is hard to make the case that these funds make much of a difference. The Title VII Elder Abuse Prevention Program provides states the opportunity to use a small amount of money in targeted ways at the state level or in specific communities where it may make a difference. Few if any states have chosen to do so. To be fair, I’m aware of several AAAs that have done remarkable work with their small allotments. No doubt there are others.

The original authorization for the elder abuse prevention program was $15 million, yet the appropriation has remained at about $5 million for three decades. That is appalling. I believe there are a couple reasons for this: 1) The Title VII elder abuse program’s impact remains virtually unknown, providing scant motivation for policy makers to spend more on it; and 2) The lack of meaningful advocacy by the aging sector for increased funding for the program. The first reason may well drive the second.

Chapter 4: State Elder Rights and Legal Assistance Development Program

Chapter 4 was intended to be a big-picture initiative to spur SUAs to provide leadership in securing and protecting the rights of vulnerable older Americans by strengthening the states’ systems of legal assistance for older adults, engaging a multitude of key players in doing so, including the courts, consumer protection agencies, state equal opportunity commissions, law schools, state bar associations, Attorneys General, and others.

The basic thrust of Chapter 4 was for the State to “establish a program to provide leadership for improving the quality and quantity of legal and advocacy assistance as a means for ensuring a comprehensive elder rights system.” A central requirement was to “establish a focal point for elder rights policy review, analysis, and advocacy at the State level including such issues as guardianship, age discrimination, pension and health benefits, insurance, consumer protection, surrogate decision-making, protective services, public benefits, and dispute resolution.” Moreover, the State was to “provide an individual who shall be known as a State legal assistance developer, and other personnel, sufficient to ensure” a variety of endeavors including “State leadership in securing and maintaining legal rights of older individuals.”

A second “elephant in the room” question about Title VII is why direct legal assistance services provided under Title III-B of the OAA was not incorporated into Title VII, as we did with the Ombudsman Program. We debated this extensively, ultimately electing to leave legal assistance as an obligation of AAAs to fund directly for two reasons. Moving legal assistance to Title VII would have meant having to authorize a significant amount of new funding for Chapter 4 that would likely not have been appropriated. The amount of funding of legal assistance by AAAs varied dramatically; we feared rolling that aggregate funding up into a new pot and distributing it to states under the interstate funding formula would result in less funding for local legal assistance programs in areas where their funding had been relatively generous.

A perhaps more significant reason for leaving direct legal assistance out of Title VII was because many Republicans in Congress were hostile to legal services for the poor, especially through the Legal Services Corporation (LSC). Many local Title III-B funded legal providers were LSC grantees. We were concerned that proposing major changes in the Act related to legal assistance would attract attention. To avoid risk of efforts that may adversely affect legal assistance under the OAA, we opted to not put a spotlight on legal assistance in the Act. To this end, we chose to leave legal assistance as is, and to give the SUAs tools to promote improved elder rights in their states, as well as more legal services.

If I had a theme song for Chapter 4 it would have been “High Hopes.” As the song goes, “Just what makes that little old ant think he’ll move a rubber tree plant … oops there goes another rubber tree plant.” We had high hopes for Chapter 4, envisioning that it would provide states with the basis for an amped-up version of the Advocacy Assistance and Civil Rights Office that I headed at CDA. It hasn’t turned out that way.

Most significantly, despite the original $10 million authorization, Congress has never provided any funds. Thus, SUAs could argue that without funding they couldn’t be expected to take on the advocacy roles it had established. However, their responsibilities under other parts of Title VII, as well as the major advocacy responsibilities of SUAs under Title III, should provide motivation to engage in more of these activities. The original notion of the legal assistance developer (LAD) when created by AoA and the enhanced role envisioned in Title VII, hasn’t panned out in many states, and has diminished in others. When I was a LAD (almost literally), AoA required a full-time lawyer for the position (AoA waived that for me). Many LADs now wear multiple hats (e.g., house counsel) so are not full-time LADs, and not all are attorneys. I regret we did not require LADs to serve in that capacity full-time and be an attorney.

Finally, and most regrettably, substantial provisions in Chapter 4, including the aforementioned provisions to “establish a program to provide leadership for improving the quality and quantity of legal and advocacy assistance as a means for ensuring a comprehensive elder rights system,” and to “establish a focal point for elder rights policy review, analysis, and advocacy at the State level,” were later removed from the OAA without any ballyhoo from any quarter that I know of. Repealing those provisions likely erodes any hope for a future appropriation for Chapter 4.

Chapter 5: Outreach, Counseling, and Assistance Program [Repealed]

The 1987 reauthorization changed “information and referral” services to “information and assistance” (I&A) to promote a more proactive and responsive approach to assisting older people. This chapter was about I&A on steroids, calling for far more proactive efforts to help people access public entitlements, including helping them file claims and obtain benefits in a variety of programs and forms of insurance, including Medicare, Medicaid, Medicare supplemental policies, other private insurance programs, OASDI, SSI, SNAP, LIHEAP, long-term care insurance and other state-based insurance and public benefits programs, and pension plans.

