Rule2024-07654
Adult Protective Services Functions and Grants Programs
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 8, 2024
Effective
June 7, 2024
Issuing agencies
Health and Human Services DepartmentCommunity Living Administration
Abstract
ACL is issuing this Final Rule to modify the implementing regulations of the Older Americans Act of 1965 ("the Act" or OAA) to add a new subpart (Subpart D) related to Adult Protective Services (APS).
Full Text
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[Federal Register Volume 89, Number 90 (Wednesday, May 8, 2024)]
[Rules and Regulations]
[Pages 39488-39530]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-07654]
[[Page 39487]]
Vol. 89
Wednesday,
No. 90
May 8, 2024
Part IX
Department of Health and Human Services
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Administration for Community Living
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45 CFR Part 1324
Adult Protective Services Functions and Grants Programs; Final Rule
Federal Register / Vol. 89 , No. 90 / Wednesday, May 8, 2024 / Rules
and Regulations
[[Page 39488]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Community Living
45 CFR Part 1324
RIN 0985-AA18
Adult Protective Services Functions and Grants Programs
AGENCY: Administration for Community Living (ACL), Department of Health
and Human Services (HHS).
ACTION: Final rule.
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SUMMARY: ACL is issuing this Final Rule to modify the implementing
regulations of the Older Americans Act of 1965 (``the Act'' or OAA) to
add a new subpart (Subpart D) related to Adult Protective Services
(APS).
DATES:
Effective date: This final rule is effective on June 7, 2024.
Compliance date: May 8, 2028.
FOR FURTHER INFORMATION CONTACT: Stephanie Whittier Eliason, Team Lead,
Office of Elder Justice and Adult Protective Services, Administration
on Aging, Administration for Community Living, Department of Health and
Human Services, 330 C Street SW, Washington, DC 20201. Email:
<a href="/cdn-cgi/l/email-protection#194a6d7c69717877707c374e71706d6d707c6b5c7570786a767759787a753771716a377e766f"><span class="__cf_email__" data-cfemail="4e1d3a2b3e262f20272b601926273a3a272b3c0b22272f3d21200e2f2d226026263d60292138">[email protected]</span></a>, Telephone: (202) 795-7467 or
(TDD).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Statutory and Regulatory History and Reasons for the Proposed
Rulemaking
B. Overview of the Final Rule
C. Severability
II. Provisions of the Final Rule and Responses to Public Comments
III. Adult Protective Services Systems
A. Section 1324.400 Eligibility for Funding
B. Section 1324.401 Definitions
C. Section 1324.402 Program Administration
D. Section 1324.403 APS Response
E. Section 1324.404 Conflict of Interest
F. Section 1324.405 Accepting Reports
G. Section 1324.406 Coordination with Other Entities
H. Section 1324.407 APS Program Performance
I. Section 1324.408 State Plans
IV. Required Regulatory Analyses
A. Regulatory Impact Analysis (Executive Orders 12866 and 13563)
B. Regulatory Flexibility Act
C. Executive Order 13132 (Federalism)
D. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
E. Plain Language in Government Writing
F. Paperwork Reduction Act (PRA)
I. Background
ACL is issuing this final rule modifying 45 CFR part 1324 of the
implementing regulations of the Older Americans Act of 1965 (OAA or
``the Act'') to add a new subpart (subpart D). The rule exercises ACL's
authority to regulate Adult Protective Services (APS) systems under
section 201(e)(3) of the Act, 42 U.S.C. 3011(e)(3) and section 2042(a)
and (b) of the Elder Justice Act (EJA), 42 U.S.C. 1397m-1(a) and (b).
Adult maltreatment is associated with significant harm to physical
and mental health, as well as financial losses. Older adults and adults
with disabilities may also experience deteriorated family
relationships, diminished autonomy, and institutionalization, all of
which can impact quality of life.\1\ Studies have found that at least
one in ten community-dwelling older adults experienced some form of
abuse or potential neglect in the prior year.\2\ A recent study of
intimate partner violence among older adults found past 12-month
prevalence of intimate partner psychological aggression, physical
violence, and sexual violence by any perpetrator was 2.1%, 0.8%, and
1.7%, respectively.\3\
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\1\ Mengting Li & XinQi Dong, Association Between Different
Forms of Elder Mistreatment and Cognitive Change, 33 J. of Aging and
Health, 249 (2020), <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\ Zhang Kudon H, Herbst JH, Richardson LC, Smith SG, Demissie
Z, Siordia C. Prevalence estimates and factors associated with
violence among older adults: National Intimate Partner and Sexual
Violence (NISVS) Survey, 2016/2017. J Elder Abuse Negl. 2023 Dec
21:1-17. doi: 10.1080/08946566.2023.2297227. Online ahead of print.
PMID: 38129823.
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APS plays a critical role in the lives of older adults and adults
with disabilities that may be subject to adult maltreatment. APS
programs receive and respond to reports of adult maltreatment and self-
neglect and work closely with adults and a wide variety of allied
professionals to maximize safety and independence and provide a range
of services to those they serve. APS programs often link adults subject
to maltreatment to community social, physical health, behavioral
health, and legal services to help them maintain independence and
remain in the settings in which they prefer to live. APS programs are
also often the avenue through which adult maltreatment is reported to
law enforcement or other agencies of the criminal justice system.
APS is a social and human services program. Working collaboratively
and with the consent of the client, APS caseworkers develop service
plans and connect the client to social, health, and human services. As
a social services program, the ``findings'' in an APS case are not
legal determinations, either civil or criminal. If APS suspects that an
act of maltreatment falls under a State's criminal statutes, APS will
refer the case to law enforcement. APS systems work in close
collaboration with law enforcement and emergency management systems to
address the needs of older adults and adults with disabilities who are
the victim of criminal acts, including but not limited to assault and
sexual assault.
As discussed in greater detail in the Statutory and Regulatory
History, until 2021, APS systems were funded primarily through a
variety of local and State resources. All States now accept Federal
funding, including EJA funding, for their APS systems in addition to
their State and local funding. This final rule creates the first
mandatory Federal standards to govern APS policies, procedures, and
practices. State APS systems and programs will be required to comply
with the final rule to receive Federal EJA funding. Thus far, the
absence of Federal standards has resulted in significant program
variation across and within States and, in some cases, sub-standard
quality according to APS staff and other community members.
In 2021, ACL fielded a survey (OMB Control No. 0985-0071) of 51 APS
systems (the 50 States and the District
[[Page 39489]]
of Columbia).\4\ Results from that survey, which included State policy
profiles, along with an analysis of the 2020 National Adult
Maltreatment Reporting System (NAMRS) \5\ data, illustrate the wide
variability across APS programs.\6\
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\4\ Adult Protective Services Technical Assistance Resource
Center (2023). National Process Evaluation of the Adult Protective
Services System. Submitted to the Administration for Community
Living, U.S. Department of Health and Human Services. The U.S.
Territories are not included in the analysis. Extant policy
information was not available from the Territories, thus were not
included in the APS Policy Review or APS Systems Outcomes Analysis.
They were able to participate in the APS Practice Survey, and their
data are included in internal survey results reported to ACL.
\5\ NAMRS is a data reporting system established and operated by
ACL for the purpose of better understanding of adult maltreatment in
the United States. The data collected is submitted by all APS
programs in all states, the District of Columbia, and the
Territories. NAMRS annually collects data on APS investigations of
abuse, neglect and exploitation of older adults and adults with
disabilities, as well as information on the administration of APS
programs. The data provide an understanding of key program policies,
characteristics of those experiencing and perpetrating maltreatment,
information on the types of maltreatment investigated, and
information on services to address the maltreatment. For more
information, visit: The Admin. For Cmty. Living, National Adult
Maltreatment Reporting System, <a href="http://www.namrs.acl.gov">www.namrs.acl.gov</a> (last visited April
18, 2023).
\6\ We refer to ``States'' in this rule to encompass all fifty
States, the District of Columbia, and the five Territories (American
Samoa, Commonwealth of the Northern Mariana Islands, Guam, Puerto
Rico, and U.S. Virgin Islands).
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As discussed in the Definitions section, an APS system is made up
of both the State entity (e.g., the department of health and human
services) or entities that receive State and Federal funding for APS,
including EJA funding, and the local APS programs that provide adult
protective services.\7\ While the State entities establish APS policy,
conduct training, administer funding, and provide information
technology infrastructure support to local APS programs in almost all
APS systems,\8\ 27 States have indicated the need for greater
consistency in practice.\9\ States identified specific obstacles that
included: a lack of resources for oversight in general or quality
assurance processes specifically, differing policy interpretations
across local programs, and not enough supervisors.\10\
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\7\ See infra note 24. In addition to ACL formula grants, States
may receive Title XX Social Services Block Grant (SSBG) funding.
However, States have discretion for whether and how much of their
SSBG funding they choose to allocate to APS. Not all States use SSBG
funding for their APS systems.
\8\ For example, 76 percent of APS programs indicate that their
State exerts ``significant'' control over local APS operations. See
supra note 4 at 20.
\9\ See supra note 4 at 21.
\10\ Id.
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To elevate uniform, evidence-informed practices across APS
programs, ACL issued Voluntary Consensus Guidelines for State APS
Systems (Consensus Guidelines) in 2016, which were subsequently updated
in 2020.\11\ In developing the Consensus Guidelines, ACL applied Office
of Management and Budget (OMB) and National Institutes of Standards and
Technology (NIST) standards and processes for creating field-developed,
consensus-driven guidelines.\12\ The Consensus Guidelines represent
recommendations from the field based on their experience and expertise
serving adults and communities and provide a core set of principles and
common expectations to encourage consistency in practice, ensure adults
are afforded similar protections and APS services regardless of locale,
and support interdisciplinary and interagency coordination.
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\11\ For detailed information on the development process for the
2016 and subsequent 2020 Consensus Guidelines, see The Admin. For
Cmty. Living, Final National Voluntary Guidelines for State Adult
Protective Services Systems (2016), <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).
\12\ Off. of Mgmt. & Budget, Exec. Off. of the President, OMB
Circular A-119, Federal Participation in the Development and Use of
Voluntary Consensus Standards and in Conformity Assessment
Activities, <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).
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This final rule is informed by the input of commenters; the
extensive research, analysis, community input in the development of our
Consensus Guidelines and recommendations borne out of that process;
experience and information from our NAMRS data; and the 2021 51 State
National Process Evaluation Report.\13\
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\13\ See supra note 4.
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A. Statutory and Regulatory History and Reasons for the Proposed
Rulemaking
APS programs have historically been primarily funded by States and
administered by States and localities. They have been recognized in
Federal law since 1974, when the Social Security Act was amended by the
Social Services Amendments of 1974 (Pub. L. 93-647), 42 U.S.C.
1397a(a)(2)(A), to permit States to use Social Services Block Grant
(SSBG) funding under Title XX for APS programming. However, while most
States currently use SSBG funding for their APS programs, the amount of
SSBG funding allocated to APS varies, and the allocations are
limited.\14\
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\14\ For example, South Carolina had the highest SSBG
expenditure for Vulnerable and Elderly Adults in FY 2020 at
$14,311,707 representing 58 percent of their entire block grant. The
Dep't. of Health and Hum. Servs., Social Services Block Grant:
Fiscal Year 2020. Ann. Rep. (2020). <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. Therefore, the EJA and the OAA
provide the Assistant Secretary with broad authority to coordinate,
regulate, and fund State APS systems.
Through the enactment of the EJA in 2010, Congress again recognized
the need for a more coordinated national elder justice and APS system.
The EJA creates a national structure to promote research and technical
assistance to
[[Page 39490]]
support Federal, State, and local elder justice efforts, as well as
authorization for dedicated APS funding. A component of the EJA is
specifically designed to address the need for better Federal
leadership. The Federal Elder Justice Coordinating Council (EJCC) is
established by the EJA \15\ to coordinate activities across the Federal
government that are related to elder abuse, neglect, and exploitation.
The EJA designates the Secretary of HHS to chair the EJCC, and
continually since the establishment of the EJCC in 2012, the HHS
Secretary has designated that responsibility to the Assistant Secretary
for Aging. Under the chairmanship of the Assistant Secretary for Aging,
and since its establishment, the EJCC has met regularly, soliciting
input from the APS community--ranging from individual citizens to
expert practitioners and industry associations--on identifying and
proposing solutions to the problems surrounding elder abuse, neglect,
and financial exploitation, and for strengthening national support for
APS.\16\
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\15\ 42 U.S.C. 1397k.
\16\ The Admin. for Cmty. Living, Federal Elder Justice
Coordinating Council, <a href="https://ejcc.acl.gov/">https://ejcc.acl.gov/</a> (last visited Apr. 18,
2023).
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On numerous occasions, the APS community has stressed the need for
more Federal guidance, leadership, stewardship, resources, and support
for State and local APS programs and for victims of adult maltreatment.
Advocates have requested greater funding and Federal regulatory
guidance for APS systems in their testimony before Congress,\17\ in
their statements to the EJCC,\18\ and in peer-reviewed journals.\19\
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\17\ Public and Outside Witness, Hearing Before the Subcomm. on
Lab., Health and Hum. Servs. Educ. & Related Agencies of the House
Appropriations Comm., 113th Cong. (2014) (statement of Kathleen M.
Quinn, Exec. Dir. of the Nat'l. Adult Protective Servs. Ass'n.)
<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>.
\18\ 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/EJCC/Meetings/2012_10_11.aspx">http://www.aoa.acl.gov/AoA_Programs/Elder_Rights/EJCC/Meetings/2012_10_11.aspx</a>.
\19\ Kathleen Quinn & William Benson, The States' Elder Abuse
Victim Services: A System in Search of Support, 36 Generations 66
(2012).
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The Government Accountability Office (GAO) conducted three studies
between 2010 and 2013 on the topics of abuse, neglect, and exploitation
to shed light on the need for Federal leadership. The studies' findings
repeatedly recommend a coordinated, Federal response to address the
gaps in public awareness, prevention, intervention, coordination, and
research of elder maltreatment, as well as a Federal ``home'' for
APS.\20\
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\20\ U.S. Gen. Acct. Off., GAO-11-208, Elder Justice: Stronger
Federal Leadership Could Enhance National Response to Elder Abuse
(2011) <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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Since Fiscal Year (FY) 2015, Congress has appropriated funds to ACL
in support of APS through section 2042(a) and 2401(c) of the EJA, 42
U.S.C. 1397m-1(a) and 42 U.S.C. 1397m(c). This funding is used to
collect data, disseminate best practices, and provide discretionary
elder justice demonstration grants.\21\ In FY 2021, Congress provided
the first dedicated appropriation to implement the EJA section 2042(b),
42 U.S.C. 1397m-1(b), formula grants to all States, the District of
Columbia, and the Territories to enhance APS with one-time funding in
response to the COVID-19 pandemic, totaling $188 million, and another
$188 million in FY 2022.\22\ The recent Consolidated Appropriations Act
of 2023 included the first ongoing annual appropriation of $15 million
to ACL to continue providing formula grants to APS programs under the
EJA section 2042(b), 42 U.S.C. 1397m-1(b).\23\
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\21\ 42 U.S.C. 1397m-1.
\22\ Coronavirus Response and Relief Supplemental Appropriations
Act of 2021, Public Law 116-260, 134 Stat. 1182; American Rescue
Plan Act of 2021, Public Law 117-2, 135 Stat. 4.
\23\ Consolidated Appropriations Act, 2023, Public Law 117-328.
FY 21 and 22 funding was one-time funding to help with start-up
costs and infrastructure and the surge of needs during the COVID-19
Public Health Emergency. FY 23 funding was the first ongoing formula
grant funding to State grantees.
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This rule represents the first exercise of ACL's regulatory
authority over APS under the OAA and the EJA. While we have issued sub-
regulatory guidance, including comprehensive Consensus Guidelines in
2016 and 2020 that include APS evidence-informed practices, we believe
it is necessary to codify and clarify a set of mandatory minimum
national standards to ensure uniformity across APS programs and to
promote high quality service delivery that thus far has not been
achieved under the current Consensus Guidelines.
This final rule requires the State entity to establish written
policies and procedures in areas of significant APS practice and
establishes minimum Federal standards above and beyond which States may
impose additional requirements on their APS systems, as discussed in
greater depth herein.
B. Overview of the Final Rule
This final rule adopts the same structure and framework as the
proposed rule. Section II provides a discussion of the Final Rule and
response to comments, including general comments received on the NPRM
and on individual provisions of the rule. Our Final Rule is a direct
response to feedback from interested parties and reflects input about
the evolving needs of APS systems.
We have made changes to the proposed rule's provisions based on the
comments we received, including making changes to requirements
commenters asserted would create significant burden or be difficult to
implement. We have also provided clarification on several provisions in
the preamble. Among the notable changes and significant clarifications
are the following:
We have lengthened the implementation timeline by delaying the
compliance date from 3 years after the publication of this rule to 4
years, and we discuss how States can work with ACL to address specific
requirements that may need additional time through corrective actions
plans.
Section 1324.401 addresses definitions used in the final rule. The
definitions are foundational terms used in APS practices. In response
to commenter feedback, ACL added definitions for ``finding,''
``report'' and ``response.'' We also revised the terms ``abuse,''
``adult maltreatment,'' ``at risk of harm,'' ``emergency protective
action,'' ``exploitation,'' ``investigation,'' ``mandated reporter,''
``self-neglect,'' and ``sexual abuse.'' We removed the terms
``inconclusive,'' ``post-investigative services,'' ``substantiated,''
``trust relationship,'' and ``unsubstantiated.''
To clarify expectations around State adoption of the definitions in
Sec. 1324.401, we added new Sec. 1324.402(a)(5) (Program
Administration) explaining that State entities are not required to
uniformly adopt the regulatory definitions, but State definitions may
not narrow the scope of adults eligible for APS or services provided.
The final rule requires States to establish definitions for APS systems
that collectively incorporate every defined term and all of the
elements of the definitions contained in Sec. 1324.401. States must
then provide assurances in their State plans that their definitions
meet or exceed the minimum standard established by this Final Rule.
We clarified in Sec. 1324.402(b)(2)(i)(A) that the requirement for
a 24-hour
[[Page 39491]]
immediate need response can be fulfilled through a partnership with
Emergency Management Systems, Law Enforcement, or other appropriate
community resource with 24-hour response capability.
We clarified in Sec. 1324.402(c) State APS-related client rights
do not need to be provided in very first moment of first contact and
that client rights do not need to be provided in writing (APS programs
may choose how they wish to provide clients notice of their rights).
We modified proposed Sec. 1324.402(d) to remove the requirement
that State APS entities set staff-to-client ratios.
