PACAH 2015 Spring Conference April 30, 2015

Prepare for Increased Scrutiny of Allegations of Abuse & Neglect

Paula G. Sanders, Esquire Cynthia A. Haines, Esquire

Overview

• • • • • • Adult Protective Services Act Review definitions of abuse and neglect Examine reporting requirements imposed by Department of Health (DOH), Act 13 and the Department of Aging (PDA), local Area Agencies of Aging (AAAs) Elder Justice Act Criminal Neglect of Care-Dependent Persons Practical Considerations 2

Increased Focus

• Creation of special team within Office of Attorney General, Elder Abuse Unit  >5,000 referrals last year • Potential civil and criminal liability • New reporting obligations 3

Child Protective Services Law (CPSL) 23 Pa.C.S. §§ 6301-6385

• Requires mandated reporters report suspected child abuse to Department of Human Services (DHS, formerly Department of Public Welfare) • Requires certain persons providing care to children to obtain specific background clearances • Requires licensed health care professionals and certain persons who have direct contact with children to obtain training regarding reporting requirements

Duty to Report Suspected Child Abuse

• Must report if

reasonable cause to suspect

child is victim of child abuse under the following circumstances:  Mandated reporter comes into contact with child in the course of employment, occupation and practice of a profession or through a regularly scheduled program, activity or service  Mandated reporter is directly responsible for the care, supervision, guidance or training of child, or is affiliated with an agency, institution, organization, school, regularly established church or religious organization or other entity that is directly responsible for the care, supervision, guidance or training of child

CPSL: Duty to Report:

 A person makes a specific disclosure to the mandated reporter that an identifiable child is the victim of child abuse  An individual 14 years of age or older makes a specific disclosure to the mandated reporter that the individual has committed child abuse

CPSL: How to Report

• Oral report using toll-free hotline (800-932-0313) • Written report using electronic system established by DHS www.compass.state.pa.us/cwis • Must follow oral report with a written report to DHS or the county agency assigned to the case within 48 hours of making oral report

CPSL Penalties for Failure to Report

• Third degree felony if:  Person or official willfully fails to report   Child abuse constitutes a felony of the first degree or higher, and Person or official has direct knowledge of the nature of the abuse • Otherwise, willful failure to report is second degree misdemeanor • Continuing failure to report is first degree misdemeanor • A second or subsequent offense is either a second or third degree felony, depending on severity of the abuse

Adult Protective Services, Act 70 of 2010 (APSA)

• Enacted to provide protective services to adults between 18 and 59 years of age who have a physical or mental impairment that substantially limits one or more major life activities  Administered by Department of Human Services (DHS) • Similar to the Older Adult Protective Services Act (OAPSA) (60 and older)  OAPSA administered by Department of Aging 9

Current Implementation

• Outreach and Education • Bids received and contract awarded to Liberty Healthcare Resources, Inc.

• Regulations in development and will be posted for public comment • Implementation of Statewide Abuse Hotline 10

DHS Memo: Mandatory Reporting Requirements (4/4/2015)

• Triggers upon  observation of suspected abuse, neglect, exploitation or abandonment or 

Reasonable cause to suspect

• First, assist recipient and assure health & safety • Second, follow reporting requirements 11

APSA Reporting Procedures

• Immediate oral report to Protective Services Hotline 1-800-490-8505 • Hotline call referred to APS agency—Liberty Healthcare Corporation • Within 48 hours, make written report to Liberty Healthcare (email or fax)  Nursing facility may use PB-22 form 12

Additional APSA Reporting Requirements

• Reasonable cause to suspect sexual abuse, serious injury, serious bodily injury or suspicious death  Immediate oral report to law enforcement  Immediate oral report to DHS at 717-265 7887, option #3  Joint written report within 48 hours to law enforcement NHA/employee of nursing home may use PB-22 form 13

APS Investigative Timeline

• Priority reports require immediate attention  Adult reported to need protective services is at imminent risk of death or serious injury or serious bodily injury  Investigation must begin within 24 hours • Non-priority report does not require immediate attention  Investigation must begin within 72 hours 14

What Is An APS Agency Required To Do?

