ELDER AND VULNERABLE PERSON ABUSE, NEGLECT, AND …



Participant Materials

4. Laws and Policies Related to Elder Mistreatment

Purpose

This module contains information on laws and policies used in the legal response to elder mistreatment. While nurses need not be legal experts to assist older adults who have or may have been mistreated by trusted others, it is important for them to be familiar with state laws and regulations and organizational policies and procedures that pertain to elder mistreatment. Nurses must be aware of their legal responsibilities in actual or potential elder mistreatment cases, including mandatory reporting requirements.[i]

Learning Objectives

By the end of this module, participants will be able to:

• Identify laws and resources to respond to elder mistreatment; and

• Discuss mandatory reporting requirements related to mistreatment of vulnerable older adults.

State Laws and Resources

? What agencies in your state assist and protect victims of elder mistreatment? What do you think are each of their roles?

? What has been your experience when interacting with representatives of these agencies on behalf of patients?

Key Points[ii]

There is no single national elder mistreatment law.

Elder mistreatment was viewed as a social problem until the late 1980s and early 1990s when state legislatures began developing elder mistreatment statutes, penalty enhancement statutes and mandatory reporting laws. These actions established elder mistreatment as a criminal or civil problem.[iii]

Categories of state law that offer protection and services to victims of elder mistreatment—[iv]

1) Laws enabling adult protective services functions;

2) Criminal laws (including domestic violence and sexual assault laws and reporting requirements that apply to older adults);

3) Laws/policies related to institutional mistreatment;

4) Laws/policies related to the long-term care facility ombudsmen program; and

5) Other state laws may be pertinent in civil cases involving elder mistreatment.

There is wide variability in state laws related to response to elder mistreatment, such as protective services, criminal and civil codes and investigation of allegations arising in institutional settings.

1. APS laws: As mandated by Title XX of the Social Security Act of 1974, all states, the District of Columbia, Guam, Puerto Rico and the Virgin Islands enacted legislation authorizing provision of adult protective services in some or all cases of elder mistreatment. By 1985, all states had instituted some rudimentary type of APS program.[v]

In most jurisdictions, these laws pertain to mistreated adults who have a disability, vulnerability or impairment as defined by state law, not just to older adults. [vi]

APS laws vary widely across the country in terms of age at or circumstances under which a victim is eligible to receive protective services, definition of abuse, types of mistreatment covered, reporting (mandatory or voluntary), investigation responsibility and procedures, and remedies for mistreatment.[vii]

APS activities generally include receiving reports, evaluating risks to clients, assessing client capacity to give informed consent for any services to be provided, conducting investigations, determining if there is a founded or actionable case and where appropriate, developing and implementing case plans and monitoring to reduce risk of further harm.[viii]

• Note that APS agencies generally seek to keep older adults in their homes as long as possible and prioritize client autonomy and self-determination. APS agencies cannot impose services on an adult who has decision-making capacity, unless ordered by a court.

2. Criminal law: In addition to APS law, a jurisdiction’s general criminal laws (e.g., battery, assault, kidnapping, theft, fraud, sexual assault, manslaughter or murder) may also be used to investigate/prosecute someone who has mistreated an older person.[ix] There may also be laws related to certain crimes (e.g., domestic violence, stalking and sexual assault) that encompass older adult victims.

Some legislatures have enacted enhanced penalties for certain crimes against older persons and/or are passing laws that provide explicit criminal sanctions for various forms of elder mistreatment (e.g., California Penal Code section 368[x]).[xi] Some adult protection service laws include a provision stating that elder mistreatment may be prosecuted criminally, while others define certain acts in the same words or by reference to definitions that are used in the criminal laws.[xii]

