SUMMARY

California law mandates that certain individuals report known or suspected instances of elder or dependent adult abuse. Failure to do so is a crime. Senate Bill 2199 (Chapter 946, Statutes of 1998) broadened and redefined “abuse of an elder or dependent adult,” expanded the definition of “mandated reporters” and added “abandonment, isolation, financial abuse, and neglect” to the list of reportable crimes.

LEARNING OBJECTIVE

To provide staff with the definition and legal responsibilities of mandated reporters. California law requires that mandated reporters follow specific requirements for reporting known or suspected cases of abuse to the proper authorities.

CONTENT

1.  Who is a Mandated Reporter?

California law states that: “Any person who has assumed full or intermittent responsibility for care or custody of an elder or dependent adult, whether or not that person receives compensation, including administrators, supervisors, and any licensed staff of a public or private facility that provides care or services for elder or dependent adults, or any elder or dependent adult care custodian, health practitioner, or employee of a county adult protective services agency or local law enforcement agency is a mandated reporter.”

(Welfare and Institutions Code Section 15630, see Appendix 5)

A “care custodian” is defined as an administrator or an employee of a public or private facility who provides care for elders and dependent adults as part of his or her official duties, including support and maintenance staff.

Therefore, all health practitioners and all employees in a long-term health care facility are mandated reporters.

(Note: For the complete legal definition of “care custodian” see Appendix 6)

2.  Legal Responsibilities of a Mandated Reporter

Individuals employed in long-term health care facilities have a legal responsibility to help assure that all residents in the facility are protected and kept safe from harm.

California’s mandated reporting law states: “Any mandated reporter who, in his or her professional capacity, or within the scope of his or her employment, has observed or has knowledge of an incident that reasonably appears to be physical abuse, abandonment, isolation, financial abuse, or neglect, or is told by an elder or dependent adult that he or she has experienced behavior constituting physical abuse, abandonment, isolation, financial abuse, or neglect, or reasonably suspects abuse shall report… ” (Emphasis added.)

(Welfare and Institutions Code Section 15630 (b)(1))

In summary, the reporting requirements are as follows:

An employee SHALL report a known or a suspected instance of abuse if he or she:

• Has observed or has knowledge of an incident that reasonably appears to be…
• Has been told by an elder or dependent adult that he or she has experienced behavior constituting ..
• Reasonably suspects that abuse has

In other words, if you are a mandated reporter and you:

• witness an incident;
• receive information or evidence, whether visual or audible;
• or an elder or dependent adult discloses or describes an incident that reasonably appears to constitute abuse,

You are required to make a report

3. Reporting Exemptions

Under California law, there are certain designated health practitioners who are not required to report abuse or neglect when specific conditions exist. This exemption applies to only the following health practitioners:

• Physician and surgeon
• Registered nurse
• Psychotherapist

These certain individuals are not required to report an incident, where all of the following conditions exist:

• The mandated reporter has been told by an elder or dependent adult that he or she has experienced behavior constituting physical abuse, abandonment, isolation, financial abuse, or
• The mandated reporter is not aware of any independent evidence that corroborates the statement that the abuse has occurred.
• The elder or dependent adult has been diagnosed with a mental illness or dementia, or is the subject of a court-ordered conservatorship because of a mental illness or

Remember: Every individual that has knowledge of an incident that appears to be abuse, must file a report.

There is no penalty for filing a report; there is a significant penalty for failing to file.

SUMMARY

Like other forms of abuse, elder and dependent adult abuse is a complex problem and it is easy to have misconceptions. Abuse can occur in many forms and in varying degrees. It can range from acts of physical harm to neglect or mental suffering.

LEARNING OBJECTIVE

To provide staff with the definitions of physical abuse, neglect, abandonment, financial abuse and isolation and to provide examples of each form of reportable abuse.

Staff need to know that even subtle actions on their part may violate the law and result in prosecution by law enforcement agencies. There are many ways that caregivers, either intentionally or unintentionally, may cause harm to residents.

CONTENT

ABUSE

“Abuse of an elder or dependent adult” is defined as the following:

• Physical abuse (includes sexual abuse);
• Neglect;
• Financial abuse; Abandonment;
• Isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering;
• Deprivation by a custodian of goods or services that are necessary to avoid physical harm or mental suffering.

