Elder Justice Comes of Age

Last June’s White House symposium on elder abuse was a watershed event. Delegates, many of whom had been advocating for decades for more federal involvement, were assured by high ranking administration officials that elder justice was a priority. Hosts, speakers, and delegates were near giddy in their fervor, and murmurs of “Is it for real?” wafted through the crowd.  

It coincided with something I’d been feeling for awhile: that elder abuse prevention had entered a new era. After years of making excuses for its protracted infancy, perhaps we were finally witnessing our field’s coming of age. 

Clearly, thinking about elder abuse had matured. “Elder justice” has emerged as the dominant new paradigm, offering a more expansive view. Defined by the framers of the Elder Justice Act as “the right to live free from abuse, neglect, and financial exploitation,” elder justice suggests that abuse isn’t just a matter of personal and interpersonal dysfunction, but rather, it’s about ensuring fairness, human rights, and equal access to resources and protections for all older adults. That’s a mighty big leap.

How this new perspective plays out remains to be seen. Hopefully, for starters, we’ll acknowledge that older adults are a distinct group with specific needs and circumstances rather than an add-on or “special population” within broader realms like victim rights or domestic violence. The “special” designation has led to plugging clients into services designed for other groups, which often aren’t a great fit. It has sometimes also meant buying into premises that don’t apply (e.g. that abuse is motivated by the drive for power and control, which domestic violence theory assumes) or pressuring victims into options they find unacceptable (e.g. reporting abusive family members to authorities in order to qualify for victim services). Defining our field through other disciplines’ lenses has forced us to make false choices (“elder abuse is ______” where the correct answer is: a woman’s issue, a hate crime, a caregiving issue, domestic violence, and so on, depending on whom you talk to).  That limit the options for helping victims.   

Pigeonholing elder abuse this way has had other consequences. It’s lead to conflicts within our ranks and kept us from gaining traction from an advocacy perspective. We’re remained politically marginalized, divided, disorganized, and powerless. 

Elder justice lets us start fresh and think bigger. It encourages us to rally our forces and find a common voice instead of arguing among ourselves about the “right” analyses. 

This expanded way of thinking has parallels in our research. The new “ecological” models of elder abuse that theorists have proposed acknowledge that personal, interpersonal, societal, and economic factors all play a part in abuse, thereby freeing us from the old dogmas about how situations should and shouldn’t be handled. They lend themselves to multifaceted and holistic solutions that include clinical, public health, and public policy interventions. 

Understandably, some may assume that elder justice just means ensuring that older people have access to the legal system. Clearly, that’s important. But, to a great extent, the legal system focuses on situations in which individuals‘ rights have already been violated, and elder justice can be much more. The California Elder Justice Coalition has adopted a proactive approach that I like to think of as “justice promotion.” It calls for taking affirmative steps to protect autonomy and self determination; ensure fair access to health, social, and legal services; thwart predation; and strengthen responses to abuse. It requires that we focus on capacity assessment and enhancement, ethical considerations in decision making, and safe advance directives. It includes consumer protections that focus on age-related vulnerabilities, keeping dangerous people out of the long-term care workforce, and heightening consciousness among those who serve older adults about high risk situations. 

Clearly, the federal commitment to elder justice displayed at the White House event marked a step forward. The Financial Consumer Protection Bureau, Administration on Aging, Social Security Administration, Department of Justice, and others, in partnership with financial institutions, have acknowledged that consumer protection is part of the elder justice equation by addressing predatory lending, scams, and other forms of exploitation. 

But there are countless other opportunities to promote elder justice. Consumer protections are needed in “consumer-driven” long term services and support (LTSS) programs. Focusing the elder justice lens on programs that transition Medicare and Medicaid beneficiaries into managed care or that provide in-home care requires that we establish strict screening and accountability measures for providers and that we develop realistic criteria for evaluating vulnerable consumers’ ability to choose and monitor their care.We know from recent research that the deficits that render people vulnerable can be subtle, and our network can play an important role in identifying potential problems and building in safeguards. Instructing LTSS providers in how to recognize deficits in decision-making capacity, asking them to be on the lookout for clients who have recently taken out reverse mortgages or who’ve been targeted by predators, and urging them to add  a few questions to assessment tools to identify risk could have a huge impact. 

