Elder Justice Act Overview
The Elder Justice Act of 2010 (EJA, P.L. 111-148) provides a comprehensive federal framework for preventing and prosecuting elder abuse. In a sign of the age of bipartisan politics, both the House and Senate passed the EJA unanimously. With the EJA , Congress declared that there are a number of problems facing older adults in America and needed greater action at the federal level in order to address these problems. One of these problems is the desire of older adults to be reached out to when there is a suspected case of elder abuse occurring. Another one of these problems is the need for the Federal Government to collect data across older adults in all 50 states and document the working of elder abuse federal investigations. The Elder Justice Act is an attempt to cure the problems of elderly abuse as well as the problems associated with tackling elder abuse in America.
Principal Reporting Mandates of the Act
The Elder Justice Act (EJA) codifies several reporting and due process requirements for facilities that have knowledge or a reasonable suspicion of neglect or abuse of residents or potential abuse of residents in connection with a report to the state or law enforcement. While the Centers for Medicare & Medicaid Services (CMS) could not phase-in the EJA’s reporting requirements for different provider types due to it being a mandate, CMS and the Office of Inspector General (OIG) are recommending that facilities have six months to come into compliance with the two-hour facility reporting requirement. The EJA requires that all facilities must report any reasonable suspicion of a "crime" against a resident to at least one law enforcement entity within two hours of forming a suspicion of the occurrence.
Federal regulations describe a "reasonable suspicion of a crime" as a "suspicion of physical abuse, neglect, or misappropriation (theft) that results in non-serious bodily injury or harm, sexual assault, exploitation, or theft for which there is reasonable suspicion to think that a crime has occurred." The rule also recognizes a "serious bodily injury" to include "any act that results in serious bodily injury, as defined in 42 U.S.C.1395i-3(b)(2), that occurs in the facility, and- the injury is for a degree of severity associated with a subdural hematoma or fracture; and the abuse is an alleged act of either physical or sexual abuse or neglect."
If law enforcement determines that an event reported to it that meets the EJA definition of a "reasonable suspicion of a crime" does not constitute a "crime" under state law, then the facility must still report the incident to the state long-term care ombudsman program or the state survey agency if it is not designated as the investigating authority for incidents suspected or confirmed to be "crimes" under state law.
Facilities must also notify prospective employees in writing about the reporting requirements under the EJA prior to hire.
Responsible Reporting Entities
Certain healthcare providers and suppliers who furnish care to individuals eligible for Medicare and Medicaid benefits and who have been found to have committed a reportable act are subject to the reporting requirements of the Elder Justice Act. More specifically, section 1150B of the Social Security Act requires the Secretary of Health and Human Services ("HHS") to establish a reporting system applicable to certain providers of medical or health items and services furnished to individuals eligible for Medicare and Medicaid benefits (and presumptively, many other federal recipients of health benefits) including: facilities part A providers (e.g., hospitals, SNFs, home health, etc.), part B Medicare suppliers (e.g., DME suppliers), Medicare+Choice organizations, Medicaid Managed Care Organizations, Medicare Part D sponsors and the Medicare program general. Specifically, the reportable acts include certain acts of "abuse or neglect" and "misappropriation of patient funds or properly," involving any individual who is an employee, manager, trustee or officer of a health care provider or supplier submitting a claim for reimbursement to Medicare (for which over $25 million in fines and penalties has been proposed by the Inspector General alone). There is another category that involves persons having fiduciary relationships to an entity that receives funds for providing Medicare or Medicaid items or services, or who otherwise expend funds on its behalf, who embezzle funds or property from the entity. Note: this does not apply to most physicians. There is a separate, very confusing provision that does apply to physicians with a 15% or greater ownership interest in a provider or supplier – this provision requires a report if the physician "directly or knowingly approves" a particular "fiscal or business activity" by the provider that constitutes "abuse, neglect, and misappropriations" (provisions under §1128A.