(Welfare and Institutions Code Section 15610.07)

PHYSICAL ABUSE

“Physical Abuse” means any of the following:

• Assault;
• Battery;
• Assault with a deadly weapon or force likely to produce great bodily injury;
• Unreasonable physical constraint, or continual deprivation of food or water;
• Sexual assault, that means any of the following:
  • Sexual battery;
  • Rape;
  • Rape in concert;
  • Spousal rape;
  • Incest;
  • Sodomy;
  • Oral copulation;
  • Penetration of a genital or anal opening by a foreign object.
• Use of a physical or chemical restraint or psychotropic medication under any of the following conditions:
  • For
  • For a period beyond that for which the medication was ordered pursuant to instructions of a physician and surgeon licensed in the State of California, who is providing medical care to the elder or dependent adult at the time the instructions are
  • For any purpose not authorized by the physician and

(Welfare and Institutions Code Section 15610.63)

Examples of Physical Abuse:

• A resident spits at a caregiver as she feeds the resident breakfast. In retaliation, the caregiver spits at the resident’s face and yells, “Don’t you ever spit at me again!”
• A resident refuses to get out of bed when encouraged with a gentle approach by a nurse to attend an activity session. The nurse then forcefully pulls the resident from a reclining to an upright position in his bed, pushes him out of his room, as the resident screams and cries to be left
• A male employee is observed kissing an older Alzheimer’s resident on her lips while fondling her
• While two nursing assistants are replacing a brain-injured resident’s restraint, the resident grabs the shirt of one of the assistants. When the resident refuses to let go, the assistant slaps the resident’s hands.
• After soiling her clothes and bedding, a resident is taken into the shower by a nursing The resident suffers from dementia and struggles with the assistant. The assistant sprays ice cold water directly into the face of the resident.

Possible Indicators of Physical Abuse:

The following descriptions are not necessarily proof of abuse, but they may be clues that a problem exists. Signs that may indicate someone has been a victim of abuse may include:

• Unusual or recurring scratches, bruises, skin tears, welts
• Bilateral bruising (bruises on opposite sides of the body)“Wrap around” bruises
• Bruises around the breasts or genital area Infections around the genital area
• Injuries caused by biting, cutting, pinching or twisting of limbs
• Burns (may be caused by hot water)
• Fractures or sprains
• Torn, stained or bloody underclothing
• Any untreated medical condition
• Signs of excessive drugging
• Injuries that are incompatible with explanations
• Intense fear reaction to people in general, or certain individuals in particular Descriptions are not necessarily proof of abuse, BUT they maybe clues that a problem

NEGLECT

“Neglect” means either of the following:

1. The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.
2. The negligent failure of the person themselves to exercise that degree of care that a reasonable person in a like position would exercise.

Neglect includes, but is not limited to, all of the following:

1. Failure to assist in personal hygiene, or in the provision of food, clothing or shelter.
2. Failure to provide medical care for physical and mental health No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.
3. Failure to protect from health and safety
4. Failure to prevent malnutrition or
5. Failure of a person to provide the needs specified in paragraphs 1-4, inclusive, for themselves due to ignorance, illiteracy, incompetence, mental limitation, substance abuse or poor

(Welfare and Institutions Code Section 15610.57)

Examples of Neglect:

• A wheelchair bound resident is taken to the bathroom and told by the nursing assistant to call when she is ready to return other room. The resident rings the call bell and no one Frustrated, the resident tries to get into her wheelchair by herself and falls and fractures her hip.
• A resident repeatedly uses a call bell attempting to get attention. After several trips to the resident’s room, the nursing assistant unplugs the call bell so the resident can no longer use it
• A registered nurse permits a nursing assistant to feed a peanut butter sandwich to a resident on a pureed diet.
• A resident with a long history of wandering walks outside of the facility undetected. Despite the resident’s history of wandering, she is not adequately supervised. The resident is discovered later that day drowned in a nearby
• You observe staff not assisting a resident who you know needs assistance eating or you observe a staff member take food away from a resident who has not yet finished because it is time for the staff person’s break.
• You know that a resident has bleeding gums, loose teeth and hashed difficulty The resident’s dentures were stolen and the resident has not been taken to a dentist.
• You discover residents that have been left in the care of a worker who has fallen asleep or is intoxicated while on duty.
• You arrive to begin your shift and notice that a resident has obviously been allowed to remain covered in feces or urine soaked undergarments all night.
• You observe a nursing assistant knowingly postponing a resident’s incontinent care to take a break.

