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Social workers understand the value base of the profession and its ethical standards, as well as relevant laws and regulations that may impact practice at the micro, mezzo, and macro levels.   Social Workers also understand the role of other professions when engaged in inter-professional teams. Social workers recognize the importance of life-long learning and are committed to continually updating their skills to ensure they are relevant and effective. For your assignment this week, assume you have already graduated and are working in the field of social work at the MSW level. You are employed at a skilled nursing facility as the social services director. You have been asked to prepare a PowerPoint presentation regarding your state’s (or providence’s) social work and mental health practice laws and regulations as they pertain to reporting of abuse and neglect of elder and dependent adults. This presentation will be shown to all newly-hired social workers as part of their new hire training.

In your presentation, include the following (based on the state in which you in live or intend to practice):

Explain how vulnerable adult and/or elder and dependent adult is defined according to your state’s laws or regulations.

Examine and explain the mandatory reporting laws in your state.

Provide contact information for making a report of suspected abuse/neglect.

Include information regarding consequences for failure to report.

Review the social work licensure regulations in your state. Explain any requirements regarding working with older adults.

Examining Cultural Competence in Health Care: Implications for Social Workers Elizabeth Horevitz,
Jennifer Lawson, andfulian C.-C. Chow This article examines and unpacks the “black box” of cultural
competence in health interventions with racial and ethnic minority populations. The analysis builds on
several recent reviews of evidence-based efforts to reduce health disparities, with a focus on how
cultural competence is defined and operationalized. It finds that the use of multiple similar and
indistinct terms related to cultural competence, as well as the lack of a mutually agreeable definition for
cultural competence itself, has resulted in an imprecise concept that is often invoked but rarely defined
and only marginally empirically validated as an effective health intervention. This article affirms the
centrality of cultural competence as an essential valuesbased component of optimal social work
practice, while also suggesting future directions for operationaHzing, measuring, and testing cultural
competence to build an evidence base on whether and how it works to reduce health disparities. KEY
WORDS: cultural competence; health care; health disparities, social work practice; social work values N
ASW’s (2008) Code of Ethics regards cultural competence as a fundamental ethical standard for social
work practice in all settings. There are, however, uncertainties regarding its meaning and application in
social work practice, resulting in a “black box” of cultural competence in health interventions with racial
and ethnic minority populations. Given that health disparities among ethnic minority groups have been
partly attributed to cultural differences between patients and providers, there is an ongoing concerted
effort to develop and implement culturally competent health interventions at both provider and
institutional levels. The current health hterature indicates that there is ambiguity regarding what exactly
is meant by cultural competence as a construct, how it is operationalized in healthrelated interventions,
and whether it improves health outcomes. This article describes the emergence of cultural competence
in the health and social work literatures and traces the development of various theoretical models to
explain this construct and its practical functions. It estabhshes what is known about cultural competence
as a practice paradigm and health intervention and identifies gaps in the current knowledge base.
Finally, future directions for research and social work practice in health settings are discussed.
OVERVIEW OF CULTURAL COMPETENCE It is well estabhshed that racial and ethnic minority groups
shoulder a disproportionate burden of negative health outcomes, a phenomenon broadly referred to as
health disparities (Smedley, Stith, & Nelson, 2003; Snowden, 2005; Williams, 2002; Williams & Jackson,
2005). A burgeoning research hterature on health disparities has shown unequivocally that individuals
from minority racial and ethnic groups are disproportionately likely to develop severe health problems
(such as diabetes, asthma, cancer, and heart disease) and to experience lower quahty care and poor
outcomes in relation to health problems even after controlling for multiple other factors such as
socioeconomic status, insurance status, and age (Betancourt, Green, Carrillo, & Ananeh-Firempong,
2003; Smedley et al., 2003). The recognition of this problem—that race and ethnicity are social
determinants of health— has made reducing these disparities a major focus of health care policy,
research, administration, and practice in the United States (Betancourt et al., 2003; Smedley et al.,
2003). The majority ofthose in the helping professions, including social work, are from white middleclass backgrounds (Center for Health Workforce Studies and NASW Center for Workforce Studies, 2006;
U.S. Department of Health and Human doi: 10.1093*sw/hlt015 © 2013 National Association of Social
Workers 135 Services, 2006). Studies of medical providers in multiple health care settings have shown
that their interactions with patients of a different race or ethnicity can result in different diagnosis and
treatment recommendations than those given to patients of the same race as the provider (Cooper,
Powe, & Fund, 2004; Cooper-Patrick et al., 1999; Snowden & Holschuh, 1992). In their landmark review
of health disparities for the National Institutes of Health, Smedley et al., (2003) identified discrimination
(at both individual and system levels) as a causal agent in the health disparities experienced by racial
and ethnic minorities in the United States. In response to the growing recognition of the role of
prejudice and discrimination in producing health disparities, an emphasis on cultural competence has
emerged in the health professions (Betancourt et al, 2003). This emphasis can be seen across many
domains of health care provision, including social work. Schools of social work are increasingly stressing
cultural competence and buUding it into educational curriculums to promote optimal services and
positive outcomes with diverse clients in different settings, including health care (NASW, 2001).
Furthermore, legislative proposals on the federal level calling for cultural competence in health care
education and practice have been increasing in recent years as part of a larger effort reduce racial and
ethnic health disparities (Betancourt, Green, Carrillo, & Park, 2005). Implicitly or explicitly, the impetus
behind such efforts is the question: Can cultural competence in health care reduce health disparities?
This question is complicated by the fact that cultural competence is defined differently by different
researchen, organizations, disciplines, and educators. Literature often neglects to define the term
“cultural competence” or even to discuss how culture itself is defined. In their seminal review of cultural
competence interventions for health disparities. Brach and Fraserirector (2000) found that the majority
of organizations and researchen that did define cultural competence used some variation of a definition
from the mental health literature: “a set of congruent behaviors, attitudes, and policies that come
together in a system, agency or aniongst professionals and enables that system, agency or those
professionals to work effectively in cross-cultural situations” (Cross, Bazron, Dennis, & Isaacs, 1989, p.
182). This definition is also used by NASW (2001). Adding to the difficulties in studying the meaning and
applications of cultural competence, multiple other terms are used in the literature to denote similar or
identical constructs, including cultural humility, cultural sensitivity, cultural attunement, cultural
proficiency, cultural tailoring, cultural awareness, transcultural awareness, multicultural sensitivity,
multicultural competence, and cultural interventions. It can be difficult to parse the distinctions in
meanings (where they exist) among these terms. For example, some articles use terms like “cultural
sensitivity” interchangeably with “cultural competence,” while others treat these terms as distinct
(though related), with cultural sensitivity denoted as an antecedent to achieving cultural competence
(Shen, 2004; Wells, 2000). Ultimately, the meanings of cultural competence and related terms are
determined and operationalized in the contexts in which they appear, according to the definitions
preferred by the author or organization. Despite the abundance of terms related to or synonymous with
cultural competence, greater understanding is needed on how this broad notion is applied in practice
settings as an intervention to help eliminate health disparities. In other words, what does the literature
tell us about the ways in which cultural competence is conceptualized and how it can be used as a
practical vehicle for improving patient outcomes? A review of the literature identifies two main trends in
culturally oriented models of health intervention: (1) those targeted at the individual provider level and
(2) those targeted at the organizational or structural level. Although this review cannot account for all
possible conceptions of cultural competence, the subsequent section synthesizes relevant health care
Hterature across many disciplines to examine some of the prominent models of how cultural
competence translates from a concept to an intervention. The literature presented in this review
indicates that although the importance of cultural competence in health practice has already been
widely recognized in the fields of medicine, public health, and nursing, there is a paucity of social work
literature conceptualizing this topic. A search of the electronic database Social Work Abstracts using the
subject terms “cultural competence” and “health” yielded only two articles (Schultz, 2004; Torres &
Rollock, 2007) both of which are primarily about mental health. Although social work has 136 Health &
Social Work VOLUME 38, NUMBER 3 AUGUST 2013 historically emphasized cultural competence in
practice settings such as mental health and chud welfare (see, for example, Bhui, Warfa, Edonya,
McKenzie, & Bhugra, 2007; Brave Heart, 2001; Fong & Gibbs, 1995; Livingston et al., 1994; McPhatter,
1999; Nash, Wong, & Trlin, 2006), it lags behind other disciplines in the development of knowledge
about cultural competence specific to health care research and practice. Accordingly, most of the
literature reviewed here originated in aUied disciplines, but its applicability to social work is discussed
throughout. MODELS OF CULTURAL COMPETENCE: FROM PROVIDERS TO INSTITUTIONS Provider-Level
Cultural Competence In micro-level Éameworks, which focus on patientprovider interactions, providers
are expected to overcome barriers presented by mismatches between the provider’s and the patient’s
cultures that may impede efficacy of treatment due to different health beliefs, behaviors, and
expectations (Tervalon & MurrayGarcia, 1998). Betancourt et al. (2003) addressed these provider-level
cultural incongruities, identifying mtiltiple areas in which cultural differences between patients and
medical providers might influence decision making and result in health disparities. These potentially
variant cultural factors include “patient recognition of symptoms; thresholds for seeking care; the ability
to communicate symptoms to a provider who understands their meaning; the ability to understand the
prescribed management strategy; expectations of care .. . ; and adherence to preventive measures and
medications” (Betancourt et al., 2003, p. 294). Cultural competence has emerged as a strategy to deal
with these individual differences and overcome their potential to create misunderstanding and affect
the treatment and outcomes of diverse patients. A major way that health providers may overcome
cultural barriers is by leaming about the cultures of their patients and becoming aware of their own
sdgmas and biases (Campinha-Bacote, 2002; Papadopoulos, Tilki, & Taylor, 1998; PumeU, 2002).
