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Home My WebLink About20233331.tiff xfi OFFICE OF THE BOARD OF COMMISSIONERS PHONE:970-400-4200 FAX:970-336-7233 '' 1150 O STREET P.O.BOX 758 GREELEY,CO 80632 November 7,2023 Department of Health&Human Services Administration for Community Living(ACL) RE:Notice of proposed rulemaking,Public Comment,Adult Protective Services,45 CFR Part 1324 RIN:0985-AA18 Introduction We are writing as an Adult Protective Services program within the State of Colorado.Our Adult Protective Services(APS) Program is county administered with state oversight.We have sixty-four(64)counties within our state and our county, Weld,is one of the top ten(10)Largest counties in our state.The implementation and functions of the APS program within our community are administered at the county level.Colorado and Weld County APS program is consistently underfunded and over budget.While we have grown some in the last few years,it is not enough to keep up with our growing population and the increase in adults who make up a large part of that growth.We currently have one(1)APS Supervisor,seven(7)APS Caseworkers,one(1)APS Intake/Hotline Screener and one(1)part-time temporary Case Aide. Our APS program is part of the Area Agency on Aging Division within the Weld County Department of Human Services. We are committed to serving our aging population and adults living with disabilities.We appreciate the investment made by the ACL working to establish the first-ever federal regulations for APS programs.We are excited by potential advancements for the APS program and appreciate the opportunity to provide feedback on this important matter. While this proposed legislation is reported to be a"minimum floor,"we are concerned that this concept does not align with several of the recommendations that seem very detailed and prescriptive.While we support a level of uniformity, states need to be allowed a level of flexibility and discretion,particularly when there is no funding or inadequate funding,to support the successful implementation of new guidance and recommendations.Specifically,our greatest concerns involve: • Definitions-There are thirty-one(31)detailed definitions that conflict with our current and established APS program definitions outlined in state statute and rules and regulations. • Language—Some of the word choices used could be confusing and misleading to the community about APS authority.If we are looking to improve the APS programs nationwide and unify our programs,we should pay close attention to word choice and use this opportunity to revisit strengths-based language and avoid current terms like victim and perpetrator.Additionally,this draft language is very investigation focused.There should be more emphasis on case planning and implementation of protective services. • Feedback loop for mandatory reporters—We do not believe that it is the responsibility of APS programs to incentivize mandated reporters to make the reports they are legally obligated to file.While our current program allows some flexibility to discuss if a case was assigned or not with any reporting party,we have significant concerns with releasing any other additional information to a reporting party regardless of their professional status,particularly as it relates to the disposition(or finding)of an APS investigation.This conflicts with 1 Co N AUfl i C0.- i©'1 E 2023-3331 t l/13/23 the client's right to confidentiality,the perpetrator's due process rights,and potential labor laws(if the reporting party is a coworker of the alleged perpetrator,etc.). + Fiscal Impact-Respectfully,this proposal has grossly underestimated projections related to workload and fiscal impact.In addition,there is currently limited federal funding for APS programs.The amount of money allocated to individual states and counties does not support the proposed changes or requirements. 1324.400 Eligibility for Funding There are several ideas around standardizing and formalizing current practices such as how to address conflict of interests and notification of rights that we support but would cause change to our rules and regulations.Even with Consensus,any change lo our current statute and/or state rules arid regulations will require extensive lime and effort on the part of several county and state entities.Our state's legislative approach and requirements include review and discussion at the county level,state department,our APS State and County Policy Task Group,Community Stakeholder meetings,discussion at our Aging and Adult County Human Services Directors Association,and then changes must be voted on by our Aging and Adult Sub Policy Advisory Council(PAC)and then approved by final vote at PAC.In addition, these changes would require revisions to our APS Training Academy curriculum and require statewide re-training of existing staff.We find that the outlined time and fiscal impact are extremely limited. The proposed regulations would cause extensive changes to our APS program which already has established definitions and policies,outlined in statute,state rules and regulations,individual county policies,and our statewide training academy.In addition to changes in policy,this will create procedural changes impact practice,caseload sizes,and program resources,including state and county budgets. It should be noted that even"one-time"costs will negatively impact an already strained and underfunded program. The estimated time and fiscal impact referenced in the current proposed legislation is grossly underestimated.It does not reflect sufficient time to adequately address changes and requirements,and the limited