Laws and Policies Related to Elder Mistreatment Module

Laws and Policies Related to Elder Mistreatment Module 4 Nursing Responses to Elder Mistreatment An IAFN Education Course

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

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

What Type of Problem is EM? n No single national EM law n Historically viewed as a social problem n Late 1980 s/early 1990 s, 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 4

State Response to Problem n 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 5

State Laws that Assist EM Victims 1. 2. 3. 4. 5. 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. 6

1. APS Laws n n n 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 7

2. Criminal Law n n 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 8

3. Laws: Institutional Mistreatment n n Early EM policies, legislation and system response were directed at mistreatment in residential homes More emphasis on institutional mistreatment starting in late 1990 s 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 9

Common Requirements for Long-Term Care Facility n Create and maintain a safe/supportive environment n Report suspected mistreatment of residents n n n 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 10

Responding Agencies n n n 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 11

3. Ombudsmen n n 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 12

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

Mandatory Reporting n n 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? 14

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

Where to Report? o o o 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? 16

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

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

Issues in Reporting n To overcome hesitation to report suspicions of EM, nurses need to understand o o 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 19

Challenges (cont. ) n Many older adults don’t report mistreatment even if they are able n n 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 20

Case Studies n n n 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? 21

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