Providers who learn about the history, values, and beliefs of the cultural and ethnic groups to which
their patients and cUents belong can use this knowledge to overcome potential misundentandings that
result in disparate treatment and outcomes. Kim-Godwin, Clarke, and Barton (2001) asserted that this
leaming process is part of developing cultural skills and involves a “culturological assessment” to
“systematically examine beliefs, values, and practices of individuals, groups, and communities and to
determine health care needs within the cultural context” (p. 922). Another prevailing view is that
cultural competence is attained in a series of stages or a continuum. Although studies on social work,
nursing, and medical literature all vary in their definitions of cultural competence, most have described
a gradual gaining of cultural knowledge and its subsequent incorporation into behavior and clinical
actions (see, for example, Campinha-Bacote, 2002; Cross et al., 1989; IsaacsShockley, Cross, Bazron,
Dennis, & Benjamin, 1996). Using an evolutionary concept analysis of views on cultural competence
from multiple disciplines (nursing, medicine, psychology, education, and social work), Suh (2004)
created a comprehensive model of individual cultural competence that includes a thorough definition as
well as the inputs and outputs of competent practice. She defined cultural competence as “an ongoing
process with a goal of achieving ability to work effectively with culturally diverse groups and
communities with a detailed awareness, specific knowledge, refined skills, and personal and
professional respect for cultural attributes, both differences and similarities” (p. 96). She identified three
major attributes of cultural competence: ability (to resolve cultural differences), openness (to respect
diverse cultural groups), and flexibility (to adapt to different situations involving other cultures). In line
with the view of cultural competence as a process with multiple stages, Suh identified antecedents in
specific domains that must precede the attainment of cultural competence at the individual level: •
cognitive: appreciation of cultural divenity, awareness of the need for competence, foundational
knowledge of other cultures • affective: cultural sensitivity and respect for other cultures, perception
and recognition of cultural differences • behavioral: development of skills such as cultural assessment
and intercultural communication • environmental: cross-cultural encounters that create “an
environment that allows cultural competence to ensue” (Suh, 2004, p. 98) HOREVITZ, LAWSON, AND
CHOW / Examining Cultural Competence in Health Care 137 In tbis model, there is not only a
progression of stages through which an individual provider achieves cultural competence, but also a
variety of domains in which these stages occur. However, a difficulty with the definitions and processes
described in this model is the lack of specificity in how to operationalize many of the necessary skills for
achieving competence. For example, what does it mean, exactly, to “embrace culturally relativistic
perspective, intersubjectivity, and commitment to and appreciation of other cultures” (Suh, 2004, p.
98)? Similarly, how do people know when they have achieved sufficient cultural awareness and
knowledge within the cognitive domain? Although this lack of clarity presents a limitation to the
applicability of her model, Suh (2004) is not alone in offering a conceptual framework that is difficult to
translate from theory to practice. Wells (2000) synthesized prior models to present a two-phase
(cognitive and affective) continuum with the ultimate desirable outcome being cultural proficiency (p.
192), which she considered a step beyond cultural competence. The cognitive phase moves from
cultural incompetence (insufficient knowledge ofthe implications of culture on health behavior) to
cultural knowledge (a working knowledge of various elements of culture and how they affect behavior)
to cultural awareness (recognition of the impact of culture on health). The affective phase moves from
cultural sensitivity (integrating knowledge of culture into practice) to cultural competence (routinely
applying cultural knowledge in practice). Cultural proficiency, the ultimate goal, “includes mastery of the
cognitive and affective phases of cultural development” (p. 192). This model, too, might create
uncertainties for a practitioner trying to apply it to the pursuit of cultural competence. As an illustration,
the model remains unclear on exactly what cultural knowledge consists of or how one moves, for
example, from cultural knowledge to cultural awareness. Furthennore, one might question what cultural
competence, according to Wells’ definition (routinely applying cultural knowledge in health care)
actually looks like in practice, or how it substantially differs from the previous stage of cultural sensitivity
(integrating knowledge of culture into practice). In another theoretical model, Resnicow, Baranowski,
Ahluwalia, and Braithwaite (1999) emphasized practitioner knowledge and the need for cultural
sensitivity to promote health interventions and improve outcomes. The authors described two levels of
cultural knowledge necessary for cultural competence: symbolic knowledge and deep knowledge.
Symbolic cultural knowledge refers to understanding surface-level cultural cbaracteristics such as food
preferences, music, language, and clothing, and incorporating this information into practice to improve
intervention acceptance. Deep cultural knowledge involves understanding how historical,
environmental, and psychological forces influence bebavior, and then incorporating that understanding
into health interventions to be relevant to a target population. Although the literature generally
acknowledges that it is impossible to learn and know every possible cultural group’s history and beliefs,
Resnico^Af et al. (1999) demonstrated the continuing emphasis in cultural competence models on
teaching providers about the general cultural beliefs of specific ethnic minority groups. Although useful,
this technique has been increasingly criticized as superficial and having the potential to create
stereotypes. For example, medical anthropologists Kleinman and Benson (2006) warned of the danger of
culture being “made synonymous with ethnicity, nationality, and language . . . cultural competency
becomes a series of ‘do’s and don’ts’ that define how to treat a patient of a given ethnic background” (p.
1673). Thus, a growing body of literature has begun to emphasize cultural competence in health care as
an iterative process rather than an end-point goal for health care providen (Sub, 2004). Furthennore,
given that health disparities have been linked to broader macro-level issues such as barriers to health
care access and institutional discrimination, a growing number of models of cultural competence have
moved beyond the provider—patient relationship and called for cultural competence on an institutional
or structural level (Betancourt, Green, & CarriEo, 2002; Manoleas, 1994; Tervalon & Munray-Garcia,
1998; WeUs, 2000). Agency-Level Cultural Competence Several literature reviews have attempted to
summarize recommendations for achieving cultural competence at the institutional level. For example.
Brach and Fraserirector (2000) identified the following nine techniques for achieving agency138 Health
& Social Work VOLUME 38, NUMBER 3 AUGUST 2013 level cultural competence: providing interpreter
services; establishing recruitment and retention policies to increase ethnic minority representation;
providing training in cultural competence and sensitivity; coordinating with traditional healers in the
community; using community health workers; carrying out culturally competent health promotion that
incorporates cultural notions of health and well-being; including family and community members in care
and decision making; provider immersion into another culture; and administrative and organizational
,accommodations, such as providing a welcoming environment and ensuring linguistic appropriateness
of materials and infomiation. These nine techniques recognize that culture is embedded in a variety of
broader domains beyond the micro-level provider-patient relationship. By promoting the incorporation
of community health worken and coordinating clinic services with traditional healers, for example, this
model extends the reach of the clinic into the community, addressing what Betancourt et al, (2003)
referred to as “the inherent challenges in attempting to disentangle ‘social’ factors (for example,
socioeconomic status, supports/stressors, environmental hazards) from ‘cultural’ factors vis-à-vis their
influence on the individual patient” (p, 294), In this sense, such a model proposes not simply cultural
competence but sociocultural competence, which acknowledges the broader social contexts in which
cultural identities and behaviors are embedded (Betancourt et al,, 2003), Like Brach and Fraserirector
(2000), TrippReimer, Choi, Kelley, and Enslein (2001) also promote sociocultural approaches in health
interventions, which involve attending to broad social environmental faetón that may impede effective
treatment as well as addressing specific cultural differences. The authoR described the following
continuum of interventions: culturally neutral: standard practice typically developed by Anglos for
Anglos culturally sensitive: addresses issues of accessibility of services by using bilingual and bicultural
health information materials, and incorporates surface-level cultural knowledge, such as dietary
preferences, into practice culturally innovative: uses cultural symbols and notions of health and wellbeing to convey health promotion messages, working with established social institutions in the
community • culturally transformative: involves principles of social activism and change to unearth
power relationships and “partner with communities to alter aspects of the basic social structure” (p. 18)
The notion that social activism can or should be part of cultural competence, as seen in this model,
undencores the idea that health disparities are rooted in larger systems of inequality and discrimination
and has been echoed by othen (for example, Flaskerud [2007]), The majority of cultural competence
models, however, stop short of calling for broad social change, Betancourt et al, (2003) identified
institutionallevel cultural competence as one necessary component of a health care system that
“acknowledges and incorporates—at all levels—the importance of culture, assessment of cross-cultural
relations, vigilance toward the dynamics that result fi-om cultural differences, expansion of cultural
knowledge, and adaption of services to meet culturally unique needs” (p, 294), The authors presented a
threetiered intervention framework—clinical, organizational, and structural—through which cultural
competence can be implemented to reduce racial and ethnic health disparities. They emphasized the
necessity of culturally competent interventions on all three levels, as organizational changes cannot
improve minority health outcomes without concomitant changes in clinical practice and in the health
care delivery system. In other words, given that factors at all of these levels contribute to disparate
health outcomes for racial and ethnic minotities, they must all be addressed to equalize health
outcomes. This three-pronged framework identifies the following sociocultural barriers to care—(1)
structural barriers, such as lack of interpreter services, bureaucratic intake processes, and difficulties
accessing specialty care for minorities; (2) organizational barriers, such as lack of minorities in
institutional leadership and the health care workforce; and (3) clinical barriers, such as poor
providerpatient communication, provider stereotyping and discrimination, and misunderstanding of
cultural perspectives on health issues—and suggests interventions at each level: 1, structural—
improving access to and processes within the health care delivery system. HoREviTZ, LAWSON, AND
CHOW / Examining Cultural Competence in Health Care 139 including expanding interpreter services
and culturally appropriate health education 2. organizational—increasing divenity in the health care
workforce and leadership 3. clinical—working to “enhance provider knowledge of the relationship
between sociocultural faetón and health beliefs and behavion and to equip providers with tools and
skills to manage these factors appropriately” (Betancourt et al., 2003, p. 298) Thus, unlike the model by
Tripp-Reimer et al. (2001), this model calls for some structural changes related to health care access. But
it stops short of promoting larger-scale advocacy for systemic change, at least under the auspices of
cultural competence. In a more recent model. Organista (2007) called for agencies and health care
providen to increase service avaOability and access, assess problems in their social and cultural context,
select culturally and socially acceptable interventions, and increase accountability to recipients of
services and their communities. Although this model was created with Latino populations in mind, its
attention to health care barriers is relevant to multiple ethnic groups who experience health disparities.
