Federal Elder Abuse Victims Act: Enfolded

On October 21, 2009, several U.S. Senators introduced a proposed federal "Elder Abuse Victims Act (S. 1821)" as a "companion" Senate bill to one adopted earlier this year by a vote of 397 to 25 in the House, known as the Elder Abuse Victims Act (H.R. 448), introduced by Congressman Joe Sestak (D-PA). It appears that key provisions of this legislation have become enfolded into the pending Health Care Reform bill under consideration in the Senate.

On September 21st, Congressman Sestak had urged Senate action in response to the previous House adoption of H.R. 448 on February 11, 2009. See: Press Release, Congressman Sestak Recognizes World Alzheimer's Day (09/21/09).

This is Senate Bill 1821's Summary according to GovTrack:

A bill to protect seniors in the United States from elder abuse by establishing specialized elder abuse prosecution and research programs and activities to aid victims of elder abuse, to provide training to prosecutors and other law enforcement related to elder abuse prevention and protection, to establish programs that provide for emergency crisis response teams to combat elder abuse, and for other purposes.

A Press Release (10/21/09) issued by the office of Senator Patrick Leahy listed the key Senate sponsors and noted the need for such legislation:

Today Senator Herb Kohl (D-WI), Chairman of the Senate Special Committee on Aging, Senator Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee, Senator Barbara Mikulski (D-MD), Chairwoman of the Senate HELP Subcommittee on Retirement and Aging, and Senator George LeMieux (R-FL) introduced the Elder Abuse Victims Act, a bill that would improve the law enforcement community’s ability to target and combat abuse and exploitation of senior citizens.

A companion to the Elder Abuse Victims Act (H.R. 448), introduced by Congressman Joe Sestak (D-PA), was passed earlier this year by a vote of 397 to 25 in the U.S. House of Representatives.

“For years, Congress has failed to take concrete action to address the consequences of elder abuse, and that must change,” said Senator Kohl. “With this bill, we hope to help local enforcement agencies and other advocates tackle the often-hidden scourge of elder abuse.” * * *

That Press Release summarized the key provisions of the Senate's proposed Elder Abuse Victims Act:

• Stipulates that elder abuse includes mail, telemarketing, and Internet fraud aimed at elderly people;
• Seeks to develop a common definition of elder abuse as 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;
• Seeks to develop a common definition of elder exploitation as fraudulent or otherwise illegal, unauthorized, or improper acts or processes of an individual, including a caregiver or fiduciary, that uses the resources of an elder for monetary or personal benefit, profit, or gain, or that results in depriving an elder of rightful access to, or use of, benefits, resources, belongings, or assets; and
• Funds creation of positions within State courts, prosecutors’ offices or State Medicaid Fraud Control Units to coordinate elder justice-related cases, training, technical assistance, and policy development for State prosecutors and courts.

Thus, Senate Bill 1821 was one response to Sestak's call for action. But the response in the Senate may have extended far beyond it, into the pending, sweeping health care reform bill to be subject to debate in the Senate. See: Health Care Reform Bill Moves to Senate Floor for Debate (11/22/09), published by U.S. News & World Report, which noted:

Senate Democrats managed to push health care reform legislation past a key hurdle on Saturday night, with a cloture vote that will lead to a debate on the Senate floor later this month, the Associated Press reported. * * *

"Elder justice" and "elder abuse" proposals in Congress began in the early years of this decade; but none has become law, despite broad-based, non-profit organizations supporting such legislation through political coalitions. See: EE&F Law Blog postings Federal "Elder Abuse Victims Act" Reintroduced (02/20/09), and Federal "Elder Justice" Acts Appear Elusive (09/12/08). See also: Transcript of Hearing on June 18, 2002 before the Senate's Committee on Finance, "Elder Justice: Protecting Seniors from Abuse and Neglect" (PDF, 74 pages).

