A Look Back at 2024: Laws and Regulations Galore!
 

By Kendra Kuehn, MSW, APS TARC Subject Matter Expert

November 2024

Since the elections have passed and 2024 is ending soon, it’s time for our annual review of legislation and regulations at the state and federal level impacting adult protective services (APS) programs and older adults, and people with disabilities.  The theme this year is creation of opportunities for APS and partner programs to work together.   

Addressing Financial Exploitation and Sharing Information 

According to 2022 National Adult Maltreatment Reporting System (NAMRS) data, almost all APS programs investigate financial exploitation. Several states addressed financial exploitation in legislation this year. 

The North American Securities Administrators Association’s (NASAA) Model Act to Prevent Vulnerable Adults from Financial Exploitation has informed many of the states’ efforts to protect vulnerable adults from financial exploitation and has prompted partnerships with financial institutions. For example, in July Kansas became the latest state to pass the Protect Vulnerable Adults From Financial Exploitation Act (HB 2562). The Act requires a qualified person (agent, broker-dealer, investment adviser, investment adviser representative, or person who serves in a supervisory, compliance, or legal capacity for a broker-dealer or investment adviser) to report financial exploitation with immunity if reported in good faith. They can also notify a third party associated with the potentially exploited adult, such as someone authorized to do business on behalf of the adult, an immediate family member, a guardian, and others. The Act provides for reporting and holding of transactions or disbursements for 15 days, with notification to the client and APS. Holding funds in an investigation can help keep the client financially secure.  The Act provides for sharing records with APS, noting that historical and current records may be essential to a case and mitigating harm. In her testimony on the bill, APS Director Chrisy Khatib stated, “Financial exploitation harm is more significant than financial losses; it results in emotional, physical, and social harm to the involved individual.” 

Trusted contacts allowances are also being implemented across the nation. The Consumer Financial Protection Bureau notes that trusted contacts are people “like an adult child or close friend, who your bank or credit union can reach out to for extra help in emergency situations.” This year Virginia’s General Assembly passed, and the Governor signed the Virginia Senior Safe Act (HB 692), also known as “Larry’s Law.” The act allows financial institutions (banks, trust companies, savings institutions, loan associations, consumer finance companies, and credit unions) to collect a list of trusted people that can be contacted if there is suspected exploitation. Staff cannot be held liable if they received training and acted in good faith. Larry’s Law was introduced by Del. Maldonado (D-Manassas) in honor of Larry Cook, a cognitively impaired Navy veteran who lost more than $3 million in an alleged fraud scheme after he sent nearly 75 wire transfers from his credit union. 

Supporting Fatality Review Teams 

IIllinois established Vulnerable Adult Abuse Fatality Review Teams to determine the cause of death and develop and implement measures to prevent future deaths from similar causes. The meetings of these team, as well as the state level advisory council, were subject to the state Opens Meeting Law, with requirements governing quorum size and meeting times, even though similar types of review teams were not subject to open meetings.  SB 2799 removed the requirement that the fatality review teams, and advisory council were subject to the Opens Meeting Act.  APS believes this will strengthen the review process and create alignment with similar processes.  

Key Regulatory Activity 

While there was no federal APS legislation this year, the Administration for Community Living (ACL) and the Centers for Medicare and Medicaid Services (CMS) finalized several pieces of regulation that will impact APS programs and programs APS works closely with. Most important to APS was the much-anticipated publication of the APS Final Rule. This rule established the first-ever federal regulations for APS, with the goal of promoting consistency across APS programs by setting minimum standards all state APS systems must meet. Be sure to keep up with the implementation guidance through the ACL webinar series and listening sessions. 

Shortly before the publication of the APS Final Rule, ACL released the Older Americans Act (OAA) Final Rule. This was the first substantial update of the OAA rules since 1988. While these regulations do not directly impact APS programs, the aging network is an important partner for APS programs.  Like the APS Final Rule, the OAA Final Rule was a result of a lot of work by ACL staff and input from stakeholders. Overall, the OAA Rule promotes coordination and communication among stakeholders, which can include APS.   

Both the APS and OAA rules promote use of the least restrictive alternatives and settings, and person directed planning for decision making to divert, when appropriate, vulnerable adults from guardianship. This will particularly impact legal assistance programs funded through OAA. APS programs should consider reaching out to the state legal assistance office to discuss how APS and legal assistance programs can work together to reduce inappropriate guardianships.  

The OAA Final Rule requires that OAA funded programs have emergency plans and partner communications for disaster preparedness given the disproportionate impact of disasters, such as COVID 19, have on older adults. These new requirements are an opportunity for APS programs to work more closely with State Units on Aging and Area Agencies on Aging (AAAs) on disaster planning to improve responses and avoid duplicate efforts.  If you don’t have an emergency plan, the National Voluntary Consensus Guidelines for APS Systems, recommendation 1L, provides a good foundation.  

Finally, in April CMS released the Ensuring Access to Medicaid Services final rule (often referred to as the “Access Rule”). Most significant to APS is the critical incident management section on Home and Community-based Services. The definition of critical incidents includes verbal, physical, sexual, psychological, or emotional abuse, neglect, exploitation, misuse or unauthorized use of restrictive interventions or seclusion, medication errors resulting in poison control center, emergency room, urgent care, hospitalization, or death, and unexplained or unanticipated death. The Access Rules updates requirements related to identifying, addressing, and tracking critical incidents. There are also requirements around investigation, resolution, and corrective action plans. As a result of the Access Rule, and related provisions in the APS Final Rule, state Medicaid and APS programs, if they are not already doing so, will need to develop reporting mechanisms for APS investigations of critical incidents.  ACL worked closely with CMS to align the Access and APS rules and is continuing to work together to identify best practices and provide future training. Watch for more information to come.  

The APS Blog is updated regularly with posts from contributing authors and new publications from the APS TARC.

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