Mandated Reporting of Elder and Dependent Adult Abuse & Neglect Leslie Morrison Director, Investigations Unit Disability Rights California ( 510) February 2013

2 Who’s covered? Who has to report? “Mandated Reporter” Any person provides care or services for an elder or dependent adult. WIC §15630(a) All PRA employees “Offices of patients’ rights advocates, including attorneys” WIC § (r) Many others including facility staff, ILC staff, home health agencies, fire department, protective services & mental health agencies, employees of financial institutions, clients’ rights advocates, … Elders & Dependent Adults Dependent adult  CA resident btw [inclusive of] 18 & 64 years who: has physical or mental limitations that restrict ability to carry out normal activities or protect his/her rights OR is admitted as inpatient facility to 24 hour health facility WIC § Elder  CA resident 65 years or older WIC §

3 What must be reported? Incidents of:  Abuse: physical, financial, sexual  Neglect  Abandonment  Abduction  Isolation  Treatment resulting in physical harm  Self neglect That, in your professional capacity or within the scope of your employment, You have (1) observed, (2) had reported to you by alleged victim, (3) have knowledge of what reasonably appears to be, or (4) reasonably suspect occurred. WIC §15630(b)(1)

4 Definitions: WIC §15610 Abuse: Abuse: (a) physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; (b) deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. WIC § Physical Abuse: Physical Abuse: assault, battery, assault with a deadly weapon, unreasonable physical constraint, sexual assault (f) restraint used for punishment or convenience or beyond MD order or for any purpose not authorized by MD. WIC § Abandonment: Abandonment: desertion or willful forsaking of an elder or dependent adult by anyone having care or custody of that person under circumstances in which a reasonable person who continue to provide care and custody. WIC § Financial abuse: Financial abuse: take, secret, appropriate, or retain real or personal property for wrongful use &/or with intent to defraud. WIC §

5 Abduction: Abduction: removal from state & restraint from returning. WIC § Isolation: Isolation: (a)(1) intentionally prevent from receiving mail or phone calls; (2) false statement telling a visitor that individual is not present or does not wish to talk/meet with caller for purpose of preventing contact (3) false imprisonment; physical restraint to prevent from meeting visitors (4) physical restraint to prevent meeting with visitor WIC § Neglect: Neglect: the negligent failure by any person having responsibility for care or custody to exercise that degree of care that a reasonable person in a like position would exercise and includes  Failure to assist in person hygiene or provision of food clothing or shelter  Failure to provide medical care for physical or mental health needs  Failure to protect from health and safety hazards  Failure to prevent malnutrition or dehydration WIC § Self Neglect: Self Neglect: the negligent failure of the individual to exercise that degree of self care that a reasonable person in a like position would exercise…. (see bullets above) (b)(5) Failure of elder or dependent adult to satisfy the needs specified above for him/herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health. WIC §

When to Report & Why 1. Consider attorney client privilege…. 2. Make a telephone report….  If person is in immediate danger, call 911  Otherwise… (see next slides) 3. File written report [SOC abuse report form] You have no duty to investigate! Why report? Why report? These are crimes. Folks are in danger. You are mandated by law and you may be liable for failing to report. 6

When & to Whom to Report Varies with where incident occurred and type & severity of incident 1. Physical or Sexual Abuse in Long Term Care Facilities serious bodily harm a. Results in serious bodily harm –  Call law enforcement IMMEDIATELY (within 2 hours)  File written report within 2 hours to: (1) law enforcement; (2) local ombudsman; and (3) licensing. not b. Does not result in serious bodily harm  Call law enforcement within 24 hours  File written report within 24 hours to: (1) law enforcement; (2) local ombudsman; and (3) licensing. 7

Sexual [Abuse] Assault: Sexual [Abuse] Assault: sexual battery, rape, rape concert, spousal rape, incest, sodomy, oral copulation, sexual penetration, lewd or lascivious acts. Welf & Inst. Code § (e). Long Term Care Facility: Long Term Care Facility: a skilled nursing facility, ICF, IMD, congregate living health facility (not hospitals unless distinct part of hospital that provide SNF or ICF services), community care facility (including residential care with 24 hour non-medical care), day treatment, adult day care, and adult day health care), and residential care facilities for the elderly but not a state psychiatric hospital or state developmental center. Welf & Inst. Code § Serious Bodily Injury: Serious Bodily Injury: an injury involving extreme physical pain, substantial risk of death, or protracted loss or impairment of function of a bodily member, organ, or of mental faculty or requiring medical intervention, including, but not limited to, hospitalization, surgery, or physical rehabilitation. Welf & Inst. Code §

[Physical or Sexual Abuse in Long Term Care Facilities] c. Cause by another resident with dementia & no serious bodily harm  Call law enforcement or ombudsman immediately or as soon as practicably possible  File written report within 24 hours to law enforcement or local ombudsman 2. All other reportable events (neglect, abandonment, abduction, isolation, financial abuse) occurring in long term care facilities  Call law enforcement or ombudsman immediately or as soon as practicably possible  File written report within 2 working days to law enforcement or local ombudsman 9

Occurring Elsewhere [not in long term care facilities or state facilities] In Community (including in hospitals)  Call law enforcement or adult protective services immediately or as soon as practicably possible  File written report within 24 hours to law enforcement or adult protective services In State Facilities  Call law enforcement or designated DDS/DSH investigators immediately or as soon as practicably possible  File written report within 24 hours to law enforcement or designated DS/DSH investigators 10

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Information to provide Your name and contact information, Name, age and present location of alleged victim, Name & address of family or any other person responsible for alleged victim’s care, Nature & extent of alleged victim’s condition, Date, time and place of incident, Any other information that requested by agency receiving report, including what led you to suspect abuse. WIC §15630(e) 12

13 Exceptions to Mandated Reporting 2 mandated reporter exception: When 2 or more mandated reporters are present and jointly have knowledge or reasonably suspect abuse, may mutually designate a reporter for the team (for both telephone & written report). WIC §15630(d) In long term care facility if:  There is a proper plan of care;  Plan of care was properly provided or executed;  Injury occurred as a result of care provided per plan; and  Mandated reporter reasonably believes injury was not result of abuse. WIC §15630(b)(4)

14 Duty to Report it Yours Note: reporting duties are individual and cannot be impeded or inhibited by a supervisor or administrator. WIC §15630(f) Failure to report (or inhibiting/ impeding reporting) is a misdemeanor = punishable by fine (up to $1000) and/or imprisonment (up to 6 months); attaches to mandated reporter individually. WIC §15630(h) Willful failure to report (or inhibiting/ impeding reporting) resulting in death or great bodily injury is punishable by fine (up to $5000) and/or imprisonment (up to 1 yr); attaches to mandated reporter individually. WIC §15630(h) Mandated reporters are immune from liability for making a required report  May be criminal or civilly liable for knowingly making false report. WIC §15634(a)