CASE REVIEW. State v. Jerry Kan Rape at Beau Provance

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1 CASE REVIEW State v. Jerry Kan Rape at Beau Provance

2 DISTRICT ATTORNEY WARREN MONTGOMERY 22nd Judicial District St. Tammany and Washington Parishes, State of Louisiana

3 CASE REVIEW Some long term care facility facts Investigation by Law Enforcement Delayed Proper reporting and evidence handling Physical evidence and photos Screening by D.A. Trial Through the eyes of the media Sentencing

4 DISCLOSURE The planners, presenters, and content reviewers of this course disclose no conflicts of interest. Upon signing in on the attendance sheet, attending the course in its entirety (due to the criticality of the content) and completing the course evaluation, you will receive a certificate that documents the continuing nursing education contact hours for this activity. The International Association of Forensic Nurses is accredited as a provider of continuing nursing education by the American Nurses Credentialing Center s Commission on Accreditation.

9 ABUSE IN NURSING HOMES AND OTHER LONG-TERM CARE FACILITIES Elder abuse occurs in community settings, such as private homes, as well as institutional settings like nursing homes and other types of long term care facilities. In 2014, the number of nursing home residents was approximately 1.4 million and the number of residents in residential care communities was 835, Concern about elder abuse in nursing homes first came to widespread public attention in the 1970s, when facilities were relatively unregulated and had little oversight.14 Below is a sampling of research findings relating to abuse in long term care facilities:

10 ABUSE IN NURSING HOMES AND OTHER LONG-TERM CARE FACILITIES According to the National Ombudsman Reporting System (NORS) data, within the year 2014, 14,258 (7.6%) of approximately 188,599 complaints reported to Ombudsman programs involved abuse, gross neglect, or exploitation.33 A May, 2008 study conducted by the U.S. General Accountability Office revealed that state surveys understate problems in licensed facilities: 70% of state surveys miss at least one deficiency and 15% of surveys miss actual harm and immediate jeopardy of a nursing home resident.34 Abuse of older residents by other residents in long-term care facilities is now recognized as a problem that is more common than physical abuse by staff.14,35 However, more research is still needed. Read the NCEA research brief on abuse of abuse of residents of long term care facilities (PDF), or visit Research Briefs for more information. June 24, 2018.

11 THE INTERNET NEVER FORGETS

12 POLICE Mandeville Police Department Det. Kevin Covert Could have looked the other way, but did not.

16 CASE REVIEW Investigation by Law Enforcement Delayed, Why? What were the reporting requirements? Time Frame? State and LEA Federal Proper reporting and evidence handling Physical evidence Photos Official Unofficial staff equipment, cell phones, etc.

17 MANDATORY REPORTING LICENSED HEALTH CARE PROVIDERS R.S. 40: Duty to make complaints; penalty; immunity B.(1) Any person who is engaged in the practice of medicine, social services, facility administration, psychological or psychiatric services; or any registered nurse, licensed practical nurse, nurse's aide, personal care attendant, respite worker, physician's assistant, physical therapist, or any other direct caregiver having knowledge that a consumer's physical or mental health or welfare has been or may be further adversely affected by abuse, neglect, or exploitation shall, within twenty-four hours, submit a report to the department (Dept. of Health and Hospitals) or inform the unit or local law enforcement agency of such abuse or neglect..

18 MANDATORY REPORTING LICENSED HEALTH CARE PROVIDERS R.S. 40: Duty to make complaints; penalty; immunity (2) Any person who knowingly or willfully violates the provisions of this Section shall be fined not more than five hundred dollars or imprisoned for not more than two months, or both.

19 MANDATORY REPORTING LICENSED HEALTH CARE PROVIDERS C. Any person, other than the person alleged to be responsible for the abuse or neglect, reporting pursuant to this Section in good faith shall have immunity from any civil liability D. All hospitals shall permanently display in a prominent location in their emergency rooms a copy of R.S. 40: *Older than R.S. 15:1504.

