[Senate Report 110-470]
[From the U.S. Government Publishing Office]
Calendar No. 1029
110th Congress Report
SENATE
2d Session 110-470
======================================================================
ELDER JUSTICE ACT
_______
September 18 (legislative day, September 17), 2008.--Ordered to be
printed
_______
Mr. Baucus, from the Committee on Finance, submitted the following
R E P O R T
[To accompany S. 1070]
The Committee on Finance, to which was referred the bill
(S. 1070) to amend the Social Security Act to enhance the
social security of the Nation by ensuring adequate public-
private infrastructure and to resolve to prevent, detect,
treat, intervene in, and prosecute elder abuse, neglect, and
exploitation, and for other purposes, reports favorably thereon
with an amendment, and recommends the bill, as amended, do
pass.
I. BACKGROUND AND NEED FOR LEGISLATION
More than a quarter of a century has passed since the first
Congressional hearings on elder abuse declared it to be a
national disgrace. Throughout this period, Congressional action
has remained limited. From a policy perspective, elder justice
means assuring that adequate public-private infrastructure and
resources exist to prevent, detect, treat, understand,
intervene in and, where appropriate, prosecute elder abuse,
neglect and exploitation. From an individual perspective, elder
justice is the right of every older individual to be free of
abuse, neglect and exploitation.
There are between 500,000 and five million older
individuals who are abused in this country every year. Despite
the dearth of data to quantify precisely the number of seniors
subjected to abuse, experts agree that we have only seen the
tip of the iceberg. In fact, according to the National
Incidence Study by the National Center on Elder Abuse, 84
percent of all cases of elder abuse are never reported. It is
clear that abuse and neglect shorten the victim's life, often
triggering a downward spiral, ``tipping over'' an otherwise
productive, self-sufficient older individual. There are three
main types of elder abuse--abuse and neglect in homes and
domestic settings; abuse and neglect in institutions and other
types of residential care; and financial fraud and
exploitation.
Studying the results of efforts to respond to other family
violence issues, such as domestic violence and child abuse, has
resulted in the conclusion that abuse, neglect and exploitation
require a multi-faceted solution, including public health,
social service and law enforcement approaches. While these
other types of abuse have been recognized and receive sizable
Federal funding, elder abuse remains under-researched, under-
reported and under-funded. The Elder Justice Act provides
Federal leadership to those on the front lines who are fighting
elder abuse with scarce resources and fragmented systems.
Highlights of the Elder Justice Act include the following:
Elevating elder justice issues to national attention. The
bill will establish within the Department of Health and Human
Services programmatic, grant-making, policy and technical
assistance functions relating to elder justice; creation of a
public-private Coordinating Council to coordinate activities of
all relevant Federal agencies, States, communities and private
and not-for-profit entities; and provide a consistent funding
stream and national coordination for Adult Protective Services
(APS).
Improving the quality, quantity and accessibility of
information. Efforts to develop an elder justice national data
repository that will increase the knowledge base and collect
data about elder abuse, neglect and exploitation will continue.
Increasing knowledge and supporting promising projects. To
help overcome the lack of research on elder abuse and related
issues, the Elder Justice Act will enhance research, clinical
practice, training, and dissemination of information relating
to these issues. Priorities include jump-starting intervention
research, developing community strategies to make elders safer,
and enhancing multi-disciplinary efforts.
Developing forensic capacity. There is scant data to assist
in the detection of elder abuse, neglect and exploitation.
Creating new forensic expertise (similar to that in child
abuse) will promote detection and increase expertise. New
programs will train health professionals in both forensic
pathology and geriatrics.
Increasing prosecution. The Elder Justice Act establishes
new penalties for failure to promptly report crimes in
residential care facilities and to provide notice of nursing
home closings.
Training. The Act supports training to combat elder abuse,
neglect and exploitation both within individual disciplines and
in multidisciplinary (such as public health-social service-law
enforcement) settings.
Model State Laws and Practices. A study will review State
practices and laws relating to elder justice.
Increasing Security, Collaboration, and Consumer
Information in Long-Term Care. The bill will:
Improve prompt reporting of crimes in long-
term care settings;
Enhance long-term care staffing;
Enhance the long-term care ombudsman
program;
Require a study on establishment of a
national nurse aide registry to enable background
checks on nurses' aides;
Provide information about long-term care for
consumers through a Consumer Clearinghouse;
Require new reporting of crimes in nursing
homes on the official federal website; and
Require establishment of consumer
information on nursing homes on the official federal
website.
Evaluations/Accountability. The bill contains provisions to
determine what works and assure funds are properly spent.
II. LEGISLATIVE HISTORY
After dozens of hearings in various Senate and House
committees from 1979 to the present, the Elder Justice Act, S.
2933, was first introduced by Senator John Breaux (D-LA) and
Senator Orrin G. Hatch (R-UT) on September 12, 2002, and
referred to the Senate Finance Committee. Under the
Chairmanship of Senator Max Baucus, the Senate Finance
Committee held a hearing on June 18, 2002, entitled Elder
Justice: Protecting Seniors from Abuse and Neglect. Five
experts on elder abuse testified, including Robert Blancato,
President, National Committee for Prevention of Elder Abuse;
Catherine Hawes, Ph.D., Professor, Department of Health Policy
and Management, School of Rural Public Health, Texas A&M
University; Joanne Otto, M.S.W., Executive Director, National
Association of Adult Protective Services Administrators; Carmel
Dyer, M.D., Associate Professor of Medicine, Baylor College of
Medicine; Randolph Thomas, M.A., Law Enforcement Instructor,
South Carolina Department of Public Safety, Criminal Justice
Academy; and Richard Bonnie, J.D., Chair, Panel to Review Risk
and Prevalence of Elder Abuse and Neglect, Committee on
National Statistics of the National Research Council.
Prominent in the discussion were the findings of the
National Research Council publication entitled Elder
Mistreatment: Abuse, Neglect, and Exploitation in an Aging
America. The National Research Council was directed by Congress
to assess the current state of knowledge in the area of elder
mistreatment and to formulate a set of recommendations for a
research agenda in the field. The National Research Council
reported that it was unable to formulate a research agenda for
several reasons, including unclear and inconsistent
definitions; unclear and inadequate measures; incomplete
professional accounts; lack of population-based data; lack of
prospective data; lack of control group; and lack of systematic
evaluation studies. No legislative action was taken during the
107th Congress.
Senators Breaux and Hatch introduced the Elder Justice Act,
S. 333, again during the 108th Congress on February 10, 2003,
and the bill was referred to the Senate Finance Committee.
On September 28, 2004, under the leadership of Chairman
Charles E. Grassley, the Senate Finance Committee considered
the bill in Executive Session and reported it unanimously. It
was placed on the Legislative Calendar but the Senate failed to
act on the bill.
Senator Orrin G. Hatch and Senator Blanche L. Lincoln (D-
AR) introduced the Elder Justice Act, S. 2010, again during the
109th Congress on November 15, 2005, and the bill was referred
to the Senate Finance Committee.
Under the leadership of Chairman Charles E. Grassley, the
Senate Finance Committee considered the bill in Executive
Session on August 4, 2006 and, for the second time, unanimously
reported it as an amendment in the nature of a substitute.
Subsequently, the Senate unsuccessfully attempted to pass the
Finance Committee-reported bill by unanimous consent.
Public Law 109-432, the Tax Relief and Health Care Act of
2006, required the Secretary of Health and Human Services, in
consultation with the Attorney General, to conduct a study on
establishing a uniform national database on elder abuse. This
requirement, contained in section 405 of the law, provided for
a maximum of two years to conduct the study and required a
report to congressional committees within 180 days of
completion of the study.
P.L. 109-365, the Older Americans Act Amendments of 2006,
includes a provision from the Elder Justice Act which
authorizes the Assistant Secretary on Aging to designate an
individual to be responsible for elder abuse and prevention
services, and to coordinate Federal elder justice activities.
This includes developing a long-term plan for the creation and
implementation of a coordinated, multidisciplinary elder
justice system.
Senators Lincoln and Hatch introduced the Elder Justice
Act, S. 1070, again in the 110th Congress on March 29, 2007,
and the bill was referred to the Senate Finance Committee.
Under the leadership of Chairman Max Baucus, the Senate Finance
Committee considered the bill in Executive Session on September
10, 2008, after postponement of an Executive Session scheduled
for August 1, 2008. On September 10, 2008, the Senate Finance
Committee unanimously reported the bill, for the third time, as
an amendment in the nature of a substitute.
III. SECTION-BY-SECTION ANALYSIS
Short Title; Table of Contents (Section 1 of the Committee Bill)
PRESENT LAW
No provision.
COMMITTEE BILL
The Committee Bill sets forth the title of the Act as the
Elder Justice Act of 2008, and outlines the table of contents.
Findings (Section 2 of the Committee Bill)
PRESENT LAW
No provision.
COMMITTEE BILL
The Committee Bill describes the following findings of
Congress:
1. The proportion of the United States population age 60 or
older will drastically increase in the next 30 years as more
than 76,000,000 baby boomers approach retirement and old age.
2. Each year, anywhere between 500,000 and 5,000,000 elders
in the United States are abused, neglected, or exploited.
3. Elder abuse, neglect, and exploitation have no
boundaries, and cross all racial, social class, gender, and
geographic lines.
4. Victims of elder abuse, neglect, and exploitation are
not only subject to injury from mistreatment and neglect, they
are also 3.1 times more likely than elders who were not victims
of elder abuse, neglect, and exploitation to die at an earlier
age than expected.
5. There is a general dearth of data as to the nature and
scope of elder abuse, neglect and exploitation. In recognition
of the need to improve data collection efforts with respect to
elder abuse, neglect, and exploitation, Congress required the
Secretary of Health and Human Services to conduct a study by
the end of 2008 on establishing a uniform national database on
elder abuse under section 405 of title IV of Division C of the
Tax Relief and Health Care Act of 2006 (Public Law 109-432).
6. Despite the dearth of data in the field, experts agree
that most cases of elder abuse, neglect, and exploitation are
never reported and that abuse, neglect, and exploitation
shorten a victim's life, often triggering a downward spiral of
an otherwise productive, self-sufficient elder's life. Programs
addressing other difficult issues such as domestic violence and
child abuse and neglect have demonstrated the need for a
multifaceted law, combining public health, social service and
law enforcement approaches.
7. For over 20 years, Congress has been presented with
facts and testimony calling for a coordinated Federal effort to
combat elder abuse, neglect, and exploitation.
8. The Federal government has been slow to respond to the
needs of victims of elder abuse, neglect, and exploitation or
to undertake prevention efforts.
9. No Federal law has been enacted that adequately and
comprehensively addresses the issues of elder abuse, neglect,
and exploitation and there are very limited resources available
to those in the field that directly deal with the issues.
10. Differences in State laws and practices in the areas of
elder abuse, neglect, and exploitation lead to significant
disparities in prevention, protective, and social services,
treatment systems, and law enforcement, and lead to other
inequities.
11. The Federal government has played an important role in
promoting research, training, public safety, and data
collection, and the identification, development, and
dissemination of promising health care, social and protective
services, and law enforcement practices, relating to child
abuse and neglect, domestic violence, and violence against
women. The Federal government should promote similar efforts
and protections relating to elder abuse, neglect, and
exploitation.
12. The Federal government should provide leadership and
assist States and communities in efforts to protect elders in
the United States by--
A. promoting coordinated planning among all levels of
government;
B. generating and sharing knowledge relevant to
protecting elders;
C. providing leadership to combat the abuse, neglect,
and exploitation of the Nation's elders; and
D. providing resources to States and communities to
promote elder justice.
13. The problem of elder abuse, neglect, and exploitation
requires a comprehensive approach that--
A. integrates the work of health, legal, and social
services agencies and organizations;
B. emphasizes the need for prevention, reporting,
investigation, assessment, treatment, and prosecution
of elder abuse, neglect, and exploitation at all levels
of government;
C. ensures that sufficient numbers of properly
trained personnel with specialized knowledge are in
place to treat, assess, and provide services related to
elder abuse, neglect, and exploitation and carry out
the elder protection duties;
D. is sensitive to ethnic and cultural diversity;
E. recognizes the role of mental health, disability,
dementia, substance abuse, medication mismanagement,
and family dysfunction problems in increasing and
exacerbating elder abuse, neglect, and exploitation;
and
F. balances elders' right to self-determination with
society's responsibility to protect elders.
14. The human, social, and economic cost of elder abuse,
neglect, and exploitation is high and includes unnecessary
expenditures of funds from many public programs.
15. The failure to coordinate activities relating to, and
comprehensively prevent and treat, elder abuse, neglect, and
exploitation threatens the future and well-being of millions of
elders in the United States.
16. All elements of society in the United States have a
shared responsibility in responding to a national problem of
elder abuse, neglect, and exploitation.
Purposes (Section 3 of the Committee Bill)
PRESENT LAW
No provision.
COMMITTEE BILL
The Committee Bill defines the purposes of the Elder
Justice Act, as follows:
To enhance the social security of the Nation by ensuring
adequate public-private infrastructure and resolving to
prevent, detect, treat, understand, intervene in, and where
appropriate, aid in the prosecution of, elder abuse, neglect,
and exploitation.
To bring a comprehensive approach to preventing and
combating elder abuse, neglect, and exploitation, a long
invisible problem that afflicts the most vulnerable among the
aging population of the United States.
To raise the issue of elder abuse, neglect, and
exploitation to national attention, and to create the
infrastructure at the Federal, State and local levels to ensure
that individuals and organizations on the front lines, who are
fighting elder abuse, neglect, and exploitation with scarce
resources and fragmented systems, have the resources and
information needed to carry out their fight.
To bring a comprehensive multidisciplinary approach to
elder justice.
To set in motion research and data collection to fill gaps
in knowledge about elder abuse, neglect, and exploitation.
To supplement the activities of service providers and
programs, to enhance training, and to leverage scarce resources
efficiently, in order to ensure that elder justice receives the
attention it deserves as the Nation's population ages.
To recognize and address the role of mental health,
disability, dementia, substance abuse, medication
mismanagement, and family dysfunction problems in increasing
and exacerbating elder abuse, neglect and exploitation.
To create short- and long-term strategic plans for the
development and coordination of elder justice research,
programs, studies, training, and other efforts nationwide.
To promote collaborative efforts and diminish overlap and
gaps in efforts in developing the important field of elder
justice.
To honor and respect the right of all individuals with
diminished capacity to decisionmaking autonomy, self-
determination, and dignity of choice.
To respect the wishes of individuals with diminished
capacity and their family members in providing supportive
services and care plans intended to protect elders from abuse,
neglect (including self-neglect), and exploitation.
Definitions (Section 4 of the Committee Bill)
PRESENT LAW
No provision.
COMMITTEE BILL
Section 4 of the Committee Bill would adopt the meaning of
any term that is defined in section 2011 of the Social Security
Act, as the meaning set forth by such section.
Elder Justice (Section 5 of the Committee Bill)
Amendments to the Social Security Act Title XX--Elder Justice (Section
5(a) of the Committee Bill)
PRESENT LAW
No provision.
COMMITTEE BILL
Section 5 of the Committee Bill would amend the Social
Security Act by adding ``Elder Justice'' to an amended Title
XX, entitled ``Block Grants to States for Social Services and
Elder Justice''. The Committee Bill would insert a new
``Subtitle 1--Block Grants to States for Social Services''
before Section 2001 of the Act and add a new ``Subtitle 2--
Elder Justice''.
Definitions (Section 2011 of the Social Security Act)
PRESENT LAW
Under current law ``abuse,'' ``caregiver,'' ``elder
justice,'' ``exploitation,'' ``fiduciary,'' ``long-term care,''
``long-term care facility,'' ``neglect,'' ``nursing facility,''
and ``self-neglect'' are defined in the Older Americans Act,
and ``sexually violent offense'' is defined in the Violent
Crime Control and Enforcement Act.
COMMITTEE BILL
The Committee Bill defines many terms. Definitions related
to some of the purposes of the new subtitle are defined in
other related statutes. These definitions are as follows:
PRESENT LAW AND THE COMMITTEE BILL: DEFINITIONS
------------------------------------------------------------------------
Term Present law Committee bill
------------------------------------------------------------------------
Abuse Section 102(a)(1) of the ``Abuse'' is defined as
Older Americans Act: the knowing infliction
``Abuse'' of an older of physical or
person is defined as the psychological harm or
willful infliction of the knowing deprivation
injury, unreasonable of goods or services
confinement, that are necessary to
intimidation, or cruel meet essential needs or
punishment with to avoid physical or
resulting physical harm, psychological harm.
pain, or mental anguish;
or deprivation by a
person, including a
caregiver, of goods or
services that are
necessary to avoid
physical harm, mental
anguish or mental
illness.
Adult protective No provision. ``Adult Protective
services Services'' is defined as
such services provided
to adults as the
Secretary may specify
and includes services
such as disseminating
reports of adult abuse,
neglect, and
exploitation;
investigating these
reports; case planning,
monitoring, evaluation,
and other case work and
services; and providing,
arranging for, or
facilitating the
provision of medical
social service,
economic, legal,
housing, law
enforcement, or other
protective, emergency,
or supportive services.
Caregiver Section 102(a)(18)(B) of ``Caregiver'' is defined
the Older Americans Act: as an individual who has
``Caregiver'' is defined the responsibility for
as an individual who has the care of an elder,
the responsibility for either voluntarily, by
the care of an older contract, by receipt of
individual, either payment for care, or as
voluntarily, by a result of the
contract, by receipt of operation of law, and
payment for care, or as means a family member or
a result of the other individual who
operation of law, and provides (on behalf of
means a family member or such individual or of a
other individual who public or private
provides (on behalf of agency, organization, or
such individual or of a institution) compensated
public or private or uncompensated care to
agency, organization, or an elder who needs
institution) compensated supportive services in
or uncompensated care to any setting.
an older individual.
Direct care No provision. ``Direct care'' is
defined to mean care by
an employee or
contractor who provides
assistance or long-term
care services to a
recipient.
Elder No provision. ``Elder'' is defined to
mean an individual age
60 or older.
