Elder Crimes: Federal Prosecutions and the Elder Justice Initiative
Posted on by Michael Lowe.
According to federal and state statute, anyone age 60 years or older is legally considered to be elderly. See, 42 U.S.C. § 1397j(5) and Texas Human Resources Code §102.001(5). In some Texas criminal laws, elderly is defined as anyone who is age 65 or older.
It is easy to imagine an elder as a grey-haired grandmother sharing cherished family recipes or a grandfather who is always ready to take the grandkids fishing. But in today’s society the “elderly” may not fit into stereotypes.
Consider this: 60-year-old celebrities like Tom Cruise, Paula Abdul, Jon Bon Jovi, and Wesley Snipes are legally “elders” this year according to statutory definition. Simon Cowell, Doctor Oz, Damon Wayans, and Nigella Lawson have been elders according to the statutes for two years now. Spike Lee, Gloria Estefan, and Princess Caroline of Monaco have all reached the age of 65.
These celebrities don’t seem to fit the mold, do they? Which demonstrates how it can be a great shock for someone to find themselves being investigated or accused of serious criminal acts involving an elder victim by the authorities.
They may not consider themselves to have undertaken any activities that are illegal, immoral, or even suspect. They may not look upon the alleged victim as being elderly or a senior citizen. To the accused, the potential charges should be viewed as being without merit and perhaps spurred by disgruntled relatives or others with an ax to grind.
Nevertheless, from the perspective of law enforcement authorities here in Texas, elder crimes are serious and rampant. So much so that special federal organizations have been built specifically to target and prosecute elder crime and new state laws have recently been passed.
Federal Perspective: Elder Crime is “Despicable”
The federal perspective to these criminal cases is pretty straightforward. The Justice Department views elder crimes like fraud as “despicable.” Accordingly, criminal targeting of older Americans has resulted in special federal task forces and agency departments dedicated to the investigation and prosecution of elder victimization in its various forms.
Of importance is the federal Elder Justice Initiative within the Justice Department. Its defined mission is “…to support and coordinate the Department’s enforcement and programmatic efforts to combat elder abuse, neglect and financial fraud and scams that target our nation’s older adults.”
It’s a big operation. The federal government’s focus on “elder justice” is not just state-wide or regional; these federal elder crime pursuits can extend to a national or even international scope. The ability of federal investigations to cross national borders is particularly important here in Texas.
Also of importance is the ability of federal prosecutions in these elder crime matters to bring charges not only against individuals but also business or corporate entities (e.g., a nursing home or incorporated care center). More than one defendant may face charges in an elder crime matter.
The Distinction Between Civil Elder Claims vs. Elder Crime
Crimes against the elderly can be based upon state statute or federal law. Significant felony punishments (time behind bars; restitution; fines; etc.) can be involved upon conviction. For more on various felony punishments, read our discussions in: Restitution Under Federal and Texas Law: Criminal Defense Overview; and Loss Amounts in Federal Sentences: Calculating Economic and Financial Losses in Federal Felonies.
These crimes take several different forms, from physical abuse or neglect of the elder; to financial exploitation of the victim’s property or assets; or the misuse of the elder’s property while acting as caretaker (whether a relative or not).
Of course, elder crime investigations will not form the basis of court cases that seek monetary damages. Alongside these potential criminal charges are separate legal damage claims that can be filed on behalf of the victim based upon elder abuse or neglect.
These cases will move independently of the criminal matters in the civil justice system, with its lower burden of proof and less stringent rules of evidence. For more on these civil lawsuits, read our earlier discussion in Financial Exploitation Of Elderly: Criminal Acts And Civil Injury Claims.
What is Elder Crime?
There is no one single, specific, and overriding elder crime law that is the basis of a federal prosecution or state charge. Instead, the elder crime investigation may result in a number of criminal charges or counts based upon various felonies, such as fraud; theft; and assault.
Special statutes have been passed both by Congress, the Texas Legislature, and other statehouses around the country that seek to protect elders as a special category of crime victim. These laws provide protections for elders who have been abandoned, neglected, or abused (physically; psychologically; sexually) as well as those who have suffered financial exploitation.
The Elder Justice Act of 2009: Federal Protections for Elders Aged 60 Years or Older
In 2009, the Elder Justice Act (“EJA”) was passed by Congress for the purpose of promoting “elder justice” which is defined within the federal statute as a dedication to “…prevent, detect, treat, intervene in, and prosecute elder abuse, neglect and exploitation [and] protect elders with diminished capacity while maximizing their autonomy.”
