The Executive Office of Elder Affairs and Its Designated Protective-Service Agencies Did Not Always Report Incidents of Abuse to District Attorneys’ Offices for Investigation.

Audit calls for improved guidance for EOEA contractors, enhanced monitoring, and regular meetings with district attorneys' offices to ensure incidents are reported properly.

Overview

We reviewed 190 incidents of alleged elder abuse investigated by PSAs during the audit period and found that the Executive Office of Elder Affairs (EOEA) did not report seven incidents of serious abuse to district attorneys’ (DAs’) offices as required. The seven incidents involved elderly people who had died at some point during investigations that took place between September 2015 and August 2017. They occurred in five different counties.¹¹ An additional six incidents of abuse were reported to DAs’ offices but did not have adequate and verifiable documentation in their case files in the Adult Protective Services (APS) system. Without making referrals to DAs’ offices and adequately documenting referrals in APS, EOEA and its designated protective-service agencies (PSAs) cannot be certain that they have taken the necessary steps to ensure appropriate investigation and prosecution of alleged perpetrators of abuse and mitigation of risks of abuse.

According to the APS case notes, the seven incidents of serious abuse involved such things as “serious neglect,” “stage 4 bed sores,” and emotional abuse by an alleged perpetrator “for the last ten years.” According to one case file, the alleged perpetrator also made threats to kill the elderly person. The elderly person whose life was threatened was quoted in APS as stating that she was “fearful to return home.” Another elderly person who was an alleged abuse victim was bedridden with a “fractured hip” and “bed sores.” That elderly person was reported in APS as having untreated bed sores that “went right down to the bone.” These sores led to an infection, and the reporter of the incident, who was an emergency medical technician, was documented in APS as “surprised” by the alleged perpetrator’s “lack of care” for the elderly person. According to APS, because of the lack of care, the elderly person’s “hair was so matted that it was pulling on her scalp” and she had “not bathed.” This was reported as an incident of caregiver neglect on the part of the elderly person’s son that was substantiated by the PSA but was never reported to a DA’s office by EOEA or the PSA.

Six other cases, separate from the aforementioned seven cases that had not been referred to DAs’ offices, were noted in APS as having had a referral forwarded to a DA’s office by the PSAs. Although it was noted in APS that PSAs had made DA referrals for all six incidents, EOEA was not able to provide any DA referral forms that it had forwarded to the DAs’ offices. Referral forms consist of information such as the location of the DA’s office, the date the referral was forwarded, and attached case summary notes in APS.

Authoritative Guidance

Section 14 of Chapter 19A of the Massachusetts General Laws defines “abuse” as follows:

An Act or omission which results in serious physical or emotional injury to an elderly person or financial exploitation of an elderly person; or the failure, inability or resistance of an elderly person to provide for him one or more of the necessities essential for physical and emotional well-being without which the elderly person would be unable to safely remain in the community.

Section 18(a) of Chapter 19A of the General Laws requires EOEA to notify the appropriate DA’s office within 48 hours when a PSA caseworker determines “that the elderly person has suffered serious abuse.”

Section 5 of Title 651 of the Code of Massachusetts Regulations (CMR) was updated during our audit period, as of January 13, 2017. The updates included slight changes to the language that addresses and defines reportable conditions of abuse under 651 CMR 5.02.

The version that was in place before the update applied to five of the seven incidents discussed above that should have been referred to DAs’ offices. That version defined reportable conditions as follows:

Abuse. An act or omission which results in serious physical or emotional injury to an elderly person or financial exploitation of an elderly person; or the failure, inability or resistance of an elderly person to provide for himself or herself one or more of the necessities essential for physical and emotional well-being without which the elderly person would be unable to safely remain in the community; provided, however, that no person shall be considered to be abused or neglected for the sole reason that such person is being furnished or relies upon treatment in accordance with the tenets and teachings of a church or religious denomination by a duly accredited practitioner thereof . . .

1.   Physical Abuse: The non-accidental infliction of serious physical injury to an Elder or the threat of serious physical injury in which the Protective Services Agency has Reasonable Cause to Believe that an individual may have the intent and capacity to carry out the threatened serious physical injury.

Serious physical injury shall be determined by consideration of the following factors:

(a)  the Elder’s physical condition;
(b)  the type, size, shape, number and location of physical injuries;
(c)  the circumstances under which the injury occurred including the potential for serious injury in the actual incident;
(d)  the emotional impact on the Elder;
(e)  the potential for escalation of Abuse. . . .

3.   Emotional Abuse: The non-accidental infliction of serious emotional injury to an Elder. Emotional Abuse must establish a relationship between abusive actions, behaviors, or language and a resulting effect on the emotional state or functioning of the Elder.

