As elder law practitioners our goal is to assist our clients in preparing for potential diminishing capacity by drafting appropriate documents and assisting our clients in identifying qualified and informed family members and friends who will be available to provide assistance if and when the need arises. Unfortunately, we are not always successful. All too often the question of elder abuse, exploitation, or neglect arises. It is the goal of this article to assist us all in being prepared when that question arises.
What do we do?
If the elderly or disabled person is a resident of a nursing home, custodial care home, or personal care home, an oral report may be made to the Texas Department of Health (toll free at 1-800-458-9858) immediately on learning of the abuse or neglect, and make a written report to the Department of Health (Complaint Management Section, 847 Wall Street, Austin, TX 78754) not later than the fifth day after the oral report is made. The legal requirement is also met if the report is made to a local or state law enforcement agency. The Texas Department of Human Services (TDHS) regulates nursing homes and is required by law to assure that nursing homes receiving Medicaid funds implement and enforce the Rights of the Elderly, which are listed in Chapter 102 of the Texas Human Resources Code.3 The Office of the Attorney General, Elder Law and Public Health Division, sues persons who violate nursing home standards and other laws, when TDHS refers cases for prosecution and finds that the violations threaten resident health and safety. The Office of the Attorney General has a brochure available entitled "Rights of the Elderly," and free copies may be obtained by contacting the Attorney General's office.
If a person has cause to believe that an elderly or disabled person in the community has been abused, exploited, or neglected or is in the state of abuse, exploitation, or neglect, a report should be made to Adult Protective Services and the Texas Department of Protective and Regulatory Services. Call toll free 1-800-252-5400 or write Adult Protective Services, P. O. Box 149030, Austin, TX 78714-9030.
An "elderly person" means a person 65 years of age or older.
"Abuse" means:
(A) the negligent or willful infliction of injury, unreasonable confinement, intimidation, or cruel punishment, with resulting physical or emotional harm or pain to an elderly or disabled person by the person's caretaker, family member, or other individual who has an ongoing relationship with the person; or
(B) sexual abuse of an elderly or disabled person, including any involuntary or nonconsensual sexual conduct that would constitute an offense under Section 21.08, Penal code (indecent exposure) or Chapter 22, Penal Code (assaultive offenses), committed by the person's caretaker, family member, or other individual who has an ongoing relationship with the person.
"Exploitation" means the illegal or improper act or process of a caretaker, family member, or other individual who has an ongoing relationship with the elderly or disabled person using the resources of an elderly or disabled person for monetary or personal benefit, profit, or gain without the informed consent of the elderly or disabled person.
"Neglect" means the failure to provide for oneself the goods or services, including medical services, which are necessary to avoid physical or emotional harm or pain or the failure of a caretaker to provide such goods or services.4
Once a report is made the response will be swift. If the report is in conjunction with alleged abuse, neglect, or exploitation in a nursing home, the Department of Health Complaint Management Section will classify the report (which they call a "complaint") into one of six priorities, from priority one (most serious, to be investigated within 24 hours) to priority six (least serious, investigated within 60 days). If the report does not involve a long term care facility licensed by the Texas Department of Health and, therefore, goes to Adult Protective Services (or other agency), a thorough investigation, including a visit to the elderly person's place of residence, must be initiated not later that 24 hours after receipt of the report.
There is an affirmative duty to report a belief that an elderly person has been abused, exploited, or neglected.5 As long as the report is not made in bad faith or with a malicious purpose, a person filing a report or testifying or otherwise participating in any judicial proceeding is immune from civil or criminal liability.6
The Texas Penal Code 6 22.04, "Injury to a Child, Elderly Individual, or Invalid," includes protection of the elderly. An elderly person is, of course, protected against any person committing a wrongful act. There is additional protection, however. From a person committing a wrongful omission if that person has a legal or statutory duty to act (such as a guardian or nursing home employee) or has "assumed care, custody, or control" of the victim; that is, the person "has by act, words, or course of conduct acted so as to cause a reasonable person to conclude that he has accepted responsibility for protection, food, shelter, and medical care" for the victim. The protection is against any act causing any bodily injury, if the act is committed intentionally, knowingly, recklessly, or with criminal negligence; and against any omission causing any bodily injury, if the omission is committed intentionally, knowingly, or recklessly. The section goes on to set forth the defenses that include notifying the elder person, the guardian, or the relevant state agency that care, custody, or control will no longer be exercised.