funding received by states does not support the impact it would create within our state and counties.We recognize the importance of having federal legislation that promotes consistency across states however,the most significant barrier to the current APS system is not a lack of definitions or procedures,it is a lack of adequate funding.If we are going to promote the health, safety and well-being of our at-risk adults,we need to provide states with adequate funding to invest in the APS programs. In the"Statutory and Regulatory History and Reasons for the Proposed Rulemaking"section of this proposed legislation, it is stated that there was consideration given to modeling regulations after the child protective services regulations administered by the Department's Administration for Children and Families.While that approach was ultimately rejected,the massive discrepancy in federal funding between child welfare and adult protection programs is something that should continue to be discussed.While APS programs received limited funding during the COVID pandemic,that level of"first-time"funding was not continued after 2022.APS programs nationwide received one-time funding of$188 million a year for FYs 2021 and 2022,which was subsequently reduced by approximately ninety-two percent(92%)to $15 million nationwide for FY 2023.This resulted in approximately$200,000 for our state to be divided between our State APS Program and 64 counties.In direct contrast approximately,$12 billion was provided for child welfare programs and of that$852 million was appropriated specifically for child protection.In Colorado,we are growing and aging as a state.Between 2020 and 2030,Colorado's 65+population is forecasted to grow 36%.The largest growth is forecasted to be 44%in the 81 to 90-year-old group followed by a 41%growth in the 71-to 80-year-old group.As of this year(2023),Colorado is projected to have more people over 60 years old than under 18 years old.If the goal of the ACL 2 is to improve the quality-of-service delivery for vulnerable adults,then there must be a substantial and consistent financial investment to support that work. 1324.401 Definitions We agree that defining terms would provide clarity for APS systems nationwide;however,we believe that a set of terms should be identified and the actual definitions should be left up to individual states.Colorado has invested a significant amount of time aligning our definitions with professional partners throughout the state,including law enforcement and intellectual and developmental disability service providers.The requirement to adopt definitions provided by the ACL would undo that work and provide misalignment.If definitions are the same nationwide,we have provided feedback on the terms that are concerning to us below. Abuse means the knowing infliction of physical or psychological harm or the knowing deprivation of goods or services that are necessary to meet essential needs or to avoid physical or psychological harm. There is overlap between this definition and the neglect definition.We believe that more distinction is required. "Knowing"creates a loophole for perpetrators to be able to say they"didn't know",which could impact the ability to substantiate.We have concerns about including"psychological harm"in the abuse definition.This is not something easily defined.The actions and potential impacts can also be challenging to assess.In Colorado we define abuse as,"any of the following acts or omissions committed against an at-risk adult:(a)The accidental infliction of physical pain or injury,as demonstrated by,but not limited to,substantial or multiple skin bruising, bleeding,malnutrition,dehydration,burns,bone fractures,poisoning,subdural hematoma,soft tissue swelling, or suffocation;(b)Confinement or restraint that is unreasonable under generally accepted caretaking standards." Adult means older adults and adults with disabilities as defined by State APS laws. This term along with client and victim all seem to be referring to the same thing which seems unnecessary. There should be one term used to define the person a case is opened. Adult maltreatment means self-neglect or abuse,neglect,exploitation,or sexual abuse of an adult at-risk of harm from a perpetrator with whom they have a trust relationship. The word"adult"is not needed.This definition should stand on its own and be used to refer to the category of the allegation(s)in which a case is opened. At risk of harm means the possibility that an individual will experience an event,illness,condition,disease,disorder, injury,or other outcome that is adverse or detrimental and undesirable. This definition is too broad.Using the term"possibility"suggests that any adult could meet this definition. Exploitation means the fraudulent or otherwise illegal,unauthorized,or improper act or process of a person,including a caregiver or fiduciary,that uses the resources of an adult for monetary or personal benefit,profit,or gain,or that results in depriving an adult of rightful access to,or use of,their benefits,resources,belongings,or assets. We have concerns that this definition of exploitation could limit APS'scope of work if this only applies to a caregiver or fiduciary.If the intent is not to limit this to only caregivers or fiduciaries,then we believe this part of the definition can be omitted.There also might be confusion around the intention of this definition because of the"trusted relationship"definition also outlined in this proposal.In Colorado we define exploitation as,"an act or omission that(a)Uses deception,harassment,intimidation,or undue influence to permanently or temporarily