• Basic information about criminal cases.[xiii] Criminal cases are brought to court as a result of a local, state, federal or tribal governments filing charges against an individual for violation of a criminal statute. Under criminal law when a person is a victim of another person’s criminal act, the state intervenes in order to represent the interests of the entire community. All crimes are considered to be committed against the community as a whole and not against an individual victim. Prosecutors work for government entities and do not represent the victim. Since criminal prosecution can result in a person going to jail or prison and losing their liberty, there are many restrictions placed on prosecutors to protect the rights of the accused. These protections include the right to have an attorney, the right to not be subjected to unlawful search or seizure, the right to confront witnesses and the right to not be forced to testify against oneself (self-incrimination). Prosecutors are required to share any information with the defense that might prove that the defendant is not guilty or less culpable of a criminal act.

Another protection granted to all persons is the right to know what acts are considered to be illegal and may result in criminal charges. Criminal statutes define what elements must be met before a person can be charged with a crime. Many states have given special protection to elder and vulnerable populations. Therefore the first element that must be met is whether or not the individual is a victim that can receive this special protection according to the statute. This protection can be granted because of the person’s age, physical or mental disability or inability to protect her/himself.

In cases of elder neglect, the prosecutor must prove the defendant has a duty to or special relationship with the victim that makes a lack of care or improper care a crime. Some crimes require proof that a specific type of harm be inflicted on the victim. Harm may include physical injury, psychological injury, financial injury and/or inappropriate or nonconsensual sexual contact. It is important to understand what elements are required because the prosecution will need to prove the elements through the testimony of witnesses and available evidence.

3. Laws and policies related to institutional mistreatment: Early state elder mistreatment policies, legislation, explanations and responses were directed at elder mistreatment in the community setting rather than in institutional settings.[xiv] In the late 1990s, institutional mistreatment came into more prominent view when the U.S. Department of Justice placed an emphasis on civil and criminal legal actions in response to nursing home abuse.[xv]

• Common legislated or regulated requirements for long-term care facility operators include:[xvi]

(1) A duty to create and maintain a safe and supportive environment, which includes protecting residents from mistreatment;

(2) A legal responsibility on the part of some (or all) persons to report suspected/actual mistreatment of residents;

(3) Having written policies/procedures for dealing with suspected/actual mistreatment and requiring response by the facility staff to any harm that occur;

(4) Formal reporting mechanisms for alerting a specified external body to any serious injuries, unusual incidents or mistreatment occurring in the facility; and

(5) Providing mechanisms for residents and families to express concerns or provide input regarding how care and services are provided (e.g., user committees, autonomous resident councils and family councils).

Agencies responding to institutional mistreatment: Some APS laws only relate to individuals who reside in the community, while other APS laws also include individuals living in long term care facilities. States may define long-term care facilities differently; moreover, some states include other types of institutions (such as mental health facilities) in their statutes. If they work on cases in institutional settings, APS agencies sometimes share their role in investigating mistreatment reports in long-term care facilities with long-term care ombudsmen and/or regulatory or licensing agencies.[xvii]

4. Long-term care ombudsman program: Under the federal Older Americans Act, as a condition for receiving funding, every state is required to have an ombudsman program that addresses complaints and advocates for improvements in the long-term care system.[xviii] See the National Long-Term Care Ombudsman Resource Center () for information on ombudsman programs in every state.

When responding to complaints within a facility, ombudsmen may discover situations where mistreatment may be occurring and, if appropriate, make a referral to the appropriate agency. In some states and cases, ombudsmen may proactively visit facility residents to monitor for possible mistreatment and for other issues. In some states, they may fulfill the APS function and have the legal authority to investigate/respond to mistreatment occurring within long-term care facilities.[xix]

Note the ombudsmen can only report mistreatment with the permission of the patient or if they observe the actual mistreatment. For this reason, they may be unable to report specific situations but can share generalized concerns about the quality of life in a specific facility with the regulatory agency, APS or law enforcement.[xx]

• State regulatory and licensing agencies: In many states, the law requires that facilities report suspected complaints of mistreatment to the state agency that licenses and regulates the operations of the long-term care facilities. Every state has one licensing/regulatory agency. These agencies investigate to determine if facilities are in compliance with licensing and regulatory requirements, not identify possible criminal conduct or an elder’s need for appointment of a conservator/guardian or an order of protection.

