Thursday, June 27, 2013

2013 Changes to the Elder Abuse Reporting Requirements in Oregon

The 2013 legislature has tweaked the Oregon elder abuse reporting requirements in a manner that makes Oregon's system for discovering, preventing and punishing elder abuse even weirder and more unwieldy than it was before. Prior to the changes you were required to report elder abuse if you learned about it while practicing one of the following professions:

    (a) Physician, naturopathic physician, osteopathic physician, chiropractor, physician assistant or podiatric physician and surgeon, including any intern or resident.
     (b) Licensed practical nurse, registered nurse, nurse practitioner, nurse’s aide, home health aide or employee of an in-home health service.
     (c) Employee of the Department of Human Services or community developmental disabilities program.
     (d) Employee of the Oregon Health Authority, county health department or community mental health program.
     (e) Peace officer.
     (f) Member of the clergy.
     (g) Regulated social worker.
     (h) Physical, speech or occupational therapist.
     (i) Senior center employee.
     (j) Information and referral or outreach worker.
     (k) Licensed professional counselor or licensed marriage and family therapist.
     (L) Any public official who comes in contact with elderly persons in the performance of the official’s official duties.
     (m) Firefighter or emergency medical services provider.
     (n) Psychologist.
     (o) Provider of adult foster care or an employee of the provider.
     (p) Audiologist.
     (q) Speech-language pathologist.

The new law adds dentists, optometrists, chiropractors and attorneys. It also requires reporting even if the professional is not practicing his profession, Thus, if a dentist is at a barbecue at a park and witnesses elder abuse a couple of picnic tables down, he must report it.

The new requirement doesn't change much, but because it now includes attorneys it has sparked a fair amount of discussion among lawyers.

Attorney-client confidentiality remains inviolate. Thus, lawyers are exempt from reporting if information about elder abuse comes from a client or is learned in the course of representation and would be detrimental to a client. This means that if you hire me and then admit to committing elder abuse, I cannot report you. Similarly, if you come to me and say you are a victim of elder abuse but you want to keep it secret, I will have to keep it secret. Beyond that I am be required to report.

The problem with including lawyers is that we elder law lawyers spend a lot of time speculating about what might or might not be considered elder abuse. Take a look at what the reporting statute defines as elder abuse:
(a) Any physical injury to an elderly person caused by other than accidental means, or which appears to be at variance with the explanation given of the injury.
     (b) Neglect.
         (c) Abandonment, including desertion or willful forsaking of an elderly person or the withdrawal or neglect of duties and obligations owed an elderly person by a caretaker or other person.
         (d) Willful infliction of physical pain or injury upon an elderly person.
         (e) An act that constitutes a crime under [a bunch of other Oregon laws].
         (f) Verbal abuse.
        (g) Financial exploitation.
         (h) Sexual abuse.
         (i) Involuntary seclusion of an elderly person for the convenience of a caregiver or to discipline the person.
         (j) A wrongful use of a physical or chemical restraint of an elderly person, excluding an act of restraint prescribed by a licensed physician and any treatment activities that are consistent with an approved treatment plan or in connection with a court order.

Let's take verbal abuse to start. I know a couple of dive bars where old retired men hang out. Insults, profanity and threats coming from and directed at people over sixty-five are simply part of the ambiance of the place. It goes on every day from opening to closing. If I have to report verbal abuse of elders, should I simply make a list of those places and report it to the Department of Human Services every morning.

Neglect is elder abuse. Try defining “neglect” in the real world and then reporting it to APS every time you hear of something that fits the bill.

Another statute says that it is financial elder abuse to wrongfully take property from an elder. So what is "wrongful?" We know that it is wrongful to take property using undue influence, but the law of “undue influence” is incomprehensible even to lawyers like me who practice in the field.

I have commented among my colleagues that I will soon be sixty-five years old and will then be a vulnerable person. The elder abuse statutes will apply to me. I intend to continue practicing law. If somebody doesn't pay my bill, it will no longer be a collection matter. It will be elder financial abuse because the client has wrongfully taken the services of an elder without paying for it. If someone in the heat of litigation curses at me it is elder abuse. After the new statute goes into effect, maybe I will be required to report the curses and the unpaid bill to Adult Protective Services so its agents can investigate. I know quite a few APS agents. I can just imagine their laughter when I make that call.

Where all of this gets dangerous is in an area of elder abuse we in the field refer to as bystander liability. Under Oregon law someone who commits elder abuse can be found liable in a civil case for three times the amount of damage plus attorney fees. Thus, if you are joint on grandma's bank account (and you never put any money in the account) and you take out a hundred dollars to treat yourself to a night at the casino, you can probably be required to pay grandma back $300 plus the attorney fees it cost grandma to go after you.

The kicker in the above scenario is that if your next door neighbor knows you are taking grandma's money to gamble with and the neighbor doesn't take reasonable steps to stop you, the neighbor can be required to pay grandma three times the amount of her loss plus attorney fees. The bystander who knew about the abuse and didn't do anything about it is as liable as the person who did it. And bystander liability applies to everybody, not just people in the professions listed in the reporting statute. The nice thing about bystander liability is that we lawyers can pick a bystander with money. In the case of grandma's hundred dollars, you are not a good defendant because you have a gambling problem. Your neighbor, however, may have stayed out of the casino and put what he had in savings. He is the one we lawyers will want to sue.

The law in this area has never been clear. It would seem that if the neighbor reported your gambling trip to Adult Protective Services, the report would be considered a reasonable action to prevent the abuse. The statute doesn't say that, but lawyers tend to think so. The theory is that the statute sets out a standard of reasonableness for people in the listed professions. I have never seen a judge say this, but many lawyers have suggested that in the right case, a judge might say it.

If my interpretation of the law is correct, the reporting statute is one that protects professionals from liability where the average person gets no protection at all. Bystander liability applies to everyone. A professional who complies with the reporting requirement might have some protection against bystander liability. A non-professional who reports, even though having no obligation to do so, would also get the protection. But a non-professional who read the statute and thought that he or she did not have a duty to report could be in big trouble.

And when you do report, what happens? Adult Protective Services has the ability to investigate and punish wrongdoers in criminal court. Most cases involving elders, however, are not so dire that evil doers need to be arrested and sent to jail. The elders most often need help with daily living, money management, maybe a restraining order, a conservatorship, or even a guardianship. APS does not provide these things. (I do, but you have to hire me. That costs money.) The job of APS is to prosecute the perpetrators, not necessarily help the elder. I am all for punishing bad guys, but the first rule in my practice is to protect our old folks. Putting someone in jail seldom does that.

The legislature wants to stop elder abuse. The current system works for those severe cases where the behavior is criminal and the perpetrator is clearly a bad guy. The system, however, is less useful on the edges where we find nothing but a dysfunctional family and clever lawyers willing to use any boorish behavior as an excuse to sue somebody in civil court for elder abuse. Often it is hard to tell whether abuse has occurred or not, and even when it has, putting people in jail or having family members sue each other for civil damages may not be the best way to put the family back on track.