The author argued that by addressing these four major domains, agencies and practitioners can more
systematically and comprehensively provide services that are responsive to the social and cultural needs
of patients strugghng with psychosocial and health problenis. This model, too, presented key
components of cultural competence at the institutional level (rather than merely the individual provider
level), including engagement with the broader comniunity, increased access to care for
socioeconomicaUy disadvantaged groups, and selection of interventions that are culturally appropriate.
What these models have in common is their attention to the role of macro-level factors as barriers to
care in addition to provider-level barriers. In these models, the individual provider is expected to be
culturally competent, but it is understood that to truly be effective in reducing health care disparities
among racial and ethnic minority groups, the agency itself needs to adopt culturally competent practices
on multiple systemic and organizational levels. Thus, cultural competence is conceived theoretically as
an umbrella temi for a multitude of individual-level skills and attitudes and organizational-level practices
and protocols. However, although these models theorize the process of attaining cultural competence at
various levels, empirical understanding remains liniited in regard to whether the various elements of
cultural competence work to reduce health or health care disparities (Beach et al., 2005; Brach &
Fraserirector, 2000). As can be seen from the previous examples, the sheer number of models and
frequent ambiguousness of terms make the implementation of certain aspects of these models both
challenging and subjective. METHODOLOGICAL AND CONCEPTUAL LIMITATIONS IN THE EVIDENCE BASE
One of the major issues with the literature on cultural competence is the lack of strong empirical
evidence on the difference various aspects of cultural competence make to actual health outcomes
(Brach & Fraserirector, 2000; Carpenter-Song, SchwaUie, Sc Longhofer, 2007; Castro, Barrera, Jr., &
Martinez, Jr., 2004). Although several systematic reviews have suggested that intervention strategies
that fall under the umbrella of cultural competence may be correlated with better health outcomes on a
variety of measures (Chin, Walters, Cook, & Huang, 2007; Fisher, Bumet, Huang, Chin, & Cagney, 2007;
Masi, Blackman, & Peek, 2007), rigorous analysis requires a critical look at how these strategies are
defined and operationalized in intervention studies aimed at reducing racial and ethnic health
disparities. Most of the current literature is descriptive and does not provide sufficient evidence to
support the claim that cultural competence reduces health disparities (CaUister, 2005). Furthermore,
studies that use experimental designs may test only one aspect of cultural competence (as conceived by
the models described earher), but are cited throughout the literature as evidence for the effectiveness
of cultural competence as a whole. For example, one frequently cited study (Jacobson et al., 1999) used
a randomized controlled design to show that health education materials targeted at an appropriate
Hteracy level and using appropriate language improved patient help-seeking behavior (request for and
receipt of pneumococcal vaccination) as compared with a control group. Such studies make an
important contribution to techniques to improve patient understanding of health education materials,
but it is unclear how a finding like this fits into the broader concept of cultural 140 Health & Social Work
VOLUME 38, NUMBER 3 AUGUST 2013 competence, of which language concordance is only one of many
components. Tripp-Reimer et al.’s (2001) article on the continuum of cultural competence in health care
interventions provides another example of the ambiguity in understanding of cultural competence as an
effective intervention. After presenting their continuum (as discussed earlier, from culturally neutral to
culturally transformative), the authors stated: It is important to note that none of the levels of cultural
intervention is necessarily “right” or better than the others. Each has a place in health care delivery.
Practitioners need to thoughtfijUy identify which level is appropriate in different clinical situations given
characteristics of the client, setting, health issue, and personal capabilities. (Tripp-Reimer et al., 2001, p.
18) It would seem that if culturally neutral and culturally transformative interventions are equally right,
then there are many unanswered questions about the circumstances under which each would be
appropriate. Furthermore, although it is important that researchers do not promote unsubstantiated
claims about the efficacy of interventions, the previously mentioned statement is symptomatic of a
larger issue in the field: We want cultural competence to work, but there remain mixed messages about
when, how, and why it can and should be used. In a salient commentary, Flaskerud (2007) argued that
cultural competence alone cannot resolve the issue of health disparities given the social context in
which disparities occur, including unequal distribution of wealth, resources, power, and knowledge, as
well as discrimination: Unfortunately, the identification of poverty and discrimination as important
contextual factors for understanding social vulnerability to disease does not serve as a guide for
effective action to reduce health disparities any more than does requiring cultural competence in health
practitioners and researchers. For whue the question of what needs to be done can be answered
simply—reduce or eliminate poverty and discrimination—the methods for accomplishing this are not
clear. (Flaskerud, 2007, p. 432) The question emerging from such critiques is: what do we know, and
how well do we know it? The answer seems to be that although cultural competence is an increasingly
valued framework for optimal practice among social worken and other health professionals, the
enTpirical evidence is equivocal at best on whether this practice standard actually translates to
reductions in disparity of health outcomes. There have been few head-tohead comparison trials of
culturally competent versus “standard” or “neutral” health interventions. The majority of studies on
culturally competent interventions are descriptive, and very few have looked at actual parient outcomes
(CaUister, 2005). A review by (Fisher et al., 2007) idenrified 38 interventions that used some form of
culturally oriented interventions to target racial and ethnic health disparities. Although none of the
studies in the review specifically compared the efficacy of a culture-specific intervention to that of a
non-culture-specific intervention, the studies all used some form of cultural adaptation and the majority
showed positive effects on measurable health outcomes. The authors concluded that culture-specific
health care interventions showed promise in regard to reducing racial and ethnic health disparities.
However, as the authors acknowledged, it is not possible to assess the causal impact of culturally
adapted interventions compared with “generic” interventions due to the lack of control groups against
which to make direct comparisons. In addition to these methodological weaknesses in the current
evidence base, there are questions of whether rigorous empirical study on this topic could ever capture
the potentially complex and nuanced effects of culturally tailored interventions in the long term. Smyth
and Schorr (2009) recently argued that the growing emphasis on experimental methods is dangerous
when assessing interventions to improve outcomes for vulnerable populations: We pay too high a price
when we give credence only to evidence that provides absolute assurance of change in a particular
domain, for that threatens to skew our understanding of what constitutes a good intervention that
changes lives, not one piece of a life. (Smyth & Schorr, 2009, p. 2) HoREviTZ, LAWSON, AND CHOW /
Examining Cultural Competence in Health Care 141 Attempting to quantify cultural competence may
also lead to rigidity in implementation that may be counterproductive to the core goal of cultural
competence: to effectively reach all members of tbe community. IMPLICATIONS FOR SOCIAL WORK
RESEARCH AND PRACTICE The theoretical haziness and weak empirical evidence, along with the doubts
about whether cultural competence is an appropriate topic for experimental study, may seem to
present a challenge for social workers. However, these issues need not threaten the continued
development, practice, and promotion of cultural competence as a primary ethical standard for social
workers. The core values of social work are well served by a strong focus on cultural competence. The
mission and purpose of the social work profession demand respect for cultural diversity and practices
that support this ethical commitment. But beyond the affirmation of cultural competence as an essential
social work value and standard, there remain unanswered questions about its effectiveness as an
intervention to reduce health disparities. Such questions are important to avoid unsubstantiated claims
regarding the evidentiary status of these practices. Social work researchen and practitionen concerned
with these questions of effectiveness can actively help bridge the gap between theory and practice.
