Mandatory reporting of elder abuse has a history of drawing heated debate. However, over time, every state except New York and Pennsylvania have passed legislation mandating professionals to report community based elder abuse, neglect and exploitation. (New York State requires that Adult Protective Services (APS) workers report suspicions of abuse to law enforcement, but there are no laws mandating reporting from other professionals or lay persons, and the mandate for APS dictates only that they must make a report. There is no obligation on the part of law enforcement to investigate reports from APS. In the context of the national conversation about mandated reporting, this requirement for APS does not confer the status of “mandatory reporting state” upon New York State. Additionally, certain residential health care facilities are mandated to report.) Thus, New York State is part of the final frontier for this debate.
Elder justice professionals and others in and out of New York State have mixed opinions about the importance of passing mandatory reporting legislation and the efficacy of this type of legislation. This blog explores arguments in favor of mandatory reporting laws, concerns with such legislation and alternatives to mandatory reporting, as well as how these perspectives are informing the future of mandated reporting in New York State.
In Support of Mandatory Reporting
There are many reasons that victims of elder abuse cannot or do not seek help, including isolation, fear of retribution, and inability to advocate for themselves due to cognitive and/or physical impairments. Elder abuse victims also may not recognize the severity of and risk for danger present in their situation, which could stem from the impact of long-standing trauma, ambivalence or diminished capacity. Mandatory reporting laws are arguably designed to initiate the potentially life-saving process of interventions for these hidden victims.
Mandatory reporting laws “require individuals to report certain injuries or cases of abuse or neglect to law enforcement, social services, and/or a regulatory agency.” (“Mandatory Reporting.” Mandatory Reporting. National Clearinghouse on Abuse in Later Life, n.d. Web. 18 Dec. 2014.) Such laws were first introduced in the 1970s by the child abuse field and in more recent years have been used to protect other vulnerable populations, including older adults. Mandated reporters can include professionals working in health and mental health settings, educational environments, criminal justice and institutional and nursing home settings, civil lawyers, bank employees and others.
Laws requiring mandatory reporting vary from state-to-state but have gained wide support because it is believed that these measures improve the way states respond to elder abuse. Arguments in favor of mandated reporting legislation in NYS include, but are not limited to, the following:
- Mandating reporting would increase the number of reported cases of elder abuse. A 2010 NYS elder abuse prevalence study reported that annually, only 1 in every 24 cases of elder abuse ever comes to the attention of authorities. 1 This represents a gross underreporting of this devastating problem.
- Mandatory reporting creates an opportunity to provide potentially life-saving and protective interventions and services to older adults. After a report is made and an investigation occurs, services could then be provided, as needed.
- Mandatory reporting may generate positive externalities, such as increased public awareness. With additional reports, the problem would become more difficult for key decision-makers to ignore. Much needed attention and financial resources would flow towards preventing abuse and helping victims.
Limitations of Mandatory Reporting
While the ultimate intent of mandated reporting laws – to improve each state’s response to elder abuse – is in tune with the values of everyone working towards elder justice, some professionals argue that the legislation and arguments above have serious limitations. Skeptics of traditional mandatory reporting laws want the state to move towards a person-centered response to elder abuse, neglect and exploitation. Advocates of this perspective raise many important concerns about mandatory reporting, these among the most significant:
- A person-centered response to elder abuse invests in professional training in detection, assessment and response as well as in prevention and intervention services. Mandatory reporting laws provide provisions only for procedural changes and do not fund such investments.
- Increasing public and professional awareness is another key element of a person-centered response to elder abuse. This would result in more effective identification of abuse, neglect and exploitation, and can also support prevention in a more targeted manner. 2
- Those who detect and report elder abuse effectively do so regardless of whether or not there is a mandatory reporting law in place, and depending on the parameters of given legislation, those mandated may not be the most frequent reporters. The penalties suggested by mandatory reporting legislation do little to compel people to report because it is incredibly rare that someone who fails to report faces any retribution. Rather than expand the number of reporters through threat of punitive measures, the focus should be on supporting reporters through measures such as immunity legislation, which provides immunity from some types of liability to those who, in good faith, report suspected abuse. New York Social Services Law §473-b 3 actually already grants immunity from civil liability to any good-faith reporter, including physicians, social workers and other professionals.
