Proposed Rule2023-19516
Adult Protective Services Functions and Grant Programs
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Published
September 12, 2023
Issuing agencies
Health and Human Services DepartmentCommunity Living Administration
Abstract
The Administration for Community Living (ACL) within the Department of Health and Human Services ("the Department" or HHS) is issuing this Notice of Proposed Rulemaking (NPRM) 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).
Full Text
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<title>Federal Register, Volume 88 Issue 175 (Tuesday, September 12, 2023)</title>
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[Federal Register Volume 88, Number 175 (Tuesday, September 12, 2023)]
[Proposed Rules]
[Pages 62503-62522]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-19516]
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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 Grant Programs
AGENCY: Administration for Community Living (ACL), Department of Health
and Human Services (HHS).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Administration for Community Living (ACL) within the
Department of Health and Human Services (``the Department'' or HHS) is
issuing this Notice of Proposed Rulemaking (NPRM) 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: To be assured consideration, comments must be received no later
than November 13, 2023.
ADDRESSES: You may submit comments, including mass comment submissions,
to this proposed rule, identified by RIN Number 0985-AA18, by any of
the following methods:
<bullet> Electronically. You may submit electronic comments on this
regulation to <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the ``Submit a
comment'' instructions.
<bullet> Regular, Express, or Overnight Mail: You may mail written
comments to the following address: Administration on Aging,
Administration for Community Living, Department of Health and Human
Services, Attention: Stephanie Whittier Eliason, 330 C Street SW,
Washington, DC 20201.
Do not include any personally identifiable information (such as
name, address, or other contact information) or confidential business
information that you do not want publicly disclosed. All comments may
be posted without change to content to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and
can be retrieved by most internet search engines. No deletions,
modifications, or redactions will be made to comments received.
We will consider all comments received or officially postmarked by
the methods and due date specified above. Because of the large number
of public comments we normally receive on Federal Register documents,
we are not able to provide individual acknowledgements of receipt.
Please allow sufficient time for mailed comments to be timely received
in the event of delivery or security delays. Electronic comments with
attachments should be in Microsoft Word or Portable Document Format
(PDF).
Please note that comments submitted by fax or email, and those
submitted or postmarked after the comment period, will not be accepted.
Inspection of Public Comments: All comments received before the
close of the comment period will be available for viewing by the
public, including personally identifiable or confidential business
information that is included in a comment. You may wish to consider
limiting the amount of personal information that you provide in any
voluntary public comment submission you make. HHS may withhold
information provided in comments from public viewing that it determines
may impact the privacy of an individual or is offensive. For additional
information, please read the Privacy Act notice that is available via
the link in the footer of <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
search instructions on that website to view the public comments.
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:
<a href="/cdn-cgi/l/email-protection#ebb89f8e9b838a85828ec5bc83829f9f828e99ae87828a988485ab8a8887c5838398c58c849d"><span class="__cf_email__" data-cfemail="5b082f3e2b333a35323e750c33322f2f323e291e37323a2834351b3a383775333328753c342d">[email protected]</span></a>, Telephone: (202) 795-7467 or
(TDD).
Assistance to Individuals With Disabilities in Reviewing the
Rulemaking Record: Upon request, the Department will provide an
accommodation or auxiliary aid to an individual with a disability who
needs assistance to review the comments or other documents in the
public rulemaking record for the proposed regulations. To schedule an
appointment for this type of accommodation or auxiliary aid, please
call (202) 795-7467 or email <a href="/cdn-cgi/l/email-protection#3a694e5f4a525b54535f146d52534e4e535f487f56535b4955547a5b595614525249145d554c"><span class="__cf_email__" data-cfemail="90c3e4f5e0f8f1fef9f5bec7f8f9e4e4f9f5e2d5fcf9f1e3fffed0f1f3fcbef8f8e3bef7ffe6">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Statutory and Regulatory History and Reasons for the Proposed
Rulemaking
III. Adult Protective Services
[[Page 62504]]
A. Section 1324.400 Eligibility for Funding
B. Section 1324.401 Definitions
C. Section 1324.402 Program Administration
D. Section 1324.403 Investigation and Post-Investigation
Services
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
J. Regulatory Approach
K. Effective Date
L. Request for Comment
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. Unfunded Mandates Reform Act of 1995
F. Plain Language in Government Writing
G. Paperwork Reduction Act (PRA)
I. Background
The Administration for Community Living (ACL) within the Department
of Health and Human Services (HHS) is issuing this Notice of Proposed
Rulemaking to modify 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 proposed rules exercise ACL's authority to
regulate Adult Protective Service (APS) systems under section 201 of
the Act, 42 U.S.C. 3011(e)(3) and section 2042(a) of the Elder Justice
Act (EJA), 42 U.S.C. 1397m-1(a). Currently, there are no Federal
standards for APS systems, leading to wide variation in policies and
procedures, thus resulting in inconsistent service delivery across
States and confusion for APS systems and the general public, including
victims of adult maltreatment. Historically, APS programs and
administrators have lacked reliable information and guidance on best
practices and standards for conducting case investigations and for
staffing and managing APS programs. These challenges have impaired
States' ability to respond in an effective and timely way to reports of
adult maltreatment and to assess client outcomes and the effectiveness
of the services they are providing. Nationally, this results in a
fragmented and unequal system that can hinder coordination and lead to
the absence of critical support for some people experiencing
maltreatment. The proposed regulation will create a national standard
to elevate evidence-informed practices, bring clarity and uniformity to
programs, and improve the quality of service delivery for adult
maltreatment victims and potential victims.
Adult maltreatment is associated with significant physical and
mental health consequences as well as financial losses. Older adults
and people 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 in the prior year.\2\ In addition, a recent systematic review
that collected self-reports of abuse by residents found high levels of
institutional abuse.\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), <a href="https://pubmed.ncbi.nlm.nih.gov/33249977/">https://pubmed.ncbi.nlm.nih.gov/33249977/</a>; 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), <a href="https://doi.org/10.1016/j.dhjo.2018.09.007">https://doi.org/10.1016/j.dhjo.2018.09.007</a>; Joy S. Ernst & Tina Maschi,
Trauma-Informed Care and Elder Abuse: A Synergistic Alliance. 30 J.
of Elder Abuse & Neglect, 354 (2018), <a href="https://pubmed.ncbi.nlm.nih.gov/30132733/">https://pubmed.ncbi.nlm.nih.gov/30132733/</a>.
\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), <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2804623/">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2804623/</a>; 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), <a href="https://www.sciencedirect.com/science/article/abs/pii/S1359178918303471">https://www.sciencedirect.com/science/article/abs/pii/S1359178918303471</a>.
\3\ Prevalence estimates for abuse subtypes reported by
institutionalized older residents were highest for psychological
abuse (33.4%), followed by physical (14.1%), financial (13.8%),
neglect (11.6%), and sexual abuse (1.9%); Yongjie Yon et. al., The
Prevalence of Elder Abuse in Institutional Settings: A Systematic
Review and Meta-Analysis, 29 Eur. J. of Pub. Health 58 (2019).
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APS programs often link adults subject to maltreatment to community
social, physical health, behavioral health, and legal services which
help them maintain independence in the settings they prefer to live.
APS programs are also often the avenue through which adult maltreatment
is reported to police or other agencies of the criminal justice system.
As such, APS plays a critical role in the lives of adults more likely
to be subjected to maltreatment, particularly older adults and adults
with disabilities. APS programs receive and respond to reports of adult
maltreatment, and work closely with clients and a wide variety of
allied professionals to maximize safety and independence and provide a
range of services to the people they serve, including:
<bullet> receiving and investigating reports of adult maltreatment;
<bullet> case planning, monitoring, evaluation, and other case work
and services; and
<bullet> providing, arranging for, or facilitating the provision of
medical, social service, economic, legal, housing, law enforcement, or
other protective, emergency, or support services.
APS is a social and human services program. Working collaboratively
and with the consent of the victim, APS caseworkers develop service
plans and connect the victim to social, health, and human services. The
focus of APS is entirely on assisting the victim to recover from the
experience of maltreatment. As a social services program, the
``findings'' in an APS case are not legal determinations, either civil
or criminal. Rather, if APS suspects that an act of maltreatment falls
under a State's criminal statutes, APS will refer the case to law
enforcement.
As discussed in greater detail in the Statutory and Regulatory
History and Reasons for the Proposed Rulemaking, until 2021 APS systems
were funded primarily through a variety of local and State resources.
All States now accept Federal funding, including ACL funding, for their
APS systems in addition to their State and local funding. However,
there are currently no mandatory Federal standards governing APS
policies, procedures, and practices, which results in a 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 of Columbia).\4\ Results from
that survey,
[[Page 62505]]
along with an analysis of the 2020 National Adult Maltreatment
Reporting System (NAMRS) \5\ data, and collected policy profiles of APS
in all States, the District of Columbia, and the Territories 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 report 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, <a href="http://www.namrs.acl.gov">www.namrs.acl.gov</a> (last visited April
18, 2023).
\6\ We refer to ``States'' in this proposed 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) that receives State and Federal funding for APS, including
ACL funding, and the local APS programs that provide adult protective
services.\7\ All APS systems are organized under a State government
entity, with 20 systems located within a State Unit on Aging, 14 within
a State division or department of social services (mostly responsible
for child welfare), and 20 within some other State department or agency
of health and human services.\8\ Despite all States having a designated
State office for APS, the degree to which the State entity controls and
administers the APS systems varies across States. In 78 percent of APS
systems, the State office sets program policy for, and conducts
oversight of, the APS programs, and in 22 percent of States, the
authority to set policy and conduct oversight rests in the local APS
program in each county or service area.\9\ In 70 percent of APS
programs, State employees implement the APS program and conduct
investigations; county and non-profit employees conduct investigations
in the remaining 30 percent of programs.\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 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\ See supra note 4; Numbers sum to 54 because five Territories
did not report data on their APS administrative structure. All fifty
States and the District of Columbia reported data. Three States
(Massachusetts, Louisiana, and Pennsylvania) have two separate APS
systems, one program with eligibility based on age and a separate
and distinct program with eligibility based on disability status.
The two separate systems were counted in these States.
\9\ See supra note 4 at 21.
