Functional Federalism

Reporting on the best and worst states to retire in 2023, ranked (July 31, 2023), Bankrate, a consumer financial services company, analyzed five categories: affordability, overall well-being, the cost and quality of healthcare, weather, and crime. A comprehensive survey accounting for guardianship abuse and exploitation would likely present a starkly different narrative, revealing that some states are not safe for retirees to live and die in.

Yet, through their diverse approaches to guardianship and its abolition, states provide opportunities to strengthen our social contract, fostering deeper trust and responsibility between individuals and society.

Combatting guardianship harms starts with states and their citizens. But states cannot do it alone — especially in response to abuse and exploitation, criminal acts that are deplorable, unconstitutional, systemic, and nationwide. These crimes affect every community and cut across all racial, religious, cultural, economic, and geographic lines.

State-federal partnerships are key and must be turn-key. 

Effective communication, cooperation, and consultation among all governments and sectors is vital. Anything less will signal to perpetrators that they maintain the advantage.

In the spirit of functional federalism imbued with trust, justice includes maintaining robust, two-way avenues of coordination and consultation among federal, state, and local governments (GAO 2020) in recognition that “criminals and crime do not stop at jurisdictional or geographic boundaries” (National White Collar Crime Center). In guardianship, criminals know what states and counties are most vulnerable and appealing. Transporting citizens to such states amounts to (illicit) interstate commerce and human trafficking.

Functional federalism is our system of government in which power is shared between the central and state governments, sovereign first nations, and territories, with the goal of promoting efficiency and effectiveness to ensure that each level of government has the ability to address issues that are best handled at that level.

Functional federalism can sometimes create conflicts or tensions between different levels of government, particularly when there are disagreements about the appropriate scope and distribution of responsibilities. But to frame any conflict as one between the federal government and states (etc.) misses the point of our social covenant: that circles of support must center around each citizen. The Tenth Amendment provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” (Cornell)

“Personal efficacy is valued not because of reverence for individualism, but because a strong sense of personal efficacy is vital for successful adaptation and change regardless of whether it is achieved individually or by group members working together,” observes psychologist Albert Bandura (1995, 34).

Throughout our life course, our personal efficacy and individual rights are maintained by the equity in our social covenant and supported independence. However, the power and personal efficacy of citizens is denied in guardianship.

The Elder Justice Coordinating Council 

The Elder Justice Coordinating Council is coordinating federal agencies to advance the cause of elder justice, to help our future selves.

The Secretary of the Department of Health and Human Services is responsible for directing the Council, which was established by the Elder Justice Act (2010). This responsibility is assigned to the Administration on Aging within the Administration for Community Living.

Established by the Elder Justice Act (EJA 2010), the Secretary of HHS has responsibility for directing the Council; this responsibility is assigned to the Administration on Aging (AoA), within the Administration for Community Living (ACL).

Council duties, as defined by the Elder Justice Act, state that,

“The Council shall make recommendations to the Secretary [of HHS] for the coordination of activities of the Department of Health and Human Services, the Department of Justice, and other relevant Federal, State, local, and private agencies and entities, relating to elder abuse, neglect, and exploitation and other crimes against elders.”

As suggested by the EJA language and intent, the Department of Health and Human Services and the Department of Justice play a lead role. As of 2022, the Council has expanded to include 17 council members. Sister agencies have added much to interagency communication and coordination, informed by testimony from state and national experts at meetings and, via invitation, public input (in 2019 and now). The Council typically holds bi-annual meetings, most open to the public.

Federal references here may initially imply a one-way, top-down approach to federalism. But this is not the case with guardianship, as it is governed by state law. “Moreover, there has been no federal policy promoting adult guardianship reform,” observes the ABA Commission on Law and Aging (2020, 9), despite federal agencies’ dedicated individual and collective efforts. This ABA project and publication was funded by the Administration for Community Living.

Council Members —

Building on the Elder Justice Act, we will move beyond a reliance on guardianship by implementing a two-pronged approach. This strategy prioritizes preventing abuse while simultaneously developing effective legal and humanitarian alternatives.

The Attorney General is well positioned to have the Department of Justice take the lead in addressing and arresting guardianship abuse and exploitation as a state-sponsored white-collar crime. The Attorney General of the U.S. is a permanent member of the Council.

The Administration for Community Living (ACL) is already working with our aging and disability communities to explore alternatives to guardianship. The Administration on Aging within the ACL was assigned responsibility for implementing the Council by the Office of the Secretary of Health and Human Services.

Our state and federal acts empower us to act. Our state and federal agencies give us agency to act — to act against injustice and to act with self-determination.

