Elder Abuse and Mandatory Reporting Requirements

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1 Elder Abuse and Mandatory Reporting Requirements Robert A. Evarts, Esquire Stevens & Lee, P.C. (717)

2 Agenda Introduction Definitions Mandatory Reporting Requirements Questions?

3 Robert Evarts, Esq. Represents health care facilities in administrative and litigation matters and in preventing and managing risk Former Senior Counsel to Pennsylvania Department of Health where he worked with the Division of Nursing Care Facilities, the Bureau of Facility Licensure and Certification and Deputy Secretary for Quality Assurance Experienced litigator in state and federal courts and has pursued nearly 100 administrative matters including appeals to the Pennsylvania Commonwealth Court and the Pennsylvania Supreme Court

4 What Laws Create Mandatory Reporting? PA Older Adult Protective Services Act: - 35 P.S PA Medical Care Availability and Reduction of Error (MCARE) Act - 40 P.S PA Regulations: - 6 Pa.Code and Pa.Code Pa.Code Elder Justice Act (part of Patient Protection and Affordable Care Act) - Pub.L.No , at Title VI, Subtitle H,

5 What is Elder Abuse? Neglect? Exploitation?

6 Definition of Abuse from the Older Adult Protective Services Act (OAPSA): The occurrence of one or more of the following acts: 1. The infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish. 2. The willful deprivation by a caretaker of goods or services which are necessary to maintain physical or mental health. 3. Sexual harassment, rape or abuse, as defined in the act of October 7, 1976(P.L. 1090, No. 218) known as the Protection from Abuse Act.

7 Definition of Abuse from the Elder Justice Act (EJA) The term abuse means the knowing infliction of physical or psychological harm or the knowing deprivation of goods or services that are necessary to meet essential needs or to avoid physical or psychological harm.

8 Abuse Common elements: - Knowing/willful - Harm - Deprivation

9 Neglect According to OAPSA The failure to provide for oneself or the failure of a caretaker to provide goods or services essential to avoid a clear and serious threat to physical or mental health. No older adult who does not consent to the provision of protective services shall be found to be neglected solely on the grounds of environmental factors which are beyond the control of the older adult or the caretaker, such as inadequate housing, furnishings, income, clothing or medical care.

10 Neglect According to EJA The term neglect means - the failure of a caregiver to provide the goods or services that are necessary to maintain the health or safety of an elder; or - self-neglect

11 Self-Neglect According to EJA The term self-neglect means an adult s inability, due to physical or mental impairment or diminished capacity, to perform essential self-care tasks including: - obtaining food, clothing, shelter and medical care; - obtaining goods and services necessary to maintain physical health, mental health, or general safety; or - managing one s own financial affairs

12 Neglect Common Elements - Control - Capacity - Caretaker

13 Exploitation According to OAPSA An act or course of conduct by a caretaker or other person against an older adult or an older adult s resources, without the informed consent of the elder adult or with consent obtained through misrepresentation, coercion or threats of force, that results in monetary, personal or other benefit, gain or profit for the perpetrator or monetary or personal loss to the older adult.

14 Exploitation According to EJA The term exploitation means the fraudulent or otherwise illegal, unauthorized, or improper act or process of an individual, including a caregiver or fiduciary, that uses the resources of an elder for monetary or personal benefit, profit or gain or that results in depriving an elder of rightful access to, or use of, benefits, resources, belongings or assets.

15 Exploitation Common elements: - Caretaker or other - Use for a purpose other than to benefit older adult - Knowing action

16 Facility According to OAPSA Any of the following: 1. A domiciliary care home 2. A home health care agency 3. A long-term care nursing facility 4. An older adult daily living center 5. A personal care home

17 Facility According to EJA The term long-term care facility means a residential care provider that arranges for, or directly provides, long-term care.

18 Facility Common elements: - Include personal care homes - Broad in scope

19 Reporting Requirements OAPSA, Chapter 51 and EJA have different requirements with regard to: - Who has to report; - What has to be reported; - When it must be reported; and, - To whom it must be reported

20 OAPSA Mandatory Reporting Who - Employee or Administrator

21 OAPSA Mandatory Reporting What - Reasonable cause to suspect that a recipient is a victim of abuse What is reasonable cause?

