42 U.S.C. § 3058i — Prevention of elder abuse, neglect, and

Page 5828 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 3058h Subsec. (h)(6)(A). Pub. L. 106–402 substituted ‘‘subtitle C of the Developmental Disabilities Assistance and Bill of Rights Act of 2000’’ for ‘‘part A of the Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. 6001 et seq.)’’. Subsec. (h)(8), (9). Pub. L. 106–501, § 704(2)(B)–(D), added par. (8) and redesignated former par. (8) as (9). 1993—Subsecs. (a)(3)(I), (c)(2)(C), (h)(3)(B). Pub. L. 103–171, § 3(a)(9)(B), substituted ‘‘Assistant Secretary’’ for ‘‘Commissioner’’. Subsec. (h)(4)(A). Pub. L. 103–171, § 3(a)(9)(A), sub- stituted ‘‘Director of the Office of Long-Term Care Om- budsman Programs’’ for ‘‘Associate Commissioner for Ombudsman Programs’’. Subsec. (j)(1). Pub. L. 103–171, § 3(a)(9)(B), substituted ‘‘Assistant Secretary’’ for ‘‘Commissioner’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section inapplicable with respect to fiscal year 1993, see section 4(b) of Pub. L. 103–171, set out as an Effec- tive Date of 1992 Amendment note under section 3001 of this title. Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of Pub. L. 102–375, set out as an Ef- fective Date of 1992 Amendment note under section 3001 of this title. § 3058h. Regulations The Assistant Secretary shall issue and peri- odically update regulations respecting— (1) conflicts of interest by persons described in subparagraphs (A) and (B) of section 3058g(f)(1) of this title; and (2) the relationships described in clauses (i) through (vi) of section 3058g(f)(1)(C) of this title. (Pub. L. 89–73, title VII, § 713, as added Pub. L. 102–375, title VII, § 702, Sept. 30, 1992, 106 Stat. 1282; amended Pub. L. 103–171, § 3(a)(13), Dec. 2, 1993, 107 Stat. 1990; Pub. L. 114–144, § 8(d), Apr. 19, 2016, 130 Stat. 351.) Editorial Notes AMENDMENTS 2016—Par. (1). Pub. L. 114–144, § 8(d)(1), substituted ‘‘subparagraphs (A) and (B) of section 3058g(f)(1)’’ for ‘‘paragraphs (1) and (2) of section 3058g(f)’’. Par. (2). Pub. L. 114–144, § 8(d)(2), substituted ‘‘clauses (i) through (vi) of section 3058g(f)(1)(C)’’ for ‘‘subpara- graphs (A) through (D) of section 3058g(f)(3)’’. 1993—Pub. L. 103–171 substituted ‘‘Assistant Sec- retary’’ for ‘‘Commissioner’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section inapplicable with respect to fiscal year 1993, see section 4(b) of Pub. L. 103–171, set out as an Effec- tive Date of 1992 Amendment note under section 3001 of this title. Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of Pub. L. 102–375, set out as an Ef- fective Date of 1992 Amendment note under section 3001 of this title. SUBPART III—PROGRAMS FOR PREVENTION OF ELDER ABUSE, NEGLECT, AND EXPLOITATION § 3058i. Prevention of elder abuse, neglect, and exploitation (a) Establishment In order to be eligible to receive an allotment under section 3058b of this title from funds ap- propriated under section 3058a of this title and made available to carry out this subpart, a State agency shall, in accordance with this sec- tion, and in consultation with area agencies on aging, develop and enhance programs to address elder abuse, neglect, and exploitation. (b) Use of allotments The State agency shall use an allotment made under subsection (a) to carry out, through the programs described in subsection (a), activities to develop, strengthen, and carry out programs for the prevention, detection, assessment, and treatment of, intervention in, investigation of, and response to elder abuse, neglect, and exploi- tation, including— (1) providing for public education and out- reach to identify and prevent elder abuse, ne- glect, and exploitation; (2) providing for public education and out- reach to promote financial literacy and pre- vent identity theft and financial exploitation of older individuals; (3) ensuring the coordination of services pro- vided by area agencies on aging with services instituted under the State adult protection service program, State and local law enforce- ment systems, and courts of competent juris- diction; (4) promoting the development of informa- tion and data systems, including elder abuse reporting systems, to quantify the extent of elder abuse, neglect, and exploitation in the State; (5) promoting the submission of data on elder abuse, neglect, and exploitation for the appropriate database of the Administration or another database specified by the Assistant Secretary; (6) conducting analyses of State information concerning elder abuse, neglect, and exploi- tation and identifying unmet