Elder justice Section 102(a)(17) of the ``Elder justice'' is
Older Americans Act: defined to mean from a
``Elder Justice'' used societal perspective,
with respect to older efforts to prevent,
individuals, detect, treat, intervene
collectively, means in, and prosecute elder
efforts to prevent, abuse, neglect, and
detect, treat, intervene exploitation; and
in, and respond to elder protect elders with
abuse, neglect, and diminished capacity
exploitation and to while maximizing their
protect older autonomy; and from an
individuals with individual perspective,
diminished capacity the recognition of an
while maximizing their elder's rights,
autonomy; and used with including the right to
respect to an individual be free of abuse,
who is an older neglect, and
individual, means the exploitation.
recognition of the
individual's rights,
including the right to
be free of abuse,
neglect, and
exploitation.
Eligible entity No provision. ``Eligible entity'' is
defined to mean a State
or local government
agency, Indian tribe or
tribal organization, or
any other public or
private entity that is
engaged in and has
expertise in issues
relating to elder
justice or in a field
necessary to promote
elder justice efforts.
Exploitation Section 102(a)(18)(A) of ``Exploitation'' is
the Older Americans Act: defined as the
``Exploitation'' of an fraudulent or otherwise
older person is defined illegal, unauthorized,
as the fraudulent or or improper act or
otherwise illegal, process of an
unauthorized, or individual, including a
improper act or process caregiver or fiduciary,
of an individual, that uses the resources
including a caregiver or of an elder for monetary
fiduciary, that uses the or personal benefit,
resources of an older profit, or gain, or that
individual for monetary results in depriving an
or personal benefit, elder of rightful access
profit, or gain or that to, or use of, benefits,
results in depriving an resources, belongings,
older individual of or assets.
rightful access to, or
use of, benefits,
resources, belongings,
or assets.
Fiduciary Section 102(a)(20) of the ``Fiduciary'' is defined
Older Americans Act: as a person or entity
``Fiduciary'' means a with the legal
person or entity with responsibility--to make
the legal decisions on behalf of
responsibility--to make and for the benefit of
decisions on behalf of another person; and to
and for the benefit of act in good faith and
another person and to with fairness; and
act in good faith and includes a trustee, a
with fairness; and guardian, a conservator,
includes a trustee, a an executor, an agent
guardian, a conservator, under a financial power
an executor, an agent of attorney or health
under a financial power care power of attorney,
of attorney or health or a representative
care power of attorney, payee.
or a representative
payee.
Grant No provision. ``Grant'' is defined to
mean a contract,
cooperative agreement,
or other mechanism for
providing financial
assistance.
Guardianship No provision. ``Guardianship'' is
defined to mean: the
process by which a State
court determines that an
adult individual lacks
capacity to make
decisions about self-
care and property, and
appoints another
individual or entity
known as a guardian, as
a conservator, or by, a
similar term, as a
surrogate decisionmaker;
the manner in which the
court-appointed
surrogate decisionmaker
carries out duties to
the individual and the
court; or the manner in
which the court
exercises oversight of
the surrogate
decisionmaker.
Indian tribe Section 4 of the Indian ``Indian tribe'' is
Self-Determination and defined to have the same
Education Assistance meaning as such term in
Act: ``Indian tribe'' is section 4 of the Indian
defined as any Indian Self-Determination and
tribe, band, nation, or Education Assistance Act
other organized group or (25 U.S.C. 450b).
community, including any
Alaska Native village or
regional or village
corporation as defined
in or established
pursuant to the Alaska
Native Claims Settlement
Act (85 Stat. 688),
which is recognized as
eligible for the special
programs and services
provided by the United
States to Indians
because of their status
as Indians.
Law enforcement No provision. ``Law enforcement'' is
defined to mean the full
range of potential
responders to elder
abuse, neglect, and
exploitation including
police, sheriffs,
detectives, public
safety officers, and
corrections personnel;
prosecutors; medical
examiners;
investigators; and
coroners.
Long-term care Section 102(a)(34) of the ``Long-term care'' is
Older Americans Act: defined as supportive
``Long-term care'' is and health services
defined as any service, specified by the
care, or item (including Secretary of HHS for
an assistive device), individuals who need
including a disease assistance because the
prevention and health individuals have a loss
promotion service, an in- of capacity for self-
home service, and a case care due to illness,
management service-- disability, or
intended to assist vulnerability. The term
individuals in coping ``loss of capacity for
with, and to the extent self-care'' means an
practicable compensate inability to engage in 1
for, a functional or more activities of
impairment in carrying daily living, including
out activities of daily eating, dressing,
living; furnished at bathing, and management
home, in a community of one's financial
care setting [including affairs.
a small community care
setting, as defined in
subsection (g)(1), and a
large community care
setting as defined in
subsection (h)(1) of
section 1929 of the
Social Security Act], or
in a long-term care
facility; and not
furnished to prevent,
diagnose, treat, or cure
a medical disease or
condition.
Loss of capacity No provision. ``Loss of capacity for
for self-care self-care'' is defined
to mean a residential
care provider that
arranges for, or
directly provides, long-
term care.
Long-term care Section 102(a)(35) of the ``Long-term care
facility Older Americans Act: facility'' is defined as
``Long term care a residential care
facility'' is defined as provider that arranges
a skilled nursing for, or directly
facility as defined in provides, long-term
section 1819(a) of the care.
Social Security Act; any
nursing facility, as
defined in section
1919(a) of the Social
Security Act; and for
purposes of the title
III and title VII
provisions for elder
abuse prevention, a
board and care facility,
and any other adult care
home, including an
assisted living
facility, similar to a
facility or institution
described in
102(a)(35)(A) through
(C).
Neglect Section 102(a)(38) of the ``Neglect'' is defined as
Older Americans Act: the failure of a
``Neglect'' is defined caregiver or fiduciary
as the failure of a to provide the goods or
caregiver (as defined in services that are
section 102(a)(18)(B) of necessary to maintaining
the Older Americans Act the health or safety of
or fiduciary to provide an elder, or self-
the goods or services neglect.
that are necessary to
maintain the health or
safety of an older
individual; or self-
neglect.
Nursing facility Section 1919(a) of the ``Nursing facility'' is
Social Security Act: defined as such term
``Nursing facility'' is under section 1919(a) of
defined as an the Social Security Act
institution (or distinct and includes a skilled
part of an institution) nursing facility [as
which is (1) primarily defined in section
engaged in providing to 1819(a) of the Social
residents--skilled Security Act].
nursing care and related
services for residents
who require medical or
nursing care,
rehabilitation services
for the rehabilitation
of injured, disabled, or
sick persons, or on a
regular basis, health-
related care and
services to individuals
who because of their
mental or physical
condition require care
and services (above the
level of room and board)
which can be made
available to them only
through institutional
facilities, and is not
primarily for the care
and treatment of mental
diseases; (2) has in
effect a transfer
agreement (meeting the
requirements of section
1861(l)) with one or
more hospitals having
agreement in effect
under section 1866; and
meets the requirements
for a nursing facility
described in sections
1919(b), (c), and (d).
Self-neglect Section 102(a)(47) of the ``Self-neglect'' is
Older Americans Act: defined as an adult's
``Self-neglect'' is inability, due to
defined as an adult's physical or mental
inability, due to impairment or diminished
physical or mental capacity, to perform
impairment or diminished essential self-care
capacity, to perform tasks including--
essential self-care obtaining essential
tasks including-- food, clothing, shelter,
obtaining essential and medical care;
food, clothing, shelter, obtaining goods and
and medical care; services necessary to
obtaining goods and maintain physical
services necessary to health, mental health,
maintain physical or general safety; or
health, mental health, managing one's own
or general safety; or financial affairs.
managing one's own
financial affairs.
Serious bodily No provision. ``Serious bodily injury''
injury is defined to mean an
injury: involving
extreme physical pain;
involving substantial
risk of death; involving
protracted loss or
impairment of the
function of a bodily
member, organ, or mental
faculty; or requiring
medical intervention
such as surgery,
hospitalization, or
physical rehabilitation.
Criminal sexual Title XVII of the Violent ``Criminal sexual abuse''
abuse Crime Control and is defined to mean
Enforcement Act: a serious bodily injury
``sexually violent that shall be considered
offence'' is defined as to have occurred if the
any criminal offense conduct causing the
that consists of injury is conduct
aggravated sexual abuse described in section
or sexual abuse (as 2241 (relating to
defined by 18 U.S.C. aggravated sexual abuse)
section 2241 and 2242 or or 2242 (relating to
as defined by State law) sexual abuse) of title
or an offense that has 18, United States Code,
as its elements engaging or any similar offence
in physical contact with under State law.
another person with
intent to commit
aggravated sexual abuse
or sexual abuse.
Social No provision. ``Social'' is defined to
mean, when used with
respect to a service,
the inclusion of adult
protective services.
State legal No provision. ``State legal assistance
assistance developer'' is defined
developer to mean an individual
described in section 731
of the Older Americans
Act of 1965.
State long-term No provision. ``State long-term care
care ombudsman ombudsman'' is defined
to mean the State long-
term care ombudsman
described in section
712(a)(2) of the Older
Americans Act of 1965.
------------------------------------------------------------------------
General Provisions (Section 2012 of the Social Security Act)
Protection of Privacy
PRESENT LAW
The Health Insurance Portability and Accountability Act of
1996 (HIPAA), section 264 governs the protection of individual
health privacy.
COMMITTEE BILL
The Committee Bill would require the Secretary of HHS to
ensure the protection of individual health privacy consistent
with the regulations promulgated under section 264(c) of HIPAA
and applicable State and local privacy regulations.
Rule of Construction
PRESENT LAW
No provision.
COMMITTEE BILL
Section 2012 would prohibit the proposed subtitle from
being construed to interfere with or abridge an elder's right
to practice his or her religion through reliance on prayer
alone for healing when this choice is: (1) expressed, either
orally or in writing, (2) set forth in a living will, health
care proxy, or other advance directive documents, or (3) may be
deduced from an elder's life history.
Part A--National Coordination of Elder Justice Activities and Research
Subpart 1--Elder Justice Coordinating Council and Advisory Board on
Elder Abuse, Neglect, and Exploitation
Elder Justice Coordinating Council (Section 2021 of the Social Security
Act)
PRESENT LAW
No provision.
COMMITTEE BILL
Section 2021 would establish an Elder Justice Coordinating
Council in the Office of the Secretary of Health and Human
Services.
Membership. The Council would be composed of the following
members: the Secretary of HHS (or designee) who will chair the
Council and the Attorney General (or designee). Membership
would also include the head of each Federal department or
agency having administrative responsibility or administering
programs related to elder abuse, neglect or exploitation.
Members must be officers or employees of the Federal
government.
Meetings. The Council is to meet at least twice a year.
Duties and Reports. The Council would be required to make
recommendations to the Secretary of HHS regarding coordination
of activities of the Department of Health and Human Services,
Department of Justice, and other relevant Federal, State,
local, and private agencies and entities, relating to
prevention of elder abuse, neglect, and exploitation and other
crimes against elders. The Council would be required to submit
a report to Congress that describes its activities and
challenges; and make recommendations for legislation, model
laws and other actions deemed appropriate. The report is to be
submitted to Congress within 2 years of enactment of the Elder
Justice Act and every 2 years thereafter.
Other Requirements. The Committee Bill also sets forth
requirements for powers of the Council, vacancies in
membership, travel expenses, and detail of Federal government
employees to the Council.
Advisory Board on Elder Abuse, Neglect and Exploitation (Section 2022
of the Social Security Act)
PRESENT LAW
No provision.
COMMITTEE BILL
Section 2022 would establish the Advisory Board on Elder
Abuse, Neglect and Exploitation.
Solicitation of Nominations, Membership, and Terms. The
Secretary of HHS would be required to publish a notice in the
Federal Register soliciting nominations for Advisory Board
membership. The Board would be composed of 27 members appointed
by the Secretary, and must have experience and expertise in
prevention of elder abuse, neglect, and exploitation. Each
member would be appointed for a three-year term, except for the
first members of the Board whose terms would be staggered.
Duties and Reports. The Board would be required to create a
short- and long-term multidisciplinary plan for development of
the field of elder justice.
Within 18 months of enactment and annually thereafter, the
Advisory Board would be required to prepare and submit to the
Elder Justice Coordinating Council and the appropriate
committees of Congress, a report containing information on
Federal, State, and local public and private elder justice
activities. The report is also to contain recommendations on
programs, research, services, practice, enforcement and
coordination among entities that carry out elder justice and
other related activities; modifications needed in Federal and
State laws, research, training, and national data collection;
and on a multidisciplinary strategic plan to guide the field of
elder justice.
Other Requirements. The Committee Bill sets forth
requirements relating to powers of the Board, vacancies,
expired terms, election of officers, travel expenses, and
detail of government employees to the Board.
Research Protections (Section 2023 of the Social Security Act)
PRESENT LAW
Definition of Legally Authorized Representative. Subpart A
of part 46 of title 45, Code of Federal Regulations, known as
the Common Rule, that governs most federally-funded human
subjects research, currently defines the term ``legally
authorized representative'' as ``an individual or judicial or
other body authorized under applicable law to consent on behalf
of a prospective subject to the subject's participation in the
procedure(s) involved in the research.''
Researcher Guidelines. No guidelines are currently in place
to assist researchers who work in the areas of elder abuse,
neglect, and exploitation, with issues relating to human
subjects research.
COMMITTEE BILL
Section 2023 would define ``legally authorized
representative,'' for purposes of research under the proposed
subpart 1, to mean, unless otherwise provided by law, the
individual, or judicial or other body authorized under the
applicable law to consent to medical treatment on behalf of
another person.
It would also require the Secretary of HHS, acting through
the Director of the National Institute on Aging (NIA), to
promulgate guidelines to assist researchers working in the
areas of elder abuse, neglect, and exploitation, with issues
relating to human subjects research.
Authorization of Appropriations (Section 2024 of the Social Security
Act)
PRESENT LAW
No provision.
COMMITTEE BILL
To carry out the functions under the proposed subpart 1
(Elder Justice Coordinating Council and Advisory Board on Elder
Abuse, Neglect, and Exploitation), the Committee Bill would
authorize $6.5 million for FY2009, and $7.0 million for each of
FYs 2010-2012.
Subpart 2--Elder Abuse, Neglect, Exploitation Forensic Centers
Establishment and Support of Elder Abuse, Neglect, and Exploitation
Forensic Centers (Section 2031 of the Social Security Act)
PRESENT LAW
No provision.
COMMITTEE BILL
The Committee Bill would require the Secretary of HHS, in
consultation with the Attorney General, to award grants to
eligible entities to establish and operate both stationary and
mobile forensic centers and to develop forensic expertise
pertaining to elder abuse, neglect, and exploitation. With
respect to the stationary forensic centers, the Committee Bill
would require the Secretary to make four grants to higher
education institutions with demonstrated expertise in forensics
or commitment to preventing or treating elder abuse, neglect,
or exploitation; and, with respect to mobile forensic centers,
the Committee Bill would require the Secretary to make six
grants to appropriate entities.
Funding would be authorized for the centers to: (1) develop
forensic markers that would determine whether abuse or neglect
occurred and whether a crime was committed, and determine
methodologies for how and when intervention should occur; (2)
develop forensic expertise with respect to elder abuse,
neglect, and exploitation in order to provide relevant
evaluation, intervention, support and advocacy, case review and
tracking; and (3) in coordination with the Attorney General,
use data made available by grant recipients under this section
to develop the capacity of geriatric health care professionals
and law enforcement to collect forensic evidence, including
forensic evidence relating to a potential determination of
elder abuse, neglect, or exploitation.
The Committee Bill would authorize $4 million in FY2009, $6
million in FY2010, and $8 million for each of FYs 2011 and 2012
to carry out these activities.
Part B--Programs to Promote Elder Justice
Enhancement of Long-Term Care (Section 2041 of the Social Security Act)
PRESENT LAW
Nursing homes that participate in Medicare and Medicaid are
required to meet certain Federal laws and standards to receive
funding. These laws require nursing aides, who work on a full-
time basis for more than four months, to complete a training
and/or competency evaluation program and be competent to
provide care. Nursing homes must also provide regular
performance reviews and in-service education (including
training for individuals providing nursing and nursing-related
services to residents with cognitive impairments) to assure
that nurse aides are competent to perform services. Medicaid
and Medicare law and regulations also require nurse aides to
complete a training program lasting no less than 75 clock hours
of training, at least 16 hours of which must be supervised
practical training. Many States also have additional training
requirements, including additional hours for practical and
clinical training, that nursing homes must meet to operate in
the State.
A number of States have also used enhanced Medicaid funding
to improve recruitment and retention of nurse aides working in
nursing homes. For these States, some portion of an increase in
State Medicaid payments (and other public funding sources) to
long-term care providers must be (or are intended to be) used
to increase wages and or benefits for nursing aides. Typically,
this ``wage pass-though'' legislation has either designated
some specified dollar amount (e.g., $0.50 or $1.00) or a
certain percentage of increased State payments to be used for
wages and or benefits.
The Nurse Reinvestment Act (P.L. 107-205) includes
provisions that are intended to attract and retain persons in
the nursing profession in general, but are not specifically
directed to long-term care facilities. Provisions include
assistance to individuals to attract more persons to the
nursing profession, and career ladder development programs to
assist individuals in obtaining education required to enter the
nursing profession and advance within the profession; student
loan assistance for certain persons pursuing degrees in
nursing; and direction to use public service announcements and
grants to support State and local advertising campaigns to
recruit new persons to the nursing profession.
Nursing Home Compare is a website hosted by the Department
of Health and Human Services that allows consumers to search
for data on certain quality indicators for nursing homes
certified to participate in Medicare and/or Medicaid across the
United States. The information reported on this site includes
selected findings of the Survey and Certifications surveys
conducted by State Survey agencies during the three most recent
inspections and complaint investigations. Specifically, the
website contains data on the Federal regulatory requirements
that the nursing home failed to meet as reported on the form
HCFA-2567. There is currently no requirement that information
about the adjudication of criminal violations be reported on
this website.
COMMITTEE BILL
Section 2041 would require the Secretary of HHS to carry
out activities that provide incentives for individuals to train
for, seek, and maintain employment providing direct care in
long-term care facilities.
