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DESCRIPTION OF THE JOHN BREAUX
ELDER JUSTICE ACT

SECTION 1-SHORT TITLE; TABLE OF CONTENTS; DEFINITIONS

No provision.

PRESENT LAW

SENATE BILL

The bill sets forth the title of the Act as the John Breaux Elder Justice Act, and outlines the table of contents. It also specifies that any term defined in new Title XXII of the Social Security Act has the meaning set forth by the bill.

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The bill describes the following findings of Congress:

⚫ the proportion of the population age 60 and over will increase dramatically over the next 30 years as baby boomers approach retirement;

• each year between 500,000 and 5 million older persons are abused, neglected, or exploited;

elder abuse, neglect, and exploitation cross all racial, social class, gender, and geographic lines;

• victims are subject not only to injury from mistreatment and neglect but they are 3.1 times more likely to die earlier than expected;

despite a dearth of data on abuse, neglect, and exploitation, experts agree that most cases are never reported and that abuse and neglect trigger a downward spiral in an elder's life. Programs that address domestic violence and child abuse have demonstrated the need for a multifaceted law combining public health, social service, and law enforcement approaches;

• Congress has been presented with facts and testimony for a coordinated Federal approach to combat elder abuse, neglect, and exploitation for over 20 years; the Federal Government has been slow to respond to victims' needs;

• no Federal law to adequately and comprehensively address the issues of abuse, neglect and exploitation has been enacted and limited resources are available to address these issues;

• differences in State laws and practices lead to significant disparities in prevention, protective and social services, treatment systems and law enforcement and to other inequities;

the Federal Government has played an important role in preventing child abuse and neglect, domestic violence, and violence against women, and should promote similar efforts in prevention of elder abuse, neglect, and exploitation;

• the Federal Government should provide leadership and assist States and communities in efforts to protect elders;

⚫ the problem of elder abuse requires a comprehensive approach that, among other things, integrates health, legal, and social services agencies and organizations and emphasizes the need for prevention, reporting, investigation, assessment, treatment and prosecution;

⚫ the human, social, and economic cost of abuse, neglect and exploitation is high;

the failure to coordinate activities threatens the future and well-being of millions of elders; and

• all elements of society have a shared responsibility in responding to the national problem of elder abuse, neglect, and exploitation.

SECTION 3-PURPOSES

PRESENT LAW

No provision.

SENATE BILL

The bill defines the purposes of the John Breaux Elder Justice Act, as follows:

⚫ to enhance the social security of the Nation by ensuring adequate public-private infrastructure and resolve to prevent, detect, treat, understand, intervene in, and where appropriate, aid in the prosecution of elder abuse, neglect, and exploitation; to bring a comprehensive approach to preventing and combating elder, abuse, neglect and exploitation;

⚫ to raise the issue of elder abuse, neglect and exploitation to national attention, and to create the infrastructure at the Federal, State and local levels to ensure that individuals and organizations have resources and information they need;

⚫ to bring a comprehensive multidisciplinary approach to elder justice;

to set in motion research and data collection to fill gaps in knowledge on the issue;

⚫ to supplement activities of service providers and programs, to enhance training, and to leverage scarce resources efficiently to ensure that elder justice receives the attention it deserves as the Nation's population ages;

• to examine the many laws and practices about elder justice in different States and jurisdictions to ascertain those that are most effective;

• to promote an effective adult fiduciary system including an adult guardianship system;

• to recognize and address the role of mental health, disability, dementia, substance abuse, medication mismanagement, and family dysfunction problems in increasing and exacerbating elder abuse, neglect and exploitation;

⚫ to create a strategic plan for the development and coordination of research, programs, training, and other efforts nationwide; ⚫ to promote collaborative efforts and diminish overlap and gaps in efforts;

⚫ to honor and respect the right of all persons with diminished capacity to decisionmaking, autonomy, self-determination, and dignity of choice; and

• to respect the wishes of persons with diminished capacity and family members in providing support services and care plans intended to protect elders from abuse, neglect, exploitation, and self-neglect.

TITLE I-DEPARTMENT OF HEALTH AND HUMAN

SERVICES

Section 101(a)—Amendments to the Social Security Act-Elder Justice

PRESENT LAW

No provision.

SENATE BILL

Section 101(a) of the bill would amend the Social Security Act by adding a new Title XXII-Elder Justice.

Section 2200-Definitions

PRESENT LAW

(a) Definitions related to some of the purposes of the new Title XXII are defined in other related statutes. Related statutes are as follows:

Term

Abuse

Exploi

tation.

Long-term care facility.

Present Law and Senate Bill: Definitions

Present law

Section 102(13) of the Older Americans Act: "Abuse"
of an older person is defined as the willful inflic-
tion of injury, unreasonable confinement, intimida-
tion, or cruel punishment with resulting physical
harm, pain, or mental anguish, or deprivation by a
person, including a caregiver, of goods or services
that are necessary to avoid physical harm, mental
anguish or mental illness.

Section 102(24) of the Older Americans Act: "Exploi-
tation" of an older person is defined as the illegal
or improper act or process of an individual includ-
ing a caregiver, using the resources of an older
individual for monetary or personal benefit, profit,
or gain.

Section 102(32) of the Older Americans Act: "Long
term care facility" is defined as a skilled nursing
facility as defined in Section 1819(a) of the Social
Security Act; any nursing facility as defined
Section 1919(a) of the Social Security Act; and for
purposes of the Title III and Title VII provisions for
elder abuse prevention, a board and care facility.

