New Mexico Register / Volume XXXVI,
Issue 18 / September 23, 2025
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, 9.2.17.1 NMAC, 09/23/2025]
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, 9.2.17.2 NMAC, 09/23/2025]
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, 9.2.17.3 NMAC, 09/23/2025]
9.2.17.4 Duration: Permanent.
[9.2.17.4 NMAC -
Rp, 9.2.17.4 NMAC, 09/23/2025]
9.2.17.5 Effective date: September 23,
2025, unless a later date is cited at the end of a section.
[9.2.17.5 NMAC -
Rp, 9.2.17.5 NMAC, 09/23/2025]
9.2.17.6 Objective: The objective of
this rule is to establish the requirements for legal assistance services
required under the Older Americans Act.
[9.2.17.6 NMAC -
Rp, 9.2.17.6 NMAC, 09/23/2025]
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” pursuant
to the Older Americans Act and its implementing regulations means legal advice
and representation provided by an attorney to older individuals with economic
or social needs; and may include, 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” means the use of the income, assets, or other resources of an older
person, family caregiver, or the households thereof to deny or limit that
person’s eligibility to receive services under this part.
E. “Defense of Guardianship” in
this section means advice to and representation of older individuals at risk of
and subject to guardianship as defined in 45 C.F.R. Section 1321.93(d).
[9.2.17.7
NMAC - Rp, 9.2.17.7 NMAC, 09/23/2025]
9.2.17.8 Legal references: [RESERVED]
[9.2.17.8
NMAC - Rp, 9.2.17.8 NMAC, 09/23/2025]
9.2.17.9 Allowable services:
A. Providers of legal assistance,
funded by the department, must provide such services to New Mexicans age 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 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, 9.2.17.9 NMAC, 09/23/2025]
9.2.17.10 standards and requirements for legal
assistance providers: The area agencies on aging shall award, through
contract funds, only to legal assistance providers that meet the standards and
requirements set forth in this section and in the implementing regulations of
the Older Americans Act. Attorneys and
personnel of legal assistance providers shall adhere to the applicable rules of
professional conduct, including the obligation to preserve the attorney-client
privilege, and selected legal assistance providers shall exhibit the capacity
to:
A. demonstrate expertise and retain
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
guardianship, protective services, age discrimination, health care, long-term care, nutrition, housing, utilities, consumer law, and abuse
and neglect;
B. develop
and implement outreach efforts designed to identify and serve targeted
populations that includes information about the
availability of legal assistance;
C. provide
administrative and judicial representation in the specific areas of law
affecting older individuals in greatest economic and greatest social need;
D. provide legal services to older
individuals residing in congregate residential long-term settings, or who are
isolated, or who are restricted to the home due to cognitive or physical
limitations;
E. 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. provide
support and advice to the long-term care ombudsman program, including requiring
a memorandum of agreement between the state long-term care ombudsman program
and the legal assistance provider(s) as required under the Older Americans Act;
G. provide
support to aging network elder rights initiatives;
H. provide
support to other advocacy efforts, adult protective services, and protection
and advocacy and public guardianship programs; and
I. demonstrate
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, 9.2.17.10 NMAC, 09/23/2025]
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, 9.2.17.11 NMAC, 09/23/2025]
9.2.17.12 Means test and targeting:
A. Legal
assistance providers shall 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 or 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.
C. Area agencies on aging are precluded
from requiring a pre-screening of older individuals seeking legal assistance or
from acting as the sole and exclusive referral pathway to legal assistance.
[9.2.17.12
NMAC - Rp, 9.2.17.12 NMAC, 09/23/2025]
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, 9.2.17.13 NMAC, 09/23/2025]
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, 9.2.17.14 NMAC, 09/23/2025]
9.2.17.15 DEPARTMENT
RESPONSIBILITIES:
In addition to the requirements set forth in this section, the
department shall adhere to the provisions and restrictions that apply to legal
assistance funded by and provided pursuant to the Older Americans Act and its
implementing regulations. The department
shall publish policies and procedures in accordance with the requirements set
forth in 45 C.F.R. Section 1321.93.
[9.2.17.15 NMAC - N, 09/23/2025]
9.2.17.16 ADEQUATE
PROPORTION FUNDING:
The area agencies on aging shall award at a minimum the required
adequate proportion of Title III, part B funds designated by the department to
procure legal assistance for older residents of the planning and service area
as set forth in 45 C.F.R. Sections 1321.27 and 1321.65.
[9.2.17.16 NMAC - N, 09/23/2025]
9.2.17.17 AREA
AGENCY CONTRACTS FOR LEGAL ASSISTANCE: The area agencies on aging shall enter
into contract(s) with the selected legal assistance provider(s) in
accordance with the department’s policies and procedures and with the Older
Americans Act and its implementing regulations.
[9.2.17.17 NMAC - N, 09/23/2025]
9.2.17.18 LEGAL
ASSISTANCE PROVIDER RESPONSIBILITIES AND REQUIREMENTS: Contracted
legal assistance providers shall adhere to the requirements, restrictions, use
of funds, and prohibitions set forth in these rules and in 45 C.F.R. Section
1321.93.
[9.2.17.18 NMAC - N, 09/23/2025]
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.
9.2.17 NMAC, Legal
Assistance Services filed 6/17/2015 Repealed effective 09/23/2025.
Other: 9.2.17 NMAC, Legal Assistance Services
filed 6/17/2015 Replaced by 9.2.17 NMAC, Legal Assistance Services effective
09/23/2025.