CEJC A*Team
Addressing Systemic Barriers to Elder Justice
CEJC’s A*Team creates an opportunity for elder abuse multidisciplinary teams (MDT) to raise systemic issues that prevent information sharing, capacity evaluations, or other impediments to case resolution.
The A*Team is a group of policy experts convened to examine the systemic issues that plague elder abuse MDTs’ work. This solution-oriented body is made up of thought leaders with expertise in elder abuse law, prosecution, investigations, and victim services. The A*Team will review obstacles encountered by local elder abuse multidisciplinary teams and recommend policy and programmatic changes to improve the system statewide. The A*Team project is funded by a three-year grant from the US DOJ’s Office for Victims of Crime.
The A*Team is a group of policy experts convened to examine the systemic issues that plague elder abuse MDTs’ work. This solution-oriented body is made up of thought leaders with expertise in elder abuse law, prosecution, investigations, and victim services. The A*Team will review obstacles encountered by local elder abuse multidisciplinary teams and recommend policy and programmatic changes to improve the system statewide. The A*Team project is funded by a three-year grant from the US DOJ’s Office for Victims of Crime.
Members of the A*Team were selected for their experience and understanding of the laws and practices involved in the investigation, prosecution and prevention of elder abuse. Members include:
- Melissa Brown, JD, Elder Law Clinic Director, McGeorge School of Law
- Debbie Deem, FBI Victim Advocate, Retired, and FAST Team Coordinator
- Eric Dowdy, Policy Director for the Alzheimer’s Association in California
- Paul Greenwood, Elder Abuse Unit Prosecutor, San Diego District Attorney’s Office (Retired)
- Andrea Higgens, Elder Abuse Investigator, San Mateo District Attorney’s Office
- Angela Rosato, Coordinator, Riverside County Elder Abuse Forensic Center
A*Team Update - January 2023
Addressing Systemic Barriers to Elder Justice
CEJC’s A*Team Tackles MDT/Bank Interactions During Investigations
The Problem
Multidisciplinary teams report one of the most common obstacles to financial exploitation investigations is the lack of bank compliance with requests for customer records that are needed as evidence. The A*Team is currently working to resolve the problem of banks’ reluctance to comply with account record requests. Internal bank protocol and regulatory restrictions make it difficult for them to stop transactions when an account holder insists the payment is legitimate or to communicate with the bank receiving the funds. Understanding the factors contributing to these hurdles are key to finding a solution.
The Legal Framework
Banks are authorized to comply with investigators’ requests by multiple privacy exemptions in state and federal law and under different regulatory authorities, which appear to confuse, rather than clarify, the responsibility.
Additionally, banks are authorized to hold suspicious transactions for up to 15 days under Welfare and Institutions Code 15630.2 (j)(1). The law allows a court order to extend the bank hold at investigators’ request. Welfare and Institutions Code 15630.2 (j)(4) exempts a mandated reporter of suspected financial abuse from civil liability for delayed transactions done in good faith.
Many banks cite liability concerns when declining investigators’ requests, despite the state and federal statutory exemptions. Banks also require reports of suspicious or known fraudulent activity to be approved by management or legal counsel before reports can be filed, in conflict with the individual employee’s mandated reporting duty and without regard for their own liability for failure to report.
Who We’re Meeting With
The A*Team is meeting with representatives from Multidisciplinary Teams, the California Bankers Association, individual bank representatives, the National Association of Protective Service Agencies, California Senate Banking Committee staff, and with Department of Financial Protection and Innovation representatives to understand the underlying issues.
Possible Solutions
1. Solutions under discussion include:
2. Several efforts are underway to address bank liability in elder financial exploitation cases:
CEJC’s A*Team Tackles MDT/Bank Interactions During Investigations
The Problem
Multidisciplinary teams report one of the most common obstacles to financial exploitation investigations is the lack of bank compliance with requests for customer records that are needed as evidence. The A*Team is currently working to resolve the problem of banks’ reluctance to comply with account record requests. Internal bank protocol and regulatory restrictions make it difficult for them to stop transactions when an account holder insists the payment is legitimate or to communicate with the bank receiving the funds. Understanding the factors contributing to these hurdles are key to finding a solution.
