Human Services

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Testimony to the New York State Legislature Joint Hearings of the Senate Finance and Assembly Ways & Means Committees 2024-2025 Executive Budget Topic: Human Services Submitted by: Karen L. Nicolson, Esq., CEO Thank you, Chair Krueger and Chair Weinstein, for the opportunity to submit this testimony to the Joint Legislative Budget Hearing on Public Protection. We present this written testimony on behalf of Karen Nicolson, CEO of the Center for Elder Law & Justice. The Center for Elder Law & Justice (“CELJ”) has been serving the Western New York region for over 40 years, providing free civil legal services to older adults, persons with disabilities, and low- income families. CELJ’s primary goal is to use the legal system to assure that individuals may live independently and with dignity. CELJ also advocates for policy and systems change, particularly in the areas of housing, elder abuse prevention, nursing home reform, and consumer protection. Currently CELJ provides full legal representation in ten counties of Western New York. CELJ’s Free Senior Legal Advice Helpline is open to all of New York State. CELJ operates a central office in downtown Buffalo, with three additional offices in Cattaraugus, Chautauqua, and Niagara counties.

We urge you to take the following positions regarding issues before this committee: • • • • • • •

Support: HMH Part W Creation of Interagency Elder Justice Council Support: TED Part II Financial Exploitation Prevention Support: Enhanced Multi-Disciplinary Teams Support: Continued Investment in the Lifespan Billpayer Program Allocate $8 million in the final budget to the Office of Children and Families to Establish a Kinship Legal Network Support: Governor’s Allocation of $120 Million for Crime Victims Programs Reject: the Sweep of IOLA Funds into the General Fund

Support: HMH Part W Creation of Interagency Elder Justice Council CELJ supports the creation of an Interagency Elder Justice Council. Abusers thrive when there is inadequate support for older adults. Lack of coordination and lack of a concerted effort across agencies and disciplines to address and prevent abuse slows responses and propagates the cycle of abuse. Requiring state agencies to work together, develop a report and present it to the Governor will prevent unintended duplication of services and identify areas that can be strengthened to prevent abuse. While CELJ supports this approach, we also strongly believe that the council

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should not be limited to only state agencies. The legislation indicates that in addition to the council members, the council shall “request input from stakeholders, advocates, experts, and coalitions.”

CELJ strongly believes that the council should not only seek input from the aforementioned entities, but also that there must be space on the interagency council for membership from these stakeholders, advocates, experts and coalitions. In addition, the interagency council must operate with, and support the efforts of, the Lifespan of Greater Rochester, Inc. (Lifespan of Rochester) Enhanced Multi-Disciplinary Teams (EMDTs). It is imperative that the interagency council does not supplant the work of EMDTs. The reality is that while most victims will interact with state agencies, or entities subject to regulation by state agencies, many of the current services offered to victims of Elder Abuse are provided by advocates adjacent to, but not within, the state system. For example, CELJ provides legal representation to hundreds of victims of Elder Abuse annually through our work supported by the Office of Victims Services. Our perspective as a civil legal services provider, helping clients navigate a complex and at times disjointed legal and social system, would certainly help inform on an ongoing basis any effort by the State to prevent and combat Elder Abuse and exploitation.

We support this effort to bring Elder Justice to the forefront of individual state agencies, but ask that stakeholders, advocates, experts and coalitions have an equal seat at the table so that our input and feedback is considered in equal measure.

Support: TED Part II Financial Exploitation Prevention CELJ stands in support for this proposed legislation which would amend the general business law by adding a new section 352-m and the banking law by adding a new section 4-d and amending Section 473 of the social services law by adding a new subdivision 5-a and amending paragraph (g) of subdivision 6 of section 473 to update the definitions of financial exploitation. Amending the existing laws by allowing for transaction holds and sharing of certain records will help prevent sometimes devastating financial losses to at risk adults and aid in efforts to stop financial exploitation. Unfortunately, when funds are taken from adults as the result of financial exploitation, recovering those funds is slow, difficult, and most often the victim does not see a full return of their money. This is a common scenario we encounter at CELJ, when the abuser who has taken the funds is a professional scammer who lives out of the country and the funds are simply not recoverable. It also occurs when a Power of Attorney takes and then squanders the funds, making collection impossible. Removing barriers to transaction holds, which this proposed legislation seeks to do, will prevent additional losses as the concern is investigated and dealt with accordingly.

