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Jonathon E. Cohn, Partner, Arent Fox LLP Annie Chang Lee, Associate, Arent Fox LLP

The Broadening Definition of Elder Abuse


By Jonathon E. Cohn
Partner, Arent Fox LLP

By Annie Chang Lee
Associate, Arent Fox LLP

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Original Publish Date: October 11, 2016

In addition to federal regulations affecting healthcare providers, many states, including California, have laws prohibiting the abuse of elderly individuals, as well as dependent adults. While such laws are based on good public policy providing specific protections for those who can be more easily exploited and subject to abuse, legitimate questions arise regarding what conduct actually constitutes abuse. Those who are required to comply with the elder abuse laws or report abuse as mandated reporters, such as caregivers, struggle with the definition of abuse, which is usually not specifically defined in the governing statutes. Despite this, or perhaps because of it, regulators and law enforcement authorities tend to define abuse broadly and can view negligent care as abuse, even if the lack of care does not result in actual physical harm to an individual.

Recent developments at the federal and state levels seem to be continuing the trend toward an expansive definition of elder and dependent adult abuse.

Social Media Posts by Nursing Home Staff

In a memorandum dated August 5, 2016, CMS issued new guidance on the “abuse” of nursing home residents via social media. Effective immediately, CMS instructed state survey agencies that during its next standard survey:

the survey team must request and review nursing home policies and procedures related to prohibiting nursing home staff from taking or using photographs or recordings in any manner that would demean or humiliate a resident. This would include using any type of equipment (e.g., cameras, smart phones, and other electronic devices) to take, keep, or distribute photographs and recordings on social media.

CMS is mandating additional scrutiny due to recent media reports, such as a December 2015 story by ProPublica, that have highlighted instances where nursing home staff took unauthorized photographs or video recordings of nursing home residents, sometimes in compromised positions, which were then posted on social media networks or shared through multimedia messages. The ProPublica story stated it found 35 cases from across the country since 2012 where nursing home or assisted living workers shared photos or videos of residents on social media websites, such as Snapchat, Facebook, and Instagram.

In reaching its interpretation that mental abuse may occur through photographs and videos posted by nursing home staff on social media, CMS relied on Title 42 CFR section 482.13(b), which provides that “[t]he resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.” CMS also relied on Appendix PP to the State Operations Manual, which goes further, providing that “[m]ental abuse includes, but is not limited to, humiliation, harassment, threats of punishment or deprivation.”

CMS’ memorandum targets nursing homes; it remains to be seen whether other institutional healthcare providers will be subject to similar scrutiny.

For the August 2016 CMS memorandum, please refer to: https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-16-33.pdf. For the December 2015 ProPublica story, please refer to: https://www.propublica.org/article/nursing-home-workers-share-explicit-photos-of-residents-on-snapchat.

Selling Securities to the Elderly

Another example of the expansion of what constitutes elder abuse is illustrated by the recent case of Harthshorne, et al. v. MetLife Inc., et al. In this case, a Los Angeles jury found in favor of a retiree who is 75 years old, on four civil counts, including financial elder abuse.

The retiree claimed that in 2008, salesmen affiliated with MetLife sold her promissory notes with “guaranteed” returns as high as 12 percent that were backed by a fund called Diversified Lending Group (“DLG”). The retiree was told that she could use the proceeds from her investments in the notes to cover the premium payments on insurances policies with MetLife. The retiree invested $279,769 in the DLG notes. DLG collapsed just months after her deal, and the retiree sued MetLife. The retiree testified that although she was not a MetLife customer and did not buy its insurance in connection with the DLG deal, she believed the DLG notes were approved by MetLife. The jury issued an award in favor of the retiree and against MetLife and various subsidiaries for $15.6 million in punitive damages.

What This Means for Providers

Actions that can be a basis for an elder abuse cause of action are broadening. As illustrated by the two examples above, elder abuse may lie when giving financial advice to the elderly, or when posting photographs or videos of the elderly on social media. Therefore, all health care providers must exercise extra care in dealings with the elderly population, and should develop policies to address the sharing of information on social media.

Jonathon E. Cohn is a partner in the health care practice of Arent Fox LLP. His practice is devoted to litigation and trial work with an emphasis on health care issues including long-term care, Medicare and Medicaid, fraud and abuse, and reimbursement disputes. Jon represents various long-term and acute care providers in many areas, including licensing, certification, civil and criminal enforcement, reimbursement and collections, and other regulatory and administrative proceedings. He also represents health care professionals in licensure and workers’ compensation proceedings. He can be reached at 213-443-7515 or cohn.jon@arentfox.com.

Annie is an associate in the Los Angeles office, where she is a member of the Health Care Practice Group. She focuses on complex civil litigation cases involving health care reimbursement issues. She represents major health care providers in state and federal civil actions, arbitrations, mediations, and settlement negotiations. She can be reached at annie.lee@arentfox.com

To learn more about Arent Fox LLP visit www.arentfox.com.