S. 3598 (112th): Robert Matava Exploitation Protection for Elder Adults Act of 2012

112th Congress, 2011–2013. Text as of Sep 20, 2012 (Introduced).

Status & Summary | PDF | Source: GPO

II

112th CONGRESS

2d Session

S. 3598

IN THE SENATE OF THE UNITED STATES

September 20, 2012

introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To protect elder adults from exploitation and financial crime, to prevent elder adult abuse and financial exploitation, and to promote safety for elder adults.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Robert Matava Exploitation Protection for Elder Adults Act of 2012.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Definitions.

TITLE I—Federal prosecution of abuse and exploitation directed at elders

Sec. 101. Enhanced penalty for telemarketing and email-marketing fraud directed at elders.

Sec. 102. Data collection.

TITLE II—Coordination of civil protections and criminal prosecution as it relates to elder justice

Sec. 201. Model States laws and practices.

Sec. 202. Civil protection and criminal prosecution.

TITLE III—Interstate initiatives

Sec. 301. Interstate agreements and compacts.

Sec. 302. Recommendations on interstate communication.

TITLE IV—GAO report

Sec. 401. GAO report to assess cost of elder abuse on Federal programs.

2.

Definitions

(a)

In general

In this Act—

(1)

the terms abuse, elder, elder justice, exploitation, and neglect have the meanings given those terms in section 2011 of the Social Security Act (42 U.S.C. 1397j);

(2)

the term adult protective services

(A)

means such services provided to adults as specified in Federal, State, or local law pertaining to adult protective services; and

(B)

includes services such as—

(i)

receiving reports of adult abuse, neglect, or exploitation;

(ii)

investigating the reports described in clause (i);

(iii)

case planning, monitoring, evaluation, and other case work and services; and

(iv)

providing, arranging for, or facilitating the provision of medical, social service, economic, legal, housing, law enforcement, or other protective emergency, or support services;

(3)

the term caregiver

(A)

means an individual who has the responsibility for the care of an elder either voluntarily, by contract, by receipt of payment for care, or as a result of the operation of law; and

(B)

shall include a family member or other individual who provides (on behalf of such individual or of a public or private agency, organization, or institution) compensated or uncompensated care to an elder who needs supportive services in any setting;

(4)

the term elder abuse includes neglect and exploitation;

(5)

the term fiduciary

(A)

means an individual or entity with the legal responsibility—

(i)

to make decisions on behalf of and for the benefit of another individual; and

(ii)

to act in good faith and with fairness; and

(B)

shall include—

(i)

a trustee;

(ii)

a guardian;

(iii)

a conservator;

(iv)

an executor;

(v)

an agent under a financial power of attorney or health care power of attorney; or

(vi)

a representative payee; and

(6)

the term State means any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands of the United States, Guam, American Samoa, and the Commonwealth of the Mariana Islands.

I

Federal prosecution of abuse and exploitation directed at elders

101.

Enhanced penalty for telemarketing and email-marketing fraud directed at elders

(a)

In general

Chapter 113A of title 18, United States Code, is amended—

(1)

in the chapter heading by inserting and email marketing after Telemarketing;

(2)

by striking section 2325 and inserting the following:

2325.

Definition

In this chapter, the term telemarketing or email marketing

(1)

means a plan, program, promotion, or campaign that is conducted to induce—

(A)

purchases of goods or services;

(B)

participation in a contest or sweepstakes;

(C)

a charitable contribution, donation, or gift of money or any other thing of value;

(D)

investment for financial profit;

(E)

participation in a business opportunity;

(F)

commitment to a loan; or

(G)

participation in a fraudulent medical study, research study, or pilot study,

by use of 1 or more interstate telephone calls, emails, text messages, or electronic instant messages initiated either by a person who is conducting the plan, program, promotion, or campaign or by a prospective purchaser or contest or sweepstakes participant or charitable contributor, donor, or investor; and
(2)

does not include the solicitation of sales through the posting, publication, or mailing of a catalog that—

(A)

contains a written description or illustration of the goods or services offered for sale;

(B)

includes the business address of the seller;

(C)

includes multiple pages of written material or illustration; and

(D)

has been issued not less frequently than once a year,

if the person making the solicitation does not solicit customers by telephone, email, text message, or electronic instant message, but only receives interstate telephone calls, emails, text messages, or electronic instant messages initiated by customers in response to the catalog and in response to those interstate telephone calls, emails, text messages, or electronic instant messages does not conduct further solicitation;

; and

(3)

in section 2326, in the matter preceding paragraph (1)—

(A)

by striking or 1344 and inserting 1344, or 1347 or section 1128B of the Social Security Act (42 U.S.C. 1320a–7b); and

(B)

by inserting or email marketing after telemarketing.

