Where elder abuse and the justice system collide: Police power, parens patriae, and 12 recommendations

Journal of Elder Abuse and Neglect

Volumn 22, Issue 1-2, 2010, Pages 37-93

  Connolly, Marie Therese ^a  

^a WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS   (United States)

Author keywords

Elder abuse; Justice system; Multidisciplinary approach

Indexed keywords

AGED; ARTICLE; CRIMINAL LAW; ELDER ABUSE; ELDERLY CARE; HEALTH CARE POLICY; HUMAN; LEGAL ASPECT; POLICE; UNITED STATES;

AGED; CRIMINAL LAW; ELDER ABUSE; HEALTH POLICY; HEALTH SERVICES FOR THE AGED; HUMANS; POLICE; UNITED STATES;

EID: 77951294128     PISSN: 08946566     EISSN: 15404129     Source Type: Journal    
DOI: 10.1080/08946560903436338     Document Type: Article

References (232)

1. Marie-Therese Connolly is a Senior Scholar and was previously a fellow at the Woodrow Wilson International Center for Scholars where she is working on a book about elder abuse. Prior to her fellowship, she coordinated the U.S. Department of Justice, Elder Justice and Nursing Home Initiative from December 1998 through mid-September 2007 and was a Senior Trial Counsel in the Civil Division. Particular thanks go to Linda Bean Lannom for her intelligent and tireless contributions to this article and numerous other projects. Linda, along with Jill Callahan and Danica Szarvis-Kidd, provided assistance beyond the call of duty, great editorial comments, and consistently good counsel. Other friends and colleagues, too numerous to name, generously took the time to read portions of the manuscript and provided thoughts and suggestions. Friends, innovators and leaders in the field, Carmel Dyer, Ricker Hamilton, Nina Kohn, Laura Mosqueda, Jane Raymond, Page Ulrey, and Laura Watts waded through the entire article and provided great and thoughtful comments. Thanks also to Georgia Anetzberger and Pam Teaster for their tremendous contributions to the field and their enduring patience in editing this article. All mistakes are solely those of the author. This article was researched and written in 2007. Although some portions were updated thereafter, the primary research was not duplicated; thus some new ideas, developments and cites are not included in this article.
2. Matthew vii, 20.
3. For the purposes of this article, the term "justice system" is defined to include law enforcement, investigators, prosecutors, coroners, medical examiners, courts, and judges. The primary focus of the article is on prosecution, although other (but not all) aspects of the justice system also are briefly addressed. In addition, because the justice system response is inextricably linked with that of the health care and social service sectors, much of the discussion will apply to all three disciplines.
4. This article mentions administrative actions brought by regulatory agencies only in passing and does not discuss private actions, including those for wrongful death, negligence, or malpractice (often brought against health care providers) or the broad variety of elder abuse-related cases handled by elder law attorneys, whether private or affiliated with quasi-public entities such as Legal Services. In addition, this article does not discuss elder abuse-related matters brought in tribal courts.
5. See Section II(A), "Form a Blueprint Advisory Committee."
6. While some in the elder abuse field distinguish between multi- and interdisciplinary teams, the latter implying a greater degree of cooperation and integration of disciplines, in the trenches the distinction is blurred: the term multidisciplinary team (MDT) is widely used to describe teams of professionals from different disciplines who work together with varying degrees of integration to accomplish a common goal. Thus, the term multidisciplinary or MDT is used in this article to incorporate both concepts, unless otherwise specified.
7. See IIC(5) and, for example, Pamela B. Teaster, Lisa Nerenberg, & Kim L. Stansbury, A National Look At Elder Abuse Multidisciplinary Teams, 15 J. Elder Abuse & Neglect 92 (2003).
8. An exception is the case of self-neglect where the person neglects him- or herself.
9. It is very likely that most physical or sexual abuse does violate the law.
10. This article does not address the legal system beyond these topics.
11. See BLACK'S LAW DICTIONARY 769 (6th ed. 1991) (defining parens patriae in the legal context as the "role of state as sovereign and protector of persons under legal disability, such as juveniles or the insane").
12. Ironically, the standard of proof to deprive a person accused of wrongdoing of liberty is higher than the standard of proof to deprive someone not accused of wrongdoing (as in a parens patriae case), but merely suspected to be incompetent.
13. For example, abuse and neglect of frail elders in facilities may be pursued under either financial fraud or consumer protection statutes. The list of the types of laws that may come into play in an elder abuse case is dauntingly long and includes abuse and neglect (sometimes of a vulnerable person, sometimes of an elder), battery, assault, rape, theft, burglary, embezzlement, fraud, false claims, mail fraud, wire fraud, exerting undue influence, conspiracy, homicide, abandonment, zoning violations, and even pet-related violations.
14. "United States Attorneys conduct most of the trial work in which the United States is a party. The United States Attorneys have three statutory responsibilities under Title 28, Section 547 of the United States Code: • the prosecution of criminal cases brought by the Federal government; • the prosecution and defense of civil cases in which the United States is a party; and • the collection of debts owed the Federal government which are administratively uncollectible." United States Attorneys Mission Statement at http://www.usdoj.gov/usao/.
15. See, generally, ABA Commission on Law and Aging, Information about Laws Related to Elder Abuse (2005) at http://www.ncea.aoa.gov/.
16. Some laws (e.g., Adult Protective Services laws) cover both elders and vulnerable adults; others cover elders only. Although this article primarily focuses on elder issues, many of the same concerns arise with younger vulnerable adults as well. See, e.g., a compendium of laws pertaining to APS compiled by the ABA Commission on Law and Aging at http://www.ncea.aoa.gov/NCEAroot/Main_Site/Find_Help/APS/Analysis_State_Laws.aspx.
17. Where information discussed in one section (e.g., pertaining to local prosecution), is relevant in a subsequent section (e.g., to state prosecution), it is not repeated, but instead is incorporated by reference. Prosecutors also may bring cases ancillary to abuse and neglect (e.g., to enforce protective orders).
18. Crawford v. Washington, 541 U. S. 36 (2004), decided after the APRI report was published, dramatically narrowed exceptions to the hearsay rule, further complicating for prosecutors the process of obtaining testimony from elder and infirm victims and witnesses. Volumes have been and can be written about Crawford, its progeny, and its impact on elder abuse cases, but such detail is beyond the scope of this article.
19. American Prosecutors Research Institute, Prosecution of Elder Abuse, Neglect, and Exploitation: Criminal Liability, Due Process and Hearsay (2003), at http://www.ndaa.org/pdf/elder_abuse_web.pdf
20. See, e.g., American Prosecutors Research Institute, Protecting America's Senior Citizens: What Local Prosecutors are Doing to fight Elder Abuse (2003) at http://www.ndaa.org/pdf/protecting_americas_senior_citizens_2003.pdf (including a case study of three DA offices with elder abuse units, including 18th Judicial Circuit [Brevard and Seminole Counties in Florida, Maricopa County in Arizona, and Queens County in New York]). Other offices with expertise or experience include (but are not limited to).
21. • San Diego, CA, http://www.sdcda.org/helping/elder-abuse.html
22. • King County, WA, http://www.kingcounty.gov/Prosecutor/elderabuse.aspx
23. • Suffolk Co., MA, http://www.mass.gov/dasuffolk/help_ev.html
24. • San Francisco, CA Office, http://www.sfdistrictattorney.org/page.asp?id=77
25. • Bronx, NY, http://bronxda.nyc.gov/frames.html
26. • Los Angeles County, CA, http://da.co.la.ca.us/vwap/vwap.htm#spprograms/
27. • Sacramento, CA, http://www.da.sacda.org/ea/index.htm
28. See supra note 6 for the distinction between inter- and multidisciplinary teams. Examples of MDTs and interdisciplinary teams in the elder abuse field to date include fatality death review teams, forensic teams, financial abuse specialist teams, vulnerable adult specialist teams, geriatrician-led medical and social service response teams, research teams, and others.
29. APRI, supra note 20.
30. Steven W. Perry, Prosecutors in State Courts, 2005, Bureau of Justice Statistics Bulletin, NCJ 213799 (Bureau of Justice Statistics, Dep't of Justice) (July 2006) at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=1124.
31. APRI, supra note 19, at 29-30.
32. Id. (The bullet points are paraphrased, not direct quotes, and combine the results discussed on pp. 29-32 of the report.)
33. There are several possible ways to categorize elder abuse. This article divides the subject into three distinct (if sometimes overlapping) subsets, two involving setting and the third involving money or possessions: (1) abuse and neglect in community settings, (2) abuse and neglect in facilities, and (3) financial fraud and exploitation. Although imperfect, these distinctions make the most sense for the purposes of this article because somewhat different types of laws apply to each subissue.
34. See also The National Committee for the Prevention of Elder Abuse (NCPEA) and the National Adult Protective Services Association (NAPSA), The 2004 Survey of State Adult Protective Services: Abuse of Adults 60 Years of Age and Older (National Center on Elder Abuse, 2006) at http://new.vawnet.org/category/Documents.php?docid=636&catogory_id=496.
