Elder Justice Act

One of the delightful, but little known, surprises in the Patient Protection and Affordable Care Act (the healthcare reform legislation) is its inclusion of the Elder Justice Act of 2009, a bill which had been introduced four times prior to its passage with the Patient Protection Act.  The Elder Justice Act (“EJA”) will provide federal support and funds to expand the fight against elder abuse, neglect and exploitation.  The Elder Justice Act can be found in sections 6701-6703 and beginning at Section 2011 of H.R. 3590, the Patient Protection Act.  (Go to www.thomas.gov, the Library of Congress web site, and search for HR 3590 ENR.)

Like many laws before it, the Patient Protection Act contains bits and pieces of bills not directly related to the focus of the healthcare reform bill, such as the EJA, but which were rolled into it either as compromises or because an enterprising congressman or senator seized an opportunity.  Bills take on a life of their own as they work their way through Congress. 

There are several interesting parts to the Elder Justice Act.  Because it is fairly meaty, I’ll split my take on it into several blog posts to make it a little easier to digest.

Why Do We Care?  Who is an Elder?  What is Abuse? 

Bear with me for a moment as we wade through definitions, not necessarily the most exciting things in the world.  To interpret any new law, however, we have to start by understanding the terms it uses.  The Elder Justice Act defines an elder as anyone 60 years old or more.  It defines elder justice, from a societal perspective, as “efforts to prevent, detect, treat, intervene in, and prosecute elder abuse, neglect and exploitation; and protect elders with diminished capacity while maximizing their autonomy”.  It goes on to define elder justice from an individual perspective as the “recognition of an elder’s rights, including the right to be free of abuse, neglect, and exploitation.”  This recognition of the right to be free of abuse, neglect and exploitation is key to understanding the purpose of the EJA.

So what are abuse, neglect and exploitation per the EJA?  Abuse is 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.”  

Translation:  Abuse is when someone hurts an elder physically  or psychologically (striking him or her, rape, verbal threats, etc.) or denies the elder goods or services he needs to avoid harm (such as denying him or her food or medicine). 

The EJA defines neglect as the “failure of a caregiver or fiduciary to provide the goods or services that are necessary to maintain the health or safety of an elder; or self neglect.”  Self-neglect is further defined as “an adult’s inability, due to physical or mental impairment or diminished capacity, to perform essential self-care tasks including – a) obtaining essential food, clothing, shelter, and medical care; b) obtaining goods and services necessary to maintain physical health, mental health, or general safety; or c) managing one’s own financial affairs.”

Translation:  If a caregiver (paid or unpaid, professional or family, volunteer, hired or court-ordered) doesn’t provide food, medicines, clothing, shelter or medical care needed to keep an elder healthy and safe, the caregiver has neglected the elder.  (This raises unanswered questions about the extent of the responsibilities of a family member who voluntarily cares for an elder.  The traditional wisdom has been that there is no legal requirement to care for an elderly family member, but if you take on the task, you then need to do a good job.)  If an impaired elder fails to care for herself (for example, she fails to take her diabetes and heart medications) or doesn’t pay her bills or protect her assets (for example, she leaves the unopened bills in the mail box or on the kitchen table and her utilities are turned off as a result), this may be self-neglect.

Exploitation is defined as 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.” 

Translation:  Manipulating, conning, or stealing from an elder is exploitation; this includes a child or caregiver who appropriates an elder’s money or property for his own or who persuades the confused or dependent elder to give him the money, house or car.  

How Prevalent is Elder Abuse, Neglect and Exploitation?

It’s hard to get a solid number.  State Adult Protective Services (APS) agencies are typically the departments who receive complaints of abuse, exploitation or neglect.  APS is not really a national program; it was mandated by Congress in Title XX of the Social Security Act in 1975, but very little federal funding was provided, so states have developed their own individual APS programs.  Because of this independent growth, states define offenses against vulnerable adults in slightly different ways and they group their data on investigations and outcomes differently.  Self-neglect, as opposed to acts by other persons, is addressed and recorded differently in various states.  Trying to organize the data on offenses against elders, which has been periodically attempted by the National Center on Elder Abuse (NCEA), is like compiling a total for the number of apples in different barns when you aren’t sure if the individual farmers who sent you their counts were actually counting apples or oranges.  You can’t be sure your numbers are good.