With all the ways to move funds today, from online banking to apps like Cash App and Venmo, abusers have a myriad of ways to improperly access bank funds or coerce vulnerable adults to send payments out of their accounts. This proposed legislation will allow for a pause on suspicious behavior, providing time for an investigation before all savings lost. The legislation would require banks to place transaction holds at the request of APS, and/or Law Enforcement, and allow banking officials to place transaction holds on their own (with the protection of civil immunity increases protections for consumers). The initial fifteen business day hold required in the proposed legislation gives time for the kind of interventions which can protect these eligible adults such as the revocation of a Power of Attorney document.

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There are two edits to the proposed language as written that CELJ would support. First, the definition of “Eligible Adult” should be modified from “an individual who is: sixty-five years of age or older; or at least the age of eighteen and who, because of mental or physical impairment, is unable to manage their own resources or protect themselves from financial exploitation without assistance from others” to “an individual who is: at least the age of eighteen and who, because of mental or physical impairment, is unable to manage their own resources or protect themselves from financial exploitation without assistance from others.”

The current definition is redundant in that it specifies adults over sixty-five or adults who are at least eighteen years of age. The element which is determinative of making one an eligible adult is not age, but presence of mental or physical impairment which renders the individual unable to manage their own resources or protect themselves from financial exploitation. That, as the proposed legislation correctly addresses, can happen at any age, even if older adults tend to be more vulnerable. There is no need for the definition to include sixty-five years of age.

The second would be modifying the definition of “Financial Exploitation” subsection ii by removing “including through the use of a power of attorney, guardianship or any other authority” so the definition would read: “Financial Exploitation” means: (i) (ii)

the improper use of an eligible adult's funds, property, income or assets; or any act or omission by a person regarding an eligible adult to: (A) obtain control, through deception, intimidation, threats or undue influence over the adult's money, assets, income or property; or (B) convert the adult's money, assets, income or property

While it is true that those in positions of authority like Power of Attorney or Guardians have unique access and a higher level of responsibility to the eligible adults, CELJ often sees exploitation by individuals who do not have a legal authority. For example, a scammer manipulating an eligible adult through a romance scam may not have authority, but they certainly are exploiting the eligible adult financially for their own benefit. Financial exploitation is almost always an abuse of trust, but that trust is not necessarily only found in persons who are acting as Power of Attorney or Guardian.

Support: Enhanced Multi-Disciplinary Teams CELJ stands fully behind the enhanced support of EMDTs. As both a coordinator and legal services provider to teams in Western New York and the Southern Tier (through our partnership with Lifespan of Rochester), we see firsthand how the teams not only help individual victims on a case by case basis, but lay the groundwork for better outcomes for future cases by creating a strong collaborative effort amongst different disciplines that supports advocates and the community. We see the success of EMDTs and the positive impact they continue to have on our service area. These teams are victim focused, and work to empower victims of crime by working toward their definition of justice. Not all victims wish for justice to involve criminal prosecution of their abuser; in those circumstances the team can and does offer civil legal help so that the abuser is still held 3

accountable. When a victim is carried by the team, each member is working together, working towards justice for that victim, and it means that the individual won’t fall through the cracks. The bonds formed between team members go beyond the immediate cases brought to the team, helping to tear down the silos that keep agencies walled off and allow abusers to escape unpunished.

CELJ has found that for every case brought to the EMDT, we have dozens of other clients who benefit from the bonds forged at those meetings. Information shared on trainings, agency updates, shared concerns help beyond the meetings. Access to trainings and presentations at meetings are crucial for ensuring that all victims are able to have their needs met, and without the EMDTs there would be a void in this service area.

Support: Continued Investment in the Lifespan Billpayer Program CELJ supports the State’s continued investment in the Lifespan of Rochester for expanding the bill payer programs (Financial Management Program) for older adults. CELJ contracts with Lifespan to operate the Financial Management Program in Niagara and Erie counties and are working to expand to other counties. The Financial Management Program links volunteers with older adults who need help with budgeting, bill paying, managing debt, and other financial wellness services. Volunteers meet with their assigned older adult approximately once per month in their homes to review their mail, their bills, and discuss any other budgeting concerns.

The Financial Management Program bolsters the economic security of older adults, a key component to age with independence and dignity, and connects older adults with other assistance, including free civil legal services.

For example, we recently assisted a client, who had to take over guardianship of her three grandchildren because her daughter is in a coma, and was struggling to manage her finances.