Senate bill

"Abuse" is defined as the knowing infliction of physical or psychological harm or the knowing deprivation of goods or services that are necessary to meet essential needs or to avoid physical or psychological harm.

"Exploitation" is defined as the fraudulent or other-
wise illegal, unauthorized, or improper act or proc-
ess of an individual, including a caregiver or fidu-
ciary, that uses the resources of an elder for mon-
etary or personal benefit, profit, gain, or that re-
sults in depriving an elder of rightful access to, or
use of, benefits, resources, belongings, or assets.
"Long-term care facility" is defined as a residential
care provider that arranges for, or directly pro-
vides, long-term care.

Term

Present Law and Senate Bill: Definitions—Continued

Present law

Neglect Section 102(34) of the Older Americans Act: "Ne-
glect" is defined as the failure to provide for one-
self the goods or services that are necessary to
avoid physical harm, mental anguish, or mental
illness; or the failure
a caregiver to provide the
goods or services.
Title XVII of the Violent Crime Control and Enforce-
ment Act: a "sexually violent offense" is defined
as any criminal offense that consists of aggra-
vated sexual abuse or sexual abuse (as defined by
18 U.S.C. Section 2241 and 2242 or as defined by
State law) or an offense that has as its elements
engaging in physical contact with another person
with intent to commit aggravated sexual abuse or
sexual abuse.

Criminal sexual abuse.

Senate bill

"Neglect" is defined as the failure of a caregiver or fiduciary to provide the goods or services that are necessary to maintaining the health or safety of an elder, or self-neglect.

"Criminal sexual abuse" is defined as serious bodily injury that shall be considered to have occurred if the conduct causing the injury is conduct constituting aggravated sexual abuse under Section 2241, or sexual abuse under 18 U.S.C. or any similar offense under State law.

(b) The Senate bill also defines the following terms: adult protective services, caregiver, direct care, elder, elder justice, eligible entity, fiduciary, grant, guardianship, Indian tribe, law enforcement, long-term care, nursing facility, Secretary, self-neglect, serious bodily injury, criminal sexual abuse, social, State, State legal assistance developer, State long-term care ombudsman, and underserved population.

Subtitle A-Federal Elder Justice System Section 2201-Elder Justice Coordinating Council

No provision.

PRESENT LAW

REASONS FOR CHANGE

Currently, there is little coordination of any type on elder abuse, neglect, and exploitation within the Federal Government. Because such coordination is needed, the bill creates an Elder Justice Coordinating Council. Given that there are both a public health and a law enforcement component to elder justice issues, HHS and DOJ are in the best position to spearhead coordinated efforts to prevent, intervene in, and prosecute elder abuse though an Elder Justice Coordinating Council. Moreover, the Elder Justice Coordinating Council provides a forum for coordination with delegations from States, and private and not-for-profit entities on the myriad elder justice issues faced by those entities as well. Given the distinct but interrelated nature of the various phenomena making up elder abuse, neglect, and exploitation, the Council may consider formation of various interest groups, which focus on specific issues, such as domestic violence in later life, sexual abuse, institutional and facility abuse and neglect, family violence, caregiver abuse or neglect at home, self neglect and financial fraud and exploitation. Although there will be entities with an interest in all of these areas, other entities may have more specialized interests, such as the Department of the Treasury, the Department of Labor or the Department of Housing and Urban Development.

The following entities, at a minimum, should join HHS and DOJ on the Coordinating Council, as each has an interest in elder justice-related issues: Department of Housing and Urban Development, Department of Education, Department of Labor, Department of Transportation, Department of the Treasury, Office of Management and Budget, Office of the Surgeon General, Social Security Administration, Administration on Aging, Food and Drug Administration, Federal Trade Commission, Department of Commerce, Pension Benefit Guaranty Corporation, Securities and Exchange Commission, Commodity Futures Trading Commission, Board of Governors of the Federal Reserve System, Office of the Comptroller of the Currency, Federal Deposit Insurance Corporation, Federal Bureau of Investigation, Centers for Disease Control and Prevention, Legal Services Corporation, Secret Service, National Institute on Aging, Internal Revenue Service, and United States Postal Service. In addition, a representative appointed by the President from each of the following should be included in the activities of the Coordinating Council: State Justice Institute; National Research Council of the National Academy of Sciences, and the Institute of Medicine of the National Academy of Sciences.

In the discretion of the Secretary and the Attorney General, any other entities that should be included in the activities of the Coordinating Council can be included as needed.

SENATE BILL

Section 2201 would establish an Elder Justice Coordinating Council in the Office of the Secretary of HHS.

Membership. The Council would be co-chaired by the Secretary of HHS (or designee) and the Attorney General (or designee). Membership would also include the head of each Federal department or agency having administrative responsibility for administering programs related to elder abuse, neglect or exploitation. Members must be officers or employees of the Federal Government.

Duties and Reports. The Council would be required to make recommendations to the Secretary of HHS and the Attorney General regarding coordination of Federal, State, and local activities related to prevention of elder abuse, neglect, and exploitation. The Council would be required to submit a report to Congress that describes its activities and challenges and make recommendations for legislation, model laws, and other actions deemed appropriate. The report is to be submitted to Congress within 2 years of enactment of the Elder Justice Act and every 2 years thereafter.

Meetings. The Council is to meet at least twice a year.

Other Requirements. The bill also sets forth requirements for powers of the Council, vacancies in membership, travel expenses, and detail of Federal Government employees to the Council.

Section 2202-Advisory Board on Elder Abuse, Neglect and Exploitation

No provision.

PRESENT LAW

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