World Elder Abuse - PowerPoint Presentation

World Elder Abuse Awareness Day 2011SeniorsAndLawEnforcementTogether

Mandatory Reporting in LouisianaJune 14, 2011Harold S. Bartholomew, Jr.Assistant District AttorneyOffice of Walter P. Reed22nd Judicial District(985) 809-8383

Preliminary Indicators of AbuseThe opinions expressed herein are not necessarily the opinions of the District Attorney’s Office. Each and every case is evaluated in light of the facts particular to that case.

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What We’ll Cover TodayMandatory ReportingCurrent LawMandatory ReportersHealthcareBanksAttorneysDefinitionsQuestions

Elder Abuse is ExplodingFastest growing age groupNo known cure for dementiaVictims often do not reportThird fastest growth job is home careMinimal background checksHigh temptation, low risk

Elder Abuse is a CrimeLouisiana law protects adults aged 60 or older from acts or omissions which result in physical or emotional abuse and neglect, by caregivers and self-neglect  acts of financial exploitation and extortion.

In just the three-month period surveyed, $396,654,700 in losses from all forms of elder financial abuse. Annualized, this estimates that more than $1.5 billion in losses is reported. However, the actual amount involved is really much higher, as no dollar figure was provided in nearly 40% of the articles. Estimating that the unreported losses are equivalent, the annual loss by victims of elder financial abuse is estimated to be at least $2.6 billion.Broken Trust: Elders, Family, and Finances. A Study on Elder Financial Abuse Prevention by the MetLife Mature Market Institute, the National Committee for the Prevention of Elder Abuse, and the Center for Gerontology at Virginia Polytechnic Institute and State University MARCH 2009

Mandatory ReportingLa. R.S. 15:1504 requires reporting of abuse by ANY PERSON “having cause to believe that an adult's physical or mental health or welfare has been or may be further adversely affected by abuse, neglect, or exploitation shall report in accordance with R.S. 15:1505.”Failure to report is punishable by up to six months imprisonment and/or a five-hundred dollar fine. R.S. 14:403.2.

R.S. 15:1504La. R.S. 15:1504.  Mandatory reports and immunityA.  Any person, including but not limited to a health, mental health, and social service practitioner, having cause to believe that an adult's physical or mental health or welfare has been or may be further adversely affected by abuse, neglect, or exploitation shall report in accordance with R.S. 15:1505.B.  No cause of action shall exist against any person who in good faith makes a report, cooperates in an investigation by an adult protective agency, or participates in judicial proceedings authorized under the provisions of this Chapter, or any adult protective services caseworker who in good faith conducts an investigation or makes an investigative judgment or disposition, and such person shall have immunity from civil or criminal liability that otherwise might be incurred or imposed.  This immunity shall not be extended to:(1)  Any alleged principal, conspirator, or accessory to an offense involving the abuse or neglect of the adult.(2)  Any person who makes a report known to be false or with reckless disregard for the truth of the report.(3)  Any person charged with direct or constructive contempt of court, any act of perjury as defined in Subpart C of Part VII of Chapter 1 of Title 14, or any offense affecting judicial functions and public records as defined in Subpart D of Part VII of Chapter 1 of Title 14.Acts 2008, No. 181, §2, eff. June 13, 2008.

Mandatory ReportingR.S. 15:1505. Report shall be made to any adult protection agency or to any local or state law enforcement agency. Need not name the persons suspectedName and address of the adult, of the person responsible for the care of the adult, if available, and any other pertinent information.

14:403.2.  Abuse and neglect of adultsFailure to Report is a Misdemeanor Criminal OffenseA.  Any person, who under R.S. 15:1504(A), is required to report the abuse or neglect of an adult and knowingly and willfully fails to so report shall be guilty of a misdemeanor and upon conviction shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both.