\10\ See supra note 4 at 20; Pennsylvania has used a for-profit
entity due to a unique circumstance in the State related to the
State's aging services structure. There are currently no for-profit
APS entities.
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While the State entity establishes APS policy, conducts training,
administers funding, and provides information technology infrastructure
support to local APS programs in almost all APS systems,\11\ 27 States
have indicated the need for greater consistency in practice.\12\
Specific obstacles identified included: lack of resources for oversight
in general or quality assurance processes specifically, differing
policy interpretations across local programs, and not enough
supervisors.\13\
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\11\ For example, 76 percent of APS programs indicate that their
State exerts ``significant'' control over local APS operations. See
supra note 4 at 20.
\12\ See supra note 4 at 21.
\13\ Id.
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Eligibility for APS services varies dramatically across the States,
Tribal Nations, and Territories. States use age and terms such as
``disability,'' ``dependency,'' or ``vulnerability'' to define the
populations they serve.\14\ In some States, being an older adult (some
States set the age at 60 and older, others at 65 and older) is the only
criterion for determining whom they serve; in others, eligibility is
defined by a combination of age and ``disability,'' ``dependency,'' or
``vulnerability.'' States with programs that serve younger adults (age
18-59 or 18-64) always require ``disability,'' ``dependency,'' or
``vulnerability'' as a criterion.\15\ However, despite eligibility
being established at the State level, APS programs often triage which
eligible cases they have the capacity to investigate based on numerous
factors, including resources.
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\14\ We note eligibility is set in State statute. Discretion is
exercised, however, on which eligible cases to accept--often based
on resource constraints.
\15\ See supra note 4. Specifically, 34 States serve adults (age
18 and older) with disabilities regardless of age. This is the
largest eligibility category. Twelve States serve older adults
(either age 60 and older or age 65 and older) regardless of
disability status, and younger adults with a disability. Four States
serve only older adults regardless of disability status. Two States
serve only older adults with a disability. Two States have programs
that only serve young adults with disabilities, and older adults are
served by a different APS program within the State.
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Responsibility for investigations involving residents in congregate
residential facilities such as nursing facilities, assisted living
facilities, and group homes varies across APS systems. Most APS systems
investigate allegations of maltreatment that do not involve the
facility or its staff, and a few APS programs investigate allegations
involving the staff of the facility.\16\ Eleven APS systems report they
do not have authority to conduct investigations in congregate
residential facilities.\17\ Forty-two APS systems report they have
authority to investigate allegations of abuse, neglect, or exploitation
when they occur in congregate residential facilities.\18\ Of those 42,
19 report the APS system has authority to conduct investigations in
congregate residential facilities in all situations regardless of
whether the alleged perpetrator is facility staff, visitor, or
resident.\19\ Twenty-three States report the APS system has authority
to conduct investigations in some congregate residential settings
depending on whether a staff person is the alleged perpetrator or
not.\20\
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\16\ See supra note 4.
\17\ See supra note 4.
\18\ See supra note 4.
\19\ See supra note 4.
\20\ See supra note 4.
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In an effort 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.\21\ 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.\22\ The development of the 2016 Consensus
Guidelines and its 2020 update
[[Page 62506]]
consisted of multiple steps. ACL performed a review of research
available on promising practices in APS systems and in other analogous
systems throughout the United States; convened a review group
consisting of experts selected from the APS, the Long-Term Care
Ombudsman, and disability rights communities; and engaged in an
extensive and wide-reaching community engagement and outreach process.
Through our community engagement process, we received input on an
individual basis from a variety of sources, including the general
public, the aging network, APS systems, the disability community, law
enforcement, and others. We drafted our guidance based on the
individual input we received.\23\
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\21\ 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), <a href="https://acl.gov/sites/default/files/programs/2017-03/APS-Guidelines-Document-2017.pdf">https://acl.gov/sites/default/files/programs/2017-03/APS-Guidelines-Document-2017.pdf</a> (last
visited May, 16 2023); The Admin. For Cmty. Living, Voluntary
Consensus Guidelines for State APS Systems (2020), <a href="https://acl.gov/programs/elder-justice/final-voluntary-consensus-guidelines-state-aps-systems">https://acl.gov/programs/elder-justice/final-voluntary-consensus-guidelines-state-aps-systems</a> (last visited Apr. 18, 2023).
\22\ 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, <a href="https://www.nist.gov/system/files/revised_circular_a-119_as_of_01-22-2016.pdf">https://www.nist.gov/system/files/revised_circular_a-119_as_of_01-22-2016.pdf</a>); 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), <a href="https://www.nist.gov/standardsgov/national-technology-transfer-and-advancement-act-1995">https://www.nist.gov/standardsgov/national-technology-transfer-and-advancement-act-1995</a>;
The Admin. For Cmty. Living, Report on the Updates to the Voluntary
Consensus Guidelines for APS Systems (2020) <a href="https://acl.gov/sites/default/files/programs/2020-05/ACL-Appendix_3.fin_508.pdf">https://acl.gov/sites/default/files/programs/2020-05/ACL-Appendix_3.fin_508.pdf</a> (last
visited May 9, 2023).
\23\ Individual input was received from the APS community, thus
exempting the process from Federal Advisory Council Act
requirements; 5 U.S.C. 1001 et. seq.
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The Consensus Guidelines represent recommendations from the field
based on experience and expertise serving adults and communities. These
guidelines 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. These recommendations
enhance effective, efficient, and culturally competent APS service
delivery. While the Consensus Guidelines have been commended by APS
systems and the APS community, they have yet to produce measurable
change in APS systems or practice, and consistency and uniformity are
still lacking across and within APS systems. Our recently published
National Process Evaluation Report using 2021 data and ongoing NAMRS
data collection bear out gaps between current State policy and practice
and the recommendations contained in the Consensus Guidelines. We have
received feedback from the APS community that because the Consensus
Guidelines are voluntary recommendations and not regulatory
requirements, their efficacy is limited.
These proposed rules are informed by the extensive research,
analysis, community input, and recommendations of our Consensus
Guidelines, as well as experience and information from our NAMRS data,
and the 2021 51 State National Process Evaluation Report.\24\
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\24\ See supra note 4.
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II. Statutory and Regulatory History and Reasons for the Proposed
Rulemaking
APS programs have historically been administered and primarily
funded by States. 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 can be very small.\25\
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\25\ 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). <a href="https://www.acf.hhs.gov/sites/default/files/documents/ocs/RPT_SSBG_Annual%20Report_FY2020.pdf">https://www.acf.hhs.gov/sites/default/files/documents/ocs/RPT_SSBG_Annual%20Report_FY2020.pdf</a>
(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. Coupled together, the EJA and
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 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 \26\ 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 and Administrator of ACL. 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, including
for strengthening national support for APS.\27\
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\26\ 42 U.S.C. 1397k.
\27\ The Admin. for Cmty. Living, Federal Elder Justice
Coordinating Council, <a href="https://ejcc.acl.gov/">https://ejcc.acl.gov/</a> (last visited Apr. 18,
2023).
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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 Elder
Justice Act. This funding is used to collect data, disseminate best
practices, and provide discretionary elder justice demonstration
grants.\28\ In FY 2021, Congress provided the first dedicated
appropriation to implement the Elder Justice Act 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, totaling $188 million,
and another $188 million in FY 2022.\29\ The recent Consolidated
Appropriations Act of 2023 included an annual appropriation of $15
million to ACL to continue providing formula
[[Page 62507]]
grants to APS programs under the Elder Justice Act section 2042(b), 42
U.S.C. 1397m-1(b).\30\
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\28\ 42 U.S.C. 1397m-1.
\29\ 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.
\30\ Consolidated Appropriations Act, 2023, Pub. L. 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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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,\31\ in
their statements to the EJCC,\32\ and in peer-reviewed journals.\33\
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\31\ 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.)
<a href="https://www.napsa-now.org/wp-content/uploads/2014/03/Appropriations-Testimony-NAPSA.pdf">https://www.napsa-now.org/wp-content/uploads/2014/03/Appropriations-Testimony-NAPSA.pdf</a>.
\32\ Enhancing Response to Elder Abuse, Neglect, and
Exploitation: Elder Justice Coordinating Council, Testimony of
William Benson (Oct. 10, 2012), <a href="http://www.aoa.acl.gov/AoA_Programs/Elder_Rights//Meetings/2012_10_11.aspx">http://www.aoa.acl.gov/AoA_Programs/Elder_Rights//Meetings/2012_10_11.aspx</a>.
\33\ 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 GAO conducted three studies on the topic of abuse, neglect, and
exploitation between 2010 and 2013 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.\34\
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\34\ U.S. Gen. Acct. Off., GAO-11-208, Elder Justice: Stronger
Federal Leadership Could Enhance National Response to Elder Abuse
(2011) <a href="https://www.gao.gov/products/gao-11-208">https://www.gao.gov/products/gao-11-208</a>; U.S. Gen. Acct.
Off., GAO-13-110, Elder Justice: National Strategy Needed to
Effectively Combat Elder Financial Exploitation (2012) <a href="https://www.gao.gov/products/gao-13-110">https://www.gao.gov/products/gao-13-110</a>; U.S. Gen. Acct. Off., GAO-13-498,
Elder Justice: More Federal Coordination and Public Awareness Needed
(2013) <a href="https://www.gao.gov/products/gao-13-498">https://www.gao.gov/products/gao-13-498</a>.
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This proposed 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.
In determining the scope of the APS regulations, we considered
modeling our regulations after the child protective services (CPS)
regulations administered by the Department's Administration for
Children and Families.\35\ We ultimately rejected this approach. The
Child Abuse Prevention and Treatment Act of 1974 (Pub. L. 93-247), 42
U.S.C 5116, provides Federal funding to States for prevention,
assessment, investigation, prosecution, and treatment of child abuse
and neglect, and awards grants for demonstration projects.\36\ In FY
2023, approximately $12 billion was provided for child welfare
programs, and of that $852 million was appropriated specifically for
child protection.\37\ In contrast, the appropriation for activities
under section 2042(b) of the EJA was funded for the first time in FY
2021 with one-time funding at $188 million a year for FYs 2021 and 2022
for State program start-up costs and to address urgent needs related to
COVID-19, and $15 million in ACL's FY 2023 annual appropriation for
ongoing operations. Further, the EJA is much smaller in scope both in
terms of requirements and discretionary activities. Given the
differences in size and scope of Federally authorized and supported
activities, ACL believes it would not be appropriate to model the
proposed APS regulations after CPS regulations. Moreover, our approach
takes into consideration the differences between minor children and
adults legally, developmentally, and specifically with regards to
rights to make decisions about their lives. ACL invites comment on both
the scope and depth of topics proposed for regulatory action and the
rationale presented.