The Legal Framework
Banks are authorized to comply with investigators’ requests by multiple privacy exemptions in state and federal law and under different regulatory authorities, which appear to confuse, rather than clarify, the responsibility.
- State-chartered banks are regulated by both state and federal law.
- California law exempts banks from liability for sharing customer records during law enforcement and Adult Protective Services (APS) investigations. Exemptions are clearly detailed in the California Financial Privacy Act (Fin. Code Sec. 4050 and 4060) and Government Code Sec. 7470 and 7480.
- Multi-state banks are primarily under federal jurisdiction. 15 USC Sec. 680 (2) is the Gramm-Leach-Bliley provision exempting all banks from liability for releasing customer account records during law enforcement investigations.
- California Welfare and Institutions Code (WIC) 15630.1 states that all bank officers and employees in the state are mandated reporters of elder abuse.
- Mandated reporters are liable for failure to report suspected financial elder abuse under WIC 15630.1 (f) and face penalties of up to $5,000 to be paid by the financial institution that employs the individual who failed to report. Should we add something about the fact that this amount is too small to make a difference.
- Under WIC 15610.30, financial institutions may be held liable for elder “financial abuse” if the institution assisted in a transaction that the bank officer “knew or should have known that (the transaction) was likely to be harmful to the elder or dependent adult.
Additionally, banks are authorized to hold suspicious transactions for up to 15 days under Welfare and Institutions Code 15630.2 (j)(1). The law allows a court order to extend the bank hold at investigators’ request. Welfare and Institutions Code 15630.2 (j)(4) exempts a mandated reporter of suspected financial abuse from civil liability for delayed transactions done in good faith.
Many banks cite liability concerns when declining investigators’ requests, despite the state and federal statutory exemptions. Banks also require reports of suspicious or known fraudulent activity to be approved by management or legal counsel before reports can be filed, in conflict with the individual employee’s mandated reporting duty and without regard for their own liability for failure to report.
Who We’re Meeting With
The A*Team is meeting with representatives from Multidisciplinary Teams, the California Bankers Association, individual bank representatives, the National Association of Protective Service Agencies, California Senate Banking Committee staff, and with Department of Financial Protection and Innovation representatives to understand the underlying issues.
Possible Solutions
1. Solutions under discussion include:
- Customizing NAPSA’s Interagency Guidance on Privacy Laws template for California users. The template is designed to help APS (and other?) investigators request bank records by explaining applicable state and federal laws and includes sample letters for requesting documents and responding to banks’ failure to comply
- Development of a step-by-step guidance document for banks to clarify their reporting and records-sharing responsibilities.
- Including bank representatives on multidisciplinary teams.
- Develop a standardized protocol for MDT coordinators to follow in outreach and relationship-building with bank officials in order to establish trusted points of contact before investigations are required.
- Amend California law to simplify and clarify requirements around mandated reporting and records sharing.
- Explore and promote federal solutions to strengthen large, multi-state banks’ compliance with individual state’s mandated reporting laws.
- Establish a single point of contact or Ombudsman in the State Attorney General’s Office to help resolve issues and/or to assist local law enforcement.
- Require banks to designate a primary contact for APS and Law Enforcement investigators to work with during investigations.
2. Several efforts are underway to address bank liability in elder financial exploitation cases:
- Possible legislation is being considered to amend the Welfare and Institutions Code to clarify bank liability for “assisting” in elder fraud when carrying out a suspicious transaction. The proposed change would comply with a recent federal court ruling that “wrongful use” also includes assisting with a fraudulent transaction.
- CEJC is preparing an amicus brief in Williams v. National Western Life Insurance Co. related to the federal court’s use of an outdated interpretation of WIC 15610.3, before the law was amended in 2014 to confer liability to financial institutions for assisting a scam when they should have known the potential harm to the older adult customer.
To learn more about the A*Team or to request ongoing updates, email carolsewell.cejc@gmail.com.