• Another legal resource to address mistreatment in nursing home facilities is the state Medicaid fraud control unit (MFCU).[xxi] Most are located in the state’s attorney general’s office. MFCUs investigate and prosecute Medicaid provider fraud and incidences of patient mistreatment. Note that there may be concurrent jurisdiction for local prosecutors to prosecute criminal acts.[xxii]

5. Other state laws may be pertinent in civil cases involving elder mistreatment: Such laws include those addressing guardianship and conservatorship, powers of attorney, consumer fraud (against individuals and entities), false claims (e.g., against nursing home which failed to provide care they are reimbursed for by the government) and domestic or family violence prevention.[xxiii]

• Basic information about civil cases.[xxiv] Civil cases occur when private individuals or states file lawsuits against an individual, corporation or the government for harm/loss that has occurred. Sanctions usually include the injured party receiving monetary compensation. Sometimes other awards can be made though imprisonment cannot be imposed. The burden of proof in a civil case is a “preponderance of the evidence,” a lower standard than the one required in a criminal case (guilt beyond a reasonable doubt).

When a civil complaint is filed it may list one or more torts. A tort is a civil wrong or injury. The most frequently charged tort is negligence. Other torts include: assault, infliction of emotional distress, false imprisonment or wrongful death.

The elements of negligence are:

(1) A relationship between the defendant and the injured person that creates a duty to act, to provide care or to not cause harm. For example, a tourist at the beach has no duty to go into the ocean if they see someone drowning. A lifeguard for that stretch of the beach has a duty to go and attempt to rescue the drowning person.

(2) A breach of a duty, meaning that the defendant did not do what a reasonable person would do under the same circumstances.

(3) Proximate cause between the breach of duty and the outcome, meaning that it would be expected that a specific type of injury would occur as a result of the breach of duty. For example, if a person was punched in the eye, a black eye, not a ruptured appendix, would be the expected consequence.

(4) Causation, e.g., the negligent act was the cause of the injury.

(5) Actual damages. For example, if a patient is given the wrong medication, but no harm occurs, the tort of negligence cannot be proven.

Some states have passed laws or instituted court procedures that allow cases involving older people to be expedited on the court calendar.[xxv]

Mandatory Reporting

Questions to consider:

? As a mandatory reporter under state law, what are your reporting responsibilities in cases of elder mistreatment? Are you required to report any other injuries which might overlap with elder mistreatment (domestic violence, sexual assault, gunshot wounds, etc.)?

? How does your agency support you in fulfilling your mandatory reporting requirements?

? What have been your experiences reporting mistreatment? What are the challenges?

? What information would help you address these challenges?

Key Points

Mandatory reporting laws vary by state. These laws typically require health care professionals, including nurses, to report suspected elder mistreatment. These laws are diverse in relationship to who is protected, who must report, definitions of abuse behavior, requirements for investigation of reports and penalties for not reporting.[xxvi] It is critical that nurses be aware of the specifics of their state regulations (e.g., which victims are subject to reporting—those who are vulnerable or of a certain age, what types of mistreatment are subject to reporting, time period the report should be made and what information the reporting agency needs).

• Nurses and other health care providers may also have legal duties to report other types of conduct such as violent crime, gunshot wounds, domestic violence and sexual assault.[xxvii]

Where to report elder mistreatment:

• In cases where an older person is in immediate danger, call 911.

• Reports should be made, in most states, to the local APS or law-enforcement agency that has jurisdiction in the city/county in which the mistreatment occurred (state statute should indicate the agencies to which a report should be made).

