INSERVICE MODULE ON:

REPORTING ABUSE OF ELDERS

AND DEPENDENT ADULTS

Developed by

Allen, Shea & Associates

1780 Third Street

Napa, CA 94559

2/92









INSERVICE MATERIALS ON:

REPORTING ABUSE OF ELDERS

AND DEPENDENT ADULTS*

Directions:

1. Read text;

2. Skip the exercises unless checked (3) below:

[ ] Exercise A

[ ] Exercise B

3. Take quiz and score it;

4. Read relevant sections of text again, to see why any questions were missed;

5. Discuss material, if you wish, with supervisory staff;

6. Read Form B-101 (Employee Statement), and sign the statement, and turn it in to your supervisor;

7. Keep this learning module for future reference.

Materials in this learning module:

Text with references (pp. 2-9);

Exercises (p. 10);

Quiz (pp. 11-12);

Answers to exercises and quiz (p.13); and

Form SOC 341 and Form B-101 (pp. 14-16).

Desired competencies:

1. ability to identify the major types of abuse sometimes perpetrated on adults;

2. ability to define dependent adult, elder, and care custodian within the context of abuse reporting;

3. ability to name at least three types of physical abuse (besides sexual abuse), and at least three types of sexual abuse;

4. knowledge of the conditions under which abuse (or suspected abuse) of elders and dependent adults "must be" or "may be" reported to outside agencies under California law;

5. knowledge of reporting requirements in terms of to whom reports are submitted, how, and how quickly.




* This module deals only with "reporting the abuse of adults to outside agencies." You may have other reporting responsibilities for (a) specials incidents, (b) unusual occurrences, and (c) other events, under law, regulation, and your Agency policy.


TEXT
Synopsis

Under California law, Community Care Facility (CCF) employees MUST report known (or suspected) incidents of physical (including sexual) abuse of dependent adults, when (a) the abuse incident is observed by the person reporting; (b) the nature of the injury clearly indicates abuse; or (c) the alleged victim reports an experience that constitutes abuse. Other kinds of abuse (e.g., neglect, deprivation, abandonment) MAY be reported. Required reports are to be made by telephone immediately (or as soon as possible), and in writing (Form S0C 341) within 36 hours. If an incident occurs within a community care or similar facility, the report goes to the local long-term care ombudsman coordinator or a local law enforcement agency (LEA), such as police or sheriff. If the incident occurs somewhere else, the report is made to the county adult protective services agency or LEA. Sanctions exist for failure to make required reports, for false reports, for abuse itself, and for breaches of confidentiality.

I. INTRODUCTION

The abuse of fellow human beings--physically, psychologically, or financially--is abhorrent to civilized men and women, and can never be tolerated. We share with our fellow Californians a special concern for the abuse of children, dependent adults, and the elderly. Being more vulnerable than others, such individuals face greater risk of abuse.

Care custodians and health practitioners (e.g., nurses) have a responsibility under California law to report to outside law enforcement and protective service agencies certain kinds of abuse of elders and dependent adults. Employees of these latter agencies have comparable reporting requirements.

A care custodian is an administrator or employee of certain public or private facilities, including but not restricted to (a) community care facilities, (b) 24-hour health facilities, (c) respite care facilities, (d) foster homes, (e) schools, (f) sheltered workshops, (g) regional centers for persons with developmental disabilities, and (h) offices or clinics of one kind or another.*

An elder is anyone residing in California, who is 65 years of age or older, whether or not impaired mentally or physically.

A dependent adult is any California resident 18 to 64 years of age, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. Included is any person 18-64 years of age, regardless of physical or mental condition, who is admitted as an in-patient to a 24-hour health facility.

II. WHAT IS ABUSE OF ELDERS OR DEPENDENT ADULTS?

Abuse, in the reporting law, is defined as physical abuse, neglect, intimidation, cruel punishment, fiduciary abuse, abandonment, or other treatment with resulting physical harm or pain or mental suffering, or the deprivation by a care custodian of goods and services which are necessary to avoid physical harm or mental suffering.

The reporting of some kinds of abuse to outside agencies is MANDATORY. The reporting of other kinds is VOLUNTARY.

III. WHAT KIND OF ABUSE MUST BE REPORTED?

Physical abuse must be reported to outside agencies, by those required to report, if in the person's professional capacity and within the scope of his or her employment:

(a) the incident reasonably appears to be physical abuse and is observed by the person reporting;

(b) if physical injury is observed and the nature of the injury, its location on the body, or the repetition of the injury clearly indicates that physical abuse has occurred; or

(c) if an elder or dependent adult tells the reporter that he or she has experienced behavior constituting physical abuse.

