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VICARIOUS LIABILITY

Presented by:

Harold S. Bartholomew, Jr.

Assistant District Attorney

22nd Judicial District

Office of Warren Montgomery, District Attorney.

June 26th and 27th, 2017

DISTRICT ATTORNEY WARREN MONTGOMERY

22nd Judicial District

St. Tammany and Washington Parishes, State of Louisiana

DISCLOSURE

• The planners, presenters, and content reviewers of this course

disclose no conflicts of interest.

• Upon signing in on the attendance sheet, attending the course in

its entirety (due to the criticality of the content) and completing

the course evaluation, you will receive a certificate that documents

the continuing nursing education contact hours for this activity.

• The International Association of Forensic Nurses is accredited as a

provider of continuing nursing education by the American Nurses

Credentialing Center’s Commission on Accreditation.

VICARIOUS LIABILITY

• Discuss the civil and criminal liabilities of entities supervisors etc. for the actions of others in Elder Abuse.

• Presented by Harold S. Bartholomew, Jr.

• Each case presents different facts. Small changes in facts can cause substantial changes in outcomes. The opinions expressed by the author will be the opinions of the author and are not the opinion of the Office of The District Attorney.

• This is not intended as legal advice.• Contact your private attorney for legal advice specific to your

circumstances before signing any contract.

VICARIOUS LIABILITY

• What is VICARIOUS LIABILITY?

• Obligation rising from a parties relationship with each other.

Also known as vicarious responsibility.

• Law Dictionary: What is VICARIOUS LIABILITY? definition of

VICARIOUS LIABILITY (Black's Law Dictionary)

• http://thelawdictionary.org/vicarious-liability/

VICARIOUS LIABILITY

• Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties. See respondeat superior

• Under common law, a member of a conspiracy can be held vicariously liable for the crimes of his co-conspirators if the crimes committed by the co-conspirators were foreseeable and if they were committed with the intent of furthering the objective of the conspiracy. See conspiracy

• https://www.law.cornell.edu/wex/vicarious_liability

VICARIOUS LIABILITY

WHAT IS VICARIOUS LIABILITY?

• 12. Vicarious liability means that "a person is liable not because he personally committed a tort but because the law makes him responsible (liable) for the tort (negligent or intentional) of another." Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA TORT LAW, §1-7 (1996). For policy reasons, vicarious liability is legally imposed on a defendant who has "a legally significant relationship with the tortfeasor actor." Id. In Louisiana, the two primary types of vicarious liability recognized are the master for the servant and the parent for the child. Id.

• Citron v. Gentilly Carnival Club, Inc. (La. App. 4 Cir., 2015)

LIABILITY FOR ACTIONS OF OTHERS

• For the purposes of this presentation we shall

discuss traditional vicarious liability and other

theories of being held responsible for the

wrongdoing of others.

• This can be based upon negligence as well as

traditional theories of vicarious liability.

VICARIOUS LIABILITY

• Generally, courts consider four factors when assessing

vicarious liability, including whether the tortious act: (1) was

primarily employment rooted; (2) was reasonably incidental to

performance of employment duties; (3) occurred during

working hours; and (4) occurred on the employer's premises.

• Holt v. Torino, 12-1579 (La.App. 1 Cir. 4/26/13), 117 So.3d 182,

185, writ denied, 13-1161 (La. 8/30/13), 120 So.3d 267. See

LeBrane v. Lewis, 292 So.2d 216, 217-18 (La. 1974). Townsend

v. Davis, 2013 CA 1932 (La. App. 1 Cir., 04/15/2015)

VICARIOUS LIABILITY

• It is not necessary that each factor be present in each case, and each case must be decided on its own merits. The determinative question is whether the employee's tortious conduct was so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer's business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer's interest. Holt, 117 So.3d at 185.

