Office of Legal Affairs External Opinions
Office of the General Counsel
External Opinion: 99-08
Reporting Requirements of 45 C.F.R. § 1609
Ernesto G. Sanchez, Executive Director
Idaho Legal Aid Services, Inc.
P.O. Box 913
Boise, Idaho 83701
Re: Reporting Requirements of 45 C.F.R. § 1609
Dear Mr. Sanchez:
This letter is in response to your letter dated March 8, 1999. In that letter, you questioned whether the reporting requirements currently used by Idaho Legal Aid Services was both required or necessary, as it is your opinion that the current documentation is somewhat burdensome.
There are several points in your letter that can be addressed by reviewing the language of 45 CFR Part 1609.
The purpose of Part 1609, regarding fee-generating cases, is to ensure that recipients do not use Legal Services resources when private attorneys are available to provide effective representation. See 45 CFR § 1609.1. A fee-generating case is defined by the regulations as a case which, if accepted by a private attorney, would result in a fee from an award to a client. See id. at § 1609.2(a). This award can be from either public funds or from the opposing party. See id. at § 1609.2(b).
SSI and Title II Social Security are clearly types of cases that meet the definitional requirements under the regulation to qualify as a fee-generating case. Representation on behalf of a client for these types of cases would conceivably result in an award from public funds, as the clients’ suits will result in a monetary award. If that client attempted to secure representation from a private attorney, that client could expect to have a percentage fee deduction from a backpay award.
Recipients are required to first attempt to refer a fee-generating case to private attorneys before taking on such a case. See id. at § 1609.3(a). SSI and Title II Social Security cases are exempt from this requirement under 45 CFR § 1609.3(b)(1). Although this section exempts the recipient from first attempting to refer the case, nowhere in this section does it state that these types of cases are exempt from reporting requirements. Indeed, § 1609.4 requires recipients to "maintain records sufficient to document the recipient’s compliance with this part." See id. at § 1609.4.
Additionally, Legal Services Corporation is authorized to require any reports it deems necessary to carry out the activities required by the Legal Services Corporation Act. See Legal Services Corporation Act of 1974, 42 U.S.C. § 2996(g) (codified as amended). This includes reporting requirements necessary to carry out the Corporation’s rules, regulations, guidelines, and instructions. As a Corporation regulation, § 1609.3(b) is also subjected to the reporting requirements of the LSC Act in order to ensure compliance with the Corporation’s regulations.
Our office did review the form that must be filled out regarding fee-generating cases, required by the Corporation’s guidance. It is a one-page document that requires a box to be checked in section B of the form. While this does not appear to be overly burdensome, our office has forwarded a copy of you letter to our Office of Compliance and Enforcement. That office can better address your concerns regarding the policy and rationale behind the reporting requirement.
I hope this letter addresses your concerns. Please let us know if you need any additional assistance on the legal aspect of your inquiry.
/s/ Suzanne B. Glasow
Senior Assistant General Counsel