Other forms of abuse, such as neglect, deprivation, or abandonment, may be reported to outside agencies under California law.

Physical abuse includes assault, battery, assault with a deadly weapon, prolonged or continued deprivation of food and water, sexual assault, or unreasonable physical restraint.

Assault* is the unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.

Assault with a deadly weapon is use of a deadly weapon or force in an attempt to produce great bodily harm.

Battery is a willful and unlawful use of force or violence upon the person of another.

Sexual assault means any of the following: (a) sexual battery; (b) rape; (c) incest; (d) sodomy; (e) oral copulation; or (f) penetration by foreign object.

Sexual battery is touching an intimate part of a person who is institutionalized or unlawfully restrained, against that person's will, for purposes of sexual arousal, gratification, or abuse.

IV. WHAT KIND OF ABUSE MAY BE REPORTED?

The reporting to outside agencies of abuse, other than physical (and sexual) abuse, is VOLUNTARY. Included is neglect, deprivation, and abandonment.

Neglect means negligent failure of a person having care and custody to exercise that degree of care which a reasonable person in a like position would exercise, including failure to (a) assist in personal hygiene, or in provision of food, clothing, or shelter; (b) provide medical care** for physical and health needs; (c) prevent malnutrition; or (d) protect from health and safety hazards.

Mental suffering means deliberately subjecting a person to fear, agitation, confusion, severe depression, or other forms of serious emotional distress through threats, harassment, or other forms of intimidating behavior.

Fiduciary abuse is a situation in which anyone who has care or custody or in a position of trust with the suspected victim takes, secretes, or appropriates money or property to any use or purpose not in the due and lawful execution of his or her trust.

Abandonment means 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 would continue to provide care and custody.



V. SELF ABUSE VS. ABUSE PERPETRATED BY OTHERS

The form used to report the abuse of elders and dependent adults (SOC 341) indicates that self-inflicted, physical abuse is to be reported. Clearly, if a dependent adult were to commit suicide, such an incident is to be reported, not just as required by abuse reporting law, but by several other laws, regulations, and organizational policies.

What about more typical forms of self-injury, actual or attempted? Consider, for example, a person in a community care facility who has a history of "picking at his skin" or "biting her hand." Do care custodians have a responsibility to report each such incident to outside agencies?

If one re-reads the definitions of assault and battery on page 3, above, the terms "attempt to commit a violent injury" and "unlawful use of force" are used. Further, the definitions deal with aggressive actions towards others.

It seems clear that any self-abuse physically that goes significantly beyond what is known to be the person's established pattern of self-injury, or which requires medical attention out of the ordinary, should be reported, because it may raise new questions as to the person's program of treatment and need for protective services--in this case, protection from the person's own violent or forceful, self-injurious impulses.

Each employee is free to discuss incidents with supervisory staff (e.g., the Administrator or a house manager). However, such individuals may not, under any circumstances, inhibit abuse reporting.

It is the responsibility of each of us to do what we are required to do under the elder and dependent adult abuse reporting law. Until "gray areas" are clarified, it is up to each of us to arrive at a determination as to when we must report abuse. In any event, we may report any abuse we wish. No one should feel constrained in reporting, so long as the incident is not false and known to be false by the person reporting.

VI. WHERE, WHEN, AND HOW ARE REPORTS SUBMITTED?

Physical abuse is reported to different agencies, depending on where the alleged incident occurred. If the incident occurred in a long-term care facility (e.g., ICF/DD-H, adult residential facility), the report must go either to (a) the long-term care ombudsman coordinator or (b) the local law enforcement agency (e.g., police, sheriff, or probation).

If the incident occurred somewhere else (e.g., on a bus; visit to someone's home), the report must go either to (a) the County Adult Protective Services agency or (b) the local law enforcement agency.

If a report is MANDATORY (i.e., physical abuse), the report must be made immediately (or as soon as possible) by telephone, with a follow-up, written report within 2 working days. If the alleged (or suspected) abuse occurred within the facility (group home), call the long-term care ombudsman coordinator or the Police Department, as follows:

INSERT ADDRESS & PHONE NUMBER OF OMBUSMANS

AND POLICE DEPARTMENT



If the alleged (or suspected) abuse occurred outside the facility (group home), call Adult Protective Services or the appropriate, local law enforcement agency, as follows:

INSERT ADDRESS & PHONE NUMBER OF ADULT PROTECTIVE SERVICES,

POLICE DEPARTMENT, AND SHERIFF DEPARTMENT


When two or more persons, who are required to report, are present and jointly have knowledge of a known or suspected instance of elder abuse or abuse of a dependent adult, and when there is agreement among them, the telephone report may be made by a member of the team selected by mutual agreement, and a single report may be made. Any member who has knowledge that the member designated to report has failed to do so, shall thereafter make the report.