(b)

Technical and conforming amendment

The table of chapters at the beginning of part I of title 18, United States Code, is amended by striking the item relating to chapter 113A and inserting the following:

113A.Telemarketing and email marketing fraud2325

.

102.

Data collection

The Attorney General, in consultation with the Secretary of Health and Human Services, shall, on an annual basis—

(1)

collect from Federal, State, and local law enforcement agencies and prosecutor offices statistical data relating to the incidence of elder abuse, including data relating to—

(A)

the number of elder abuse cases referred to law enforcement agencies, adult protective services, or any other State entity tasked with addressing elder abuse;

(B)

the number and types of cases filed in Federal, State, and local courts; and

(C)

the outcomes of the cases described in subparagraphs (A) and (B) and the reasons for such outcomes;

(2)

identify common data points among Federal, State, and local law enforcement agencies and prosecutor offices that would allow for the collection of uniform national data;

(3)

publish a summary of the data collected under paragraphs (1) and (2);

(4)

identify—

(A)

the types of data relevant to elder abuse that should be collected; and

(B)

what entity is most capable of collecting the data described in subparagraph (A); and

(5)

develop recommendations for collecting additional data relating to elder abuse.

II

Coordination of civil protections and criminal prosecution as it relates to elder justice

201.

Model States laws and practices

The Attorney General, in consultation with the Secretary of Health and Human Services and the Elder Justice Coordinating Council (established under section 2021 of the Social Security Act (42 U.S.C. 1397k)), shall—

(1)

create, compile, evaluate, and disseminate materials and information, and provide the necessary training and technical assistance, to assist States and units of local government in—

(A)

investigating, prosecuting, pursuing, preventing, understanding, and mitigating the impact of—

(i)

physical, sexual, and psychological abuse of elders;

(ii)

exploitation of elders, including financial abuse and scams targeting elders; and

(iii)

neglect of elders; and

(B)

assessing, addressing, and mitigating the physical and psychological trauma to victims of elder abuse;

(2)

collect data and perform an evidence-based evaluation to—

(A)

assure the efficacy of measures and methods intended to prevent, detect, respond to, or redress elder abuse; and

(B)

evaluate the number of victims of elder abuse in each State and the extent to which the needs of the victims are served by crime victim services, programs, and sources of funding;

(3)

publish a report, on an annual basis, that describes the results of the evaluations conducted under paragraphs (1) and (2), and submit the report to each Federal agency, each State, and the Committee on the Judiciary and the Special Committee on Aging of the Senate and the Committee on the Judiciary of the House of Representatives;

(4)

evaluate training models to determine best practices, create replication guides, create training materials, if necessary, for law enforcement officers, prosecutors, judges, emergency responders, individuals working in victim services, adult protective services, social services, and public safety, medical personnel, mental health personnel, financial services personnel, and any other individuals whose work may bring them in contact with elder abuse regarding how to—

(A)

conduct investigations in elder abuse cases;

(B)

address evidentiary issues and other legal issues; and

(C)

appropriately assess, respond to, and interact with victims and witnesses in elder abuse cases, including in administrative, civil, and criminal judicial proceedings;

(5)

conduct, and update on a regular basis, a study of laws and practices relating to elder abuse, neglect, and exploitation, including—

(A)

a comprehensive description of State laws and practices;

(B)

an analysis of the effectiveness of State laws and practices, including—

(i)

whether the State laws are enforced; and

(ii)

if enforced—

(I)

how the State laws are enforced; and

(II)

how enforcement of the State laws has effected elder abuse within the State;

