Older Adults Protective Services Act

1. Elder Justice: Protectionand Advocacy2012 Technical AssistanceRegional ConferencesDavid Hoffman, Esq.David Hoffman & AssociatesTwo Penn CenterSuite 200Philadelphia PA 19102dhoffman@DHoffmanAssoc.com

2. Older Adults Protective Services Act • History/Advocacy • Implementation issues • Amendments • 1996- Criminal History for Employees Working in Facilities-PA Supreme Court limited; Policy in place • 1997-Mandatory Abuse Reporting

3. The Data • Draft FY 2010-2011 report from Department of Aging • 18,129 reports were received by the PS agencies • 12,499 were investigated (69%) • 4344 of those cases were substantiated • Neglectis the number one category • Self-Neglect continues to be the number one type of elder abuse case—not only in Pa but nationally • In PA=37.5% of the cases—self-neglect; 27% caretaker neglect • Financial Exploitation—15.3% • Emotional Abuse-14.8% • Physical Abuse—4.5% • Sexual Abuse-1%

4. The Data (cont’d) • Act 13 reports—increased from 534 to 669 • Court actions—232 court petitions filed • guardianship 55% of the cases • Involuntary emergency interventions-24% • Access orders—records (5%) and persons (2% • PFA and Injunctions against interference (1% each)

5. The Data (cont’d) • Elder abuse victim characteristics • 38% over the age of 81---77% are Caucasian and 67% are females • Perpetrators--- 59% were between 30-59 years old • 64% are female

6. Training and Coordination • Approximately 320 law enforcement, judicial, medical and social service professionals were trained to identify, resolve and prosecute elder abuse cases • Elder Abuse Task Forces—30 statewide; some more advanced than others—Critically important

7. Neglect • Definition under OAPSA: • The failure to provide for oneself or the failure of a caretaker to provide goods or services essential to avoid a clear and serious threat to physical or mental health. An older adult who does not consent to the provision of protective services will not be found to be neglected solely on the grounds of environmental factors which are beyond the control of the older adult of caretaker, such as inadequate housing, furnishings, income, clothing or medical care.

8. Neglect By Caregivers-Criminal Neglect of a care-dependent person: • A caregiver is guilty of neglect of a care-dependent person if he: (1) intentionally, knowingly or recklessly causes bodily injury or serious bodily injury by failing to provide treatment, care, goods or services necessary to preserve the health, safety or welfare of a care-dependent person

9. Neglect by Caregiver-Criminal • (2) Intentionally or knowingly uses a physical restraint or chemical restraint or medication on a care-dependent person, or isolates a care-dependent person contrary to law or regulation, such that bodily injury or serious bodily injury results.

10. “Not So” Hypothetical • A facility employed a registered nurse since 1992, for over 17 years. On April 4, 2010, she was the charge nurse on a unit at the facility. As charge nurse, she was responsible for all of the unit's operations, including the unit's staffing assignments. That day, the unit was short-staffed. • At around 8:23 that morning, B.W., a recently admitted 62 year old patient who had a history of lying on the floor and acting out, left her room and collapsed on the hallway floor. The facility video camera system, which recorded the event in question (but without sound), showed that several facility personnel walked past B.W. lying on the floor, but no one stopped to examine or help her. Upon learning that a patient was lying on the floor, the nurse went to investigate. When she arrived four minutes later, the nurse saw that B.W. was still breathing, but was lying face down on the floor with her eyes closed, had her pants pulled down, and was wet with urine. After calling out to B.W. two or three times and receiving no response, the nurse went to go check which staff members were able to help her change B.W., because she could not do that by herself because of her small size. • Four or five minutes later, while checking the nurse staffing list at the nurse station, another facility attendant informed the nurse that B.W. “had gone bad.” The nurse, along with two other nurses, immediately rushed back to B.W. and found that B.W. was no longer breathing. At that point, the nurses got emergency medical equipment—one retrieved the oxygen mask and CPR shield, and the nurse retrieved the oxygen tanks. The other nurse remained with B.W. and began to perform CPR. The nurse then returned to the nurse's station to call 911. Ultimately, their efforts to revive B.W. were unsuccessful.

11. Neglect—Operational definition? • Operational definition -a pattern of conduct or inaction by a person or entity with a duty of care to provide goods and services that maintain physical or mental health of a vulnerable adult, or that avoids or prevents physical or mental harm or pain to a vulnerable adult; and -An act or omission that demonstrates a disregard of consequences of such a magnitude as to constitute a significant risk of harm to the vulnerable adult’s health, welfare or safety • Mandatory reporting under OAPSA • Training on investigations

12. Reporting under PPACA forNursing Homes • Reporting of “reasonable suspicion” of a crime must occur by virtually EVERYONE! • Report within 2 hours if serious bodily injury • Report within 24 hours if no serious bodily injury • Report to regulators and law enforcement • Failure to report leads to significant fines and exclusion from health care programs

13. Decisional Capacity • Self-neglect • Capacity for purposes of guardianship as an intervention/remedy • Limitations on guardianships sought by Protective Services

14. The Future • GAO Report • 14.1 % of noninstitutionalized older adults had experienced physical, psychological, sexual abuse, neglect or financial exploitation • Agreement that this underestimates the problem • At risk older adults: those with physical and cognitive impairments, mental problems and low social support • Elder abuse caseloads growing—APS program resources are not

15. The Future • Enhanced reporting and coordination • Amendments to the OAPSA to address Neglect; include hospitals in definition of facility (?) • Additional forensic research to support law enforcement and caseworkers in identifying elder abuse cases • Societal awareness and recognition that elder abuse is a national problem worthy of a societal response

16. Questions David Hoffman, Esq. Two Penn Center Suite 200 Philadelphia, PA 19102 215-854-6357 dhoffman@DHoffmanAssoc.com