Possible Indicators of Neglect

The following descriptions are not necessarily proof of neglect, but they may be clues that a problem exists. Some signs that indicate a resident has been a victim of neglect may include:

• Skin disorders or untreated rashes
• Unkempt, dirty, matted or uncombed hair, unshaven
• Neglected bedsores
• Signs of dehydration, malnutrition or sudden weight loss
• Soiled bedding or clothing
• Inadequate clothing
• Hunger
• Absence of, or failure to give prescribed medication
• Lack of necessary dentures, hearing aids or eyeglasses

Untreated or unattended medical conditions

ABANDONMENT

“Abandonment” means:

The desertion or willful forsaking of an elder or a dependent adult by anyone having care or custody of that person under circumstances in which a reasonable person would continue to provide care and custody.

(Welfare and Institutions Code Section 15610.05)

Examples of Abandonment:

A facility takes a group of residents to an afternoon play, or other public location. A resident wanders away and the group returns to the facility leaving the resident unattended.

FINANCIAL ABUSE

“Financial Abuse” occurs when a person or entity does any of the following:

1. Takes, secretes, appropriates, or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or
2. Assists in taking, secreting, appropriating, or retaining real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or

• A person or entity shall be deemed to have taken, secreted, appropriated, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates or retains possession of property in bad faith.

1. A person or entity shall be deemed to have acted in bad faith if the person or entity knew or should have known that the elder or dependent adult had the right to have the property transferred or made readily available to the elder or dependent adult or to his or her
2. For purposes of this section, a person or entity should have known of a right specified in paragraph (1) if, on the basis of the information received by the person or entity or the person or entity’s authorized third party, or both, it is obvious to a reasonable person that the elder or dependent adult has a right specified in paragraph (1).

• For purposes of this section, “representative” means a person or entity that is either of the following:
  1. A conservator, trustee or other representative of the estate of an elder or dependent
  2. An attorney-in-fact of an elder or dependent adult who acts within the authority of the power of

(Welfare and Institutions Code Section 15610.30)

Examples of Financial Abuse:

• A staff member asks a resident if he would like to have pizza. The staff member then orders pizza using the resident’s personal account money and gives the pizza to the night
• A resident has a cell phone purchased by a family member. A staff member tells the resident she will keep the phone at the nurse’s station and proceeds to use the cell phone for her personal use.
• A staff member is aware that a resident is unable to watch TV because of declining The staff member takes the TV set home and/or takes the TV set out to the nurse’s break room for the staff to use without getting permission from the resident.

Possible Indicators of Financial Abuse

The following descriptions are not necessarily proof of financial abuse, but they may be clues that a problem exists. Some signs that indicate a resident has been a victim of financial abuse may include:

• Disappearance of papers, checkbooks, legal documents
• Staff assisting residents with credit card purchases, ATM withdrawals
• Lack of amenities: appropriate clothing, grooming items,
• Bills unpaid despite availability of adequate financial resources
• Provision of services that are not necessary or requested
• Unusual activity in bank accounts, such as withdrawals from automatic teller machines when the person cannot get to the bank
• Denial of necessary and/or needed services by the person controlling the elder or dependent adult’s resources
• Use of “representative payee” under suspicious circumstances
• Use of power of attorney or conservatorship when not indicated by certain circumstances

ISOLATION

“Isolation” means any of the following:

1. Acts intentionally committed for the purpose of preventing, and that do serve to prevent, an elder or dependent adult from receiving his or her mail or telephone
2. Telling a caller or prospective visitor that an elder or dependent adult is not present, or does not wish to talk with the caller, or does not wish to meet with the visitor where the statement is false, is contrary to the express wishes of the elder or the dependent adult, whether he or she is competent or not, and is made for the purpose of preventing the elder or dependent adult from having contact with family, friends, or concerned
3. False imprisonment, as defined in Section 236 of the Penal
4. Physical restraint of an elder or dependent adult, for the purpose of preventing the elder or dependent adult from meeting with visitors.
5. The acts set forth in subdivision (a) shall be subject to a rebuttable presumption that they do not constitute isolation if they are performed pursuant to the instructions of a physician and surgeon licensed to practice medicine in the state, who is caring for the elder or dependent adult at the time the instructions are given, and who gives the instructions as part of his or her medical
6. The acts set forth in subdivision (a) shall not constitute isolation if they are performed in response to a reasonably perceived threat of danger to property or physical

(Welfare and Institutions Code Section 15610.43)

Examples of Isolation:

• A nursing assistant tells a resident’s family member that the resident does not wish to speak to You are aware, however, that the resident does indeed want to speak to his or her family and has never expressed the desire not to talk with them.
• A nursing assistant restrains a resident in bed and tells the resident’s family that the resident is too ill to have

Possible Indicators of Isolation

The following descriptions are not necessarily proof of isolation, but they may be clues that a problem exists. Some signs that indicate a resident has been a victim of isolation may include:

• Resident is hesitant to speak freely
• Resident is withdrawn, timid and perhaps overly fearful or untrusting

ADDITIONAL COMPONENTS/DEFINITIONS OF ABUSE

“Abduction” means the removal from this state and the restraint from returning to this state, of any elder or dependent adult who does not have the capacity to consent to the removal from this state and restraint from returning to this state, as well as the removal from this state or the restraint from returning to this state, of any conservatee without the consent of the conservator or the court.

(Welfare and Institutions Code Section 15610.06)

“Goods and Services Necessary to Avoid Physical Harm or Mental Suffering” include but are not limited to all of the following:

• The provision of medical care for physical and mental health needs
• Assistance in personal
• Adequate clothing
• Adequately heated and ventilated shelter
• Protection from health and safety Protection from malnutrition, under those circumstances where the results include, but are not limited to, malnutrition and deprivation of necessities or physical punishment.
• Transportation and assistance necessary to secure any of the needs set forth

(Welfare and Institutions Code Section 15610.35)

“Mental Suffering” means fear, agitation, confusion, severe depression or other forms of serious emotional distress that is brought about by threats, harassment or other forms of intimidating behavior.

(Welfare and Institutions Code Section 15610.53)

“Resident-to-Resident Abuse” means when one resident in a facility abuses another resident in the facility in any way. The abuse can be physical, mental or financial.

As with all other forms of abuse, resident-to-resident abuse is illegal and must be reported.

SUMMARY

Every mandated reporter within a long-term health care facility is required to make a report of known or suspected abuse.

Reporting of abuse or neglect is an individual duty and a facility employee does not satisfy his or her reporting obligations by simply making a report to another employee or facility administrator.

LEARNING OBJECTIVE

To educate staff about how to make a report, where to make a report, and the penalties for failure to make a required report of elder or dependent adult abuse.

Reporting abuse is an individual duty.

CONTENT

Making a Report

Mandated reporters are required to report incidents of known or suspected abuse in two ways:

• By telephone immediately, or as soon as practically possible, to the local ombudsman or the local law enforcement agency.

AND

• By written report, Department of Social Services Form (SOC Form 341), “Report of Suspected Dependent Adult/Elder Abuse” sent within two (2) working days.

Telephone Report

The telephone number of the local Long-Term Care Ombudsman is usually posted in a conspicuous location in every facility. Certain long-term care facilities are legally required to post the number in the following four locations:

• One location accessible to members of the
• One location used for employee
• One location that is next to a telephone designated for resident
• One location used for communal functions for residents, such as for dining or resident council meetings and activities.

A phone report may also be made to the local law enforcement agency, for example, the local city police or county sheriff’s department.

Written Report

SOC 341 Form – Report of Suspected Dependent Adult/Elder Abuse

After a report is made by telephone, reports of known or suspected abuse are to be documented on the SOC 341 Form and sent within two (2) working days of the telephone report. Reports are to be sent to either the Office of the Long-Term Care Ombudsman or other responsible agency as identified on the General Instructions portion of the SOC 341 Form.