Given that social workers practice in a wide array of health care settings, one possible way for them to
buOd tbe knowledge base on cultural competence in health settings is through practice-based evidertce,
or the process of documenting and measuring real-world practice (Swisher, 2010), which can bolster the
literature with specific best practices relevant to social workers in health care settings. Exploratory and
descriptive case studies from direct practice can lay the groundwork for more rigorous scientific
evaluation of promising practices with racial and ethnic minority populations and help further
operationalize the theoretical components of cultural competence. Considering that cultural
competence is currently best understood as a broad umbrella term for multiple practices and
techniques at both micro and macro levels, the following areas are ripe for further exploration and
research: Training in cultural competence. Although there has been some research on cultural
competence training among medical providers (Lie, Lee-Rey, Gomez, Bereknyei, & Braddock, 2010;
Tervalon & Munray-Garcia, 1998), many questions remain to be answered, such as the following: How
does training in techniques such as “cultural humuity” and “culturologic assessment” influence social
work practice in health settings? What kind of training is most useful for social workers in health care
settings, and how should it be delivered? Engagement. Effectively reaching and engaging racial and
ethnic minority populations in health care settings remains a challenge at both the practitioner and
agency levels. Outcomes of particular importance are improving health care access and utilization by
racial and ethnic minority populations. The literature has identified some potentially promising practices
in need of further investigation, such as using lay community health worken (Spencer, Gunter, &
Palmisano, 2010; Swider, 2002) and coordinating with traditional healen and community outreach
programs (Horowitz et al., 2008; Uba, 1992; Vera & Speight, 2003). In addition, at tbe agency level,
recruitment and retention of racial and ethnic minorities in the bealth care workforce is an agreed-on
component of cultural competence (Betancourt et al., 2003; Brach & Fraserirector, 2000), yet the search
for effective methods for achieving this goal would benefit from additional research. Treatment. The
effects of culturally tailored treatments on health status and level of functioning remain wide open for
social workers to explore. Given the broad range of settings in which medical social workers practice,
there is great potential for them to develop task-oriented and setting-specific research questions. For
example, in the wake of health care reform, social workers wul increasingly be employed in primary care
settings as part of the greater medical-bome movement (Druss & Mauer, 2010). This raises vital
questions about what culturally tailored interventions social workers can use in these settings to more
effectively manage chronic and acute health and mental health conditions in increasingly multicultural
patient populations. 142 Health & Social Work VOLUME 38, NUMBER 3 AUGUST 2013 CONCLUSION
Although there are many similarities across models of cultural competence, ambiguous terminology and
definitions inhibit the easy translation of theory into health practice settings. On a conceptual level,
cultural competence is best undentood as an umbrella term that embodies multiple techniques ranging
from language and literacy concordance and cultural assessment of patients at the provider level to
community outreach and minority workforce recruitment at the organizational level. Although much of
the literature points to the potential of cultural competence to reduce health disparities, there is limited
evidence specifying whether different elements of cultural competence work to achieve this goal. The
use of multiple similar and indistinct terms related to cultural competence, as well as the lack of a
mutually agreeable definition for cultural competence itself, has resulted in an imprecise concept that is
often invoked but rarely defined and only marginally empirically validated. Cultural competence is
presently operationalized so broadly that almost any technique can be claimed to be culturally
competent. What is the cutoff point between interventions that are culturally competent and those that
narrowly address demographic differences such as language? Although most social work and health
researchers would agree that health disparities must be addressed through a cultural lens,
operationalizing this process remains a challenge. Cultural competence holds a rightfully central place in
the values and ethical standards of the social work profession. However, to examine the effectiveness of
cultural competence as a health intervention, additional research is needed to operationalize theoretical
constructs, to develop salient research questions, and to carry out rigorous testing. Social work
practitioners in health settings are well positioned to contribute to this process. In addition to
exploratory or descriptive case studies to lay the groundwork for more rigorous quantitative research,
qualitative accounts of experiences, or process, can help move the field toward a more cohesive
agreement on how to operationalize cultural competence and which techniques under this broad
construct are most effective. Social work practitioners can provide practice-based evidence to advance
the development of effective and culturally competent techniques. In addition to using cultural
competence as a values-based paradigm for optima] social work practice, further research on cultural
competence as an intervention can inform the shift out of the black box into micro and macro levels of
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Counseling Psychologist, 31, 253-272. 144 Health dr Social Work VOLUME 38, NUMBER 3 AUGUST 2013
Wells, M, L (2000), Beyond cultural competence: A model for individual and institutional cultural
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52,588-597, Williams, D, R,, &Jackson, P, B, (2005), Social sources of racial disparities in health. Health
Affairs, 24, 325—334, Elizabeth Horevitz, PhD, MSW, is a postdoctoral Fellow, University of Galifomia,
San Francisco, Department of Psychiatry, Jennifer Lawson, MSSW, is doctoral candidate, Julian ChunChung Chow, PhD, is associate professor. School of Social Welfare, University of Galifomia, Berkeley.
Address correspondence to Elizabeth Horevitz, 401 Pamassus Avenue, LangPorter University of
California, San Francisco, San Francisco, GA. 94143 – 0984; e-mail: elizabeth.horevitz@ucsf.edu. Original
manuscript received December 17, 2011 Final revision received August 24, 2012 Accepted
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Document (1)
1. NOTE: Do I Really Have To?: An Examination of Mandatory Reporting Statutes and the Civil and Criminal
Penalties Imposed for Failure to Report Elder Abuse, 25 Elder L.J. 133
Client/Matter: -None-
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NOTE: Do I Really Have To?: An Examination of Mandatory Reporting
Statutes and the Civil and Criminal Penalties Imposed for Failure to Report
Elder Abuse
2017
Reporter
25 Elder L.J. 133 *
Length: 13410 words
Author: Rachael Bernal
* Rachael Bernal is an Associate Editor, 2016-2017, Member 2015-2016, The Elder Law Journal; J.D. 2017,
University of Illinois, Urbana-Champaign; B.A. 2012, Bowdoin College.
Highlight
Despite the growing evidence that elder abuse is a severe and growing problem in the United States, Congress has
been slow to enact legislation to rectify the issue. Due to inaction from the legislature, there is little guidance or
support from the federal government as to how to address this ever-growing problem. Coupled with lack of funding,
the lack of federal guidance on how to address elder abuse has hampered state mechanisms for prevention and
detection of elder abuse. This Note examines mandatory state reporting statutes and the penalties they impose for
failure to report suspected cases of elder abuse, and provides a recommendation for effective mandated reporting
laws.
Text
[*133] I. Introduction
Dennis Mathis, a seventy-eight-year-old resident of a California skilled nursing facility, depended on the care of
staff to bathe and relieve himself due to paralysis on the left side of his body. 1 Instead of caring for Mr. Mathis, the
certified nursing assistants (CNAs) at Mr. [*134] Mathis’s facility sexually assaulted and battered him. 2 The CNAs
responsible for Mr. Mathis’s care forced him to eat his own feces, pinched his nipples and penis, and twisted the
skin on his arms. 3 For months Mr. Mathis told other staff members that he was afraid his abusers would kill him. 4
At least three other staff members witnessed the abuse. 5 But no one at the facility reported the abuse. 6
1
Pamila Lew et al., Victimized Twice: Abuse of Nursing Home Residents, No Criminal Accountability for Perpetrators, Disability
Rights California 1, 7 (Apr. 2010), http://www.disabilityrightsca.org/pubs/548801.pdf [hereinafter Lew].
2 Id.
3 Id.
4 Id.
Page 2 of 19
25 Elder L.J. 133, *134
Unfortunately, stories like Mr. Mathis’s story are all too common. Despite state statutes that mandate reporting of
suspected cases of elder abuse, elder abuse remains severely underreported. 7
In 1981, the House Select Committee on Aging held a series of hearings on elder abuse. 8 As a result of these
hearings, the committee issued a report, Elder Abuse: An Examination of a Hidden Problem, in which they
discussed the nature and prevalence of elder abuse in the United States. 9 The report determined that elder abuse
was both widespread, with an estimated one million persons victimized by elder abuse annually and severely
underreported. 10 Given the increase in the elderly population, elder abuse has become an even bigger problem
and will continue to be a serious issue as the elderly population continues to grow. 11 In fact, in 2004, the National
Center of Elder Abuse (NCEA) conducted a study showing a twenty percent increase in reports of elder and
vulnerable adult abuse and a fifteen percent increase in substantiated reports of elder and vulnerable adult abuse.
12 [*135] Some experts estimate that as many as two million elder Americans are victims of elder abuse each
year. 13
Despite the growing evidence that elder abuse is a severe problem in the United States, the legislature has been
slow to act. In its 1981 Elder Abuse report, the House Committee on Aging recommended that Congress provide
assistance to the states in aiding victims of elder abuse. 14 However, federal action was not forthcoming. 15
Congress considered H.R. 7551, the Elder Abuse Treatment & Prevention Act of 1980, but it was never enacted
despite being brought up in several different sessions of Congress. 16 In 1991, the Subcommittee on Health and
Long-Term Care of the House Select Committee on Aging produced another report that criticized Congress for the
past decade of “shame and inaction.” 17 Because of this inaction, there is little guidance or support from the federal
government as to how to address the problem of elder abuse. 18 Additionally, decreases in federal funding of elder
5 Id. at 7-8.
6 Id. at 8.
7
Molly Dickinson Velick, Mandatory Reporting Statutes: A Necessary Yet Underutilized Response to Elder Abuse, 3 Elder L. J.
165, 167 (1995) (estimating that elder abuse is underreported by ninety percent) [hereinafter Velick].