35. The term "facility" as used in this article includes any type of health care facility where elder abuse or neglect might occur. Although much of the discussion relates to nursing homes and other types of long-term care providers (assisted living, board and care, congregate care, adult family homes, etc.), abuse or neglect may occur in rehabilitation facilities, hospitals, long-term acute care hospitals, and any other type of health care facility, not just ones that provide long-term care.
36. Cases of abuse of a resident by a family member in a facility also may fall into this category.
37. This maxim was belied by Randy Hey, a veteran Santa Clara County attorney who indicted a 17-facility chain for homicide. See State v. Guardian Post Acute Services, Inc. (Cal. Super. Ct. May 24, 1999) (no contest plea).
38. See Lisa Nerenberg's Blog entries (2006), at http://lisanerenberg.com/learn/undueInfluence.html (2006) (discussing undue influence laws and cases and citing Undue Influence in Contract and Probate Law, an article by Abraham Nievod, originally appearing in the J. Questioned Document Examiners, Vol. 1, No. 1, 1992).
39. The boundaries between and among the various types of abuse are not always so clear. Abuse in community-based settings may occur at the hands of family or nonfamily. Abuse in institutional settings may occur at the hands of family or nonfamily. And financial exploitation may occur in any setting by a virtually limitless variety of potential perpetrators.
40. See Wisconsin Coalition Against Domestic Violence, Elder Abuse: Potential Legal Remedies, [no date] at http://www.azag.gov/seniors/elderabuse.pdf (although originally written by the Wisconsin Coalition Against Domestic Violence, the Arizona Attorney General's office adapted the booklet for use in Arizona); see also Massachusetts Attorney General's Elder Abuse Project, at http://www.mass.gov/?pageID=cagoterminal&L=3&L0=Home&L1=Community+Safety&L2=Resources+for+Elders&sid=Cago&b=terminalcontent&f=community_massachusetts_bank_reporting_project&csid=Cago.
41. The care provided and decisions made at the end of life may pose complex issues and are faced by state and federal prosecutors alike. For example, how should care decisions be made in the case of a critically ill elder whose capacity is beginning to fail? If the older person's clear intent was to live as long as possible, but the decision maker (who may also stand to profit financially from the elder's death) makes decisions contrary to such instructions, what is the proper response of the legal and other systems? Conversely, if a patient has left clear instructions about wanting to die at home and not wanting to live incapacitated on a ventilator for months and months, and the family countermands that decision, demanding that medical staff keep the person alive, what is the proper response of the legal system (if it is invoked)? The myriad ethical, legal and public health thickets attending end of life make enhanced examination of that field critical. We need to assure that decisions are made with integrity and transparency and that, to the extent possible, patients' true wishes are discerned and heeded. For discussion of some aspects of this issue, see Ethical decision-making at the end of life, a video and summary of an event held at the Woodrow Wilson International Center for Scholars, March 2008, at http://www.wilsoncenter.org/index.cfm?fuseaction=events.event_summary&event_id=303954.
42. See Marie-Therese Connolly, Federal Law Enforcement in Long Term Care, 4 J. Health Care L. & Pol'y 230, (2002).
43. "Each Unit receives a federal grant, annually, from the U.S. Department of Health and Human Services. This federal grant of 75% must be matched by the state for the remaining 25%." National Association of Medicaid Fraud Control Units Web site at http://www.namfcu.net/about-us/about-mfcu.
44. See, e.g., State of Texas v. Autumn Hills Convalescent Center, Inc. et al., Cause No. 84-CR-0727-28,29,20,31,32 (212 Dist. Court, Galveston, Texas [1986]) (the first corporate murder trial in Texas, charging a nursing home chain, its president, vice president, manager, and director of nursing with murder by neglect. The case ended in mistrial but was one of the first such cases and one of the few to pursue criminal charges against the chain and high level personnel).
45. See The Ticket to Work and Work Incentives Improvement Act of 1999 (Pub. L. No. 106-170, 113 Stat. 1860) (1999). Congress conditioned each state's participation in the Medicaid Fraud Control Unit (MFCU) program on its formulation of "procedures for reviewing complaints of the abuse and neglect of patients of health care facilities that receive payments under the State [Medicaid] plan" and, where appropriate, prosecuting such cases or referring them to other state agencies for prosecution. See 42 U.S.C. $ l396b(q) (2001); 42 C.F.R. $ 1007.11 (1998). MFCUs also, at their discretion, may pursue cases arising in non-Medicaid funded facilities where two or more residents reside. See id. MFCUs devote substantial resources to patient abuse investigations and review thousands of referrals alleging patient abuse, neglect, and the misappropriation of patient funds. In 1996 more than 4,000 of these cases were investigated by the MCFUs. There are no more recent statistics, but NAMFCU estimates that the number is now substantially higher.
46. A Latin abbreviation for "who sues on behalf of the King as well as for himself." Qui tam provisions are included in some statutes allowing whistleblowers to file suit on behalf of a government entity and share in the damages, fines, or penalties collected based on the information provided
47. For a list of states with their own qui tam laws and those contemplating enactment of such a law, see Michael A. Sullivan, 'A 'False Claims Act' Is Finally Enacted in Georgia" 13 Georgia Bar Journal 12 (2007), fn. 58.
48. See http://www.nahc.org/HAA/history.html.
49. See National Association of Attorneys General (NAAG) Consumer Protection project, at http://www.naag.org/consumer_protection.php.
50. See Connolly supra note 35.
51. 31 USC $ 3729 et seq. See also a more detailed discussion about law enforcement in long-term care in Connolly, supra note 35, at 28-42.
52. DOJ began pursuing "failure-of-care" abuse and neglect cases in the mid-1990s with the settlement agreement and consent judgment in United States v. Chester Care, 98-0139 (January 13, 1998, E.D. Pa.) and the district court opinion and settlement in U.S. ex rel. Aranda v. Community Psychiatric Center of Okla., 945 F.Supp.1485 (W.D. Okla. 1996). These types of cases initially were controversial because defendants claimed incorrectly that DOJ was regulating quality of care but over time, this argument was belied by the cases that were pursued. Prosecution is usually a remedy of last resort, coming into play only when other less extreme remedies have not served to protect the federal fisc, the programs it funds, and the frail and vulnerable residents for whom those programs exist. Providing lawfully adequate care and services to residents is at the heart of the bargain between providers and the government. That is what the government is paying for. Thus, when providers fail to provide the requisite care but nonetheless knowingly bill the government for it, the United States (and where applicable, the state) has a cause of action under the False Claims Act and potentially under other laws as well. The possibility of administrative or private actions being pursued by other entities under other laws would not obviate such claims. The authority to terminate errant providers and the determination whether to pay providers under the programs in the first instance are distinct authorities that lie with the HHS (or its state counterparts), not with DOJ. The authority to determine whether the government has been defrauded, however, lies with the Department of Justice.
53. The United States has received favorable decisions from courts that have considered the government's briefing in failure of care cases. See, e.g., United States v. Cathedral Rock Corp. No. 4:03CV1090HEA (November 30, 2007, EDMO), United States and the State of Illinois ex rel. Absher v. Momence Meadows Nursing Ctr., et al., No. 04-C-2289, 2007 WL 685693 (C.D. Ill. Mar. 2, 2007),United States ex rel. Garcia v. IHS, et al., Civ. No. 3-02-3796-19 (D. SC, 2003) (affirming viability of government's FCA failure of care theory); United States v. NHC Health Care Corp., 115 F. Supp. 2d 1149 (W.D. Mo. 2000) (denying defendant's motion to dismiss); United States v. NHC Health Care Corp., 163 F. Supp. 2d 1051 (W.D. Mo. 2000) (denying defendant's motion for summary judgment); United States ex rel. Aranda v. Community Psychiatric Centers, 945 F. Supp. 1485 (W.D. Okla. 1996). But, see, adverse case law in declined qui tam cases where the United States did not file a brief. See, e.g., United States ex rel. Swan v. Covenant Care, 279 F. Supp. 2d 1212 (E.D. Cal. 2002).
54. Damages theories vary depending on the facts of the case.
55. For a more detailed discussion, see Connolly, supra note 35.
56. See, e.g., http://oig.hhs.gov/fraud/cia/cia_list.asp (listing examples of quality of care CIAs.)
57. United States v. Wachter, et al., No. 05-CR-00667-SNL (E.D. Mo. Nov. 11, 2005), (guilty plea under 18 U.S.C. $ 371, conspiracy to commit an offense or to defraud by submitting false claims for reimbursement and false statements in connection with the provision of health care services).
58. United States v. Melville Borne, et al., Crim. No. 03-247 (E.D. LA November 29, 2006) (denying motion to dismiss criminal counts including 18 U.S.C. 1345 in systemic failure of care case). Borne was pursued under health care fraud and diversion of funds theories, including 18 U.S.C. $ 371 (conspiracy to commit an offense or to defraud), 18 U.S.C. $ 1347 (health care fraud) and $ 664 (a pension violation) of funds theories.