We modified proposed Sec. 1324.403 (Investigation and Post-
Investigation Services) by renaming it ``APS Response'' in response to
commenter feedback.
We amended proposed Sec. 1324.403(c)(6) by dividing it into Sec.
132.403(c)(6): ``permit APS the emergency use of APS funds to buy goods
and services'' and Sec. 1324.403(c)(7) ``permit APS to seek emergency
protective action only as appropriate and necessary as a measure of
last resort to protect the life and wellbeing of the client from harm
from others or self-harm'' in conformity with revised definition of
``emergency protective services'' and to better reflect APS practice
and ACL policy around emergency protective action.
We removed Sec. 1324.403(e)(6), which required APS systems to
monitor the status of clients and the impact of services. Similarly, we
removed Sec. 1324.403(f)(3)(iii), which required APS programs to
assess the outcome and efficacy of intervention and services. We
believe this data can be adequately captured by our Program Performance
requirements at Sec. 1324.407.
In Sec. 1324.404 (Conflict of Interest), we removed proposed Sec.
1324.404(a) that required APS systems to ensure that APS employees and
agents did not simultaneously provide or oversee direct services to
clients during the course of an investigation.
We added to new Sec. 1324.404(a) and Sec. 1324.404(b) (formerly
proposed Sec. 404(b) and Sec. 404(c) respectively) and amended to
include ``member of immediate family or household'' [emphasis added] to
widen scope of who is captured by COI provisions.
We moved proposed Sec. 1324.404(e) to new Sec. 1324.404(c)
requiring APS establish monitoring and oversight protocol.
We expanded and finalized at Sec. 1324.404(d)(1)-(2) to prohibit
dual relationships unless unavoidable and when APS petitions for or
serves as guardian, the dual relationship is unavoidable only if less
restrictive alternatives to guardianship have been considered and
either (i) a court has instructed the APS program to petition for or
serve as a guardian or; (ii) there is no other qualified individual/
entity available to petition for or serve as guardians. For all dual
relationships APS must describe and document mitigation strategies in
the case record to address conflicts of interest.
We added Sec. 1324.405(a) (Accepting Reports) that 24 hour per day
seven calendar day per week requirement for accepting reports does not
mean a live APS worker must field reports--rather, it refers to 24 hour
per day, seven calendar day per week reporting portal. We likewise
clarified that APS programs must maintain at least two methods of
reporting and one method of reporting must be an online portal, secured
email address, or other online method.
We removed proposed Sec. 1324.405(b)(ii), which required APS to
share with a mandated reporter the finding of an allegation in a report
made by the mandated reporter. New Sec. 1324.405(b)(1)-(2) adds the
requirement that a mandated reporter only be notified upon their
request. APS must only inform the reporter if a case has been opened
because of their report, with the prior consent of the adult on whose
behalf the case was opened. Relatedly, we have modified to definition
of ``mandated reporter'' to apply only to mandated reporters reporting
in their professional capacity.
We modified proposed Sec. 1324.406 (Coordination with Other
Entities) to add Tribal APS programs to Sec. 1324.406(a)(1). We
modified proposed Sec. 1324.406(a)(2) to reference coordination with
State Medicaid agencies ``for the purposes of coordination with respect
to critical incidents.''
We modified Sec. 1324.406(a)(3) to add State securities and
financial regulators, and Federal financial and securities enforcement
agencies.
We have made clarifying edits and preamble text proposed Sec.
1324.406(b)(3) that APS Systems should facilitate (but are not
required) to enter into formal data sharing agreements or MOUs.
Informal arrangements may also be appropriate.
We modified proposed Sec. 1324.408 (State Plans) to clarify that
the State APS entity receiving the Federal award of funding under 42
U.S.C. 1397m-1 must develop the State plan in collaboration with other
State APS entities, as applicable, and other APS programs.
C. Severability
To the extent that any portion of the requirements arising from the
final rule is declared invalid by a court, ACL intends for all other
parts of the final rule that can operate in the absence of the specific
portion that has been invalidated to remain in effect. While our
expectation is that all parts of the final rule that are operable in
such an environment would remain in effect, ACL will assess at that
time whether further rulemaking is necessary to amend any provisions
subsequent to any holding that ACL exceeded its discretion, or the
provisions are inconsistent with the OAA or EJA or are vacated or
enjoined on any other basis.
II. Provisions of the Final Rule and Responses to Public Comments
We received 172 public comments from individuals and organizations,
including State APS entities, Tribes and Tribal organizations, APS
programs, Area Agencies on Aging (AAAs), Ombudsman programs, State
governmental entities, State and national organizations and advocacy
groups, and private citizens. We thank commenters for their
consideration of the proposed rule and appreciate all comments
received. In the subsequent sections, we summarize the rule's
provisions and the public comments received, and we provide our
response.
General Comments on the NPRM
General Support
Comment: We received many comments in support of the proposed rule.
Commenters expressed general support for the national baseline created
by the regulations. A significant number of commenters requested
additional funds for APS programs, particularly in light of
requirements in the new regulations.
Response: ACL appreciates these comments. We encourage
collaboration at the State and local levels to identify solutions that
are responsive to the needs and resources in local communities.
Requests for additional funding are outside the scope of this rule.
Technical Corrections; Recommendations for Sub-Regulatory Guidance
Comment: Several commenters identified technical corrections,
including inconsistency in terminology and grammatical errors.
Commenters also provided suggestions and raised questions that could be
addressed in future sub-regulatory guidance on a variety of topics.
[[Page 39492]]
Response: We appreciate these comments and have made the
recommended technical corrections. We look forward to providing
technical assistance and guidance subsequent to promulgation of the
final rule.
Minimum Federal Standards
As discussed in the proposed rule, our requirements establish
minimum Federal standards for all States receiving EJA funding pursuant
to 42 U.S.C. 1397m-1. These standards will promote uniformity across
APS programs and high-quality service delivery. However, as discussed
in the preamble, the regulation allows significant flexibility for
State APS systems as they respond to the unique needs of their
communities. Accordingly, we allow and encourage State APS systems to
include services, practices, and processes that exceed these minimum
Federal standards. As State entities develop their State plans, they
should, in addition to assurances related provided pursuant to Sec.
1324.408, detail APS functions performed above the minimum Federal
standards set out in this regulation. We emphasize that EJA funding is
available for all approved APS functions as defined in section 2402 of
the EJA, 42 U.S.C. 1397m-1, including those not explicitly detailed in
this regulation, provided they are included in an approved State plan.
We will provide technical assistance as States develop their State
plans to determine whether their policies and procedures and program
functions meet these minimum standards.
Comment: One commenter requested that ACL clarify in regulation
text that EJA funds may be expended on activities not specified in the
regulation.
Response: We have declined to revise the regulation text as
requested. Our regulation establishes a minimum Federal standards for
APS functions, and we require that EJA funding must be used consistent
with the activities described in the approved State plan; under 42
U.S.C. 1397m-1(b)(3)(A), ``funds made available pursuant to this
subsection may only be used by States and local units of government to
provide adult protective services and may not be used for any other
purpose.'' EJA funding may be used for all activities in an approved
State plan, including those not specifically enumerated in this
regulation. However, EJA funding is only allowable for APS activities
under the EJA and in an approved State plan. Under 42 U.S.C. 1397m-
1(b)(3)(C), EJA funding must be used to supplement, and not supplant,
other sources of funding that support the same or similar activities.
Tribal Considerations
Comment: We received comments regarding the applicability of this
rule to Tribes, Tribal governments, and Tribal APS programs. Commenters
encouraged ACL to finalize regulations that allow Tribes the
flexibility to adapt Tribal APS programs to their own cultures.
Commenters further stressed that our regulations should consider and
reflect Tribal practices and perspectives--requiring State APS systems
to coordinate with Tribal governments and APS programs, and to address
APS jurisdiction over events that occur on Tribal lands or to members
of tribes who may not be on Tribal land. Commenters sought greater
explanation and clarification.
Response: Tribal governments do not receive funding through EJA APS
formula grants (42 U.S.C. 1397m-1), thus this rule does not apply to
Tribal governments. However, we recognize that many State and local APS
programs collaborate with Tribes and Tribal APS programs during their
work. We have amended Sec. 1324.406(a)(1) ``Coordination with Other
Entities'' to reflect this.
ACL is committed to honoring Tribal sovereignty and works to
maintain a strong government-to-government relationship by providing
opportunities for meaningful and timely input on areas that have a
direct impact to Tribal programs. This rule anticipates that State
entities will seek input from interested parties when they develop
State APS plans, and we encourage collaboration with all interested
parties, including Tribes, Tribal governments, and Tribal members. ACL
will provide technical assistance to States regarding the preparation
of State APS plans, including engaging with Tribes. Additionally, ACL
will solicit input from and conduct Tribal consultation meetings with
affected Federally recognized Tribes per Federal requirements as this
rule is implemented.
Compliance
Comment: We received comment requesting more information on
compliance requirements and penalties for non-compliance.
Response: As with all grant-funded programs, grantees must comply
with applicable Federal requirements to receive funding. If a State APS
program accepts funding made available under 42 U.S.C. 1397m-1(b), it
is required to adhere to all provisions contained in this final rule,
in addition to the uniform administrative requirements, cost
principles, and audit requirements for HHS awards codified in 45 CFR
part 75. Among other requirements, State entity recipients of funding
must provide fiscal and performance reporting that documents that they
are expending funds in compliance with Federal statutes, regulations,
and the terms and conditions of the Federal award. Further, 45 CFR part
75, subpart D requires recipients of Federal awards to have a financial
management system in place to account for the Federal award. ACL leaves
it to the State entity's discretion to determine how they will ensure
that funds are expended in a manner that meets the requirements of this
regulation and consistent with the State's internal fiscal controls.
Upon learning of compliance concerns, ACL provides technical
assistance to enable grantees to come into compliance (as is true of
all compliance concerns related to our grantee's actions). ACL may also
work with grantees on a corrective action plan. Consequences for non-
compliance may include withholding of funds until the grantee achieves
compliance.
Effect on County-Administered Systems
Comment: One commenter in a county-based system commented in
support of the proposed rule, suggesting that it will help to
standardize services, place the State in a position of greater
oversight, and effectively support adults with disabilities. Other
commenters stressed that, in county-based systems, it would be
difficult to implement the rule because the State does not have
sufficient authority over counties to ensure compliance. A few
commenters suggested that the proposed rule would detract from the
strengths of a county-administered system that promotes autonomy and
system responsiveness based on local needs and abilities and would be
challenging or impossible to implement based on the structure of their
programs.
Commenters raised concerns that our conflict of interest provisions
in Sec. 1324.404 would be challenging to implement in counties where
many APS workers have dual relationships. A few commenters suggested
that our proposal would require additional funding and staff to
mitigate conflicts surrounding dual relationships. One commenter wrote
that creation of a centralized State intake system in their county-
administered system would be challenging and burdensome and may be less
effective than the current localized process. They sought clarification
as to whether State-centralized systems were required.
A few commenters in a county-administered State requested specific
[[Page 39493]]
guidance on the rule's application and implementation to their APS
systems.
Response: We appreciate commenters' comments related to
implementation of this regulation in States that have county-
administered systems, and we acknowledge unique challenges such APS
systems may face as they implement this regulation. The regulations set
minimum Federal standards with a significant amount of latitude
provided for State implementation. We believe the flexibility will
allow all States, including those with county-based system, to continue
provide APS services tailored to the unique needs of their communities.
We discuss dual relationships in more detail in our preamble discussion
for Sec. 1324.404. We clarify nothing in this regulation requires a
State centralized intake system.
Funding made available under 42 U.S.C. 1397m-1(b) is intended to
enable State APS programs to implement an APS program as described in
this regulation. As the recipient of Federal funding, the State entity
is responsible for compliance with this regulation and 45 CFR part 75,
which sets out requirements for all recipients of this type of Federal
funding. We leave it to the discretion to the State entity to determine
how to best ensure that all Federal funds are expended in a manner that
meets the requirements of this regulation and consistent with the
State's internal fiscal controls. We will provide ongoing technical
assistance as necessary to county-administered systems throughout the
initial implementation period, now extended to 4 years, and beyond.
State APS entities may also request a corrective action plan to assist
in addressing provisions of the rule that prove uniquely challenging
for county-administered systems.
Administrative Burden, Implementation Costs, Implementation Timeframe
Comment: A significant number of commenters raised concerns about
the burden, cost, and amount of time regulated entities would need to
implement the final rule (e.g., costs and time needed to change State
statute, to create or update State regulations, to review and update
existing policies and procedures, to create new policies and
procedures, and to train staff), as well as concerns about the ongoing
costs of monitoring compliance with the final rule. Some State agencies
commented that they anticipate that consultants and/or additional staff
will need to be hired and/or that changes will need to be made to
information technology systems. Some State agencies asserted that ACL
had greatly underestimated both the cost, and the amount of time,
needed to come into compliance with the rule.
Response: We appreciate that the implementation of this rule may
require statutory changes, create administrative burden, and require
increased funding and/or increased staff. We have carefully considered
commenter feedback and made substantial revisions to our proposals
where we believed burden could be reduced while still maintaining the
integrity and efficacy of these requirements.\24\ For example, we have
removed requirements for States entities to set staff to client ratios,
streamlined monitoring requirements, clarified the ability of APS
systems to share responsibility for immediate risk cases with first
responders and other community partners, and clarified requirements
around 24 hour per day, 7 calendar day per week intake methods. We have
also lengthened the implementation timeline by extending the compliance
date from 3 to 4 years.
---------------------------------------------------------------------------
\24\ See a further discussion of projected burden and benefit in
our Regulatory Impact Analysis on p. 124.
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If State APS entities encounter challenges implementing specific
provisions of the rule, they should engage with ACL for technical
assistance and support. In addition, State APS entities that need
additional time to comply with one or more provisions of the rule may
submit a request to proceed under a corrective action plan. A request
should include the reason the State needs additional time, the steps
the State will take to reach full compliance, and how much additional
time the State anticipates needing. The corrective action plan process
is intended to be highly collaborative and flexible. Under a corrective
action plan, States agencies and ACL will jointly identify progress
milestones and a feasible timeline for the State agency to come into
compliance with the provision(s) of the rule incorporated into the
corrective action plan. State agencies must make a good faith effort at
compliance to continue operating under a corrective action plan. ACL
will provide guidance on this process after this rule takes effect,
including a timeline for making requests for corrective action plans.
Our rule will improve APS program efficiency, enhance APS for older
adults and adults with disabilities, and further the intent of the OAA
and the EJA. We anticipate upon full implementation that any burden
incurred will be far outweighed by the benefit of this rulemaking.
III. Adult Protective Services Systems
A. Section 1324.400 Eligibility for Funding
In proposed Sec. 1324.400, we clarified that annual funding from
ACL through section 2042(b) of the EJA, 42 U.S.C. 1397m-1(b) is
predicated on compliance with this rule.
Comment: We received comment from States with bifurcated APS
systems. These States have two APS entities, one charged with
investigating allegations of adult maltreatment and self-neglect for
people aged 60 and over, and the other charged with investigating
allegations of adult maltreatment and self-neglect for younger adults
with disabilities. Commenters requested clarification on the
application of the proposed rule to the programs that serve younger
adults with disabilities.
Response: The final rule applies to any program that uses EJA
funding to provide Adult Protective Services, whether those funds are
used for older or younger adults. ACL bases our authority to issue APS
regulations on elder abuse prevention and services on section 201(e)(3)
of the OAA, 42 U.S.C. 3011(e)(3). With respect to APS for younger
adults, section 2042(b) of the EJA authorizes grants to enhance the
provision of APS, defined broadly as ``services provided to adults as
specified by the Secretary.'' 42 U.S.C. 1397m-1. Given that Congress
has appropriated funding for APS programs under the EJA, ACL intends
for this regulation to set forth the conditions of participation for
recipients of APS grants to States under the EJA, as well as elder
abuse prevention and services under the OAA.
ACL has previously taken the position that funding to APS programs
provided through the EJA should serve all adults eligible for APS
services.\25\ For purposes of this regulation, we defer to States'
definition of ``adult'' to determine eligibility for APS. Therefore,
this regulation applies to all APS programs that serve adults eligible
for APS services, regardless of whether an APS entity serves only
adults under age 60.
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\25\ See, CORONAVIRUS RESPONSE AND RELIEF SUPPLEMENTAL
APPROPRIATIONS ACT OF 2021 (CRRSA): GRANTS TO ENHANCE ADULT
PROTECTIVE SERVICES TO RESPOND TO COVID-19, Frequently Asked
Questions (Updated March 23, 2023).
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As detailed in Sec. 1324.408, each State that accepts APS funding
must submit a single State plan for ACL approval that describes which
populations will be served, which services will be provided, and which
entities will oversee the provision of those services.
[[Page 39494]]
States with bifurcated APS systems may designate more than one
entity as responsible for different populations within their State
plan. In such States, the State plan should also describe the
allocation plan for the distribution of funds between State entities,
as well as processes for coordination on cases and on the development
of policies and procedures.
B. Section 1324.401 Definitions
The final rule updates the definitions of significant terms in
Sec. 1324.401 by adding several new definitions and revising several
existing definitions. The additions and revisions are intended to
reflect terms foundational to APS practice and feedback that we have
received from a range of interested parties.
We add definitions of the following terms to the final rule:
``finding,'' ``report,'' and ``response.''
We retain the following terms from the proposed rule and make
revisions: ``adult maltreatment,'' ``Adult Protective Services
System,'' ``at risk of harm,'' ``client,'' ``emergency protective
action,'' ``exploitation,'' ``investigation,'' ``mandated reporter,''
``self-neglect,'' ``sexual abuse,'' and ``State entity.''
We removed the following terms used in the proposed rule:
``inconclusive,'' ``post-investigative services,'' ``substantiated,''
``trust relationship,'' and ``unsubstantiated.''
Comment: We received comment encouraging more systematic use of
strengths-based language throughout our definitions.
Response: Throughout the definitions and the rule, we have worked
to incorporate more person-directed (also sometimes referred to as
``person-centered'') and strengths-based language. According to the
National Center on Elder Abuse, ``[p]erson-centered, trauma-informed
care is a holistic approach to service provision that fosters dignity
and resilience among survivors of trauma. This approach recognizes the
impact of trauma and incorporates that knowledge into service delivery
and provider practices. Person-centered, trauma informed care provides
a framework that advances safety, culturally respectful and responsive
programming, and empowering environments for survivors.'' \26\ We agree
with commenters that the systematic use of strengths-based language
that reflects the principles of person-centeredness and trauma-informed
care is critical to effective APS services for adults and thank
commenters for their feedback.
