In today’s tumultuous political environment, many of us are watching and responding to proposed changes to America’s safety net that could have catastrophic impact. Many of our colleagues are spearheading efforts to fight proposed cuts and changes—we encourage you to support the efforts of groups you are aligned with. However, we are also concerned that other proposed or in-process changes with consequential impact for elder justice may be flying under the radar. This chart describes issues we're following and provides links to great sources of additional information. Let us know about issues you're following, updates on those listed, or additional contacts. To do so, contact us here.
Updated August 2019
Updated August 2019
Issue |
Threat |
Status / Additional Info |
Elder Abuse / Elder Justice |
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Elder Justice Act Re-authorization The EJA was enacted in 2010 as part of the Patient Protection and Affordable Care Act, (ACA or "Obamacare") (see below for more on the ACA). It established a national structure for elder justice and a Coordinating Council to oversee implementation and develop recommendations. It does not provide funds for direct services and limited funds for research, a national APS data base, and demonstration projects. For more on the EJA go to Elder Justice Act |
Most provisions under the EJA were set to expire in 2014. Attempts at reauthorization have failed, and funding for programs and activities has been provided by continuing resolutions. On May 24, 2017, House Republican Pete King introduced H.R. 2639 to extend the EJA through 2021. It was assigned to committees but no action has been taken. |
The reauthorization remains stalled. It has not been taken up in committee and congress.gov, the website for U.S. federal legislative information, has yet to produce a summary. See Congress.gov. The Elder Justice Coalition has been in discussions with the Senate Finance Committee and anticipates that a draft of a new bill, which is expected to be called the Elder Justice Reform Act, is likely to be introduced in fall, 2019. For updates, go to Elder Justice Coalition. |
Social Services Block Grant (SSBG) Funds SSBG provide funds (1.5. billion in 2016) to states and territories to support social services for vulnerable children, adults, and families. They support Adult Protective Services (APS) in 36 states and are the only source of APS funding in some. |
The Administration has expressed skepticism about the value of the SSBG (it eliminated the program entirely in its proposed budget for 2018). Advocates are concerned that the recent tax cuts are not deficit-neutral (they will result in revenue losses and add to the deficit). Ordinarily, revenue losses trigger the "pay as you go" or "paygo" rule, which requires automatic cuts to certain programs to offset revenue losses. SSBG is among the important programs that would automatically be cut or eliminated. Congress, however, has the prerogative of waiving the rule. |
Congress waived the Paygo rule for the tax cuts in December 2017 for one year. The 2018 Omnibus Appropriations Bill for the remainder of federal FY 2018, signed by the president on March 23, retains the SSBG at level funding ($1.7 billion). For more:
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Financial Abuse |
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Fiduciary Standard Rule In 2015, the Obama administration directed Dept. of Labor (DOL) regulators to compel financial advisers to abide by a “fiduciary standard,” requiring them to act in the best interests of their clients when providing guidance about retirement accounts. |
The rule was originally scheduled to go into effect in April 2017 but the Administration directed DoL to suspend it pending a review. Industry trade associations oppose the rule, claiming that it harms consumers by depriving them of access to advice, reducing their choices, and increasing their costs. |
On March 16, the US Fifth Circuit Court of Appeals, in a two-to-one ruling, overturned the rule, holding that DOL’s action in establishing it was "arbitrary, capricious, not in accordance with the law, and in excess of its statutory authority and limitations." The DOL could decide to ask the full Fifth Circuit to rehear the dispute, or seek a hearing before U.S. Supreme Court. |
Nursing Homes |
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Nursing Home Deregulation (Updated Aug 2019) The Centers for Medicare and Medicaid Services (CMS) sets requirements that nursing homes must meet to to participate in the Medicare and Medicaid programs. They may fine facilities or revoke their licenses for failure to meet the requirements. These punishments have lacked teeth. In 2016 CMS issued reforms to promote residents’ health and safety. This included a rule barring nursing homes from requiring residents to sign arbitration agreements (see below). |
The current administration has proposed rolling back the reforms, proposing changes that would:
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In July, 2019. CMS issued a final rule that reflects the proposed rollbacks, including the repeal of the ban on arbitration agreements (see below). The following organizations provide frequent updates and action alerts:
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Binding Arbitration: SNFs (Updated Aug 2019) Skilled nursing facilities prevent residents from pursuing lawsuits against them for neglect, abuse, wrongful eviction, and death by pressuring them into signing arbitration agreements upon admission. Residents typically feel pressured to sign the agreements on admission, essentially waiving their right to sue the home in the event of abuse or inadequate care. |
In fall 2016, the Centers for Medicare and Medicaid (CMS) issued a new rule barring federally funded nursing homes from requiring residents to sign arbitration agreements. Under the Trump administration, CMS issued a proposed rule to roll back the ban and allow (or even require) nursing homes to require residents to sign the agreements. |
In July, 2019 CMS issued a final arbitration rule repealing the prohibition against the use of pre-dispute, binding arbitration agreements. |
Antipsyochotic Drugs in Nursing Homes Patients in nursing homes are often given antipsychotic drugs inappropriately, in dosages that are too high, and/or without seeking proper informed consent from the patient. |