Coordination of Federal Agencies to Train Long-Term Care
Staff. The Secretary of HHS would be required to coordinate
activities with the Secretary of Labor to provide incentives
for individuals to train for and seek employment as direct care
providers in long-term care facilities.
Career Ladders, Wage and Benefit Grants. The Secretary of
HHS would be required to award grants to long-term care
facilities to conduct programs that offer direct care employees
continuing training and varying levels of certification. Grants
would also be used to provide for or make arrangements with
employers to pay bonuses, or other increased compensation or
benefits, to employees who obtain certification. To receive
grant funds, long-term care facilities would submit
applications directly to the Secretary.
Management Improvement. The Secretary of HHS would be
required to award grants to long-term care facilities for
training and technical assistance. Eligible recipients could
include administrators, directors of nursing, staff developers,
charge nurses, and others who establish or implement management
practices for direct care employees. Training and technical
assistance would be intended to promote retention and could
include: (1) the establishment of human resource policies
rewarding high performance, including policies that provide for
improved wages and benefits on the basis of job reviews; (2)
the establishment of motivational organizational practices; (3)
the creation of a workplace culture that respects and values
caregivers and their needs; (4) the promotion of a workplace
culture that respects the rights of residents and results in
improvements in their care; and (5) the establishment of other
programs that promote high-quality care, such as continuing
education for certified nurse aide employees. Long-term care
facilities would submit applications to the Secretary to
qualify for grant funds. The Secretary would be required to
develop accountability measures to ensure that funded
activities under this subsection benefit eligible employees and
increase the stability of the long-term care workforce.
Informatics Systems Grant Program. The Secretary of HHS
would be authorized to make grants to long-term care facilities
for the purpose of assisting such entities in offsetting the
costs related to purchasing, leasing, developing, and
implementing standardized clinical health care informatics
systems designed to improve patient safety and reduce adverse
events and health care complications resulting from medication
errors.
Funds may be used for the following activities: (1)
purchasing, leasing, and installing computer software and
hardware, including handheld computer technologies; (2) making
improvements and upgrades to existing computer software and
hardware; (3) making upgrades and other improvements to
existing computer software and hardware to enable e-
prescribing; (4) providing education and training to eligible
long-term care facility staff on the use of technology to
implement the electronic transmission of prescription and
patient information.
Long-term care facilities would submit applications to the
Secretary of HHS to qualify for grant funds. The Secretary
would be required to develop accountability measures to ensure
that funded activities under this subsection help improve
patient safety and reduce adverse events and health care
complications resulting from medication errors.
Inclusion of Certain Crimes on Nursing Home Compare
Website. Within one year of enactment, the Secretary of HHS
would be required to ensure that the Department includes, as
part of the information provided for comparison of nursing
facilities on the Federal Government's Nursing Home Compare
website for Medicare beneficiaries, information related to the
number of adjudicated instances of criminal violations by a
nursing facility or crimes committed by an employee of a
nursing facility. Information on these criminal violations or
crimes shall be with respect to: (1) those crimes that were
committed inside the facility; and (2) such instances of
violations or crimes committed outside of the facility, that
were the violations or crimes of elder abuse, neglect, and
exploitation, criminal sexual abuse of an elder, or other
violations or crimes that resulted in the serious bodily injury
of an elder.
Consumer Rights Information Page on Nursing Home Compare
Website. Within one year of enactment, the Secretary of HHS
would be required to ensure that the Department, as part of the
information provided for comparison of nursing facilities on
the Federal government's Nursing Home Compare website, develops
and includes a consumer rights information page that contains
links to descriptions of, and information with respect to:
documentation on nursing facilities available to the public;
tips on choosing a nursing facility that meets the needs of the
individual; consumer rights; the nursing facility survey
process; and services available through the State long-term
care ombudsman.
Standards Involving Clinical Data by Long-Term Care
Facilities. The Secretary of HHS would be required to develop
and adopt uniform and open electronic standards for the
submission of clinical data by long-term care facilities to the
Secretary. Such standards shall include messaging and
nomenclature standards. The standards developed and adopted
must be compatible with standards established under part C of
title XI, standards established under subsections (b)(2)(B)(i)
and (e)(4) of section 1860D-4, and with general health
information technology standards. Within 10 years after the
date of enactment, the Secretary would be required to have
procedures in place to accept the optional electronic
submission of clinical data by long-term care facilities.
Regulations. The Secretary of HHS would be required to
promulgate regulations to carry out subsections related to: (1)
the inclusion of certain crimes on the Nursing Home Compare
website; (2) consumer rights information page on Nursing Home
Compare website; and (3) standards involving clinical data by
long-term care facilities [i.e., subsections (c), (d), and (e)
of this section]. Such regulations would require a State, as a
condition of the receipt of funds under part B, to conduct such
data collection and reporting as the Secretary determines
necessary.
The Committee Bill would authorize $20 million for FY2009,
$17.5 million for FY2010, and $15 million for each of FYs 2011
and 2012 to carry out these activities.
Adult Protective Service Functions and Grant Program (Section 2042 of
the Social Security Act)
Adult Protective Services--Functions
PRESENT LAW
Provisions related to some functions of adult protective
services are found in title XX of the Social Security Act
[Social Services Block Grant, administered by the
Administration on Children and Families (ACF)] and in the Older
Americans Act (administered by AoA), both in HHS, as follows.
Title XX of the Social Security Act. Title XX permanently
authorizes the Social Services Block Grant (SSBG) as a
``capped'' entitlement to States to carry out a wide range of
social services on behalf of various groups. The statute sets
out a number of goals for the use of these funds, including the
goal of ``preventing or remedying neglect, abuse, or
exploitation of children and adults unable to protect their own
interests * * *.'' Funds are generally administered by State
social services or human services agencies (for this purpose,
sometimes referred to as adult protective services offices),
and/or State agencies on aging.
No match is required for title XX funds, and Federal law
does not specify a sub-State allocation formula. In other
words, States have complete discretion for the distribution of
funds within their borders. Based on the 2006 Annual Report for
the Social Services Block Grant (the most recent year for which
data are available), States reported spending $204 million on
adult protective services [of which $5.5 million was from funds
transferred by States from their Temporary Assistance for Needy
Families (TANF) block grants to the SSBG]. Data reported by
States indicate that in FY2006 37 States used some portion of
Title XX funds for adult protective services and approximately
531,000 adults received adult protective services funded (at
least in part) by SSBG funds. Of those, approximately 188,000
were age 60 or older. Of all State expenditures under title XX
for FY2006, 7.4 percent were for protective services for
adults.\1\
---------------------------------------------------------------------------
\1\ A percentage of expenditures differs from a percentage of the
title XX appropriation. Title XX expenditures include spending from
funds transferred from the Temporary Assistance for Needy Families
(TANF) program to title XX.
---------------------------------------------------------------------------
Older Americans Act. Title II of the Older Americans Act
authorizes the HHS Assistant Secretary on Aging to designate
within AoA a person with responsibility for elder abuse
prevention and services to develop objectives, priorities,
policy, and a long-term plan for facilitating the development,
implementation, and improvement of a coordinated,
multidisciplinary elder justice system; providing Federal
leadership to support State efforts in carrying out elder
justice programs; establishing Federal guidelines and
disseminating best practices for data collection and reporting
by States; working with States, the Department of Justice, and
other Federal entities to disseminate data relating to elder
abuse, neglect, and exploitation; conducting research related
to elder abuse, neglect, and exploitation; and promoting
collaborative efforts and reducing duplicative efforts in the
development and carrying out of elder justice programs at the
Federal, State and local levels, among other things. It is also
the Assistant Secretary's duty, acting through the person with
responsibility for elder abuse prevention and services, to
assist States and other eligible entities under title VII to
develop strategic plans to better coordinate elder justice
activities, research, and training (see below).
Title II of the Older Americans Act also requires the
Assistant Secretary on Aging to establish a National Center on
Elder Abuse, administered by the AoA. The Center is required
to, among other things, compile, publish and disseminate
research and training materials on prevention of elder abuse,
neglect, and exploitation; maintain a clearinghouse on programs
showing promise in preventing elder abuse, neglect, and
exploitation; conduct research and demonstration projects that
identify causes and prevention, and treatment; and provide
technical assistance to State agencies and other organizations
in planning and improving prevention programs. The funding
available in FY2008 for the National Center on Elder Abuse is
approximately $797,000.
Title III of the Older Americans Act authorizes, but does
not require, State agencies on aging to conduct various
activities related to prevention of elder abuse, neglect and
exploitation. No Federal funds are separately appropriated for
this purpose under title III, and States decide how much of
their title III allotments are to be used for prevention
activities. In many States, State agencies on aging administer
funds for adult protective services funded under title XX of
the Social Security Act (described above).
Title VII of the Older Americans Act authorizes a program
of grants to States to carry out activities related to
prevention of elder abuse, neglect, and exploitation. Funds are
administered by State agencies on aging. In FY2008, the
appropriation level for this program under title VII is $5.1
million.
Title VII, subtitle B, Native American Organization and
Elder Justice Provisions of the Older Americans Act, also
authorizes a State grant program to promote comprehensive elder
justice systems. The Assistant Secretary on Aging is authorized
to award competitive grants to States for elder justice systems
which are to provide for convenient public access to the range
of available elder justice information, programs and services;
coordinate the efforts of public health, social service and law
enforcement authorities to identify and diminish duplication
and gaps in the system; and provide a uniform method for
standardization, collection, management, analysis and reporting
data on elder justice issues. States that receive grants are to
develop and implement a comprehensive elder justice system by
taking the following steps: establishing a formal working
relationship among public and private elder justice providers
and stakeholders in order to create a unified system across the
State; facilitating and supporting the development of a
management information system and standard data elements; and
providing for appropriate education, training and technical
assistance. Congress did not appropriate funds for elder
justice systems grants in FY2008.
Section 1128E of the Social Security Act requires the
Secretary of HHS to maintain a national health care fraud and
abuse data collection program for the reporting of final
adverse actions (not including settlements in which no findings
of liability have been made), including health care related
civil judgments and criminal convictions of health care
practitioners, providers and suppliers. The database is
directed by HHS, acting through the office of Attorney General,
and is named the Healthcare Integrity and Protection Data Bank
(HIPDB).
For the purpose of this database, Medicaid regulation 42
CFR Sec. 455.12 requires that State agencies report the number
of complaints of fraud and abuse made to the agency that
warrant preliminary investigation. For each case, reports
should include the provider's name and number; the source of
the complaint; the type of provider; the nature of the
complaint; the approximate range of dollars involved; and the
legal and administrative disposition of the case, including
actions taken by law enforcement officials to whom the case has
been referred. Section 1128E requires the Secretary of HHS to
include procedures assuring that the privacy of individuals
receiving health care services is appropriately protected.
The Secretary of HHS makes available the information in the
database to government agencies and health plans and, upon
request, to health care providers, suppliers and practitioners
who wish to self-query. The Secretary may establish or approve
fees sufficient to recover the full costs of the databases'
operation. According to section 1128E(g)(1)(A) of the Social
Security Act, a final adverse action includes: (1) civil
judgments related to the delivery of a health care item or
service that are against a health care provider or practitioner
in Federal or State court; (2) Federal or State criminal
convictions related to the delivery of health care; (3) certain
actions by Federal or State agencies responsible for the
licensing and certification of providers and licensed
practitioners; (4) prohibition against participating in Federal
or State health care programs; or (5) any other adjudicated
actions or decisions established by the Secretary under
regulation.
Medicare regulation 42 CFR Sec. 483.374 also requires
facilities to report each serious occurrence to both the State
Medicaid agency and, unless prohibited by State law, the State-
designated protection and advocacy system.
COMMITTEE BILL
Section 2042 would establish certain functions with respect
to Adult Protective Services (APS) to be administered by the
Secretary of HHS.
Adult Protective Services--Functions. The Secretary of HHS
would be required to ensure that the Department: (1) provide
funding to State and local adult protective services offices
that investigate reports of elder abuse, neglect, and
exploitation; (2) collect and disseminate related data in
coordination with the Department of Justice; (3) conduct
research related to the provision of adult protective services;
and (4) provide technical assistance to States and other
entities that provide or fund the provision of adult protective
services.
The Committee Bill would authorize $3 million for FY2009,
and $4 million for each of FYs 2010-2012 to carry out these
functions.
Adult Protective Services Grant Program (State Formula Grants)
PRESENT LAW
No provision exists in current law for State formula grants
that are solely and specifically targeted at providing adult
protective services and carrying out projects to employ workers
having caseloads of elders alone.
Some other legislation is related to adult protective
services, as follows.
Title XX of the Social Security Act. Title XX of the Social
Security Act permanently authorizes the Social Services Block
Grant (SSBG) as a ``capped'' entitlement to States to carry out
a wide range of social services on behalf of various groups.
The statute sets out a number of goals for the use of these
funds, including the goal of ``preventing or remedying neglect,
abuse, or exploitation of children and adults unable to protect
their own interests* * *.'' Funds are generally administered by
State social services or human services agencies (for this
purpose, sometimes referred to as adult protective services
offices), and/or State agencies on aging.
Title III of the Older Americans Act authorizes, but does
not require, State agencies on aging to conduct various
activities related to prevention of elder abuse, neglect and
exploitation, which may include adult protective services. No
Federal funds are separately appropriated for this purpose
under title III, and States decide how much of their title III
allotments are to be used for these activities. In many States,
State agencies on aging administer funds for adult protective
services funded under title XX of the Social Security Act
(described above).
Title VII of the Older Americans Act authorizes a program
of grants to States to carry out activities related to
prevention of elder abuse, neglect, and exploitation. Funds are
administered by State agencies on aging. In FY2008, the
appropriation level for this program under title VII is $5.1
million.
COMMITTEE BILL
Section 2042 would provide for grants to improve Adult
Protective Services.
Grants to Improve Worker Caseloads for Adult Protection
Services. The Secretary of HHS would be required to award
annual grants to enhance adult protective service programs
provided by States and local governments.
Formula for Distribution of Funds. Distribution of funds to
States would be based on a formula that takes into account the
number of elders (people age 60 or older) residing in a State
relative to the total U.S. population of elders. States would
receive no less than 0.75 percent of the grant program's annual
appropriation. The District of Columbia, Puerto Rico, the U.S.
Virgin Islands, Guam, and American Samoa would receive no less
than 0.1 percent of the annual appropriation. In order to
comply with these minimum amount requirements, the Director is
required to make pro rata reductions in amounts to be allotted.
Use of Funds. Funds may be used only by States and local
governments to provide adult protective services. States
receiving funds would be required to provide these funds to the
agency or unit of State government having legal responsibility
for providing adult protective services in the State. Each
State would be required to use these funds to supplement and
not supplant other Federal, State, and local public funds
expended to provide adult protective services.
Reports. Each State would be required to submit a report to
the Secretary of HHS on the number of elders served by the
grants.
The Committee Bill would authorize $100 million for each of
FYs 2009-2012.
Adult Protective Services (Demonstration Program)
PRESENT LAW
No provision in current law specifically authorizes a
dedicated amount of funds for State adult protective service
demonstration programs. However, the Older American Act
authorizes a related demonstration program (as follows), but no
specific authorization is specified by law.
Section 413 of the Older Americans Act, Older Individuals'
Protection from Violence Projects, requires the Assistant
Secretary on Aging to award funds to States, area agencies on
aging, nonprofit organizations, or tribal organizations to
carry out a wide range of projects related to protection of
older persons from violence. Funds are to be used to: support
local communities to coordinate activities regarding
intervention in and prevention of abuse, neglect, and
exploitation; develop outreach to assist victims; expand access
to family violence and sexual assault programs (including
shelters, rape crisis centers, and support groups) as well as
mental health services, safety planning and other services; and
promote research on legal organization and training impediments
to providing services through shelters and other programs.
COMMITTEE BILL
Section 2042 would require the Secretary of HHS to
establish grants to States for adult protective service
demonstration programs. Funds may be used by State and local
units of government to conduct demonstration programs that
test: training modules developed for the purpose of detecting
or preventing elder abuse; methods to detect or prevent
financial exploitation and elder abuse; whether training on
elder abuse forensics enhances the detection of abuse by
employees of State or local government; and other related
matters. States would be required to submit applications to the
Secretary of HHS. Each State receiving funds would be required
to submit a report on the demonstration to the Secretary.
The Committee Bill would authorize $25 million for each of
FYs 2009-2012 to carry out these activities.
Long-Term Care Ombudsman Program Grants and Training (Section 2043 of
the Social Security Act)
PRESENT LAW
Title II of the Older Americans Act requires the Assistant
Secretary on Aging to establish the National Long-Term Care
Ombudsman Resource Center under the Director of the Long-Term
Care Ombudsman program. The Center is required to, through
grants and contracts, conduct research, provide training,
technical assistance and information to support the activities
of State and local long-term care ombudsmen. The Center also
assists State long-term care ombudsmen in the implementation of
the State long-term care ombudsman program.
Funds awarded to the Center are not separately authorized
and are awarded through title IV of the Older Americans Act
(Research, Training and Demonstration Projects and Programs).
The State long-term care ombudsman program is authorized by
title VII of the Act (Allotments for Vulnerable Elder Rights
Protection Activities). Funding available in FY 2008 for the
National Long Term Care Ombudsman Resource Center is
approximately $537,000.
COMMITTEE BILL
Section 2043 would require the Secretary of HHS to provide
grants to support the long-term care ombudsman program and to
establish a program for ombudsman training.
Grants to Support the Long-Term Care Ombudsman Program. The
Secretary of HHS would be required to award grants to eligible
entities with relevant expertise and experience in abuse and
neglect in long-term care facilities or long-term care
ombudsman programs to: (1) improve the capacity of State long-
term care ombudsman programs to respond to and resolve abuse
and neglect complaints; (2) conduct pilot programs with State
or local long-term care ombudsman offices; and (3) provide
support for such State long-term care ombudsman programs and
such pilot programs.
The Committee Bill would authorize $5 million for FY 2009,
$7.5 million for FY 2010, and $10 million for FYs 2011 and
2012.
