[Federal Register Volume 89, Number 90 (Wednesday, May 8, 2024)]
[Rules and Regulations]
[Pages 39488-39530]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07654]



[[Page 39487]]

Vol. 89

Wednesday,

No. 90

May 8, 2024

Part IX





Department of Health and Human Services





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Administration for Community Living





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45 CFR Part 1324





Adult Protective Services Functions and Grants Programs; Final Rule

  Federal Register / Vol. 89 , No. 90 / Wednesday, May 8, 2024 / Rules 
and Regulations  

[[Page 39488]]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Community Living

45 CFR Part 1324

RIN 0985-AA18


Adult Protective Services Functions and Grants Programs

AGENCY: Administration for Community Living (ACL), Department of Health 
and Human Services (HHS).

ACTION: Final rule.

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SUMMARY: ACL is issuing this Final Rule to modify the implementing 
regulations of the Older Americans Act of 1965 (``the Act'' or OAA) to 
add a new subpart (Subpart D) related to Adult Protective Services 
(APS).

DATES: 
    Effective date: This final rule is effective on June 7, 2024.
    Compliance date: May 8, 2028.

FOR FURTHER INFORMATION CONTACT: Stephanie Whittier Eliason, Team Lead, 
Office of Elder Justice and Adult Protective Services, Administration 
on Aging, Administration for Community Living, Department of Health and 
Human Services, 330 C Street SW, Washington, DC 20201. Email: 
[email protected], Telephone: (202) 795-7467 or 
(TDD).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    A. Statutory and Regulatory History and Reasons for the Proposed 
Rulemaking
    B. Overview of the Final Rule
    C. Severability
II. Provisions of the Final Rule and Responses to Public Comments
III. Adult Protective Services Systems
    A. Section 1324.400 Eligibility for Funding
    B. Section 1324.401 Definitions
    C. Section 1324.402 Program Administration
    D. Section 1324.403 APS Response
    E. Section 1324.404 Conflict of Interest
    F. Section 1324.405 Accepting Reports
    G. Section 1324.406 Coordination with Other Entities
    H. Section 1324.407 APS Program Performance
    I. Section 1324.408 State Plans
IV. Required Regulatory Analyses
    A. Regulatory Impact Analysis (Executive Orders 12866 and 13563)
    B. Regulatory Flexibility Act
    C. Executive Order 13132 (Federalism)
    D. Executive Order 13175 (Consultation and Coordination With 
Indian Tribal Governments)
    E. Plain Language in Government Writing
    F. Paperwork Reduction Act (PRA)

I. Background

    ACL is issuing this final rule modifying 45 CFR part 1324 of the 
implementing regulations of the Older Americans Act of 1965 (OAA or 
``the Act'') to add a new subpart (subpart D). The rule exercises ACL's 
authority to regulate Adult Protective Services (APS) systems under 
section 201(e)(3) of the Act, 42 U.S.C. 3011(e)(3) and section 2042(a) 
and (b) of the Elder Justice Act (EJA), 42 U.S.C. 1397m-1(a) and (b).
    Adult maltreatment is associated with significant harm to physical 
and mental health, as well as financial losses. Older adults and adults 
with disabilities may also experience deteriorated family 
relationships, diminished autonomy, and institutionalization, all of 
which can impact quality of life.\1\ Studies have found that at least 
one in ten community-dwelling older adults experienced some form of 
abuse or potential neglect in the prior year.\2\ A recent study of 
intimate partner violence among older adults found past 12-month 
prevalence of intimate partner psychological aggression, physical 
violence, and sexual violence by any perpetrator was 2.1%, 0.8%, and 
1.7%, respectively.\3\
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    \1\ Mengting Li & XinQi Dong, Association Between Different 
Forms of Elder Mistreatment and Cognitive Change, 33 J. of Aging and 
Health, 249 (2020), https://pubmed.ncbi.nlm.nih.gov/33249977/; Russ 
Neuhart, Elder Abuse: Forensic, Legal and Medical Aspects, 163 (Amy 
Carney ed., 2019); Rosemary B. Hughes et al, The Relation of Abuse 
to Physical and Psychological Health in Adults with Developmental 
Disabilities, 12 Disability and Health J., 227 (2019), https://doi.org/10.1016/j.dhjo.2018.09.007; Joy S. Ernst & Tina Maschi, 
Trauma-Informed Care and Elder Abuse: A Synergistic Alliance. 30 J. 
of Elder Abuse & Neglect, 354 (2018), https://pubmed.ncbi.nlm.nih.gov/30132733/.
    \2\ Ron Acierno et al., Prevalence and Correlates of Emotional, 
Physical, Sexual, and Financial Abuse and Potential Neglect in the 
United States: The National Elder Mistreatment Study, 100 Amer. J. 
of Pub. Health 292 (2010), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2804623/; Andre Rosay & Carrie Mulford, Prevalence 
Estimates & Correlates of Elder Abuse in the United States: The 
National Intimate Partner and Sexual Violence Survey, 29(1) J. of 
Elder Abuse and Neglect, 1 (2017); E-Shien Chang & Becca R Levy, 
High Prevalence of Elder Abuse During the COVID-19 Pandemic: Risk 
and Resilience Factors, 29(11) Amer. J. of Geriatric Psychiatry 
(2021), doi.org/10.1016/j.jagp.2021.01.007.https://
pubmed.ncbi.nlm.nih.gov/27782784/
#:~:text=More%20than%201%20in%2010,both%20intimate%20and%20nonintimat
e%20partners; Yongjie Yon et al., Elder Abuse Prevalence in 
Community Settings: A Systematic Review and Meta-analysis, 5(2) 
Lancet Global Health 147 (2017); Furthermore, it is estimated that 
for every incident of abuse reported to authorities, nearly 24 
additional cases remain undetected. See Jennifer Storey, Risk 
Factors for Abuse and Neglect: A Review of the Literature, 50 
Aggression and Violent Behavior 101339 (2020), https://www.sciencedirect.com/science/article/abs/pii/S1359178918303471.
    \3\ Zhang Kudon H, Herbst JH, Richardson LC, Smith SG, Demissie 
Z, Siordia C. Prevalence estimates and factors associated with 
violence among older adults: National Intimate Partner and Sexual 
Violence (NISVS) Survey, 2016/2017. J Elder Abuse Negl. 2023 Dec 
21:1-17. doi: 10.1080/08946566.2023.2297227. Online ahead of print. 
PMID: 38129823.
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    APS plays a critical role in the lives of older adults and adults 
with disabilities that may be subject to adult maltreatment. APS 
programs receive and respond to reports of adult maltreatment and self-
neglect and work closely with adults and a wide variety of allied 
professionals to maximize safety and independence and provide a range 
of services to those they serve. APS programs often link adults subject 
to maltreatment to community social, physical health, behavioral 
health, and legal services to help them maintain independence and 
remain in the settings in which they prefer to live. APS programs are 
also often the avenue through which adult maltreatment is reported to 
law enforcement or other agencies of the criminal justice system.
    APS is a social and human services program. Working collaboratively 
and with the consent of the client, APS caseworkers develop service 
plans and connect the client to social, health, and human services. As 
a social services program, the ``findings'' in an APS case are not 
legal determinations, either civil or criminal. If APS suspects that an 
act of maltreatment falls under a State's criminal statutes, APS will 
refer the case to law enforcement. APS systems work in close 
collaboration with law enforcement and emergency management systems to 
address the needs of older adults and adults with disabilities who are 
the victim of criminal acts, including but not limited to assault and 
sexual assault.
    As discussed in greater detail in the Statutory and Regulatory 
History, until 2021, APS systems were funded primarily through a 
variety of local and State resources. All States now accept Federal 
funding, including EJA funding, for their APS systems in addition to 
their State and local funding. This final rule creates the first 
mandatory Federal standards to govern APS policies, procedures, and 
practices. State APS systems and programs will be required to comply 
with the final rule to receive Federal EJA funding. Thus far, the 
absence of Federal standards has resulted in significant program 
variation across and within States and, in some cases, sub-standard 
quality according to APS staff and other community members.
    In 2021, ACL fielded a survey (OMB Control No. 0985-0071) of 51 APS 
systems (the 50 States and the District

[[Page 39489]]

of Columbia).\4\ Results from that survey, which included State policy 
profiles, along with an analysis of the 2020 National Adult 
Maltreatment Reporting System (NAMRS) \5\ data, illustrate the wide 
variability across APS programs.\6\
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    \4\ Adult Protective Services Technical Assistance Resource 
Center (2023). National Process Evaluation of the Adult Protective 
Services System. Submitted to the Administration for Community 
Living, U.S. Department of Health and Human Services. The U.S. 
Territories are not included in the analysis. Extant policy 
information was not available from the Territories, thus were not 
included in the APS Policy Review or APS Systems Outcomes Analysis. 
They were able to participate in the APS Practice Survey, and their 
data are included in internal survey results reported to ACL.
    \5\ NAMRS is a data reporting system established and operated by 
ACL for the purpose of better understanding of adult maltreatment in 
the United States. The data collected is submitted by all APS 
programs in all states, the District of Columbia, and the 
Territories. NAMRS annually collects data on APS investigations of 
abuse, neglect and exploitation of older adults and adults with 
disabilities, as well as information on the administration of APS 
programs. The data provide an understanding of key program policies, 
characteristics of those experiencing and perpetrating maltreatment, 
information on the types of maltreatment investigated, and 
information on services to address the maltreatment. For more 
information, visit: The Admin. For Cmty. Living, National Adult 
Maltreatment Reporting System, www.namrs.acl.gov (last visited April 
18, 2023).
    \6\ We refer to ``States'' in this rule to encompass all fifty 
States, the District of Columbia, and the five Territories (American 
Samoa, Commonwealth of the Northern Mariana Islands, Guam, Puerto 
Rico, and U.S. Virgin Islands).
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    As discussed in the Definitions section, an APS system is made up 
of both the State entity (e.g., the department of health and human 
services) or entities that receive State and Federal funding for APS, 
including EJA funding, and the local APS programs that provide adult 
protective services.\7\ While the State entities establish APS policy, 
conduct training, administer funding, and provide information 
technology infrastructure support to local APS programs in almost all 
APS systems,\8\ 27 States have indicated the need for greater 
consistency in practice.\9\ States identified specific obstacles that 
included: a lack of resources for oversight in general or quality 
assurance processes specifically, differing policy interpretations 
across local programs, and not enough supervisors.\10\
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    \7\ See infra note 24. In addition to ACL formula grants, States 
may receive Title XX Social Services Block Grant (SSBG) funding. 
However, States have discretion for whether and how much of their 
SSBG funding they choose to allocate to APS. Not all States use SSBG 
funding for their APS systems.
    \8\ For example, 76 percent of APS programs indicate that their 
State exerts ``significant'' control over local APS operations. See 
supra note 4 at 20.
    \9\ See supra note 4 at 21.
    \10\ Id.
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    To elevate uniform, evidence-informed practices across APS 
programs, ACL issued Voluntary Consensus Guidelines for State APS 
Systems (Consensus Guidelines) in 2016, which were subsequently updated 
in 2020.\11\ In developing the Consensus Guidelines, ACL applied Office 
of Management and Budget (OMB) and National Institutes of Standards and 
Technology (NIST) standards and processes for creating field-developed, 
consensus-driven guidelines.\12\ The Consensus Guidelines represent 
recommendations from the field based on their experience and expertise 
serving adults and communities and provide a core set of principles and 
common expectations to encourage consistency in practice, ensure adults 
are afforded similar protections and APS services regardless of locale, 
and support interdisciplinary and interagency coordination.
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    \11\ For detailed information on the development process for the 
2016 and subsequent 2020 Consensus Guidelines, see The Admin. For 
Cmty. Living, Final National Voluntary Guidelines for State Adult 
Protective Services Systems (2016), https://acl.gov/sites/default/files/programs/2017-03/APS-Guidelines-Document-2017.pdf (last 
visited May 16, 2023); The Admin. For Cmty. Living, Voluntary 
Consensus Guidelines for State APS Systems (2020), https://acl.gov/programs/elder-justice/final-voluntary-consensus-guidelines-state-aps-systems (last visited Apr. 18, 2023).
    \12\ Off. of Mgmt. & Budget, Exec. Off. of the President, OMB 
Circular A-119, Federal Participation in the Development and Use of 
Voluntary Consensus Standards and in Conformity Assessment 
Activities, https://www.nist.gov/system/files/revised_circular_a-119_as_of_01-22-2016.pdf); National Technology Transfer and 
Advancement Act of 1995, Public Law No. 104-113, including amendment 
Utilization of consensus technical standards by Federal agencies, 
Public Law No. 107-107, Sec.  1115 (2001), https://www.nist.gov/standardsgov/national-technology-transfer-and-advancement-act-1995; 
The Admin. For Cmty. Living, Report on the Updates to the Voluntary 
Consensus Guidelines for APS Systems (2020) https://acl.gov/sites/default/files/programs/2020-05/ACL-Appendix_3.fin_508.pdf (last 
visited May 9, 2023).
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    This final rule is informed by the input of commenters; the 
extensive research, analysis, community input in the development of our 
Consensus Guidelines and recommendations borne out of that process; 
experience and information from our NAMRS data; and the 2021 51 State 
National Process Evaluation Report.\13\
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    \13\ See supra note 4.
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A. Statutory and Regulatory History and Reasons for the Proposed 
Rulemaking

    APS programs have historically been primarily funded by States and 
administered by States and localities. They have been recognized in 
Federal law since 1974, when the Social Security Act was amended by the 
Social Services Amendments of 1974 (Pub. L. 93-647), 42 U.S.C. 
1397a(a)(2)(A), to permit States to use Social Services Block Grant 
(SSBG) funding under Title XX for APS programming. However, while most 
States currently use SSBG funding for their APS programs, the amount of 
SSBG funding allocated to APS varies, and the allocations are 
limited.\14\
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    \14\ For example, South Carolina had the highest SSBG 
expenditure for Vulnerable and Elderly Adults in FY 2020 at 
$14,311,707 representing 58 percent of their entire block grant. The 
Dep't. of Health and Hum. Servs., Social Services Block Grant: 
Fiscal Year 2020. Ann. Rep. (2020). https://www.acf.hhs.gov/sites/default/files/documents/ocs/RPT_SSBG_Annual%20Report_FY2020.pdf 
(last visited May 11, 2023).
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    Through a series of legislative actions, Congress designated ACL as 
the Federal entity with primary responsibility for providing Federal 
policy leadership and program oversight for APS. This includes 
authority granted by the OAA to promulgate regulations, to oversee 
formula grants to State and Tribal APS programs, to enhance APS 
programs, to collect data to increase APS effectiveness, and to 
directly link the authorities of the EJA with those contained in the 
OAA.
    Title VII of the OAA (Vulnerable Elder Rights Protection 
Activities), enacted in 1992, authorizes funding to States to address 
protections for vulnerable adults. Some activities are specifically 
identified to be conducted with Title VII funding. Section 201(e) of 
the OAA, 42 U.S.C. 3011(e), added in 2006, vests responsibility for a 
coordinated Federal and national response to elder justice issues 
broadly with the Assistant Secretary for Aging. ACL has rulemaking 
authority for elder justice activities by virtue of section 201(e)(3), 
42 U.S.C. 3011(e)(3), which states, ``the Secretary, acting through the 
Assistant Secretary, may issue such regulations as may be necessary to 
carry out this subsection . . .'' and specifically references the 
responsibility of the Assistant Secretary for elder abuse prevention 
and services, detection, treatment, and response in coordination with 
heads of State APS programs. Section 2042(b) of the EJA, 42 U.S.C. 
1397m-1, establishes an APS grant program under which the Secretary 
annually awards grants to States. The Secretary of HHS has designated 
ACL as the grant-making agency for APS. Therefore, the EJA and the OAA 
provide the Assistant Secretary with broad authority to coordinate, 
regulate, and fund State APS systems.
    Through the enactment of the EJA in 2010, Congress again recognized 
the need for a more coordinated national elder justice and APS system. 
The EJA creates a national structure to promote research and technical 
assistance to

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support Federal, State, and local elder justice efforts, as well as 
authorization for dedicated APS funding. A component of the EJA is 
specifically designed to address the need for better Federal 
leadership. The Federal Elder Justice Coordinating Council (EJCC) is 
established by the EJA \15\ to coordinate activities across the Federal 
government that are related to elder abuse, neglect, and exploitation. 
The EJA designates the Secretary of HHS to chair the EJCC, and 
continually since the establishment of the EJCC in 2012, the HHS 
Secretary has designated that responsibility to the Assistant Secretary 
for Aging. Under the chairmanship of the Assistant Secretary for Aging, 
and since its establishment, the EJCC has met regularly, soliciting 
input from the APS community--ranging from individual citizens to 
expert practitioners and industry associations--on identifying and 
proposing solutions to the problems surrounding elder abuse, neglect, 
and financial exploitation, and for strengthening national support for 
APS.\16\
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    \15\ 42 U.S.C. 1397k.
    \16\ The Admin. for Cmty. Living, Federal Elder Justice 
Coordinating Council, https://ejcc.acl.gov/ (last visited Apr. 18, 
2023).
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    On numerous occasions, the APS community has stressed the need for 
more Federal guidance, leadership, stewardship, resources, and support 
for State and local APS programs and for victims of adult maltreatment. 
Advocates have requested greater funding and Federal regulatory 
guidance for APS systems in their testimony before Congress,\17\ in 
their statements to the EJCC,\18\ and in peer-reviewed journals.\19\
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    \17\ Public and Outside Witness, Hearing Before the Subcomm. on 
Lab., Health and Hum. Servs. Educ. & Related Agencies of the House 
Appropriations Comm., 113th Cong. (2014) (statement of Kathleen M. 
Quinn, Exec. Dir. of the Nat'l. Adult Protective Servs. Ass'n.) 
https://www.napsa-now.org/wp-content/uploads/2014/03/Appropriations-Testimony-NAPSA.pdf.
    \18\ Enhancing Response to Elder Abuse, Neglect, and 
Exploitation: Elder Justice Coordinating Council, Testimony of 
William Benson (Oct. 10, 2012), http://www.aoa.acl.gov/AoA_Programs/Elder_Rights/EJCC/Meetings/2012_10_11.aspx.
    \19\ Kathleen Quinn & William Benson, The States' Elder Abuse 
Victim Services: A System in Search of Support, 36 Generations 66 
(2012).
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    The Government Accountability Office (GAO) conducted three studies 
between 2010 and 2013 on the topics of abuse, neglect, and exploitation 
to shed light on the need for Federal leadership. The studies' findings 
repeatedly recommend a coordinated, Federal response to address the 
gaps in public awareness, prevention, intervention, coordination, and 
research of elder maltreatment, as well as a Federal ``home'' for 
APS.\20\
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    \20\ U.S. Gen. Acct. Off., GAO-11-208, Elder Justice: Stronger 
Federal Leadership Could Enhance National Response to Elder Abuse 
(2011) https://www.gao.gov/products/gao-11-208; U.S. Gen. Acct. 
Off., GAO-13-110, Elder Justice: National Strategy Needed to 
Effectively Combat Elder Financial Exploitation (2012) https://www.gao.gov/products/gao-13-110; U.S. Gen. Acct. Off., GAO-13-498, 
Elder Justice: More Federal Coordination and Public Awareness Needed 
(2013) https://www.gao.gov/products/gao-13-498.
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    Since Fiscal Year (FY) 2015, Congress has appropriated funds to ACL 
in support of APS through section 2042(a) and 2401(c) of the EJA, 42 
U.S.C. 1397m-1(a) and 42 U.S.C. 1397m(c). This funding is used to 
collect data, disseminate best practices, and provide discretionary 
elder justice demonstration grants.\21\ In FY 2021, Congress provided 
the first dedicated appropriation to implement the EJA section 2042(b), 
42 U.S.C. 1397m-1(b), formula grants to all States, the District of 
Columbia, and the Territories to enhance APS with one-time funding in 
response to the COVID-19 pandemic, totaling $188 million, and another 
$188 million in FY 2022.\22\ The recent Consolidated Appropriations Act 
of 2023 included the first ongoing annual appropriation of $15 million 
to ACL to continue providing formula grants to APS programs under the 
EJA section 2042(b), 42 U.S.C. 1397m-1(b).\23\
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    \21\ 42 U.S.C. 1397m-1.
    \22\ Coronavirus Response and Relief Supplemental Appropriations 
Act of 2021, Public Law 116-260, 134 Stat. 1182; American Rescue 
Plan Act of 2021, Public Law 117-2, 135 Stat. 4.
    \23\ Consolidated Appropriations Act, 2023, Public Law 117-328. 
FY 21 and 22 funding was one-time funding to help with start-up 
costs and infrastructure and the surge of needs during the COVID-19 
Public Health Emergency. FY 23 funding was the first ongoing formula 
grant funding to State grantees.
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    This rule represents the first exercise of ACL's regulatory 
authority over APS under the OAA and the EJA. While we have issued sub-
regulatory guidance, including comprehensive Consensus Guidelines in 
2016 and 2020 that include APS evidence-informed practices, we believe 
it is necessary to codify and clarify a set of mandatory minimum 
national standards to ensure uniformity across APS programs and to 
promote high quality service delivery that thus far has not been 
achieved under the current Consensus Guidelines.
    This final rule requires the State entity to establish written 
policies and procedures in areas of significant APS practice and 
establishes minimum Federal standards above and beyond which States may 
impose additional requirements on their APS systems, as discussed in 
greater depth herein.

B. Overview of the Final Rule

    This final rule adopts the same structure and framework as the 
proposed rule. Section II provides a discussion of the Final Rule and 
response to comments, including general comments received on the NPRM 
and on individual provisions of the rule. Our Final Rule is a direct 
response to feedback from interested parties and reflects input about 
the evolving needs of APS systems.
    We have made changes to the proposed rule's provisions based on the 
comments we received, including making changes to requirements 
commenters asserted would create significant burden or be difficult to 
implement. We have also provided clarification on several provisions in 
the preamble. Among the notable changes and significant clarifications 
are the following:
    We have lengthened the implementation timeline by delaying the 
compliance date from 3 years after the publication of this rule to 4 
years, and we discuss how States can work with ACL to address specific 
requirements that may need additional time through corrective actions 
plans.
    Section 1324.401 addresses definitions used in the final rule. The 
definitions are foundational terms used in APS practices. In response 
to commenter feedback, ACL added definitions for ``finding,'' 
``report'' and ``response.'' We also revised the terms ``abuse,'' 
``adult maltreatment,'' ``at risk of harm,'' ``emergency protective 
action,'' ``exploitation,'' ``investigation,'' ``mandated reporter,'' 
``self-neglect,'' and ``sexual abuse.'' We removed the terms 
``inconclusive,'' ``post-investigative services,'' ``substantiated,'' 
``trust relationship,'' and ``unsubstantiated.''
    To clarify expectations around State adoption of the definitions in 
Sec.  1324.401, we added new Sec.  1324.402(a)(5) (Program 
Administration) explaining that State entities are not required to 
uniformly adopt the regulatory definitions, but State definitions may 
not narrow the scope of adults eligible for APS or services provided. 
The final rule requires States to establish definitions for APS systems 
that collectively incorporate every defined term and all of the 
elements of the definitions contained in Sec.  1324.401. States must 
then provide assurances in their State plans that their definitions 
meet or exceed the minimum standard established by this Final Rule.
    We clarified in Sec.  1324.402(b)(2)(i)(A) that the requirement for 
a 24-hour

[[Page 39491]]

immediate need response can be fulfilled through a partnership with 
Emergency Management Systems, Law Enforcement, or other appropriate 
community resource with 24-hour response capability.
    We clarified in Sec.  1324.402(c) State APS-related client rights 
do not need to be provided in very first moment of first contact and 
that client rights do not need to be provided in writing (APS programs 
may choose how they wish to provide clients notice of their rights).
    We modified proposed Sec.  1324.402(d) to remove the requirement 
that State APS entities set staff-to-client ratios.
    We modified proposed Sec.  1324.403 (Investigation and Post-
Investigation Services) by renaming it ``APS Response'' in response to 
commenter feedback.
    We amended proposed Sec.  1324.403(c)(6) by dividing it into Sec.  
132.403(c)(6): ``permit APS the emergency use of APS funds to buy goods 
and services'' and Sec.  1324.403(c)(7) ``permit APS to seek emergency 
protective action only as appropriate and necessary as a measure of 
last resort to protect the life and wellbeing of the client from harm 
from others or self-harm'' in conformity with revised definition of 
``emergency protective services'' and to better reflect APS practice 
and ACL policy around emergency protective action.
    We removed Sec.  1324.403(e)(6), which required APS systems to 
monitor the status of clients and the impact of services. Similarly, we 
removed Sec.  1324.403(f)(3)(iii), which required APS programs to 
assess the outcome and efficacy of intervention and services. We 
believe this data can be adequately captured by our Program Performance 
requirements at Sec.  1324.407.
    In Sec.  1324.404 (Conflict of Interest), we removed proposed Sec.  
1324.404(a) that required APS systems to ensure that APS employees and 
agents did not simultaneously provide or oversee direct services to 
clients during the course of an investigation.
    We added to new Sec.  1324.404(a) and Sec.  1324.404(b) (formerly 
proposed Sec.  404(b) and Sec.  404(c) respectively) and amended to 
include ``member of immediate family or household'' [emphasis added] to 
widen scope of who is captured by COI provisions.
    We moved proposed Sec.  1324.404(e) to new Sec.  1324.404(c) 
requiring APS establish monitoring and oversight protocol.
    We expanded and finalized at Sec.  1324.404(d)(1)-(2) to prohibit 
dual relationships unless unavoidable and when APS petitions for or 
serves as guardian, the dual relationship is unavoidable only if less 
restrictive alternatives to guardianship have been considered and 
either (i) a court has instructed the APS program to petition for or 
serve as a guardian or; (ii) there is no other qualified individual/
entity available to petition for or serve as guardians. For all dual 
relationships APS must describe and document mitigation strategies in 
the case record to address conflicts of interest.
    We added Sec.  1324.405(a) (Accepting Reports) that 24 hour per day 
seven calendar day per week requirement for accepting reports does not 
mean a live APS worker must field reports--rather, it refers to 24 hour 
per day, seven calendar day per week reporting portal. We likewise 
clarified that APS programs must maintain at least two methods of 
reporting and one method of reporting must be an online portal, secured 
email address, or other online method.
    We removed proposed Sec.  1324.405(b)(ii), which required APS to 
share with a mandated reporter the finding of an allegation in a report 
made by the mandated reporter. New Sec.  1324.405(b)(1)-(2) adds the 
requirement that a mandated reporter only be notified upon their 
request. APS must only inform the reporter if a case has been opened 
because of their report, with the prior consent of the adult on whose 
behalf the case was opened. Relatedly, we have modified to definition 
of ``mandated reporter'' to apply only to mandated reporters reporting 
in their professional capacity.
    We modified proposed Sec.  1324.406 (Coordination with Other 
Entities) to add Tribal APS programs to Sec.  1324.406(a)(1). We 
modified proposed Sec.  1324.406(a)(2) to reference coordination with 
State Medicaid agencies ``for the purposes of coordination with respect 
to critical incidents.''
    We modified Sec.  1324.406(a)(3) to add State securities and 
financial regulators, and Federal financial and securities enforcement 
agencies.
    We have made clarifying edits and preamble text proposed Sec.  
1324.406(b)(3) that APS Systems should facilitate (but are not 
required) to enter into formal data sharing agreements or MOUs. 
Informal arrangements may also be appropriate.
    We modified proposed Sec.  1324.408 (State Plans) to clarify that 
the State APS entity receiving the Federal award of funding under 42 
U.S.C. 1397m-1 must develop the State plan in collaboration with other 
State APS entities, as applicable, and other APS programs.

C. Severability

    To the extent that any portion of the requirements arising from the 
final rule is declared invalid by a court, ACL intends for all other 
parts of the final rule that can operate in the absence of the specific 
portion that has been invalidated to remain in effect. While our 
expectation is that all parts of the final rule that are operable in 
such an environment would remain in effect, ACL will assess at that 
time whether further rulemaking is necessary to amend any provisions 
subsequent to any holding that ACL exceeded its discretion, or the 
provisions are inconsistent with the OAA or EJA or are vacated or 
enjoined on any other basis.

II. Provisions of the Final Rule and Responses to Public Comments

    We received 172 public comments from individuals and organizations, 
including State APS entities, Tribes and Tribal organizations, APS 
programs, Area Agencies on Aging (AAAs), Ombudsman programs, State 
governmental entities, State and national organizations and advocacy 
groups, and private citizens. We thank commenters for their 
consideration of the proposed rule and appreciate all comments 
received. In the subsequent sections, we summarize the rule's 
provisions and the public comments received, and we provide our 
response.

General Comments on the NPRM

General Support
    Comment: We received many comments in support of the proposed rule. 
Commenters expressed general support for the national baseline created 
by the regulations. A significant number of commenters requested 
additional funds for APS programs, particularly in light of 
requirements in the new regulations.
    Response: ACL appreciates these comments. We encourage 
collaboration at the State and local levels to identify solutions that 
are responsive to the needs and resources in local communities. 
Requests for additional funding are outside the scope of this rule.
Technical Corrections; Recommendations for Sub-Regulatory Guidance
    Comment: Several commenters identified technical corrections, 
including inconsistency in terminology and grammatical errors. 
Commenters also provided suggestions and raised questions that could be 
addressed in future sub-regulatory guidance on a variety of topics.