VICARIOUS LIABILITY

• If the purpose of serving the master's business

actuates the servant to any appreciable extent, the

master is subject to liability if the act is otherwise within

the service. The scope of risk attributable to an employer

increases with the amount of authority and freedom of

action granted to the servant in performing his assigned

tasks. Richard v. Hall, 03-1488 (La. 4/23/04), 874 So.2d

131, 138-39; Ellender v. Neff Rental, Inc., 06-2005

(La.App. 1 Cir. 6/15/07), 965 So.2d 898, 901-02.

LIABILITY FOR ACTIONS OF OTHERS

• Civil?

• Criminal?

• Administrative?

• “Liability for neglect may have civil, criminal, and administrative consequences.”

• Pg. 14, Neglect of Older Persons: An Introduction to Legal Issues Related to Caregiver Duty and Liability, Copyright © American Bar Association Commission on Law and Aging (2007).

JUST GOOGLE IT

SOME FOUNDATIONS OF LIABILITY

• “This paper has focused on two legal issues related to neglect of older persons:

• (1) whether there is a duty to care for an older person and

• (2) whether such a duty has been breached. An affirmative duty to care for an older person arises only in certain situations. These situations are:

• 1. when there is a contract for care;

• 2. when a statute establishes a duty to care for an older person; or

• 3. when the nature or circumstances of a relationship demonstrate that one person is a caregiver for another. “

• Neglect of Older Persons: An Introduction to Legal Issues Related to Caregiver Duty and Liability, 2007, at pg. 13-14.

• https://ncea.acl.gov/resources/docs/archive/Neglect-of-Older-Persons.pdf

DISCUSSION OF DUTY OF CARE ARISING

• What might make a Duty of Care Arise?

• Take 30 seconds to write an idea down.

DISCUSSION OF DUTY OF CARE ARISING

• What might make a Duty of Care Arise?

• Contract?

• Nursing Home?

• LTAC?

• Voluntary assumption of caregiver role?

• Can you just walk away?

• Power of Attorney?

• Elements of contract, voluntary and compensated?

• Relationship and Duty?

• Banks?

SOME LOUISIANA EXAMPLES

LA. C.C. ART. 2320. ACTS OF SERVANTS, STUDENTS OR

APPRENTICES• Masters and employers are answerable for the damage

occasioned by their servants and overseers, in the exercise of

the functions in which they are employed.

• Teachers and artisans are answerable for the damage caused

by their scholars or apprentices, while under their

superintendence.

LA. C.C. ART. 2320. ACTS OF SERVANTS, STUDENTS OR

APPRENTICES• In the above cases, responsibility only attaches, when the

masters or employers, teachers and artisans, might have

prevented the act which caused the damage, and have not

done it.

• The master is answerable for the offenses and quasi-offenses

committed by his servants, according to the rules which are

explained under the title: Of quasi-contracts, and of offenses

and quasi-offenses.

CIVIL LIABILITY

• Art. 2315. Liability for acts causing

damages

• A. Every act whatever of man that

causes damage to another obliges him

by whose fault it happened to repair it.

LIABILITY IS BASED ON WHAT?

• “Duty – Risk Analysis”

DUTY-RISK ANALYSIS

• Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under La. Civil Code Art. 2315. In order for liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements:

• This is a common approach in many states. Even Wikipedia lists it. http://en.wikipedia.org/wiki/Negligence#cite_note-3

MANY STATES –RESTATEMENT OF TORTS

• Restatement 3d Torts - General Principles

• § 3 Negligence Liability:

• An actor is subject to liability for negligent conduct that is a legal

cause of physical harm.

• § 6 Duty:

• Even if the defendant’s negligent conduct is the legal cause of

the plaintiff’s physical harm, the[defendant] is not liable for that

harm if the court determines that the defendant owes no duty to

the plaintiff. Findings of no duty are unusual, and are based on

judicial recognition of special problems of principle or policy

that justify the withholding of liability.