Serious Emotional Injury includes:

(a)  An extreme emotional reaction or response such as a severe state of anxiety, fear, depression or withdrawal;
(b)  Development of post-traumatic stress disorder including but not limited to symptoms resulting from being forced to engage in sexual relations by force, threat of force or duress;
(c)  Symptoms of an extreme emotional reaction or response resulting from threats to kill, harm or financially exploit.

4.   Neglect: The failure or refusal by a Caretaker to provide one or more of the necessities essential for physical well-being, such as food, clothing, shelter, personal care, and medical care, which has resulted in or where there is substantial reason to believe that such failure or refusal will immediately result in serious physical harm to an Elder. 

Neglect shall be determined by consideration of each of the following factors:

(a)  the Elder’s ability to meet her/his own needs.
(b)  a history of dependence on a Caretaker as defined in 651 CMR 5.02.
(c)  the Elder’s Capacity to Consent.
(d)  the expectation or desire of the Elder of continuing to receive care provided by the Caretaker.
(e)  the seriousness of physical harm resulting from Neglect shall be determined by consideration of 650 CMR 5.02(4)(a) through (e) under the definition of Physical Abuse.

5.   Financial Exploitation: The non-accidental act or omission by another person without the consent of the Elder causing substantial monetary or property loss to the Elder or substantial monetary or property gain to the other person which gain would otherwise benefit the Elder, but for the act or omission of the other person. Financial exploitation may result from consent obtained as a result of misrepresentation, undue influence, coercion or threat of force by the other person.

The new guidance, effective after January 13, 2017, applied to the other two of the seven incidents in question. The updated version of 651 CMR 5.02 defines reportable conditions as follows:

Abuse. An act or omission, including Emotional Abuse, Financial Exploitation, Neglect, Physical Abuse, Sexual Abuse, and/or Self-neglect, which results in Serious Physical Injury or emotional injury to an Elder, or Financial Exploitation of an Elder; provided, however, that no person shall be considered to be abused or neglected for the sole reason that such person is being furnished or relies upon treatment in accordance with the tenets and teachings of a church or religious denomination by a duly accredited practitioner thereof. . . .

Neglect. The failure or refusal by a Caretaker to provide one or more of the necessities essential for physical well-being, such as food, clothing, medication, shelter, personal care, and medical care, which has resulted in Serious Physical Injury to an Elder; or a Reasonable Cause to Believe that such failure or refusal will immediately result in Serious Physical Injury to an Elder.

Neglect shall be determined by consideration of each of the following factors:

(a)  the Elder’s ability to meet his or her own needs.
(b)  a history of dependence on a Caretaker.
(c)  the Elder’s Decisional Capacity and Functional Capacity.
(d)  the expectation or desire of the Elder of continuing to receive care provided by the Caretaker.

Additionally, according to the current version of 651 CMR 5.19,

1. If the Department or its Protective Services Agency has Reasonable Cause to Believe that an Elder has died as a result of Abuse, the death shall be reported immediately to the District Attorney of the County in which the Abuse occurred. Written notification on a form provided by the Department shall be forwarded to the District Attorney as soon as possible. . . .
2. If a Reportable Condition is substantiated and an Investigation results in a determination that the Elder has suffered a Reportable Condition(s) other than death, the Department or Protective Services Agency shall report such determination within 48 hours to the District Attorney of the County where the Abuse occurred for further investigation. Conditions Reportable to the District Attorney by a Protective Services Agency pursuant to M.G.L. c. 19A, §§ 16(b) and 18(a) shall include, but not be limited to, the following:
   
   (a)  Brain damage;
   (b)  Loss or substantial impairment of a bodily function or organ;
   (c)  Fracture of a bone;
   (d)  Any serious or intentional burns;
   (e)  Disfigurement;
   (f)   Sexual assault, rape, sexual misuse or sexual exploitation;
   (g)  Serious Physical Injury as the result of a pattern of repetitive actions;
   (h)  Soft tissue swelling, skin bruising or tears, depending on such factors as the Elder’s physical condition, circumstances under which the injury occurred, and the number and location of bruises;
   (i)   Significant, unexplained weight loss;
   (j)   Symptoms resulting from the use of medications or chemical restraints or the withholding of life sustaining medications;
   (k)  Any other non-trivial injury;
   (l)   Pressure ulcers that pose a serious medical risk for the Elder;
   (m) Financial exploitation which involves possible criminal conduct, including but not limited to, the crimes of larceny by stealing, larceny by false pretenses, larceny from the person, larceny by embezzlement, larceny by check, forgery, uttering and extortion, and which possible criminal conduct substantially and seriously affects the financial situation of the Elder;
   (n)  Threats of Abuse in which a Protective Services Agency has Reasonable Cause to Believe that an individual may have the intent and apparent ability to carry out the following:
     1.   threat to kill the Elder;
     2.   threat to physically harm the Elder as described in 651 CMR 5.19(2)(a) through (k).