Now, in the most recent version of the Senate's proposed "Patient Protection and Affordable Care Act (H.R. 3590)" (PDF, 2074 pages!), I find a Subtitle H entitled "Elder Justice Act" under under Title VI ("Transparency and Program Integrity"), consisting of three sections -- Sections 6701 through 6703, which begin at page 1798.

H.R. 3590 in the 111th Congress, as amended from time to time, can be accessed through the Thomas Legislative Information Service, of the Library of Congress.

That subtitle "may be cited as the 'Elder Justice Act of 2009'" per Section 6701.

It appears that prior federal "elder justice" and "elder abuse" proposals have been enfolded into the pending health care legislation that would reorder health care delivery nationally.

The definition of "elder" under the legislation is "an individual age 60 or older" according to Section 6702.

Regarding such elders, the bill would amend the Social Security Act to introduce into federal law the concept of "Elder Justice," defined as:

(A) from a societal perspective, efforts to — (i) prevent, detect, treat, intervene in, and prosecute elder abuse, neglect, and exploitation; and (ii) protect elders with diminished capacity while maximizing their autonomy; and (B) from an individual perspective, the recognition of an elder’s rights, including the right to be free of abuse, neglect, and exploitation.

"Abuse" would be 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" would be defined as "the fraudulent or otherwise illegal, unauthorized, or improper act or process of an individual, including a caregiver or fiduciary, that uses the resources of an elder for monetary or personal benefit, profit, or gain, or that results in depriving an elder of rightful access to, or use of, benefits, resources, belongings, or assets."

A "fiduciary" would be "a person or entity with the legal responsibility — (i) to make decisions on behalf of and for the benefit of another person; and (ii) to act in good faith and with fairness." It would include "a trustee, a guardian, a conservator, an executor, an agent under a financial power of attorney or health care power of attorney, or a representative payee."

To review the status of "elder justice," the proposal would create a new Elder Justice Coordinating Council, consisting of high federal officials, including the Attorney General. See: Pages 1808-1811.

There would also be created a new Advisory Board on Elder Abuse, Neglect, and Exploitation to "create short- and long-term multidisciplinary strategic plans for the development of the field of elder justice and to make recommendations to the Elder Justice Coordinating Council established under section 2021." See: Pages 1811-1818.

These activities would be funded with $6.5 Million in 2011, and $7 Million annually in 2012 through 2014. See: Pages 1818 & 1819.

The proposal provides for grants to be made to Elder Abuse, Neglect, and Exploitation Forensic Centers, and funds them to the extent of $20 Million in 2011, $17.5 Million in 2012, and $15 Million annually in 2013 and 2014. See: Pages 1821-1830.

In addition, funding would be provided for "State and local adult protective services offices that investigate reports of the abuse, neglect, and exploitation of elders" at the levels of $3 Million in 2011 and $4 Million annually in 2012 through 2014. See: Pages 1830 & 1831.

There would be created an "adult protective services grant program under which the Secretary shall annually award grants to States * * * for the purposes of enhancing adult protective services provided by States and local units of government."

The current version of H.R. 3590 to be debated in the Senate would also create a Long-term Care Ombudsman Program and a National Training Institute for Federal and State surveyors. These initiatives, too, would be funded significantly through 2014.

Whether these provisions in the controversial H.R. 3590 will survive, I don't know. But the fact of their inclusion for debate and consideration is a monumental step forward in federal involvement to curb elder abuse and enhance elder justice.

Update: 11/23/09:

An article was posted November 23, 2009, by the Kaiser Health News, entitled Congress Targets Senior Abuse, by Rick Schmitt (also published in The Los Angeles Times and The Baltimore Sun on the same date).

The author highlighted the Elder Justice Act aspects of the pending health care reform bill presently in the Senate for consideration:

The Senate is considering an even more expansive Elder Justice Act. It would boost federal aid for identifying and investigating elder abuse at the state and local levels, require long-term care providers to report possible crimes to federal authorities and create new oversight within the Department of Health and Human Services for coordinating state and federal anti-abuse efforts.