R.S. 14:403.214:403.2.  Abuse and neglect of adultsA.  Any person, who under R.S. 15:1504(A), is required to report the abuse or neglect of an adult and knowingly and willfully fails to so report shall be guilty of a misdemeanor and upon conviction shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both.B.  Any person who knowingly and willfully violates the provisions of Chapter 14 of Title 15 of the Louisiana Revised Statutes of 1950, or who knowingly and willfully obstructs the procedures for receiving and investigating reports of adult abuse or neglect, or who discloses without authorization confidential information about or contained within such reports shall be guilty of a misdemeanor and upon conviction shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both.C.  Any person who reports an adult as abused or neglected to an adult protection agency as defined in R.S. 15:1503 or to any law enforcement agency, knowing that such information is false, shall be guilty of a misdemeanor and upon conviction shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both.D.(1)  Any person who retaliates against an individual who reports adult abuse to an adult protection agency or to a law enforcement agency, shall be guilty of a misdemeanor and upon conviction shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both.(2)  For the purposes of this Section, "retaliation" is defined as discharging, demoting, or suspending an employee who reports the adult abuse; or threatening, harassing, or discriminating against the reporter in any manner at any time provided the report is made in good faith for the purpose of helping the adult protection agency or law enforcement agency fulfill its responsibilities as set forth in Chapter 14 of Title 15 of the Louisiana Revised Statutes of 1950.

Who should report?...anyone having cause to believe that an adult's physical or mental health or welfare has been or may be further adversely affected by abuse, neglect, or exploitation should report

Mandatory Reporting Licensed Health Care ProvidersR.S. 40:2009.20. Duty to make complaints; penalty; immunityB.(1) Any person who is engaged in the practice of medicine, social services, facility administration, psychological or psychiatric services; or any registered nurse, licensed practical nurse, nurse's aide, personal care attendant, respite worker, physician's assistant, physical therapist, or any other direct caregiver having knowledge that a consumer's physical or mental health or welfare has been or may be further adversely affected by abuse, neglect, or exploitation shall, within twenty-four hours, submit a report to the department (Dept. of Health and Hospitals) or inform the unit or local law enforcement agency of such abuse or neglect. ….(2) Any person who knowingly or willfully violates the provisions of this Section shall be fined not more than five hundred dollars or imprisoned for not more than two months, or both.C. Any person, other than the person alleged to be responsible for the abuse or neglect, reporting pursuant to this Section in good faith shall have immunity from any civil liability…D.  All hospitals shall permanently display in a prominent location in their emergency rooms a copy of R.S. 40:2009.20.*Older than R.S. 15:1504.

Does anything prevent reporting?HIPAAEthics / Scope of Practice

HIPAA…Where disclosures are required by law, the Privacy Rule’s minimum necessary standard does not apply, since the law requiring the disclosure will establish the limits on what should be disclosed. Moreover, with respect to required by law disclosures, a covered entity cannot use the Privacy Rule as a reason not to comply with its other legal obligations…. http://www.hhs.gov/ocr/privacy/hipaa/faq/disclosures_required_by_law/909.html

HIPAASection 164.512(a)(2) provides that in making a “required by law” disclosure about adult abuse, neglect or domestic violence (section 164.512(c)), for judicial or administrative proceedings (section 164.512(e)), or for law enforcement purposes (section 164.512(f)), covered entities must also comply with any additional privacy requirements in these provisions that apply. However, none of the additional procedural protections in sections 164.512(c), (e) and (f) apply to the type of “required by law” disclosures to P&As under the provisions of the DD and PAIMI Acts discussed here. http://www.hhs.gov/ocr/privacy/hipaa/faq/disclosures_required_by_law/909.html

Nursing EthicsIt is the position of the New York State Nurses Association that the registered professional nurse has the responsibility to safeguard elders from abuse, neglect and maltreatment. This responsibility is set forth in the American Nurses Association’s (ANA), Scope and Standards of Practice (2004), Scope and Standards for Gerontological Nursing Practice (2001) and the Code of Ethics for Nurses with Interpretative Statements (2001).http://www.nysna.org/practice/positions/position3_04.htm

