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Abuse, Neglect and Exploitation of Vulnerable Adults

Abuse, Neglect and Exploitation of Vulnerable Adults

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Abuse, Neglect and Exploitation of Vulnerable Adults

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  1. Abuse, Neglect and Exploitationof Vulnerable Adults An Overview Iris C. Freeman Center for Elder Justice and Policy William Mitchell College of Law October 9, 2008

  2. Objectives • Recognize characteristics that distinguish this population. • Review MN’s legal definitions of vulnerability and maltreatment. • Understand variability of laws across states. • Be aware of current advocacy efforts to amend MN’s Vulnerable Adult Act. • Be aware of national advocacy effort, the Elder Justice Act.

  3. Distinguishing Characteristics • Longstanding family dynamics make it especially hard for victim to visualize escape. • Most perpetrators are family members (adult children #1, spouse #2). • Victim may depend on perpetrator for physical care and support. • Perpetrator may depend on victim for shelter, money, and care. • Victim may have multiple, serious medical conditions. • Both victim and perpetrator may need extensive medical care.

  4. Distinguishing Characteristics • Neglect may be perpetrated by a caregiver or be reported as self-neglect. • Financial exploitation is rife with subtleties. • Institutional care may be the resolution OR the site of the violence. • Terminology of elder maltreatment includes domestic and residential health care settings.

  5. Distinguishing Characteristics • Unlike domestic violence, the road to safety, empowerment, and independence will probably not be in a traditional shelter, safeguarding the children, and finding steady employment. • Some elder victims do seek services through domestic violence programs. (See Lundy and Grossman, “Elder Abuse: Spouse/Intimate Partner Abuse and Family Violence Among Elders,” Journal of Elder Abuse and Neglect, Vol. 16(1), 2004). • Regardless of dementing illness or frailty, vulnerable adults are not gray-haired children. Ethical issues in intervention are complex.

  6. Numbers • Annual MN Reports: about 15,000 per year in last several years • Statewide records maintained by Aging and Adult Services (APS) in DHS • National Elder Abuse Incidence Study, NCEA, 1998 – Reported 2 million estimated to be only 16% of actual cases. • Types of maltreatment in order of prevalence: neglect, abuse, financial exploitation

  7. Minnesota’s Vulnerable Adult Protection Law – Minn. Stat. 626.557 • Defines vulnerable adult • Defines types of maltreatment • Names mandated reporters • Identifies how, where, & when reports are to be made • Names the investigating agencies • Specifies penalties • Specifies rights of appeal

  8. Vulnerable Adult Act Key Enactment Dates • 1980 • 1995 • 2009 • Each enactment date = several years of preparation

  9. Vulnerable Adult (MN) • A person 18 or older who: • Receives certain services, or • Meets the functional definition of vulnerability • Definition: to trigger mandated report or weaken individual autonomy or both?

  10. Maltreatment (MN) • Includes abuse, neglect and financial exploitation • Defined in the Vulnerable Adult Act and in the Criminal Code • Civil and criminal penalties • Like the definition of vulnerable adult, terms like maltreatment and mistreatment vary across states.

  11. Abuse includes • Physical, verbal and emotional abuse • Most types of sexual conduct by a caregiver • Forcing or enticing a vulnerable adult to perform services against his or her will for the advantage of another • Any conduct (not accidental or therapeutic) that produces or could produce pain, injury or distress for the vulnerable adult

  12. Exceptions to Abuse (MN) • A vulnerable adult or a person with authority to make health care decisions for the vulnerable adult refuses consent or withdraws consent for medical care • or selects spiritual means or prayer for treatment in lieu of medical care

  13. Exceptions to Abuse (MN) • Sexual conduct between caregiver and vulnerable adult, under certain circumstances • Accident – specific to facilities • Therapeutic conduct

  14. Warning Signs of Abuse • Bruises, skin tears, cuts • Broken bones • Injuries inconsistent with explanation • Internal injuries • Changes in mental functioning or behavior • Victim’s statements

  15. Neglect includes • Failure or omission by a caregiver to supply a vulnerable adult with care or services… necessary to obtain or maintain the vulnerable adult’s physical or mental health or safety…or • The absence or likelihood of absence of this care or service.

  16. Exceptions to Neglect (MN) • Mirror those for abuse, e.g. • Refusal of treatment per health care decisions or directives, or • Choosing alternatives to traditional medicine, plus • An error in the provision of therapeutic conduct that does not result in injury or harm, so long as proper procedures of treatment and follow-up occur.

  17. Warning Signs of Neglect • Dehydration • Malnutrition • Weight loss • Poor hygiene • Lack of needed supervision • Absence of needed equipment or prostheses

  18. Financial exploitation includes • In a breach of fiduciary obligation recognized elsewhere in law, an individual • Uses the entrusted funds in a way that, results or is likely to result in detriment to the vulnerable adult, or • Fails to spend the resources in the manner necessary to carry out duties to the vulnerable adult. • Despite headline cases, many situations are not “promising” enough for prosecution.

  19. Financial exploitation includes • In the absence of legal authority, a person • willfully uses, withholds, or disposes of the funds of a vulnerable adult; • obtains wrongful profit or advantage; • acquires possession, control or interest in funds or property through undue influence or duress; or • forced servitude. • But facilities are not obligated to provide financial management or supervise financial management.

