Enacts the "elderly abuse protective act" to protect residents 62 years of age or older who suffer abuse or deprivation; requires reports to the commissioner of the office of children and family services of the possible necessity for protective services; specifies action by such commissioner upon receiving such report including evaluation, right of entry, and furnishing of protective services; specifies the authority of the office of children and family services with respect thereto and requires assistance of other agencies in the implementation thereof; provides for judicial and review action against caretakers who abuse elderly; creates statewide central register of elderly abuse; appropriates $600,000 to the office of children and family services.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1505
TITLE OF BILL:
An act to amend the social services law, in relation to elderly abuse
protective services; and making an appropriation therefor
PURPOSE OR GENERAL IDEA OF BILL:
Establishes a statewide system for and mandates the reporting of any
abuse, neglect, exploitation, or abandonment of an elderly person.
Requires an investigation by an appropriate department and, if
warranted, the forwarding of such investigative findings to the local
district attorney for criminal prosecution.
SUMMARY OF SPECIFIC PROVISIONS:
Amends Article 5 of the Social Services Law by adding a new Title 9.
This bill requires that any person with the responsibility of caring for
an elderly person or an elderly person's property, who has a reasonable
basis to believe that such elderly person is or has been abused,
neglected, exploited, or in need of protective services, must report
such information to either the Commissioner of the Office of Children
and Family Services, the Commissioner of the Office of Mental Health or
the Commissioner of OMRDD, depending on where the abuse took place; or
to the statewide central registry which is established by this legis-
lation. If such conduct is criminal in nature and not covered by one of
the above agencies, the report may be made to an appropriate law
This legislation further requires investigations of all such reports and
then to have the findings forwarded to the local district attorney if
criminal prosecution is warranted; imposes a $500 fine against any
person who is under a duty to report elderly abuse but fails to do so;
grants immunity from civil and criminal liability to any person who in
good faith makes a report pursuant to this law.
A person responsible for the care of an elderly person or an elderly
person's property may have a reasonable basis for believing that such
elderly person is or has been abused; neglected, exploited or abandoned
yet fails to report such abuse because they are under no duty to do so.
As a result, the elderly person, may be unable to help himself or
herself or are unaware that they have been or are being abused,
neglected, exploited or abandoned, or that protective services are
available and that they need not continue to suffer.
This legislation will ensure that there is a mechanism for reporting
abuse and providing the necessary protective services as well as ending
the abusive relationship.
PRIOR LEGISLATIVE HISTORY:
A.11034 of 2000; A.6227 of 2001-02; A.4639 of 2003-04; A.6735 of 2005-
06; A.4384 of 2007-08; A.5680 of 2009-10; A.4453 of 2011-12 A.5590 OF
2014 A.3743 OF 2016 A.3781 of 2017-18 A.3665 of 2019-20
FISCAL IMPLICATIONS TO STATE AND LOCAL GOVERNMENT:
The bill carries a State appropriation of $600,000.
120 days after enactment.
STATE OF NEW YORK
2021-2022 Regular Sessions
January 11, 2021
Introduced by M. of A. CARROLL, J. RIVERA, ABBATE, COLTON -- Multi-Spon-
sored by -- M. of A. GALEF, PEOPLES-STOKES -- read once and referred
to the Committee on Aging
AN ACT to amend the social services law, in relation to elderly abuse
protective services; and making an appropriation therefor
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Article 5 of the social services law is amended by adding a
2 new title 9 to read as follows:
3 TITLE 9
4 ELDERLY ABUSE PROTECTIVE ACT
5 Section 310. Declaration of purpose.
6 311. Definitions.
7 312. Reporting the possible necessity for protective services.
8 313. Action on reports.
9 314. Judicial review.
10 315. Authority of office of children and family services.
11 316. Assistance of other agencies.
12 317. Review.
13 318. Costs for providing protective services.
14 319. Abuse of duties of caretaker.
15 320. Statewide central register of elderly abuse.
16 § 310. Declaration of purpose. The legislature declares that no elder-
17 ly person in the state shall be subjected to abuse or deprivation.
18 Towards that end the "elderly abuse protective act" is enacted.
19 § 311. Definitions. For purposes of this title:
20 1. The term "elderly person" means any resident of the state who is
21 sixty-two years of age or older.
