[Senate Report 114-430]
[From the U.S. Government Publishing Office]
Calendar No. 635
114th Congress } { Report
SENATE
2d Session } { 114-430
======================================================================
ELDER ABUSE PREVENTION AND PROSECUTION ACT OF 2016
_______
December 20, 2016.--Ordered to be printed
Filed, under authority of the order of the Senate of December 10
(legislative day, December 9), 2016
_______
Mr. Grassley, from the Committee on the Judiciary,
submitted the following
R E P O R T
[To accompany S. 3270]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to which was referred the
bill (S. 3270), a bill to prevent elder abuse and exploitation
and improve the justice system's response to victims in elder
abuse and exploitation cases, having considered the same,
reports favorably thereon, with an amendment in the nature of a
substitute, and recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Background and Purpose of the Elder Abuse Prevention and
Prosecution Act of 2016..........................................2
II. History of the Bill and Committee Consideration..................6
III. Section-by-Section Summary of the Bill...........................7
IV. Congressional Budget Office Cost Estimate.......................10
V. Regulatory Impact Evaluation....................................12
VI. Conclusion......................................................12
VII. Changes to Existing Law Made by the Bill, as Reported...........13
I. Background and Purpose of the Elder Abuse Prevention and Prosecution
Act of 2016
A. BACKGROUND AND THE NEED FOR LEGISLATION
For a nation that prides itself on institutionalized care
and financial support for its older population--with the
enactment of the Medicare and Social Security programs, for
example--the United States continues to fall short in efforts
to end the abuse and exploitation of our nation's elderly
population. Congress identified elder abuse as a serious
problem decades ago,\1\ but eliminating the problem is
difficult, research suggests.
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\1\See Subcomm. on Health and Long-Term Care, U.S. House Select
Comm. on Aging, Elder Abuse: A National Disgrace, Comm. Pub. No. 99-502
(1985).
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Elder abuse encompasses physical abuse, neglect, financial
exploitation, sexual abuse, and emotional or psychological
abuse. It can be perpetrated over the phone by a scammer
located thousands of miles away (even overseas). It also can be
perpetrated at home by a caretaker or family member who is
entrusted with a victim's assets or life savings. In all of its
various forms, elder abuse can negatively impact victims'
health and well-being, increasing the likelihood of their
experiencing injuries and developing chronic health
conditions.\2\ These costs also burden our nation's health care
and justice systems at every level of government. Perhaps most
troubling, elder abuse robs older Americans of their dignity
and quality of life: victims reportedly have a 300 percent
higher mortality rate than their peers who were not abused.\3\
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\2\Id.
\3\Id. at 2.
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At this time, we lack a complete picture of the problem's
full impact, not only because data collection is limited, but
also because elder abuse in all its forms is believed to be
significantly underreported. Some have argued that elder abuse
directly impacts at least 10 percent (roughly 5 million) of
older Americans each year.\4\ Many older Americans are
reluctant to report abuse or exploitation due to feelings of
embarrassment, a refusal to acknowledge that they were
victimized, or, as is often the case, a reliance on the
perpetrator as their caretaker. Some estimates indicate that
only one in 14 cases of abuse are reported to adult protective
services or law enforcement agencies.\5\ In the case of elder
financial exploitation, underreporting is likely to be even
more significant: only one in 44 cases is brought to the
attention of authorities, victim advocates maintain.\6\ Many
victims likely are not receiving adequate help and their
abusers are escaping justice.
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\4\Elder Justice Coordinating Council, U.S. Dept. of Health and
Human Services, Report of the Secretary Detailing the Activities of the
Elder Justice Coordinating Council for 2012-2014, 1 (June 2015)
available at http://www.aoa.acl.gov/AoA_Programs/Elder_Rights/EJCC/
docs/EJCC-2012-2014-report-to-congress.pdf.
\5\Id. at 1.
\6\Elder Justice Initiative, U.S. Dept. of Justice, Financial
Exploitation Frequently Asked Questions, available at https://
www.justice.gov/elderjustice/support/faq#is-elder-abuse-underreported
(last visited December 15, 2016).
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Compounding these issues, America's elderly population is
steadily growing. The U.S. Census Bureau projects that by 2025,
more than 62 million Americans will have reached the age of 65
or older, an increase of 78 percent from 2001.\7\ By the same
time, more than 7.4 million Americans will be age 85 or older,
an increase of nearly 68 percent from 2001.\8\ As the
population of older Americans increases, it is likely that--
absent strong, effective, and targeted intervention--the scope
and prevalence of elder abuse also will increase.