The language in the list of reportable conditions changed when the regulation was updated on January 13, 2017, but the list still applied to all seven of the incidents that the Office of the State Auditor (OSA) and EOEA agreed should have been referred to DAs’ offices.

Finally, 651 CMR 5.18(2) applies to the six DA referral forms that EOEA could not provide to us:

Case record documentation shall include, but not be limited to . . .

(e)  Supporting documentation such as reports, evaluations, and Investigations obtained from case managers, nurses, doctors, lawyers, psychotherapists, police officers, coroners, and other professionals.

Reasons for Noncompliance

EOEA has not established fully adequate monitoring controls to ensure that its PSA caseworkers perform effective assessments of allegations of abuse of elderly people, that all substantiated cases of serious abuse are reported to DAs’ offices when required, and that adequate documentation is maintained in APS for all DA referrals. In addition, although 651 CMR 5.19 establishes a case documentation requirement for DA reporting, EOEA has not established specific guidance or criteria that covers what should actually be documented in APS when a DA referral needs to be made.

Regarding the six instances of abuse that were reported to DAs’ offices but lacked adequate and verifiable documentation, EOEA management stated that they believed that the caseworker notes in the files represented adequate documentation of the referrals.

In addition, in its response to our draft report, the auditee stated,

EOEA management indicated that various DA offices have declined to take action after a case has been referred.

However, even if this is the case, it does not release EOEA from its regulatory responsibility of referring all cases to the appropriate DA’s office when it has identified reportable conditions through its investigation.

Recommendations

1. EOEA should develop a guidance manual addressing documentation practices for DA referral and reporting to reflect the requirements of 651 CMR 5.18(2)(e).
2. EOEA should establish monitoring controls to ensure that each person involved in the DA referral process complies with its policies and procedures for reporting incidents of alleged abuse to DAs’ offices. In particular, during its designation review process, it should evaluate whether PSAs are referring incidents of alleged abuse to DAs’ offices as required.  
3. EOEA should schedule regular meetings with DAs’ offices to ensure that reportable conditions that warrant DA referral are reported.

Auditee’s Response

EOEA takes all cases of non-compliance with the DA Referral requirement seriously. EOEA believes that any finding relating to these 7 cases identified (out of 190 sampled records) is important and we will continue working closely with all PSA’s to review policies for DA referrals and ensure full compliance with this requirement.

Recommendation 1

EOEA had already begun work on this issue in 2015 prior to the start of the SAO Audit. Protective Services training had been suspended by the prior administration in 2009. In 2015 EOEA had prioritized the reinstatement of comprehensive training for Protective Service Agencies (PSA)’s and received a federal grant to develop a comprehensive curriculum and to retrain the entire Protective Services workforce. This comprehensive training continues during State Fiscal Year 2019 and includes specifics on identifying investigations for DA Referral, how to submit the DA Referral, and how to properly document the matter in the Adult Protective Services (APS) Information Technology System of Record. The DA Referral training includes written materials and is consistent with the SAO’s Recommendation. EOEA will update its training materials into a manual to be published during FY19.

Additionally, between July 19, 2018 and August 1, 2018, the EOEA Director of Protective Services contacted every PSA directly and reviewed the requirements for DA referral with both the protective services agency director and the Aging Services Access Point (ASAP) Executive Director. Moreover, these requirements were reviewed with the Protective Services network at a statewide meeting for all Protective Services agencies.

Recommendation 2

EOEA had already commenced work on internal monitoring controls prior to the start of the . . . Audit. EOEA is currently updating APS, the Protective Services Information Technology System of Record that launched in 2009. EOEA staff has been gathering feedback as a result of PSA site visits and is implementing several changes beginning in the Spring of 2019, including an electronic DA Referral form.

Recommendation 3

EOEA believes that more regular communication with DA offices might be beneficial. As such, EOEA has planned for additional communication with individual DAs to engage in more regular and frequent interaction regarding Protective Services issues, including the DA Referral process.

Auditor’s Reply

Based on its response, EOEA is taking measures to ensure that it properly reports this information to DAs' offices.

11.    The counties were Norfolk, Middlesex, Suffolk, Bristol, and Essex.

Date published:	October 9, 2018