Reporting Elder Abuse; Mandatory Reporting Laws in Kansas


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Reporting Elder Abuse; Mandatory Reporting Laws in Kansas

  1. 1. Reporting Elder Abuse! (Especially of Dementia & Alzheimer‟s Patients) “If you suspect abuse, do not allow your fear of meddling in someone else‟s business stop you from reporting your suspicions. You could be saving someone‟s life, and drastically improve the quality of their life. Call the police or Adult Protective Services.” 1
  2. 2. Topics to Be Covered Discuss the complexities of mandatory reporting.  Delve into the public policy behind mandatory  reporting. Go over in detail the mandatory reporting  laws, including K.S.A. 39-1401 et seq. (Definitions) Do the mandatory reporting laws apply to me?  How can the mandatory reporting laws affect  me? 2
  3. 3. Report Adult Abuse, It’s the Law! K.S.A. 39-1401 et seq. contains the  mandatory reporting laws for incapacitated and dependent persons who are adults (Alzheimer‟s & dementia patients).  Licensed professionals are REQUIRED to report adult abuse.  Are you a mandatory reporter? (Chances are YES you are a mandatory reporter! 3
  4. 4. K.S.A. 39-1431 – Who Are Mandatory Reporters in Kansas? Any person who is licensed to practice any branch of the healing arts, a licensed psychologist, a licensed master level psychologist, a licensed clinical psychotherapist, the chief administrative officer of a medical care facility, a teacher, a licensed social worker, a licensed professional nurse, a licensed practical nurse, a licensed dentist, a licensed marriage and family therapist, a licensed clinical marriage and family therapist, licensed professional counselor, licensed clinical professional counselor, registered alcohol and drug abuse counselor, a law enforcement officer, a case manager, a rehabilitation counselor, a bank trust officer or any other officers of financial institutions, a legal representative, a governmental assistance provider, an owner or operator of a residential care facility, an independent living counselor and the chief administrative officer of a licensed home health agency, the chief administrative officer of an adult family home and the chief administrative officer of a provider of community services and affiliates thereof operated or funded by the department of social and rehabilitation services or licensed under K.S.A. 75-3307b. ALL OTHERS („Any other person not listed‟) “MAY” report. 4
  5. 5. What if I don’t report suspected abuse? K.S.A. 39-1431(e) states that: Any person required to report information or cause a report of information to be made under subsection (a) who knowingly fails to make such report or cause such report not to be made shall be guilty of a class B misdemeanor. * Sentencing Guidelines for misdemeanors allows Judges to incarcerate any person convicted of a class B misdemeanor for up to six (6) months in the county jail. 5
  6. 6. Complexities of Kansas Mandatory Reporting Laws Easier SAID than DONE „I could be destroying family relationships!‟ „The patient is a friend of mine.‟ „I see the family at the store all the time.‟ „If I report then my patient may never tell me the truth again.‟ „I can‟t tell on my coworker.‟ What are the pros and cons? Are there gray areas? (Yes) 6
  7. 7. Criminal Liability of Others Reporting of abuse may result in criminal charges being pursued against the abuser. Some charges include: assault, battery (misdemeanor or felony), domestic battery, sexual battery, criminal restraint, theft, forgery, identity theft, credit fraud, rape, negligent homicide, manslaughter, etc. Unintended consequences might include loss of job/career of abuser along with criminal consequences. 7
  8. 8. The Public Policy behind mandatory reporting laws. Three Schools of Thought! 1. Supporters – proponents of mandatory reporting believe victims will be safer because many elders may not recognize that they are being abused, are unaware of services or may be too afraid or physically unable to seek help on their own. Mandatory reporting can enhance their safety by linking them with services that will provide information and referrals to improve their living situation(s). 8
  9. 9. The Public Policy behind mandatory reporting laws. Three Schools of Thought! 2. Opponents – opponents of mandatory reporting believe adult victims should have the right to decide if they want help and from whom. There is also the risk of retaliation by the perpetrator, which may lead to reduced victim decision-making power and a perception that trust and confidentiality have been compromised, creating a myriad of unintended consequences. 9
  10. 10. The Public Policy behind mandatory reporting laws. Three Schools of Thought! 3. Middle of the Road – Persons who have ability and/or capacity can report abuse themselves and those who do not have ability/capacity must rely on the professionals around them to report abuse on their behalf. You may report abuse of a person with capacity but nothing says you have to in the current law. * Kansas has a more Middle of the Road Approach under its current laws. As a professional you may lean more one way, than another. 10
  11. 11. Crisis Centers In SW Kansas Contact your local Family Crisis Center. Crisis Center of Dodge City, 620-225-6510  Family Crisis Services, Garden City, 620-275-5911  Family Crisis Center, Great Bend, 620-792-1885  DoVES of Grant County, Ulysses, 620-356-2608  Liberal Area DV Services, 620-624-8818  11