59. See, e.g., United States v. Crawford, No. 4:1998cr00219 (E.D. Ark. Mar. 15, 2000); United States v. Turner, No. 4:1998cr00215 (E.D. Ark. Mar. 15, 2000), and United States v. Taibi, No 01-212 (E.D. Pa. Nov. 21, 2001). See also a more detailed discussion of criminal cases in Connolly, supra note 35, at 45-49.
60. 18 U.S.C. $ 1347 (2001) (health care fraud incorporating definition from 18 U.S.C. $ 1346).
61. See, e.g., settlement agreement in Beverly Enterprises, Inc., (N.D. CA 2000) and discussion of the case in Connolly, supra note 35, at 48-49.
62. See Indictment United States v. Van Meter, (W.D. Okla. 2000) (No. CR-00-067-T); United States v. Jiles (W.D. Ok. 2002) (No CR-02-029-C). See also discussion of this case in Randy Ellis, Jiles Pleads Not Guilty to Federal Charges, Daily Oklahoman, Feb. 28, 2002, at 1A, available in 2002 WL 14474916.
63. See Affidavit of FBI Special Agent Mark D. Seyler, May 3, 2000 (including partial transcript of discussion between Van Meter and Smart picked up on a wire tap), Fedelis Group Report (September 21, 2000), detailing the public corruption and mismanagement and a report by a Multi-County Grand Jury (empanelled by the Supreme Court of Oklahoma) (SL 99-56, CJ 99-7238, July 2001).
64. See Center for Medicare and Medicaid Services, Nursing Home Data Compendium 2009 Edition at http://www.cms.hhs.gov/CertificationandComplianc/Downloads/nursinghomedata compendium_508.pdf. (The estimated number usually ranges between 5%-10%.)
65. See http://www.usdoj.gov/crt/split/nursehomes.htm for a description of the types of cases and links to relevant documents.
66. See, e.g., United States v. City of Philadelphia Nursing Home, Civ. No. 98-4253, (E.D. Pa. Aug. 7, 1998); see also settlement agreement at http://www.usdoj.gov/crt/split/documents/philsa.htm.
67. The OIG's Office of Investigations (OI) and Office of Audit Services (OAS) conduct investigations and audits in health care-related matters. The Office of Inspector General and Office of Audit Services Web sites are available at http://www.oig.hhs.gov. The Office of Evaluations and Inspections (OEI)-OIG's "think tank" branch-conducts studies, and releases reports on a broad variety of topics, including problems in quality of long-term care.
68. See 42 U.S.C. 1320a-7(a) and 7(c) (mandatory exclusion authority) and 42 U.S.C. 1320a-7(b) (permissive exclusion authority).
69. See 42 U.S.C. 1395i-3(h)(2)(A) (In General) and (B) (Specified Remedies) (detailing the various remedies available to CMS); see also discussion of the use of those remedies at U.S. Gov't Accountability Office, efforts to strengthen federal enforcement have not deterred some homes from repeatedly harming residents, GAO-07-241 (March 2007), discussing CMS's enforcement authorities p. 10 et seq., and a chart illustrating the interplay between state and federal enforcement responsibilities (p. 15). In addition, HHS's Centers for Disease Control and Prevention (CDC), while lacking regulatory or enforcement authority, has components responsible for health care quality as well as violence prevention and may be a resource for the Centers for Medicare and Medicaid Services, OIG, state entities, and others alike.
70. Testimony of Stuart Schiffer before the Senate Special Committee on Aging, June 14, 2001, at http://bulk.resource.org/gpo.gov/hearings/107s/74685.txt.
71. See Telemarketing Fraud at http://www.usdoj.gov/criminal/fraud/telemarket/ask/doj.html#disconnect.
72. Self-neglect is often seen in parens patriae cases. Caregivers prosecuted for neglect sometimes argue that they were not in charge, but that the person they were allegedly caring for neglected herself. In that type of case, self-neglect might arise as a defense.
73. Although this is one definition, terminology and definitions associated with guardianship and conservatorship vary significantly from state to state. Some states use the term "guardian" to refer to both authority over the person and authority over the property. Some states use "guardian" for the person, and "conservator" for the property. California uses "conservator" in almost the opposite manner. And other states, such as Louisiana, use completely different terminology (e.g., "committee" or "interdiction").
74. Naomi Karp & Erica Wood, Guardianship Monitoring: A National Survey of Court Practices (AARP, 2006) at www.guardianship.org/reports/07GuardianshipMonitoring.pdf.
75. There also are other types of legal relationships where one person obtains legal authority to make decisions about the life decisions or assets of another, for example, powers of attorney and living trusts. For a discussion about powers of attorney, see linda s. whitton, The New Uniform Power of Attorney Act: Balancing Protection of the Principal, the Agent, and Third Persons, in Proceedings of the 41st Annual Heckerling Institute on Estate Planning 9-1 (Matthew Bender 2007), Durable Powers as an Alternative to Guardianship: Lessons We Have Learned, 37 Stetson L. Rev. 7 (2007). Although power of attorney and living trust are both legal relationships, they may be created without a court order, which is why they are not discussed in more detail in this article. A limited power of attorney covers specific issues (e.g., health care) whereas a general power of attorney covers almost any decision a person could make. A durable power of attorney lasts even if the principal becomes incapacitated, whereas a regular power of attorney ends with incapacity. Lawsuits to redress abuse or exploitation in the context of those relationships would, of course, fall within the ambit of the justice system.
76. See Karp & Wood, supra note 67, at. x-xi, 31-35.
77. See Pamela B. Teaster, Erica F. Wood, Winsor C. Schmidt, & Susan A. Lawrence, Public Guardianship after 25 Years: In the Best Interest of Incapacitated People? (The Retirement Research Foundation, 2008).
78. See id., recommending that sweeping changes be made to guardianship program characteristics, program functions, funding and staffing of programs, and due process protections.
79. Guardians may help to preserve the rights of incapacitated persons where the guardian helps to assure that psychotropic medication or other treatments are in the best interest of the patient and not simply for convenience of the staff. Another example might be where a guardian pays rent for a person who is unable to understand that the long-term consequences of not paying rent may be homelessness or institutionalization.
80. Elders also may receive (involuntarily) services they do not want in situations that fall short of guardianship.
81. Where an older person needs care and is being cared for by someone who can no longer provide adequate care, commitment (or another form of involuntary treatment of placement in a facility) might help to avoid abuse.
82. Lori Steigel, Recommended Guidelines for State Courts Handling Cases Involving Elder Abuse (1996).
83. In addition to Alameda County, Louisville, KY, and Brooklyn, NY, also have established elder courts.
84. Brenda K. Uekert. Elder Abuse and Neglect in Future Trends in State Courts (Tracy Peters, Neal Kauder, Chuck Campbell, & Carol Flango eds. 2005) at http://www.ncsconline.org/WC/Publications/Trends/TrendsSum/EldAbuTrSum.html.
85. Max B. Rothman and Burton D. Dunlap, Elders in the Courthouse: A Demographic Imperative, 19 Court Manager 35 (Winter 2004-2005).
86. Personal communication from Pamela B. Teaster, 2007.
87. See program information and brochure at http://www.fljud13.org/ejc.htm.
88. See program description at http://pbcgov.com/publicsafety/justiceservices/elderjustice. htm and program brochure at http://www.pbcgov.com/publicaffairs/publications/pdf/courts/ElderJusticeBrochure100.pdf.
89. Uekert, supra note 77.
90. DOJ's National Institute of Justice in 2007 funded the ABA Commission on Law and Aging to study five existing court programs specifically focused on elder abuse, including those mentioned above. In addition, DOJ's Office on Violence Against Women has funded the development of a curriculum for judges and court personnel relating to elder abuse that is currently underway and the Office for Victims of Crime With the Elder Justice Initiative funded development of a training video about elder abuse for judges and court personnel that should be available some time in the near future.
91. See, e.g., http://www.elderabuseforensiccenter.com/.
92. Idiosyncratic growth of the field is not a bad thing, per se, and should continue, as it allows opportunities for innovation. But there also is real value in bringing a strategic approach simultaneously.
93. Although no research supports the assertion that demographic trends will result in a dramatic increase of the number of Americans victimized by elder abuse, common sense would so indicate, particularly because the fastest growing segment of the population, those 85 and older ("the oldest old") also are at greatest risk for abuse, neglect, and exploitation.
94. For example, DOJ Elder Justice Forensic Roundtable (October 2000), Elder Abuse Policy Summit (2001), National Academy of Science, National Research Council Panel report (2002), proposal of the Elder Justice Act (May 2002) and events and documents attending introductions of the bill.
95. Such a group likely would have subcommittees by discipline and/or issue. For example, a justice system subcommittee might address questions such as: What are the most important issues on which we need research? What are the most critical priorities in training? What tools does law enforcement need when encountering a possible elder abuse situation? How do we define success in prosecuting elder abuse? What types of prosecution (or community prosecution) tactics have worked well in elder abuse cases, and how are those best communicated to the field?