Nursing EthicsIn order to safeguard this population from abuse, neglect and maltreatment, a registered professional nurse must:Promote, advocate and strive to protect the health, safety and rights of their patients (ANA’s, Scope and Standard of Practice, 2004).Maintain a therapeutic and professional patient-nurse relationship with appropriate professional role boundaries (ANA, Code of Ethics for Nurses, 2001).Owe the same duties to self as to others as well as the responsibility to protect integrity and safety, to maintain competence, and to pursue personal and professional growth (ANA, Code of Ethics for Nurses, 2001).

Nursing EthicsRecognize ethical dilemmas occurring within the practice environment and seek available resources to formulate ethical decisions (Scope and Standards of Gerontological Nursing Practice, 2001).Contribute to the establishment, maintenance and improvement of healthcare environments and conditions of employment conducive to the provision of quality care (ANA, Code of Ethics for Nurses, 2001).Report abuse of elders’ rights, incompetence, and unethical and unlawful practice (Scope and Standards of Gerontological Nursing Practice, 2001).Be knowledgeable regarding the laws and regulations that govern their practice in New York State.

PhysiciansThe AMA recommends that physicians routinely inquire about possible mistreatment of elderly patients, much as they screen for other conditions such as colorectal or breast cancer. Precisely how to ask has not been determined; however, if the questions raise suspicion of an abusive situation, specific steps need to be taken, as outlined below. …Elder abuse and neglect: What physicians can and should do, MAHNAZ AHMAD, MD, MS and MARK S. LACHS, MD, MPH* CLEVELAND CLINIC JOURNAL OF MEDICINE VOLUME 69 • NUMBER 10 pg 806 OCTOBER 2002

Dorne E. Rosenblatt, MD, PhDAnn Arbor, MichDownloaded from www.archfammed.com on May 30, 2010

Can Banks Report?CAN BANK TELLERS TELL? – LEGAL ISSUES RELATING TO BANKS REPORTING FINANCIAL ABUSE OF THE ELDERLY © American Bar Association 20034. There are no major legal obstacles to participation in a bank reporting project: a. Banks that participate in reporting have no reason to fear liability under federal law: the Right to Financial Privacy Act applies only to records and information sought by the federal government, and Section 502(e) the Gramm-Leach-Bliley Act contains several exemptions that would cover both mandatory and voluntary reporting. http://www.ncea.aoa.gov/ncearoot/main_site/pdf/publication/bank_reporting_long_final_52703.pdf

Banks: First Line of Defense?Banks have the potential to be the “first line of defense”15 against financial abuse, by identifying the abuse at its outset, before the elder’s assets have been dissipated. “No institution is in a better position to observe and report” suspicious behavior,16 such as the following:

Banks: Suspicious BehaviorAn unusual volume of banking activity. Banking activity inconsistent with a customer’s usual habits. Sudden increases in incurred debt when the elder appears unaware of transactions. Withdrawal of funds by a fiduciary or someone else handling the elder’s affairs, with no apparent benefit to the elder. CAN BANK TELLERS TELL? – LEGAL ISSUES RELATING TO BANKS REPORTING FINANCIAL ABUSE OF THE ELDERLY © American Bar Association 2003 http://www.ncea.aoa.gov/ncearoot/main_site/pdf/publication/bank_reporting_long_final_52703.pdf

Attorneys Can Disclose"to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services.“ Rule 1.6(b) (3)

Attorney Client PrivilegeTo establish attorney-client privilege, several elements must be proven: (1) the holder of the privilege is or sought to become a client; (2) the communication was made to an attorney or his subordinate in a professional capacity; (3) the communication was made outside the presence of strangers; (4) the communication was made to obtain a legal opinion or services; and (5) the privilege has not been waived. Cacamo v. Liberty Mut. Fire Ins. Co., 798 So.2d 1210 (La. App., 2001), at pg. 1216.

