Elder Justice: Protection
and Advocacy
2012 Technical Assistance
Regional Conferences
David Hoffman, Esq.
David Hoffman & Associates
Two Penn Center
Suite 200
Philadelphia PA 19102
dhoffman@DHoffmanAssoc.com
Older Adults Protective Services Act
• History/Advocacy
• Implementation issues
• Amendments
– 1996- Criminal History for Employees Working in
Facilities-PA Supreme Court limited; Policy in place
– 1997-Mandatory Abuse Reporting
The Data
• Draft FY 2010-2011 report from Department of Aging
• 18,129 reports were received by the PS agencies
• 12,499 were investigated (69%)
• 4344 of those cases were substantiated
– Neglect is the number one category
– Self-Neglect continues to be the number one type of elder abuse
case—not only in Pa but nationally
– In PA=37.5% of the cases—self-neglect; 27% caretaker neglect
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–
–
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Financial Exploitation—15.3%
Emotional Abuse-14.8%
Physical Abuse—4.5%
Sexual Abuse-1%
The Data (cont’d)
• Act 13 reports—increased from 534 to 669
• Court actions—232 court petitions filed
– guardianship 55% of the cases
– Involuntary emergency interventions-24%
– Access orders—records (5%) and persons (2%
– PFA and Injunctions against interference (1% each)
The Data (cont’d)
• Elder abuse victim characteristics
– 38% over the age of 81---77% are Caucasian and
67% are females
• Perpetrators--- 59% were between 30-59 years
old
– 64% are female
Training and Coordination
• Approximately 320 law enforcement, judicial,
medical and social service professionals were
trained to identify, resolve and prosecute
elder abuse cases
• Elder Abuse Task Forces—30 statewide; some
more advanced than others—Critically
important
Neglect
• Definition under 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. An older adult who does not
consent to the provision of protective services will
not be found to be neglected solely on the
grounds of environmental factors which are
beyond the control of the older adult of caretaker,
such as inadequate housing, furnishings, income,
clothing or medical care.
Neglect By Caregivers-Criminal
Neglect of a care-dependent person:
– A caregiver is guilty of neglect of a caredependent person if he: (1) intentionally,
knowingly or recklessly causes bodily injury or
serious bodily injury by failing to provide
treatment, care, goods or services necessary to
preserve the health, safety or welfare of a caredependent person
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Neglect by Caregiver-Criminal
• (2) Intentionally or knowingly uses a
physical restraint or chemical restraint or
medication on a care-dependent person, or
isolates a care-dependent person contrary
to law or regulation, such that bodily injury
or serious bodily injury results.
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“Not So” Hypothetical
•
•
•
A facility employed a registered nurse since 1992, for over 17 years. On April 4, 2010, she
was the charge nurse on a unit at the facility. As charge nurse, she was responsible for all of
the unit's operations, including the unit's staffing assignments. That day, the unit was
short-staffed.
At around 8:23 that morning, B.W., a recently admitted 62 year old patient who had a
history of lying on the floor and acting out, left her room and collapsed on the hallway
floor. The facility video camera system, which recorded the event in question (but without
sound), showed that several facility personnel walked past B.W. lying on the floor, but no
one stopped to examine or help her. Upon learning that a patient was lying on the floor,
the nurse went to investigate. When she arrived four minutes later, the nurse saw that B.W.
was still breathing, but was lying face down on the floor with her eyes closed, had her
pants pulled down, and was wet with urine. After calling out to B.W. two or three times
and receiving no response, the nurse went to go check which staff members were able to
help her change B.W., because she could not do that by herself because of her small size.
Four or five minutes later, while checking the nurse staffing list at the nurse station,
another facility attendant informed the nurse that B.W. “had gone bad.” The nurse, along
with two other nurses, immediately rushed back to B.W. and found that B.W. was no longer
breathing. At that point, the nurses got emergency medical equipment—one retrieved the
oxygen mask and CPR shield, and the nurse retrieved the oxygen tanks. The other nurse
remained with B.W. and began to perform CPR. The nurse then returned to the nurse's
station to call 911. Ultimately, their efforts to revive B.W. were unsuccessful.
Neglect—Operational definition?
• Operational definition
-a pattern of conduct or inaction by a person or entity with a
duty of care to provide goods and services that maintain physical or
mental health of a vulnerable adult, or that avoids or prevents
physical or mental harm or pain to a vulnerable adult; and
-An act or omission that demonstrates a disregard of consequences
of such a magnitude as to constitute a significant risk of harm to the
vulnerable adult’s health, welfare or safety
• Mandatory reporting under OAPSA
• Training on investigations
Reporting under PPACA for
Nursing Homes
• Reporting of “reasonable suspicion” of a crime
must occur by virtually EVERYONE!
• Report within 2 hours if serious bodily injury
• Report within 24 hours if no serious bodily
injury
• Report to regulators and law enforcement
• Failure to report leads to significant fines and
exclusion from health care programs
Decisional Capacity
• Self-neglect
• Capacity for purposes of guardianship as an
intervention/remedy
• Limitations on guardianships sought by
Protective Services
The Future
• GAO Report
– 14.1 % of noninstitutionalized older adults had
experienced physical, psychological, sexual abuse,
neglect or financial exploitation
– Agreement that this underestimates the problem
– At risk older adults: those with physical and
cognitive impairments, mental problems and low
social support
– Elder abuse caseloads growing—APS program
resources are not
The Future
• Enhanced reporting and coordination
• Amendments to the OAPSA to address Neglect; include
hospitals in definition of facility (?)
• Additional forensic research to support law
enforcement and caseworkers in identifying elder
abuse cases
• Societal awareness and recognition that elder abuse is
a national problem worthy of a societal response
Questions
David Hoffman, Esq.
Two Penn Center
Suite 200
Philadelphia, PA 19102
215-854-6357
dhoffman@DHoffmanAssoc.com