Among activities to be taken under this program were establishing a system of referrals to legal assistance providers and other officials regarding problems of older individuals related to the specified programs; giving priority to those in the greatest economic need; coordination with other programs under Title VII; and making recommendations related to consumer protection related to public benefits.

The SUA had the option of operating “the State insurance assistance program and the State public benefits assistance program directly, in cooperation with other State agencies, or under an agreement with a statewide non-profit organization, an AAA, or another public or nonprofit agency or organization.” Title VII authorized $15 million for Chapter 5, and unlike Chapter 4, almost immediately got a small appropriation. It was short-lived, however. Following the 1994 midterm elections when Republicans regained the House of Representatives, they sought to eliminate some federal programs, successfully repealing several including Title VII’s public entitlements/benefits Outreach, Counseling and Assistance Program.

The repeal saddened me. It eliminated an important part of Title VII, which had been thoughtfully constructed to authorize a series of programs to help older Americans access and maintain benefits to which they were entitled, resolve consumer problems associated with those programs, and to protect and enhance individual rights of elders. My disappointment has been tempered by the emergence of other programs that attempt to achieve what Chapter 5 had intended, including the Senior Health Insurance and Assistance Program (SHIP), which focuses primarily on Medicare, the Medicare Improvement for Patients and Providers Act (MIPPA), also mostly related to Medicare, and Aging and Disability Resource Centers. Plus, infinitely more information is available through the internet than was in 1992 (for those who are internet savvy). But there is no overarching program in each state intended to access and help resolve such consumer problems as intended under Title VII.

Subtitle B: Native American Organization and Elder Justice Provisions

The five programs discussed are within Subtitle A of Title VII. The brief Subtitle B was intended to provide the foundation for elder rights efforts for American Indians and Alaska Natives. It requires AoA to establish a program for 1) assisting eligible entities, defined as Indian tribes or public agencies or nonprofit organizations serving older individuals who are Native Americans, “in prioritizing, on a continuing basis, the needs of the service population of the entities relating to elder rights;” and 2) “making grants to eligible entities to carry out vulnerable elder rights protection activities that the entities determine to be priorities.”

Unlike many federal programs directed at American Indians and Alaska Natives; it would be possible to serve through the envisioned grants Indian elders who live away from tribal lands. So-called “urban Indians” today account for the great majority of the nation’s Native population. In this regard Title VII was ahead of its time. It included an initial $5 million authorization, but Congress has not provided a penny. Yet, this part of Title VII remains in the statute. This neglect is tragic. Moreover, tribes do not have direct access to SSBG funds, and thus haven’t been able to use these funds for SSBG services, including APS.

To its credit, ACL supports through its discretionary funds the Native American Elder Justice Initiative to help tribes address elder abuse and elder justice issues. This is much more limited than intended in Title VII, but it is important.

Other Elder Rights Provisions Elsewhere than Title VII

Other amendments addressing elder rights were included in the 1992 reauthorization. Title II amendments required AoA to establish a formal Office of Long-Term Care Ombudsman Programs to “be headed by an Associate Commissioner for Ombudsman Programs.” The National Ombudsman Resource Center and the National Center on Elder Abuse were both added to Title II.

Title III was amended to require that area plans contain “assurances that AAAs will give priority to legal assistance related to income, health care, long-term care, nutrition, housing, utilities, protective services, defense of guardianship, abuse, neglect and age discrimination.” This provision was to ensure AAAs handled essential legal issues faced by low-income and disadvantaged older adults, like evictions and denials of coverage.

Providers of in-home services under Title III were required to promote the rights of each older individual receiving such services including, among others, “the right to voice a grievance … without discrimination or reprisal.”

Several major elder rights–related demonstration programs were included in Title IV, including a housing ombudsman demonstration, foreclosure and eviction assistance, and pension rights projects. The Pension Rights Demonstration Projects were highly successful and led to the National Pension Assistance Resource Center which remains funded by ACL to this day.

Needless to say, as an architect of Title VII, I saw a great need for more advocacy provisions to protect the rights of vulnerable older Americans. We had high hopes for the new title. Much has been achieved through Title VII but much more can be done. I still believe advocacy is at heart of the Older Americans Act and can and should be strengthened in future reauthorizations.

William F. Benson has worked in aging and health for almost five decades. He has served in various capacities in State government and Congress, including at the Subcommittee on Aging of the Senate Labor and Human Resources Committee, the Subcommittee on Housing and Consumer Interests of the House Select Committee on Aging, and the Senate Special Committee on Aging. From 1993 to 1998, Benson was Deputy Assistant Secretary at AoA and in 1997 served as acting Assistant Secretary for Aging. He now leads Health Benefits ABCs, a consulting firm specializing in aging, disability, and health policy, and as president of the International Association for Indigenous Aging.

References

American College of Health Care Administrators. (1992). Long-Term Care Administrator (August/September).