Statewide Elder Abuse Coalitions: The Possibilities and Perils of Sustained Action NAPSA Annual Conference, Phoenix, AZ, October 18, 2012 Iris C. Freeman, Associate Director, Center for Elder Justice & Policy, William Mitchell College of Law
Content Capsule history of Vulnerable Adult law and terminology in Minnesota Focus on the Vulnerable Adult Justice Project, Minnesota s elder justice collaborative Description of the group s legislative initiatives (2009- present) Strategies for effective elder justice stakeholder groups Challenges faced by ours and other groups
Capsule history MN s vulnerable adult laws were first enacted in 1980. Reporting Response Emergency social services
Capsule history An extensive reform effort changed the law and the response system in 1995 (stakeholder process began in 1993). Provisions added to criminal law Response system reform Criminal background checks Modern history of the law began in 1995 During the next dozen years, Profound changes in community alternatives and service systems Resource limits in public and private agencies Financial exploitation came of age
Terminology in MN law Vulnerable Adult Categorically vulnerable Functionally vulnerable Maltreatment Common Entry Point (CEP) Lead Agency
Vulnerable Adult Justice Project Development began in 2007 Diverse membership Associations and organizations Public agency resources Organizing purpose Elder justice scholars and their roles Legal and policy research Staffing subcommittees Managing information Introducing technology
The early period Identifying problems and barriers in our (divergent) lived experiences Identifying research questions Choosing a legislative focus Subcommittees and chairs Definitions Reporting Investigations Protections Criminal code Education and training
Building consensus and setting priorities Monthly stakeholder group meetings with subcommittee reports for nine months Decision making driven by legislative calendar Decision making driven by state budget woes Decisions influenced by headlines
2009 Priorities Protect vulnerable adults from financial exploitation. Respond to emergencies when vulnerable adults are missing and endangered. Streamline the Vulnerable Adult Act reporting system. Assure social services and justice for a growing and changing population. All are components of Chapter 119, Laws of Minnesota 2009, which took effect August 1, 2009. Next, a closer look at financial exploitation provisions and streamlining the system
Protect from financial exploitation Strengthen the definition of financial exploitation to improve our ability to identify, investigate, and prosecute these cases. Give county attorneys subpoena authority for the banking and financial records of a vulnerable adult. Extend the statute of limitations for cases of criminal financial exploitation of a vulnerable adult. Encourage financial institutions to report suspected financial exploitation and to cooperate in investigations by clarifying their immunity from legal challenges when they report in good faith.
Protect from financial exploitation Assure that victims of financial exploitation have access to Medical Assistance (MA) if necessary, by clarifying the meaning of imminent threat to establish hardship waivers. Intended to standardize counties eligibility decisions and avert discharge or service terminaton for nonpayment of the victim s care. Create a private right of action against the perpetrator(s) for vulnerable adult victims of financial exploitation to recover damages, attorney s fees, and reasonable administrative costs.
Streamline the reporting system Commitment to replacing our 87 separate county reporting entities with a statewide system (Common Entry Point), developed with care to preserve the values of immediate and local response. Cost issues limited this bill to granting the Department of Human Services (DHS) authority to seek federal funds to centralize the system Continues to be a focal issue for the VAJP and progress may be on the horizon
Ceremonial bill signing June 2009
It could have ended there. The Now What? meetings held soon after the bill signing Keep on keeping on together? Really??? Multidisciplinary collaboration conveys a picture, not a purpose. Our shared purpose is to maintain a regular forum where front line, supervisory, and policy specialists in vulnerable adult protection can meet to: Identify service gaps in the protection of vulnerable adults,
Shared purpose Identify gaps and flaws in the underlying public policies, Identify, weigh, debate, and advocate for proposed solutions, Educate public officials about current and emerging issues through presentations and publications, Invite public officials to present data, updates on current policy, and proposals for policy change at stakeholder meetings,
Shared purpose Actively promote changes in Minnesota laws, rules, and policies to protect vulnerable adults and seek redress for victims, Identify issues where additional research is necessary and engage Center for Elder Justice and Policy students in the research, Foster good working relationships and information about initiatives across jurisdictions and agencies, Conduct and cooperate in professional education and public awareness efforts.