These provisions, already approved by the Senate Finance Committee, are included in the health legislation that is being prepared for floor debate after Thanksgiving. With broad support in and out of Congress, at least some of the measures appear to have good prospects for being enacted into law.

More than 500 advocacy groups have lined up behind the legislation. It still faces opposition on budget grounds, although proponents say the cost of the Elder Justice Act -- about $757 million over four years -- is pocket change in the context of a near $1-trillion healthcare bill. * * *

The article is lengthy, offers personal examples of elder abuse, and engages in a political analysis about inclusion of Elder Justice Act provisions into the health care reform legislation.

Economics now appears to drive inclusion of such federal protections for senior citizens:

Supporters say elder abuse should be addressed in healthcare overhaul legislation because it pushes up healthcare costs and because financial exploitation of the elderly leaves many destitute and reliant on public assistance.

"This is prevention, which is a healthcare issue," says Robert Blancato, who heads the Elder Justice Coalition, an umbrella group for more than 500 groups that support the legislation. They include AARP, the American Bar Assn., and industry groups representing nursing homes and long-term providers, among others.

State and local governments have long been on the front lines of such problems. But many studies have shown a shortage of resources among licensing agencies, long-term-care ombudsmen and adult protective service workers.

"The universal lack of resources, the enormous variation across jurisdictions and the low priority given to elder abuse and neglect make it difficult to see how significant progress can be made without federal standards and financial support," concluded researchers at Texas A&M University in a report prepared for the Justice Department last month. * * * [Links added.]

I am heartened by this article's analysis as to the prospects for adoption of key provisions of past Elder Justice Act proposals into federal law with appropriate funding.

Laws.com Focuses on Abuse Crimes

There are many websites that provide legal information to consumers and professionals. While one with a great domain name -- Laws.com -- is expanding, its staff contemplates how to educate too.

Their cause: reduction of personal physical abuse, and celebration of heroes who oppose violence.

Over the past few weeks, some of those staff members, like Nick Fox and Dominic Sebahia, contacted me about their organization, its mission to educate the public about laws generally, and their proposed initiative against violence, beginning with child abuse prevention.

This group intends to address its audiences of lawyers, law students, and consumers through companion websites, now in development.

On a Friday afternoon a few weeks ago, through the Internet magic of Skype software and his laptop's web cam, Dominic spontaneously took me on an audio-visual walking tour of the Laws.com offices in Mahwah, New Jersey. He introduced me to many of the staffers, who worked at their keyboards and monitors. They seem to be a dedicated, grounded, and even fun-loving group.

This is their posted statement of purpose:

Here at Laws.com we are extremely dedicated to stop crime and award heroes.

Laws.com is a firm believer in providing the public with a free flow of information, especially, in the area of crime prevention. Laws.com does not only work closely, but also supports the top organizations around the world.

Our goals are to keep the public informed, provide the most updated information on current issues, supply crime prevention solutions, and make sure we help make this world a safer place. We want to help protect and serve all people in today's society.

Laws.com will reward the good and help stop the bad, one crime at a time.* * *

A theme that resonates through the website of Laws.com is "justice." The filtered news accounts tell stories about physical assaults, sexual mistreatment, criminal verdicts, court sentences, incarcerations, and the like.

Skimming the stories causes me to react with sadness that such violence and mistreatment occurs. Many victims become dysfunctional adults who perpetuate a cycle of violence victimizing helpless others, usually family members very young or very old.

So, I support their efforts to create an educational legal website that illuminates efforts to contain or to curtail, such destructive personal violence.

I asked them to provide me with a quick summary of their focus and plans. Numer F. Najja sent me this, with consent to repost.

For the past few weeks, Laws.com has been in the middle of a campaign to help child abuse in any way that we can.