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\7\National Institute of Justice, ``Elder Abuse,'' available at
http://www.nij.gov/topics/crime/elder-abuse/pages/welcome.aspx.
\8\Id.
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Of all the forms of elder abuse, financial exploitation
probably is the most widespread, costing seniors in the United
States an estimated $2.9 billion annually.\9\ Another recent
study suggests that the cost may, in fact, be considerably
higher than previously thought, up to $36 billion annually.\10\
Due to its scope and persistently low reporting rates, elder
financial exploitation has been dubbed the crime of the 21st
century.\11\
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\9\MetLife Mature Market Institute et al., The MetLife Study of
Elder Financial Abuse: Crimes of Occasion, Desperation, and Predation
against America's Elders, 2 (June 2011) available at https://
www.metlife.com/assets/cao/mmi/publications/studies/2011/mmi-elder-
financial-abuse.pdf.
\10\True Link, The True Link Report on Elder Financial Abuse 2015
(January 2015), available at http://bit.ly/28JhDBS.
\11\MetLife Mature Market Institute et al., The MetLife Study of
Elder Financial Abuse: Crimes of Occasion, Desperation, and Predation
against America's Elders 5 (June 2011) available at https://
www.metlife.com/assets/cao/mmi/publications/studies/2011/mmi-elder-
financial-abuse.pdf.
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Elder financial exploitation encompasses a range of
deceitful and criminal acts, including, but not limited to,
mail-, telephone-, and Internet-based scams, fraudulent
manipulation of wills and other testamentary instruments, the
use (or even liquidation) of property or possessions without
permission, theft of government benefits, and abuse of powers
under a guardianship, conservatorship, or power of attorney. In
some cases, it may result in the loss of a lifetime of savings
or a family's home.
To date, multiple Federal agencies have taken steps to
combat elder abuse and exploitation, yet gaps remain in our
understanding of this problem:
Lack of Training. According to a report by the Government
Accountability Office (GAO), ``effectively investigating and
prosecuting elder financial exploitation requires special
skills and knowledge, which [adult protective services
agencies'] workers, law enforcement officers, and district
attorneys sometimes lack.''\12\ Law enforcement officials at
the local level reported receiving little or no training on
elder financial exploitation and indicated such training is
necessary to build expertise, GAO noted.\13\ GAO also indicated
that some prosecutors may hesitate to pursue cases of suspected
elder financial exploitation ``because of competing priorities
and limited resources, a continuing belief that elder financial
exploitation is primarily a civil issue, or a view of older
adult victims as unreliable witnesses.''\14\ According to the
Department of Justice (DOJ), law enforcement personnel who
encounter elder financial exploitation may misclassify it as a
civil matter and not respond, if they lack expertise or
training in this area.\15\
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\12\U.S. Gov't Accountability Office, GAO-13-110, Elder Justice:
National Strategy Needed to Effectively Combat Elder Financial
Exploitation, 23 (November 2012) available at http://gao.gov/assets/
660/650074.pdf.
\13\Id.
\14\Id.
\15\Elder Justice Initiative, U.S. Dept. of Justice, Society's
Response to Financial Exploitation, available at https://
www.justice.gov/elderjustice/research/societys-response-to-financial-
exploitation.html (last visited September 19, 2016).
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Lack of Necessary Data. Prosecutors, law enforcement, and
other practitioners at every level of government continue to be
hamstrung by a scarcity of data. According to the Federal Elder
Justice Coordinating Council, there is a ``significant lack of
evidence and data about effective methods and practices to
prevent elder abuse,'' despite a growing body of evidence about
the scope of such abuse and its negative impacts.\16\ The
National Center on Elder Abuse maintains that knowledge about
elder abuse and exploitation lags as much as two decades behind
the fields of child abuse and domestic violence.\17\ Agencies
collect some pertinent data (e.g., in some communities, elder
abuse incidents are routinely reported to adult protective
services agencies), but sizeable gaps remain.\18\ If the United
States is to effectively fight back against the ``silent
epidemic'' of elder abuse and exploitation, it must arm itself
with the tools to do so by closing these knowledge gaps.
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\16\EJCC 2014 Report, supra note 2 at 2.
\17\National Center on Elder Abuse, Statistics/Data, available at
https://ncea.acl.gov/whatwedo/research/statistics.html#01.
\18\The Justice Department, for example, currently ``does not
collect data on the prevalence of elder financial exploitation
nationwide.'' U.S. Dept. of Justice response to Chairman Grassley (June
21, 2016) available at https://www.judiciary.senate.gov/imo/media/doc/
2016-06-21%20DOJ%20to%20CEG%20-%20Elder%20Justice%20Initiative.pdf.