• • • • • Investigate allegations Determine if abuse, neglect, exploitation or abandonment has occurred Provide services to adults who voluntarily consent Cooperatively develop a service plan with agency staff, the adult, the adult’s guardian and other family and advocates when appropriate Provide services in the least restrictive environment and the most integrated setting 15

What Is An APS Agency Required To Do?

• • • Ensure services do not supplant any public or private entitlements or resources Ensure protective services are short-term. Seek court orders if denied access to the alleged victim or records related to the alleged victim Seek judicial relief to require a facility to protect the safety of an adult when the licensed program is believed to continue to jeopardize the safety of the adult 16

“No Need” Determination

• No need for protective services when the person reported to be in need of protective services meets either of the following criteria:   Has the capacity to perform or obtain, without help, services necessary to maintain physical or mental health Is not at imminent risk or danger to his person or property 17

APSA Definitions: Abuse

• Infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish • Willful deprivation by a caregiver of goods or services which are necessary to maintain physical or mental health • Sexual harassment or rape 18

APSA Definitions: Neglect & Abandonment

• Neglect: Failure to provide for oneself or the failure of a caregiver to provide goods, care or services essential to avoid clear and serious threat to the physical or mental health of an adult • Abandonment: Desertion of an adult by a caregiver 19

APSA Definitions: Exploitation

• An act or course of conduct by a caregiver or other person against an adult or an adult’s resources, without the informed consent of the adult or with consent obtained through misrepresentation, coercion or threats of force, that results in monetary, personal or other benefit, gain or profit for the perpetrators or monetary or personal loss to the adult 20

Who Is Eligible To Receive Act 70 Protective Services?

• A resident of the Commonwealth • An adult between 18 and 59 years of age with a physical or mental impairment that substantially limits one or more major life activities • An adult who needs the assistance of another person to obtain protective services in order to prevent imminent risk to person or property 21

Who Is A Mandated Reporter Under APSA?

• • • • • • • • An employee or administrator of a facility Assisted Living Facility/Personal Care Home Domiciliary Care Home Home Health Care Agency Intermediate Care Facility for Individuals with Intellectual Disabilities Nursing Home Older Adult Daily Living Center Residential Treatment Facility 22

APSA Mandated Reporter

• An organization or group of people that use public funds and is paid, in part, to provide care and support to adults in a licensed or unlicensed setting 23

Nursing Home Abuse Definitions

• • Federal: Willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish (42 CFR 483.13(b), 488.301) DOH: Infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm or pain or mental anguish, or deprivation by an individual, including a caretaker, of goods or services necessary to attain or maintain physical, mental & psychosocial well being (28 Pa. Code 201.3) 24

Act 13 Abuse Definition

• Occurrence of one or more of the following acts: (1) infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish; (2) willful deprivation by a caretaker of goods or services necessary to maintain physical or mental health; (3) sexual harassment; and/or (4) sexual abuse (35 P.S. §10225.701; 15 Pa Code § 15.151 (Act 13)) 25

Reporting Abuse

• Report to DOH and complete PB-22 • Verbal notification to local AAA and PDA • Report Act 13 abuse events immediately to AAA and then complete PB22 within 48 hours • Note some events may be DOH reportable and not PDA reportable, and vice versa 26

Reporting Abuse

• Immediate verbal report to law enforcement and PDA for:  Sexual abuse    Serious bodily injury Serious physical injury Suspicious death 27

Neglect Definitions for Nursing Homes

• Federal: Failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness (42 CFR 483.13(c), 488.301) • DOH: Deprivation by a caretaker of goods or services which are necessary to maintain physical or mental health (28 Pa. Code 201.3) • OAPSA: Willful deprivation by a caretaker of goods of services which are necessary to maintain physical or mental health (Act 13 of 1997) 28