Ombudsman Training Programs. The Secretary of HHS would be
required to establish programs to provide and improve ombudsman
training with respect to elder abuse, neglect, and exploitation
for national organizations and State long-term care ombudsman
programs.
The Committee Bill would authorize $10 million for each of
FYs 2009-2012.
Provision of Information Regarding, and Evaluation of, Elder Justice
Programs (Section 2044 of the Social Security Act)
Provision of Information
PRESENT LAW
No provision.
COMMITTEE BILL
To be eligible to receive a grant under part B of the Act,
section 2044 would require grantees to provide the required
information to eligible entities conducting an evaluation of
the activities funded through the grant. The Committee Bill
would require the Secretary of HHS to reserve a portion of the
funds appropriated in each program under part B to be used to
provide assistance to eligible entities to conduct validated
evaluations of the effectiveness of the activities funded under
that program. To be eligible to receive these funds, an
eligible entity must submit an application to the Secretary
following the timing requirement prescribed by the Secretary
including a proposal for the evaluation.
Entities would be required to submit to the Secretary of
HHS and appropriate congressional committees a report
containing the results of the evaluation together with any
recommendations deemed appropriate. The report would be due by
the date specified by the Secretary.
These evaluation activities would not apply to the
Informatics Systems Grant Program, instead the Secretary of HHS
would be required to conduct an evaluation of the activities
funded under these grants.
Report (Section 2045 of the Social Security Act)
Report
PRESENT LAW
Currently, no provision exists concerning Federal agency
coordination to encourage the employment of welfare recipients
or recipients of Temporary Assistance to Needy Families (TANF)
in long-term care facilities.
COMMITTEE BILL
Section 2045 would set forth reporting requirements and add
an option for a State's TANF State plan to assist individuals
seeking employment in long-term care facilities.
Report. Not later than October 1, 2012, the Secretary of
HHS would be required to submit a report to the Elder Justice
Coordinating Council and appropriate congressional committees,
compiling, summarizing, and analyzing State reports submitted
under the Adult Protective Services grant programs [section
2042(b)(4) and (c)(4)] and recommendations for legislative or
administrative action.
Option for State Plan Under Program for Temporary
Assistance for Needy Families. Section 2045 would amend section
402(a)(1)(B) of the SSA to add an option for a State's TANF
State plan to indicate whether the State intends to assist
individuals who train for, seek, and maintain employment
providing direct care in a long-term care facility or in other
occupations related to elder care. States that add this option
would be required to provide an overview of such assistance.
Protecting Residents of Long-Term Care Facilities
PRESENT LAW
No present law exists concerning a national training
institute for surveyors or grants to State survey agencies.
State reporting requirements. Based on a 2000 survey of
State Adult Protective Services systems, all States had elder/
adult abuse reporting laws. Most States mandate a variety of
professionals to report known or suspected cases of elder
abuse; however, State laws vary as to who is a mandated
reporter and who is encouraged to report incidents of elder/
adult abuse. Many States and territories name health care and
social services professionals, such as nurses, physicians,
social workers, and nurse aides, as mandated reporters of
elder/adult abuse. Other professionals statutorily bound in
State law to report incidents of elder abuse include law
enforcement officers, clergy, and attorneys. Some States
mandate anyone with knowledge or reasonable cause to believe
that abuse has occurred to report the incident. In addition to
mandatory reporting provisions, State statutes often encourage
voluntary reporting by other individuals.
State law varies as to whether there are statutory
consequences for failure of mandated reporters to report abuse.
Based on the 2000 survey, the most common consequence for
failing to report was a misdemeanor with a possible fine and/or
jail sentence. State law also varied with regard to specifying
a time frame within which reporters were required to report
suspicion of abuse. At the time of the report, 19 States had no
time frame. Of those that specified a time frame, the
requirements varied from immediately to more than four days.
Federal reporting requirements. Section 1128E of the Social
Security Act requires that all government agencies and health
plans report certain final adverse actions (not including
settlements in which no findings of liability have been made),
including health care related civil judgments and criminal
convictions of health care practitioners, providers and
suppliers. The Secretary is required to maintain a national
health care fraud and abuse data collection program for the
reporting of these actions. The database is directed by HHS,
acting through the office of Attorney General, and is named the
Healthcare Integrity and Protection Data Bank (HIPDB).
According to section 1128E(g)(1)(A) of the Social Security
Act, a final adverse action includes: (1) civil judgments
related to the delivery of a health care item or service that
are against a health care provider or practitioner in Federal
or State court; (2) Federal or State criminal convictions
related to the delivery of health care; (3) certain actions by
Federal or State agencies responsible for the licensing and
certification of providers and licensed practitioners; (4)
prohibition against participating in Federal or State health
care programs; or (5) any other adjudicated actions or
decisions established by the Secretary of HHS under regulation.
For the purpose of this database, Medicaid regulation 42
CFR Sec. 455.12 requires that State agencies report the number
of complaints of fraud and abuse made to the agency that
warrant preliminary investigation. For each case, reports
should include the provider's name and number; the source of
the complaint; the type of provider; the nature of the
complaint; the approximate range of dollars involved; and the
legal and administrative disposition of the case, including
actions taken by law enforcement officials to whom the case has
been referred. Section 1128E requires the Secretary of HHS to
include procedures assuring that the privacy of individuals
receiving health care services is appropriately protected.
The Secretary of HHS makes available the information in the
database to government agencies and health plans and, upon
request, to health care providers, suppliers and practitioners
who wish to self-query. The Secretary may establish or approve
fees sufficient to recover the full costs of the databases'
operation. Health plans that fail to report this information
are subject to a civil monetary penalty of not more than
$25,000 for each unreported action. Government agencies that
fail to report adverse actions are identified in a report to
the public.
Medicare regulation 42 CFR Sec. 483.374 also requires
facilities to report each serious occurrence to both the State
Medicaid agency and, unless prohibited by State law, the State-
designated protection and advocacy system.
Notification of Facility Closure. If a long-term care
facility that receives Federal funds through participation in
Medicare or Medicaid closes, current Federal laws and
regulations provide some guidance on the parties that need to
be notified and the process for relocating residents. If a
facility wants to terminate its status as a Medicare provider
(for example, due to facility closure), the facility must
notify both the Centers for Medicare and Medicaid Services
(CMS) and the public no later than 15 days in advance of the
proposed termination date. If a facility wants to terminate its
status as a Medicaid provider, Federal regulations do not
specify a timeframe for notifying Federal or State agencies;
however, the facility is required to notify Medicaid residents
at least 30 days before transferring or discharging them.
Facility closure is one circumstance in which a resident would
need to be transferred.
The State Medicaid agency has the primary responsibility
for relocating Medicaid patients and for ensuring their safe
and orderly transfer from a facility that no longer
participates in Medicaid to a participating facility that meets
acceptable standards. CMS has provided guidance to States
concerning relocating patients. Each State is expected to have
a plan that describes the relocation of patients. Additionally,
the notice to residents is to include information as to how to
contact the ombudsman established by the Older Americans Act.
Section 307 of the Medicare Prescription Drug, Improvement,
and Modernization Act (MMA) of 2003 (P.L. 108-173) established
the framework for a pilot program to demonstrate a
comprehensive system of criminal and other background checks
for prospective new hires in long-term care facilities. In
2005, CMS, in consultation with the Department of Justice,
began implementation of a three-year pilot program. Programs
were established in seven States: Alaska, Idaho, Illinois,
Michigan, Nevada, New Mexico, and Wisconsin. Under the terms of
the pilot, States had the flexibility to create background
check programs that worked best for them while meeting certain
basic requirements. The primary requirement was for long-term
care facilities and providers to conduct background checks for
job applicants who would have direct contact with patients. As
part of the background check process, applicants would be
screened for criminal records through name-based registries
(e.g., State nurse aide registries, sex offender databases), as
well as State and Federal fingerprint databases. The pilot
program ended in September 2007. Total funding for the CMS
background check pilot was $16.4 million over three years, FY
2005-2007.
COMMITTEE BILL
Section 2045 would direct the Secretary of HHS to conduct
the following activities:
National Training Institute for Surveyors. The Secretary of
HHS would be required to enter into a contract to establish and
operate the National Training Institute for Federal and State
surveyors to provide and improve the training of surveyors
investigating allegations of abuse, neglect, and
misappropriation of property in programs and long-term care
facilities that receive payments under Medicare and/or
Medicaid.
The National Training Institute would be required to carry
out the following activities: (1) assess the extent to which
State agencies use specialized surveyors for the investigation
of reported allegations of abuse, neglect, and misappropriation
of property; (2) evaluate how the competencies of surveyors may
be improved to more effectively investigate such reported
allegations; (3) provide a national program of training, tools,
and technical assistance to Federal and State surveyors; (4)
develop and disseminate information on best practices for such
investigations; (5) assess the performance of State complaint
intake systems; (6) provide a national 24 hours per day, 7 days
a week, back-up system to State complaint intake systems; (7)
analyze and report annually on the total number and sources of
such complaints, the extent to which such complaints are
referred to law enforcement agencies, and general results of
Federal and State investigations of such complaints; and (8)
conduct a national study of the cost to State agencies of
conducting such complaint investigations of Medicare and/or
Medicaid participating facilities.
The Committee Bill would authorize $12 million for each of
FYs 2009-2012 to carry out these activities.
Grants to State Survey Agencies. The Secretary of HHS would
be required to award grants to State survey agencies that
perform surveys of Medicaid and/or Medicare participating
facilities to design and implement complaint investigation
systems. Funds may be used for the purpose of designing and
implementing complaint investigations systems that promptly
prioritize complaints; respond to complaints with optimum
effectiveness and timeliness; and optimize collaboration
between local authorities, consumers, and providers, including
the State agency, the State long-term care ombudsman, local law
enforcement agencies, advocacy and consumer organizations,
State aging units, area agencies on aging, and other
appropriate entities.
The Committee Bill would authorize $5 million for each of
FYs 2009-2012 to carry out these activities.
Reporting of Crimes in Federally Funded Facilities. The
Committee Bill would require reporting to law enforcement of
crimes occurring in federally funded long-term care facilities
that receive at least $10,000 in Federal funds during the
preceding year. The owner or operator of these facilities would
be required to annually notify each individual who is an owner,
operator, employee, manager, agent, or contractor of a long-
term care facility that they are required to report any
reasonable suspicion of a crime against any person who is a
resident of or receiving care from the facility. These
individuals are referred to in this section as ``covered
individuals.'' Suspected crimes must be reported to the
Secretary of HHS and one or more law enforcement entities for
the political subdivision in which the facility is located.
Timing of Reporting. If the events that cause the suspicion
of a crime result in serious bodily injury, the covered
individual must report the suspicion immediately, but not later
than two hours after forming the suspicion. If the events that
cause the suspicion do not result in serious bodily injury, the
individual must report the suspicion not later than 24 hours
after forming the suspicion.
Penalties for Non-Reporting. If a covered individual does
not report suspicion of a crime within the timeframe described
above, the individual will be subject to a civil money penalty
of up to $200,000, or the Secretary of HHS shall classify the
individual as an ``excluded individual'' (i.e., any employer of
the individual is unable to receive Federal funds) for a period
of not more than three years. If a covered individual does not
report suspicion of a crime within the timeframe described
above and this violation exacerbates the harm to the victim, or
results in harm to another person, the individual will be
subject to a civil money penalty of up to $300,000, and the
Secretary shall classify the individual as an ``excluded
individual'' (i.e., any employer of the individual is unable to
receive Federal funds) for a period of not more than three
years.
If an individual is classified as an ``excluded
individual,'' any entity that employs that individual will not
be eligible to receive Federal funds. The Secretary of HHS may
take into account the financial burden on providers with
underserved populations in determining any penalty to be
imposed under this section. Underserved populations are defined
as the population of an area designated by the Secretary as an
area or population group with a shortage of elder justice
programs. These may include those that are geographically
isolated, racial and ethnic minority populations, and
populations underserved because of special needs (such as
language barriers, disabilities, alien status, or age).
Additional Penalties for Retaliation. A long-term care
facility may not retaliate against an employee for making a
report, causing a report to be made, or for taking steps to
make a report. Retaliation includes discharge, demotion,
suspension, threats, harassment, denial of a promotion or other
employment-related benefit, or any other manner of
discrimination against an employee in the terms and conditions
of employment because of lawful acts done by the employee.
Long-term care facilities may also not retaliate against a
nurse by filing a complaint or report with the appropriate
State professional disciplinary agency because of lawful acts
done by the nurse.
If a long-term care facility does retaliate, it shall be
subject to a civil money penalty of up to $200,000, or the
Secretary of HHS may exclude it from participation in any
Federal health care program for a period of 2 years.
Notice to Employees. Each long-term care facility must post
conspicuously, in an appropriate location, a sign specifying
the rights of employees under this section. The sign shall
include a statement that an employee may file a complaint
against a long-term care facility that violates the provisions
of this section with the Secretary of HHS. The notice must also
contain information as to how to file a complaint.
Notification of Public Agencies and Safety of Residents in
the Event of Facility Closure. In addition, if a long-term care
facility (that receives at least $10,000 in Federal funds
during the previous year) is going to close, the owner or
operator of the facility must submit to the Secretary of HHS
and the appropriate State regulatory agency written
notification of an impending closure within 60 days prior to
the closure date. In the notice, the owner or operator must
include a plan for transfer and adequate relocation of
residents, including assurances that residents will be
transferred to the most appropriate facility in terms of
quality, services, and location. Within 10 days after the
facility closes, the owner or operator of the facility must
submit to the Secretary, and the appropriate State agency,
information on where the residents were transferred to and
when.
Anyone who owns a skilled nursing facility that fails to
comply with the notification of closure and reporting
requirements shall be subject to a civil monetary penalty of up
to $1,000,000, exclusion from participation in the programs
under the Social Security Act, and any other applicable civil
monetary penalties and assessments.
A civil monetary penalty or assessment will be imposed in
the same manner as a civil monetary penalty, assessment or
exclusion under Section 1128A of the Social Security Act.
Nurse Aide Registry
PRESENT LAW
Section 1819(b)(5)(F) (Medicare law) and 1919(b)(5)(F)
(Medicaid law) of the Social Security Act define nurse aides as
individuals providing nursing or nursing-related services to
residents in nursing facilities, as well as registered
dieticians or persons who volunteer to provide such services
without monetary compensation. Nurse aides does not include
physicians; physician assistants; nurse practitioners;
physical, speech, or occupational therapists; physical or
occupational therapy assistants; registered professional
nurses; licensed practical nurses; or licensed certified social
workers. For Medicare-certified facilities, nurse aides also
exclude registered respiratory therapists or certified
respiratory therapy technicians.
No present law exists concerning a nurse aide registry
study.
COMMITTEE BILL
The Secretary of HHS, in consultation with appropriate
government agencies and private sector organizations, would be
required to conduct a study on establishing a national nurse
aide registry that includes an evaluation of who should be
included in the registry; how the registry would comply with
Federal and State privacy laws and regulations; how data would
be collected for the registry; what entities and individuals
would have access to the data collected; how the registry would
provide appropriate information regarding violations of Federal
and State law by individuals included in the registry; how the
functions of the registry would be coordinated with the pilot
program for national and State background checks on direct care
patient access employees of long-term care facilities; and how
the information in State nurse aide registries would be
maintained in a national registry.
Not later than 18 months after the date of enactment, the
Secretary of HHS would be required to submit a report to the
Elder Justice Coordinating Council and appropriate
congressional committees containing the findings and
recommendations of the study. The Committee Bill would require
funding not to exceed $500,000 for this study. The Committee
Bill requires the appropriate congressional committees to take
appropriate action based on the recommendations contained in
the report.
The Committee Bill would authorize such sums as may be
necessary to carry out this subsection.
IV. REGULATORY IMPACT AND OTHER MATTERS
A. Regulatory Impact
Pursuant to paragraph 11(b) of Rule XXVI of the Standing
Rules of the Senate, the Committee makes the following
statement concerning the regulatory impact that might be
incurred in carrying out the provisions of the bill as amended.
Impact on individuals and businesses
The provisions of the bill are not expected to impose
additional administrative requirements or regulatory burdens on
individuals or businesses.
Impact on personal privacy and paperwork
The provisions of the bill do not reduce personal privacy.
This information is provided in accordance with section 423
of the Unfunded Mandates Reform Act of 1995 (P.L. 104-4).
The Committee has determined that the provisions of the
bill contain no Federal private sector mandates.
The Committee has determined that the provisions of the
bill do not impose a Federal intergovernmental mandate on
State, local, or tribal governments.
V. COST ESTIMATE
September 16, 2008.
Hon. Max Baucus,
Chairman, Committee on Finance,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1070, the Elder
Justice Act of 2008.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jessica
Sherry.
Sincerely,
Peter Orzsag.
Enclosure.
S. 1070--Elder Justice Act of 2008
Summary: S. 1070 would amend title XX of the Social
Security Act by creating a new subtitle for ``Elder Justice.''
The bill would authorize funding over the 2009-2013 period for
several programs aimed at providing legal protection and
services to elderly individuals.
Assuming appropriation of the necessary amounts, CBO
estimates that implementing the bill would cost $659 million
over the 2009-2013 period. In addition, CBO estimates that the
civil monetary penalties authorized by the bill would have a
negligible effect on revenues. Enacting the bill would not
affect direct spending.
S. 1070 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 1070 is shown in the following table.
The costs of this legislation fall within budget function 500
(education, employment, training, and social services).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
---------------------------------------------
2009 2010 2011 2012 2013 2009-2013
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION \1\
National Coordination of Elder Justice Activities and Research:
Authorization Level........................................... 11 13 15 15 0 54
Estimated Outlays............................................. 6 12 14 15 7 54
Programs to Promote Elder Justice:
Estimated Authorization Level................................. 181 169 169 169 0 688
Estimated Outlays............................................. 20 106 156 172 151 605
Total Changes:
Estimated Authorization Level......................... 192 182 184 184 0 742
Estimated Outlays..................................... 26 118 170 187 158 659
----------------------------------------------------------------------------------------------------------------
\1\ Enacting the bill would create new civil monetary penalties that CBO estimates would have a negligible
effect on revenues.
Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted near the start of fiscal year 2009, that
the authorized amounts will be appropriated for each year
beginning in 2009, and that outlays will follow historical
spending patterns of similar programs.
Spending subject to appropriation
In total, CBO estimates that implementing S. 1070 would
cost $659 million over the 2009-2013 period, assuming
appropriation of the necessary amounts.
National Coordination of Elder Justice Activities and
Research. Section 5 would authorize the appropriation of
specific sums for each year through 2012 to establish an Elder
Justice Coordinating Council and an advisory board on the
abuse, neglect, and exploitation of the elderly. In addition,
the section would authorize the appropriation of specific
amounts to establish stationary and mobile centers for the
provision of forensic services relating to the abuse and
neglect of the elderly. CBO estimates that implementing those
provisions would cost $54 million over the 2009-2013 period,
assuming appropriation of the authorized amounts.
Programs to Promote Elder Justice. In addition, section 5
would authorize appropriations totaling $687 million over the
2009-2012 period for grant programs designed to promote elder
justice. Grants would be provided to long-term care facilities,
State and local governments, and other eligible entities with
relevant expertise and experience in elder abuse and neglect to
improve their capacity to serve elderly individuals and provide
adult protective services in cases of abuse, neglect, or
exploitation of the elderly. It also would authorize the
appropriation of such sums as may be necessary for a study on
establishing a national nurse-aid registry.
CBO estimates that implementing those provisions would cost
$605 million over the 2009-2013 period, including about $1
million for the required study, assuming appropriation of the
authorized amounts.
Revenues
Enacting S. 1070 could increase revenues through the
creation of several new civil penalties for violations relating
to nonreporting of crimes against residents in long-term care
facilities. Collections of such penalties are recorded as
revenues and deposited in the Treasury. CBO expects that any
increase in revenues related to the new penalties would be
negligible.
Intergovernmental and Private-Sector Impact: S. 1070
contains no intergovernmental or private-sector mandates as
defined in UMRA. State, local, and tribal governments would
benefit from grants authorized in the bill that support
training, prevention, and intervention programs tied to elder
abuse, neglect, and exploitation. Any costs those governments
incur to comply with grant conditions would be incurred
voluntarily.
Estimate prepared by: Federal costs: Jessica Sherry; Impact
on State, local, and tribal governments: Lisa Ramirez-Branum;
Impact on the private sector: Patrick Bernhardt.
Estimate approved by: Peter H. Fontaine, Assistant Director
for Budget Analysis.
VI. VOTE OF THE COMMITTEE
In compliance with paragraph 7(b) of rule XXVI of Standing
Rules of the Senate, the following statements are made
concerning the vote in the Committee's consideration of the
bill.
Motion to report the bill
The bill was ordered favorably reported by a unanimous
voice vote on September 10, 2008. A quorum was present. No
amendments were voted upon.
VII. CHANGES IN EXISTING LAW
In compliance with paragraph 12 of Rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SOCIAL SECURITY ACT
* * * * * * *
TITLE IV--GRANTS TO STATES FOR AID AND SERVICES TO NEEDY FAMILIES WITH
CHILDREN AND FOR CHILD-WELFARE SERVICES
PART A--BLOCK GRANTS TO STATES FOR TEMPORARY ASSISTANCE FOR NEEDY
FAMILIES
* * * * * * *
ELIGIBLE STATES; STATE PLAN
Sec. 402. (a) In General.--As used in this part, the term
``eligible State'' means, with respect to a fiscal year, a
State that, during the 27-month period ending with the close of
the 1st quarter of the fiscal year, has submitted to the
Secretary a plan that the Secretary has found includes the
following:
(1) Outline of family assistance program.--
(A) General provisions.--A written document
that outlines how the State intends to do the
following:
(i) Conduct a program, designed to
serve all political subdivisions in the
State (not necessarily in a uniform
manner), that provides assistance to
needy families with (or expecting)
children and provides parents with job
preparation, work and support services
to enable them to leave the program and
become self-sufficient.
* * * * * * *
(B) Special provisions.--
* * * * * * *
(i) * * *
* * * * * * *
(v) The document shall indicate
whether the State intends to assist
individuals to train for, seek, and
maintain employment--
(I) providing direct care in
a long-term care facility (as
such terms are defined under
section 2011); or
(II) in other occupations
related to elder care
determined appropriate by the
State for which the State
identifies an unmet need for
service personnel,
and, if so, shall include an overview
of such assistance.
* * * * * * *
USE OF GRANTS
Sec. 404. (a) General Rules.--Subject to this part, a
State to which a grant is made under section 403 may use the
grant--
* * * * * * *
(d) Authority To Use Portion Of Grant For Other Purposes.--
(1) In general.--Subject to paragraph (2), a State
may use not more than 30 percent of the amount of any
grant made to the State under section 403(a) for a
fiscal year to carry out a State program pursuant to
any or all of the following provisions of law:
(A) Subtitle 1 of title XX of this Act.
(B) The Child Care and Development Block
Grant Act of 1990.
(2) Limitation on amount transferable to subtitle 1
of title xx programs.--
(A) In general.--A State may use not more
than the applicable percent of the amount of
any grant made to the State under section
403(a) for a fiscal year to carry out State
programs pursuant to subtitle 1 of title XX.
(B) Applicable percent.--For purposes of
subparagraph (A), the applicable percent is
4.25 percent in the case of fiscal year 2001
and each succeeding fiscal year.
(3) Applicable rules.--
(A) In general.--Except as provided in
subparagraph (B) of this paragraph, any amount
paid to a State under this part that is used to
carry out a State program pursuant to a
provision of law specified in paragraph (1)
shall not be subject to the requirements of
this part, but shall be subject to the
requirements that apply to Federal funds
provided directly under the provision of law to
carry out the program, and the expenditure of
any amount so used shall not be considered to
be an expenditure under this part.
(B) Exception relating to subtitle 1 of
title xx programs.--All amounts paid to a State
under this part that are used to carry out
State programs pursuant to subtitle 1 of title
XX shall be used only for programs and services
to children or their families whose income is
less than 200 percent of the income official
poverty line (as defined by the Office of
Management and Budget, and revised annually in
accordance with section 673(2) of the Omnibus
Budget Reconciliation Act of 1981) applicable
to a family of the size involved.
* * * * * * *
PART B--CHILD AND FAMILY SERVICES
Subpart 1--Child Welfare Services
APPROPRIATION
Sec. 420. (a) * * *
* * * * * * *
STATE PLANS FOR CHILD WELFARE SERVICES
Sec. 422. (a) In order to be eligible for payment under
this subpart, a State must have a plan for child welfare
services which has been developed jointly by the Secretary and
the State agency designated pursuant to subsection (b)(1), and
which meets the requirements of subsection (b).
(b) Each plan for child welfare services under this subpart
shall--
(1) provide that (A) the individual or agency that
administers or supervises the administration of the
State's services program under subtitle 1 of title XX
will administer or supervise the administration of the
plan (except as otherwise provided in section 103(d) of
the Adoption Assistance and Child Welfare Act of 1980),
and (B) to the extent that child welfare services are
furnished by the staff of the State agency or local
agency administering the plan, a single organizational
unit in such State or local agency, as the case may be,
will be responsible for furnishing such child welfare
services;
(2) provide for coordination between the services
provided for children under the plan and the services
and assistance provided under subtitle 1 of title XX,
under the State program funded under part A, under the
State plan approved under subpart 2 of this part, under
the State plan approved under the State plan approved
under part E, and under other State programs having a
relationship to the program under this subpart, with a
view to provision of welfare and related services which
will best promote the welfare of such children and
their families;
(3) provide that the standards and requirements
imposed with respect to child day care under subtitle 1
of title XX shall apply with respect to day care
services under this subpart, except insofar as
eligibility for such services is involved;
* * * * * * *
PART E--FEDERAL PAYMENTS FOR FOSTER CARE AND ADOPTION ASSISTANCE
* * * * * * *
STATE PLAN FOR FOSTER CARE AND ADOPTION ASSISTANCE
Sec. 471. (a) In order for a State to be eligible for
payments under this part, it shall have a plan approved by the
Secretary which--
(1) provides for foster care maintenance payments in
accordance with section 472 and for adoption assistance
in accordance with section 473;
(2) provides that the State agency responsible for
administering the program authorized by subpart 1 of
part B of this title shall administer, or supervise the
administration of, the program authorized by this part;
(3) provides that the plan shall be in effect in all
political subdivisions of the State, and, if
administered by them, be mandatory upon them;
(4) provides that the State shall assure that the
programs at the local level assisted under this part
will be coordinated with the programs at the State or
local level assisted under parts A and B of this title,
under subtitle 1 of title XX of this Act, and under any
other appropriate provision of Federal law;
* * * * * * *
FOSTER CARE MAINTENANCE PAYMENTS PROGRAM
Sec. 472. (a) Each State with a plan approved under this
part shall make foster care maintenance payments (as defined in
section 475(4)) under this part with respect to a child who
would have met the requirements of section 406(a) or of section
407 (as such sections were in effect on July 16, 1996) but for
his removal from the home of a relative (specified in section
406(a) (as so in effect)), if--
* * * * * * *
(h)(1) For purposes of titles XIX, any child with
respect to whom foster care maintenance payments are
made under this section is deemed to be a dependent
child as defined in section 406 (as in effect as of
July 16, 1996) and deemed to be a recipient of aid to
families with dependent children under part A of this
title (as so in effect). For purposes of subtitle 1 of
title XX, any child with respect to whom foster care
maintenance payments are made under this section is
deemed to be a minor child in a needy family under a
State program funded under part A of this title and is
deemed to be a recipient of assistance under such part.
* * * * * * *
ADOPTION ASSISTANCE PROGRAM
Sec. 473. (a)(1)(A) Each State having a plan approved
under this part shall enter into adoption assistance agreements
(as defined in section 475(3)) with the adoptive parents of
children with special needs.
* * * * * * *
(b)(1) For purposes of title XIX, any child who is
described in paragraph (3) is deemed to be a dependent child as
defined in section 406 (as in effect as of July 16, 1996) and
deemed to be a recipient of aid to families with dependent
children under part A of this title (as so in effect) in the
State where such child resides.
(2) For purposes of subtitle 1 of title XX, any child
who is described in paragraph (3) is deemed to be a
minor child in a needy family under a State program
funded under part A of this title and deemed to be a
recipient of assistance under such part.
* * * * * * *
TITLE XI--GENERAL PROVISIONS, PEER REVIEW, AND ADMINISTRATIVE
SIMPLIFICATION
PART A--GENERAL PROVISIONS
DEFINITIONS
Sec. 1101. (a) When used in this Act--
(1) The term ``State'', except where otherwise
provided, includes the District of Columbia and the
Commonwealth of Puerto Rico, and when used in titles
IV, V, VII, XI, XIX, and XXI includes the Virgin
Islands and Guam. Such term when used in titles III,
IX, and XII also includes the Virgin Islands. Such term
when used in title V and in part B of this title also
includes American Samoa, the Northern Mariana Islands,
and the Trust Territory of the Pacific Islands. Such
term when used in titles XIX and XXI also includes the
Northern Mariana Islands and American Samoa. In the
case of Puerto Rico, the Virgin Islands, and Guam,
titles I, X, and XIV, and title XVI (as in effect
without regard to the amendment made by section 301 of
the Social Security Amendments of 1972) shall continue
to apply, and the term ``State'' when used in such
titles (but not in title XVI as in effect pursuant to
such amendment after December 31, 1973) includes Puerto
Rico, the Virgin Islands, and Guam. Such term when used
in title XX also includes the Virgin Islands, Guam,
American Samoa, and the Northern Mariana Islands. Such
term when used in title IV also includes American
Samoa.
* * * * * * *
EXCLUSION OF CERTAIN INDIVIDUALS AND ENTITIES FROM PARTICIPATION IN
MEDICARE AND STATE HEALTH CARE PROGRAMS
Sec. 1128. (a) Mandatory Exclusion.--The Secretary shall
exclude the following individuals and entities from
participation in any Federal health care program (as defined in
section 1128B(f)):
* * * * * * *
(h) Definition of State Health Care Program.--For purposes
of this section and sections 1128A and 1128B, the term ``State
health care program'' means--
(1) a State plan approved under title XIX,
(2) any program receiving funds under title V or from
an allotment to a State under such title,
(3) any program receiving funds under subtitle 1 of
title XX or from an allotment to a State under [such
title] such subtitle, or
(4) a State child health plan approved under title
XXI.
* * * * * * *
CIVIL MONETARY PENALTIES
Sec. 1128A. (a) Any person (including an organization,
agency, or other entity, but excluding a beneficiary, as
defined in subsection (i)(5)) that--
* * * * * * *
(i) For the purposes of this section:
(1) The term ``State agency'' means the agency
established or designated to administer or supervise
the administration of the State plan under title XIX of
this Act or designated to administer the State's
program under title V or subtitle 1 of title XX of this
Act.
* * * * * * *
STATE GRANTS FOR WORK INCENTIVES ASSISTANCE TO DISABLED BENEFICIARIES
Sec. 1150. * * *
* * * * * * *
REPORTING TO LAW ENFORCEMENT OF CRIMES OCCURRING IN FEDERALLY FUNDED
LONG-TERM CARE FACILITIES
Sec. 1150A. (a) Determination and Notification.--
(1) Determination.--The owner or operator of each
long-term care facility that receives Federal funds
under this Act shall annually determine whether the
facility received at least $10,000 in such Federal
funds during the preceding year.
(2) Notification.--If the owner or operator
determines under paragraph (1) that the facility
received at least $10,000 in such Federal funds during
the preceding year, such owner or operator shall
annually notify each covered individual (as defined in
paragraph (3)) of that individual's obligation to
comply with the reporting requirements described in
subsection (b).
(3) Covered individual defined.--In this section, the
term ``covered individual'' means each individual who
is an owner, operator, employee, manager, agent, or
contractor of a long-term care facility that is the
subject of a determination described in paragraph (1).
(b) Reporting Requirements.--
(1) In general.--Each covered individual shall report
to the Secretary and 1 or more law enforcement entities
for the political subdivision in which the facility is
located any reasonable suspicion of a crime (as defined
by the law of the applicable political subdivision)
against any individual who is a resident of, or is
receiving care from, the facility.
(2) Timing.--If the events that cause the suspicion--
(A) result in serious bodily injury, the
individual shall report the suspicion
immediately, but not later than 2 hours after
forming the suspicion; and
(B) do not result in serious bodily injury,
the individual shall report the suspicion not
later than 24 hours after forming the
suspicion.
(c) Penalties.--
(1) In general.--If a covered individual violates
subsection (b)--
(A) the covered individual shall be subject
to a civil money penalty of not more than
$200,000; or
(B) the Secretary shall classify the covered
individual as an excluded individual, for a
period of not more than 3 years.
(2) Increased harm.--If a covered individual violates
subsection (b) and the violation exacerbates the harm
to the victim of the crime or results in harm to
another individual--
(A) the covered individual shall be subject
to a civil money penalty of not more than
$300,000; and
(B) the Secretary shall classify the covered
individual as an excluded individual, for a
period of not more than 3 years.
(3) Excluded individual.--During any period for which
a covered individual is classified as an excluded
individual under paragraph (1)(B) or (2)(B), a long-
term care facility that employs such individual shall
be ineligible to receive Federal funds under this Act.
(4) Extenuating circumstances.--
(A) In general.--The Secretary may take into
account the financial burden on providers with
underserved populations in determining any
penalty to be imposed under this subsection.
(B) Underserved population defined.--In this
paragraph, the term ``underserved population''
means the population of an area designated by
the Secretary as an area with a shortage of
elder justice programs or a population group
designated by the Secretary as having a
shortage of such programs. Such areas or groups
designated by the Secretary may include--
(i) areas or groups that are
geographically isolated (such as
isolated in a rural area);
(ii) racial and ethnic minority
populations; and
(iii) populations underserved because
of special needs (such as language
barriers, disabilities, alien status,
or age).
(d) Additional Penalties for Retaliation.--
(1) In general.--A long-term care facility may not--
(A) discharge, demote, suspend, threaten,
harass, or deny a promotion or other
employment-related benefit to an employee, or
in any other manner discriminate against an
employee in the terms and conditions of
employment because of lawful acts done by the
employee; or
(B) file a complaint or a report against a
nurse or other employee with the appropriate
State professional disciplinary agency because
of lawful acts done by the nurse or employee,
for making a report, causing a report to be made, or
for taking steps in furtherance of making a report
pursuant to subsection (b)(1).
(2) Penalties for retaliation.--If a long-term care
facility violates subparagraph (A) or (B) of paragraph
(1) the facility shall be subject to a civil money
penalty of not more than $200,000 or the Secretary may
classify the entity as an excluded entity for a period
of 2 years pursuant to section 1128(b), or both.
(3) Requirement to post notice.--Each long-term care
facility shall post conspicuously in an appropriate
location a sign (in a form specified by the Secretary)
specifying the rights of employees under this section.
Such sign shall include a statement that an employee
may file a complaint with the Secretary against a long-
term care facility that violates the provisions of this
subsection and information with respect to the manner
of filing such a complaint.
(e) Procedure.--The provisions of section 1128A (other than
subsections (a) and (b) and the second sentence of subsection
(f)) shall apply to a civil money penalty under this section in
the same manner as such provisions apply to a penalty or
proceeding under section 1128A(a).
(f) Definitions.--In this section, the terms ``elder
justice'', ``long-term care facility'', and ``law enforcement''
have the meanings given those terms in section 2011.
ENSURING SAFETY OF RESIDENTS WHEN FEDERALLY FUNDED LONG-TERM CARE
FACILITIES CLOSE
Sec. 1150B. (a) In General.--
(1) Notification of Facility Closure.--Subject to
paragraph (2), if the owner or operator determines
under section 1150A(a)(1) that a long-term care
facility received at least $10,000 in Federal funds
under this Act during the preceding year, the owner or
operator of the facility shall--
(A) submit to the Secretary and the
appropriate State regulatory agency written
notification of an impending closure not later
than the date that is 60 days prior to the date
of such closure;
(B) include in the notice a plan for the
transfer and adequate relocation of the
residents of the facility prior to closure,
including assurances that the residents will be
transferred to the most appropriate facility in
terms of quality, services, and location; and
(C) not later than 10 days after the facility
closure, submit to the Secretary and the
appropriate State agency information
identifying where residents of the closed
facility were transferred and on what date.