LOUISIANA LAW

• Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under La. Civ.Code art. 2315. In order for liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) actual damages (the damage element

• Pinsonneault v. Merchants & Farmers Bank & Trust Company, 816 So.2d 270 (La., 2002)

DUTY-RISK ANALYSIS

• (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element);

• (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element);

• (3) the defendant's substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element);

• (4) the defendant's substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and

• (5) actual damages (the damage element)

• Pinsonneault v. Merchants & Farmers Bank & Trust Company, 816 So.2d 270 (La., 2002)

DUTY

• (1) the defendant had a duty to

conform his or her conduct to a

specific standard of care (the duty

element);

MANDATORY REPORTING

• Many states have mandatory reporting.

MANY STATES

• Restatement (3d) on Torts: Liability for Physical Harm (adopted 2005; published 2010)

• § 14. Statutory Violations as Negligence Per Se

• An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.

DUTY: MANDATORY REPORTING

• La. R.S. 15:1504 requires reporting of abuse by “Any person, including but not limited to a health, mental health, and social service practitioner, 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.”

R.S. 15:1504 – YES, IT IS LONG

• La. R.S. 15:1504. Mandatory reports and immunity

• A. Any person, including but not limited to a health, mental health, and social service practitioner, 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.

• B. No cause of action shall exist against 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, or any adult protective services caseworker who in good faith conducts an investigation or makes an investigative judgment or disposition, and such person shall have immunity from civil or criminal liability that otherwise might be incurred or imposed. This immunity shall not be extended to:

• (1) Any alleged principal, conspirator, or accessory to an offense involving the abuse or neglect of the adult.

• (2) Any person who makes a report known to be false or with reckless disregard for the truth of the report.

• (3) Any person charged with direct or constructive contempt of court, any act of perjury as defined in Subpart C of Part VII of Chapter 1 of Title 14, or any offense affecting judicial functions and public records as defined in Subpart D of Part VII of Chapter 1 of Title 14. Acts 2008, No. 181, §2, eff. June 13, 2008.

MANDATORY REPORTING

• R.S. 15:1505.

• Report shall be made to any adult protection

agency or to any local or state law

enforcement agency.

• Need not name the persons suspected

• Name and address of the adult, of the person

responsible for the care of the adult, if

available, and any other pertinent

information.

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. http://www.legis.la.gov/Legis/Law.aspx?d=97927 June 17, 2017

MANDATORY REPORTING AND DUTY

• Is a Mandatory Reporting Statute a

“statute that is designed to protect

against the type of accident the actor’s

conduct causes,”?

• Let’s Discuss.

DOES ANYTHING PREVENT REPORTING?

• In other words, Is there Someplace To Hide

From the Liability?

• Medical Ethics / Scope of Practice?

• HIPAA?

• Banks?

• Attorney Ethical Rules?

NURSING ETHICS

• It is the position of the New York State Nurses Association that

the registered professional nurse has the responsibility to

safeguard elders from abuse, neglect and maltreatment. This

responsibility is set forth in the American Nurses Association’s

(ANA), Scope and Standards of Practice (2004), Scope and

Standards for Gerontological Nursing Practice (2001) and the

Code of Ethics for Nurses with Interpretative Statements

(2001).

• http://www.nysna.org/practice/positions/position3_04.htm

NURSING ETHICS

• In order to safeguard this population from abuse, neglect and maltreatment, a registered professional nurse must:

• Promote, advocate and strive to protect the health, safety and rights of their patients (ANA’s, Scope and Standard of Practice, 2004).

• Maintain a therapeutic and professional patient-nurse relationship with appropriate professional role boundaries (ANA, Code of Ethics for Nurses, 2001).

• Owe the same duties to self as to others as well as the responsibility to protect integrity and safety, to maintain competence, and to pursue personal and professional growth (ANA, Code of Ethics for Nurses, 2001).

NURSING ETHICS

• Recognize ethical dilemmas occurring within the practice environment and seek available resources to formulate ethical decisions (Scope and Standards of Gerontological Nursing Practice, 2001).

• Contribute to the establishment, maintenance and improvement of healthcare environments and conditions of employment conducive to the provision of quality care (ANA, Code of Ethics for Nurses, 2001).

• Report abuse of elders’ rights, incompetence, and unethical and unlawful practice (Scope and Standards of Gerontological Nursing Practice, 2001).