Reporting Neglect

• All reports under for neglect require a PB22 and should be reported to DOH and local AAA verbal notification and follow up with written report – PB-22 • Reportable to PDA/Law enforcement if serious physical or bodily harm 29

Reporting Suspicion of a Crime in Long Term Care Facilities

• • • Elder Justice Act (EJA) applies to facilities receiving at least $10,000 in federal reimbursement Covered Individuals are required to report to the state survey agency and local law enforcement any reasonable suspicion of a crime against any individual who is a resident of, or receiving care in nursing care facility Failure to report: civil money penalties of not more than $2000,000; exclusion; if exacerbation- up to $300,000 30

EJA Reports

• Serious bodily injury – within 2 hours. Required to report the suspicion immediately, but no later than two (2) hours after forming the suspicion • No serious bodily injury – within 24 hours. Required to report the suspicion no later than twenty four (24) hours after forming the suspicion 31

Criminal Neglect of a Care-Dependent Person, 18 Pa.C.S.A. Section 2713

• Who can be prosecuted? Caretakers, including owner, operator, manager or employee of a  Nursing home  Personal care home  Community residential facility  Adult daily living center  Home health agency  Home health service provider 32

Caretakers Do Not Have To Be Individuals

• Caretakers also include:  Corporations    Partnerships Unincorporated associations or Any other business entity 33

Mental Status of Accused -- Criminal Neglect

• • • Knowing Intentionally OR Recklessly  A conscious disregard of a substantial and unjustifiable risk that bodily injury will result, and  A gross deviation from the standard of conduct that a reasonable person would observe in the actors situation 34

Injury for Criminal Neglect

• • Causing  Bodily injury or   Impairment of physical condition or Substantial pain Serious bodily injury  Serious permanent disfigurement or  Protracted loss or impairment of the function of any bodily member or organ 35

Causation for Criminal Neglect

• By failing to provide the treatment, care, goods or services that result in injury under 2713(a)(1) • By failing to provide correctly the physical restraint, chemical restraint, medication or isolation that result in an injury under 2713(a)(1) 36

What Is The Duty Owed?

• To preserve the  Health    Safety or Welfare Of a Care-Dependent Person to whom caretaker is responsible to provide care 37

Care-Dependent Person for Criminal Neglect

• Any adult who  Due to a physical or cognitive disability or impairment  Requires assistance to meet his/her needs for  Food  Shelter  Clothing  Personal care or  Health care 38

Penalty For Conviction

• • Bodily injury – misdemeanor in the 1 st  Maximum punishment  5 years and $10,000 Serious Bodily Injury – Felony in the 1 st  Maximum punishment  20 years and $25,000 degree degree 39

Statutory Defenses for Criminal Neglect

• • • • Compliance with a living will Compliance with written or signed and written instructions, executed when a person is competent Compliance with person’s  Agent  Health Care Agent Compliance with a DNR 40

Investigations

• Major sources of information  The victim and family   State, county and other investigative agencies The facility 41

Facility Responsibility

• • • • Assessment Plan of Action Monitoring Reassessment 42

Considerations

• • • Criminal v civil Criminal statute  Knowingly, intentional or reckless Civil standard  Negligence 43

Considerations

• • • • What is the balance?

Need to look at all the circumstances regarding the injury Could require looking back over the long course of medical treatment or lack of medical treatment Medical records – not documented, NOT done 44

Government Observes

• • • • Facility appearance Resident appearance Staff demeanor Facility staffing 45

Preparation & Training

• • • • • • Documentation is crucial How do you write a PB-22?

Facility liability for rogue employee Preventable serious adverse events (PSAE) implications Conducting investigations Know how to respond to investigations 46

Questions???

Paula G. Sanders, Esquire 717-612-6027 [email protected]

Cynthia A. Haines, Esquire 717-612-6051 [email protected] Post & Schell, PC 17 North 2 nd Street, 12 th Floor Harrisburg, PA 17101 47