(2) Exception where the secretary has issued a
termination notice.--In the case of a long-term care
facility described in paragraph (1) for which the
Secretary has issued a termination notice for the
facility to close by not later than 15 days after the
issuance of such notice, the Secretary shall establish
requirements for the notification, transfer, and
adequate relocation of residents within an appropriate
timeframe.
(b) Sanctions.--Any person owning or operating a long-term
care facility that fails to comply with the requirements of
subsection (a) shall be subject to--
(1) a civil monetary penalty of up to $1,000,000;
(2) exclusion from participation in the programs
under this Act (in accordance with the procedures of
section 1128); and
(3) any other applicable civil monetary penalties and
assessments.
(c) Procedure.--The provisions of section 1128A (other than
subsections (a) and (b) and the second sentence of subsection
(f)) shall apply to a civil money penalty or assessment under
this section in the same manner as such provisions apply to a
penalty or proceeding under section 1128A(a).
(d) Definition.--In this section, the term ``long-term care
facility'' has the meaning given that term in section 2011.
* * * * * * *
TITLE XX--BLOCK GRANTS TO STATES FOR SOCIAL SERVICES AND ELDER JUSTICE
Subtitle 1--Block Grants to States for Social Services
PURPOSES OF [TITLE] SUBTITLE; AUTHORIZATION OF APPROPRIATIONS
Sec. 2001. For the purposes of consolidating Federal
assistance to States for social services into a single grant,
increasing State flexibility in using social service grants,
and encouraging each State, as far as practicable under the
conditions in that State, to furnish services directed at the
goals of--
(1) achieving or maintaining economic self-support to
prevent, reduce, or eliminate dependency;
(2) achieving or maintaining self-sufficiency,
including reduction or prevention of dependency;
(3) preventing or remedying neglect, abuse, or
exploitation of children and adults unable to protect
their own interests, or preserving, rehabilitating or
reuniting families;
(4) preventing or reducing inappropriate
institutional care by providing for community-based
care, home-based care, or other forms of less intensive
care; and
(5) securing referral or admission for institutional
care when other forms of care are not appropriate, or
providing services to individuals in institutions,
there are authorized to be appropriated for each fiscal year
such sums as may be necessary to carry out the purposes of
[this title] this subtitle.
PAYMENTS TO STATES
Sec. 2002. (a)(1) Each State shall be entitled to payment
under [this title] this subtitle for each fiscal year in an
amount equal to its allotment for such fiscal year, to be used
by such State for services directed at the goals set forth in
section 2001, subject to the requirements of [this title] this
subtitle.
(2) For purposes of paragraph (1)--
(A) services which are directed at the goals
set forth in section 2001 include, but are not
limited to, child care services, protective
services for children and adults, services for
children and adults in foster care, services
related to the management and maintenance of
the home, day care services for adults,
transportation services, family planning
services, training and related services,
employment services, information, referral, and
counseling services, the preparation and
delivery of meals, health support services and
appropriate combinations of services designed
to meet the special needs of children, the
aged, the mentally retarded, the blind, the
emotionally disturbed, the physically
handicapped, and alcoholics and drug addicts;
and
(B) expenditures for such services may
include expenditures for--
(i) administration (including
planning and evaluation);
(ii) personnel training and
retraining directly related to the
provision of those services (including
both short- and long-term training at
educational institutions through grants
to such institutions or by direct
financial assistance to students
enrolled in such institutions); and
(iii) conferences or workshops, and
training or retraining through grants
to nonprofit organizations within the
meaning of section 501(c)(3) of the
Internal Revenue Code of 1954 or to
individuals with social services
expertise, or through financial
assistance to individuals participating
in such conferences, workshops, and
training or retraining (and this clause
shall apply with respect to all persons
involved in the delivery of such
services).
(b) The Secretary shall make payments in accordance with
section 6503 of title 31, United States Code, to each State
from its allotment for use under [this title] this subtitle.
(c) Payments to a State from its allotment for any fiscal
year must be expended by the State in such fiscal year or in
the succeeding fiscal year.
(d) A State may transfer up to 10 percent of its allotment
under section 2003 for any fiscal year for its use for that
year under other provisions of Federal law providing block
grants for support of health services, health promotion and
disease prevention activities, or low-income home energy
assistance (or any combination of those activities). Amounts
allotted to a State under any provisions of Federal law
referred to in the preceding sentence and transferred by a
State for use in carrying out the purposes of [this title] this
subtitle shall be treated as if they were paid to the State
under [this title] this subtitle but shall not affect the
computation of the State's allotment under [this title] this
subtitle. The State shall inform the Secretary of any such
transfer of funds.
(e) A State may use a portion of the amounts described in
subsection (a) for the purpose of purchasing technical
assistance from public or private entities if the State
determines that such assistance is required in developing,
implementing, or administering programs funded under [this
title] this subtitle.
(f) A State may use funds provided under [this title] this
subtitle to provide vouchers, for services directed at the
goals set forth in section 2001, to families, including--
(1) families who have become ineligible for
assistance under a State program funded under part A of
title IV by reason of a durational limit on the
provision of such assistance; and
(2) families denied cash assistance under the State
program funded under part A of title IV for a child who
is born to a member of the family who is--
(A) a recipient of assistance under the
program; or
(B) a person who received such assistance at
any time during the 10-month period ending with
the birth of the child.
ALLOTMENTS
Sec. 2003. (a) The allotment for any fiscal year to each
of the jurisdictions of Puerto Rico, Guam, the Virgin Islands,
and the Northern Mariana Islands shall be an amount which bears
the same ratio to the amount specified in subsection (c) as the
amount which was specified for allocation to the particular
jurisdiction involved for the fiscal year 1981 under section
2002(a)(2)(C) of this Act (as in effect prior to the enactment
of this section) bore to $2,900,000,000. The allotment for
fiscal year 1989 and each succeeding fiscal year to American
Samoa shall be an amount which bears the same ratio to the
amount allotted to the Northern Mariana Islands for that fiscal
year as the population of American Samoa bears to the
population of the Northern Mariana Islands determined on the
basis of the most recent data available at the time such
allotment is determined.
* * * * * * *
STATE ADMINISTRATION
Sec. 2004. Prior to expenditure by a State of payments
made to it under section 2002 for any fiscal year, the State
shall report on the intended use of the payments the State is
to receive under [this title] this subtitle, including
information on the types of activities to be supported and the
categories or characteristics of individuals to be served. The
report shall be transmitted to the Secretary and made public
within the State in such manner as to facilitate comment by any
person (including any Federal or other public agency) during
development of the report and after its completion. The report
shall be revised throughout the year as may be necessary to
reflect substantial changes in the activities assisted under
[this title] this subtitle, and any revision shall be subject
to the requirements of the previous sentence.
LIMITATIONS ON USE OF GRANTS
Sec. 2005. (a) Except as provided in subsection (b),
grants made under [this title] this subtitle may not be used by
the State, or by any other person with which the State makes
arrangements to carry out the purposes of [this title] this
subtitle--
(1) for the purchase or improvement of land, or the
purchase, construction, or permanent improvement (other
than minor remodeling) of any building or other
facility;
(2) for the provision of cash payments for costs of
subsistence or for the provision of room and board
(other than costs of subsistence during rehabilitation,
room and board provided for a short term as an integral
but subordinate part of a social service, or temporary
emergency shelter provided as a protective service);
(3) for payment of the wages of any individual as a
social service (other than payment of the wages of
welfare recipients employed in the provision of child
day care services);
(4) for the provision of medical care (other than
family planning services, rehabilitation services, or
initial detoxification of an alcoholic or drug
dependent individual) unless it is an integral but
subordinate part of a social service for which grants
may be used under [this title] this subtitle;
(5) for social services (except services to an
alcoholic or drug dependent individual or
rehabilitation services) provided in and by employees
of any hospital, skilled nursing facility, intermediate
care facility, or prison, to any individual living in
such institution;
(6) for the provision of any educational service
which the State makes generally available to its
residents without cost and without regard to their
income;
(7) for any child day care services unless such
services meet applicable standards of State and local
law;
(8) for the provision of cash payments as a service
(except as otherwise provided in this section);
(9) for payment for any item or service (other than
an emergency item or service) furnished--
(A) by an individual or entity during the
period when such individual or entity is
excluded under [this title] this subtitle or
title V, XVIII, or XIX pursuant to section
1128, 1128A, 1156, or 1842(j)(2), or
(B) at the medical direction or on the
prescription of a physician during the period
when the physician is excluded under [this
title] this subtitle or title V, XVIII, or XIX
pursuant to section 1128, 1128A, 1156, or
1842(j)(2) and when the person furnishing such
item or service knew or had reason to know of
the exclusion (after a reasonable time period
after reasonable notice has been furnished to
the person); or
(10) in a manner inconsistent with the Assisted
Suicide Funding Restriction Act of 1997.
(b) The Secretary may waive the limitation contained in
subsection (a)(1) and (4) upon the State's request for such a
waiver if he finds that the request describes extraordinary
circumstances to justify the waiver and that permitting the
waiver will contribute to the State's ability to carry out the
purposes of [this title] this subtitle.
REPORTS AND AUDITS
Sec. 2006. (a) Each State shall prepare reports on its
activities carried out with funds made available (or
transferred for use) under [this title] this subtitle. Reports
shall be prepared annually, covering the most recently
completed fiscal year, and shall be in such form and contain
such information (including but not limited to the information
specified in subsection (c)) as the State finds necessary to
provide an accurate description of such activities, to secure a
complete record of the purposes for which funds were spent, and
to determine the extent to which funds were spent in a manner
consistent with the reports required by section 2004. The State
shall make copies of the reports required by this section
available for public inspection within the State and shall
transmit a copy to the Secretary. Copies shall also be
provided, upon request, to any interested public agency, and
each such agency may provide its views on these reports to the
Congress.
(b) Each State shall, not less often than every two years,
audit its expenditures from amounts received (or transferred
for use) under [this title] this subtitle. Such State audits
shall be conducted by an entity independent of any agency
administering activities funded under [this title] this
subtitle, in accordance with generally accepted auditing
principles. Within 30 days following the completion of each
audit, the State shall submit a copy of that audit to the
legislature of the State and to the Secretary. Each State shall
repay to the United States amounts ultimately found not to have
been expended in accordance with [this title] this subtitle, or
the Secretary may offset such amounts against any other amount
to which the State is or may become entitled under [this title]
this subtitle.
(c) Each report prepared and transmitted by a State under
subsection (a) shall set forth (with respect to the fiscal year
covered by the report)--
(1) the number of individuals who received services
paid for in whole or in part with funds made available
under [this title] this subtitle, showing separately
the number of children and the number of adults who
received such services, and broken down in each case to
reflect the types of services and circumstances
involved;
* * * * * * *
ADDITIONAL GRANTS
Sec. 2007. (a) Entitlement.-- * * *
* * * * * * *
(f) Definitions.--As Used In This Section:
(1) Qualified empowerment zone.-- * * *
* * * * * * *
(6) Urban area.--The term ``urban area'' has the
meaning given such term in section 1393(a)(3) of the
Internal Revenue Code of 1986.
* * * * * * *
Subtitle 2--Elder Justice
SEC. 2011. DEFINITIONS.
In this subtitle:
(1) Abuse.--The term ``abuse'' means 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.
(2) Adult protective services.--The term ``adult
protective services'' means such services provided to
adults as the Secretary may specify and includes
services such as--
(A) disseminating reports of adult abuse,
neglect, or exploitation;
(B) investigating the reports described in
subparagraph (A);
(C) case planning, monitoring, evaluation,
and other case work and services; and
(D) providing, arranging for, or facilitating
the provision of medical, social service,
economic, legal, housing, law enforcement, or
other protective, emergency, or support
services.
(3) Caregiver.--The term ``caregiver'' means an
individual who has the responsibility for the care of
an elder, either voluntarily, by contract, by receipt
of payment for care, or as a result of the operation of
law, and means a family member or other individual who
provides (on behalf of such individual or of a public
or private agency, organization, or institution)
compensated or uncompensated care to an elder who needs
supportive services in any setting.
(4) Direct care.--The term ``direct care'' means care
by an employee or contractor who provides assistance or
long-term care services to a recipient.
(5) Elder.--The term ``elder'' means an individual
age 60 or older.
(6) Elder justice.--The term ``elder justice''
means--
(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.
(7) Eligible entity.--The term ``eligible entity''
means a State or local government agency, Indian tribe
or tribal organization, or any other public or private
entity that is engaged in and has expertise in issues
relating to elder justice or in a field necessary to
promote elder justice efforts.
(8) Exploitation.--The term ``exploitation'' means
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.
(9) Fiduciary.--The term ``fiduciary''--
(A) means 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; and
(B) includes 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.
(10) Grant.--The term ``grant'' includes a contract,
cooperative agreement, or other mechanism for providing
financial assistance.
(11) Guardianship.--The term ``guardianship'' means--
(A) the process by which a State court
determines that an adult individual lacks
capacity to make decisions about self-care and
property, and appoints another individual or
entity known as a guardian, as a conservator,
or by a similar term, as a surrogate
decisionmaker;
(B) the manner in which the court-appointed
surrogate decisionmaker carries out duties to
the individual and the court; or
(C) the manner in which the court exercises
oversight of the surrogate decisionmaker.
(12) Indian tribe.--
(A) In general.--The term ``Indian tribe''
has the meaning given such term in section 4 of
the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450b).
(B) Inclusion of pueblo and rancheria.--The
term ``Indian tribe'' includes any Pueblo or
Rancheria.
(13) Law enforcement.--The term ``law enforcement''
means the full range of potential responders to elder
abuse, neglect, and exploitation including--
(A) police, sheriffs, detectives, public
safety officers, and corrections personnel;
(B) prosecutors;
(C) medical examiners;
(D) investigators; and
(E) coroners.
(14) Long-term care.--
(A) In general.--The term ``long-term care''
means supportive and health services specified
by the Secretary for individuals who need
assistance because the individuals have a loss
of capacity for self-care due to illness,
disability, or vulnerability.
(B) Loss of capacity for self-care.--For
purposes of subparagraph (A), the term ``loss
of capacity for self-care'' means an inability
to engage in 1 or more activities of daily
living, including eating, dressing, bathing,
and management of one's financial affairs.
(15) Long-term care facility.--The term ``long-term
care facility'' means a residential care provider that
arranges for, or directly provides, long-term care.
(16) Neglect.--The term ``neglect'' means--
(A) the failure of a caregiver or fiduciary
to provide the goods or services that are
necessary to maintain the health or safety of
an elder; or
(B) self-neglect.
(17) Nursing facility.--
(A) In general.--The term ``nursing
facility'' has the meaning given such term
under section 1919(a).
(B) Inclusion of skilled nursing facility.--
The term ``nursing facility'' includes a
skilled nursing facility (as defined in section
1819(a)).
(18) Self-neglect.--The term ``self-neglect'' means
an adult's inability, due to physical or mental
impairment or diminished capacity, to perform essential
self-care tasks including--
(A) obtaining essential food, clothing,
shelter, and medical care;
(B) obtaining goods and services necessary to
maintain physical health, mental health, or
general safety; or
(C) managing one's own financial affairs.
(19) Serious bodily injury.--
(A) In general.--The term ``serious bodily
injury'' means an injury--
(i) involving extreme physical pain;
(ii) involving substantial risk of
death;
(iii) involving protracted loss or
impairment of the function of a bodily
member, organ, or mental faculty; or
(iv) requiring medical intervention
such as surgery, hospitalization, or
physical rehabilitation.
(B) Criminal sexual abuse.--Serious bodily
injury shall be considered to have occurred if
the conduct causing the injury is conduct
described in section 2241 (relating to
aggravated sexual abuse) or 2242 (relating to
sexual abuse) of title 18, United States Code,
or any similar offense under State law.
(20) Social.--The term ``social'', when used with
respect to a service, includes adult protective
services.
(21) State legal assistance developer.--The term
``State legal assistance developer'' means an
individual described in section 731 of the Older
Americans Act of 1965.
(22) State long-term care ombudsman.--The term
``State Long-Term Care Ombudsman'' means the State
Long-Term Care Ombudsman described in section 712(a)(2)
of the Older Americans Act of 1965.
SEC. 2012. GENERAL PROVISIONS.
(a) Protection of Privacy.--In pursuing activities under this
subtitle, the Secretary shall ensure the protection of
individual health privacy consistent with the regulations
promulgated under section 264(c) of the Health Insurance
Portability and Accountability Act of 1996 and applicable State
and local privacy regulations.
(b) Rule of Construction.--Nothing in this subtitle shall be
construed to interfere with or abridge an elder's right to
practice his or her religion through reliance on prayer alone
for healing when this choice--
(1) is contemporaneously expressed, either orally or
in writing, with respect to a specific illness or
injury which the elder has at the time of the decision
by an elder who is competent at the time of the
decision;
(2) is previously set forth in a living will, health
care proxy, or other advance directive document that is
validly executed and applied under State law; or
(3) may be unambiguously deduced from the elder's
life history.
PART A--NATIONAL COORDINATION OF ELDER JUSTICE ACTIVITIES AND RESEARCH
Subpart 1--Elder Justice Coordinating Council and Advisory Board on
Elder Abuse, Neglect, and Exploitation
SEC. 2021. ELDER JUSTICE COORDINATING COUNCIL.
(a) Establishment.--There is established within the Office
of the Secretary an Elder Justice Coordinating Council (in this
section referred to as the ``Council'').
(b) Membership.--
(1) In general.--The Council shall be composed of the
following members:
(A) The Secretary (or the Secretary's
designee).
(B) The Attorney General (or the Attorney
General's designee).
(C) The head of each Federal department or
agency or other governmental entity identified
by the Chair referred to in subsection (d) as
having responsibilities, or administering
programs, relating to elder abuse, neglect, and
exploitation.
(2) Requirement.--Each member of the Council shall be
an officer or employee of the Federal Government.