96. This list of research subjects necessary to advance the field is not exhaustive. Other potential research subjects are relevant to topics discussed later in this article, for example, as they relate to elder abuse forensics.
97. The National Research Council (NRC), National Academy of Sciences (NAS) stated that "so little is now known about elder mistreatment that it would be premature to draw up a detailed research agenda for this nascent field," elder mistreatment: abuse, neglect, and exploitation in an aging america, xiv (Richard Bonnie and Robert Wallace, eds., 2002).
98. Elder abuse researchers report significant difficulties in getting studies approved by their Institutional Review Boards (IRBs) given the IRB's concerns about victim safety and the adequacy of consent, among other reasons. The paucity of guidance to those IRBs in how to balance subject safety with the importance of conducting research into the issues further compounds the problem.
99. DOJ has made a grant to the University of California, Irvine team (including researchers Laura Mosqueda, MD, and Kerry Burnight, PhD) to do preliminary work on this issue. In addition, at a NIJ workshop in February 2008, a presentation about the historic origins of the theories underlying domestic violence, and a panel discussion examining various potential models, began to illuminate some of these issues.
100. Mandatory reporting is a general term that encompasses a number of potential laws and requirements, for example APS laws may mandate reporting to APS, certain professionals may be required to report to a government oversight or regulatory agency, still others may be required to report to law enforcement. The ABA Commission on Law and Aging, with funding from HHS Administration on Aging (AoA), is publishing (and will post on its Web site at http://www.abanet.org/aging/) charts describing the various types of reporting laws and their functions.
101. See The National Center on Elder Abuse, The National Elder Abuse Incidence Study (September 1998) at http://www.ncea.aoa.gov/ncearoot/Main_Site/Library/Statistics_Research/National_Incident.aspx (concluding that 84% of elder abuse goes unreported). The methodology of this study funded by HHS AoA has been criticized, and the study examined only parts of the problem. Others estimate that as few as 1 in 14 cases come to light.
102. In some states, state surveyors who oversee nursing homes are not mandated reporters and, absent another requirement to report, they may lawfully take many days to report a suspected crime.
103. Bonnie Brandl, Mandatory Reporting of Elder Abuse: Implications for Domestic Violence Advocates (National Clearinghouse on Abuse in Later Life, a project of the Wisconsin Coalition Against Domestic Violence 2005) at http://www.ncall.us/docs/Mandatory_Reporting_EA.pdf.
104. See, e.g., http://ag.ca.gov/newsalerts/release.php?id=801&year=2002&month=4.
105. See Jeanette M. Daly, Gerald J. Jogerst, Margaret F. Brinig, & Jeffrey D. Dawson, Mandatory Reporting: Relationships of APS Statute Language on State Reported Elder Abuse, 15 J. Elder Abuse & Neglect 1 (2003).
106. Even where state law does impose criminal penalties for failure to report, anecdotal reports indicate that there is significant reluctance by prosecutors to prosecute mandatory reporters for their failure to report, possibly because those nonreporters often are professionals, some of whom work for public agencies.
107. This phenomenon may result in the illusion that the number of cases is on the rise, when in fact just the number of cases being reported is on the rise.
108. See Brandl, supra note 97.
109. Id. at 11, 13-18, and throughout.
110. Elder Abuse: Effectiveness of Reporting Laws and Other Factors. General Accounting Office (GAO). Washington, DC: Government Printing Office; April 1991 and May 15, 1991, testimony of Gregory J. McDonald before the House Select Committee on Aging.
111. Section II (B)(5) infra, discusses the importance of evaluating the efficacy of laws and other interventions. While that section focuses on criminal background checks, the previous discussion illustrates that reporting, too, is a subject that would benefit from additional study.
112. See, e.g., Public Law 105-277 (codified as amended at 42 U.S.C. s 5119 [2001]; Pub. L. No. 92- 544), requiring the FBI to conduct federal background checks on applicants as long as the state where the facility is located transmits the fingerprints to the FBI, which in some cases poses an impediment.
113. Senator Herb Kohl (D. Wis.) has on several occasions introduced a bill requiring criminal background checks for nursing home staff and others. Initially the bill stood alone; it was then appended it to the Elder Justice Act (a controversial measure given concerns about cost and substance). Subsequently, the background check bill was attached to the Medicare Modernization Act (MMA) of 2005. In the MMA conference negotiations, the criminal background check provision became a $ 25 million seven-state pilot study, pursuant to a mandate in $ 307 of the MMA, P.L. 108-173. Since the MMA was enacted, Sen. Kohl has twice sought to attach his background check provision to the EJA, an amendment that remains controversial for both fiscal and substantive reasons. See EJA discussion, infra.
114. HHS's Centers for Medicare and Medicaid Advocacy (CMS) recently issued results from its seven-state pilot study to assess the feasibility of a federal criminal background check provision. See Background Check Pilot Program at http://www.cms.hhs.gov/SurveyCertificationGenInfo/04_BackgroundCheck.asp.
115. Even less is known about abuse registries, which are enthusiastically supported by some (as easily accessible and relatively easily compiled with existing lists of convicted or excluded individuals) and disparaged by others (as redundant if they include only convicted and excluded individuals, rife with due process concerns to the extent they capture names of those who have not been adjudicated, inaccurate if they are name-based, and not cost effective given the other issues).
116. Some proponents of background checks urge that no one measure excludes all individuals with a background of abuse and/or criminal history and thus, that a three-prong, hierarchical system should be employed, including state background checks, federal background checks, and abuse registries. See, e.g., the chart prepared by the Senate Special Committee on Aging staff of Background Check Program State Pilot Data (as of Sept. 2007) showing the number of applicants excluded by state by all three means combined is about 7,271 total (3% of applicants) of which about 587 were excluded because of the FBI check. The numbers vary significantly by state. Under such a three-prong system, at whatever point an individual is disqualified, no additional checks would be conducted, thereby reducing resources where there is an early "hit." Another measure urged by background-check proponents is the "rap back" measure, which records applicant data and if a new criminal record appears, will report that event, instead of requiring a follow-up background check. See testimony of Orlene Christie, Director, Legislative and Statutory Compliance Office, Michigan Department of Community Health, May 2, 2007, at http://www.aging.senate.gov/events/hr17206.pdf/(discussing a rap back provision).
117. H.B. 4785 (94th Gen. Assem. Ill. 2006), known as An Act to Protect Vulnerable Adults, amended the Illinois Nursing Home Care Act, and was intended to identify sexual and other violent predators who are residents in nursing homes; see supporting statement of the IL Attorney at http://www.illinoisattorneygeneral.gov/pressroom/2006_05/20060509.html.
118. See Mark Lachs, Ronet Bachman, Christianna S. Williams, & John R. O'Leary, Resident-to-Resident Elder Mistreatment and Police Contact in Nursing Homes: Findings from a Population-Based Cohort, 55 J. Am. Geriatrics Soc'y 840 (2007).
119. See, e.g., Testimony of David R. Zimmerman before the Senate Special Committee on Aging, November 15, 2007 at http://www.allhealth.org/briefing_detail.asp?bi=117. As the result of federal False Claims Act cases brought by the Department of Justice and Corporate Integrity Agreements (CIAs) negotiated by HHS Office of Inspector General (OIG), numerous nursing homes and nursing home chains of various sizes were required to hire monitors to help them improve resident care and their systems for providing care. One of those monitors, the Long Term Care Institute (LTCI), which works closely with the University of Wisconsin's Center for Health System, Research and Analysis (CHSRA), has taken a research approach to monitoring. That is, they collect data as they go along and design mid-course corrections to make monitoring more effective as a result of the data collected. David Zimmerman, PhD, who heads CHSRA and LTCI, notes that it is critical for providers to understand, measure, assess, and respond to outcomes, processes, systems, and culture (commitment) at the resident, facility, regional, and chain-wide level. Other recent developments with significant potential to improve resident safety include HHS OIG's efforts to develop a "dashboard" to assist boards of directors of health care providers to keep better track of the quality of care provided by their organizations. In addition, Senators Herb Kohl (D. Wis.) and Charles Grassley (R. Iowa) recently introduced a bill to promote the transparency of nursing home ownership and staffing information and accountability among those who own and are in charge of nursing homes. See The Nursing Home Transparency and Improvement Act, S. 2641 (2008), introduced by Senators Grassley and Kohl (2008) at http://www.govtrack.us/congress/billtext.xpd?bill=s110-2641. These transparency and accountability measures hold great promise and should be evaluated as soon as feasible.
120. See Candace Heisler, Integrating Medical Forensic Evidence with Law Enforcement, Department of Justice, Medical Forensic Roundtable (October 18, 2000) at http://www.jp.usdoj.gov/nij/topics/crime/elder-abuse/roundtable/application-forensics.htm.
121. This suggestion first was offered at a CDC-sponsored meeting in July 2002. Just before submitting of this article, the author learned that DOJ's Office on Violence Against Women recently funded a substantially similar project.