---------------------------------------------------------------------------
\26\ The National Center on Elder Abuse, Tips and Tools for
Person-Centered, Trauma-Informed Care of Older People at the
Intersection of Trauma, Aging, and Abuse, <a href="https://eldermistreatment.usc.edu/wp-content/uploads/2023/07/NCEA_TT_PCTICare_web.pdf">https://eldermistreatment.usc.edu/wp-content/uploads/2023/07/NCEA_TT_PCTICare_web.pdf</a>. See also, Ernst, J.S., & Maschi, T.
(2018). Trauma-informed care and elder abuse: a synergistic
alliance. Journal of Elder Abuse & Neglect, 30(5), 354-367. <a href="https://doi.org/10.1080/08946566.20">https://doi.org/10.1080/08946566.20</a> 18.1510353.
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Comment: We received comment from many State APS entities and other
interested parties that several of our definitions, most notably
``adult maltreatment,'' conflict with State definitions, were confusing
or duplicative, or did not reflect APS practice in their State. Many
States commented, providing their own State definitions. Many State
entities and APS programs commented that changes to their State
statute, regulation, and/or policy would be necessary to come into
compliance and that to make these changes would be onerous and time-
consuming. Some commenters requested that ACL provide waivers for
States where compliance would be overly burdensome.
Response: We thank commenters for sharing their State experience
and expertise. We have incorporated many of these suggestions and
comments in our revised definitions, and into our incorporation of the
definitions into the regulatory requirements in Sec. 1324.402.
We include the definitions in this regulation, some of which are
drawn directly from the OAA and EJA, as a baseline, and we encourage
States without robust existing definitions to adopt these statutory
definitions. However, we clarify in this final rule in Sec. 1324.402
that this this regulation does not require States to adopt these
definitions verbatim. Under Sec. 1324.402, the final rule requires
States to establish definitions for APS systems that collectively
incorporate every defined term and all of the elements of the
definitions contained in Sec. 1324.401. Under Sec. 1324.408, States
must provide assurances that their definitions meet or exceed the
minimum standard we have established in Sec. 1324.401.
To assess whether States have met the minimum standard, we will
evaluate all State definitions in their totality as opposed to
individually. States must ensure that all definitions specified by this
rule and their elements are incorporated into a State plan and that
their definitions capture the full intent and purpose of the
definitions in this regulation. For example, some States may define the
``knowing deprivation of goods or services necessary to meet the
essential needs of an adult'' as ``willful negligence,'' rather than as
an element of ``abuse.'' So long as the State's APS definitions address
such ``knowing deprivation'' in some definition, the State will have
satisfied this requirement.
We recognize that some States may nevertheless need to change
statutes (including criminal statutes), regulations, or policies to
satisfy this requirement if their APS program definitions do not yet
fully incorporate all required adult maltreatment and self-neglect
elements. We are establishing a 4-year implementation timeline to
provide States ample opportunity to cross-walk their current
definitions and those contained in this rule and make any statutory,
program, or policy changes that may be necessary. States may also
request to proceed under a corrective action plan if they are unable to
meet this requirement within 4 years.
``Abuse''
Consistent with the definitions set forth in section 102(1) of the
OAA, 42 U.S.C. 3002(1), and section 2011 of the EJA, 42 U.S.C.
1397j(1), we proposed to define abuse as an element of adult
maltreatment to encompass the knowing psychological, emotional, and/or
physical harm or the knowing deprivation of goods or services necessary
to meet the essential needs or avoid such harm.
Comment: A significant number of commenters, including many State
APS entities and national associations representing the interests of
APS programs, requested we remove ``knowing'' from the definition of
abuse. Some commenters offered examples from their State, to include
``reckless'' in addition to ``knowing'' in defining the mindset of a
perpetrator of abuse.
Commenters suggested that it was too difficult and burdensome to
determine whether a person knowingly or unknowingly harmed or deprived
an adult of necessary goods or services. For example, a commenter
pointed out that an APS program may be put in the position of deciding
whether a mental health condition, cultural practice, or other
subjective factor affected a perpetrator's mindset. Relatedly, another
commenter asked how ``unknowing'' psychological, emotional, and/or
physical harm of an adult would be treated by APS systems under our
definitions.
A significant number of other commenters raised questions about the
interaction between the definitions of ``abuse'' and ``neglect.'' They
suggested that, as proposed, the definition of abuse could be conflated
with neglect. Commenters sought clarity as to whether an allegation of
abuse and neglect could be substantiated against the same alleged
perpetrator for the same act.
[[Page 39495]]
Response: We appreciate these comments and understand that the
statutory definition of ``abuse'' differs from the definition that many
States have adopted. As we have clarified above, State APS entities are
not obligated to adopt these statutory definitions verbatim, so long as
the elements of each defined term are all incorporated into State
definitions.
In response to commenter concerns, we are clarifying the
distinction between ``abuse'' and ``neglect'' (further discussed below)
as defined by the OAA and the EJA. Neglect is defined as ``the failure
of a caregiver or fiduciary to provide the goods or services that are
necessary to maintain the health and/or safety of an adult.'' 42 U.S.C.
3002(38), 42 U.S.C. 1397j(16). Abuse is defined as ``the knowing
infliction of physical or psychological harm or the knowing deprivation
of goods or services that are necessary to meet essential needs or to
avoid physical or psychological harm'' [emphasis added]. 42 U.S.C.
3002(1), 42 U.S.C. 1397j(1). A number of commenters interpreted the
``knowing deprivation of goods or services'' (abuse) as a ``failure . .
. to provide the goods or services'' (neglect) and argued that the
definitions are redundant. Moreover, commenters noted that overlapping
definitions could make it difficult for States to effectively report
out on case types.
The rules of statutory construction require that we interpret the
entire statute as a whole, with the assumption that Congress intended
each provision to work together harmoniously.\27\ Here, the key
distinction between abuse and neglect is the mindset--abuse requires
the intent (the ``knowing deprivation'') to cause harm. For these two
definitions to be read as distinct, the ``failure'' to provide goods or
services under the definition of neglect must be interpreted as being
unintentional. We understand from commenters that many State APS
systems may approach abuse and neglect differently; namely, their
definitions assess whether a harm was active (as in physical abuse) or
caused by deprivation (as in either willful or unintentional neglect).
In this way, State APS systems are set up to look at the functional
outcome, regardless of the intentionality associated with it. As stated
above, State APS systems are in compliance with this regulation so long
as the totality of their definitions incorporate all of the elements of
adult maltreatment and self-neglect contained in the regulatory
definitions.
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\27\ United Savings Assn. of Tex. v. Timbers of Inwood Forest
Assoc., Ltd., 484 U.S. 365 (1988).
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Commenter concerns related to the difficulty of assessing mindset
are well taken. However, we note that many APS investigative functions
rely on contextual clues to understand state of mind or decisional
capability. We reiterate that States have the discretion to distinguish
between the ``knowing deprivation of goods or services that are
necessary to meet essential needs or to avoid physical or psychological
harm'' and other actions that are defined as abuse by statute. Factors
such as cultural practices and mental health conditions should be
considered during an APS response. We defer to the expertise,
sensitivity, and judgement of APS workers when evaluating such
elements. In all cases, APS workers should undertake a person-centered,
culturally competent approach to investigation and service delivery,
and we reiterate our requirements surrounding person-directedness and
trauma informed responses at Sec. 1324.402(b)(1) and Sec.
1324.403(c)(1) as well as ongoing education and training requirements
for APS workers at Sec. 1324.402 (e)(1).
Comment: One commenter suggested we add that no adult will be found
to be abused solely on the grounds of environmental factors that are
beyond the control of the older adult or the caretaker, such as
inadequate housing, furnishings, income, clothing, or medical care.
Response: We recognize the commenter's concern related to
environmental factors and understand that individuals will experience
different outcomes based on the resources available to them. The
deprivation of goods or services for reasons beyond the control of the
older adult or caretaker (as described by the commenter above) does not
constitute abuse if it is not intentional. In all cases, we stress the
importance of APS systems' discretion with respect to when and how to
move forward in person-directed investigations and service delivery.
Comment: We received comment from Tribal commenters suggesting we
define ``abuse'' to include ``spiritual abuse.''
Response: We thank commenters for their suggestion but decline to
revise the definition. States have the discretion to determine whether
to include ``spiritual abuse'' in their definition. We will provide
ongoing technical assistance to States as they implement the final
rule.
Comment: We received comment requesting we define ``psychological
harm,'' ``emotional harm,'' and ``physical harm.''
Response: We thank commenters for their suggestions and decline to
adopt these definitions. We will leave these definitions to State
discretion.
``Adult''
Comment: ACL received comment that some States include a
vulnerability qualifier in their definition of adult and asked how this
would comport with our definition of ``at risk of harm.''
Response: Please see the discussion in our definition of ``at risk
of harm.''
Comment: We received a few comments supporting a national
definition for ``adult,'' with one commenter suggesting we let States
apply for exceptions if the national definition is overly burdensome.
We received one comment asking that we specify ``eligible adults'' for
improved clarity. However, we received many comments, including from
State APS entities and national associations representing them,
supporting our decision to defer to States when defining ``adult'' for
the purposes of ``adult maltreatment.''
Response: We concur with commenters that our approach will allow
States flexibility to design and operate their APS systems in a manner
that best fits the needs of the State's population and aligns with
existing State statutory eligibility requirements. We have decided not
to permit exceptions because we believe our definition as written will
accommodate all States adequately as written. We are finalizing this
definition as proposed.
``Adult Maltreatment''
In this final rule, we define ``adult maltreatment'' to bring
uniformity and specificity to a foundational term used throughout APS
systems and this regulation. Our definition establishes a comprehensive
and uniform approach to investigations of adult maltreatment while
still allowing for State flexibility and discretion. We proposed that
``adult maltreatment'' encompass five elements: abuse, neglect,
exploitation, sexual abuse, and self-neglect. We also proposed to
require that the adult must have a relationship of trust with the
perpetrator of abuse, neglect, exploitation, or sexual abuse and be at
risk of harm from the perpetrator.
Comment: We received several comments in support of a national
definition for ``adult maltreatment.'' We also received comments
opposed to a unified national definition of adult maltreatment, with
one commenter suggesting that our definition overextends the reach of
APS. Other commenters stated that adherence to our definition would
conflict with their State definitions and others suggested additional
elements to our definition.
[[Page 39496]]
Response: ACL thanks commenters for their support. We believe a
standard baseline definition upon which States may build will advance
APS practice and is crucial to the success of this rulemaking. We are
therefore retaining this definition in the final rule. We note that we
have extended the implementation timeline to 4 years to provide State
entities more time to revise definitions.
Comment: We received comment that the formulation of our ``adult
maltreatment'' definition was confusing and would be challenging to
implement. Under our proposed rule, ``adult maltreatment'' was defined
as ``self-neglect or abuse, neglect, exploitation, or sexual abuse of
an adult at-risk of harm from a perpetrator with whom they have a trust
relationship.'' States noted that there was no perpetrator involved in
cases of self-neglect, that the presence of the term ``adult'' when
coupled with definitions of the five elements of maltreatment may be
duplicative, and the presence of ``trust relationship'' may be
duplicative of ``caregiver'' and ``fiduciary'' in ``neglect''.
Response: We appreciate commenters' thoughtful responses and
suggestions. We have revised the definition of adult maltreatment as
follows: Adult maltreatment means the abuse, neglect, financial
exploitation, or sexual abuse of an adult at-risk of harm. Please see
our definitions of ``abuse,'' ``neglect,'' ``financial exploitation,''
``sexual abuse,'' and ``self-neglect'' as well as our further
discussion of ``trust relationship'' and ``risk of harm'' contained
herein.
``Adult Protective Services (APS)''
Consistent with the definitions set forth in section 102(3) of the
OAA, 42 U.S.C. 3002(3), and section 2011 of the EJA, 42 U.S.C.
1397j(2), we proposed to define Adult Protective Services as such
services provided to adults as the Assistant Secretary may specify and
includes services such as--
(A) receiving reports of adult abuse, neglect, or exploitation;
(B) investigating the reports described in subparagraph (A);
(C) case planning, monitoring, evaluation, and other case work and
services; and
(D) providing, arranging for, or facilitating the provision of
medical, social service, economic, legal, housing, law enforcement, or
other protective, emergency, or support services.
Comment: Several commenters generally requested that the final rule
remove the requirement that APS include providing services. One
commenter noted high costs of hiring enough staff to comply with the
definition, as well as training costs. Some commenters noted that some
APS programs only provide referrals to other entities or provide
limited services to ``stabilize the situation'' and noted that more
lengthy case management or provision of services would be very costly.
A commenter believes our definition gives APS the ability to designate
a legal, social service, or medical provider as an APS provider and
disagrees with this decision.
Response: Service provision is memorialized in Federal statute and
is the core of APS' mission in most States. We emphasize this in our
definition. However, our definition does not mandate that APS systems
provide any specific service. Rather, it describes the general types of
services that APS encompasses. We affirm that APS may provide referrals
or otherwise facilitate the provision of legal, medical, or social
services. However, APS does not have the authority to designate those
referral entities as APS providers.
Comment: Other commenters suggested that APS cannot provide
emergency services, and that the proposed definition as written is
vague and could potentially open the State to legal liability.
Response: We believe our definition, which defines APS services as
``providing for, or facilitating the provision of [. . .] emergency,
and supportive services'' [emphasis added], does not require that APS
provide emergency services. Rather, APS may refer to other entities for
emergency protective services, as needed. For example, APS could
facilitate the provision of community-based services by referring an
adult to another program to receive urgently needed home repairs, for
nutrition assistance, or transportation.
Comment: Several commenters voiced support for APS offering a wide
array of services.
Response: We agree and likewise believe that APS does, and should,
provide a wide array of services. We believe the statutory definition
appropriately describes the array of services provided by APS and
decline to further expand upon it.
Comment: A commenter asked that the investigative role of APS be
de-emphasized, and the social service role should be emphasized.
Response: We agree and thank the commenter for their suggestion. We
have made changes throughout the final rule to more accurately
emphasize the critical role of service delivery in APS practice.
Comment: One commenter requested clarity on the expectations
related to APS monitoring responsibilities.
Response: ACL will provide ongoing technical assistance to APS
State entities and programs related to monitoring. We refer commenters
to our discussion at proposed Sec. 1324.403(e)(6) (removed) and
proposed Sec. 1324.403(f)(3)(iii) (removed) as well as finalized Sec.
1324.407. We finalize our definition as proposed.
``Adult Protective Services Program''
Comment: We received one comment in support of our proposed
definition and one that suggested the definition include reference to
administrative and technical staff.
Response: We thank commenters for their input. We believe our
definition which refers to ``providers'' may be interpreted to include
administrative and technical staff. We have finalized the definition as
proposed.
``Adult Protective Services System''
Comment: We proposed to define ``Adult Protective Services (APS)
System'' as the totality of both the State entity and the local APS
programs.'' A commenter suggested modifying the language to ``the
totality of the State entity or entities and the local APS programs''
to account for States with multiple APS entities.
Response: We thank the commenter and are revising our definition
accordingly.
``At Risk of Harm''
We proposed to define ``at risk of harm'' in accordance with
Centers for Disease Control and Prevention (CDC) Elder Abuse
Surveillance: Uniform Definitions and Recommended Core Data Elements
(CDC Uniform Definitions) as ``the possibility that an adult will
experience an event, illness, condition, disease, disorder, injury or
other outcome that is adverse or detrimental and undesirable.'' \28\
---------------------------------------------------------------------------
\28\ U.S. Dep't of Health & Hum. Servs., Ctrs. For Disease
Control and Prevention, Elder Abuse Surveillance: Uniform
Definitions and Recommended Core Data Elements, <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>. (Feb. 29, 2016).
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Comment: We received comment that our definition of ``at risk of
harm'' was too broad and that some States used a narrower standard. A
commenter noted that our proposed definition, which refers to ``the
possibility that an adult will experience an event, illness, condition,
disease, disorder, injury or other outcome that is adverse or
detrimental and undesirable,'' could encompass any possible scenario,
[[Page 39497]]
illness, or condition. Commenters suggested that the proposed
definition would increase caseloads, with some commenters suggesting
instead we use ``serious harm,'' ``at risk of maltreatment,'' or
``vulnerable'' in place of ``at risk of harm.''
Response: We appreciate commenters' feedback and have revised the
definition to more narrowly describe the risk of harm potentially faced
by an adult. We have revised the definition to ``the strong likelihood
that an adult will experience an event, condition, injury or other
outcome that is adverse or detrimental and will occur imminently.'' We
believe ``strong likelihood'' better represents the degree to which an
adult may be at risk of harm to qualify for APS.
Comment: We received comment that an ``at-risk'' qualifier may be
appropriate when prioritizing APS cases but not as a determinant for
APS eligibility.
Response: We appreciate commenters' suggestion and concur that
triaging a case based on risk is an important part of APS intake and
case prioritization. However, given finite resources, we believe that a
Federal definition should premise eligibility for APS on a strong
likelihood of harm while those for whom risk is less immediate can be
referred to other community resources. We remind commenters that our
definitions are minimum standards. State entities are required to
provide assurances that they are investigating abuse, neglect,
financial exploitation, sexual abuse, and self-neglect of adults at
risk of harm to create an approvable State plan and receive Federal
funding, but States may also choose to accept all cases irrespective of
risk.
Comment: We received comment that including ``at risk of harm'' in
the definition of adult maltreatment would be redundant for States
where ``vulnerable'' was included in the definition of adult and that
some commenters preferred ``vulnerable'' to ``at risk'' as defined.
Response: We appreciate that, for some States, a strict reading of
``at risk of harm'' in the context of our definition of ``adult
maltreatment'' may appear to create redundancy. We remind States they
need only provide an assurance in their State plan that their
vulnerability qualifier meets or exceeds our minimum standard of ``at
risk of harm'' to fulfill the requirements of the rule.
Comment: We received comment that our definition of ``at risk of
harm'' should include a specific timeframe for the adverse or
detrimental event, condition, injury, or outcome.
Response: We thank commenters for their suggestion and have added
that the adverse or detrimental event, condition, injury, or outcome
will occur ``imminently.''
Comment: We received comment that ``adverse'' and ``detrimental''
were always undesirable and the clause was thus redundant.
Response: We have edited the definition accordingly by removing
``undesirable'' and thank the commenter.
``Allegation''
Comment: We received support for our definition as proposed as well
as suggestions for improvement. One commenter noted that not every
reporter knows or suspects a specific alleged perpetrator and suggests
removing the term ``accusation'' from the definition. Relatedly,
another commenter suggested we define ``report.''