• Every state has at least one toll-free hotline/helpline for reporting elder mistreatment in community or institutional settings.

o National Adult Protective Services Association, .

o National Center on Elder Abuse, .

o Eldercare Locator, 1-800-677-1116, Mon.-Fri., 9 AM-8 PM (except U.S. federal holidays), .

How to Report

• Assess vulnerable older adult and screen for possible elder mistreatment. If elder mistreatment is suspected, make report to the appropriate agency according to state law.

• The safety of the patient is your primary responsibility and is the reason you are reporting. Consent to report is not required in cases where reports are mandated. Optimally, nurses should tell patients of their duty to report and what will happen when a report is made. They should consider patient safety at the time of and after reporting—might the patient potentially be endangered by law enforcement or APS response? If so, engage in safety planning with the patient or immediately involve a social worker or victim advocate to do the same.

• When you report, be prepared to provide the following information:

o Name, address and phone number of victim;

o Identifying information of the victim such as: birth-date, social security number, age and ethnicity;

o Name, address and phone number of the alleged perpetrator (if applicable/available);

o Identifying information, including the nature of the relationship between the victim and the perpetrator (if applicable/available);

o Your name, phone number and address (the confidentiality of reports is protected under state law);

o Available information, if applicable, on disability, health problems or mental illness of both the victim and the perpetrator; and

o Reason you suspect elder mistreatment.

Follow up your oral report with a written report as required by the agencies to which the report was made.

Document in the medical record when and to whom reports were made and what information was provided.

Some Issues and Considerations

-Health care providers are sometimes hesitant to report their suspicions. They need to understand:

• Their role is to identify if there are indicators that point to elder mistreatment, as per their state law. If so, they are obligated to report.

• Failure to report may result in criminal charges and potential disciplinary action from licensing boards. In most states, reporters have immunity from civil or criminal liability if ever the alleged mistreatment is unsubstantiated.[xxviii]

• Mandatory reporting of elder mistreatment is one exception to HIPPA.[xxix]

• It is important to know the scope and limits of assistance that each responding agency can provide, as well as time frames and procedures for follow-up to mandatory reports. With this information, nurses may be more likely to see these agencies as partners in helping older adults stay safe and healthy rather than as impediments. It is also helpful for nurses to have contacts, both within their facility and with outside agencies, that they can turn to for help in individual cases (e.g., to help determine if a case requires a mandatory report).

-Many older adults don’t report mistreatment even if they are able. Families and caregivers are also sometimes reluctant to report, even when they are not the perpetrator.

• To the extent possible, discuss reporting requirements with older adults and their non-abusive families/caregivers and how reporting will bring additional resources to the situation. Acknowledge/help them address concerns they may have about reporting (within the limits of your role).

• Multidisciplinary communication and coordination is needed to bring maximum benefit to older adults as quickly and efficiently as possible.[xxx] Whether or not a report is made, responders should coordinate with one another to ensure that patients have opportunities and help in safety planning.

Case Study Analysis

Questions to consider for the below case studies:

? Is there a need to make a mandatory report? Why or why not?

? To which agencies do you think the report should be made?

? What information do you already have for the report? What else is needed?

Case studies

1. A hospice nurse is doing a routine visit to the home of Mrs. Jenkins, an 83-year-old woman living with terminal cancer. Mrs. Jenkins is very weak and depends on her husband to help her with most ADLs. As she approached the front door of the house, the nurse hears the husband yelling profanities at his wife because she soiled the bed again. The nurse cleans up Mrs. Jenkins and notices bruises on the woman’s face and neck, as well as what appear to be fingernail marks on her neck. Mrs. Jenkins and her husband say she fainted and hit her face and neck on an open drawer as she fell down. Mrs. Jenkins indicates she has significant neck pain. The husband remains with her throughout the visit, citing his desire to support her. Mrs. Jenkins has a history of “accidents” going back many years, including broken bones. Her husband tells the nurse that his wife’s most recent “accident” is just another example of her clumsiness.

