DLTC Memo Series 2008-06
Date: April 8, 2008
To: Listserv
Area Administrators/Human Services Area Coordinators
County Departments of Community Programs Directors
County Departments of Developmental Disabilities Services Directors
County Departments of Human Services Directors
County Departments of Social Services Directors
Area Agencies on Aging Executive Directors
Board on Aging and Long Term Care
County COP Coordinators
County Waiver Coordinators
County/Tribal Aging Unit Directors
Developmental Disabilities Coordinators
Long Term Support Coordinators
Lead Elder Adults/Adults-at-Risk Agency Contacts
BMHSAS Bureau Director
DLTC Bureau Directors
DLTC Facility Directors
From: Sinikka Santala, Administrator
Division of Long Term Care
John Easterday, Administrator
Division of Mental Health and Substance Abuse Services
Subject: Elder Adults/Adults-at-Risk Required Reporters under
Wisconsin Act 388
Document Summary
This memo provides direction to individuals defined as required
reporters under Wisconsin Act 388. To ensure that individuals defined as
required reporters under the new Act understand their responsibility to
report incidents involving elder adults/adults-at-risk, this memo contains
important clarification regarding required reporters, reporting
guidelines, immunity provisions and the role of the elder
adults/adults-at-risk agency.
Attached is an accompanying document that provides additional technical
assistance on the reporting requirements and factors to consider before
making a report.
INTRODUCTION
Effective December 1, 2006, Wisconsin Act 388 revised the reporting of,
and responses to, abuse, neglect and exploitation of adults-at-risk
(vulnerable adults age 18 and older) including elder adults-at-risk (age
60 and up). The 2005 Wisconsin Act 388 reporting requirements discussed in
this memorandum apply to both "adults-at-risk" and "elder
adults-at-risk." For ease of reference, "elder
adults/adults-at-risk" will be used to refer to both populations
throughout. The Department of Health and Family Services will collaborate
with the Department of Regulation and Licensing to inform professionals
who are impacted by the law of their reporting requirements. See http://www.legis.state.wi.us/2005/data/acts/05Act388.pdf.
REQUIRED REPORTERS
State statutes at 46.90(4)(ab)1. and 55.043(1m)(a)1. require that the
following persons file reports:
- An employee of an entity regulated by DHS
, such as nursing homes
and community-based residential facilities (See OQA Memo # 06-028,
November, 2006 available at http://www.dhs.wisconsin.gov/rl_DSL/Publications/06-028.htm
for additional information regarding entity employee reporting
requirements under 2005 Wisconsin Act 388). There is no specific list
of covered providers, but this should include at least the direct-care
entities covered by the caregiver misconduct system.
- A health care provider as defined in s.155.01(7), which includes
nurses, chiropractors, dentists, physicians, physician assistants,
perfusionists, podiatrists, physical therapists, physical therapist
assistants, occupational therapists, occupational therapist
assistants, optometrists, and psychologists.
- A social worker, professional counselor, or marriage and family
therapist certified under Ch. 457.
These individuals must report allegations of abuse, financial
exploitation, neglect or self-neglect if the elder adult/adult-at-risk is
seen in the course of the person's professional duties and one of the
following conditions is true:
- The elder adult/adult-at-risk has requested the person to make the
report. Any professional must make a report if they are asked to do
so.
- There is reasonable cause to believe that the elder
adult/adult-at-risk is at imminent risk of serious bodily harm, death,
sexual assault, or significant property loss and is unable to make an
informed judgment about whether to report the risk. This second
condition requires a concern about future serious risk; it is not
applicable to situations that involve past incidents only.
- Other elder adults/adults-at-risk at risk of serious bodily harm,
death, sexual assault, or significant property loss inflicted by the
suspected perpetrator. This third condition applies to reporting past
abuse perpetrated on an elder adult/adult-at-risk only if there is a
possibility of harm to others. For example, say a specialized
transportations van driver allegedly sexually assaults a client. Once
any of the listed professionals are aware of the situation, they must
report the allegation because even if the client no longer uses the
transportation service, other elder adults/adults-at-risk most likely
would be riding with that van driver in the future.
Not reporting is allowed in two instances:
- If the professional believes that filing the report would not be in
the best interest of the elder adult/adult-at-risk and the
professional documents the reasons for this belief in the suspected
victim's case file.
- If a health care provider provides treatment by spiritual means
through prayer for healing in lieu of medical care in accordance with
his or her religious tradition, and his or her communications with
patients are required by his or her religious denomination to be held
confidential.
IMMUNITY PROVISION
Due to the increased reporting provisions, the law enhances protections
for good-faith reporters of incidents involving elder
adults/adults-at-risk. Immunity provisions apply to all reporters,
including situations when a report is filed with an incorrect agency, if
the reporter had a good-faith belief that the initial report was filed
appropriately under s. 46.90(4)(c).