22 2. An elderly person shall be deemed to be "in need of protective
23 services" if such person is unable to perform or obtain services which
24 are necessary to maintain physical and mental health.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
 is old law to be omitted.
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1 3. The term "services which are necessary to maintain physical and
2 mental health" includes, but is not limited to, the provision of medical
3 care for physical and mental health needs, the relocation of an elderly
4 person to a facility or institution able to offer such care, assistance
5 in personal hygiene, food, clothing, adequately heated and ventilated
6 shelter, protection from health and safety hazards, protection from
7 maltreatment the result of which includes, but is not limited to, malnu-
8 trition, deprivation of necessities or physical punishment, and trans-
9 portation necessary to secure any of the above stated needs, except that
10 this term shall not include taking such person into custody without
11 consent except as provided in this title.
12 4. The term "protective services" means services provided by the state
13 as described in section four hundred seventy-three of this chapter,
14 which are necessary to prevent abuse, neglect, exploitation or abandon-
16 5. The term "abuse" includes but is not limited to any act or omission
17 which results in the infliction of physical pain or injury, or the
18 infliction of mental anguish that requires medical attention or the
19 deprivation by a caretaker of services which are necessary to maintain
20 physical or mental health.
21 6. The term "neglect" refers to an elderly person who is either living
22 alone and not able to provide for oneself the services which are neces-
23 sary to maintain physical and mental health or is not receiving the said
24 necessary services from the responsible caretaker.
25 7. The term "exploitation" means intentional economic exploitation of
26 an elderly person by means of theft, fraud, coercion or extortion.
27 8. The term "abandonment" refers to the desertion or wilful forsaking
28 of an elderly person by a caretaker or the foregoing of duties or the
29 withdrawal or neglect of duties and obligations owed an elderly person
30 by a caretaker or other person.
31 9. The term "caretaker" means a person who has the responsibility for
32 the care of an elderly person as a result of family relationship or who
33 has assumed the responsibility for the care of the elderly voluntarily,
34 by contract or by order of a court of competent jurisdiction.
35 § 312. Reporting the possible necessity for protective services. 1.
36 Any licensed physician or surgeon, any resident physician or intern in
37 any hospital in this state, whether or not so licensed, any registered
38 nurse, any adult care facility administrator, any person paid for caring
39 for a resident in an adult care facility, any staff person employed by
40 an adult care facility, any patient's advocate and any licensed practi-
41 cal nurse, medical examiner, dentist, osteopath, optometrist, chiroprac-
42 tor, podiatrist, social worker, coroner, clergyman, peace officer, phar-
43 macist or physical therapist or any attorney, accountant, trustee,
44 guardian, conservator or other person who has responsibility for prepar-
45 ing the tax records of an elderly person or a person who has a fiduciary
46 responsibility for any other action concerning the use or preservation
47 of an elderly adult's property, who has a reasonable basis to believe
48 that any elderly person has been abused, neglected, exploited or aban-
49 doned, or is in a condition which is the result of such abuse, neglect,
50 exploitation or abandonment, or who is in need of protective services,
51 or any attorney, accountant, trustee, guardian, conservator or other
52 person who has responsibility for preparing the tax records of an elder-
53 ly person or a person who has a fiduciary responsibility for any other
54 action concerning the use or retention of an elderly adult's property
55 who has a reasonable basis to believe that an elderly adult has been
A. 1505 3
1 exploited, shall within three calendar days report such information or
2 cause a report to be made in the following manner:
3 (a) if the abuse has occurred in a long-term care facility, except a
4 state mental hospital or a state development center, the report shall be
5 made to the commissioner of the office of children and family services;
6 (b) if the suspected or alleged abuse occurred in a state mental
7 health hospital or a state developmental center, the report shall be
8 made to the office of mental health or the office for people with devel-
9 opmental disabilities; or
10 (c) if the abuse has occurred any place other than one described in
11 paragraph (a) or (b) of this subdivision, the report shall be made to
12 the statewide central register.
13 Any person required to report under the provision of this section who
14 fails to make such report may be fined not more than five hundred
16 2. Such report shall contain the name and address of the involved
17 elderly person, information regarding the nature and extent of the
18 abuse, neglect, exploitation or abandonment, and any other information
19 which the reporter believes might be helpful in an investigation of the
20 case and the protection of such elderly person.