Categories of Incidents Subject to Reporting
The Elder Justice Act requires any employee of a facility to report to one or more of the following:
Abuse
(e) the term "abuse" means, with respect to an individual, the willful infliction of injury, unreasonable confinement, intimidation, deception, or punishment with resulting physical harm, pain, or mental anguish; or the willful deprivation by an individual including an employee of a facility of goods or services that are necessary to maintain the health or safety of the individual.
Exploitation
(b) the term "exploitation" means the fraudulent or deceptive taking of control over the money or property of an individual for the advantage of another, or the wrongful appropriation of the money or property of an individual to the wrongful conversion of the money or property of the individual, but does not include actions taken in good faith or as part of the administration of a trust or a guardianship.
Neglect
(f) the term "neglect" means the failure— (1) of an owner or operator of a facility to— (A) provide goods and services to individuals that are necessary to avoid physical harm, pain, mental anguish, or emotional distress; or (B) to provide supervision to prevent the actions of other persons that cause the individual serious physical or mental harm; (2) of a caretaker to— (A) provide goods and services to a dependent person that are necessary to maintain the health and welfare of the dependent person; or (B) to provide supervision to a dependent person to protect the dependent person from physical and mental harm; and (3) of an attendee to provide care to a dependent person to prevent physical harm, mental harm, or emotional harm to the dependent person.
Mechanisms for Reporting Elder Abuse
Depending on the circumstances, the person witnessing the elder abuse may be required by law to report the incident. Most states DO require any person who observes or suspects elder abuse to report it to the appropriate authorities immediately. Your own state may have its own specific provisions and requirements, and the penalties for failing to report suspected elder abuse can vary by state. Failing to report elder abuse could subject a person to fines or even criminal prosecution.
Misdemeanor penal provisions for willfully failing to report elder abuse currently exist in Michigan and Wisconsin. Alabama, Florida, and Illinois are legislative "task force" states whose laws require that task forces study and report on supposed abuse of the elderly but do not specifically criminalize failing to report elder abuse. Whether and to what extent such task force reports may eventually lead to criminal provisions remains to be seen. In general, those most likely to have knowledge of elder abuse and therefore be required to report it are law enforcement, hospital or nursing staff members, social workers, clergy members, financial institutions, accountants, and attorneys, as well as the elderly person’s family, friends, and acquaintances .
In addition to requirements that report your observations of or suspicions about elder abuse to law enforcement, hospitals, or nursing facilities, you may also have reporting duties under federal law. Under the Elder Justice Act (EJA; Pub.L. 111-148), any representative of a long-term care facility (like a nursing home), assisted living facility, or skilled nursing facility who knows or has reasonable suspicion that a crime that occurred within the facility may have resulted in harm to a resident is required to report all of the following information to "one or more law enforcement agencies" within two hours for urgent reports, or 24 hours for non-urgent reports: Upon the act becoming law, each state was required to issue a regulation to identify the appropriate agency or agencies for receiving reports under the EJA. The D.C. Adult Protective Services is identified as the agency for reporters in the District of Columbia, and the District has delegated the reporting duty to Metropolitan Police and the Office of the Chief Medical Examiner.
Confidentiality Protections for Reporters
Legal Protections for Reporters of Elder Abuse Under the EJA: Whistleblower and Confidentiality Protection
One of the longest standing protections which has not been altered when it comes to elder abuse reporting is confidentiality. A requirement that individual who reports suspected elder abuse be confidentially was in the Missouri statute long before the EJA and unlike the new requirements of the EJA, maintained that confidentiality responsibility. Pharmacists, for example, often have a legal responsibility to report elder abuse yet the long standing requirement that the reporter’s identity not be transmitted to the authorities has not changed as a result of the EJA. Another exemption to the general liability should a person report under the EJA has to do with a caller’s job not being in jeopardy because that employee delivers information about elder abuse. That is, even if a person loses their job or is subjected to any other kind of retaliation for reporting elder abuse, they cannot be held liable for this harm if the report was made in good faith (28). While details are still being published on exactly how whistleblowers will be protected as the EJA becomes a reality, such expanded whistleblower protections are a welcome change.