Response: We appreciate commenters' input. Used in this context,
``accusation'' represents a reporter's suspicion of adult maltreatment
and does not require a reporter to accuse a specific perpetrator. We
are finalizing this definition as proposed. We have added a definition
of ``report'' which contains reference to ``allegation or
allegations.''
``Assistant Secretary for Aging''
We proposed to define ``Assistant Secretary for Aging'' as the
position identified in section 201(a) of the Older Americans Act (OAA),
42 U.S.C. 3002(7).
Comment: We received comment in support of our proposal.
Response: We thank the commenter and are finalizing the definition
as proposed.
``Case''
Comment: We received comment in support of our proposed definition.
Response: We thank the commenter and are finalizing the definition
as proposed.
``Client''
Comment: Several commenters noted that the proposed definition
appears to exclude adults who receive services after an investigation
is complete and suggested changing the definition to include ``current
or former'' subjects of an investigation.
Response: We decline to include ``current or former'' in the final
rule, as we believe that could require APS systems to provide services
to all former clients. However, we have amended our definition of
``client'' from proposed ``the subject of an investigation by APS'' to
``the subject of an APS response'' to reflect changes made throughout
the final rule, including to Sec. 1324.403, regarding APS response to
allegations of adult maltreatment or self-neglect. We believe this
better captures the holistic range of services APS provides, both
during and after an investigation. Furthermore, our definition of
client is a minimum standard. The definition would not prohibit APS
from providing services to former clients in their response to adult
maltreatment and self-neglect.
``Conflict of Interest''
We proposed ``conflict of interest'' to mean a situation that
interferes with a program or program employee or representative's
ability to provide objective information or act in the best interests
of the adult.
Comment: We received several comments on our proposed definition,
one in support, another State entity that offered its own definition,
and a few that suggested we amend the definition to include or exclude
certain situations as conflicts of interest.
Response: We thank commenters for their input. We believe our
current definition appropriately captures the universe of potential
conflicts of interest. Individual instances of conflicts of interest
are addressed in depth at Sec. 1324.404 of this rule and discussed in
the preamble. We have made minor amendments to the definition to
conform with changes to Sec. 1324.404.
``Dual Relationship''
Comment: Several commenters agreed with our proposed definition,
while one commenter suggested we use a definition provided by the
National Adult Protective Services Association or the National
Association of Social Workers. Another commenter noted that to adopt
our definition would require a change in State statute.
Response: We thank commenters for their suggestion. Our definition
was based upon the National Association of Social Workers' Code of
Ethics, and the definition used in our 2020 Consensus Guidelines.\29\
We are finalizing the definition as proposed.
---------------------------------------------------------------------------
\29\ Code of Ethics, National Association of Social Workers
(NASW), <a href="https://www.socialworkers.org/About/Ethics/Code-of-Ethics/Code-of-Ethics-English/Social-Workers-Ethical-Responsibilities-to-Clients">https://www.socialworkers.org/About/Ethics/Code-of-Ethics/Code-of-Ethics-English/Social-Workers-Ethical-Responsibilities-to-Clients</a> (last visited Jan. 22, 2024).
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``Emergency Protective Action''
Comment: We received several comments opposed to our definition,
stating it reinforces a pipeline from APS to undesired guardianship.
Commenters
[[Page 39498]]
sought clarification regarding emergency out-of-home placement, APS
authority, adherence with client self-determination, and least
restrictive alternatives.
Response: ACL agrees that client self-determination is of primary
importance, and that guardianship and conservatorship should be a last
resort. The principles of self-determination and reliance on least
restrictive alternatives are foundational to this rule, see Sec.
1324.402(b)(1). APS uses a person-directed, trauma-informed approach,
considering the unique needs, strengths, preferences, experiences, and
goals of each adult. In relying on least-restrictive alternatives, APS
maximizes adults' independence and community integration through
holistic case planning and service provision, either directly or in
coordination with community partners. This type of service provision,
support, and collaboration is at the heart of effective APS practice
and is relied upon in lieu more restrictive options such as out-of-home
placements or petitions for guardianship whenever possible.
Accordingly, we have modified our definition of emergency
protective action to ``immediate access to petition the court for
temporary or emergency orders or emergency out-of-home placement.'' We
have amended Sec. 1324.403(c) to permit emergency protective action
only as appropriate and necessary as a measure of last resort to
protect the life and safety of the client from harm from others or
self-harm. Finally, we have amended the definition of emergency
protective action to remove the reference to the emergency use of APS
funds to purchase goods and service and revised Sec. 1324.403(c) to
permit such activity as an appropriate response. Our modification of
the definition, coupled with amendments to Sec. 1324.403(c), more
clearly and accurately describes the nature of an ``emergency
protective action'' and when APS may appropriately pursue it. Finally,
we also clarify there are statutory and regulatory authorities with
which APS systems must comply, including Federal and State laws that
require administration of programs, including APS, in the most
integrated and least restrictive setting appropriate to meet the needs
of individuals with disabilities and that prohibit discrimination on
the basis of disability. These include Section 504 of the
Rehabilitation Act and the Americans with Disabilities Act. Compliance
with this rule does not address these obligations. The Department of
Health and Human Services' Office for Civil Rights offers technical
assistance on these antidiscrimination requirements for covered
entities, and we will likewise provide ongoing technical assistance on
these anti-discrimination requirements.
Comment: We received a comment requesting that any requirement
regarding access to the courts be accompanied by Federal regulations
requiring those courts to grant APS access.
Response: We appreciate commenters' suggestion. It is outside the
scope of this rule to require that State courts grant APS access.
Comment: One commenter requests clarity on ``placement'' (i.e.,
involuntary), and whether lack of ``immediate access'' would affect
funding eligibility.
Response: Per Sec. 1324.403(c)(7), APS is required to have
policies and procedures that permit emergency protective action when
appropriate. ACL is not mandating a particular type of placement or
strict definition of immediate action. We leave such decisions to State
entities as they develop their policies and procedures under Sec.
1324.403 and State plans under Sec. 1324.408.
Comment: One commenter suggests the definition also include
referral to conservatorship/guardianship, assessment for involuntary
hold, and working with law enforcement and district attorneys to freeze
bank accounts.
Response: ACL appreciates commenters' suggestions; however, we
decline to incorporate commenters suggestions in the definition. This
Final Rule sets Federal minimum standards. State entities may include
greater detail into their own definitions of ``emergency protective
action.''
``Financial Exploitation''
Consistent with definitions in section 102 of the OAA, 42 U.S.C.
3002(18)(A), and section 2011 of the EJA, 42 U.S.C. 1397j(8), we
proposed to define ``exploitation'' as the fraudulent or otherwise
illegal, unauthorized, or improper act or process of a person,
including a caregiver or fiduciary, that uses the resources of an adult
for monetary or personal benefit, profit, or gain, or that results in
depriving an adult of rightful access to, or use of, their benefits,
resources, belongings, or assets.
Comment: We received comments suggesting we change the definition
to ``financial exploitation'' to clarify the definition encompasses
only exploitation that is financial in nature.
Response: ``Financial exploitation'' and ``exploitation'' are used
interchangeably in the OAA. We agree that the addition of ``financial''
to the definition increases clarity, we thank commenters for their
input, and have revised the definition accordingly.
Comment: We received comments that our proposed definition of
``exploitation'' be broadened to include other forms of exploitation,
for example, labor exploitation or the exploitation of a person.
Response: We appreciate commenters' suggestions and decline to make
such a revision. ``Exploitation,'' as we have defined it, is financial
in nature. Financial exploitation is among the most reported forms of
adult maltreatment and as such we require in this regulation that State
APS systems intervene. However, consistent with the rule's structure as
a minimum Federal standard for definitions and practice, nothing in our
definition of exploitation would limit a State from broadening its own
to be inclusive of, and more expansive than, ACL's promulgated
definition. to encompass non-financial exploitation.
Comment: We received comments seeking clarification for whether
this definition will also apply outside of a family or caregiver
relationship.
Response: Financial exploitation may occur between an adult and a
fiduciary or caregiver but is not limited to such relationships. For
example, an internet scammer may be the perpetrator of financial
exploitation.
Comment: A commenter suggested we change ``improper'' to
``unauthorized.''
Response: We decline the commenter's suggestion and instead retain
both ``improper'' and ``unauthorized'' to ensure both types of
financial exploitation are appropriately addressed.
Comment: ACL received a comment requesting that
``misrepresentation, coercion, and threat of force'' be included in our
definition, as well as ``deception.''
Response: We appreciate these suggestions and reiterate our
encouragement for States that wish to adopt definitions that go beyond
the minimum Federal standard in the regulatory definition.
Comment: A State entity commented that it does not investigate
scams, frauds, and thefts where an alleged perpetrator has no personal
relationship with the adult. Rather, these cases are referred to law
enforcement, and our proposed regulation, absent the presence of a
trust relationship, would expand the universe of cases that they are
required to take.
Response: We appreciate the comment and recognize that our rule
[[Page 39499]]
may, in some cases, increase the types of reports to which a State APS
system may need to respond. We note that in some circumstances,
referral to State securities and financial regulators, Federal
financial and securities enforcement agencies for investigation or
other entities with investigatory jurisdiction may be appropriate. See
Sec. Sec. 1324.403(a) and 1324.406(a)(3). This rule requires that APS
systems have policies and procedures to respond to reports of financial
exploitation, with ``response'' defined broadly per Sec. 1324.401, and
a referral to appropriate entities would constitute a ``response''
under this definition.
We believe the benefit of our rule outweighs any burden incurred
and will support States in their ongoing implementation of the rule.
Please see our discussion of ``trust relationship.''
``Finding''
Comment: We received comments requesting we define ``finding'' and,
relatedly, ``disposition'' and ``determination.'' Commenters also
requested we use terms consistently.
Response: ``Finding,'' ``disposition,'' and ``determination'' are
often used interchangeably, depending on the State. For the purpose of
this regulation, ``finding'' means the decision made by APS after
investigation to determine that evidence is or is not sufficient under
State law that adult maltreatment and/or self-neglect has occurred.
``Inconclusive''
Comment: A commenter recommended revising the definition of
``inconclusive'' to align with the definitions of ``substantiated'' and
``unsubstantiated'' meeting State law or agency policy, while a couple
of commenters suggested striking this definition entirely because their
State APS system did not include it. One commenter questioned whether
``inconclusive'' remains open to acquire additional information, or
whether this applies to specific situations (i.e., unable to locate).
Response: In response to commenter feedback and to improve clarity,
we have updated the definition of ``investigation'' and removed the use
of ``substantiated,'' ``unsubstantiated,'' and ``inconclusive.''
``Intake or Pre-Screening''
Comment: We received comment in support of our proposal.
Response: We thank commenters and are finalizing as proposed.
``Investigation''
Comment: We received numerous suggestions for modifying our
proposed definition of ``investigation.'' According to one commenter,
the proposed definition was too restrictive, as APS should be able to
perform both investigation and service delivery. One commenter
indicated State law requires investigators to look beyond the
allegation to whether there are additional risks to the victim that
require services. This commenter suggested the definition be changed to
``gather information about possible maltreatment.''
One commenter explained that its State uses findings of ``verified,
some indication, or no indication'' instead of ``substantiated,
unsubstantiated, or inconclusive.'' Another commenter recommended
revising the definition to acknowledge that an investigation may be
more expansive than simply investigation of a single allegation. For
example, an investigation of one allegation may unearth evidence of
other maltreatment or self-neglect. A commenter offered,
``[i]nvestigation means the process by which APS examines and gathers
information about a report of possible maltreatment to determine if the
circumstances of the allegation meet the State's standards of evidence
for a finding of a substantiated, unsubstantiated, or inconclusive
allegation.''
Response: We appreciate the comments about our definition. We have
accepted language proposed by commenters. Our final definition of
investigation is ``the process by which APS examines and gathers
information about a possible allegation of adult maltreatment and/or
self-neglect to determine if the circumstances of the allegation meet
the State's standards of evidence for a finding.'' We believe these
revisions adequately address commenters' concerns.
``Mandated Reporter''
Comment: We received comments in support of our proposal, as well
as several comments suggesting we offer a list of who should be a
mandated reporter in each State. These suggestions were often based on
State law definitions of a mandated reporter.
We also received comment on Sec. 1324.405(b) that, for the
purposes of this rule, mandated reporters should be limited to
professionals who are required to report adult maltreatment to APS. A
commenter noted that in 16 States all persons are mandated reporters,
and in one State, no one is a mandated reporter.
Response: Consistent with changes made to Sec. 1324.405(b), we are
amending our definition of mandated reporter to clarify that our rule
applies only to a professional encountering an adult in the course of
their professional duties who is required by State law to report adult
maltreatment or self-neglect to APS.
``Neglect''
We proposed, consistent with the definitions in section 102 of the
OAA, 42 U.S.C. 3002(38) and section 2011 of the EJA, 42 U.S.C.
1397j(16), to define ``neglect'' as the failure of a caregiver or
fiduciary to provide the goods or services that are necessary to
maintain the health and/or safety of an adult.
Comment: One commenter suggested our definition may be too narrow,
and that because health and safety may be jeopardized simultaneously,
that we instead write ``health and/or safety.''
Response: We thank commenter for their suggestion and have amended
our definition accordingly.
Comment: Some commenters pointed out that our definition does not
address a caregiver or fiduciary's state of mind, which is a necessary
element of the definition. It was suggested by one commenter that a
caregiver not be penalized if they were not aware of the needs of an
adult or the threat to safety or health.
Response: We appreciate these comments. As discussed above, the
definition of ``abuse'' incorporates the intent and mindset of a
potential perpetrator and appropriately captures cases where a
caregiver or fiduciary knowingly deprives an adult goods or services
necessary to maintain health and/or safety. We refer readers to our
preamble discussion of the definition of ``abuse'' for a more detailed
explanation of the interaction between cases of ``abuse'' and
``neglect.''
Comment: We received comment asking us to define ``fiduciary'' and
``caregiver.''
Response: We thank commenters for their request. We decline to
define the terms ``caregiver'' and ``fiduciary'' and instead leave
definitions to State discretion. We believe allowing States leeway to
determine what constitutes a ``caregiver'' or ``fiduciary'' as it
pertains to this rule provides valuable flexibility to meet State
needs.
Comment: A commenter suggested that our proposed definition does
not align with States' efforts to establish person-directed principles.
The commenter recommended revising the definition of neglect to clarify
that caregivers and fiduciaries fulfill an official role and that
neglect exists only
[[Page 39500]]
within the bounds of this legal relationship by amending the definition
to read ``the failure of a caregiver or fiduciary to act under their
legal responsibility[.]''
Response: We thank commenters for their suggestions; however, we
believe confining neglect to a legal relationship between a caregiver
and fiduciary is overly narrow and unnecessarily limiting. Research
shows that most caregiving in the United States is performed by
informal caregivers.\30\
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\30\ U.S. Dep't of Health & Hum. Servs., Admin. For Cmty.
Living, 2022 National Strategy to Support Family Caregivers (Sept.
21, 2022), <a href="https://acl.gov/sites/default/files/RAISE_SGRG/NatlStrategyToSupportFamilyCaregivers-2.pdf">https://acl.gov/sites/default/files/RAISE_SGRG/NatlStrategyToSupportFamilyCaregivers-2.pdf</a>.
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Comment: A few commenters noted there should be reference to actual
injury or serious harm.
Response: We thank commenters for their response. We believe
reports of neglect can and should be responded to before there is
actual injury or harm. We note that to be eligible for APS services
under this rule, an adult must already be at risk of serious harm
occurring imminently.
Comment: A commenter asked that we include ``abandonment'' in our
definition.
Response: We decline to include ``abandonment'' in our definition.
Our regulatory definition mirrors Federal statute. State entities that
wish to go above our minimum standard to incorporate abandonment in
their definition of neglect may do so.
Comment: ACL received comment suggesting we include a narrow
definition of ``physical and mental health'' in our definition of
``neglect.''
Response: We decline to include ``physical and mental health'' in
our definition. Our regulatory definition mirrors Federal statute. We
are available to provide ongoing technical assistance to implement the
definitions in this rule.
``Perpetrator''
Comment: We received comment in support of our definitions, as well
as several comments suggesting we more clearly articulate the
difference between an ``alleged perpetrator'' and a ``perpetrator.''
Another commenter offered that perpetrator tends to suggest criminal
intent and sparks confusion, and one State entity noted that they do
not use the term ``perpetrator.''
Response: We thank commenters for their input and are finalizing
the definition as proposed. We have taken care throughout the rule to
precisely denote alleged versus substantiated perpetrator. We intend
for these definitions to be guides. We will not require States to adopt
the definitions word for word. Instead, we will evaluate State
definitions together to assess whether statutory intent is reflected.
Please see our discussion above for more detail regarding our
expectations of State APS entities' evaluation of their current
definitions, and the potential amendment of current definitions and/or
adoption of new definitions. We will be available to provide technical
assistance as necessary.
``Post-Investigation Services''
Comment: A few commenters opposed the inclusion of a definition for
post-investigation services in the final rule, and a few commenters
recommended changes or requested clarification about the definition.
One commenter indicated that their State does not have a definition for
post-investigation services in statute, so defining the term in their
State would require legislative action.
Some commenters indicated that APS services should not be reliant
upon or limited to a timeframe that is implied by the term ``post.'' A
few commenters opposed including this definition in the rule because
the lifespan of an APS case continues beyond the initiation of an
investigation and may include services that mitigate the risk of future
adult maltreatment. Another commenter noted that the State handles
cases from beginning to end, and that adding additional services would
require more staff.
One commenter proposed that the definition include the ``principles
of restorative justice.''
Response: We thank commenters for their suggestions. Throughout the
regulation in response to commenter feedback we have emphasized
holistic APS response and replaced ``investigation'' with ``response''
when appropriate. ``Response'' is inclusive of activities and actions
undertaken as the result of a report received by APS. These activities
and actions include, but are not limited to, post-investigation
services. Given the new definition of ``response,'' our proposed
definition of ``post-investigation services'' is redundant. We have
amended Sec. 1324.403 to reflect this change.
``Quality Assurance''
Comment: One commenter reported that their State does not review
all case closures or ongoing cases, so including a quality assurance
review process in the APS program would require potentially burdensome
changes. One commenter suggested the final rule include more
specificity on quality assurance programs.
Response: This rule does not require that State entities establish
quality assurance programs, as most already have such processes. We
encourage APS systems at Sec. 1324.406(b)(3) to coordinate their
quality assurance activities. We have finalized this definition as
proposed.
``Report''
Comment: We received comment requesting that we add the definition
of ``report'' as ``a formal account or statement regarding an
allegation or multiple allegations of adult maltreatment and the
relevant circumstances surrounding the allegation or allegations.''
