July 22, 1999 | Backgrounder on Legal Issues
The Legal Services Corporation (LSC) is a federally funded agency with 269 grantee offices around the country that have provided over $6 billion of free legal aid to the eligible poor since 1974. For fiscal year (FY) 2000, the LSC is requesting a $40 million increase, to bring its funding level to $340 million. This represents about a 13 percent increase in agency funding at a time when the U.S. General Accounting Office (GAO), the LSC's own inspector general, and the press have uncovered serious problems with the agency's case reporting statistics and performance numbers. Audits of the LSC's 1997 caseload data for 11 grantee offices--which reported handling 370,000 cases--determined that only 198,000 were valid.1
Until Congress receives accurate information about the performance of the Legal Services Corporation's grantees, it cannot hold the agency accountable for its performance and its use of taxpayer dollars. Congress should demand that all LSC programs supply timely and accurate data on program performance; it also should require independent audits and conduct investigative hearings. In addition, Members of Congress should ask whether it is even appropriate for the federal government to be funding this program. If it is not, they should consider closing down the LSC by transferring its funding to the Department of Justice, with a strict formula for block granting those funds to the states based on the number of poor in each jurisdiction. The responsibility for providing legal services to the poor belongs more appropriately to state and local officials and to private-sector institutions--those closest to the people in need of assistance.
The LSC Factbook is a benchmark of LSC performance figures not only for Congress, but for states and private funding sources as well. In its 1998 Factbook,2 the most recent issue available to Congress, the LSC reported that a total of 1,932,613 poor people were aided.3 (See the Appendix for the 1998 Factbook's 1997 case statistics for specific congressional districts.)
After egregious errors in the 1998 Factbook numbers were reported in the press, however, the LSC was compelled to admit that it had not served as many clients as it had reported. An April 1999 LSC press release noted 400,000 fewer cases closed in 1997 than were reported in the 1998 Factbook.4 The agency also amended its 1998 projections, revising them downward. The LSC soon will deliver its 1998 data to Congress in the 1999 Factbook. Until additional audits are completed, no one can know with any certainty what the agency has accomplished with the taxpayer dollars that Congress has appropriated in the past.
The LSC's representation of its open and closed cases is important, because it is the only tangible information currently available to Congress on the agency's overall performance. Until this year, Congress has never seriously questioned the accuracy of LSC's numbers.
As Congress considers funding for the LSC within the Commerce, Justice, State, the Judiciary, and Related Agencies appropriation bill, it should seek credible, factual performance information that justifies the Administration's substantial budget request, especially in light of the LSC's previous misreporting of data.
Congress relies increasingly on performance measures, such as the number of clients served by the Legal Services Corporation, to decide whether funding for the agency's programs should be increased or decreased. Congress should specify better performance measures that would include credible data on the quality, and not simply the quantity, of the services the LSC provides to the poor. Indeed, Members of Congress--especially appropriators--look at the performance of programs to determine whether a program is working efficiently and achieving its goals. As Representative Harold Rogers (R-KY), chairman of the House Appropriations Subcommittee on the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies, told the LSC in March 1999, "We want accurate information.... We do make our judgments based on the volume of the load that is represented to us."5
In December 1998, the Congressional Research Service (CRS) produced a study that examined the extent to which the past two Congresses had used the 1993 Government Performance and Results Act, a tool for measuring the success or failure of government programs and holding agencies accountable for their use of taxpayer funds. The study, requested by House Government Reform and Oversight Committee Chairman Dan Burton (R-IN), examined provisions in public laws enacted during the 104th and 105th Congresses. According to the CRS:
There are...indications that committees are interested in using performance-related information in the appropriations process and associated budget documentation. Over a third of all the committee reports identified in [our study] contained provisions linking performance measures and the budget process. Such provisions either stated the intent of the committee to consider the agency's progress in articulating outcome goals and measures during the appropriations process, suggested that the agency's budget submission include Results Act-related information and measures, or referred to realignment of program and budget structures in an agency's budget submission.... In addition, many reports included language that noted that future funding for an activity or program would be contingent upon establishing goals and measures or upon future performance against established goals.6
Case statistics play an essential role in the budget request and performance plan submitted by LSC to the United States Congress each year. Therefore, the reliability of case statistics submitted by programs to LSC is vital to obtaining continued Federal funding for Legal Services.... We believe this type of information...holds great promise for securing increased federal funding for legal services.7
Congress appears to base its funding of the Legal Services Corporation on the agency's reported caseloads. The LSC then distributes the money to grantees based on a formula that takes local poverty statistics into account.