[[Page 39492]]

    Response: We appreciate these comments and have made the 
recommended technical corrections. We look forward to providing 
technical assistance and guidance subsequent to promulgation of the 
final rule.
Minimum Federal Standards
    As discussed in the proposed rule, our requirements establish 
minimum Federal standards for all States receiving EJA funding pursuant 
to 42 U.S.C. 1397m-1. These standards will promote uniformity across 
APS programs and high-quality service delivery. However, as discussed 
in the preamble, the regulation allows significant flexibility for 
State APS systems as they respond to the unique needs of their 
communities. Accordingly, we allow and encourage State APS systems to 
include services, practices, and processes that exceed these minimum 
Federal standards. As State entities develop their State plans, they 
should, in addition to assurances related provided pursuant to Sec.  
1324.408, detail APS functions performed above the minimum Federal 
standards set out in this regulation. We emphasize that EJA funding is 
available for all approved APS functions as defined in section 2402 of 
the EJA, 42 U.S.C. 1397m-1, including those not explicitly detailed in 
this regulation, provided they are included in an approved State plan.
    We will provide technical assistance as States develop their State 
plans to determine whether their policies and procedures and program 
functions meet these minimum standards.
    Comment: One commenter requested that ACL clarify in regulation 
text that EJA funds may be expended on activities not specified in the 
regulation.
    Response: We have declined to revise the regulation text as 
requested. Our regulation establishes a minimum Federal standards for 
APS functions, and we require that EJA funding must be used consistent 
with the activities described in the approved State plan; under 42 
U.S.C. 1397m-1(b)(3)(A), ``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.'' EJA funding may be used for all activities in an approved 
State plan, including those not specifically enumerated in this 
regulation. However, EJA funding is only allowable for APS activities 
under the EJA and in an approved State plan. Under 42 U.S.C. 1397m-
1(b)(3)(C), EJA funding must be used to supplement, and not supplant, 
other sources of funding that support the same or similar activities.
Tribal Considerations
    Comment: We received comments regarding the applicability of this 
rule to Tribes, Tribal governments, and Tribal APS programs. Commenters 
encouraged ACL to finalize regulations that allow Tribes the 
flexibility to adapt Tribal APS programs to their own cultures. 
Commenters further stressed that our regulations should consider and 
reflect Tribal practices and perspectives--requiring State APS systems 
to coordinate with Tribal governments and APS programs, and to address 
APS jurisdiction over events that occur on Tribal lands or to members 
of tribes who may not be on Tribal land. Commenters sought greater 
explanation and clarification.
    Response: Tribal governments do not receive funding through EJA APS 
formula grants (42 U.S.C. 1397m-1), thus this rule does not apply to 
Tribal governments. However, we recognize that many State and local APS 
programs collaborate with Tribes and Tribal APS programs during their 
work. We have amended Sec.  1324.406(a)(1) ``Coordination with Other 
Entities'' to reflect this.
    ACL is committed to honoring Tribal sovereignty and works to 
maintain a strong government-to-government relationship by providing 
opportunities for meaningful and timely input on areas that have a 
direct impact to Tribal programs. This rule anticipates that State 
entities will seek input from interested parties when they develop 
State APS plans, and we encourage collaboration with all interested 
parties, including Tribes, Tribal governments, and Tribal members. ACL 
will provide technical assistance to States regarding the preparation 
of State APS plans, including engaging with Tribes. Additionally, ACL 
will solicit input from and conduct Tribal consultation meetings with 
affected Federally recognized Tribes per Federal requirements as this 
rule is implemented.
Compliance
    Comment: We received comment requesting more information on 
compliance requirements and penalties for non-compliance.
    Response: As with all grant-funded programs, grantees must comply 
with applicable Federal requirements to receive funding. If a State APS 
program accepts funding made available under 42 U.S.C. 1397m-1(b), it 
is required to adhere to all provisions contained in this final rule, 
in addition to the uniform administrative requirements, cost 
principles, and audit requirements for HHS awards codified in 45 CFR 
part 75. Among other requirements, State entity recipients of funding 
must provide fiscal and performance reporting that documents that they 
are expending funds in compliance with Federal statutes, regulations, 
and the terms and conditions of the Federal award. Further, 45 CFR part 
75, subpart D requires recipients of Federal awards to have a financial 
management system in place to account for the Federal award. ACL leaves 
it to the State entity's discretion to determine how they will ensure 
that funds are expended in a manner that meets the requirements of this 
regulation and consistent with the State's internal fiscal controls.
    Upon learning of compliance concerns, ACL provides technical 
assistance to enable grantees to come into compliance (as is true of 
all compliance concerns related to our grantee's actions). ACL may also 
work with grantees on a corrective action plan. Consequences for non-
compliance may include withholding of funds until the grantee achieves 
compliance.
Effect on County-Administered Systems
    Comment: One commenter in a county-based system commented in 
support of the proposed rule, suggesting that it will help to 
standardize services, place the State in a position of greater 
oversight, and effectively support adults with disabilities. Other 
commenters stressed that, in county-based systems, it would be 
difficult to implement the rule because the State does not have 
sufficient authority over counties to ensure compliance. A few 
commenters suggested that the proposed rule would detract from the 
strengths of a county-administered system that promotes autonomy and 
system responsiveness based on local needs and abilities and would be 
challenging or impossible to implement based on the structure of their 
programs.
    Commenters raised concerns that our conflict of interest provisions 
in Sec.  1324.404 would be challenging to implement in counties where 
many APS workers have dual relationships. A few commenters suggested 
that our proposal would require additional funding and staff to 
mitigate conflicts surrounding dual relationships. One commenter wrote 
that creation of a centralized State intake system in their county-
administered system would be challenging and burdensome and may be less 
effective than the current localized process. They sought clarification 
as to whether State-centralized systems were required.
    A few commenters in a county-administered State requested specific

[[Page 39493]]

guidance on the rule's application and implementation to their APS 
systems.
    Response: We appreciate commenters' comments related to 
implementation of this regulation in States that have county-
administered systems, and we acknowledge unique challenges such APS 
systems may face as they implement this regulation. The regulations set 
minimum Federal standards with a significant amount of latitude 
provided for State implementation. We believe the flexibility will 
allow all States, including those with county-based system, to continue 
provide APS services tailored to the unique needs of their communities. 
We discuss dual relationships in more detail in our preamble discussion 
for Sec.  1324.404. We clarify nothing in this regulation requires a 
State centralized intake system.
    Funding made available under 42 U.S.C. 1397m-1(b) is intended to 
enable State APS programs to implement an APS program as described in 
this regulation. As the recipient of Federal funding, the State entity 
is responsible for compliance with this regulation and 45 CFR part 75, 
which sets out requirements for all recipients of this type of Federal 
funding. We leave it to the discretion to the State entity to determine 
how to best ensure that all Federal funds are expended in a manner that 
meets the requirements of this regulation and consistent with the 
State's internal fiscal controls. We will provide ongoing technical 
assistance as necessary to county-administered systems throughout the 
initial implementation period, now extended to 4 years, and beyond. 
State APS entities may also request a corrective action plan to assist 
in addressing provisions of the rule that prove uniquely challenging 
for county-administered systems.
Administrative Burden, Implementation Costs, Implementation Timeframe
    Comment: A significant number of commenters raised concerns about 
the burden, cost, and amount of time regulated entities would need to 
implement the final rule (e.g., costs and time needed to change State 
statute, to create or update State regulations, to review and update 
existing policies and procedures, to create new policies and 
procedures, and to train staff), as well as concerns about the ongoing 
costs of monitoring compliance with the final rule. Some State agencies 
commented that they anticipate that consultants and/or additional staff 
will need to be hired and/or that changes will need to be made to 
information technology systems. Some State agencies asserted that ACL 
had greatly underestimated both the cost, and the amount of time, 
needed to come into compliance with the rule.
    Response: We appreciate that the implementation of this rule may 
require statutory changes, create administrative burden, and require 
increased funding and/or increased staff. We have carefully considered 
commenter feedback and made substantial revisions to our proposals 
where we believed burden could be reduced while still maintaining the 
integrity and efficacy of these requirements.\24\ For example, we have 
removed requirements for States entities to set staff to client ratios, 
streamlined monitoring requirements, clarified the ability of APS 
systems to share responsibility for immediate risk cases with first 
responders and other community partners, and clarified requirements 
around 24 hour per day, 7 calendar day per week intake methods. We have 
also lengthened the implementation timeline by extending the compliance 
date from 3 to 4 years.
---------------------------------------------------------------------------

    \24\ See a further discussion of projected burden and benefit in 
our Regulatory Impact Analysis on p. 124.
---------------------------------------------------------------------------

    If State APS entities encounter challenges implementing specific 
provisions of the rule, they should engage with ACL for technical 
assistance and support. In addition, State APS entities that need 
additional time to comply with one or more provisions of the rule may 
submit a request to proceed under a corrective action plan. A request 
should include the reason the State needs additional time, the steps 
the State will take to reach full compliance, and how much additional 
time the State anticipates needing. The corrective action plan process 
is intended to be highly collaborative and flexible. Under a corrective 
action plan, States agencies and ACL will jointly identify progress 
milestones and a feasible timeline for the State agency to come into 
compliance with the provision(s) of the rule incorporated into the 
corrective action plan. State agencies must make a good faith effort at 
compliance to continue operating under a corrective action plan. ACL 
will provide guidance on this process after this rule takes effect, 
including a timeline for making requests for corrective action plans.
    Our rule will improve APS program efficiency, enhance APS for older 
adults and adults with disabilities, and further the intent of the OAA 
and the EJA. We anticipate upon full implementation that any burden 
incurred will be far outweighed by the benefit of this rulemaking.

III. Adult Protective Services Systems

A. Section 1324.400 Eligibility for Funding

    In proposed Sec.  1324.400, we clarified that annual funding from 
ACL through section 2042(b) of the EJA, 42 U.S.C. 1397m-1(b) is 
predicated on compliance with this rule.
    Comment: We received comment from States with bifurcated APS 
systems. These States have two APS entities, one charged with 
investigating allegations of adult maltreatment and self-neglect for 
people aged 60 and over, and the other charged with investigating 
allegations of adult maltreatment and self-neglect for younger adults 
with disabilities. Commenters requested clarification on the 
application of the proposed rule to the programs that serve younger 
adults with disabilities.
    Response: The final rule applies to any program that uses EJA 
funding to provide Adult Protective Services, whether those funds are 
used for older or younger adults. ACL bases our authority to issue APS 
regulations on elder abuse prevention and services on section 201(e)(3) 
of the OAA, 42 U.S.C. 3011(e)(3). With respect to APS for younger 
adults, section 2042(b) of the EJA authorizes grants to enhance the 
provision of APS, defined broadly as ``services provided to adults as 
specified by the Secretary.'' 42 U.S.C. 1397m-1. Given that Congress 
has appropriated funding for APS programs under the EJA, ACL intends 
for this regulation to set forth the conditions of participation for 
recipients of APS grants to States under the EJA, as well as elder 
abuse prevention and services under the OAA.
    ACL has previously taken the position that funding to APS programs 
provided through the EJA should serve all adults eligible for APS 
services.\25\ For purposes of this regulation, we defer to States' 
definition of ``adult'' to determine eligibility for APS. Therefore, 
this regulation applies to all APS programs that serve adults eligible 
for APS services, regardless of whether an APS entity serves only 
adults under age 60.
---------------------------------------------------------------------------

    \25\ See, CORONAVIRUS RESPONSE AND RELIEF SUPPLEMENTAL 
APPROPRIATIONS ACT OF 2021 (CRRSA): GRANTS TO ENHANCE ADULT 
PROTECTIVE SERVICES TO RESPOND TO COVID-19, Frequently Asked 
Questions (Updated March 23, 2023).
---------------------------------------------------------------------------

    As detailed in Sec.  1324.408, each State that accepts APS funding 
must submit a single State plan for ACL approval that describes which 
populations will be served, which services will be provided, and which 
entities will oversee the provision of those services.

[[Page 39494]]

    States with bifurcated APS systems may designate more than one 
entity as responsible for different populations within their State 
plan. In such States, the State plan should also describe the 
allocation plan for the distribution of funds between State entities, 
as well as processes for coordination on cases and on the development 
of policies and procedures.

B. Section 1324.401 Definitions

    The final rule updates the definitions of significant terms in 
Sec.  1324.401 by adding several new definitions and revising several 
existing definitions. The additions and revisions are intended to 
reflect terms foundational to APS practice and feedback that we have 
received from a range of interested parties.
    We add definitions of the following terms to the final rule: 
``finding,'' ``report,'' and ``response.''
    We retain the following terms from the proposed rule and make 
revisions: ``adult maltreatment,'' ``Adult Protective Services 
System,'' ``at risk of harm,'' ``client,'' ``emergency protective 
action,'' ``exploitation,'' ``investigation,'' ``mandated reporter,'' 
``self-neglect,'' ``sexual abuse,'' and ``State entity.''
    We removed the following terms used in the proposed rule: 
``inconclusive,'' ``post-investigative services,'' ``substantiated,'' 
``trust relationship,'' and ``unsubstantiated.''
    Comment: We received comment encouraging more systematic use of 
strengths-based language throughout our definitions.
    Response: Throughout the definitions and the rule, we have worked 
to incorporate more person-directed (also sometimes referred to as 
``person-centered'') and strengths-based language. According to the 
National Center on Elder Abuse, ``[p]erson-centered, trauma-informed 
care is a holistic approach to service provision that fosters dignity 
and resilience among survivors of trauma. This approach recognizes the 
impact of trauma and incorporates that knowledge into service delivery 
and provider practices. Person-centered, trauma informed care provides 
a framework that advances safety, culturally respectful and responsive 
programming, and empowering environments for survivors.'' \26\ We agree 
with commenters that the systematic use of strengths-based language 
that reflects the principles of person-centeredness and trauma-informed 
care is critical to effective APS services for adults and thank 
commenters for their feedback.
---------------------------------------------------------------------------

    \26\ The National Center on Elder Abuse, Tips and Tools for 
Person-Centered, Trauma-Informed Care of Older People at the 
Intersection of Trauma, Aging, and Abuse, https://eldermistreatment.usc.edu/wp-content/uploads/2023/07/NCEA_TT_PCTICare_web.pdf. See also, Ernst, J.S., & Maschi, T. 
(2018). Trauma-informed care and elder abuse: a synergistic 
alliance. Journal of Elder Abuse & Neglect, 30(5), 354-367. https://doi.org/10.1080/08946566.20 18.1510353.
---------------------------------------------------------------------------

    Comment: We received comment from many State APS entities and other 
interested parties that several of our definitions, most notably 
``adult maltreatment,'' conflict with State definitions, were confusing 
or duplicative, or did not reflect APS practice in their State. Many 
States commented, providing their own State definitions. Many State 
entities and APS programs commented that changes to their State 
statute, regulation, and/or policy would be necessary to come into 
compliance and that to make these changes would be onerous and time-
consuming. Some commenters requested that ACL provide waivers for 
States where compliance would be overly burdensome.
    Response: We thank commenters for sharing their State experience 
and expertise. We have incorporated many of these suggestions and 
comments in our revised definitions, and into our incorporation of the 
definitions into the regulatory requirements in Sec.  1324.402.
    We include the definitions in this regulation, some of which are 
drawn directly from the OAA and EJA, as a baseline, and we encourage 
States without robust existing definitions to adopt these statutory 
definitions. However, we clarify in this final rule in Sec.  1324.402 
that this this regulation does not require States to adopt these 
definitions verbatim. Under Sec.  1324.402, the final rule requires 
States to establish definitions for APS systems that collectively 
incorporate every defined term and all of the elements of the 
definitions contained in Sec.  1324.401. Under Sec.  1324.408, States 
must provide assurances that their definitions meet or exceed the 
minimum standard we have established in Sec.  1324.401.
    To assess whether States have met the minimum standard, we will 
evaluate all State definitions in their totality as opposed to 
individually. States must ensure that all definitions specified by this 
rule and their elements are incorporated into a State plan and that 
their definitions capture the full intent and purpose of the 
definitions in this regulation. For example, some States may define the 
``knowing deprivation of goods or services necessary to meet the 
essential needs of an adult'' as ``willful negligence,'' rather than as 
an element of ``abuse.'' So long as the State's APS definitions address 
such ``knowing deprivation'' in some definition, the State will have 
satisfied this requirement.
    We recognize that some States may nevertheless need to change 
statutes (including criminal statutes), regulations, or policies to 
satisfy this requirement if their APS program definitions do not yet 
fully incorporate all required adult maltreatment and self-neglect 
elements. We are establishing a 4-year implementation timeline to 
provide States ample opportunity to cross-walk their current 
definitions and those contained in this rule and make any statutory, 
program, or policy changes that may be necessary. States may also 
request to proceed under a corrective action plan if they are unable to 
meet this requirement within 4 years.
``Abuse''
    Consistent with the definitions set forth in section 102(1) of the 
OAA, 42 U.S.C. 3002(1), and section 2011 of the EJA, 42 U.S.C. 
1397j(1), we proposed to define abuse as an element of adult 
maltreatment to encompass the knowing psychological, emotional, and/or 
physical harm or the knowing deprivation of goods or services necessary 
to meet the essential needs or avoid such harm.
    Comment: A significant number of commenters, including many State 
APS entities and national associations representing the interests of 
APS programs, requested we remove ``knowing'' from the definition of 
abuse. Some commenters offered examples from their State, to include 
``reckless'' in addition to ``knowing'' in defining the mindset of a 
perpetrator of abuse.
    Commenters suggested that it was too difficult and burdensome to 
determine whether a person knowingly or unknowingly harmed or deprived 
an adult of necessary goods or services. For example, a commenter 
pointed out that an APS program may be put in the position of deciding 
whether a mental health condition, cultural practice, or other 
subjective factor affected a perpetrator's mindset. Relatedly, another 
commenter asked how ``unknowing'' psychological, emotional, and/or 
physical harm of an adult would be treated by APS systems under our 
definitions.
    A significant number of other commenters raised questions about the 
interaction between the definitions of ``abuse'' and ``neglect.'' They 
suggested that, as proposed, the definition of abuse could be conflated 
with neglect. Commenters sought clarity as to whether an allegation of 
abuse and neglect could be substantiated against the same alleged 
perpetrator for the same act.

[[Page 39495]]

    Response: We appreciate these comments and understand that the 
statutory definition of ``abuse'' differs from the definition that many 
States have adopted. As we have clarified above, State APS entities are 
not obligated to adopt these statutory definitions verbatim, so long as 
the elements of each defined term are all incorporated into State 
definitions.
    In response to commenter concerns, we are clarifying the 
distinction between ``abuse'' and ``neglect'' (further discussed below) 
as defined by the OAA and the EJA. Neglect is defined as ``the failure 
of a caregiver or fiduciary to provide the goods or services that are 
necessary to maintain the health and/or safety of an adult.'' 42 U.S.C. 
3002(38), 42 U.S.C. 1397j(16). Abuse is defined as ``the knowing 
infliction of physical or psychological harm or the knowing deprivation 
of goods or services that are necessary to meet essential needs or to 
avoid physical or psychological harm'' [emphasis added]. 42 U.S.C. 
3002(1), 42 U.S.C. 1397j(1). A number of commenters interpreted the 
``knowing deprivation of goods or services'' (abuse) as a ``failure . . 
. to provide the goods or services'' (neglect) and argued that the 
definitions are redundant. Moreover, commenters noted that overlapping 
definitions could make it difficult for States to effectively report 
out on case types.
    The rules of statutory construction require that we interpret the 
entire statute as a whole, with the assumption that Congress intended 
each provision to work together harmoniously.\27\ Here, the key 
distinction between abuse and neglect is the mindset--abuse requires 
the intent (the ``knowing deprivation'') to cause harm. For these two 
definitions to be read as distinct, the ``failure'' to provide goods or 
services under the definition of neglect must be interpreted as being 
unintentional. We understand from commenters that many State APS 
systems may approach abuse and neglect differently; namely, their 
definitions assess whether a harm was active (as in physical abuse) or 
caused by deprivation (as in either willful or unintentional neglect). 
In this way, State APS systems are set up to look at the functional 
outcome, regardless of the intentionality associated with it. As stated 
above, State APS systems are in compliance with this regulation so long 
as the totality of their definitions incorporate all of the elements of 
adult maltreatment and self-neglect contained in the regulatory 
definitions.
---------------------------------------------------------------------------

    \27\ United Savings Assn. of Tex. v. Timbers of Inwood Forest 
Assoc., Ltd., 484 U.S. 365 (1988).
---------------------------------------------------------------------------

    Commenter concerns related to the difficulty of assessing mindset 
are well taken. However, we note that many APS investigative functions 
rely on contextual clues to understand state of mind or decisional 
capability. We reiterate that States have the discretion to distinguish 
between the ``knowing deprivation of goods or services that are 
necessary to meet essential needs or to avoid physical or psychological 
harm'' and other actions that are defined as abuse by statute. Factors 
such as cultural practices and mental health conditions should be 
considered during an APS response. We defer to the expertise, 
sensitivity, and judgement of APS workers when evaluating such 
elements. In all cases, APS workers should undertake a person-centered, 
culturally competent approach to investigation and service delivery, 
and we reiterate our requirements surrounding person-directedness and 
trauma informed responses at Sec.  1324.402(b)(1) and Sec.  
1324.403(c)(1) as well as ongoing education and training requirements 
for APS workers at Sec.  1324.402 (e)(1).
    Comment: One commenter suggested we add that no adult will be found 
to be abused solely on the grounds of environmental factors that are 
beyond the control of the older adult or the caretaker, such as 
inadequate housing, furnishings, income, clothing, or medical care.
    Response: We recognize the commenter's concern related to 
environmental factors and understand that individuals will experience 
different outcomes based on the resources available to them. The 
deprivation of goods or services for reasons beyond the control of the 
older adult or caretaker (as described by the commenter above) does not 
constitute abuse if it is not intentional. In all cases, we stress the 
importance of APS systems' discretion with respect to when and how to 
move forward in person-directed investigations and service delivery.
    Comment: We received comment from Tribal commenters suggesting we 
define ``abuse'' to include ``spiritual abuse.''
    Response: We thank commenters for their suggestion but decline to 
revise the definition. States have the discretion to determine whether 
to include ``spiritual abuse'' in their definition. We will provide 
ongoing technical assistance to States as they implement the final 
rule.
    Comment: We received comment requesting we define ``psychological 
harm,'' ``emotional harm,'' and ``physical harm.''
    Response: We thank commenters for their suggestions and decline to 
adopt these definitions. We will leave these definitions to State 
discretion.
``Adult''
    Comment: ACL received comment that some States include a 
vulnerability qualifier in their definition of adult and asked how this 
would comport with our definition of ``at risk of harm.''
    Response: Please see the discussion in our definition of ``at risk 
of harm.''
    Comment: We received a few comments supporting a national 
definition for ``adult,'' with one commenter suggesting we let States 
apply for exceptions if the national definition is overly burdensome. 
We received one comment asking that we specify ``eligible adults'' for 
improved clarity. However, we received many comments, including from 
State APS entities and national associations representing them, 
supporting our decision to defer to States when defining ``adult'' for 
the purposes of ``adult maltreatment.''
    Response: We concur with commenters that our approach will allow 
States flexibility to design and operate their APS systems in a manner 
that best fits the needs of the State's population and aligns with 
existing State statutory eligibility requirements. We have decided not 
to permit exceptions because we believe our definition as written will 
accommodate all States adequately as written. We are finalizing this 
definition as proposed.
``Adult Maltreatment''
    In this final rule, we define ``adult maltreatment'' to bring 
uniformity and specificity to a foundational term used throughout APS 
systems and this regulation. Our definition establishes a comprehensive 
and uniform approach to investigations of adult maltreatment while 
still allowing for State flexibility and discretion. We proposed that 
``adult maltreatment'' encompass five elements: abuse, neglect, 
exploitation, sexual abuse, and self-neglect. We also proposed to 
require that the adult must have a relationship of trust with the 
perpetrator of abuse, neglect, exploitation, or sexual abuse and be at 
risk of harm from the perpetrator.
    Comment: We received several comments in support of a national 
definition for ``adult maltreatment.'' We also received comments 
opposed to a unified national definition of adult maltreatment, with 
one commenter suggesting that our definition overextends the reach of 
APS. Other commenters stated that adherence to our definition would 
conflict with their State definitions and others suggested additional 
elements to our definition.

[[Page 39496]]

    Response: ACL thanks commenters for their support. We believe a 
standard baseline definition upon which States may build will advance 
APS practice and is crucial to the success of this rulemaking. We are 
therefore retaining this definition in the final rule. We note that we 
have extended the implementation timeline to 4 years to provide State 
entities more time to revise definitions.
    Comment: We received comment that the formulation of our ``adult 
maltreatment'' definition was confusing and would be challenging to 
implement. Under our proposed rule, ``adult maltreatment'' was defined 
as ``self-neglect or abuse, neglect, exploitation, or sexual abuse of 
an adult at-risk of harm from a perpetrator with whom they have a trust 
relationship.'' States noted that there was no perpetrator involved in 
cases of self-neglect, that the presence of the term ``adult'' when 
coupled with definitions of the five elements of maltreatment may be 
duplicative, and the presence of ``trust relationship'' may be 
duplicative of ``caregiver'' and ``fiduciary'' in ``neglect''.
    Response: We appreciate commenters' thoughtful responses and 
suggestions. We have revised the definition of adult maltreatment as 
follows: Adult maltreatment means the abuse, neglect, financial 
exploitation, or sexual abuse of an adult at-risk of harm. Please see 
our definitions of ``abuse,'' ``neglect,'' ``financial exploitation,'' 
``sexual abuse,'' and ``self-neglect'' as well as our further 
discussion of ``trust relationship'' and ``risk of harm'' contained 
herein.
``Adult Protective Services (APS)''
    Consistent with the definitions set forth in section 102(3) of the 
OAA, 42 U.S.C. 3002(3), and section 2011 of the EJA, 42 U.S.C. 
1397j(2), we proposed to define Adult Protective Services as such 
services provided to adults as the Assistant Secretary may specify and 
includes services such as--
    (A) receiving 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.
    Comment: Several commenters generally requested that the final rule 
remove the requirement that APS include providing services. One 
commenter noted high costs of hiring enough staff to comply with the 
definition, as well as training costs. Some commenters noted that some 
APS programs only provide referrals to other entities or provide 
limited services to ``stabilize the situation'' and noted that more 
lengthy case management or provision of services would be very costly. 
A commenter believes our definition gives APS the ability to designate 
a legal, social service, or medical provider as an APS provider and 
disagrees with this decision.
    Response: Service provision is memorialized in Federal statute and 
is the core of APS' mission in most States. We emphasize this in our 
definition. However, our definition does not mandate that APS systems 
provide any specific service. Rather, it describes the general types of 
services that APS encompasses. We affirm that APS may provide referrals 
or otherwise facilitate the provision of legal, medical, or social 
services. However, APS does not have the authority to designate those 
referral entities as APS providers.
    Comment: Other commenters suggested that APS cannot provide 
emergency services, and that the proposed definition as written is 
vague and could potentially open the State to legal liability.
    Response: We believe our definition, which defines APS services as 
``providing for, or facilitating the provision of [. . .] emergency, 
and supportive services'' [emphasis added], does not require that APS 
provide emergency services. Rather, APS may refer to other entities for 
emergency protective services, as needed. For example, APS could 
facilitate the provision of community-based services by referring an 
adult to another program to receive urgently needed home repairs, for 
nutrition assistance, or transportation.
    Comment: Several commenters voiced support for APS offering a wide 
array of services.
    Response: We agree and likewise believe that APS does, and should, 
provide a wide array of services. We believe the statutory definition 
appropriately describes the array of services provided by APS and 
decline to further expand upon it.
    Comment: A commenter asked that the investigative role of APS be 
de-emphasized, and the social service role should be emphasized.
    Response: We agree and thank the commenter for their suggestion. We 
have made changes throughout the final rule to more accurately 
emphasize the critical role of service delivery in APS practice.
    Comment: One commenter requested clarity on the expectations 
related to APS monitoring responsibilities.
    Response: ACL will provide ongoing technical assistance to APS 
State entities and programs related to monitoring. We refer commenters 
to our discussion at proposed Sec.  1324.403(e)(6) (removed) and 
proposed Sec.  1324.403(f)(3)(iii) (removed) as well as finalized Sec.  
1324.407. We finalize our definition as proposed.
``Adult Protective Services Program''
    Comment: We received one comment in support of our proposed 
definition and one that suggested the definition include reference to 
administrative and technical staff.
    Response: We thank commenters for their input. We believe our 
definition which refers to ``providers'' may be interpreted to include 
administrative and technical staff. We have finalized the definition as 
proposed.
``Adult Protective Services System''
    Comment: We proposed to define ``Adult Protective Services (APS) 
System'' as the totality of both the State entity and the local APS 
programs.'' A commenter suggested modifying the language to ``the 
totality of the State entity or entities and the local APS programs'' 
to account for States with multiple APS entities.
    Response: We thank the commenter and are revising our definition 
accordingly.
``At Risk of Harm''
    We proposed to define ``at risk of harm'' in accordance with 
Centers for Disease Control and Prevention (CDC) Elder Abuse 
Surveillance: Uniform Definitions and Recommended Core Data Elements 
(CDC Uniform Definitions) as ``the possibility that an adult will 
experience an event, illness, condition, disease, disorder, injury or 
other outcome that is adverse or detrimental and undesirable.'' \28\
---------------------------------------------------------------------------

    \28\ U.S. Dep't of Health & Hum. Servs., Ctrs. For Disease 
Control and Prevention, Elder Abuse Surveillance: Uniform 
Definitions and Recommended Core Data Elements, https://www.cdc.gov/violenceprevention/pdf/ea_book_revised_2016.pdf. (Feb. 29, 2016).
---------------------------------------------------------------------------

    Comment: We received comment that our definition of ``at risk of 
harm'' was too broad and that some States used a narrower standard. A 
commenter noted that our proposed definition, which refers to ``the 
possibility that an adult will experience an event, illness, condition, 
disease, disorder, injury or other outcome that is adverse or 
detrimental and undesirable,'' could encompass any possible scenario,

[[Page 39497]]

illness, or condition. Commenters suggested that the proposed 
definition would increase caseloads, with some commenters suggesting 
instead we use ``serious harm,'' ``at risk of maltreatment,'' or 
``vulnerable'' in place of ``at risk of harm.''
    Response: We appreciate commenters' feedback and have revised the 
definition to more narrowly describe the risk of harm potentially faced 
by an adult. We have revised the definition to ``the strong likelihood 
that an adult will experience an event, condition, injury or other 
outcome that is adverse or detrimental and will occur imminently.'' We 
believe ``strong likelihood'' better represents the degree to which an 
adult may be at risk of harm to qualify for APS.
    Comment: We received comment that an ``at-risk'' qualifier may be 
appropriate when prioritizing APS cases but not as a determinant for 
APS eligibility.
    Response: We appreciate commenters' suggestion and concur that 
triaging a case based on risk is an important part of APS intake and 
case prioritization. However, given finite resources, we believe that a 
Federal definition should premise eligibility for APS on a strong 
likelihood of harm while those for whom risk is less immediate can be 
referred to other community resources. We remind commenters that our 
definitions are minimum standards. State entities are required to 
provide assurances that they are investigating abuse, neglect, 
financial exploitation, sexual abuse, and self-neglect of adults at 
risk of harm to create an approvable State plan and receive Federal 
funding, but States may also choose to accept all cases irrespective of 
risk.
    Comment: We received comment that including ``at risk of harm'' in 
the definition of adult maltreatment would be redundant for States 
where ``vulnerable'' was included in the definition of adult and that 
some commenters preferred ``vulnerable'' to ``at risk'' as defined.
    Response: We appreciate that, for some States, a strict reading of 
``at risk of harm'' in the context of our definition of ``adult 
maltreatment'' may appear to create redundancy. We remind States they 
need only provide an assurance in their State plan that their 
vulnerability qualifier meets or exceeds our minimum standard of ``at 
risk of harm'' to fulfill the requirements of the rule.
    Comment: We received comment that our definition of ``at risk of 
harm'' should include a specific timeframe for the adverse or 
detrimental event, condition, injury, or outcome.
    Response: We thank commenters for their suggestion and have added 
that the adverse or detrimental event, condition, injury, or outcome 
will occur ``imminently.''
    Comment: We received comment that ``adverse'' and ``detrimental'' 
were always undesirable and the clause was thus redundant.
    Response: We have edited the definition accordingly by removing 
``undesirable'' and thank the commenter.
``Allegation''
    Comment: We received support for our definition as proposed as well 
as suggestions for improvement. One commenter noted that not every 
reporter knows or suspects a specific alleged perpetrator and suggests 
removing the term ``accusation'' from the definition. Relatedly, 
another commenter suggested we define ``report.''
    Response: We appreciate commenters' input. Used in this context, 
``accusation'' represents a reporter's suspicion of adult maltreatment 
and does not require a reporter to accuse a specific perpetrator. We 
are finalizing this definition as proposed. We have added a definition 
of ``report'' which contains reference to ``allegation or 
allegations.''
``Assistant Secretary for Aging''
    We proposed to define ``Assistant Secretary for Aging'' as the 
position identified in section 201(a) of the Older Americans Act (OAA), 
42 U.S.C. 3002(7).
    Comment: We received comment in support of our proposal.
    Response: We thank the commenter and are finalizing the definition 
as proposed.
``Case''
    Comment: We received comment in support of our proposed definition.
    Response: We thank the commenter and are finalizing the definition 
as proposed.
``Client''
    Comment: Several commenters noted that the proposed definition 
appears to exclude adults who receive services after an investigation 
is complete and suggested changing the definition to include ``current 
or former'' subjects of an investigation.
    Response: We decline to include ``current or former'' in the final 
rule, as we believe that could require APS systems to provide services 
to all former clients. However, we have amended our definition of 
``client'' from proposed ``the subject of an investigation by APS'' to 
``the subject of an APS response'' to reflect changes made throughout 
the final rule, including to Sec.  1324.403, regarding APS response to 
allegations of adult maltreatment or self-neglect. We believe this 
better captures the holistic range of services APS provides, both 
during and after an investigation. Furthermore, our definition of 
client is a minimum standard. The definition would not prohibit APS 
from providing services to former clients in their response to adult 
maltreatment and self-neglect.
``Conflict of Interest''
    We proposed ``conflict of interest'' to mean a situation that 
interferes with a program or program employee or representative's 
ability to provide objective information or act in the best interests 
of the adult.
    Comment: We received several comments on our proposed definition, 
one in support, another State entity that offered its own definition, 
and a few that suggested we amend the definition to include or exclude 
certain situations as conflicts of interest.
    Response: We thank commenters for their input. We believe our 
current definition appropriately captures the universe of potential 
conflicts of interest. Individual instances of conflicts of interest 
are addressed in depth at Sec.  1324.404 of this rule and discussed in 
the preamble. We have made minor amendments to the definition to 
conform with changes to Sec.  1324.404.
``Dual Relationship''
    Comment: Several commenters agreed with our proposed definition, 
while one commenter suggested we use a definition provided by the 
National Adult Protective Services Association or the National 
Association of Social Workers. Another commenter noted that to adopt 
our definition would require a change in State statute.
    Response: We thank commenters for their suggestion. Our definition 
was based upon the National Association of Social Workers' Code of 
Ethics, and the definition used in our 2020 Consensus Guidelines.\29\ 
We are finalizing the definition as proposed.
---------------------------------------------------------------------------

    \29\ Code of Ethics, National Association of Social Workers 
(NASW), https://www.socialworkers.org/About/Ethics/Code-of-Ethics/Code-of-Ethics-English/Social-Workers-Ethical-Responsibilities-to-Clients (last visited Jan. 22, 2024).
---------------------------------------------------------------------------

``Emergency Protective Action''
    Comment: We received several comments opposed to our definition, 
stating it reinforces a pipeline from APS to undesired guardianship. 
Commenters