8
Id. at 169.
9
Seymour Moskowitz, Saving Granny from the Wolf: Elder Abuse and Neglect – the Legal Framework, 31 Conn. L. Rev. 77, 83
(1998) [hereinafter Moskowitz].
10 Id.
11
Id. at 86-87 (“The proportion of those over eighty-five years old is growing faster than the number of elderly in general.
Although representing only 1% of the population in 1980 (2.2 million), this over-age eighty-five segment will double to 2% by
2000 (4.6 million) and increase to more than 5% by 2050 … given the large and increasing number of cases of elder abuse and
neglect, we can predict an increasing demand for services to deal with this problem.”); see Joseph Barber, The Kids Aren’t All
Right: The Failure of Child Abuse Statutes as a Model for Elder Abuse Statutes, 16 Elder L. J. 107, 109 (2008) [hereinafter
Barber].
12 See Barber, supra note 11, at 110.
13 U.S. Gov’t Accountability Off., GAO/HRD-91-74, Elder Abuse: Effectiveness of Reporting Laws and Other Factors 1, 1 (1991).
14 Moskowitz, supra note 9, at 84.
15
Id.; see also Barber, supra note 11, at 118 (“Since the early 1990s, congressional committees have held a series of hearings
in an attempt to raise the elder abuse problem in the national conscience; all without tangible results.”).
16 Moskowitz, supra note 9, at 84.
17
Chairman of Subcomm. on Health and Long-Term Care, House Select Comm. on Aging, House of Representatives, 101st
Cong., Elder Abuse: A Decade of Shame and Inaction 1, 2 (Comm. Print 1990) [hereinafter Elder Abuse].
Page 3 of 19
25 Elder L.J. 133, *135
abuse prevention programs lead to corresponding decreases in state funding. 19 The lack of funding, coupled with
the lack of federal guidance on statutory responses to elder abuse, has hampered the state mechanisms for
prevention and detection of elder abuse.
States have been slow to act on the issue of elder abuse as well. As late as 1977, not a single state had a statute
that was targeted at [*136] protecting the elderly. 20 By 1980, only sixteen states had mandated reporting statutes
requiring certain professionals and personnel to report suspected elder abuse. 21 Today, every state but New York
has mandatory reporting statutes in place. 22 However, while forty-nine states have mandatory reporting statutes,
there is no uniform standard of penalties for failure to report elder abuse. 23
In fact, despite the fact that every state has some sort of reporting statute, these statutes vary vastly from state to
state. Elder abuse itself is defined differently from state to state. Furthermore, even in states that mandate
reporting, there is a wide variance in the remedies presented for failing to report. Failure to report can range from a
civil fine to a felony. In those states that treat failure to report as a criminal matter, statutes are widely unenforced,
24 and so do not actually create incentives to report elder abuse. 25 Additionally, while most states have statutes
that direct individuals to report, only a handful of states take the responsibilities of institutions into account. 26
Given the importance of education and awareness of elder abuse and mandatory reporting, this seems to be an
oversight that ought to be remedied.
This Note will examine state mandatory reporting statutes and the penalties they impose for failure to report
suspected cases of elder abuse. Specifically, this Note will examine the differences between those states that
impose criminal penalties for failure to report suspected cases of elder abuse, and those that impose civil penalties.
Elder [*137] abuse encompasses a wide range of categories. 27 This Note will focus on mandatory reporting of
18
Moskowitz, supra note 9, at 84; Velick supra note 7, at 171 (“The report concluded that without more federal funding, the
states are “severely hampered in channeling monies into this newly designated social services area — elder abuse protective
services — on their own authority.'”).
19
See Barber, supra note 11, at 117-120 (“Many states had passed elder abuse statutes – using mandatory reporting laws – in
the 1980s expecting to receive federal funding in reliance on the 1981 congressional report … states annually spent $ 3.80 per
elderly resident, on average, on elder abuse prevention while spending $ 45.07 annually per resident child on child abuse. State
spending on elder abuse had actually decreased 40% due to a corresponding decline in federal block grants.”); see Velick,
supra note 7, at 171 (“Without more federal funding, the states are “severely hampered in channeling monies into this newly
designated social services area — elder abuse protective services — on their own authority.'”).
20 Moskowitz, supra note 9, at 86.
21 Id. at 85.
22
Ryan Patrick Backer et al., New York Doesn’t Have Mandatory Reporting: Good or Something to Change?, Nyc Elder Abuse
Ctr., (Jan. 8, 2015), http://nyceac.com/elder-justice-dispatch-new-york-state-doesnt-have-mandatory-reporting-good-orsomething-to-change/ [hereinafter Backer].
23 Barber, supra note 11, at 119-20.
24
Barber, supra note 11, at 119-20, 126 (2008); see also Linda K. Chen, Eradicating Elder Abuse in California Nursing Homes,
52 Santa Clara L. Rev. 213, 242 (2012) (“Some states have criminal penalties for mandated reporters that fail to report … .
Interestingly, doctors and other professionals are generally spared from the criminal sanctions and are merely referred to their
respective professional organization for punishment … . These criminal statutes, however, are rarely enforced due to a
combination of lack of resources and the difficulty in elder abuse detection.”) [hereinafter Chen].
25 Barber, supra note 11, at 120.
26
Laura Remick, Penalties for Failing to Report Elder Abuse: Comparison Chart with Provisions From Adult Protective Services
Laws,
by
State,
ABA
Commission
on
Law
and
Aging
(2009),
http://www.americanbar.org/content/dam/aba/administrative/law_aging/2011/2011_aging_ea_failure.authcheckdam.pdf
[hereinafter Remick].
Page 4 of 19
25 Elder L.J. 133, *137
physical and sexual abuse. 28 Since underreporting of elder abuse is such a serious problem, this Note will attempt
to compare the effectiveness of criminal and civil penalties in incentivizing reporting of suspected elder abuse. In
addition, this Note will address mandatory reporting laws with as they specifically relate to the needs and rights of
the elder population.
Section II examines the development of mandatory reporting laws for elder abuse. Elder abuse laws were modeled
after child abuse laws and have only recently been implemented. Section III will look at the effectiveness of criminal
and civil penalties for mandated reporters who fail to report. In Part A, we will look at those states that treat failure to
report elder abuse as a criminal matter. Part B will examine those states that impose civil penalties on mandated
reporters who fail to report. Part C will discuss the Idaho statute regarding failure to report, in which institutions are
held responsible when their employees fail to report elder abuse. Section IV will present a recommendation for
effective mandated reporting laws. Finally, Section V will conclude.
II. Background
The elderly population in the United States is a growing one. Thirteen percent of the population, or 40.3 million
people, were people aged sixty-five or older according to the 2010 U.S. Census. 29 This population is expected to
continue to grow. “By 2050, people age 65 and older are expected to comprise 20% of the total U.S. population.” 30
In fact, the elderly population is the fastest growing segment of the [*138] population in the United States. 31
Problems facing this growing sector of the population are thus critical issues for our country.
It is estimated that there are nearly 1.5 million elderly people abused annually, and this number will continue to
increase as the elderly population increases. 32 There are Adult Protective Services (APS) agencies in every state
in the United States. 33 Forty-nine states have mandated reporting of elder abuse laws. Even so, the number of
cases of elder abuse that go unreported every year is overwhelming. The National Elder Abuse Incidence Study
(NEAIS) found that there are approximately five unreported instances of elder abuse for every reported instance of
elder abuse. 34 Other studies have estimated that there are as many as twenty-four undetected cases of elder
abuse for every case that is reported to an agency or service organization. 35
27
Laura Remick, Failing to Report and False Reporting of Elder Abuse: Penalties Under State Adult Protective Services Laws,
31 BIFOCAL 1, 10 (2009) (“According to the National Center on Elder Abuse, there are seven types of elder abuse. These
include: (1) physical abuse … (2) sexual abuse … (3) emotional or psychological abuse … (4) neglect … (5) abandonment … (6)
financial or material exploitation … and (7) self-neglect.”).
28
Types of Elder Abuse, Nat’l Ctr. on Elder Abuse (2007) http://www.ncea.acl.gov/faq/abusetypes.html (last visited Mar. 11,
2017) (Defining physical abuse as “the use of physical force that may result in bodily injury, physical pain, or impairment” and
defining sexual abuse as “non-consensual sexual contact of any kind with an elderly person.”).
29
Statistics/Data, Nat’l Ctr. on Elder Abuse (2007), https://ncea.acl.gov/whatwedo/research/statistics.html (last visited Mar. 11,
2017) [hereinafter Statistics/Data].
30 Id.
31 Id.
32 Moskowitz, supra note 9, at 87.
33 Statistics/Data, supra note 29.
34
See The National Elder Abuse Incidence Study, The Nat’l Ctr. on Elder Abuse (Sept. 1998),
https://aoa.acl.gov/aoa_programs/elder_rights/ELDER_ABUSE/docs/ABuseReport_Full.pdf [hereinafter National Elder Abuse
Incidence Study].