They Want Docile, a 2018 Human Rights Watch report found that "In an average week, nursing facilities in the US administer give antipsychotic drugs to over 179,000 people who do not have diagnoses for which the drugs are approved and/or have not given free and informed consent..." Studies show that the use of antipsychotic drugs nearly doubles the risk of death for older people with dementia and are often used for their sedative effect rather than any medical benefit. |
For more, see:
• Long Term Care Community Coalition Issue Alert. |
Civil Rights |
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Threats to Civil Rights Divisions Many federal departments have civil rights divisions that investigate civil rights violations and discrimination. These include the Department of Justice (DOJ), the Department of Labor (DOL), the Department of Health and Human Services (HHS), the Department of Housing and Urban Development (HUD) the Environmental Protection Agency (EPA), and the Equal Employment Opportunity Commission (EEOC). |
The Administration has signaled its intent to cut back on civil rights divisions and provisions that impact older adults. For example, the EPA has proposed eliminating an environmental justice program that addresses health threats concentrated in minority communities, and HHS has removed questions about sexual orientation from two surveys of elderly Americans that are used for making funding decisions. |
Advocates have been partially successful in getting questions about sexual orientation reinstated. For more: SAGE (Services & Advocacy for Gay, Lesbian, Bisexual, and Transgender Elders) is following this and related issues. Contact them at www.sageusa.org. |
The 2020 Census The US census determines how many seats in the House of Representatives each state gets and helps determine how federal funding gets distributed. |
Advocates worry that anti-immigrant, anti-Muslim rhetoric and growing distrust about sharing information with the government will lead to undercounts. There is also concern that the administration’s aggressive enforcement of immigration policies will make it harder to reach minorities, undocumented immigrants, and others whose numbers have been undercounted in the past. The potential impact of an undercount for California in the 2020 US census could be a Congressional seat and billions of dollars in funding to communities and neighborhoods, with particularly damaging impact for the state's Latino population and "hard to count" communities in poor, rural areas of the state. |
Advocates for various groups are monitoring developments. For more on what California organizations are doing to ensure the count is as accurate as possible go to; With billions at stake, California gets ready to combat potential 2020 census undercount, a March 29, 2019 blog post by Ryan White, USC Annenberg Center for Health Journalism. |
Religious Objection Rules Healthcare personnel are required to provide care or services regardless of their own values. However, the U.S. Department of Health and Human Services (HHS) rolled out Protecting Statutory Conscience Rights in Health Care, which would allow health care providers to refuse to provide services that conflict with their personal values. |
Although directed primarily at abortion services, the rule may cover services in Medicaid or Medicare Advantage, the handling of advanced directives, and services for hearing screenings, vaccinations, and mental health treatment. Advocates fear it may open the door for discrimination against members of LGBT and minority communities. For more, see Could Trump’s Religious Objection Guidance Create SNF Turmoil? |
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Health Care and Equity |
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Affordable Care Act (Patient Protection and Affordable Care Act, or ACA) The individual mandate provision of the ACA has been eliminated and other provisions have been challenges or weakened, including:
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In the spring of 2018, the Justice Department indicated that it would not defend the ACA in the suit challenging its constitutionality. If unsuccessful, this could result in:
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Groups and publications tracking these developments and other threats to health care and equity include: The Caregiving Policy Digest, a publication of the Family Caregiver Alliance, is closely following developments and releasing updates. Justice in Aging has produced 10 Year Check-Up: The Affordable Care Act Has Enhanced Access to Quality Health Care for Low-Income Older Adults, describing how older adults are impacted by the ACA:
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Changing the Federal Poverty Level Eligibility for programs like Medicaid, Affordable Care Act subsidies, subsidized prescription drug coverage, food subsidies, weatherization assistance, Senior Community Service Employment Program, Foster Grandparent and Senior Companion Programs, and the Legal Services Corporation are determined relative to the federal poverty line. That measure is adjusted annually for inflation. |
The Office of Management and Budget (OMB) is considering changes to the ways inflation is calculated in ways that would increase it more slowly over time. If implemented, fewer people would be eligible for assistance, because their incomes would be higher than the allowable guidelines. Over time, millions of people would be affected, including older adults, people with disabilities, and others who are poor or near poor. |
The Coalition for Human Needs (CHN) provides information on the topic, including webinars, sample responses, updates, and guidance. See CHN Website. |
Other |
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Rescinding Regulations On Payday Lenders People in financial straits, including many older adults, purchase short-term loans, which often carry annual interest rates between 300 and 400 percent. Payday lenders who offer these loans often operate in low-income communities. the 2017, The Consumer Financial Protection Bureau (CFPB) enacted a rule, the Payday, Vehicle Title, and Certain High-Cost Installment Loans rule, requiring lender confirm that their borrowers have the means to repay some types of loans. |
In 2018, CFPB announced that it would delay the compliance date for the provisions for 15 months to allow it to review comments, make changes, and account for potential unanticipated implementation challenges. The administration has argued that rescinding the rule will encourage competition in the industry and provide more options for borrowers. |
A public comment period closed May 15 and it is unclear when a final rule will be issued. |