Response: We thank commenters for their suggestion and agree a
definition of ``report'' will improve regulatory clarity and
consistency and have accepted this suggested definition. We have also
added ``self-neglect'' to the definition of ``report'' to reflect our
revisions to the definition of ``adult maltreatment.''
``Response''
Based on comments we received and changes we have made to other
sections of the rule, we are adding a definition for ``response.'' We
define ``response'' as ``the range of actions and activities undertaken
as the result of a report received by APS.''
``Screening''
Comment: One commenter noted that denied referrals are not referred
for services in their State. The commenter requested clarification on
whether all calls would have to be referred for services.
Response: Under Sec. Sec. 1324.402 and Sec. 1324.403, APS State
entities must develop policies and procedures to receive and respond to
reports of adult maltreatment and self-neglect, which include a process
for screening and referring adults for services. Not all cases will
necessarily be accepted or referred for services. We have finalized
this definition as proposed.
``Self-Neglect''
Consistent with the definitions in section 102(48) of the OAA, 42
U.S.C. 3002(48), and section 2011 of the EJA 42 U.S.C. 1397j(18), we
proposed to define self-neglect as: ``an adult's inability, due to
physical or mental impairment or diminished capacity, to perform
essential self-care tasks including:
(1) Obtaining essential food, clothing, shelter, and medical care;
(2) Obtaining goods and services necessary to maintain physical
health, mental health, or general safety, or;
[[Page 39501]]
(3) Managing one's own financial affairs.
Comment: We received a significant number of comments on this
proposed definition. Specifically, commenters requested that we remove
``self-neglect'' from the definition of ``adult maltreatment.''
Commenters noted that there is no perpetrator in self-neglect and that
APS programs' responses to cases of self-neglect differ significantly
from investigation and substantiation in cases of abuse, neglect,
exploitation, and sexual abuse.
Response: We thank commenters for this suggestion and agree. We
have accepted these comments and separately define ``self-neglect'' and
``adult maltreatment'' in this final rule. Please see our discussion in
the definition of ``adult maltreatment.''
Comment: We received comments that our definition of self-neglect
did not adequately account for personal, informed, and voluntary
lifestyle choices, such as the decision not to access medical care or
to live in clean surroundings. Furthermore, commenters pointed out that
some people with disabilities may not be able to perform self-care
tasks without assistance from services and supports, but that does not
mean there is a role for APS in such cases.
Response: We thank commenters for their input. An adult is presumed
to have capacity until found to lack capacity by a court of law.
Provided they are not determined by a court of law to be lacking
capacity, APS programs should start from the presumption that an adult
has the capability to choose to live how they desire. Distinctions
between an adult making a personal, informed, and voluntary choice
about how they wish to live and the inability to care for oneself are
critical to a person-directed definition of self-neglect. This
distinction is also central to supporting the dignity of risk of older
adults and adults with disabilities to make decisions to support their
autonomy. As discussed below, the regulatory definition of self-neglect
is intended to be person-directed, while recognizing that self-neglect
may at times create a serious risk of imminent harm to oneself or
others, at which point intervention will likely be warranted. We note
commenters' concerns and confirm that an adult's status as a person
with a disability who may require services and supports to perform
essential self-care tasks is not, in and of itself, a justification for
APS intervention.
Comment: We received comment that our definition of self-neglect
was overly broad and would increase investigations. One commenter noted
that their State required ``significant risk to health or safety'' as a
component of self-neglect.
Response: We thank commenters for their input. We agree that in
assessing self-neglect it is important to focus on the existence or
potential for harm to the adult as well as to others, rather than on
the abilities or decisions of the adult. We have revised the definition
to clarify that states must, at a minimum, define self-neglect to
include situations in which there is serious risk of imminent harm to
oneself or to others. Again, our standards are a minimum floor, and
States may use a broader definition of self-neglect, expanding the
types of situations that they investigate. However, in defining self-
neglect, we encourage States to look at the level of risk posed by
specific situations. Such an approach not only focuses resources on the
cases with highest need, but it also advances the goal of APS in
promoting self-determination and person-directedness and supporting
adults in making their own decisions in line with their values and
wishes.
Comment: A few commenters requested we strike ``diminished
capacity'' from our definition, as it places unnecessary burden on APS
to make a capacity determination. One commenter suggested we replace
``diminished capacity'' with ``diminished ability'' to encompass
physical and mental function. Relatedly, another commenter requested we
more clearly define and delineate concepts of diminished capacity and
diminished capability.
Response: Section 102(48) of the OAA, 42 U.S.C. 3002(48), and
section 2011 of the EJA 42 U.S.C. 1397j(18) use the language
``diminished capacity'' in the definition of self-neglect. We note here
and elsewhere, however, that ``diminished capacity'' is a legal
determination that APS Programs do not have the authority to make.
Because courts, not APS programs, make all capacity determinations we
disagree with commenters that discerning diminished capacity will add
burden.
Comment: Several commenters sought guidance surrounding the
interaction of self-neglect with neglect from a caregiver or fiduciary
with whom there is a trust relationship.
Response: We thank commenters for their question. Nothing in this
regulation prohibits an APS program from substantiating multiple
findings for multiple allegations in a report. This is common in APS
practice, and we leave these decisions to the discretion of APS
programs. Whether responding to an allegation of neglect or self-
neglect, APS provides person-directed, trauma-informed assessment,
investigation, and service planning, including recommendations or
referrals to other entities, such as social services programs.
Comment: ACL received comment suggesting that we explicitly include
``financial self-neglect'' in our definition.
Response: We believe the inclusion of ``(3) managing one's own
financial affairs'' is sufficient to capture ``financial self-
neglect,'' and we decline to include a separate definition of
``financial self-neglect.''
Comment: A commenter asked whether ``general safety'' includes
hoarding, failure to engage in proper home maintenance, or maintaining
utility services, to ensure the safety and livability of the home.
Response: We appreciate the commenter's request for greater
specificity; however, we decline to provide further detail in this
regulation. APS systems have the discretion to provide this level of
detail in their definition of self-neglect, and in their policies and
procedures for responding to reports of self-neglect. We remind States
that the definition of self-neglect in the final rule sets the minimum
Federal standard. In this case, APS must at least accept cases based on
self-neglect where there is a serious risk of imminent harm to oneself
or others but may choose to adopt a more expansive definition. We will
provide ongoing technical assistance to State entities and APS programs
as they implement this rule, including related to the definition of
self-neglect.
``Sexual Abuse''
The OAA does not define ``sexual abuse'' but defines ``sexual
assault'' at section 102(50), 42 U.S.C. 3002(50), to have the meaning
given in section 2003 of the Omnibus Crime Control and Safe Streets Act
of 1968, 34 U.S.C. 12291(a)(35).
Comment: We received several comments suggesting our definition
explicitly consider a victim's ability or inability to consent to a
sexual interaction. A commenter suggested ``unwanted'' interaction was
too subjective to determine and a determination of consent was more
appropriate. Several other commenters maintained that our definition
should acknowledge situations involving a power imbalance where a
victim may be coerced into agreeing to sexual interaction.
Response: We appreciate commenters' thoughtful suggestions and have
amended our definition to replace
[[Page 39502]]
``unwanted'' with ``non-consensual.'' This change brings our definition
into greater conformity with the statutory definition at 34 U.S.C.
13391.
We acknowledge the potential difficulty of defining and making
fact-specific determinations of what constitutes consensual and non-
consensual contact. We defer to the expertise of APS workers as they
respond to reports of sexual abuse in collaboration with law
enforcement (when appropriate) and perform person-centered screening,
intake, triage, investigation, and service planning. We will provide
ongoing technical assistance to States as they implement this rule.
Comment: One commenter noted that their State APS system does not
investigate sexual abuse and instead leaves this matter to law
enforcement, while only providing services to victims.
Response: Our rule does not prohibit APS from allowing law
enforcement to perform investigative functions for cases of alleged
sexual abuse while APS performs service delivery. As discussed in
Sec. Sec. 1324.402 and 1324.403 and elsewhere in this rule, the rule
requires that APS systems have policies and procedures to respond to
reports of sexual abuse, with ``response'' defined broadly per Sec.
1324.401 to include referrals to appropriate entities. In cases of
alleged sexual abuse, the APS response may be to refer the case to a
more appropriate entity for investigation, and law enforcement can be
an appropriate entity to investigate such cases.
Comment: We received comment suggesting our definition include
``sexual harassment'' ``sexual exploitation,'' ``shaming acts,'' and
``sex trafficking.''
Response: We thank commenters for their suggestions, which we
believe were adequately captured by our proposed definition, which we
have retained in the final rule. We remind State APS systems that they
may adopt definitions that go above our minimum Federal standard and
encourage them to include greater detail in their policies and
procedures.
Commenter: A commenter requested we define ``non-touching acts''
and ``sexual interaction.''
Response: We appreciate this comment and defer to State
interpretation. We will provide ongoing technical assistance to States
as they develop and implement this rule, including as they develop
State-specific definitions as desired.
``State Entity''
Comment: A commenter agrees that there should be APS regulations
and standardization but does not believe that the requirements of the
proposed rule should apply to Tribal governments. Another commenter
reported that its State APS program is bifurcated, so the definition of
``State entity'' requires clarification.
Response: Tribal governments do not receive funding through EJA APS
formula grants (42 U.S.C. 1397m-1), thus this rule does not apply to
Tribal governments. We discuss this in greater detail in our background
section on Tribal considerations. We encourage APS collaboration with
Tribal governments per Sec. 1324.406(a)(2)(iv). As noted in Sec.
1324.400 and its preamble discussion, however, we have determined that
the rule applies to bifurcated systems. We are therefore amending the
definition of ``State entity'' to ``the unit or units of State,
District of Columbia, or U.S. Territorial government[.]''
``Trust Relationship''
We proposed that ``trust relationship'' mean ``the rational
expectation or belief that a relative, friend, caregiver, or other
person with whom a relationship exists can or should be relied upon to
protect the interests of an adult (as defined above) and/or provide for
an adult's care. This expectation is based on either the willful
assumption of responsibility or expectations of care or protection
arising from legal or social conventions.''
Comment: We received a few comments in support of the inclusion of
a ``trust relationship'' in the definition of adult maltreatment.
However, a significant majority of commenters, including nearly all
State APS entities that commented, opposed to the inclusion of ``trust
relationship'' in the definition of adult maltreatment.
Some commenters asserted that the definition was confusing and
contradictory. Many commenters stated that requiring a ``trust
relationship'' between the adult and the other person may preclude APS
programs from investigating maltreatment such as online or phone scams
committed by a stranger. Some commenters asserted that referral to
other entities for situations of adult maltreatment that fell outside a
trust relationship may allow adult maltreatment to fall through the
cracks where referral sources or services are scarce or unavailable.
A number of commenters noted that the definition of ``trust
relationship'' is unclear and would be difficult to operationalize. For
example, ``social convention'' may vary across cultural practices.
Furthermore, requiring a trust relationship would create an evidentiary
burden that would be challenging for APS workers to screen for,
particularly during an initial intake.
We received comments suggesting that if we retain ``trust
relationship,'' then we should remove it as a condition of eligibility
for APS and instead move it to new Sec. 1324.402(b), requiring States
to investigate cases involving a trust relationship, as well as Sec.
1324.402(c) clarifying that APS may also investigate cases where there
is not a trust relationship between alleged perpetrator and alleged
victim.
Response: We are removing the requirement of a trust relationship
from the definition of ``adult maltreatment'' and from the definitions
section of this rule in response to feedback from commenters.
In developing our proposal to require APS systems investigate
allegations of abuse, neglect, sexual abuse, and financial exploitation
in the context of a trust relationship, we sought to ensure we did not
inadvertently expand the scope of APS programs' work. Such expansion
could increase intakes and corresponding caseloads, potentially
requiring more staffing and funding. We did not intend to limit States'
investigations only to abuse, neglect, financial exploitation, and
sexual abuse perpetrated in the context of a trust relationship.
For example, under our proposal, we would not prohibit States from
investigating fraud and scams perpetrated by a stranger. Rather, we had
sought to ensure that at a minimum and as a condition of receiving EJA
formula grants (42 U.S.C. 1397m-1) under Sec. 1324.400 of our proposed
rule, all States investigated abuse, neglect, financial exploitation,
and sexual abuse perpetrated by a person with whom an adult had a trust
relationship. This is commensurate with CDC recommendations and in
recognition of the particularly egregious nature of the power and
control dynamic that exists in cases of abuse, neglect, financial
exploitation, and sexual abuse committed when a trust relationship
exists.\31\
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\31\ U.S. Dep't of Health & Hum. Servs., Ctrs. For Disease
Control and Prevention, Elder Abuse Surveillance: Uniform
Definitions and Recommended Core Data Elements, <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> (Feb. 29, 2016).
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However, we concur with commenters that determining the presence of
a trust relationship and implementing and operationalizing this
[[Page 39503]]
provision, particularly during initial intake, may be burdensome, and
its application may result in unintended consequences. We likewise
recognize APS programs are experts in the types and nature of the adult
maltreatment occurring in their local communities and have ensured our
rule allows State systems the flexibility to prioritize and respond to
cases based on their expertise.
We continue to stress to State APS systems the importance of
investigations where the adult is in a relationship of trust with the
alleged perpetrator, and we encourage States to prioritize APS program
responses to such reports.
``Unsubstantiated''
We have updated the definition of ``investigation'' and removed the
use of ``substantiated,'' ``unsubstantiated,'' and ``inconclusive.''
``Victim''
Comment: Some commenters opposed using the term ``victim'' and
recommend the use of the terms ``client'' or ``adult'' in the final APS
rule. Another commenter suggested the use of ``survivor'' which is more
strengths-based. One commenter reported that its State program uses the
terms ``victim'' and ``client'' interchangeably within State statutes,
but APS programs generally prefer the term ``client.'' Another
commenter recommended that the definition be changed to ``alleged
victim'' because most reports to APS programs are not substantiated. A
commenter stated there would need to be State legislative action to
include the definition for ``victim'' in their State APS statutes.
Response: We thank commenters for their suggestions and note that
``victim'' is a subset of ``client'' where there is a finding of adult
maltreatment. ``Adults,'' as defined in this rule, become clients when
they are screened in by APS. If APS makes a finding that an allegation
of maltreatment has occurred, or is likely to have occurred, as defined
by State statute, the client is a victim. ``Victim'' is currently the
terminology used by NAMRS and the majority of APS systems. We are
finalizing our definition as proposed but have consistently replaced
``victim'' with ``adult'' or ``client'' where alternate terminology is
more appropriate.
C. Section 1324.402 Program Administration
We have revised Sec. 1324.402 to more clearly articulate
requirements related to incorporation of the regulatory definitions.
Section Sec. 1324.402(a) requires State entities to establish
definitions for APS systems that incorporate every defined term and all
of the elements of the definitions in Sec. 1324.401, which establish a
minimum standard, as discussed above. State definitions may not narrow
the scope of adults eligible for APS or services provided. However,
State entities are not required to uniformly adopt the regulatory
definitions. Section 1324.402(a)(1)-(4) requires the State entity to
establish definitions for: the populations eligible for APS; the
specific elements of adult maltreatment and self-neglect that render an
adult eligible for APS; the alleged perpetrators who are subject to APS
investigations in the State; and the settings and locations in which
adults may experience maltreatment or self-neglect and be eligible for
APS in the State.
Section 1324.402(b) requires APS systems to respond to reports of
adult maltreatment, which include allegations of abuse, neglect,
financial exploitation, and sexual abuse, as well as reports of self-
neglect, and requires the State entity to create, publish, and
implement certain policies and procedures for receiving and responding
to reports of adult maltreatment and self-neglect. Section
1324.402(b)(1) requires the policies and procedures to be person-
directed and rely on the concept of the least restrictive alternative.
Under Sec. 1324.402(b)(2), State APS entities must define in their
policies and procedures processes for receiving, screening,
prioritizing, and referring cases based on risk and the nature of the
adult maltreatment and self-neglect in a standardized fashion across
their State. Per Sec. 1324.402(b)(2)(i), these policies and procedures
include a tiered, risk-based assessment system, differentiating
response requirements for cases that represent immediate and non-
immediate risks. Immediate risk is assessed via the likelihood of
death, irreparable harm, or significant loss of income, assets, or
resources. Responses must occur no later than 24 hours after receiving
the report for cases representing an immediate risk and no later than
seven calendar days for cases of non-immediate risk.
We have made revisions throughout Sec. 1324.402, and added ``self-
neglect'' throughout to reflect changes to our definition of ``adult
maltreatment'' in Sec. 1324.401. We retain Sec. 1324.402(b)(2)(i)
(formerly Sec. 1324.402(a)(4)(i)) as proposed with the clarification
that our requirements may be met by referral to emergency management
systems or other entities with the capability of responding within 24
hours.
Under Sec. 1324.402(c), State entities must establish policies and
procedures to inform potential APS clients of their APS-related rights
under State law at first contact with the potential client. APS
programs are required to inform potential APS clients of their rights
in the format and language preferred by the adult, including those with
limited English proficiency and adults with disabilities. We have
renumbered Sec. 1324.402(b) as Sec. 1324.42(c), but otherwise are
finalizing it as proposed.
We proposed in Sec. 1324.402(d) that State entities create
policies and procedures for the establishment of minimum staff to
client ratios for APS systems. In response to comments by APS State
entities, national associations representing APS systems, and others,
we are not finalizing proposed Sec. 1324.402(d)(3).
Our proposal at Sec. 1324.402(e) required that State entities
establish such other program administration policies and procedures and
provide other information to APS clients as established by the
Assistant Secretary for Aging. We have decided not to finalize proposed
Sec. 1324.402(e).
We received many comments from interested parties with detailed
suggestions for improvements to our proposals and many seeking clarity
on policies contained in our proposed rule. We discuss comments and
responses below.
Comment: We received comments from State APS entities, a disability
stakeholder, and a research group addressing public disclosure of State
policies and procedures. Most commenters were either neutral or in
support of leaving disclosure of policies and procedures to State
discretion. One commenter suggested that States not be required to make
policies and procedures public, but that they be made available upon
request. Another commented that it would be helpful in their advocacy
and investigations if States were required to disclose policies and
procedures publicly.
Response: Based upon the comments we received, the final rule
requires States to publish APS policies and procedures. State entities
should make their policies and procedures public through publishing
them online, or via similar publication method.
Comment: We received general comments in support of our proposal to
standardize policies and procedures for receiving and responding to
reports of adult maltreatment and self-neglect.
Response: We appreciate commenters' support.