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\35\ Since 2011, ACL has received questions and comments from
Congress, OMB, and others regarding comparisons between CPS and APS.
For example, GAO made comparisons between APS and CPS in their 2011
report ``ELDER JUSTICE--Stronger Federal Leadership Could Help
Improve Response to Elder Abuse,'' (<a href="https://www.gao.gov/assets/gao-11-384t.pdf">https://www.gao.gov/assets/gao-11-384t.pdf</a>) and the Congressional Research Service did a report on
this subject as recently as 2020: (<a href="https://crsreports.congress.gov/product/pdf/R/R43707">https://crsreports.congress.gov/product/pdf/R/R43707</a>).
\36\ Admin. for Child. and Fams., Dep't. of Health and Hum.
Servs., About CAPTA: A Legislative History (2019) <a href="https://www.childwelfare.gov/pubpdfs/about.pdf">https://www.childwelfare.gov/pubpdfs/about.pdf</a>.
\37\ Emilie Stoltzfus, U.S. Cong. Rsch. Serv. Child Welfare:
Purposes, Federal Programs, and Funding (2023) <a href="https://crsreports.congress.gov/product/pdf/IF/IF10590">https://crsreports.congress.gov/product/pdf/IF/IF10590</a>.
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Instead of providing detailed and broad requirements like those
that apply to CPS, our proposals require the State entity to establish
written policies and procedures in areas of significant APS practice.
In the interests of transparency, we considered mandating that State
entities disclose such policies and procedures (for example, through
publication on a State website) except where such disclosure might
adversely affect law enforcement efforts, but we ultimately decided to
leave such disclosure to State discretion. We welcome comment on the
costs and benefits of mandating such disclosure.
Our proposed standards are a minimum floor. States may impose
additional requirements on their APS systems above and beyond these
proposed minimum Federal standards. ACL invites comment on both the
scope and depth of topics proposed for regulatory action and the
rationale presented.
III. Adult Protective Services Programs
A. Section 1324.400 Eligibility for Funding
Proposed Sec. 1324.400 clarifies that eligibility for funding is
conditioned on compliance with all proposed regulatory provisions.
Under the proposed rules, State entities eligible for annual funding
from ACL through section 2042 of the EJA, 42 U.S.C. 1397m-1(b) are
required to submit a State plan in accordance with Sec. 1324.408
detailing their activities, which ACL proposes to review and approve as
a means of verifying compliance with the proposed rule. A State that
failed to submit an approvable State plan would no longer be eligible
for funding under section 2042(b) of the EJA.
ACL will provide States support and technical assistance in
developing an approvable State plan. All States are afforded an
opportunity to appeal the Assistant Secretary's disapproval of a State
plan submission under proposed Sec. 1324.408(e). If a State declines
or fails to qualify for section 2042(b) funding, ACL will redistribute
the funds in accordance with the EJA section 2042 formula. Further
information on State plan development will be provided in sub-
regulatory guidance.
B. Section 1324.401 Definitions
We propose to define the following terms in Sec. 1324.401 to
provide clarity on the terms used and referenced in this proposed rule:
``Abuse,'' ``Adult,'' ``Adult maltreatment,'' ``Adult Protective
Services (APS), '' ``Adult Protective Services (APS) program,'' ``Adult
Protective Services (APS) system,'' ``Allegation,'' ``Assistant
Secretary for Aging,'' ``At risk,'' ``Case,'' ``Client,'' ``Conflict of
Interest,'' ``Dual Relationship,'' ``Emergency Protective Action,''
``Exploitation,'' ``Inconclusive,'' ``Intake or pre-
[[Page 62508]]
screening,'' ``Investigation,'' ``Mandated Reporter,'' ``Neglect,''
``Perpetrator,'' ``Post-investigation services,'' ``Quality
assurance,'' ``Screening,'' ``Self-neglect,'' ``Sexual abuse,'' ``State
entity,'' ``Substantiated,'' ``Trust Relationship,''
``Unsubstantiated,'' and ``Victim.''
Definitions of note are discussed below.
``Abuse'' Consistent with definitions 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
propose to define abuse as a component of adult maltreatment to
encompass the knowing psychological, emotional, and/or physical harm or
the knowing deprivation of goods or services necessary to meet
essential needs or avoid such harm.
``Adult'' For purposes of this regulation, we propose to define
adult to mean the eligible APS population in any given State. The term
``adult'' will be used in place of ``older adults and adults with
disabilities who are eligible for adult protective services.'' We have
chosen to defer to States' definitions of ``adult'' for the purposes of
determining eligibility for APS services in recognition of the complex
and intersecting nature of social services, public benefits, and
behavioral health care services in States. In many States, eligibility
for APS services is consistent with eligibility for social services,
behavioral health, and other public benefits. A change to eligibility
for APS in a State to conform with the proposed rule's definition of
``adult'' may potentially disrupt important relationships among
programs and services outside APS. We request comments on this
approach.
``Adult maltreatment'' We propose to define adult maltreatment to
bring uniformity and specificity to a foundational term used throughout
APS systems and this proposed regulation. Although there is increasing
consensus on the core components of adult maltreatment, the field has
not adopted a universally accepted definition. The definition of adult
maltreatment and its component parts has a direct impact on the reports
accepted for investigation, discussed in greater detail below at Sec.
1324.402. Our proposed definition and the requirements set out in Sec.
1324.402(a) that States investigate, at a minimum, the five elements of
adult maltreatment will establish a comprehensive and uniform approach
to investigations of adult maltreatment while still allowing for State
flexibility and discretion. Our definition represents a consistent
baseline upon which States may build. In developing our definition and
the requirements contained in proposed Sec. 1324.402(a), we adopted
categories generally recognized by the field, used by the research
community, and in common use by the vast majority of States.\38\
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\38\ See supra note 4.
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We propose that adult maltreatment encompass five categories
further defined in this Section: abuse, neglect, exploitation, sexual
abuse, and self-neglect. Adult maltreatment occurs when there is self-
neglect or when a perpetrator commits abuse, neglect, exploitation, or
sexual abuse of an adult. 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.
This proposed rule, in alignment with most States' policies, limits
the definition of abuse or maltreatment to relationships of trust where
the alleged victim is at risk of harm from the perpetrator. A
relationship of trust includes a caregiving relationship or other
familial, social, or professional relationship where a person assumes
responsibility for protecting the interests of the adult or where
expectations of care or protection arise by law or social
convention.\39\ APS systems refer cases outside trust relationships to
partner organizations and services, such as other social service
programs or law enforcement. This distinction acknowledges the elevated
harm engendered when injury occurs within the context of a relationship
of trust and an adult is vulnerable to harm generally and in relation
to the perpetrator. It prioritizes finite APS resources to focus on
this heightened injury. We further define ``trust relationship'' and
``at risk'' later in this proposed rule. We recognize that our current
proposal narrows the universe of required APS investigations under
proposed Sec. 1324.402(a) and in developing our proposal, we
considered a more expansive definition of adult maltreatment. We invite
comment on our definition and whether it reflects current practice in
APS programs and whether it will resolve confusion. We describe some of
this confusion throughout this discussion.
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\39\ The Cntrs. for Disease Control and Prevention, Elder Abuse
Surveillance: Uniform Definitions and Recommended Core Data Elements
(2016) <a href="https://www.cdc.gov/violenceprevention/pdf/EA_Book_Revised_2016.pdf">https://www.cdc.gov/violenceprevention/pdf/EA_Book_Revised_2016.pdf</a>.
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``At risk'' We propose to define ``at risk'' 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 individual will
experience an event, illness, condition, disease, disorder, injury or
other outcome that is adverse or detrimental and undesirable.'' We
recognize the considerable variation among States in determining
whether maltreatment must include ``vulnerability'' or other qualifier,
and we seek comment on this definition. The CDC definition on which
ours is based was developed through a collaborative process among a
panel of scientists and practitioners representing multiple disciplines
(e.g., medicine, psychology, epidemiology, sociology, gerontology), as
well as Federal staff.
``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. Such a
conflict of interest would arise, for example, when an employee,
officer, or agent, any member of their immediate family, their partner,
or an organization which employs or is about to employ any of the
parties indicated herein, has a financial or other interest in or a
tangible personal benefit from their affiliation with an APS
system.\40\
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\40\ See 45 CFR 75.321(c)(1).
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``Dual Relationship'' means relationships 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.
``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 propose to define exploitation as a type of adult
maltreatment. Financial exploitation and exploitation are used
interchangeably in the OAA, and exploitation for the purposes of adult
maltreatment in this proposed rule is likewise confined to illegal,
unauthorized, or improper acts related to the personal finances of an
adult (as defined above) (for example, exploitation does not encompass
labor rights violations).
``Neglect'' 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), we propose to define neglect as the failure of a caregiver
or fiduciary to provide the goods or services that are necessary to
maintain the health or safety of an adult (as defined above).
``Self-neglect'' Consistent with the definitions in section 102(48)
of the OAA, 42 U.SC. 3002(48), and section 2011 of the EJA 42 U.S.C.
1397j(18) we propose to define self-neglect as an adult's (as defined
above) inability to
[[Page 62509]]
perform essential self-care tasks due to physical or mental impairment
or diminished capacity.
``Sexual abuse'' The OAA 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, 42 U.S.C.
3796gg-2. Our proposed definition encompasses, but is broader than,
sexual assault as defined in the OAA. Consistent with the definition
outlined in the CDC Uniform Definitions, we propose to define sexual
abuse as the forced and/or unwanted sexual interaction (touching and
non-touching acts) of any kind with an adult (as defined above).
``Trust relationship'' Consistent with the CDC Uniform Definitions,
ACL proposes to define ``trust relationship'' as ``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.'' Including the
requirement of a trust relationship for purposes of determining when
APS becomes involved furthers consistency of APS interventions in adult
maltreatment. Furthermore, most APS systems apply a standard of ``trust
relationship'' in their definition of maltreatment. We seek comments on
this approach.