deprive an at-risk adult of the use,benefit,or possession of anything of value;or(b)Employs the 3 services of a third party for the profit or advantage of the person or another person to the detriment of the at- risk adult;or(c)Forces,compels,coerces,or entices an at-risk adult to perform services for the profit or advantage of the person or another person against the will of the at-risk adult;or(d)Misuses the property of an at-risk adult in a manner that adversely affects the at-risk adult's ability to receive health care or health-care benefits or to pay bills for basic needs or obligations." Mandated Reporter means someone who is required by State law to report suspected adult maltreatment to APS. This definition is not consistent with the mandatory reporter definitions or requirements across all states. According to Colorado Department of Human Services,"certain professionals are required by law to report physical abuse,sexual abuse,caretaker neglect,and exploitation(termed"mistreatment")that is observed or that the reporter becomes aware of when that mistreatment is occurring to an at-risk elder or an at-risk adult with an intellectual or developmental disability(IDD).These mandatory reports must be made to the law enforcement agency where the mistreatment occurred within 24 hours of witnessing or becoming aware of the mistreatment."In Colorado,mandated reporters are urged to report to APS but not mandated to do so.This would be a significant shift in practice requiring not only changes to state statute but also substantial education to the entire state and a major change for law enforcement. Neglect means the failure of a caregiver or fiduciary to provide the goods or services that are necessary to maintain the health or safety of an adult. There is overlap between this definition and the abuse definition and more distinction is needed.Additionally, caregiver should be defined.In Colorado we define neglect(caretaker neglect)as,"neglect that occurs when adequate food,clothing,shelter,psychological care,physical care,medical care,habilitation,supervision,or other treatment necessary for the health or safety of the at-risk adult is not secured for an at-risk adult or is not provided by a caretaker in a timely manner and with the degree of care that a reasonable person in the same situation would exercise,or a caretaker knowingly uses harassment,undue influence,or intimidation to create a hostile or fearful environment for an at-risk adult." Perpetrator means the person determined by APS to be responsible for one or more instances of adult maltreatment for one or more victims. If we are defining terms and working toward advancements for the APS program,we should use this opportunity to consider more strengths-based and person-centered language and revisit our use of the word "perpetrator"and"victim." Post-investigation Services means the activities undertaken by APS in support of a client after a finding on an allegation of adult maltreatment has been made. We believe this should not be defined as it could cause confusion on when services should be offered and/or implemented.We feel that safety should be a priority throughout the entire case and necessary service should be offered as early as opening a case and not because of the investigation outcome. Sexual abuse means the forced and/or unwanted sexual interaction(touching and non-touching acts)of any kind with an adult. We understand that this was likely one of the more difficult definitions.Our state's definition aligns with our criminal code.This has been imperative to ensure our substantiated cases are not overturned during an appeal process(and removed from our state APS Perpetrator Registry).This mistreatment definition matching with our legal definition did present some challenges for us as it related to actions that seemed sexual or inappropriate 4 and harmful in nature but did not meet the criminal definition.As a response to this,we added an additional mistreatment category of"harmful act."We have defined harmful act as,"an act committed against an at-risk adult by a person with a relationship to the at-risk adult when such act is not defined as abuse,caretaker neglect,or exploitation but causes harm to the health,safety,or welfare of an at-risk adult."This allows us to investigate mistreatments that do not fit into the mistreatment category of sexual abuse or the other defined mistreatment categories such as caretaker neglect,physical abuse and exploitation. Trust relationship means the rational expectation or belief that a relative,friend,caregiver,or other person with whom a relationship exists can or should be relied upon to protect the interests of an adult(as defined above)and/or provide for an adult's care.This expectation is based on either the willful assumption of responsibility or expectations of care or protection arising from legal or social conventions. We believe that"rational expectation or belief"or"social convention"are too subjective to be used in this definition.How this is interpreted could look different to people based on a multitude of reasons,including cultural norms,education,and life experiences.If this term is going to be defined,the definition should be objective and precise.Additionally,defining"trust relationship"as it relates to alleged perpetrators would narrow the scope of our APS programs involvement as this criterion does not currently apply to our mistreatment definitions.The only exception would be caretaker neglect where we have an established definition for"caretaker."In Colorado,pursuant to Section 26-3.1-101(2)C.R.S.,caretaker means a person who (1)is responsible for the care of an at-risk adult as a result of a legal guardianship;or(2)Has assumed responsibility for the care of an at-risk adult;or(3)Is paid to provide care,services,or oversight of services to an at-risk adult." Victim means an adult who has experienced adult maltreatment. There are other terms used to identify the persons that are sufficient,such as client or adult.Additionally,if we are defining terms and working toward advancements for the APS program,we should use this opportunity to consider more strengths-based and person-centered language and revisit our use of the word"perpetrator"and "victim." 