ImmunityAny person “who in good faith makes a report, cooperates in an investigation by an adult protective agency, or participates in judicial proceedings authorized under the provisions of this Chapter,” “shall have immunity from civil or criminal liability that otherwise might be incurred or imposed. …” R.S. 15:1504

Individual DutyWhile hospitals, and health care related companies may have reporting mechanisms in placeMandatory reporting applies to INDIVIDUALSReporting to the company does not absolve the individual of responsibility

Administrators and PhysiciansPotential Civil LiabilityPotential Criminal LiabilityA duty to inform: delay reporting allegations of child or elder abuse even—for internal investigations—and you could land in jail - Safety & Security Agenda, HR Magazine, September 2003, Diane CadrainThe importance of reporting mistreatment of the elderlyAmerican Family Physician, March 1, 2007 by Lisa M. Gibbs, Laura Mosqueda

Civil Liability - NegligenceTo establish liability in a negligence case under the duty-risk analysis, the plaintiff must prove that:1) Defendant owed a duty to Plaintiff2) the requisite duty was breached by Defendant3) the risk of harm was within the scope of protection afforded by the duty breached, and 4) the conduct in question was a cause-in-fact of the resulting harm. Leblanc v. Stevenson, 00-0157 (La. 10/17/2000)

Potential Legal Penalties For Failing To Report* Criminal prosecution. In 42 states, there are criminal consequences--such as a misdemeanor charge or a fine--for failure to report. Fines may range from $50 to $10,000, depending on the state and the severity of the abuse. Imprisonment may range from six months to four years.* Loss of licensure or other professional disciplinary action. This varies by state, but in highly regulated professions--such health care and education--failure to report could lead to loss of one's state license to practice.* Civil liability. Those who fail to report also may face civil lawsuits seeking redress for damages. If the mandated reporter is an HR manager, the company--and possibly the HR manager--may face liability for failure to report suspect actions by employees, as well as negligent hiring and negligent supervision.Damages in a civil lawsuit--particularly for redress of pain and suffering--are potentially far higher than criminal fines.A duty to inform: delay reporting allegations of child or elder abuse even—for internal investigations—and you could land in jail - Safety & Security Agenda by Diane Cadrain

What should be reported?burns, bruises, black or swollen eyes, broken bones, dilated pupils, evidence of restraints, bedsores, lack of clothing or dirty clothing,  body odor, dehydrated or malnourished appearance, no utilities in the home, disappearance of personal property, absence of food or medication, frequent change in doctors, discontinuation of visitor privileges, no visitors allowed, individual expressions of shame, embarrassment or fear.

How to report suspected abuse or neglect:EPS Statewide Hotline (from within Louisiana only) at 1-800-259-4990 If out-of-state, call 1-225-342-9722.Call your local law enforcement agency.Call 911.

What is the Elderly Protective Services Program? The purpose of Elderly Protective Services (EPS) is to protect adults 60 years of age and olderwho cannot physically or mentally protect themselves andwho are harmed or threatened with harm through action or inaction by themselves or by the individuals responsible for their care or by other persons. 

What does EPS do?  Acts to prevent, remedy, halt or hinder acts of abuse and neglect against an elder adult in the community, while promoting the maximum possible degree of personal freedom, dignity and self-determination.  Only when other efforts fail will EPS recommend referral or admission to an appropriate care facility for the elder adult, or seek judicial remedy to the situation.

What happens after a report is made?First,Trained EPS staff screen all reports.  If a case is ineligible for processing by the EPS office the case is referred to alternative community services and resources for action. 

What happens after a report is made?Eligible cases of abuse or neglect are investigated by EPS program staff, intervene when and where appropriate, and prepare a plan of resolution utilizing community resources.  EPS staff monitor this plan at each step until the situation is stabilized.  EPS program staff may call for physical, psychiatric or psychological evaluations as necessary, and will assist in obtaining alternative living arrangements for older adults when the situation requires it.   