20 REPORTING REASONABLE SUSPICION OF A CRIME IN A LONG-TERM CARE FACILITY (LTC): SECTION 1150B OF THE SOCIAL SECURITY ACT B. LTC Facility Responsibilities 1. Required Functions: A Medicare- or Medicaid-participating LTC facility must: a) Determine Applicability: Determine annually whether the facility received at least $10,000 in Federal funds under the Act during the preceding fiscal year;

21 REPORTING REASONABLE SUSPICION OF A CRIME IN A LONG-TERM CARE FACILITY (LTC): SECTION 1150B OF THE SOCIAL SECURITY ACT b) Notify Covered Individuals: Annually notify each covered individual of that individual s reporting obligations described in section 1150B(b) of the Act, if the facility determines that it received at least $10,000 in Federal funds under the Act during the preceding fiscal year.

22 REPORTING REASONABLE SUSPICION OF A CRIME IN A LONG-TERM CARE FACILITY (LTC): SECTION 1150B OF THE SOCIAL SECURITY ACT c) Post Conspicuous Notice: Conspicuously post, in an appropriate location, a notice for its employees specifying the employees rights, including the right to file a complaint under this statute. The notice must include a statement that an employee may file a complaint with the SA against a LTC facility that retaliates against an employee as specified above, as well as include information with respect to the manner of filing such a complaint.

23 REPORTING REASONABLE SUSPICION OF A CRIME IN A LONG-TERM CARE FACILITY (LTC): SECTION 1150B OF THE SOCIAL SECURITY ACT d) Eschew Retaliation: The facility may not retaliate against an individual who lawfully reports a reasonable suspicion of a crime under section 1150B. A LTC facility may not discharge, demote, suspend, threaten, harass, or deny a promotion or other employment-related benefit to an employee, or in any other manner discriminate against an employee in the terms and conditions of employment because of lawful acts done by the employee, or file a complaint or a report against a nurse or other employee with the appropriate state professional disciplinary agency because of lawful acts done by the nurse or employee.

24 REPORTING REASONABLE SUSPICION OF A CRIME IN A LONG-TERM CARE FACILITY (LTC): SECTION 1150B OF THE SOCIAL SECURITY ACT 2. Additional Advisable Functions: A facility that effectively implements section 1150B will: a) Coordinate with Law Enforcement: Coordinate with the facility s State and local law enforcement entities to determine what actions are considered crimes in their political subdivision. b) Review Adherence to Existing CMS Policies: Review existing facility protocols and procedures to ensure adherence to existing CMS and State policies and procedures for reporting incidents and complaints. For example, participating nursing homes are already required to have policies and procedures in place to report abuse, neglect or misappropriation of resident property. During the course of a standard survey or complaint investigation, the identification of a possible crime may trigger a review of the LTC facility s policies and procedures for reporting as required under the Federal conditions and requirements for that provider type, and a review of the actions taken to make any required incident report.

25 REPORTING REASONABLE SUSPICION OF A CRIME IN A LONG-TERM CARE FACILITY (LTC): SECTION 1150B OF THE SOCIAL SECURITY ACT c) Develop Policies and Procedures for Section 1150B: Develop and maintain policies and procedures that ensure compliance with section 1150B, including the prohibition of retaliation against any employee who makes a report, causes a lawful report to be made, or takes steps in furtherance of making a lawful report pursuant to the requirements of the statute.

26 REPORTING REASONABLE SUSPICION OF A CRIME IN A LONG-TERM CARE FACILITY (LTC): SECTION 1150B OF THE SOCIAL SECURITY ACT D. Time Period for Individual Reporting Section 1150B establishes two time limits for the reporting of reasonable suspicion of a crime, depending on the seriousness of the event that leads to the reasonable suspicion. 1. Serious Bodily Injury 2 Hour Limit: If the events that cause the reasonable suspicion result in serious bodily injury to a resident, the covered individual shall report the suspicion immediately, but not later than 2 hours after forming the suspicion; 2. All Others Within 24 Hours: If the events that cause the reasonable suspicion do not result in serious bodily injury to a resident, the covered individual shall report the suspicion not later than 24 hours after forming the suspicion.