As a key funding source and manager of taxpayer dollars, Congress must have access to trustworthy LSC data about caseloads, clients, and agency operations. If the LSC cannot provide dependable information on even the quantity of cases handled by its offices, there is little hope that Congress can obtain more sophisticated and meaningful quality performance information on this government service.
The demand for accountability pressures government officials to define and then demonstrate their performance, particularly when programs are seriously deficient. As one former LSC employee recently lamented, for example:
For more than 20 years I worked at a small Legal Services Corporation-funded program and the work was immensely rewarding. But in 1996, when I was the program's litigation director, I quit due to the many practices and policies which, to my mind, had all but destroyed the program's ability to render competent legal assistance to people unable to afford counsel. One of these practices was the counting of virtually every telephone call as a "case" in order to build up numbers to report to LSC and other funding sources. Consequently, hundreds if not thousands, of reported cases were nothing more than referrals or other responses given by paralegals or secretaries.8
For FY 1999, LSC seeks an appropriation of $340 million. We estimate that this amount will enable local legal services programs funded by LSC to resolve over 1.6 million cases involving critical legal problems for eligible clients and their families.... Because of limited resources, local programs are forced to turn away tens of thousands of people with critical legal needs.9
Although Congress did not know about the caseload reporting problems, appropriators approved a $17 million increase for the LSC on October 21, 1998, bringing its FY 1999 budget to $300 million. Congress provided the funding with an expectation that the additional money would enable the LSC to serve 1.6 million clients in calendar year 1998. According to the LSC president, this new funding
represents the strong bipartisan backing that LSC has developed, and signals a renewed confidence that LSC is carrying out the will of Congress and is a vital part of the justice system. The increase will allow LSC-funded programs to serve a greater number of poor and disadvantaged clients more effectively in 1999.10
Concerns about the LSC's misrepresentation of its actual caseloads began to build after the agency's inspector general began in March 1999 to release the results of several audits. Since the IG has a dual reporting responsibility--both to the LSC Board and to Congress--the IG should have informed Congress of the seriousness of the errors found in the data. For example, of 149,589 cases reported for 1997 by six grantee offices, two-thirds were found to be invalid (see Table 1).
The reporting problems found in every program audited by the LSC's own inspector general and the U.S. General Accounting Office since the 1997 case statistics were reported raise concerns about systemic LSC performance deficiencies and reporting abilities. According to the IG17 and GAO18 audits, LSC performance numbers included:
Upon learning of the inspector general's preliminary audits, newspapers and editorial pages began to report on the LSC's problems. On April 8, 1999, for example, the Associated Press released a story documenting the problems that the IG had begun to acknowledge in March 1999. The news story indicated that some Members of Congress were concerned that the LSC might have misrepresented the number of cases it handled intentionally in order to secure additional funding.19 Following the AP story, several editorials in newspapers across the country criticized the LSC for its errors.
On March 3, 1999, during an annual appropriations oversight hearing, Representative Tom Latham (R-IA) began to ask questions about the LSC's veracity in reporting its caseload. The hearing was significant not only because it was the first time that LSC's numbers had been challenged by a Member of Congress, but also because it established clearly the committee's interest in linking the budget request to the agency's performance. In a follow-up written response to Latham's questions, the LSC's IG admitted that the agency's reported caseload figures are used for the annual budget request submitted to Congress.20 This admission heightened concerns in Congress and eventually precipitated a congressionally requested GAO audit of LSC grantees.
