In March 2010, Congress enacted the Elder Justice Act (“EJA”). The EJA was intended to address weaknesses in federal and state laws that protect the abuse and neglect of the elderly, including residents of nursing homes and other facilities. Largely, the EJA creates new funding for the protection of the elderly, and establishes heightened standards for the reporting of crimes that take place in long-term care facilities.
Arizona has long had elder abuse statutes in force. A.R.S. § 46-451, et seq., outlines the duties owed to the elderly by those who provide care or are in a position of trust and confidence to an elderly person. Although the Arizona statutes provide defined standards for the protection of the elderly, the EJA marks a monumental change in elder abuse law because it significantly heightens the standards for caretakers and their duties to report elder abuse.
For example, under Arizona law, only medical professionals, social workers, peace officers, or persons directly responsible for the care of an elderly person have a duty to report a suspicion of elder abuse. Such suspicion must be reported within 48 hours or the next business day if the 48 hours expires on a weekend or holiday. Under the EJA, all “covered individuals” must report reasonable suspicions of crimes against elderly persons in long-term care facilities. “Covered individuals” include all owners, operators, employees, agents, and contractors of those facilities. Reports must be made to both local law enforcement agencies and the Department of Health and Human Services within 2 hours of forming the suspicion if the suspected crime causes serious bodily injury to the resident, and within 24 hours in all other cases.
Furthermore, the EJA greatly broadens the scope of acts that must be reported to authorities and the penalties associated with violations of the EJA. Arizona law provides that only suspected “abuse” must be reported. “Abuse” includes intentional infliction of physical harm, injury caused by neglect, unreasonable confinement, and sexual assault. If a person violates the Arizona statutes, they face actual damages plus an additional award of two times the actual damage amount. By contrast, the EJA requires the reporting of all suspected “crimes” against the elderly. This includes any and all possible crimes, and does not exclude acts that take place outside of the facility. The EJA provides strict penalties for the failure to report—up to $300,000 in civil fines and exclusion from participation in federal health care programs.
The EJA’s heightened requirements open up new avenues for the prosecution of elder abuse. At the same time, the EJA leaves important questions unanswered. For example, it is unclear how far the courts will go in enforcing the EJA for the failure to report suspected crimes that are outside the traditional scope of elder abuse statutes. It is also unclear what constitutes a “reasonable suspicion” that must be reported. What is clear, however, is that victims of elder abuse and their families have important added protections and options for recourse against abusers. For more information about the EJA or Arizona elder abuse statutes, contact Titus Brueckner & Levine PLC.