Moving forward 2010 priorities Subcommittee work moving forward Criminal Code Subcommittee Protections Subcommittee Jurisdictional Issues Subcommittee Criminal penalties for assault of a vulnerable adult Eliminating the tiered penalties for caregivers vs. noncaregivers (gross misdemeanor for any perpetrator) Registration of predatory offenders Those who abuse someone in a facility-based setting Technical clean-up language in 2009 law Limited opportunities for advancing these issues
2011 Minnesota Legislative Session The prospects? Expectations were that chaos would reign in a setting that was dominated by budget crisis and populated by scores of new lawmakers. What happened? Of course, chaos reigned in a setting that was dominated by budget crisis and populated by scores of new lawmakers. And it went on longer than ever.
VAJP Advocacy in 2011 Would have to be limited to policy changes and be budget neutral Would have to have broad support across the (political) aisles and among the stakeholders Would require lots of legwork, not because the proposals were radical but because the economy and partisan issues were the hot topics Time for the art of the possible
VAJP 2011 legislative initiative Enacted as Chapter 28, Laws of Minnesota 2011, effective August 1 of that year Changes in criminal law Changes in administrative hearings Changes in terminology Detailed descriptions of lead investigative agency jurisdictions Changes in lead investigative agency notification responsibilities Permissive addition to law governing county APS multidisciplinary teams Next, a closer look at a few of the issues
Assault of a vulnerable adult Amends Assault in the Fourth Degree, Minn. Stat. 609.2231, by adding subdivision 8, Whoever assaults and inflicts demonstrable bodily harm on a vulnerable adult, knowing or having reason to know that the person is a vulnerable adult, is guilty of a gross misdemeanor. This is not a change for caregivers, because assault of a vulnerable adult by a caregiver was already a gross misdemeanor. Applies to crimes committed on or after August 1, 2011.
Predatory offender registration Amends the Predatory offender registration requirements in Minn. Stat. 243.166, subd. 1b Adding that a person who is convicted of or adjudicated delinquent for committing, attempting, aiding, abetting, or conspiring to commit criminal abuse of a vulnerable adult under 609.2325, subdivision 1, paragraph (b), will have to register as a predatory offender. 609.2325, subdivision 1, paragraph (b) defines criminal abuse of a vulnerable adult as a caregiver, facility staff member, or person providing services in a facility who engages in sexual contact or penetration with a resident, patient, or client of the facility is guilty of criminal abuse.
Predatory offenders, continued Registration is time limited, with conditions Applies to crimes committed on or after August 1, 2011. Other sex crimes were listed in the registration law prior to 1995, when the criminal abuse of a vulnerable adult language was enacted.
Hearings by Department of Human Services or Administrative Law Judges Provides notice that the vulnerable adult, the guardian, or health care agent may submit a written statement which, if submitted, must be considered and included in the record. The Lead Investigative Agency must consider including the vulnerable adult as a witness in the hearing; however, as before, the law neither mandates nor prevents that decision. If the Lead Investigative Agency determines that participation would endanger the well-being of the vulnerable adult, the human services referee or ALJ must be given the basis for the determination and include that information in the final order.
Hearings by Department of Human Services or Administrative Law Judges Amends Minn. Stat. 256.045, subd. 4 with a paragraph (d), and amends Minn. Stat. 626.557, subd. 21, to provide a voice for vulnerable adults in certain appeals In administrative appeal hearings related to maltreatment of a vulnerable adult, the human services referee or the administrative law judge must provide notice of the hearing to the vulnerable adult who is the subject of the maltreatment and, if known, the guardian or health care agent of that vulnerable adult.