service, enforce- ment, or intervention needs; (7) conducting training for individuals, in- cluding caregivers described in part E of sub- chapter III, professionals, and paraprofes- sionals, in relevant fields on the identifica- tion, prevention, and treatment of elder abuse, neglect, and exploitation, with particular focus on prevention and enhancement of self- determination and autonomy; (8) providing technical assistance to pro- grams that provide or have the potential to provide services for victims of elder abuse, ne- glect, and exploitation and for family mem- bers of the victims; (9) conducting special and on-going training, for individuals involved in serving victims of elder abuse, neglect, and exploitation, on the topics of self-determination, individual rights, State and Federal requirements concerning confidentiality, and other topics determined by a State agency to be appropriate; (10) promoting the development of an elder abuse, neglect, and exploitation system— (A) that includes a State elder abuse, ne- glect, and exploitation law that includes provisions for immunity, for persons report- ing instances of elder abuse, neglect, and ex- ploitation, from prosecution arising out of such reporting, under any State or local law; Page 5829 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 3058i (B) under which a State agency— (i) on receipt of a report of known or sus- pected instances of elder abuse, neglect, or exploitation, shall promptly initiate an in- vestigation to substantiate the accuracy of the report; and (ii) on a finding of elder abuse, neglect, or exploitation, shall take steps, including appropriate referral, to protect the health and welfare of the abused, neglected, or ex- ploited older individual; (C) that includes, throughout the State, in connection with the enforcement of elder abuse, neglect, and exploitation laws and with the reporting of suspected instances of elder abuse, neglect, and exploitation— (i) such administrative procedures; (ii) such personnel, such as forensic spe- cialists, trained in the special problems of elder abuse, neglect, and exploitation pre- vention and treatment; (iii) such training procedures; (iv) such institutional and other facili- ties (public and private); and (v) such related multidisciplinary pro- grams and services, including programs and arrangements that protect against fi- nancial exploitation, as may be necessary or appropriate to ensure that the State will deal effectively with elder abuse, neglect, and exploitation cases in the State; (D) that preserves the confidentiality of records in order to protect the rights of older individuals; (E) that provides for the cooperation of law enforcement officials, courts of com- petent jurisdiction, and State agencies pro- viding human services with respect to spe- cial problems of elder abuse, neglect, and ex- ploitation; (F) that enables an older individual to par- ticipate in decisions regarding the welfare of the older individual, and makes the least re- strictive alternatives available to an older individual who is abused, neglected, or ex- ploited; and (G) that includes a State clearinghouse for dissemination of information to the general public with respect to— (i) the problems of elder abuse, neglect, and exploitation; (ii) the facilities described in subpara- graph (C)(iv); and (iii) prevention and treatment methods available to combat instances of elder abuse, neglect, and exploitation; (11) examining various types of shelters serv- ing older individuals (in this paragraph re- ferred to as ‘‘safe havens’’), and testing var- ious safe haven models for establishing safe havens (at home or elsewhere), that recognize autonomy and self-determination, and fully protect the due process rights of older individ- uals; (12) supporting multidisciplinary elder jus- tice activities, such as— (A) supporting and studying team ap- proaches for bringing a coordinated multi- disciplinary or interdisciplinary response to elder abuse, neglect, and exploitation, in- cluding a response from individuals in social service, health care, public safety, and legal disciplines; (B) establishing a State coordinating coun- cil, which shall identify the individual State’s needs and provide the Assistant Sec- retary with information and recommenda- tions relating to efforts by the State to com- bat elder abuse, neglect, and exploitation; (C) providing training, technical assist- ance, community outreach and education, and other methods of support to groups car- rying out multidisciplinary efforts at the