Also see ``Elder Financial Exploitation Letter to Department of
Justice'' (May 9, 2016) available at http://1.usa.gov/28JV5PF.
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Lack of Coordination among Federal Agencies and with
States. Effectively combating elder abuse requires coordinated
efforts. The complex nature of financial crimes against elders,
in particular, necessitates a multidisciplinary approach--
drawing upon the resources and expertise of multiple agencies
and entities at the State and Federal levels. The Elder Justice
Act of 2009 (EJA)\19\ called for the formation of an Elder
Justice Coordinating Council (EJCC), the purpose of which is to
make recommendations for the coordination of activities between
Federal, State, local, and private agencies and entities
relating to elder abuse and exploitation. (Members of the
Council include representatives of DOJ, the Department of
Health and Human Services (HHS), and other agencies.) Despite
this ongoing effort at collaboration, however, GAO has found
that the United States lacks a clearly articulated national
strategy to prevent and respond to elder financial
exploitation.\20\
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\19\See 42 U.S.C. Sec. Sec. 1320b-25, 1395i-3a, and 1397j-1397m-5.
\20\U.S. Gov't Accountability Office, GAO-11-208, Elder Justice:
Stronger Federal Leadership Could Enhance National Response to Elder
Abuse, 38 (March 2011) available at http://www.gao.gov/new.items/
d11208.pdf.
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Coordination efforts also are hampered by breakdowns in
coordination and communication. As noted by GAO, some State and
local law enforcement officials reported feeling uncertain
about how to seek Federal support to respond to interstate and
international cases of financial exploitation. (Some reported a
lack of contacts at the Federal level for purposes of elder
abuse case referrals, while others indicated that the lines of
communication between local and Federal agencies tend to be
informal, based simply on whom local law enforcement officers
know in a Federal agency.\21\) Others voiced concerns to GAO
that Federal agencies do not pursue enough of the cases that
are referred to them.\22\
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\21\GAO-13-110, supra note 12 at 29.
\22\Id.
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In sum, as the nation's elderly population grows, our
families and communities need appropriate tools and resources
to prevent further instances of elder abuse and exploitation.
Federal resources must be more effectively focused, to better
prevent and respond to these incidents.
B. THE ELDER ABUSE PREVENTION AND PROSECUTION ACT OF 2016
The Elder Abuse Prevention and Prosecution Act of 2016
(``EAPPA'') would help combat elder abuse and financial
exploitation in the United States. The legislation promotes the
investigation and prosecution of perpetrators who prey upon
seniors, enhanced data collection, and robust elder abuse
prevention programs.
The legislation calls for the designation of at least one
Assistant United States Attorney (``AUSA'') to serve as Elder
Justice Coordinator in each Federal judicial district. Each
such Coordinator would not only prosecute elder abuse cases but
also would serve as a point-person on these cases in each
judicial district. This individual is encouraged to engage in
public outreach to help raise awareness about abuse and
exploitation, ensure the collection of accurate data in elder
abuse cases, and serve as an accessible subject matter expert
or resource.
This legislation also calls for training for Federal Bureau
of Investigation (``FBI'') agents on the investigation of elder
abuse cases. DOJ would have to establish an elder abuse
resource group to facilitate information sharing among Federal
prosecutors and, more broadly, to support the prosecution of
elder abuse cases. The purpose of such requirements is to
ensure that each district's Elder Justice Coordinator has the
necessary investigative and institutional support.
The bill also calls for the influential Attorney General's
Advisory Committee (``AGAC''), which is comprised of leading
U.S. Attorneys from across the country, to establish an elder
abuse working group for the purpose of providing advice to the
Attorney General on DOJ's elder abuse policies and strategies.
Under this legislation, the Attorney General must designate
an Elder Justice Coordinator for the entire Justice Department
within sixty days of the bill's enactment. Among other
responsibilities, the Coordinator would be charged with
enhancing DOJ's understanding, prevention, detection of, and
response to, elder abuse. By establishing individual Elder
Justice Coordinators in each district that have the support of
the FBI, EOUSA, the AGAC, and the DOJ Elder Justice
Coordinator, the legislation thus ensures that elder abuse
investigations and prosecutions will be accorded high priority.
In addition, this bill requires the Chairman of the Federal
Trade Commission (``FTC'') to designate an Elder Justice
Coordinator within the FTC's Bureau of Consumer Protection.