27 REPORTING REASONABLE SUSPICION OF A CRIME IN A LONG-TERM CARE FACILITY (LTC): SECTION 1150B OF THE SOCIAL SECURITY ACT

28 INVESTIGATION DELAYED AND AVOIDING TROUBLE WITH POLICE Considerations for the future: The Corporate Entity needs to have in place mechanisms for reporting and preserving that it was reported. The Corporate Entity needs to have procedures and clear lines of communication on how to handle potential evidence. Physical Observations of staff What about photos taken by staff? Of objects Of people

29 DISTRICT ATTORNEY AND GRAND JURY The District Attorney chooses whether or not to present a case to Grand Jury Not open to the public LEA involved In this case an ADA with a wealth of experience in sex offenses was in charge and she presented the case to the Grand Jury. ADA Ysonde Boland spent many hours on this case before and after the Grand Jury. Without her effort, the case stops at this stage.

31 unities/st_tammany/article_40576ffc-be50-11e6-b75a2f64873c0ecc.html June 21, 2018

32 GRAND JURY INDICTMENT 42. FIRST DEGREE RAPE A. First degree rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances: (1) When the victim resists the act to the utmost, but whose resistance is overcome by force. (2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution. (3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon. (4) When the victim is under the age of thirteen years. Lack of knowledge of the victim's age shall not be a defense. (5) When two or more offenders participated in the act. (6) When the victim is prevented from resisting the act because the victim suffers from a physical or mental infirmity preventing such resistance.

33 GRAND JURY INDICTMENT 42. FIRST DEGREE RAPE B. For purposes of Paragraph (5), "participate" shall mean: (1) Commit the act of rape. (2) Physically assist in the commission of such act. C. For purposes of this Section, the following words have the following meanings: (1) "Physical infirmity" means a person who is a quadriplegic or paraplegic. (2) "Mental infirmity" means a person with an intelligence quotient of seventy or lower. D.(1) Whoever commits the crime of first degree rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. (2) However, if the victim was under the age of thirteen years, as provided by Paragraph (A)(4) of this Section: (a) And if the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of the jury. The provisions of Code of Criminal Procedure Art. 782 relative to cases in which punishment may be capital shall apply. (b) And if the district attorney does not seek a capital verdict, the offender shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The provisions of Code of Criminal Procedure Art. 782 relative to cases in which punishment is necessarily confinement at hard labor shall apply. E. For all purposes, "aggravated rape" and "first degree rape" mean the offense defined by the provisions of this Section and any reference to the crime of aggravated rape is the same as a reference to the crime of first degree rape. Any act in violation of the provisions of this Section committed on or after August 1, 2015, shall be referred to as "first degree rape". Acts 1978, No. 239, 1. Amended by Acts 1981, No. 707, 1; Acts 1984, No. 579, 1; Acts 1993, No. 630, 1; Acts 1995, No. 397, 1; Acts 1997, No. 757, 1; Acts 1997, No. 898, 1; Acts 2001, No. 301, 1; Acts 2003, No. 795, 1; Acts 2006, No. 178, 1; Acts 2015, No. 184, 1; Acts 2015, No. 256, 1.

34 TRIAL At trial the State was represented by two Assistant District Attorneys Jerry Smith and Will Macke The District Attorney s office amended the charge for trial to Third Degree Rape

35 43. THIRD DEGREE RAPE A. Third degree rape is a rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of a victim because it is committed under any one or more of the following circumstances: (1) When the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim's incapacity. (2) When the victim, through unsoundness of mind, is temporarily or permanently incapable of understanding the nature of the act and the offender knew or should have known of the victim's incapacity.