On May 3, 1999, five Members of Congress21 asked the U.S. General Accounting Office to continue to conduct random audits of LSC programs to collect additional facts before this year's allocation of tax dollars to the LSC. Congress asked the GAO to provide preliminary results of audits on five grantees by June 21. On June 25, 1999, the GAO reported that all five grantees audited had problems accurately reporting the number of cases handled. This reinforced the findings of the IG's own audits.
As Table 2 shows, the grantees overreported closed cases, and four of the five grantees overreported open cases. The operations of all five grantees included cases in which the eligibility of clients was not verifiable. In addition, the GAO reported that four of the five offices reported closed cases in which no activity had occurred during the past year, and five reported open cases where no activity had occurred during the past year.22
Officials of the LSC, including the agency's president, were aware of the grantee reporting errors months before Congress was informed. In the summer of 1998, the LSC's president was informed of the audit findings of case reporting problems.23 In September 1998, the inspector general informed some of his staff that "the numbers provided to Congress were inaccurate." The LSC, however, did not plan to release this information until March 2000, when its first Performance Report under the 1993 Government Performance and Results Act is due.24
By late 1998, the LSC should have viewed the audit findings as serious enough to bring to the attention of Congress, especially since Congress at the time was debating whether to increase LSC funding for FY 1999 by $17 million. The IG, knowing that the LSC did not plan to inform Congress of significant errors in its reported data, should have informed Congress of what the auditors were finding. Instead, the semiannual report issued by the inspector general on September 30, 1998, reported "no significant problems, abuses or discrepancies" in LSC programs.25
Our Inspector General is here in the audience, and I would hesitate to speak for him, but it was very clear that, based on the strength of oral advice, from him to me, beginning actually in the summer of 1998, that we [the LSC] had a problem concerning the accuracy of the cases.26
Why this serious problem was not reported to Congress is the heart of the issue. Indeed, in April 1999, the LSC revised downward its public estimates of the numbers of clients served in 1997 using taxpayer dollars,27 even though it was asking all grantee offices to increase the types of cases they report for the next Factbook.28
The LSC sent new guidance to all grantees to modify future methods for reporting cases.29 One of the many changes required would have the effect of helping each program to report more cases. This subtle yet important change requires each LSC program to report cases on which it has worked regardless of funding sources. Since 40 percent of the funding for most LSC grantees typically comes from non-federal sources--states, bar associations, or other private or public sources--this change not only will have the effect of inflating some of the future caseload numbers, but also will make it difficult to compare data relating to LSC's performance.
In May 1999, following congressional inquiries and the April AP story, the LSC sent out another letter advising all grantees that, among other things, a GAO audit was underway concerning the data they already had reported for 1997.30 It asked program directors to affix their signatures attesting to the accuracy of their case statistics for 1998 because these figures would be compiled for the 1999 Factbook (which, because the LSC Factbooks typically are published in May of each year, is now overdue).
Official denials of systemic reporting problems by the LSC have involved the following claims:31
Each of the 11 LSC programs reviewed by an independent auditor--either the LSC's inspector general or the GAO--showed false case reporting problems. Specifically, the IG identified problems at Northern Virginia, Houston, San Diego, Miami, Florida Rural, and San Francisco.32 The LSC self-identified similar problems at Alameda, Central Michigan, Los Angeles, and Western Carolina. Of 25 randomly selected cases audited at Farm Workers Legal Services of North Carolina, nearly all lacked data critical to determining whether the clients helped were indeed eligible for federal aid.33 The GAO reviewed five additional programs, each one of which involved similar errors.34
Because each new review of the LSC's 1997 data reveals broad miscounting and overreporting, all numbers provided by the LSC are now viewed with skepticism. The LSC has taken steps to change the method for developing caseload estimates for Congress by asking offices to increase the types of cases handled, even if they are not funded by federal tax dollars. This will make annual comparisons of LSC caseload data, as well as performance measures for federally funded programs, nearly impossible.