- Mandatory reporting can have unintended negative consequences. For those older adults with the ability to make decisions regarding risks they confront, mandatory reporting represents an invasive and paternalistic approach to assistance. For example, in most states, when a person is 59 and a physician identifies that s/he is being abused, the physician can use a person-centered approach to care, determining with the patient the best response. But if the patient is 60 years old (or 65, depending on the state), that same doctor would be mandated to report. This triggers an investigation, which may or may not be welcomed by the older adult. If it is not welcome, it can rupture the trusted, sacred doctor-patient relationship, with negative consequences, e.g., the victim not disclosing to anyone else, perhaps even not returning to the doctor for medical care.
Opportunity for Innovation
In response to the conflicting perspectives outlined above, the two sides have sought common ground as more and more states passed mandatory reporting laws. Interest in compromise has lead to creation of legislative measures that modify or provide alternatives to traditional mandatory reporting laws. Since such ideas have evolved over time, New York State’s relative delay in passing any mandatory reporting legislation has conveniently positioned the state to consider these alternatives alongside the arguments outlined above. Alternatives include:
- Mandatory training: This measure would require health care workers, social workers, and others to receive training on elder abuse as a requirement for licensing by the state. Proponents of such measures argue that professionals who become informed about the epidemic of elder abuse through mandatory training will be motivated to notice and respond to potential cases, regardless of whether or not they must report these concerns to a particular authority. (There is no draft legislation to date regarding this idea.)
- Permissive reporting: Legislation for permissive reporting provides a procedure and protocol for reporting abuse that is to be followed when a professional chooses to report. Such laws also typically ensure immunity from any liability. Permissive reporting allows for the victim’s needs and desires to be taken into account, while mandatory reporting can sometimes dictate an undesirable path.In NYS, advocates are in fact in the process of pursuing a legislative agenda for financial exploitation based on permissive reporting. Bill A.7892-A/S.6221 specifically targets the issue of elder financial exploitation by calling for permissive reporting amongst banks and financial institutions meaning that, if a bank identified a potential elder abuse case, they would have discretion as to whether or not they would report the case to Adult Protective Services (APS) or law enforcement. If they choose to report, and/or in the event of an independent investigation by APS or law enforcement, the bill clarifies banks’ ability to share information relevant to the case. Additionally, it creates a procedural structure to inform the process of reporting, which is currently ambiguous. Further details of this bill can be found in a Memo of Intent published by community advocates supporting the bill. 4A.7892-A/S.6221 was passed by the State Senate in 2013 and again in 2014, but it has not yet come to a vote at the State Assembly. For the bill to become law, it must pass the Assembly and be signed by the Governor.
- Limited mandated reporting: Many elder justice professionals are increasingly concerned about how best to help the many adults with cognitive impairment impeding their decision-making ability to adequately respond to abuse, neglect and financial exploitation risk. This concern has led to preliminary conversations about the merits of NYS crafting a mandatory reporting law that is not broad and age-based, but rather, would focus more narrowly on a person’s cognitive impairment and decision-making abilities of adults of any age. (There is no draft legislation to date regarding this idea.)
As evidenced above, mandatory reporting is a complicated issue, and the impact of legislation in this area can be serious and far-reaching. New York State needs elder justice professionals and advocates – and professionals across disciplines and systems, and the public – to join in the conversation and contribute perspectives.
Additionally, academics in New York State and elsewhere should pay keen attention to the opportunity New York State presents – as the one of two states left without a law mandating professionals to report – to study the contested elements of reporting. Collectively with policy makers, there is potential for a great number of opportunities to bring expanded safety and dignity to older New Yorkers across the state.
What do you think about mandatory reporting and the innovative ideas being discussed in NYS? Please join the conversation!
By Ryan Patrick Backer, NYCEAC 2014 Risk and Resiliency Internship Project Intern & Contributing Authors Bobbie Sackman, MSW, Director of Public Policy, Council of Senior Centers and Services and Risa Breckman, LCSW-R, Director, NYC Elder Abuse Center & Edited by Sarah Dion, NYCEAC Program Assistant
- Lifespan of Greater Rochester, Inc., Weill Cornell Medical Center of Cornell University, & New York City Department for the Aging. (2011). Under the Radar: New York State Elder Abuse Prevalence Study. Self-reported prevalence and documented case surveys [Final Report].
- The Government Accountability Office report, 1991, entitled “Elder Abuse: Effectiveness of Reporting Laws and Other Factors,” found that, at the time, experts believed other factors were more effective than mandated reporting for improving the number of elder abuse cases identified, prevented and treated.
- NYS SOS §473-b can be viewed, in full, here: http://public.leginfo.state.ny.us/lawssrch.cgi?NVLWO
- The Council for Senior Centers and Services (CSCS), in conjunction with Lifespan of Greater Rochester, have published a memo outlining the intent of the bill, which can be viewed by clicking here.