36 43. THIRD DEGREE RAPE (3) When the victim submits under the belief that the person committing the act is someone known to the victim, other than the offender, and such belief is intentionally induced by any artifice, pretense, or concealment practiced by the offender. (4) When the offender acts without the consent of the victim.

37 43. THIRD DEGREE RAPE B. Whoever commits the crime of third degree rape shall be imprisoned at hard labor, without benefit of parole, probation, or suspension of sentence, for not more than twentyfive years. C. For all purposes, "simple rape" and "third degree rape" mean the offense defined by the provisions of this Section and any reference to the crime of simple rape is the same as a reference to the crime of third degree rape. Any act in violation of the provisions of this Section committed on or after August 1, 2015, shall be referred to as "third degree rape".

38 DISCUSSION Which sections of Third Degree Rape might fit a nursing home situation? Does the statute require that the victim be interdicted or somehow judicially previously recognized as not able to handle their own affairs?

55 CULTURE How did this happen? What is the Culture? Is reporting encouraged, or discouraged? Has an employee ever been harassed, punished or terminated for reporting? What is a proper report? What does is contain? Where do reports have to be made?

56 RS 15:1502 LEGISLATIVE FINDINGS AND DECLARATION. A. The purpose of this Section is to protect adults who cannot physically or mentally protect themselves and who are harmed or threatened with harm through action or inaction by themselves or by the individuals responsible for their care or by other parties, by requiring mandatory reporting of suspected cases of abuse or neglect by any person having reasonable cause to believe that such a case exists. It is intended that, as a result of such reports, protective services shall be provided by the adult protection agency. Such services shall be available as needed without regard to income. B. It is the further intent of the legislature to authorize only the least possible restriction on the exercise of personal and civil rights consistent with the person's need for services and to require that due process be followed in imposing such restrictions.

57 RS 15: LEGISLATIVE FINDINGS AND DECLARATION protect adults who cannot physically or mentally protect themselves... by requiring mandatory reporting of suspected cases of abuse or neglect by any person having reasonable cause to believe that such a case exists.... the least possible restriction on the exercise of personal and civil rights...

58 DUTY: MANDATORY REPORTING La. R.S. 15:1504 requires reporting of abuse by Any person, including but not limited to a health, mental health, and social service practitioner, having cause to believe that an adult's physical or mental health or welfare has been or may be further adversely affected by abuse, neglect, or exploitation shall report in accordance with R.S. 15:1505.

59 NOT ALL STATES REQUIRE ALL PERSONS TO REPORT Mandatory Reporting Many professionals and social service providers, such as doctors, police, attorneys, and mental health providers, who have regular contact with vulnerable adults and older adults are mandated reporters, in nearly all (49) states. In fact, 15 states require all persons to report if abuse has been observed or is suspected. In 11 states, financial professionals including bankers are mandated reporters, as financial abuse is among the fastest growing areas of APS focus. June 12, 2017

60 R.S. 15:1504 La. R.S. 15:1504. Mandatory reports and immunity A. Any person, including but not limited to a health, mental health, and social service practitioner, having cause to believe that an adult's physical or mental health or welfare has been or may be further adversely affected by abuse, neglect, or exploitation shall report in accordance with R.S. 15:1505. B. No cause of action shall exist against any person who in good faith makes a report, cooperates in an investigation by an adult protective agency, or participates in judicial proceedings authorized under the provisions of this Chapter, or any adult protective services caseworker who in good faith conducts an investigation or makes an investigative judgment or disposition, and such person shall have immunity from civil or criminal liability that otherwise might be incurred or imposed. This immunity shall not be extended to:

61 R.S. 15:1504 (1) Any alleged principal, conspirator, or accessory to an offense involving the abuse or neglect of the adult. (2) Any person who makes a report known to be false or with reckless disregard for the truth of the report. (3) Any person charged with direct or constructive contempt of court, any act of perjury as defined in Subpart C of Part VII of Chapter 1 of Title 14, or any offense affecting judicial functions and public records as defined in Subpart D of Part VII of Chapter 1 of Title 14. Acts 2008, No. 181, 2, eff. June 13, 2008.