To ensure immunity, a report must be made directly to the county elder
adults/adults-at-risk agency, state or local law enforcement agency, the
Board on Aging and Long-Term Care or the Department of Health and Family
Services (DHS
). The new law creates a rebuttable presumption that any
discharge or act of retaliation or discrimination taken against a reporter
within 120 days of making the report is considered retaliatory. The
penalty for retaliating against a reporter is increased to $10,000 under
s. 46.90(9)(d).
LAW ENFORCEMENT CONTACT
Immediately upon learning of an incident, a required reporter should take
the necessary steps to protect the elder adult/adult-at-risk from possible
further incidents of abuse, neglect and/or exploitation. The reporter is
encouraged to notify local law enforcement authorities of any situation
where there is a potential criminal offense.
ROLE OF THE ELDER ADULTS/ADULTS-AT-RISK AGENCY
By statute, elder adults/adults-at-risk agencies are charged with
determining and addressing the protective service needs of elder
adult/adult-at-risk. While external agencies may also respond and/or
conduct an investigation, their primary emphasis will not be on protective
service need identification and service provision.
For instance, to the extent that a crime may have been committed, state
and/or local law enforcement agencies may conduct a criminal investigation
of the alleged perpetrator. If the abuse involved a DHS
regulated entity,
resulting DHS
investigation would be approached from a regulatory
perspective, focusing on the entity's licensing requirements. To the
extent that a non-credentialed or credentialed caregiver may have been
involved, the Division of Quality Assurance (DQA) Office of Caregiver
Quality or the Department of Regulation and Licensing may conduct a
caregiver misconduct investigation of the alleged perpetrator to assess
potential violations of licensure or certification requirements. Again,
the elder adults/adults-at-risk agency would respond from a protective
services perspective.
One or more of these different responses and/or investigations (or,
these different components of the same incident) could proceed
concurrently on a single case, requiring coordination and cooperation
among the representatives of each agency, including the elder
adults/adults-at-risk agency. Given the unique nature of its role, the
appropriate local elder adults/adults-at-risk agency will be informed
whenever the Department of Health and Family Services receives a report of
abuse, financial exploitation, neglect and/or self-neglect (as defined in
s. 46.90 and Chapter 55) concerning an adult-at-risk, including an elder
adult-at-risk.
TECHNICAL ASSISTANCE
Attached is a SafetyNetWorks document that provides technical assistance
on the reporting requirements and factors to consider before making a
report. "SafetyNetWorks" is a Division of Long Term Care
sponsored adults-at-risk information memo series, which will outline best
practice and provide technical assistance. If you would like to
automatically receive an electronic notification of every memo posted to
the SafetyNetWorks site, please email StopAbuse@wisconsin.gov
and in the subject line insert "SafetyNetWorks Auto Info."
Information on how to enroll will be emailed to you shortly. To learn more
about the rules and regulations governing reporting incidents of caregiver
misconduct, see the Division of Quality Assurance web page http://www.dhs.wisconsin.gov/caregiver/INDEX.HTM
QUESTIONS
For issues involving caregiver misconduct or when an elder
adult/adult-at-risk is a client of a DHS
regulated entity and the
perpetrator is a caregiver or non-client resident, contact the Office of
Caregiver Quality (OCQ) at caregiver_intake@wisconsin.gov
or (608) 261-8319. If you have questions concerning the appropriate role
of an (elder) adults-at-risk agency in responding to reports involving an
entity, contact StopAbuse@wisconsin.gov
.
REGIONAL OFFICE CONTACT:
Human Services Area Coordinators, DES
CENTRAL OFFICE CONTACT:
Jane Raymond
Bureau of Aging and Disability Resources
Division of Long Term Care
1 W. Wilson Street, Room 450
Madison, WI 53702
(608) 266-2568
email: raymoja@wisconsin.gov
MEMO WEB SITE: http://www.dhs.wisconsin.gov/dsl_info/NumberedMemos/NMemos_index.htm
ATTACHMENT:
Attachment 1: SafetyNetWorks
cc: Certified Mental Health and AODA Programs
Community Based Residential Facilities
Facilities for the Developmentally Disabled
Home Health Agencies
Hospices
Hospitals
Licensed Adult Family Homes
Local Health Departments/Health Officers
Nurse Aide Training Programs
Nursing Homes
Residential Care Apartment Complexes
Rural Health Clinics
Division of Quality Assurance Regional Field Operation Directors
Tribal Chairperson/Human Services Facilitators
Licensing Chiefs/ Section Chiefs
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