Her brother, now deceased, used to help manage her finances. After collaborating with a volunteer for several months, the client now has a better handle on what money is coming in and what bills she must pay. The program has helped her access SNAP benefits, receive home delivered meals, resolve past due medical bills, and helped her access a program that will allow her to receive care without paying any deductibles or copays when her care is provided through our local Catholic Health system. Her volunteer is currently helping her utilize credit counseling to consolidate her credit card debt and raise her credit score. She has stated to her volunteer that she is extremely happy with the program and feels as though she is learning a lot about how to take care of her own finances.

Allocate $8 million in the Final Budget to the Office of Children and Families to Establish a Kinship Legal Network Children who are in the care of family have improved short and long-term outcomes than when they are in formal foster care with non-relatives. They experience less trauma, have fewer placement challenges, maintain sibling and family contacts, have better mental health outcomes, stay in their communities, and keep cultural connections. 1 In 2018, there were over 200,000 https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/child_la w_practice/vol-36/july-aug-2017/kinship-care-is-better-for-children-and-families/ 1

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children in New York State who were in kinship care. 2 Kinship caregivers are 93% female, 23% Black, and 67% have a household income of less than $50,000. 3 The vast majority of kinship care arrangements occur outside of the formal foster care system.

Many of these families care for children informally; some establish formal rights through orders of custody or guardianship. A portion of these families receive placement of children by the local department of social services (LDSS) when the children are removed from their parents pursuant to a neglect or abuse filing. 4 Kin who receive placement of children through the child welfare system have the opportunity to certify as foster parents. This affords them significantly greater benefits to use for the care of the children 5 and additional permanency outcomes, such as adoption.

Only a few jurisdictions in New York State have civil legal service providers with grants allowing them to provide the valuable service of no-cost representation to kinship caregivers. Parents, persons with an order of custody, and persons who are subjects of neglect and abuse petitions have a constitutional right to have counsel appointed to them if they cannot afford such. Kinship caregivers are not afforded this right.

In an effort to keep children out of the foster care system where there is a suitable relative available, the Kinship Legal Assistance Network will partner with the Kinship Navigator, the Empire Justice Center, CELJ and Make the Road NY to develop a model that can be replicated in every county in New York State. Research shows that kinship care has better outcomes for children than foster care and every child in New York State should have the opportunity to thrive with family, rather than languish in foster care.

Support: Governor’s Allocation of $120 Million for Crime Victims Programs The New York Legal Services Coalition (NYLSC) has joined forces with the New York State Coalition against Domestic Violence (NYSCAD) due to our shared concern about the future of services to victims of crime, in light of the reduced funding from the NY Office of Crime Victims, which, in turn, is financed by the federal Crime Victims Fund (CVF) through the Victims of Crime Act (VOCA). Every state in the nation relies on VOCA funding and New York is no different.

Every year, tens of thousands of New Yorkers rely on these services to enhance their safety, receive legal assistance, recover from trauma, find housing and employment, and obtain justice from the court system.

See, “Supporting Grandparents Raising Grandchildren (SGRG) Act, Initial Report to Congress, (November 2021), page 2, available at: https://acl.gov/SGRG/report.

3 See https://www.albany.edu/chsr/Publications/Kinship%20Needs%20Brief%20Elee%20Final.pdf Of note: one of the grants that allows CELJ to represent kinship caregivers requires clients to be at or below 200% of the federal poverty level; less than twenty (20) clients per year are rejected because they are over the income restrictions 4 NYS Fam. Ct. Act § 1017 5 A non-parent caring for a child qualifies for a grant through the Temporary Assistance to Needy Families program.

A family caring for one child receives about $400 per month; each additional child will receive about $130 per month. A kinship caregiver caring for a child in foster care receives between $932 and $3,711 per child, depending on the child’s age, needs, and whether they reside downstate or upstate. https://ocfs.ny.gov/main/rates/assets/docs/rates/fc-b/FC-Board-Rates-2023Jul01-2024Mar31.pdf 2

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Most crime victims programs, including programs for domestic violence, elder abuse and shelters, rely upon an appropriation to the states from the Crime Victims Fund (CVF), which is funded by monetary penalties associated with federal criminal convictions However, funding that came through deposits made into the CVF had decreased dramatically, leading to a massive shortfall due to the use of deferred prosecution and non-prosecution agreements by federal prosecutors.

Although this structural challenge was remedied in 2021, due to national advocacy by domestic violence programs, with the passage the VOCA Fix to Sustain the Crime Victims Fund Act of 2021 (“VOCA Fix”), it has not generated sufficient funding to resolve the CVF’s historically low balance. New York’s VOCA grant has declined $121.6 million, or 61%, in the last five years. As a result, New York’s domestic violence and legal services programs have had significant cuts to their programming and have been told that the NY Office of Victim Services might not be able to honor the last year of our three-year contracts. CELJ receives this funding to support our Elder Abuse Prevention Program.