Instituting these measures requires federal leadership. Let’s hope that our dynamic new federal leaders will connect the dots and see the possibilities for making elder justice an integral component of the service delivery system rather than as a field apart. 

AARP Looks at Criminal Background Checks for Home Care Workers

Publicly funded programs like In-Home Support Services (IHSS) that provide helpers to assist with such basic daily tasks as eating, bathing, housekeeping, and shopping, are a godsend to people with disabilities who want to live independently. Some of these programs reimburse families for providing care to their own members, buffering them against impoverishment. But the lack of screening and oversight of caregivers, and the unchecked access they have to society’s most vulnerable, have also made caregiving an attractive job choice for opportunists and predators. In some families, the job falls to troubled or dysfunctional members who can’t find other work. As a result, shocking accounts of abuse and neglect by publicly paid workers are hitting the press almost daily. These accounts are even more shocking when it’s revealed that an offender was recently released from prison or is on the lam.

In response, states have enacted criminal background checks. But while there’s general agreement that checks are needed, developing systems isn’t easy, as AARP's excellent new report Developing Effective Criminal Background Checks and Other Screening Policies for Home Care Workers shows. The report raises such complex questions as what crimes should disqualify workers, do we apply the same standards when helpers are family members, how do we ensure fairness, who pays, and how will checks affect an already inadequate supply of workers?

A Survey of State Laws
Although much of the funding for in-home care comes from the federal government, the feds defer to states to develop programs and policies for hiring and screening workers. AARP commissioned the National Conference of State Legislatures to conduct a state-by-state comparison, which revealed widespread variations.

“We were surprised at the wide diversity of provisions on which crimes disqualify job applicants,” says Naomi Karp, Policy Advisor for AARP’s Public Policy Institute, which produced the report. “Some states (including California) only disqualify applicants for past offenses against vulnerable people, while others exclude them for a simple DUI.”

Of the 46 states that mandate pre-employment criminal background checks, most disqualify applicants who’ve been convicted of homicides and other violent or sex-related offenses. Some include fraud-related crimes and crimes against vulnerable adults and elders. The laws also vary in terms of which workers are covered. Some, for example, require background checks for family members who receive payment for providing care while others exempt them.

To Work or Not to Work: A Measured Approach
Criminologists, offenders’ rights advocates, and common sense tell us that mitigating factors need to be considered before disqualifying applicants with criminal histories, including their age, the length of time since they committed the crimes, their work histories subsequent to offending, and whether or not they can show they’ve been rehabilitated. Naomi adds,

“Our study identified exciting criminology research on redemption —determining when a person with a criminal history no longer poses a greater risk of committing a crime than anyone else. Professionals in the elder abuse and long-term care fields are unlikely to be aware of this, never mind policymakers.”

She further cautions against over regulation.

"Although we need to find ways to protect home care consumers, we also need to avoid unnecessary disqualifications as workforce demand increases and to increase fairness to job applicants.”

The report suggests for example that when elders use public funds to hire their own family members to provide their care, the standards should be relaxed. It also acknowledges that in the interest of consumer choice and empowerment, some consumers of home care should be given the opportunity to assume greater risk (as long as they’re capable of understanding those risks).

Let Research Be Our Guide
While researching an article on this topic several years ago, I interviewed criminologist Vernon Quinsey who explained that the point where the risk of re-offending becomes negligible is different for different crimes and different settings. To understand the risk that home care workers with criminal histories will re-offend requires that we study home care workers with histories who re-offend. In other words, our field’s tendency to borrow knowledge from other fields won’t work here. We need our own research.

Other Approaches
The report further cautions against over relying on background checks and highlights the importance of detailed application forms with disclosure requirements, thorough interviews, reference checks, drug and alcohol screening, credit histories, and training. Other recommendations include “rap-back systems,” which refers to programs that automatically flag new disqualifying crimes committed by workers after they’ve been hired and alert employers. It calls for a tiered system that begins with low cost checks of state records and registries for all applicants, followed by more extensive checks when the initial checks suggest problems. Screening systems also need to provide for appeals and waivers, or “rehabilitation reviews” to let disqualified applicants demonstrate their suitability.