State (referred to in some States as ‘‘State Working Groups’’); (D) broadening and studying various mod- els for elder fatality and serious injury re- view teams, to make recommendations about their composition, protocols, func- tions, timing, roles, and responsibilities, with a goal of producing models and infor- mation that will allow for replication based on the needs of States and communities (other than the ones in which the review teams were used); (E) developing best practices, for use in long-term care facilities, that reduce the risk of elder abuse for residents, including the risk of resident-to-resident abuse; and (F) supporting and implementing innova- tive practices, programs, and materials in communities to develop partnerships across disciplines for the prevention, investigation, and prosecution of abuse, neglect, and ex- ploitation; and (13) addressing underserved populations of older individuals, such as— (A) older individuals living in rural loca- tions; (B) older individuals in minority popu- lations; or (C) low-income older individuals. (c) Approach In developing and enhancing programs under subsection (a), the State agency shall use a com- prehensive approach, in consultation with area agencies on aging, to identify and assist older individuals who are subject to abuse, neglect, and exploitation, including older individuals who live in State licensed facilities, unlicensed facilities, or domestic or community-based set- tings. (d) Coordination In developing and enhancing programs under subsection (a), the State agency shall coordinate the programs with other State and local pro- grams and services for the protection of vulner- able adults, particularly vulnerable older indi- viduals, including programs and services such as— (1) area agency on aging programs; (2) adult protective service programs; (3) the State Long-Term Care Ombudsman program established in subpart II of this part; (4) protection and advocacy programs; (5) facility and long-term care provider li- censure and certification programs; (6) medicaid fraud and abuse services, in- cluding services provided by a State medicaid Page 5830 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 3058i fraud control unit, as defined in section 1396b(q) of this title; (7) victim assistance programs; and (8) consumer protection and State and local law enforcement programs, as well as other State and local programs that identify and as- sist vulnerable older individuals, and services provided by agencies and courts of competent jurisdiction. (e) Requirements In developing and enhancing programs under subsection (a), the State agency shall— (1) not permit involuntary or coerced par- ticipation in such programs by alleged vic- tims, abusers, or members of their households; (2) require that all information gathered in the course of receiving a report described in subsection (b)(10)(B)(i), and making a referral described in subsection (b)(10)(B)(ii), shall re- main confidential except— (A) if all parties to such complaint or re- port consent in writing to the release of such information; (B) if the release of such information is to a law enforcement agency, public protective service agency, licensing or certification agency, ombudsman program, or protection or advocacy system; or (C) upon court order; and (3) make all reasonable efforts to resolve any conflicts with other public agencies with re- spect to confidentiality of the information de- scribed in paragraph (2) by entering into memoranda of understanding that narrowly limit disclosure of information, consistent with the requirement described in paragraph (2). (f) Designation The State agency may designate a State enti- ty to carry out the programs and activities de- scribed in this subpart. (g) Study and report (1) Study The Secretary, in consultation with the De- partment of the Treasury and the Attorney General of the United States, State attorneys general, and tribal and local prosecutors, shall conduct a study of the nature and extent of fi- nancial exploitation of older individuals. The purpose of this study would be to define and describe the scope of the problem of financial exploitation of the elderly and to provide an estimate of the number and type of financial transactions considered to constitute financial exploitation faced by older individuals. The study shall also examine the adequacy of cur- rent Federal and State legal protections to prevent such exploitation. (2) Report Not later than 18 months after November 13, 2000, the Secretary shall submit to Congress