What happens after a report is made?When EPS staff determine that a case of abuse or neglect cannot be remedied by other means, they may seek judicial action and may refer the case to the local District Attorney for civil or criminal action.

La. R.S. 15:1503.  DefinitionsFor the purposes of this Chapter, the following terms shall have the following meanings, unless the context clearly indicates a different meaning:(1)  "Abandonment" means the desertion or willful forsaking of an adult by anyone having care or custody of that person under circumstances in which a reasonable person would continue to provide care and custody.

"Abuse"(2)  "Abuse" means the infliction of physical or mental injury, or actions which may reasonably be expected to inflict physical injury, on an adult by other parties, including but not limited to such means as sexual abuse, abandonment, isolation, exploitation, or extortion of funds or other things of value.

"Adult"(3)  "Adult" means any individual eighteen years of age or older, or an emancipated minor who, due to a physical, mental, or developmental disability or the infirmities of aging, is unable to manage his own resources, carry out the activities of daily living, or protect himself from abuse, neglect, or exploitation.

 "Adult protection agency"(4)(a)  "Adult protection agency" means the office of elderly affairs in the office of the governor, for any individual sixty years of age or older in need of adult protective services as provided in this Chapter.(b)  "Adult protection agency" means the Department of Health and Hospitals for any individual between the ages of eighteen and fifty-nine years of age in need of adult protective services as provided in this Chapter.  The secretary of the Department of Health and Hospitals may assign the duties and powers provided in this Chapter to any office of the department for provision of adult protective services, as provided in this Chapter.

 "Capacity to consent" (5)  "Capacity to consent" means the ability to understand and appreciate the nature and consequences of making decisions concerning one's person, including but not limited to provisions for health or mental health care, food, shelter, clothing, safety, or financial affairs.  This determination may be based on assessment or investigative findings, observation, or medical or mental health evaluations.

"Caregiver"(6)  "Caregiver" means any person or persons, either temporarily or permanently, responsible for the care of an aged person or a physically or mentally disabled adult.  "Caregiver" includes but is not limited to adult children, parents, relatives, neighbors, daycare personnel, adult foster home sponsors, personnel of public and private institutions and facilities, adult congregate living facilities, and nursing homes which have voluntarily assumed the care of an aged person, or disabled adult, have assumed voluntary residence with an aged person or disabled adult, or have assumed voluntary use or tutelage of an aged or disabled person's assets, funds, or property, and specifically shall include city, parish, or state law enforcement agencies.

"Exploitation"(7)  "Exploitation" means the illegal or improper use or management of an aged person's or disabled adult's funds, assets, or property, or the use of an aged person's or disabled adult's power of attorney or guardianship for one's own profit or advantage.

"Extortion"(8)  "Extortion" is the acquisition of a thing of value from an unwilling or reluctant adult by physical force, intimidation, or abuse of legal or official authority.

"Isolation"(9)  "Isolation" includes:(a)  Intentional acts committed for the purpose of preventing, and which do serve to prevent, an adult from having contact with family, friends, or concerned persons.  This shall not be construed to affect a legal restraining order.(b)  Intentional acts committed to prevent an adult from receiving his mail or telephone calls.

"Isolation"(c)  Intentional acts of physical or chemical restraint of an adult committed for the purpose of preventing contact with visitors, family, friends, or other concerned persons.(d)  Intentional acts which restrict, place, or confine an adult in a restricted area for the purposes of social deprivation or preventing contact with family, friends, visitors, or other concerned persons.  However, medical isolation prescribed by a licensed physician caring for the adult shall not be included in this definition.

