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New state law expands reporting of elder abuse

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When a caregiver abuses, neglects or steals from an elderly or infirm person, the roadblock to justice can be a victim unaware of being violated — or too fearful to tell others.

A California law that took effect Jan. 1 aims to pull such seniors out of that limbo, expanding the requirements for caretakers to report suspected abuse at nursing and senior homes. In Napa County, prosecutors and advocates for the elderly hope Assembly Bill 40’s new requirements will help bring more such crimes into the light, and more quickly.

“You can’t investigate what’s not reported,” said Gary Lieberstein, Napa County district attorney. “The purpose of this legislation is consistent with the legislation we have for other crimes, like the way we have mandated reporters for child abuse. The message is if you see something you think is abuse, you will be mandated to report it.”

AB 40’s key provision effectively doubles the reporting duties of those required by state law to share knowledge of the physical abuse, abandonment, neglect, isolation or financial abuse of residents in long-term care centers.

Instead of having the option to report alleged crimes with a care center’s ombudsman or a law enforcement agency, a so-called mandated reporter — an employee, supervisor or administrator at a home — now must notify both.

AB 40 also requires such observers to contact local law enforcement by phone and in writing within two hours after learning of or suspecting physical abuse of a resident resulting in serious injury, or within 24 hours of a non-injury incident. Failure to report abuse is a misdemeanor under the new law, with a maximum penalty of six months in jail and/or a $1,000 fine.

The bill, introduced in March 2011 by Assemblywoman Mariko Yamada, D-Davis, was a response to reports from the state Senate and Disability Rights California pointing to tardy and spotty reporting of senior-care patients.

A 2009 Senate report declared nursing home ombudsmen, which the state Department of Aging operates through county-level agencies, as torn between conflicting roles. They must partner with care centers to improve living conditions but also investigate violations at those same homes.

Lacking law enforcement privileges, ombudsmen also are required by federal law to get a victim’s permission to report alleged abuse to authorities — which the report said as many as 75 percent of patients refuse, or are unable to consent because of dementia or other infirmities.

“It’s hard sometimes to get permission, signed permission,” said Elizabeth Mautner, coordinator of senior-home ombudsmen for the Area Agency on Aging Serving Napa and Solano. “Some don’t have the physical capability to do it. Some don’t want to for fear of retaliation, and ombudsmen were bound by that.”

Even if a nursing home resident is aware enough to know the abuse or thievery being inflicted, simple fear can prevent one from speaking out unless law enforcement gets involved, according to Dr. Harriet Lehman, supervisor of Napa County adult protective services.

“If you’re in a nursing home and there’s a person beating up on you, will you give permission to make it public? Of course not; you’ll be victimized some more,” she said. “(AB 40) will really allow society to really go in there; this is a really good bill that needed to be done.”

The county’s Health and Human Services department investigated 370 abuse and neglect cases — 295 involving seniors and the rest for other disabled adults — in the year that ended in November 2012, she said. Reports of theft and embezzlement from the elderly have risen from 16 in 2008 to 92 last year, though Lehman said it’s unclear whether such crimes are increasing or are more frequently reported.

Whatever way seniors are victimized, elder advocates were hopeful the new legislation would put more nursing homes and their workers to act quickly on complaints.

“It’s not up to the reporter to make the determination” that abuse is happening, said Mautner, of the Area Agency on Aging. “If they question themselves on whether they should report it, they should report it.”

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