The follow-up, written report should be submitted on Form SOC 341 (4/87). A copy of this form is attached. Additional copies are kept on file at the program, or may be obtained from the local regional center.

If the alleged incident occurred in a long-term care facility , the written report goes to the ombudsman coordinator's office. If the incident occurred elsewhere, SOC 341 is to be submitted within 2 working days to the county adult protective services agency.

When making a report by telephone, the ombudsman coordinator (or other agency representative) will ask for the following information, which will be repeated on SOC 341:

a. name of person making the report;

b. name of elder or dependent adult, along with the victim's age and location;

c. information about the incident: nature, type of abuse, date and time; and,

d. names and addresses of family members or any other person responsible for the victim's care.

In addition, the agency representative to whom the telephone report is given may ask for additional information as to (l) the physical, mental health, and competency of the alleged victim; (2) whether the situation is an emergency; (3) family or other social support systems; (4) whether other agencies are involved; (5) degree of dependence on others; and (6) whether there is a conservatorship or representative payee.*

VII. RESPONSIBILITIES OF THE LOCAL OMBUDSMAN COORDINATOR

The local ombudsman coordinator is responsible for investigating all allegations of abuse of elders and dependent adults, when the alleged abuse occurs within a long-term care facility. Such facilities include community care facilities , intermediate care facilities of one kind or another, and several other kinds of facilities.

To proceed with an investigation, the ombudsman coordinator may need the consent of the alleged victim. The ombudsman coordinator may report the alleged abuse to the County Adult Protective Services Agency or to the local law enforcement agency, and ask for assistance in the investigation of the abuse. The police or sheriff's office typically does not need consent of the victim for its investigation.

According to law, the ombudsman coordinator is to notify as soon as possible, by telephone, the appropriate licensing agency (e.g., Community Care Licensing; Health Services Licensing) of alleged or suspected abuse.

VIII. CONFIDENTIALITY AND OTHER PROTECTIONS

In some instances, the local ombudsman coordinator may need the consent of the alleged victim to disclose his or her identity, and other confidential information, to others. Since some victims may not be in a position to give consent or to deny consent for an investigation or protective services, a petition for temporary conservatorship of the victim may be initiated through the courts.

Persons reporting alleged or suspected abuse is also protected. The law provides, for example, that care custodians, health practitioners, and others shall not incur either civil or criminal liability for any report they are required or permitted to make under California law.* Further, such reports and the identity of the reporter are confidential and may be disclosed only to specified agencies or under certain other circumstances.**

Violation of confidentiality provisions is a misdemeanor, punishable by not more than six months in the county jail, by a fine or not more than five hundred dollars ($500) or by both fine and imprisonment.

To encourage care custodians and others to take seriously their reporting responsibilities, the law also provides that failure to report physical abuse of an elder or dependent adult is a misdemeanor, punishable by not more than six months in the county jail or by a fine of not more than one thousand dollars ($1,000), or by both fine and imprisonment.

IX. REFERENCES

1. California Department of Developmental Services, RCO 87-28, Subject: "Reporting Requirements: Elder and Dependent Adult Abuse," from Paul D. Carleton, Deputy Director (May 4, 1987).

2. California Department of Developmental Services, Regional Center Operations Manual (March 1987). Contains a complete copy of the Welfare and Institutions (W&I) Code, Section 15600, et seq., which covers abuse reporting.

3. California Attorney General, Penal Code of California, Peace Officer's Abridged Edition with Index, 9th edition (1986).


REPORTING ABUSE OF ELDERS

AND DEPENDENT ADULTS

EXERCISES

EXERCISE A

Mike is severely developmentally disabled, 29 years of age, and lives in a group home. He has a history of tantrums, during which he often bangs the right side of his head with his fist. The frequency of this behavior is recorded daily; is targeted for change in Mike's Individual Program Plan; and the behavior has been declining in frequency but not severity. A new staff member sees bruises on Mike's head, asks Mike about it, but Mike is unable to tell the staff member anything about the matter.

1. Is Mike a dependent adult? Why or why not?



2. Is the suspected abuse physical or something else? Explain:



3. May the staff member report the abuse to the ombudsman coordinator? Explain:



EXERCISE B

Mary, age 37, is a sexually-active, non-conserved adult with mild mental retardation. Mary spent Thanksgiving with her parents. Returning to the group home, Mary tells staff that she had sexual intercourse with a next-door neighbor. In reply to questions, Mary says (a) that the neighbor is "about her age"; (b) that he had asked her to go to bed with him and she agreed to do so; and (c) that the experience was a good one. Mary's mother found out about the incident, and threatened the neighbor with a statutory rape complaint, because Mary's "mental age" is about ten.