C. Section 1324.402 Program Administration
Proposed Sec. 1324.402(a) requires APS systems to respond to
reports of adult maltreatment, which include allegations of abuse,
neglect, exploitation, sexual abuse, and self-neglect. Currently, all
APS systems are required by State statute to investigate allegations of
neglect and physical abuse, and nearly all states investigate
allegations of self-neglect, sexual abuse, financial exploitation, and
emotional or psychological abuse.\41\ Forty-two States investigate six
or more types of maltreatment.\42\
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\41\ See supra note 4, at 17. Other maltreatment type categories
exist in State statutes, including non-specific exploitation,
abandonment, abduction, isolation, other maltreatment, and
suspicious death.
\42\ Id.
Table C.1--Types of Maltreatment Investigated by States \43\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maltreatment type Physical abuse Neglect Exploitation Sexual abuse Self-neglect Emotional abuse
--------------------------------------------------------------------------------------------------------------------------------------------------------
No. of States..................................... 54 54 46 52 51 45
--------------------------------------------------------------------------------------------------------------------------------------------------------
However, definitions of these terms vary across States. In certain
States, APS programs are not required to respond to certain forms of
adult maltreatment. This means that adults are not adequately protected
by APS throughout the United States.
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\43\ The total potential universe for any analysis is 56,
however American Samoa and the Commonwealth of the Northern Mariana
Islands do not currently have staffed programs. The unit of analysis
for this data is 54. This includes APS programs in all States and
the District of Columbia. In three States--Louisiana, Massachusetts,
and Pennsylvania--APS is provided in two different programs for
older adults and younger adults.
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In addition to our request for comment on the definition of adult
maltreatment, we seek comment as to whether a mandatory requirement for
investigation based on the definitions of abuse, neglect, exploitation,
sexual abuse, and self-neglect is appropriate, adequately reflects the
needs and experiences of APS systems, as well as any potential State
and local burden associated with such a requirement.
Proposed Sec. 1324.402(a) also requires the State entity to adopt
certain policies and procedures for receiving and responding to reports
of adult maltreatment. These policies and procedures must be person-
directed and rely on concepts of least restrictive alternatives.
Principles of person-directedness respect the integrity and authority
of adults to make their own life choices. They promote APS clients'
concepts of what safety and quality of life mean, and success and
positive outcomes are defined by the client, not the APS worker. This
provision sets minimum requirements for States as they establish or
revise policies and procedures while still leaving flexibility to best
meet their unique needs.
The State entity must create precise, standardized criteria for
determining or assessing eligibility for APS services. States must also
create clear and specific parameters of the settings, locations, and
types of alleged perpetrators for which allegations of maltreatment
will be investigated by their APS system. For example, States vary on
whether they conduct investigations in congregate residential settings.
In addition, States must establish processes to ensure the parameters
are implemented consistently across APS programs in their State.
We propose that States define processes for receiving, screening,
prioritizing, and referring cases based on risk and the nature of the
adult maltreatment in a uniform and consistent manner across their
State. Under this proposal, the State entity would be required to
establish policies and procedures to manage a tiered risk-based
assessment system, differentiating response requirements for cases that
represent immediate and non-immediate risks. As proposed, immediate
risk would be assessed via the likelihood of death, irreparable harm,
or significant loss of income, assets, or resources. Responses should
occur no later than 24 calendar hours (one calendar day) after
receiving the report for cases representing an immediate risk, and no
later than seven calendar days for cases of non-immediate risk.
Currently, there is data on all but one APS systems' tiered report
response procedures. Two State APS systems have no priority levels, and
one has two priority levels. The rest have three or more. States vary
widely in their response time and not all States address high priority
cases within 24 hours, although most do.\44\ We seek to bring all
States into alignment with the Consensus Guideline in this area of
practice; timely response to immediate need cases is essential to the
health and safety of potential maltreatment victims.
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\44\ See supra note 4.
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For allegations of adult maltreatment outside APS jurisdiction, we
propose the State entity establish appropriate referral mechanisms and
information and data sharing agreements with the state and/or local
entity with jurisdiction to investigate.
In proposed Sec. 1324.402(b), we require State entities to
establish policies and procedures to inform potential APS clients of
their rights at first contact with client. With this provision, we seek
to address concerns that APS programs do not regularly inform potential
clients of their rights under existing State laws,
[[Page 62510]]
including confidentiality and privacy requirements, the right to refuse
services, and the right to refrain from speaking with APS. This is
directly responsive to problems that have been reported by the APS and
disability and aging community advocates to ACL in listening sessions
and other community engagement activities. Failure to inform potential
clients of their rights undermines trust between individuals and APS
and may alienate communities. Under this proposal, APS programs must
inform potential APS clients of their rights in the format and language
preferred by the individual, including those with limited English
proficiency and individuals with disabilities. APS programs should take
appropriate steps to ensure communication with individuals with
disabilities are as effective as communications with others More
generally, standard plain language practice is to write informational
materials at or near a fourth grade reading level and not to exceed an
eighth grade reading level. We expect State entities to meet these
standards in complying with language proposed at Sec. 1324.402(b).
Proposed Sec. 1324.402(d) requires the State entity to establish
policies and procedures for the staffing of APS systems. We propose to
require States to establish a minimum staff to client ratio appropriate
to the circumstances in the State. We believe, consistent with the
literature, that fixed staff to client ratios in APS systems will
improve health and safety outcomes for adult victims of
maltreatment.\45\ We also believe that establishing fixed staff to
client ratios will improve the long-term continuity of APS programs. We
request comment on whether staff to client ratios are feasible for APS
programs and whether required workload studies would assist in
development of appropriate ratios.
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\45\ Jane E. Ball et. al., Post-operative Mortality, Missed Care
and Nurse Staffing in Nine Countries: A Cross-Sectional Study,78,
Int. J. Nursing Studies, 10 (Feb. 2018) <a href="https://pubmed.ncbi.nlm.nih.gov/28844649/">https://pubmed.ncbi.nlm.nih.gov/28844649/</a>; Charlene Harrington et. al.
Appropriate Nurse Staffing Levels for U.S. Nursing Homes, 13 Health
Serv. Insights (2020) <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7328494/">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7328494/</a>.
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We also propose to require mandatory APS training as a part of
implementing the proposed policies and procedures. Findings from a
2015-2018 survey completed by 49 APS offices found that half of
programs were not training on core competencies while two had no
training whatsoever.\46\ Training and ongoing education increases staff
knowledge, leading to increased rates of investigation and
substantiation.\47\ Supervisors provide both clinical and
administrative oversight, approve key casework decisions, and guide the
caseworkers in overall case management. Sufficient training is critical
to ensuring they can perform these functions.
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\46\ Pi-Ju Liua & Leslie Ross, Adult Protective Services
Training: A Brief Report on the State of the Nation, 33 J. of Elder
Abuse and Neglect, 82 (2021). <a href="https://www.tandfonline.com/doi/epdf/10.1080/08946566.2020.1845271?needAccess=true&role=button">https://www.tandfonline.com/doi/epdf/10.1080/08946566.2020.1845271?needAccess=true&role=button</a>.
\47\ Kelli Connell-Carrick & Maria Scannapieco, Adult Protective
Services: State of the Workforce and Worker Development, 29(2)
Gerontology & Geriatrics Education, 189-206 (2008) <a href="https://pubmed.ncbi.nlm.nih.gov/19042235/">https://pubmed.ncbi.nlm.nih.gov/19042235/</a>.
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D. Section 1324.403 Investigation and Post-Investigation Services
Proposed Sec. 1324.403 requires the State entity to develop and
implement a standardized set of policies and procedures for essential
APS functions throughout the lifecycle of a case. The purpose of an APS
investigation is to collect information about the allegations of
maltreatment, determine if the alleged victim is eligible for APS
services, assess the immediate risk of the situation, conduct an
investigation, and ultimately make a finding as to the presence or
absence of adult maltreatment. If adult maltreatment is present, APS
then identifies the service needs of the client and develops a plan,
including recommendations or referrals to other entities, such as
social services. Many, but not all, APS systems also follow cases post-
investigation. If it is found the individual seeking APS services is
ineligible, the APS program may develop referrals to appropriate
services.
Proposed Sec. 1324.403 sets forth requirements for the development
of standardized, specific policies and procedures governing an APS
investigation from initiation to post-investigation services.
Initiation of the investigation encompasses screening and triaging
reports as well as decision-making processes for determining immediate
safety and risk factors affecting the adult. The investigation itself
includes the collection of relevant information and evidence. Policies
and procedures must also detail methods to make determinations on
allegations and record case findings, including consultation with
outside experts when appropriate. Professional fields for such experts
include: medicine, social work, behavioral health, finance/accounting,
and long-term care. We likewise propose the APS worker provide
referrals to other agencies and programs, as appropriate under State
law, such as referrals to Area Agencies on Aging (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
home and community-based services to mitigate harm and assist the
victim in recovery from the abuse. During the course of an
investigation, APS may in limited circumstances take emergency
protective action, which we propose to define in Sec. 1324.401. Such
action should be person-directed and taken as a last resort after
exploring all other viable options, prioritizing community integration,
autonomy, and individual choice. This proposed section also requires
the APS investigator or supervisor to communicate results of the
investigation to the client.
Post-investigation services are provided through a variety of
mechanisms and funding sources. APS staff may provide services directly
(e.g., assistance with housing relocation), purchase them (e.g., pay
for medications or utility bills), or make referrals to community-based
services (e.g., home-delivered meals). Our proposals provide a
framework for the provision of post-investigation services that promote
the dignity and autonomy of the client, leverage community resources,
and aim to prevent future adult maltreatment.
Proposed Sec. 1324.403 draws heavily from the Consensus
Guidelines.\48\ We seek comment on whether this approach includes all
necessary activities for investigation and post-investigation services
as well as examples of investigation and post-investigation services we
have not proposed for inclusion.
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\48\ See supra note 22.