  12. 12. When Am I Required to Report Abuse Under Kansas Law? K.S.A. 39-1430 or 39-1402 requires that: Whenever YOU have “. . . reasonable cause to believe that an adult [or resident] is being or has been abused, neglected or exploited or is in need of protective services shall report immediately from receipt of the information, such information or cause a report of such information to be made in any reasonable manner.” 12
  13. 13. Definitions of Legal Terms an adult   Resident  Abused  Neglected  Exploited  is in need of protective services  reasonable cause to believe 13
  14. 14. If the person has capacity he/she can refuse An Adult to accept services, see K.S.A. 39-1438. K.S.A. 39-1430 defines Adult as an individual 18 years of age or older alleged to be unable to protect their own interest and who is harmed or threatened with harm, whether financial, mental or physical in nature, through action or inaction by either another individual or through their own action or inaction when (1) such person is residing in such person's own home, the home of a family member or the home of a friend, (2) such person resides in an adult family home as defined in K.S.A. 39-1501 and amendments thereto, or (3) such person is receiving services through a provider of community services and affiliates thereof operated or funded by the department of social and rehabilitation services or the department on aging or a residential facility licensed pursuant to K.S.A. 75-3307b and amendments thereto. Such term shall not include persons to whom K.S.A. 39-1401 et seq. and amendments thereto apply. ** There is no provision in the law that can force an adult with capacity to accept protective services. 14
  15. 15. If the person has capacity he/she can refuse Resident to accept services, see K.S.A. 39-1407. K.S.A. 39-1401 refers to K.S.A. 39-923, which provides: (1) quot;Adult care homequot; means any nursing facility, nursing facility for mental health, intermediate care facility for the mentally retarded, assisted living facility, residential health care facility, home plus, boarding care home and adult day care facility, all of which classifications of adult care homes are required to be licensed by the secretary of aging. ... (13) quot;Residentquot; means all individuals kept, cared for, treated, boarded or otherwise accommodated in any adult care home. ** If the resident has no capacity, and no legal representative then a guardian/conservator can be established. 15
  16. 16. Abuse – K.S.A. 39-1430(b) (b) quot;Abusequot; means any act or failure to act performed intentionally or recklessly that causes or is likely to cause harm to an adult, including: (1) Infliction of physical or mental injury; (2) any sexual act with an adult when the adult does not consent or when the other person knows or should know that the adult is incapable of resisting or declining consent to the sexual act due to mental deficiency or disease or due to fear of retribution or hardship; (3) unreasonable use of a physical restraint, isolation or medication that harms or is likely to harm an adult; (4) unreasonable use of a physical or chemical restraint, medication or isolation as punishment, for convenience, in conflict with a physician's orders or as a substitute for treatment, except where such conduct or physical restraint is in furtherance of the health and safety of the adult; (5) a threat or menacing conduct directed toward an adult that results or might reasonably be expected to result in fear or emotional or mental distress to an adult; (6) fiduciary abuse; or (7) omission or deprivation by a caretaker or another person of goods or services which are necessary to avoid physical or mental harm or illness. 16
  17. 17. Neglect – K.S.A. 39-1430(c) (c) quot;Neglectquot; means the failure or omission by one's self, caretaker or another person with a duty to supply or provide goods or services which are reasonably necessary to ensure safety and well-being and to avoid physical or mental harm or illness. 17
  18. 18. Exploitation – K.S.A. 39-1430(d) (d) quot;Exploitationquot; means misappropriation of an adult's property or intentionally taking unfair advantage of an adult's physical or financial resources for another individual's personal or financial advantage by the use of undue influence, coercion, harassment, duress, de ception, false representation or false pretense by a caretaker or another person. 18
  19. 19. In Need of Protective Services K.S.A. 39-1430(f), (g), & (h) (f) quot;In need of protective servicesquot; means that an adult is unable to provide for or obtain services which are necessary to maintain physical or mental health or both. (g) quot;Services which are necessary to maintain physical or mental health or bothquot; include, but are not limited to, the provision of medical care for physical and mental health needs, the relocation of an adult to a facility or institution able to offer such care, assistance in personal hygiene, food, clothing, adequately heated and ventilated shelter, protection from health and safety hazards, protection from maltreatment the result of which includes, but is not limited to, malnutrition, deprivation of necessities or physical punishment and transportation necessary to secure any of the above stated needs, except that this term shall not include taking such person into custody without consent except as provided in this act. (h) quot;Protective servicesquot; means services provided by the state or other governmental agency or by private organizations or individuals which are necessary to prevent abuse, neglect or exploitation. Such protective services shall include, but shall not be limited to, evaluation of the need for services, assistance in obtaining appropriate social services, and assistance in securing medical and legal services. 19