35 Statistics/Data, supra note 29.
Page 5 of 19
25 Elder L.J. 133, *138
Elder abuse comes in many different forms and takes place in many different settings. Experts believe that as widespread as elder abuse is, there are far more cases that go unreported and are never identified. 36 The NEAIS
refers to this as the “iceberg” theory of elder abuse. 37 Aside from the directly negative effects, elder abuse leads to
higher risk of death, risk of psychological distress, and increased health problems. 38 Furthermore, it is estimated
that the elder abuse causes increased direct medical costs of $ 5.3 billion to the annual health expenditures in this
nation. 39 Identifying and preventing further cases of elder abuse would not only have profoundly beneficial effects
on the elderly community, in terms of both health and emotional well-being, but it would also have very real
economic benefits for the nation’s health care system.
[*139]
A. Elder Abuse in Facilities
There are close to four million Americans living in long term care facilities in the United States. 40 Of these four
million, six out of seven are elderly, or sixty-five years or older. 41 It is estimated that over forty percent of the
elderly population will end up in a nursing home before they die. 42 Unfortunately, elder abuse in these nursing
homes is all too common. One study, in which two thousand nursing home patients were interviewed, found that
forty-four percent of the residents interviewed had been abused and, disturbingly, ninety-five percent of those
interviewed said they had seen another resident being abused or neglected. 43 During a two-year period, from
1999-2001, “nearly 1 in 3 U.S. nursing homes were cited for violations of federal standards that had potential to
cause harm or that had caused actual harm to a resident,” and “nearly 1 out of 10 homes had violations that caused
residents harm, serious injury, or placed them in jeopardy of death.” 44 Additionally, instances of elder abuse in
nursing homes appear to be on the rise. 45
Despite such extremely high rates of occurrence of elder abuse in these long-term care facilities, the pervasiveness
of abuse is often downplayed or dismissed by those who run the facilities. A recent U.S. House of Representatives
report on elder abuse in nursing homes found many “cases where nursing homes ignored signs of serious abuse.
In one instance, state inspectors asked about a female resident who appeared to have been sexually abused. The
director of nursing replied, “maybe she fell on a broomstick.'” 46 Clearly, directors of nursing [*140] homes are not
responding appropriately considering the severity of the problem. 47
36 National Elder Abuse Incidence Study, supra note 34, at 5-10.
37 Id. at 5-6.
38 See id.
39 See Statistics/Data, supra note 29.
40
Abuse
of
Residents
in
Long
Term
Care
Facilities,
Nat’l
Ctr.
on
Elder
Abuse
http://ddsn.sc.gov/providers/Documents/NCEA_LTCF_ResearchBrief_2013.pdf [hereinafter Abuse of Residents].
(2013),
41 See id.
42 Id.
43 Id.
44 Id. at 1.
45
Abuse of Residents Is a Major Problem in U.S. Nursing Homes, U.S. House of Rep. Report 6 (July 30, 2001),
http://canhr.org/reports/2001/abusemajorproblem.pdf (“The percentage of nursing homes cited for abuse violations during
annual state inspections has almost tripled since 1996. In 1996, 5.9% of all nursing homes were cited for an abuse violation
during their annual inspections. The percentage of homes cited for abuse violations has risen in each successive year. In 2000,
16.0% of nursing homes were cited for an abuse violation during their annual inspections.”).
46 Id. at ii.
Page 6 of 19
25 Elder L.J. 133, *140
While abuse occurs at high rates, in nursing homes and other long-term care facilities, reports of abuse seem to
occur at much lower rates. 48 In many incidents, abuse is only discovered when a formal complaint is made. 49
However, formal complaints are not filed in many cases of resident abuse. 50 Complaints are generally filed by
family members or other parties outside of the nursing home. Given that that so many violations are only uncovered
through investigations prompted by formal complaints (made by outside parties), it is clear that nursing home staff
are not adequately reporting or investigating instances of elder abuse. 51 Abuse is not being reported or
investigated unless there are outside observers involved. 52
In fact, a report to the U.S. House of Representatives found that “the most frequent abuse violation was the failure
to properly investigate and report allegations of resident abuse, neglect, or mistreatment or to ensure that nursing
home staff do not have a documented history of abusing, neglecting, or mistreating residents.” 53 The report found
that over a two-year period, 3,797 nursing homes were given citations for failure to properly report or investigate
abuse, neglect, or mistreatment of elders. 54 Failure to report or appropriately investigate was the most prevalent
violation over the course of the study. 55 The second most common violation was closely related. Developing
protocols and written polices prohibiting abuse and other forms of maltreatment [*141] of residents 56 was the
second most common violation, according to the report, with 2,314 nursing homes receiving citations for this
offense over the two-year study period. 57 Clearly, abuse is occurring in nursing homes, yet reporting and adequate
procedures for investigating, preventing, and redressing this abuse have not yet been developed or put in place in
the vast majority of these long term care facilities. In order to do an adequate job of caring for their elderly
populations, these facilities need to develop practices that can address this problem.
B. Elder Abuse in the Home
A large percentage of elder abuse is perpetrated by family members of the victims themselves. 58 In fact, the
NEAIS found that adult children were the most often reported alleged abusers of the elderly, 59 although other
47
See id. (showing numerous instances where nursing home directors failed to respond adequately, and in some cases simply
did not investigate instances of elder abuse perpetrated by staff members or other residents).
48
Id. at 8 (“Because formal complaints are not filed for many cases where residents are abused, it is likely that the incidence of
abuse is even higher than indicated in this study.”).
49
Id. (“In addition to the general problems of underreporting identified by GAO, researchers have reported that abuse cases are
especially likely to go undetected or unreported. Almost 40% of the abuse violations identified in this report were discovered
after the filing of a formal complaint.”).
50 Id.
51
Id. at 5-6 (“If a resident, a resident’s family, or another member of the community files a complaint about substandard care in
a nursing home, the state must investigate that complaint. The data obtained from HCFA indicates that many abuse cases are
uncovered only during these complaint investigations.”).
52 Id.
53 Id. at 5
54 Id.
55 See id. at 8.
56
Id. (“The second most common abuse violation was the failure to develop and implement written policies that prohibit abuse,
mistreatment, and neglect of residents and the misappropriation of residents’ property.”).
57 Id.
58
National Elder Abuse Incidence Study, supra note 34, at 5-6. (“Relatives or spouses of the victims commit most domestic
elder abuse according to reports supplied both by APS and sentinels. Approximately 90 percent of alleged abusers, according to
both types of sources, were related to victims. APS data suggest that adult children are the largest category of abusers, across
all forms of abuse … . Adult children also account for the largest category of alleged abusers in sentinel reports (39 percent).
Page 7 of 19
25 Elder L.J. 133, *141
studies have pointed to spouses, as well as adult children, as the main perpetrators of elder abuse in the home. 60
Because elders are so frequently cared for by their own family members, the high proportion of perpetrators who
are family members makes sense. 61
As is the case with elder abuse that occurs in care facilities, elder abuse that occurs in the home is often widely
underreported. 62 This is often exacerbated by the fact that the victims of elder abuse in domestic situations are
isolated and do not often interact with outside [*142] parties who could report the abuse. 63 When elders do
interact with outside care professionals, it is critical that the professionals have training on how to detect and report
elder abuse, because if they do not, then the abuse goes undetected and unreported. 64 “Elder abuse thrives on
total isolation – it is a “secret crime.’ Therefore, when people do spot a victim, it is crucial that they report the
suspected abuse … because another opportunity to address the problem may not arise.” 65 Underreporting is thus
an even more serious issue in the context of elder abuse that occurs specifically within the confines of the victim’s
home, because opportunities for detection and reporting of abuse by outside people are so few.
Frequently, the victims themselves will not report the abuse. Because the perpetrators are so often family members,
especially children or spouses, 66 the victims of abuse are reluctant to report because they do not want to get their
family members in trouble. 67 Victims of elder abuse may also not want to report abuse because they may fear
retaliation from their caregiver or abuser. 68 In cases where the abuser is the sole or primary caregiver, this is an
especially salient fear. 69 Furthermore, some victims may be physically or mentally unable to report their abuse. 70
Because elders abused in the home have many limitations preventing them from being able to report their own
abuse, reporting of elder abuse by the few health care professionals with whom these victims may have the chance
to interact with becomes an absolutely critical facet of detecting, preventing, and punishing elder abuse.
[*143]
C. Mandated Reporting Laws
Since family members are frequently the primary caregivers for elderly relatives in domestic settings, this finding that family
members are the primary perpetrators of elderly abuse is not surprising.”)
59 Id. (“Adult children also account for the largest category of alleged abusers in sentinel reports.”).
60
Moskowitz, supra note 9, at 87; see also Karl Pillemer & J. Jill Suitor, Violence and Violent Feelings: What Causes Them
Among Family Caregivers?, 47 J. of Gerontology S165, S170 (1992) (“Being a spousal caregiver rather than another relative
was a very strong predictor of actual violence.”).
61 National Elder Abuse Incidence Study, supra note 34, at 5-6.
62 Statistics/Data, supra note 29.
63 Id.
64 Velick, supra note 7, at 174.
65 Id.
66 Statistics/Data, supra note 29.
67 Id.
68 Id.
69
See Barber, supra note 11, at 124-25 (describing the relationship between the abuser and the victim as one similar to that in
domestic violence situations, where the victim may be hesitant to report his abuser due to “power and control, denial, family and
economic reasons, and emotional attachment.” Additionally, “when the abuser is a family member, the victim may feel the
judgment of the rest of the family and society in addition to internal feelings of guilt. Emotional attachment is also common when
the abuser is a relative or close friend. The victim may feel a sense of protection in the presence of the abuser as a result of the
relationship.”).
