Robert A. Evarts, Esquire Stevens & Lee, P.C.
(717) 399-6648
Elder Abuse and Mandatory
Elder Abuse and Mandatory
Reporting Requirements
Reporting Requirements
Agenda
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Introduction
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Definitions
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Mandatory Reporting Requirements
STEVENS & LEE
Robert Evarts, Esq.
• Represents health care facilities in administrative and
litigation matters and in preventing and managing risk
• Former Senior Counsel to Pennsylvania Department of
Health where he worked with the Division of Nursing Care Facilities, the Bureau of Facility Licensure and Certification and Deputy Secretary for Quality
Assurance
• Experienced litigator in state and federal courts and
has pursued nearly 100 administrative matters
including appeals to the Pennsylvania Commonwealth Court and the Pennsylvania Supreme Court
What Laws Create Mandatory Reporting?
• PA Older Adult Protective Services Act: - 35 P.S. § 10225.701 – §10225.707
• PA Medical Care Availability and Reduction of Error (MCARE) Act - 40 P.S. §§ 1301.101-1301.1006
• PA Regulations:
- 6 Pa.Code § 15.21 – § 15.27 and § 15.151 - § 15.157 - 28 Pa.Code § 51.3
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What is Elder Abuse?
Neglect?
Definition of Abuse from the Older Adult
Protective Services Act (OAPSA):
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The occurrence of one or more of the following acts:
1. The infliction of injury, unreasonable confinement, intimidation
or punishment with resulting physical harm, pain or mental anguish.
2. The willful deprivation by a caretaker of goods or services
which are necessary to maintain physical or mental health.
3. Sexual harassment, rape or abuse, as defined in the act of
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Definition of Abuse from the Elder Justice Act
(EJA)
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The term “abuse” means 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
Abuse
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Common elements:
- Knowing/willful - Harm
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Neglect According to OAPSA
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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. No older adult who does
not consent to the provision of protective services shall be
Neglect According to EJA
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The term “neglect” means –
- the failure of a caregiver to provide
the goods or services that are
necessary to maintain the health or safety of an elder; or
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Self-Neglect According to EJA
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The term “self-neglect” means an adult’s inability, due to
physical or mental impairment or diminished capacity, to
perform essential self-care tasks including:
- obtaining food, clothing, shelter and medical care;
- obtaining goods and services necessary to maintain physical
health, mental health, or general safety; or
Neglect
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Common Elements
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Exploitation According to OAPSA
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An act or course of conduct by a caretaker or other person
against an older adult or an older adult’s resources, without
the informed consent of the elder adult or with consent
Exploitation According to EJA
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The term “exploitation” means the fraudulent or otherwise
illegal, unauthorized, or improper act or process of an
individual, including a caregiver or fiduciary, that uses the
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Exploitation
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Common elements:
- Caretaker or other
Facility According to OAPSA
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Any of the following:
1. A domiciliary care home 2. A home health care agency
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Facility According to EJA
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The term “long-term care facility” means a residential
Facility
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Common elements:
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Reporting Requirements
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OAPSA, Chapter 51 and EJA have different requirements
with regard to:
- Who has to report;
- What has to be reported;
OAPSA – Mandatory Reporting
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Who
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OAPSA – Mandatory Reporting
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What
- Reasonable cause to suspect that a recipient is a victim of abuse
OAPSA – Mandatory Reporting
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When
- Immediately make an oral report
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OAPSA – Mandatory Reporting
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To Whom
- The local provider of protective services – usually the Area Agency
on Aging
- Employees must immediately notify administrator of report of
abuse
- AAA must notify state licensing agency and administrator of
OAPSA – Voluntary Reporting
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Who
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OAPSA – Voluntary Reporting
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What
- Reasonable cause to believe an older adult needs protective
OAPSA – Voluntary Reporting
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When
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OAPSA – Voluntary Reporting
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To Whom
Chapter 51 – Mandatory Reporting
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Who
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Chapter 51 – Mandatory Reporting
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What
- information which shows that the facility is not in compliance
with the applicable Department regulations, and that the noncompliance seriously compromises quality assurance or patient safety
- a situation or the occurrence of an event at the facility which
Chapter 51 – Mandatory Reporting
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When
- Any event or situation that seriously compromises quality
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Chapter 51 – Mandatory Reporting
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To Whom
- The Pennsylvania Department of Health to the director of the
EJA – Mandatory Reporting
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Who
- Owners, operators, employees, managers, agents or contractors of
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EJA – Mandatory Reporting
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What
- Any reasonable suspicion of a crime against any individual who is
a resident of, or is receiving care from, the facility
EJA – Mandatory Reporting
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When
- If suspicion results in serious bodily injury, report must be made
immediately (within 2 hours)
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EJA – Mandatory Reporting
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To Whom
EJA – Additional Provisions
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Annual obligation to determine if federal receipts are over
$10,000
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EJA – Additional Provisions
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Penalty for failure to report as required:
- $200,000 per instance
- Exclusion from federal healthcare programs
- $300,000 per instance if failure to report exacerbates the harm or
EJA – Additional Provisions
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Retaliation for reporting is prohibited
- Includes demotion, dismissal, suspension, threats, harassment,
denial of promotion, reporting to state licensing board
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Penalties
- $200,000 per instance
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EJA – Additional Provisions
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The Elder Justice Coordinating Council - makes
recommendations relating to elder abuse, neglect and
exploitation to HHS, DOJ and other governmental
agencies
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The Advisory Board – creates short and long-term
EJA – Additional Provisions
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$26 million in grants to develop stationary and mobile
forensic centers to develop expertise and provide services
relating to elder abuse, neglect and exploitation
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Grants available to offer, and financially reward
employees to participate in continuing training and
certification
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EJA – Additional Provisions
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Over $500 million in grants available through 2014 to
improve state and local adult protective services
programs that investigate reports of abuse, neglect and
exploitation
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$72.5 million in grants and training available to state
EJA – Additional Provisions
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$12 million each year to create the National Training
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Overview of Mandatory Reporting
Requirements
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Who?
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What?
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When?
Implications of EJA
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Increase in awareness, detection and enforcement of
elder abuse
Stevens & Lee’s more than 240 lawyer and non-lawyer professionals assist health care providers and organizations meet the challenges they face in a changing and consolidating industry. Our Long Term Care Group consists of a team of
dedicated professionals who bring a unique combination of talents and expertise to the challenges of providing long term care. We integrate up-to-the-minute industry knowledge with practical experience in providing our clients with highly skilled legal counseling.
For more information, please contact:
Robert A. Evarts