Texas Penal Code 22.04: Violence and Elders Over 65 Years of Age
Certain acts of violence against elders over the age of 65 years are defined as criminal acts under Texas Penal Code §22.04. Under this state statute, the crime of “injury to the elderly” is committed if the accused is shown to have intentionally, knowingly, recklessly, or with criminal negligence by act; or intentionally, knowingly, recklessly by omission caused (1) serious bodily injury; (2) serious mental deficiency, impairment, or injury, or (3) bodily injury.
2021 Texas Elder Crime Law: Financial Exploitation of Those Over 65 Years Old
Texas Penal Code §32.55 became effective law on September 1, 2021, making it a crime in Texas to commit “financial abuse of elderly individual.” Here, as with the existing Texas law regarding violence against elders, elders are considered to be those adults 65 years of age or older.
The new statute institutes either misdemeanor or felony punishment for the “wrongful taking, appropriation, obtaining, retention, or use of, or assisting in the wrongful taking, appropriation, obtaining, retention, or use of, money or other property of another person by any means, including by exerting undue influence.”
The law includes financial exploitation, which is defined as “the wrongful taking, appropriation, obtaining, retention, or use of money or other property of another person by a person who has a relationship of confidence or trust with the other person. Financial exploitation may involve coercion, manipulation, threats, intimidation, misrepresentation, or the exerting of undue influence.”
Correlated with this statute is Texas Penal Code § 32.45, entitled “Misapplication Of Fiduciary Property Or Property Of Financial Institution.” This criminal law targets those acting as a fiduciary for the property of another which is a common scenario for the elderly, where relatives or caretakers may have powers of attorney or other signatory powers to act on behalf of the older adult. If applicable, prosecutors can use this Texas criminal statute to seek an “enhancement” of the punishment sought.
If the offense was allegedly committed against someone 65 years old or older, the charge enhancement boosts sentencing with an increase to the next higher statutory punishment category. This can result in someone facing felony of the first-degree charges, which can carry a 99-year prison term.
- For more, read our discussion in: Misapplication Of Fiduciary Property By Trustees, Guardians, Executors, Administrators, Managers In Texas: Fiduciary Criminal Charges.
Elder Abuse Defined
Collectively, crimes of a financial or physical nature against older adults are considered “elder abuse.” As explained by the Government Accountability Office (“GAO”), this involves:
…the physical, sexual, psychological, or financial abuse or neglect of older adults who may be unable to defend or fend for themselves. Perpetrators of elder abuse can include strangers, family members, caregivers, or guardians appointed by a judge. As the size of the older population grows, the incidence of elder abuse is expected to increase, further straining the social service, health care, and criminal justice systems charged with protecting this population.
Both the Justice Department and the Department of Health and Human Services (“HHS”) spearhead the federal government’s efforts to protect elders from these crimes. The DOJ is responsible for the investigation and prosecution of federal elder abuse crimes. HHS undertakes the task of overseeing adult protective services across the country as well as the health and welfare of those receiving federal Medicare or Medicaid coverage.
Federal Elder Crime Focus: Financial Scams
As the GAO explains, currently the strongest elder crime laws are found in the state statutes here in Texas. The federal government, through the Justice Department and its Elder Justice Initiative, usually come on board in an elder crime case when the matter becomes complex, especially insofar as it involves money. The GAO studies confirm that the federal focus has been on elder crime “financial scams.”
These can include big dollar Medicare or Medicaid fraud cases. These federal elder crime investigations may cross international borders. The biggest federal elder crime prosecutions target:
- Lottery scams
- Romance scams
- Grandparent scams
- Tech support scams
- Internal Revenue Service Imposter scams
- Securities Fraud
- Health Care Fraud.
As one of the biggest Justice Department elder crime targets, allegations of fraud can involve large amounts of money with investigations that cross not only state lines but national borders. As the DOJ explains:
- The Department has aggressively investigated numerous transnational fraud schemes (e.g., Jamaican lottery and technical-support scams), bringing criminal and civil actions against hundreds of defendants from around the globe who victimized millions of Americans.
- The Department is actively pursuing nursing homes that are denying Medicare and Medicaid beneficiaries essential nursing services to which they are entitled.