[[Page 39498]]

sought clarification regarding emergency out-of-home placement, APS 
authority, adherence with client self-determination, and least 
restrictive alternatives.
    Response: ACL agrees that client self-determination is of primary 
importance, and that guardianship and conservatorship should be a last 
resort. The principles of self-determination and reliance on least 
restrictive alternatives are foundational to this rule, see Sec.  
1324.402(b)(1). APS uses a person-directed, trauma-informed approach, 
considering the unique needs, strengths, preferences, experiences, and 
goals of each adult. In relying on least-restrictive alternatives, APS 
maximizes adults' independence and community integration through 
holistic case planning and service provision, either directly or in 
coordination with community partners. This type of service provision, 
support, and collaboration is at the heart of effective APS practice 
and is relied upon in lieu more restrictive options such as out-of-home 
placements or petitions for guardianship whenever possible.
    Accordingly, we have modified our definition of emergency 
protective action to ``immediate access to petition the court for 
temporary or emergency orders or emergency out-of-home placement.'' We 
have amended Sec.  1324.403(c) to permit emergency protective action 
only as appropriate and necessary as a measure of last resort to 
protect the life and safety of the client from harm from others or 
self-harm. Finally, we have amended the definition of emergency 
protective action to remove the reference to the emergency use of APS 
funds to purchase goods and service and revised Sec.  1324.403(c) to 
permit such activity as an appropriate response. Our modification of 
the definition, coupled with amendments to Sec.  1324.403(c), more 
clearly and accurately describes the nature of an ``emergency 
protective action'' and when APS may appropriately pursue it. Finally, 
we also clarify there are statutory and regulatory authorities with 
which APS systems must comply, including Federal and State laws that 
require administration of programs, including APS, in the most 
integrated and least restrictive setting appropriate to meet the needs 
of individuals with disabilities and that prohibit discrimination on 
the basis of disability. These include Section 504 of the 
Rehabilitation Act and the Americans with Disabilities Act. Compliance 
with this rule does not address these obligations. The Department of 
Health and Human Services' Office for Civil Rights offers technical 
assistance on these antidiscrimination requirements for covered 
entities, and we will likewise provide ongoing technical assistance on 
these anti-discrimination requirements.
    Comment: We received a comment requesting that any requirement 
regarding access to the courts be accompanied by Federal regulations 
requiring those courts to grant APS access.
    Response: We appreciate commenters' suggestion. It is outside the 
scope of this rule to require that State courts grant APS access.
    Comment: One commenter requests clarity on ``placement'' (i.e., 
involuntary), and whether lack of ``immediate access'' would affect 
funding eligibility.
    Response: Per Sec.  1324.403(c)(7), APS is required to have 
policies and procedures that permit emergency protective action when 
appropriate. ACL is not mandating a particular type of placement or 
strict definition of immediate action. We leave such decisions to State 
entities as they develop their policies and procedures under Sec.  
1324.403 and State plans under Sec.  1324.408.
    Comment: One commenter suggests the definition also include 
referral to conservatorship/guardianship, assessment for involuntary 
hold, and working with law enforcement and district attorneys to freeze 
bank accounts.
    Response: ACL appreciates commenters' suggestions; however, we 
decline to incorporate commenters suggestions in the definition. This 
Final Rule sets Federal minimum standards. State entities may include 
greater detail into their own definitions of ``emergency protective 
action.''
``Financial Exploitation''
    Consistent with definitions in section 102 of the OAA, 42 U.S.C. 
3002(18)(A), and section 2011 of the EJA, 42 U.S.C. 1397j(8), we 
proposed to define ``exploitation'' as the fraudulent or otherwise 
illegal, unauthorized, or improper act or process of a person, 
including a caregiver or fiduciary, that uses the resources of an adult 
for monetary or personal benefit, profit, or gain, or that results in 
depriving an adult of rightful access to, or use of, their benefits, 
resources, belongings, or assets.
    Comment: We received comments suggesting we change the definition 
to ``financial exploitation'' to clarify the definition encompasses 
only exploitation that is financial in nature.
    Response: ``Financial exploitation'' and ``exploitation'' are used 
interchangeably in the OAA. We agree that the addition of ``financial'' 
to the definition increases clarity, we thank commenters for their 
input, and have revised the definition accordingly.
    Comment: We received comments that our proposed definition of 
``exploitation'' be broadened to include other forms of exploitation, 
for example, labor exploitation or the exploitation of a person.
    Response: We appreciate commenters' suggestions and decline to make 
such a revision. ``Exploitation,'' as we have defined it, is financial 
in nature. Financial exploitation is among the most reported forms of 
adult maltreatment and as such we require in this regulation that State 
APS systems intervene. However, consistent with the rule's structure as 
a minimum Federal standard for definitions and practice, nothing in our 
definition of exploitation would limit a State from broadening its own 
to be inclusive of, and more expansive than, ACL's promulgated 
definition. to encompass non-financial exploitation.
    Comment: We received comments seeking clarification for whether 
this definition will also apply outside of a family or caregiver 
relationship.
    Response: Financial exploitation may occur between an adult and a 
fiduciary or caregiver but is not limited to such relationships. For 
example, an internet scammer may be the perpetrator of financial 
exploitation.
    Comment: A commenter suggested we change ``improper'' to 
``unauthorized.''
    Response: We decline the commenter's suggestion and instead retain 
both ``improper'' and ``unauthorized'' to ensure both types of 
financial exploitation are appropriately addressed.
    Comment: ACL received a comment requesting that 
``misrepresentation, coercion, and threat of force'' be included in our 
definition, as well as ``deception.''
    Response: We appreciate these suggestions and reiterate our 
encouragement for States that wish to adopt definitions that go beyond 
the minimum Federal standard in the regulatory definition.
    Comment: A State entity commented that it does not investigate 
scams, frauds, and thefts where an alleged perpetrator has no personal 
relationship with the adult. Rather, these cases are referred to law 
enforcement, and our proposed regulation, absent the presence of a 
trust relationship, would expand the universe of cases that they are 
required to take.
    Response: We appreciate the comment and recognize that our rule

[[Page 39499]]

may, in some cases, increase the types of reports to which a State APS 
system may need to respond. We note that in some circumstances, 
referral to State securities and financial regulators, Federal 
financial and securities enforcement agencies for investigation or 
other entities with investigatory jurisdiction may be appropriate. See 
Sec. Sec.  1324.403(a) and 1324.406(a)(3). This rule requires that APS 
systems have policies and procedures to respond to reports of financial 
exploitation, with ``response'' defined broadly per Sec.  1324.401, and 
a referral to appropriate entities would constitute a ``response'' 
under this definition.
    We believe the benefit of our rule outweighs any burden incurred 
and will support States in their ongoing implementation of the rule. 
Please see our discussion of ``trust relationship.''
``Finding''
    Comment: We received comments requesting we define ``finding'' and, 
relatedly, ``disposition'' and ``determination.'' Commenters also 
requested we use terms consistently.
    Response: ``Finding,'' ``disposition,'' and ``determination'' are 
often used interchangeably, depending on the State. For the purpose of 
this regulation, ``finding'' means the decision made by APS after 
investigation to determine that evidence is or is not sufficient under 
State law that adult maltreatment and/or self-neglect has occurred.
``Inconclusive''
    Comment: A commenter recommended revising the definition of 
``inconclusive'' to align with the definitions of ``substantiated'' and 
``unsubstantiated'' meeting State law or agency policy, while a couple 
of commenters suggested striking this definition entirely because their 
State APS system did not include it. One commenter questioned whether 
``inconclusive'' remains open to acquire additional information, or 
whether this applies to specific situations (i.e., unable to locate).
    Response: In response to commenter feedback and to improve clarity, 
we have updated the definition of ``investigation'' and removed the use 
of ``substantiated,'' ``unsubstantiated,'' and ``inconclusive.''
``Intake or Pre-Screening''
    Comment: We received comment in support of our proposal.
    Response: We thank commenters and are finalizing as proposed.
``Investigation''
    Comment: We received numerous suggestions for modifying our 
proposed definition of ``investigation.'' According to one commenter, 
the proposed definition was too restrictive, as APS should be able to 
perform both investigation and service delivery. One commenter 
indicated State law requires investigators to look beyond the 
allegation to whether there are additional risks to the victim that 
require services. This commenter suggested the definition be changed to 
``gather information about possible maltreatment.''
    One commenter explained that its State uses findings of ``verified, 
some indication, or no indication'' instead of ``substantiated, 
unsubstantiated, or inconclusive.'' Another commenter recommended 
revising the definition to acknowledge that an investigation may be 
more expansive than simply investigation of a single allegation. For 
example, an investigation of one allegation may unearth evidence of 
other maltreatment or self-neglect. A commenter offered, 
``[i]nvestigation means the process by which APS examines and gathers 
information about a report of possible maltreatment to determine if the 
circumstances of the allegation meet the State's standards of evidence 
for a finding of a substantiated, unsubstantiated, or inconclusive 
allegation.''
    Response: We appreciate the comments about our definition. We have 
accepted language proposed by commenters. Our final definition of 
investigation is ``the process by which APS examines and gathers 
information about a possible allegation of adult maltreatment and/or 
self-neglect to determine if the circumstances of the allegation meet 
the State's standards of evidence for a finding.'' We believe these 
revisions adequately address commenters' concerns.
``Mandated Reporter''
    Comment: We received comments in support of our proposal, as well 
as several comments suggesting we offer a list of who should be a 
mandated reporter in each State. These suggestions were often based on 
State law definitions of a mandated reporter.
    We also received comment on Sec.  1324.405(b) that, for the 
purposes of this rule, mandated reporters should be limited to 
professionals who are required to report adult maltreatment to APS. A 
commenter noted that in 16 States all persons are mandated reporters, 
and in one State, no one is a mandated reporter.
    Response: Consistent with changes made to Sec.  1324.405(b), we are 
amending our definition of mandated reporter to clarify that our rule 
applies only to a professional encountering an adult in the course of 
their professional duties who is required by State law to report adult 
maltreatment or self-neglect to APS.
``Neglect''
    We proposed, consistent with the definitions in section 102 of the 
OAA, 42 U.S.C. 3002(38) and section 2011 of the EJA, 42 U.S.C. 
1397j(16), to define ``neglect'' as the failure of a caregiver or 
fiduciary to provide the goods or services that are necessary to 
maintain the health and/or safety of an adult.
    Comment: One commenter suggested our definition may be too narrow, 
and that because health and safety may be jeopardized simultaneously, 
that we instead write ``health and/or safety.''
    Response: We thank commenter for their suggestion and have amended 
our definition accordingly.
    Comment: Some commenters pointed out that our definition does not 
address a caregiver or fiduciary's state of mind, which is a necessary 
element of the definition. It was suggested by one commenter that a 
caregiver not be penalized if they were not aware of the needs of an 
adult or the threat to safety or health.
    Response: We appreciate these comments. As discussed above, the 
definition of ``abuse'' incorporates the intent and mindset of a 
potential perpetrator and appropriately captures cases where a 
caregiver or fiduciary knowingly deprives an adult goods or services 
necessary to maintain health and/or safety. We refer readers to our 
preamble discussion of the definition of ``abuse'' for a more detailed 
explanation of the interaction between cases of ``abuse'' and 
``neglect.''
    Comment: We received comment asking us to define ``fiduciary'' and 
``caregiver.''
    Response: We thank commenters for their request. We decline to 
define the terms ``caregiver'' and ``fiduciary'' and instead leave 
definitions to State discretion. We believe allowing States leeway to 
determine what constitutes a ``caregiver'' or ``fiduciary'' as it 
pertains to this rule provides valuable flexibility to meet State 
needs.
    Comment: A commenter suggested that our proposed definition does 
not align with States' efforts to establish person-directed principles. 
The commenter recommended revising the definition of neglect to clarify 
that caregivers and fiduciaries fulfill an official role and that 
neglect exists only

[[Page 39500]]

within the bounds of this legal relationship by amending the definition 
to read ``the failure of a caregiver or fiduciary to act under their 
legal responsibility[.]''
    Response: We thank commenters for their suggestions; however, we 
believe confining neglect to a legal relationship between a caregiver 
and fiduciary is overly narrow and unnecessarily limiting. Research 
shows that most caregiving in the United States is performed by 
informal caregivers.\30\
---------------------------------------------------------------------------

    \30\ U.S. Dep't of Health & Hum. Servs., Admin. For Cmty. 
Living, 2022 National Strategy to Support Family Caregivers (Sept. 
21, 2022), https://acl.gov/sites/default/files/RAISE_SGRG/NatlStrategyToSupportFamilyCaregivers-2.pdf.
---------------------------------------------------------------------------

    Comment: A few commenters noted there should be reference to actual 
injury or serious harm.
    Response: We thank commenters for their response. We believe 
reports of neglect can and should be responded to before there is 
actual injury or harm. We note that to be eligible for APS services 
under this rule, an adult must already be at risk of serious harm 
occurring imminently.
    Comment: A commenter asked that we include ``abandonment'' in our 
definition.
    Response: We decline to include ``abandonment'' in our definition. 
Our regulatory definition mirrors Federal statute. State entities that 
wish to go above our minimum standard to incorporate abandonment in 
their definition of neglect may do so.
    Comment: ACL received comment suggesting we include a narrow 
definition of ``physical and mental health'' in our definition of 
``neglect.''
    Response: We decline to include ``physical and mental health'' in 
our definition. Our regulatory definition mirrors Federal statute. We 
are available to provide ongoing technical assistance to implement the 
definitions in this rule.
``Perpetrator''
    Comment: We received comment in support of our definitions, as well 
as several comments suggesting we more clearly articulate the 
difference between an ``alleged perpetrator'' and a ``perpetrator.'' 
Another commenter offered that perpetrator tends to suggest criminal 
intent and sparks confusion, and one State entity noted that they do 
not use the term ``perpetrator.''
    Response: We thank commenters for their input and are finalizing 
the definition as proposed. We have taken care throughout the rule to 
precisely denote alleged versus substantiated perpetrator. We intend 
for these definitions to be guides. We will not require States to adopt 
the definitions word for word. Instead, we will evaluate State 
definitions together to assess whether statutory intent is reflected. 
Please see our discussion above for more detail regarding our 
expectations of State APS entities' evaluation of their current 
definitions, and the potential amendment of current definitions and/or 
adoption of new definitions. We will be available to provide technical 
assistance as necessary.
``Post-Investigation Services''
    Comment: A few commenters opposed the inclusion of a definition for 
post-investigation services in the final rule, and a few commenters 
recommended changes or requested clarification about the definition. 
One commenter indicated that their State does not have a definition for 
post-investigation services in statute, so defining the term in their 
State would require legislative action.
    Some commenters indicated that APS services should not be reliant 
upon or limited to a timeframe that is implied by the term ``post.'' A 
few commenters opposed including this definition in the rule because 
the lifespan of an APS case continues beyond the initiation of an 
investigation and may include services that mitigate the risk of future 
adult maltreatment. Another commenter noted that the State handles 
cases from beginning to end, and that adding additional services would 
require more staff.
    One commenter proposed that the definition include the ``principles 
of restorative justice.''
    Response: We thank commenters for their suggestions. Throughout the 
regulation in response to commenter feedback we have emphasized 
holistic APS response and replaced ``investigation'' with ``response'' 
when appropriate. ``Response'' is inclusive of activities and actions 
undertaken as the result of a report received by APS. These activities 
and actions include, but are not limited to, post-investigation 
services. Given the new definition of ``response,'' our proposed 
definition of ``post-investigation services'' is redundant. We have 
amended Sec.  1324.403 to reflect this change.
``Quality Assurance''
    Comment: One commenter reported that their State does not review 
all case closures or ongoing cases, so including a quality assurance 
review process in the APS program would require potentially burdensome 
changes. One commenter suggested the final rule include more 
specificity on quality assurance programs.
    Response: This rule does not require that State entities establish 
quality assurance programs, as most already have such processes. We 
encourage APS systems at Sec.  1324.406(b)(3) to coordinate their 
quality assurance activities. We have finalized this definition as 
proposed.
``Report''
    Comment: We received comment requesting that we add the definition 
of ``report'' as ``a formal account or statement regarding an 
allegation or multiple allegations of adult maltreatment and the 
relevant circumstances surrounding the allegation or allegations.''
    Response: We thank commenters for their suggestion and agree a 
definition of ``report'' will improve regulatory clarity and 
consistency and have accepted this suggested definition. We have also 
added ``self-neglect'' to the definition of ``report'' to reflect our 
revisions to the definition of ``adult maltreatment.''
``Response''
    Based on comments we received and changes we have made to other 
sections of the rule, we are adding a definition for ``response.'' We 
define ``response'' as ``the range of actions and activities undertaken 
as the result of a report received by APS.''
``Screening''
    Comment: One commenter noted that denied referrals are not referred 
for services in their State. The commenter requested clarification on 
whether all calls would have to be referred for services.
    Response: Under Sec. Sec.  1324.402 and Sec.  1324.403, APS State 
entities must develop policies and procedures to receive and respond to 
reports of adult maltreatment and self-neglect, which include a process 
for screening and referring adults for services. Not all cases will 
necessarily be accepted or referred for services. We have finalized 
this definition as proposed.
``Self-Neglect''
    Consistent with the definitions in section 102(48) of the OAA, 42 
U.S.C. 3002(48), and section 2011 of the EJA 42 U.S.C. 1397j(18), we 
proposed to define self-neglect as: ``an adult's inability, due to 
physical or mental impairment or diminished capacity, to perform 
essential self-care tasks including:
    (1) Obtaining essential food, clothing, shelter, and medical care;
    (2) Obtaining goods and services necessary to maintain physical 
health, mental health, or general safety, or;

[[Page 39501]]

    (3) Managing one's own financial affairs.
    Comment: We received a significant number of comments on this 
proposed definition. Specifically, commenters requested that we remove 
``self-neglect'' from the definition of ``adult maltreatment.'' 
Commenters noted that there is no perpetrator in self-neglect and that 
APS programs' responses to cases of self-neglect differ significantly 
from investigation and substantiation in cases of abuse, neglect, 
exploitation, and sexual abuse.
    Response: We thank commenters for this suggestion and agree. We 
have accepted these comments and separately define ``self-neglect'' and 
``adult maltreatment'' in this final rule. Please see our discussion in 
the definition of ``adult maltreatment.''
    Comment: We received comments that our definition of self-neglect 
did not adequately account for personal, informed, and voluntary 
lifestyle choices, such as the decision not to access medical care or 
to live in clean surroundings. Furthermore, commenters pointed out that 
some people with disabilities may not be able to perform self-care 
tasks without assistance from services and supports, but that does not 
mean there is a role for APS in such cases.
    Response: We thank commenters for their input. An adult is presumed 
to have capacity until found to lack capacity by a court of law. 
Provided they are not determined by a court of law to be lacking 
capacity, APS programs should start from the presumption that an adult 
has the capability to choose to live how they desire. Distinctions 
between an adult making a personal, informed, and voluntary choice 
about how they wish to live and the inability to care for oneself are 
critical to a person-directed definition of self-neglect. This 
distinction is also central to supporting the dignity of risk of older 
adults and adults with disabilities to make decisions to support their 
autonomy. As discussed below, the regulatory definition of self-neglect 
is intended to be person-directed, while recognizing that self-neglect 
may at times create a serious risk of imminent harm to oneself or 
others, at which point intervention will likely be warranted. We note 
commenters' concerns and confirm that an adult's status as a person 
with a disability who may require services and supports to perform 
essential self-care tasks is not, in and of itself, a justification for 
APS intervention.
    Comment: We received comment that our definition of self-neglect 
was overly broad and would increase investigations. One commenter noted 
that their State required ``significant risk to health or safety'' as a 
component of self-neglect.
    Response: We thank commenters for their input. We agree that in 
assessing self-neglect it is important to focus on the existence or 
potential for harm to the adult as well as to others, rather than on 
the abilities or decisions of the adult. We have revised the definition 
to clarify that states must, at a minimum, define self-neglect to 
include situations in which there is serious risk of imminent harm to 
oneself or to others. Again, our standards are a minimum floor, and 
States may use a broader definition of self-neglect, expanding the 
types of situations that they investigate. However, in defining self-
neglect, we encourage States to look at the level of risk posed by 
specific situations. Such an approach not only focuses resources on the 
cases with highest need, but it also advances the goal of APS in 
promoting self-determination and person-directedness and supporting 
adults in making their own decisions in line with their values and 
wishes.
    Comment: A few commenters requested we strike ``diminished 
capacity'' from our definition, as it places unnecessary burden on APS 
to make a capacity determination. One commenter suggested we replace 
``diminished capacity'' with ``diminished ability'' to encompass 
physical and mental function. Relatedly, another commenter requested we 
more clearly define and delineate concepts of diminished capacity and 
diminished capability.
    Response: Section 102(48) of the OAA, 42 U.S.C. 3002(48), and 
section 2011 of the EJA 42 U.S.C. 1397j(18) use the language 
``diminished capacity'' in the definition of self-neglect. We note here 
and elsewhere, however, that ``diminished capacity'' is a legal 
determination that APS Programs do not have the authority to make. 
Because courts, not APS programs, make all capacity determinations we 
disagree with commenters that discerning diminished capacity will add 
burden.
    Comment: Several commenters sought guidance surrounding the 
interaction of self-neglect with neglect from a caregiver or fiduciary 
with whom there is a trust relationship.
    Response: We thank commenters for their question. Nothing in this 
regulation prohibits an APS program from substantiating multiple 
findings for multiple allegations in a report. This is common in APS 
practice, and we leave these decisions to the discretion of APS 
programs. Whether responding to an allegation of neglect or self-
neglect, APS provides person-directed, trauma-informed assessment, 
investigation, and service planning, including recommendations or 
referrals to other entities, such as social services programs.
    Comment: ACL received comment suggesting that we explicitly include 
``financial self-neglect'' in our definition.
    Response: We believe the inclusion of ``(3) managing one's own 
financial affairs'' is sufficient to capture ``financial self-
neglect,'' and we decline to include a separate definition of 
``financial self-neglect.''
    Comment: A commenter asked whether ``general safety'' includes 
hoarding, failure to engage in proper home maintenance, or maintaining 
utility services, to ensure the safety and livability of the home.
    Response: We appreciate the commenter's request for greater 
specificity; however, we decline to provide further detail in this 
regulation. APS systems have the discretion to provide this level of 
detail in their definition of self-neglect, and in their policies and 
procedures for responding to reports of self-neglect. We remind States 
that the definition of self-neglect in the final rule sets the minimum 
Federal standard. In this case, APS must at least accept cases based on 
self-neglect where there is a serious risk of imminent harm to oneself 
or others but may choose to adopt a more expansive definition. We will 
provide ongoing technical assistance to State entities and APS programs 
as they implement this rule, including related to the definition of 
self-neglect.
``Sexual Abuse''
    The OAA does not define ``sexual abuse'' but defines ``sexual 
assault'' at section 102(50), 42 U.S.C. 3002(50), to have the meaning 
given in section 2003 of the Omnibus Crime Control and Safe Streets Act 
of 1968, 34 U.S.C. 12291(a)(35).
    Comment: We received several comments suggesting our definition 
explicitly consider a victim's ability or inability to consent to a 
sexual interaction. A commenter suggested ``unwanted'' interaction was 
too subjective to determine and a determination of consent was more 
appropriate. Several other commenters maintained that our definition 
should acknowledge situations involving a power imbalance where a 
victim may be coerced into agreeing to sexual interaction.
    Response: We appreciate commenters' thoughtful suggestions and have 
amended our definition to replace

[[Page 39502]]

``unwanted'' with ``non-consensual.'' This change brings our definition 
into greater conformity with the statutory definition at 34 U.S.C. 
13391.
    We acknowledge the potential difficulty of defining and making 
fact-specific determinations of what constitutes consensual and non-
consensual contact. We defer to the expertise of APS workers as they 
respond to reports of sexual abuse in collaboration with law 
enforcement (when appropriate) and perform person-centered screening, 
intake, triage, investigation, and service planning. We will provide 
ongoing technical assistance to States as they implement this rule.
    Comment: One commenter noted that their State APS system does not 
investigate sexual abuse and instead leaves this matter to law 
enforcement, while only providing services to victims.
    Response: Our rule does not prohibit APS from allowing law 
enforcement to perform investigative functions for cases of alleged 
sexual abuse while APS performs service delivery. As discussed in 
Sec. Sec.  1324.402 and 1324.403 and elsewhere in this rule, the rule 
requires that APS systems have policies and procedures to respond to 
reports of sexual abuse, with ``response'' defined broadly per Sec.  
1324.401 to include referrals to appropriate entities. In cases of 
alleged sexual abuse, the APS response may be to refer the case to a 
more appropriate entity for investigation, and law enforcement can be 
an appropriate entity to investigate such cases.
    Comment: We received comment suggesting our definition include 
``sexual harassment'' ``sexual exploitation,'' ``shaming acts,'' and 
``sex trafficking.''
    Response: We thank commenters for their suggestions, which we 
believe were adequately captured by our proposed definition, which we 
have retained in the final rule. We remind State APS systems that they 
may adopt definitions that go above our minimum Federal standard and 
encourage them to include greater detail in their policies and 
procedures.
    Commenter: A commenter requested we define ``non-touching acts'' 
and ``sexual interaction.''
    Response: We appreciate this comment and defer to State 
interpretation. We will provide ongoing technical assistance to States 
as they develop and implement this rule, including as they develop 
State-specific definitions as desired.
``State Entity''
    Comment: A commenter agrees that there should be APS regulations 
and standardization but does not believe that the requirements of the 
proposed rule should apply to Tribal governments. Another commenter 
reported that its State APS program is bifurcated, so the definition of 
``State entity'' requires clarification.
    Response: Tribal governments do not receive funding through EJA APS 
formula grants (42 U.S.C. 1397m-1), thus this rule does not apply to 
Tribal governments. We discuss this in greater detail in our background 
section on Tribal considerations. We encourage APS collaboration with 
Tribal governments per Sec.  1324.406(a)(2)(iv). As noted in Sec.  
1324.400 and its preamble discussion, however, we have determined that 
the rule applies to bifurcated systems. We are therefore amending the 
definition of ``State entity'' to ``the unit or units of State, 
District of Columbia, or U.S. Territorial government[.]''
``Trust Relationship''
    We proposed that ``trust relationship'' mean ``the rational 
expectation or belief that a relative, friend, caregiver, or other 
person with whom a relationship exists can or should be relied upon to 
protect the interests of an adult (as defined above) and/or provide for 
an adult's care. This expectation is based on either the willful 
assumption of responsibility or expectations of care or protection 
arising from legal or social conventions.''
    Comment: We received a few comments in support of the inclusion of 
a ``trust relationship'' in the definition of adult maltreatment. 
However, a significant majority of commenters, including nearly all 
State APS entities that commented, opposed to the inclusion of ``trust 
relationship'' in the definition of adult maltreatment.
    Some commenters asserted that the definition was confusing and 
contradictory. Many commenters stated that requiring a ``trust 
relationship'' between the adult and the other person may preclude APS 
programs from investigating maltreatment such as online or phone scams 
committed by a stranger. Some commenters asserted that referral to 
other entities for situations of adult maltreatment that fell outside a 
trust relationship may allow adult maltreatment to fall through the 
cracks where referral sources or services are scarce or unavailable.
    A number of commenters noted that the definition of ``trust 
relationship'' is unclear and would be difficult to operationalize. For 
example, ``social convention'' may vary across cultural practices. 
Furthermore, requiring a trust relationship would create an evidentiary 
burden that would be challenging for APS workers to screen for, 
particularly during an initial intake.
    We received comments suggesting that if we retain ``trust 
relationship,'' then we should remove it as a condition of eligibility 
for APS and instead move it to new Sec.  1324.402(b), requiring States 
to investigate cases involving a trust relationship, as well as Sec.  
1324.402(c) clarifying that APS may also investigate cases where there 
is not a trust relationship between alleged perpetrator and alleged 
victim.
    Response: We are removing the requirement of a trust relationship 
from the definition of ``adult maltreatment'' and from the definitions 
section of this rule in response to feedback from commenters.
    In developing our proposal to require APS systems investigate 
allegations of abuse, neglect, sexual abuse, and financial exploitation 
in the context of a trust relationship, we sought to ensure we did not 
inadvertently expand the scope of APS programs' work. Such expansion 
could increase intakes and corresponding caseloads, potentially 
requiring more staffing and funding. We did not intend to limit States' 
investigations only to abuse, neglect, financial exploitation, and 
sexual abuse perpetrated in the context of a trust relationship.
    For example, under our proposal, we would not prohibit States from 
investigating fraud and scams perpetrated by a stranger. Rather, we had 
sought to ensure that at a minimum and as a condition of receiving EJA 
formula grants (42 U.S.C. 1397m-1) under Sec.  1324.400 of our proposed 
rule, all States investigated abuse, neglect, financial exploitation, 
and sexual abuse perpetrated by a person with whom an adult had a trust 
relationship. This is commensurate with CDC recommendations and in 
recognition of the particularly egregious nature of the power and 
control dynamic that exists in cases of abuse, neglect, financial 
exploitation, and sexual abuse committed when a trust relationship 
exists.\31\
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    \31\ U.S. Dep't of Health & Hum. Servs., Ctrs. For Disease 
Control and Prevention, Elder Abuse Surveillance: Uniform 
Definitions and Recommended Core Data Elements, https://www.cdc.gov/violenceprevention/pdf/ea_book_revised_2016.pdf (Feb. 29, 2016).
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    However, we concur with commenters that determining the presence of 
a trust relationship and implementing and operationalizing this

[[Page 39503]]

provision, particularly during initial intake, may be burdensome, and 
its application may result in unintended consequences. We likewise 
recognize APS programs are experts in the types and nature of the adult 
maltreatment occurring in their local communities and have ensured our 
rule allows State systems the flexibility to prioritize and respond to 
cases based on their expertise.
    We continue to stress to State APS systems the importance of 
investigations where the adult is in a relationship of trust with the 
alleged perpetrator, and we encourage States to prioritize APS program 
responses to such reports.
``Unsubstantiated''
    We have updated the definition of ``investigation'' and removed the 
use of ``substantiated,'' ``unsubstantiated,'' and ``inconclusive.''
``Victim''
    Comment: Some commenters opposed using the term ``victim'' and 
recommend the use of the terms ``client'' or ``adult'' in the final APS 
rule. Another commenter suggested the use of ``survivor'' which is more 
strengths-based. One commenter reported that its State program uses the 
terms ``victim'' and ``client'' interchangeably within State statutes, 
but APS programs generally prefer the term ``client.'' Another 
commenter recommended that the definition be changed to ``alleged 
victim'' because most reports to APS programs are not substantiated. A 
commenter stated there would need to be State legislative action to 
include the definition for ``victim'' in their State APS statutes.
    Response: We thank commenters for their suggestions and note that 
``victim'' is a subset of ``client'' where there is a finding of adult 
maltreatment. ``Adults,'' as defined in this rule, become clients when 
they are screened in by APS. If APS makes a finding that an allegation 
of maltreatment has occurred, or is likely to have occurred, as defined 
by State statute, the client is a victim. ``Victim'' is currently the 
terminology used by NAMRS and the majority of APS systems. We are 
finalizing our definition as proposed but have consistently replaced 
``victim'' with ``adult'' or ``client'' where alternate terminology is 
more appropriate.