The Rights of the Elderly statute7, referred to above, covers anyone 55 years of age or older who is in a nursing home, receiving home health services for pay, or alternate care services for the elderly provided by the Texas Department of Human Services, including day care, foster care, alternate living plans, and supportive living services. However this statute does not cover many living arrangements and services primarily provided to the elderly, such as continuing care facilities, retirement communities, and private-pay day care. There is a separate "bill of rights" for residents of licensed personal care homes.8 The rights granted under the Rights of the Elderly statute are enforced by the Department of Human Services if the violation occurs in a nursing home certified for Medicaid or in conjunction with services provided with funds from the Department of Human Services. The rights are also enforceable through private lawsuits to the extent that the violation would be regarded as "negligence per se" so that violators would be liable for actual damages caused by violations. Further protection is provided under criminal law and the law of contracts, negligence, and consumer protection.
The goal of the Elder Law practitioner is to avoid circumstances that will trigger legal intervention. Other types of intervention such as counseling, referral to services, and direct provision of needs of the elder and caretakers should normally occur at the same time as or, preferably, in advance of or instead of legal intervention. The following are some of the risks to be weighed when considering legal intervention:9
A. Risk of unfair accusations
The facts can be difficult to develop by objective methods; and the inferences to be drawn from the facts can sometimes include the innocent and the ambiguous as well as the guilty. While reports made in good faith to the appropriate agency are legally protected, the question of what is "good faith" can still be initiated. Common-sense caution in gathering, documenting, and interpreting the facts can help keep you out of the courthouse and reduce the risk of unfairness to the accused.
B. Loss of assistance of the person(s) accused
In some cases, the person accused of mistreatment is a caretaker or other helper. In an ideal world, the slightest incident of mistreatment would bring an appropriate legal response that would fully protect even a victim in this position. Unfortunately, given the scarcity of resources, there may be some cases in which legal intervention will leave the older person in a worse situation than before. In "borderline" cases, informal discussion and confrontation, or simply offers to help directly, may be of more benefit to the elder than making a report. (But note that the legal requirement of reporting does not take this real-world consideration into account.)
C. Embarrassment and loss of privacy of the older person
The reporting requirements apply even to doctors, lawyers, and ministers, with whom there is ordinarily (until the reporting requirements become effective at age 55) a confidential relationship. An inherent problem with the reporting requirements is that they supersede this right of confidentiality, as if they presumed that an older person, like a child, should be treated as if incapacitated.
D. Loss of autonomy of the older person
Guardianships, civil commitments, and protective orders can infringe drastically on the older person's autonomy. Again, an older person should be subject to proceedings normally reserved for children and the mentally ill only when less restrictive alternatives are unavailable.
E. Possibility of unnecessary institutionalization
In an early study in Cleveland, vulnerable elderly persons were randomly assigned to two groups. One group received intensive protective services case management, and the other did not. In the long run, the group with the case management had a significantly higher rate of mortality than the unmanaged group. The researchers concluded that this was because the rate of nursing home placement in the managed group was higher, and such placement reduced life expectancy.10 Of course, this does not argue against nursing home placement in every case, but it suggests that the risks of such placement be weighed against the sometimes more apparent risks of staying in the community.
1. I am indebted to H. Clyde Farrell for making his paper "Elder Abuse, Exploitation and Neglect" available to me. The paper was prepared for presentation at Elderlaw: Preparing for the Legal Challenges of an Aging Society in 1992 when Mr. Farrell was Assistant Attorney General for the State of Texas and Chief of the Elder Law Section. Mr. Farrell is now in private practice in Austin, Texas, with primary focus in elder law areas. He is a certified financial planner and a member of the board of directors of the National Academy of Elder Law Attorneys and current president of the Texas Chapter of NAELA.
2. 6 48.036 TEXAS HUMAN RESOURCES CODE
3. 6 102.003 TEXAS HUMAN RESOURCES CODE
4. 6 48.002 TEXAS HUMAN RESOURCES CODE
5. 6 48.0361 TEXAS HUMAN RESOURCES CODE; § 242.122 TEXAS HEALTH & SAFETY CODE
6. 6 48.039 TEXAS HUMAN RESOURCES CODE; § 242.128 TEXAS HEALTH & SAFETY CODE
7. 6 102.003 TEXAS HUMAN RESOURCES CODE
8. 6 247.065 TEXAS HEALTH & SAFETY CODE
9. These risks are identified and discussed at greater length in Karl A. Pillemer and Rosalie S. Wolf, Elder Abuse: Conflict in the Family (Dover: Auburn House, 1986) at 337; and Rachel Filinson and Stanley R. Ingman, Elder Abuse: Practice and Policy (New York: Human Sciences Press, 1989) at 91.
10. Margaret Blenkner, et al., "A Research and Demonstration Project of Protective Services," Social Casework 51 (1971), pp. 483-99.
Julia E. Merkt is a sole practitioner in El Paso, Texas, where she has been focusing her practice primarily in areas of elder law since 1992. Ms. Merkt is a member of the National Academy of Elder Law Attorneys and president-elect of the Texas Chapter of NAELA.