1324.402 Program administration We agree that a minimum standard related to program administration would be beneficial to the APS system nationwide and that requiring programs to establish policies and procedures is an effective way to work toward clear and consistent practices among adult protection programs.However,programs among states will vary based on demographics and resources,therefore we feel strongly that the diverse cultures within different geographical areas should be respected while working toward standardization.We believe this can be accomplished by mandating the requirement of policies and procedures without being overly prescriptive about content,particularly if there is no related funding to accompany the successful development and implementation of specific requirements. We can appreciate wanting to ensure adequate protection for at-risk adults throughout the United States.As to the mandatory requirement for APS to investigate adult maltreatment based on the definitions of abuse,neglect, exploitation,sexual abuse,and self-neglect,we believe that overextends the intended function of the APS program by enhancing the scope of investigation.APS programs should be considering their definition of at-risk adult and using that as a criterion in their decision to assign a case for investigation in addition to the allegation of a mistreatment.We should continue to focus only on our most vulnerable adults.Law Enforcement agencies exist to investigate crimes and Ombudsman programs to protect the rights of Long-Term Care residents.APS programs are not intended,nor funded,to investigate all allegations of adult maltreatment. 5 While we appreciate the recognition that establishing a staff to client ratio could improve client outcomes and worker retention,that is only effective if the ratio is realistic and set in accordance with an evidence-based determination. Suggesting states establish a ratio based on what we are doing now is a potentially dangerous recommendation.Most APS programs are currently underfunded,understaffed and over worked.A minimum staffing ratio is only impactful if it is a realistic ratio that supports strong casework and improves the health and safety of our at-risk adults.To do this responsibly will take additional research and require significant funding to APS for additional program staff. Acknowledging the need for a recommendation but not supporting the work and research required to establish an accurate ratio and not funding APS programs to implement an appropriate ratio to support the health and safety of our at-risk adults creates an expectation that is not realistic or beneficial. 1324.403 Investigation and post-investigation services We agree that each state should adopt standardized and systematic policies and procedures for APS program activities. The only feedback we have for this section is related to language around"post investigation services"and perpetrator accountability. It seems that the repeated use of the term"post investigative services"throughout this proposed legislation could imply that case planning and the provision of protective services does not occur until after the Investigation Is complete and/or only occurs if/when there is a substantiated finding attached to an investigation,i.e.,"If adult maltreatment is present,APS then identifies the service needs of the client and develops a plan."We believe that assessment,case planning,and protective service implementation can,and should,occur simultaneously with the investigation of mistreatment.Safety should be our number one priority and therefore service provision must be the priority and may be necessary regardless of an investigation outcome.While we believe this may also be the belief of the ACL,we would suggest that there be some language revision to avoid confusion or conflict.In lieu of"post investigative services,"terms like assessment,case planning,or protective service provisioning could be substituted, As it relates to,"(e)Provision of APS services,that:(3)Hold perpetrators accountable for the adult maltreatment and for stopping the abusive behavior"and language referencing APS"apprehending"perpetrators,(documented in the "benefits"section).This language is concerning as it implies APS has authority to do these things,which it does not.We are working with adults who may choose to remain in unsafe situations.Our program principles rely heavily on self- determination and autonomy.We work very hard to educate and empower our clients and encourage safe decisions, but we are not law enforcement and have no authority over an alleged perpetrator.Language like this will further confuse the community and potentially APS staff about APS authority and the purpose of their involvement. While our state now has a perpetrator registry and legislation that requires certain employers to check the registry,this is not the case in every state.If the ACL is interested in consistency across states and accountability for substantiated perpetrators,the requirement for a registry may be something to explore.While this may offer some level of accountability,we would caution that this will also impact program resources as it would require significant time,work, and local legislation. 