Elder Justice Coordinating Council members (June 2022) are listed below. Agencies that have specific interest and expertise in addressing and arresting abuse and exploitation are followed by “guardianship”:

• AmeriCorps

• Consumer Financial Protection Bureau — guardianship

• Federal Communications Commission — guardianship

• Federal Trade Commission — guardianship

• Legal Services Corporation — guardianship

• Social Security Administration — guardianship

• U.S. Department of Agriculture

• U.S. Department of Health and Human Services — guardianship

• U.S. Department of Homeland Security — guardianship

• U.S. Department of Housing and Urban Development — guardianship

• U.S. Department of the Interior — guardianship

• U.S. Department of Justice — guardianship

• U.S. Department of Labor — guardianship

• U.S. Department of the Treasury — guardianship

• U.S. Department of Veterans Affairs — guardianship

• U.S. Postal Inspection Service — guardianship

• U.S. Securities and Exchange Commission — guardianship

Additional recommended Council member  

The Federal Bureau of Investigation (FBI).

The Federal Bureau of Investigation (FBI)

The FBI (née the Bureau of Investigation) is no stranger to guardianship abuse, as chronicled by David Grann in Killers of the Flower Moon: the Osage murders and the birth of the FBI, which details the brutal murders of wealthy Osage people in the 1920s and the fledgling FBI’s efforts to solve the case. Guardianship served as a key tool for those seeking to control the wealth of Osage Nation members — their money and their lives. Grann chronicles (2017, ch.5):

“Over the tribe’s vehement objections, many Osage, including Lizzie and Anna, were deemed ‘incompetent,’ and were forced to have a local white guardian overseeing and authorizing all of their spending, down to the toothpaste they purchased at the corner store. One Osage who had served in World War I complained, ‘I fought in France for this country, and yet I am not allowed even to sign my own checks.’ The guardians were usually drawn from the ranks of the most prominent white citizens in Osage County.”

The successful investigation of the Osage murders marked a turning point for the BOI, housed in the U.S. Department of Justice. It bolstered Director J. Edgar Hoover’s reputation and helped secure increased funding and authority for the agency, paving the way for the establishment of the FBI in 1935.

As chronicled by David Grann (2017, ch. 20):

“For Hoover, the Osage murder investigation became a showcase for the modern bureau. As he had hoped, the case demonstrated to many around the country the need for a national, more professional, scientifically skilled force. The St. Louis Post-Dispatch wrote of the murders, ‘Sheriffs investigated and did nothing. State’s Attorneys investigated and did nothing. The Attorney General investigated and did nothing. It was only when the Government sent Department of Justice agents into the Osage country that law became a thing of majesty.’”

The FBI investigates white-collar crime. The White Collar Crimes Units of the Bureau and can continue commitment to elder justice when working with local prosecutors to investigate human trafficking of persons across state lines, embezzlement, conspiracy, fraud, theft, and money laundering.

FBI’s efforts are already complemented by the U.S. Department of Justice, as directed by the Elder Abuse Prevention and Prosecution Act (Sec.101(a)(2)):

2) INVESTIGATIVE SUPPORT. — The Attorney General, in consultation with the Director of the Federal Bureau of Investigation, shall, with respect to crimes relating to elder abuse, ensure the implementation of a regular and comprehensive training program to train agents of the Federal Bureau of Investigation in the investigation and prosecution of such crimes and the enforcement of laws related to elder abuse, which shall include —

(A) specialized strategies for communicating with and assisting elder abuse victims; and

(B) relevant forensic training relating to elder abuse.

EJCC Eight Recommendations 

All of the Council’s Eight (8) Recommendations for Increased Federal Involvement in Elder Justice(adopted in 2014) are pertinent to state and tribal efforts to combat guardianship abuse and exploitation in concert with state and local governments, other sectors, and citizens. The Council’s recommendations include:

Improving Response

• Support the Investigation and Prosecution of Elder Abuse Cases

• Enhance Services to Elder Abuse Victims

• Develop a National Adult Protective Services System

• Develop a Federal Elder Justice Research Agenda

Improving awareness and prevention

• Develop a Broad-Based Public Awareness Campaign

• Cross-disciplinary Training on Elder Abuse

• Combat Elder Financial Exploitation, including Abuse by Fiduciaries

• Improve Screening for Dementia and Cognitive Capacity, Financial Capacity, and Financial Exploitation

EJCC: Proposed ninth recommendation 

9: Foster lifelong supported independence informed by culturally competent elder justice services and support systems that embrace a life course approach and prioritize engagement with our disability communities.

How to help coordinate the Council’s efforts 

At the federal level, elder-justice efforts can be facilitated by designated federalism officials in agencies, as established by Executive Order 13132 (FR 1999, 43257), which states:

“…that each agency shall have an accountable process to ensure meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications. The executive order requires each agency to designate an official with principal responsibility for implementation but does not specify how agencies are to organize their intergovernmental offices or functions.”

As noted by the U.S. Government Accountability Office (2020), “The Office of Management and Budget (OMB) has primary responsibility for implementing E.O. 13132 and related implementation guidance, including a requirement for the designation of a federalism official.” To assist agencies in complying with E.O. 13132, OMB issued guidance in October 1999. To help federal agencies collaborate more, in 2012 the GAO published Managing for Results: Key Considerations for Implementing Interagency Collaborative Mechanisms. Separately, the White House Office of Intergovernmental Affairs engages directly with state, local, and tribal leaders.