122. See supra note 6 (discussing the distinction between multi- and interdisciplinary).
123. Pamela B. Teaster, Lisa Nerenberg, & Kim L. Stansbury, A National Look at Elder Abuse Multi-disciplinary Teams, National Committee for the Prevention of Elder Abuse and the National Center on Elder Abuse 15 J. Elder Abuse & Neglect 92 (2003). In addition, the Vancouver, British Columbia, Association of Community Response Networks has created a toolkit that offers suggestions for bringing together key resources in a community with an impact on elder abuse and neglect, building community outreach, education, community protocol development, supporting advocacy, and more. The toolkit is available at http://www.bccrns.ca/resources/crn_toolkit/index.php.
124. The Problem: The C-SET first would collect information about elder abuse in the community and facilities, what entities become involved, how cases are handled, outcomes of some sample cases, and individual and systemic strengths and weaknesses in the handling and responses, and how well participants believe that the system is working.
125. The Vertical Analysis: would collect information about how each individual entity responds to elder abuse. The instrument would include benchmarks based on proven or promising practices in elder abuse for each type of entity. This analysis would allow the community to evaluate how well each component operates. Examples of entities to evaluate include: APS, long-term care ombudsman, adult day care providers, law enforcement, prosecutors, coroners, court personnel, judges, probations and parole officers, hospitals, nursing homes, geriatricians, emergency rooms, other health professionals, state surveyors, professional licensing entities, and more.
126. The Horizontal Analysis would elicit information about how the entities and disciplines communicate with one another, if they do so at all. This question would elicit information about the extent to which they work together on cases, policy, projects, and other collaborative efforts. What is the nature and quality of the communication and collaboration? What are the benefits and challenges of such communications? Do they even know each other? Do they have the relevant e-mail addresses or numbers to call? The instrument also would supply examples of productive collaborations. Based on the findings, the community would have a better idea of where to invest effort, substantive or procedural. The questions in this part of the instrument could be very simple, for example:
127. • Do you know what each of the following entities do? (list entities, check yes or no) (The instrument should provide a key describing each entity's authority and activities.)
128. • Would you know a person to call if you needed to get in touch with any of those entities? (list entities)
129. • Do you work with anyone at each agency on an ongoing basis?
130. • Is your work with that agency regular (regular meetings or calls) or sporadic?
131. • If you have ongoing contact, what is the nature of that work or communication?
132. • If your work is sporadic or nonexistent, would it be useful to have more (regular) ongoing contact?
133. Examples of such MDTs that could enhance the justice system include: Elder Abuse Forensic Center, Orange County, CA; Elder Fatality Review Teams, located in various sites; Texas Elder Abuse and Mistreatment (TEAM) Institute; Judge Julie Conger's monthly chicken Caesar salad lunches bringing together the various stakeholders in California (see discussion Part I(C)) supra; the King County Elder Abuse Project (EAP) of Seattle, WA; and The Vulnerable Adult Multidisciplinary Team of Dane County, Wisconsin.
134. Gathering the data could produce a temporary change in behavior or performance in response to the questions being asked, resulting in a change in the environmental conditions. This change, referred to by researchers as a "Hawthorne effect," typically is an improvement, but could be any change in behavior or performance following any new or increased attention, for example, the process of collecting the data. The research implications of such a change would have to be evaluated as part of the data collection process.
135. Forensics generally is defined as pertaining to law or legal proceedings, often although not always referring to science or technology. A forensic marker in the context of elder abuse is a sign that indicates whether elder abuse, neglect, or exploitation should be suspected or has occurred. For a more in-depth discussion about elder abuse forensics, see Carmel Bitondo Dyer, Marie-Therese Connolly, & Patricia McFeeley The Clinical and Medical Forensics of Elder Abuse and Neglect, in Elder Mistreatment: Abuse, Neglect, and Exploitation in an Aging America 339, 339-381 (2002).
136. Laura Mosqueda, Kerry Burnight, & Solomon Liao, The Lifecycle of Bruises in Older Adults, 53 J. Am. Geriatrics Soc'y 1339 (2005).
137. Sometimes even bruises on the extremities and torso can be suspicious, for example, pattern bruising, such as slap marks, rope marks, finger prints, and so on.
138. See Aileen Wiglesworth, Raciela Austin, Maria Corona, Diana Schneider, Solomon Liao, Lisa Gibbs & Laura Mosqueda, Bruising as a marker of physical elder abuse, 57 J. Am. Geriatrics Soc'y 1191 (2009).
139. Although some practitioners believe that a pressure sore may occur in a frail elder even with good care, others believe that every pressure sore is preventable. One study showed that residents who were at risk of developing pressure sores were much more likely to do so in poor facilities than in a good ones (with good preventive care). In other words, facility factors were more predictive than the resident's physical characteristics in predicting the occurrence of pressure sores: Wee L. Ooi, John N. Morris, Gary H. Brandeis, M. Hossain, & Lewis A. Lipsitz, Nursing Home Characteristics and the Development of Pressure Sores and Disruptive Behavior, 28 Age & Ageing 45 (1999). Because many consider pressure sores to be a bellwether of neglect, whether those pressure sores were caused by negligence and/or neglect is an issue that bedevils many elder prosecutions (whether arising in a facility or at home). Prosecutors may argue that the existence of a pressure sore demonstrates that neglect occurred whereas the defense might argue that a large and deep pressure sore appeared overnight and previously was identified because it had "burrowed" under the skin not visible from the surface. Although there is not yet definitive pressure sore research, there are some cases where it is abundantly clear and beyond any doubt that the victim was neglected and that the appearance of and failure to care for those pressure sores was a manifestation of neglect. The same team that brought us Bruising I and Bruising II also is working with practitioners and researchers from other academic centers on Pressure Sore I, a study modeled on Bruising I, to track the natural history of pressure sores occurring (if they occur) under good care conditions. The results of this study could assist those in the justice system in detecting wrongdoing; establishing causation of pressure sores; and proving, prosecuting, and documenting wrongdoing where it exists.
140. See The National Center on Elder Abuse, The National Elder Abuse Incidence Study, supra note 95.
141. See discussion of medical forensics of elder abuse in the report of DOJ's Elder Justice Round-table on Medical Forensic Aspects of Elder Abuse (2000) and Dyer et al, supra note 123.
142. See APRI, supra note 20 (APRI report and case study of local prosecutors discussing what they consider to be the greatest challenges in prosecuting elder abuse).
143. This could be an activity of a subset of the blueprint advisory group (discussed in Part II(A) supra) or coordinated with such a group. The overarching goal is to take a more strategic approach to growth in the area of forensics (as well as elder abuse field generally), so that in addition to individual innovation in various locations, experts also take time to think about priorities, goals, and how best to achieve them.
144. Although there is no joint training program, a small handful of geriatricians have become de facto experts on many forensic aspects of elder abuse. Even those leading practitioners, however, report that they would welcome the opportunity for training in forensic pathology to supplement their experience.
145. See discussion of APRI report, supra note 20. This is consistent with the overall shortage of geriatricians (we have only about 9,000 when we already need 30,000 and the shortage is getting worse as the population ages). Even more acute (as noted previously) is the dearth of academic geriatricians, a shortage that directly translates into a paucity of research and experts with dual geriatric and forensic expertise (a shortage noted to be an impediment to prosecution in the survey of prosecutors).
146. DOJ's Office on Violence Against Women is currently funding the development of multidisci-plinary teams to train law enforcement (see the discussion of Maine's team in the next section) and the Office for Victims of Crime with the Elder Justice Initiative-funded creation of a training video for law enforcement. Both products will be useful resources for the field.
147. Terry Fulmer, Lisa Guadagno, Carmel Bitondo Dyer, & Marie Therese Connolly, Progress in Elder Abuse Screening and Assessment Instruments, 52 J. Am. Geriatrics Soc'y 297 (2004).
148. See APRI, supra note 20.
149. This first-ever elder abuse forensic center was launched in Orange County, California, in 2003 (http://www.centeronelderabuse.org/page.cfm?pgid=2) and has repeatedly been contacted for advice on how best to replicate the model. It brings together representatives of myriad disciplines weekly to conduct multiagency team case review, in-home medical and mental status evaluations, in-home evidentiary investigation, action plans, taped victim interviews, education, training and consultation. The purpose of the forensic center is to prevent and combat elder abuse through the collaboration of professionals in law, medicine, and social services; promote awareness about elder abuse; create a new standard of elder abuse interventions; and educate professionals who deal with elder abuse, including law enforcement, the medical community, social services, the legal community, government officials, investigative agencies, and academic institutions, as well as older adults and their families regarding effective prevention and prosecution. The forensic center concept has been adapted for use by teams in Los Angeles, San Francisco, San Diego, and New York. The University of California, Irvine (UCI) team, headed by Laura Mosqueda, MD, also has formed the Vulnerable Adult Specialist Team (VAST), a multidisciplinary medical team that works with APS, law enforcement, the district attorney, the public guardian, and other social service agencies serving abused elder and dependent adults. In 2005, UCI launched its Center of Excellence on Elder Abuse and Neglect, which provides medical, forensic, and victim services to abused and neglected seniors, and serves as a central source of technical assistance, best practice information, multidisciplinary training, useful research, and relevant policy issues in California. (The Forensic Center, VAST, and the Center of Excellence all have been funded by grants from the Archstone Foundation, a private California foundation that has funded more elder abuse efforts than any other private foundation.)