2. Mrs. Bradford is 75 and living in a long-term care facility. She has difficulty getting around due to rheumatoid arthritis and is partially blind as a result of macular degeneration. She also has mild dementia. Mrs. Bradford’s only daughter, Ann, visits infrequently due to the long distance between her home and her mother’s facility. On her last visit, Ann was dismayed to find that her normally cheerful mother was depressed. Mrs. Bradford also seemed unusually anxious when a nursing assistant came by to pick her up for a routine physical therapy appointment. Mrs. Bradford told him she couldn’t go. When the nursing assistant left, Ann asked her why she didn’t go. At first, Mrs. Bradford vaguely replied that she didn’t like the nursing assistant because he had played a mean trick on her. When her daughter pressed her for a more specific answer, she blurted out that he told her he was taking her to therapy last week, but instead took her to a dark, empty room in an unused part of the facility and fondled her breasts and groin areas and rubbed himself up against her. In a panic, Ann called the nurse on duty and asked her to immediately come to her mother’s room. When the nurse arrived, Mrs. Bradford reluctantly recounted what happened. She added that she is afraid of what the nursing assistant might do if he finds out she told.

3. Mrs. Jackson, a 75-year-old woman who has moderate dementia, is brought to the community health clinic by her adult daughter. The nurse practitioner does not understand why Mrs. Jackson’s cellulitis has not improved despite being prescribed antibiotic therapy two weeks ago. Upon questioning, the nurse learns that the daughter filled the prescription, but in the past week discovered that her mother was hiding her medications instead of taking them. When the nurse asks Mrs. Jackson directly if and why she was hiding her medications, Mrs. Jackson replied she didn’t like the way they made her feel and so she flushed them down the toilet. The daughter acknowledged to the nurse that she should have called the clinic earlier to discuss the problem.

Remember: Often the only professional who sees an isolated older person is a health care provider. The health consequences of elder mistreatment can be profound, making it all the more critical that health care providers recognize and report elder abuse.[xxxi]

Suggested Additional Reading

Brandl, B., Bitondo Dyer, C., Heisler, C., Marlatt Otto, J., Stiegel, L., & Thomas, R. (2007). Elder abuse detection and intervention: A collaborative approach (pp. 61-100). New York: Springer Publishing Company.

Flattum Hamp, L. (2003). Appendix B: Analysis of elder abuse and neglect definitions under state law. In R. Bonnie & R. Wallace (Eds.). (2003). Elder mistreatment, abuse, neglect and exploitation in an aging America (pp. 181-237). Washington, DC: The National Academies Press. Retrieved from .

Jaffe-Gill, E., De Benedictis, T., & Segal, J. (2008). Elder abuse and neglect (how do I report suspected elder abuse?). Retrieved from .

Stiegel, L., & Klem, E. (2007). (1) Adult protective services, institutional abuse and long term care ombudsman program laws: Citations by state; (2) Information about laws related to elder abuse; (3) Reporting requirements: Provisions and citations in adult protective services laws, by state; (4) Explanation of the “reporting requirements: Provisions and citations in adult protective services laws, by state;” and (5) Reports and referrals to law enforcement: Provisions and citations in adult protective services laws, by state. Washington, DC: American Bar Association Commission on Law and Aging. See:

•

•

•

•

Stiegel, L. (2000). The changing role of the courts in elder abuse cases. Washington, DC: American Bar Association. Retrieved from .

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[i] Adapted in part from A. Geroff & J. Olshaker, Elder abuse, in J. Olshaker, M. Jackson & W. Smock (Eds.), Forensic emergency medicine (2nd ed.) (Philadelphia, PA: Lippincott Williams and Wilkins, 2006), .

[ii] Key points in this section drawn largely from L. Stiegel & E. Klem, Information about laws related to elder abuse (Washington, DC: American Bar Association Commission on Law and Aging, 2007), .