(c) Vacancies.--Any vacancy in the Council shall not affect
its powers, but shall be filled in the same manner as the
original appointment was made.
(d) Chair.--The member described in subsection (b)(1)(A)
shall be Chair of the Council.
(e) Meetings.--The Council shall meet at least 2 times per
year, as determined by the Chair.
(f) Duties.--
(1) In general.--The Council shall make
recommendations to the Secretary for the coordination
of activities of the Department of Health and Human
Services, the Department of Justice, and other relevant
Federal, State, local, and private agencies and
entities, relating to elder abuse, neglect, and
exploitation and other crimes against elders.
(2) Report.--Not later than the date that is 2 years
after the date of enactment of the Elder Justice Act of
2008 and every 2 years thereafter, the Council shall
submit to the Committee on Finance of the Senate and
the Committee on Ways and Means and the Committee on
Energy and Commerce of the House of Representatives a
report that--
(A) describes the activities and
accomplishments of, and challenges faced by--
(i) the Council; and
(ii) the entities represented on the
Council; and
(B) makes such recommendations for
legislation, model laws, or other action as the
Council determines to be appropriate.
(g) Powers of the Council.--
(1) Information from federal agencies.--Subject to
the requirements of section 2012(a), the Council may
secure directly from any Federal department or agency
such information as the Council considers necessary to
carry out this section. Upon request of the Chair of
the Council, the head of such department or agency
shall furnish such information to the Council.
(2) Postal services.--The Council may use the United
States mails in the same manner and under the same
conditions as other departments and agencies of the
Federal Government.
(h) Travel Expenses.--The members of the Council shall not
receive compensation for the performance of services for the
Council. The members shall be allowed travel expenses,
including per diem in lieu of subsistence, at rates authorized
for employees of agencies under subchapter I of chapter 57 of
title 5, United States Code, while away from their homes or
regular places of business in the performance of services for
the Council. Notwithstanding section 1342 of title 31, United
States Code, the Secretary may accept the voluntary and
uncompensated services of the members of the Council.
(i) Detail of Government Employees.--Any Federal Government
employee may be detailed to the Council without reimbursement,
and such detail shall be without interruption or loss of civil
service status or privilege.
(j) Status as Permanent Council.--Section 14 of the Federal
Advisory Committee Act (5 U.S.C. App.) shall not apply to the
Council.
SEC. 2022. ADVISORY BOARD ON ELDER ABUSE, NEGLECT, AND EXPLOITATION.
(a) Establishment.--There is established a board to be known
as the ``Advisory Board on Elder Abuse, Neglect, and
Exploitation'' (in this section referred to as the ``Advisory
Board'') 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.
(b) Composition.--The Advisory Board shall be composed of 27
members appointed by the Secretary from among members of the
general public who are individuals with experience and
expertise in elder abuse, neglect, and exploitation prevention,
detection, treatment, intervention, or prosecution.
(c) Solicitation of Nominations.--The Secretary shall publish
a notice in the Federal Register soliciting nominations for the
appointment of members of the Advisory Board under subsection
(b).
(d) Terms.--
(1) In general.--Each member of the Advisory Board
shall be appointed for a term of 3 years, except that,
of the members first appointed--
(A) 9 shall be appointed for a term of 3
years;
(B) 9 shall be appointed for a term of 2
years; and
(C) 9 shall be appointed for a term of 1
year.
(2) Vacancies.--
(A) In general.--Any vacancy on the Advisory
Board shall not affect its powers, but shall be
filled in the same manner as the original
appointment was made.
(B) Filling unexpired term.--An individual
chosen to fill a vacancy shall be appointed for
the unexpired term of the member replaced.
(3) Expiration of terms.--The term of any member
shall not expire before the date on which the member's
successor takes office.
(e) Election of Officers.--The Advisory Board shall elect a
Chair and Vice Chair from among its members. The Advisory Board
shall elect its initial Chair and Vice Chair at its initial
meeting.
(f) Duties.--
(1) Enhance communication on promoting quality of,
and preventing abuse and neglect in, long-term care.--
The Advisory Board shall develop collaborative and
innovative approaches to improve the quality of,
including preventing abuse and neglect in, long-term
care.
(2) Collaborative efforts to develop consensus around
the management of certain quality-related factors.--
(A) In general.--The Advisory Board shall
establish multidisciplinary panels to address,
and develop consensus on, subjects relating to
improving the quality of long-term care. At
least 1 such panel shall address, and develop
consensus on, methods for managing resident-to-
resident abuse in long-term care.
(B) Activities conducted.--The
multidisciplinary panels established under
subparagraph (A) shall examine relevant
research and data, identify best practices with
respect to the subject of the panel, determine
the best way to carry out those best practices
in a practical and feasible manner, and
determine an effective manner of distributing
information on such subject.
(3) Report.--Not later than the date that is 18
months after the date of enactment of the Elder Justice
Act of 2008, and annually thereafter, the Advisory
Board shall prepare and submit to the Elder Justice
Coordinating Council, the Committee on Finance of the
Senate, and the Committee on Ways and Means and the
Committee on Energy and Commerce of the House of
Representatives a report containing--
(A) information on the status of Federal,
State, and local public and private elder
justice activities;
(B) recommendations (including recommended
priorities) regarding--
(i) elder justice programs, research,
training, services, practice,
enforcement, and coordination;
(ii) coordination between entities
pursuing elder justice efforts and
those involved in related areas that
may inform or overlap with elder
justice efforts, such as activities to
combat violence against women and child
abuse and neglect; and
(iii) activities relating to adult
fiduciary systems, including
guardianship and other fiduciary
arrangements;
(C) recommendations for specific
modifications needed in Federal and State laws
(including regulations) or for programs,
research, and training to enhance prevention,
detection, and treatment (including diagnosis)
of, intervention in (including investigation
of), and prosecution of elder abuse, neglect,
and exploitation;
(D) recommendations on methods for the most
effective coordinated national data collection
with respect to elder justice, and elder abuse,
neglect, and exploitation; and
(E) recommendations for a multidisciplinary
strategic plan to guide the effective and
efficient development of the field of elder
justice.
(g) Powers of the Advisory Board.--
(1) Information from federal agencies.--Subject to
the requirements of section 2012(a), the Advisory Board
may secure directly from any Federal department or
agency such information as the Advisory Board considers
necessary to carry out this section. Upon request of
the Chair of the Advisory Board, the head of such
department or agency shall furnish such information to
the Advisory Board.
(2) Sharing of data and reports.--The Advisory Board
may request from any entity pursuing elder justice
activities under the Elder Justice Act of 2008 or an
amendment made by that Act, any data, reports, or
recommendations generated in connection with such
activities.
(3) Postal services.--The Advisory Board may use the
United States mails in the same manner and under the
same conditions as other departments and agencies of
the Federal Government.
(h) Travel Expenses.--The members of the Advisory Board shall
not receive compensation for the performance of services for
the Advisory Board. The members shall be allowed travel
expenses for up to 4 meetings per year, including per diem in
lieu of subsistence, at rates authorized for employees of
agencies under subchapter I of chapter 57 of title 5, United
States Code, while away from their homes or regular places of
business in the performance of services for the Advisory Board.
Notwithstanding section 1342 of title 31, United States Code,
the Secretary may accept the voluntary and uncompensated
services of the members of the Advisory Board.
(i) Detail of Government Employees.--Any Federal Government
employee may be detailed to the Advisory Board without
reimbursement, and such detail shall be without interruption or
loss of civil service status or privilege.
(j) Status as Permanent Advisory Committee.--Section 14 of
the Federal Advisory Committee Act (5 U.S.C. App.) shall not
apply to the advisory board.
SEC. 2023. RESEARCH PROTECTIONS.
(a) Guidelines.--The Secretary shall promulgate guidelines to
assist researchers working in the area of elder abuse, neglect,
and exploitation, with issues relating to human subject
protections.
(b) Definition of Legally Authorized Representative for
Application of Regulations.--For purposes of the application of
subpart A of part 46 of title 45, Code of Federal Regulations,
to research conducted under this subpart, the term ``legally
authorized representative'' means, unless otherwise provided by
law, the individual or judicial or other body authorized under
the applicable law to consent to medical treatment on behalf of
another person.
SEC. 2024. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to carry out this
subpart--
(1) for fiscal year 2009, $6,500,000; and
(2) for each of fiscal years 2010 through 2012,
$7,000,000.
Subpart 2--Elder Abuse, Neglect, and Exploitation Forensic Centers
SEC. 2031. ESTABLISHMENT AND SUPPORT OF ELDER ABUSE, NEGLECT, AND
EXPLOITATION FORENSIC CENTERS.
(a) In General.--The Secretary, in consultation with the
Attorney General, shall make grants to eligible entities to
establish and operate stationary and mobile forensic centers,
to develop forensic expertise regarding, and provide services
relating to, elder abuse, neglect, and exploitation.
(b) Stationary Forensic Centers.--The Secretary shall make 4
of the grants described in subsection (a) to institutions of
higher education with demonstrated expertise in forensics or
commitment to preventing or treating elder abuse, neglect, or
exploitation, to establish and operate stationary forensic
centers.
(c) Mobile Centers.--The Secretary shall make 6 of the grants
described in subsection (a) to appropriate entities to
establish and operate mobile forensic centers.
(d) Authorized Activities.--
(1) Development of forensic markers and
methodologies.--An eligible entity that receives a
grant under this section shall use funds made available
through the grant to assist in determining whether
abuse, neglect, or exploitation occurred and whether a
crime was committed and to conduct research to describe
and disseminate information on--
(A) forensic markers that indicate a case in
which elder abuse, neglect, or exploitation may
have occurred; and
(B) methodologies for determining, in such a
case, when and how health care, emergency
service, social and protective services, and
legal service providers should intervene and
when the providers should report the case to
law enforcement authorities.
(2) Development of forensic expertise.--An eligible
entity that receives a grant under this section shall
use funds made available through the grant to develop
forensic expertise regarding elder abuse, neglect, and
exploitation in order to provide medical and forensic
evaluation, therapeutic intervention, victim support
and advocacy, case review, and case tracking.
(3) Collection of evidence.--The Secretary, in
coordination with the Attorney General, shall use data
made available by grant recipients under this section
to develop the capacity of geriatric health care
professionals and law enforcement to collect forensic
evidence, including collecting forensic evidence
relating to a potential determination of elder abuse,
neglect, or exploitation.
(e) Application.--To be eligible to receive a grant under
this section, an entity shall submit an application to the
Secretary at such time, in such manner, and containing such
information as the Secretary may require.
(f) Authorization of Appropriations.--There are authorized to
be appropriated to carry out this section--
(1) for fiscal year 2009, $4,000,000;
(2) for fiscal year 2010, $6,000,000; and
(3) for each of fiscal years 2011 and 2012,
$8,000,000.
PART B--PROGRAMS TO PROMOTE ELDER JUSTICE
SEC. 2041. ENHANCEMENT OF LONG-TERM CARE.
(a) Grants and Incentives for Long-Term Care Staffing.--
(1) In general.--The Secretary shall carry out
activities, including activities described in
paragraphs (2) and (3), to provide incentives for
individuals to train for, seek, and maintain employment
providing direct care in a long-term care facility.
(2) Specific programs to enhance training,
recruitment, and retention of staff.--
(A) Coordination with secretary of labor to
recruit and train long-term care staff.--The
Secretary shall coordinate activities under
this subsection with the Secretary of Labor in
order to provide incentives for individuals to
train for and seek employment providing direct
care in a long-term care facility.
(B) Career ladders and wage or benefit
increases to increase staffing in long-term
care facilities.--
(i) In general.--The Secretary shall
make grants to long-term care
facilities to carry out programs
through which the facilities--
(I) offer, to employees who
provide direct care to
residents of a long-term care
facility, continuing training
and varying levels of
certification, based on
observed clinical care
practices and the amount of
time the employees spend
providing direct care; and
(II) provide, or make
arrangements to provide,
bonuses or other increased
compensation or benefits to
employees who achieve
certification under such a
program.
(ii) Application.--To be eligible to
receive a grant under this
subparagraph, a long-term care facility
shall submit an application to the
Secretary at such time, in such manner,
and containing such information as the
Secretary may require (which may
include evidence of consultation with
the State in which the long-term care
facility is located with respect to
carrying out activities funded under
the grant).
(iii) Authority to limit number of
applicants.--Nothing in this
subparagraph shall be construed as
prohibiting the Secretary from limiting
the number of applicants for a grant
under this subparagraph.
(3) Specific programs to improve management
practices.--
(A) In general.--The Secretary shall make
grants to long-term care facilities to enable
the facilities to provide training and
technical assistance to eligible employees.
(B) Authorized activities.--A long-term care
facility that receives a grant under
subparagraph (A) shall use funds made available
through the grant to provide training and
technical assistance to eligible employees
regarding management practices using methods
that are demonstrated to promote retention of
individuals who provide direct care to
residents of the long-term care facility, such
as--
(i) the establishment of standard
human resource policies that reward
high performance, including policies
that provide for improved wages and
benefits on the basis of job reviews;
(ii) the establishment of
motivational and thoughtful work
organization practices;
(iii) the creation of a workplace
culture that respects and values
caregivers and their needs;
(iv) the promotion of a workplace
culture that respects the rights of
residents of a long-term care facility
and results in improved care for the
residents; and
(v) the establishment of other
programs that promote the provision of
high quality care, such as a continuing
education program that provides
additional hours of training, including
on-the-job training, for employees who
are certified nurse aides.
(C) Application.--To be eligible to receive a
grant under this paragraph, a long-term care
facility shall submit an application to the
Secretary at such time, in such manner, and
containing such information as the Secretary
may require (which may include evidence of
consultation with the State in which the long-
term care facility is located with respect to
carrying out activities funded under the
grant).
(D) Authority to limit number of
applicants.--Nothing in this paragraph shall be
construed as prohibiting the Secretary from
limiting the number of applicants for a grant
under this paragraph.
(E) Eligible employee defined.--In this
paragraph, the term ``eligible employee'' means
an individual who establishes or implements
management practices applicable with respect to
individuals who provide direct care to
residents of a long-term care facility and
includes administrators, directors of nursing,
staff developers, and charge nurses.
(4) Accountability measures.--The Secretary shall
develop accountability measures to ensure that the
activities conducted using funds made available under
this subsection benefit eligible employees and increase
the stability of the long-term care workforce.
(b) Informatics Systems Grant Program.--
(1) Grants authorized.--The Secretary is authorized
to make grants to long-term care facilities for the
purpose of assisting such entities in offsetting the
costs related to purchasing, leasing, developing, and
implementing standardized clinical health care
informatics systems designed to improve patient safety
and reduce adverse events and health care complications
resulting from medication errors.
(2) Use of grant funds.--Funds provided under grants
under this subsection may be used for any of the
following:
(A) Purchasing, leasing, and installing
computer software and hardware, including
handheld computer technologies.
(B) Making improvements to existing computer
software and hardware.
(C) Making upgrades and other improvements to
existing computer software and hardware to
enable e-prescribing.
(D) Providing education and training to
eligible long-term care facility staff on the
use of technology to implement the electronic
transmission of prescription and patient
information.
(3) Application.--To be eligible to receive a grant
under this subsection, a long-term care facility shall
submit an application to the Secretary at such time, in
such manner, and containing such information as the
Secretary may require (which may include evidence of
consultation with the State in which the long-term care
facility is located with respect to carrying out
activities funded under the grant).
(4) Authority to limit number of applicants.--Nothing
in this subsection shall be construed as prohibiting
the Secretary from limiting the number of applicants
for a grant under this subsection.
(5) Accountability measures.--The Secretary shall
develop accountability measures to ensure that the
activities conducted using funds made available under
this subsection help improve patient safety and reduce
adverse events and health care complications resulting
from medication errors.
(c) Inclusion of Adjudicated Crimes on Nursing Home Compare
Website.--Not later than 1 year after the date of enactment of
the Elder Justice Act of 2008, the Secretary shall ensure that
the Department of Health and Human Services includes, as part
of the information provided for comparison of nursing
facilities on the official Internet website of the Federal
Government for Medicare beneficiaries (commonly referred to as
the ``Nursing Home Compare'' Medicare website), the number of
adjudicated instances of criminal violations by a nursing
facility or crimes committed by an employee of a nursing
facility--
(1) that were committed inside of the facility; and
(2) with respect to such instances of violations or
crimes committed outside of the facility, that were the
violations or crimes of elder abuse, neglect, and
exploitation, criminal sexual abuse of an elder, or
other violations or crimes that resulted in the serious
bodily injury of an elder.
(d) Development of Consumer Rights Information Page on
Nursing Home Compare Website.--Not later than 1 year after the
date of enactment of the Elder Justice Act of 2008, the
Secretary shall ensure that the Department of Health and Human
Services, as part of the information provided for comparison of
nursing facilities on the Nursing Home Compare Medicare website
develops and includes a consumer rights information page that
contains links to descriptions of, and information with respect
to, the following:
(1) The documentation on nursing facilities that is
available to the public.
(2) General information and tips on choosing a
nursing facility that meets the needs of the
individual.
(3) General information on consumer rights with
respect to nursing facilities.
(4) The nursing facility survey process (on a
national and State-specific basis).
(5) On a State-specific basis, the services available
through the State long-term care ombudsman for such
State.
(e) Development and Adoption of Standards for Transactions
Involving Clinical Data by Long-Term Care Facilities.--
(1) Standards.--The Secretary shall develop and adopt
uniform open electronic standards for transactions
involving clinical data by long-term care facilities.
Such standards shall include messaging and nomenclature
standards.
(2) Compatibility with other standards.--The
standards developed and adopted under paragraph (1)
shall be compatible with standards established under
part C of title XI, standards established under
subsections (b)(2)(B)(i) and (e)(4) of section 1860D-4,
and with general health information technology
standards.
(3) Electronic submission of data to the secretary.--
(A) In general.--Not later than 10 years
after the date of enactment of the Elder
Justice Act of 2008, the Secretary shall have
procedures in place to accept the optional
electronic submission of clinical data by long-
term care facilities pursuant to the standards
developed and adopted under paragraph (1).