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E. Section 1324.404 Conflict of Interest
Proposed Sec. 1324.404 requires the State entity to establish
policies and procedures to prevent, recognize, and promptly addresses
both real and perceived conflicts of interest at the organizational and
individual level. Trust in APS by individuals receiving services and
the broader community is essential to the ability of APS programs to
effectively perform their functions. APS programs form partnerships and
referral relationships with allied organizations and professionals to
provide necessary services and supports to victims of adult
maltreatment 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
[[Page 62511]]
maltreatment have close relationships and shared locations and data
systems with AAAs, State Units on Aging (SUAs), and other health and
human services agencies.\49\ Without appropriate conflict of interest
safeguards, familiarity and ease of referral arising from proximity and
shared data systems may create incentives for APS to refer clients to
the AAA or SUA over another more appropriate service provider.
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\49\ See supra note 4, at 4. State Units on Aging house APS in
20 States. Other State health and human services agencies (not SUAs
or Child Welfare) house APS in 20 States.
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Individual APS workers may face conflicts of interest if they are
in a ``dual relationship'' serving multiple roles for a single client.
For example, an individual who serves as both an APS worker and a long-
term services and supports options counselor for the same client may be
unable to make objective findings of adult maltreatment in a case where
a caregiver is an alleged perpetrator of adult maltreatment against the
client. The individual serving as APS worker and options counselor may,
in their role as APS worker, choose not to substantiate findings of
adult maltreatment against the caregiver because, as an options
counselor, they know the client chooses the alleged perpetrator as
their caregiver. We propose these dual relationships be permitted only
when unavoidable and that conflicts of interest be appropriately
mitigated.
We further propose that APS programs have policies and procedures
that ensure conflicts of interests are avoided and, if found, remedied.
These procedures could include firewalls and disclosure requirements.
We seek comment on whether our proposal reflects the universe of actual
and potential conflicts of interest, those who may be a party to a
conflict, and ways in which we may strengthen these requirements while
not placing undue programmatic or administrative burden on APS systems.
F. Section 1324.405 Accepting Reports
Proposed Sec. 1324.405 requires the State entity to have policies
and procedures for accepting reports of adult maltreatment. We propose
such policies and procedures require prompt receipt of reports of
alleged maltreatment, including multiple methods for receiving reports
24 hours a day, 7 calendar days a week in manners that are fully
accessible (e.g., using augmentative communication devices or
translation services). Currently 29 programs meet the Consensus
Guidelines recommendation to be available 24/7 for intake of new
reports.\50\ Receiving reports 24 hours a day 7 calendar days a week is
paramount to the safety of victims and potential maltreatment victims.
For this reason, we propose a specific timeframe for receiving reports
consistent with our recommendations in the Consensus Guidelines. In the
interests of accessibility, we considered mandating that APS systems
establish an online reporting mechanism (for example, accepting reports
of adult maltreatment through a website), but we ultimately decided to
leave such operational details to State discretion. We welcome comment
on the costs and benefits of mandating such an online reporting
mechanism.
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\50\ See supra note 4, at 30.
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APS receives reports from both the general public and individuals
mandated by the State to report suspected adult maltreatment. Mandatory
reporting is an essential tool in combating adult maltreatment; 49
States currently have mandatory reporting statues.\51\ In one study,
researchers found that reports made by mandatory reporters to APS were
more likely to be substantiated and less likely to result in service
refusal than reports made by non-mandated reporters.\52\ However, most
APS programs are not required to contact mandatory reporters with
information about the case after a report is made. Mandatory reporters
have stated that the absence of a reporting feedback loop creates a
disincentive for reporting.\53\ 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. We propose mandatory reporters be
provided information on the status of a report consistent with State
confidentiality laws. In the interests of accountability, we considered
mandating that States provide such status information to such mandatory
reporters within a certain timeframe (for example, within 30 calendar
days of the report), but we ultimately decided to leave such
operational details to State discretion. We welcome comment on the
costs and benefits of mandating such a mandatory response timeframe.
Additionally, we invite comment on the type of information that might
be returned to mandatory reporters after a report of maltreatment is
submitted to an APS program, including potential administrative burdens
to APS programs and client confidentiality and privacy conflicts that
may arise from such requirements.
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\51\ See supra note 4.
\52\ Kristin Elizabeth Lees, (2018) Elder Mistreatment: An
examination of formal and informal responses to a growing public
health concern (Mar. 23, 2018) (Ph.D. dissertation, Northeastern
University) <a href="https://repository.library.northeastern.edu/files/neu:cj82r9210/fulltext.pdf">https://repository.library.northeastern.edu/files/neu:cj82r9210/fulltext.pdf</a>.
\53\ Olanike Ojelabi et al., Closing the Loop: An Environmental
Scan of APS-Reporter Feedback Policies and Practices, 5(1)
Innovation in Aging 931 (2021) <a href="https://doi.org/10.1093/geroni/igab046.3370">https://doi.org/10.1093/geroni/igab046.3370</a>; S. Jackson, Adult Protective services and victim
services: A review of the literature to increase understanding
between these two fields, 34 Aggression & Violent Behavior 214
(2017) <a href="https://www.semanticscholar.org/paper/Adult-protective-services-and-victim-services%3A-A-of-Jackson/15e2bbf7e180170443f67e90ae1acfc50ffbdb8a">https://www.semanticscholar.org/paper/Adult-protective-services-and-victim-services%3A-A-of-Jackson/15e2bbf7e180170443f67e90ae1acfc50ffbdb8a</a>; Marguerite DeLiema et al.,
Voices from the Frontlines: Examining Elder Abuse from Multiple
Professional Perspectives, 40 Health & Social Work e15 (2015)
<a href="https://doi.org/10.1093/hsw/hlv012">https://doi.org/10.1093/hsw/hlv012</a>.
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G. Section 1324.406 Coordination With Other Entities
Proposed Sec. 1324.406(a) requires the State APS system to
coordinate with other State and local governmental agencies, community-
based organizations, and other entities engaged in activities to
promote the health and wellbeing of older people and adults with
disabilities for the purposes of addressing the needs of the adult
experiencing the maltreatment. These entities include, but are not
limited to, the Long-Term Care Ombudsman, State offices that handle
scams and frauds, State and local law enforcement, State Medicaid
agencies and other State agencies responsible for home and community-
based services (HCBS) programs, and financial services providers. Such
coordination maximizes the resources of APS systems, improves
investigation capacity, and ensures post-investigation services are
effective. We have chosen to require States coordinate with these
specific entities to ensure coordination with critical partners in the
investigation of abuse, neglect, and exploitation. Various non-APS
entities have authority to investigate maltreatment based on who the
victim and perpetrator of the maltreatment are, and where the
maltreatment took place. An effective, holistic response to adult
maltreatment must include all enumerated entities working in
coordination with APS. Currently, the research suggests this is not
taking place.\54\ We seek comment as to whether we have accurately
captured the scope of appropriate entities with which APS should
collaborate, and whether our proposal would create unintended
[[Page 62512]]
consequences for APS programs. We also seek examples of where
coordination is working and where barriers to coordination exist.
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\54\ Health and Human Serv. Off. of the Insp. Gen. Incidents of
Potential Abuse and Neglect at Skilled Nursing Facilities Were Not
Always Reported and Investigated (2008) <a href="https://oig.hhs.gov/oas/reports/region1/11600509.pdf">https://oig.hhs.gov/oas/reports/region1/11600509.pdf</a>.
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Proposed Sec. 1324.406(b) requires 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 could include development of memoranda of understanding
(e.g., for referrals and information sharing), establishment of multi-
disciplinary 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 regarding training and best practices. We recognize that
State laws may preclude sharing of certain information related to
individual investigations, but we believe that all APS systems at a
minimum can work with other entities around prevention and best
practices to address adult maltreatment.
State authority to investigate alleged maltreatment of adults
resides in different entities. Therefore, it is imperative to have a
clear understanding of which entities are responsible for which types
of investigations. Which entity is responsible for an investigation
will depend upon various factors including: the location or setting of
the maltreatment; the category of adult maltreatment; the relationship
between an alleged perpetrator and an alleged victim; and the
characteristics of the alleged victim. To help resolve confusion within
States, we propose in Sec. 1324.406(b) that the APS programs develop
and implement information and data sharing agreements to ensure
coordination of investigations 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 helps prevent future maltreatment. Such
agreements will allow one program to share with the other information
about alleged maltreatment by someone who works with, or who has a
relationship of trust with, individuals being served by both
organizations. Additionally, such agreements will allow the sharing of
information 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 the maltreatment. We seek
comment on our proposals.
We also believe it is critical to address coordination across
States given that perpetrators may move a victim to another
jurisdiction or may move to another jurisdiction themselves where they
engage in the same practices investigated in the first State. We
request comments and examples of best practices on how coordination and
collaboration with other States and local jurisdictions may be
effectively achieved, minimizing administrative burden.
H. Section 1324.407 APS Program Performance
Proposed Sec. 1324.407 requires the APS State entity to collect
and report aggregated data annually to ACL.\55\ We anticipate data
elements to be similar to those already reported voluntarily by most
States through the NAMRS system. However, because NAMRS data submission
is voluntary, the completeness of the data varies widely and therefore
limits our ability to understand incidence of adult maltreatment within
and across States. We will provide future guidance on data elements to
be collected and seek comment on what these data elements should be.
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\55\ Elder Justice Act sections 2042, 2042(b)(4), 42 U.S.C.
1397m-1(a)(1)(B), 1397m-1(b)(4); Older Americans Act of 1965 section
201(e)(2)(A)(ii)(I), 42 U.S.C. 3011.
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We also propose that the State entity develop policies and
procedures regarding the maintenance of individual APS case data. We
propose that APS systems keep the individual data set for at least five
years. We believe five years is an appropriate timeframe to allow APS
programs to assess clients across time to determine whether repeated
abuse or recidivism is occurring, providing APS knowledge critical to
prevent future instances of maltreatment. In developing our proposal,
we considered a requirement of ten years; while a longer timeframe
would improve data accuracy, it would increase burden for States. We
seek comment on whether five years is an appropriate timeframe or
whether a greater or lesser duration is optimal.
I. Section 1324.408 State Plans
Proposed Sec. 1324.407 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.\56\ State plans
will allow States to document the tangible outcomes planned and
achieved as a result of the funding they receive from ACL. Funding
provided to State APS entities through the Elder Justice Act is
contingent on compliance with our proposed regulations. The State plan
is the mechanism through which States demonstrate, and ACL evaluates,
this compliance.