In Federalism: Opportunities Exist to Improve Coordination and Consultation with State and Local Governments, the GAO (2020) reports:

“OMB could not identify any oversight steps it had taken to ensure federal agencies’ designation of a federalism official consistent with its guidance for implementation of the executive order. Taking steps to ensure federal agencies’ designation of a federalism official could help ensure that agencies have an accountable process in place for appropriately consulting with state and local governments.”

Partnerships for Public Service, in its Roadmap for Renewing our Federal Government, notes:

“…the federal government frequently operates in organizational silos that make it hard to work across jurisdictional boundaries to leverage resources and coordinate efforts to serve the public more effectively. To respond to current and future challenges, there must be increased coordination across government and sectors… [with reference to the GAO report] …ten of 24 surveyed federal agencies reported that they do not have a designated employee responsible for ensuring compliance with a presidential executive order that requires agencies to consult with state and local governments when making rules that will directly affect them.”

The GAO report (2020) is the most recent, so it is difficult to know if the 24 agencies addressed in the Chief Financial Officers (CFO) Act of 1990 have refined their approaches to these intergovernmental and federalism functions. For now, agency’s public-facing organization charts are likely the most recent information available, with web-based information contingent on regular updates. Another possibility is agencies’ Performance and Accountability Reports (GAO FY 2020, for example), as they provide a potential way to locate current information regarding organizational structures — and efforts to realize functional federalism.

Lindsay Laferriere, writing for the Partnerships for Public Service Federal Innovation Council, notes:

“Agencies typically define problems and solutions in terms that fit within existing organizational missions and authorities. However, the responsibility to solve a societal problem does not fall on one agency. As a result, agencies must work to solve challenges simultaneously and often together, focusing on the problem first rather than the existing policies, processes and structures that affect possible solutions. In short, the problems should drive the policy tools, not the reverse.” (July 29, 2021)

Laferriere explores how the federal government can use research and development (R&D) to solve our biggest societal challenges. Laferriere observes, “Rarely does government apply R&D principles to invest in developing scalable and transformative new, improved and more affordable service models.” As a solution, Laferriere proposes:

“Government could begin to change this trend in two ways. First, federal leaders could create a new R&D agency or subagency modeled after the Defense Advanced Research Projects Agency, or DARPA, which manages research and development initiatives focused on national security… Second, government could also create better innovation systems and interconnected relationships to enable entrepreneurs to easily pivot from one problem to another — a typical R&D strategy.”

Sister agencies can harness DARPA’s wisdom and expertise to educate and empower other federal and state agencies in their pursuit of advancing elder justice.

Council meetings, one example  

Elder justice efforts exemplify proactive federal, state, and community partnerships to achieve shared goals. Involvement with the non-profit and private sectors, states, and citizens augment their achievements.

In the spirit of functional federalism, the Council’s fall 2022 meeting demonstrated how states and the federal government can partner successfully to address guardianship. Efforts were informed by federal grants to states. For example, “ACL is awarding $1,999,016 over three years to assess and implement improvements in the handling of the adult guardianship and conservatorship process by state courts.” (September 28, 2022)

Coordination among federal agencies and sister states is aided, exemplified, and facilitated by the Council. The Council’s November 15, 2022, meeting (agenda, video, transcript, and remarks posted here) was convened by delegate chair Alison Barkoff, ACL acting administrator and assistant secretary for aging. Expert testimony began with a panel that included APS staff from two states who addressed the Impact of CRRSA and ARPA Funds on APS [Adult Protective Services] Program Investment: Keziel Wold, Associate Commissioner, Texas Department of Family and Protective Services (cue 14:46–25:45) and Tim Jackson, APS Administrator of the Missouri Department of Health & Senior Services (25:45–33:30). State-informed testimony was followed by a broad scope, national overview by Bill Benson, national policy advisor for the National Adult Protective Services Association (NAPSA), who addressed National Innovations in APS by NAPSA Membership (33:30- 44:03), which was followed by discussion (44:03–1:03:47). The second panel, which addressed the Significance of the Elder Justice Act, included Heather Mutchie of Purdue University, who presented a granular, data-informed EJCC Research Testimonial (1:03:47–1:14:53) in collaboration with colleague Marian Liuand NAPSA. Efforts were aided by states and territories who voluntarily provided their plans. Next, The Full Picture of the Elder Justice Act was presented by Bob Blancato, national coordinator of the Elder Justice Coalition (1:14:53–1:24:12). Beyond the subject-specific content, such meetings exemplify how the Council may choose to convene a future meeting to address guardianship.

The federal gvernment’s Cross-Agency Priority Goals aim to achieve greater collaboration to address critical needs and realize defined objectives. Performance measurement and management, informed by insights from the Office of Management and Budget (OMB) and the General Accounting Office (GAO), will be central to this initiative.

With a focus on priority goals and through Council coordination, federal agencies, states, and communities can work in concert, especially in the context of networks.

This essay was respectfully submitted to the Administration for Community Living, representing the Elder Justice Coordinating Council, in response to the Federal Register Notice (Vol. 89, №58/Monday, March 25, 2024, Notices 20661) “Request for Information: Elder Justice Coordinating Council Priorities.” April 24, 2024.