New Cal Law Allows for Video-Conferencing in Elder Abuse Cases

Among California’s new laws that went into effect on Jan 1 was AB 1158, which allows for the use of two-way video conferencing to examine witnesses who can't come to court. The new law may be a first step in tackling some of the obstacles posed by the 2004 US Supreme Court’s Crawford v. Washington decision, which was a major setback in the prosecution of elder abuse cases (even though the case didn’t involve elder abuse).

Here's the issue. Under the Sixth Amendment to the US Constitution, persons accused of crimes have the right to confront their accusers at trial. It limits the use of “hearsay,” or second-hand accounts made outside of courts, which often take the form of police officers conveying statements made by victims immediately after crimes are committed. These statements are particularly important in domestic violence and elder and child abuse cases because victims often recant their statements, and, under certain circumstances, their immediate responses are considered to be more reliable than those they make later. In elder abuse cases, there's the additional problem of victims not being able to come to court because they're ill, debilitated, or have relocated.

In the 1990s, advocates for victims of domestic violence, child abuse, and elder abuse sponsored laws allowing victims to avoid testifying in court in some situations. These included a 1999 elder abuse law (AB 526), which allowed juries to hear videotaped statements to police from elderly or incapacitated adults who were unable to come to court.

The Crawford case involved Michael Crawford, who was convicted of stabbing a man he believed had tried to rape his wife. The Supreme Court barred the tape-recorded, eyewitness account of the stabbing by Crawford’s wife, ruling that “testimonial statements” made out of court cannot be used at trial unless the person who made the statement is available for cross-examination. Statements are considered “testimonial” if they are knowingly made to law enforcement or government agents associated with law enforcement and provide evidence for later use in court. The court did not define the various types of testimonial statements that are covered, and subsequent cases are putting the definition to the test.

Still, the decision has had tremendous impact. It's restricted the use of evidence that was previously admissible and has been used to overturn convictions under child abuse and domestic violence laws. A state appeals court in San Jose used it to overturn California’s 1999 videotaping law.

Two-way video conferencing allows for victims who can't come to court to testify while protecting the rights of the accused to confront them. However, the use of "virtual confrontation" has been challenged in other settings, and it remains to be seen how it will be used in elder abuse cases. AB 1158 was sponsored by the San Francisco District Attorney and supported by the California District Attorneys Association, the California Senior Legislature, and the California Alliance for Retired Americans.

Feel-Good Laws or Real Reform?

California’s conservatorship reform package, hailed as landmark legislation, was inspired by the LA Times searing report “Guardians for Profit.” The series portrayed private professional conservators, who are subject to less regulation than hairdressers, plundering clients’ estates while judges overlooked incompetence, neglect, and theft. To question conservatorship reform these days is near blasphemy. But are these laws really good policy?

Some of the provisions clearly have merit. One requires professional conservators to be licensed and regulated through the Department of Consumer Affairs. It bears mentioning that the law was sponsored by the Professional Fiduciaries Association of California (PFAC), which had tried for nearly a decade to get it passed. Those in the trade clearly stand to benefit from weeding out their crooked colleagues.

There are also provisions for more frequent court reviews, which also sounds like a good idea. But the cases described in the Times involved situations where individual courts had failed to provide even minimally adequate oversight. Under the new laws, courts may be required to conduct as many as 4 investigations during the first year of a new conservatorship. Wouldn’t it make more sense to address glaring deficiencies before imposing new responsibilities on all courts, including those that have been doing a good job? Not to mention the added costs of all these investigations, which are passed on to conservatees (those who can pay), and the added intrusion into their lives.

The Times reported that LA County's PG turned away 4 out of 5 people referred and took months to act, during which, hundreds of seniors died. As a result, the new law will require PGs to take all appropriate cases and sets deadlines for doing so.

Again, the law seems to make sense, but the issue here is really resources. LA wasn’t providing any funds to its PG, and the new laws don't provide any additional new state funding.

The new laws also fail to address more fundamental issues. A study of conservatorships in San Francisco a few years ago revealed that the PG’s backlog of cases could be accounted for in part by the fact that local nursing homes often refuse to accept impaired elders unless they are under conservatorships, a practice of dubious legality. The PG considers these patients a low priority because they aren't in imminent danger. For the most part, it's the hospitals that are being hurt since patients often remain hospitalized for weeks or months after they no longer require treatment. Patients too may be harmed by these unnecessary stays.