21 3. Any other person having reasonable cause to believe that an elderly
22 person is being, or has been abused, neglected, exploited or abandoned
23 or who is in need of protective services may report such information in
24 any reasonable manner to the commissioner of the office of children and
25 family services or his or her designee.
26 4. Any person who makes any report pursuant to this title, or who
27 testifies in any administrative or judicial proceeding arising from such
28 report shall be immune from any civil or criminal liability on account
29 of such report or testimony, except for liability for perjury, unless
30 such person was grossly negligent or acted in bad faith or with mali-
31 cious purpose.
32 5. Any physician, surgeon, or psychotherapist shall not be required to
33 file a report pursuant to this section if all the following conditions
34 are met:
35 (a) such physician, surgeon, or psychotherapist has been told by an
36 elder or dependent adult that he or she has experienced behavior consti-
37 tuting physical abuse, abandonment, isolation, financial abuse, or
39 (b) such physician, surgeon, or psychotherapist is not aware of any
40 independent evidence that corroborates the statement that abuse has
42 (c) the elder or dependent adult has been diagnosed with a mental
43 illness or dementia, or is the subject of a court ordered conservator-
44 ship because of mental illness or dementia; and
45 (d) in the exercise of clinical judgment, such physician, surgeon, or
46 psychotherapist reasonably believes that such abuse did not occur.
47 6. In a long-term care facility, a person who otherwise would have
48 been required to report abuse pursuant to this section, shall not be
49 required to file a report if the following conditions are met:
50 (a) such person is aware that there is a proper plan of care;
51 (b) such person is aware that the plan of care was properly provided
52 or executed;
53 (c) a physical, mental, or medical injury occurred as a result of care
54 provided pursuant to paragraph (a) or (b) of this subdivision; and
55 (d) such person reasonably believes that the injury was not the result
56 of abuse.
A. 1505 4
1 7.(a) Any individual specified in subdivision one of this section who
2 has knowledge of, or reasonably suspects that, types of elder or depend-
3 ent adult abuse for which reports are not mandated have been inflicted
4 upon an elder or dependent adult or that his or her emotional well-being
5 is endangered in any other way, may report the known or suspected
6 instance of abuse.
7 (b) If the suspected or alleged abuse occurred in a long-term care
8 facility other than a state mental health hospital or a state develop-
9 mental center, the report may be made to the commissioner of the office
10 of children and family services.
11 (c) If the suspected or alleged abuse occurred in a state mental
12 health hospital or a state developmental center, the report may be made
13 to the office of mental health or the office for people with develop-
14 mental disabilities.
15 (d) If the suspected or alleged abuse occurred in a place other than a
16 place described in paragraph (b) or (c) of this subdivision, the report
17 may be made to the statewide central register.
18 8. If the conduct involves criminal activity not covered in subdivi-
19 sion five or six of this section, it may be immediately reported to the
20 appropriate law enforcement agency.
21 9. When two or more individuals specified in subdivision one of this
22 section are present and jointly have knowledge or reasonably suspect
23 that types of abuse of an elder or a dependent adult for which a report
24 is or is not mandated have occurred, and when there is agreement among
25 them, the telephone report may be made by a member of the team selected
26 by mutual agreement, and a single report may be made and signed by the
27 selected member of the reporting team. Any member who has knowledge that
28 the member designated to report has failed to do so shall thereafter
29 make the report.
30 10. A telephone report of a known or suspected instance of elder or
31 dependent adult abuse shall include the name of the person making the
32 report, the name and age of the elder or dependent adult, the present
33 location of the elder or dependent adult, the names and addresses of
34 family members or any other person responsible for the elder or depend-
35 ent adult's care, if known, the nature and extent of the elder or
36 dependent adult's condition, the date of the incident, and any other
37 information, including information that led that person to suspect elder
38 or dependent adult abuse, requested by the agency receiving the report.