150. The Texas Elder Abuse and Mistreatment (TEAM) Institute, headed by Carmel Dyer, MD, and the Houston Medical Examiner's (ME) office collaborated on a DOJ-funded grant, among other things, to take first steps to describe factors that influence the ME's cause of death determination, compare how ME's handling of elder deaths differed from when decedents were younger, examine decision making by MEs regarding the cause of death, and analyze the impact of a geriatric consultation on the ME's determination of the cause of death. Both geriatric and forensic professionals learned a great deal from this collaboration and identified additional horizons for their efforts. Such collaborations will be of interest to other jurisdictions.
151. The New York City Elder Abuse Center is a multidisciplinary entity comprised of clinicians, city agencies and outreach organizations, including, for example, representatives from adult protective services, the district attorney's office, the aging services network, and a geriatrician. In meetings, Center members take a case consultation approach, together deciding the best approach for each case. The Center's goal is to prevent and address elder abuse by effectively and efficiently using existing services and leveraging the benefits of a multidisciplinary approach, to improve case assessments and interventions. The Center's Director is Dr. Mark Lachs, a geriatrician with Weill Cornell Medical College's Division of Geriatrics and Gerontology.
152. The Cornell team is an interdisciplinary group of geriatricians and gerontologists with broad expertise in elder abuse and neglect that is both clinical and academic. For example, the team facilities the Elder Abuse Case Coordination and Review Team (EACCRT), a monthly, Manhattan-based, multidisciplinary case discussion group, and is involved in a range of other educational, research and clinical care activities related to elder abuse. See http://cornellaging.com/elderabuse/.
153. Less than a decade ago, there was not a single elder fatality review team in the country, although many states have domestic violence fatality review teams and all states have death review teams to review and analyze deaths of children. Every state in the country has at least one child death review team. There is a national organization that coordinates training and information on child death review that could serve as a good model for the elder abuse field (http://www.childdeathreview.org). A modest DOJ grant seeded several elder fatality review teams and funded development of a replication guide. See Lori A. Stiegel, Elder Abuse Fatality Review Teams: A Replication Manual (2005) at http://www.abanet.org/aging/publications/docs/fatalitymanual.pdf (a project and report funded by a grant from DOJ's Office for Victims of Crime). There are now elder fatality review teams in 11 states: Arizona, California, Illinois, Kentucky, Maine, Michigan, Montana, New York, Texas, Vermont, and Virginia, according to Lori Stiegel (conversation with the author, 2007). Such teams provide a potential template for mul-tidisciplinary work as well as important information about elder deaths. In the last few years, elder fatality review teams have emerged in California, Texas, Maine, Arkansas, Arizona, and Illinois. Other jurisdictions are examining the feasibility of launching such teams.
154. King County's Elder Abuse Council created by an attorney in the King County Prosecutor's Office and co-chaired by a professor at the University of Washington School of Nursing, is a multidis-ciplinary group of professionals (including prosecutors, police, and social service and medical professionals) who collaborate to enhance prosecution of neglect of elder and disabled persons and work collaboratively to improve the systemic response to the abuse and neglect of vulnerable adults. From that group, the Criminal Mistreatment Review Panel was formed, another multidisciplinary team with participation of medical professionals. Given the strong relationships that were formed as a result of this statewide group, prosecutors now meet with the medical professionals on an as-needed basis. In addition, the King County Adult Abuse Multidisciplinary Team staffs all types of adult abuse and neglect cases. Page Ulrey, the King County prosecutor who spearheaded these groups in conjunction with Maggie Baker, PhD, RN, has noted that multidisciplinary teams (MDTs), if successful, end up building such strong relationships among agencies that formal meetings become less unnecessary and often are replaced by staffing or consultation by the relevant parties whenever the need arises. This is another testament to the importance, productivity, and effectiveness of both the process and the substantive contributions of MDTs.
155. Maine's Elder Justice Training Partnership (EJTP), provides statewide training about elder abuse for law enforcement officers, prosecutors, and judges and seeks to make meaningful changes to current policies and procedures that have an impact on elder victims of abuse. It is 1 of 10 Office on Violence Against Women (OVW)-funded pilot sites in the country and the only one working on a statewide level. The project's five core partners include: Maine's Office of the Attorney General, Prosecutor's Association, Coalition to End Domestic Violence, Coalition Against Sexual Assault, and the Elder Abuse Institute of Maine. Maine also has one of the few elder fatality review teams in the country and one of the rare ones that operates on statewide basis.
156. In 1999 Arkansas enacted a law requiring that all nursing home deaths be invested by the county coroner. Although not all counties implement the law, those that do have gathered interesting data about the circumstances of deaths of nursing home residents. The Government Accountability Office, which conducted a review and issued a report about the Arkansas law and its implementation, found that the coroner's referrals were not sufficiently heeded. It also found weaknesses in state and federal oversight. See U.S. Gov't Accountability Office, Nursing Home Deaths: Arkansas Coroner Referrals confirm Weakness in State and Federal Oversight of Quality of Care, GAO-05-78 (November 2004). A DOJ-funded multidisciplinary research team is examining data generated by some coroners pursuant to the law, looking, among other things, for relevant forensic markers revealed by the death investigations or autopsies, patterns of referrals to law enforcement and prosecutors, the results of such referrals, and whether the law has served to improve the quality of care in Pulaski County nursing homes. (See Mark Malcolm's testimony before the Senate Special Committee on Aging [2002], at http://aging.senate.gov/hearing_detail.cfm?id=272118). Other states currently are considering whether to replicate the Arkansas model. Although some are daunted by the resources required to examine every nursing home death, one possible way to gain the impact of any deterrent without expending as many resources would be to select those nursing homes that are in the bottom quartile in terms of Online Survey, Certification, and Reporting (OSCAR) or MDA data for death investigations and then measure the impact of such a more targeted review. OSCAR is a database maintained by the Centers for Medicare and Medicaid Services (CMS), part of HHS. OSCAR is comprised of statistics reported by state surveyors using data collected from nursing homes at the time of their annual surveys. The Minimum Data Set (MDS) is a standardized screening and assessment tool of residents' health status collected on all residents of long-term care facilities certified to participate in Medicare or Medicaid regardless of residents' payer type. Minimum Data Set assessments are required on admission and periodically thereafter. Minimum Data Set information from the state databases is captured into the national MDS database at CMS and also forms the basis for amounts that providers are reimbursed by CMS.
157. Canada is also pursuing multidisciplinary ventures worth examining: The National Initiative for the Care of the Elderly (NICE) at http://www.nicenet.ca/and the International Collaboration for the Care of the Elderly (ICCE) at http://www.nicenet.ca/detail.aspx?menu=38&app=180&cat1=528&tp=2&lk=no are international networks of researchers, practitioners, and students dedicated to improving the care of older adults, both in Canada and internationally, with elder abuse being one of their priority areas. The NICE includes professionals from medicine, nursing, social work, gerontology, rehabilitation science, sociology, psychology, policy, and law. The overarching goals are networking and knowledge transfer, or getting good research into practice. The NICE's three main goals are to help close the gap between evidence-based research and actual practice, to improve training of existing practitioners and interest new students in specializing in the field, and to effect positive policy changes.
158. See APRI, supra note 20, at 1 (a report by APRI with funding from DOJ's Bureau of Justice Assistance, summarizing a national survey of local prosecutors offices' experience with elder abuse, and case studies of three offices with successful elder abuse programs, and tips and tools developed by those offices. One of the five elements deemed critical by the prosecutors to success in working with elder victims was victim advocacy and support).
159. There is general consensus among experts in the field that family members are the most frequent perpetrators. See also, The National Committee for the Prevention of Elder Abuse (NCPEA) and the National Adult Protective Services Association (NAPSA), supra note 27.
160. Powerful interviews with the victim, Ms. Mary McCauley, and the detective, prosecutors, and victim advocates who worked on the 2004 case, are included in a video training project to teach various practitioners about abuse in later life. The project is funded by DOJ's Office for Victims of Crime. The perpetrator, Ms. Mary's grandson, Lloyd Johns (also known as Billy), was tried in 2004 and sentenced to 40 years in jail. See http://www.dc.state.fl.us/ActiveInmates/detail.asp?Bookmark=2&From=list&SessionID=876753466.
161. See APRI, supra note 19.
162. The Office on Violence Against Women (OVW) is funding the creation of tools for victim services to assess their response to older victims. Five instruments will assist various systems to look internally at their response to and work with elder victims and offender accountability. The five systems are domestic violence/sexual abuse programs, APS, law enforcement, prosecutors' offices, and courts. Drafts were pilot tested in 2008, fine tuned, and distributed for external review.
