Laws and Policies Related to Elder Mistreatment

1. Module 4 Nursing Responses to Elder MistreatmentAn IAFN Education Course Laws and Policies Related to Elder Mistreatment

2. Learning Objectives • Identify state laws and resources to respond to elder mistreatment (EM) • Discuss mandatory reporting requirements related to vulnerable older adults

3. State Laws and Resources • What agencies in your state assist and protect victims of elder mistreatment? Their roles? • What has been your experience interacting with representatives of these agencies on behalf of patients?

4. What Type of Problem is EM? • No single national EM law • Historically viewed as a social problem • Late 1980s/early 1990s, established as criminal and civil problem Drawn in part 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, 2005

5. State Response to Problem • State laws authorize numerous systems/agencies to investigate allegations of elder mistreatment and provide services for victims. B. Brandl, C. Bitondo Dyer, C. Heisler, J. Marlatt Otto, L. Stiegel & R. Thomas, Elder abuse detection and intervention: A collaborative approach, 2006

6. State Laws that Assist EM Victims • Laws enabling APS functions • Criminal laws • Laws/policies: institutional mistreatment • Laws/policies: long-term care facility ombudsmen program • Other state laws may be pertinent in civil cases involving EM Drawn in part from L. Stiegel & E. Klem, Information about laws related to elder abuse, 2007. Following slides describing categories also adapted from this source, except as noted.

7. 1. APS Laws • All states have legislation authorizing provision of adult protective services in some/all cases of EM • APS laws established a system for reporting/investigating EM and provision of social services to help victims and reduce or eliminate the mistreatment • APS activities

8. 2. Criminal Law • In addition to APS law, jurisdiction’s general criminal laws may be used to prosecute perpetrators of elder mistreatment • Also, some legislatures established enhanced penalties or explicit criminal sanctions for certain crimes against older persons Stiegel & Klem

9. 3. Laws: Institutional Mistreatment • Early EM policies, legislation and system response were directed at mistreatment in residential homes • More emphasis on institutional mistreatment starting in late 1990s B. Payne & L. Fletcher, Elder abuse in nursing homes: Prevention and resolution strategies and barriers, Journal of Criminal Justice, 2005 L. Stiegel, The changing role of the courts in elder abuse cases, 2000

10. Common Requirements for Long-Term Care Facility • Create and maintain a safe/supportive environment • Report suspected mistreatment of residents • Have policies/procedures for dealing with mistreatment and requiring specific response by staff • Have formal reporting mechanisms for alerting specified external body to serious injuries, unusual incidents, or mistreatment occurring in facility • Provide mechanisms for residents and families to express concerns or provide input E. Podnieks, Elder mistreatment in long-term care facilities, Healthcare Facilities Management, 2008

11. Responding Agencies • APS agencies may or may not have role in investigating reports in long-term care facilities in a specific state • Long-term care facilities may be defined differently in laws • APS sometimes shares role in investigating mistreatment reports in long-term care facilities with long-term care ombudsmen (LTCOP) or other regulatory agencies Stiegel & Klem

12. 3. Ombudsmen • Every state required to have an ombudsmen program • If they suspect EM, ombudsmen may make referral to APS program, agency responsible for investigating institutional mistreatment, law enforcement, or agency responsible for licensing/certifying such facilities. • In some states, ombudsmen fulfill APS function and have legal authority to investigate/respond abuse occurring within long term care facilities • Note ombudsmen can only report mistreatment with permission of patient or if they observe incident Stiegel & Klem Brandl, Bitondo Dyer, Heisler, Marlatt Otto, Stiegel & Thomas

13. Other State Laws • May be pertinent in civil cases involving EM • For example, those addressing • Guardianship/conservatorship • Powers of attorney • Consumer fraud/false claims • Domestic or family violence prevention Stiegel & Klem

14. Mandatory Reporting • What are your mandatory reporting responsibilities in cases of EM? Are you required to report any other injuries which might overlap with EM? • What are your practice setting’s policies and procedures relative to mandatory reporting? • What have been your experiences reporting mistreatment? What are challenges? • What information/skills would help address challenges?

15. Mandatory Reporting Laws • Vary by state • Critical for nurses to know specifics of their state regulations

16. Where to Report? • Reports should be made, in most states, to local APS or law enforcement agency • Every state has at least one toll-free hotline/helpline for reporting elder mistreatment • Where do you report?

17. How to Report • Assess/screen patient • If EM is suspected, make report to appropriate agency • Safety of patient is nurse’s primary responsibility

18. How to Report (cont.) When you call to make a report, be prepared to provide: • Name, address and phone number of victim • Identifying victim information • Name, address and phone number of alleged perpetrator (if applicable/available) • Identifying perpetrator information • Your name, address and phone number • Available data, if applicable, on disability/health problems of victim and perpetrator. • Reason for concern (types of mistreatment)

19. Issues in Reporting • To overcome hesitation to report suspicions of EM, nurses need to understand • Failure to report may result in criminal charges and disciplinary action from licensing boards • In most states, reporters have immunity from liability if mistreatment is unsubstantiated • Mandatory reporting is exception to HIPAA • Scope/limits of assistance each responding agency, and time frames/procedures for follow-up

20. Challenges (cont.) • Many older adults don’t report mistreatment even if they are able • Acknowledge if older adults had concerns about reporting and endeavor to help address their concerns • Importance of multidisciplinary communication and coordination to ensure maximum safety, health and independence

21. Case Studies • Need to make mandatory report? Why or why not? • To which agency do you think it should be reported? • What information do you already have for report? What else is needed?

22. Closing Assessment • What have you learned from this module that you can apply to your practice setting?