39 § 313. Action on reports. 1. The commissioner of the office of chil-
40 dren and family services upon receiving a report that an elderly person
41 allegedly is being, or has been, abused, neglected, exploited or aban-
42 doned, or is in need of protective services shall cause a prompt and
43 thorough evaluation to be made, through the appropriate local or county
44 department of social services to determine the situation relative to the
45 condition of the elderly person and what action and services, if any,
46 are required. The evaluation shall include a visit to the named elderly
47 person and consultation with those individuals having knowledge of the
48 facts of the particular case.
49 2. Upon probable cause to believe that an individual covered by this
50 title is being abused, maltreated or neglected, a representative of the
51 local or county department of social services, accompanied by a law
52 enforcement officer, may enter a premises, after obtaining a court order
53 and announcing their authority and purpose.
54 3. Upon completion of the evaluation of each case, written findings
55 shall be prepared which shall include recommended action and a determi-
56 nation of whether protective services are needed.
A. 1505 5
1 4. Each local or county department of social services shall maintain a
2 registry of the reports received, the evaluation and findings and the
3 actions recommended, and shall furnish copies of such data to the office
4 of children and family services for a statewide register.
5 5. Neither the original report nor the evaluation report of the local
6 or county department of social services shall be deemed a public record.
7 The name of the person making the original report or any person
8 mentioned in such report shall not be disclosed unless the person making
9 the original report specifically requests such disclosure or unless a
10 judicial proceeding results therefrom.
11 § 314. Judicial review. 1. If it is determined that an elderly person
12 is in need of protective services, the local or county department of
13 social services shall furnish the necessary services, provided the
14 elderly person consents.
15 2. If an elderly person does not consent to the receipt of reasonable
16 and necessary protective services, or if such person withdraws the
17 consent, such services shall not be provided or continued, except that
18 if the commissioner of the office of children and family services has
19 reason to believe that such elderly person is at risk of serious harm
20 and lacks capacity to consent, he or she may proceed to petition for an
21 order for short-term involuntary protective services pursuant to section
22 four hundred seventy-three-a of this chapter.
23 3. If the caretaker of an elderly person who has consented to the
24 receipt of reasonable and necessary protective services refuses to allow
25 the provision of such services to such elderly person, the commissioner
26 of the office of children and family services may petition the supreme
27 court or the surrogate's court for an order enjoining the caretaker from
28 interfering with the provision of protective services to the elderly
29 person. The petition shall allege specific facts sufficient to show that
30 the elderly person is in need of protective services and consents to
31 their provision and that the caretaker refuses to allow the provision of
32 such services. If the judge finds that the elderly person is in need of
33 such services and has been prevented by the caretaker from receiving the
34 same, the judge may issue an order enjoining the caretaker from inter-
35 fering with the provision of protective services to the elderly person.
36 § 315. Authority of office of children and family services. 1. Every
37 person, department, agency or commission authorized to carry out the
38 duties enumerated in this title shall have access to all relevant
39 records, except that records which are confidential to an elderly person
40 shall only be disclosed with the written consent of the elderly person
41 or his or her representative. The authority of the office of children
42 and family services under this title shall include, but not be limited
43 to, the right to initiate or otherwise take those actions necessary to
44 assure the health, safety and welfare of any elderly person, subject to
45 any specific requirement for individual consent, and the right to
46 authorize the transfer of an elderly person from an adult care facility,
47 intermediate or residential health care facility, nursing home, or
49 2. The office of children and family services, within ten calendar
50 days of the referral of any cases for the provision of protective
51 services, shall furnish the local or county department of social
52 services a written report outlining the intended plan of services. The
53 local or county department of social services shall have the right to
54 comment on the proposed plan.
55 § 316. Assistance of other agencies. In performing the duties set
56 forth in this title, the local or county department of social services
A. 1505 6
1 may request the assistance of the staffs and resources of all appropri-
2 ate state departments, agencies and commissions and local health direc-
4 § 317. Review. Subsequent to the authorization for the provision of
5 reasonable and necessary protective services, the office of children and
6 family services shall initiate a review of each case within forty-five
7 days, to determine whether continuation of, or modification in, the
8 services provided is warranted. A decision to continue the provision of
9 such services should be made in concert with appropriate personnel from
10 other involved state and local groups, agencies and departments, and
11 shall comply with the consent provisions of this title. Reevaluations of
12 each such case shall be made every ninety days thereafter. The office of
13 children and family services shall advise the appropriate local or coun-
14 ty department of social services of the decisions relative to continua-
15 tion of protective services for each such elderly person.
