Abuse, Neglect and Exploitation of Vulnerable Adults

1. Abuse, Neglect and Exploitationof Vulnerable Adults An Overview Iris C. Freeman Center for Elder Justice and Policy William Mitchell College of Law October 9, 2008

2. Objectives • Recognize characteristics that distinguish this population. • Review MN’s legal definitions of vulnerability and maltreatment. • Understand variability of laws across states. • Be aware of current advocacy efforts to amend MN’s Vulnerable Adult Act. • Be aware of national advocacy effort, the Elder Justice Act.

3. Distinguishing Characteristics • Longstanding family dynamics make it especially hard for victim to visualize escape. • Most perpetrators are family members (adult children #1, spouse #2). • Victim may depend on perpetrator for physical care and support. • Perpetrator may depend on victim for shelter, money, and care. • Victim may have multiple, serious medical conditions. • Both victim and perpetrator may need extensive medical care.

4. Distinguishing Characteristics • Neglect may be perpetrated by a caregiver or be reported as self-neglect. • Financial exploitation is rife with subtleties. • Institutional care may be the resolution OR the site of the violence. • Terminology of elder maltreatment includes domestic and residential health care settings.

5. Distinguishing Characteristics • Unlike domestic violence, the road to safety, empowerment, and independence will probably not be in a traditional shelter, safeguarding the children, and finding steady employment. • Some elder victims do seek services through domestic violence programs. (See Lundy and Grossman, “Elder Abuse: Spouse/Intimate Partner Abuse and Family Violence Among Elders,” Journal of Elder Abuse and Neglect, Vol. 16(1), 2004). • Regardless of dementing illness or frailty, vulnerable adults are not gray-haired children. Ethical issues in intervention are complex.

6. Numbers • Annual MN Reports: about 15,000 per year in last several years • Statewide records maintained by Aging and Adult Services (APS) in DHS • National Elder Abuse Incidence Study, NCEA, 1998 – Reported 2 million estimated to be only 16% of actual cases. • Types of maltreatment in order of prevalence: neglect, abuse, financial exploitation

7. Minnesota’s Vulnerable Adult Protection Law – Minn. Stat. 626.557 • Defines vulnerable adult • Defines types of maltreatment • Names mandated reporters • Identifies how, where, & when reports are to be made • Names the investigating agencies • Specifies penalties • Specifies rights of appeal

8. Vulnerable Adult Act Key Enactment Dates • 1980 • 1995 • 2009 • Each enactment date = several years of preparation

9. Vulnerable Adult (MN) • A person 18 or older who: • Receives certain services, or • Meets the functional definition of vulnerability • Definition: to trigger mandated report or weaken individual autonomy or both?

10. Maltreatment (MN) • Includes abuse, neglect and financial exploitation • Defined in the Vulnerable Adult Act and in the Criminal Code • Civil and criminal penalties • Like the definition of vulnerable adult, terms like maltreatment and mistreatment vary across states.

11. Abuse includes • Physical, verbal and emotional abuse • Most types of sexual conduct by a caregiver • Forcing or enticing a vulnerable adult to perform services against his or her will for the advantage of another • Any conduct (not accidental or therapeutic) that produces or could produce pain, injury or distress for the vulnerable adult

12. Exceptions to Abuse (MN) • A vulnerable adult or a person with authority to make health care decisions for the vulnerable adult refuses consent or withdraws consent for medical care • or selects spiritual means or prayer for treatment in lieu of medical care

13. Exceptions to Abuse (MN) • Sexual conduct between caregiver and vulnerable adult, under certain circumstances • Accident – specific to facilities • Therapeutic conduct

14. Warning Signs of Abuse • Bruises, skin tears, cuts • Broken bones • Injuries inconsistent with explanation • Internal injuries • Changes in mental functioning or behavior • Victim’s statements

15. Neglect includes • Failure or omission by a caregiver to supply a vulnerable adult with care or services… necessary to obtain or maintain the vulnerable adult’s physical or mental health or safety…or • The absence or likelihood of absence of this care or service.

16. Exceptions to Neglect (MN) • Mirror those for abuse, e.g. • Refusal of treatment per health care decisions or directives, or • Choosing alternatives to traditional medicine, plus • An error in the provision of therapeutic conduct that does not result in injury or harm, so long as proper procedures of treatment and follow-up occur.

17. Warning Signs of Neglect • Dehydration • Malnutrition • Weight loss • Poor hygiene • Lack of needed supervision • Absence of needed equipment or prostheses

18. Financial exploitation includes • In a breach of fiduciary obligation recognized elsewhere in law, an individual • Uses the entrusted funds in a way that, results or is likely to result in detriment to the vulnerable adult, or • Fails to spend the resources in the manner necessary to carry out duties to the vulnerable adult. • Despite headline cases, many situations are not “promising” enough for prosecution.

19. Financial exploitation includes • In the absence of legal authority, a person • willfully uses, withholds, or disposes of the funds of a vulnerable adult; • obtains wrongful profit or advantage; • acquires possession, control or interest in funds or property through undue influence or duress; or • forced servitude. • But facilities are not obligated to provide financial management or supervise financial management.