(B) Rule of construction.--Nothing in this
subsection shall be construed to require a
long-term care facility to submit clinical data
electronically to the Secretary.
(f) Regulations.--The Secretary shall promulgate regulations
to carry out subsections (c), (d), and (e) of this section.
Such regulations shall require a State, as a condition of the
receipt of funds under this part, to conduct such data
collection and reporting as the Secretary determines are
necessary to satisfy the requirements of such subsections.
(g) Authorization of Appropriations.--There are authorized to
be appropriated to carry out this section--
(1) for fiscal year 2009, $20,000,000;
(2) for fiscal year 2010, $17,500,000; and
(3) for each of fiscal years 2011 and 2012,
$15,000,000.
SEC. 2042. ADULT PROTECTIVE SERVICES FUNCTIONS AND GRANT PROGRAMS.
(a) Secretarial Responsibilities.--
(1) In general.--The Secretary shall ensure that the
Department of Health and Human Services--
(A) provides funding authorized by this part
to State and local adult protective services
offices that investigate reports of the abuse,
neglect, and exploitation of elders;
(B) collects and disseminates data annually
relating to the abuse, exploitation, and
neglect of elders in coordination with the
Department of Justice;
(C) develops and disseminates information on
best practices regarding, and provides training
on, carrying out adult protective services;
(D) conducts research related to the
provision of adult protective services; and
(E) provides technical assistance to States
and other entities that provide or fund the
provision of adult protective services,
including through grants made under subsections
(b) and (c).
(2) Authorization of appropriations.--There are
authorized to be appropriated to carry out this
subsection, $3,000,000 for fiscal year 2009 and
$4,000,000 for each of fiscal years 2010 through 2012.
(b) Grants to Enhance the Provision of Adult Protective
Services.--
(1) Establishment.--There is established an adult
protective services grant program under which the
Secretary shall annually award grants to States in the
amounts calculated under paragraph (2) for the purposes
of enhancing adult protective services provided by
States and local units of government.
(2) Amount of payment.--
(A) In general.--Subject to the availability
of appropriations and subparagraphs (B) and
(C), the amount paid to a State for a fiscal
year under the program under this subsection
shall equal the amount appropriated for that
year to carry out this subsection multiplied by
the percentage of the total number of elders
who reside in the United States who reside in
that State.
(B) Guaranteed minimum payment amount.--
(i) 50 states.--Subject to clause
(ii), if the amount determined under
subparagraph (A) for a State for a
fiscal year is less than 0.75 percent
of the amount appropriated for such
year, the Secretary shall increase such
determined amount so that the total
amount paid under this subsection to
the State for the year is equal to 0.75
percent of the amount so appropriated.
(ii) Territories.--In the case of a
State other than 1 of the 50 States,
clause (i) shall be applied as if each
reference to ``0.75'' were a reference
to ``0.1''.
(C) Pro rata reductions.--The Secretary shall
make such pro rata reductions to the amounts
described in subparagraph (A) as are necessary
to comply with the requirements of subparagraph
(B).
(3) Authorized activities.--
(A) Adult protective services.--Funds made
available pursuant to this subsection may only
be used by States and local units of government
to provide adult protective services and may
not be used for any other purpose.
(B) Use by agency.--Each State receiving
funds pursuant to this subsection shall provide
such funds to the agency or unit of State
government having legal responsibility for
providing adult protective services within the
State.
(C) Supplement not supplant.--Each State or
local unit of government shall use funds made
available pursuant to this subsection to
supplement and not supplant other Federal,
State, and local public funds expended to
provide adult protective services in the State.
(4) State reports.--Each State receiving funds under
this subsection shall submit to the Secretary, at such
time and in such manner as the Secretary may require, a
report on the number of elders served by the grants
awarded under this subsection.
(5) Authorization of appropriations.--There are
authorized to be appropriated to carry out this
subsection, $100,000,000 for each of fiscal years 2009
through 2012.
(c) State Demonstration Programs.--
(1) Establishment.--The Secretary shall award grants
to States for the purposes of conducting demonstration
programs in accordance with paragraph (2).
(2) Demonstration programs.--Funds made available
pursuant to this subsection may be used by States and
local units of government to conduct demonstration
programs that test--
(A) training modules developed for the
purpose of detecting or preventing elder abuse;
(B) methods to detect or prevent financial
exploitation of elders;
(C) methods to detect elder abuse;
(D) whether training on elder abuse forensics
enhances the detection of elder abuse by
employees of the State or local unit of
government; or
(E) other matters relating to the detection
or prevention of elder abuse.
(3) Application.--To be eligible to receive a grant
under this subsection, a State shall submit an
application to the Secretary at such time, in such
manner, and containing such information as the
Secretary may require.
(4) State reports.--Each State that receives funds
under this subsection shall submit a report to the
Secretary at such time, in such manner, and containing
such information as the Secretary may require on the
results of the demonstration program conducted by the
State using funds made available under this subsection.
(5) Authorization of appropriations.--There are
authorized to be appropriated to carry out this
subsection, $25,000,000 for the period of fiscal years
2009 through 2012.
SEC. 2043. LONG-TERM CARE OMBUDSMAN PROGRAM GRANTS AND TRAINING.
(a) Grants to Support the Long-Term Care Ombudsman Program.--
(1) In general.--The Secretary shall make grants to
eligible entities with relevant expertise and
experience in abuse and neglect in long-term care
facilities or long-term care ombudsman programs and
responsibilities, for the purpose of--
(A) improving the capacity of State long-term
care ombudsman programs to respond to and
resolve complaints about abuse and neglect;
(B) conducting pilot programs with State
long-term care ombudsman offices or local
ombudsman entities; and
(C) providing support for such State long-
term care ombudsman programs and such pilot
programs (such as through the establishment of
a national long-term care ombudsman resource
center).
(2) Authorization of appropriations.--There are
authorized to be appropriated to carry out this
subsection--
(A) for fiscal year 2009, $5,000,000;
(B) for fiscal year 2010, $7,500,000; and
(C) for each of fiscal years 2011 and 2012,
$10,000,000.
(b) Ombudsman Training Programs.--
(1) In general.--The Secretary shall establish
programs to provide and improve ombudsman training with
respect to elder abuse, neglect, and exploitation for
national organizations and State long-term care
ombudsman programs.
(2) Authorization of appropriations.--There are
authorized to be appropriated to carry out this
subsection, for each of fiscal years 2009 through 2012,
$10,000,000.
SEC. 2044. PROVISION OF INFORMATION REGARDLNG, AND EVALUATIONS OF,
ELDER JUSTICE PROGRAMS.
(a) Provision of Information.--To be eligible to receive a
grant under this part, an applicant shall agree--
(1) except as provided in paragraph (2), to provide
the eligible entity conducting an evaluation under
subsection (b) of the activities funded through the
grant with such information as the eligible entity may
require in order to conduct such evaluation; or
(2) in the case of an applicant for a grant under
section 2041(b), to provide the Secretary with such
information as the Secretary may require to conduct an
evaluation or audit under subsection (c).
(b) Use of Eligible Entities To Conduct Evaluations.--
(1) Evaluations required.--Except as provided in
paragraph (2), the Secretary shall--
(A) reserve a portion (not less than 2
percent) of the funds appropriated with respect
to each program carried out under this part;
and
(B) use the funds reserved under subparagraph
(A) to provide assistance to eligible entities
to conduct evaluations of the activities funded
under each program carried out under this part.
(2) Informatics systems grant program not included.--
The provisions of this subsection shall not apply to
the informatics systems grant program under section
2041(b).
(3) Authorized activities.--A recipient of assistance
described in paragraph (1)(B), shall use the funds made
available through the assistance to conduct a validated
evaluation of the effectiveness of the activities
funded under a program carried out under this part.
(4) Applications.--To be eligible to receive
assistance under paragraph (1)(B), an entity shall
submit an application to the Secretary at such time, in
such manner, and containing such information as the
Secretary may require, including a proposal for the
evaluation.
(5) Reports.--Not later than a date specified by the
Secretary, an eligible entity receiving assistance
under paragraph (1)(B) shall submit to the Secretary,
the Committee on Ways and Means and the Committee on
Energy and Commerce of the House of Representatives,
and the Committee on Finance of the Senate a report
containing the results of the evaluation conducted
using such assistance together with such
recommendations as the entity determines to be
appropriate.
(c) Evaluations and Audits of Informatics Systems Grant
Program by the Secretary.--
(1) Evaluations.--The Secretary shall conduct an
evaluation of the activities funded under the
informatics systems grant program under section
2041(b). Such evaluation shall include an evaluation of
whether the funding provided under the grant is
expended only for the purposes for which it is made.
(2) Audits.--The Secretary shall conduct appropriate
audits of grants made under section 2041(b).
SEC. 2045. REPORT.
Not later than October 1, 2012, the Secretary shall submit
to the Elder Justice Coordinating Council, the Committee on
Ways and Means and the Committee on Energy and Commerce of the
House of Representatives, and the Committee on Finance of the
Senate a report--
(1) compiling, summarizing, and analyzing the
information contained in the State reports submitted
under subsections (b)(4) and (c)(4) of section 2042;
and
(2) containing such recommendations for legislative
or administrative action as the Secretary determines to
be appropriate.
PART C--COLLECTION OF DATA, DISSEMINATION OF INFORMATION, AND STUDIES
SEC. 2051. COLLECTION OF UNIFORM NATIONAL DATA ON ELDER ABUSE, NEGLECT,
AND EXPLOITATION.
(a) Purpose.--The purpose of this section is to improve,
streamline, and promote uniform collection, maintenance, and
dissemination of national data relating to the various types of
elder abuse, neglect, and exploitation.
(b) Phase I--Development.--
(1) In general.--Not later than the date that is 1
year after the date of enactment of the Elder Justice
Act, the Secretary, after consultation with the
Attorney General, shall develop--
(A) a method for collecting national data
regarding elder abuse, neglect, and
exploitation; and
(B) uniform national data reporting forms
adapted to each relevant entity or discipline
(such as health, public safety, social and
protective services, and law enforcement)
reflecting--
(i) the distinct manner in which each
entity or discipline receives and
maintains information; and
(ii) the sequence and history of
reports to, or involvement of,
different entities or disciplines,
independently, or the sequence and
history of reports from 1 entity or
discipline to another over time.
(2) Forms.--Subject to the requirements of section
2012(a), the national data reporting forms described in
paragraph (1)(B) shall incorporate the definitions of
this subtitle for use in determining whether an event
is reportable.
(c) Phase II--Pilot Tests.--
(1) In general.--Not later than the date that is 1
year after the date on which the activities described
in subsection (b)(1) are completed, the Secretary shall
ensure that the national data reporting forms and data
collection methods developed in accordance with such
subsection are pilot tested in 6 States selected by the
Secretary.
(2) Adjustments to the form and methods.--The
Secretary, after considering the results of the pilot
testing described in paragraph (1) and consultation
with the Attorney General, shall adjust the national
data reporting forms and data collection methods as
necessary.
(d) Phase III--National Distribution.--
(1) Distribution of national data reporting forms.--
After completion of the adjustment to the national data
reporting forms under subsection (c)(2), the Secretary
shall submit the national data reporting forms along
with instructions to--
(A) the heads of the relevant Federal
entities as may be appropriate; and
(B) the appropriate office of each State for
collection from all relevant State entities of
data, including health care, social services,
and law enforcement data.
(2) Data collection grants.--
(A) Authorization.--The Secretary is
authorized to award grants to States to improve
data collection activities relating to elder
abuse, neglect, and exploitation.
(B) Application.--To be eligible to receive a
grant under this paragraph, a State shall
submit an application to the Secretary at such
time, in such manner, and containing such
information as the Secretary may require.
(C) Requirements.--Each State receiving a
grant under this paragraph for a fiscal year
shall report data for the calendar year that
begins during that fiscal year, using the
national data reporting forms described in
paragraph (1).
(D) Funding.--
(i) First year.--For the first fiscal
year for which a State receives grant
funds under this paragraph, the
Secretary shall initially distribute 50
percent of such funds to the State. The
Secretary shall distribute the
remaining funds to the State at the end
of the calendar year that begins during
that fiscal year, if the Secretary
determines that the State has properly
reported data required under this
paragraph for the calendar year.
(ii) Subsequent years.--Except as
provided in clause (i), the Secretary
shall distribute grant funds to a State
under this paragraph for a fiscal year
if the Secretary determines that the
State properly reported data required
under this paragraph for the calendar
year that ends during that fiscal year.
(E) Required information.--Each report
submitted under this paragraph shall--
(i) indicate the State and year in
which each event occurred; and
(ii) identify the total number of
events that occurred in each State
during the year and the type of each
event.
(e) Report.--Not later than 1 year after the date of
enactment of the Elder Justice Act and annually thereafter, the
Secretary shall prepare and submit to the Committee on Ways and
Means and the Committee on Energy and Commerce of the House of
Representatives and the Committee on Finance of the Senate a
report regarding activities conducted under this section.
(f) Authorization of Appropriations.--There are authorized to
be appropriated to carry out this section--
(1) for fiscal year 2007, $10,000,000;
(2) for fiscal year 2008, $30,000,000; and
(3) for each of fiscal years 2009 and 2010,
$100,000,000.
SEC. 2052. LONG-TERM CARE CONSUMER CLEARINGHOUSE.
(a) Establishment.--The Secretary shall establish a long-term
care consumer clearinghouse.
(b) Information.--The clearinghouse shall provide
comprehensive detailed information, in a consumer-friendly
form, to consumers about choices relating to long-term care
providers, such as information about--
(1) obtaining the services of, and employing,
caregivers who provide long-term care at an
individual's home; and
(2) options for residential long-term care, such as--
(A)(i) the type of care provided by nursing
facilities; and
(ii) the type of care provided by group homes
and other residential long-term care facilities
that are not nursing facilities;
(B) the benefits related to long-term care
that are available through the programs carried
out under titles XVIII and XIX; and
(C) links to Federal and State Internet
websites that describe the care available
through specific long-term care facilities,
including data on the satisfaction level of
residents of, and families of residents of, the
facilities.
(c) Providers.--In providing information on long-term care
providers under this section, the clearinghouse shall provide
information (from States and other sources) on assisted living
facilities, board and care facilities, congregate care
facilities, home health care providers, and other long-term
care providers.
(d) Authorization of Appropriations.--There are authorized to
be appropriated to carry out this section--
(1) for fiscal year 2007, $2,000,000;
(2) for fiscal year 2008, $3,000,000; and
(3) for each of fiscal years 2009 and 2010,
$4,000,000.
SEC. 2053. CONSUMER INFORMATION ABOUT THE CONTINUUM OF RESIDENTIAL
LONG-TERM CARE FACILITIES.
(a) Study.--
(1) In general.--The Secretary, after consultation
with the Attorney General, shall, directly or through a
grant, conduct a study on consumer concerns relating to
residential long-term care facilities, other than
nursing facilities.
(2) Specific topics.--The entity conducting the study
shall--
(A) develop definitions for classes of the
residential long-term care facilities described
in paragraph (1); and
(B) collect information on the prices of,
level of services provided by, oversight and
enforcement provisions of, and admission and
discharge criteria of, the facilities.
(b) Authorization of Appropriations.--There are authorized to
be appropriated to carry out this section, for each of fiscal
years 2007 through 2010, $3,000,000.
SEC. 2054. PROVISION OF INFORMATION REGARDING, AND EVALUATIONS OF,
ELDER JUSTICE PROGRAMS.
(a) Provision of Information.--To be eligible to receive a
grant under this part, an applicant shall agree--
(1) except as provided in paragraph (2), to provide
the eligible entity conducting an evaluation under
subsection (b) of the activities funded through the
grant with such information as the eligible entity may
require in order to conduct such evaluation; or
(2) in the case of an applicant for a grant under
section 2041(b), to provide the Secretary with such
information as the Secretary may require to conduct an
evaluation or audit under subsection (c).
(b) Use of Eligible Entities To Conduct Evaluations.--
(1) Evaluations required.--Except as provided in
paragraph (2), the Secretary shall--
(A) reserve a portion (not less than 2
percent) of the funds appropriated with respect
to each program carried out under this part;
and
(B) use the funds reserved under subparagraph
(A) to provide assistance to eligible entities
to conduct evaluations of the activities funded
under each program carried out under this part.
(2) Informatics systems grant program not included.--
The provisions of this subsection shall not apply to
the informatics systems grant program under section
2041(b).
(3) Authorized activities.--A recipient of assistance
described in paragraph (1)(B) shall use the funds made
available through the assistance to conduct a validated
evaluation of the effectiveness of the activities
funded under a program carried out under this part.
(4) Applications.--To be eligible to receive
assistance under paragraph (1)(B), an entity shall
submit an application to the Secretary at such time, in
such manner, and containing such information as the
Secretary may require, including a proposal for the
evaluation.
(5) Reports.--Not later than a date specified by the
Secretary, an eligible entity receiving assistance
under paragraph (1)(B) shall submit to the Secretary,
the Committee on Ways and Means and the Committee on
Energy and Commerce of the House of Representatives,
and the Committee on Finance of the Senate a report
containing the results of the evaluation conducted
using such assistance together with such
recommendations as the entity determines to be
appropriate.
(c) Evaluations and Audits of Informatics Systems Grant
Program by the Secretary.--
(1) Evaluations.--The Secretary shall conduct an
evaluation of the activities funded under the
informatics systems grant program under section
2041(b). Such evaluation shall include an evaluation of
whether the funding provided under the grant is
expended only for the purposes for which it is made.
(2) Audits.--The Secretary shall conduct appropriate
audits of grants made under section 2041(b).
SEC. 2055. REPORT.
Not later than October 1, 2011, the Secretary shall submit to
the Elder Justice Coordinating Council, the Committee on Ways
and Means and the Committee on Energy and Commerce of the House
of Representatives, and the Committee on Finance of the Senate
a report--
(1) compiling, summarizing, and analyzing the
information contained in the State reports submitted
under subsections (b)(4) and (c)(4) of section 2042;
and
(2) containing--
(A) the results of the study conducted under
section 2053; and
(B) such recommendations for legislative or
administrative action as the Secretary
determines to be appropriate.'' deg.
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