• Be knowledgeable regarding the laws and regulations that govern their practice in New York State.

PHYSICIANS

• The AMA recommends that physicians routinely inquire about possible mistreatment of elderly patients, much as they screen for other conditions such as colorectal or breast cancer.

• Precisely how to ask has not been determined; however, if the questions raise suspicion of an abusive situation, specific steps need to be taken, as outlined below. …

• Elder abuse and neglect: What physicians can and should do, MAHNAZ AHMAD, MD, MS and MARK S. LACHS, MD, MPH*CLEVELAND CLINIC JOURNAL OF MEDICINE VOLUME 69 • NUMBER 10 pg 806 OCTOBER 2002

WHAT TO ASK?

• Has anyone at home ever hurt you?

• Has anyone ever touched you without your consent?

• Has anyone ever made you do things you did not want to do?

• Has anyone ever taken anything that was yours without asking?

• Has anyone ever scolded or threatened you?

• Have you ever signed any documents you did not understand?

• Are you afraid of anyone at home?

• Are you alone a lot?

• Has anyone ever failed to help you take care of yourself when you needed help?

Dorne E. Rosenblatt, MD, PhDAnn Arbor, Mich.Downloaded from www.archfammed.com on May 30, 2010. Used, with permission, from Aravanis, et. al.,

Dorne E. Rosenblatt, MD, PhDAnn Arbor, Mich.Downloaded from www.archfammed.com on May 30, 2010

HIPAA

• …Where disclosures are required by law, the Privacy Rule’s minimum necessary standard does not apply, since the law requiring the disclosure will establish the limits on what should be disclosed.

• Moreover, with respect to required by law disclosures, a covered entity cannot use the Privacy Rule as a reason not to comply with its other legal obligations…. http://www.hhs.gov/ocr/privacy/hipaa/faq/disclosures_required_by_law/909.html

HIPAA

• Section 164.512(a)(2) provides that in making a “required by law” disclosure about adult abuse, neglect or domestic violence (section 164.512(c)), for judicial or administrative proceedings (section 164.512(e)), or for law enforcement purposes (section 164.512(f)), covered entities must also comply with any additional privacy requirements in these provisions that apply. However, none of the additional procedural protections in sections 164.512(c), (e) and (f) apply to the type of “required by law” disclosures to P&As under the provisions of the DD and PAIMI Acts discussed here. http://www.hhs.gov/ocr/privacy/hipaa/faq/disclosures_required_by_law/909.html

CAN BANKS REPORT?

• CAN BANK TELLERS TELL? – LEGAL ISSUES RELATING TO BANKS REPORTING FINANCIAL ABUSE OF THE ELDERLY © American Bar Association 2003

• 4. There are no major legal obstacles to participation in a bank reporting project:

• a. Banks that participate in reporting have no reason to fear liability under federal law: the Right to Financial Privacy Act applies only to records and information sought by the federal government, and Section 502(e) the

• Gramm-Leach-Bliley Act contains several exemptions that would cover both mandatory and voluntary reporting.

• http://www.ncea.aoa.gov/ncearoot/main_site/pdf/publication/bank_reporting_long_final_52703.pdf

IT IS CLEAR, BANKS CAN REPORT

http://www.federalreserve.gov/newsevents/press/bcreg/bcreg20130924a2.pdf

BANKS: FIRST LINE OF DEFENSE?

• Banks have the potential to be the “first line of defense”15 against financial abuse, by identifying the abuse at its outset, before the elder’s assets have been dissipated. “No institution is in a better position to observe and report” suspicious behavior,16 such as the following:

BANKS: SUSPICIOUS BEHAVIOR

• An unusual volume of banking activity.

• Banking activity inconsistent with a customer’s usual habits.

• Sudden increases in incurred debt when the elder appears

unaware of transactions.