Comment: Many commenters wrote in support of our provision
requiring APS to respond to adult maltreatment and self-neglect, with a
few stressing the
[[Page 39504]]
importance of flexibility and State discretion. Many APS systems and
national stakeholder associations also commented that it is essential
that our rule does not impede APS systems' ability to divide and share
investigative responsibilities with law enforcement entities and other
entities with jurisdiction over investigative functions. One commenter
noted that APS should not duplicate the work of other entities, and
other commenters emphasized the importance of referral relationships in
APS response to abuse, neglect, financial exploitation, sexual abuse,
and self-neglect.
Response: We appreciate commenters' responses. The regulation at
Sec. 1324.408 requires APS entities to provide assurances in their
State plans that they have developed policies and procedures outlining
their response to reports of abuse, neglect, financial exploitation,
sexual abuse, and self-neglect. Our rule permits State systems
significant latitude in the development and application of these
policies and procedures, and the regulation does not prohibit referral
or collaboration to meet the investigatory requirements of Sec.
1324.402 and Sec. 1324.403. For example, we specifically include law
enforcement and State licensing and certification bodies as key
partners in Sec. 1324.406. We acknowledge that, in certain cases,
particularly in circumstances such as reports of sexual abuse, referral
and investigation by law enforcement with case planning and service
delivery by APS is the appropriate response for both the alleged victim
and the APS program.
Comment: We received a question as to whether States would be
permitted to place income restrictions on qualification for APS
services.
Response: APS is a social services program serving older adults and
adults with disabilities who need assistance because of abuse, neglect,
financial exploitation, sexual abuse (adult maltreatment), and self-
neglect. In all States, APS is charged with receiving and responding to
reports of adult maltreatment and self-neglect. Adult maltreatment and
self-neglect affect people of all income levels: accrued wealth is not
protector against maltreatment nor is it a remedy. It is contrary to
the intent of the EJA and OAA to impose income restrictions for
eligibility or receipt of APS services.
Comment: We received comment in support of our proposal at Sec.
1324.402(a)(1) (now Sec. 1324.402(b)(1)), with several commenters
noting that their APS systems already incorporate principles of person-
directedness. Some commenters specifically noted that guardianship
should be used only as a last resort, and one commenter noted the
importance of decisional supports for those with diminished capacity.
Other commenters suggested that sometimes APS programs must seek
guardianship and that APS must act against the wishes of the adult per
State law.
Response: The principles of person-directed services and planning
and reliance on least restrictive alternatives are foundational to the
protection of the rights of adults. They are set forth in the OAA,\32\
Rehabilitation Act of 1973,\33\ the Americans with Disabilities
Act,\34\ the EJA,\35\ the Affordable Care Act,\36\ among other laws, as
well as in the Supreme Court decision in Olmstead v. L.C., 527 U.S. 581
(1999). These laws establish separate and independent legal obligations
for covered entities; while this final rule is intended to ensure APS
policies and practices are consistent with the principles of person-
directedness, self-determination, and integration that are foundational
to the statutes listed above, the approval of a State APS plan under
this regulation does not mean that the State or APS is in compliance
with other statutory obligations, including the obligation to avoid
discrimination based on disability.
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\32\ An objective of the OAA is ``Freedom, independence, and the
free exercise of individual initiative in planning and managing
their own lives, full participation in the planning and operation of
community-based services and programs provided for their benefit,
and protection against abuse, neglect, and exploitation.'' OAA
section 101(10), 42 U.S.C. 3001(10).
\33\ The Rehabilitation Act of 1973, as amended Title VII,
chapter 1 states the current purpose of the program is to ``promote
a philosophy of independent living including a philosophy of
consumer control, peer support, self-help, self-determination, equal
access, and individual and system advocacy, in order to maximize the
leadership, empowerment, independence, and productivity of
individuals with disabilities, and the integration and full
inclusion of individuals with disabilities into the mainstream of
American society.'' 29 U.S.C. 796.
\34\ Congress stated in the ADA's statutory findings that ``the
Nation's proper goals regarding individuals with disabilities are to
assure equality of opportunity, full participation, independent
living, and economic self-sufficiency.'' 42 U.S.C. 12101(a)(7).
\35\ The EJA defines elder justice to mean ``efforts to [. . .]
protect elders with diminished capacity while maximizing their
autonomy, and [. . .] the recognition of an elder's rights[.]'' EJA
section 2011, 42 U.S.C. 1397(5).
\36\ Section 2402(a) requires removal of barriers to providing
home and community-based services through strategies to maximize the
independence of individuals, including through support and
coordination for an individual to design an self-directed,
community-supported life.
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Under this final rule, therefore, a primary goal of APS in
responding to reports of adult maltreatment and self-neglect is to
promote self-determination and person-directedness, and to support
adults in making their own decisions in line with their values and
wishes. APS programs should start from the presumption that an adult
has the capability to make all decisions, where a court has not already
rendered a legal decision about the adult's decision-making capacity.
Decisional capability can vary from situation to situation, from day to
day, and at different times within the same day. Capability to make
decisions may be affected by economic resources, fear, health status,
medication, or by maltreatment. Adults with memory loss or intellectual
and cognitive disabilities may have the capability to make decisions,
including with the assistance of a trusted supporter. Refusal to accept
APS services or refusal to participate in an APS investigation, as well
as insistence upon taking action that APS considers not in the person's
best interest, is not necessarily (and should not be presumed to be) an
indication of lack of decisional capability or diminished capacity.
In promoting decisional capability and least restrictive
alternatives, APS programs should recommend guardianship, whether they
themselves are petitioning for guardianship, accepting a court
appointment to serve as a guardian, or referring to another entity to
petition for or serve as guardian, only as a last resort if lesser-
restrictive measures have been exhausted or determined not feasible.
APS programs already work with their clients to provide or connect them
with the services and supports that enable them to direct their care
and life choices. Among these are Medicaid home and community-based
services (HCBS); OAA-funded programs such as congregate and home-
delivered meals, homemaker and chore services, and transportation; and
the Supplemental Nutrition Assistance Program (SNAP), among others. APS
programs can assist clients to arrange for less restrictive decisional
supports, both formal and informal, such as powers of attorney, and
health care advanced directives. Guardianship is rarely needed where
services and less restrictive decisional supports are appropriately
used.
As we further explain in our discussion of Sec. 1324.404,
Conflicts of Interest, we have clarified in this final rule that an APS
program petitioning for or serving as guardian constitutes a dual
relationship that will only be considered unavoidable if all less
restrictive alternatives to guardianship have been considered.
Comment: We received comment on proposed Sec. 1324.402(a)(3)
requiring State APS entities to define the settings,
[[Page 39505]]
locations, types of maltreatment, and alleged perpetrator(s) that APS
will investigate. We also received comment suggesting that APS be
required to investigate maltreatment in long-term care settings.
Another commenter noted that our proposal may require a change in State
statute if the rule requires investigation in long-term care settings.
One commenter asked that we clarify the meaning of ``types of alleged
perpetrator.'' Another commenter suggested APS often ``splits
jurisdictions'' with another entity, with relationships memorialized
both formally and informally.
Response: We have revised Sec. 1324.402 to incorporate and clarify
the requirements proposed at Sec. 1324.402(a)(2)-(3). In this final
rule, Sec. 1324.402(a) requires State entities to establish
definitions for APS systems that: (1) define the populations eligible
for APS; (2) define the specific elements of adult maltreatment and
self-neglect that render an adult eligible for APS; (3) define the
alleged perpetrators who are subject to APS investigations in the
State; and (4) define the settings and locations in which adults may
experience adult maltreatment or self-neglect and be eligible for APS
in the State. Consistent with our proposal, the final rule does not
enumerate the types of settings where APS systems must perform
investigations--whether a congregate care setting, community-based
setting, or other type of setting. Rather, it requires that States
establish a definition to standardize the settings the State chooses,
or is required by State law to, investigate.
APS entities must also establish definitions to standardize the
types of relationships they choose or that they are required by State
law to investigate. ``Type of perpetrator'' as used in proposed Sec.
1324.402(a)(3) refers to the relationship between the alleged victim
and perpetrator. For example, a type of perpetrator may be a family
member, nursing facility staff member, or relative caregiver (paid or
unpaid). Our rule does not enumerate specific types of alleged
perpetrators that a State must investigate; it requires that the State
establish definitions to standardize which types of perpetrators they
choose to, or are required by State law to, investigate.
Comment: We received comments on our proposal at Sec.
1324.402(a)(4)(i) from several State entities noting that they
currently maintain a tiered risk system (indicating their priority
response levels) that is three tiers or more. A few commenters sought
confirmation that these systems would satisfy the requirements of
proposed Sec. 1324.402(a)(4)(i).
Response: We recognize there is diversity across State systems'
priority response levels. A system with three or more tiers is
compliant with our requirements at Sec. 1324.402(b)(2)(i) (proposed
Sec. 1324.402(a)(4)(i)) provided it meets, at a minimum, the immediate
and non-immediate timeliness requirements of Sec. 1324.402(b)(2)(i)(A)
and (B). State APS entities must develop a process for screening,
prioritizing, and referring reports based on risk. This system should
include at least two tiers for initial contact with an alleged victim.
These tiers are based on assessment of the immediate risk of death,
irreparable harm, or significant loss of income, assets, or resources.
However, our regulation is a minimum standard. A State is permitted to
employ a three-tiered system (or greater) provided cases are screened,
prioritized, and referred based on immediate and non-immediate risk and
the initial contact requirements of Sec. 1324.403(b)(2)(i) and (ii)
are adhered to. We discuss the two-tiered system requirements in
greater detail below.
Comment: We received many comments on our proposal at Sec.
1324.402(a)(4)(i)(A) (now at Sec. 1324.402(b)(2)(i)(A)) opposed to a
required response time of 24 hours in the case of immediate risk.
Commenters noted that many State systems do not currently have the
necessary infrastructure to meet our proposal and that compliance would
require significantly increased staffing and attendant expense.
Commenters suggested using law enforcement and emergency response
systems to satisfy the 24-hour immediate risk response requirement,
with many suggesting that they already have such collaborative referral
systems in place. One commenter noted that requiring APS to respond to
emergency situations may put an APS workers' safety at risk. Others
suggested we amend our proposal to one business day to better account
for staffing restrictions. A few commenters sought guidance on how to
calculate risk and examples of immediate and non-immediate responses.
Response: We thank commenters for their suggestions and questions.
First, it is important to distinguish between the requirement to accept
a report (further discussed under Sec. 1324.405), and the requirement
to respond within 24 hours in cases of immediate risk. As we discuss in
further depth below, APS programs must respond within 24 hours of
retrieving a report from the system that accepts reports 24 hours per
day, seven days per week (24/7) (for example, retrieving an email from
a 24/7 inbox), and then screening-in the case.
To satisfy the ``in-person contact within 24 hours'' requirement
for immediate risk cases, APS programs may refer adults to emergency
response systems, law enforcement, or other appropriate community
resources (e.g., homeless outreach, veteran's affairs, services for
victims of sexual assault). It is not our expectation that a case or
service plan will be complete (or necessarily even have begun,
depending on the situation) within 24 hours. Our requirement is that
States have policies and procedures to ensure that APS responds within
24 hours of retrieving and screening-in an immediate risk report. This
response may be an in-person visit by APS or by APS accompanied by
another entity. APS may also refer the report to another appropriate
entity that is able to make an in-person visit within the designated 24
hours. If a reporter files a report outside business hours, the 24-hour
time limit for APS response will not begin until APS retrieves the
report, and the case is screened-in. For immediate risk reports, APS
programs should establish mechanisms to refer reporters to emergency
response systems, police, or other 24-hour response resources,
particularly for reports that come in after business hours. This may be
accomplished, for example, through an away message on a hotline or
email. We discuss expectations around 24/7 methods of accepting reports
in Sec. 1324.405.
We defer to States in determining what meets the threshold of
immediate need or ``risk of death, irreparable harm, or significant
loss of income, assets, or resources.'' We will provide technical
assistance to States as they draft or amend their policies and
procedures to implement this final rule. We have renumbered Sec.
1324.402(a)(4)(i)(A) as Sec. 1324.402(b)(2)(i)(A) and are otherwise
finalizing it as proposed.
Comment: A few commenters suggested we remove ``significant loss of
income, assets, or resources'' from our proposal at Sec.
1324.402(a)(4)(i), noting that a response to financial exploitation
cases is often not an immediate need, and another commenter noted that
financial exploitation cases may require a nuanced approach with
advance research.
Response: The financial exploitation of an adult can progress
swiftly in scope and scale, and while a nuanced approach may be
necessary, we likewise believe an expeditious response is critical in
some cases of financial exploitation. For example, financial
[[Page 39506]]
exploitation may rob victims of a significant portion of their
retirement savings, endangering their current and future financial
security.\37\ Furthermore, restitution from such crimes may be
difficult or impossible.\38\ Financial exploitation also adversely
impacts its victims' mental health, their sense of security, and their
dignity. We have renumbered this section as Sec. 1324.402(b)(2)(i),
but otherwise finalize this provision as proposed.
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\37\ Financial Crimes Enforcement Network (FinCEN), Advisory on
Elder Financial Exploitation, June 15, 2022, <a href="https://www.fincen.gov/sites/default/files/advisory/2022-06-15/FinCEN%20Advisory%20Elder%20Financial%20Exploitation%20FINAL%20508.pdf">https://www.fincen.gov/sites/default/files/advisory/2022-06-15/FinCEN%20Advisory%20Elder%20Financial%20Exploitation%20FINAL%20508.pdf</a>. 3 Stanford Center on Longevity and Finra Investor Education
Foundation, The State of Financial Fraud in America: Post Conference
Report, 2016, <a href="https://longevity.stanford.edu/financial-fraud-research-center/wp-content/uploads/2017/02/Fraud-Post-ConfereceReport-2-15-17-2.pdf">https://longevity.stanford.edu/financial-fraud-research-center/wp-content/uploads/2017/02/Fraud-Post-ConfereceReport-2-15-17-2.pdf</a>.
\38\ Consumer Financial Protection Bureau, Recovering from Elder
Financial Exploitation: A framework for policy and research, (Office
for Older Americans, 2022), <a href="https://files.consumerfinance.gov/f/documents/cfpb_recovering-from-elder-financial-exploitation_report_09-2022.pdf">https://files.consumerfinance.gov/f/documents/cfpb_recovering-from-elder-financial-exploitation_report_09-2022.pdf</a>.
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We underscore the importance of referral relationships and
collaborative partnerships in responding to reports of potential
financial exploitation. Accordingly, we have added ``State securities
and financial regulators, Federal financial and securities enforcement
agencies'' to Sec. 1324.406(a)(3) in response to commenter feedback.
Comment: While some commenters supported proposed Sec.
1324.402(a)(4)(i)(B) requiring APS response to non-immediate risk
reports within no more than seven calendar days, others suggested that
a seven calendar-day timeframe was too lenient and gave examples of
their State systems. One commenter noted that seven days permitted
adequate preparation, planning, and case assignment. Other commenters
suggested a shorter timeframe, for example, 72 hours. Still other
commenters suggested that seven calendar days was too restrictive and
requested a longer timeframe, such as ten calendar days or seven
business days. One commenter noted that ACL did not provide adequate
justification for a seven-day timeframe.
Response: Based on commenter feedback, we are finalizing Sec.
1324.402(a)(4)(i)(B) (renumbered as Sec. 1324.402(b)(2)(i)(B)) as
proposed. We chose a seven-day timeframe because most State APS systems
respond to reports within seven calendar days, and we believe this
timeframe will ensure timely response to reports while minimizing
burden for APS systems.\39\ We remind State entities that they are
permitted to set shorter timeframes for response (e.g., 72 hours), but
not longer timeframes (e.g., more than seven calendar days).
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\39\ Supra note 4. For non-immediate response, there are ten
programs that have a ten day, there are 2 that have a 14 day, there
is one that has a 20 day. The rest are 7 days or sooner.
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As discussed earlier, it is not our expectation that investigations
or case plans will be complete (or potentially even started) within
seven calendar days, although data indicates three quarters of States
currently perform case-initiation within seven calendar days.\40\
Rather, APS must provide some response to a non-immediate risk report
of maltreatment within seven calendar days. We define response broadly
in Sec. 1324.401 to include referral and other collaborative
interventions. This policy aligns with standards set out in our
Consensus Guidelines which suggest 24-hour response for immediate-risk
cases and five business day response for non-immediate risk cases.
State entities will have 4 years to come into full compliance with
these provisions, and we will offer the option of a corrective action
plan for States that require more than 4 years to come into compliance
with this provision.
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\40\ Id.
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Comment: We received a comment suggesting that we revise proposed
Sec. 1324.402(a)(5) to read ``define investigation and post-
determination (or disposition) procedures.''
Response: We thank the commenter for their suggestion. We have
removed proposed Sec. 1324.405(a)(5) consistent with our revisions to
Sec. 1324.403.
Comment: We received comments in support of our proposal to inform
adults of their rights at first contact, as well as comments expressing
concern. Some commenters requested clarity or made suggestions for
improvement, including what is meant by ``first contact'' and whether
they would be required to give adults pamphlets or brochures.
Commenters also requested guidance on how to address situations where
adults lack the ability to consent to APS services. Commenters
suggested that adults should be informed of their rights in an
accessible manner, noting the importance of communication preferences
and accessibility needs.
Many commenters wrote in opposition to informing an adult of their
rights at first contact, as this may set an adversarial tone.
Commenters noted it was important to build trust and rapport early in a
relationship with a potential client. One commenter offered that
proposed Sec. 1324.402(b) (renumbered as Sec. 1324.402(c) in the
final rule) be edited to read ``inform clients of their rights at first
contact to the extent possible.''
Several commenters were opposed to giving adults pamphlets or
brochures with information on their rights, out of the concern that
this could prove a safety risk if a perpetrator were to find the
information and retaliate or coach a victim. Several commenters
requested information and examples of person-directed, culturally
competent, accessible methods for informing adults of their rights, as
well as best practices.
Response: We thank commenters for their comments and suggestions.
For the purposes of our rule, ``first contact'' is the first touch
point with the potential client, whether that be by telephone or in-
person. This is sometimes, but not always, the initial intake. We note
that nothing in our rule requires APS programs to leave brochures or to
inform potential clients of their rights as the very first words of an
interaction. Informing a potential client of their rights can be woven
into an APS worker's first meeting or discussion with a potential
client in whatever manner the APS worker deems most appropriate to the
situation to build trust and rapport. APS programs must inform
potential clients of their APS-related rights under State law. Under
the regulation, APS workers are required to provide information about
the rights to confidentiality of personal information, to refuse to
speak to APS, and to refuse APS, to the extent such rights exist under
State law.