This individual will be responsible for coordinating and
supporting the enforcement and consumer education efforts and
policy activities of the FTC on matters related to elder abuse
and exploitation. The FTC's Elder Justice Coordinator also will
serve as a central point of contact for victims, State and
local government personnel, and others on these matters.
The bill also beefs up criminal penalties for those
convicted of financially exploiting seniors through e-mail
marketing. Mandatory forfeiture and restitution provisions also
are included in the legislation. These enhanced penalties
reflect the Committee's concerns about the harms posed by elder
financial exploitation.
Because successful prevention and prosecution of elder
abuse also require the collection of more complete and accurate
data on elder abuse offenses, the bill tasks the Attorney
General, in consultation with State and local agencies, with
developing best practices for data collection. The Attorney
General also must furnish technical assistance to State and
local partners on the proper implementation of those best
practices. Data collection also is promoted at the Federal
level, as the bill directs HHS to provide DOJ with its annual
statistical data regarding adult protective services
investigations and findings on elder abuse cases.
This legislation also calls for training and technical
assistance for State investigative, prosecutorial, and
prevention personnel. Specifically, the Attorney General is
charged with creating, compiling, and disseminating materials
to State and local agencies regarding the investigation,
prosecution, and prevention of elder abuse. The bill also
authorizes and encourages States to enter into interstate
agreements and compacts to collaborate and share resources and
expertise in the fight against elder abuse and exploitation.
II. History of the Bill and Committee Consideration
A. HEARING
On June 29, 2016, the Senate Judiciary Committee held a
hearing entitled ``Protecting Older Americans from Financial
Exploitation.'' The hearing examined the growing threat of
elder financial exploitation and the adequacy of the Federal
government's response. The hearing consisted of two panels of
witnesses.
Witnesses on the first panel included Mr. John A. Horn,
Acting United States Attorney, Northern District of Georgia,
U.S. Department of Justice and Ms. Lois C. Greisman, Associate
Director, Division of Marketing Practices, Bureau of Consumer
Protection, U.S. Federal Trade Commission. Witnesses on the
second panel included Mr. Joseph Marquart, Member, AARP Iowa
Executive Council and AARP Fraud Watch Network Volunteer; Ms.
Nancy Shaffer, State Ombudsman, Connecticut State Department on
Aging; and Ms. Donna K. Harvey, Director, Iowa Department on
Aging.
Federal government witnesses on the first panel testified
to the recent efforts by DOJ and the FTC to combat elder
financial exploitation. DOJ's witness described the
Department's recent efforts to break up international schemes
or scams that target and defraud seniors and summarized the
work of DOJ's Elder Justice Initiative as well as its Elder
Justice Task Forces. The Committee also heard testimony about
the FTC's elder abuse enforcement and consumer education
efforts, including FTC's prosecution of MoneyGram, whose money
transfer service was used in multiple scams that targeted older
Americans. Their testimony shed more light on the scope of the
problem of elder abuse and exploitation in the United States
and the need for an improved Federal response.
Witnesses on the second panel testified to their direct
experiences with elder abuse and exploitation in Iowa and
Connecticut. They described examples of exploitative
guardianships, so-called ``sweetheart'' scams, and lottery
scams. They emphasized the widespread nature of elder abuse and
financial exploitation and the need to improve public
awareness, prevention, prosecution, and victim services. Their
testimony highlights the need for improved training, including
of judges and law enforcement. Their testimony also reveals
that the abuse of guardianships, conservatorships, and powers
of attorney--often by those related to the victim--is a
problem.
B. INTRODUCTION OF THE BILL
Chairman Grassley (R-IA) introduced the Elder Abuse
Prevention and Prosecution Act of 2016, S. 3270, on July 14,
2016. Original cosponsors included Senators Richard Blumenthal
(D-CT), John Cornyn (R-TX), Amy Klobuchar (D-MN), Marco Rubio
(R-FL), and Michael Bennet (D-CO). The bill was referred to the
Committee on the Judiciary. Ranking Member Leahy (D-VT) and
Senators Feinstein (D-CA), Durbin (D-IL), Tillis (R-NC), and
Ayotte (R-NH) later joined as co-sponsors of the legislation.
C. COMMITTEE CONSIDERATION
The Senate Judiciary Committee considered S. 3270 on
September 15, 2016. Chairman Grassley offered an amendment in
the nature of a substitute. The amendment was accepted by voice
vote. The Committee then voted to report the Elder Abuse
Prevention and Prosecution Act of 2016, with an amendment in
the nature of a substitute, favorably to the Senate by voice
vote.
III. Section-by-Section Summary of the Bill
Section 1. Short title: table of contents
Section 1 cites the short title of the Act as the ``Elder
Abuse Prevention and Prosecution Act.'' It also provides the
table of contents for the Act.