20. Financial exploitation • May be episodic or ongoing, associated or not with physical abuse, emotional abuse, and neglect • Victims often isolated, lonely, grieving • Factors associated with perpetrators – chemical and gambling addictions, sense of “entitlement” • Loss of life savings, assets deprives victim of the economic foundation for independence. • See Rabiner, et. al., “A Conceptual Framework of Financial Exploitation of Older Persons,” Journal of Elder Abuse and Neglect, Vol. 16(2) 2004.

21. Warning Signs of Financial Exploitation • Being denied basic information about one’s own finances • Unpaid bills (rent, utilities) • Being asked to sign documents “on faith” • Abrupt changes to will • Transfers of assets • Substantial bank withdrawals • Abrupt closure of bank accounts

22. Mandated Reporters (MN) • A professional or professional’s delegate while engaged in: (1) social services; (2) law enforcement; (3) education; (4) the care of vulnerable adults; (5) any of the occupations referred to in section section 214.01, subdivision 2; (6) an employee of a rehabilitation facility certified by the commissioner of jobs and training for vocational rehabilitation; (7) an employee or person providing services in a facility as defined in subdivision 6; or (8) a person that performs the duties of the medical examiner or coroner. • Anyone can be a voluntary reporter.

23. Primary System Elements • Common Entry Points that receive reports at the county level • Directory of Common Entry Points, see MN Board on Aging, www.mnaging.org • Lead Administrative Investigative Agencies: DHS for facilities that they license; MDH for facilities that they license; County APS for cases in the community • Issues associated with localized case intake

24. Definitions Differ Across States • No standard definitions of the population, of what constitutes maltreatment, or how to investigate • Populations are identified by such terms as elder, dependent, or vulnerable, with varying definitions. • Some state abuse prevention laws are singularly aimed at nursing homes and their residents. • Challenge to cases that cross state lines, for data collection, and for research • American Bar Association Commission on Law and Aging has numerous resources on the pertinent state laws. http://www.aganet.org/media/factbooks/

25. Practice Challenges • Sensitivity to religious and cultural factors • Sorting out social security, retirement, and pension benefits • APS Assessment – once focused on determining need for social services, now a greater role in investigations • Workers pressed to “rush to judgment” about whether facts fit the applicable statutes • Professional liability and headlines

26. Research Challenges • Has maltreatment as a result of “caregiver burnout” been overblown? • How do we understand the impact of past conflict, e.g. domestic violence, on maltreatment in the caregiving context? • Determining processes by which elder victims seek help • Resolving contradictory findings of existing research, e.g. prevalence of abuse of elder men • State to state comparisons hampered by differing definitions of abuse, neglect and exploitation

27. Preventing Institutional Abuse • It’s about staffing! • Criminal background checks are helpful but not a substitute for effective interviewing, culture of care, good orientation, training, and good working conditions • According to U.S. GAO 2002 report, 21 states have mandated criminal background checks for nursing facility workers • But definitions and coverage varies. • Sufficient staff and consistency in staffing matter. • Supervision and support are critical to prevention.

28. Elder Justice Act • Originally introduced in 2003 by Senators John Breaux (D-LA, retired) and Orrin Hatch (R-UT), Representatives Rahm Emanuel (D-IL), Roy Blunt (R-MO) and Peter King (R-NY) • Senate authors in 2005 and 2007 cycles - Orrin Hatch (R-UT) and Blanche Lincoln (D-AR)

29. Elder Justice Act Goals • Heightened national awareness • Increased knowledge and professional training • Support for prosecution • New long-term care programs to combat elder abuse • Amended over time to improve chances for passage • Note the lag between “authorizing” and “financing”

30. Elder Justice Act – Awareness and Coordination • Office of Elder Justice at HHS & DOJ • These cases are inherently interdisciplinary. • Federal Office for Adult Protective Services • Note: Today, there is not even one federal employee assigned full-time to the prevention of or response to elder abuse. • Federal roles through Older Americans Act – ombudsman and elder abuse prevention grants; nursing home residents’ rights enforcement; AGs’ Medicaid Fraud Units

31. Elder Justice Act – Increasing Knowledge • Coordination across governmental units • Research, data collection • Demonstration projects, e.g. safe havens • Screening tools • Model state laws

32. Elder Justice Act – Increasing Training and Supporting Prosecution • All relevant professionals – social service, health, law enforcement • Geriatricians trained in forensic pathology • Public and consumer information and assistance

33. Current Status of Bill • Closer than ever to a full Senate vote 2 weeks ago when the Congress became distracted with our national economic crisis…. • Prospects in a new Congress? • What options exist?

34. For more information about the bill • Status: http://thomas.loc.gov • Elder Justice Coalition www.elderjusticecoalition.org

35. Advocacy Opportunities Nearby • Vulnerable Adult Stakeholders Group • Key activities since November 2007 • Legislative prospects • VA Stakeholders’ Wiki site http://mnvac.pbwiki.com/ • Opportunities for you

36. Hot topics in MN • Centralized intake; standard procedures • Amending functional definition of vulnerable adult • Definitions that make it easier to identify and take action on financial exploitation • Role of financial institutions as mandated reporters • “Silver Alert”

37. For more information • Iris C. Freeman • Advocacy Strategy • (612) 834-4747 phone • (612) 822-3570 FAX • Advocacystrategy@aol.com