a report, which shall include— (A) the results of the study conducted under this subsection; and (B) recommendations for future actions to combat the financial exploitation of older individuals. (h) Accountability measures The Assistant Secretary shall develop ac- countability measures to ensure the effective- ness of the activities carried out under this sec- tion. (i) Evaluating programs The Assistant Secretary shall evaluate the ac- tivities carried out under this section, using funds made available under section 3017(h) of this title. (j) Compliance with applicable laws In order to receive funds made available to carry out this section, an entity shall comply with all applicable laws, regulations, and guide- lines. (Pub. L. 89–73, title VII, § 721, as added Pub. L. 102–375, title VII, § 703(b), Sept. 30, 1992, 106 Stat. 1282; amended Pub. L. 106–501, title VII, § 705, title VIII, § 801(e)(3), Nov. 13, 2000, 114 Stat. 2290, 2293; Pub. L. 109–365, title VII, § 702, Oct. 17, 2006, 120 Stat. 2591; Pub. L. 114–144, § 8(e), Apr. 19, 2016, 130 Stat. 351; Pub. L. 116–131, title VI, § 603, title VII, § 701(12), Mar. 25, 2020, 134 Stat. 269, 272.) Editorial Notes AMENDMENTS 2020—Subsec. (b)(12)(C). Pub. L. 116–131, § 603(1), in- serted ‘‘community outreach and education,’’ after ‘‘technical assistance,’’. Subsec. (b)(12)(F). Pub. L. 116–131, § 603(2), substituted ‘‘implementing’’ for ‘‘studying’’ and inserted ‘‘, programs, and materials’’ after ‘‘practices’’. Subsec. (i). Pub. L. 116–131, § 701(12), substituted ‘‘3017(h) of this title’’ for ‘‘3017(g) of this title’’. 2016—Subsec. (b). Pub. L. 114–144, § 8(e)(1)(A), struck out ‘‘(including financial exploitation)’’ after ‘‘and ex- ploitation’’ in introductory provisions. Subsec. (b)(5) to (10). Pub. L. 114–144, § 8(e)(1)(B), (C), added par. (5) and redesignated former pars. (5) to (9) as (6) to (10), respectively. Former par. (10) redesignated (11). Subsec. (b)(10)(C)(ii). Pub. L. 114–144, § 8(e)(1)(D)(i), in- serted ‘‘, such as forensic specialists,’’ after ‘‘such per- sonnel’’. Subsec. (b)(10)(C)(v). Pub. L. 114–144, § 8(e)(1)(D)(ii), in- serted before comma at end ‘‘, including programs and arrangements that protect against financial exploi- tation’’. Subsec. (b)(11), (12). Pub. L. 114–144, § 8(e)(1)(B), redes- ignated pars. (10) and (11) as (11) and (12), respectively. Former par. (12) redesignated (13). Subsec. (b)(12)(F). Pub. L. 114–144, § 8(e)(1)(E), added subpar. (F). Subsec. (b)(13). Pub. L. 114–144, § 8(e)(1)(B), redesig- nated par. (12) as (13). Subsec. (e)(2). Pub. L. 114–144, § 8(e)(2), substituted ‘‘subsection (b)(10)(B)(i)’’ for ‘‘subsection (b)(9)(B)(i)’’ and ‘‘subsection (b)(10)(B)(ii)’’ for ‘‘subsection (b)(9)(B)(ii)’’ in introductory provisions. 2006—Subsec. (a). Pub. L. 109–365, § 702(1), substituted ‘‘programs to address’’ for ‘‘programs for the preven- tion of’’. Subsec. (b). Pub. L. 109–365, § 702(2)(A), substituted ‘‘programs for the prevention, detection, assessment, and treatment of, intervention in, investigation of, and response to elder abuse, neglect, and exploitation (in- cluding financial exploitation), including—’’ for ‘‘pro- grams for the prevention and treatment of elder abuse, neglect, and exploitation (including financial exploi- tation), including—’’ in introductory provisions. Subsec. (b)(2) to (9). Pub. L. 109–365, § 702(2)(B), (C), added par. (2) and redesignated former pars. (2) to (8) as (3) to (9), respectively. Page 5831 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 3058aa Subsec. (b)(10) to (12). Pub. L. 109–365, § 702(2)(D)–(F), added pars. (10) to (12). Subsec. (e)(2). Pub. L. 109–365, § 702(3), substituted ‘‘subsection (b)(9)(B)(i)’’ for ‘‘subsection (b)(8)(B)(i)’’ and ‘‘subsection (b)(9)(B)(ii)’’ for ‘‘subsection (b)(8)(B)(ii)’’. Subsecs. (h) to (j). Pub. L. 109–365, § 702(4), added sub- secs. (h) to (j). 2000—Subsec. (a). Pub. L. 106–501, § 801(e)(3), sub- stituted ‘‘section 3058a of this title and made available to carry out this subpart’’ for ‘‘section 3058a(b) of this title’’. Subsec. (b). Pub. L. 106–501, § 705(1)(A), in introduc- tory provisions, inserted ‘‘(including financial exploi- tation)’’ after ‘‘exploitation’’. Subsec. (b)(2). Pub. L. 106–501, § 705(1)(B), inserted ‘‘, State and local law enforcement systems, and courts of competent jurisdiction’’ after ‘‘service program’’. Subsec. (b)(5). Pub. L. 106–501, § 705(1)(C), inserted ‘‘in- cluding caregivers described in part E of subchapter III,’’ after ‘‘individuals,’’. Subsec. (d)(8). Pub. L. 106–501, § 705(2), inserted ‘‘State and local’’ before ‘‘law enforcement programs’’ and ‘‘, and services provided by agencies and courts of com- petent jurisdiction’’ before period at end. Subsec. (g). Pub. L. 106–501, § 705(3), added subsec. (g). Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of Pub. L. 102–375, set out as an Ef- fective Date of 1992 Amendment note under section 3001 of this title. DECLARATION OF PURPOSE Pub. L. 102–375, title VII, § 703(a), Sept. 30, 1992, 106 Stat. 1282, provided that: ‘‘The purpose of this section [enacting this subpart] is to assist States in the design, development, and coordination of comprehensive serv- ices of the State and local levels to prevent, treat, and remedy elder abuse, neglect, and exploitation.’’ SUBPART IV—STATE LEGAL ASSISTANCE DEVELOPMENT PROGRAM § 3058j. State legal assistance development A State agency shall provide the services of an individual who shall be known as a State legal assistance developer, and the services of other personnel, sufficient to ensure— (1) State leadership in securing and main- taining the legal rights of older individuals; (2) State capacity for coordinating the provi- sion of legal assistance; (3) State capacity to provide technical as- sistance, training, and other supportive func- tions to area agencies on aging, legal assist- ance providers, ombudsmen, and other per- sons, as appropriate; (4) State capacity to promote financial man- agement services to older individuals at risk of conservatorship; (5) State capacity to assist older individuals in understanding their rights, exercising choices, benefiting from services and opportu- nities authorized by law, and maintaining the rights of older individuals at risk of guardian- ship; and (6) State capacity to improve the quality and quantity of legal services provided to older individuals. (Pub. L. 89–73, title VII, § 731, as added Pub. L. 106–501, title VII, § 706, Nov. 13, 2000, 114 Stat. 2291.) Editorial Notes PRIOR PROVISIONS A prior section 3058j, Pub. L. 89–73, title VII, § 731, as added Pub. L. 102–375, title VII, § 704, Sept. 30, 1992, 106 Stat. 1285, related to State elder rights and legal assist- ance development, prior to repeal by Pub. L. 106–501, title VII, § 706, Nov. 13, 2000, 114 Stat. 2291. SUBPART V—OUTREACH, COUNSELING, AND ASSISTANCE PROGRAM § 3058k. Repealed. Pub. L. 106–501, title VII, § 706, Nov. 13, 2000, 114 Stat. 2291 Section, Pub. L. 89–73, title VII, § 741, as added Pub. L. 102–375, title VII, § 705(b), Sept. 30, 1992, 106 Stat. 1287; amended Pub. L. 103–171, § 3(a)(13), Dec. 2, 1993, 107 Stat. 1990, related to State outreach, counseling, and assist- ance program for insurance and public benefits. PART B—NATIVE AMERICAN ORGANIZATION AND ELDER JUSTICE PROVISIONS § 3058aa. Native American program (a) Establishment The Assistant Secretary, acting through the Director of the Office for American Indian, Alas- kan Native, and Native Hawaiian Aging, shall establish and carry out a program for— (1) assisting eligible entities in prioritizing, on a continuing basis, the needs of the service population of the entities relating to elder rights; (2) making grants to eligible entities to carry out vulnerable elder rights protection activities that the entities determine to be priorities; and (3) enabling the eligible entities to support multidisciplinary elder justice activities, such as— (A) establishing a coordinating council, which shall identify the needs of an indi- vidual Indian tribe or other Native Amer- ican group and provide the Assistant Sec- retary with information and recommenda- tions relating to efforts by the Indian tribe or the governing entity of the Native Amer- ican group to combat elder abuse, neglect, and exploitation; (B) providing training, technical assist- ance, and other methods of support to groups carrying out multidisciplinary ef- forts for an Indian tribe or other Native American group; and (C) broadening and studying various mod- els for elder fatality and serious injury re- view teams, to make recommendations about their composition, protocols, func- tions, timing, roles, and responsibilities, with a goal of producing models and infor- mation that will allow for replication based on the needs of Indian tribes and other Na- tive American groups (other than the ones in which the review teams were used). (b) Application In order to be eligible to receive assistance under this section, an entity shall submit an ap- plication to the Assistant Secretary, at such time, in such manner, and containing such in- formation as the Assistant Secretary may re- quire.