Nursing Home Abuse Laws

National, state and tribal laws are all in place to help protect elders from abuse in nursing homes or at home. These laws vary in scope, definition, and practice, but every single one has been created to ensure elders are always respected and treated with care.

National Laws

A number of significant national laws have been enacted in the U.S. to ensure each and every American is treated with dignity and respect, regardless of their age. The five major laws that intend to protect the elderly from nursing home abuse are:

  • Elder Justice Act
  • Elder Abuse Victims Act (Pending)
  • The Older Americans Act
  • Violence Against Women Act
  • No-Fear Act

Elder Justice Act

The Elder Justice Act is an important law that allocated more funding and resources towards preventing and prosecuting instances of elder abuse. It developed the new Elder Abuse Coordinating Council, comprised of various agencies and departments, as well as an Elder Abuse, Neglect, and Exploitation advisory board with 27 non-government experts.

Perhaps of more importance, the Elder Justice Act also requires all nursing home staff to report any suspected abuses, helping to protect their residents. In addition, nursing homes must provide 60 days written notice to their respective state and the HHS Secretary prior to any permanent closures.

Because prosecution of elder abuse is also an ongoing problem for Americans, the Elder Justice Act allocates resources specifically to improving practices and bringing justice to abusers. The Elder Justice Act also included the creation of a national database for employee background checks, ensuring employers can make smart hiring decisions.

The Elder Justice Act was signed into law in 2010 as one part of Obama’s Patient Protection and Affordable Care Act. However, Donald Trump’s campaign has promised to repeal the Affordable Care Act which could threaten the Elder Justice Act.

Elder Abuse Victims Act (Pending)

The Elder Abuse Victims Act was originally part of the Elder Justice Act but was removed. This act would permit funding to train numerous levels of law enforcement, including prosecutors, in elder abuse specific matters. It also proposes the creation of the Elder Services Victim Grant project, which would develop new emergency services for elders who have been abused.

The Older Americans Act

This particular act, first signed in 1965 and amended in 2006, helps define elder abuse and allocates federal funds to the National Center of Elder Abuse and other awareness activities. In turn, the NCEA has partnered with universities and organizations to increase awareness of elder abuse.

Past partners of the NCEA have included:

  • National Adult Protective Services Association
  • National Committee for the Prevention of Elder Abuse
  • Center of Excellence on Elder Abuse & Neglect – University of California Irvine
  • Center for Rural Health: Native Indigenous Elder Justice Initiative – University of North Dakota
  • Clearinghouse on Abuse and Neglect of the Elderly (CANE) – University of Delaware

In addition, the Older Americans Act provides programs to nearly 20,000 service providers, 56 state agencies, 629 area agencies, and 244 tribal organizations. Through a variety of grants and initiatives, the Older Americans Act ensures elderly individuals are always treated with respect, care, and dignity. The act promotes awareness of elder abuse as an issue and helps develop resources for victims and their loved ones.

While the Older Americans Act is an important piece of legislature in driving awareness of elder abuse, the act has been criticized for its lack of funding for shelters and other potentially protective services.

Violence Against Women Act

Passed in 2013, the Violence Against Women Act allocates $9,000,000 per year to programs for women over the age of 50. The focus of these grants can be used to improve on elder abuse victim services, elder abuse prosecution training programs, multidisciplinary community response for victims, or cross-training for organizations with elder abuse victims. The focus of the Violence Against Women Act is on domestic abuse cases, particularly those that cross state, tribal or federal boundaries.

No-Fear Act

The No-Fear Act protects whistleblowers, allowing individuals to report instances of elder abuse in nursing homes without discrimination or repercussion in the workplace. The No Fear Act helps ensure equal opportunity for these individuals in regards to future employment, promotions, and raises. The No-Fear Act is an important act for victims of elder abuse, as it allows witnesses to come forward when they would otherwise be too afraid to do so.

Affordable Childcare and Eldercare Act (In Development)

Although in its infancy, Donald Trump’s “100 Day Plan To Make America Great Again” commits to allow “Americans to deduct childcare and elder care from their taxes…and creates tax-free Dependent Care Savings Accounts for both young and elderly dependents, with matching contributions for low-income families.” It’s still unclear what this plan will involve and whether it will ever come to fruition, but it is a positive sign that financially supporting elder care issues is on the President-Elect’s radar.

State Laws & Statutes

Individual states also have their own laws and statutes that help protect older citizens and prevent elder abuse in nursing homes. Many states allow both social service organizations and law enforcement agencies to investigate and assist with allegations of elder abuse.

Adult Protective Services or Elder Protective Services statutes can be found in all states, helping ensure at least a base level of elder protection exists. Some states have multiple laws and statutes, and the level of elder abuse support, therefore, varies by state. The APS statutes themselves also vary greatly, with different definitions of abuse, recognized types of abuse, investigation expectations, and abuse remedies. Unfortunately, these statutes are often grouped with laws for disabled adults in general and don’t necessarily address elder abuse specifically.

A Long-Term Care Ombudsman Program statute also exists in all states, ensuring quality of care in nursing homes and long-term care facilities. The Ombudsman directly protects the rights and safety of elders by investigating abuse complaints and holding all facilities responsible for their actions.

Institutional Abuse Laws also exist in several states and have been developed specifically for elders abused in nursing homes and other care facilities. For states with institutional abuse laws, the APS will investigate elder abuse cases under these separate laws and statutes.

Criminal Laws have also been created in numerous individual states to define clear and more specific punishments for elder abuse. In addition to these elder-abuse specific criminal laws, general criminal laws can also overlap with elder abuse, including assault and battery, rape, fraud, theft, and murder. This gives state law enforcement a wider range of criminal law to use in the prosecution of all forms of elder abuse.

Mandatory Reporting Laws also exist in all states, with the exception of New York, requiring individuals to report instances of abuse in nursing homes. Similar to federal laws, these state laws ensure nursing homes are held accountable for any abuses that occur within their facilities.

Because each state has its own laws, systems, and methods to help elder abuse victims, the amount of information can be overwhelming to those who aren’t familiar with the legal side of elder abuse. The easiest way to get started is to contact the APS, the long-term care ombudsman, or your local elder protection agency to find out which laws might apply to you.

Other Jurisdictional Laws

The National Indigenous Elder Justice Initiative is a set of laws that protect Native Americans specifically, in conjunction with their sovereign status. Each band has its own set of codes to abide by, which are enforced by the NIEJI. The NIEJI is funded by the Administration for Community Living, a division of the U.S. Department of Health and Human Services.

References:

  1. http://www.eldersandcourts.org/elder-abuse/basics/elder-abuse-laws.aspx
  2. http://www.hhs.gov/about/agencies/asa/eeo/resources/no-fear-act/index.html
  3. http://www.aoa.acl.gov/AoA_Programs/OAA/Introduction.aspx
  4. http://www.alfa.org/News/3039/Elder-Abuse-Provisions-Included-in-Violence-Against-Women-Act
  5. http://www.americanbar.org/content/dam/aba/administrative/law_aging/explanation_for_APS_IA_LTCOP_citations_chart.authcheckdam.pdf
  6. https://www.justice.gov/elderjustice/elder-justice-statutes-0
  7. https://www.donaldjtrump.com/positions/healthcare-reform
  8. http://www.npr.org/2016/11/09/501451368/here-is-what-donald-trump-wants-to-do-in-his-first-100-days