Laws and Policies Related to Elder

Mistreatment

Module 4

Nursing Responses to Elder Mistreatment

An IAFN Education Course

Learning Objectives

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?

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

3

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

4

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

5

State Laws that Assist EM Victims

1. Laws enabling APS functions 2. Criminal laws3. Laws/policies: institutional mistreatment4. Laws/policies: long-term care facility ombudsmen

program5. Other state laws may be pertinent in civil cases

involving EMDrawn 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

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

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

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

9

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, 200810

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

11

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 & KlemBrandl, Bitondo Dyer, Heisler, Marlatt Otto, Stiegel & Thomas

12

Other State Laws

May be pertinent in civil cases involving EM For example, those addressing

o Guardianship/conservatorshipo Powers of attorneyo Consumer fraud/false claimso Domestic or family violence prevention

Stiegel & Klem

13

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?

14

Mandatory Reporting Laws

Vary by state Critical for nurses to know

specifics of their state regulations

15

Where to Report?

o Reports should be made, in most states, to local APS or law enforcement agency

o Every state has at least one toll-free hotline/helpline for reporting elder mistreatment

o Where do you report?

16

How to Report

17

Assess/screen patient

If EM is suspected, make report to appropriate agency

Safety of patient is nurse’s primary responsibility

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)

18

Issues in Reporting

To overcome hesitation to report suspicions of EM, nurses need to understand

o Failure to report may result in criminal charges and disciplinary action from licensing boards

o In most states, reporters have immunity from liability if mistreatment is unsubstantiated

o Mandatory reporting is exception to HIPAA

o Scope/limits of assistance each responding agency, and time frames/procedures for follow-up

19

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

20

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?

21

Closing Assessment

What have you learned from this module that you can apply to your practice setting?

22