"Neglect"(10)  "Neglect" means the failure, by a caregiver responsible for an adult's care or by other parties, to provide the proper or necessary support or medical, surgical, or any other care necessary for his well-being.  No adult who is being provided treatment in accordance with a recognized religious method of healing in lieu of medical treatment shall for that reason alone be considered to be neglected or abused.

"Protective services"(11)  "Protective services" includes but is not limited to:(a)  Conducting investigations and assessments of complaints of possible abuse, neglect, or exploitation to determine if the situation and condition of the adult warrant further action.(b)  Preparing a social services plan utilizing community resources aimed at remedying abuse, neglect, and exploitation.(c)  Case management to assure stabilization of the situation.(d)  Referral for legal assistance to initiate any necessary extrajudicial remedial action.

"Self-neglect"(12)  "Self-neglect" means the failure, either by the adult's action or inaction, to provide the proper or necessary support or medical, surgical, or any other care necessary for his own well-being.  No adult who is being provided treatment in accordance with a recognized religious method of healing in lieu of medical treatment shall for that reason alone be considered to be self-neglected.

"Sexual abuse"(13)  "Sexual abuse" means abuse of an adult, as defined in this Section, when any of the following occur:(a)  The adult is forced, threatened, or otherwise coerced by a person into sexual activity or contact.(b)  The adult is involuntarily exposed to sexually explicit material, sexually explicit language, or sexual activity or contact.(c)  The adult lacks the capacity to consent, and a person engages in sexual activity or contact with that adult.Acts 2008, No. 181, §2, eff. June 13, 2008; Acts 2010, No. 342, §1.

A Note on Power of AttorneyThe Elderly Person Is Always In ChargeNOT a relativeNOT a person with Power of AttorneyOnly where Committed or Interdicted does this changeThe Elderly Person decides who visits themRemember "Exploitation" and “Isolation”

Rule 1 - Decision-Making: General Principles:A GUARDIAN SHALL EXERCISE EXTREME CARE AND DILIGENCE WHEN MAKING DECISIONS ON BEHALF OF A WARD. ALL DECISIONS SHALL BE MADE IN A MANNER WHICH PROTECTS THE CIVIL RIGHTS AND LIBERTIES OF THE WARD AND MAXIMIZES INDEPENDENCE AND SELF-RELIANCE.1.1 The guardian shall make all reasonable efforts to ascertain the preferences of the ward, both past and current, regarding all decisions which the guardian is empowered to make.1.2 The guardian shall make decisions in accordance with the ascertainable preferences of the ward, past or current, in all instances except those in which a guardian is reasonably certain that substantial harm will result from such a decision.

1.3 When the preferences of the ward cannot be ascertained, a guardian is responsible for making decisions which are in the best interests of the ward.1.4 The guardian shall be cognizant of his or her own limitations of knowledge, shall carefully consider the views and opinions of those involved in the treatment and care of the ward, and shall also seek independent opinions when necessary.1.5 The guardian must recognize that his or her decisions are open to the scrutiny of other interestedparties and, consequently, to criticism and challenge. Nonetheless, the guardian alone is ultimately responsible for decisions made on behalf of the ward.1.6 A guardian shall refrain from decision making in areas outside the scope of the guardianship order and, when necessary, assist the ward by ensuring such decisions are made in an autonomous fashion.A Model Code Of Ethics For Guardians – Cassanto, Simon and Roman, Copyright 1988.

SummaryEveryone is a mandatory reporter in LouisianaNot reporting is a crimeNot reporting may also subject a person/company to civil liability and licensing issuesReporting provides statutory immunity under state lawPower of Attorney is not the “boss” and does not have a “get out of jail free card”Report to EPS or Local Police or Sheriff

Can I Look Up The Law?Yes!The Louisiana Legislature web site has a searchable database of current law at: http://www.legis.state.la.us/ Have an iPhone? (Sorry, no others yet) Search for the free app “fastcase” which contains statutes and cases from most states and Federal courts. http://www.fastcase.com/iphone/

Questions and Answers

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