(C)

a review of State definitions of the terms abuse, neglect, and exploitation in the context of elder abuse cases;

(D)

a review of State laws that mandate reporting of elder abuse, including adult protective services laws, laws that require the reporting of nursing home deaths or suspicious deaths of elders to coroners or medical examiners, and other pertinent reporting laws, that analyzes—

(i)

the impact and efficacy of the State laws;

(ii)

whether the State laws are enforced;

(iii)

the levels of compliance with the State laws; and

(iv)

the response to, and actions taken as a result of, reports made under the State laws;

(E)

a review of State evidentiary, procedural, sentencing, choice of remedies, and data retention issues relating to elder abuse, neglect, and exploitation;

(F)

a review of State fiduciary laws, including law relating to guardianship, conservatorship, and power of attorney;

(G)

a review of State laws that permit or encourage employees of depository institutions (as defined in section 3(c)(1) of the Federal Deposit Insurance Act (12 U.S.C. 1813(c)(1)) and State credit unions (as defined in section 101 of the Federal Credit Union Act (12 U.S.C. 1752)) to prevent and report suspected elder abuse, neglect, and exploitation;

(H)

a review of State laws used in civil court proceedings to prevent and address elder abuse;

(I)

a review of State laws relating to fraud and related activities in connection with mail, telemarketing, the Internet, or health care;

(J)

a review of State laws that create programs, offices, entities, or other programs that address or respond to elder abuse; and

(K)

an analysis of any other State laws relating to elder abuse; and

(6)

carry out such other duties as the Attorney General determines necessary in connection with enhancing the understanding, prevention, detection, and response to elder abuse.

202.

Civil protection and criminal prosecution

(a)

Establishment

(1)

In general

The Attorney General, in cooperation with the Secretary of Health and Human Services and the Legal Services Corporation, shall establish a demonstration program to provide grants on an annual basis to not more than 6 civil legal services entities that could prevent or provide remedies for abuse, neglect, and exploitation and collaborate with other organizations seeking to prevent, detect, and respond to elder abuse.

(2)

Eligibility

Grants awarded under paragraph (1) shall be provided to entities that demonstrate a commitment to representation of elder abuse victims or potential victims and participating in multidisciplinary and interagency efforts to combat elder abuse.

(b)

Requirements

To receive a grant under this section an entity shall—

(1)

be an experienced nonprofit legal services provider; and

(2)

propose or demonstrate—

(A)

collaboration with State or local aging, social, and human services and law enforcement agencies;

(B)

partnership with professionals with knowledge and experience relating to the criminal justice system; and

(C)

methodology for timely evidenced-based evaluation.

(c)

Report

Not later than 6 months after the completion of the demonstration program under this section, the Secretary shall submit to Congress a report on such program, that includes the results of the program and recommendations for such legislation and administrative action as the Attorney and Secretary determines to be appropriate.

(d)

Authorization of appropriations

There are authorized to be appropriated to the Attorney General such sums as are necessary for fiscal years 2013 through 2017 to carry out this section.

III

Interstate initiatives

301.

Interstate agreements and compacts

The consent of Congress is given to any 2 or more States (acting through State agencies with jurisdiction over adult protective services) to enter into agreements or compacts for cooperative effort and mutual assistance—

(1)

in promoting the safety and well-being of elders; and

(2)

in enforcing their respective laws and policies to promote such safety and well-being.

302.

Recommendations on interstate communication

The Executive Director of the State Justice Institute, in consultation with State or local aging, social, and human services and law enforcement agencies and nationally recognized nonprofit associations with expertise in data sharing among criminal justice agencies and familiarity with the issues raised in elder exploitation cases, shall submit to Congress legislative proposals relating to the facilitation of interstate agreements and compacts.

IV

GAO report

401.

GAO report to assess cost of elder abuse on Federal programs

Not later than 1 year after the date of enactment of this Act, the Comptroller General of the United States, in consultation with the Secretary of Health and Human Services, the Department of Health and Human Services Office of the Inspector General, the Attorney General, and the Chairman of the Federal Trade Commission, shall publish a report reviewing any findings on the financial cost to the Federal Government from the abuse and exploitation of elders.