• Withdrawal of funds by a fiduciary or someone else

handling the elder’s affairs, with no apparent benefit to the

elder. • CAN BANK TELLERS TELL? – LEGAL ISSUES RELATING TO BANKS REPORTING FINANCIAL ABUSE OF THE ELDERLY © American Bar

Association 2003 http://www.ncea.aoa.gov/ncearoot/main_site/pdf/publication/bank_reporting_long_final_52703.pdf

ATTORNEYS CAN DISCLOSE

• "to prevent,

• mitigate or

• rectify

• substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services.“ Rule 1.6(b) (3)

ATTORNEY CLIENT PRIVILEGE

To establish attorney-client privilege, several elements must be proven: (1) the holder of the privilege is or sought to become a

client; (2) the communication was made to an attorney or his

subordinate in a professional capacity; (3) the communication was made outside the presence of

strangers; (4) the communication was made to obtain a legal

opinion or services; and (5) the privilege has not been waived. Cacamo v. Liberty Mut. Fire Ins. Co., 798 So.2d 1210 (La.

App., 2001), at pg. 1216.

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

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

BREACH OF DUTY

• (2) the defendant failed to conform his or her

conduct to the appropriate standard of care

(the breach of duty element);

• Doing Nothing is a Breach Of Duty imposed

by the Mandatory Reporting Laws.

CAUSE-IN-FACT

• (3) the defendant's substandard conduct was

a cause-in-fact of the plaintiffs injuries (the

cause-in-fact element);

• If it had been reported might it have been

prevented? A But-For test that is a very

minimal hurdle for a plaintiff.

LEGAL CAUSE

• (4) the defendant's substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element);

• A tougher hurdle for the plaintiff.

• Consider the relationship between the Duty breached and the Risk/Harm Caused.

• In short, does the court want to hold the defendant liable?

• Discuss the Equity of liability for failing to report.

ACTUAL DAMAGES

• (5) actual damages (the damage

element)

• Stolen money

• Personal Injuries or Death

$ DAMAGES $

$0

$20,000

$40,000

$60,000

$80,000

$100,000

$120,000

Lessthan35

35 to44

45 to54

55 to64

65 to69

70 to74

75 andolder

Totalof all

65 andolder

$7,240

$44,275

$83,150

$112,048$114,050$120,000

$100,100

$55,000

$108,885

Median Net Worth

Source: U.S. Census

ADMINISTRATORS AND PHYSICIANS

• Potential Civil Liability

• Potential Criminal Liability

• 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 elderly American Family Physician, March 1, 2007 by Lisa M. Gibbs, Laura Mosqueda

POTENTIAL LEGAL PENALTIES FOR FAILING TO REPORT

• * Civil liability. Those who fail to report also may face civil lawsuits seeking redress for damages. If the mandated reporter is an HR manager, the company--and possibly the HR manager--may face liability for failure to report suspect actions by employees, as well as negligent hiring and negligent supervision.

• Damages in a civil lawsuit--particularly for redress of pain and suffering--are potentially far higher than criminal fines.

• 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 by Diane Cadrain

CRIMINAL

YEP, CRIMINAL

SUPERVISORS

• 45-year-old Stacey Sams, a supervisor at Southern Pines, was

also arrested in the case. Sams turned herself in Monday and is

charged with failure to report an elderly abuse case.

• "The reason Ms. Sams was charged in the case is because she

failed to report it after the witness had reported it to her," said

LT. Hampton.

• May 31, 2015: http://www.wctv.tv/home/headlines/Two-Arrested-In-Elder-Abuse-Case-In-Thomasville-

263539921.html

NURSES

• From Colorado:

• More than 3,800 reports of suspected elder abuse in Colorado have been gathered since a new law went into effect this summer, and one person, a nurse in Douglas County, has been cited for allegedly failing to make a report. . . .

• On Oct. 15, Heather Ivy Press, 38, a nurse at Continuing Care at Wind Crest in Highlands Ranch, was cited for "failure to report elder abuse."

• May 31, 2015: http://www.denverpost.com/news/ci_27137065/law-spurs-reports-elder-abuse-one-person-cited

MANDATORY REPORTING

• In Louisiana the failure to report is

punishable by up to six months

imprisonment and/or a five-hundred dollar

fine. R.S. 14:403.2.