Sec. 2. Definitions
Section 2 defines certain terms used in the legislation
(including ``abuse,'' ``adult protective services,'' ``elder,''
``elder justice,'' ``exploitation,'' ``law enforcement,'' and
``neglect'') by reference to section 2011 of the Social
Security Act (42 U.S.C. 1397j). It also gives additional
definitions of terms used in the bill, including ``elder
abuse'' and ``State.''
Title I--Supporting Federal Cases Involving Elder Justice
Sec. 101. Supporting Federal cases involving elder justice
Section 101 requires the designation of at least one
Assistant United States Attorney in every judicial district to
prosecute (or assist with) elder abuse cases, conduct public
outreach, and ensure the collection of the statistical data on
elder abuse that's required under section 202 of this Act. This
section tasks the Attorney General, in consultation with the
FBI, with implementing a comprehensive training program for FBI
agents on the investigation and prosecution of elder abuse
(including specialized communication strategies and relevant
forensic training).
Under this section, DOJ, through its Executive Office for
U.S. Attorneys (``EOUSA''), must operate an elder abuse
resource group that facilitates information sharing among
prosecutors. Further, this section directs the Attorney
General, in consultation with the EOUSA Director, to establish
an advisory working group or subcommittee of U.S. Attorneys for
the purpose of providing advice on DOJ's elder abuse policies,
within 60 days of the bill's enactment.
This section also calls for the designation, by the
Attorney General (within 60 days after this bill's enactment),
of an Elder Justice Coordinator within DOJ and specifies the
Coordinator's duties. It also calls for the chairman of the
Federal Trade Commission (``FTC'') to designate (within 60 days
after this bill's enactment), an Elder Justice Coordinator
within the FTC's Bureau of Consumer Protection, and it
specifies the Coordinator's duties. It also requires that each
of the FTC and DOJ annually report to Congress on Federal
enforcement actions in which an elder abuse victim was
identified. Finally, this section clarifies that no additional
appropriations are authorized for the implementation of this
legislation.
Title II--Improved Data Collection and Federal Coordination
Sec. 201. Establishment of best practices for local, state, and Federal
data collection
Section 201 requires the Attorney General, in consultation
with Federal, State, and local law enforcement agencies, to
establish best practices for the voluntary collection of
government data focused on elder abuse. Such information must
be posted online within a year after the legislation's
enactment. This section also calls for provision of technical
assistance to State, local, and tribal governments that choose
to implement the Department's best practices.
Sec. 202. Effective interagency coordination and Federal data
collection
Section 202 directs the Attorney General to annually
collect statistical data on elder abuse enforcement actions
initiated by Federal law enforcement agencies, other agencies
as appropriate, and Federal prosecutors. It also specifies the
type of data to be collected in such cases. The Secretary of
HHS is required to provide statistical data to the Attorney
General on elder abuse cases investigated by adult protective
services agencies on an annual basis. This section calls for a
summary of such data to be posted on DOJ's website, along with
additional recommendations for improved data collection by
government agencies at every level of government. This section
further ensures that the reported data may not reveal the
identities of specific individuals.
Title III--Enhanced Victim Assistance to Elder Abuse Survivors
Sec. 301. Sense of the Senate
Section 301 expresses the sense of the Senate concerning
the problems posed by elder abuse and exploitation as well as
the importance of supporting the victims of this crime and
developing a multi-pronged approach to elder abuse and
exploitation.
Sec. 302. Report
Section 302 calls for DOJ's Office for Victims of Crime to
report to Congress, within one year after the collection of
statistical data in Sec. 202 begins and annually thereafter, on
the nature, extent, and amount of victims' compensation and
victims' assistance received by victims of crime who are aged
60 years or older, under the Victims of Crime Act of 1984 (42
U.S.C. 10601 et seq.).
Title IV--Robert Matava Elder Abuse Prosecution Act of 2016
Sec. 401. Short title
Section 401 cites the short title as the ``Robert Matava
Elder Abuse Prosecution Act of 2016.''
Sec. 402. Enhanced penalty for telemarketing and email marketing fraud
directed at elders
Section 402 amends the Federal criminal code to add new
definition of ``telemarketing or email marketing'' and prohibit
such conduct under the telemarketing fraud statute. Further,
this section makes it mandatory for a Federal court, in
sentencing criminals under 18 U.S.C. 2326, to order the
forfeiture of property, equipment, software, or other
technology that was used (or intended to be used) in
perpetrating a financial exploitation scheme against
individuals over the age of 55.
