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Section 206-Model State Laws and Practices
REASONS FOR CHANGE
State laws relating to elder abuse, neglect, and exploitation vary considerably from State-to-State. Similarly, the States' enforcement procedures and other practices differ considerably, as well. To date there has been no comprehensive description and comparative analysis of these laws and practices. Nor has a compendium of model State laws been prepared. The report should include recommendations to inform the efforts of other States contemplating what types of legislation to enact, and in or determining policy and practices to implement. Indeed, State legislatures often seek this type of assistance. The types of laws to be reviewed include:
Definitions: A threshold issue relates to the definitions-defining, for example, an elder, abuse, neglect, and exploitation. Greater uniformity among definitions and laws would greatly assist in information gathering, training, research, clinical practice, interventions, and other efforts.
Mandatory reporting laws: Laws mandating reporting of elder abuse, neglect, and exploitation to APS exist in all but six States. These laws differ, however, in how they define a mandated reporter, to whom reports should be made, what types of followup are required once a report is made, what should be reported, and the consequences of failing to report. In addition, there is considerable divergence of views about the efficacy and purpose of reporting laws in general, which also should be examined.
Evidentiary laws: Because older victims often are frail, and sometimes suffer from diminished capacity or significant illness, this review should focus on what evidentiary rules accommodate the circumstances and needs of older victims and the need to preserve witness testimony. Examples may include permitting televised testimony under certain circumstances. Assuring that a person with dementia may testify at the time of day they are most lucid, or providing for transportation and other assistance also may have a significant impact on the outcome of the case, and on the extent to which the older victim is further traumatized by the legal procedures surrounding the original event.
Reporting of nursing home deaths: A 1999 Arkansas statute requires reporting of all deaths occurring in nursing homes or within 5 days of discharge from a nursing home to the county coroner. Based on anecdotal observation, this law appears to have coincided with a decrease in decubitus ulcers and other indicators of neglect, at least in Pulaski County, Arkansas, where the appointed coroner has vigorously enforced the law. A study should be done to test this hypothesis and to examine whether this is a law that should be replicated in other States. Guardianship and Power of Attorney laws: Court-appointed guardians are useful in cases where individuals have lost the cognitive capacity for decisionmaking. Establishing legal
guardianship can be expensive and time-consuming. On the other hand, like power-of-attorney, some guardians betray and exploit those whose fiduciary interests they are charged with representing. State laws and procedures for establishing, monitoring, and providing for guardians, in the case of financial need, vary. This study will examine guardianship laws to identify those that most effectively protect vulnerable elders while not imposing too onerous a burden on others. Similarly, in most jurisdictions there are few protections on powers-of-attorney. One State recently amended its law to increase restrictions.
Banking laws: State laws, such as those in Oregon, Idaho, Illinois, Florida, and other States should be studied to determine their success in preventing elder fraud and exploitation. Some States provide financial institutions the ability to make contact with the appropriate State or Federal agencies concerning any suspected violation of law. These provisions allow the reporting institution to disclose customer financial records to the relevant State or Federal agency when financial exploitation is suspected, and immunize the financial institution from liability for loss, damage or injury arising out of, or in any way related to, the report or release of information pertaining to the suspected violation of law. Banking laws should be examined as they relate to elder financial exploitation, both in terms of providing a potential model for other States, and also as potential model for Federal consideration.
The Attorney General, after consultation with the Secretary of HHS, would be required to: (1) conduct a study and prepare a report on State laws and practices with respect to elder abuse, neglect, and exploitation; (2) report to all appropriate congressional committees on findings no later than 2 years after enactment of the Elder Justice Act; and (3) publish its findings.
In reporting to Congress on State laws and practices issues, the bill would require the following: (1) development of a comprehensive description and comparative analysis of State laws and practices; (2) recommendations on models based on analysis of the most effective State laws and practices; (3) provision of a definition for “elder," "abuse,” “neglect," and "exploitation"; (4) definition of who is a mandated reporter, to whom and when a mandated reporter must report information, and what the consequences are for not reporting information; and (5) information on data retention issues. The report would also be required to contain information on State laws and practices issues with respect to evidentiary, procedural, sentencing, and choice of remedies matters. Additionally, the report would be required to contain information on: issues pertaining to State laws that require immediate reporting of all nursing home deaths to the county coroner as well as issues with respect to fiduciary laws (including guardianship and power of attorney laws); laws that permit or encourage banks or bank employees to prevent and report suspected elder abuse, neglect, and exploitation; laws that may impede research on elder abuse, neglect, and
exploitation; and practices related to the enforcement of such laws and other aspects of elder justice.
The bill would authorize $2.5 million for FY2006, and $3 million for each of fiscal years 2007–2009.
Section 207-Evaluations of Department of Justice Elder Justice
REASONS FOR CHANGE
Too often, projects in the area of elder abuse, neglect, and exploitation have been funded without regard to whether they have been determined to be effective. Similarly, too few efforts in this area include a validated evaluation component designed to measure efficacy. Given the paucity of data in the field of elder abuse, neglect, and exploitation, it is imperative to leverage resources where they will do the most good. Thus, all grants or other funding mechanisms authorized under this legislation should contain a validated evaluation component, to measure the effectiveness of the efforts. Funding for such evaluations shall be provided either as a stated percentage of the project or as a separate grant for a particular project or group of projects. In addition, grants shall be available to conduct a validated evaluation of ongoing efforts, other than those funded under this legislation.
Individuals by the Attorney General with expertise in evaluation methodology, will review the evaluation proposals to determine whether they are adequate to gather meaningful information, and, if not, to advise the applicant why the proposal was not funded, and assist applicants in modifying evaluation proposals.
The bill would require the Attorney General to reserve a portion of funds appropriated to carry out the programs described in this title to be used to aid eligible entities to conduct program evaluations. Eligible entities would be required to submit an application to the Attorney General in order to receive the funding and report to the Attorney General and Congress on its findings and recommendations from the evaluation.
The bill amends the title to read: An Act to amend the Social Security Act to enhance the social security of the Nation by ensuring adequate public-private infrastructure and resolve to prevent, detect, treat, understand, and intervene in elder abuse, neglect, and exploitation, and for other purposes.
The Congressional Budget Office has prepared the enclosed cost estimate for
If you wish further details on this estimate, we will be pleased to provide them.
CONGRESSIONAL BUDGET OFFICE
September 27, 2004
Elder Justice Act of 2004
As ordered reported by the Senate Committee on Finance
S. 333 would authorize various elements of a coordinated federal, state, and local government system designed to help detect and prevent the abuse and exploitation of the elderly. Appropriations of the authorized amounts would result in additional outlays of $124 million in 2006 and $763 million over the 2006-2009 period. Enacting the bill would not affect direct spending; CBO estimates that the collections of civil monetary penalties authorized by the bill would have a negligible effect on revenues.
S. 333 contains no intergovernmental or private-sector mandates as defined by the Unfunded Mandates Reform Act (UMRA). State, local, and tribal governments would be eligible for a number of grants authorized by the bill, and the costs of any requirements tied to those grants would be incurred voluntarily.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of S. 333 is summarized in Table 1. The costs of this legislation fall within budget functions 500 (education, training, employment, and social services) and 750 (administration of justice).