We will be providing ongoing technical assistance to implement this
final rule, including best practices for informing potential clients
(including those with disabilities and impaired decisional capability)
of their rights.
Comment: We received a few comments from APS State entities on
proposed Sec. 1324.402(b)(2) (renumbered as Sec. 1324.402(c)(2) in
the final rule) noting that informing adults of their rights may
disincentivize them from talking to APS and may prevent a case from
being opened when there is maltreatment or self-neglect present. For
example, commenters offered that in cases of self-harm, an adult should
not be informed of their rights and that this could be dangerous if
they are dissuaded from speaking to APS and accepting services. One APS
program opined that if an adult did not want APS services, they should
appeal a finding after the fact.
Response: We thank commenters for their responses. As we said
regarding comments about self-determination,
[[Page 39507]]
adults must be presumed to have decisional capability. Most State laws
establish the right to refuse services, to decline participation in an
investigation, and to make decisions which others may disagree with
about their lives. We decline to include in the regulations
prescriptive descriptions of what would constitute an extreme
circumstance warranting non-consensual intervention. In supporting the
dignity of risk of older adults and adults with disabilities to make
decisions to support their autonomy, APS programs should balance the
risk with ensuring the person's health and welfare. Such circumstances
are fact-specific and are best assessed carefully by individual
programs. We encourage State entities to include in their policies and
procedures and in their State plan standards for such intervention,
taking into consideration the requirements of person-directed and least
restrictive services. We note, however, that a policy of providing an
adult with appeal rights after providing non-consensual services, as
suggested by one commenter, does not meet the standard of least
restrictive intervention. For example, an adult who loses their living
arrangement because they were removed from their home without consent
cannot be made whole through an appeals process.
We will provide technical assistance as requested regarding
approaches to inform potential clients of their rights.
Comment: We received a comment on proposed Sec. 1324.402(b)(3)
(renumbered as Sec. 1324.402(c)(3) in the final rule) that in one
State, a potential APS client does not have the right to decline
services.
Response: Our proposal requires that potential clients must be
informed of their APS-related rights under State law. Such rights may
include the right to decline to participate in an investigation, to
decline services, and/or to refuse entry to their home. Thus, if State
law does not offer a potential client the right to decline services,
APS must still inform the client of any rights they do have under State
law. Furthermore, APS programs are required to abide by all other
provisions in this rule, including those related to person-directed
case planning and services.
Comment: Commenters fully supported proposed Sec. 1324.402(c)
(renumbered as Sec. 1324.402(d) in the final rule), which requires
that information be provided in a format and language understandable by
the adult, and in alternative formats as needed.
Response: We thank commenters for their support and are finalizing
as proposed.
Comment: We received broad support for our proposals at Sec.
1324.402(d)(1) (renumbered as Sec. 1324.402(e)(1) in the final rule)
for APS training, with several APS entities indicating that they
already provide training on core competencies. Some commenters
suggested that trainings may be burdensome, particularly with reference
to training on our regulations. A few commenters suggested disability-
specific education.
Response: We thank commenters for their input and are finalizing as
proposed. We will provide ongoing technical assistance and training
resources through our technical assistance resource center.
Comment: We received overwhelming opposition to our proposal at
Sec. 1324.402(d)(3) for State entities to establish staff-to-client
ratios. Commenters believed it would be extremely difficult to develop
ratios due to a lack of research and evidence in the area. Many
commenters likewise stated that too many variables are beyond their
control when determining appropriate ratios, including the complexity
of cases, State appropriations for APS staffing, staff attrition and
turnover, difference in geography (rural versus urban areas),
regulatory changes, and other variables. A commenter noted that tying
ratios to current staffing levels may perpetuate understaffing. Many
commenters responded to our request for information with support for
workload studies.
Response: We thank commenters for their thoughtful input. In
response to these comments, we have decided not to finalize proposed
Sec. 1324.402(d)(3). We encourage States to conduct ongoing workload
studies and will provide ongoing technical assistance as they conduct
them.
Comment: We received comment that proposed Sec. 1324.402(e), which
requires the State entity to establish other program administration
policies and procedures and provide other information to APS clients as
established by the Assistant Secretary for Aging, is overly vague and
injects undesirable uncertainty.
Response: We thank commenters for their input. We have decided not
to finalize this provision.
D. Section 1324.403 APS Response
Section 1324.403 requires the State entity to adopt standardized
and systematic policies and procedures for essential APS functions
throughout the lifecycle of a case. The purpose of an APS response,
including through investigation and service planning, is to collect
information about the allegations of adult maltreatment or self-
neglect; determine if the alleged victim is eligible for APS services;
assess the immediate risk of the situation; and refer to, arrange for,
and/or provide services to stabilize the situation. APS identifies the
service needs of the client and develops a plan, including
recommendations or referrals to other entities, such as social services
programs. Service planning and referral often occurs concurrently to
investigation as well as post-investigation in many, but not all,
systems.
Section 1324.403 sets forth requirements for the development of
standardized policies and procedures governing APS response. Initiation
of an investigation encompasses screening and triaging reports and
decision-making processes for determining immediate safety and risk
factors affecting the adult. The investigation includes the collection
of relevant information and evidence. Policies and procedures must also
detail methods to make findings on allegations and record case
findings, including consultation with outside experts when appropriate.
Professional fields for such experts include medicine, social work, law
enforcement, legal services, behavioral health, finance/accounting, and
long-term care. We likewise require the APS worker to provide referrals
to other agencies and programs, as appropriate under State law, such as
referrals to AAAs, State Medicaid programs, or Centers for Independent
Living for services. For example, the APS program may make a referral
to the State Medicaid agency for HCBS to mitigate harm and assist the
victim in recovery from the abuse. During a response, APS may, in
limited and warranted circumstances, take emergency protective action,
which we define in Sec. 1324.401. Such action should be person-
directed and taken as a last resort after exploring all other viable
options, and prioritize community integration, autonomy, and individual
choice.
Many APS clients require services, which APS provides or arranges
for through a variety of mechanisms and funding sources. APS staff may
provide services directly (e.g., assistance with housing relocation),
pay third parties for services (e.g., pay for medications or utility
bills), or make referrals to community-based services (e.g., home-
delivered meals). The rule offers a framework for the provision of
services that promotes the dignity and autonomy of the client,
leverages community resources, and aims to prevent future adult
maltreatment and/or self-neglect.
[[Page 39508]]
We received comment on our proposals from an array of different
commenters, including State APS entities, national associations,
researchers, APS programs, AAAs, and others. We received many comments
critiquing our proposal for inaccurately characterizing APS
investigation and service delivery as running separate from and
consecutive to each other and for over-emphasizing the role of APS
investigatory functions. We have revised the section's title and
proposed Sec. 1324.403(e) in response to feedback and offer
clarification on individual subsections. We have likewise removed Sec.
1324.403(e)(3) in response to comments stating that it was beyond APS
authority to hold perpetrators accountable. We have removed proposed
Sec. 1324.403(e)(6) and proposed Sec. 1324.403(f)(3)(iii); we agree
with commenters that it would be extremely challenging for APS to
monitor a client and measure efficacy and outcomes and believe that the
performance data collection required by Sec. 1324.407 and NAMRS is a
less burdensome way to monitor and evaluate efficacy and outcomes and
achieve the goals of these proposed provisions. In response to comment,
we struck ``or decision'' from proposed Sec. 1324.403(f)(3)(v) as
duplicative. Below is a summary of and response to the public comments
we received regarding this section.
Comment: We received comment from State APS entities, national
associations, researchers, APS programs, and others stating that
proposed Sec. 1324.403 ``Investigation and Post-Investigation
Services'' focused too heavily on APS's investigatory function and
underrepresented the critical role of service planning and delivery in
person-directed APS practice. Commenters also suggested changes
throughout proposed Sec. 1324.403 to definitively establish service
delivery and investigation as concurrent responsibilities of APS
systems.
Response: We thank commenters for their suggestions and feedback
and have revised the title of Sec. 1324.403 from ``Investigation and
Post-Investigation Services'' to ``APS Response.'' We have defined
``response'' in Sec. 1324.401 as ``the range of actions and activities
undertaken as the result of a report received by APS.'' We likewise
have amended Sec. 1324.403(e) from ``[p]rovision of APS post-
investigation services [. . .]'' to ``[p]rovision of and/or referral to
services [. . .]''
Comment: We received comment that proposed Sec. 1324.403 was
confusing and that proposed Sec. Sec. 1324.403(a) and 1324.403(b)
would be more appropriately included in Sec. 1324.405, which addresses
accepting reports.
Response: Sections 1324.402(a) and 1324.402(b) detail different
aspects of APS program administration than Sec. 1324.403 does. Section
1324.402 sets overarching principles for administering the APS program
at all phases of the response. Likewise, Sec. 1324.405 addresses the
process by which the APS program accepts reports. Section 1324.403, on
the other hand, addresses the process for responding to reports. We
believe that the significance of response procedures warrants a
separate section of the regulation and decline to combine the
referenced regulatory sections.
Comment: One commenter requested that we clarify the term
``screening'' and whether ``screened-out'' cases must comply with the
regulation.
Response: Section 1324.403(a) requires ``[s]creening, triaging, and
decision-making criteria or protocols to review and assign adult
maltreatment and self-neglect reports[.]'' Screened-in reports are
those that meet the threshold criteria for APS involvement as defined
by State statute, regulation, or policy. Screened-out reports are those
that do not meet the threshold criteria for APS involvement as defined
by State statute, regulation, or policy.
Comment: One commenter recommends that ACL add measures to protect
the safety and confidentiality of reporter identity and institution
affiliation to ensure safety for all involved.
Response: We thank the commenter for the suggestion. APS systems
must comply with State privacy and confidentiality laws. We do not
believe we need to include additional privacy and confidentiality
standards in this section, but we reiterate that this final rule
establishes minimum standards, and States have the discretion to
establish stricter privacy and confidentiality standards for reporters
if they choose to do so.
Comment: A commenter suggested that collection of relevant
information under proposed Sec. 1324.403(c) may not always be directed
by the person and, in this case, we should clarify that in cases where
a client does not direct evidence collection, APS should act in a
client's best interests.
Response: Our final rule at Sec. 1324.403(c)(4) and Sec.
1324.402(b)(1) states that APS should incorporate principles of person-
directedness when responding to reports, including during the
collection of evidence. We discuss person-directedness in more detail
in the discussion of Sec. 1324.402(b)(1).
Comment: A few commenters agreed with our inclusion of proposed
Sec. 1324.403(c)(2) and stressed the importance of APS workers'
safety. Two commenters pointed out the role of law enforcement when
responding to APS reports in ensuring client and worker safety.
Response: We thank commenters for their support and likewise agree
law enforcement is a critical APS partner, as discussed in Sec.
1324.406.
Comment: We received one comment from a State APS entity in strong
support of our proposals at Sec. 1324.403(c)(3)-(6). The State entity
noted that it was already in compliance with these principles and
believes they are a national best practice.
Response: We thank the commenter for their support.
Comment: We received comments on proposed Sec. 1324.403(c)(4)
requesting that we define trauma-informed and give specific examples of
person-directedness. Specifically, we received comments requesting we
give examples of how to triage cases in a trauma-informed way.
Response: We thank commenters for their suggestions and questions.
As discussed earlier, trauma-informed approaches to adult maltreatment
and self-neglect recognize the impact of trauma and incorporate that
knowledge into service delivery and provider practices.\41\ Trauma-
informed intake, triaging, investigation, and service delivery identify
how traumatic events and circumstances may affect an adult's immediate
and ongoing physical and emotional safety and wellbeing. APS workers
trained in trauma-informed practices can identify trauma responses in
potential and current clients and adjust their practice approach as
informed by the individual client's experience to ensure adults are not
re-traumatized and feel safe and empowered.
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\41\ Center for Health Care Strategies, The Trauma Informed Care
Resource Center, <a href="https://www.traumainformedcare.chcs.org/about-the-trauma-informed-care-implementation-resource-center/">https://www.traumainformedcare.chcs.org/about-the-trauma-informed-care-implementation-resource-center/</a> (last visited
Feb. 5, 2024).
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Person-directedness, like trauma informed approaches, centers the
experiences, values, and preferences of the adult.\42\ Person-directed
approaches involve the adult in all aspects of intake, investigation,
service planning and
[[Page 39509]]
delivery, to the greatest extent possible. A person-directed APS
response respects the adult's right to self-determination. The adult
takes an active role and determines the goals. Examples of person-
directed strategies include empowering and assisting the adult to
identify and access the desired interventions and services, and
emphasizing to the adult that they have a voice--this is their case.
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\42\ Kumar R, Chattu VK. What is in the name? Understanding
terminologies of patient-centered, person-centered, and patient-
directed care, J Family Med Prim Care. 2018 May-Jun;7(3):487-488
<a href="https://www.cms.gov/priorities/innovation/key-concepts/person-centered-care">https://www.cms.gov/priorities/innovation/key-concepts/person-centered-care</a>; The Admin. For Comm. Living, Person-centered
Planning, <a href="https://acl.gov/programs/consumer-control/person-centered-planning">https://acl.gov/programs/consumer-control/person-centered-planning</a> (last visited Feb. 5, 2024).
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We will provide ongoing technical assistance to State APS systems
as they implement the rule. Technical assistance may be provided in
webinars, conference sessions, tip sheets, practice guides, and
customized presentations or consultations with State APS systems.
Topics may include addressing general concepts and may delve into how
these concepts are applied to specific components of APS practice, and
how best practices are being advanced by APS professionals. We are
finalizing Sec. 1324.403(c)(4) as proposed and will include more
examples and best-practices of trauma-informed and person-directed
services, as defined above, in technical assistance.
Comment: We received comment on proposed Sec. 1324.403(c)(5)
requesting that we clarify expected minimum frequency and type of
contact with a client.
Response: We leave specifics related to frequency and type of
contact to the discretion of the APS State entity to incorporate into
their policies and procedures. This rule only requires that the State
entity have consistent evidence and information collection practices to
inform findings on allegations and service planning that maximize
engagement with the APS client.
Comment: We received comments on proposed Sec. 1324.403(d)
suggesting we require consultation with organizations and providers
that have an ongoing relationship with a client. Another commenter
suggested consultation with animal service organizations as a part of
multidisciplinary teams.
Response: Commensurate with our requirements at Sec. 1324.406,
State APS entities should develop policies and procedures that include
consultation and collaboration with a variety of experts. We note our
list of community partners is not exhaustive and States may choose to
add additional entities. We decline to specify organizations for
consultation in Sec. 1324.403(d)(1) and are finalizing the section as
proposed.
Comment: We received comment on 1324.403(c)(6) requesting that
``emergency protective action'' be revised for consistency with our
definition at Sec. 1324.401. We also received comment that APS often
does not have control over State law governing law enforcement
involvement and policies related to emergency protective action.
Another commenter noted that our proposal sets a higher standard than
the law in their State and may hinder cases where guardianship is
sought due to a client's lack of capacity and decision-making ability.
Finally, a few commenters sought clarity on types of emergency
protective actions that are appropriate, and one commenter noted that
its APS system did not accept out-of-home placements.
Response: We thank commenters for their suggestions and have
amended proposed Sec. 1324.403(c)(6) for clarity and to conform with
our revised definition at Sec. 1324.401. Specifically, we have amended
Sec. 1324.403(c)(6) to permit the emergency use of APS funds to buy
goods and services. We have created a new Sec. 1324.403(c)(7) to
permit APS to seek emergency protective action only as appropriate and
necessary as a measure of last resort to protect the life and safety of
the client from harm from others or self-harm.
We believe that the emergency use of APS funds to buy goods and
services should not be subject to the stricter standards for seeking
emergency protective actions. We apply the stricter standards for
seeking emergency protective actions in keeping with our focus on
person-directed services and least restrictive alternatives. As stated
previously, we require that APS State entities develop policies and
procedures that define and limit the use of emergency protective
action, including guardianship and conservatorship, as a last resort
after all other alternatives have been exhausted. This practice is
supported by research and literature on APS practice.\43\ We will
provide ongoing technical assistance and guidance to States about the
implementation of emergency protective action and best practices to
promote autonomy and incorporate person-directedness.
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\43\ Supra at 12; Most APS programs routinely encourage
alternatives to guardianship. More programs (50) provide substitute
decision-making (in which someone assumes responsibility to make
decisions for a person who has been deemed unable to make his or her
own financial or health care decisions) than supported decision
making (a process of supporting and accommodating an adult with a
disability to enable the adult to make life decisions without
impeding the self-determination of the adult) (37 programs). More
programs (49) indicated they encourage power of attorney than
advanced directives (36 programs).
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Comment: We received comment on proposed Sec. 1324.403(e)
suggesting we strike ``post-investigation services'' and replace
``during the course of'' to read, ``services during the course of and
post investigation [. . .]'' to more accurately and clearly represent
person-directed APS service provision during the course of an
investigation, as opposed to only once an investigation has closed.
Response: We appreciate these suggestions. Based on various
comments on this proposed section, we have revised proposed Sec.
1324.403(e) to read ``[p]rovision of and/or referral to services, as
appropriate.'' We believe this change is responsive to commenter
feedback on proposed Sec. 1324.403(e) and Sec. 1324.403 more broadly
and aligns with the retitling of Sec. 1324.403 to ``APS Response.''
Comment: We received many comments, including from APS State
entities, on our proposal at Sec. 1324.403(e)(3) requiring APS systems
hold perpetrators accountable. A number of commenters noted that law
enforcement and the legal system, not APS, are tasked with holding
perpetrators accountable. A commenter noted that APS instead provides
protective services to a victim to enhance safety and in accordance
with their wishes and informed choice. According to comment, it is
outside APS programs' jurisdiction to ``stop abusive behavior'' and
sometimes impossible to accomplish if a victim chooses to remain with
their abuser. One commenter suggested amending proposed Sec.
1324.403(e)(3) to read: ``Refer perpetrator to the appropriate law
enforcement entity or entities to address accountability for the adult
maltreatment.'' Another commenter suggested replacing ``abusive'' with
``maltreatment'' to better reflect our definitions in Sec. 1324.401.
Response: We appreciate and agree with these comments. We have
decided not to finalize Sec. 1324.403(e)(3) in response to feedback.
Comment: We received comment in support of our proposal at Sec.
1324.403(e)(4) noting that clients should be at the center of all
service planning and other efforts. Another commenter suggested that
consultation with clients is not always possible, and that we should
amend our proposal to reflect this.
Response: We appreciate commenters' responses. APS should make
every attempt to involve a client in service planning and referrals
throughout the lifecycle of the case. We believe this is adequately
accounted for in Sec. Sec. 1324.403(c)(4) and (5), Sec. Sec.