70 Statistics/Data, supra note 29.
Page 8 of 19
25 Elder L.J. 133, *143
Laws about elder abuse generally, and mandated reporting laws specifically, were primarily modeled after child
abuse statutes. 71 As such, they are not always responsive to the needs of the elderly population specifically. 72
While the state presumes responsibility for protecting children and routinely makes decisions on their behalf, adults
are presumed to be capable of making their own decisions and have the right to make bad decisions. 73 For the
most part, current elder abuse laws, specifically the mandated reporting laws, do not leave much leeway for the
victim’s capacity to make their own decisions. In some cases, mandatory reporting may even call for doctors or
other health professionals to report an individual for elder abuse against the elder person’s wishes. 74 Critics of
mandated reporting deride it for intruding on elderly people’s privacy and right to determine what should happen in
their own life. 75
Currently all fifty states have some sort of statutes that govern the reporting of elder abuse. 76 These statutes
generally fall within three categories. States’ statutes require either mandatory reporting, limited mandatory
reporting, or voluntary reporting. 77 The majority of states fall within the mandatory reporting category. “Mandatory
reporting laws require all people or specific categories of professionals to report [*144] known and suspected
incidents to certain authorities. Under voluntary reporting laws, no one is required to report, but any person may
report incidents of elder abuse.” 78
Since there are no overarching laws governing mandated reporting and elder abuse, states have developed their
own laws addressing the issue of reporting elder abuse. Some states impose criminal liability for failure to report
elder abuse, and others impose civil liability. 79 Among the states that impose criminal liability, some states treat
failure to report as a misdemeanor, while others treat it as a felony. 80 Civil penalties may be imposed on the
individual responsible for reporting. However in some states, institutions are held responsible for their employees’
71
Nancy Coleman & Naomi Karp, Recent State and Federal Developments in Protective Services and Elder Abuse, 1 J. of
Elder
Abuse
&
Neglect
51,
53
(1989)
http://www.americanbar.org/content/dam/aba/administrative/law_aging/2011_aging_arta2250_rcntdvlea_tb.authcheckdam.pdf
[hereinafter Coleman].
72
See id. at 51, 53-54; see also National Elder Abuse Incidence Study, supra note 34, at 5-3 (“Overall, elder abuse is even
more difficult to detect than child abuse, since the social isolation of some elderly persons may increase both the risk of
maltreatment itself and the difficulty of identifying that maltreatment. Approximately a quarter of elders live alone, and many
others interact primarily with family members and see very few outsiders. Children, in contrast, never live alone and,
furthermore, are required by law to attend school from age 5 until 16 … . Although community sentinels are valuable sources of
information about abuse and neglect of elders, neither they nor other reporting sources can conclusively account for victims of
domestic abuse and neglect who do not leave their homes and who rarely come in contact with others. Consequently, the
NEAIS undoubtedly undercounts abuse, neglect, and self-neglect among isolated elderly people in domestic settings.”).
73 Coleman, supra note 71, at 51, 53.
74
Laurence R. Faulkner, Mandating the Reporting of Suspected Cases of Elder Abuse: An Inappropriate, Ineffective and Ageist
Response to the Abuse of Older Adults, 16 Fam. L. Q. 69, 83-84 (1982) [hereinafter Faulkner].
75
Id. at 85-86.
76
U.S. Gov’t Accountability Off., GAO/HRD-91-74, Elder Abuse: Effectiveness of Reporting Laws and Other Factors, 1, 1-2
(1991).
77 Id.
78 Id.
79
Nina A. Kohn, Outliving Civil Rights, 86 Wash. U. L. Rev. 1053, 1061-62 (2009) (“States vary in the consequences they
impose on those who fail to fulfill their duty to report. In most states, such failure is a misdemeanor. In some of these, the penalty
for the misdemeanor of failure to report is exclusively a monetary fine. In other states, jail time may be imposed. A few states
also allow it to be the basis for imposition of civil liability. Finally, failure to report may have licensure implications for certain
professionals.”) [hereinafter Kohn].
80 Remick, supra note 26.
Page 9 of 19
25 Elder L.J. 133, *144
failure to report elder abuse. 81 New York is currently the only state that does not have mandated reporting and
instead relies on voluntary reporting. 82
Both states that impose criminal penalties and states that impose civil penalties for failure to report suspected cases
of elder abuse face the criticism that requiring mandatory reporting impinges on the elderly victims rights and
privacy. 83 However, while it is important to respect the privacy and autonomy of the elderly, it is also important to
combat underreporting of elder abuse. Mandated reporting statutes were originally enacted as a means of
increasing reporting of child abuse. However, children lead different lives. On a daily basis, children are in contact
with a variety of adults, from day care personnel to doctors to teachers and others. By contrast, many of the most
vulnerable elder people are far more isolated. In fact, on a daily basis, an elderly person’s only point of contact may
be their abuser. When an outside person does see or suspect abuse, it becomes absolutely critical that they report
the abuse, as there may not be any others checking on the elder. 84
[*145] Underreporting is a significant problem in combatting elder abuse. In addition, when elder abuse is
reported, it is often not done in a timely fashion. In the example of Mr. Mathis, the nursing home staff eventually
made a report, but only after the abuse had been an ongoing pattern for quite some time. 85 This appears to be a
widespread problem. In its report to Congress, the GAO found that reports about elder abuse are often made days,
or even weeks, after the actual abuse occurred. 86 In fact, of the cases the GAO assessed, in approximately
twenty-five percent of the cases, the report was submitted more than two weeks after the abuse occurred, even
though the state required that agencies report instances of alleged abuse within a day of learning about the alleged
instance. 87 Such delays in reporting compromise the evidence and increase the difficulty of successfully
prosecuting abusers. 88 In its study, the GAO found a correlation between states with better rates of reporting and
more effective investigations of elder abuse. 89
III. Analysis
While victims are often reticent to bring charges against their abuser, if there is a mandatory reporting statute, then
some of the pressure is taken off of the victim. Elder abuse is often perpetrated by the victim’s caretaker, who may
even be a family member. 90 In such situations, the elder victim may want to protect their abuser at great personal
risk. 91 A survey by the California Department of Social Services showed that eighty-five percent of abuse victims
81
Idaho Code Ann. § 39-5303 (West 2016).
82 See Backer, supra note 22.
83 See generally Kohn, supra note 79.
84
Velick, supra note 7, at 174 (“Elder abuse thrives on total isolation – it is a “secret crime.’ Therefore, when people do spot a
victim, it is crucial that they report the suspected abuse … the physician, or any other professional who suspects abuse, should
not be required to report it because another opportunity to address the problem may not arise.”).
85 See Lew, supra note 1, at 7-8.
86 U.S. Gen. Accounting Off., GAO-02-312, Nursing Homes: More Can Be Done to Protect Residents from Abuse 10 (2002).
87 Id. at 10-11.
88 Id. at 14.
89 Id. at 15.
90
Velick, supra note 7, at 174-75 (“[A] number of elder-abuse victims actually assisted their abusers with cooking, cleaning,
housing, and transportation. The victims were reluctant to acknowledge or to report the abuse because they were unwilling to
leave the abuser without adequate care. Apparently, families try to stick together… . Mandatory reporting can bypass this
misplaced concern about family members, which may take precedence over the victim’s own well-being. Mandatory reporting
also addresses situations in which victims are dependent on their families for care.”).
91 Id.
Page 10 of 19
25 Elder L.J. 133, *145
would accept [*146] help with dealing with abuse. 92 Thus, it is likely that if victims are put into contact with victim
aid services, then they will accept that help. Mandated reporting would facilitate this because the victim would not
be responsible for the report made against the perpetrator. In a sense, “the reporter can give the victim an out by
asserting that the report is required by law. Reporters and even victims can say to themselves, “It is not me. I have
to do this.'” 93 In cases where the reporter would face criminal charges for not reporting, this could allow some
relief to the victim who could think of it as a procedure enforced by the law, rather than the victim feeling
responsible for turning the perpetrator in. Thus, effective mandating reporting laws are a critical component of
adequately addressing the problem of elder abuse. Mandated reporting laws ensure that more elder victims are
given access to victim aid services. They also ensure that law enforcement are given timely and accurate reports of
alleged elder abuse. Collectively, victims are given more aid and abusers face justice more often.
