Louisiana Elder Law Basics For Care Providers

District Attorney Walter Reed

22nd Judicial District

St. Tammany and Washington Parishes, Louisiana

Louisiana Elder Law Basics For Care Providers

Presented by:

Harold S. Bartholomew, Jr.

Elder Abuse Protection Unit Supervisor,

22nd Judicial District,

St. Tammany and Washington Parishes

Percent of Total Population Age 65 and Over:1900 to 2000

Source: U.S. Census Bureau, decennial census 1900 to 2000

A growing % of population

Source: U.S. Census Bureau

Growing Numbers

Source: U.S. Census Bureau.

$

Source: U.S. Census

Elder Protection Laws in Louisiana

• A special agency to investigate – Elderly Protective Services

• Mandatory Reporting of abuse

• Special financial abuse laws for the protection of the infirm

Elder Abuse is a Crime

• Louisiana law protects adults aged 60 or older from acts or omissions which result in physical or emotional abuse and neglect, inflicted by caregivers and from self-neglect by an individual.  Louisiana law also protects seniors from acts of financial exploitation and extortion.

Financial extortion or exploitation,

• such as theft or misuse of

• money,

• property or

• possessions of the elder.

Exploitation of the infirmed is:

• (1)  The intentional expenditure, diminution, or use by any person, including a caregiver, of the property or assets of the infirmed, a disabled adult, or an aged person, … without the express voluntary consent of the resident or the consent of a legally authorized representative of an incompetent resident, or by means of fraudulent conduct, practices, or representations.

Exploitation of the infirmed is:

• (2)  The use of an infirmed person's, or aged person's, or disabled adult's power of attorney or guardianship for one's own profit or advantage by means of fraudulent conduct, practices, or representations. La. R.S. 14:93.4

Mandatory Reporting• La. R.S. 15:1504 requires reporting of abuse by ANY

PERSON “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.”

• Failure to report is punishable by up to six months imprisonment and/or a five-hundred dollar fine. R.S. 14:403.2.

Who do I call?

• R.S. 15:1505.  Contents of report and agency to receive report

• Report shall be made to any adult protection agency or to any local or state law enforcement agency.

• Need not name the persons suspected• Contain, name and address of the adult, the

name and address of the person responsible for the care of the adult, if available, and any other pertinent information.

To Contact EPS

• Hammond Region: Livingston, St. Helena, St. Tammany, Tangipahoa, Washington

• Phone: (985) 543-4036• Toll-Free : (800) 533-1297 • Fax: (985) 543-4038• State office Hotline: 800-259-4990• http://goea.louisiana.gov/eps.htm

• The Office of Aging and Adult Services (OAAS), Adult Protective Services (APS) DHH as the agency responsible for carrying out the mandate of 14:403.2 with regard to adults with disabilities ages 18-59

• (225) 342-9057 or (800) 898-4910 

• Fax (225) 342-9069• http://www.dhh.state.la.us/offices/Default.asp?ID=95&Print=1

• R.S. 15:1507.  Investigation of reports, assessment, actions taken, and court orders

• Elderly Protective Services or Dept. Health & Hospitals (fact dependent) shall investigate

• Face to face interview with adult• Access to any records or documents, including

client-identifying information and medical, psychological, criminal or financial records necessary…

• Agency is exempt from payment of fees for records

Mandatory Reporting Licensed Health Care Providers

• R.S. 40:2009.20. 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. ….

• (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.

• 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. 40:2009.20.

• *Older than R.S. 15:1504.

Individual Duty

• While hospitals, and health care related companies may have reporting mechanisms in place

• Mandatory reporting applies to

• INDIVIDUALS

• Reporting to the company does not absolve the individual of responsibility

Administrators and Physicians

• Potential Civil Liability

• Potential Criminal Liability

• Negligence

A duty to inform: delay reporting allegations of child or elder abuse even—for internal investigations—and you could land in jail - Safety & Security Agenda, HR Magazine, September 2003, Diane Cadrain

The importance of reporting mistreatment of the elderlyAmerican Family Physician, March 1, 2007 by Lisa M. Gibbs, Laura Mosqueda

Immunity

• 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,”

• “shall have immunity from civil or criminal liability that otherwise might be incurred or imposed. …” R.S. 15:1504

Multiple criminal statutes apply specifically to elderly victims

• 14:35.2 Simple battery of the infirm. Minimum 30 days

• 14:42 Aggravated Rape.

Multiple criminal statutes apply specifically to elderly victims

• 14:50.2 Perpetration or attempted perpetration of certain crimes of violence against a victim sixty-five years of age or older. Adds 3 years to maximum, at court’s discretion. .

• 14:67.16 C. (1) (b) Identity theft. If victim 60 years of age or older, minimum goes from 0 years to 2 years.

Multiple criminal statutes apply specifically to elderly victims

• 14:67.21 Theft of assets of aged person,

• 14:93.3 Cruelty to the infirmed,

Multiple criminal statutes apply specifically to elderly victims

• 14:93.4 Exploitation of the infirmed,

• 14:93.5 Sexual battery of the infirm,

•

§61.  Elderly abuse; release of information

• A.(1)  The Department of Health and Hospitals shall, … make available to any health care facility licensed by the department, upon request, the name and a photograph of any such person who has been convicted of or pled guilty or nolo contendere to a crime involving elderly abuse.

A Note on Visitors

• The Elderly Person

• Is Always In Charge

• Of Visitors

• NOT a relative

• NOT a person with Power of Attorney

• Only where Committed or Interdicted does this change

How to report suspected abuse or neglect:

• EPS Statewide Hotline (from within Louisiana only) at 1-(800) 259-4990

• If out-of-state, call 1-(225) 342-9722.

• Call your local law enforcement agency.

• In an emergency call 911.

• Return to main menu

Can I Look Up The Law?

• Yes!

• The Louisiana Legislature web site has a searchable database of current law at: http://www.legis.state.la.us/

END