• In Mississippi it is a bit different, Title 43,

Section 47, the Mississippi Vulnerable

Persons Act.

LOUISIANA

14:403.2. ABUSE AND NEGLECT OF ADULTS

• A. Any person, who under R.S. 15:1504(A), is

required to report the abuse or neglect of an

adult and knowingly and willfully fails to so

report shall be guilty of a misdemeanor and

upon conviction shall be fined not more than five

hundred dollars or imprisoned for not more than

six months, or both.

R.S. 14:403.2

• 14:403.2. Abuse and neglect of adults

• A. Any person, who under R.S. 15:1504(A), is required to report the abuse or neglect of an adult and knowingly and willfully fails to so report shall be guilty of a misdemeanor and upon conviction shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both.

• B. Any person who knowingly and willfully violates the provisions of Chapter 14 of Title 15 of the Louisiana Revised Statutes of 1950, or who knowingly and willfully obstructs the procedures for receiving and investigating reports of adult abuse or neglect, or who discloses without authorization confidential information about or contained within such reports shall be guilty of a misdemeanor and upon conviction shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both.

• C. Any person who reports an adult as abused or neglected to an adult protection agency as defined in R.S. 15:1503 or to any law enforcement agency, knowing that such information is false, shall be guilty of a misdemeanor and upon conviction shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both.

• D.(1) Any person who retaliates against an individual who reports adult abuse to an adult protection agency or to a law enforcement agency, shall be guilty of a misdemeanor and upon conviction shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both.

• (2) For the purposes of this Section, "retaliation" is defined as discharging, demoting, or suspending an employee who reports the adult abuse; or threatening, harassing, or discriminating against the reporter in any manner at any time provided the report is made in good faith for the purpose of helping the adult protection agency or law enforcement agency fulfill its responsibilities as set forth in Chapter 14 of Title 15 of the Louisiana Revised Statutes of 1950.

CRUELTY TO THE INFIRMED

• RS 14:93.3 Cruelty to the infirmed (A Felony)

• A. Cruelty to the infirmed is the intentional or criminally negligent mistreatment or neglect by any person, including a caregiver, whereby unjustifiable pain, malnourishment, or suffering is caused to the infirmed, a disabled adult, or an aged person, including but not limited to a person who is a resident of a nursing home, mental retardation facility, mental health facility, hospital, or other residential facility.

• B. "Caregiver" is defined as any person or persons who temporarily or permanently is responsible for the care of the infirmed, physically or mentally disabled adult, or aged person, whether such care is voluntarily assumed or is assigned. Caregiver includes but is not limited to adult children, parents, relatives, neighbors, daycare institutions and facilities, adult congregate living facilities, and nursing homes which or who have voluntarily assumed or been assigned the care of an aged or infirmed person or disabled adult, or have assumed voluntary residence with an aged or infirmed person or disabled adult.

• C. For the purposes of this Section, an aged person is any individual sixty years of age or older.

MISSISSIPPI

• (1) (a) Except as otherwise provided by Section 43-47-37 for vulnerable persons in care facilities,

any person including, but not limited to, the following, who knows or suspects that a vulnerable

person has been or is being abused, neglected or exploited shall immediately report such

knowledge or suspicion to the Department of Human Services or to the county department of

human services where the vulnerable person is located:

(i) Attorney, physician, osteopathic physician, medical examiner, chiropractor or nurse

engaged in the admission, examination, care or treatment of vulnerable persons;

(ii) Health professional or mental health professional other than one listed in subparagraph

(i);

(iii) Practitioner who relies solely on spiritual means for healing;

(iv) Social worker, family protection worker, family protection specialist or other professional

care, residential or institutional staff;

(v) State, county or municipal criminal justice employee or law enforcement officer;

(vi) Human rights advocacy committee or long-term care ombudsman council member; or

(vii) Accountant, stockbroker, financial advisor or consultant, insurance agent or consultant,

investment advisor or consultant, financial planner, or any officer or employee of a bank, savings

and loan, credit union or any other financial service provider.

