Elder Justice Act Reporting Requirements
In 2010, the federal government enacted the Elder Justice Act (EJA) as part of the larger Patient Protection and Affordable Care Act. The EJA aims to protect older Americans from abuse, mistreatment, neglect, and exploitation. According to the U.S. Department of Justice, almost 10% of older adults suffer abuse yearly. But only one in every 23 cases of abuse is reported to the appropriate social service agencies each year.
The EJA is an abuse prevention law. Certain nursing homes and residential care facilities must notify caregiver staff of the Elder Justice Act reporting requirements. The federal law applies to people over 60 and is the first federal legislation to address elder abuse.
The EJA also created several entities to strengthen elder abuse reporting requirements. For example, it created The Elder Justice Coordinating Council, which provides elder abuse reports and recommendations to Congress.
Under these reporting requirements, specific individuals must report suspected crimes committed against elderly residents to Adult Protective Services (APS) and law enforcement. Individuals can also report abuse to a long-term care ombudsperson program or another qualifying social service agency. If the long-term care facility receives funding through Medicaid or Medicare, the individual can also report the abuse to The Centers for Medicare and Medicaid Services (CMS). Learn more about these requirements and who they affect below.
What Is a 'Long-Term Care Facility' Under the Act?
The Act applies to any "long-term care facility" that receives at least $10,000 in federal funding during the preceding year. A long-term care facility is a residential care provider that offers supportive health services to older people.
Long-term care is for people who need help because they can no longer maintain their physical or mental health due to impairment, illness, injury, or disability.
Examples of long-term care facilities under the Act include:
- Skilled nursing facilities
- In-patient hospices
- Intermediate care facilities for the mentally disabled
The EJA does not apply to assisted living facilities. Assisted living facilities offer limited help to residents. In contrast, long-term care facilities offer 24/7 nursing care for residents. The Act does not apply to brief hospitalizations, physical rehabilitation centers, or short-term care.
Who Are 'Covered Individuals?'
A long-term care facility subject to the Act must notify its "covered individuals" of its reporting requirements yearly.
The Act defines "covered individuals" as long-term care facility:
In other words, a covered individual is anyone who works at a long-term care facility that received $10,000 or more in federal funds during the preceding year. These facilities must instruct staff and contractors to report any "reasonable suspicion" of elder abuse. These reports are then sent to the applicable Department of Health and Human Services (HHS) state survey agency and at least one local law enforcement agency. State law may also require long-term care employees to undergo criminal background checks.
A covered individual faces a civil monetary penalty if they have a reasonable suspicion of abuse and fail to report it to the appropriate HHS state survey agency or local police agency.
What Does 'Reasonable Suspicion of a Crime' Mean?
While the Act doesn't define "reasonable suspicion," the common legal definition provides guidance. In essence, reasonable suspicion of a crime is the belief that a crime may have happened based on specific facts or circumstances.
It's essential to understand crimes under local or state law. This allows a covered individual to identify criminal abuse in the first place.
Criminal abuse includes:
- Physical abuse
- Sexual abuse
- Financial abuse
- Emotional and psychological abuse
Suppose a nursing facility employee has an older adult patient and reasonably believes that the patient is the victim of abuse. In that case, that employee must report the abuse within the required timeframe.
Mandatory Reporting Requirements
Let's say a covered individual reasonably believes an elderly resident is being abused and believes the abuse resulted in serious bodily injury to the elderly resident. That individual must report the suspicion to the HHS state survey agency and one local law enforcement agency within two hours of developing the suspicion.
But if the suspicion is based on events that did not lead to serious bodily injury, the individual has 24 hours to report the suspicion.
For example, suppose a nurse observes severe bruises for an elderly resident and believes the bruising resulted from abuse. In that case, the nurse has to report the bruising two hours from when they developed that suspicion.
But, if the nurse believes that a person is stealing an elderly resident's Social Security benefits or is misusing their power of attorney to exploit the elderly resident, the nurse has 24 hours from when they form that suspicion to report the possible financial exploitation.
Penalties for Violation of the Act
The Act provides both individual penalties and penalties against long-term care providers. If a covered individual fails to report abuse within the specified timeframe, they may face a maximum civil penalty of $200,000.
If failure to report the abuse results in further harm to the elderly resident or another person, the civil penalty is up to $300,000.
A facility that retaliates against a covered individual who reports a suspicion of abuse is subject to a civil penalty of up to $200,000. The facility can also face exclusion from federal funding. Retaliation typically includes firing, demoting, or harassing the person who reported the abuse.
Getting Legal Help for EJA Violations
Healthcare professionals and facilities that care for older adults must understand the Elder Justice Act reporting requirements.
In sum, a long-term care facility employee must report any reasonable suspicion of abuse. The facility may not retaliate against this employee for doing so.
Failure to report by the employee and any retaliation by the facility against a reporting employee may result in civil penalties.
If you believe a loved one or family member is the victim of elder abuse or a long-term care facility violates the EJA, you should consult a lawyer specializing in elder law.
Can I Solve This on My Own or Do I Need an Attorney?
- Complex abuse situations usually require a lawyer
- A lawyer will take these matters seriously and enforce protections
- Get tailored advice and ask your legal questions
- Many attorneys offer free consultations