1324.403(e)(1) and (2) and in Sec. 1324.402(b)(1).
Comment: We received comments from State APS entities and other
interested parties suggesting that our
[[Page 39510]]
proposal at Sec. 1324.403(e)(6) may be difficult to implement and is
administratively burdensome and cost prohibitive. Commenters noted that
they do not follow cases after closure and sought clarity around
expectations for what constitutes monitoring and impact. A commenter
suggested that there are ways to monitor effectiveness of APS services
(such as tracking recidivism or reoccurrence) that are less burdensome.
Response: We have reassessed our proposal in light of commenters'
feedback and suggestions, and we are not finalizing proposed Sec.
1324.403(e)(6). We believe data on service effectiveness and client
outcomes can be measured through existing NAMRS data collection and
through the program performance data to be reported under Sec.
1324.407.
Comment: We received one comment on proposed Sec. 1323.403(f)(1)
from a State APS entity stating that it did not have established
timeframes for ongoing review of cases and that proposed Sec.
1324.403(f)(1) would be burdensome. Conversely, we received comments in
support of creating timeframes for review.
Response: Ongoing review of open cases ensures that APS addresses
adult maltreatment and self-neglect in a timely manner and that cases
do not languish, potentially allowing for preventable adult
maltreatment or self-neglect. We are not mandating exact timeframes for
case review, only that a State APS system have policies and procedures
in place to provide for such review. We are finalizing this provision
as proposed.
Comment: A commenter suggested that our proposed Sec.
1324.403(f)(2) be removed because our proposal at Sec. 1324.403(e)(4)
to create service plans accounted for this and the provision was thus
duplicative. Another State offered that each case was unique, and there
should be no timeframe set. A commenter offered that timeframes should
not be hard and fast, and that extensions were necessary, especially
for cases such as financial exploitation. One commenter suggested
including an exceptions and ongoing review process.
Response: We are amending our proposal at Sec. 1324.403(f)(2) to
read ``[e]stablish a reasonable length of time by which investigations
should be completed and findings be made[. . .]'' [emphasis added]. We
note that this rule does not set a specific timeframe for investigation
completion. Rather, we require State entities to set such quantifiable
and reasonable timeframes in policies and procedures, understanding
that what is reasonable for one case type may be different from
another.
Comment: We received comments in support of our proposal at Sec.
1324.403(f)(3)(iii) requiring State entities to establish policies and
procedures to measure the outcome and efficacy of interventions and
services. However, we received many comments suggesting that impact and
outcomes are difficult to measure. Some stated that our proposal was
vague and would be challenging to operationalize, with commenters
suggesting it was unclear how to measure outcomes and efficacy after
case closure. One commenter argued that the Federal Government needed
to set national outcome standards for practice and intervention.
Another suggested we amend Sec. 1324.403(f)(3)(ii) to read
``[a]ssessment of the outcome and perceived success of intervention and
services.''
Response: We agree with commenters and are declining to finalize
Sec. 1324.403(f)(3)(iii). Similar to our proposal at Sec.
1324.403(e)(6), we believe outcomes and efficacy of interventions and
services can be measured by performance data submitted under Sec.
1324.407 and existing NAMRS data collection, alleviating any potential
additional burden on APS systems.
Comment: We received comments suggesting we strike ``or decision''
in proposed Sec. 1324.403(f)(3)(v), as it could allow for recording
whether the case was closed but not necessarily the reason behind the
closure. We also received comments questioning whether our rule
requires case closure information to be transmitted to the client. One
commenter advocated that case closure transmittal to the client be
optional and not mandatory, and one commenter suggested that it was not
person-centered to transmit self-neglect decisions to a client.
Response: We have renumbered Sec. Sec. 1324.403(f)(3)(v) to
1324.403(f)(3)(iv) to reflect other changes in this subsection. We are
removing ``or decision'' per commenter feedback. We also clarify that
Sec. 1324.403(f) only requires documentation of the information and
not transmission of the information to the client. We leave to State
discretion whether to transmit the reason for case closure to the
client.
E. Section 1324.404 Conflict of Interest
Section 1324.404 requires the State entity to establish policies
and procedures to prevent, recognize, and promptly address both actual
and perceived conflicts of interest at the organizational and
individual level. As discussed in the preamble to the rule, trust in
APS by clients receiving services and the broader community is
essential to the ability of APS programs to perform their functions
effectively and appropriately. APS programs form partnerships and
referral relationships with allied organizations and professionals to
provide necessary services and supports to adults before, during, and
after intake and investigation. Conflicts of interest may arise when a
State employee, APS worker, or APS system's financial or personal
interests influence or are at odds with the interests of a client or
cohort of clients. Many APS programs that provide services for victims
of adult maltreatment and adults experiencing self-neglect have close
relationships and shared locations and data systems with AAAs, State
Units on Aging, and other health and human services agencies.
Additionally, individual APS workers may face conflicts of interest
if they are in a ``dual relationship'' serving multiple roles for a
single client. We proposed dual relationships be permitted only when
unavoidable and conflicts of interest should be appropriately mitigated
and concluded as soon as feasible. Further, our proposed rule required
that APS programs have policies and procedures that ensure conflicts of
interests are avoided and, if found, remedied. We proposed that APS
have policies and procedures to identify both organizational and
individual conflicts of interest. Policies must establish actions and
procedures that APS will require employees, contractors, grantees,
volunteers, and others in a position of trust or authority to take to
remedy or remove such conflicts. Over time, APS has expanded its
working relationships, thus necessitating additional guidance on
preventing and mitigating conflicts of interest.
Commenters were generally supportive of our proposals, with
significant feedback offered on proposed Sec. 1324.404(a) regarding
APS serving as direct service providers and Sec. 1324.404(d) regarding
dual relationships. We also received a few clarifying comments.
We proposed in Sec. 1324.404(a) to prohibit employees and agents
of APS from simultaneously serving as direct service providers, such as
case managers, to clients. We received several comments opposed to our
proposal. As discussed below, in response to commenter feedback, we
have removed Sec. 1324.404(a). We have also made clarifying edits to
proposed Sec. 1324.404(b) and proposed Sec. 1324.404(c). In addition,
we have added new Sec. 1324.404(d) in response to commenter feedback
on guardianship and dual relationships. Below is a summary of the
public comments we
[[Page 39511]]
received regarding this section and our responses.
Comment: We received a number of comments stressing the need for
robust conflict of interest protections and in support of our proposal.
Response: We concur and thank commenters for their support.
Comment: We received comment that our proposal was too broad and
would create significant burden and expense for APS programs. For
example, a commenter suggested that applying the rule to ``all
professionals involved in an APS investigation'' would be difficult to
administer and monitor.
Response: We believe that with appropriate legal and policy
guidance, APS systems will be able to identify, monitor, remedy, and
remove actual and potential conflicts of interest as necessary. ACL
maintains that the benefit to APS clients of ethical practice far
outweighs the burden incurred.
Commenter: One commenter raised concerns that our proposals might
adversely affect the work of multidisciplinary teams.
Response: We believe that our rule will help multidisciplinary
teams fulfill their mission and will not adversely impact the work of
multidisciplinary teams. Better awareness of, and a standardized
approach to remedying conflicts of interest will enable
multidisciplinary teams to efficiently address any conflicts of
interest among its participants. For example, if a team member has a
direct conflict of interest, they may recuse themselves from working on
a specific case or cases. Other recommendations include presenting
cases without personally identifiable information, strengthening
confidentiality agreements, and strengthening working relationships
with other local area teams should a conflict arise.
Comment: One commenter suggested the rule be less specific about
areas where a conflict of interest may arise and allow States
flexibility in identifying and addressing this in State policy.
Response: How an actual or potential conflict of interest may be
identified and remedied is often case specific. This rule requires
State APS entities to establish appropriate policies and procedures
that will guide them if or when a conflict of interest situation
arises. State APS entities may seek technical assistance from ACL if
questions occur.
Comment: We received a comment suggesting we base our regulations
on NAPSA or NASW ethics guidelines on conflicts of interest.
Response: We agree that excellent, reputable guidance is already
available through many sources. We encourage State APS entities to seek
technical assistance from ACL.
Comment: We received several comments, including from State APS
entities, that our proposed regulations might adversely affect county-
based systems, particularly smaller counties in these systems. One
commenter noted that county-based systems will incur a higher burden in
preventing and addressing dual relationships.
Response: We recognize that in smaller communities the possibility
for individual and organizational conflict of interest may be more
likely to arise due to the nature of a community's size and structure
and may be more burdensome to address. Strategies to remedy conflicts
of interest may differ in smaller and rural communities from those
strategies used in larger areas. How actual or potential conflicts of
interest may be remedied through appropriate policies and procedures is
often case specific. Factors to consider include whether the individual
in question is a decision maker, whether firewalls or other safeguards
can be erected between organizations and individuals, and what
monitoring protocols are in place for a potentially conflicted
situation. ACL is available to provide technical assistance when such
situations arise. We also note that the extended compliance deadline of
4 years and the availability of corrective action plans to address
specific areas should benefit any State that needs additional time to
come into compliance. This may be particularly helpful in States with
county-based systems.
Comment: We received several comments suggesting that our proposal
at Sec. 1324.404(a) prohibiting APS workers from serving as direct
service providers simultaneously may be unduly burdensome and harmful.
One APS State entity noted it would not be able to comply with the
provision, as APS staff may be the only resource available in their
State. A State entity noted that in small counties, APS workers wear
many hats, including as HCBS case managers. Another State commented
that it is currently in the process of having all APS workers certified
as options counselors. One State APS entity opined that service
provision can and should be fluid during the case, and that completely
separating investigation from service provision could harm the client.
The commenter requested we remove or revise this requirement to allow
States latitude.
Response: Based on commenter feedback, we are removing Sec.
1324.404(a). We thank commenters for their input.
Comment: We received comment asking us to define ``agent'' as used
in proposed Sec. 1324.404(b) and (c).
Response: In response to commenter feedback, we have edited newly
redesignated Sec. 1324.404(a) and (b) to remove reference to APS
agents. We believe our edits alleviate confusion and better align with
the definition of ``conflict of interest'' in Sec. 1324.401.
Comment: One commenter suggested that we clarify proposed Sec.
1324.404(b) by revising it to read ``[e]nsure that employees and agents
administering APS programs do not have a personal financial interest in
an entity to which an APA program may refer clients for services
recommended by the APS program.''
Response: We appreciate and have accepted the commenter's
suggestion. In keeping with the deletion of proposed Sec. 1324.404(a),
we are redesignating proposed Sec. 1324.404(c) as Sec. 1324.404(a) in
the final rule.
Comment: We received a comment suggesting that we define
``immediate family'' in proposed Sec. 1324.404(c) to mean ``same
household.''
Response: We thank the commenter for their suggestion. An immediate
family member with a potential or real conflict of interest may not be
a member of the same household. Similarly, a member of the household,
for example someone who rents a room, may not be a family member but
could also have a potential or conflict of interest. We therefore are
amending proposed Sec. 1324.404(c), now Sec. 1324.404(a) in the final
rule, to clarify. We have also revised Sec. 1324.404(b) to incorporate
an individual's immediate family or household, for consistency with
redesignated Sec. 1324.404(a).
Comment: We received a comment requesting that proposed Sec.
1324.404(c) align with the definition of conflict of interest in Sec.
1324.401.
Response: We thank the commenter for their suggestion. We have made
edits to proposed Sec. 1324.404(b). We are redesignating proposed
Sec. 1324.404(c) as Sec. 1324.404(a) in the final rule.
Comment: We received a significant number of comments from the
disability community on our proposals at Sec. 1324.404(d) suggesting
that APS and AAAs be prohibited from serving as public guardians in
dual relationships. Some also suggested that people at risk of
guardianship be appointed an advocate from the local Center for
Independent Living. One commenter offered that their State APS system
[[Page 39512]]
already prohibited AAAs and APS from serving as guardians or powers of
attorney for the same person. We also received comments from APS
entities, APS programs, and advocacy organizations noting that these
dual relationships, including those involving APS workers serving as
public guardians, are a reality of APS practice. This is particularly
true in rural areas with limited staffing and county-administered
systems. APS systems requested more information and guidance on how to
operationalize our proposal.
Response: We appreciate the realities of APS practice, as well as
the concerns related to the conflicts of interest associated with APS
programs being appointed the guardian for an adult served by the APS
program. We are revising this section to balance these concerns. While
we recognize and are sensitive to the gravity of such situations, we
decline to completely prohibit APS entities and programs from
petitioning for or serving as guardians to adults in all circumstances.
As noted by some commenters, these appointments often occur because no
other alternative is available or qualified.
At the same time, we agree that policies and procedures, including
firewalls and other safeguards, are necessary to protect against
conflicts of interest for APS programs that serve as guardians. The
general requirement in Sec. 1324.404 to establish such policies and
procedures includes establishment of policies and procedures that
address conflicts and appearances of conflict in guardianship
situations. To respond to the serious concerns raised by commenters
about APS involvement in guardianship, we further clarify the
application of this requirement to guardianship., We have revised Sec.
1324.404(d) to describe the circumstances under which petitioning for
or serving as guardian is an unavoidable dual relationship.
Specifically, it is unavoidable only if all less restrictive
alternatives to guardianship have been considered, and either (i) a
Court has instructed the APS program to petition for or serve as
guardian, or (ii) there is no other qualified individual or entity
available to petition for or serve as guardian. We also clarify that
for all dual relationships, the APS program must document the dual
relationship in the case record and describe the mitigation strategies
it will take to address the conflict of interest.
Finally, there are other statutory and regulatory authorities with
which APS systems must comply, including Federal and State laws that
require administration of programs, including APS, in the most
integrated and least restrictive setting appropriate to meet the needs
of individuals with disabilities and that prohibit discrimination on
the basis of disability. These include Section 504 of the
Rehabilitation Act \44\ and the Americans with Disabilities Act.\45\
Compliance with this rule does not address these obligations. The
Department of Health and Human Services' Office for Civil Rights offers
technical assistance on these antidiscrimination requirements for
covered entities, and we will likewise provide ongoing technical
assistance on these anti-discrimination requirements.
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\44\ 29 U.S.C. 796.
\45\ 42 U.S.C. 12101.
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We received comments from Centers for Independent Living noting
that they are available to serve as an advocate for a person at risk of
guardianship. We encourage Centers for Independent Living interested in
serving persons subject to or proposed for guardianship to coordinate
with APS programs to aid such adults who may request such help before a
guardianship petition is filed. Once a guardianship petition is filed,
however, State guardianship law determines how the rights and interests
of the person subject to the guardianship petition will be represented,
including through the appointment of an attorney to defend against the
imposition of guardianship.
Comment: We received comment asking for clarification of what
``appropriate safeguards'' might entail. Another commenter offered that
firewalls and disclosures might serve as appropriate safeguards under
proposed Sec. 1324.404(d).
Response: We thank commenters for their suggestions. We agree that
firewalls and disclosures are among the appropriate safeguards under
proposed Sec. 1324.404(d). ACL will provide technical assistance to
State APS entities as they develop their policies and procedures that
describe safeguards.
Comment: ACL received a comment that our proposal at Sec.
1324.404(e) regarding monitoring and oversight would be expensive and
burdensome to implement. One commenter noted that it may be
particularly challenging for county-administered systems to monitor
dual relationships, where such relationships may occur with more
regularity than in other systems. Other commenters requested
clarification about ACL's expectations around monitoring and oversight.
Another commenter suggested we remove ``robust'' to describe our
monitoring and oversight proposal at proposed Sec. 1324.404(e).
Response: We thank commenters and recognize that monitoring and
oversight might create an increased burden. However, monitoring and
oversight are an essential component of ensuring that APS programs
operate appropriately with respect to conflicts of interest. We defer
to State APS entities' own conflict of interest policies and procedures
about monitoring and will provide technical assistance as requested
related to expectations and examples. We agree, however, that
``robust'' is unnecessary, as by its nature monitoring will be robust.
We amend accordingly and redesignate Sec. 1324.404(e) to Sec.
1324.404(c).
Comment: Several State APS entities commented that they have their
own conflict of interest policies and procedures in place, including
informal guidelines, desk audits, and self-reporting. Another inquired
whether its current system of desk audits would meet the requirements
of our proposed rule.
Response: As mentioned in the response above, we defer to State APS
entities' own conflict of interest policies and procedures and will
provide technical assistance as requested.
Comment: We received a comment suggesting our proposal would be
expensive and burdensome for APS systems to implement. One commenter
suggested that removing a conflict of interest is not always feasible
and suggested proposed 1324.404(f) be amended to ``remedy, and where
practicable, remove.''
Response: We have decided not to finalize Sec. 1324.404(f) because
it was duplicative of introductory language to the section, requiring
the State entity to establish standardized policies and procedures to
avoid both actual and perceived conflicts of interest, including
mechanisms to identify, remove, and remedy them. The final rule accords
State APS entities great flexibility in developing policies and
procedures to address conflicts of interest. This includes the
flexibility to determine how to remedy conflicts of interest when they
occur. There are many third-party resources available to APS systems as
they develop protocols to address conflicts of interest. Technical
assistance is available from ACL.
F. Section 1324.405 Accepting Reports
Section 1324.405(a) requires the State entity to have policies and
procedures for accepting reports of adult maltreatment and self-
neglect. Such policies and procedures require prompt receipt of reports
of alleged
[[Page 39513]]
maltreatment and self-neglect, using multiple methods for receiving
reports 24/7 in ways that are fully accessible (e.g., using
augmentative communication devices or translation services). Receiving
reports 24/7 is paramount to the safety of clients and aligns with the
recommendations of our Consensus guidelines.
APS receives reports from both the general public and individuals
mandated by the State to report suspected adult maltreatment and self-
neglect. Mandated reporting is an essential tool in combating adult
maltreatment and self-neglect. However, most APS programs are not
required to contact mandated reporters with information about the case
after a report is made. Mandated reporters have stated that the absence
of a reporting feedback loop creates a disincentive for reporting. The
most common complaint ACL receives from community providers that work
with APS is that while they may be required under State law to report,
they do not receive information back on the status of their report. In
Sec. 1324.405(b), we proposed to require States to implement a
``feedback loop'' to provide mandated reporters information on the
status of a report in certain circumstances.
We received many comments generally supportive of our proposal at
Sec. 1324.405(a) requiring APS programs to receive reports 24/7.
Several commenters also had clarifying questions, particularly about
whether our proposal required reports to be fielded by a live APS
worker. We address comments below and are finalizing Sec. 1324.405(a)
as proposed.
We received comment on our proposal at S
[…truncated; see source link]Indexed from Federal Register on May 8, 2024.
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.