62 MANDATORY REPORTING R.S. 15:1505. Report shall be made to any adult protection agency or to any local or state law enforcement agency. Need not name the persons suspected Must provide: Name and address of the adult, of the person responsible for the care of the adult, if available, and any other pertinent information.

63 MANDATORY REPORTING LICENSED HEALTH CARE PROVIDERS R.S. 40: Duty to make complaints; penalty; immunity B.(1) Any person who is engaged in the practice of medicine, social services, facility administration, psychological or psychiatric services; or any registered nurse, licensed practical nurse, nurse's aide, personal care attendant, respite worker, physician's assistant, physical therapist, or any other direct caregiver having knowledge that a consumer's physical or mental health or welfare has been or may be further adversely affected by abuse, neglect, or exploitation shall, within twenty-four hours, submit a report to the department (Dept. of Health and Hospitals) or inform the unit or local law enforcement agency of such abuse or neglect..

64 MANDATORY REPORTING LICENSED HEALTH CARE PROVIDERS R.S. 40: Duty to make complaints; penalty; immunity (2) Any person who knowingly or willfully violates the provisions of this Section shall be fined not more than five hundred dollars or imprisoned for not more than two months, or both.

65 MANDATORY REPORTING LICENSED HEALTH CARE PROVIDERS C. Any person, other than the person alleged to be responsible for the abuse or neglect, reporting pursuant to this Section in good faith shall have immunity from any civil liability D. All hospitals shall permanently display in a prominent location in their emergency rooms a copy of R.S. 40: *Older than R.S. 15:1504.

66 FEDERAL REPORTING REQUIREMENT

67 REPORTING TO LAW ENFORCEMENT OF CRIMES OCCURRING IN FEDERALLY FUNDED LONG-TERM CARE FACILITIES SEC. 1150B. [42 U.S.C. 1320B 25] (A) DETERMINATION AND NOTIFICATION. (1) DETERMINATION. The owner or operator of each long-term care facility that receives Federal funds under this Act shall annually determine whether the facility received at least $10,000 in such Federal funds during the preceding year. (2) NOTIFICATION. If the owner or operator determines under paragraph (1) that the facility received at least $10,000 in such Federal funds during the preceding year, such owner or operator shall annually notify each covered individual (as defined in paragraph (3)) of that individual s obligation to comply with the reporting requirements described in subsection (b). (3) COVERED INDIVIDUAL DEFINED. In this section, the term covered individual means each individual who is an owner, operator, employee, manager, agent, or contractor of a long-term care facility that is the subject of a determination described in paragraph (1).

68 REPORTING TO LAW ENFORCEMENT OF CRIMES OCCURRING IN FEDERALLY FUNDED LONG-TERM CARE FACILITIES SEC. 1150B. [42 U.S.C. 1320B 25] (A) DETERMINATION AND NOTIFICATION. (b) REPORTING REQUIREMENTS. (1) IN GENERAL. Each covered individual shall report to the Secretary and 1 or more law enforcement entities for the political subdivision in which the facility is located any reasonable suspicion of a crime (as defined by the law of the applicable political subdivision) against any individual who is a resident of, or is receiving care from, the facility. (2) TIMING. If the events that cause the suspicion (A) result in serious bodily injury, the individual shall report the suspicion immediately, but not later than 2 hours after forming the suspicion; and (B) do not result in serious bodily injury, the individual shall report the suspicion not later than 24 hours after forming the suspicion.

