The Elder Justice Act (EJA) was enacted in March 2010 to protect the elderly from abuse, exploitation, and neglect.
The federal law requires certain nursing homes and residential care facilities to notify staff of the Elder Justice Act reporting requirements.
Under these requirements, specific 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 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." It is 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.
It also doesn't apply to brief hospitalizations, physical rehabilitation centers, or short-term care, such as hospice.
Who Are "Covered Individuals?"
A long-term care facility subject to the Act must notify its "covered individuals" of the Act's reporting requirements annually.
These individuals must report any "reasonable suspicion" of a crime committed against an elderly resident. These reporting obligations are sent to the applicable HHS state survey agency and at least one local law enforcement agency.
The Act defines "covered individuals" as owners, operators, employees, managers, agents, or contractors of a long-term care facility subject to the Act's provisions.
In other words, almost anyone working at a long-term care facility that received $10,000 or more in federal funds during the past calendar year. These facilities must instruct staff and contractors of their individual duty to report any "reasonable suspicion."
There is a civil monetary penalty if someone committed a crime against an elderly resident and it wasn't reported to:
- The appropriate HHS state survey agency
- 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. The law of the applicable local subdivision defines each crime. This means the state and local criminal laws in the long-term care provider's location.
For example, if an employee of a nursing facility in California subject to the Act has an older adult patient. The employee reasonably believes this resident is the victim of unlawful conduct under state law or local law. That employee must report abuse within the required timeframe.
Let's say a covered individual reasonably believes a crime occurred. The crime resulted in serious bodily injury to an 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.
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. After some thought, the nurse believes that the bruising resulted from a crime. The nurse in this example has two hours from when they 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, they have 24 hours from when they form that suspicion to report the possible theft or financial exploitation.
Penalties for Violation of the Act
The Act provides both individual penalties and penalties against care facilities. A covered individual can violate the Act by failing to report, within the specified timeframe, a reasonable suspicion of a crime committed against an elderly resident. The maximum civil penalty is $200,000.
If the failure to report the suspicion worsens the harm to the elderly resident or another person, the maximum civil penalty is $300,000.
A facility that retaliates against a covered individual who reports their suspicions of a crime is subject to a maximum civil penalty of $200,000. They can also face exclusion from federal funding. Retaliation typically includes firing, demoting, or harassing the individual who reported abuse.
Getting Legal Help for EJA Violations
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 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 or there is a violation of the EJA, you should consult a lawyer who specializes in elder law.