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Elder Abuse and Neglect Investigation in California Long Term Care Facilities
Submitted by Carolyn E. Ziminski, BSN, RN
On The Edge – 2011
In California the Long-Term Care Ombudsman Program is responsible for investigating reports of elder abuse and neglect in long-term care facilities. However, this was not the original intent of the program, and this duty contradicts federal law as outlined in the Older Americans Act. Due to conflicting laws, Ombudsmen in California are only able to investigate 25% of reported cases of elder abuse and neglect in long-term care. This is an injustice to the elderly population residing in long-term care facilities. In California the current response system to elder abuse and neglect for long-term care is not efficient, and nurses need to be aware of the implications.
The Long-Term Care Ombudsman Program
The Long-Term Care Ombudsman Program is intended to provide residents with advocates to achieve good quality of care and life in residential care facilities (Older Americans Act., 2010). The inception of Medicare and Medicaid in 1965 began the chain of events that would create the long term care industry. Reports of substandard living conditions, outright neglect, and deaths of persons living in nursing facilities fueled consumer advocates (Hunt, 2007). Following the 1971 Whitehouse Conference on Aging, President Nixon announced a plan to strengthen regulations in the long-term care industry, including the inception of the Ombudsman program (Figure 1) (National Long-Tern Care Ombudsman Resource Center., 2011). The goal of the initial Ombudsman program was to improve living conditions for elderly in facilities, for example ensuring safe up-to-code housing and properly cooked meals (Hill, 2009).
In 1978 the Nursing Home Ombudsman Program became a statue in the Older Americans Act Program (Administration on Aging., 2011). This required all state agencies on aging to establish an Ombudsman program according to statute specifications and was expanded in 1981 to include ‘board and care’ facilities and was renamed the Long-Term Care Ombudsman Program (Administration on Aging., 2011). The Long-Term Care Ombudsman Program remains in the Older Americans Act but in 1992 it was transferred to a new title, Title VII, Vulnerable Elder Rights Protection Activities (National Long-Tern Care Ombudsman Resource Center., 2011). Under this title it is now listed with other activities aimed to prevent elder abuse and neglect and assist vulnerable elders through provisions of counseling and legal services (National Long-Tern Care Ombudsman Resource Center., 2011).
California’s Long-Term Care Ombudsman Program
The California Long-Term Care Ombudsman program is responsible for advocating for residents in both Nursing Homes, licensed under Department of Public Health, and residents of Residential Care Facilities for the Elderly, licensed under Community Care Licensing. California has 35 Long-Term Care Ombudsman Programs as of July 2007, 10 are under the direct service of the Agency on Aging and 25 are contracted through local organizations (Hunt, 2007). In July 2007, California had 998 Ombudsman volunteers and 192 Ombudsman paid staff. The California Long-Term Care Ombudsman program relies heavily on volunteers to operate. Volunteers are required to complete a 36-hour training program, 10 hours of field training and must pass a criminal background check (Hunt, 2007). Working in facilities from 2005-2006, the California Long-Term Care Ombudsman Program investigated over 46,000 complaints, consulted with over 35,000 individuals, worked with 3,600 resident council meetings and 429 family council meetings (Hunt, 2007).
Conflicting Laws, Budgeting and Practicalities of the Program
Federal law regulating the Long-Term Care Ombudsman Program is found under the Older American Act (3058g-5), and states that Ombudsman are not investigators of elder abuse and neglect (Older Americans Act., 2010). Moreover, to advocate on behalf of a resident for any concern, from missing socks to sexual abuse, requires the Ombudsman to obtain consent (Older Americans Act., 2010). For California, this directly conflicts with California State Mandated Reporter Law (Welfare Institutions Code 15630) which designates the role of investigating reports of elder abuse and neglect in long-term care to the Ombudsman program.
Due to the inability to receive consent from residents, California Ombudsman have been forced to not act on allegations of serious abuse and neglect (Hill, 2009). Currently only 25% of reported cases will have obtained consent (Hill, 2009). However, again this directly conflicts with the state law requiring Ombudsmen to be mandated reporters. This conflict of duties isn’t only between federal and state law, it is also between sections of the state law. The California Ombudsman Law (Welfare Institutions Code 9700) states Ombudsman should operate in a manner consistent with federal law. The conflicting laws leave an inconsistent view on the role and duties of the Ombudsman in California (Hill, 2009).
California is one of only four states which require Ombudsman to investigate abuse and neglect complaints. Budget cuts in 2008 reduced the budget allotted to the state Long-Term Care Ombudsman Program by 50%. As a result resources were focused on investigation of abuse and neglect as the potential danger of those complaints takes priority (Hill, 2009). In California 13% of Ombudsman complaints involve abuse, neglect or exploitation whereas in the rest of the U.S. Ombudsman programs only 5% of complaints concern abuse and neglect. This is because as outlined in the Older Americans Act under federal law the primary role of the Ombudsman is not to investigate elder abuse and neglect. Though the California Ombudsman program spends a vast amount of time investigating abuse and neglect complaints, only 25% of residents give consent for the case to be investigated (Hill, 2009). With the Ombudsman program only being able to advocate for a quarter of known elder abuse and neglect victims, the efficiency of the investigation system in California should be reexamined.
