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Legally Speaking


Issue: December, 2007
Author: Pamela J. Murphy, B.A., J.D.

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Elder Abuse: Where We Stand

A few years ago while at a huge chain “everything” store in my small, rural community in Kentucky, not far from my urban hometown of Louisville, I stopped in my tracks and looked…no, make that listened… to my immediate surroundings. It was late at night, when I like to go to shop without the ceaseless begging from my children. Men and women around me were stocking shelves and there were a remarkable number of parents with children there. An announcement came over the public address system and I recognized only a few of the words spoken. The announcement was spoken in Spanish and followed by an English interpretation. There was a reason for that: most of the customers in the store that night spoke Spanish as their first language.

Now mind you, I make no statements about immigration, border policies, or even what should be the “official” language of the United States of America. I was simply stunned that in my little community, I was surrounded by more people who did not speak English than by people who did. When I asked a stocker where a certain item could be located, she looked at me, shook her head and said “I don’t speak…” She looked pained as her words trailed off, and in my usual mother-of-the-world way I patted her arm, smiled reassuringly and said “That’s okay.”

Having worked for several years with the frail elderly and in regulating those who provide health care all across our Commonwealth, it didn’t take long (minutes, actually) for me to begin to wonder how this same scenario might have played out for a person whose physical or mental health had started to slip, for whom the importance of answering the simple question I asked was not a convenience, but a real necessity. I began to realize how many people might not have been able to so easily brush aside the inability to communicate, especially where reliance becomes a matter of survival.

Demographics of Aging
Perhaps for many readers, this article will not resonate as strongly or as personally as it will for those of us whose journey through life has been given the title “Baby Boomers.” Because so many of us were born between 1946 and 1965, a demographic “bubble” was created. For most of our lives, we have been the majority of the citizenry of the United States. Elementary schools were built to accommodate our migration from the home care many of us received. This same need followed our progress through middle and high schools. We hit the workforce hard and have been major, if not majority contributors to the Social Security system that supports the seniors of today. As we begin to reach senior status ourselves, a hot topic is whether Social Security will be solvent or even existent when we need it. I do not know the answer to that question, but I do know this: as a result of our sheer numbers and improvement in geriatric medicine, more of us will live to be seniors of 80, 90, or 100 years of age than ever before. This demographic phenomenon has been referred to as “The Graying of America” which inevitably leads to the question of where we stand in preparation for our twilight lives.

Reduction in the Number of People Available to Care for Us
The Baby Boomer moniker obviously leads to the conclusion that the generations behind it will be smaller. With that realization come many questions. Will there be a sufficient number of contributors to keep Social Security afloat? Will Medicare offer adequate medical care for seniors to access the advances in geriatric medicine being developed today? Will there be enough hospital, rehabilitation, long term care and home health care space and services for us? What social services resources will be available to assist us and to alert others to our need for help if we have no one else to do so? Those of us who have any involvement with the long term care industry know that staffing in many facilities is already woefully inadequate. With the health care industry’s current problem of inadequate staffing, a problem we cannot seem to overcome, what will be the plight of Baby Boomers when we ultimately need some or all of these services?

Level of Progress in Preparation
These questions are not new to people who work in the health care and social services professions. The simple fact is that in America we are not prepared to deal with the huge number of Baby Boomers who will require access to a myriad of services. We have heard for years that there is already a shortage of nurses. There will be a concomitant workforce shortage for nurse and home health aides. Studies have also predicted a shortage in the number of social workers, who are often the first responders to many allegations of mistreatment.

Is Help on the Way?
Gerontologists and allied professionals have long been studying the Graying of America and its impact on Baby Boomers. The past few years have seen a surge in awareness of projected needs, but turning awareness into action will require responses on many fronts, including, but not limited to, state and local governments, universities, community colleges, technical schools and philanthropic entities. Strong laws must be enacted with funding allocations sufficient to ensure their full implementation and consistently vigorous enforcement. Anything less will be a proverbial toothless tiger.

People who have worked with the federal government are usually aware of the snail’s pace at which it moves. However, when Congress truly wants to bring about change, it manages to do so very effectively by attaching financial incentives or disincentives to the desired action. Any legislation with an impact on vulnerable adults, seniors, or the elderly should be carefully analyzed and, as appropriate, supported or fought by individuals and interest groups.

If Your State Could Do One Thing
The single most important goal of state governments should be to educate the public so that every citizen, from the age of reason forward, will realize this problem is a real one that must be treated seriously. Before the eras of public education on crimes of child abuse and domestic violence, little intervention of any kind occurred when these crimes were committed. Bringing about true change required sustained efforts so that Americans came to expect and demand that allegations would be taken seriously and perpetrators would be held accountable. At a minimum, that same level of public saturation is required in dealing with crimes against vulnerable adults. It could easily be argued that even more vigilance is required for possible crimes against elders due to their often extended periods of total isolation from the general public.

If Your State Could Do One More Thing: Mandatory Reporting
This recommendation receives “one more thing” status because most states now require a mandatory reporting of crimes against the elderly, and most have extended this protection to vulnerable adults of any age. Anecdotal evidence suggests that most states’ reporting laws are “weak” in that failure to report either carries no penalty or the penalty is rarely enforced. These concerns should be reviewed by every state and addressed as appropriate. Penalties must be enforced uniformly. All crimes against the elderly, including those for failure to report, should be placed in states’ Penal Codes where law enforcement officers and prosecutors will be more aware of them and, as a result, will be more likely to utilize them.

State legislatures should be pressed to provide felony penalties for crimes against any vulnerable population, including the elderly. They should also require that statewide data be kept and periodically reported to them to keep them apprised of any need for the laws’ revision. If at all possible, dedicated prosecution teams should be put into place to encourage the development of subject-matter expertise.

If You Could Do One Thing for Yourself
Become bi-lingual or multi-lingual now. Not only will these skills help to stave off dementia, you will be much better prepared to communicate meaningfully with those who will be providing the many services, including health care, needed as you age.

Pamela J. Murphy received her B.A. from the University of Louisville in 1981. In 1984 she received her J.D. from U of L’s Brandeis School of Law. She is currently employed by the Kentucky Attorney General where she is the director of the Medicaid Fraud and Abuse Control Division. This article reflects her opinions which are not necessarily those of the Attorney General or the Attorney General’s Office.

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