County Adult Protective Services Multidisciplinary Teams Minn. Stat. 626.5571, subd. 1 is amended to add representatives from local tribal governments to the entities that may be part of a multidisciplinary adult protection team. Currently, roughly 75% of MN counties have multidisciplinary teams (social services, county attorney, sheriff, health care)that work on vulnerable adult maltreatment cases. Education and case consultation roles
Ceremonial bill signing December 2011
Consensus elusive on one issue (1995-2012) Until 2012, even the most serious neglect could not be charged as a felony Health care provider concerns broadly felt by institutions and direct care workers Leadership ultimately had to come from advocates and lawmakers Culminated with legislation that was jointly supported by advocates, law enforcement, direct care workers and health care providers Added a felony-level penalty and affirmative defenses to the crime of neglecting a vulnerable adult
Cases in point Egregious cases of abandonment and purposeful deprivation of needed care and services over a sustained period of time Severe bodily injury/harm as a result of abandonment or deprivation, sometimes even death Intentional, willful acts by others Note: Self-neglect is a big problem, but one that is apart from the criminal code.
NOT the cases in point Cases involving accidents Cases involving family members who may have made a mistake, are floundering, and/or in need of social services Cases which involve the triaging of care within facility-based settings
Felony deprivation A new definition for a new felony Penalty may apply to individual caregivers, people in charge, operators, corporate entities depending on the situation Deprivation means intentionally depriving a vulnerable adult of necessary food, clothing, shelter, health care, or supervision when the offender is reasonably able to make the necessary provisions, AND
Felony deprivation the offender knows or has reason to know that the deprivation could likely result in substantial or great bodily harm, or the deprivation occurred over an extended period of time the harm must actually have been suffered
Collaboration and its limits
Six steps to development* Determine vision, mission, and values. Create a results-oriented approach. Build an inclusionary coalition membership. Establish effective leadership. Promote a strong commitment to purpose. Monitor performance. * Source: National Center on Elder Abuse, Administration on Aging Webcast, Elder Justice: Community Collaborations, September 25, 2009
Staying on (a) track Initial purpose: strengthening MN laws to protect vulnerable adults with a legislative initiative in 2009 Regular broad stakeholder groups and smaller topical working groups with specific charges Consensus based decision-making Consensus in the VAJP means no objection, different from unanimous consent. State legislative calendar establishes some of the deadlines.
Diverse stakeholder roster Public advocacy organizations Elder and disability organizations Health care providers Labor unions Guardians and conservators County adult protective services City and county prosecutors, attorney general Law enforcement Elder lawyers, Provider lawyers State Depts: Health, Human Services
Inclusive, but not complete Professional organizations and sensitivities Nurses Physicians Disability advocates Periodic submarines e.g. data privacy advocates Other allied coalitions Minnesota Coalition Against Sexual Assault, Minnesota Coalition for Battered Women
Leadership and support Role of the Center for Elder Justice and Policy Coordinator Adjunct faculty Committee chairs - Volunteers Law student interns research, keeping and distributing minutes, maintaining website Establishing trust Accepting limitations
Commitment counts Commitment to regular meetings Commitment to sharing the work Commitment to reaching decisions Commitment to respectful debate Commitment to acknowledging and correcting errors The luck factor: longevity of many stakeholders
Are we there yet? Meaningful deadlines Written record www.vajp.org Reaching the passage of legislative priorities Working to measure system outcomes Attendance is growing with newly interested people from many disciplines.
Continuing challenges Attaining and maintaining purpose and focus Inclusivity without losing purpose and focus Common ground that means more than lowest common denominator Informality (despite the rigor) unincorporated, no by-laws, budget or formal operating protocols Resources and sustainability
Don t just monitor performance. Celebrate it!
Looking to the future VAJP current working groups Research and policy analysis that may lead to changes in law Reporting and data continue work on single hotline Definitions no imminent proposals Power of attorney amend statutory short form Criminal code aggregation and venue Service needs non-legislative work (shelter) Broader-scale efforts Public awareness and media (WEAAD and other) Professional training initiatives
Contact information Iris C. Freeman, MSW, Adjunct Professor Center for Elder Justice and Policy http://www.wmitchell.edu/cejp/elderjustice/ William Mitchell College of Law 875 Summit Avenue St. Paul, MN 55105 Direct: 612.834.4747 iris.freeman@wmitchell.edu