42 U.S.C. § 1397j — Definitions

Page 4435 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1397j Editorial Notes CODIFICATION Pub. L. 111–148, title X, § 10323(b), Mar. 23, 2010, 124 Stat. 957, which directed amendment of title XX of act Aug. 14, 1935, by adding this section at the end, was exe- cuted by adding this section at the end of subtitle A of title XX of that Act, which is this division, to reflect the probable intent of Congress. § 1397i. Additional funding for aging and dis- ability services programs (a) Appropriation In addition to amounts otherwise available, there is appropriated for fiscal year 2021, out of any money in the Treasury not otherwise appro- priated, $276,000,000, to remain available until expended, to carry out the programs described in division B of this subchapter. (b) Use of funds Of the amounts made available by subsection (a)— (1) $88,000,000 shall be made available to carry out the programs described in division B of this subchapter in fiscal year 2021, of which not less than an amount equal to $100,0000,000 minus the amount previously provided in fis- cal year 2021 to carry out section 1397m–1(b) of this title shall be made available to carry out such section; and (2) $188,000,000 shall be made available to carry out the programs described in division B of this subchapter in fiscal year 2022, of which not less than $100,000,000 shall be for activities described in section 1397m–1(b) of this title. (Aug. 14, 1935, ch. 531, title XX, § 2010, as added Pub. L. 117–2, title IX, § 9301, Mar. 11, 2021, 135 Stat. 126.) Division B—Elder Justice § 1397j. Definitions In this division: (1) Abuse The term ‘‘abuse’’ means the knowing inflic- tion of physical or psychological harm or the knowing deprivation of goods or services that are necessary to meet essential needs or to avoid physical or psychological harm. (2) Adult protective services The term ‘‘adult protective services’’ means such services provided to adults as the Sec- retary may specify and includes services such as— (A) receiving reports of adult abuse, ne- glect, 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, eco- nomic, legal, housing, law enforcement, or other protective, emergency, or support services. (3) Caregiver The term ‘‘caregiver’’ means an individual who has the responsibility for the care of an elder, either voluntarily, by contract, by re- ceipt of payment for care, or as a result of the operation of law, and means a family member or other individual who provides (on behalf of such individual or of a public or private agen- cy, organization, or institution) compensated or uncompensated care to an elder who needs supportive services in any setting. (4) Direct care The term ‘‘direct care’’ means care by an employee or contractor who provides assist- ance or long-term care services to a recipient. (5) Elder The term ‘‘elder’’ means an individual age 60 or older. (6) Elder justice The term ‘‘elder justice’’ means— (A) from a societal perspective, efforts to— (i) prevent, detect, treat, intervene in, and prosecute elder abuse, neglect, and ex- ploitation; and (ii) protect elders with diminished capac- ity while maximizing their autonomy; and (B) from an individual perspective, the rec- ognition of an elder’s rights, including the right to be free of abuse, neglect, and exploi- tation. (7) Eligible entity The term ‘‘eligible entity’’ means a State or local government agency, Indian tribe or trib- al organization, or any other public or private entity that is engaged in and has expertise in issues relating to elder justice or in a field necessary to promote elder justice efforts. (8) Exploitation The term ‘‘exploitation’’ means the fraudu- lent or otherwise illegal, unauthorized, or im- proper act or process of an individual, includ- ing a caregiver or fiduciary, that uses the re- sources of an elder for monetary or personal benefit, profit, or gain, or that results in de- priving an elder of rightful access to, or use of, benefits, resources, belongings, or assets. (9) Fiduciary The term ‘‘fiduciary’’— (A) means a person or entity with the legal responsibility— (i) to make decisions on behalf of and for the benefit of another person; and (ii) to act in good faith and with fairness; and (B) includes a trustee, a guardian, a con- servator, an executor, an agent under a fi- nancial power of attorney or health care power of attorney, or a representative payee. (10) Grant The term ‘‘grant’’ includes a contract, coop- erative agreement, or other mechanism for providing financial assistance. (11) Guardianship The term ‘‘guardianship’’ means— (A) the process by which a State court de- termines that an adult individual lacks ca- pacity to make decisions about self-care or property, and