We have been working with several different organizations and people that are very dedicated to this cause, with attorney Neil Hendershot being one of our top allies.

In these recent weeks, we have been providing our readers with the latest legal news regarding child abuse. There are links to blogs that are maintained by child abuse prevention organizations and survivors that have shared their stories in our Blogs for Justice section, and quite a few child advocacy and anti-violence group profiles can be found in the Organizations for Justice section.

To make sure that children know what to do when they find themselves in a situation where they are being abused by an adult, or if anybody witnesses violence against a child, Laws has provided child abuse hotlines for every state in the United States of America in our Report Crime section.

It is very important that people know what constitutes child abuse and the repercussions for violations. That is why we have provided information about child abuse law for people that may be unfamiliar with that type of legislation. This information can be found in the Laws section on our website.

We will be continuing to do what we can for the children and anybody else that may need our help, and we hope to keep working with our good friend Neil Hendershot in the future.

I acknowledge the great harms created in child abuse. However, my focus remains on elder abuse.

So I offered to provide reputable online resource links and some material regarding elder abuse to the folks at Laws.com. They responded with eager anticipation that their website could be so expanded.

“Nothing good ever comes of violence.”

-- Martin Luther (quoted on ThinkExist)
German priest & scholar (1483-1546)
who initiated the Protestant Reformation

OC Judges Run for Superior Court on Nov 3rd

In Pennsylvania's 2009 Municipal Election to be held on Tuesday, November 3, 2009, voters interested in elder, estate, trust or other fiduciary matters should note (and hopefully vote for) two highly qualified Common Pleas judges with extensive Orphans' Court experience who are candidates for Superior Court -- Judge Anne E. Lazarus and Judge Paula Ott.

Judge Anne E. Lazarus, of Philadelphia, is running as a Democrat for Superior Court. Her biography (also found on the State Democratic Committee website) is impressive, and includes a brief mention of her Orphans' Court Division activities:

As a Common Pleas Judge, she has overseen a wide range of cases, having served previously on the Criminal and Civil divisions of the Common Pleas Bench and currently on the Orphans’ Court. She was also the first female judge in Philadelphia to handle the “Rocket Docket,” arguably the most rigorous docket in the court system. Prior to joining the Court, Judge Lazarus worked for fifteen years as an attorney.

In addition to her work with the Court of Common Pleas, Judge Lazarus chairs the Ethics Committee of the Pennsylvania Conference of State Trial Judges and was appointed to the Governor’s Commission on Crime and Delinquency. Lazarus was also the first Chancellor of the Louis D. Brandeis Law Society, a society for Jewish lawyers and judges.

Having served as the chairperson of both the First Judicial District of Pennsylvania Judges’ Pro Bono Committee and the First Judicial District of Pennsylvania’s Merit Selection Committee, Judge Lazarus is well-known for her commitment to the community and the legal profession. She is also a member of the board of the Philadelphia Volunteers for the Indigent Program, an organization committed to providing pro bono services to those unable to afford legal assistance.

Among countless awards over the years, she is most proud of her recognition by the Pennsylvania Bar Association as the first-ever recipient of the Judicial Pro Bono Award.

Judge Lazarus serves as an adjunct professor at the Widener University School of Law, the National Judicial College, and the National Institute of Trial Advocacy. Over the years, she has also mentored law students and young lawyers, advocating pro bono service and encouraging her peers to participate in pro bono programs. * * *

I was surprised that her biography made no mention of her extensive involvement with the Joint State Government Commission's Advisory Committee on Decedents' Estate Laws involving Orphans' Court matters, or her participation on its drafting subcommittees regarding powers of attorney, and transfers without probate.

Somehow, among all her other activities, she has managed to attend and participate meaningfully at the Advisory Committee meetings and in the work sessions of at least these two drafting committees.