• Miss. Code Ann. § 43-47-7

MISSISSIPPI

• Failing to Report, Criminal Penalty:

• A person who fails to make a report as required under this subsection or who, because of the circumstances, should have known or suspected beyond a reasonable doubt that a vulnerable person suffers from exploitation, abuse, neglect or self-neglect but who knowingly fails to comply with this section shall, upon conviction, be guilty of a misdemeanor and shall be punished by a fine not exceeding Five Thousand Dollars ($ 5,000.00), or by imprisonment in the county jail for not more than six (6) months, or both such fine and imprisonment.

• Miss. Code Ann. § 43-47-7

MISSISSIPPI

• § 43-47-37. Reporting of abuse and exploitation of

patients and residents of care facilities

(1) Any person who, within the scope of his

employment at a care facility as defined in Section 43-47-

5(b), or in his professional or personal capacity, has

knowledge of or reasonable cause to believe that any

patient or resident of a care facility has been the victim of

abuse, neglect or exploitation shall report immediately

the abuse, neglect or exploitation.

POTENTIAL LEGAL PENALTIES FOR FAILING TO REPORT

• * Criminal prosecution. In 42 states, there are criminal consequences--such as a misdemeanor charge or a fine--for failure to report. Fines may range from $50 to $10,000, depending on the state and the severity of the abuse. Imprisonment may range from six months to four years.

• * Loss of licensure or other professional disciplinary action. This varies by state, but in highly regulated professions--such health care and education--failure to report could lead to loss of one's state license to practice.

• 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 by Diane Cadrain

WHAT SHOULD BE REPORTED?

• burns, bruises, black or swollen eyes, broken bones, dilated pupils, evidence of restraints,

• bedsores, lack of clothing or dirty clothing, body odor, dehydrated or malnourished appearance,

• no utilities in the home,

• disappearance of personal property, absence of food or medication, frequent change in doctors, discontinuation of visitor privileges, no visitors allowed,

• individual expressions of shame, embarrassment or fear.



• (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.


PROVIDERS• 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.

REPORTING REASONABLE SUSPICION OF A CRIME IN A LONG-TERM CARE FACILITY (LTC): SECTION 1150B OF

THE SOCIAL SECURITY ACT

• B. LTC Facility Responsibilities

• 1. Required Functions: A Medicare- or Medicaid-participating

LTC facility must:

• a) Determine Applicability: Determine annually whether the

facility received at least

• $10,000 in Federal funds under the Act during the preceding

fiscal year;



• b) Notify Covered Individuals: Annually notify each covered

individual of that individual’s reporting obligations described

in section 1150B(b) of the Act, if the facility determines that it

received at least $10,000 in Federal funds under the Act during

the preceding fiscal year.



• c) Post Conspicuous Notice: Conspicuously post, in an

appropriate location, a notice for its employees specifying the

employees’ rights, including the right to file a complaint under

this statute. The notice must include a statement that an

employee may file a complaint with the SA against a LTC

facility that retaliates against an employee as specified above,

as well as include information with respect to the manner of

filing such a complaint.



• d) Eschew Retaliation: The facility may not retaliate against an

individual who lawfully reports a reasonable suspicion of a crime

under section 1150B. A LTC facility may not discharge, demote,

suspend, threaten, harass, or deny a promotion or other

employment-related benefit to an employee, or in any other

manner discriminate against an employee in the terms and

conditions of employment because of lawful acts done by the

employee, or file a complaint or a report against a nurse or other

employee with the appropriate state professional disciplinary

agency because of lawful acts done by the nurse or employee.



• 2. Additional Advisable Functions: A facility that effectively implements section 1150B will: a) Coordinate with Law Enforcement: Coordinate with the facility’s State and local law enforcement entities to determine what actions are considered crimes in their political subdivision. b) Review Adherence to Existing CMS Policies: Review existing facility protocols and procedures to ensure adherence to existing CMS and State policies and procedures for reporting incidents and complaints. For example, participating nursing homes are already required to have policies and procedures in place to report abuse, neglect or misappropriation of resident property. During the course of a standard survey or complaint investigation, the identification of a possible crime may trigger a review of the LTC facility’s policies and procedures for reporting as required under the Federal conditions and requirements for that provider type, and a review of the actions taken to make any required incident report.