Sec. 403. Training and technical assistance for States
Section 403 calls for the Attorney General, in consultation
with the Secretary of Health and Human Services, and in
coordination with the Elder Justice Coordinating Council, to
provide training and technical assistance to States and local
governments on the investigation, prosecution, prevention, and
mitigation of various forms of elder abuse and neglect.
Sec. 404. Interstate initiatives
Section 404 encourages the formation of interstate compacts
or cooperative agreements that will promote elder safety and
improve the enforcement of elder safety laws. This section also
provides congressional consent for such compacts or agreements.
Finally, this section directs the State Justice Institute (in
consultation with State and local adult protective services,
aging, social and human services and law enforcement agencies
as well as certain nonprofits) as well as the HHS Secretary) to
submit proposed legislation to Congress that will facilitate
such interstate agreements or compacts.
Title IV--Miscellaneous
Sec. 501. Court-Appointed Guardianship Oversight Activities Under the
Elder Justice Act of 2009
Section 501 amends title XX (Block Grants to States for
Social Services and Elder Justice) of the Social Security Act
to clarify that grants may be awarded by the Secretary of
Health and Human Services to the highest courts of States to
improve adult guardianship and conservatorship proceedings.
Specifically, such grants could be used to conduct
demonstration programs that: (1) assess adult guardianship and
conservatorship proceedings, including the appointment and the
monitoring of the performance of court-appointed guardians and
conservators; and (2) implement changes deemed necessary as a
result of the assessments (e.g., requiring background checks
for all potential guardians and conservators and establishing
systems that enable electronic filing and review of specified
materials). It also requires any court receiving such a Federal
grant to collaborate with the State's unit on aging and adult
protective services agency.
Sec. 502. Elder justice recommendations
Section 502 tasks GAO with furnishing Congress with
recommendations on elder abuse-related programs and initiatives
in the Federal criminal justice system. It also calls for GAO
to report to Congress on the extent to which older adults of
the United States are being exploited in international criminal
enterprises as well as the extent to which their exploitation
has resulted in these older adults' incarceration in other
countries. GAO has a deadline of 18 months after enactment of
the legislation to meet this reporting requirement and come up
with the required recommendations.
Sec. 503. Outreach to State and local law enforcement agencies
Section 503 directs the Attorney General to report to the
Judiciary Committees in each chamber of Congress on the Justice
Department's efforts to conduct outreach to State and local law
enforcement agencies on appropriate ways to collaborate with
the Federal government on the investigation and prosecution of
interstate and international elder financial exploitation
cases.
Sec. 504. Model power of attorney legislation
Section 504 directs the Attorney General to publish model
power of attorney legislation for the purpose of preventing
elder abuse.
Sec. 505. Best practices and model legislation for guardianship
proceedings
Section 505 obligates the Attorney General to publish best
practices for improving guardianship proceedings and model
legislation relating to guardianship proceedings for the
purpose of preventing elder abuse.
IV. Congressional Budget Office Cost Estimate
The Committee sets forth, with respect to the bill, S.3270,
the following estimate and comparison prepared by the Director
of the Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 18, 2016.
Hon. Chuck Grassley,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 3270, the Elder
Abuse Prevention and Prosecution Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Keith Hall.
Enclosure.
S. 3270--Elder Abuse Prevention Act of 2016
Summary: CBO estimates that, assuming appropriation of the
necessary amounts, implementing S. 3270 would cost $21 million
over the 2017-2021 period for programs in the Department of
Justice (DOJ) and the Department of Health and Human Services
(HHS) to combat abuse of the elderly.
Enacting the bill could affect revenues and associated
direct spending; therefore, pay-as-you-go procedures apply.
However, we estimate that any such effects would be
insignificant in any year and over the 2017-2026 period.
CBO estimates that enacting S. 3270 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2027.
S. 3270 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 3270 is shown in the following table.
The costs of this legislation fall within budget functions 500
(education, training, employment, and social services) and 750
(administration of justice).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------------
2017 2018 2019 2020 2021 2017-2021
----------------------------------------------------------------------------------------------------------------
INCREASES IN SPENDING SUBJECT TO APPROPRIATION
DOJ Programs:
Estimated Authorization Level............................ 3 3 3 3 3 15
Estimated Outlays........................................ 3 3 3 3 3 15
HHS Programs:
Estimated Authorization Level............................ 6 0 0 0 0 6
Estimated Outlays........................................ * 2 2 1 * 6
--------------------------------------------------
Total Increases:
Estimated Authorization Level........................ 9 3 3 3 3 21
Estimated Outlays.................................... 3 5 5 4 3 21
----------------------------------------------------------------------------------------------------------------
Notes: DOJ = Department of Justice; HHS = Department of Health and Human Services;
*Less than $500,000; components may not sum to totals because of rounding.
