Monday, November 23, 2009

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.