I became acquainted with Judge Lazarus in these activities. I spoke with her once in a presentation to the Pennsylvania Bar Association's Real Property, Probate & Trust Law Section, about the role of the Orphans' Court Division. In my view, she is a bright, authentic, and caring person, who, as a trial judge, has acted as a protector of funds and people through the Orphans Court Division.

Judge Paula Ott, of Chester County, is running as a Republican for Superior Court. Her biography (also found on the State Republican Committee website), is equally impressive, and likewise highlights her role in Orphans' Court Division activities:

Paula Ott was elected the first woman judge in Chester County in 1991 and was retained in 2001. In more than 17 years as a judge, she has presided over all types of cases, including death penalty cases.

In 2005, Paula Ott was elected President Judge by her fellow judges. During her term as President Judge, her most challenging project has been the completion and occupation of a new Justice Center, which now houses nearly 700 employees. * * *

Paula Ott can bring to the Superior Court her expertise in Orphans' Court litigation. Orphans' Court is a separate division that handles adoptions, guardianships for incapacitated persons, will contests and trust and estate administration. She practiced in this area before becoming a judge and has presided in Orphans' Court since 1992. She also serves on the Pennsylvania Supreme Court Orphans' Court Rules Committee and the Joint State Government Commission Advisory Committee on Decedents' Estates Laws.

Judge Ott was President of the Pennsylvania Conference of State Trial Judges (2003-2004) and has co-chaired the President Judges' Committee for the past four years. Judge Ott has served on committees that promote best practices in the judicial system, such as the Pennsylvania Bar Association's Commission for Justice Initiatives, the Supreme Court's Advisory Committee on Court Reporting and Transcripts and the Implementation Committee of the Interbranch Commission for Gender, Racial and Ethnic Fairness.* * *

Judge Ott's biography mentions her work through the Joint State Government Commission's Advisory Committee on Decedents' Estate Laws, and also through another crucial group influencing Orphans' Court practice -- the Pennsylvania Supreme Court Orphans' Court Rules Committee. I met Judge Paula Ott during meetings of both these groups.

In my view, she is unpretentious, considerate, intelligent, decisive, and grounded.

The Superior Court needs judges with Orphans' Court experience to decide cases through its panels and in its full court considerations of appeals from that Division.

Beyond their dedication to the constituencies of the Orphans' Court Division, I respect both these candidates for their community involvement, legal skills, good judgment, and personal tenacity.

I will vote for Judge Anne E. Lazarus and for Judge Paula Ott on Tuesday, November 3rd; and I urge others to do so too.

Update: 11/02/09:

Voters should consult the Voters Guide (PDF, 3 pages) posted by the League of Women Voters of Pennsylvania regarding statewide candidates, including those for judicial positions, to be elected on November 3rd.

Update: 11/11/09:

Paula Ott won a seat on the Superior Court, and Anne Lazarus may do so, whether by acceptance or recount. See: Recount possible for 4th Pa. Superior Court seat an Associated Press report published in The Philadelphia Inquirer on November 11, 2009:

A recount for a tight Pennsylvania Superior Court election could begin Monday, but a waiver of the right to a recount by one more candidate could stop the expensive process, state officials said yesterday. * * *

Voters last week were to choose four Superior Court judges. A tally released last night based on unofficial returns from all 67 counties showed Judy Olson, Sallie Mundy, and Paula Ott got the three highest vote totals. They are elected.

The race for the fourth seat, however, was close, with Anne Lazarus leading three other candidates who trailed her by less than half of 1 percent.

A recount is automatic under Pennsylvania law unless all three trailing candidates give up that right. Two of the trailing candidates, Robert Colville and Kevin Francis McCarthy, have indicated that they would waive a recount if the others do as well. The remaining candidate, Temp Smith, could not be reached last night. The Department of State said a total of 6,314,250 votes were cast. Lazarus received 723,954 votes; Colville, 721,948; Smith, 720,624, and McCarthy, 711,240.