[iii] Paragraph from B. Payne, B. Berg & J. Toussaint, The police response to the criminalization of elder abuse: An exploratory study, Policing: An International Journal of Public Strategy & Management, 24 (2005), 605-625.

[iv] Drawn partially from Stiegel & Klem, 1.

[v] G. Jogerst, J. Daly, M. Brinig, J. Dawson, G. Schmuch & J. Ingram, Domestic elder abuse and the law, American Journal of Public Health, 93(12) (2003), 2131-2136.

[vi] Stiegel & Klem, 2.

[vii] National Center on Elder Abuse, Adult protective service laws (Newark, DE: Author, last modified 2008), . Also see L. Flattum Hamp, Appendix B: Analysis of elder abuse and neglect definitions under state law, in R. Bonnie & R. Wallace (Eds.), Elder mistreatment, abuse, neglect and exploitation in an aging America (pp. 181-237). Washington, DC: The National Academies Press, 2003), 181-237, .

[viii] B. Brandl, C. Bitondo Dyer, C. Heisler, J. Marlatt Otto, L. Stiegel & R. Thomas, Elder abuse detection and intervention (New York: Springer Publishing Company, 2007), 79.

[ix] Stiegel & Klem, 3.

[x] See .

[xi] Stiegel & Klem, 3.

[xii] Paragraph from L. Stiegel, The changing role of the courts in elder abuse cases (Washington, DC: American Bar Association, 2000), . This is a revised version of an article published in Generations, The Journal of the American Society on Aging, 2000.

[xiii] This bullet is adapted from the International Association of Forensic Nurses’ original draft of this curriculum, module on court testimony (which was not included in the current curriculum).

[xiv] B. Payne & L. Fletcher, Elder abuse in nursing homes: Prevention and resolution strategies and barriers, Journal of Criminal Justice, 33 (2005), 119-125.

[xv] Stiegel.

[xvi] Below bullets from E. Podnieks, Elder mistreatment in long-term care facilities, Healthcare Facilities Management, Fall (2008), .

[xvii] Paragraph from Stiegel & Klem, 2.

[xviii] Stiegel.

[xix] Paragraph from Stiegel & Klem, 2.

[xx] Paragraph from Brandl, Bitondo Dyer, Heisler, Marlatt Otto, Stiegel & Thomas, 76.

[xxi] Go to the National Association of Medicaid Fraud Control Units, , for more information.

[xxii] Brandl, Bitondo Dyer, Heisler, Marlatt Otto, Stiegel & Thomas, 87.

[xxiii] Stiegel & Klem, 3.

[xxiv] This bullet is adapted from the International Association of Forensic Nurses’ original draft of this curriculum, module on court testimony (which was not included in the current curriculum).

[xxv] L. Stiegel, Recommended guidelines for state courts handling cases involving elder abuse (Washington, DC: American Bar Association Commission on Legal Problems of the Elderly, 1995), as cited in Stiegel, The changing role of the courts.

[xxvi] Jogerst, Daly, Brinig, Dawson, Schmuch & Ingram.

[xxvii] National Center on Elder Abuse, The community response (Newark, DE: Author, last modified 2007), . Also see L. Stiegel & E. Klem, Reports and referrals to law enforcement: Provisions and citations in adult protective services laws (Washington, DC: American Bar Association Commission on Law and Aging, 2007), .

[xxviii] Paragraph from M. Wyandt, A review of elder abuse literature: An age old problem brought to light, Californian Journal of Health Promotion, 2(3) (2004), 40–52.

[xxix] E.g., see HIPAA Privacy Practices for Santa Clara Valley Health and Hospital System, .

[xxx] Brandl, Bitondo Dyer, Heisler, Marlatt Otto, Stiegel & Thomas, 100.

[xxxi] Illinois Health Cares, Illinois health cares: Promoting prevention and response to violence for health care settings, educational bulletin 11 (n.d.), (2010).

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