Nuances of Mandatory Reporting - Part I
Elder abuse takes many forms. It could be neglect, sexual or physical abuse, or financial exploitation.
Arizona, for example, defines neglect as the deprivation of:
Food
Water
Medication
Medical services
Shelter
Cooling
Heating
Supervision or
Other services necessary to maintain minimum physical or mental health
(See Ariz. Rev.Stat. § 46-451(A)(7))
Exploitation is the illegal or improper use of an individual or their resources for another person's profit or advantage. This can include:
Misusing cash, credit cards or bank accounts
Stealing money or household goods and property (See Ariz. Rev. Stat. § 46-451(A)(5))
Abuse, neglect and exploitation can occur for many reasons. We’ve all heard the horror stories of sexual abuse in skilled nursing facilities, and allegations of theft by home health aides and caregivers. Employment screening concerns will be addressed in Part II next week. Today, we will address a topic that’s not often discussed in mainstream media.
Many individuals are victimized, not just by strangers and scammers, but often by friends or family members. According to the Arizona Attorney General’s office, of the elders who are victimized by family members, 1 in 5 is a result of unauthorized spending by either forging the elder’s signature or forcing the elder to sign documents against their will. Only 4% of elder financial exploitation cases are reported, and of those, 12% of the reports are made by people who are unrelated to the vulnerable adult or their family (known as “proxies”) who identified abuse perpetrated by the family.
As an owner or manager of an assisted living facility, are you a proxy? If one of your resident’s family members signed the Residency Agreement as responsible party or Power or Attorney (“POS”), and they fail to pay for services rendered, they may be guilty of exploitation or neglect of that resident, particularly if the resident is incapable of handling their own financial affairs. Under Arizona’s statutes, you may, therefore, be a mandatory reporter, required to initiate an investigation with either a peace officer or Adult Protective Services (“APS”) (See Ariz. Rev. Stat. § 46-454).
Many assisted living owners are wary of dealing with APS, because they are more often concerned about disgruntled family members making unwarranted claims against the facility or their caregiving team. But APS is on the facility’s side when it comes to family members not living up to their financial obligations and possibly misappropriating Social Security or other retirement funds for their own use, rather than for the room and care services needed for the vulnerable adult in the assisted living facility.
Long-term care providers are included in the definition of “mandatory reporters” in Arizona and many other states. If a person violates their obligations as a mandatory reporter in Arizona, they may be found guilty of a class 1 misdemeanor. https://www.azleg.gov/ars/46/00454.htm
Thus, failure to pay for room and care is not just a contract matter; it may also be a reportable event by the assisted living facility. For readers outside of Arizona, you may wish to refer to the comprehensive state-by-state list of adult protective statutes compiled by the Arizona Bar Association.
If you want to learn more about mandatory reporting in Arizona, refer to the infographic map of the process. The phone number to call is part of an assisted living facility’s list of “conspicuously posted phone numbers” required by A.A.C. R9-10-803(D)(3)(a-d): 1-SOS-ADULT, or 1-877-767-2385. Note: This is NOT the Ombudsman’s office. You will be required to have certain information on-hand when making the report, and be sure to mark down the investigation number assigned before hanging up with the Central Intake Unit.
Other types of reportable situations may include:
when the family or friends provide alcohol or marijuana to the resident that are not in accordance with doctor’s orders, or in excessive amounts;
when a visiting spouse or partner has sexual relations with a resident who is cognitively unable to consent; or
when the responsible party or POA refuses or intentionally fails to provide needed medical attention or healthcare supplies for the resident.
Hopefully, you’ll never have to be a mandatory reporter against a family member of a resident, but our firm is able to assist, if your facility encounters this type of situation
Look for more weekly blog posts on topics of interest to Assisted Living and Behavioral Health operators in Arizona and elsewhere. Information herein is intended to be educational only, and a general introduction to the subject matter presented. It is NOT specific legal advice to be relied upon for specific individual circumstances. Contact your own legal professional, or reach out to Pinkowski Law & Policy Group if you would like specific legal advice. If you’d like to see a certain topic addressed in a future article, write to: info@pinkowskilaw.com