C. Section 1324.402 Program Administration

    We have revised Sec.  1324.402 to more clearly articulate 
requirements related to incorporation of the regulatory definitions. 
Section Sec.  1324.402(a) requires State entities to establish 
definitions for APS systems that incorporate every defined term and all 
of the elements of the definitions in Sec.  1324.401, which establish a 
minimum standard, as discussed above. State definitions may not narrow 
the scope of adults eligible for APS or services provided. However, 
State entities are not required to uniformly adopt the regulatory 
definitions. Section 1324.402(a)(1)-(4) requires the State entity to 
establish definitions for: the populations eligible for APS; the 
specific elements of adult maltreatment and self-neglect that render an 
adult eligible for APS; the alleged perpetrators who are subject to APS 
investigations in the State; and the settings and locations in which 
adults may experience maltreatment or self-neglect and be eligible for 
APS in the State.
    Section 1324.402(b) requires APS systems to respond to reports of 
adult maltreatment, which include allegations of abuse, neglect, 
financial exploitation, and sexual abuse, as well as reports of self-
neglect, and requires the State entity to create, publish, and 
implement certain policies and procedures for receiving and responding 
to reports of adult maltreatment and self-neglect. Section 
1324.402(b)(1) requires the policies and procedures to be person-
directed and rely on the concept of the least restrictive alternative.
    Under Sec.  1324.402(b)(2), State APS entities must define in their 
policies and procedures processes for receiving, screening, 
prioritizing, and referring cases based on risk and the nature of the 
adult maltreatment and self-neglect in a standardized fashion across 
their State. Per Sec.  1324.402(b)(2)(i), these policies and procedures 
include a tiered, risk-based assessment system, differentiating 
response requirements for cases that represent immediate and non-
immediate risks. Immediate risk is assessed via the likelihood of 
death, irreparable harm, or significant loss of income, assets, or 
resources. Responses must occur no later than 24 hours after receiving 
the report for cases representing an immediate risk and no later than 
seven calendar days for cases of non-immediate risk.
    We have made revisions throughout Sec.  1324.402, and added ``self-
neglect'' throughout to reflect changes to our definition of ``adult 
maltreatment'' in Sec.  1324.401. We retain Sec.  1324.402(b)(2)(i) 
(formerly Sec.  1324.402(a)(4)(i)) as proposed with the clarification 
that our requirements may be met by referral to emergency management 
systems or other entities with the capability of responding within 24 
hours.
    Under Sec.  1324.402(c), State entities must establish policies and 
procedures to inform potential APS clients of their APS-related rights 
under State law at first contact with the potential client. APS 
programs are required to inform potential APS clients of their rights 
in the format and language preferred by the adult, including those with 
limited English proficiency and adults with disabilities. We have 
renumbered Sec.  1324.402(b) as Sec.  1324.42(c), but otherwise are 
finalizing it as proposed.
    We proposed in Sec.  1324.402(d) that State entities create 
policies and procedures for the establishment of minimum staff to 
client ratios for APS systems. In response to comments by APS State 
entities, national associations representing APS systems, and others, 
we are not finalizing proposed Sec.  1324.402(d)(3).
    Our proposal at Sec.  1324.402(e) required that State entities 
establish such other program administration policies and procedures and 
provide other information to APS clients as established by the 
Assistant Secretary for Aging. We have decided not to finalize proposed 
Sec.  1324.402(e).
    We received many comments from interested parties with detailed 
suggestions for improvements to our proposals and many seeking clarity 
on policies contained in our proposed rule. We discuss comments and 
responses below.
    Comment: We received comments from State APS entities, a disability 
stakeholder, and a research group addressing public disclosure of State 
policies and procedures. Most commenters were either neutral or in 
support of leaving disclosure of policies and procedures to State 
discretion. One commenter suggested that States not be required to make 
policies and procedures public, but that they be made available upon 
request. Another commented that it would be helpful in their advocacy 
and investigations if States were required to disclose policies and 
procedures publicly.
    Response: Based upon the comments we received, the final rule 
requires States to publish APS policies and procedures. State entities 
should make their policies and procedures public through publishing 
them online, or via similar publication method.
    Comment: We received general comments in support of our proposal to 
standardize policies and procedures for receiving and responding to 
reports of adult maltreatment and self-neglect.
    Response: We appreciate commenters' support.
    Comment: Many commenters wrote in support of our provision 
requiring APS to respond to adult maltreatment and self-neglect, with a 
few stressing the

[[Page 39504]]

importance of flexibility and State discretion. Many APS systems and 
national stakeholder associations also commented that it is essential 
that our rule does not impede APS systems' ability to divide and share 
investigative responsibilities with law enforcement entities and other 
entities with jurisdiction over investigative functions. One commenter 
noted that APS should not duplicate the work of other entities, and 
other commenters emphasized the importance of referral relationships in 
APS response to abuse, neglect, financial exploitation, sexual abuse, 
and self-neglect.
    Response: We appreciate commenters' responses. The regulation at 
Sec.  1324.408 requires APS entities to provide assurances in their 
State plans that they have developed policies and procedures outlining 
their response to reports of abuse, neglect, financial exploitation, 
sexual abuse, and self-neglect. Our rule permits State systems 
significant latitude in the development and application of these 
policies and procedures, and the regulation does not prohibit referral 
or collaboration to meet the investigatory requirements of Sec.  
1324.402 and Sec.  1324.403. For example, we specifically include law 
enforcement and State licensing and certification bodies as key 
partners in Sec.  1324.406. We acknowledge that, in certain cases, 
particularly in circumstances such as reports of sexual abuse, referral 
and investigation by law enforcement with case planning and service 
delivery by APS is the appropriate response for both the alleged victim 
and the APS program.
    Comment: We received a question as to whether States would be 
permitted to place income restrictions on qualification for APS 
services.
    Response: APS is a social services program serving older adults and 
adults with disabilities who need assistance because of abuse, neglect, 
financial exploitation, sexual abuse (adult maltreatment), and self-
neglect. In all States, APS is charged with receiving and responding to 
reports of adult maltreatment and self-neglect. Adult maltreatment and 
self-neglect affect people of all income levels: accrued wealth is not 
protector against maltreatment nor is it a remedy. It is contrary to 
the intent of the EJA and OAA to impose income restrictions for 
eligibility or receipt of APS services.
    Comment: We received comment in support of our proposal at Sec.  
1324.402(a)(1) (now Sec.  1324.402(b)(1)), with several commenters 
noting that their APS systems already incorporate principles of person-
directedness. Some commenters specifically noted that guardianship 
should be used only as a last resort, and one commenter noted the 
importance of decisional supports for those with diminished capacity. 
Other commenters suggested that sometimes APS programs must seek 
guardianship and that APS must act against the wishes of the adult per 
State law.
    Response: The principles of person-directed services and planning 
and reliance on least restrictive alternatives are foundational to the 
protection of the rights of adults. They are set forth in the OAA,\32\ 
Rehabilitation Act of 1973,\33\ the Americans with Disabilities 
Act,\34\ the EJA,\35\ the Affordable Care Act,\36\ among other laws, as 
well as in the Supreme Court decision in Olmstead v. L.C., 527 U.S. 581 
(1999). These laws establish separate and independent legal obligations 
for covered entities; while this final rule is intended to ensure APS 
policies and practices are consistent with the principles of person-
directedness, self-determination, and integration that are foundational 
to the statutes listed above, the approval of a State APS plan under 
this regulation does not mean that the State or APS is in compliance 
with other statutory obligations, including the obligation to avoid 
discrimination based on disability.
---------------------------------------------------------------------------

    \32\ An objective of the OAA is ``Freedom, independence, and the 
free exercise of individual initiative in planning and managing 
their own lives, full participation in the planning and operation of 
community-based services and programs provided for their benefit, 
and protection against abuse, neglect, and exploitation.'' OAA 
section 101(10), 42 U.S.C. 3001(10).
    \33\ The Rehabilitation Act of 1973, as amended Title VII, 
chapter 1 states the current purpose of the program is to ``promote 
a philosophy of independent living including a philosophy of 
consumer control, peer support, self-help, self-determination, equal 
access, and individual and system advocacy, in order to maximize the 
leadership, empowerment, independence, and productivity of 
individuals with disabilities, and the integration and full 
inclusion of individuals with disabilities into the mainstream of 
American society.'' 29 U.S.C. 796.
    \34\ Congress stated in the ADA's statutory findings that ``the 
Nation's proper goals regarding individuals with disabilities are to 
assure equality of opportunity, full participation, independent 
living, and economic self-sufficiency.'' 42 U.S.C. 12101(a)(7).
    \35\ The EJA defines elder justice to mean ``efforts to [. . .] 
protect elders with diminished capacity while maximizing their 
autonomy, and [. . .] the recognition of an elder's rights[.]'' EJA 
section 2011, 42 U.S.C. 1397(5).
    \36\ Section 2402(a) requires removal of barriers to providing 
home and community-based services through strategies to maximize the 
independence of individuals, including through support and 
coordination for an individual to design an self-directed, 
community-supported life.
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    Under this final rule, therefore, a primary goal of APS in 
responding to reports of adult maltreatment and self-neglect is to 
promote self-determination and person-directedness, and to support 
adults in making their own decisions in line with their values and 
wishes. APS programs should start from the presumption that an adult 
has the capability to make all decisions, where a court has not already 
rendered a legal decision about the adult's decision-making capacity. 
Decisional capability can vary from situation to situation, from day to 
day, and at different times within the same day. Capability to make 
decisions may be affected by economic resources, fear, health status, 
medication, or by maltreatment. Adults with memory loss or intellectual 
and cognitive disabilities may have the capability to make decisions, 
including with the assistance of a trusted supporter. Refusal to accept 
APS services or refusal to participate in an APS investigation, as well 
as insistence upon taking action that APS considers not in the person's 
best interest, is not necessarily (and should not be presumed to be) an 
indication of lack of decisional capability or diminished capacity.
    In promoting decisional capability and least restrictive 
alternatives, APS programs should recommend guardianship, whether they 
themselves are petitioning for guardianship, accepting a court 
appointment to serve as a guardian, or referring to another entity to 
petition for or serve as guardian, only as a last resort if lesser-
restrictive measures have been exhausted or determined not feasible. 
APS programs already work with their clients to provide or connect them 
with the services and supports that enable them to direct their care 
and life choices. Among these are Medicaid home and community-based 
services (HCBS); OAA-funded programs such as congregate and home-
delivered meals, homemaker and chore services, and transportation; and 
the Supplemental Nutrition Assistance Program (SNAP), among others. APS 
programs can assist clients to arrange for less restrictive decisional 
supports, both formal and informal, such as powers of attorney, and 
health care advanced directives. Guardianship is rarely needed where 
services and less restrictive decisional supports are appropriately 
used.
    As we further explain in our discussion of Sec.  1324.404, 
Conflicts of Interest, we have clarified in this final rule that an APS 
program petitioning for or serving as guardian constitutes a dual 
relationship that will only be considered unavoidable if all less 
restrictive alternatives to guardianship have been considered.
    Comment: We received comment on proposed Sec.  1324.402(a)(3) 
requiring State APS entities to define the settings,

[[Page 39505]]

locations, types of maltreatment, and alleged perpetrator(s) that APS 
will investigate. We also received comment suggesting that APS be 
required to investigate maltreatment in long-term care settings. 
Another commenter noted that our proposal may require a change in State 
statute if the rule requires investigation in long-term care settings. 
One commenter asked that we clarify the meaning of ``types of alleged 
perpetrator.'' Another commenter suggested APS often ``splits 
jurisdictions'' with another entity, with relationships memorialized 
both formally and informally.
    Response: We have revised Sec.  1324.402 to incorporate and clarify 
the requirements proposed at Sec.  1324.402(a)(2)-(3). In this final 
rule, Sec.  1324.402(a) requires State entities to establish 
definitions for APS systems that: (1) define the populations eligible 
for APS; (2) define the specific elements of adult maltreatment and 
self-neglect that render an adult eligible for APS; (3) define the 
alleged perpetrators who are subject to APS investigations in the 
State; and (4) define the settings and locations in which adults may 
experience adult maltreatment or self-neglect and be eligible for APS 
in the State. Consistent with our proposal, the final rule does not 
enumerate the types of settings where APS systems must perform 
investigations--whether a congregate care setting, community-based 
setting, or other type of setting. Rather, it requires that States 
establish a definition to standardize the settings the State chooses, 
or is required by State law to, investigate.
    APS entities must also establish definitions to standardize the 
types of relationships they choose or that they are required by State 
law to investigate. ``Type of perpetrator'' as used in proposed Sec.  
1324.402(a)(3) refers to the relationship between the alleged victim 
and perpetrator. For example, a type of perpetrator may be a family 
member, nursing facility staff member, or relative caregiver (paid or 
unpaid). Our rule does not enumerate specific types of alleged 
perpetrators that a State must investigate; it requires that the State 
establish definitions to standardize which types of perpetrators they 
choose to, or are required by State law to, investigate.
    Comment: We received comments on our proposal at Sec.  
1324.402(a)(4)(i) from several State entities noting that they 
currently maintain a tiered risk system (indicating their priority 
response levels) that is three tiers or more. A few commenters sought 
confirmation that these systems would satisfy the requirements of 
proposed Sec.  1324.402(a)(4)(i).
    Response: We recognize there is diversity across State systems' 
priority response levels. A system with three or more tiers is 
compliant with our requirements at Sec.  1324.402(b)(2)(i) (proposed 
Sec.  1324.402(a)(4)(i)) provided it meets, at a minimum, the immediate 
and non-immediate timeliness requirements of Sec.  1324.402(b)(2)(i)(A) 
and (B). State APS entities must develop a process for screening, 
prioritizing, and referring reports based on risk. This system should 
include at least two tiers for initial contact with an alleged victim. 
These tiers are based on assessment of the immediate risk of death, 
irreparable harm, or significant loss of income, assets, or resources. 
However, our regulation is a minimum standard. A State is permitted to 
employ a three-tiered system (or greater) provided cases are screened, 
prioritized, and referred based on immediate and non-immediate risk and 
the initial contact requirements of Sec.  1324.403(b)(2)(i) and (ii) 
are adhered to. We discuss the two-tiered system requirements in 
greater detail below.
    Comment: We received many comments on our proposal at Sec.  
1324.402(a)(4)(i)(A) (now at Sec.  1324.402(b)(2)(i)(A)) opposed to a 
required response time of 24 hours in the case of immediate risk. 
Commenters noted that many State systems do not currently have the 
necessary infrastructure to meet our proposal and that compliance would 
require significantly increased staffing and attendant expense. 
Commenters suggested using law enforcement and emergency response 
systems to satisfy the 24-hour immediate risk response requirement, 
with many suggesting that they already have such collaborative referral 
systems in place. One commenter noted that requiring APS to respond to 
emergency situations may put an APS workers' safety at risk. Others 
suggested we amend our proposal to one business day to better account 
for staffing restrictions. A few commenters sought guidance on how to 
calculate risk and examples of immediate and non-immediate responses.
    Response: We thank commenters for their suggestions and questions. 
First, it is important to distinguish between the requirement to accept 
a report (further discussed under Sec.  1324.405), and the requirement 
to respond within 24 hours in cases of immediate risk. As we discuss in 
further depth below, APS programs must respond within 24 hours of 
retrieving a report from the system that accepts reports 24 hours per 
day, seven days per week (24/7) (for example, retrieving an email from 
a 24/7 inbox), and then screening-in the case.
    To satisfy the ``in-person contact within 24 hours'' requirement 
for immediate risk cases, APS programs may refer adults to emergency 
response systems, law enforcement, or other appropriate community 
resources (e.g., homeless outreach, veteran's affairs, services for 
victims of sexual assault). It is not our expectation that a case or 
service plan will be complete (or necessarily even have begun, 
depending on the situation) within 24 hours. Our requirement is that 
States have policies and procedures to ensure that APS responds within 
24 hours of retrieving and screening-in an immediate risk report. This 
response may be an in-person visit by APS or by APS accompanied by 
another entity. APS may also refer the report to another appropriate 
entity that is able to make an in-person visit within the designated 24 
hours. If a reporter files a report outside business hours, the 24-hour 
time limit for APS response will not begin until APS retrieves the 
report, and the case is screened-in. For immediate risk reports, APS 
programs should establish mechanisms to refer reporters to emergency 
response systems, police, or other 24-hour response resources, 
particularly for reports that come in after business hours. This may be 
accomplished, for example, through an away message on a hotline or 
email. We discuss expectations around 24/7 methods of accepting reports 
in Sec.  1324.405.
    We defer to States in determining what meets the threshold of 
immediate need or ``risk of death, irreparable harm, or significant 
loss of income, assets, or resources.'' We will provide technical 
assistance to States as they draft or amend their policies and 
procedures to implement this final rule. We have renumbered Sec.  
1324.402(a)(4)(i)(A) as Sec.  1324.402(b)(2)(i)(A) and are otherwise 
finalizing it as proposed.
    Comment: A few commenters suggested we remove ``significant loss of 
income, assets, or resources'' from our proposal at Sec.  
1324.402(a)(4)(i), noting that a response to financial exploitation 
cases is often not an immediate need, and another commenter noted that 
financial exploitation cases may require a nuanced approach with 
advance research.
    Response: The financial exploitation of an adult can progress 
swiftly in scope and scale, and while a nuanced approach may be 
necessary, we likewise believe an expeditious response is critical in 
some cases of financial exploitation. For example, financial

[[Page 39506]]

exploitation may rob victims of a significant portion of their 
retirement savings, endangering their current and future financial 
security.\37\ Furthermore, restitution from such crimes may be 
difficult or impossible.\38\ Financial exploitation also adversely 
impacts its victims' mental health, their sense of security, and their 
dignity. We have renumbered this section as Sec.  1324.402(b)(2)(i), 
but otherwise finalize this provision as proposed.
---------------------------------------------------------------------------

    \37\ Financial Crimes Enforcement Network (FinCEN), Advisory on 
Elder Financial Exploitation, June 15, 2022, https://www.fincen.gov/sites/default/files/advisory/2022-06-15/FinCEN%20Advisory%20Elder%20Financial%20Exploitation%20FINAL%20508.pdf. 3 Stanford Center on Longevity and Finra Investor Education 
Foundation, The State of Financial Fraud in America: Post Conference 
Report, 2016, https://longevity.stanford.edu/financial-fraud-research-center/wp-content/uploads/2017/02/Fraud-Post-ConfereceReport-2-15-17-2.pdf.
    \38\ Consumer Financial Protection Bureau, Recovering from Elder 
Financial Exploitation: A framework for policy and research, (Office 
for Older Americans, 2022), https://files.consumerfinance.gov/f/documents/cfpb_recovering-from-elder-financial-exploitation_report_09-2022.pdf.
---------------------------------------------------------------------------

    We underscore the importance of referral relationships and 
collaborative partnerships in responding to reports of potential 
financial exploitation. Accordingly, we have added ``State securities 
and financial regulators, Federal financial and securities enforcement 
agencies'' to Sec.  1324.406(a)(3) in response to commenter feedback.
    Comment: While some commenters supported proposed Sec.  
1324.402(a)(4)(i)(B) requiring APS response to non-immediate risk 
reports within no more than seven calendar days, others suggested that 
a seven calendar-day timeframe was too lenient and gave examples of 
their State systems. One commenter noted that seven days permitted 
adequate preparation, planning, and case assignment. Other commenters 
suggested a shorter timeframe, for example, 72 hours. Still other 
commenters suggested that seven calendar days was too restrictive and 
requested a longer timeframe, such as ten calendar days or seven 
business days. One commenter noted that ACL did not provide adequate 
justification for a seven-day timeframe.
    Response: Based on commenter feedback, we are finalizing Sec.  
1324.402(a)(4)(i)(B) (renumbered as Sec.  1324.402(b)(2)(i)(B)) as 
proposed. We chose a seven-day timeframe because most State APS systems 
respond to reports within seven calendar days, and we believe this 
timeframe will ensure timely response to reports while minimizing 
burden for APS systems.\39\ We remind State entities that they are 
permitted to set shorter timeframes for response (e.g., 72 hours), but 
not longer timeframes (e.g., more than seven calendar days).
---------------------------------------------------------------------------

    \39\ Supra note 4. For non-immediate response, there are ten 
programs that have a ten day, there are 2 that have a 14 day, there 
is one that has a 20 day. The rest are 7 days or sooner.
---------------------------------------------------------------------------

    As discussed earlier, it is not our expectation that investigations 
or case plans will be complete (or potentially even started) within 
seven calendar days, although data indicates three quarters of States 
currently perform case-initiation within seven calendar days.\40\ 
Rather, APS must provide some response to a non-immediate risk report 
of maltreatment within seven calendar days. We define response broadly 
in Sec.  1324.401 to include referral and other collaborative 
interventions. This policy aligns with standards set out in our 
Consensus Guidelines which suggest 24-hour response for immediate-risk 
cases and five business day response for non-immediate risk cases. 
State entities will have 4 years to come into full compliance with 
these provisions, and we will offer the option of a corrective action 
plan for States that require more than 4 years to come into compliance 
with this provision.
---------------------------------------------------------------------------

    \40\ Id.
---------------------------------------------------------------------------

    Comment: We received a comment suggesting that we revise proposed 
Sec.  1324.402(a)(5) to read ``define investigation and post-
determination (or disposition) procedures.''
    Response: We thank the commenter for their suggestion. We have 
removed proposed Sec.  1324.405(a)(5) consistent with our revisions to 
Sec.  1324.403.
    Comment: We received comments in support of our proposal to inform 
adults of their rights at first contact, as well as comments expressing 
concern. Some commenters requested clarity or made suggestions for 
improvement, including what is meant by ``first contact'' and whether 
they would be required to give adults pamphlets or brochures. 
Commenters also requested guidance on how to address situations where 
adults lack the ability to consent to APS services. Commenters 
suggested that adults should be informed of their rights in an 
accessible manner, noting the importance of communication preferences 
and accessibility needs.
    Many commenters wrote in opposition to informing an adult of their 
rights at first contact, as this may set an adversarial tone. 
Commenters noted it was important to build trust and rapport early in a 
relationship with a potential client. One commenter offered that 
proposed Sec.  1324.402(b) (renumbered as Sec.  1324.402(c) in the 
final rule) be edited to read ``inform clients of their rights at first 
contact to the extent possible.''
    Several commenters were opposed to giving adults pamphlets or 
brochures with information on their rights, out of the concern that 
this could prove a safety risk if a perpetrator were to find the 
information and retaliate or coach a victim. Several commenters 
requested information and examples of person-directed, culturally 
competent, accessible methods for informing adults of their rights, as 
well as best practices.
    Response: We thank commenters for their comments and suggestions. 
For the purposes of our rule, ``first contact'' is the first touch 
point with the potential client, whether that be by telephone or in-
person. This is sometimes, but not always, the initial intake. We note 
that nothing in our rule requires APS programs to leave brochures or to 
inform potential clients of their rights as the very first words of an 
interaction. Informing a potential client of their rights can be woven 
into an APS worker's first meeting or discussion with a potential 
client in whatever manner the APS worker deems most appropriate to the 
situation to build trust and rapport. APS programs must inform 
potential clients of their APS-related rights under State law. Under 
the regulation, APS workers are required to provide information about 
the rights to confidentiality of personal information, to refuse to 
speak to APS, and to refuse APS, to the extent such rights exist under 
State law.
    We will be providing ongoing technical assistance to implement this 
final rule, including best practices for informing potential clients 
(including those with disabilities and impaired decisional capability) 
of their rights.
    Comment: We received a few comments from APS State entities on 
proposed Sec.  1324.402(b)(2) (renumbered as Sec.  1324.402(c)(2) in 
the final rule) noting that informing adults of their rights may 
disincentivize them from talking to APS and may prevent a case from 
being opened when there is maltreatment or self-neglect present. For 
example, commenters offered that in cases of self-harm, an adult should 
not be informed of their rights and that this could be dangerous if 
they are dissuaded from speaking to APS and accepting services. One APS 
program opined that if an adult did not want APS services, they should 
appeal a finding after the fact.
    Response: We thank commenters for their responses. As we said 
regarding comments about self-determination,

[[Page 39507]]

adults must be presumed to have decisional capability. Most State laws 
establish the right to refuse services, to decline participation in an 
investigation, and to make decisions which others may disagree with 
about their lives. We decline to include in the regulations 
prescriptive descriptions of what would constitute an extreme 
circumstance warranting non-consensual intervention. In supporting the 
dignity of risk of older adults and adults with disabilities to make 
decisions to support their autonomy, APS programs should balance the 
risk with ensuring the person's health and welfare. Such circumstances 
are fact-specific and are best assessed carefully by individual 
programs. We encourage State entities to include in their policies and 
procedures and in their State plan standards for such intervention, 
taking into consideration the requirements of person-directed and least 
restrictive services. We note, however, that a policy of providing an 
adult with appeal rights after providing non-consensual services, as 
suggested by one commenter, does not meet the standard of least 
restrictive intervention. For example, an adult who loses their living 
arrangement because they were removed from their home without consent 
cannot be made whole through an appeals process.
    We will provide technical assistance as requested regarding 
approaches to inform potential clients of their rights.
    Comment: We received a comment on proposed Sec.  1324.402(b)(3) 
(renumbered as Sec.  1324.402(c)(3) in the final rule) that in one 
State, a potential APS client does not have the right to decline 
services.
    Response: Our proposal requires that potential clients must be 
informed of their APS-related rights under State law. Such rights may 
include the right to decline to participate in an investigation, to 
decline services, and/or to refuse entry to their home. Thus, if State 
law does not offer a potential client the right to decline services, 
APS must still inform the client of any rights they do have under State 
law. Furthermore, APS programs are required to abide by all other 
provisions in this rule, including those related to person-directed 
case planning and services.
    Comment: Commenters fully supported proposed Sec.  1324.402(c) 
(renumbered as Sec.  1324.402(d) in the final rule), which requires 
that information be provided in a format and language understandable by 
the adult, and in alternative formats as needed.
    Response: We thank commenters for their support and are finalizing 
as proposed.
    Comment: We received broad support for our proposals at Sec.  
1324.402(d)(1) (renumbered as Sec.  1324.402(e)(1) in the final rule) 
for APS training, with several APS entities indicating that they 
already provide training on core competencies. Some commenters 
suggested that trainings may be burdensome, particularly with reference 
to training on our regulations. A few commenters suggested disability-
specific education.
    Response: We thank commenters for their input and are finalizing as 
proposed. We will provide ongoing technical assistance and training 
resources through our technical assistance resource center.
    Comment: We received overwhelming opposition to our proposal at 
Sec.  1324.402(d)(3) for State entities to establish staff-to-client 
ratios. Commenters believed it would be extremely difficult to develop 
ratios due to a lack of research and evidence in the area. Many 
commenters likewise stated that too many variables are beyond their 
control when determining appropriate ratios, including the complexity 
of cases, State appropriations for APS staffing, staff attrition and 
turnover, difference in geography (rural versus urban areas), 
regulatory changes, and other variables. A commenter noted that tying 
ratios to current staffing levels may perpetuate understaffing. Many 
commenters responded to our request for information with support for 
workload studies.
    Response: We thank commenters for their thoughtful input. In 
response to these comments, we have decided not to finalize proposed 
Sec.  1324.402(d)(3). We encourage States to conduct ongoing workload 
studies and will provide ongoing technical assistance as they conduct 
them.
    Comment: We received comment that proposed Sec.  1324.402(e), which 
requires the State entity to establish other program administration 
policies and procedures and provide other information to APS clients as 
established by the Assistant Secretary for Aging, is overly vague and 
injects undesirable uncertainty.
    Response: We thank commenters for their input. We have decided not 
to finalize this provision.

D. Section 1324.403 APS Response

    Section 1324.403 requires the State entity to adopt standardized 
and systematic policies and procedures for essential APS functions 
throughout the lifecycle of a case. The purpose of an APS response, 
including through investigation and service planning, is to collect 
information about the allegations of adult maltreatment or self-
neglect; determine if the alleged victim is eligible for APS services; 
assess the immediate risk of the situation; and refer to, arrange for, 
and/or provide services to stabilize the situation. APS identifies the 
service needs of the client and develops a plan, including 
recommendations or referrals to other entities, such as social services 
programs. Service planning and referral often occurs concurrently to 
investigation as well as post-investigation in many, but not all, 
systems.
    Section 1324.403 sets forth requirements for the development of 
standardized policies and procedures governing APS response. Initiation 
of an investigation encompasses screening and triaging reports and 
decision-making processes for determining immediate safety and risk 
factors affecting the adult. The investigation includes the collection 
of relevant information and evidence. Policies and procedures must also 
detail methods to make findings on allegations and record case 
findings, including consultation with outside experts when appropriate. 
Professional fields for such experts include medicine, social work, law 
enforcement, legal services, behavioral health, finance/accounting, and 
long-term care. We likewise require the APS worker to provide referrals 
to other agencies and programs, as appropriate under State law, such as 
referrals to AAAs, State Medicaid programs, or Centers for Independent 
Living for services. For example, the APS program may make a referral 
to the State Medicaid agency for HCBS to mitigate harm and assist the 
victim in recovery from the abuse. During a response, APS may, in 
limited and warranted circumstances, take emergency protective action, 
which we define in Sec.  1324.401. Such action should be person-
directed and taken as a last resort after exploring all other viable 
options, and prioritize community integration, autonomy, and individual 
choice.
    Many APS clients require services, which APS provides or arranges 
for through a variety of mechanisms and funding sources. APS staff may 
provide services directly (e.g., assistance with housing relocation), 
pay third parties for services (e.g., pay for medications or utility 
bills), or make referrals to community-based services (e.g., home-
delivered meals). The rule offers a framework for the provision of 
services that promotes the dignity and autonomy of the client, 
leverages community resources, and aims to prevent future adult 
maltreatment and/or self-neglect.

[[Page 39508]]

    We received comment on our proposals from an array of different 
commenters, including State APS entities, national associations, 
researchers, APS programs, AAAs, and others. We received many comments 
critiquing our proposal for inaccurately characterizing APS 
investigation and service delivery as running separate from and 
consecutive to each other and for over-emphasizing the role of APS 
investigatory functions. We have revised the section's title and 
proposed Sec.  1324.403(e) in response to feedback and offer 
clarification on individual subsections. We have likewise removed Sec.  
1324.403(e)(3) in response to comments stating that it was beyond APS 
authority to hold perpetrators accountable. We have removed proposed 
Sec.  1324.403(e)(6) and proposed Sec.  1324.403(f)(3)(iii); we agree 
with commenters that it would be extremely challenging for APS to 
monitor a client and measure efficacy and outcomes and believe that the 
performance data collection required by Sec.  1324.407 and NAMRS is a 
less burdensome way to monitor and evaluate efficacy and outcomes and 
achieve the goals of these proposed provisions. In response to comment, 
we struck ``or decision'' from proposed Sec.  1324.403(f)(3)(v) as 
duplicative. Below is a summary of and response to the public comments 
we received regarding this section.
    Comment: We received comment from State APS entities, national 
associations, researchers, APS programs, and others stating that 
proposed Sec.  1324.403 ``Investigation and Post-Investigation 
Services'' focused too heavily on APS's investigatory function and 
underrepresented the critical role of service planning and delivery in 
person-directed APS practice. Commenters also suggested changes 
throughout proposed Sec.  1324.403 to definitively establish service 
delivery and investigation as concurrent responsibilities of APS 
systems.
    Response: We thank commenters for their suggestions and feedback 
and have revised the title of Sec.  1324.403 from ``Investigation and 
Post-Investigation Services'' to ``APS Response.'' We have defined 
``response'' in Sec.  1324.401 as ``the range of actions and activities 
undertaken as the result of a report received by APS.'' We likewise 
have amended Sec.  1324.403(e) from ``[p]rovision of APS post-
investigation services [. . .]'' to ``[p]rovision of and/or referral to 
services [. . .]''
    Comment: We received comment that proposed Sec.  1324.403 was 
confusing and that proposed Sec. Sec.  1324.403(a) and 1324.403(b) 
would be more appropriately included in Sec.  1324.405, which addresses 
accepting reports.
    Response: Sections 1324.402(a) and 1324.402(b) detail different 
aspects of APS program administration than Sec.  1324.403 does. Section 
1324.402 sets overarching principles for administering the APS program 
at all phases of the response. Likewise, Sec.  1324.405 addresses the 
process by which the APS program accepts reports. Section 1324.403, on 
the other hand, addresses the process for responding to reports. We 
believe that the significance of response procedures warrants a 
separate section of the regulation and decline to combine the 
referenced regulatory sections.
    Comment: One commenter requested that we clarify the term 
``screening'' and whether ``screened-out'' cases must comply with the 
regulation.
    Response: Section 1324.403(a) requires ``[s]creening, triaging, and 
decision-making criteria or protocols to review and assign adult 
maltreatment and self-neglect reports[.]'' Screened-in reports are 
those that meet the threshold criteria for APS involvement as defined 
by State statute, regulation, or policy. Screened-out reports are those 
that do not meet the threshold criteria for APS involvement as defined 
by State statute, regulation, or policy.
    Comment: One commenter recommends that ACL add measures to protect 
the safety and confidentiality of reporter identity and institution 
affiliation to ensure safety for all involved.
    Response: We thank the commenter for the suggestion. APS systems 
must comply with State privacy and confidentiality laws. We do not 
believe we need to include additional privacy and confidentiality 
standards in this section, but we reiterate that this final rule 
establishes minimum standards, and States have the discretion to 
establish stricter privacy and confidentiality standards for reporters 
if they choose to do so.
    Comment: A commenter suggested that collection of relevant 
information under proposed Sec.  1324.403(c) may not always be directed 
by the person and, in this case, we should clarify that in cases where 
a client does not direct evidence collection, APS should act in a 
client's best interests.
    Response: Our final rule at Sec.  1324.403(c)(4) and Sec.  
1324.402(b)(1) states that APS should incorporate principles of person-
directedness when responding to reports, including during the 
collection of evidence. We discuss person-directedness in more detail 
in the discussion of Sec.  1324.402(b)(1).
    Comment: A few commenters agreed with our inclusion of proposed 
Sec.  1324.403(c)(2) and stressed the importance of APS workers' 
safety. Two commenters pointed out the role of law enforcement when 
responding to APS reports in ensuring client and worker safety.
    Response: We thank commenters for their support and likewise agree 
law enforcement is a critical APS partner, as discussed in Sec.  
1324.406.
    Comment: We received one comment from a State APS entity in strong 
support of our proposals at Sec.  1324.403(c)(3)-(6). The State entity 
noted that it was already in compliance with these principles and 
believes they are a national best practice.
    Response: We thank the commenter for their support.
    Comment: We received comments on proposed Sec.  1324.403(c)(4) 
requesting that we define trauma-informed and give specific examples of 
person-directedness. Specifically, we received comments requesting we 
give examples of how to triage cases in a trauma-informed way.
    Response: We thank commenters for their suggestions and questions. 
As discussed earlier, trauma-informed approaches to adult maltreatment 
and self-neglect recognize the impact of trauma and incorporate that 
knowledge into service delivery and provider practices.\41\ Trauma-
informed intake, triaging, investigation, and service delivery identify 
how traumatic events and circumstances may affect an adult's immediate 
and ongoing physical and emotional safety and wellbeing. APS workers 
trained in trauma-informed practices can identify trauma responses in 
potential and current clients and adjust their practice approach as 
informed by the individual client's experience to ensure adults are not 
re-traumatized and feel safe and empowered.
---------------------------------------------------------------------------