A. Criminal Penalties for Failure to Report
The majority of states treat failure to report as a criminal, rather than civil, matter. 94 Usually, states that treat
failure to report as a criminal matter penalize the failure as a misdemeanor. 95 Imposing criminal penalties for
failing to report elder abuse emphasizes the seriousness of the not reporting. Given that elder abuse is so
underreported, treating failures to report seriously should be a priority. 96 However, there are some serious
problems with treating failure to report as a criminal matter. In states where failure to report is a criminal matter,
enforcement of mandated reporting laws is very low and sometimes even nonexistent. 97 For example, in
California, failure to report physical elder abuse is a misdemeanor. 98 However, there has been little to no [*147]
prosecution of failure to report elder abuse. 99 In fact, “between 1993 and 2004, district attorneys prosecuted only
forty-six cases for the failure to comply with the Mandated Reporting Act.” 100 In part, this is due to reluctance on
the part of prosecutors to bring criminal sanctions against white-collar professionals, such as doctors and other
professionals. 101
92 Id. at 175.
93 Id.
94 Moskowitz, supra note 9, at 117.
95 Barber, supra note 11, at 119-20.
96 See Velick, supra note 7, at 167-68.
97 Moskowitz, supra note 9, at 117.
98
See Cal. Welf. & Inst. Code § 15630.1(h) (“Failure to report, or impeding or inhibiting a report of, physical abuse, as defined in
Section 15610.63, abandonment, abduction, isolation, financial abuse, or neglect of an elder or dependent adult, in violation of
this section, is a misdemeanor, punishable by not more than six months in the county jail, by a fine of not more than one
thousand dollars ($ 1,000), or by both that fine and imprisonment. Any mandated reporter who willfully fails to report, or impedes
or inhibits a report of, physical abuse, as defined in Section 15610.63, abandonment, abduction, isolation, financial abuse, or
neglect of an elder or dependent adult, in violation of this section, if that abuse results in death or great bodily injury, shall be
punished by not more than one year in a county jail, by a fine of not more than five thousand dollars ($ 5,000), or by both that
fine and imprisonment.”).
99
Moskowitz, supra note 9, at 117 (“Few actual cases of prosecution against professionals can be found. A computer search of
published court decisions in all fifty states between 1994-1997 found only one prosecution based on a failure to report elder
mistreatment statute, and even that case did not directly involve a failure to report.”).
100 Chen, supra note 24, at 242.
101
Barber, supra note 11, at 120 (“Interestingly, doctors and other professionals are generally spared from the criminal
sanctions and are merely referred to their respective professional organization for punishment.”); Moskowitz, supra note 9, at
119 (“Even when they do become aware, prosecutors are loathe to proceed against white collar professionals.”).
Page 11 of 19
25 Elder L.J. 133, *147
Additionally, after Crawford v. Washington, it became more difficult to prosecute abuse. 102 Crawford held that it
was unconstitutional to use a videotape or prerecorded statement by victims or witnesses because it would deny
the defendant the right to confront his or her accusers. 103 This is a particularly burdensome limitation in the
context of elder abuse because the victims and witnesses are often frail or in poor health or may simply not be
around when the case goes to trial. If a key witness’s testimony is barred by this rule, the criminal prosecution may
fail. 104
In California, failure to report elder abuse is treated as a criminal offense. Under Cal. Wel. & Inst. Code § 15630 (h),
failure to report elder abuse is a misdemeanor and “shall be punished by not more than one year in a county jail, by
a fine of not more than five thousand dollars ($ 5,000), or by both that fine and imprisonment.” 105 While this
statute appears to indicate that the California legislature considers the problem of failure to report to be a serious
one, studies indicate that [*148] the mandated reporters rarely comply with the statute. 106 In fact, even though
California’s mandated reporting statutes place serious penalties on those who fail to report, “many abuse citations
are triggered by public complaints rather than by facility reports.” 107 It appears that within California care facilities,
while abuse occurs at high rates, and is often readily apparent to, or even actually observed by, the health care
professionals working in those care facilities (who are mandated reporters), reports are not being made or
investigated unless if outside parties bring attention to allegations. 108 The penalties attached to failure to report
are not sufficiently incentivizing health care professionals to report abuse.
Underreporting of elder abuse remains a problem in care facilities in California even with the harsh penalties
available for those who fail to report. 109 In fact, there is “a cultivated culture of silence amongst facility employees”
110 that ensures elder abuse goes unreported. Even in instances where victims or outside parties (such as other
family members) are able to speak out and make complaints about abuse, their complaints are often silenced and
are not registered as official reports. 111 While investigating a complaint that a CNA “hit a ninety-eight-year-old
resident in the face, bruising her face and hurting her eye,” 112 the California Department of Health Services found
that “the facility administrator did not report the abuse despite the resident’s injury and multiple complaints from
family members that the alleged perpetrator mistreated other residents. The administrator merely moved the
perpetrator to another assignment.” 113
102 See generally Lew, supra note 1, at 18; see also Crawford v. Washington, 541 U.S. 36 (2004).
103 Lew, supra note 1, at 19.
104 Id.
105
Cal. Welf. & Inst. Code § 15630 (2014).
106
Moskowitz, supra note 9, at 611 (“Unfortunately, there is much evidence to indicate that mandated reporters rarely comply.
Many studies report that these statutes are ignored.”).
107
Nursing Home Abuse and California’s Broken Enforcement System, California Advocates for Nursing Home Reform 2
(2006), http://www.canhr.org/reports/2006/Abuse_Report_2006_solo.pdf [hereinafter Nursing Home Abuse].
108 Id. at 4.
109 Chen, supra note 24, at 219 (“Underreporting by nursing homes contributes to the continued abuse of our elderly.”).
110 Id.
111 See Nursing Home Abuse, supra note 107.
112 See id.
113 Id.
Page 12 of 19
25 Elder L.J. 133, *148
Incidents of administrators minimizing or covering up abuse allegations occur far too frequently in California care
facilities. 114 According [*149] to the California Advocates for Nursing Home Reform, “abuse citations appear to
indicate endemic or habitual behavior, rather than isolated incidents.” 115 While California’s laws require reports to
be made within two days of learning about the suspected abuse, within care facilities, abuse allegations are
frequently carried up the administrative chain, rather than being dispatched to the appropriate investigative
authorities in a timely fashion. 116 “Nursing home staff often report an abuse incident internally up the chain of
command within the facility rather than simultaneously reporting to outside investigators.” 117 This practice does
not meet the requirements of California’s mandatory reporting laws, and furthermore, often impedes the
investigation of claims, specifically because administrative employees frequently minimize or misconstrue aspects
of the abuse in an effort to protect their facility. 118 In addition to concerns about protecting the facility, nursing
home staff may hesitate to make reports about their fellow colleagues. 119 While the California statute
contemplates the seriousness of a failure to report suspected elder abuse, within nursing homes across California,
abuse is not being reported to the appropriate investigatory channels, and consequently, elder victims are subjected
to more abuse.
These delays and blatant disregard for the mandated reporting procedures set out by the California Code cause
very real damage to California’s elderly population. Given the seriousness of the issue, it is critical that mandated
reporting laws be fully enforced. However there is a clear discrepancy between very high levels of under or delayed
[*150] reporting and the low levels of prosecution for failure to comply with mandated reporting laws. 120
In some states (California, Indiana, Florida, Connecticut, and Alaska) failure to report elder abuse has harsher
penalties than elder abuse itself. 121 Penalties for failure to report a suspected case of elder abuse should not be
harsher than penalties for the actual perpetrator of the abuse.
B. Civil Penalties for Failure to Report
Other states (Arkansas, Iowa, Michigan, and Minnesota) impose civil liability for failure to report elder abuse. 122
Among those states that impose civil liability, failure to report elder abuse can result in fines for the individual. 123
114
Chen, supra note 24, at 241; see also Nursing Home Abuse, supra note 107, at p2 (“In some nursing homes, the
administrator and operator cultivate a culture of silence that encourages employees to ignore incidents of abuse. This culture is
so pervasive that the California Court of Appeals took judicial notice of it recently.”).
115 Nursing Home Abuse, supra note 107.
116
Chen, supra note 24, at 241-42 (While the Mandated Reporting Act requires that nursing homes make a telephone report of
suspected elder abuse immediately and a written report within two days, “nursing homes, however, often do not follow this time
requirement, blatantly ignoring the law.”).
117 Lew, supra note 1, at 7.
118
Chen, supra note 24, at 242 (“Administrators do not have direct experience with the alleged abuse and have an interest in
minimizing the severity of the incident as an employee of the facility. They may misconstrue facts or be reluctant to reveal critical
details to protect the nursing home from liability.”).
119
Arlene D. Luu & Bryan A. Liang, Clinical Case Management: A Strategy to Coordinate Detection, Reporting and Prosecution
of Elder Abuse, 15 Cornell J. L. & Pub. Pol’y 165, 176 (2005) (“Although a willful failure to report patient abuse is prohibited,
nursing home employees are often reluctant to report their colleagues for committing acts of abuse.”).
120 Chen, supra note 24, at 242.
121 Coleman, supra note 71.
122
See Ark. Code Ann. § 5-28-202(b) (Mich. 1997 & Supp. 2001) (“Any person or caregiver required by this chapter to report a
case of suspected abuse, neglect, or exploitation who purposely fails to do so shall be civilly liable for damages proximately
caused by the failure.”); Iowa Code Ann. § 235B.3(10) (West 2000 & Supp. 2002) (“A person required by this section to report a
suspected case of dependent adult abuse who knowingly fails to do so is civilly liable for the damages proximately caused by the
Page 13 of 19
25 Elder L.J. 133, *150
For example, in Michigan, failure to report elder abuse can result in a fine of $ 500 for each failure to report. 124
Civil remedies, such as those provided for in Michigan, present several advantages over criminal remedies. First
and foremost, having civil remedies removes the reluctance to prosecute professionals. 125 Second, the civil
process typically moves much faster than the criminal process, which means that victims are much m…
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