The LSC has not engaged in candid self-disclosure of problems with its 1997 case statistics. The gap in time between when the IG and the LSC leadership learned there was a problem and when Congress was advised of that problem is unacceptable. Moreover, the LSC's request for a $40 million increase in its FY 2000 budget--based on the same overinflated estimates from the disputed 1997 case statistics, and after LSC's president had been informed of the problem--is itself nothing short of fraudulent.
Nothing prevents the LSC or its IG from advising Congress of discrepancies found in data used to award taxpayer funding. In fact, compliance with the 1994 Government Auditing Standards requires the IG to advise Congress and management whenever there is a need for timely reports.35 These standards encourage interim or oral reports to stimulate, not stymie, information flowing to policymakers.
The timeline shows that the LSC and its own inspector general knew of the emerging case reporting problems and did nothing to inform Congress. In late 1998, Congress voted an increase in federal funding for the LSC by relying on information the LSC knew to be false, and on its exaggerated claims of its performance. As late as March 1999, the LSC was still using these unreliable data in its requests for additional funds from Congress.
LSC CLAIM #6:
Case numbers and performance information have no bearing on funding levels. Specific allocations are based on the eligible populations living in each service area, not on the number of cases handled or referred. Therefore, there is no incentive to inflate numbers.
The LSC, Congress, and even LSC grantees use performance or caseload numbers to influence funding from federal and non-federal sources. The agency's own five-year strategic plan for 1997-2002 established as an annual goal "[to] seek to provide high-quality legal services to the greatest number of eligible clients that our appropriation will support."36 According to the LSC's president:
Case statistics play an essential role in the budget request and performance plan submitted by LSC to...Congress each year. Therefore, the reliability of case statistics submitted by programs to LSC is vital to obtaining continued Federal funding for Legal Services.... [T]his type of information...holds great promise for securing increased Federal funding....37
No one denies that the less privileged in society benefit significantly from free legal assistance. However, the LSC services only about 5 percent of the eligible poor. The lives of thousands of people have been improved by the efforts of pro bono attorneys and the ad hoc network of organizations and people, such as private foundations, churches, and synagogues, that have stepped up to assist the poor when they are in need. Unfortunately, however, the federal program to help the poor with legal assistance--the Legal Services Corporation--has shown itself to be deceptive in measuring its performance and impervious to efforts to institute accountability.
|What Members of Congress Should Ask in
For this reason, the first question Congress should ask is whether the federal government should be running this program at all. If it is decided that providing legal services to the poor is not appropriately a federal function, Congress should consider devolving this responsibility to the states, local governments, and private-sector institutions and putting the LSC on a clear path toward eventual shutdown.38
To accomplish this, Congress should transfer funding for legal services for the poor to the Department of Justice, with a strict formula for block-granting funds to the states based on the number of poor in each jurisdiction. Block grants not only would eliminate federal overhead, but also would permit states to institute their own accounting standards for grantees and allow them to conduct their own audits. Recent strides in welfare caseload reduction at the state level--driven in large part by the autonomy of the states to design appropriate welfare-to-work transitioning programs--have emboldened Washington to return to the states the responsibility for other federal programs once thought too large or cumbersome for states to handle. Washington should acknowledge that state and local leaders who know best how to serve the legitimate and critical legal needs of the poor are in a better position to design the most efficient system and provide quality services to those in need.
Alternatively, if it is decided that the Legal Services Corporation does represent a proper federal function, Congress should establish the criteria for evaluating the LSC's performance, including case statistics. In the short term, Congress should:
- Require an annual independent audit of LSC case statistics, either by the GAO or by an outside contractor, to obtain a verifiable and accurate accounting of LSC performance. Audits should begin by verifying 1997 and 1998 data, since only 11 of the 269 grantee offices have been audited for their 1997 caseloads to date.
- Preventthe LSC from administratively changing the definition of "reportable" cases to avoid accurate assessments of performance. The LSC's new administrative guidance to grantees in November 1998 will do just that. Congress should specify how it wishes the LSC to track federal funds and performance data.
- Apply the Federal False Statements Act to the LSC and its grantees to prevent future misrepresentation of facts during the appropriations process. This act would allow penalties for misreporting data about caseloads or clients served with federal taxpayer dollars.