    \41\ Center for Health Care Strategies, The Trauma Informed Care 
Resource Center, https://www.traumainformedcare.chcs.org/about-the-trauma-informed-care-implementation-resource-center/ (last visited 
Feb. 5, 2024).
---------------------------------------------------------------------------

    Person-directedness, like trauma informed approaches, centers the 
experiences, values, and preferences of the adult.\42\ Person-directed 
approaches involve the adult in all aspects of intake, investigation, 
service planning and

[[Page 39509]]

delivery, to the greatest extent possible. A person-directed APS 
response respects the adult's right to self-determination. The adult 
takes an active role and determines the goals. Examples of person-
directed strategies include empowering and assisting the adult to 
identify and access the desired interventions and services, and 
emphasizing to the adult that they have a voice--this is their case.
---------------------------------------------------------------------------

    \42\ Kumar R, Chattu VK. What is in the name? Understanding 
terminologies of patient-centered, person-centered, and patient-
directed care, J Family Med Prim Care. 2018 May-Jun;7(3):487-488 
https://www.cms.gov/priorities/innovation/key-concepts/person-centered-care; The Admin. For Comm. Living, Person-centered 
Planning, https://acl.gov/programs/consumer-control/person-centered-planning (last visited Feb. 5, 2024).
---------------------------------------------------------------------------

    We will provide ongoing technical assistance to State APS systems 
as they implement the rule. Technical assistance may be provided in 
webinars, conference sessions, tip sheets, practice guides, and 
customized presentations or consultations with State APS systems. 
Topics may include addressing general concepts and may delve into how 
these concepts are applied to specific components of APS practice, and 
how best practices are being advanced by APS professionals. We are 
finalizing Sec.  1324.403(c)(4) as proposed and will include more 
examples and best-practices of trauma-informed and person-directed 
services, as defined above, in technical assistance.
    Comment: We received comment on proposed Sec.  1324.403(c)(5) 
requesting that we clarify expected minimum frequency and type of 
contact with a client.
    Response: We leave specifics related to frequency and type of 
contact to the discretion of the APS State entity to incorporate into 
their policies and procedures. This rule only requires that the State 
entity have consistent evidence and information collection practices to 
inform findings on allegations and service planning that maximize 
engagement with the APS client.
    Comment: We received comments on proposed Sec.  1324.403(d) 
suggesting we require consultation with organizations and providers 
that have an ongoing relationship with a client. Another commenter 
suggested consultation with animal service organizations as a part of 
multidisciplinary teams.
    Response: Commensurate with our requirements at Sec.  1324.406, 
State APS entities should develop policies and procedures that include 
consultation and collaboration with a variety of experts. We note our 
list of community partners is not exhaustive and States may choose to 
add additional entities. We decline to specify organizations for 
consultation in Sec.  1324.403(d)(1) and are finalizing the section as 
proposed.
    Comment: We received comment on 1324.403(c)(6) requesting that 
``emergency protective action'' be revised for consistency with our 
definition at Sec.  1324.401. We also received comment that APS often 
does not have control over State law governing law enforcement 
involvement and policies related to emergency protective action. 
Another commenter noted that our proposal sets a higher standard than 
the law in their State and may hinder cases where guardianship is 
sought due to a client's lack of capacity and decision-making ability. 
Finally, a few commenters sought clarity on types of emergency 
protective actions that are appropriate, and one commenter noted that 
its APS system did not accept out-of-home placements.
    Response: We thank commenters for their suggestions and have 
amended proposed Sec.  1324.403(c)(6) for clarity and to conform with 
our revised definition at Sec.  1324.401. Specifically, we have amended 
Sec.  1324.403(c)(6) to permit the emergency use of APS funds to buy 
goods and services. We have created a new Sec.  1324.403(c)(7) to 
permit APS to seek emergency protective action only as appropriate and 
necessary as a measure of last resort to protect the life and safety of 
the client from harm from others or self-harm.
    We believe that the emergency use of APS funds to buy goods and 
services should not be subject to the stricter standards for seeking 
emergency protective actions. We apply the stricter standards for 
seeking emergency protective actions in keeping with our focus on 
person-directed services and least restrictive alternatives. As stated 
previously, we require that APS State entities develop policies and 
procedures that define and limit the use of emergency protective 
action, including guardianship and conservatorship, as a last resort 
after all other alternatives have been exhausted. This practice is 
supported by research and literature on APS practice.\43\ We will 
provide ongoing technical assistance and guidance to States about the 
implementation of emergency protective action and best practices to 
promote autonomy and incorporate person-directedness.
---------------------------------------------------------------------------

    \43\ Supra at 12; Most APS programs routinely encourage 
alternatives to guardianship. More programs (50) provide substitute 
decision-making (in which someone assumes responsibility to make 
decisions for a person who has been deemed unable to make his or her 
own financial or health care decisions) than supported decision 
making (a process of supporting and accommodating an adult with a 
disability to enable the adult to make life decisions without 
impeding the self-determination of the adult) (37 programs). More 
programs (49) indicated they encourage power of attorney than 
advanced directives (36 programs).
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    Comment: We received comment on proposed Sec.  1324.403(e) 
suggesting we strike ``post-investigation services'' and replace 
``during the course of'' to read, ``services during the course of and 
post investigation [. . .]'' to more accurately and clearly represent 
person-directed APS service provision during the course of an 
investigation, as opposed to only once an investigation has closed.
    Response: We appreciate these suggestions. Based on various 
comments on this proposed section, we have revised proposed Sec.  
1324.403(e) to read ``[p]rovision of and/or referral to services, as 
appropriate.'' We believe this change is responsive to commenter 
feedback on proposed Sec.  1324.403(e) and Sec.  1324.403 more broadly 
and aligns with the retitling of Sec.  1324.403 to ``APS Response.''
    Comment: We received many comments, including from APS State 
entities, on our proposal at Sec.  1324.403(e)(3) requiring APS systems 
hold perpetrators accountable. A number of commenters noted that law 
enforcement and the legal system, not APS, are tasked with holding 
perpetrators accountable. A commenter noted that APS instead provides 
protective services to a victim to enhance safety and in accordance 
with their wishes and informed choice. According to comment, it is 
outside APS programs' jurisdiction to ``stop abusive behavior'' and 
sometimes impossible to accomplish if a victim chooses to remain with 
their abuser. One commenter suggested amending proposed Sec.  
1324.403(e)(3) to read: ``Refer perpetrator to the appropriate law 
enforcement entity or entities to address accountability for the adult 
maltreatment.'' Another commenter suggested replacing ``abusive'' with 
``maltreatment'' to better reflect our definitions in Sec.  1324.401.
    Response: We appreciate and agree with these comments. We have 
decided not to finalize Sec.  1324.403(e)(3) in response to feedback.
    Comment: We received comment in support of our proposal at Sec.  
1324.403(e)(4) noting that clients should be at the center of all 
service planning and other efforts. Another commenter suggested that 
consultation with clients is not always possible, and that we should 
amend our proposal to reflect this.
    Response: We appreciate commenters' responses. APS should make 
every attempt to involve a client in service planning and referrals 
throughout the lifecycle of the case. We believe this is adequately 
accounted for in Sec. Sec.  1324.403(c)(4) and (5), Sec. Sec.  
1324.403(e)(1) and (2) and in Sec.  1324.402(b)(1).
    Comment: We received comments from State APS entities and other 
interested parties suggesting that our

[[Page 39510]]

proposal at Sec.  1324.403(e)(6) may be difficult to implement and is 
administratively burdensome and cost prohibitive. Commenters noted that 
they do not follow cases after closure and sought clarity around 
expectations for what constitutes monitoring and impact. A commenter 
suggested that there are ways to monitor effectiveness of APS services 
(such as tracking recidivism or reoccurrence) that are less burdensome.
    Response: We have reassessed our proposal in light of commenters' 
feedback and suggestions, and we are not finalizing proposed Sec.  
1324.403(e)(6). We believe data on service effectiveness and client 
outcomes can be measured through existing NAMRS data collection and 
through the program performance data to be reported under Sec.  
1324.407.
    Comment: We received one comment on proposed Sec.  1323.403(f)(1) 
from a State APS entity stating that it did not have established 
timeframes for ongoing review of cases and that proposed Sec.  
1324.403(f)(1) would be burdensome. Conversely, we received comments in 
support of creating timeframes for review.
    Response: Ongoing review of open cases ensures that APS addresses 
adult maltreatment and self-neglect in a timely manner and that cases 
do not languish, potentially allowing for preventable adult 
maltreatment or self-neglect. We are not mandating exact timeframes for 
case review, only that a State APS system have policies and procedures 
in place to provide for such review. We are finalizing this provision 
as proposed.
    Comment: A commenter suggested that our proposed Sec.  
1324.403(f)(2) be removed because our proposal at Sec.  1324.403(e)(4) 
to create service plans accounted for this and the provision was thus 
duplicative. Another State offered that each case was unique, and there 
should be no timeframe set. A commenter offered that timeframes should 
not be hard and fast, and that extensions were necessary, especially 
for cases such as financial exploitation. One commenter suggested 
including an exceptions and ongoing review process.
    Response: We are amending our proposal at Sec.  1324.403(f)(2) to 
read ``[e]stablish a reasonable length of time by which investigations 
should be completed and findings be made[. . .]'' [emphasis added]. We 
note that this rule does not set a specific timeframe for investigation 
completion. Rather, we require State entities to set such quantifiable 
and reasonable timeframes in policies and procedures, understanding 
that what is reasonable for one case type may be different from 
another.
    Comment: We received comments in support of our proposal at Sec.  
1324.403(f)(3)(iii) requiring State entities to establish policies and 
procedures to measure the outcome and efficacy of interventions and 
services. However, we received many comments suggesting that impact and 
outcomes are difficult to measure. Some stated that our proposal was 
vague and would be challenging to operationalize, with commenters 
suggesting it was unclear how to measure outcomes and efficacy after 
case closure. One commenter argued that the Federal Government needed 
to set national outcome standards for practice and intervention. 
Another suggested we amend Sec.  1324.403(f)(3)(ii) to read 
``[a]ssessment of the outcome and perceived success of intervention and 
services.''
    Response: We agree with commenters and are declining to finalize 
Sec.  1324.403(f)(3)(iii). Similar to our proposal at Sec.  
1324.403(e)(6), we believe outcomes and efficacy of interventions and 
services can be measured by performance data submitted under Sec.  
1324.407 and existing NAMRS data collection, alleviating any potential 
additional burden on APS systems.
    Comment: We received comments suggesting we strike ``or decision'' 
in proposed Sec.  1324.403(f)(3)(v), as it could allow for recording 
whether the case was closed but not necessarily the reason behind the 
closure. We also received comments questioning whether our rule 
requires case closure information to be transmitted to the client. One 
commenter advocated that case closure transmittal to the client be 
optional and not mandatory, and one commenter suggested that it was not 
person-centered to transmit self-neglect decisions to a client.
    Response: We have renumbered Sec. Sec.  1324.403(f)(3)(v) to 
1324.403(f)(3)(iv) to reflect other changes in this subsection. We are 
removing ``or decision'' per commenter feedback. We also clarify that 
Sec.  1324.403(f) only requires documentation of the information and 
not transmission of the information to the client. We leave to State 
discretion whether to transmit the reason for case closure to the 
client.

E. Section 1324.404 Conflict of Interest

    Section 1324.404 requires the State entity to establish policies 
and procedures to prevent, recognize, and promptly address both actual 
and perceived conflicts of interest at the organizational and 
individual level. As discussed in the preamble to the rule, trust in 
APS by clients receiving services and the broader community is 
essential to the ability of APS programs to perform their functions 
effectively and appropriately. APS programs form partnerships and 
referral relationships with allied organizations and professionals to 
provide necessary services and supports to adults before, during, and 
after intake and investigation. Conflicts of interest may arise when a 
State employee, APS worker, or APS system's financial or personal 
interests influence or are at odds with the interests of a client or 
cohort of clients. Many APS programs that provide services for victims 
of adult maltreatment and adults experiencing self-neglect have close 
relationships and shared locations and data systems with AAAs, State 
Units on Aging, and other health and human services agencies.
    Additionally, individual APS workers may face conflicts of interest 
if they are in a ``dual relationship'' serving multiple roles for a 
single client. We proposed dual relationships be permitted only when 
unavoidable and conflicts of interest should be appropriately mitigated 
and concluded as soon as feasible. Further, our proposed rule required 
that APS programs have policies and procedures that ensure conflicts of 
interests are avoided and, if found, remedied. We proposed that APS 
have policies and procedures to identify both organizational and 
individual conflicts of interest. Policies must establish actions and 
procedures that APS will require employees, contractors, grantees, 
volunteers, and others in a position of trust or authority to take to 
remedy or remove such conflicts. Over time, APS has expanded its 
working relationships, thus necessitating additional guidance on 
preventing and mitigating conflicts of interest.
    Commenters were generally supportive of our proposals, with 
significant feedback offered on proposed Sec.  1324.404(a) regarding 
APS serving as direct service providers and Sec.  1324.404(d) regarding 
dual relationships. We also received a few clarifying comments.
    We proposed in Sec.  1324.404(a) to prohibit employees and agents 
of APS from simultaneously serving as direct service providers, such as 
case managers, to clients. We received several comments opposed to our 
proposal. As discussed below, in response to commenter feedback, we 
have removed Sec.  1324.404(a). We have also made clarifying edits to 
proposed Sec.  1324.404(b) and proposed Sec.  1324.404(c). In addition, 
we have added new Sec.  1324.404(d) in response to commenter feedback 
on guardianship and dual relationships. Below is a summary of the 
public comments we

[[Page 39511]]

received regarding this section and our responses.
    Comment: We received a number of comments stressing the need for 
robust conflict of interest protections and in support of our proposal.
    Response: We concur and thank commenters for their support.
    Comment: We received comment that our proposal was too broad and 
would create significant burden and expense for APS programs. For 
example, a commenter suggested that applying the rule to ``all 
professionals involved in an APS investigation'' would be difficult to 
administer and monitor.
    Response: We believe that with appropriate legal and policy 
guidance, APS systems will be able to identify, monitor, remedy, and 
remove actual and potential conflicts of interest as necessary. ACL 
maintains that the benefit to APS clients of ethical practice far 
outweighs the burden incurred.
    Commenter: One commenter raised concerns that our proposals might 
adversely affect the work of multidisciplinary teams.
    Response: We believe that our rule will help multidisciplinary 
teams fulfill their mission and will not adversely impact the work of 
multidisciplinary teams. Better awareness of, and a standardized 
approach to remedying conflicts of interest will enable 
multidisciplinary teams to efficiently address any conflicts of 
interest among its participants. For example, if a team member has a 
direct conflict of interest, they may recuse themselves from working on 
a specific case or cases. Other recommendations include presenting 
cases without personally identifiable information, strengthening 
confidentiality agreements, and strengthening working relationships 
with other local area teams should a conflict arise.
    Comment: One commenter suggested the rule be less specific about 
areas where a conflict of interest may arise and allow States 
flexibility in identifying and addressing this in State policy.
    Response: How an actual or potential conflict of interest may be 
identified and remedied is often case specific. This rule requires 
State APS entities to establish appropriate policies and procedures 
that will guide them if or when a conflict of interest situation 
arises. State APS entities may seek technical assistance from ACL if 
questions occur.
    Comment: We received a comment suggesting we base our regulations 
on NAPSA or NASW ethics guidelines on conflicts of interest.
    Response: We agree that excellent, reputable guidance is already 
available through many sources. We encourage State APS entities to seek 
technical assistance from ACL.
    Comment: We received several comments, including from State APS 
entities, that our proposed regulations might adversely affect county-
based systems, particularly smaller counties in these systems. One 
commenter noted that county-based systems will incur a higher burden in 
preventing and addressing dual relationships.
    Response: We recognize that in smaller communities the possibility 
for individual and organizational conflict of interest may be more 
likely to arise due to the nature of a community's size and structure 
and may be more burdensome to address. Strategies to remedy conflicts 
of interest may differ in smaller and rural communities from those 
strategies used in larger areas. How actual or potential conflicts of 
interest may be remedied through appropriate policies and procedures is 
often case specific. Factors to consider include whether the individual 
in question is a decision maker, whether firewalls or other safeguards 
can be erected between organizations and individuals, and what 
monitoring protocols are in place for a potentially conflicted 
situation. ACL is available to provide technical assistance when such 
situations arise. We also note that the extended compliance deadline of 
4 years and the availability of corrective action plans to address 
specific areas should benefit any State that needs additional time to 
come into compliance. This may be particularly helpful in States with 
county-based systems.
    Comment: We received several comments suggesting that our proposal 
at Sec.  1324.404(a) prohibiting APS workers from serving as direct 
service providers simultaneously may be unduly burdensome and harmful. 
One APS State entity noted it would not be able to comply with the 
provision, as APS staff may be the only resource available in their 
State. A State entity noted that in small counties, APS workers wear 
many hats, including as HCBS case managers. Another State commented 
that it is currently in the process of having all APS workers certified 
as options counselors. One State APS entity opined that service 
provision can and should be fluid during the case, and that completely 
separating investigation from service provision could harm the client. 
The commenter requested we remove or revise this requirement to allow 
States latitude.
    Response: Based on commenter feedback, we are removing Sec.  
1324.404(a). We thank commenters for their input.
    Comment: We received comment asking us to define ``agent'' as used 
in proposed Sec.  1324.404(b) and (c).
    Response: In response to commenter feedback, we have edited newly 
redesignated Sec.  1324.404(a) and (b) to remove reference to APS 
agents. We believe our edits alleviate confusion and better align with 
the definition of ``conflict of interest'' in Sec.  1324.401.
    Comment: One commenter suggested that we clarify proposed Sec.  
1324.404(b) by revising it to read ``[e]nsure that employees and agents 
administering APS programs do not have a personal financial interest in 
an entity to which an APA program may refer clients for services 
recommended by the APS program.''
    Response: We appreciate and have accepted the commenter's 
suggestion. In keeping with the deletion of proposed Sec.  1324.404(a), 
we are redesignating proposed Sec.  1324.404(c) as Sec.  1324.404(a) in 
the final rule.
    Comment: We received a comment suggesting that we define 
``immediate family'' in proposed Sec.  1324.404(c) to mean ``same 
household.''
    Response: We thank the commenter for their suggestion. An immediate 
family member with a potential or real conflict of interest may not be 
a member of the same household. Similarly, a member of the household, 
for example someone who rents a room, may not be a family member but 
could also have a potential or conflict of interest. We therefore are 
amending proposed Sec.  1324.404(c), now Sec.  1324.404(a) in the final 
rule, to clarify. We have also revised Sec.  1324.404(b) to incorporate 
an individual's immediate family or household, for consistency with 
redesignated Sec.  1324.404(a).
    Comment: We received a comment requesting that proposed Sec.  
1324.404(c) align with the definition of conflict of interest in Sec.  
1324.401.
    Response: We thank the commenter for their suggestion. We have made 
edits to proposed Sec.  1324.404(b). We are redesignating proposed 
Sec.  1324.404(c) as Sec.  1324.404(a) in the final rule.
    Comment: We received a significant number of comments from the 
disability community on our proposals at Sec.  1324.404(d) suggesting 
that APS and AAAs be prohibited from serving as public guardians in 
dual relationships. Some also suggested that people at risk of 
guardianship be appointed an advocate from the local Center for 
Independent Living. One commenter offered that their State APS system

[[Page 39512]]

already prohibited AAAs and APS from serving as guardians or powers of 
attorney for the same person. We also received comments from APS 
entities, APS programs, and advocacy organizations noting that these 
dual relationships, including those involving APS workers serving as 
public guardians, are a reality of APS practice. This is particularly 
true in rural areas with limited staffing and county-administered 
systems. APS systems requested more information and guidance on how to 
operationalize our proposal.
    Response: We appreciate the realities of APS practice, as well as 
the concerns related to the conflicts of interest associated with APS 
programs being appointed the guardian for an adult served by the APS 
program. We are revising this section to balance these concerns. While 
we recognize and are sensitive to the gravity of such situations, we 
decline to completely prohibit APS entities and programs from 
petitioning for or serving as guardians to adults in all circumstances. 
As noted by some commenters, these appointments often occur because no 
other alternative is available or qualified.
    At the same time, we agree that policies and procedures, including 
firewalls and other safeguards, are necessary to protect against 
conflicts of interest for APS programs that serve as guardians. The 
general requirement in Sec.  1324.404 to establish such policies and 
procedures includes establishment of policies and procedures that 
address conflicts and appearances of conflict in guardianship 
situations. To respond to the serious concerns raised by commenters 
about APS involvement in guardianship, we further clarify the 
application of this requirement to guardianship., We have revised Sec.  
1324.404(d) to describe the circumstances under which petitioning for 
or serving as guardian is an unavoidable dual relationship. 
Specifically, it is unavoidable only if all less restrictive 
alternatives to guardianship have been considered, and either (i) a 
Court has instructed the APS program to petition for or serve as 
guardian, or (ii) there is no other qualified individual or entity 
available to petition for or serve as guardian. We also clarify that 
for all dual relationships, the APS program must document the dual 
relationship in the case record and describe the mitigation strategies 
it will take to address the conflict of interest.
    Finally, there are other statutory and regulatory authorities with 
which APS systems must comply, including Federal and State laws that 
require administration of programs, including APS, in the most 
integrated and least restrictive setting appropriate to meet the needs 
of individuals with disabilities and that prohibit discrimination on 
the basis of disability. These include Section 504 of the 
Rehabilitation Act \44\ and the Americans with Disabilities Act.\45\ 
Compliance with this rule does not address these obligations. The 
Department of Health and Human Services' Office for Civil Rights offers 
technical assistance on these antidiscrimination requirements for 
covered entities, and we will likewise provide ongoing technical 
assistance on these anti-discrimination requirements.
---------------------------------------------------------------------------

    \44\ 29 U.S.C. 796.
    \45\ 42 U.S.C. 12101.
---------------------------------------------------------------------------

    We received comments from Centers for Independent Living noting 
that they are available to serve as an advocate for a person at risk of 
guardianship. We encourage Centers for Independent Living interested in 
serving persons subject to or proposed for guardianship to coordinate 
with APS programs to aid such adults who may request such help before a 
guardianship petition is filed. Once a guardianship petition is filed, 
however, State guardianship law determines how the rights and interests 
of the person subject to the guardianship petition will be represented, 
including through the appointment of an attorney to defend against the 
imposition of guardianship.
    Comment: We received comment asking for clarification of what 
``appropriate safeguards'' might entail. Another commenter offered that 
firewalls and disclosures might serve as appropriate safeguards under 
proposed Sec.  1324.404(d).
    Response: We thank commenters for their suggestions. We agree that 
firewalls and disclosures are among the appropriate safeguards under 
proposed Sec.  1324.404(d). ACL will provide technical assistance to 
State APS entities as they develop their policies and procedures that 
describe safeguards.
    Comment: ACL received a comment that our proposal at Sec.  
1324.404(e) regarding monitoring and oversight would be expensive and 
burdensome to implement. One commenter noted that it may be 
particularly challenging for county-administered systems to monitor 
dual relationships, where such relationships may occur with more 
regularity than in other systems. Other commenters requested 
clarification about ACL's expectations around monitoring and oversight. 
Another commenter suggested we remove ``robust'' to describe our 
monitoring and oversight proposal at proposed Sec.  1324.404(e).
    Response: We thank commenters and recognize that monitoring and 
oversight might create an increased burden. However, monitoring and 
oversight are an essential component of ensuring that APS programs 
operate appropriately with respect to conflicts of interest. We defer 
to State APS entities' own conflict of interest policies and procedures 
about monitoring and will provide technical assistance as requested 
related to expectations and examples. We agree, however, that 
``robust'' is unnecessary, as by its nature monitoring will be robust. 
We amend accordingly and redesignate Sec.  1324.404(e) to Sec.  
1324.404(c).
    Comment: Several State APS entities commented that they have their 
own conflict of interest policies and procedures in place, including 
informal guidelines, desk audits, and self-reporting. Another inquired 
whether its current system of desk audits would meet the requirements 
of our proposed rule.
    Response: As mentioned in the response above, we defer to State APS 
entities' own conflict of interest policies and procedures and will 
provide technical assistance as requested.
    Comment: We received a comment suggesting our proposal would be 
expensive and burdensome for APS systems to implement. One commenter 
suggested that removing a conflict of interest is not always feasible 
and suggested proposed 1324.404(f) be amended to ``remedy, and where 
practicable, remove.''
    Response: We have decided not to finalize Sec.  1324.404(f) because 
it was duplicative of introductory language to the section, requiring 
the State entity to establish standardized policies and procedures to 
avoid both actual and perceived conflicts of interest, including 
mechanisms to identify, remove, and remedy them. The final rule accords 
State APS entities great flexibility in developing policies and 
procedures to address conflicts of interest. This includes the 
flexibility to determine how to remedy conflicts of interest when they 
occur. There are many third-party resources available to APS systems as 
they develop protocols to address conflicts of interest. Technical 
assistance is available from ACL.

F. Section 1324.405 Accepting Reports

    Section 1324.405(a) requires the State entity to have policies and 
procedures for accepting reports of adult maltreatment and self-
neglect. Such policies and procedures require prompt receipt of reports 
of alleged

[[Page 39513]]

maltreatment and self-neglect, using multiple methods for receiving 
reports 24/7 in ways that are fully accessible (e.g., using 
augmentative communication devices or translation services). Receiving 
reports 24/7 is paramount to the safety of clients and aligns with the 
recommendations of our Consensus guidelines.
    APS receives reports from both the general public and individuals 
mandated by the State to report suspected adult maltreatment and self-
neglect. Mandated reporting is an essential tool in combating adult 
maltreatment and self-neglect. However, most APS programs are not 
required to contact mandated reporters with information about the case 
after a report is made. Mandated reporters have stated that the absence 
of a reporting feedback loop creates a disincentive for reporting. The 
most common complaint ACL receives from community providers that work 
with APS is that while they may be required under State law to report, 
they do not receive information back on the status of their report. In 
Sec.  1324.405(b), we proposed to require States to implement a 
``feedback loop'' to provide mandated reporters information on the 
status of a report in certain circumstances.
    We received many comments generally supportive of our proposal at 
Sec.  1324.405(a) requiring APS programs to receive reports 24/7. 
Several commenters also had clarifying questions, particularly about 
whether our proposal required reports to be fielded by a live APS 
worker. We address comments below and are finalizing Sec.  1324.405(a) 
as proposed.
    We received comment on our proposal at Sec.  1324.405(b) suggesting 
significant modification, notably to better clarify the role of 
professional mandated reporters, emphasize client confidentiality and 
principals of person-directedness, and minimize burden on APS systems. 
We appreciate commenters' suggestions and have incorporated many of 
them into our revisions to Sec.  1324.405(b).
    We have amended our definition of ``mandated reporter'' at Sec.  
1324.401 to specify that ``mandated reporter'' refers only to a person 
who encounters an adult in the course of their professional duties and 
is required by State law to report suspected adult maltreatment or 
self-neglect to APS. This is in direct response to feedback we received 
from commenters, particularly States where all persons are mandated 
reporters. We have amended Sec.  1324.405(b) providing that information 
about a report must only be released to a mandated reporter who made 
such report upon request of the reporter and with the consent of the 
adult. We have removed Sec.  1324.405(b)(1)(ii) in response to 
commenter feedback, limiting information that must be shared with 
mandated reporters to procedural information about case opening and not 
substantive information about case findings. We have added Sec.  
1324.405(b)(2) requiring APS systems to obtain the consent of the adult 
prior to releasing any information. Finally, we have amended Sec.  
1324.405(c) in direct response to commenter feedback requesting that we 
specify that the State entity must comply with all applicable State and 
Federal confidentiality laws.
    Comment: We received several comments in support of our proposal to 
promptly accept reports of adult maltreatment and self-neglect, with a 
few State entities reporting they are already in compliance with this 
provision.
    Response: We thank commenters for their support.
    Comment: We received several comments opposed to our proposal to 
require two methods of reporting 24/7, with some commenters arguing 
that it would be unduly burdensome.
    Response: ACL believes it is important that at least two methods of 
reporting be available to reporters to accommodate people who may be 
unable to access a State's single method of reporting. For example, if 
a State only provides a website as its method of 24-hour reporting, a 
person who lacks internet access may be unable to file a report. It is 
critical that APS be able to receive reports 24 hours per day. When an 
adult experiencing maltreatment reaches out for APS assistance, they 
may only have the courage or ability to do so in that moment.
    Comment: We received comment suggesting we replace ``multiple 
methods'' with ``more than one method'' in proposed Sec.  1324.405(a).
    Response: The word ``multiple'' means ``more than one.'' We believe 
the regulation is clear as drafted and we are finalizing this term as 
proposed.
    Comment: We received questions from a few State entities seeking 
clarity that two methods of intake were sufficient to meet the 
requirements of proposed Sec.  1324.405(a).
    Response: Two methods of intake are sufficient to meet the 
requirements of Sec.  1324.405(a), and an online intake system is 
acceptable as one of these methods. States have the flexibility to 
provide more than two methods if desired.
    Comment: We received comment asking whether online reporting 
methods were mandatory or optional intake methods for APS programs. 
Some commenters suggested that requiring an online intake method would 
be unduly burdensome. A few other commenters questioned whether an 
online intake system would satisfy the requirements to have multiple 
methods of intake. One commenter noted an online reporting system could 
be easily added to APS program websites at little cost and that any 
potential burden would be outweighed by the benefit.
    Response: We require that one of the methods of reporting be an 
online reporting method. Online reporting methods are a best practice 
and are successfully in use in a number of States. An online reporting 
method may be a website portal, a secure email address that is 
regularly monitored, or another comparable method. States may also 
continue to use other methods, including voicemail inboxes. The 
requirement of Sec.  1324.405(a) is that there are multiple (more than 
one) methods of reporting and one of those is an online method. Again, 
we want to ensure that States have flexibility to implement the 
requirement of multiple reporting systems with the greatest efficiency 
and least amount of burden. Other APS systems may wish to use a 
dedicated phone intake line (with live personnel and/or a recorded 
message) fax, or office walk-in.
    Comment: One commenter suggested we require an accessible reporting 
method.
    Response: We remind State APS systems that as recipients of Federal 
financial assistance from the Department of Health and Human Services, 
they are covered by applicable civil rights laws including sections 504 
and 508 of the Rehabilitation Act. These laws prohibit discrimination 
against qualified individuals with disabilities and require 
accessibility. Thus, reporting methods are already required to be 
accessible. A variety of technical assistance currently exists from the 
Department of Health and Human Service's Office for Civil Rights. ACL 
will also be providing ongoing technical assistance for State APS 
systems.
    Comment: We received clarifying questions from several commenters, 
including State entities and associations representing them, asking 
whether accepting reports 24/7 meant APS programs were required to have 
live staffing 24/7 to field reports. Specifically, commenters asked 
whether having intake methods operational but unstaffed 24/7 would be 
sufficient to fulfill the regulations requirements. They also asked if 
reports that were received off business hours could be returned the 
next business day.