As our population of older adults grows, so too does the number of older Americans who are vulnerable to elder domestic violence, also referred to as elder abuse. The National Institute of Justice has defined elder abuse as “intentional actions that cause harm or create a serious risk of harm to a vulnerable elder by a caregiver or other person who stands in a trust relationship to the elder, or failure by a caregiver to satisfy the elder’s basic needs or to protect the elder from harm.” 6 Elder abuse includes physical, emotional, and sexual abuse, as well as financial exploitation, neglect, and abandonment, and perpetrators may include family members or caregivers in home or facility settings. 7 In almost 60% of elder abuse and neglect incidents, the perpetrator is a family member. Two thirds of perpetrators are adult children or spouses. 8 The consequences of elder abuse are even more troubling than the incidence rates. Victims of elder abuse are three times more likely to be hospitalized, have an increased use of emergency rooms, and have a significantly higher mortality rate. 9 They are also more likely to rely on government programs due to financial losses, but may actually be denied such assistance due the financial exploitation itself. 10 Moreover, survivors of abuse are more likely to need legal and social Bonnie, R.J., Wallace, R.B., eds. (2003). Elder Mistreatment: Abuse, Neglect, and Exploitation in an Aging America, 39. Elder Abuse, National Institute of Justice, Office of Justice Programs. Available at https://www.nij.gov/topics/crime/elder-abuse/Pages/welcome.aspx.

7 National Council on Aging, Elder Abuse Facts, 2019. Available at https://www.ncoa.org/public-policyaction/elder-justice/elder-abuse-facts/.

8 National Council on Aging, Elder Abuse Facts, 2019. Available at https://www.ncoa.org/public-policyaction/elder-justice/elder-abuse-facts/.

9 Dong, E.Q., & Simon, M.A. (2013). Elder abuse as a risk factor for hospitalization in older persons. JAMA Internal Medicine, 173(10), 911-917. Doi: 10.1001/jamainternmed.2013.238; and Lachs, M.S., Williams, C.S., Obrien, S., Hurst, L., Kossack, A., Siegal, A., & Tinetti, M.S. (1997). ED use by older victims of family violence. Annals of Emergency Medicine, 30(4), 448-454 doi: http://dx.doi.org/10/1016/S0196-0644(97)70003-9; Baker, M.W., LaCroix, A.Z., Wu, C.Y., Cochran, B.B., Wallace, R., & Woods, N.F. (2009). Mortality risk associated with physical and verbal abuse in women aged 50 to 79. Journal of the American Geriatrics Society, 57(10), 1799-1809.

Doi: 10.1111/j.1532-5415.2009.02429.x 10 National Adult Protective Services Association, Elder Financial Exploitation. Nearly one in ten financial abuse victims will turn to Medicaid as a direct result of their own monies being stolen from them. Available at http://www.napsa-now.org/policy-advocacy/exploitation/. Goldberg, J., (2017). Elder Financial Abuse and Medicaid Denials, Justice in Aging, National Center on Law & Elder Rights. Available at https://ncler.acl.gov/pdf/ElderFinancial-Abuse-and-Medicaid-Denials.pdf.

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assistance, both to deal with the variety of legal issues that can stem from the underlying abuse, and to prevent further abuse from occurring in the future.

The legals services and domestic violence prevention programs have been strongly advocating with OCFS to find a state solution to the imminent loss of funding and we are grateful to the Governor for adding state resources to ensure the safety of victims.

Reject: the $100 Million Sweep of the IOLA Fund into the General Fund CELJ is deeply concerned about the unprecedented Executive Budget proposal to sweep $100 million from the Interest on Lawyers Account to the general fund. IOLA funding not only supports essential services that help ow-income New Yorkers obtain help with civil legal problems affecting their most basic needs, such as food, shelter, jobs and access to health care, it is a critical source of infrastructure dollars that the civil legal services community is in desperate need of. These funds are accumulated for distribution at the next round of grants to civil legal services providers, which are intended to assist in addressing the dual crises of an estimated $1 billion civil justice gap and community wide salaries that are at least 30% below counterparts in similar public interest and public sector fields.

New York’s IOLA Fund was established in 1983, under New York State Finance Law (§ 97-v).