1. Has Mary experienced "sexual abuse"? Why or why not?


2. Believing that the neighbor "took unfair advantage" of Mary, if the staff member were to report that Mary said that she was forced to have sex with the neighbor, could the staff member be held liable for unlawful behavior? Why or why not?


3. If the staff member were to report the incident as a case of "suspected abuse," should the report go to the ombudsman coordinator? Why or why not?




REPORTING ABUSE OF ELDERS

AND DEPENDENT ADULTS

QUIZ

Please check the answer which best describes the requirements of the elder and dependent adult abuse reporting law in California:

1. Which of the following persons working for a community care facility i5 least likely to be considered a care custodian?

a. Administrator

b. Counselor

c. Direct-care aide

d. Gardener

2. Which individual is not included within the meaning of dependent adult for purposes of abuse reporting?

a. 47-year old, living in an intermediate care facility

b. 76-year old, living in a nursing home

c. 20-year old, wheelchair bound, living with parents

d. 62-year old, with a pre-Alzheimer's condition (e.g., significant memory loss), living with her husband

3. Which of the following lists includes most (if not all) of the kinds of abuse that either must be or may be reported?

a. self-inflicted fiduciary abuse, and physical abuse perpetrated by others

b. physical and sexual abuse, neglect, fiduciary abuse, abandonment, and infliction of pain or mental suffering

c. assault, battery, sexual battery, rape, incest, sodomy, oral copulation, and penetration by foreign object

d. failure to assist in personal hygiene; failure to provide food, clothing, and shelter; failure to provide medical care; and failure to prevent malnutrition or to protect from health and safety hazards

4. In which case is Mary, a care custodian in a group home for dependent adults, required to report abuse:

a. Mary sees Alice, a co-worker, encourage a resident with cerebral palsy to run on a track, and the resident falls down and skins his knee

b. Mary is told by a resident that his sister took $50 from his wallet when he went to his parents' home to visit

c. Julie, a resident, is in a rampage and threatening to destroy the office; Mary subdues Julie, but in the process one of Julie's fingers is broken

d. Mary sees Alice, a co-worker, get upset at a resident's refusal to take a shower and slaps the resident across the face

5. Which one of the following conditions best describes the reporting timelines for required abuse reporting?

a. telephone immediately; send report within 48 hours

b. telephone within 8 hours; send report within 24 hours

c. telephone immediately; send report within 36 hours

d. telephone as soon as possible; send report within 48 hours

True or False. --Please circle T or F to indicate whether each statement is true or false.

T F 6. A VOLUNTARY abuse report must be made within 36 hours.

T F 7. Before submitting an abuse report, the care custodian must obtain the informed consent of the alleged victim.

T F 8. All types of abuse must be reported to outside agencies.

T F 9. Under some circumstances, neglect includes failure to assist in personal hygiene.

T F 10. All self-injurious behavior observed in a group home may be reported to the local ombudsman coordinator.

Fill-in questions.--

11. What agency(s) would you call to report physical abuse that you believe occurred to a dependent adult outside the facility (group home)?




12. What FORM would you use to send in a subsequent written abuse report?




13. Name at least two places where such a blank form may be obtained:




14. If you cannot find the proper form, may you write a report on a piece of paper? Please explain:







ANSWERS TO QUIZ

EXERCISE A:

1. Yes. Mike is between 18 and 64 years of age and has functional limitations associated with his developmental disabilities.

2. Physical (self-injury). Neglect might also be involved, if a reasonable person in a like position to the care custodian would (a) provide medical care or (b) protect the resident from self-injury in some way.

3. Yes. All types of known or suspected abuse may be reported. Only physical (including sexual) abuse must be reported.

EXERCISE B:

1. Probably not. Given her age and experience, if her self-report is accurate, no sexual battery occurred. Rape implies force (lack of consent), being under the age of consent, or being known to be unable to give consent. The presumption these days is that an adult who is developmentally disabled is competent until a court order says that he or she is not.

2. Yes. A mandated reporter is given immunity unless he or she gives a false report and knows it is false. In this case, there is also malicious intent.

3. No. Since the incident occurred outside the group home, any report would go to the Adult Protective Services agency.

QUIZ:

1. D 6. F

2. B 7. F

3. B 8. F

4. D 9. T

5. C 10.T

11. Adult Protective Services; a local law enforcement agency (e.g. Police or Sheriff)

12. SOC 341 (called: "Report of Suspected Dependent Adult/Elder Abuse")

13. (Any two.) This learning module; your agency; office of the local long-term care ombudsman coordinator; local regional center.

14. Yes. The "fact" of reporting in a timely fashion is infinitely more important than the paper on which the report is written.



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