[[Page 39514]]

Commenters noted that if accepting reports requires live staff at all 
times, implementation of Sec.  1324.405(a) would be extremely expensive 
and burdensome and require union negotiations, increased staffing, and 
funding. One commenter stated that their program investigations 
commence within 72 hours for immediate risk, with a face-to-face 
contact within 7 days.
    Response: We clarify that ``receiving reports'' means that a 
reporter may submit a report with APS at all times, whether with a live 
person or a message to be retrieved during business hours. It is not 
required that this message be received and acted on by an APS worker 
immediately upon receipt.
    We also agree that it is outside APS programs' ability or mission 
to respond face-to-face to reports 24/7. We clarify that our 
requirements at Sec.  1324.405(a) and relatedly Sec.  1324.402(b)(2), 
require State entities to establish policies and procedures for 
receiving, screening, prioritizing, and referring cases based on risk 
and type of adult maltreatment or self-neglect. For reports received 
outside business hours, an APS worker should retrieve the message and 
contact the reporter on the next business day. We encourage, but do not 
require, APS programs to retrieve messages and contact reporters within 
72 hours after the report is made. For Sec.  1324.402(b)(2)(i), 
requiring a 24-hour response to immediate risk cases, the required 24-
hour response time does not begin until a case is ``screened-in'' by an 
APS worker.
    Comment: We received a comment suggesting that intake outside 
business hours was often shared with law enforcement and other 
emergency responders. The commenter sought to clarify that Sec.  
1324.405(a) would not make APS solely responsible for off-business 
hours response or otherwise disrupt shared response arrangements with 
law enforcement and emergency responders.
     Response: We emphasize the important role law enforcement and 
other first responders play in receiving and responding to reports of 
adult maltreatment and self-neglect. They are a vital partner to APS 
systems, and we encourage ongoing collaboration as discussed at Sec.  
1324.406(a)(3). Our proposal does not affect shared arrangements for 
immediate response outside business hours. We will provide technical 
assistance to APS systems on best practices for working with law 
enforcement, including training, while receiving reports 24 hours per 
day.
    Comment: We received a few comments in support of proposed Sec.  
1324.405(b), with some commenters agreeing that lack of feedback for 
mandated reporters was an issue in APS practice that should be 
addressed. A few States noted that they currently had some method of 
notifying mandated reporters. Many commenters offered qualified support 
but included recommendations for improvement.
    Response: We thank commenters for their support and thoughtful 
recommendations. We have incorporated many into revised Sec.  
1324.405(b) as discussed below.
    Comment: We received comments that proposed Sec.  1324.405(b) would 
be costly and burdensome to implement.
    Response: We appreciate that implementation of a new system to 
inform mandated reporters may create an administrative burden for some 
State systems. However, we have significantly narrowed our original 
proposal in response to commenter feedback. Furthermore, research 
indicates that communication with reporters improves outcomes for 
adults and APS systems.\46\ We believe the benefit of our proposal 
outweighs the burden. We have also extended the compliance date of the 
final rule to give States additional time to put new systems in place.
---------------------------------------------------------------------------

    \46\ Lees Haggerty, K., Ojelabi, O., Campetti, R., & Greenlee, 
K., Education Development Center, Adult Protective Services and 
Reporter Communication: Recommendations for Improving Practice, 
(2023), https://www.edc.org/adult-protective-services-and-reporter-communication-recommendations-improving-practice.
---------------------------------------------------------------------------

    Comment: We requested comment whether minimum timeframes to respond 
to mandated reporters should be explicitly included in the rule, and a 
few commenters variously responded both in support of, and opposed to, 
minimum timeframes to inform mandatory reporters of report information.
    Response: Based on comment responses, we decline to include a 
minimum timeframe for response to mandated reporters. We allow States 
to retain flexibility and minimize burden commensurate with commenters' 
feedback.
    Comment: We received significant comment from a wide array of 
interested parties in opposition to requiring APS programs to provide 
information to mandated reporters about an APS report and 
investigation. Some commenters voiced complete opposition to providing 
mandated reporters with any information, while others requested 
clarity, and some offered suggestions to improve our proposal and 
strengthen confidentiality, safety, and person-directedness.
    For example, many commenters pointed out that their State had 
universal mandated reporter statutes with no delineation between the 
public and professionals. A national association noted that 16 States 
currently have such laws. Commenters noted that implementation of our 
proposals in these States would be extremely burdensome to 
operationalize, could potentially confuse reporters, and may put 
adults' safety in jeopardy. A few commenters suggested we only require 
sharing information with mandatory reporters who are professionals 
reporting in their official capacity.
    Some commenters noted that our proposal may have safety 
implications for adults, pointing out that a reporter--even a 
professional--may be untrustworthy, abusive, or otherwise be acting 
outside of an adult's best interest. Several commenters also pointed 
out that releasing client information without an adult's consent was 
not person-centered and may conflict with other provisions of this 
regulation prioritizing the adult's rights. Some suggested that such 
information only be released if it directly benefits the adult, for 
example, if it was being released to a medical provider treating a 
client or to further case coordination. A few commenters suggested that 
our proposal be amended to allow the release of information only with 
the consent of the adult.
    Many commenters stressed the importance of confidentiality, noting 
that our proposal may violate their States' confidentiality laws. Some 
commenters requested we provide explicit language in regulation text 
about compliance with State confidentiality laws.
    We received a number of suggestions from State entities and other 
commenters, often based on their own State experience, for improvements 
to our proposal. One commenter offered that information on reports 
should be limited to whether a case has been screened in or out. 
Another commenter suggested we only provide information on whether a 
report has been received. One APS program noted that it shares the 
screening decision of a case but only at the request of the reporting 
party. Another commenter noted that their State APS system does not 
currently share information on the finding of a case. One commenter 
suggested that feedback can be separated into two categories: 
procedural and substantive. The commenter noted that in their State, 
confidentiality laws protect substantiative feedback, but procedural 
feedback is optional, and many counties provide a standardized response 
to the

[[Page 39515]]

mandated reporter. The commenter suggested that our regulations focus 
on procedural feedback only.
    Response: We thank commenters for their detailed responses and 
suggestions and have amended 1324.405(b) to address these comments. We 
have amended Sec.  1324.405(b)(1) to require that information about a 
report only be released upon request of the mandated reporter (per 
Sec.  1324.401, a person encountering an adult in the course of their 
professional duties required by State law to report adult maltreatment 
or self-neglect) who made such report. We have removed Sec.  
1324.405(b)(1)(ii), limiting information that must be shared with 
mandated reporters to procedural information about case opening and not 
substantive information about case findings. We have added Sec.  
1324.405(b)(2), requiring APS systems to obtain the consent of the 
adult prior to releasing any information.

G. Section 1324.406 Coordination With Other Entities

    We proposed in Sec.  1324.406(a) to require that State entities 
develop policies and procedures to ensure coordination with other State 
and local governmental agencies, community-based organizations, and 
other entities engaged in activities to promote the health and well-
being of older people and adults with disabilities for the purposes of 
addressing the needs of the adult experiencing the maltreatment and/or 
self-neglect. The policies and procedures are an opportunity for State 
APS systems to assess their relationships with other entities and to 
ensure State APS systems are working with the right partners in the 
right way.
    These partners include, but are not limited to, State offices that 
handle scams and frauds, State and local law enforcement, State 
Medicaid agencies and other State agencies responsible for HCBS 
programs, the Long-Term Care Ombudsman Program, Protection and Advocacy 
Systems, financial services providers, State securities and financial 
regulators, and Federal financial and securities enforcement agencies. 
Such coordination maximizes the resources of APS systems, improves 
investigation capacity, and ensures APS response is effective. The mix 
of partners working together on a specific case will vary based on the 
facts, and whether the adult is experiencing maltreatment or self-
neglect.
    We have specifically included the State Medicaid agency as a 
partner for APS coordination in Sec.  1324.406(a)(2)(i). As discussed 
below, we recognize the important role of APS in Medicaid critical 
incident management systems and have developed our rule to facilitate 
alignment and coordination between Medicaid agencies and APS and to 
better align with the Centers for Medicare & Medicaid Service's 
proposed rule ``Ensuring Access to Medicaid Services'' (Access Rule's) 
critical incident requirements, which CMS anticipates will be finalized 
in Spring 2024.\47\
---------------------------------------------------------------------------

    \47\ 88 FR 27960, (May 3, 2023); Office of Information and 
Regulatory Affairs, Unified Agenda, RIN: 0938-AU68. https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=0938-AU68.
---------------------------------------------------------------------------

    We require that States establish policies and procedures to ensure 
coordination with these specific entities as they represent critical 
partners in the investigation of abuse, neglect, financial 
exploitation, and sexual abuse. Various non-APS entities have authority 
to investigate adult maltreatment and self-neglect based on who the 
alleged victim and perpetrator of the maltreatment are, and where the 
maltreatment took place. An effective, evidence-based, and holistic 
response to adult maltreatment must include all enumerated entities 
working in coordination with APS.
    We proposed in Sec.  1324.406(b) to require the State APS system to 
develop policies and procedures to address coordination and information 
sharing with several governmental and private entities both within a 
State and across State lines for the purpose of carrying out 
investigations. Coordination can include development of memoranda of 
understanding (MOU) (e.g., for referrals and information sharing), 
establishment of multidisciplinary teams across and among governmental 
and non-governmental entities (with appropriate safeguards for 
confidentiality to protect client privacy and the integrity of APS 
investigations), and collaboration on training and best practices. 
While the development of policies and procedures around coordination 
and information sharing are required, States have flexibility to 
determine which methods of coordination are appropriate for their APS 
system and ACL is not requiring any specific method of coordination.
    We recognize that State laws may preclude sharing of certain 
information related to individual cases, but at a minimum, all APS 
systems can work with other entities around prevention and best 
practices to address adult maltreatment and self-neglect. State law may 
allow or require different agencies to investigate alleged 
maltreatment. Therefore, it is imperative for the State APS system to 
have a clear understanding of which entities are responsible for which 
types of investigations and other types of responses. There are various 
factors that determine which entity is responsible for investigating 
adult maltreatment. For example, the location or setting of the adult 
maltreatment; the type of adult maltreatment; the relationship between 
an alleged perpetrator and an alleged victim; and the characteristics 
of the alleged victim. The policies and procedures required by Sec.  
1324.406(b) may, but are not required to, include information and data 
sharing agreements to ensure coordination of response and that 
appropriate referrals are made when APS receives a report that is 
outside their jurisdiction to investigate, including with law 
enforcement, the State Medicaid office, and State licensing and 
certification agencies. Coordination between entities reduces the 
imposition of multiple investigations on adults who have been harmed 
and strengthens responses by public safety and justice system entities 
and parties, including law enforcement and judges.
    Policies and procedures that outline steps for coordination also 
help to prevent future maltreatment. For example, if APS has an 
information sharing agreement with other entities, it will be able to 
share information about alleged maltreatment against adults being 
served by the respective organizations. Additionally, such agreements 
allow information sharing between these entities on the outcome of 
individual investigations, as permissible under State law. For example, 
this could include communication of the results to State Medicaid 
agencies in instances in which a Medicaid provider or direct care 
worker is determined by APS to be a perpetrator of maltreatment, if 
such sharing is permitted by State law. We also believe it is critical 
to address coordination across States given that perpetrators may move 
themselves or their victim to another jurisdiction where the 
perpetrator will continue to engage in adult maltreatment.
    We received a number of comments from interested parties. We 
discuss comments and responses below.
    Comment: We received broad support for our proposals in Sec.  
1324.406, including policies and procedures that allow for the use of 
MOUs and data sharing agreements, and for the proposed rule's focus on 
coordination with other entities to detect, prevent, address, and 
remedy adult maltreatment. Several commenters, including State APS 
entities, commented that they already coordinate with other entities 
when permitted by law. In particular, commenters

[[Page 39516]]

highlighted the importance of multidisciplinary teams. Commenters also 
noted that coordination can be difficult and time-consuming and does 
not rely solely on APS.
    Response: We thank commenters for their support and insights and 
acknowledge the difficulties around collaboration. We are pleased, 
however, that many States are already in compliance with the provisions 
of the rule.
    Comment: Several commenters who expressed support for Sec.  
1324.406 strongly encouraged alignment of its provisions and language 
across the Department of Health and Human Services' proposed 
regulations. In particular, commenters recommended that the final rule 
align language surrounding critical incidents with language in the 
Centers for Medicare & Medicaid's proposed Access Rule.\48\
---------------------------------------------------------------------------

    \48\ Id.
---------------------------------------------------------------------------

    Response: We agree with commenters. Our intent in proposed Sec.  
1324.406(a)(2)(i) was to reflect the language in the proposed Medicaid 
Access rule. We have edited Sec.  1324.406(a)(2)(i) to include explicit 
reference to ``critical incidents'' to more explicitly align this 
regulation with the proposed Access Rule and foster a clearer 
understanding of the level of coordination and information sharing that 
will be required to successfully implement the requirements. 
Additionally, we have extended the deadline for compliance with this 
rule to 4 years after publication to better align with the 
implementation deadline of the proposed Access rule critical incident 
management requirements.
    Comment: Commenters recommended that we include in Sec.  
1324.406(a)(1) Tribal APS programs among other APS programs in the 
State with which to coordinate.
    Response: We accept the comment and have amended Sec.  
1324.406(a)(1) accordingly.
    Comment: We received many comments, including from APS systems, 
national associations, and organizations requesting that our rule 
include a more robust and explicit discussion of coordination with 
financial institutions. Some commenters noted that it was often 
difficult to compel financial institutions to release records or 
otherwise obtain information from them. One commenter said this was 
true even after the institution filed a report. Two commenters 
recommended adding language to encourage APS programs to share general 
case status information with financial institutions, with one commenter 
highlighting that this inclusion would support APS coordination with 
State securities regulators, law enforcement, and other investigators 
to fight elder financial exploitation. A commenter suggested we broaden 
proposed Sec.  1324.405(a)(6) ``financial institutions'' to the broader 
``financial services industry'' and another commenter suggested 
clarifying the range of institutions. A commenter suggested including 
guidance that APS should establish policies and protocols for sharing 
information with financial institutions who submit reports as part of 
their professional work.
    Response: Based on these comments, we have revised Sec.  
1324.406(a)(3) to include ``State securities and financial regulators, 
Federal financial and securities enforcement agencies.'' We decline, 
however, to expand our definition to ``financial services industry'' as 
``financial institution'' encompasses investment advisors, broker-
dealers, and other entities.\49\ Whether and how to compel financial 
institutions to release information is outside the scope of this rule.
---------------------------------------------------------------------------

    \49\ U.S. Treasury, Financial Crimes Enforcement Network, 
Financial Institution Definition, https://www.fincen.gov/financial-institution-definition (last visited January 22, 2024).
---------------------------------------------------------------------------

    Comment: We received many comments about coordination with other 
entities. Some commenters specifically approved of coordination with 
programs such as the State Long-Term Care Ombudsman Programs and 
Protection and Advocacy Systems, and some suggested APS coordination 
with these entities be mandatory. Others suggested additional entities 
with which APS should coordinate, including other Federal and State 
governmental agencies, legal services providers, disability 
organizations, and medical providers such as behavioral health 
specialists. One State asked for clarification as to whether 
``emergency management systems'' in Sec.  1324.405(a)(5) meant first 
responders such as emergency medical services and firefighters, or 
State and local disaster/emergency preparedness and response systems.
    Response: We thank commenters for their responses. Many of the 
entities identified are already included in the regulation or fall into 
the broad categories in the regulation, such as organizations that 
advocate on behalf of adults who experience maltreatment. They, 
therefore, do not need further identification. As the State commenter 
suggested, emergency management systems could include both first 
responders and entities responsible for disaster/emergency preparedness 
and response systems. Our intent is to ensure that States APS systems 
have the broadest flexibility possible to coordinate with organizations 
whose mission is aligned with theirs. These include organizations and 
entities from which they receive referrals, organizations with which 
they coordinate to provide services and otherwise respond to adult 
maltreatment, and organizations that represent older people and people 
with disabilities. Other than the additions discussed above, we have 
decided not to revise the regulatory language.
    Comment: We received some comments that developing and maintaining 
relationships with other entities pursuant to Sec.  1324.406(b) could 
be burdensome and expensive, including where other organizations have 
different jurisdictions or timeframes for taking action. In particular, 
the commenters stated that the cost to manage MOUs may be prohibitive 
and would require increased staff and funding. Some comments suggested 
that informal coordination was more feasible and reflected current 
practice. Many State APS entities noted that they are but one party to 
MOUs and data sharing agreements and cannot mandate that other entities 
enter into agreements, either intra-State or inter-State.
    Response: We believe that building relationships with other 
entities who investigate and respond to adult maltreatment and self-
neglect is an essential part of APS practice and that the benefit of 
such relationships far outweighs the potential burden. We understand 
that formal data sharing agreements and/or MOUs are not always the most 
appropriate or feasible option, and for this reason do not require 
their use. ACL also recognizes that other entities may be reluctant to 
enter into agreements or have their own policies and procedures that 
make entering into agreements difficult. However, we strongly encourage 
States, when developing or updating their policies and procedures, to 
assess when such a formalized relationship may be appropriate and, in 
those cases, establish such relationships.
    We seek to clarify the language of the proposed rule. By requiring 
in proposed Sec.  1324.406(b) that State entities' ``[p]olicies and 
procedures must, at a minimum [. . .] (3) allow for the establishment 
of memoranda of understanding, where appropriate [. . .]'' we may have 
unintentionally given the impression that States must establish MOUs. 
The use of the phrase ``at a minimum'' was intended to convey that 
policies and procedures

[[Page 39517]]

could incorporate MOUs as well as other options, not that policies and 
procedures must incorporate MOUs. We are amending Sec.  1324.406(b) to 
remove the phrase ``at a minimum.'' We are amending Sec.  
1324.406(b)(3) to indicate that the policies and procedures must 
facilitate information exchanges through MOUs, data sharing agreements, 
and/or other less formal arrangements.
    Comment: Commenters also requested that ACL provide technical 
assistance regarding MOUs and data sharing agreements.
    Response: ACL will provide technical assistance regarding MOUs and 
data sharing agreements as part of the implementation of the final 
rule.
    Comment: We received comments asking that State entities be 
required to have policies and procedures that address such issues as 
coordination across States, including record-sharing and reporting 
requirements.
    Response: State entities should develop policies and procedures for 
coordination that address the needs of their jurisdiction and the 
people they serve. For example, they may want a policy regarding adults 
who spend only part of the year in their State or who receive medical 
services in a jurisdiction they do not serve. To ensure that State 
entities understand their obligations and their discretion in 
developing policies and procedures, we are adding a new subsection (4) 
to Sec.  1324.406(b) for policies and procedures that address other 
activities as determined by the State entity.
    Comment: Many commenters noted that coordination between APS 
systems and other entities may raise privacy and confidentiality 
concerns. For example, one commenter noted an APS program may be a 
covered entity under Health Insurance Portability and Accountability 
Act of 1996 (HIPAA) while the other party to a data sharing agreement 
is not. Commenters offered that any automatic information sharing that 
did not offer a client the opportunity to opt-out would violate 
principles of self-determination and rights to confidentiality and that 
any data sharing should be limited to case information necessary for 
assisting a client-directed action on a specific issue. A commenter 
warned that inappropriate data sharing could damage the trust built 
between a client and APS program. Some commenters suggested that all 
data sharing require client consent first. A commenter suggested we 
edit our regulation text to explicitly provide for applicable State 
privacy laws.
    Response: As our rule provides, State policies and procedures 
should prioritize person-directed responses to reports of maltreatment 
(Sec.  1324.402(b)(1)), including in coordinating with other entities. 
Section 1324.406(a) requires ``State entities [to] establish policies 
and procedures, consistent with State law[.]'' This includes compliance 
with all applicable State privacy laws. Compliance with HIPAA is beyond 
the scope of this regulation.

H. Section 1324.407 APS Program Performance

    We proposed requirements in Sec.  1324.407 for APS State entities' 
annual data collection and reporting specific to program performance. 
Section 1324.407 requires that State entities develop policies and 
procedures for the maintenance of individual APS case data. We proposed 
that State entities maintain data for at least 5 years and are 
finalizing our requirements as proposed. We sought comment on whether 
our timeframe was adequate or whether a greater or lesser duration was 
optimal and received comments both in support of and in opposition to 
our proposal. Commenters also provided suggestions and requested 
explanation regarding the interaction of new data reporting 
requirements with existing voluntary NAMRS data submission. We discuss 
comments and responses below.
    Comment: We received several comments voicing general support for 
setting minimum standards for program performance data collection. One 
commenter agreed with setting these standards, but suggested 
organizations should be able to maintain their current systems to 
reduce burden on States.
    Response: We thank commenters for their support and agree that 
setting minimum program performance data standards is crucial to 
standardizing APS systems across the country. We believe many States 
may be able to maintain, or adapt, their current systems to meet the 
requirements of our regulation. We are finalizing the provision as 
proposed.
    Comment: We received several comments in support of our proposal to 
maintain records for 5 years. A few commenters proposed alternative 
time periods, some longer and some shorter. Several State APS entities 
described their own record retention systems, with some arguing that 
the rule would require a change that might require increased funding.
    Response: ACL appreciates commenters' input and will maintain the 
regulatory text of Sec.  1324.407(b) requiring individual case data 
retention for a minimum of 5 years. We believe that 5 years is the 
minimum appropriate timeframe to allow APS programs to assess clients 
across time to determine whether repeated abuse or recidivism is 
occurring.
    Comment: Many commenters suggested that our proposal was 
duplicative of NAMRS, with a few commenters suggesting that we should 
improve NAMRS rather than create a new system of reporting, 
particularly with respect to equity issues. Some commenters requested 
clarification on what data will need to be reported, stating that the 
burden will be lessened if it is the same data as is entered in NAMRS 
or if ACL provides technical assistance and additional funding. Several 
commenters noted that statutory changes will be necessary to comply 
with reporting requirements and that ACL underestimated the costs of 
this proposal, particularly for States that would need to change their 
data reporting system. Other commenters requested ongoing financial and 
technical assistance to make the new reporting requirements more 
feasible.
    Response: ACL appreciates the comments and concerns regarding the 
development of proposed data collection and maintenance procedures. 
NAMRS is a voluntary, public health surveillance system and does not 
collect data about APS performance. NAMRS collects information about 
the characteristics of those experiencing and perpetrating 
maltreatment, information on the types of maltreatment investigated, 
and information on services to address the maltreatment. In contrast, 
our rule mandates that, in order to receive Federal funding, State 
entities have policies and procedures in place for the collection and 
maintenance of performance data on APS investigations. This newly 
required data collection will allow ACL and States to measure how APS 
programs are meeting the goals and objectives proposed for this 
funding. In addition, any information required to be collected as part 
of required performance data will be made available for public comment, 
consistent with requirements under the PRA, which govern how Federal 
agencies collect information from the public. The public will be able 
to review and comment on any additional data collection proposals 
related to grant performance, including about the potential burden 
associated with the data collection, before any specific data 
collection or reporting is required. Once data collection requirements 
are finalized, ACL will provide technical assistance to States, and to 
the extent possible we will work with States to ensure that existing 
data collection systems can be used for

[[Page 39518]]

reporting. For that reason, we are maintaining the required data 
collection and maintenance procedures as proposed.
    Comment: Several commenters provided suggestions on additional 
program performance and NAMRS data to be collected. One commenter asked 
ACL to require collection of client demographic data through NAMRS to 
improve and ensure equitable services for marginalized groups, 
including racial and ethnic minorities. We received a comment 
suggesting that ACL collect client outcomes data.
    Another commenter requested that we require collection of the 
reason for investigation and service delivery. One commenter suggested 
the submission of existing staff-client ratios. A few commenters 
suggested that APS annual reports to ACL and disaggregated data should 
be required to be released publicly. Another commenter recommended more 
data reporting than may be included in annual reports to the State Unit 
on Aging.
    Response: ACL appreciates commenters' suggestions and agrees that 
granular data, particularly on underserved populations at high risk of 
adult maltreatment, is critical. Nevertheless, we decline to specify 
such data collection in this rulemaking. Regarding NAMRS data 
collection, we encourage public comment on the PRA notice for NAMRS 
when it is renewed in 2026 (OMB Control number 0985-0054). 
Additionally, we will be working with States to implement Sec.  
1324.407 and establish data collection parameters, and we will consider 
commenters suggestions in that process. The public will have a 30- and 
60-day period to comment on our proposal under the requirements of the 
Paperwork Reduction Act. Furthermore, we encourage States to collect 
data beyond our minimum requirements for their own evaluative purposes.
    Comment: ACL received comment that the regulation should include a 
quality assurance program, research, and discussion about specific 
information describing data collected.
    Response: We agree that quality assurance and ongoing research and 
evaluation of State APS systems is essential, and we encourage these 
activities and coordination with other entities per Sec.  
1324.406(b)(3) as APS systems pursue them. However, we believe that 
mandating such activities is beyond the scope of this rule.

I. Section 1324.408 State Plans

    Section 1324.408(a) of the rule requires each APS State entity to 
develop a State plan consistent with 45 CFR 75.206(d) and requirements 
set forth in the EJA and by the Assistant Secretary for Aging.\50\ 
Funding provided to State APS entities through the EJA is contingent on 
compliance with our regulations, and the State plan is the mechanism 
through which States demonstrate, and ACL evaluates, this compliance. 
State plans can also be used to demonstrate how States' activities, 
data, and outcomes can inform best practices, which can be used to 
leverage additional resources. These plans promote coordination and 
collaboration to better serve the people of a State by providing a 
blueprint that describes what actions the State will undertake to meet 
the needs of the population it serves.
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    \50\ 45 CFR 75.206(d) allows the option for State entities to 
submit State plans instead of applications for funding, thereby 
reducing burden. The Older Americans Act of 1965 Sec.  
201(1)(e)(A)(ii), 201(1)(e)(A)(iv)-(B), 42 U.S.C. 3011(e)(1)(A)(ii), 
3011(e)(1)(A)(iv) and 42 U.S.C. 3011(e)(1)(B) directs the Assistant 
Secretary for Aging to collect data and information, and strategic 
plans from States. The EJA Sec.  2042(b)(4), 42 U.S.C. 1397m-1(b)(4) 
authorizes State reports from each entity receiving funding.
---------------------------------------------------------------------------

    Section 1324.408(b) of the rule requires the State entity receiving 
the Federal award of funding under the EJA (42 U.S.C. 1395m-1) to 
develop a State plan in conjunction with other State entities (if 
applicable) and APS programs. Section 1324.408(c) requires the State 
entity to update the plan at least every 5 years.
    ACL has administrative oversight responsibility with respect to the 
expenditures of Federal funds pursuant to the EJA. Therefore, under 
Sec.  1324.408(d), as a condition of approval and receipt of Federal 
funding, APS systems must include assurances in their State plans that 
they will develop and adhere to policies and procedures as set forth in 
this regulation. ACL will provide technical assistance to States 
regarding the preparation of State plans and is responsible for 
reviewing those that are submitted for compliance. Annual State program 
performance data collected and submitted to ACL pursuant to Sec.  
1324.407 is used to measure performance and assess the extent to which 
State systems are meeting State plan objectives.
    Finally, Sec.  1324.408(e) sets forth a process for plan review. 
State plans are reviewed and approved by the Director of the Office for 
Elder Justice and Adult Protective Services (OEJAPS), the position 
designated by section 201(e)(1) of the OAA, 42 U.S.C. 3011(e)(1). A 
State entity dissatisfied with the Director of OEJAPS' final 
determination may appeal to the Deputy Assistant Secretary for review 
not later than 30 calendar days after the date of the determination. 
The State entity will then be afforded an opportunity for a hearing 
before the Deputy Assistant Secretary. If the State disagrees with the 
determination of the Deputy Assistant Secretary, it may appeal to the 
Assistant Secretary not later than 30 calendar days after the date of 
the Deputy Assistant Secretary's decision.
    ACL invited interested parties to submit comments about the 
requirements for State APS program plans, their requirements, and their 
development. Many commenters were in favor of this regulation, whereas 
others commented that these provisions of the rule are too burdensome 
and will require substantial resources for APS programs to implement. 
ACL appreciates the comments that we received and discusses them below.
    Comment: Several commenters welcomed the proposal that each State 
APS entity must develop a State plan, stating that this will 
standardize APS programs nationally. Some commenters anticipate that 
Federal standards and guidelines will help eliminate problems with 
State practices. A commenter proposed that the State plans should be 
published online for transparency.
    Response: We thank commenters for their support. We strongly 
encourage State entities to make their State plan public through 
publishing the plan online, by identifying a point of contact who can 
share that information, or through other mechanisms, but are not 
requiring them to do so. ACL will publish State plans on its website.
    Comment: Many commenters requested clarification on the required 
contents of the State plan and on its creation. Some commenters 
observed that States will require technical assistance from ACL to 
develop State plans. A commenter recommended that State plans consist 
of a checklist format that is compliant with the new regulations and 
that States should not be required to provide extensive narratives in 
their plans. Prescriptive requirements should be limited, according to 
a commenter. A commenter suggested that ACL develop a template for 
State entities to use to develop their plans and another raised 
concerns that Tribal plans will be subject to State entity input and 
review.
    A few commenters noted that there are some States with bifurcated 
APS systems--one for adults 60 and over and the other for younger 
adults with disabilities. Commenters recommended that, in these 
circumstances, the States should be permitted to submit multiple State 
plans and Federal funding should

[[Page 39519]]

be separately directed to the distinct State entities.
    Response: ACL appreciates comments regarding the need for 
clarification about State plan creation, content, format, and 
development. ACL will provide technical assistance to the States 
related to plan development. We will review best practices and 
applicable regulations and policy and communicate further information 
about plan development and requirements to State entities before new 
State plans are due for submission and review.
    We have amended the rule to provide more clarity for States with 
bifurcated APS systems in response to their comments. Rather than 
having those States submit multiple plans, we are revising Sec.  
1324.408(b) to require the State entity that receives EJA funds 
directly from ACL to work with any other applicable State entities, as 
well as APS programs, to develop the State plan. We expect such States 
to submit one State plan for both APS programs that is developed 
collaboratively.
    Our funding is distributed to only one State entity--the unit or 
agency that serves older adults. We expect the State entity to disperse 
funding to the agency that serves other populations, consistent with 
the allocation plan in the State plan.
    Comment: Many commenters recommended that plan implementation 
should be delayed beyond 3 years after the effective date of the APS 
rule, with several recommending that plan implementation occur no 
sooner than 4 years after the rule becomes effective, including an 
association representing State entities, and other commenters 
recommending 5 years.
    Response: In response to commenter input ACL has extended the 
deadline for compliance with this rule to 4 years after publication. 
Therefore, State plans will be due 4 years after our regulations are 
final. We believe this allots sufficient time for State systems to 
develop State plans. States that require additional time may request a 
corrective action plan.
    Comments: We received comments opposing our State plan requirements 
in the proposed rule. Several commenters anticipated that plan 
development would be challenging, time intensive, and require 
additional staff and money. Commenters suggested that we had 
underestimated the cost of writing and receiving approval for the plan. 
A few commenters predicted that the creation of a new State plan would 
be burdensome to the States.
    Response: As commenters have noted, the drafting and implementation 
of new State APS plans is expected to require staffing, time, and 
resources. However, ACL believes the State plan requirement is 
reasonable and the least burdensome option available to comply with 
Federal regulations for Federal grants awards. Federal regulations (45 
CFR 75.202) require that HHS provide public notice of Federal financial 
assistance programs. To indicate interest in receiving funding, 
entities must abide by standard application requirements outlined in 45 
CFR 75.206. To reduce burden on State applicants, 45 CFR 75.206(d) 
specifically allows for State plans to be submitted rather than 
applications for funding on a period of performance basis.
    ACL has accounted for the factors raised by commenters in the 
projected costs of rule implementation. Every State, the District of 
Columbia, and the Territories have already created a State APS 
operational plan as a requirement of receiving funding under the 
American Rescue Plan Act of 2021 (ARPA) (Pub. L. 117-2).\51\ ACL's 
estimate of burden is based on the expectation that the States, the 
District of Columbia, and the Territories will review and update their 
existing operational plans and not engage in creating a new State APS 
plan. In addition to meeting regulatory requirements for grant making, 
we anticipate that State plans will be used to support data collection, 
to develop promising practices for State and local APS programs, and to 
improve coordination between APS programs and their partners. State 
plans will be a useful tool to State entities for establishing quality 
assurance parameters and monitoring program performance. Most 
importantly, State plans will provide a standardized platform to 
facilitate and measure essential outcomes for APS clients.
---------------------------------------------------------------------------

    \51\ Elder Justice Act Mandatory Grants, Admin. For Cmty. 
Living, https://acl.gov/grants/elder-justice-mandatory-grants (last 
modified on Oct. 18, 2023).
---------------------------------------------------------------------------

    Moreover, we note again that we have amended the compliance date to 
4 years after publication of the final rule. We believe that 4 years 
provides sufficient time for States to review their State APS operation 
plan and develop a State plan pursuant to these requirements. States 
that require additional time may request a corrective action plan.
    Comments: A few commenters contend that the State plan is 
duplicative of the OAA requirements for a State plan. Conversely, one 
commenter asserted that the APS plan is not like the OAA plan. However, 
another commenter suggested States could use the OAA State plan as a 
template for the APS plan and another that the APS plans could be 
absorbed into a State's OAA State plan. Some commenters sought clarity 
regarding the APS State plans interaction with OAA State plans.
    Response: ACL appreciates commenters' input. At this time, APS 
State plans cannot be combined with OAA State plans because current APS 
funding is provided through the EJA, not the OAA formula grants. As a 
separate grant award, it is subject to separate Federal grant 
requirements. However, we agree with commenters that the structure and 
format may be similar. For example, both the APS and the OAA State 
plans require State entities to provide assurances that they will abide 
by Federal laws and regulations. States may choose to synchronize their 
OAA State plan and APS plan and submit them concurrently. However, they 
are distinct, and ACL will evaluate each separately.
    Comment: We also received comments indicating that the APS State 
plans required under this rule duplicated or complemented the 
operational plans required for receipt of ARPA funding, and that that 
State plans should build on rather than replace ARPA operational plans. 
A few commenters requested clarification for how APS State plans 
differed from the operational plans.
    Response: ACL does not believe that State plans are duplicative of 
those plans required by ARPA. Rather, we believe States' ARPA 
operational plans can and should be the foundation of a more 
comprehensive and detailed State plan. In ARPA operational plans, State 
entities described where they sought to make investments to strengthen 
their APS programs. APS State plans required by Sec.  1324.408 require 
States to provide further assurances related to APS practices to 
receive Federal funding. For this reason and the reasons set forth 
above describing the value and uses of the APS State plans, we are 
maintaining the regulatory language at Sec.  1324.408(a) as proposed.
    Comment: We received comment that State plans are duplicative of 
our reporting requirements in Sec.  1324.407.
    Response: Our reporting requirements in Sec.  1324.407 complement 
State plan requirements but do not duplicate them. The State plan sets 
out how the State entity intends to comply with the requirements of 
this regulation. Performance data reported by States is used to assess 
the extent to which State APS systems are meeting State plan 
objectives.