  20. Financial exploitation • May be episodic or ongoing, associated or not with physical abuse, emotional abuse, and neglect • Victims often isolated, lonely, grieving • Factors associated with perpetrators – chemical and gambling addictions, sense of “entitlement” • Loss of life savings, assets deprives victim of the economic foundation for independence. • See Rabiner, et. al., “A Conceptual Framework of Financial Exploitation of Older Persons,” Journal of Elder Abuse and Neglect, Vol. 16(2) 2004.

  21. Warning Signs of Financial Exploitation • Being denied basic information about one’s own finances • Unpaid bills (rent, utilities) • Being asked to sign documents “on faith” • Abrupt changes to will • Transfers of assets • Substantial bank withdrawals • Abrupt closure of bank accounts

  22. Mandated Reporters (MN) • A professional or professional’s delegate while engaged in: (1) social services; (2) law enforcement; (3) education; (4) the care of vulnerable adults; (5) any of the occupations referred to in section section 214.01, subdivision 2; (6) an employee of a rehabilitation facility certified by the commissioner of jobs and training for vocational rehabilitation; (7) an employee or person providing services in a facility as defined in subdivision 6; or (8) a person that performs the duties of the medical examiner or coroner. • Anyone can be a voluntary reporter.

  23. Primary System Elements • Common Entry Points that receive reports at the county level • Directory of Common Entry Points, see MN Board on Aging, www.mnaging.org • Lead Administrative Investigative Agencies: DHS for facilities that they license; MDH for facilities that they license; County APS for cases in the community • Issues associated with localized case intake

  24. Definitions Differ Across States • No standard definitions of the population, of what constitutes maltreatment, or how to investigate • Populations are identified by such terms as elder, dependent, or vulnerable, with varying definitions. • Some state abuse prevention laws are singularly aimed at nursing homes and their residents. • Challenge to cases that cross state lines, for data collection, and for research • American Bar Association Commission on Law and Aging has numerous resources on the pertinent state laws. http://www.aganet.org/media/factbooks/

  25. Practice Challenges • Sensitivity to religious and cultural factors • Sorting out social security, retirement, and pension benefits • APS Assessment – once focused on determining need for social services, now a greater role in investigations • Workers pressed to “rush to judgment” about whether facts fit the applicable statutes • Professional liability and headlines

  26. Research Challenges • Has maltreatment as a result of “caregiver burnout” been overblown? • How do we understand the impact of past conflict, e.g. domestic violence, on maltreatment in the caregiving context? • Determining processes by which elder victims seek help • Resolving contradictory findings of existing research, e.g. prevalence of abuse of elder men • State to state comparisons hampered by differing definitions of abuse, neglect and exploitation

  27. Preventing Institutional Abuse • It’s about staffing! • Criminal background checks are helpful but not a substitute for effective interviewing, culture of care, good orientation, training, and good working conditions • According to U.S. GAO 2002 report, 21 states have mandated criminal background checks for nursing facility workers • But definitions and coverage varies. • Sufficient staff and consistency in staffing matter. • Supervision and support are critical to prevention.

  28. Elder Justice Act • Originally introduced in 2003 by Senators John Breaux (D-LA, retired) and Orrin Hatch (R-UT), Representatives Rahm Emanuel (D-IL), Roy Blunt (R-MO) and Peter King (R-NY) • Senate authors in 2005 and 2007 cycles - Orrin Hatch (R-UT) and Blanche Lincoln (D-AR)

  29. Elder Justice Act Goals • Heightened national awareness • Increased knowledge and professional training • Support for prosecution • New long-term care programs to combat elder abuse • Amended over time to improve chances for passage • Note the lag between “authorizing” and “financing”

  30. Elder Justice Act – Awareness and Coordination • Office of Elder Justice at HHS & DOJ • These cases are inherently interdisciplinary. • Federal Office for Adult Protective Services • Note: Today, there is not even one federal employee assigned full-time to the prevention of or response to elder abuse. • Federal roles through Older Americans Act – ombudsman and elder abuse prevention grants; nursing home residents’ rights enforcement; AGs’ Medicaid Fraud Units

  31. Elder Justice Act – Increasing Knowledge • Coordination across governmental units • Research, data collection • Demonstration projects, e.g. safe havens • Screening tools • Model state laws

  32. Elder Justice Act – Increasing Training and Supporting Prosecution • All relevant professionals – social service, health, law enforcement • Geriatricians trained in forensic pathology • Public and consumer information and assistance

  33. Current Status of Bill • Closer than ever to a full Senate vote 2 weeks ago when the Congress became distracted with our national economic crisis…. • Prospects in a new Congress? • What options exist?

  34. For more information about the bill • Status: http://thomas.loc.gov • Elder Justice Coalition www.elderjusticecoalition.org

  35. Advocacy Opportunities Nearby • Vulnerable Adult Stakeholders Group • Key activities since November 2007 • Legislative prospects • VA Stakeholders’ Wiki site http://mnvac.pbwiki.com/ • Opportunities for you

  36. Hot topics in MN • Centralized intake; standard procedures • Amending functional definition of vulnerable adult • Definitions that make it easier to identify and take action on financial exploitation • Role of financial institutions as mandated reporters • “Silver Alert”

  37. For more information • Iris C. Freeman • Advocacy Strategy • (612) 834-4747 phone • (612) 822-3570 FAX • Advocacystrategy@aol.com