Concerns and Criticisms Regarding Elder Justice Reporting
Among the challenges that emerge from the Act’s reporting system or, perhaps, in the healthcare context, in a class of "more bad news than good," is the potential for underreporting. A provider may fail to report incidents out of fear that such a report will lead to retaliation by other employees and residents within a facility, or out of a belief that insufficient, if any, action will be taken. Critics also point out that small providers are often hamstrung by the rigorous reporting system for suspected crimes that it amounts to an undue burden which could discourage them from offering services to elder populations. In addition to more philosophical criticisms of the Act and its reporting system, ongoing debates in the legal community have sought to shine a light on questions such as:
• What evidence must providers or facilities furnish to the Secretary to meet the due diligence requirement for submitting crime reports?
• Is the due diligence standard easier to meet when a crime has occurred in a facility as opposed to being discovered outside the facility?
• How should enforcement actions against facilities be handled when their employees are the subject of criminal investigations, as opposed to those facilities themselves?
• What penalties and fines are appropriate when a provider has failed to report a crime?
• How does the Act’s reporting system squarely balance the compelling needs for both transparency and confidentiality of both the employee and the suspected crime?
• What system is in place for facilities to report and track employee training on the federal regulations under the ACA?
• Which entities qualify as a "Federal adult protective services system" under the Act?
Conclusion: Enhancing Elder Justice Reporting
A review of these statistics and reporting requirements reveals the need for improvements in the efficacy of reporting and publication of data about elder abuse, neglect and exploitation. Specifically, the reporting requirements under the Elder Justice Act should be simplified, and should standardize definitions for the types of abuse and exploitation covered under the Act. Currently, in order to adequately understand and address abuse, neglect and exploitation, federal, state, and local governments all must use many different types of definitions. A nationwide standard would ensure that resources are not wasted simply because defining the problem has proven ineffective, inefficient, or incorrect. One way of ensuring that these definitions are aligned or standardized is by using the terms as defined in the DSM-V. By creating a consistent definition of the types of elder abuse, neglect, and exploitation covered by the Elder Justice Act, federal and state authorities could more easily track and share relevant statistics. Additional improvements could be made to align these definitions with those under the Violence Against Women’s Act and the Missouri Adult Abuse and Neglect Reporting System. Similar changes could be made to the Elder Justice Act to ensure that it is up-to-date with, and coordinated with, existing elder law statutes. For example, the Elder Justice Act does not contain a "no contact" provision after a report of elder abuse, as is found in many states’ elder laws. In Missouri, when reporting elder abuse, the DHS Adult Abuse and Neglect Reporting System ("AANRS") requires "no contact" orders between a perpetrator and his/her victim , until the state can investigate the case. Based on these observations and suggested improvements, the Elder Justice Act should undertake a review and rework of its reporting requirements. In doing so, the data produced by the Act should be more reliable, widely understood, and made available to public resources to ensure effective use of available resources. In addition to these proposed changes, the federal government should better publicize the resources available under the Elder Justice Act and other related federal and state statutes available to assist in the reporting and response to elder abuse, neglect and exploitation. Resources such as the National Center for Elder Abuse and the Adult Protective Services National Voluntary Consensus Guidelines could be improved with greater publicity and visibility. Currently, these resources exist but are not as widely disseminated as they could be. For example, many first responders and law enforcement agencies do not have access to these resources regardless of their value. Similarly, the ways in which information is shared should be reviewed, to ensure that abuse, neglect, and exploitation statistics are properly relayed to appropriate agencies. For example, the CAGE screening exam, when taken, can help determine whether an elder is a victim of alcohol-related elder abuse. However, while some hospitals refer these results to appropriate APS agencies, others do not. An overall re-examination of the statistics and reporting requirements under the Elder Justice Act, and legislative and policy modification and improvement with regard to the Act, will ensure that elder abuse, neglect and exploitation can be properly tracked, reported, shared, and more effectively addressed.