163. Id. Leadership also was one of the elements of success mentioned by the prosecutors polled by APRI, with participants saying that "the chief prosecutors' personal commitment to a proactive, innovative approach and early involvement of the prosecutor's office" were two key elements of success.
164. See National Juvenile Justice Prosecution Center at http://www.ndaa.org/apri/programs/.
165. See National Center for Community Prosecution at http://www.ndaa.org/apri/programs/community_pros/cp_home.html. The National Center for Community Prosecution is in its own section, and gives prosecutors tools for working with communities.
166. See APRI mission statement at http://www.ndaa.org/apri/about/index.html.
167. See National District Attorneys Association Policy Positions on Elder Abuse, Neglect, and Financial Exploitation at http://www.ndaa.org/pdf/policy_elder_abuse_march_22_2003.pdf.
168. See, e.g., Elder Abuse, Neglect, and Exploitation at http://www.ndaa.org/education/ndaa/nac_elder_abuse.html.
169. The National Advocacy Institute (NAC) is a training center in Columbia, South Carolina, where DOJ and the NDAA provide training and other events.
170. See National Association of Attorneys General About NAAG at http://www.naag.org/about_naag.php.
171. Only North Dakota does not have a MFCU.
172. The Federal Bureau of Investigation (FBI), DOJ's investigative arm, may investigate cases and the Office of Justice Programs (OJP), DOJ's grant-making and research arm, makes elder abuse-related grants. In addition, DOJ's leadership and legislative and policy making offices may become involved either in policy matters, events, or occasionally in far-reaching or controversial issues that arise in specific cases. For more information see DOJ's organization chart, available at http://www.usdoj.gov/dojorg.htm.
173. See Juvenile Justice & Delinquency Prevention Act of 1974, 42 U.S.C. $ 5601 (1994). The Office of Juvenile Justice and Delinquency Prevention has a Web site at http://ojjdp.ncjrs.gov/; Violence Against Women Act of 1994, 42 U.S.C. $ 13981 (1995) and reauthorizations of those laws in subsequent years. The Office on Violence Against Women's Web site is at http://www.ovw.usdoj.gov/.
174. The Elder Justice and Nursing Home Initiative has been coordinated by Civil Division attorneys. The author of this article was formerly that coordinator and worked together with Jullia ("Jill") Callahan, also a Civil Division attorney. Andy Mao, another Civil Division attorney, now serves as coordinator and continues to work with Jill Callahan.
175. The Initiative, which began receiving funding in 2001 and now receives $ 1 million annually, seeded and continues to support a modest but growing elder abuse-related grant program in coordination with the Office of Justice Programs, and in particular has focused on developing a research portfolio with the National Institute of Justice (NIJ). That program is funding groundbreaking research and issued the first ever elder abuse research solicitation (simultaneously with the National Institute on Aging [NIA], part of HHS's National Institutes of Health). The NIJ issued solicitations for elder abuse research proposals in fiscal years 2005, 2006, 2007, 2008, and 2009 and has spearheaded development of the elder abuse forensics field.
176. In addition, DOJ's Office for Victims of Crime has funded (in some instances together with the Elder Justice Initiative) development of training curricula and videos for various professions, and supported other selected programs. The Initiative also has worked with the Office on Violence Against Women, which receives funding for elder issues through express appropriations under the Violence Against Women Act.
177. The Initiative also has provided technical and monetary support to federal civil and criminal failure-of-care cases throughout the country, coordinating development of legal theories to promote a coherent body of case law favorable to the United States' ability to pursue failure of care cases. In addition, it has organized and participated in numerous internal and external events, training, and meetings of many sorts to advance the field.
178. See Lori A. Steigel, Recommended Guidelines for State Courts Handling Cases Involving Elder Abuse, ABA Commission for Law and Aging (1995); Lori A. Steigel, What Can Courts Do About Elder Abuse 35 The Judges' Journal 38 (1996); Lori Stiegel, Elder Abuse in the State Courts: Three Curricula for Judges and Court Staff, ABA Commission for Law and Aging (1997).
179. Contrary to this general rule, Louisiana provided training on elder abuse for the entire Louisiana bench at a recent annual judicial training. Also, British Columbia first offered judicial training about elder abuse in November 2005.
180. The judicial training, funded by OVW, is being developed by the National Council of Juvenile and Family Court Judges (NCJFCJ) and the Family Violence Prevention Fund.
181. This project is being conducted by the American Bar Association (ABA) Commission on Law and Aging and is examining court-focused elder abuse initiatives in five locations, including an Elder Protection Court in Alameda County, CA; Elder Justice Centers in Hillsborough and Palm Beach Counties, FL; the In Home Emergency Protective Order Initiative in Jefferson County, KY; and the Elder Abuse Order of Protection Project of the New York City Family Justice Center.
182. See National Center for State Courts (NCSC) meeting report and other related documents at http://www.ncsconline.org/famviol/elderabuse/index.html. In addition, the working group, spearheaded by NCSC's Brenda Uekert, has drafted an elder abuse white paper. See Uekert, supra note 77.
183. See The National Committee for the Prevention of Elder Abuse (NCPEA) and the National Adult Protective Services Association (NAPSA), supra, note 27.
184. There is vast diversity in what data are collected and how they are maintained. A few APS offices have sophisticated data collection and computer systems. Others maintain hard copies in boxes that the researchers diligently reviewed the old fashioned way-by hand. Unfortunately, although the APS data collection systems are not good, they are as good as it gets in this field, and far ahead of the health care or the justice systems. Indeed, APS is the rare entity to have made a concerted attempt to collect those data.
185. The NCSC in 2004 added "elder abuse" as one of its case types to its State Court Guide to Statistical Reporting. But only two courts had data to provide in a recent annual collection of data. See Uekert, supra, note 77 (citing the State Court Guide to Statistical Reporting).
186. APRI, supra, notes 19 and 20.
187. See letter of August 2, 2006, from Secretary of Health and Human Services Michael Leavitt to Senator Charles Grassley (R. Iowa), then chairman of the Senate Finance Committee, objecting to the EJA's data collection provision, stating:
188. Proposed $ 2051 would require the Secretary, in consultation with the Attorney General, to develop and implement a method for national data collection on elder abuse, neglect, and exploitation using uniform national data reporting forms. The forms would need to be pilot tested and tailored to each entity or discipline that serves elderly individuals (such as health, public safety, social and protective services and law enforcement). The Secretary would also award grants to States to improve data collection activities. Although well-intended, this provision imposes a very broad mandate on the Department that would prove extremely costly and difficult to implement. Indeed, great efforts and resources would be needed to develop data reporting forms specifically adapted to, and to collect uniform data from, myriad public and private entities concerning an array of activities to combat elder abuse, neglect, and exploitation. Moreover, despite charging the Secretary with the task of collecting such a vast amount of data from diverse federal and state entities, the provision fails to provide HHS with the authority needed to compel such entities to comply with these data requests. Nor does the bill appear to account for modifications to applicable federal and state laws that may be required to authorize data collection and reporting consistent with the bill.
189. To the extent this provision can be practicably implemented, it appears to duplicate existing provisions. Title VII, Chapter 3 of the OAA requires each State, as a condition of receiving OAA funds, to promote the "development of information and data systems, including elder abuse reporting systems, to quantify the extent of elder abuse, neglect, and exploitation in the State... and conduct analyses of State information concerning elder abuse, neglect, and exploitation and identifying unmet service, enforcement, or intervention needs.
190. It is unclear to what extent and how HHS believes that this Older Americans Act mandate was carried out.
191. HHS urged Congress not to pass the data collection provisions of the EJA, but instead to pass a feasibility study as part of the Tax Extender Bill of 2006.
192. The ASPE contracted with the Lewin Group for $ 140,000 to conduct the feasibility study.
193. These are only suggested questions. Before using them, they should be analyzed and validated. See, e.g., American Prosecutors Research Institute, Just Look What You've Done: Determining the Effectiveness of Community Prosecution (Bureau of Justice Assistance, 2007) at http://www.ndaa. org/pdf/just_look_07.pdf (examining the effectiveness of community prosecution).
194. See Hawthorne effect supra note 122.
195. The ElderAbuse listserve is funded through the Administration on Aging (AoA) and administered by HHS.
196. See, e.g., Candace Heisler and Lisa Nerenberg, Improving the Response to Elder Abuse: A Curriculum for Law Enforcement Agencies, (2007).
197. See, e.g., Multidisciplinary and Collaborative Approaches in Responding to Elder Abuse at http://ncea.aoa.gov/NCEAroot/Main_Site/Library/CANE/CANE_Series/CANE_MultidisciplinaryAndCollaborative Approaches.aspx?; Selected Bibliography at http://www.preventelderabuse.org/additional/bibliography.html; Publications at http://www.ndaa.org/publications/apri/index.html; and U.S. GAO Reports and Testimonies at http://www.gao.gov/docsearch/repandtest.html.