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\56\ 45 CFR 75.206(d) allows for State plans vs. applications
for funding, thereby reducing burden. The Older Americans Act of
1965 section 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 Elder Justice Act
section 2042(b)(4), 42 U.S.C. 1397m-1(b)(4) authorizes State reports
from each entity receiving funding.
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State plans also can be used to translate activities, data, and
outcomes into proven best practices, which can be used to leverage
additional resources. State plans promote coordination and
collaboration to better serve the people of a State by providing a
blueprint that describes what the State will undertake to meet the
needs of the population it serves. The State plan should be developed
in conjunction with the APS programs and with input from interested
parties and updated at least every five years or as frequently as every
three years at State option..
ACL has administrative oversight responsibility with respect to the
expenditures of Federal funds pursuant to the EJA. 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 defined by these regulations. ACL will
provide technical assistance to States regarding the preparation of
State plans and are responsible for reviewing those that are submitted
for compliance. Annual State program performance data collected and
submitted to ACL pursuant to Sec. 1324.407 will be used to measure
performance and assess the extent to which State systems are meeting
State plan objectives.
State plans will be reviewed and approved by the Director of the
Office for Elder Justice and Adult Protective Services (OEJAPS), the
position designated by Sec. 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
[[Page 62513]]
Deputy Assistant Secretary. If 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.
We seek comment on our proposals for the development of State plans
as well as ACL oversight and monitoring of State plan objectives.
J. Regulatory Approach
The proposed regulations seek to bring States into alignment with
evidence-informed practices while recognizing that States should have
the flexibility and discretion to tailor policies and procedures to
their circumstances. In general, we have provided broad guidelines for
the required policies and procedures but leave States to fill in the
details and set their own standards as they develop new, or amend
current, policies and procedures. In several areas, we have taken a
more proscriptive approach to establish a uniform national baseline.
Where we have been more directive, we have done so because we believe
it is critical to the safety of maltreatment victims or potential
victims, is foundational to the functioning of an APS system, or
because the APS community has requested granular policy direction.
These proscriptive requirements have been drawn from the evidence-
informed Consensus Guidelines and represent promising practices for APS
service delivery. We invite comment as to whether we have struck the
appropriate balance between setting a proscriptive minimum floor for
essential policies and procedures and leaving general implementation of
the policies and procedures to State discretion.
K. Effective Date
We propose an effective date for these provisions of three years
from date of issuance of the final rule.
L. Request for Comment
ACL seeks comment on all issues raised by this proposed regulation
as detailed above.
IV. Required Regulatory Analyses
A. Preliminary Regulatory Impact Analysis (Executive Orders 12866 and
13563)
1. Introduction
We have examined the impacts of the proposed 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 proposed rule is significant.
Therefore, OMB has reviewed this proposed 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 proposing ``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 $177 million, using the most current (2022) Implicit
Price Deflator for the Gross Domestic Product. This proposed rule would
not result in impacts that exceed this threshold.
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 proposed rule. We anticipate that the proposed 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 data sharing agreements between APS systems and
other State entities, require APS systems create a feedback loop to
provide information to mandatory reporters, require data reporting to
ACL, inform potential APS clients of their 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 will result in 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, (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
rulemaking is three years from the date of final publication. This is
to allow for variation in the timing of State legislative sessions. 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 proposed rule would result in a cost of $3,532,916.99 to fully
implement. This cost will be offset by improved investigations 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.
The analysis also includes a discussion of the potential benefits
under the rule that we do not quantify. We request comments on our
estimates
[[Page 62514]]
of the cost and benefits of this proposed rule, including the impacts
that are may not be quantified in this analysis.
A detailed discussion of costs and benefits associated with the
rulemaking follows.
a. Costs of the Proposed Rule
1. Revising Policies and Procedures
This analysis anticipates that the proposed rule would result in
one-time costs to State entities and APS programs to revise policies
and procedures. The majority of APS systems currently maintain policies
and procedures, often based on State statute. Data from our National
Process Evaluation Report of Adult Protective Services (OMB Control
Number 0985-0054) and State experiences incorporating concepts from the
Consensus Guidelines suggest our proposed rules will establish a
minimum standard that may reflect current practice in many States. 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 detail contained in policies and procedures
(if present) varies. 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.\57\
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\57\ 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.
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We estimate that roughly half of these entities will require more
extensive revisions, with the rest requiring limited revisions to their
current policies and procedures. We estimate that programs with more
extensive revisions will spend twenty (20) total hours on revisions per
entity. Of these, fifteen (15) would be spent by a mid-level manager
equivalent to a first-line supervisor (Occupation code 43-1011), at a
cost of $30.47 unadjusted hourly wage, $60.94 per hour adjusted for
non-wage benefits and indirect costs (15 x $60.94), 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
$55.41 per hour unadjusted hourly wage, $110.82 per hour adjusted for
non-wage benefits and indirect costs (5 x $110.82).\58\ For programs
with less extensive revisions, we assume fifteen (15) total hours spent
on revisions per entity. Of these, ten (10) hours would be spent by a
mid-level manager equivalent to a first-line supervisor (Occupation
code 43-1011), at a cost of $30.47 per hour unadjusted hourly wage,
$60.94 per hour adjusted for non-wage benefits and indirect costs (10 x
$60.94), 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 $55.41 unadjusted hourly wage, $110.82 adjusted
for non-wage benefits and indirect costs (5 x $110.82).
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\58\ Wages are multiplied by a factor of 2 for non-wage benefits
and indirect costs.
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We monetize the time that would be spent by APS programs on
revising policies and procedures by estimating a total cost per entity
of $1,468.02 or $1,163.50, depending on the extent of the revisions.
For the approximately 464 programs with less extensive revisions, we
estimate a cost of approximately $539,864. For the 464 programs with
more extensive revisions, we estimate a cost of approximately
$681,244.80.28. We estimate the total cost associated with revisions
with respect to the proposed rule for APS systems of $1,221,108.80.
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.
Due to variation in the types and sizes of State entities and
incomplete data on local programs, the above estimates of time and
number of entities that would revise their policies under the
regulation is difficult to calculate precisely.
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
proposed 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 \59\ at a cost of $63.64 unadjusted hourly
wage, $127.28 adjusted for non-wage benefits and indirect costs (3 x
$127.28), three (3) hours of staff time for one GS-13 equivalent at a
cost of $53.85 per unadjusted hourly wage, $107.70 per hour adjusted
for non-wage benefits and indirect costs (3 x $107.70), 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
$61.92 per hour unadjusted for non-wage benefits, $123.84 per hour
adjusted for non-wage benefits and indirect costs (3 x 5 x $123.84).
This is inclusive of time to prepare and conduct the trainings.
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\59\ Represents adjusted Federal salary in DC-VA-MD area,
<a href="https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/DCB.pdf">https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/DCB.pdf</a>.
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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 $2,562.54. For ten trainings a total of
$25,625.40.
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 two
(2) total hours (one (1) hour per employee) at a cost of $30.47 per
hour unadjusted hourly wage, $60.94 per hour adjusting for non-wage
benefits and indirect costs (2 x $60.94).
We monetize the time spent by State entities to prepare and conduct
trainings for local APS programs at $121.88 per training. For 15 State
entities we anticipate a total of $1,828.20.
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 three (3) hours to prepare and conduct a training of one
mid-level manager equivalent to a first-
[[Page 62515]]
line supervisor (BLS Occupation code 43-1011), at a cost of $30.47 per
hour unadjusted hourly wage, $60.94 after adjusting for non-wage
benefits and indirect costs (3 x $60.94). We monetize the time spent by
APS programs to prepare and conduct trainings at $182.82 (928 x
$182.82). We monetize the time spent by APS programs to train their
workers at $169,656.96.
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 $55.41 unadjusted hourly wage, $110.82 per
hour adjusted for non-wage benefits and indirect costs (414 x $110.82),
15 precent are first-line supervisor (Occupation code 43-1011), at a
cost of $60.94 per hour adjusting for non-wage benefits and indirect
costs (1,243 x $60.94) and 80 percent are Social and Human Service
Assistants (Occupation code 21-1093) at a cost of $19.45 per hour
unadjusted hourly wage, and $38.90 adjusted for non-wage benefits and
indirect costs. (6,629 x $38.90).
We monetize the time spent by APS staff to receive a one-hour
training at $379,496.
We monetize the total amount of time spent to give and receive
trainings at $576,606.56. Of this, $550,981.16 is State expense and
$25,625.40 is Federal expense.
3. Implementing New Policies and Procedures
The proposed 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, we
anticipate it would be a very minor on-going cost in total.
Cost to implement mandatory staff to client ratios: The provision
requiring States to establish a minimum staffing ratio is intended to
better enable States to ensure long-term continuity of programs. We
anticipate that this will be an on-going, cost neutral provision;
States have the discretion to set minimum staffing ratios consistent
with current practice, and therefore currently available resources. We
do not anticipate that States would commit to increasing staffing
ratios without a commensurate increase in Federal or other funding.
Consequently, we anticipate that this provision will not result in
increased cost to APS programs. We invite comment as to whether our
analysis of the potential financial burden of this proposal is
accurate.
Cost to implement a mandatory reporter feedback loop: According to
2021 ACL Evaluation survey and NAMRS data, of all reports nationally
which resulted in an investigation, 255,395 (59 percent) were made by
professionals. However, not all professionals are mandated reporters
and who is a mandated reporter varies by State. 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). One such response an APS program could make to a mandated
reporter is to send an email. If for each report leading to an
investigation received by a mandatory reporter, an APS program sends an
email in response, we anticipate a Social and Human Service Assistants
(Occupation code 21-1093) at a cost of $19.45 per hour unadjusted
hourly wage, and $38.90 adjusted for non-wage benefits and indirect
costs would spend ten (10) minutes sending the email. 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 $1,241,856.57 annually.
81 percent APS programs do not currently require a feedback loop
for mandatory reporters.\60\ To bring all States into compliance (.81 x
$1,241,856.57) with the proposed rules would amount to $1,005,903.82
annually.
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\60\ See supra note 53.