If the mandated reporter has questions about where to send the SOC 341 Form, it is recommended that the mandated reporter ask the Long-Term Care Ombudsman or local law enforcement agency when making the initial telephone report.

The SOC 341 Form is generally referred to as a “cross-reporting” form simply because it is the form used by one individual (or agency) to document and refer a case of suspected abuse to another agency for investigation.

Every facility has copies of the SOC 341 Form and the facility shall make these forms available to all employees upon request. SOC 341 Forms require the following information:

• Name, address, telephone number and occupation of person making the report
• Name and address of the victim
• The date, time and place of the incident

Other details, as required

(See Appendix 8 for Long-Term Care Ombudsman Directory)

THE FOLLOWING IS AN OVERVIEW OF THE IMPORTANT INFORMATION THAT MUST BE PROVIDED WHEN FILLING OUT THE SOC 341 FORM:

Victim

The victim is the individual who has allegedly been abused in some way. The victim does not have to participate in the mandated reporting process. There may be one or more elder or dependent adult victims involved in the suspected abuse. Make sure the victim information is complete.

Reporting Party

This section identifies the individual making the mandated report. A mandated reporter is not responsible for verifying claims, incidents or cases of abuse. A reporter may indicate whether they waive their right to confidentiality, but that is strictly a personal choice. Otherwise, the only individuals who will have or use the information will be the investigative or enforcement agencies receiving the report.

Incident Information

This section states where the incident occurred, for example a nursing facility or community care facility.

Reported Types of Abuse

This section should include whether there are clear physical signs of abuse or the victim discloses abuse and is able to identify the type of abuse, or if the reporter has witnessed an incident of abuse. Otherwise, the reporter must simply use his or her personal discretion and reasonable judgment in an attempt to identify the specific kind of abuse that may have occurred using his or her knowledge of the definitions of the various forms of abuse outlined earlier in the training. The investigative agency will ultimately determine and legally define the specific type(s) of abuse, if the abuse is substantiated.

Reporter’s Observations, Beliefs and Statements by Victim if Available

The reporter should be as complete as possible in providing details, observations, and any other important information. For example, any bruises, burns, cuts, sprains, bedsores, malnourishment, dehydration or other physical or psychological symptoms of abuse or neglect. It is also important for the reporter to include any specific behavior of the victim or statements made by the victim.

Family Member or Other Person Responsible for Victim’s Care

This section pertains primarily to individuals receiving care from a relative or paid in-home caregiver. Within facilities, the reporter should attempt to list the name of the individual identified as the resident’s contact person, if known. There is a check box provided if the individual listed is a contact person only.

Collateral Contacts

The reporter should indicate information about any other individuals that may have knowledge of the incident(s), the victim or the alleged abuse. Doctors, caregivers, relatives, etc., may be included. This section can also identify any other individuals who are mandated reporters and may know about the incident.

Suspected Abuser

The reporter may not have the exact name of the individual or individuals that may be responsible for the abuse or neglect. However, the form allows the reporter to check a box if the suspected abuser is a care custodian, health practitioner, etc.

Telephone Report

This section identifies the date and to whom the telephone report was made. The reporter must indicate the name of the individual to whom he or she gave the telephone report.

Written Report

This indicates if the report was sent or faxed to the Ombudsman or law enforcement agency.

Agency Use Only

This section is used by cross-reporting agencies to track the case status. These agencies can also choose to provide and exchange information with each other for possible licensing or enforcement actions.

(See Appendix 7 for a copy of SOC 341 Form)

Message to Participants:

If an individual making a report needs help completing the SOC 341 Form, he or she may call the Long-Term Care Ombudsman for information and assistance.

WHO INVESTIGATES REPORTS OF ABUSE?

The Long-Term Care Ombudsman Program, Local Law Enforcement and The Department of Justice, Bureau of Medi-Cal Fraud and Elder Abuse investigate reports of abuse.