  20. 20. Reasonable Cause to Believe? Reasonable cause is less stringent of a standard than that of the criminal standard of probable cause. In other words if you have any reasonable reason to even think that an adult [or resident] is or has been abused then you are required to report. What is reasonable? (Discussion) 20
  21. 21. Does That Mean I Have to Report Everything I See? 21
  22. 22. Can’t I Be Sued? Yes, but only frivolously K.S.A. 39-1432 & 39-1403 – Grants Immunity (a) Anyone participating in the making of any report pursuant to this act, or in any follow-up activity to the report, including providing records upon request of the department of social and rehabilitation services, or investigation of such report or who testifies in any administrative or judicial proceeding arising from such report shall not be subject to any civil liability on account of such report, investigation or testimony, unless such person acted in bad faith or with malicious purpose. (b) No employer shall terminate the employment of, prevent or impair the practice or occupation of or impose any other sanction on any employee solely for the reason that such employee made or caused to be made a report, or cooperated with an investigation, under this act. [A court, in addition to other damages and remedies, may assess reasonable attorney fees against an employer who has been found to have violated the provisions of this subsection.] 22 DO NOT FEEL GUILTY FOR MAKING A REPORT!
  23. 23. What Goes in the Report? (b) The report made pursuant to subsection (a) shall contain the name and address of the person making the report and of the caretaker caring for the involved adult, the name and address of the involved adult, information regarding the nature and extent of the abuse, neglect or exploitation, the name of the next of kin of the involved adult, if known, and any other information which the person making the report believes might be helpful in the investigation of the case and the protection of the involved adult. There is no requirement that the report be typed or that it be in any specialized form. K.S.A. 39-1431 only requires that the manner in which the report is made be in any reasonable manner. Reports should be made to SRS during normal work days and to Law Enforcement when SRS is closed. 23
  24. 24. Can I Make an Anonymous Report? You can try. . . Just use a payphone, but things will get complicated. . . Any ideas why. . . ? You should know that under K.S.A. 39-1434 any report made is not deemed public record and is not subject to the provisions of the Kansas Open Records Act. Your name is not to be disclosed unless you consent in writing that it be, or unless a”judicial proceeding” results therefrom. In other words, unless a criminal or civil case (“judicial proceeding”) results nobody should know who you are unless you tell them, or you are figured out during an investigation. . . 24
  25. 25. Important Phone Numbers 1-800-922-5330 is the  Statewide Hotline and accepts reports 24 hrs a day. You can FAX written reports  directly to the Statewide Hotline at 785-296-0470. For Southwest Kansas you can  also call 1-800-264-3798 (during business hours). Explain the situation to them and have them open an investigation. If you use this service you do not need to utilize the Statewide Hotline. 25
  26. 26. Some Actual Examples of Findings of Abuse In Kansas “Resident fell out of wheelchair while being 1. pushed by nurse aide. Wheelchair was not equipped with foot rests. Resident placed feet on floor and was propelled forward. Injuries included laceration to head and injury to right wrist which required physician intervention.” (Neglect). “Adult admitted to hospital with signs and 2. symptoms of dehydration. Reporter stated that the adult had poor oral intake for over one week, poor skin turgor, and swollen dry cracked lips. Diagnosis at admission to hospital was sepsis, dehydration and malnutrition.” (Neglect). 26
  27. 27. Some Actual Examples of Findings of Abuse In Kansas “Resident‟s checkbook was stolen by employee of 3. adult care facility and employee sought to cash a forged check” (Financial Exploitation). Criminal Charges Pressed. “Resident was told by an employee of Adult Care 4. Home that he was disgusting as he (the employee) made his hand in the form of a gun and pretended to shoot the resident as he commented to another employee, in front of the Resident, “Can you imagine the spatter design?” (Mental Abuse). 27
  28. 28. Review and Conclusions Questions? You may be the only protection for those you serve; be mindful of your duty under the law. “Do not allow your serve report protec fear of meddling in t someone else’s empath help save business stop you y from lawfully caring Caring shiel reporting abuse.” d 28