The Elder Justice Act was enacted in March of 2010 to protect the elderly from abuse, exploitation, and neglect. The Act requires certain residential care facilities to notify staff of the Elder Justice Act reporting requirements. Under these requirements, certain individuals must report suspected crimes committed against elderly residents. Learn more about these requirements and who is affected by them below.
What Is a "Long-Term Care Facility" Under the Act?
The Act applies to any "long-term care facility" that received at least $10,000 in federal funds during the preceding year. The Act defines such a facility as a residential care provider that arranges for, or directly provides, long-term care. Under the Act, "long-term care" is defined as supportive and health services for individuals who need assistance due to the loss of capacity for self-care due to illness, disability, or vulnerability.
Examples of long-term care facilities under the Act include:
- Nursing facilities
- Skilled nursing facilities
- Impatient hospices
- Intermediate care facilities for the mentally disabled.
Notably, according to the Department of Health and Human Services ("HHS"), the Act does not apply to assisted living facilities.
Who Are "Covered Individuals?"
A long-term care facility subject to the Act must notify, on an annual basis, its "covered individuals" of the Act's reporting requirements. These individuals are required to report any "reasonable suspicion" of a crime committed against an elderly resident to the applicable HHS state survey agency and to at least one local law enforcement agency. The Act defines "covered individuals" as an owner, operator, employee, manager, agent or contractor of a long-term care facility that's subject to the Act's provisions.
In other words, those long-term care facilities that received $10,000 or more in federal funds during the past calendar year must instruct staff and contractors of their individual duty to report any "reasonable suspicion" that a crime was committed against an elderly resident to the appropriate HHS state survey agency and to one 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. A crime is defined by the law of the applicable local subdivision, meaning the state and local criminal laws in the long-term care provider's location.
If, for example, an employee of a nursing facility in California subject to the Act reasonably believes that an elderly resident is the victim of conduct that is unlawful under California or local law, that employee must report his or her suspicions.
If a covered individual reasonably believes a crime occurred, and those events resulted in serious bodily injury to an elderly resident, that individual must report the suspicion to the HHS state survey agency and to one local law enforcement agency within two hours after he or she developed the suspicion. If the suspicion is based on events that did not lead to serious bodily injury, the individual must report the suspicion within 24 hours.
For example, if a nurse observes serious bruises on an elderly resident in the morning, and after some thought, he believes that the bruising resulted from a crime, he has two hours from the time he developed that suspicion to report the bruising. On the other hand, if the nurse believes that a fellow employee is stealing money from an elderly resident, he has 24 hours from the time she forms that suspicion to report the possible theft.
Penalties for Violation of the Act
The Act provides both individual penalties and penalties against care facilities. A covered individual who violates the Act by failing to report, within the specified timeframe, a reasonable suspicion of a crime committed against an elderly resident is subject to a maximum civil penalty of $200,000. If the failure to report the suspicion exacerbates the harm to the elderly resident or to another person, the maximum civil penalty is $300,000.
A facility that retaliates against a covered individual who reports his or her suspicions of a crime, such as by firing, demoting, or harassing that individual, is subject to a maximum civil penalty of $200,000, to exclusion from federal funding, or both.
Getting Legal Help
Healthcare professionals and facilities that care for the elderly must understand Elder Justice Act reporting requirements. Generally speaking, an employee of a care facility with elderly residents must report any reasonable suspicion he or she has that a crime has been committed against a resident. The facility may not retaliate against this employee. 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 has been the victim of elder abuse, you should consult a lawyer who specializes in elder law.