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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) MOUs (with,
for example, the Medicaid agency, the Long-term care ombudsman, and the
Protection and Advocacy System). Each MOU will take one mid-level
manager equivalent to a first-line supervisor (Occupation code 43-
1011), at a cost of $30.47 per hour unadjusted hourly wage, $60.94
after adjusting for non-wage benefits and indirect costs three (3)
hours to draft (3 x $60.94). It will take a privacy officer equivalent
to a lawyer (Occupation code 23-1011) at a cost of $78.74 unadjusted
hourly wage, $156.80 per hour adjusted for non-wage benefits and
indirect costs one (1) hour to review and approve (1 x $156.80). It
will take an executive staff equivalent to a general and operations
manager (Occupation code 11-1021), at a cost of $55.41 unadjusted
hourly wage, $110.82 per hour adjusted for non-wage benefits and
indirect costs two (2) hours (2 x $110.82) to review and approve. We
monetize the cost for one (1) State APS system to develop one (1) MOU
to be $561.26. For a State APS system to establish three (3) MOUs, we
monetize the cost to be $1,683.78. For fifty (50) State APS systems to
develop one MOUs we monetize the cost to be $84,189. 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 $84,189. We monetize the one-time
total cost of establishing data sharing agreements to be $168,378.
Cost to inform individuals of their rights under State law: We do
not currently have data on the number of States informing individuals
of their rights under State law. We know anecdotally some States offer
potential clients a paper brochure informing them 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
three (3) hours of staff time by a Social and Human Service Assistants
(Occupation code 21-1093) at a cost of $19.45 per hour unadjusted
hourly wage, and $38.90 adjusted for non-wage benefits and indirect
costs (3 x $38.90) and one (1) hour for a first-line supervisor
(Occupation code 43-1011), at a cost of $30.47 per hour unadjusted
hourly wage, $60.94 to review and approve (1 x $60.94) for a total of
$177.64 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 $177.64) at $9,947.84. According to our NAMRS data, 806,219 client
investigations were performed in FFY
[[Page 62516]]
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 .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 $195,378.21 in staff time and materials the
first year the policy is in place. Subsequently, States would incur
$185, 430.37 annually to implement this provision.
3. Data Reporting to ACL
In our proposed 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 not incur new data collection costs as
the result of this rulemaking. 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 maintained solely for the
purpose of submitting data in compliance with the proposed rules.
For data reporting from the State to ACL under the proposed
regulations, 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. 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. Using this measure as a proxy, we estimate the
proposed rule's data reporting requirements will cost a total of
$339,480 annually for all 56 State entities.
4. Record Retention
The proposed rule imposes a new requirement that APS programs
retain case data for five 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 two years.\61\ 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 one year. For this reason, the
cost to further store it for five years will create a de minimis cost
for APS.
---------------------------------------------------------------------------
\61\ The Admin. for Cmty. Living, Adult Maltreatment Report 2020
(2021) <a href="https://acl.gov/sites/default/files/programs/2021-10/2020_NAMRS_Report_ADA-Final_Update2.pdf">https://acl.gov/sites/default/files/programs/2021-10/2020_NAMRS_Report_ADA-Final_Update2.pdf</a>.
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5. State plans and NAMRS
This will be the first times State entities are required to develop
and submit State plans under section 2042 of the Elder Justice Act, 42
U.S.C. 1397m-1(b). However, States develop spending plans under 45 CFR
75.206(d) every three to five years and, based on our extensive
experience working with APS systems and OAA grantees on their State
plans, we do not anticipate a significantly greater level of detail for
the development of State plans. We anticipate for each State the
equivalent of two (2) hour of executive staff equivalent to a general
and operations manager (Occupation code 11-1021), at a cost of $55.41
per hour unadjusted adjusted hourly wage, $110.82 adjusted for non-wage
benefits and indirect costs (2 x $110.82), and four (4) hours of a
first-line supervisor (Occupation code 43-1011), at a cost of $30.47
per hour unadjusted hourly wage, $60.94 adjusting for non-wage benefits
and indirect costs (4 x $60.94). State plans will be updated every
three to five years. We monetize the cost of drafting one State plan at
$465.40. We monetize 56 State plans at $26,062.40.
1. Total Quantified Costs
a. One-Time Costs
------------------------------------------------------------------------
------------------------------------------------------------------------
Item of cost:
Policies and Procedures $1,221,108.80
Update.
-------------------------------------------
Policies and Procedures State............... Federal
Implementation.
-------------------------------------------
Training................ $550,981.16......... $25,625.40
-------------------------------------------
Policies and Procedures
Implementation:
Data Sharing Agreements. $168,378.00
-------------------------------------------
Policies and Procedures:
Informing Individuals of $9,947.84
Their Rights Under
State Law.
-------------------------------------------
Total............... $1,976,041.20
------------------------------------------------------------------------
b. Ongoing Costs (Annual)
------------------------------------------------------------------------
------------------------------------------------------------------------
Item of Cost:
Policies and Procedures Implementation:
Two-Tiered Response System............. $0
Policies and Procedures Implementation:
Staff to Client Ratios................. 0
Policies and Procedures Implementation:
Mandatory Reporter Feedback Loop....... 1,005,903.82
Policies and Procedures Implementation:
Informing Individuals of Their Rights 185,430.37
Under State Law.
Data reporting to ACL...................... 339,480.00
Record Retention........................... 0
[[Page 62517]]
State plan................................. 26,062.40 (renewed every
three to five years)
----------------------------
Total.................................. 1,556,876.59
------------------------------------------------------------------------
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.\62\ 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 elder financial
abuse in 2017.\63\ However, in 2016 three States projected the cost
could be over $1 billion in their State alone.\64\
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\62\ M.S. Lachs et al. The Mortality of Elder Mistreatment,
280(5) JAMA 428-432 (Aug. 1998) <a href="https://pubmed.ncbi.nlm.nih.gov/9701077/">https://pubmed.ncbi.nlm.nih.gov/9701077/</a>.
\63\ U.S. Consumer. Fin. Protection. Bur., Suspicious Activity
Reports on Elder Financial Exploitation: Issues and Trends (2019);
<a href="https://www.gao.gov/assets/gao-21-90.pdf">https://www.gao.gov/assets/gao-21-90.pdf</a>.
\64\ U.S. Gen. Acct. Off., GAO-21-90, HHS Could Do More to
Encourage State Reporting on the Costs of Financial Exploitation
(2020) <a href="https://www.gao.gov/assets/gao-21-90.pdf">https://www.gao.gov/assets/gao-21-90.pdf</a>.
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While this proposed 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 and mitigate harm as it is occurring. We anticipate
this could reduce the number of deaths that may occur during the course
of an APS investigation.
Generally speaking, the benefits of the rule are difficult to
quantify. The minimum standards proposed by the NPRM are in direct
response to requests from APS systems for more guidance and uniformity
in policy within and among States. We anticipate that if implemented,
the rule would 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 hour per day, 7 days per week reporting
acceptance protocols, an individual experiencing maltreatment may be
identified earlier, and an investigation could commence and intervene
sooner. Staffing ratios can promote adequate staffing, allowing a
worker to devote more time to a case. Training requirements allow
caseworkers to better handle and resolve cases. It may also decrease
repeat abuse through post-investigation services.
Similarly, proposals on 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.
Another example of a difficult to quantify benefit is a
standardized timeframe for case record retention. There are currently
no minimum requirements for States to retain their records. The
proposed rule's five-year minimum retention period facilitates States'
ability to track victims and perpetrators across time to deter abuse
and identify recidivism while minimizing administrative burden.
The proposed rules were 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 allowing APS to apprehend perpetrators of adult
maltreatment with greater frequency and accuracy, 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. Alternatively, the agency head may certify
that the rule will not have a significant economic impact on a
substantial number of small entities. ACL does not anticipate that this
rulemaking will 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.\65\ 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.\66\
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\65\ The Northern Mariana Islands and American Samoa currently
have no staffed program; they are in the process of developing one.
\66\ See supra note 4, at 20.
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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.\67\ 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.
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\67\ We have made our calculations based on 2022 Census Bureau
Data.
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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 $63,087.80. 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 would
incur $985.75 in implementation expenses per year. Much of this would
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 the rule, each small entity would incur $4,731.58 in
expense per year, much of this representing a one-time expense.
[[Page 62518]]
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
proposed rule and find that if finalized, 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 proposed 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, 42 U.S.C. 1397m-1(b)
is contingent upon compliance with these proposed rules. Many States
are already in substantial compliance with this proposal, 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 proposed
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 will also review comments on the proposed rule from
State and local officials and consider any additional concerns in
developing a final rule.
Nature of Concerns and the Need To Issue This Proposed 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.'' \68\
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\68\ Report on the Updates to the Voluntary Consensus Guidelines
for APS Systems, Appendix 3: 19, <a href="https://acl.gov/sites/default/files/programs/2020-05/ACL-Appendix_3.fin_508.pdf">https://acl.gov/sites/default/files/programs/2020-05/ACL-Appendix_3.fin_508.pdf</a>.
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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 proposed 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 proposed provisions in the manner best suited to State
needs.
Extent To Which We Meet Those Concerns
In FY 2021, Congress provided the first dedicated appropriation to
implement the Elder Justice Act 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, totaling $188 million, and another $188
million in FY 2022. The recent Consolidated Appropriations Act of 2023
included an 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 proposed regulation and meet the concerns
commenters raised in 2019 around dedicated funding for APS systems.
Additionally, the regulatory changes we propose have already been
implemented by many States, and we believe the benefit of the proposed
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
will solicit input from affected Federally recognized Tribes as we
develop these updated regulations and will conduct a Tribal
consultation meeting [exact date to be specified in NPRM when NPRM
publication date is known].
E. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 requires
that a covered agency prepare a budgetary impact Statement before
promulgating a 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 million or more in any one
year. If a covered agency must prepare a budgetary impact Statement,
section 205 further requires that it select the most cost-effective and
least burdensome alternative that achieves the objectives of the rule
and is consistent with the statutory requirements. In addition, section
203 requires a plan for informing and advising any small governments
that may be significantly or uniquely impacted by the rule. We have
determined that this rulemaking would not result in the expenditure by
State, local, and Tribal governments, in the aggregate, or by the
private sector, of more than $100 million in any one year.
[[Page 62519]]
Accordingly, we have not prepared a budgetary impact Statement,
specifically addressed the regulatory alternatives considered, or
prepared a plan for informing and advising any significantly or
uniquely impacted small governments.
F. 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
rule and would welcome any comment from the public about how to make
this rulemaking easier to read and understand.