In 1993, Congress passed and the President signed the Government Performance and Results Act with bipartisan support and the Clinton Administration's stamp of approval. The act codified Washington's desire to hold federal programs accountable for their performance and use of taxpayer dollars.
This law is useless, however, unless Congress can rely on the information provided by federal agencies. Until Congress receives accurate information about the performance of Legal Services Corporation grantees, it will continue to be unable to hold the LSC accountable. Congress should demand that all LSC programs supply timely and accurate data on program performance, and it should require independent audits and hold new investigative hearings to determine the reliability of information supplied by the LSC.
In the LSC's case especially, Members of Congress must be tenacious in seeking and obtaining the facts before spending more taxpayer dollars. The LSC's functions are carried out better and more appropriately by the states, localities, or private organizations. Until Congress can eliminate funding for this agency, however, enhanced congressional oversight is needed. With better information about the LSC's performance, Congress can assess the cost-effectiveness of the agency's delivery of services compared with other options to improve legal assistance to the poor.
Virginia L. Thomas is a Senior Fellow in Government Studies and Ryan H. Rogers is a former Research Assistant in Government Studies at The Heritage Foundation.
Legal Services Corporation Grantee Caseloads
A Column Has Been
Included for 1998 Numbers When They Become Available
Source: Legal Services Corporation, Office of Inspector General, and Office of Information Management
Click on the appropriate link below to see the corresponding chart.
1. U.S. General Accounting Office, Legal Services Corporation: Substantial Problems in 1997 Case Reporting by Five Grantees, GAO/GGD-99-135R, June 25, 1999, and associated material included in "Briefing to Congressional Requesters," June 21, 1999; Karen Gullo, "Legal Aid Programs Overstated Cases," Associated Press, April 8, 1999. See also Legal Services Corporation, Office of the Inspector General, Review of Case Statistics Report, AU99-012, March 1999; Review of Case Statistics Report, AU99-013, March 1999; General Review of Selected Parts of the Legal Services of Northern Virginia's 1997 Grant Activity Report and Timekeeping System and Its Compliance with Selected Regulations, AU99-001, October 1998.
2. Legal Services Corporation, 1998 Factbook & Program Information, at http://www.lsc.gov/fbtoc98.html. Each year, the Legal Services Corporation provides Congress with a Factbook which includes data on the number of clients served, the number of private attorneys participating in LSC-sponsored programs, the amount of federal and non-federal funding, and the number of full-time staff. Figures included in any given Factbook represent data for the previous calendar year. The 1998 Factbook, for example, reports figures for calendar year 1997. The 1999 Factbook is not yet published.
3. The Legal Services Corporation's 1998 Factbook, issued in May 1998, claimed that 269 grantees had 471,600 cases open and 1,461,873 cases closed at the end of 1997, serving a total of 1.9 million poor people with $283 million in federal funds. Eligibility for assistance is found in Section 1007(a)(2) of the Legal Services Corporation Act, which requires the LSC to establish maximum income levels for individuals eligible for legal assistance. Section 1611.3(b) of LSC's regulations establishes a maximum income level equivalent to 125 percent of the federal poverty guidelines. Since 1982, the Department of Health and Human Services has been responsible for updating and issuing the poverty guidelines.
4. Legal Services Corporation, Office of Public Affairs, press release, "Statement on Case Reporting System," April 8, 1999, available at http://www.lsc.gov/prcsr.html.
5. Statement of Representative Harold Rogers, Chairman, Subcommittee on the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies, Committee on Appropriations, U.S. House of Representatives, at FY 2000 appropriations hearing, March 3, 1999.
6. Genevieve J. Knezo and Virginia McMurtry, "Executive Summary," Performance Measure Provisions in the 105th Congress: Analysis of a Selected Compilation, Congressional Research Service, December 1998, at http://www.freedom.gov/results/crs/getsresults-sum.asp.