Basis of estimate: CBO assumes that the bill will be
enacted near the end of calendar year 2016, that the necessary
funds will be provided for each year, and that outlays will
follow the historical rate of spending for similar activities.
Department of Justice
S. 3270 would direct DOJ to undertake numerous activities
to prevent crimes against the elderly and to improve the
treatment of elderly victims, including the following:
Provide training and technical assistance to
state and local governments to assist them in
investigating, prosecuting, and preventing crimes
against the elderly and treating the victims of such
crimes;
Collect data from federal agencies on crimes
against the elderly;
Provide regular training to agents of the
Federal Bureau of Investigation on the investigation of
crimes against the elderly; and
Prepare reports on issues relating to crimes
against the elderly.
Based on an analysis of information from DOJ about the
costs to carry out those additional tasks, CBO estimates that
it would cost the department about $3 million annually to
implement S. 3270, assuming appropriation of the necessary
funds.
Department of Health and Human Services
The bill also would authorize appropriations for grants to
assess the effectiveness and fairness of legal proceedings that
result in court-appointed guardianships for elderly people.
Those grants, which would be for demonstrations, would be in
addition to other activities supporting elder rights conducted
by HHS. Based on the cost of other demonstration projects to
support elder rights, CBO estimates that implementing the new
provisions would cost HHS about $6 million, assuming
appropriation of the necessary funds.
Pay-as-you-go considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending and
revenues. S. 3270 would amend federal criminal law to make any
assets found in connection with telemarketing fraud against
elderly persons subject to seizure by the federal government,
upon an individual's prosecution and conviction for such fraud.
Proceeds from the sale of such assets are recorded as revenues,
deposited into the Assets Forfeiture Fund, and later spent
without further appropriation action. Because of the small
number of relevant assets likely to be seized, CBO estimates
that any additional revenues and associated direct spending
would not be significant in any year and over the 2017-2026
period.
Increase in long-term direct spending and deficits: CBO
estimates that enacting S. 3270 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2027.
Intergovernmental and private-sector impact: S. 3270
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Estimate prepared by: Federal Costs: Mark Grabowicz and
Robert Reese (DOJ), Christi Hawley Anthony (HHS); Impact on
State, Local, and Tribal Governments: Rachel Austin; Impact on
the Private Sector: Paige Piper/Bach.
Estimate approved by: H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
V. Regulatory Impact Evaluation
In compliance with rule XXVI of the Standing Rules of the
Senate, the Committee finds that no significant regulatory
impact will result from the enactment of S. 3270.
VI. Conclusion
The Elder Abuse Prevention and Prosecution Act of 2016, S.
3270, increases penalties for perpetrators of elder abuse
crimes--including mandatory forfeiture--to deter future
offences. The bill calls for increased training of Federal
investigators and prosecutors and calls for the designation of
at least one Federal prosecutor in each judicial district to
handle cases of elder abuse and exploitation. The bill also
ensures that each of the Federal Trade Commission and the
Department of Justice will have their own Elder Justice
Coordinator. Finally, the bill includes various requirements to
promote greater information sharing among agencies at all
levels of government, for the purpose of promoting a more
coordinated response to elder financial exploitation. Such
measures are designed to enhance the nation's ability to combat
elder abuse and financial exploitation.
VIII. Changes to Existing Law made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 3270, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
UNITED STATES CODE
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART I--CRIMES
CHAPTER 113A--TELEMARKETING AND EMAIL MARKETING FRAUD
Sec. 2325. Definition
[In this chapter, ``telemarketing''--
[(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; or
[(C) a charitable contribution, donation, or
gift of money or any other thing of value,
by use of 1 or more interstate telephone calls 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, or donor;
but
[(2) does not include the solicitation of sales
through the 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 but only receives calls initiated by
customers in response to the catalog and during
those calls takes orders without further
solicitation.]
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 through the
posting, publication, or mailing of a catalog or
brochure that--
(A) contains a written description or
illustration of the goods, services, or other
opportunities being offered;
(B) includes the business address of the
solicitor;
(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 written materials,
whether in hard copy or digital format, and in
response to those interstate telephone calls,
emails, text messages, or electronic instant
messages does not conduct further solicitation.