[[Page 39520]]

    Comments: Many commenters supported a requirement for ongoing input 
from interested parties in the development of State plans, including 
feedback from APS workers, prior clients, and from individuals meeting 
the definition of ``adult.'' A commenter recommended that the State 
plan set minimum standards for collaboration. Another commenter wanted 
to ensure that State plans solicit input from Tribes before State plan 
implementation.
    Response: As commenters have noted, the development of State plans 
will require a comprehensive planning process that ensures States 
collaborate with APS programs. The rule anticipates, but does not 
require, that State entities will seek input from other interested 
parties when they develop State plans. Section 1324.408(b) sets minimum 
requirements for collaboration with APS programs regarding plan 
development. However, we strongly encourage collaboration with all 
interested parties, including adults with personal experience 
interacting with APS programs. We are therefore finalizing this 
proposal.
    Comments: Several commenters addressed the frequency of updating 
State plans under Sec.  1324.408(c). Some commenters found the language 
requiring an update at least every 5 years or as frequently as every 3 
years confusing. A few commenters wrote in support of a 3 to 5 year 
State plan renewal cycle. Another suggested a longer timeframe based on 
resource and workload concerns.
    Response: ACL has considered these comments and concerns about 
resources and workload. The intent of the State plan is to ensure that 
the APS programs are consistently maintaining the services they have 
committed to and are providing services that meet the needs of the 
adults receiving APS services. Moreover, the plan updates enable States 
to review current practices and policies that may need to be revised or 
abandoned and to adopt new practices based on the adult populations 
they serve. We believe that the requirement to update State plans every 
5 years is a reasonable timeframe. We agree, however, that the language 
of Sec.  1324.408(c), which allows a State entity to update the State 
plan as frequently as every 3 years, is confusing. We therefore are 
amending the language to require that a State plan be updated every 5 
years or more frequently as a State entity determines. The first State 
plan will be due 4 years after the implementation of this regulation, 
with each subsequent plan due at least every 5 years after that.
    We thank commenters for their clarifying suggestions and have 
incorporated them into the text of Sec.  1324.408(c).
    Comments: We received comment in support of our proposal to require 
APS State plans to contain assurances that APS systems will develop and 
adhere to policies and procedures as set forth in this regulation. A 
number of commenters requested information on what the consequences 
would be should an APS system fail to meet State plan assurances. A 
commenter stated that the submission of annual data is sufficient for 
demonstrating compliance with APS policies and procedures and a State 
plan is not necessary.
    Response: We appreciate these responses from commenters. We are 
requiring State entities to assure us that they have created and 
adhered to certain policies and procedures set forth in the rule. As 
stated previously, submission of a State plan satisfies HHS grant 
requirements under 45 CFR part 75. Failure to provide or adhere to such 
assurances in the State plan jeopardizes a State's eligibility for 
funding under Sec.  1324.400. Please see our discussion in the 
Background section of this rule for more information on compliance, 
technical assistance, and corrective action plans for States who need 
additional time to come into compliance. We decline to change the 
language of the regulation at Sec.  1324.408(d).
    Comments: Many commenters support Federal review of the State APS 
plans before their implementation. One commenter stated that the 
appeals process appears inflexible. Another commenter recommended that 
the rule contain a clearly defined timeline and process for correcting 
plans found to be defective upon review.
    Response: ACL believes that it is essential to issue a clearly 
defined appeals process to maintain the integrity of the plan review 
system. Therefore, we are maintaining the language of this section. 
However, we will be providing technical assistance to the States as 
they develop their plans and anticipate that most concerns will be 
resolved through technical assistance consultation and other guidance. 
For example, if a State submits a State plan that is found to be 
defective, ACL will work with the State on a corrective action plan to 
address deficiencies in a timely manner through a collaborative and 
flexible process.

IV. Required Regulatory Analyses

    Of the 172 public comments we received, nine State and four county 
APS programs submitted comments specifically regarding the Required 
Regulatory Analyses. These comments were taken into serious 
consideration when assessing the costs and benefits of the final rule. 
Other commenters offered broad commentary on our burden estimates. In 
the subsequent section, we summarize the comments received and provide 
our response, followed by an update to the original Regulatory Impact 
Analysis (RIA).
    Comment: ACL received several comments indicating concerns with 
implementation costs and administrative burden in implementing the 
final rule, as well as concerns regarding ongoing costs to monitor 
compliance with the final rule. Some commenters stated they anticipate 
increased costs associated with personnel issues, including the need to 
hire consultants and/or additional staff which may incur additional new 
employee onboarding and training costs. We received comments suggesting 
that changes will need to be made to State information technology 
systems. Some commenters asserted that ACL has greatly underestimated 
both the cost and the amount of time needed to come into compliance 
with the rule.
    Response: As noted above, ACL has made changes to the proposed 
rule's provisions based on the public comments we received. Among the 
revisions and clarifications are the following which reduce burden on 
and costs to the states:
     ACL added and clarified in Sec.  1324.401 that we have 
sought to minimize State burden by requiring only an assurance that a 
State's definitions as a whole meet the minimum standards of the 
regulatory definitions. States are not required to adopt each of the 
individual regulatory definitions exactly as written. We will defer to 
States' definitions as long as the concepts and elements set forth in 
the definitions in this is regulation are reflected in a State's 
definitions as a whole. This will alleviate perceived burden related to 
changes in State statute and policy as States will often not need to 
alter their statutory definitions to conform with those in Sec.  
1324.401.
     ACL modified proposed Sec.  1324.402(b) to clarify that 
APS programs may refer to emergency response systems, law enforcement, 
or another appropriate community resource (e.g., homeless outreach, 
veteran's affairs, services for victims of sexual assault) to meet the 
requirements of an in-person contact within 24 hours of APS screening 
and safety and risk assessment.
     We clarify in Sec.  1324.402(c) notice of rights does not 
require leaving a

[[Page 39521]]

brochure, but the notice could be provided verbally or through other 
means. The costs for printing a pamphlet were illustrative.
     We removed the requirement at proposed Sec.  
1324.402(d)(3) that State APS entities set staff-to-client ratios.
     We removed proposed Sec.  1324.403(e)(6) requiring APS 
systems to monitor the status of clients and the impact of services. 
Similarly, we removed proposed Sec.  1324.403(f)(3)(iii) that required 
APS programs assess the outcome and efficacy of intervention and 
services.
     ACL modified proposed Sec.  1324.405 (Accepting Reports) 
by removing Sec.  1324.405(b)(1)(ii) requiring APS to share with a 
mandated reporter the finding of an allegation in a report made by the 
mandated reporter. New Sec.  1324.405 adds a more limited requirement 
that a mandated reporter reporting in their professional capacity be 
notified upon their request, consistent with State privacy law, with 
the consent of client, and only requires the provision of procedural 
information (such as whether a case has been opened or closed as a 
result of their report).
     We have clarified Sec.  1324.406(b) requires that APS 
programs develop policies and procedures that allow for, but do not 
require, the implementation of information and data sharing agreements. 
Rather, policies and procedures must facilitate information exchanges, 
but States have flexibility in the approaches they use. States may 
enter into memoranda of understanding (MOU), data sharing agreements, 
or other less formal arrangements. Formal MOUs and data sharing 
agreements are not a requirement.
     We have clarified in Sec.  1324.408 that ACL's estimate of 
burden is based on the expectation that States, the District of 
Columbia, and Territories will review and update the existing 
operational plans developed as a requirement of receiving funding under 
the American Rescue Plan Act and not the creation of new State APS 
plans.
     We have extended the implementation timeframe from 3 years 
to 4 years to allow States more time and resources to come into full 
compliance with the regulation. Many of the costs associated with 
implementation of the regulation are ``one-time'' costs which can now 
be spread across an additional year. We have also clarified that if 
States need additional time to implement specific provisions beyond the 
4 year implementation timeframe, they can request additional time 
through a corrective action plan.
    Many of the burden and cost concerns raised by commenters appear 
rooted in misperceptions of the scope of the proposed regulations. In 
the final rule, we have clarified the appropriate scope of 
applicability and made revisions and clarifications that reduce burden, 
as outlined above. As a result, we retain the burden estimate as 
proposed with a few adjustments based on commenter feedback. While 
State APS programs will need to review and possibly update current 
practices, policies, and procedures to ensure they comply with the 
final rule, we note again that a majority of this rule conforms to 
longstanding APS practice. We also note that public comments that 
provided State-specific cost estimates to implement and administer the 
final rule did not clearly differentiate between costs attributable to 
the incremental costs of implementing the final rule and existing 
practice, which makes it difficult to incorporate this information in 
the final RIA. In addition, the final rule grants significant 
discretion to the State in how to implement many provisions.
    In consideration of comments related to the time required for 
implementation of the rule, we have decided to delay the compliance 
date of until 4 years after the date of publication. This should give 
all regulated entities sufficient time to come into compliance with 
these regulations. If State APS entities encounter challenges 
implementing specific provisions of the rule, they should engage with 
ACL for technical assistance and support. In addition, State APS 
entities that need additional time to comply with one or more 
provisions of the rule may submit a request to proceed under a 
corrective action plan. A request should include the reason the State 
needs additional time, the steps the State will take to reach full 
compliance, and how much additional time the State anticipates it will 
need to come into compliance. The corrective action plan process is 
intended to be highly collaborative and flexible. ACL will provide 
guidance on this process after this rule takes effect.

A. Regulatory Impact Analysis (Executive Orders 12866 and 13563)

1. Introduction
    We have examined the impacts of the final rule under Executive 
Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 
U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 
104-4).
    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, select regulatory approaches that maximize net 
benefits (including potential economic, environmental, public health 
and safety effects; distributive impacts; and equity). Executive Order 
13563 emphasizes the importance of quantifying costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility.
    Under Executive Order 12866, ``significant'' regulatory actions are 
subject to review by the Office of Management and Budget (OMB). As 
amended by Executive Order 14094 entitled ``Modernizing Regulatory 
Review'' section 3(f) of the Executive order defines a ``significant 
regulatory action'' as any regulatory action that is likely to result 
in a rule that may:
    (1) have an annual effect on the economy of $200 million or more 
(adjusted every 3 years by the Administrator of the Office of 
Information and Regulatory Affairs (OIRA) for changes in gross domestic 
product); or adversely affect in a material way the economy, a sector 
of the economy, productivity, competition, jobs, the environment, 
public health or safety, or State, local, Territorial, or Tribal 
governments or communities;
    (2) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) raise legal or policy issues for which centralized review would 
meaningfully further the President's priorities or the principles set 
forth in this Executive order, as specifically authorized in a timely 
manner by the Administrator of OIRA in each case.
    It has been determined that this rule is significant. Therefore, 
OMB has reviewed this rule.
    The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires 
us to prepare a written statement, which includes an assessment of 
anticipated costs and benefits, before finalizing ``any rule that 
includes any Federal mandate that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100,000,000 or more (adjusted annually for 
inflation) in any one year.'' The current threshold after adjustment 
for inflation is $183 million, using the most current (2023) Implicit 
Price Deflator for the Gross Domestic Product. This final rule would 
not result in impacts that exceed this threshold. Pursuant to Subtitle 
E of the Small Business Regulatory Enforcement Fairness Act of 1996 
(also known as the

[[Page 39522]]

Congressional Review Act, 5 U.S.C 801 et seq.) OIRA has determined that 
this rule does not meet the criteria set forth in 5 U.S.C. 804(2).
Summary of Costs and Benefits
    Compared to the baseline scenario wherein APS systems continue to 
operate under State law with no Federal regulation, we identify several 
impacts of this rule. We anticipate that the rule will: require the 
revision of State policies and procedures, require training on new 
rules for APS staff, require the submission of new State plans, require 
APS systems create a feedback loop to provide information to mandated 
reporters, require data reporting to ACL, inform potential APS clients 
of their APS-related rights under State law, and require new or updated 
record retention systems for certain States. We anticipate that the 
final rule will result in improved consistency in implementation of APS 
systems within and across States, clarity of obligations associated 
with Federal funding for administrators of APS systems, and better and 
more effective service delivery within and across States with better 
quality investigations in turn leading to more person-directed 
outcomes.
    This analysis describes costs associated with issuing APS 
regulations and quantifies several categories of costs to grantees 
(State entities) and sub-grantees (APS programs), collectively referred 
to as APS systems, and to ACL under the proposed rule. Specifically, we 
quantify costs associated with APS systems (1) revising policies and 
procedures, (2) conducting trainings on updates to policies and 
procedures, (3) implementing policies and procedures (3) reporting data 
to ACL (4) maintaining records retention system (5) developing State 
plans. The proposed effective date of this rule is for 4 years from the 
date of final publication. This is to allow for variation in the timing 
of State legislative sessions, in recognition of limited Federal 
funding, to allow States with more substantial changes increased time 
to come into compliance, and to better align with the Medicaid Access 
Rule's critical incident requirements. We anticipate that all States 
will have fully implemented the rule by its effective date and impacts 
will be measurable by that time. We conclude the final rule will result 
in a total State and Federal cost of $5,223,664.65 to fully implement.
    A detailed discussion of costs and benefits associated with the 
rule follows. The cost of this rule will be offset by improved APS 
investigation and services and better outcomes for the victims of adult 
maltreatment. This represents significant value, particularly given the 
widespread and egregious nature of adult maltreatment in the United 
States, which we explain in greater dept in our ``Discussion of 
Benefits.''
    The analysis also includes a discussion of the potential benefits 
under the rule that we do not quantify.
a. Costs of the Final Rule
1. Revising and Publishing Policies and Procedures
    This analysis anticipates that the rule would result in one-time 
costs to State entities and APS programs to revise policies and 
procedures. All APS systems currently maintain policies and procedures, 
often based on State statute. Findings from our National Process 
Evaluation Report of Adult Protective Services (OMB Control Number 
0985-0054) \52\ and State experiences incorporating concepts from the 
Consensus Guidelines underscore the importance of the final rule. The 
final rule establishes a minimum standard broadly reflective of current 
practice in many States and establishes a benchmark for consistent 
standards to be implemented uniformly across and within States, where 
we know variability exists in current practice. For example, while all 
States currently require a screening process for intake, there is no 
uniformity or standardization in this process across or within States 
and detailed documentation in policies and procedures (if present) 
varies widely. Therefore, in requiring standard policies and procedures 
for APS systems, ACL anticipates that all APS programs may create new 
or revise their current policies and procedures under the proposed 
rule; however, the level of revision will vary by State. There is 
currently no data on the total number of APS programs. Our estimates 
reflect our understanding of the structure of State APS systems and the 
assumption that there is one program per county in local-level systems, 
totaling 928 APS programs nationwide.\53\
---------------------------------------------------------------------------

    \52\ Supra Note 4.
    \53\ The structure and administration of APS in the United 
States is variable and we lack data on the number of local APS 
programs. Some States have a single entity that controls and 
administers the program, others have a State entity and local 
programs. There is a staffed APS office in every State government, 
the District of Columbia and three Territories which receives ACL 
grant funding. Fifteen States have local level APS programs, the 
others are State-administered and have a single APS entity for the 
entire State. We have used counties as a proxy for the 15 with local 
programs.
---------------------------------------------------------------------------

    We estimate that roughly twenty-five percent (25%) of these 
entities will require more extensive revisions, with the majority 
requiring limited revisions to their current policies and procedures. 
We estimate that programs with more extensive revisions will spend 
forty (40) total hours on revisions per entity. Of these, thirty-five 
(35) would be spent by a mid-level manager equivalent to a first-line 
supervisor (Occupation code 43-1011), at a cost of $30.70 unadjusted 
hourly wage, $61.40 per hour adjusted for non-wage benefits and 
indirect costs (35 x $61.40), while an average of five (5) hours would 
be spent by executive staff equivalent to a general and operations 
manager (Occupation code 11-1021), at a cost of $51.54 per hour 
unadjusted hourly wage, $103.08 per hour adjusted for non-wage benefits 
and indirect costs (5 x $103.08).\54\ For programs with less extensive 
revisions, we assume twenty-five (25) total hours spent on revisions 
per entity. Of these, twenty (20) hours would be spent by a mid-level 
manager equivalent to a first-line supervisor (Occupation code 43-
1011), at a cost of $30.70 per hour unadjusted hourly wage, $61.40 per 
hour adjusted for non-wage benefits and indirect costs (20 x $61.40), 
while an average of five (5) hours would be spent by executive staff 
equivalent to a general and operations manager (Occupation code 11-
1021), at a cost of $51.54 unadjusted hourly wage, $103.08 adjusted for 
non-wage benefits and indirect costs (5 x $103.08).
---------------------------------------------------------------------------

    \54\ Wages are derived from 2022 Department of Labor, Bureau of 
Labor and Statistics Data are multiplied by a factor of two for non-
wage benefits and indirect costs.
---------------------------------------------------------------------------

    We monetize the time that would be spent by APS programs on 
revising policies and procedures by estimating a total cost per entity 
of $2,664.40 or $1,743.40, depending on the extent of the revisions. 
For the approximately 696 programs with more extensive revisions, we 
estimate a cost of approximately $1,854,422.40. For the 232 programs 
with less extensive revisions, we estimate a cost of approximately 
$404,468.80. We estimate the total cost associated with revisions with 
respect to the final rule for APS systems of $2,258,891.20.
    The above estimates of time and number of State entities or APS 
programs that would revise their policies under the regulation are 
approximate estimates based on ACL's extensive experience working with 
APS systems, including providing technical assistance, and feedback and 
inquiries that we have received from State entities and APS programs.
    In addition to the revisions to the State policies and procedures, 
the final

[[Page 39523]]

rule requires each State to publish the policies and procedures related 
to this rule. We base the estimated burden of this requirement on the 
assumption that a State APS agency has the following administrative 
structure: a State APS office located within a larger state agency or 
division (such as a Division on Aging) under the umbrella of a State 
Department (such as Department of Human Services).
    After the policies and procedures have been developed, we estimate 
that a mid-level manager equivalent to a first-line supervisor 
(Occupation code 43-1011) will spend four (4) hours, at a cost of 
$30.70 unadjusted hourly wage, $61.40 per hour adjusted for non-wage 
benefits and indirect costs (4 x $61.40), to convert the policies and 
procedures documents into a simplified and plain language version for 
public release. We estimate that this version will require six (6) 
hours of review and approval by executive staff within the APS office 
and State agency, equivalent to a general and operations manager 
(Occupation code 11-1021), at a cost of $51.54 per hour unadjusted 
hourly wage, $103.08 per hour adjusted for non-wage benefits and 
indirect costs (6 x $103.08), and two (2) hours legal review by 
attorneys equivalent to a State government lawyer (Occupation code 23-
1011), at a cost of $49.71 per hour unadjusted hourly wage, $99.42 per 
hour adjusted for non-wage benefits and indirect costs (2 x $99.42).
    We estimate an additional eight (8) hours will be spent by 
executive staff within the umbrella Department to review and approve 
the policy document, equivalent to a general and operations manager 
(Occupation code 11-1021), at a cost of $51.54 per hour unadjusted 
hourly wage, $103.08 per hour adjusted for non-wage benefits and 
indirect costs (8 x $103.08), and four (4) hours legal review for 
compliance with State laws and provisions regarding publicly posting 
policy documents by attorneys equivalent to a State government lawyer 
(Occupation code 23-1011), at a cost of $49.71 per hour unadjusted 
hourly wage, $99.42 per hour adjusted for non-wage benefits and 
indirect costs (4 x $99.42).
    When the document has completed the review and approval process, it 
will need to be prepared for publication and posting. We estimate ten 
(10) hours will be spent to format the document for online posting, 
adding graphics and design, remediating any accessibility issues, 
equivalent to a state government desktop publisher (Occupation Code 43-
9031) at a cost of $29.42 per hour unadjusted hourly wage, $58.84 per 
hour adjusted for non-wage benefits and indirect costs (10 x $58.84), 
and three (3) hours will be spent creating the web page and posting the 
document, equivalent to a State government web developer (Occupation 
Code 15-1254) at a cost of $36.68 per hour unadjusted hourly wage, 
$73.36 per hour adjusted for non-wage benefits and indirect costs (3 x 
$73.36).
    We monetize the time that would be spent by APS programs to make 
their policies and procedures ready for public dissemination by 
estimating a total cost per entity of $3,093.72. As this applies to 
only the 56 APS systems, we estimate the total cost associated with 
making their policies and procedures publicly available with respect to 
the final rule to be $173,248.32.
    We estimate the total cost for revisions of policies and procedures 
as well as costs associated with making such policies and procedures 
available for public dissemination to be $2,432,139.52.
2. Trainings on New Requirements
    Cost to conduct trainings (ACL staff and contractors): ACL 
estimates that the Federal Government will incur a one-time expense 
with respect to training or re-training State entities under the final 
rule. Senior ACL staff will train State entities by the ten (10) HHS 
regions assisted by its technical assistance provider the APS Technical 
Assistance Resource Center (TARC). We assume for each of the ten (10) 
regions that trainings will take three (3) hours of staff time for one 
Federal GS-14 equivalent \55\ at a cost of $63.43 unadjusted hourly 
wage, $126.85 adjusted for non-wage benefits and indirect costs (3 x 
$126.85), three (3) hours of staff time for one GS-13 equivalent at a 
cost of $53.67 per unadjusted hourly wage, $107.35 per hour adjusted 
for non-wage benefits and indirect costs (3 x $107.35), and (3) and 
three hours of staff time for five (5) contractors equivalent to 
training and development managers (U.S. Department of Labor (DOL) 
Bureau of Labor Statistics (BLS) Occupation code 11-3131) at a cost of 
$63.51 per hour unadjusted for non-wage benefits, $127.02 per hour 
adjusted for non-wage benefits and indirect costs (3 x 5 x $127.02). 
This is inclusive of time to prepare and conduct the trainings.
---------------------------------------------------------------------------

    \55\ Salaries & Wages, U.S. Office of Personnel Management, 
https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2024/general-schedule (last visited Jan. 21, 2024); Represents 
adjusted Federal salary in DC-VA-MD area.
---------------------------------------------------------------------------

    We monetize the time spent by Federal employees and contractors to 
prepare and conduct trainings for State entities by estimating a total 
cost per regional training of $2,607.90. For ten trainings a total of 
$26,079.00.
    Cost to conduct training (State entity to local APS program): We 
further anticipate in each of the 15 local-level systems the State 
entity would incur a one-time expense to conduct a training on the new 
policies and procedures for the State's local APS programs. For each 
State entity to prepare and conduct a training (15 trainings total) we 
anticipate two (2) employees per State entity each equivalent to a 
first-line supervisor (BLS Occupation code 43-1011), would spend four 
(4) total hours (two (2) hours per employee) at a cost of $30.70 per 
hour unadjusted hourly wage, $61.40 per hour adjusting for non-wage 
benefits and indirect costs (4 x $61.40).
    We monetize the time spent by State entities to prepare and conduct 
trainings for local APS programs at $245.60 per training. For 15 State 
entities we anticipate a total of $3,684.00.
    Cost to conduct training (APS programs to APS workers): We 
anticipate each of the 928 local APS programs will incur a one-time 
expense to conduct a training for APS workers on new policies and 
procedures. For each program to prepare and conduct a training we 
anticipate nine (9) hours to prepare and conduct a training of one mid-
level manager equivalent to a first-line supervisor (BLS Occupation 
code 43-1011), at a cost of $30.70 per hour unadjusted hourly wage, 
$61.40 after adjusting for non-wage benefits and indirect costs (9 x 
$61.40). We monetize the time spent by each APS program to prepare and 
conduct trainings at $552.60. We monetize the time spent by APS 
programs to train their workers at $512,812.80 (928 x $552.60).
    Cost to receive training: There is no data on individual local APS 
program staffing. However, NAMRS does track an aggregate number of APS 
staff at the State and local level, from State supervisors to local APS 
workers: 8,287. We assume 5 percent of these workers are executive 
staff equivalent to a general and operations manager (BLS Occupation 
code 11-1021), at a cost of $51.54 unadjusted hourly wage, $103.08 per 
hour adjusted for non-wage benefits and indirect costs (414 x $103.08), 
15 precent are first-line supervisor (Occupation code 43-1011), at a 
cost of $30.70 per hour unadjusted hourly wage, $61.40 per hour 
adjusting for non-wage benefits and indirect costs (1,243 x $61.40) and 
80 percent are Social and Human Service Assistants (Occupation code 21-
1093) at a cost of $21.33 per hour unadjusted hourly wage, and $42.66 
adjusted for non-wage benefits and indirect costs. (6,629 x $42.66).

[[Page 39524]]

    We monetize the time spent by APS staff to receive a two-hour 
training as follows:
    Executive Staff: 414 staff x 2 hours @$103.08: $85,350.24
    Supervisory Staff: 1,243 staff x 2 hours @$61.40: $152,640.40
    Social and Human Services Assistants: 6,629 staff x 2 hours 
@$42.66: $565,586.28
    We estimate the total cost associated with the receipt of training 
under the final rule to be $803,576.92.
    We monetize the total amount of time spent to give and receive 
trainings at $1,316,389.72. Of this, $1,290,370.72 is State expense and 
$26,019.00 is Federal expense.
3. Implementing New Policies and Procedures
    The final rule requires several changes in APS practice which may 
represent a cost to States.
    Cost to implement a two-tiered, immediate vs. non immediate risk, 
response system: Forty-nine States currently have a two-tiered (or 
higher) system. Forty-nine States currently respond to immediate need 
intakes within 24 hours. After consulting former APS administrators, we 
have determined that we cannot fully quantify how much it would cost a 
State to develop and implement a new two-tiered system. However, given 
that most States currently already maintain such a system, and the 
clarification that APS programs may refer to emergency response 
systems, law enforcement, or another appropriate community resource 
(e.g., homeless outreach, veteran's affairs, services for victims of 
sexual assault) to meet the requirements of an in-person contact within 
24 hours, we anticipate it would be a very minor on-going cost in total 
above current baseline.
    Cost to implement a mandatory reporter feedback loop: According to 
the 2021 ACL Evaluation survey and NAMRS data, of all reports 
nationally which resulted in an investigation, 255,395 (59 percent) 
were made by professionals. For example, a home and community-based 
service provider or other social service provider would be considered a 
professional but may not be a mandated reporter. For this reason, we 
assume 75 percent of reports resulting in an investigation made by 
professionals were made by mandated reporters (191,546) reporting their 
processional capacity. Of these, we believe roughly one half (50%) 
would generate a response to the mandated reporter (95,773). For the 
other fifty percent, the reporter either would not request a response 
or the client would not consent to a reporter's request. One such 
response an APS program could make to a mandated reporter is to send an 
email. (We note however we are not requiring APS programs to send 
emails to mandated reporters reporting in their professional capacity 
who request a response. We leave the method of response to the 
discretion of APS systems). If for each report leading to an 
investigation received by a mandatory reporter where the reporter 
requests a response and the client consents, an APS program sends an 
email in response, we anticipate a Social and Human Service Assistants 
(Occupation code 21-1093) at a cost of $21.33 per hour unadjusted 
hourly wage, and $42.66 adjusted for non-wage benefits and indirect 
costs would spend ten (10) minutes sending the email ($42.66 / 0.6). We 
monetize the on-going cost for all 56 systems to send an email for each 
report of maltreatment from a mandatory reporter to be $680,946.03 
annually (95,773 x $7.11).
    81 percent APS programs do not currently require a feedback loop 
for mandatory reporters.\56\ To bring all States into compliance (.81 x 
$680,946.03) with the final rule will amount to $551,566.28 annually.
---------------------------------------------------------------------------

    \56\ See supra note 53.
---------------------------------------------------------------------------

    Cost to implement data sharing agreements: Anecdotally we know very 
few States currently have data sharing agreements with other 
maltreatment investigatory entities in place. We have estimated 50 APS 
systems currently have no data use agreements in place while six may 
have one or more. For illustrative purposes we assume each State 
without a data sharing agreement will establish three (3) formal MOUs 
(with, for example, the Medicaid agency, the Long-term care ombudsman, 
and the Protection and Advocacy System). Each formal MOU will take one 
mid-level manager equivalent to a first-line supervisor (Occupation 
code 43-1011), at a cost of $30.70 per hour unadjusted hourly wage, 
$61.40 after adjusting for non-wage benefits and indirect costs four 
(4) hours to draft (4 x $61.40). It will take a privacy officer 
equivalent to a lawyer (Occupation code 23-1011) at a cost of $49.71 
unadjusted hourly wage, $99.42 per hour adjusted for non-wage benefits 
and indirect costs three (3) hours to review and approve (3 x $99.42). 
It will take an executive staff equivalent to a general and operations 
manager (Occupation code 11-1021), at a cost of $51.54 unadjusted 
hourly wage, $103.08 per hour adjusted for non-wage benefits and 
indirect costs three (3) hours (3 x $103.08) to review and approve. We 
monetize the cost for one (1) State APS system to develop one (1) 
formal MOU to be $853.10. For a State APS system to establish three (3) 
formal MOUs, we monetize the cost to be $2,559.30. For fifty (50) State 
APS systems to develop one MOU, we monetize the cost to be $42,655.00 
We likewise assume that each of the three (3) entities the APS entity 
is entering into an MOU with will incur substantially similar costs. We 
monetize the expense of three (3) entities in fifty (50) states to 
enter into MOUs with the APS system in their State at $127,965.00. We 
monetize the one-time total cost of establishing data sharing 
agreements to be $255,930.00.
    Cost to inform adults of their APS-related rights under State law: 
We do not currently have data on the number of States informing adults 
of their APS-related rights under State law. We know anecdotally some 
States offer potential clients a paper brochure informing them of their 
rights. Thus while it is not a requirement that States provide 
potential clients a pamphlet, we use the example to illustrate a 
potential cost should States choose to provide a pamphlet (as opposed 
to verbally informing potential clients of their rights). We anticipate 
costs of producing and distributing such brochures to be one new 
pamphlet per State system or 56 pamphlets total. It will require four 
(4) hours of staff time by a Social and Human Service Assistants 
(Occupation code 21-1093) at a cost of $21.33 per hour unadjusted 
hourly wage, and $42.66 adjusted for non-wage benefits and indirect 
costs (4 x $42.66) and two (2) hours for a first-line supervisor 
(Occupation code 43-1011), at a cost of $30.70 per hour unadjusted 
hourly wage, $61.40 to review and approve (2 x $61.40) for a total of 
$293.44 per State in staff time to develop each pamphlet. We monetize 
the one-time staff cost for 56 State systems to develop a pamphlet (56 
x $293.44) at $16,432.64. According to our NAMRS data, 806,219 client 
investigations were performed in FFY 2022. Each pamphlet will cost 23 
cents to print and produce. Assuming a pamphlet is provided for every 
new client at the initiation of an investigation (806,219 x $0.23) it 
would cost $185,430.37 annually to produce and distribute pamphlets 
nationwide. In total, to develop a new pamphlet in all 56 States and 
distribute them at the beginning of all investigations would cost 
$201,863.01 in staff time and materials the first year the policy is in 
place. Subsequently, States would incur $185,430.37 in materials 
annually to implement this provision by distributing a pamphlet.