Surprisingly, background checks may have a powerful deterrent effect. The report cites the findings of a Centers for Medicare & Medicaid Services (CMS) study that shows that while fewer than 4% of applicants in state criminal background check pilot projects were disqualified by checks, close to 19% withdrew their applications before the checks were made.

Next Steps
While AARP has made an enormous first step in tackling this complex issue, many more questions still remain, including:

• How do we decide when elders with cognitive impairments are capable of making hiring decisions? In doing so, we need to acknowledge that hiring is just the first step in a process and anticipate what will happen down the line. Once they hire workers, for example, will impaired elders be able to detect financial abuse, withstand manipulation and intimidation, or even ask for help?

• Will criminal background checks disproportionately affect communities that are overrepresented in the criminal justice system?

• Will policies that give elderly consumers greater responsibility for vetting their own workers carry with them greater liabilities (e.g. for hiring workers who are undocumented)?

The AARP report hasn’t generated as much media attention as expected, which isn’t surprising to me. Accounts of recently released sex offenders getting jobs as home care workers makes for better copy. But the painstaking, thoughtful approach that AARP has taken in this report is invaluable to those who are working on policy. Thanks, AARP!

For copies of the report, see Developing Effective Criminal Background Checks and Other Screening Policies for Home Care Workers

For more on abuse by caregivers and additional resources, visit my Web site at: http://lisanerenberg.com/learn/caregivers.html

Abuse and Home Care Workers: Giving Policymakers the Lowdown

APS workers, prosecutors, and aging service providers know the frustration well: They discover that a personal care attendant who is being paid with public funds is abusing an elder. When they prevail upon public entities to fire the worker, they’re told “no can do.” When abusive caregivers are hired and supervised by elders, only the elders can fire them.

We also know that seniors sometimes refuse to fire abusive attendants and why. Some are afraid of their workers or of what will happen if they can’t find replacements. Attendants may be threatening them or exercising undue influence. Some seniors don’t realize they’re victims, especially when the workers have been surreptitiously draining bank accounts or transferring property. The elders may have subtle cognitive deficits. Or, they may want to help out troubled family members who need jobs.

I’ve written about the issue often, as well as the related issues of the rising numbers of caregivers who have criminal histories, the need for background checks on caregivers, and the lack of research on which to base screening decisions. I’ve devoted a page on my Web site to the issue. See Elder Abuse by Caregivers.

You’d think that the prospect of government-subsidized abuse would raise more of a hue and cry, but federal policymakers seem largely impassive. The Centers for Medicare & Medicaid Services (CMS) has addressed the need for better screening of nursing home employees, but not independent home care workers. This is despite the fact that in-home workers may spend hours, alone and unsupervised, in the homes of society’s most vulnerable members.

The concept of “self-directed care,” which is intended to empower Medicaid recipients to select, direct, and manage their own services and caregivers, stems from the independent living movement of the 1960s, which was premised on the concept that people with disabilities should have the same civil rights, options, and control over choices in their own lives as others. In recent years, members of the aging and dementia care networks have joined with advocates for the younger disabled in singing the praises of self-directed care, also known as “consumer choice” programs. And the little research that’s been done suggests that people who direct their own care are more satisfied than those who hire workers through licensed agencies. They claim that while abuses may occur, we have a safety net to address them, most notably APS and law enforcement.

Self-directed care is a boon for loving family caregivers who are struggling to manage financially. But in the elder abuse arena, we see the dark side. We see the seniors who hire the wrong caregivers for the wrong reasons. We see others being preyed upon by predators and criminals.