The SF study also found that some cases are referred for conservatorship because doctors are uncomfortable making medical decisions for impaired patients. In these cases, it's the docs who are being protected—against having to make tough decisions and potential liability. Other referrals come from APS on behalf of elders who are gravely disabled or in imminent danger because someone needs authority to assess their needs. In elder abuse cases, referrals are sometimes made to freeze the assets of incapacitated elders when criminals have access to them. I've heard that in another county, conservatorships are often sought simply to enroll incapacitated elders in hospice programs.

These experiences suggest the need to look at the goals and purposes of conservatorship. Conservatorships are to protect elders—not nursing homes or doctors. And, because conservatorship is an arduous process with long-term impact, it’s for people with long-term needs, not as a quick fix. They’re also intended to be used when less restrictive options won’t suffice. The problem is, there just aren’t many alternatives, and those that do exist are either flawed or aren’t being used. They include:

· Probate Code §3200, which allows health and medical care providers, neighbors, and friends to petition courts to order medical treatment (and possibly placement) for impaired patients. The law is not being used widely and its potential applications are unclear.

· Probate Code §2952 provides a means to secure the assets of elderly, incapacitated, financial crime victims. It is currently only being used in a few counties.

· Welfare & Institutions Code §§15703 - 15705.40 provides for “protective custody” of vulnerable persons with cognitive impairments to assess their protective service needs. It too, is only being used in a few counties.

· Health and Safety Code §1418.8 authorizes nursing homes to form in-house interdisciplinary teams to make medical decisions for patients who lack decision-making capacity. The statute has been criticized for its inherent conflicts of interest.

The SF study concluded that a statewide task force was needed to review how these laws and others have been interpreted and implemented across the state, explore best practices in other states, and make recommendations. Needless to say, that hasn’t happened.

Okay, granted, studying problems and developing strategic approaches to solving them isn’t sexy. But it’s what’s needed to produce coherent policy. The other day I came across minutes from a meeting of the State Senate’s “Subcommittee on Aging Elder Abuse Workgroup,” which met for several years to hash out policy. Experts from around the state met in Sacramento at their own expense. Many of the group's ideas were enacted into law and account for California’s strong civil and criminal protections. Unfortunately, staffing for the group, which was imperative to keep it moving and on track, was discontinued.

Today, more than ever, we need groups like these to debate the merits of proposed laws, oversee their implementation, identify problems, and ensure that the problems are ironed out or sent back to the drawing board. Lets face it. Slap-dash approaches only create more problems and stretch scarce resources even thinner.

Archstone Foundation Creates Community of Contractors

Last month I was at the second “convening” of Archstone Foundation grantees, representatives from projects funded under the foundation’s 5-year, $8 million Elder Abuse and Neglect Initiative.

I’m not actually a grantee but consult on two training projects. Along with my colleague Eileen Goldman, I’m helping faculty at San Francisco's City College develop a curriculum for fire fighters, paramedics and emergency medical technicians, which will eventually be integrated into the school’s curriculum and made available on-line. The other is an advanced training curriculum on self-neglect for APS workers being developed by San Diego State. Training is one of three priority areas for Archstone; other grantees are targeting dental students (UCLA) and clergy (Santa Clara County).

Another priority is innovative projects, with the largest grant going to the University of California, Irvine for a Center of Excellence on elder abuse, an expansion of the University’s elder abuse forensics center, which has been around since 2003. The center, the first in the country to focus on elder abuse, does evidentiary investigations and interviews, runs two multidisciplinary teams; and provides education, technical assistance and consultation. They also do research and just completed a study on bruises that provides baseline data on “natural” bruising that can serve as the basis for evaluating the non-natural kind. Hopefully, it will help prosecutors and others respond to the ubiquitous “she fell” or “she’s on Coumadin” defenses. Another study is looking at the rates of pressure ulcers in nursing homes, which will be used to help identify substandard care, and a third study is looking at California’s APS data collection system (which, not surprisingly, is not getting rave reviews). Study results are available on the Center’s website at.www.centeronelderabuse.org.