69 REPORTING TO LAW ENFORCEMENT OF CRIMES OCCURRING IN FEDERALLY FUNDED LONG-TERM CARE FACILITIES SEC. 1150B. [42 U.S.C. 1320B 25] (A) DETERMINATION AND NOTIFICATION. (c) PENALTIES. (1) IN GENERAL. If a covered individual violates subsection (b) (A) the covered individual shall be subject to a civil money penalty of not more than $200,000; and (B) the Secretary may make a determination in the same proceeding to exclude the covered individual from participation in any Federal health care program (as defined in section 1128B(f)). (2) INCREASED HARM. If a covered individual violates subsection (b) and the violation exacerbates the harm to the victim of the crime or results in harm to another individual (A) the covered individual shall be subject to a civil money penalty of not more than $300,000; and (B) the Secretary may make a determination in the same proceeding to exclude the covered individual from participation in any Federal health care program (as defined in section 1128B(f)).

70 REPORTING TO LAW ENFORCEMENT OF CRIMES OCCURRING IN FEDERALLY FUNDED LONG-TERM CARE FACILITIES SEC. 1150B. [42 U.S.C. 1320B 25] (A) DETERMINATION AND NOTIFICATION. (3) EXCLUDED INDIVIDUAL. During any period for which a covered individual is classified as an excluded individual under paragraph (1)(B) or (2)(B), a long-term care facility that employs such individual shall be ineligible to receive Federal funds under this Act. (4) EXTENUATING CIRCUMSTANCES. (A) IN GENERAL. The Secretary may take into account the financial burden on providers with underserved populations in determining any penalty to be imposed under this subsection. (B) UNDERSERVED POPULATION DEFINED. In this paragraph, the term underserved population means the population of an area designated by the Secretary as an area with a shortage of elder justice programs or a population group designated by the Secretary as having a shortage of such programs. Such areas or groups designated by the Secretary may include (i) areas or groups that are geographically isolated (such as isolated in a rural area); (ii) racial and ethnic minority populations; and (iii) populations underserved because of special needs (such as language barriers, disabilities, alien status, or age). (d) ADDITIONAL PENALTIES FOR RETALIATION.

71 REPORTING TO LAW ENFORCEMENT OF CRIMES OCCURRING IN FEDERALLY FUNDED LONG-TERM CARE FACILITIES SEC. 1150B. [42 U.S.C. 1320B 25] (A) DETERMINATION AND NOTIFICATION. (1) IN GENERAL. A long-term care facility may not (A) discharge, demote, suspend, threaten, harass, or deny a promotion or other employment-related benefit to an employee, or in any other manner discriminate against an employee in the terms and conditions of employment because of lawful acts done by the employee; or (B) file a complaint or a report against a nurse or other employee with the appropriate State professional disciplinary agency because of lawful acts done by the nurse or employee, for making a report, causing a report to be made, or for taking steps in furtherance of making a report pursuant to subsection (b)(1). (2) PENALTIES FOR RETALIATION. If a long-term care facility violates subparagraph (A) or (B) of paragraph (1) the facility shall be subject to a civil money penalty of not more than $200,000 or the Secretary may classify the entity as an excluded entity for a period of 2 years pursuant to section 1128(b), or both. (3) REQUIREMENT TO POST NOTICE. Each long-term care facility shall post conspicuously in an appropriate location a sign (in a form specified by the Secretary) specifying the rights of employees under this section. Such sign shall include a statement that an employee may file a complaint with the Secretary against a long-term care facility that violates the provisions of this subsection and information with respect to the manner of filing such a complaint. (e) PROCEDURE. The provisions of section 1128A (other than subsections (a) and (b) and the second sentence of subsection (f)) shall apply to a civil money penalty or exclusion under this section in the same manner as such provisions apply to a penalty or proceeding under section 1128A(a). (f) DEFINITIONS. In this section, the terms elder justice, long-term care facility, and law enforcement have the meanings given those terms in section 2011.

72 LAST SLIDE

Center for Medicaid, CHIP, and Survey & Certification/Survey & Certification Group

DEPARTMENT OF HEALTH & HUMAN SERVICES Centers for Medicare & Medicaid Services 7500 Security Boulevard, Mail Stop 02 02 38 Baltimore, Maryland 21244 1850 Center for Medicaid, CHIP, and Survey & Certification/Survey