As we enter the fall, the majority of states have concluded their legislative sessions or may be moving into special sessions on issues such as redistricting or addressing the COVID-19 pandemic (find the calendar for your state through the National Conference of State Legislatures). Congress continues their work as well, primarily around infrastructure and appropriations. Here’s a synopsis of what’s happened nationwide.
Financial Institutions and Financial Exploitation
Legislation to address financial exploitation and reporting by financial institutions continues to be a prominent issue. In 2021, Iowa (HF 839), South Carolina (S 425), and Nebraska (LB 297) have passed legislation based on the North American Securities Administrators Association’s (NASAA) Model Act to Protect Vulnerable Adults From Financial Exploitation (Model Act). Thirty-four states now have legislation or regulations based on or similar to the Model Act addressing how broker-dealers and investment advisors can address potential financial exploitation. In September, NASAA released a review of the Model Act initiative. In addition to in-depth analysis of feedback on the Model Act, the report notes the importance of communication between financial institutions, state securities regulators, and adult protective services (APS).
The key components of the Model Act include reporting to APS and the state securities regulator, notification of a client designated third party when applicable, delayed disbursements, appropriate immunity, and complying with records requests. Following several other states, the legislation in Iowa, South Carolina, and Nebraska went beyond the current Model Act to include the ability to delay transactions as well as disbursements. The statutes allow varying times for a hold - 15 business days in Nebraska and Iowa and 30 business days in South Carolina. Allowances for extensions when requested by an investigating agency are 10 business days in Iowa and 15 business days in Nebraska and South Carolina. Expanding on the model language, South Carolina also allows for financial institutions to place a hold on the account of the alleged perpetrator financially exploiting a vulnerable adult.
Exploring Alternative Response
With a range of risks across APS reports, a one size fits all investigative approach is not always best. In Colorado, the Alternative Response to Mistreatment of At-Risk Adults Act (SB21 – 118) creates a pilot program looking at a different approach for reports indicating a low-risk of harm. As part of the alternative response pilot, APS programs will not be required to do unannounced initial visits or make a finding in addition to other rules under development. The bill proposal was developed after the success of a differential response pilot in Colorado’s child protective services (CPS) program. The CPS work acknowledged that an adversarial approach is not always needed or helpful and it is important to examine the larger context in addition to the allegation of maltreatment. The Colorado Department of Human Services notes in their fact sheet on the APS pilot that the “alternative response model creates another option for APS staff, clients and their families to work together to best meet the needs of at-risk adults and mitigate harm in a supportive way.”
This year, several states also advanced efforts in promoting teams and taskforces. Kansas legislators established a Senior Care Task Force composed of members of the legislature, state agencies, and specified stakeholder groups (HB 2114). The Task Force will develop recommendations around various issues in senior care, administration of antipsychotic medication to residents of adult care homes, and preventing abuse, neglect, and exploitation of seniors. In addition to the Task Force, HB 2114 establishes elder and dependent adult abuse multidisciplinary teams (MDTs). Supported by a coordinator in the Attorney General’s office, MDTs are to be established in each judicial district with members including sheriffs, district attorneys, APS, long-term care ombudsmen, and others determined by the individual MDT. In its review of the impact of the legislation, the Kansas Department of Children and Families noted MDTs would build relationships and collaboration, enhance resources, and help identify and address systematic barriers to service delivery.
California Master Plan for Aging
The California Master Plan on Aging, a large multidisciplinary effort, was launched in January 2021 and includes all state agencies as well as partnerships with the legislature, localities, and stakeholders. The plan includes goals in housing, health, inclusion, caregiving, and affordable aging. A few of the initiatives focused on addressing and preventing abuse, neglect, and exploitation, including creation of a state Elder Justice Council, assessing critical systems including APS and the long-term care ombudsman program, and determining the needs of a changing population.
There has also been important Congressional action for APS in the last year, including the beginning of the first direct appropriation for APS programs under the Elder Justice Act (Section 2042(b) of Title XX of the Social Security Act). Through the Coronavirus Response and Relief Supplemental Appropriations Act of 2021 (HR 133), the US Administration for Community Living (ACL) provided $93.88 million in formula grants to the states, DC, and U.S. territories to support the response of APS to the COVID-19 pandemic. The American Rescue Plan Act of 2021 (HR 1319) provided additional funding to APS. ACL has disbursed $86.06 million in formula grant funding to the states, DC, and U.S. territories. The legislation calls for an additional minimum of $100 million to go to APS formula grants in federal fiscal year 2022. Programs are already putting the new funding into use supplementing and expanding their work, with the APS TARC providing support.
In July, the VOCA Fix to Sustain the Crime Victims Fund Act of 2021 (HR 1652) was signed into law. The US Department of Justice’s Victims of Crime Assistance Fund includes formula grants to states for victim compensation and program grants, including several to APS programs. VOCA is largely funded by criminal fines and penalties, not tax dollars. The amount Congress allows the Department of Justice to use each year is based on a formula involving what goes into the account from these fines and penalties. These deposits have been decreasing due to changes in prosecutorial strategies, based on the formula the VOCA funds given to states have also decreased. The VOCA Fix Act expands the penalties that will go into the fund in order to stabilize it and provides for waivers of match requirements in state sub grants.
What to Watch
In Congress, the bill to watch for APS is the Elder Justice Reauthorization and Modernization Act of 2021 (HR 4969/S 2674). This bill provides for reauthorization and expansion of portions of the Elder Justice Act (Subtitle B of Title XX of the Social Security Act) including technical clarifications on funding use, an $8 million per year appropriation to ACL for national duties (such as the APS Technical Assistance Resource Center), a $75 million per year appropriation for demonstration projects, and an increased appropriation of direct funding to states to $400 million per year for APS operations. The proposal also provides for grants to tribes and tribal organizations to build and support their own APS systems. The provisions in this bill are currently included as part of the larger reconciliation bill being developed in Congress to fund various government priorities. Reconciliation is an expedited legislative process with specific rules and requirements, the most important of which is it is the bill cannot be filibustered in the Senate. (See the Congressional Research Service report below for more info on budget reconciliation.) If the House approves the reconciliation bill, it will then move to the Senate and potentially the President’s desk.
Authorization means Congress has established a program and money can be spent on a program. Appropriation means that Congress has actually provided the funding for the program. Direct grants to state APS agencies were authorized under the Elder Justice Act in 2010. The American Rescue Plan Act appropriated funding for the Elder Justice Act which ACL is now distributing.
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