• c) Develop Policies and Procedures for Section 1150B: Develop

and maintain policies and procedures that ensure compliance

with section 1150B, including the prohibition of retaliation

against any employee who makes a report, causes a lawful

report to be made, or takes steps in furtherance of making a

lawful report pursuant to the requirements of the statute.



• D. Time Period for Individual Reporting Section 1150B establishes two time limits for the reporting of reasonable suspicion of a crime, depending on the seriousness of the event that leads to the reasonable suspicion.

• 1. Serious Bodily Injury – 2 Hour Limit: If the events that cause the reasonable suspicion result in serious bodily injury to a resident, the covered individual shall report the suspicion immediately, but not later than 2 hours after forming the suspicion;

• 2. All Others – Within 24 Hours: If the events that cause the reasonable suspicion do not result in serious bodily injury to a resident, the covered individual shall report the suspicion not later than 24 hours after forming the suspicion.



• https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/downloads/SCLetter11_30.pdf

QUESTIONS?

• http://www.stetson.edu/law/academics/elder/ecpp/statutory-update-adult-

protection-statutes.php June 17, 2017.

RESOURCES

• Louisiana Office of Aging & Adult Services

• http://new.dhh.louisiana.gov/index.cfm/subhome/12/n/7

RESOURCES

• Mississippi Department of Human Services, Aging & Adult

Services.

• http://www.mdhs.state.ms.us/aging-adult-services/

RESOURCES

• Prosecuting Elder Abuse Cases, Basic Tools And Strategies,

2012 - http://www.eldersandcourts.org/Elder-

Abuse/~/media/Microsites/Files/cec/Prosecution%20Guide.a

shx

RESOURCES

• National Center on Elder Abuse

• https://ncea.acl.gov/

RESOURCES

• National Center for State Courts

• http://www.ncsc.org/topics/children-families-and-

elders/elder-abuse/resource-guide.aspx

RESOURCES

• Center of Excellence on Elder Abuse & Neglect

• http://www.centeronelderabuse.org/resources.asp

RESOURCES

• St. Tammany Seniors And Law Enforcement Together

• http://www.stsalt.org/

RESOURCES

• Don’t Forget Google!

• And Google Scholar at http://scholar.google.com/

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/

• Mississippi’s is at:

http://www.legislature.ms.gov/Pages/default.aspx

• Have an iPhone? Search for the free app “fastcase” which

contains statutes and cases from most states and Federal

courts. http://www.fastcase.com/iphone/

THANK YOU

• Harold S. Bartholomew, Jr.

• Assistant District Attorney

• 22nd Judicial District, State of Louisiana

• Office of Warren Montgomery, District Attorney, Parishes of

Washington and St. Tammany

• 701 N. Columbia St., Covington LA 70433

• 985-809-8383

HIPAA

• Section 164.512(a)(2) provides that in making a “required by law” disclosure about adult abuse, neglect or domestic violence (section 164.512(c)), for judicial or administrative proceedings (section 164.512(e)), or for law enforcement purposes (section 164.512(f)), covered entities must also comply with any additional privacy requirements in these provisions that apply. However, none of the additional procedural protections in sections 164.512(c), (e) and (f) apply to the type of “required by law” disclosures to P&As under the provisions of the DD and PAIMI Acts discussed here. http://www.hhs.gov/ocr/privacy/hipaa/faq/disclosures_required_by_law/909.html

HIPAA

• …Where disclosures are required by law, the Privacy Rule’s minimum necessary standard does not apply, since the law requiring the disclosure will establish the limits on what should be disclosed.

• Moreover, with respect to required by law disclosures, a covered entity cannot use the Privacy Rule as a reason not to comply with its other legal obligations…. http://www.hhs.gov/ocr/privacy/hipaa/faq/disclosures_required_by_law/909.html

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