G. Paperwork Reduction Act (PRA)
The proposed 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 rights under State law, and a requirement that States
generate, maintain, and retain information and 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: $26,062.40 (renewed every three to five years);
(2) Program performance data collection: $339,480.00 (annually);
(3) Creation of written policies and procedures: $1,221,108.00
(one-time expense);
(4) Disclosure to potential clients their rights under State law:
$195,378.21 ($9,947.84 in one-time expense and $185,430.37 annually);
(5) Creation and maintenance of data sharing agreements:
$168,378.00 (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 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 proposes to amend 45
CFR part 1324 as follows:
0
1. Add subpart D to read as follows:
PART 1324--ALLOTMENTS FOR VULNERABLE ELDER RIGHTS PROTECTION
ACTIVITIES
Subpart D--Adult Protective Services Programs
Sec.
1324.400 Eligibility for funding.
1324.401 Definitions.
1324.402 Program administration.
1324.403 Investigation and post-investigation services.
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.
To be eligible for funding under 42 U.S.C. 1397m-1(b) State
entities are required to adhere to all provisions contained herein.
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 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.
Adult Protective Services (APS) means such services provided to
adults as the Assistant Secretary for Aging may specify in guidance and
includes such services as:
(1) Receiving reports of adult abuse, neglect, exploitation, sexual
abuse, and 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 (APS) System means the totality of both
the State entity and the local APS programs.
Allegation means an accusation of adult maltreatment associated
with each adult in a report made to APS. There may be multiple
allegations in an investigation.
At risk of harm means the possibility that an individual will
experience an event, illness, condition, disease, disorder, injury, or
other outcome that is adverse or detrimental and undesirable.
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.
Client means an adult who is the subject of an investigation by APS
regarding a report of alleged adult maltreatment.
Conflict of Interest means a situation that interferes with a
program or program representative's ability to provide objective
information or act in the best interests of the adult. A conflict of
interest would arise when an employee, officer, or agent of APS, any
member of their immediate family, their partner, or an organization
which employs or is about to employ any of the parties indicated
herein, has a financial or other interest in or a tangible personal
benefit from their affiliation with APS systems.
Dual relationship means relationships 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 emergency use of APS funds to
purchase goods or services, immediate access to petitioning the court
for temporary or emergency orders, and emergency out-of-home placement.
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.
[[Page 62520]]
Inconclusive means a determination that there was not sufficient
evidence obtained during an APS investigation for APS to conclude
whether adult maltreatment occurred.
Intake or pre-screening means the APS process of receiving
allegations of adult maltreatment 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 an allegation of adult maltreatment to determine if
the circumstances of the allegation meet the States 's standards of
evidence for a finding of a substantiated, unsubstantiated, or
inconclusive allegation.
Mandated Reporter means someone who is required by State law to
report suspected adult maltreatment to APS.
Neglect means the failure of a caregiver or fiduciary to provide
the goods or services that are necessary to maintain the health or
safety of an adult.
Perpetrator means the person determined by APS to be responsible
for one or more instances of adult maltreatment for one or more
victims.
Post-investigation Services means the activities undertaken by APS
in support of a client after a finding on an allegation of adult
maltreatment has been made.
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.
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 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;
(3) Managing one's own financial affairs.
Sexual abuse means the forced and/or unwanted sexual interaction
(touching and non-touching acts) of any kind with an adult.
State entity means the unit 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 receives Federal grant funding from ACL under
section 2042(b) of the EJA, 42 U.S.C. 1397m-1(b).
Substantiated means APS has made an investigation disposition that
the allegation of maltreatment meets state law or agency policy for
concluding that the adult was maltreated.
Trust relationship means 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.
Unsubstantiated means that APS has made an investigation
disposition that the allegation of maltreatment does not meet State law
or agency policy for concluding that the adult was maltreated.
Victim means an adult who has experienced adult maltreatment.
Sec. 1324.402 Program administration.
(a) The State entity shall create and implement policies and
procedures for APS systems to receive and respond to reports of adult
maltreatment in a standardized fashion. Such policies and procedures,
at a minimum, shall:
(1) Incorporate principles of person-directed services and planning
and reliance on least restrictive alternatives, as well as other
policies identified by the Assistant Secretary for Aging;
(2) Define the populations eligible for APS services;
(3) Define the settings, locations, and types of alleged
perpetrator for each adult maltreatment type that are subject to APS
investigations in the State;
(4) Define processes for receiving, screening, prioritizing, and
referring cases based on risk and type of adult maltreatment 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 risk of death, irreparable
harm, or significant loss of income, assets, or resources.
(A) For immediate risk, response should occur in person no later
than twenty-four hours after receiving a report of adult maltreatment.
(B) For non-immediate risk, response should occur no more than
seven calendar days after report of adult maltreatment is received.
(5) Define investigation and post-investigation procedures, as
identified in Sec. 1324.403.
(b) At first contact APS systems shall provide to potential APS
clients an explanation of their rights, including:
(1) The right under State law to confidentiality of personal
information;
(2) The right under State law to refuse to speak to APS;
(3) The right under State law to refuse APS services, and;
(4) Such other explanations of rights as determined by the
Assistant Secretary for Aging.
(c) Information shall be provided in a format and language
understandable by the individual, and in alternative formats as needed.
(d) 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;
(2) Staff supervision, and;
(3) Staff to client ratios.
(e) The State entity shall establish such other program
administration policies and procedures and provide other information to
APS clients as established by the Assistant Secretary for Aging.
Sec. 1324.403 Investigation and post-investigation services.
The State entity shall adopt standardized and systematic policies
and procedures for APS investigation and post-investigation activities
across and within the State including, at a minimum:
(a) Screening, triaging, and decision-making criteria or protocols
to review and assign adult maltreatment reports for APS investigation,
and to report to other authorities;
(b) Tools and/or decision-making processes for APS to review
reports of adult maltreatment 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 inform allegation disposition and service planning that
will:
(1) Recognize acceptance of APS services is voluntary, except where
limited by State law;
(2) Ensure safety of APS client and worker;
(3) Ensure the preservation of an adult's rights;
(4) Integrate principles of person-directedness and trauma-informed
approaches;
[[Page 62521]]
(5) Maximize engagement with the APS client, and;
(6) 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 self-harm or harm from others.
(d) Methods to make determinations 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 determination on allegations.
(e) Provision of APS post-investigation 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) Hold perpetrators accountable for the adult maltreatment and
for stopping the abusive behavior;
(4) Develop any service plan or referrals in consultation and
agreement with the client;
(5) Engage community partners through referrals for services or
purchase of services where services are not directly provided by APS,
and;
(6) Monitor the status of client and services, and the impact of
services.
(f) Case handling criteria that:
(1) Establish timeframes for on-going review of open cases;
(2) Establish length of time by which investigations should be
completed, and determinations be made; and
(3) Documents, at a minimum:
(i) The APS interventions and services delivered;
(ii) Significant changes in client status;
(iii) Assessment of the outcome and efficacy of intervention and
services;
(iv) Assessment of safety and risk at case closure; and
(v) The reason or decision 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 existing conflicts of interest at organizational
and individual levels, including to:
(a) Ensure that employees and agents engaged in any part of an APS
investigation do not also provide direct services to, or oversee the
direct provision of services, to the client;
(b) Ensure that employees and agents administering APS programs do
not have a personal financial interest in an entity to which an APS
program they refer clients to services recommended by the APS program;
(c) Ensure that no APS employee or agent, or member of an employee
or agent's immediate family, is subject to conflict of interest;
(d) Prohibit dual relationships unless unavoidable and ensure
appropriate safeguards are established should such relationships occur;
(e) Establish robust monitoring and oversight, to identify conflict
of interest, and;
(f) Remove and remedy actual, perceived, or potential conflicts
that arise.
Sec. 1324.405 Accepting reports.
(a) The State entity shall establish standardized policies and
procedures for receiving reports of adult maltreatment 24 hours per
day, 7 calendar days per week, using multiple methods of reporting to
ensure accessibility.
(b) The State entity shall establish standardized policies and
procedures for APS to accept reports of alleged adult maltreatment by
mandatory reporters that:
(1) Shares information regarding a report to APS with the mandated
reporter which shall include, at a minimum:
(i) Whether a case has been opened as a result of the report, and;
(ii) The disposition or finding of the allegation in the report.
(c) The State entity shall establish and adhere to standardized
policies and procedures to maintain the confidentiality of 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 with other appropriate
entities, including but not limited to:
(1) Other APS programs in the state, 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, the State Medicaid
agency, State nursing home licensing and certification, State
department of health and licensing and certification, and 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,
and Federal law enforcement agencies;
(4) Organizations with authority to advocate on behalf of
individuals who experienced the 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, at a minimum:
(1) Address coordination and collaboration to detect, prevent,
address, and remedy adult maltreatment during all stages of an adult
maltreatment investigation conducted by APS or by other agencies and
organizations with authority and jurisdiction to investigate reports of
adult maltreatment;
(2) Address information sharing on the status and resolution of
investigations between the APS system and other entities responsible in
the state or other jurisdiction for investigation, to the extent
permissible under applicable State law, and;
(3) Allow for the establishment of memoranda of understanding,
where appropriate, to facilitate information exchanges, quality
assurance activities, cross-training, development of formal
multidisciplinary and cross agency adult maltreatment teams, co-
location of staff within appropriate agencies, and other activities as
determined by the State entity.
Sec. 1324.407 APS program performance.
The State entity shall develop policies and procedures for APS for
the collection and maintenance of data on investigations conducted by
APS systems. They shall:
(a) Collect and report annually to ACL such APS system-wide data as
required by the Assistant Secretary for Aging.
(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 Deputy Assistant Secretary for Aging.
[[Page 62522]]
(b) The State plan shall be developed by the State entity in
collaboration with APS programs.
(c) The State plan shall be updated at least every five years but
as frequently as every three years.
(d) The State plan shall contain an assurance that all policies and
procedures described 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 within 30 calendar days of 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. 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 within 30 calendar days of the date of the Deputy
Assistant Secretary for Aging's decision.
Dated: September 6, 2023.
Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2023-19516 Filed 9-11-23; 8:45 am]
BILLING CODE 4154-01-P
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</html>Indexed from Federal Register on September 12, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.