The forensic center model is being replicated at the University of Southern California under another grant, and my former employer, the Consortium for Elder Abuse Prevention at the San Francisco Institute on Aging has a grant for what Consortium Director Mary Twomey has characterized as the “poor man’s forensics center.” It provides free geriatric assessments that focus on capacity and undue influence to community agencies and has organized a network of experts to provide on-line and telephone consultation. The center may lack the panache of the south California forensics centers, but fills a critical community need and a viable alternative to other communities.

Another large grant was awarded to add an elder abuse component to San Diego’s Family Justice Center in collaboration with the San Diego District Attorney’s Office. I first learned about the SD justice center last year in Waterloo, Ontario, where I sat in on at a meeting to discuss plans for adding an elder abuse component to their family justice center. Casey Gwinn, director of the SD center, had just been in town and caused quite a stir. Unlike the SD center, which operates out of a downtown high-rise, the Waterloo center is in a home-like setting. Still, the concept is the same: co-locating police, prosecutors, forensic experts, and victim advocates from public and private, non-profit agencies to provide “one-stop shopping” and “wraparound” services. Casey is also a pivotal player in a national project (US Office on Violence Against Women) to replicate the justice center model, an initiative he recently described on Oprah.

Other projects focus on the sticky issues of predatory lending (Council on Aging Silicon Valley) and investment fraud (WISE Senior Services of Santa Monica). The predatory lending issue has been particularly close to my heart ever since the Leadership Group of the San Francisco Consortium’s WE ARE FAMILY African American outreach project discovered over a decade ago that African American elders in SF were being targeted by predatory lenders working in cahoots with home repair companies to get them to take out loans to fix up homes damaged during the ‘89 earthquake. The tactics used to take homes and get them back have become much more sophisticated since then, and the Silicon Valley project is impressive. Project personnel are trying to figure out how to get to vulnerable seniors as early as possible.

California’s Administrative Offices of the Courts is doing a statewide survey of court practices in elder abuse. They’re focusing on a few courts, which include Alameda County’s Elder Court, which has gotten a lot of press lately. The court, under the guidance of Judge Julie Conger, has a case manager, a separate docket for elders, and has been using California’s elder abuse restraining order extensively. The orders, which differ from domestic violence orders (which are also used in elder abuse cases)can also offer protection against financial abuse and abuse by non-family members, and are one of several practices the AOC is looking at. The idea for the elder abuse order came from San Francisco’s MDT and was sheparded through the State Assembly by Consortium member Judy Hitchcock of Legal Assistance to the Elderly.

Several other grants were awarded to start specialized MDTs. The Area Agency on Aging Serving Napa and Solano Counties, and the Elder Financial Protection Network of Novato started financial abuse specialist teams (FASTs) and the Riverside County Regional Medical Center is developing an assessment team to focus on self-neglect. Other teams have been started by San Bernardino’s Arrowhead Regional Medical Center and the City of Long Beach.

I’ve been to dozens of contractors’ meetings and professional forums over the years, but what impresses me about the Archstone project is the tone. There’s a strong emphasis on creating a “community of contractors.” The group meets once a month by phone and has convenings twice a year for updates and to solicit feedback. Other unique features are a technical assistance component, provided by the Center on Excellence, which draws from its stable of in-house staff and community consultants, and the involvement of a research/evaluation firm. Also noteworthy is that the Archstone team includes experts. The foundation has been sponsoring innovative elder abuse prevention projects since the early 1990s, and Mary Ellen Kullman, the foundation’s vice president, has been active on the national scene, sponsoring and participating in events from the beginning. Laura Giles, the lead contract officer for the initiative previously worked for the Irvine forensics center. So far, the contractors have been pretty candid, a refreshing change from your standard dog-and-pony shows.

The high level of creativity, expertise, and experience; the continuity; both the diversity and the commonality of the projects; and the presence of practice-focused researchers and foundation reps around the table provide a rare opportunity. The group recognizes that and has started looking for new ways to harness its potential. Ideas that have been floated include building a network that includes non-professionals, community awareness campaigns and state-level advocacy. Personally, I’m hoping the project stays focused on the how-tos of serving victims. In this era of “evidence-based practice,” the new buzzword for designing programs based on tried and tested techniques, that, in itself, would be a tremendous contribution.