198. See Lachs et al., The Mortality of Elder Mistreatment, 280 JAMA 428, 428-32 (1999). This study-one of the few in this area-reaches the stark conclusion that abuse and neglect significantly shorten the older victim's life, even when controlling for all other variables.
199. Crawford v. Washington, supra note 18.
200. Statements of Congressional staff to the author; see also letter from Secretary of Health and Human Services Michael Leavitt to Senator Charles Grassley dated August 2, 2006, and letter of Secretary of Health and Human Services Tommy Thomson to Senator Charles Grassley dated September 4, 2004, opposing the Elder Justice Act.
201. Of course, cost effectiveness is but one factor in such an analysis. Moreover, such calculations are never neat. For example, a prevention program may have a high up-front cost but save money for a program with a different funding source, making any savings hard to calculate.
202. See Prevent Child Abuse America, Total Estimated Cost of Child Abuse and Neglect in the United States (2007) at http://member.preventchildabuse.org/site/PageServer?pagename=research_ child_abuse.
203. Costs of Intimate Partner Violence against Women in the United States, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, Atlanta, GA; 2003, at www.cdc.gov/violenceprevention/pdf/IPVBook-a.pdf.
204. See id.
205. Charmaine Spencer, Exploring the Social and Economic Costs of Abuse in Later Life, Gerontology Research Centre, Simon Fraser University, Vancouver, B.C., Canada. Prepared for Health Canada, Family Violence Prevention Unit, Ottawa, Ontario, Canada (1999) at http://129.3.20.41/eps/le/papers/0004/0004006.pdf. This was the only publication located that discussed overall costs of elder abuse, neglect, and exploitation. Although the researcher is Canadian, much of the discussion applies equally to the United States.
206. Andrew Kramer & John Schnelle, Appropriateness of Minimum Nurse Staffing Ratios in Nursing Homes, Report to Congress prepared for the Centers for Medicare and Medicaid Services (CMS). (Phase I report issued Summer 2000; Phase II, Final Report issued December 2001). These findings were consistent with those of a panel of the Institute of Medicine, National Research Council.
207. Linda H. Aiken, Sean P Clarke, & Douglas M. Sloane, Hospital Staffing, Organizational Support, and Quality of Care: Cross-national Findings, 14 Int'l J. for Quality in Health Care 5 (2002); Linda H. Aiken et al., Hospital Nurse Staffing and Patient Mortality, Nurse Burnout, and Job Dissatisfaction, 288 J. of Am. Medical Ass'n 1987 (2002).
208. See, e.g., Kindred Healthcare, Inc., Annual Quality Report (2008) and CEO Letter at http://phx.corporate-ir.net/phoenix.zhtml?c=129959&p=irol-reportsother (concluding that improved quality appears to lead to increased census and other cost containment).
209. See, e.g., Mary Naylor, Transitional Care of Older Adults Hospitalized with Heart Failure: A Randomized, Controlled Trial, 52 J. Am. Geriatrics Soc'y 675 (2004). This NIH study concluded that specialized nursing care for elderly heart patients results in better quality of life and fewer hospital readmissions. Instead of costing more money for specialized care, the care resulted in a nearly 38% savings in Medicare costs.
210. National Center for Injury Prevention and Control, CDC, The Cost of Fall Injuries Among Older Adults, at http://www.cdc.gov/ncipc/factsheets/fallcost.htm. "In 2000, the total direct cost of all fall injuries for people 65 and older exceeded $ 19 billion,"
211. citing J.A. Stevens, P.S. Corso, E.A. Finkelstein & T.R. Miller, The costs of fatal and nonfatal falls among older adults, 12 inj. prevention 290 (2006). "By 2020, the annual direct and indirect cost of fall injuries is expected to reach $ 54.9 billion (in 2007 dollars),"
212. Citing F. Englander, T.J. Hodson & R.A. Terragrossa, Economic dimensions of slip and fall injuries, 41 j. forensic sci. 733 (1996). "A recent study of people aged 72 and older found that the average health care cost of a fall injury was $ 19,440 (including hospital, nursing home, emergency room, and home health care, but not physician services)"
213. Citing J.A. Rizzo et al., Health Care Utilization and Costs in a Medicare Population by Fall Status, 36 Medical Care 1174 (1998).
214. Preventing dehydration saves health care costs and improves quality of life. See, e.g., H. Xiao, J. Barber, & E. S. Campbell, Economic burden of dehydration among hospitalized elderly patients, 61 Am. J. Health-Sys. Pharm. 2534 (2004).
215. C.D. Phillips, et al., Reducing the Use of Physical Restraints in Nursing Homes: Will it Increase the Costs?, 83 Am. J. Pub. Health 342 (1993).
216. J.M. Dunbar, et al., Taking Charge: The Role of Nursing Administrators in Removing Restraints, 27 J. Nursing Admin. 42 (1997).
217. John Schnelle, et al., Reducing and Managing Restraints in Long Term Care Facilities, 40 J. Am. Geriatrics Soc'y, 381 (1992). Texas Department of Human Services in cooperation with the Texas Medical Directors Association and the Texas Medical Foundation, Reducing the use of restraints in Texas Nursing Homes (2003) at http://www.dads.state.tx.us/news_info/publications/brochures/restraints_guide.pdf.
218. See, e.g., Conkling, M. et al., Implications of Medicaid Cuts on Podiatric Foot Care for Diabetics in Texas, Academy Health Meeting (2005: Boston, Mass.)
219. Abstr Academy Health Meet. 2005; 22: abstract no. 4395.
220. Pamela B. Teaster & Karen A. Roberto, Virginia Public Guardianship and Conservator Programs: Evaluation of Program Status and Outcomes, Blacksburg VA: The Center for Gerontology, Virginia Polytechnic Institute and State University (Dec 2003). A mandated evaluation of the Virginia Public Guardian and Conservator Programs established in 1997 concluded that the "cost savings indicates that the programs not only pay for themselves, but they pay for themselves over three times their funding amount in a single fiscal year." See also,
221. Windsor Schmidt, The Wingspan of Wingspread: What is Known and Not Known about the State of the Guardianship and Public Guardianship System Thirteen Years after the Wingspread National Guardianship Symposium, 31 Stetson L. Rev. 1027, 1040-1041 (2002)
222. Pamela Teaster, Windsor C. Schmidt, Hillel Abramson, & Richard Almeida, Staff Service and Volunteer Staff Service Models for Public Guardianship and "Alternatives" Services: Who Is Served and With What Outcomes? 5 J. of Ethics, L., & Aging 131, 142-148 (1999)
223. Winsor Schmidt, Public Guardianship Issues for New York: Insights from Research, 6 Elder L. Att'y 31, 37 (1996).
224. For example, both the Older Americans Act and the Elder Justice Act contain various definitions for purposes of programs under those laws. These definitions could provide good starting points. In addition, it may be that the field agrees on different definitions of the same phenomenon for different purposes. For example, the definition used by prosecutors in deciding whether to prosecute might differ from that used by APS.
225. See, e.g., Lori A. Stiegel, Julia Bueno, & Ellen VanCleave, Analysis of 2004 State Legislation Amending Adult Protective Services Laws, for the National Center on Elder Abuse by the American Bar Association Commission on Law and Aging, at http://www.ncea.aoa.gov/NCEAroot/Main_Site/pdf/publication/APSLegSummary2004.pdf.
226. As noted previously, currently, federal cases are usually brought under financial fraud theories, essentially claiming that the defendant knowingly billed Medicare or Medicaid for services and goods it did not provide or provided in a worthless manner.
227. The waning hours of more than one Congress have held the potential for passage of the Elder Justice Act. The bill was put on the "hotline," which allows for passage by unanimous consent if no member objects, in 2004 at the end of the 108th Congress. The EJA first was held up by amendments placed on it by then Sen. Bob Graham (D-FL) and subsequently, once Graham lifted his hold, by an anonymous "hold," allegedly imposed by another Senator. In late 2006, when the bill again was on the hotline, it was initially stalled by Sen. Herb Kohl's (D-WI) attempts to amend it with his criminal background check provision (discussed previously). After the Senate issues were finally resolved, the bill died because there was insufficient time to work out fiscal concerns raised by the House in bicameral negotiations before the end of the 106th Congress.
228. This too is a subject that lends itself to lengthy discussion for which there is not room in this article.
229. The Nursing Home Transparency and Improvement Act, S. 2641 (2008), introduced by Senators Charles Grassley, (R-Iowa) and Herb Kohl (D-Wis.).
230. It is for this reason that the author of this article is writing a book about elder abuse, supported by a fellowship from and as a senior scholar at the Woodrow Wilson International Center for Scholars.
231. Laura Mosqueda, MD, one of the leaders in the field of elder abuse, has provided training together with Wendy Wright, MD, a forensic pediatrician, to tease out just that type of information.
232. See Nina A. Kohn, Second Childhood: What Child Protection Systems Can Teach Elder Protection Systems, 14 Stan. L. & Pol' Rev. 175 (2003).