appoints another individual or Page 4436 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1397j–1 entity known as a guardian, as a conser- vator, or by a similar term, as a surrogate decisionmaker; (B) the manner in which the court-ap- pointed surrogate decisionmaker carries out duties to the individual and the court; or (C) the manner in which the court exer- cises oversight of the surrogate decision- maker. (12) Indian tribe (A) In general The term ‘‘Indian tribe’’ has the meaning given such term in section 5304 of title 25. (B) Inclusion of Pueblo and Rancheria The term ‘‘Indian tribe’’ includes any Pueblo or Rancheria. (13) Law enforcement The term ‘‘law enforcement’’ means the full range of potential responders to elder abuse, neglect, and exploitation including— (A) police, sheriffs, detectives, public safe- ty officers, and corrections personnel; (B) prosecutors; (C) medical examiners; (D) investigators; and (E) coroners. (14) Long-term care (A) In general The term ‘‘long-term care’’ means sup- portive and health services specified by the Secretary for individuals who need assist- ance because the individuals have a loss of capacity for self-care due to illness, dis- ability, or vulnerability. (B) Loss of capacity for self-care For purposes of subparagraph (A), the term ‘‘loss of capacity for self-care’’ means an in- ability to engage in 1 or more activities of daily living, including eating, dressing, bathing, management of one’s financial af- fairs, and other activities the Secretary de- termines appropriate. (15) Long-term care facility The term ‘‘long-term care facility’’ means a residential care provider that arranges for, or directly provides, long-term care. (16) Neglect The term ‘‘neglect’’ means— (A) the failure of a caregiver or fiduciary to provide the goods or services that are nec- essary to maintain the health or safety of an elder; or (B) self-neglect. (17) Nursing facility (A) In general The term ‘‘nursing facility’’ has the mean- ing given such term under section 1396r(a) of this title. (B) Inclusion of skilled nursing facility The term ‘‘nursing facility’’ includes a skilled nursing facility (as defined in section 1395i–3(a) of this title). (18) Self-neglect The term ‘‘self-neglect’’ means an adult’s in- ability, due to physical or mental impairment or diminished capacity, to perform essential self-care tasks including— (A) obtaining essential food, clothing, shelter, and medical care; (B) obtaining goods and services necessary to maintain physical health, mental health, or general safety; or (C) managing one’s own financial affairs. (19) Serious bodily injury (A) In general The term ‘‘serious bodily injury’’ means an injury— (i) involving extreme physical pain; (ii) involving substantial risk of death; (iii) involving protracted loss or impair- ment of the function of a bodily member, organ, or mental faculty; or (iv) requiring medical intervention such as surgery, hospitalization, or physical re- habilitation. (B) Criminal sexual abuse Serious bodily injury shall be considered to have occurred if the conduct causing the injury is conduct described in section 2241 (relating to aggravated sexual abuse) or 2242 (relating to sexual abuse) of title 18 or any similar offense under State law. (20) Social The term ‘‘social’’, when used with respect to a service, includes adult protective services. (21) State legal assistance developer The term ‘‘State legal assistance developer’’ means an individual described in section 3058j of this title. (22) State Long-Term Care Ombudsman The term ‘‘State Long-Term Care Ombuds- man’’ means the State Long-Term Care Om- budsman described in section 3058g(a)(2) of this title. (Aug. 14, 1935, ch. 531, title XX, § 2011, as added Pub. L. 111–148, title VI, § 6703(a)(1)(C), Mar. 23, 2010, 124 Stat. 782.) § 1397j–1. General provisions (a) Protection of privacy In pursuing activities under this division, the Secretary shall ensure the protection of indi- vidual health privacy consistent with the regu- lations promulgated under section 264(c) of the Health Insurance Portability and Account- ability Act of 1996 and applicable State and local privacy regulations. (b) Rule of construction Nothing in this division shall be construed to interfere with or abridge an elder’s right to practice his or her religion through reliance on prayer alone for healing when this choice— (1) is contemporaneously expressed, either orally or in writing, with respect to a specific illness or injury which the elder has at the time of the decision by an elder who is com- petent at the time of the decision; (2) is previously set forth in a living will, health care proxy, or other advance directive document that is validly executed and applied under State law; or