The Elder Abuse Bill (House Bill 4151) passed off the Oregon Senate floor last week by a 30-0 vote, and is on its way to Governor Kitzhaber for signature. The legislation is the product of the Elder Abuse Work Group, which included our firm’s Lara Johnson.
Elder abuse has traditionally been under-recognized and under-reported. There have been a number of steps taken in recent years to provide better protection to the elderly and other vulnerable people.
The Elder Abuse Work Group was given a broad mandate to look at a variety of issues, including the definition of “abuse.” The definition of abuse determines what mandatory reporters must report, what state investigators must investigate, and what conduct the State may punish with financial penalties. The Elder Abuse Work Group decided to strengthen the protection against sexual abuse and simplify the definition of neglect to provide better guidance to mandatory reporters and state investigators, and to provide more consistency with enforcement.
The legislation explicitly states that sexual contact between a resident of a care facility and an employee of the care facility is abuse and is not permitted. A resident or the resident’s family does not need to prove that sexual contact was non-consensual for the State to take action. This reflects the general thinking among the Elder Abuse Work Group members that such conduct was inappropriate under all circumstances.
“Neglect,” under the revised statute, means the “failure to provide basic care and services that are necessary to maintain the health or safety of an elderly person.” It is not necessary that the elderly person experience actual physical harm if the conduct itself is dangerous and may later result in actual harm to others. “Neglect” is not a failure to provide non-basic care. (One story making the rounds at the Capitol was of a care worker who, on one occasion, did not share cookies with a resident and wound up with an abuse allegation on her record. That’s not abuse.)
Another part of the new law is the implementation of a more systematic approach to the abuse registry. The Department of Human Services has been tasked with creating and updating a registry of all persons who work and seek work at facilities or as home health care workers. The idea is that this list would include all caregivers who have committed crimes that would disqualify them from working with the elderly, or who have previously been found to have committed abuse by the State. The DHS is to develop rules establishing what a facility must report to DHS, what form such reporting must take, the procedure for administering the registry, and guidelines for release of information from the registry.
The new legislation addresses some, but not all, of the issues considered by the Elder Abuse Task Force. Financial abuse of elderly people is a prevalent problem. Recent legislation gives law enforcement more authority to gather such records, but the definition of financial exploitation may need to be expanded to address modern financial crimes.
People who are developmentally disabled are not protected or covered by the new legislative changes. Their interests may be raised in the next few legislative sessions.
The unanimous passage of this Bill is a testament to the professionalism of the Elder Abuse Work Group, which includes members with very different interests and backgrounds. We are proud of their efforts and look forward to additional measures to protect vulnerable Oregonians.
We represented the family of Mary O’Meara, an 83-year-old woman with multiple chronic health conditions who was admitted to a nursing home to recover from compression fractures of her back, and to engage in physical therapy to improve her mobility and regain her independence. While there, Mary O’Meara’s pain patches were stolen on at least several occasions by one of the facility’s nursing assistants, resulting in Mary being in pain and unable to participate in the prescribed physical therapy. The nursing home had hired this assistant while she was still on court supervision for a prior drug crime. The facility failed to engage in prompt investigation of complaints of drug theft and then failed to initiate a report to law enforcement when the employee was caught “red handed” until a state agency reminded the facility of its legal obligation to report.
Mary O’Meara’s physical condition deteriorated due to the facility’s failure to provide adequate food, its failure to provide adequate skin care, and its failure to provide physical therapy, resulting in her failure to thrive and her death. The Estate brought a negligence claim for the failure to provide care and the hiring and supervision issues, and claims for Elder Abuse and intentional infliction of emotional distress for the pain patch thefts.
There was an arbitration provision in the nursing home agreement, and the case was eventually decided by a full arbitration hearing after the nursing home refused offers to settle. It was the nursing home’s position that the only harm Mary potentially suffered was some increased pain for a brief period of time. The three arbitrator panel returned an award of a total of $111,667.75 in damages and attorney fees.