22 OAPSA Mandatory Reporting When - Immediately make an oral report - Written report within 48 hours

23 OAPSA Mandatory Reporting To Whom - The local provider of protective services usually the Area Agency on Aging - Employees must immediately notify administrator of report of abuse - AAA must notify state licensing agency and administrator of written reports of abuse

24 OAPSA Voluntary Reporting Who - Everyone

25 OAPSA Voluntary Reporting What - Reasonable cause to believe an older adult needs protective services

26 OAPSA Voluntary Reporting When - No time restrictions

27 OAPSA Voluntary Reporting To Whom - AAA/Protective Services

28 Chapter 51 Mandatory Reporting Who - Facilities licensed by PA Department of Health

29 Chapter 51 Mandatory Reporting What - information which shows that the facility is not in compliance with the applicable Department regulations, and that the noncompliance seriously compromises quality assurance or patient safety - a situation or the occurrence of an event at the facility which could seriously compromise quality assurance or patient safety

30 Chapter 51 Mandatory Reporting When - Any event or situation that seriously compromises quality assurance or patient safety must be reported immediately

31 Chapter 51 Mandatory Reporting To Whom - The Pennsylvania Department of Health to the director of the division in the Department responsible for the licensure of that type of health care facility

32 EJA Mandatory Reporting Who - Owners, operators, employees, managers, agents or contractors of long-term care facilities that received at least $10,000 in federal funds the preceding year

33 EJA Mandatory Reporting What - Any reasonable suspicion of a crime against any individual who is a resident of, or is receiving care from, the facility Includes abuse, neglect and exploitation

34 EJA Mandatory Reporting When - If suspicion results in serious bodily injury, report must be made immediately (within 2 hours) - If no serious bodily injury, report must be made within 24 hours

35 EJA Mandatory Reporting To Whom - The Secretary and one or more law enforcement entities

36 EJA Additional Provisions Annual obligation to determine if federal receipts are over $10,000 Notice to individuals regarding their reporting obligations

37 EJA Additional Provisions Penalty for failure to report as required: - $200,000 per instance - Exclusion from federal healthcare programs - $300,000 per instance if failure to report exacerbates the harm or causes harm to another person

38 EJA Additional Provisions Retaliation for reporting is prohibited - Includes demotion, dismissal, suspension, threats, harassment, denial of promotion, reporting to state licensing board Penalties - $200,000 per instance - Exclusion from federal healthcare programs

39 EJA Additional Provisions The Elder Justice Coordinating Council - makes recommendations relating to elder abuse, neglect and exploitation to HHS, DOJ and other governmental agencies The Advisory Board creates short and long-term strategic plans for the development of the field of elder justice

40 EJA Additional Provisions $26 million in grants to develop stationary and mobile forensic centers to develop expertise and provide services relating to elder abuse, neglect and exploitation Grants available to offer, and financially reward employees to participate in continuing training and certification Grants available to offset cost associated with EHR

41 EJA Additional Provisions Over $500 million in grants available through 2014 to improve state and local adult protective services programs that investigate reports of abuse, neglect and exploitation $72.5 million in grants and training available to state long-term care ombudsman programs

42 EJA Additional Provisions $12 million each year to create the National Training Institute for federal and state surveyors to improve the training of the surveyors who investigate allegations of abuse, neglect and misappropriation of property.

43 Overview of Mandatory Reporting Requirements Who? What? When? To Whom?

44 Implications of EJA Increase in awareness, detection and enforcement of elder abuse Significant increase in state and federal penalties Increase in liability exposure

45 Questions?

46 Stevens & Lee s more than 240 lawyer and non-lawyer professionals assist health care providers and organizations meet the challenges they face in a changing and consolidating industry. Our Long Term Care Group consists of a team of dedicated professionals who bring a unique combination of talents and expertise to the challenges of providing long term care. We integrate up-to-the-minute industry knowledge with practical experience in providing our clients with highly skilled legal counseling. For more information, please contact: Robert A. Evarts (717)

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