Sec. 2326. Enhanced penalties
A person who is convicted of an offense under section 1028,
1029, 1341, 1342, 1343, [or 1344]1344, or 1347 or section 1128B
of the Social Security Act (42 U.S.C. 1320a-7b), or a
conspiracy to commit such an offense, in connection with the
conduct of telemarketing or email marketing--
(1) shall be imprisoned for a term of up to 5 years
in addition to any term of imprisonment imposed under
any of those sections, respectively; and
(2) in the case of an offense under any of those
sections that--
(A) victimized ten or more persons over the
age of 55; or
(B) targeted persons over the age of 55,
shall be imprisoned for a term of up to 10
years in addition to any term of imprisonment
imposed under any of those sections,
respectively.
* * * * * * *
Sec. 2328. Mandatory forfeiture
(a) In General.--The court, in imposing sentence on a
person who is convicted of any offense for which an enhanced
penalty is provided under section 2326, shall order that the
defendant forfeit to the United States--
(1) any property, real or personal, constituting or
traceable to gross proceeds obtained from such offense;
and
(2) any equipment, software, or other technology used
or intended to be used to commit or to facilitate the
commission of such offense.
(b) Procedures.--The procedures set forth in section 413 of
the Controlled Substances Act (21 U.S.C. 853), other than
subsection (d) of that section, and in Rule 32.2 of the Federal
Rules of Criminal Procedure, shall apply to all stages of a
criminal forfeiture proceeding under this section.
TITLE 42--THE PUBLIC HEALTH AND WELFARE
CHAPTER 7--SOCIAL SECURITY
Subchapter XX--Block Grants to States for Social Services and Elder
Justice
Division B--Elder Justice
PART II--PROGRAMS TO PROMOTE ELDER JUSTICE
* * * * * * *
Sec. 1397m-1. Adult protective services functions and grant programs
* * * * * * *
(c) State demonstration programs.--
(1) Establishment.--The Secretary shall award grants
to States (and, in the case of demonstration programs
described in paragraph (2)(E), to the highest courts of
States) for the purposes of conducting demonstration
programs in accordance with paragraph (2).
(2) Demonstration programs.--Funds made available
pursuant to this subsection may be used by States and
local units of government (and the highest courts of
States, in the case of demonstration programs described
in subparagraph (E)) to conduct demonstration programs
that test--
(A) training modules developed for the
purpose of detecting or preventing elder abuse;
(B) methods to detect or prevent financial
exploitation of elders;
(C) methods to detect elder abuse;
(D) whether training on elder abuse forensics
enhances the detection of elder abuse by
employees of the State or local unit of
government; [or]
(E) subject to paragraph (3), programs to
assess the fairness, effectiveness, timeliness,
safety, integrity, and accessibility of adult
guardianship and conservatorship proceedings,
including the appointment and the monitoring of
the performance of court-appointed guardians
and conservators, and to implement changes
deemed necessary as a result of the assessments
such as mandating background checks for all
potential guardians and conservators, and
implementing systems to enable the annual
accountings and other required conservatorship
and guardianship filings to be completed,
filed, and reviewed electronically in order to
simplify the filing process for conservators
and guardians and better enable courts to
identify discrepancies and detect fraud and the
exploitation of protected persons; or
(F) other matters relating to the detection
or prevention of elder abuse.
(3) Requirements for court-appointed guardianship
oversight demonstration programs.--
(A) Award of grants.--In awarding grants to
the highest courts of States for demonstration
programs described in paragraph (2)(E), the
Secretary shall consider the recommendations of
the Attorney General and the State Justice
Institute, as established by section 203 of the
State Justice Institute Act of 1984 (42 U.S.C.
10702).
(B) Collaboration.--The highest court of a
State awarded a grant to conduct a
demonstration program described in paragraph
(2)(E) shall collaborate with the State Unit on
Aging for the State and the Adult Protective
Services agency for the State in conducting the
demonstration program.
(4) Application.--To be eligible to receive a grant
under this subsection, a State (and, in the case of
demonstration programs described in paragraph (2)(E),
the highest court of a State) shall submit an
application to the Secretary at such time, in such
manner, and containing such information as the
Secretary may require.
(5) State reports.--Each State (or, in the case of
demonstration programs described in paragraph (2)(E),
the highest court of a State) that receives funds under
this subsection shall submit to the Secretary a report
at such time, in such manner, and containing such
information as the Secretary may require on the results
of the demonstration program conducted by the State
(or, in the case of demonstration programs described in
paragraph (2)(E), the highest court of a State) using
funds made available under this subsection.
(6) Authorization of appropriations.--There are
authorized to be appropriated to carry out this
subsection, $25,000,000 for each of fiscal years 2011
through 2014.
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