Failing to Report Elder Abuse

A Mandated Reporter is defined as “any person who has assumed full or intermittent responsibility for the care or custody of an elder or dependent adult, whether or not he or she receives compensation, including administrators, supervisors, and any licensed staff of a public or private facility that provides care or services for elder or dependent adults, or any elder or dependent adult care custodian, health practitioner, clergy member, or employee of a county adult protective services agency or a local law enforcement agency.”

Need to Report When:

    • The mandated reporter in his professional capacity and scope of employment has observed or has knowledge of an incident that reasonably appears to be abuse; or
    • Reasonably suspects abuse has occurred; or

 

  • Told by an elder or dependent adult that he or she has experienced behavior, physical abuse, abandonment, abduction, isolation, financial abuse, or neglect, then the mandated reporter needs to report the incident immediately.

 

When to Report:

 

  • Mandated Reporters Not in Long-Term Care Facility

 

The Mandated Reporter must report the allegation by telephone or through the confidential Internet reporting tool, immediately or as soon as practicably possible. If reported by telephone, a written report shall be sent, or an Internet report shall be made through the confidential Internet reporting tool, within two working days.

 

  • Serious Bodily Injury in a Skilled Nursing Facility (SNF):

 

When the suspected physical abuse results in serious bodily injury, the mandated reporter must telephone report to local law enforcement no later than 2 hours of observing or having knowledge of incident followed with a written report on the SOC341 Form to local Ombudsman, Department of Public Health, and Local Law Enforcement within 2 hours.

 

  • No Serious Bodily Injury in a Skilled Nursing Facility

 

When the suspected physical abuse DOES NOT result in serious bodily injury, the mandated reporter must Telephone report to local law enforcement within 24 hours and written report on SOC 341 Form within 24 hours to Ombudsman, Department of Public Health, and local law enforcement.

 

  • Dementia Patient and No Serious Bodily Injury in a Skilled Nursing Home

 

“When the suspected abuse is allegedly caused by a resident with a physician’s diagnosis of dementia, and there is no serious bodily injury, as reasonably determined by the mandated reporter, drawing upon his or her training or experience, the reporter shall report to the local ombudsman or law enforcement agency by telephone, immediately or as soon as practicably possible, and by written report, within 24 hours.” See W&C 15630(b)(1)A)(iii)

 

  • All Other Types of Abuse in a SNF

 

Mandated Reporter needs to report by telephone and written report to police or Ombudsman.

Factors to Consider for Serious Bodily Injury

“Serious bodily injury” means an injury involving extreme physical pain, substantial risk of death, or protracted loss or impairment of function of a bodily member, organ, or of mental faculty, or requiring medical intervention, including, but not limited to, hospitalization, surgery, or physical rehabilitation. Welfare and Institutions Code §15610.67.

  1. Ask the patient how much pain they are in? Scale of 1 to 10.
  2. Will it require outside medical intervention? i.e. Paramedics, ER,
  3. Is the patient able to move fingers or toes?
  4. How are they doing on Neuro checks?
  5. How deep is the cut?
  6. How bad is the discoloration?
  7. How bad does it look?
  8. Could there be a hairline fracture?
  9. An allegation of serious bodily injury (24 hours) or the suspected abuse results in serious bodily injury (2 hours)?

What to Report:

A mandated reporter in a nursing home must report a known or suspected instance when:

  1. Observed or have knowledge of an incident that reasonably appears to be physical abuse;
  2. Have been told by an elder or dependent adult that he or she has experienced behavior constituting physical abuse; or
  3. Reasonably suspect abuse has occurred.

Abuse of an elder or dependent adult is defined as physical abuse, neglect, financial abuse, abandonment, isolation, abduction or other treatment with physical harm or pain or mental suffering, deprivation by a custodian of goods or services that are necessary to avoid physical harm or mental suffering.

Possible Defenses

    • The conduct did not reasonably appear to be abuse or neglect within the mandated reporters professional capacity;
    • The defendant did not observe the allegation and did not have knowledge of the incident
    • The elder or dependent adult did not tell the defendant and the defendant did not have observe it or have knowledge of it.
    • Mischaracterization of the allegation by the licensing or special agent (patient was addressing a care issue and not asserting an allegation of neglect or abuse)
    • A care issue developed after the fact into an allegation of abuse when the Department of Public Health or Special Agents were investigating the incident
    • Patient suffers from dementia or Alzheimer’s and has cognitive impairments or a diagnosis that causes the patient to reflect childhood allegations

 

  • Physician, Surgeon, Registered Nurse, or Psychotherapist Defense

 

“A mandated reporter who is a physician and surgeon, a registered nurse, or a psychotherapist, shall not be required to report, an incident if all of the following conditions exist:

(i) The mandated reporter has been told by an elder or dependent adult that he or she has experienced behavior constituting physical abuse, as defined in Section 15610.63, abandonment, abduction, isolation, financial abuse, or neglect.

(ii) The mandated reporter is not aware of any independent evidence that corroborates the statement that the abuse has occurred.

(iii) The elder or dependent adult has been diagnosed with a mental illness or dementia, or is the subject of a court-ordered conservatorship because of a mental illness or dementia.

(iv) In the exercise of clinical judgment, the physician and surgeon, the registered nurse, or the psychotherapist, as defined in Section 1010 of the Evidence Code, reasonably believes that the abuse did not occur.

(B) This paragraph shall not be construed to impose upon mandated reporters a duty to investigate a known or suspected incident of abuse and shall not be construed to lessen or restrict any existing duty of mandated reporters.” See Welfare & Institutions Code 15630 (b)(3)(A)

 

  • Nursing Home Defense

 

In a long-term care facility, a mandated reporter shall not be required to report as a suspected incident of abuse, as defined in Section 15610.07, an incident if all of the following conditions exist:

(i) The mandated reporter is aware that there is a proper plan of care.

(ii) The mandated reporter is aware that the plan of care was properly provided or executed.

(iii) A physical, mental, or medical injury occurred as a result of care provided pursuant to clause (i) or (ii).

(iv) The mandated reporter reasonably believes that the injury was not the result of abuse.

(B) This paragraph shall not be construed to require a mandated reporter to seek, nor to preclude a mandated reporter from seeking, information regarding a known or suspected incident of abuse prior to reporting. This paragraph shall apply only to those categories of mandated reporters that the State Department of Public Health determines, upon approval by the Bureau of Medi-Cal Fraud and Elder Abuse and the state long-term care ombudsman, have access to plans of care and have the training and experience necessary to determine whether the conditions specified in this section have been met.” See Welfare & Institutions Code 15630 (b)(4)(A)

Punishment

  • Failure to report elder abuse is a misdemeanor, punishable by not more than six months in the county jail, by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment.
  • If the abuse results in death or great bodily injury, it is punishable by no more than one year in a county jail, by a fine of not more than five thousand dollars ($5,000), or by both that fine and imprisonment.
  • A plea to failure to report may also have collateral effects to the persons professional license, immigration, OIG exclusion list, and exclusion from participating in the Medi-Care or Medi-Cal program.

If you or your facility is under investigation for failing to report an allegation of elder abuse or charge with failing to report pursuant to Welfare & Institutions Code 15630, call the Khachatourians Law Group for a defense consultation.