1324.404 Conflict of interest We support defining conflict of interest and dual relationships and agree that all APS programs need to have a process for handling conflicts of interest and dual relationships when identified.There are times that dual relationships are unavoidable in our state due to small,rural counties with limited staff and limited resources.Additionally,dual relationships are unavoidable in counties with limited guardianship resources when legal authority is necessary.These 6 types of relationships,along with conflicts of interests do require oversight,transparency,and safeguards in place to provide protection to the client and the APS caseworker. 1324.405 Accepting reports We support the requirement to accept APS reports 24/7.However,many APS programs,including ours,are not equipped to respond to reports after hours.If this were the expectation of the ACL,additional funds would need to be allocated to programs to support the resources required to fulfill such an obligation.Additionally,there would need to be consideration given to the expectation for having staff available after-hours,particularly when APS are not first responders,and do not have the authority or resources to remove adults from their home. We appreciate the suggestion of an online reporting system.In fact,we recently developed one in our county and have received positive feedback and believe it is fulfilling a gap that once existed in the community for reporting maltreatment. We do not agree that mandatory reporters should have to be incentivized to make a report to APS;this should be done because it's the right thing to do and they are legally obligated because of their profession.We are not opposed to informing a mandatory reporter on the screening decision but do not believe APS should be responsible for initiating these contacts.While Colorado can share the screening decision of a case with a reporting party,the responsibility of this inquiry lies with the reporting party.We are concerned that shifting the responsibility to the APS program would have significant impacts on workload due to the number of contacts and subsequent documentation this would require. We disagree that a mandatory reporter should be informed regarding the outcome of an investigation.Sharing the disposition of an APS finding violates privacy,due process,confidentiality,and could violate employment laws.There are other ways to ensure the necessary parties are informed if the outcome of an investigation is a substantiation or there are safety issues.For example,an employer or service provider could be notified if APS identifies any safety concerns for the client or other at-risk adults. 1324.406 Coordination with other entities We agree APS systems should coordinate with other entities.We have Cooperative Agreements with all local law enforcement agencies and other community-based organizations.We have found them beneficial for communication and collaboration.However,a major barrier with this proposed requirement is that APS systems are only half of the relationship,and we are not sure how this can be a requirement if the other agencies do not have the same requirement.We also see the value in developing multi-disciplinary teams throughout the state;however,we have concerns regarding the challenge of getting key agencies to come to the table on a regular basis to serve in this capacity. Finally,we have concern regarding the requirement of APS programs to share information across states without having any funding to support this requirement.Some states,like ours,have registries for alleged preparators but this is only accessible to our state.We feel it could be beneficial to create a national registry for employers to access,however we recognize that this would be a major project and would require significant resources.As it relates to sharing client or offender history across states,we recognize the potential value in accessing this type of information,it would create additional workload to establish criteria and processes and then each state would need additional resources(staff)to fulfill the additional workload. 1324.407 APS program performance This section speaks primarily to APS data being collected,retained,and then reported annually to the ACL.We currently have an electronic case management system that has some data collection capabilities,and it retains case information 7 beyond the 5 years noted in this section.However,the State administers that system,so we cannot say for certain what could or could not be produced.It is difficult to address this without knowing the specific information that the ACL would expect in the annual report. As the ACL considers data that may be relevant to program performance,we would suggest that include some measure of quality assurance.In addition to case reviews completed internally by each county,our state recently began annual audits of each APS program to ensure counties were administering their APS programs in accordance with rules and regulations.This process assists with accountability,consistency,and continuous improvement efforts.It should be noted that this would require a substantial investment by states that do not currently have a system for quality assurance in place,particularly if there is to be an independent team of auditors dedicated to the process. If the additional task of data collection and repor ling is to be under taken by stales and reviewed at a national level,we would recommend research and discussion about what information should be collected,a clear understanding about how it can be useful to our program and the population we serve.It should also be reviewed regularly to ensure the data is being collected and reported accurately and consistently.This would ensure the information is useful to the ACL and state programs and driving data-based programmatic decisions. 