With the recognition of the vast need to fund civil legal services, these funds were created for the sole purpose of funding civil legal assistance. The legislative intent was as follows: Legislative findings and declaration. The legislature finds that the availability of civil legal services to poor persons is essential to the due administration of justice. The purpose of this act is to provide funding for providers of civil legal services (emphasis added) in order to ensure effective access to the judicial system for all citizens of the state to extent pc within the means available for that purpose.

The Interest on Lawyers Account (IOLA) fund established by this act will be authorized to receive funds from any source for disbursement to nonprofit legal services providers for charitable purposes, including the delivery of legal services in civil matter to poor persons.

The IOLA fund will receive the interest earned by qualified client funds held by attorneys in unsegregated interest-bearing accounts designated IOLA accounts. Funds which qualify for deposit in IOLA accounts are those which, in current practice, attorneys do not deposit in segregated accounts because insufficient interest would be earned to justify the expense of administration. When pooled in an IOLA account, funds which would be unproductive as individual accounts will generate income, the beneficial interest in which will be held by the IOLA fund exclusively for charitable purposes (emphasis added). 11 Even during the most extreme financial crises in the past, IOLA funds have never been swept or used for any other purpose than to provide civil legal services to low-income New Yorkers. Now is not the time to divert or undermine the purpose of this critical resource.

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Chapter 659 of the Laws of 1983.

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IOLA distributes the accumulated interest dollars through competitive requests for proposals issued every two years. IOLA also collects and distributes outcomes from the services. In 2023, IOLA grantees closed over 307,000 client cases, benefiting over 639,000 low-income New Yorkers. The top five areas of service from 2023 are housing, immigration, family law, education and health.

Since its inception, interest rates have fluctuated wildly, in the early days, this resulted in wild swings in funding for civil legal services, causing uncertainty and financial crisis for providers. To guard against this, IOLA rightly shifted to a “rainy day” approach that creates a reserve of funds that can be used to avoid cuts in funding and thus civil legal services during periods where interest rates and thus earnings are low.

Furthermore, this attempted sweep could not come at a worse time. The civil legal services community faces a complex crisis. The value of and need for civil legal services has never been more front of mind in our state. Recognition that there is no civil Gideon for folks facing bankruptcy, loss of home, healthcare – the essentials of life – has grown among the public and policy makers as a result of educational efforts. The Access to Justice Gap, the space between the civil legal needs of low-income New Yorkers and the resources available to meet those needs has now been documented and assessed at a $1 billion over what is currently in the system. As noted in the Permanent Commission on Access to Justice’s 2023 report to the Chief Judge, “the Permanent Commission recently adopted its Funding Working Group’s report finding that between $842 million and $1 billion is a realistic estimate of the additional annual funding, over and above existing funding, to close the justice gap.” 12 Notably, this analysis focuses only on those earning up to 250% of poverty and does not include immigration related legal services.

In addition, IOLA has just launched a multi-year Justice Infrastructure project that will assist our under-resourced community with improving the delivery of services and create efficiencies across programs. The accumulated funds are what made it possible for the IOLA Fund to pursue this project. By sweeping 100 million from the IOLA Fund, the Governor is disrupting a shared vision for pay parity and infrastructure investment between IOLA and the civil legal services programs they fund.

Demand and need for our community’s services is vast, but the resources are not there, leaving far too many New Yorkers facing life altering legal junctures without an attorney who understands the process. At the same time, salaries, in comparison to any other government funded attorney services are so low, it is now Moreover, our extremely low salaries are interfering with our Diversity, Inclusion and Equity (DEI) efforts. impossible to compete with state, county and city positions. CELJ is not an attractive option to attorneys of color and we have been unable to retain any diverse attorneys for longer than three years. Exit interviews with former employees of color indicate that while the work and culture of a legal services job is incredibly satisfying, the salaries at government jobs (which also have federal loan forgiveness) simply make the option of staying at CELJ untenable.

Permanent Commission on Access to Justice’s 2023 report to the Chief Judge, November 2023. https://www.nycourts.gov/LegacyPDFS/accesstojusticecommission/23_ATJ-Comission_Report.pdf 12

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Moreover, with the well-deserved and long overdue increase in rates for assigned counsel in criminal matters, civil legal services salaries have fallen even further behind. CELJ attorneys start at $60,000, or $28.85 per hour. Compare that to the Assigned Counsel rate of $158 per hour.

We need the legislature’s support in addressing the needs of our client community through rejecting the proposal in the executive budget to sweep funding from IOLA. These funds, along with OCA’s efforts are essential to our community’s ability to make gains against the justice gap. *** Thank you for the opportunity to submit this testimony. CELJ is available to answer any questions and provide additional information.

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