A recent call from the Centers for Medicare & Medicaid Services (CMS) regarding a proposed rule change that would extend the self-directed personal assistance services plan option (Cash and Counseling) may provide an opportunity to raise our concerns:

On January 14, 2008, the Centers for Medicare & Medicaid Services (CMS) announced a proposed rule change that would allow states to adopt a self-directed personal assistance services plan option in their Medicaid programs. This option would permit Medicaid beneficiaries who quality for personal care services to receive a cash allowance that could be used to hire, direct and train their own personal care workers - including qualified family members - rather than receiving home care services from an agency. Many states currently have such options allowed under temporary waivers in their Medicaid programs. This rule change would allow such programs to become permanent state options. The notice of proposed rulemaking was published in the January 18, 2008 issue of the Federal Register. Public comments regarding the proposed rule change are due February 19, 2008. To comment, go to CMS.

The request for comments, which explains the programs and CMS’ goals is over 100 pages long. Buried deep within (beginning on page 52) are the sections on “risk management” (the document does not directly mention potential abuse). The proposed regs require states to provide plans for mitigating risk to consumers, including measures for determining who is eligible to serve as workers and when surrogate, or representative, decision makers should be assigned for those with impairments. Among the issues that CMS is asking for comments on is whether criminal background checks should be required. Seems to me like an excellent opportunity to bring up some of the problems we’ve been struggling with. My own list of recommendations includes:

The Need to:

Strengthen the safety net. As more elders hire persons who are unsupervised by agencies, it has clearly placed greater demands on APS, law enforcement, public guardians, and others. In addition to added resources, these entities need guidance and authority to intervene.

Provide guidance and help to elderly consumers in finding, screening, hiring, and supervising workers. Specifically, consumers need screening processes that identify high risk workers, including but not limited to criminal background checks

Conduct research to identify high-risk situations, including research in how to assess criminal background data

Expand the pool of workers

Clearly the protective service networks have a stake in these plans and in working with the consumer choice network. I urge you to make your ideas and experiences known.

Criminal Caregivers

Criminals shouldn’t be providing care to frail old people. That assumption is what’s driving more and more agencies, states and the federal government to explore criminal background checks for prospective long term care employees.

But ensuring that vulnerable elders have trustworthy caregivers isn’t that easy. When Pennsylvania amended its protective service law prohibiting long-term facilities from hiring or retaining employees convicted of certain crimes, the state’s Supreme Court ruled it unconstitutional. When New Jersey passed a similar law, over 400 current employees, many of whom had worked for years and were dong a good job, were found to have committed disqualifying crimes.

Keeping patients safe when there’s a critical shortage of workers is a balancing act—one that prompted the Office of the Assistant Secretary for Planning and Evaluation (DHSS) to commission “Ensuring a Qualified Long Term Care Workforce: From Pre-Employment Screens to On-the-Job Monitoring,” a study, which explores, among other things, the relationship between past criminal background and subsequent abuse. As a member of the project’s advisory committee, I met recently with other members and staff of the Lewin Group, which conducted the study.

It came as no surprise that the preliminary findings affirm a link between criminal history and abuse. After all, an earlier study by Michigan’s attorney general showed that a quarter of CNAs convicted of crimes against nursing home residents had prior criminal backgrounds. But the group also discussed the need for more research on recidivism and the dissemination of existing information to guide hiring decisions. One advisory committee member cited a recent study that suggests that after 7 years, past criminals are no more likely than others to commit new crimes.

The need for more research to guide hiring decisions became clear to me years ago when a worker at an Oregon agency responsible for hiring home care workers told me about a convicted child abuser who, after being denied employment, successfully challenged the decision claiming that there was no empirical evidence to show that persons who abuse children are likely to abuse elders.

In calling for more research, we will find some unlikely allies. These include offenders’ rights advocates, who hope that new studies will create more opportunities for reformed offenders. They argue that the need for research has become particularly critical in light of Internet technology, which has made checking backgrounds easier than ever to obtain. They furhter caution that the rapid growth of the largely unregulated criminal background check industry poses serious threats to offenders' rights.

Ensuring patient safety at home is even harder--home care workers are in even shorter supply and spend significantly more time with elders alone and unsupervised. The popularity of “consumer choice” programs in long term care, some of which permit low income elders to use public benefits to hire workers on their own (as opposed to using licensed agencies), have forced some frail elderly “consumers” to make hiring decisions on their own in a stunted market with inadequate information. These are clearly issues looming on the policy horizon. Hopefully, the DHHS study is just the start. More on consumer choice programs to come.