State investigations of known or suspected instances of abuse, neglect, isolation, abandonment or financial abuse in a long-term health care facility are the responsibility of:

• The Long-Term Care Ombudsman Program
• Local Law Enforcement
• The Department of Justice, Bureau of Medi-Cal Fraud and Elder Abuse

Additionally, reports of abuse are forwarded to the individual licensing agency responsible for licensing long-term health care facilities. Reports are either forwarded to the Department of Health Care Services or the Department of Social Services (Community Care Licensing

Division). Both of these agencies are charged with investigating complaints against facilities that are alleged to have violated any state or federal regulations that govern those facilities.

Federal agencies also have strict laws and regulations governing abuse and neglect of long-term health care facility residents. The U.S. Department of Health and Human Services has three agencies that deal with issues involving complaints of abuse or neglect within facilities. The federal government is concerned about the quality of care that residents receive because a majority of residents have that care paid for by federal programs, such as Medicare. These federal agencies also look into complaints made by or on behalf of residents in an effort to ensure an environment that is free from abuse and the use of unnecessary restraints.

FACILITIES’ POLICIES AND PROCEDURES

Each facility may have its own policies and procedures for reporting and documenting known or suspected cases of elder or dependent adult abuse within its facility. However, no supervisor or administrator shall prevent an individual from not reporting cases of abuse. Facilities may develop policies and procedures to facilitate reporting and request that staff members reporting abuse notify supervisors and administrators. No facility’s policies and procedures can conflict with the state’s mandated reporting laws.

Message to Participants:

• Reporting is an individual
• Facilities may develop policies and procedures to facilitate reporting and instruct staff to advise supervisors and administrators when they report instances of abuse or neglect. However, no facility may adopt policies and procedures that conflict with California’s mandated reporting laws.

SUMMARY

Under California law, mandated reporters who fail to report known or suspected instances of abuse are guilty of a crime.

LEARNING OBJECTIVE

To educate all staff that there are strong penalties for anyone who fails to report elder or dependent adult abuse. Individuals who fail to report will be prosecuted. Mandated reporters are also protected by law and are guaranteed certain confidentiality rights.

CONTENT

1.   Failure To Report

Mandated reporters have a legal obligation to report all known or suspected cases of elder or dependent adult abuse. Because of this, there are strong penalties for anyone who doesn’t report.

California law states that:

• Failure to report physical abuse, abandonment, isolation, financial abuse, or neglect of an elder or dependent adult is a misdemeanor, punishable by not more than six (6) months in county jail or by a fine of not more than one thousand dollars ($1000), or by both a fine and imprisonment;

AND

• Any mandated reporter who willfully fails to report physical abuse, abandonment, isolation, financial abuse, or neglect of an elder or dependent adult, where that abuse results in death or great bodily injury, is punishable by not more than one year in a county jail or by a fine of not more than five thousand dollars ($5000), or by both that fine and imprisonment.

Message to Participants:

In summary:

• It is your legal obligation to report known or suspected instances of elder or dependent adult abuse. Failure to report is a crime and there are strong penalties for anyone who fails to report.
• If you have doubts or concerns, it is best to err on the side of caution and the law….file the There is no penalty for filing a report.
• Mandated reporters are provided with key protections.

2.   Employee Liability

The law provides certain key protections for mandated reporters. A mandated reporter who reports a known or suspected instance of abuse can be held civilly or criminally liable.

3.   Employee Confidentiality Rights

Reports of suspected elder or dependent adult abuse and the information contained in those reports shall be confidential and may be disclosed only to the following:

• Investigators from an adult protective services agency
• Local law enforcement agency
• Department of Justice, Bureau of Medi-Cal Fraud and Elder Abuse investigators
• Investigators of Department of Consumer Affairs, Division of Investigation

The identity of all persons who make a report will be confidential and disclosed only among the following:

• Adult protective services agencies
• Long-Term Care Ombudsman Programs (with resident’s permission)
• Licensing agencies or their counsel
• Local law enforcement agencies
• Department of Justice, Bureau of Medi-Cal Fraud and Elder Abuse
• By the Bureau to District Attorneys in a criminal prosecution
• Upon waiver of confidentiality by the reporter
• By a court order

Any violation of these confidentiality provisions is a misdemeanor, punishable by up to six

(6) months in county jail, a fine of five-hundred dollars ($500.00), or by both that fine and imprisonment.