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Elder Abuse and Neglect: Protecting Clients, Reducing Exposure

Elder abuse consists of intentional or unintentional actions by a caregiver or other individual who occupies a trust relationship with a vulnerable senior that cause harm or create a serious risk of harm. Abuse includes not only injurious actions, but also neglecting to satisfy the individual’s needs or to protect him or her from harm.

Despite the presence of Adult Protective Services agencies in all 50 states, as well as the proliferation of mandatory elder abuse reporting laws in most states, many cases of abuse, exploitation and neglect remain undetected and untreated each year. One study estimates that only one in 14 cases of elder abuse ever comes to the attention of authorities. Elders may be hesitant to report abuse for a variety of reasons, including fear that the caregiver will retaliate, get in trouble or simply leave, leading to loss of independence.

Considering the extent of the problem, it is imperative that organizations select employees carefully and train them to identify and respond to signs of potential abuse. The following strategies can significantly minimize risk and enhance legal defensibility in the event of a claim:

Thoroughly screen prospective staff. The importance of pre-employment screening of job applicants cannot be over-emphasized. Asking focused interview questions, checking references and conducting criminal background checks can help ensure that applicants are well-suited to care for elderly clients. The screening process should:

  • Apply to all prospective permanent and temporary workers, and include background and registry checks for criminal activity, abuse and sexual offenses.
  • Document the applicant’s work history with elderly or vulnerable individuals, including contacting of references.
  • Require an interview with job applicants, in which they are asked how they feel about the elderly, how they would respond to signs of abuse and how they handle stressful situations.
  • Involve testing applicants for substance abuse, once an offer of employment has been made.

Educate employees. All caregivers must understand their duty to protect aging clients from abuse. Training sessions should focus on:

  • Recognizing the warning signs of abuse and neglect.
  • Knowing how to communicate with and manage aggressive, combative or discontented clients in a calm, safe and effective manner.
  • Empathizing with the needs and issues of vulnerable and infirm individuals, including those with dementia, chronic disease states and physical handicaps.
  • Maintaining professional boundaries to avoid the appearance of impropriety.
  • Understanding the ethical and professional duty to be alert for signs of abuse and to report concerns promptly and appropriately.

Draft a written policy. Abuse is more likely to occur and go unreported in settings that lack a formal abuse prevention program. By adopting a written protocol, home care organizations pledge to clients and their families that incidents will be reported and investigated in a prompt and transparent manner. Formal anti-abuse policies should:

  • Provide definitions and examples of elder abuse, including neglect, sexual misconduct and financial exploitation.
  • Contain clear protocols for staff to follow in response to suspicions or accusations of abuse, neglect or sexual misconduct.
  • Ensure that the organization’s reporting program guarantees confidentiality and protects against retaliation.
  • Specify formats and time frames for reporting incidents to protective service agencies, state licensing boards, local law enforcement and insurers.
  • Require ongoing follow-up with the primary complainant(s), until the situation is resolved.
  • Ensure that a post-incident action plan is drafted, applying lessons learned and minimizing the likelihood of future actual or alleged abuse.

Are You Covered for Claims of Sexual Abuse or Misconduct?

Your Professional Liability Insurance policy in its basic form does not cover abuse; however, some level of coverage can be added to the policy by endorsement for qualified and eligible insureds, following a background and abuse registry check. In fact, the majority of home care package insurance policies procured through Lockton Affinity include the Sexual Misconduct Endorsement, which affords coverage for claims based on or arising out of sexual abuse or misconduct, with sublimits of $250,000 or $500,000. Consult with your insurance provider to ensure that you have purchased this coverage endorsement or are eligible for endorsement.

For policies that do not extend the optional coverage by way of endorsement, the exclusion for sexual misconduct applies regardless of the legal theory or basis upon which the insured is alleged to be liable for any damages arising out of the activities described above, including but not limited to assertions of improper or negligent employment, continued employment, investigation, failure to investigate, supervision or failure to supervise.

The information, examples and suggestions presented in this material have been developed from sources believed to be reliable, but they should not be construed as legal or other professional advice. CNA accepts no responsibility for the accuracy or completeness of this material and recommends the consultation with competent legal counsel and/or other professional advisors before applying this material in any particular factual situations. Please note that Internet hyperlinks cited herein are active as of the date of publication, but may be subject to change or discontinuation. This material is for illustrative purposes and is not intended to constitute a contract. Please remember that only the relevant insurance policy can provide the actual terms, coverages, amounts, conditions and exclusions for an insured. All products and services may not be available in all states and may be subject to change without notice. Use of the term “partnership” and/or “partner” should not be construed to represent a legally binding partnership. CNA is a registered trademark of CNA Financial Corporation. Copyright ©2014 CNA. All rights reserved.