Virtual Votes: A Legislative Roundup
by Kendra Kuehn,MSW, National Adult Protective Services Association
Like many of us, our representatives and their staff have been figuring out how to conduct business at a distance. Even the United States Congress is learning to navigate the challenges of mute/unmute technology during virtual hearings. Despite the COVID-19 pandemic, the majority of states have now concluded their legislative sessions or are moving to address emergency budgets changes (find the calendar for your state through the National Conference of State Legislators). Here’s a snapshot of what’s happened nationwide.
Financial Institutions, Broker-Dealers, and Investment Advisors
Addressing financial exploitation and reporting by financial institutions continues to be a hot topic. Since our last legislative update in June 2019, California (SB-496), Florida (HB-813), New Jersey (A-5091), Rhode Island (S-0433A), and West Virginia (HB-4377) have passed legislation on broker-dealers’ and investment advisors’ responsibilities based on the North American Securities Administrators Association’s (NASAA) Model Act to Protect Vulnerable Adults From Financial Exploitation (Model Act). In these states, broker-dealers are able to delay disbursing funds in accounts for older adults and other adults served by Adult Protective Services (APS) for fifteen days when there is suspected financial abuse. After this time, an investigating agency or court must request an extension. Florida allows the broker-dealer to implement its own ten-day extension before needing a request from an investigative agency or a court. The five states require notification to APS and other relevant agencies of the suspected financial abuse as well as sharing of records and includes immunities for reporters.
California, Florida, New Jersey, and West Virginia went further and included investment advisers under the same requirements as well as allowing delays on transactions. In California and New Jersey, APS is able to disclose the general status or financial disposition of cases to reporting broker-dealers or investment advisors. In order to place a delay, Florida requires broker-dealers and investment advisers to develop training policies or programs on financial exploitation, conduct annual training, and develop written procedures for internal review of suspected financial exploitation that has been reported.
Virginia was highlighted in last year’s round up for enacting legislation guided by the Model Act. This year Virginia’s SB. 391 added a requirement that financial institutions report to APS when a transaction or disbursement is refused or delayed. In the fiscal implications statement, the Department for Aging and Rehabilitative Services (DARS), which administers the APS program, notes “most financial institutions already report instances where staff have refused or delayed a transaction” and APS does not expect a significant increase in reports.
In response to reporting on high-profile wire-fraud cases last year, Utah’s Financial Exploitation Prevention Act (HB 0459) allows for the delay of a wire transfer as well as other transactions for fifteen days when there is suspected financial exploitation. The financial institution must then contact law enforcement, APS, or a joint co-owner of the account. The Office of the Attorney General website will include education on the latest scams and resources for victims.
Types of Abuse
Adding to the states in last year’s round up looking at additional types of abuse, Maryland (HB 33) has expanded the crime of abuse or neglect of a vulnerable adult to include emotional abuse. The definition addresses intentional and malicious infliction of severe emotional distress on a vulnerable adult by a caregiver, parent, household member, family member, or other person who has care or responsibility for supervision of the individual.
Registries
This session Maine and Massachusetts became the most recent states to begin developing registries. In Maine (LD 2058), the adult protective services registry covers perpetrators for whom there has been a substantiated report of abuse, neglect, or exploitation. Further development of the registry will be made through Maine’s rulemaking process. The perpetrator registry authorized in Massachusetts (Nicky’s Law - S 2367) covers care providers who have a substantiated finding of a registrable abuse against a person age 18 – 59 with an intellectual or developmental disability. The definition of registrable abuse includes an act or omission by a care provider that results in serious physical or emotional injury or constitutes abuse of a person with an intellectual or developmental disability. The Massachusetts Disabled Persons Protection Commission, which investigates abuse, neglect, and exploitation of adults with disabilities, will administer the registry. The Massachusetts Department of Developmental Services and its funded providers will not be able to hire anyone on the registry. The statute also creates an appeal process and a process to petition for removal after five years. For more information on APS registries, the National Adult Protective Services Association’s Adult Protective Services Abuse Registry National Report highlights states with registries, their operations, and the benefits and challenges shared. This report presents findings of a multi-state study undertaken from January 2016 to February 2018.
Supported Decision-Making
In April, Washington (SB 6287) updated its guardianship statute through the adoption of supported decision-making agreements. The act notes that the purpose of supported decision-making agreements is to provide a less restrictive alternative to guardianship for adults with disabilities who need assistance with decisions around daily living. The agreement can be terminated only by the adult with a disability or the supporter(s), unless it is found that the supporter(s) abused, neglected, or exploited the adult. For more information on supported decision-making and what is happening around the country, check out the National Resource Center for Supported Decision-Making.
Fatality Review Teams
This spring Florida (SB 400) allowed the creation of elder abuse fatality review teams in each judicial circuit, with APS as a recommended member. Through studying closed cases, the goal of the review teams is to identify potential gaps or problems in the delivery of services, to develop community-wide approaches to address the causes and contributing factors of the reviewed deaths, and create recommendations for changes in law, rules, and policies. Annual reports on these areas are included and may inform future legislation. The American Bar Association Commission on Law & Aging found that participants in elder abuse fatality review teams felt they increased referrals and collaboration, helped identify and address barriers or gaps in services, and contributed to identification of risk indicators. For more on elder fatality review teams and resources see the ABA Commission on Law and Aging’s Elder Abuse Fatality Review Team projects and products.
Congressional Outlook
This spring, Congress passed and the President signed the Supporting Older Americans Act of 2020 (HR 4334; ACL Blog Post). The Act reauthorizes the Older Americans Act and includes new emphasis on efforts to understand the impact of social isolation, an issue that is now even more timely with COVID-19 pandemic restrictions. Going forward, bills to watch include the Stamp Out Elder Abuse Act (S. 1784, HR 2719) and the Emergency Support for Nursing Homes and Elder Justice Reform Act of 2020 (S. 4182). The Stamp Out Elder Abuse Act would establish a semi-postal stamp, also known as a “charity stamp,” to raise awareness and money for addressing elder abuse. The funds will go to elder abuse programs within the U.S. Department of Justice and U.S. Department of Health and Human Services. Among other goals, the Emergency Support for Nursing Homes and Elder Justice Reform Act of 2020 (S. 4182) would reauthorize the Elder Justice Act, including provisions for funding of the National Adult Maltreatment Reporting System (NAMRS), APS demonstration grants, APS programs, and the APS Technical Assistance Resource Center (APS TARC). As always with legislative funding, authorized funding is not the same as appropriated funding.
Want to Learn More? Check out the Library of Congress’ federal guide and state guide.
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