7. Legal Services Corporation, "A Message from LSC President John McKay," February 2, 1999. This document originally was available at http://www.lsc.gov/fl1298jm/html, but no longer is posted on the LSC Web site.
9. Statement of Douglas S. Eakeley, Chairman, John N. Erlenborn, Vice-Chairman, and John McKay, President, Legal Services Corporation, before Subcommittee on the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies, Committee on Appropriations, U.S. House of Representatives, February 25, 1998, p. 1.
14. Robert P. Capistrano, Director of Litigation, San Francisco Neighborhood Legal Assistance Foundation, in a letter to the Legal Services Corporation concerning revised 1997 case service reports, December 30, 1998.
15. Legal Services Corporation, Office of the Inspector General, General Review of Selected Parts of the Legal Services of Northern Virginia's 1997 Grant Activity Report and Timekeeping System and Its Compliance with Selected Regulations, AU99-001.
17. Legal Services Corporation, Office of the Inspector General, Review of Case Statistics Report, AU99-012; General Review of Case Statistics Report, AU99-013; General Review of Selected Parts of the Legal Services of Northern Virginia's 1997 Grant Activity Report and Timekeeping System and Its Compliance with Selected Regulations, AU99-001. See also Gullo, "Legal Aid Programs Overstated Cases."
20. Answer No. 8 given by Legal Services Corporation management to a question posed by Representative Tom Latham (R-IA) following March 3, 1999, House Appropriations Subcommittee hearing on LSC's funding request for FY 2000; submitted to select chairmen in the House and Senate on March 31, 1999, by E. R. Quatrevaux, Inspector General, LSC.
24. "LSC Inflated Workload While Demanding More Tax Funding," Human Events, May 7, 1999; e-mail to a few IG staff from LSC Inspector General Edouard Quatrevaux, September 23, 1998; responses to questions submitted after March 3 House Appropriations Subcommittee hearing by Representatives Tom Latham, Dan Miller, and Charles Taylor.
31. John Erlenborn, Vice Chairman Board, Legal Services Corporation, letter to the editor, The Washington Times, May 1, 1999; Legal Services Corporation, "Statement on Case Reporting System," April 8, 1999.
32. Legal Services Corporation, Office of the Inspector General, Review of Case Statistics Report, AU99-012; General Review of Case Statistics Report, AU99-013; General Review of Selected Parts of the Legal Services of Northern Virginia's 1997 Grant Activity Report and Timekeeping System and Its Compliance with Selected Regulations, AU99-001.
35. Standard 7.6 states: "Auditors should appropriately issue the reports to make the information available for timely uses by management, legislative officials and other interested parties." See U.S. General Accounting Office, "1994 Revision by the Comptroller General of the United States," Government Auditing Standards, GAO/OCG-94-9, June 1994. An interactive version of the document, called The Yellow Book, is available at http://www.ignet.gov/ignet/internal/manual/yellow/yellow.html#index.
36. Legal Services Corporation, Strategic Plan, 1997-2000, p. 9, at http://www.lsc.gov/spv01.html.
38. For more information on devolving and privatizing Legal Services Corporation functions, see Edwin Meese III, "Legal Services Corporation," in Scott A. Hodge, ed., Balancing America's Budget: Ending the Era of Big Government (Washington, D.C.: The Heritage Foundation, 1997), pp. 389-390; Kenneth F. Boehm and Peter T. Flaherty, "Why the Legal Services Corporation Must Be Abolished," Heritage Foundation Backgrounder No. 1057, October 18, 1995; Kenneth F. Boehm, "The Legal Services Corporation: New Funding, New Loopholes, Old Games," Heritage Foundation Backgrounder Update No. 276, May 17, 1996.
39. Possible forums would include the House Judiciary Committee or its Subcommittee on Commercial and Administrative Law; the Senate Health, Education, Labor and Pensions Committee; the House Government Reform Committee or Senate Governmental Affairs Committee; and the House Appropriations Subcommittees on Commerce, Justice, State, and Judiciary or Senate Appropriations Subcommittee on Commerce, Justice, State, and Judiciary.