1324.408 State plans This proposal has underestimated the time it would take to complete a comprehensive and meaningful state plan.Our APS program is within our Area Agency on Aging Division.We also oversee our Older Americans Act(OAA)program, which includes the requirement for a state plan(or 4-year plan).While we can appreciate the value in the OAA 4-year plan and understand how the ACL may want to mirror certain practices for consistency,we believe comparing APS to OAA is like comparing apples to oranges.We do not feel that the time and effort required to compose a state plan(or monitor them from a federal standpoint)would benefit the APS program or population served.APS has a budget for casework;APS does not typically provide services or contract with providers for direct services,like the Older Americans Act programs.The OAA state plans are very labor intensive;they require significant state and county collaboration; there is a review of current practices,services,contracts,current needs,resource availability,community engagement, surveys,etc.A state plan for the Older Americans Act helps to identify what federal funding is being spent on and the goals or purpose for why resources are being allocated to certain programs or services.APS programs are allocating money to administrative costs,not specific contracts or programs.We don't believe that type of spending warrants a state plan.If the state plan is a"mechanism through which States demonstrate,and ACL evaluates,compliance"then this can be accomplished by the APS Program Performance requirement(section 1324.407),annual data submission, demonstrating that the program is operational,accepting referrals,investigating allegations and case planning for protective services. Closing Summary We appreciate the opportunity that ACL has afforded stakeholders to engage in this process and provide feedback.We are hopeful that many interested parties took the time to respond and that all the information received will be taken into consideration prior to establishing federal rule.While we can appreciate the consideration of the Voluntary Consensus Guidelines for APS,it is also important to consider that they were revised in 2020,from data gathered in 2019.This information was gathered more than 4 years ago and pre-pandemic.In our state,APS has experienced significant changes and challenges since the COVID-19 pandemic,including an increase in high acuity cases,decrease in available services,and workforce issues. We believe federal guidance could improve APS programs across the country but there would be negative consequences to our state with the current proposed language,as it is overly prescriptive and would disrupt the existing program.If our program had little structure in place,we may benefit from having prescriptive definitions and program 8 administration policies outlined by the ACL.However,our state has statute and regulations related to APS,a well- established training academy,continuous education requirements,an innovative Alternative Response Pilot Program (based on the differential response model in Child Welfare),Perpetrator Registry,etc.Having to adopt these federal rules as-is would essentially undo all the work,community education and outreach,and progress this program has made in communities across sixty-four(64)counties. If the intended goal of this process is to improve consistency and quality of APS services,to support the national network that delivers APS services,and meet the needs of the adults we serve,there should be general requirements that will foster these concepts and still allow individual states to administer APS programs that are tailored to their unique populations and circumstances.This can be accomplished by requiring states to establish policies and procedures,training requirements,and definitions for certain things,such as what they consider their target population, what mistreatments they investigate and what the definition is for each mistreatment(which may vary slightly from state to state if it aligns with law enforcement and provider agency terminology in that area),but we should avoid federal legislation being overly prescriptive. We are respectfully requesting that you consider the feedback provided and consider the impact to states and APS programs,particularly as it relates to workload,legislative processes and changes,and budget constraints.For these changes to add value and not overwhelm an already struggling system,there must be revision to the existing proposal and increased funding to support the outlined requirements. We recognize the extraordinary effort it will take to institute federal guidance for a program that already exists and is functional across multiple states but believe there is value in working toward the goal of evidenced-based practices and uniformity.We hope the commitment to this endeavor does not lose momentum. Sincerely,rej 4. Mike Freeman Chair,Weld County Board of Commissioners C: Jamie Ulrich,Director,Weld Count Human Services,ulrichjj@weld.gov Jill Colavolpe,Deputy Division Director,Area Agency on Aging,colavojx@weld.gov Dawn Simmons,Adult Protective Services Supervisor,dsimmons@weld.gov 9 Hello