16 § 318. Costs for providing protective services. Prior to implementa-
17 tion of any protective services, an evaluation shall be undertaken by
18 the office of children and family services pursuant to regulations which
19 shall be adopted by the commissioner of the office of children and fami-
20 ly services regarding the elderly person's financial capability for
21 paying for the protective services. If the person is so able, procedures
22 for the reimbursement for the costs of providing the needed protective
23 services should be initiated. If it is determined that the person is not
24 financially capable of paying for such needed services, the services
25 shall be provided in accordance with policies and procedures established
26 by the commissioner of the office of children and family services for
27 the provision of social services benefits under such circumstances.
28 § 319. Abuse of duties of caretaker. If as a result of any investi-
29 gation initiated under the provisions of this title, a determination is
30 made that a caretaker or other person has abused, neglected, exploited
31 or abandoned an elderly person, such information shall be referred in
32 writing to the attorney general or his or her designee, and the district
33 attorney in the county in which the abuse, neglect, exploitation or
34 abandonment is believed to have occurred which shall conduct such
35 further investigation, if any is deemed necessary and shall determine
36 whether criminal proceedings should be initiated against such caretaker
37 or other person, in accordance with applicable state law.
38 § 320. Statewide central register of elderly abuse. 1. There shall be
39 established in the office of children and family services a statewide
40 central register of elderly abuse reports made pursuant to this title.
41 2. The central register shall be capable of receiving oral and elec-
42 tronic reports of elderly abuse, neglect, exploitation or abandonment
43 and of immediately identifying prior reports of elderly abuse, neglect,
44 exploitation or abandonment and capable of monitoring the provision of
45 elderly protective services twenty-four hours a day, seven days a week.
46 To effectuate this purpose, but subject to the provisions of the appro-
47 priate local plan for the provision of elderly protective services,
48 there shall be a single statewide telephone number that all persons,
49 whether mandated by law or not, may use to report cases of suspected
50 elderly abuse, neglect, exploitation or abandonment and that all persons
51 so authorized by this title may use for determining the existence of
52 prior reports in order to evaluate the condition or circumstances of the
53 elderly person before them. Such oral reports shall be immediately
54 transmitted orally or electronically by the office of children and fami-
55 ly services to the appropriate local elderly protective service. If the
56 records indicate a previous report concerning a subject of the report,
A. 1505 7
1 other persons named in the report or other pertinent information, the
2 appropriate local elderly protective service shall be immediately noti-
3 fied of the fact.
4 3. The central register shall include but not be limited to the
5 following information: all the information in the written report; a
6 record of the final disposition of the report, including services
7 offered and services accepted; the plan for rehabilitative treatment;
8 the names and identifying data, dates and circumstances of any person
9 requesting or receiving information from the register; and any other
10 information which the commissioner of the office of children and family
11 services believes might be helpful in the furtherance of the purposes of
12 this chapter.
13 4. Reports made pursuant to this title as well as any other informa-
14 tion obtained, reports written or photographs taken concerning such
15 reports in the possession of the office of children and family services
16 or local departments shall be confidential and shall only be made avail-
17 able to (a) a physician who has before him or her an elderly person whom
18 he or she reasonably suspects may be abused, neglected, exploited or
19 abandoned; (b) a person authorized to place an elderly person in protec-
20 tive custody when such person has before him or her an elderly person
21 whom he or she reasonably suspects may be abused, neglected, exploited
22 or abandoned and such person requires the information in the record to
23 determine whether to place the elderly person in protective custody; (c)
24 a duly authorized agency having the responsibility for the care or
25 supervision of an elderly person who is reported to the central register
26 of elderly abuse; (d) any person who is the subject of the report or
27 other persons named in the report; (e) a court, upon a finding that the
28 information in the record is necessary for the determination of an issue
29 before the court; (f) a grand jury, upon a finding that the information
30 in the record is necessary for the determination of charges before the
31 grand jury; (g) any appropriate state legislative committee responsible
32 for elderly protective legislation and any temporary state commission
33 having the powers of a legislative committee and having the power to
34 review such legislation and make recommendations thereon to the governor
35 and legislature; (h) any person engaged in a bona fide research purpose,
36 provided, however, that no information identifying the subjects of the
37 report or other persons named in the report shall be made available to
38 the researcher unless it is absolutely essential to the research purpose
39 and the office of children and family services gives prior approval; (i)
40 authorized agencies and the office for the aging. However, no informa-
41 tion may be released unless the person or official's identity is
42 confirmed by the department and the released information states whether
43 the report is "indicated" or "under investigation," whichever the case
44 may be. A person given access to the names or other information identi-
45 fying the subjects of the report or other persons named in the report,
46 except the subject of the report or other persons named in the report,
47 shall not divulge or make public such identifying information unless he
48 or she is a district attorney or other law enforcement official and the
49 purpose is to initiate court action.
