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Mandatory Reporting of Nursing Home Abuse
Over 1.5 million elderly and dependent adults now live in nursing homes throughout the United States. Loved ones are often placed in long-term care facilities in order to ensure their proper care, but sometimes the opposite occurs. Although many nursing homes provide good care, unfortunately, some subject vulnerable residents to needless suffering and, in the most severe cases, even death.
Mandatory reporting of nursing home resident mistreatment is one of the regulations used to curb this widespread abuse. Mandatory reporting laws exist in most states, but the particulars vary by state. For instance, what types of professionals and other individuals who must report under the law varies by state, and the extent of the knowledge triggering the duty to report also varies. Some statutes call for reporting upon "reasonable cause to believe" or a "reasonable suspicion," while other laws require that the reporter "know or suspect," which suggests a higher degree of awareness.
All states with elder-abuse reporting laws, however, require reports of elder abuse to be made to some type of law enforcement authority or central reporting agency. Reporting to a family member will not satisfy the reporter's legal duty under the statutes.
Penalties and Immunities for Elder Abuse Reports
The failure to report suspected elder abuse can, in some cases; result in criminal liability, although the violation is usually considered a misdemeanor punishable only by a fine. Failure to report can also result in civil liability. However, most state laws provide that reporters are immune from liability for any good faith reporting of abuse or neglect. Accordingly, when in doubt, it may be prudent to make a report rather than to fail to do so and be subject to potential civil and criminal liability. Intentional false reporting, however, is not shielded by the immunity laws.
Privileged Communications Regarding Elder Abuse
Some state statutes expressly provide that certain confidential privileges, such as the doctor-patient privilege, be superseded by the duty to report, although there may be an exception for clergypersons who receive information about the abuse in the context of a sacred communication or confession. The clergy-penitent exception is strictly defined, however, and will not apply if a clergyperson is acting in another role at the time he or she learns of the abuse. Some reporting requirements relating to the clergy have changed in the wake of the sex abuse scandal in the Catholic Church, but these changes primarily relate to mandatory reporting of child abuse, rather than elder abuse.
In addition, attorneys are prohibited by ethical constraints from reporting elder abuse when the information is obtained via an attorney-client communication and from a perpetrator or other responsible party who may be exposed to criminal or civil liability. No statute can erode the attorney-client privilege in the context of the defense of a person accused of a crime, because such a prohibition would violate the accused person's constitutional right to counsel. When attorneys represent children or adults in other settings, however, competing considerations may make reporting permissible, or even mandatory.
Conclusion
If you suspect or have witnessed the abuse of a nursing home resident and have questions about your duty to report, contact an attorney experienced in elder law to determine your rights and responsibilities.
Table: Mandatory Reporting of Nursing Home Abuse
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Mandatory Reporting of Nursing Home Abuse
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