Nevertheless, NCEA’s 2004 survey of data from APS agencies in all 50 states, plus Guam and D.C., found that APS agencies received 565,747 reports for the year, a 19.7% increase from the prior 2000 survey.  Using data from 19 states with relatively similar definitions and reporting methods for offenses against elders and vulnerable adults (allowing NCEA to compare apples to apples), NCEA broke out the types of substantiated reports received as follows:

• Self-neglect – 36.7%
• Caregiver neglect – 20.1%
• Financial exploitation – 15.8%
• Emotional/Psychological/Verbal Abuse – 14.6%,
• Physical Abuse – 10.5%,
• Other 1.2%
• Sexual Abuse – 1.0%

State reports indicated that 65% of elder abuse victims were women, 42% were 80 years old or greater, and 89% of offenses occurred in the elder’s home or involved elders living in a private home, as opposed to those living in a care facility.  (This last statistic regarding where the offenses occurred may be clouded since some states require offenses that happen inside a care facility to be reported to state licensing boards or other authorities, rather than to APS, which could make APS reports of facility abuse and exploitation artificially low.)

Data on the alleged perpetrators of abuse, exploitation and neglect indicated 52% of the perpetrators were female, 75% were less than 60 years old, 32% were adult children and 21% were other family members.  The other 47% of the perpetrators were a combination of professionals (banks, insurers, investment firms, doctors, non-family caregivers), neighbors, acquaintances and strangers.

It is generally believed that these numbers vastly under-represent the actual frequency of abuse, neglect or exploitation of vulnerable adults.  Because so many of the perpetrators are well known to their victims, and many of them are actually the victims’ children or other family members, elderly victims are often unwilling to report abuse or exploitation to the authorities.  The victims don’t want to send their own children to jail and they don’t want to initiate family conflict or scandal.  Victims are ashamed or are embarrassed by what has happened and want to keep it secret.  Elderly victims may also be dependent on the perpetrators for care, food, shelter, transportation, financial management, safety or companionship and will not risk losing that assistance by reporting the crime.  Victims may fear the perpetrators and are afraid of further harms if they call the police or APS.  Elderly victims with cognitive impairments may not realize that they have been robbed or their property transferred.  They may not be able to clearly communicate, or even remember, physical assaults or theft or other exploitation, and may not be believed even if they try to tell someone.  Because these crimes may not be reported promptly, physical or financial evidence may no longer be available, and the victims often make extremely poor witnesses due to cognitive impairments or other disabilities.  These factors combine to make the cases incredibly difficult to investigate and prosecute successfully.  Perpetrators are often long gone before an investigation is even launched.  The bottom line is that many perpetrators get away with their crimes.

Despite the increasing number of vulnerable adults as our society ages, over half of the APS respondents (representing 30 states) to a winter 2009/2010 national survey of APS agencies by NAPSA (National Adult Protective Services Association) reported current budget cuts averaging 13.5% and major cuts as well to the community support services on which APS case managers rely to help their clients.  As a result, APS agencies are furloughing, laying off or cutting staff, triaging reports, reducing or eliminating certain types of investigations, decreasing the time staff can spend on each investigation, reducing their 24-hour response capabilities and reducing the community services they offer to clients.  As the threats grow, the ability to respond has decreased.

So How Will the Elder Justice Act Help?

To be continued . . .  Read our on-line blog at www.e-seniorservices.com or at www.tagstarrant.org each week in June to learn about how the EJA :

• Creates an Elder Justice Coordinating Council and Advisory Board;
• Creates trial forensic centers to improve the investigation and prosecution of crimes against elders;
• Provides grant money for education, advancement and increased compensation of long-term care providers;
• Provides grant money for long-term care facilities to develop and implement electronic health record (EHR) technology;
• Provides additional funding for APS programs around the country;
• Provides grant money for long-term care ombudsman programs and training;
• May even create a new federal right (perhaps unintentionally) that might provide a civil alternative to criminal prosecution as a response to abuse, neglect or exploitation

Dee Bergan, JD, MA

E-Senior Services/AIM Aging Issues Mediation