The California Long-Term Care Ombudsman Program is excellent at achieving what the original intentions of the program were, improving quality of life for elders, when the program has the resources to do so. While 13% of complaints that Ombudsman investigate do involve abuse and neglect, the other 87% involve resident rights, resident care, quality of life, and administration practices (Hill, 2009). Currently, having the Long-Term Care Ombudsman Program investigate elder abuse and neglect keeps them from being able to focus on these other types of complaints. Following the 2008 budget cuts, complaints to Community Care Licensing from the Ombudsman program dropped 44%, because resources were being prioritized to investigate elder abuse and neglect (Hill, 2009).
California Long-Term Care Ombudsman Program is at a clear conflict in their role as resident advocates, as the state law conflicts with itself, and with the federal law. Furthermore, this only allows the few cases of elder abuse that have given consent to reach the surface. More importantly, investigation and substantiation of elder abuse was never the intended role of the Ombudsman when the federal government instituted the program. California state legislature gave this duty to the Ombudsman (Hill, 2009), which is why the laws are contradictive. It is not practical or fair to assume this model of consent is protecting the safety of elders in long-term care, as many elders do not wish to give consent even though they disclose abuse. In fact only 25% of elders do consent (Hill, 2009), so the majority of elder abuse and neglect cases cannot be followed up. Elders are disclosing because trusting relationships are there, but Ombudsman are being left with distressing information they cannot do anything with under federal law (Hill, 2009).
The California Senate issued a report examining the contradictions of federal and state laws and came to the conclusion that presently the Long-Term Care Ombudsman Program is not running at its full potential (Hill, 2009). However, the constant presence of California’s Long-Term Care Ombudsman is essential in ensuring the safety and quality of life for elders in Long-Term Care. Having Ombudsmen employ their resources and time towards inefficiently investigating elder abuse and neglect is taking away from their oversight of facilities and other duties. The use of volunteers to investigate elder abuse and neglect is impractical, unfair and unethical to the volunteers and the elders. The conflicting laws are holding back the potential of the Ombudsman program as an advocacy group. Removing the role of investigator from the Ombudsman and placing it with another entity would solve this problem. It would also make California’s legislature similar with the other 46 states who do not have their Ombudsmen investigate elder abuse and neglect, and do not have these obstacles (Hill, 2009).
Implications for Nursing
Nurses are mandated reporters of suspected elder abuse and neglect. In California, if the elder is a resident of a long-term care facility the report will be received and investigated by the Ombudsman program, if the resident consents to such an investigation. Elders in long-term care may not report abuse because of a dependency on the facility and a fear of retaliation (Hawes, 2003). However nurses are ethically bound to ensure the safety of their patients (American Nurses Association., 2001). For nurses in California, this can include cross-reporting to other agencies, such as law enforcement, Medicaid Fraud Control Unit or the facility licensing agency, which are not bound by the same issues of consent.
Most importantly, the current system of elder abuse and neglect investigation does not provide for any interventions or victim support. Forensic nurses are professionally trained and aptly suited to investigate elder abuse and neglect in long-term care. They have the required skills to evaluate the immediate interpersonal violence or neglect as well as the contextual effects of the long-term care facility and healthcare setting. Additionally, forensic nurses are capable of making safety assessments, providing interventions based on clinical judgment and offer immediate support. As an organization, forensic nurses in California have the ability to advocate for policy changes to affect the way elder abuse and neglect is investigated in the long-term care environment. Forensic nurses in California can also act as educators working with law enforcement, community agencies, and other nursing organizations teaching elder abuse and neglect assessment and how to provide immediate support to victims. Elders living in long-term care should have the same rights to be free from harm and treated with dignity as any other person.
|Long-Term Care Ombudsman Timeline
||Whitehouse conference on Aging, President Nixon announces Ombudsman program developed by Dr. Arthur S. Flemming Counselor on Aging
||Nursing Home Ombudsman Program moved to Administration on Aging
||National Citizen’s Coalition for Nursing Home Reform was formed – remains an active citizen advocacy group today
||Nursing Home Ombudsman Program made statue in Older Americans Act – making it a requirement of all states
||Older Americans Act expanded to include ‘board and care’ facilities – now renamed the Long-Term Care Ombudsman Program
||Nursing Home Reform Act – provided legal protections to Ombudsman and guaranteed access to residents and records
||Long-Term Care Ombudsman Program transferred to new title in Older Americans Act – Title VII – Vulnerable Elder Rights Protection Activities
||California State Legislature expanded role of Ombudsman to include actively participating in investigation of complaints of elder abuse and neglect; Also made Ombudsman mandated reporters
Carolyn E. Ziminski is a doctoral student at the University Of California Los Angeles School Of Nursing, with a research interest of elder abuse. She has had the opportunity to intern and receive training at the University Of California Irvine Center Of Excellence on Elder Abuse & Neglect and Elder Abuse Forensic Center. She is currently working towards a Forensic Nursing Certificate through the University of California Riverside-Extension Program. She is also a John A. Hartford Building Academic Geriatric Nursing Capacity Scholar.
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