[[Page 39525]]

3. Data Reporting to ACL
    In our final regulations, we require States to collect and report 
specific data to ACL. As in our NAMRS data collection system, this data 
collection uses existing State administrative information systems. 
Therefore, States will incur very limited new data collection costs as 
the result of this rule. Most of the data collected are standard data 
used by the agency. Operating costs of the information systems are part 
of State agency operations and would not be maintained solely for the 
purpose of submitting data in compliance with the final rule.
    For data reporting from the State to ACL under the final 
regulation, we anticipate a similar system as NAMRS case component data 
currently reported voluntarily by States. We performed a burden 
estimate prior to launching this reporting system. We estimated for 35 
States staff cost would be a total annual burden of 675 hours at $46.00 
per hour (675 x $46.00) for a total of $31,050.00. IT staff total 
annual burden was estimated at 3,075 hours at $69.00 (3,075 x $69.00) 
per hour for a total of $212,175.00. Using this measure as a proxy, we 
estimate the final rule's data reporting requirements will cost a total 
of $389,160.00 annually for all 56 State entities.
4. Record Retention
    The rule imposes a new requirement that APS programs retain case 
data for 5 years. Many, but not all, programs currently retain case 
data for a number of years, but comprehensive information does not 
exist on State retention policies. We can extrapolate from data 
reporting in the NAMRS that most States retain case data for an average 
of 2 years.\57\ NAMRS is a comprehensive, voluntary, national reporting 
system for APS programs. It collects quantitative and qualitative data 
on APS practices and policies, and the outcomes of investigations into 
the maltreatment of older adults and adults with disabilities from 
every State and Territory. All but one State currently maintains an IT 
infrastructure that supports the retention of electronic APS data and 
maintains it for 1 year. For this reason, the cost to further store it 
for 5 years will create a de minimis cost for APS.
---------------------------------------------------------------------------

    \57\ The Admin. for Cmty. Living, Adult Maltreatment Report 2020 
(2021) https://acl.gov/sites/default/files/programs/2021-10/2020_NAMRS_Report_ADA-Final_Update2.pdf.
---------------------------------------------------------------------------

5. State Plans and NAMRS
    This will be the first time State entities are required to develop 
and submit State plans under Section 2042(b) of the EJA, 42 U.S.C. 
1397m-1(b). However, States develop operational and spending plans 
under 45 CFR 75.206(d) every three to 5 years, and we anticipate State 
plans will build upon existing these operational and spending plans. 
Based on this existing framework and our extensive experience working 
with APS systems and OAA grantees on their State plans, we anticipate 
for each State the equivalent of four (4) hour of executive staff 
equivalent to a general and operations manager (Occupation code 11-
1021), at a cost of $51.54 per hour unadjusted adjusted hourly wage, 
$103.08 adjusted for non-wage benefits and indirect costs (4 x 
$103.08), and eight (8) hours of a first-line supervisor (Occupation 
code 43-1011), at a cost of $30.70 per hour unadjusted hourly wage, 
$61.40 adjusting for non-wage benefits and indirect costs (8 x $61.40). 
State plans will be updated every three to 5 years. We monetize the 
cost of drafting one State plan at $903.52. We monetize 56 State plans 
at $50,597.12.
1. Total Quantified Costs
a. One-Time Costs

----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Item
----------------------------------------------------------------------------------------------------------------
Policies and Procedures Update and Publication....................                  $2,432,139.52
----------------------------------------------------------------------------------------------------------------
                                                                            State                 Federal
                                                                   ---------------------------------------------
Policies and Procedures Implementation: Training..................         $1,316,389.72             $26,019.00
                                                                   ---------------------------------------------
Policies and Procedures Implementation: Data Sharing Agreements...                   $255,930.00
Policies and Procedures: Informing Adults of Their APS-Related
 Rights Under State Law...........................................                   $16,432.64
                                                                   ---------------------------------------------
    Total.........................................................                  $4,046,910.88
----------------------------------------------------------------------------------------------------------------

b. Ongoing Costs (Annual)

------------------------------------------------------------------------
                 Item of cost
------------------------------------------------------------------------
Policies and Procedures Implementation: Two-   $0.
 Tiered Response System.
Policies and Procedures Implementation:        $551,566.28.
 Mandated Reporter Feedback Loop.
Policies and Procedures Implementation:        $185,430.37.
 Informing Adults of Their APS-Related Rights
 Under State Law.
Data reporting to ACL........................  $389,160.00.
Record Retention.............................  $0.
State plan...................................  $50,597.12 (renewed every
                                                3 to 5 years).
                                              --------------------------
    Total....................................  $1,176,753.77.
------------------------------------------------------------------------

d. Discussion of Benefits
    Older adults who experience maltreatment are three times more 
likely to experience adverse consequences to health, living 
arrangements, or financial arrangements than their counterparts who do 
not experience maltreatment.\58\ According to 2022 NAMRS data, four 
percent or approximately 36,000 APS clients died during the course of 
an APS investigation. According to the Consumer Financial Protection 
Bureau, financial institutions reported $1.7 billion in in losses due 
to elder financial

[[Page 39526]]

abuse in 2017.\59\ However, in 2016 three States projected the cost 
could be over $1 billion in their State alone.\60\
---------------------------------------------------------------------------

    \58\ M.S. Lachs et al. The Mortality of Elder Mistreatment, 
280(5) JAMA 428-432 (Aug. 1998) https://pubmed.ncbi.nlm.nih.gov/9701077/.
    \59\ U.S. Consumer. Fin. Protection. Bur., Suspicious Activity 
Reports on Elder Financial Exploitation: Issues and Trends (2019); 
https://www.gao.gov/assets/gao-21-90.pdf.
    \60\ U.S. Gen. Acct. Off., GAO-21-90, HHS Could Do More to 
Encourage State Reporting on the Costs of Financial Exploitation 
(2020) https://www.gao.gov/assets/gao-21-90.pdf.
---------------------------------------------------------------------------

    While this final rule does not directly affect the underlying 
causes of maltreatment, which are complex and multifactorial, it does 
establish a national baseline of quality in APS practice to intervene 
in maltreatment as it is occurring, as well as to reduce its long-term 
effects. We anticipate that improvements in overall quality of practice 
could significantly reduce the number of losses and deaths that may 
occur during the course of an APS investigation. Earlier and better 
intervention by APS stands to reduce unnecessary health care costs, 
decrease financial losses due to elder financial abuse, maintain living 
arrangements in the least restrictive alternative possible, and promote 
the highest quality of life for older adults and adults with 
disabilities. Improved case interventions impact not only the older 
adult and adults with disabilities, but also their families who often 
assume the costs and losses of maltreatment that an older adult or an 
adult with disabilities experiences.
    Generally speaking, the benefits of the rule are difficult to 
quantify. The minimum standards proposed by the NPRM were in direct 
response to requests from APS systems for more guidance and uniformity 
in policy within and among States. We anticipate that when implemented, 
the rule will elevate evidence-informed practices, bring clarity and 
consistency to programs, and improve the quality of service delivery 
for adult maltreatment victims and potential victims. For example, if 
all States implemented 24/7 reporting acceptance protocols, an adult 
experiencing maltreatment may be identified earlier, and an 
investigation could commence and intervene sooner. Earlier intervention 
could lead to better case outcomes, including earlier access to 
resources. Training requirements allow caseworkers to better handle and 
resolve cases. Greater skills and knowledge may also decrease repeat 
abuse through more appropriate investigation and response services.
    Similarly, requirements related to APS coordination with other 
entities maximize the resources of APS systems, improve investigation 
capacity, ensure post-investigation services are effective, reduce the 
imposition of multiple investigations on adults who have been harmed, 
and help prevent future maltreatment. Furthermore, coordination with 
other entities promotes greater flexibility in case investigation, 
intervention, and response.
    Another example of a difficult to quantify benefit is a 
standardized timeframe for case record retention. Currently, there are 
no minimum requirements for States to retain their records. The final 
rule's 5-year minimum retention period facilitates States' ability to 
track victims and perpetrators across time to deter abuse and identify 
recidivism while minimizing administrative burden. In the case of both 
victims and perpetrators, a better understanding of patterns and trends 
will help APS staff target interventions that are more appropriate to 
the presenting case, as well as decrease the recurrence of victim 
maltreatment.
    The final rule was informed by expert-developed evidence-informed 
practices as articulated in our Consensus Guidelines. These evidence-
informed practices, when implemented, will result in higher quality 
investigations, thus allowing APS to identify perpetrators and risk 
factors of adult maltreatment with greater frequency and accuracy, and, 
in turn, protecting the health and wellbeing of older adults and adults 
with disabilities.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) (5 U.S.C. 601 et 
seq.), agencies must consider the impact of regulations on small 
entities and analyze regulatory options that would minimize a rule's 
impacts on these entities. The 2023 NPRM noted that ACL ``examined the 
economic implications of the proposed rule and find that if finalized, 
it will not have a significant economic impact on a substantial number 
of small entities.'' \61\ Public comments raised issues with the cost 
estimates, discussed and addressed elsewhere in preamble and regulatory 
impact analysis; however, public comments did not take issue with ACL's 
certification of the proposed rule or raise issues that would cause ACL 
to not certify the final rule.
---------------------------------------------------------------------------

    \61\ 88 FR 62517.
---------------------------------------------------------------------------

    Alternatively, the agency head may certify that the rule will not 
have a significant economic impact on a substantial number of small 
entities. This analysis concludes, and ACL certifies, that this rule 
will not have a significant economic impact on a substantial number of 
small businesses.
    APS is a State-based social services program controlled centrally 
by a State office. Thirty-nine APS systems are State-administered, 
meaning State staff operate programs out of locally placed State 
offices.\62\ Fifteen States are county-administered and controlled or a 
hybrid of State and county-administered and controlled. In county-
administered systems, the State entity grants funding to local 
entities, including counties and non-profits, but does not perform 
investigatory functions. In hybrid systems, the State maintains a more 
active oversight and investigatory role, but delegates to local 
entities. Nationally, State employees perform 70 percent of APS 
investigations. County and non-profit employees perform the 
remainder.\63\
---------------------------------------------------------------------------

    \62\ The Northern Mariana Islands and American Samoa currently 
have no staffed program; they are in the process of developing one.
    \63\ See supra note 4, at 20.
---------------------------------------------------------------------------

    In State-administered systems, no small entities are implicated. 
State government employees and offices are not small entities as 
defined by 5 U.S.C. 601. In the 15 county and hybrid administered 
systems, there are 459 counties of less than 50,000 people.\64\ The 
administrative structure of APS is complex, and data is incomplete. 
However, for illustrative purposes we assume that in these 459 counties 
there is one APS program that is a small entity under 5 U.S.C. 601, 
either a small government jurisdiction or non-profit. For the purposes 
of this analysis, we assume these entities would fall under NAICS code 
624120, Services for the Elderly and Persons with Disabilities.
---------------------------------------------------------------------------

    \64\ We have made our calculations based on 2022 Census Bureau 
Data.
---------------------------------------------------------------------------

    Much of the cost of implementation will be borne by State entities 
in both State-administered and county and hybrid-administered States. 
In both such systems, the State entity exercises significant control; 
the State entity receives and distributes Federal funding and is 
responsible for revising policies and procedures, training local 
entities, and reporting data to ACL. We monetize the average cost per 
State APS system to be $93,279.72. As an example, Colorado has an 
estimated 48 counties under 50,000 people. Assuming the State entity 
absorbs the 25 percent of the cost of implementation, each entity will 
incur $1,457.49 in implementation expenses per year. Much of this will 
be a one-time expense. North Carolina has ten counties under 50,000 
people. On average, assuming the State entity absorbs 25 percent of the 
cost burden of

[[Page 39527]]

the rule, each small entity will incur $2,798.39 in expense per year, 
the majority of this representing a one-time expense.
    Furthermore, many small entities may already be in compliance with 
significant portions of these proposed regulations whether as written 
in policies and procedures or as informal practice.
    Consequently, we have examined the economic implications of the 
final rule and find that it will not have a significant economic impact 
on a substantial number of small entities.

C. Executive Order 13132 (Federalism)

    Executive Order 13132 requires Federal agencies to consider the 
impact of their regulatory actions on State and local governments. 
Where such actions have federalism implications, agencies are directed 
to provide a statement describing the agency's considerations. Policies 
that have federalism implications include regulations that have 
``substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.''
    The final rule requires State APS systems to implement policies and 
procedures reflecting evidence-based practices. Receipt of Federal 
funding for APS systems under the EJA Sec. 2042(b), 42 U.S.C. 1397m-
1(b) is contingent upon compliance with this rule. Many States are 
already in substantial compliance with this rule; however, some may 
need to revise or update their current APS policies, develop new 
policies or, in some cases, pass new laws or amend existing State 
statutes.
Consultations With State and Local Officials
    Executive Order 13132 requires meaningful and timely input by State 
and local officials in the development of regulatory policies that have 
federalism implications. As detailed in the preamble, the final 
regulations closely mirror the 2020 Voluntary Consensus Guidelines for 
State Adult Protective Services Systems (Consensus Guidelines). All 
specific mandates (for example, day and time requirements for case 
response) contained in the proposed regulation reflect the Consensus 
Guidelines.
    The Consensus Guidelines were developed with extensive input from 
the APS community, including State and local officials. Interested 
parties were invited to provide feedback for the proposed updates to 
the Consensus Guidelines through a public comment period and five 
webinars. A Request for Information was posted on ACL's website and the 
comment period ran from March until May 2019. Five webinars were held 
during April and May 2019 hosting approximately 190 participants, 
representing 39 States and the District of Columbia. Participants 
represented ten fields, with most participants representing the APS 
network (66 percent). The vast majority of these APS programs are 
administered and staffed by State and local government entities.
    The goals of the outreach and engagement process were to hear from 
all interested entities, including State and local officials, the 
public, and professional fields about their experiences with APS. The 
engagement process ensured affected parties understood why and how ACL 
was leading the development of the Consensus Guidelines and provided an 
opportunity to give input into the process and content of the Consensus 
Guidelines. ACL also reviewed comments on the proposed rule from State 
and local officials and considered any additional concerns in 
developing the final rule.
Nature of Concerns and the Need to Issue This Rule
    Community members welcomed the Consensus Guidelines and were 
generally in support of the process by which they were created and 
updated as well as the substantive content, noting that they ``help set 
the standard and support future planning and State legislative 
advocacy.'' \65\
---------------------------------------------------------------------------

    \65\ Report on the Updates to the Voluntary Consensus Guidelines 
for APS Systems, Appendix 3: 19, https://acl.gov/sites/default/files/programs/2020-05/ACL-Appendix_3.fin_508.pdf.
---------------------------------------------------------------------------

    We received comments that the Consensus Guidelines were 
``aspirational'' and would be challenging to implement absent 
additional funding. We seriously considered these views in developing 
this rule. We also completed a regulatory impact analysis to fully 
assess costs and benefits of the new requirements. We recognize that 
some of the new proposed regulatory provisions will create 
administrative and monetary burden in updating policies and procedures, 
as well as potential changes to State law. However, much of this burden 
will be a one-time expense and States will have significant discretion 
to implement the provisions in the manner best suited to State needs.
Extent To Which We Meet Those Concerns
    In FY 2021, in response to the COVID-19 pandemic, Congress provided 
the first dedicated appropriation to implement the EJA section 2042(b), 
42 U.S.C. 1397m-1(b), one-time funding for formula grants to all 
States, the District of Columbia, and the Territories to enhance APS, 
totaling $188 million, and another $188 million in FY 2022. The recent 
Consolidated Appropriations Act of 2023 included the first ongoing 
annual appropriation of $15 million to ACL to continue providing 
formula grants to APS programs under EJA section 2042(b), 42 U.S.C. 
1397m-1(b). This funding is available to States for the implementation 
of the regulation and meets the concerns commenters raised in 2019 
around dedicated funding for APS systems. Additionally, the regulatory 
changes have already been implemented by many States, and we believe 
the benefit of the requirements will be significant.

D. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    ACL will fulfill its responsibilities under Executive Order 13175, 
``Consultation and Coordination with Indian Tribal Governments.'' 
Executive Order 13175 requires Federal agencies to establish procedures 
for meaningful consultation and coordination with Tribal officials in 
the development of Federal policies that have Tribal implications. ACL 
solicited input from affected Federally recognized Tribes on October 
12, 2023.

E. Plain Language in Government Writing

    Pursuant to Executive Order 13563 of January 18, 2011, and 
Executive Order 12866 of September 30, 1993, Executive Departments and 
Agencies are directed to use plain language in all proposed and final 
rules. ACL believes it has used plain language in drafting the proposed 
and final rule.

F. Paperwork Reduction Act (PRA)

    The final rule contains new information collection requirements 
under 5 CFR part 1320. These new burdens include: new State plans, new 
program performance data collection and reporting, a requirement that 
States generate, maintain, and retain written policies and procedures, 
a requirement that State APS systems disclose information to clients 
regarding their APS-related rights under State law, and a requirement 
that States generate, maintain, and retain information and

[[Page 39528]]

data sharing agreements (while also disclosing data through such 
agreements).
    As detailed in the regulatory impact analysis, we estimate the 
following total burden across all States and Territories for such 
requirements:
    (1) State plans: $50,597.12 (renewed every 3 to 5 years);
    (2) Program performance data collection: $389,160.00 (annually);
    (3) Creation and publication of written policies and procedures: 
$2,432,139.52 (one-time expense);
    (4) Disclosure to potential clients their APS-related rights under 
State law: $201,863.01 ($16,432.64 in one-time expense and $185,430.37 
annually);
    (5) Creation and maintenance of data sharing agreements: 
$255,930.00 (one-time expense).
    ACL will submit information to the OMB for review, as appropriate. 
The State plans, program performance data, written policies and 
procedures, disclosure to potential clients of their APS-related rights 
under State law, and the creation and maintenance of data sharing 
agreements will be submitted for approval as part of a generic 
clearance package for information collections related to ACL 
Administration on Aging programs. ACL intends to update applicable 
guidance as needed.

List of Subjects in 45 CFR Part 1324

    Adult protective services, Elder rights, Grant programs to States, 
Older adults.

    For the reasons discussed in the preamble, ACL amends 45 CFR part 
1324 as follows:

PART 1324--ALLOTMENTS FOR VULNERABLE ELDER RIGHTS PROTECTION 
ACTIVITIES

0
1. The authority for part 1324 is revised to read as follows:

    Authority: 2 U.S.C. 3001 et seq and 42 U.S.C. 1394m


0
2. Add subpart D to part 1324 to read as follows:

Subpart D--Adult Protective Services Programs

Sec.
1324.400 Eligibility for funding.
1324.401 Definitions.
1324.402 Program administration.
1324.403 APS response.
1324.404 Conflict of interest.
1324.405 Accepting reports.
1324.406 Coordination with other entities.
1324.407 APS program performance.
1324.408 State plans.

    Authority: 42 U.S.C. 3011(e)(3); 42 U.S.C. 1397m-1.


Sec.  1324.400  Eligibility for funding.

    State entities are required to adhere to all provisions contained 
herein to be eligible for funding under 42 U.S.C. 1397m-1(b).


Sec.  1324.401  Definitions.

    As used in this part, 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.
    Adult means older adults and adults with disabilities as defined by 
State APS laws.
    Adult maltreatment means the abuse, neglect, financial 
exploitation, or sexual abuse of an adult at-risk of harm.
    Adult Protective Services (APS) means such activities and services 
the Assistant Secretary for Aging may specify in guidance and includes:
    (1) Receiving reports of adult abuse, neglect, financial 
exploitation, sexual abuse, and/or self-neglect;
    (2) Investigating the reports described in paragraph (1) of this 
definition;
    (3) Case planning, monitoring, evaluation, and other case work and 
services, and;
    (4) Providing, arranging for, or facilitating the provision of 
medical, social services, economic, legal, housing, law enforcement, or 
other protective, emergency, or supportive services.
    Adult Protective Services Program means local Adult Protective 
Services providers within an Adult Protective Services system.
    Adult Protective Services Systems means the totality of the State 
entities and the local APS programs.
    Allegation means an accusation of adult maltreatment and/or self-
neglect about each adult in a report made to APS.
    At risk of harm means the strong likelihood that an adult will 
imminently experience an event, condition, injury, or other outcome 
that is adverse or detrimental.
    Assistant Secretary for Aging means the position identified in 
section 201(a) of the Older Americans Act (OAA), 42 U.S.C. 3002(7).
    Case means all activities related to an APS investigation of, and 
response to, an allegation of adult maltreatment and/or self-neglect.
    Client means an adult who is the subject of an APS response 
regarding a report of alleged adult maltreatment and/or self-neglect.
    Conflict of interest means a situation that interferes with a 
program or program employee or representative's ability to provide 
objective information or act in the best interests of the adult.
    Dual relationship means a relationship in which an APS worker 
assumes one or more professional, personal, or volunteer roles in 
addition to their role as an APS worker at the same time, or 
sequentially, with a client.
    Emergency Protective Action means immediate access to petition the 
court for temporary or emergency orders or emergency out-of-home 
placement.
    Financial exploitation means the fraudulent or otherwise illegal, 
unauthorized, or improper act or process of a person, including a 
caregiver or fiduciary, that uses the resources of an adult for 
monetary or personal benefit, profit, or gain, or that results in 
depriving an adult of rightful access to, or use of, their benefits, 
resources, belongings, or assets.
    Finding means the decision made by APS after investigation that 
evidence is or is not sufficient under State law to determine adult 
maltreatment and/or self-neglect has occurred.
    Intake or Pre-Screening means the APS process of receiving 
allegations of adult maltreatment or self-neglect and gathering 
information on the reports, the alleged victim, and the alleged 
perpetrator.
    Investigation means the process by which APS examines and gathers 
information about a possible allegation of adult maltreatment and/or 
self-neglect to determine if the circumstances of the allegation meet 
the State's standards of evidence for a finding.
    Mandated reporter means someone who works with an adult in the 
course of their professional duties and who is required by State law to 
report suspected adult maltreatment or self-neglect to APS.
    Neglect means the failure of a caregiver or fiduciary to provide 
the goods or services that are necessary to maintain the health and/or 
safety of an adult.
    Perpetrator means the person determined by APS to be responsible 
for one or more instances of adult maltreatment.
    Quality assurance means the process by which APS programs ensure 
investigations meet or exceed established standards, and includes:
    (1) Thorough documentation of all investigation and case management 
activities;
    (2) Review and approval of case closure; and
    (3) Conducting a case review process.
    Report means a formal account or statement made to APS regarding an 
allegation or multiple allegations of

[[Page 39529]]

adult maltreatment and/or self-neglect and the relevant circumstances 
concerning the allegation or allegations.
    Response means the range of actions and activities undertaken as 
the result of a report received by APS.
    Screening means a process whereby APS carefully reviews the intake 
information to determine if the report of adult maltreatment meets the 
minimum requirements to be opened for investigation by APS, or if the 
report should be referred to a service or program other than APS.
    Self-neglect means a serious risk of imminent harm to oneself or 
other created by an adult's inability, due to a physical or mental 
impairment or diminished capacity, to perform essential self-care 
tasks, including at least one of the following:
    (1) Obtaining essential food, clothing, shelter, and medical care;
    (2) Obtaining goods and services necessary to maintain physical 
health, mental health, or general safety; or,
    (3) Managing one's own financial affairs.
    Sexual abuse means the non-consensual sexual interaction (touching 
and non-touching acts) of any kind with an adult.
    State entity means the unit or units of State, District of 
Columbia, or U.S. Territorial government designated as responsible for 
APS programs, including through the establishment and enforcement of 
policies and procedures, and that receive(s) Federal grant funding 
under section 2042(b) of the EJA, 42 U.S.C. 1397m-1(b).
    Victim means an adult who has experienced adult maltreatment.


Sec.  1324.402  Program administration.

    (a) The State entity shall establish definitions for APS systems 
that:
    (1) Define the populations eligible for APS;
    (2) Define the specific elements of adult maltreatment and self-
neglect that render an adult eligible for APS;
    (3) Define the alleged perpetrators who are subject to APS 
investigations in the State; and
    (4) Define the settings and locations in which adults may 
experience adult maltreatment and self-neglect and be eligible for APS 
in the State.
    (5) State entities are not required to uniformly adopt the 
regulatory definitions in Sec.  1324.401, but State definitions may not 
narrow the scope of adults eligible for APS or services provided.
    (b) The State entity shall create, publish, and implement policies 
and procedures for APS systems to receive and respond to reports of 
adult maltreatment and self-neglect in a standardized fashion. Such 
policies and procedures, at a minimum, shall:
    (1) Incorporate principles of person-directed services and planning 
and reliance upon least restrictive alternatives; and
    (2) Define processes for receiving, screening, prioritizing, and 
referring cases based on risk and type of adult maltreatment and self-
neglect consistent with Sec.  1324.403, including:
    (i) Creation of at least a two-tiered response system for initial 
contact with the alleged victim based on immediate risk of death, 
irreparable harm, or significant loss of income, assets, or resources.
    (A) For immediate risk, the response should occur in person and no 
later than 24-four hours after receiving a report of adult maltreatment 
and/or self-neglect.
    (B) For non-immediate risk, response should occur no more than 7 
calendar days after receiving a report of adult maltreatment and/or 
self-neglect.
    (c) Upon first contact, APS systems shall provide to potential APS 
clients an explanation of their APS-related rights to the extent they 
exist under State law, including:
    (1) The right to confidentiality of personal information;
    (2) The right to refuse to speak to APS; and
    (3) The right to refuse APS services;
    (d) Information shall be provided in a format and language 
understandable by the adult, and in alternative formats as needed.
    (e) The State entity shall establish policies and procedures for 
the staffing of APS systems that include:
    (1) Staff training and on-going education, including training on 
conflicts of interest; and
    (2) Staff supervision.


Sec.  1324.403  APS response.

    The State entity shall adopt standardized and systematic policies 
and procedures for APS response across and within the State including, 
at a minimum:
    (a) Screening, triaging, and decision-making criteria or protocols 
to review and assign adult maltreatment and self-neglect reports for 
APS investigation and/or to report to other authorities;
    (b) Tools and/or decision-making processes for APS to review 
reports of adult maltreatment and self-neglect for any emergency needs 
of the adult and for immediate safety and risk factors affecting the 
adult or APS worker when responding to the report and;
    (c) Practices during investigations to collect information and 
evidence to support findings on allegations, and service planning that 
will:
    (1) Recognize that acceptance of APS services is voluntary, except 
where mandated by State law;
    (2) Ensure the safety of APS client and worker;
    (3) Ensure the preservation of a client's rights;
    (4) Integrate principles of person-directedness and trauma-informed 
approaches;
    (5) Maximize engagement with the APS client, and;
    (6) Permit APS the emergency use of APS funds to buy goods and 
services;
    (7) Permit APS to seek emergency protective action only as 
appropriate and necessary as a measure of last resort to protect the 
life and safety of the client.
    (d) Methods to make findings on allegations and record case 
findings, including:
    (1) Ability for APS programs to consult with appropriate experts, 
other team members, and supervisors;
    (2) Protocols for the standards of evidence APS should apply when 
making a finding on allegations.
    (e) Provision of and/or referral to services, as appropriate, that:
    (1) Respect the autonomy and authority of clients to make their own 
life choices;
    (2) Respect the client's views about safety, quality of life, and 
success;
    (3) Develop any service plan or referrals in consultation with the 
client;
    (4) Engage community partners through referrals for services or 
purchase of services where services are not directly provided by APS, 
and;
    (f) Case handling criteria that:
    (1) Establish timeframes for on-going review of open cases;
    (2) Establish a reasonable length of time by which investigations 
should be completed and findings be made; and
    (3) Document, at a minimum:
    (i) The APS response;
    (ii) Significant changes in client status;
    (iii) Assessment of safety and risk at case closure; and
    (iv) The reason to close the case.


Sec.  1324.404  Conflict of interest.

    The State entity shall establish standardized policies and 
procedures to avoid both actual and perceived conflicts of interest for 
APS. Such policies and procedures must include mechanisms to identify, 
remove, and remedy any actual or perceived conflicts of interest at 
organizational and individual levels, including to:
    (a) Ensure that employees and individuals administering or

[[Page 39530]]

representing APS programs, and members of an employee or individual's 
immediate family or household, do not have a conflict of interest;
    (b) Ensure that employees and individuals administering or 
representing APS programs. and members of an employee or individual's 
immediate family or household, do not have a personal financial 
interest in an entity to which an APS program may refer adults for 
services;
    (c) Establish monitoring and oversight procedures to identify 
conflicts of interest; and
    (d) Prohibit avoidable dual relationships and ensure that 
appropriate safeguards are established should a dual relationship be 
unavoidable;
    (1) In the case of an APS program petitioning for or serving as 
guardian, it is an unavoidable dual relationship only if all less 
restrictive alternatives to guardianship have been considered and 
either:
    (i) A Court has instructed the APS program to petition for or serve 
as guardian; or
    (ii) There is no other qualified individual or entity available to 
petition for or serve as guardian;
    (2) For all dual relationships, the APS program must document the 
dual relationship in the case record and describe the mitigation 
strategies it will take to address the conflict of interest.


Sec.  1324.405  Accepting reports.

    (a) The State entity shall establish standardized policies and 
procedures for receiving reports of adult maltreatment and self-neglect 
24 hours per day, 7 calendar days per week, using multiple methods of 
reporting, including at least one online method, to ensure 
accessibility.
    (b) The State entity shall establish standardized policies and 
procedures for APS to accept reports of alleged adult maltreatment and 
self-neglect by mandated reporters as defined in Sec.  1324.401 that:
    (1) Share with the mandated reporter who made such report to APS 
whether a case has been opened as a result of the report at the request 
of the mandated reporter; and
    (2) Obtain the consent of the adult to share such information prior 
to its release.
    (c) The State entity shall comply with all applicable State and 
Federal confidentiality laws and establish and adhere to standardized 
policies and procedures to maintain the confidentiality of adults, 
reporters, and information provided in a report.


Sec.  1324.406  Coordination with other entities.

    (a) State entities shall establish policies and procedures, 
consistent with State law, to ensure coordination and to detect, 
prevent, address, and remedy adult maltreatment and self-neglect with 
other appropriate entities, including but not limited to:
    (1) Other APS programs in the State, including Tribal APS programs, 
when authority over APS is divided between different jurisdictions or 
agencies;
    (2) Other governmental agencies that investigate allegations of 
adult maltreatment, including, but not limited to:
    (i) The State Medicaid agency, for the purposes of coordination 
with respect to critical incidents and other issues;
    (ii) State nursing home licensing and certification;
    (iii) State department of health and licensing and certification; 
and
    (iv) Tribal governments;
    (3) Law enforcement agencies with jurisdiction to investigate 
suspected crimes related to adult maltreatment: State or local police 
agencies, Tribal law enforcement, State Medicaid Fraud Control Units, 
State securities and financial regulators, Federal financial and 
securities enforcement agencies, and Federal law enforcement agencies;
    (4) Organizations with authority to advocate on behalf of adults 
who experience alleged adult maltreatment, such as the State Long-Term 
Care Ombudsman Program, and/or investigate allegations of adult 
maltreatment, such as the Protection and Advocacy Systems;
    (5) Emergency management systems, and;
    (6) Banking and financial institutions.
    (b) Policies and procedures must:
    (1) Address coordination and collaboration to detect, prevent, 
address, and remedy adult maltreatment and self-neglect during all 
stages of a response conducted by APS or by other agencies and 
organizations with authority and jurisdiction to respond to reports of 
adult maltreatment and/or self-neglect;
    (2) Address information sharing on the status and resolution of 
response between the APS system and other entities responsible in the 
State or other jurisdiction for response, to the extent permissible 
under applicable State law;
    (3) Facilitate information exchanges, quality assurance activities, 
cross-training, development of formal multidisciplinary and cross 
agency teams, co-location of staff within appropriate agencies through 
memoranda of understanding, data sharing agreements, or other less 
formal arrangements; and
    (4) Address other activities as determined by the State entity.


Sec.  1324.407  APS program performance.

    The State entity shall develop policies and procedures for the 
collection and maintenance of data on APS system response. The State 
entity shall:
    (a) Collect and report annually to ACL such APS system-wide data as 
required by the Assistant Secretary for Aging; and
    (b) Develop policies and procedures to ensure that the APS system 
retains individual case data obtained from APS investigations for a 
minimum of 5 years.


Sec.  1324.408  State plans.

    (a) State entities must develop and submit to the Director of the 
Office of Elder Justice and Adult Protective Services, the position 
designated by 42 U.S.C. 3011(e)(1), a State APS plan that meets the 
requirements set forth by the Assistant Secretary for Aging.
    (b) The State plan shall be developed by the State entity receiving 
the Federal award under 42 U.S.C 1397m-1 in collaboration with APS 
programs and other State APS entities, if applicable.(c) The State plan 
shall be updated at least every 5 years but may be updated more 
frequently as determined by the State entity.
    (d) The State plan shall contain an assurance that all policies and 
procedures required herein will be developed and adhered to by the 
State APS system.
    (e) State plans will be reviewed and approved by the Director of 
the Office of Elder Justice and Adult Protective Services. Any State 
dissatisfied with the final decision of the Director of the Office of 
Elder Justice and Adult Protective Services may appeal to the Deputy 
Assistant Secretary for Aging not later than 30 calendar days after the 
date of the Director of the Office of Elder Justice and Adult 
Protective Services' final decision and will be afforded the 
opportunity for a hearing before the Deputy Assistant Secretary. If the 
State is dissatisfied with the final decision of the Deputy Assistant 
Secretary for Aging, it may appeal to the Assistant Secretary for Aging 
not later than 30 calendar days after the date of the Deputy Assistant 
Secretary for Aging's decision.

    Dated: April 8, 2024.
Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2024-07654 Filed 5-7-24; 8:45 am]
BILLING CODE 4154-01-P