50 5. Unless an investigation of a report conducted pursuant to this
51 title determines that there is some credible evidence of the alleged
52 abuse, neglect, exploitation or abandonment, all information identifying
53 the subjects of the report and other persons named in the report shall
54 be expunged from the central register and from the records of all local
55 elderly protective services forthwith.
A. 1505 8
1 6. In all other cases, the record of the report to the central regis-
2 ter shall be expunged no later than ten years after the death of the
3 elderly person. In any case and at any time, the commissioner of the
4 office of children and family services may amend or expunge any record
5 upon good cause shown and notice to the subjects of the report and other
6 persons named in the report.
7 7. At any time, a subject of a report and other persons named in the
8 report may receive, upon request, a copy of all information contained in
9 the central register; provided, however, that the commissioner of the
10 office of children and family services is authorized to prohibit the
11 release of data that would identify the person who made the report or
12 who cooperated in a subsequent investigation, which he or she reasonably
13 finds will be detrimental to the safety or interests of such person.
14 8. At any time subsequent to the completion of the investigation but
15 in no event later than ninety days after the subject of the report is
16 notified that the report is indicated the subject may request the
17 commissioner of the office of children and family services to amend or
18 expunge the record of the report. If the commissioner of the office of
19 children and family services does not amend or expunge the report within
20 ninety days of receiving such request, the subject shall have the right
21 to a fair hearing to determine whether the record of the report in the
22 central register should be amended or expunged on the grounds that it is
23 inaccurate or it is being maintained in a manner inconsistent with this
24 title. The appropriate local elderly protective service shall be given
25 notice of the fair hearing. The burden of proof in such hearing shall be
26 on the office of children and family services and appropriate local
27 elderly protective service. In such hearings, the fact that there was a
28 court finding of abuse, neglect, exploitation or abandonment shall be
29 presumptive evidence that the report was substantiated. The commissioner
30 of the office of children and family services or his or her designated
31 agent is hereby authorized and empowered to make any appropriate order
32 respecting the amendment or expungement of the record to make it accu-
33 rate or consistent with the requirements of this title.
34 9. Written notice of any expungement or amendment of any record, made
35 pursuant to the provisions of this title, shall be served upon each
36 subject of such record, other persons named in the report and the appro-
37 priate local elderly protective service. The latter, upon receipt of
38 such notice, shall take the appropriate similar action in regard to the
39 local elderly abuse register and inform, for the same purpose, any other
40 agency which received such record pursuant to this title.
41 10. Any person who willfully permits and any person who encourages the
42 release of any data and information contained in the central register to
43 persons or agencies not permitted by this title shall be guilty of a
44 class A misdemeanor.
45 § 2. The sum of six hundred thousand dollars ($600,000), or so much
46 thereof as may be necessary, is hereby appropriated to the office of
47 children and family services out of any moneys in the state treasury in
48 the general fund to the credit of the state purposes account not other-
49 wise appropriated, for its expenses, including personal service, mainte-
50 nance and operation in carrying out the provisions of this act. Such
51 moneys shall be payable on the audit and warrant of the comptroller on
52 vouchers certified or approved by the commissioner of the office of
53 children and family services or his or her designee, in the manner
54 prescribed by law.
55 § 3. This act shall take effect on the one hundred twentieth day after
56 it shall have become a law. Effective immediately, the addition, amend-
A. 1505 9
1 ment and/or repeal of any rule or regulation necessary for the implemen-
2 tation of this act on its effective date are authorized to be made and
3 completed on or before such effective date.