- And the Department is committed to prosecuting a wide array of CARES Act and COVID-19 fraud schemes.
Within the DOJ, its Consumer Protection Branch is assigned the job of investigating and prosecuting elder fraud crimes. It does so in tandem with the DOJ’s Transnational Elder Fraud Strike Force and the various regional offices of the United States Attorney General and federal law enforcement agencies with a focus on “scams run by transnational criminal organizations.”
As part of its elder crime work, the DOJ Consumer Protection Branch coordinates with agencies like the U.S. Postal Inspection Service, the Federal Bureau of Investigation (“FBI”); the Department of Homeland Security; the Federal Trade Commission, and FinCEN.
Securities Fraud and Wire Fraud as an Elder Crime
There are specific federal laws designed to combat securities (stock) fraud as well as mail and wire fraud. When victims of these alleged crimes are over the age of 60 years, then the case becomes an elder crime.
A recent example from the Elder Justice Initiative of this type of investment fraud comes just last week as a 61-year-old stockbroker was sentenced to 78 months in a federal prison and ordered to pay $3,948,835.00 in restitution for one count of securities fraud; one count of conspiracy to commit wire fraud; and one count of filing a false tax return. In sentencing, the stockbroker pled guilty to lying to elder clients in order to entice them into investing in construction loans, after which he kept the money.
- For more, read our discussion Things to Know about Wire Fraud Today: It’s a Big Deal.
Health Care Fraud as an Elder Crime
Corporate entities together with management or members of the board of directors can come into the sights of the Elder Justice Initiative, as well. Nursing homes, physicians, care facilities, clinics, and hospitals serving the needs of those age 60+ may be investigated or accused of elder crimes.
As an example, last week the 79-year-old owner of an assisted living facility was sentenced to two (2) years in a federal prison for health care fraud. She was found to have used her role as representative payee for several elder adults to take, and spend, over $800,000 of their Social Security benefits.
- For more on health care fraud, read Health Care Fraud Defense: Arrests Based Upon Medicare, Medicaid, or TriCare Insurance Claims; Federal Crimes and Sentencing Guidelines: Health Care Fraud; and USA Today Investigation into Nursing Home Trust Fund Mismanagement Spurs Congressional Investigation: Expect More Texas Nursing Home Trust Fund Fraud Arrests Soon.
Conspiracy and RICO Charges as an Elder Crime
In large federal investigations, charges may extend from the standard elder crimes (e.g., fraud) to more complex felonies such as criminal conspiracies in violation of the Racketeer Influenced and Corrupt Organizations (RICO) Act. As one example, last year the DOJ’s Consumer Protection Branch successfully obtained a federal grand jury indictment against eight (8) people in California; Florida; and Arizona based upon an alleged racketeering conspiracy, called a “Grandparent Scam,” where thousands of dollars were paid by various elders to help grandchildren they were falsely told were in financial trouble and needed immediate help.
- For more on RICO, read Racketeering in Texas: Criminal Defense Against RICO Charges.
Fraud and Neglect Care in Nursing Homes as Elder Crimes
The Consumer Protection Branch has the responsibility as well to investigate and charge both individuals and business entities for criminal acts involving nursing home residents. This can involve felony fraud charges as well as felony crimes for “criminally inadequate” nursing home care.
The Need for Experienced Criminal Defense Representation for Elder Crime Charges
When someone is investigated, arrested, or charged with any type of elder crime, the accused must be ready to face the emotional stigma that comes with these types of cases. The social stigma alone can immediately impact professional relationships, business dealings, and financial wherewithal, as well as personal reputations and relationships. However, alongside that stigma comes the sometimes aggressive and passionate desire to prosecute these cases on the part of the AUSA.
Many federal prosecutors will be less keen on entering into plea bargains or negotiating reduced charges when an elder victim is involved, especially if the harm suffered by the over-60 victim is monetarily significant or physically severe.
Having an experienced criminal defense attorney advocating on behalf of defendants charged with elder crimes in federal court is very wise. These matters come with not only complex factual scenarios but an emotional and psychological aspect that must be considered by the criminal defense lawyer advocating on their client’s behalf.
For more, read:
- White Collar Crime: Indictments Of Texas Professionals
- The Early Part of a Texas Criminal Case in State or Federal Court
- Fraud Charges: Texas Criminal Defense Overview
- Doctor’s Risk of Arrest: Popular Bases for Texas Health Care Fraud Prosecutions.
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