Bill would ease prosecution of elder abuse

UPDATE: House Judiciary passed H.413 out of committee on Tuesday.

A bill currently under discussion in the House Judiciary Committee could expand the attorney general’s ability to prosecute abuse of Vermont’s vulnerable adults.

Under current Vermont law, criminal prosecution of such abuse results in the automatic shutdown of a nursing home or expulsion of an employee found guilty of abuse. House Bill 413 will gives the Vermont Attorney General authority to curb behavior through civil monetary penalties.

Rep. Maxine Grad, D-Moretown, who is vice chair of the judiciary committee, said the legislation gives the attorney general more options in prosecuting cases of abuse or exploitation where jail or criminal penalties may not be appropriate. Currently, Vermont’s attorney general can file criminal charges against individuals and facilities under Title 13 “Crimes and Criminal Procedures.” This amendment will expand civil enforcement options.

“Quite a few years ago, we revised laws and added further protection for vulnerable adults. After that, it came to my attention that this is a tool prosecutors could really use to help protect vulnerable adults while not necessarily penalizing nursing homes or individuals,” Grad explained.

In her testimony on the proposed bill before the House judiciary committee on Jan. 18, Assistant Attorney General Linda Purdy said that the bill would enable the attorney general to prosecute in cases where it is difficult to assign blame or where it may not be desirable to shut down an entire facility.

If a facility or individual is criminally prosecuted, they are placed on the List of Excluded Individuals and Entities by the federal Office of Inspector General, which bars the facility from receiving Medicare or Medicaid funds for a minimum of five years or the individual from being rehired, in most cases.

“If it’s a one-time event, the nursing home may not have known about this event. But if there’s a history and a pattern, and they do nothing about it, then it’s our obligation as an enforcement agency to try to change that behavior,” Purdy said. “And how do we try and change it? Well, there’s a couple of different ways. You can criminally prosecute, but if you criminally prosecute, the whole facility – you know, how do you assign blame?”

Discussion of H.413 in the House Committee on Judiciary came a day after Jan. 17 when nursing assistant Jodi LaClaire was charged with second-degree murder and abuse of a vulnerable adult in the 2009 death of a Brattleboro nursing home resident. LaClaire is accused of injecting an 83-year-old woman in her care with insulin, according to Purdy, so as to incapacitate her and access her credit cards.

LaClaire is facing an additional 16 counts of financial exploitation, and could receive 20 years to life for the second degree murder charge and a maximum of 20 years for abuse of a vulnerable adult, according to a press release on the attorney general’s website.

Under the new legislation, the attorney general would be able to sue for damages and also impose conditions on the facility or caretaker to improve their quality of care. Penalties would range from $5,000 if “no bodily injury occurs” to $50,000 in the case of death.

Licensing and Protection can also impose separate administrative penalties on facilities, though Purdy said sometimes this might not be enough. “When we call a facility or we send a letter, they tend to sit up and take notice a little more attention more than when Licensing and Protection or Adult Protective Services knocks on their door,” Purdy said.

The attorney general has relied on Vermont’s consumer protection laws, as well as common law claims of breach of contract in past cases of civil prosecution of abuse, neglect or exploitation. A third option of collaborating with the assistant U.S. attorney under the Federal False Claims Act is available, though it is significantly more time consuming.

The advantage of Bill 413, according to Purdy, is that it would give the attorney general a “specific civil enforcement tool for these types of violations” and the right to initiative a civil investigative demand process. The bill’s language is based on Vermont’s consumer protection laws and Massachusetts’s civil monetary penalty law, which is attached to its statute on abuse, neglect and exploitation of vulnerable adults.

The Medicaid Fraud & Residential Abuse Unit within the attorney general’s office carries out many of the investigations into allegations of abuse through referrals from the state Department of Disabilities, Aging and Independent Living’s (DAIL) Division of Licensing and Protection, as well as Adult Protective Services, the Medical Examiner’s Office, and law enforcement.

The Medicaid Fraud & Residential Abuse Unit tends to investigate more serious cases involving abuse or neglect of multiple vulnerable adults or where there appears to systematic abuse in a care home, while DAIL units typically investigate individual cases, Purdy said.

Both Grad and Purdy said the bill was in no way related to the recent lawsuit filed in December against DAIL for failure to respond to allegations of abuse in a timely manner.

“This is very separate from DAIL. The introduction of this bill pre-dated the lawsuit,” Grad said.

Purdy said that her office has seen the number of cases of abuse, neglect or exploitation increase in recent years.

“Sadly, the whole range of activity occurs in home and residential care facilities because they are a vulnerable population, and I think until the last couple of years, it’s basically been a hidden crime. Many times the vulnerable adults don’t want to cooperate because they’re ashamed, especially if it occurs in their home or in a facility that’s a nice residential home, where they’re comfortable. They’re afraid they’re going to have to leave what has now become their second home so they don’t want to cooperate,” Purdy said.

Though much of discussion around Bill 413 has focused on Medicare and Medicaid funded nursing homes, the attorney general has jurisdiction to prosecute cases of abuse or neglect where there are “two or more vulnerable adults in any sort of home care setting,” including private pay homes or facilities for adults with disabilities.