By Laura C. Hoffman
The aging population is growing at an extraordinary rate in the U.S. By 2040, it is anticipated that the U.S. aging population (defined as those ages 65 and older) will double, totaling 80 million.
Given this growth, preventing elder abuse must be at the forefront of policymaking. The U.S. Centers for Disease Control and Prevention (CDC) has recognized elder abuse as a “serious” problem that is commonly occurring, yet significantly underreported, in the U.S.
Defining “elder abuse” is challenging, as the work of identifying elder abuse involves interdisciplinary groups. Specific to the U.S., even examining the definition of “elder abuse” in a handful of states results in differing definitions. The extent to which different relationships are covered under elder abuse in relation to the aging adult is another issue to consider. Federal law includes a definition of elder abuse in the Older Americans Act but does not criminalize it. The lack of a universally accepted definition of elder abuse could be hampering its identification in the U.S. The Nursing Reform Act of 1987 does provide a legal right for residents to be free from abuse.
One place where aging adults are likely to experience elder abuse occurs in long-term care (LTC) environments; this has been described as a “public health concern” in relation to the nursing home setting. In 2020, 15,000 complaints of abuse and neglect in nursing homes were reported to states’ ombudsmen across the U.S., who are charged with overseeing regulatory compliance. Of particular concern is the incidence of staff-to-resident abuse in nursing homes, however, research has shown the prevalence of its occurrence across abuse types varies considerably. Additionally, staff members are not the only possible perpetrators of abuse on residents of nursing homes—other residents may also engage in abusive acts. The nursing home environment further complicates these situations, given its dual purpose as an actual residence and site of daily care.
One of the possible mechanisms for combating elder abuse in LTC settings such as nursing homes is the use of electronic monitoring through video surveillance. There is no federal law regulating electronic monitoring in nursing homes or other LTC settings but states that have taken the path to regulate this issue have done so in one of 3 ways: 1) state programs, 2) guidelines, and 3) legislation. The majority of the states currently regulating in this area are using legislation.
The first state program occurred in New Jersey through the Safe Care Cam program. Wisconsin followed the example of New Jersey passing its own state program in 2018 known as the Senior Safe Camera Program. Both states allow an initial 30-day monitoring period and require an agreement to be entered into between the family or legal representative of the individual being monitored and the state. The states in these instances bear the cost of the equipment, making for a more equitable option compared to states that have regulated in other ways.
Another approach to regulation has been to use guidelines, as instituted by the State of Maryland in 2003. The guidelines allow but do not require nursing homes to voluntarily agree to the use of electronic monitoring. The resident’s roommate(s) must consent to the electronic monitoring as well. Audio-only recording is prohibited. The cost of the equipment and installation is a determination of the nursing home and can be required of the resident being monitored or the individual’s legal representative. California has also used guidelines for assisted living facilities since 2015. One feature distinguishing California’s guidelines from Maryland’s is the requirement for maintenance of the recordings either by the facility or elsewhere.
Finally, the majority of states that are regulating this issue are doing so by legislation, which began with the state of Texas. One of the most recent examples of this legislation was seen in the State of Ohio, which passed Esther’s Law in 2021. Ohio is one state that provides legal protection against retaliation for using electronic monitoring and criminally penalizes tampering with recordings. The laws otherwise differ in a variety of ways, such as notice requirements, consent requirements/privacy, and availability of the recordings.
Given this legal landscape, the below list offers recommendations to consider moving forward with respect to preventing elder abuse in LTC settings:
- More research is urgently needed in understanding elder abuse especially in the LTC environments and the impact of allowing electronic monitoring.
- Creating a universal definition for elder abuse as a legal standard could help eliminate inconsistency.
- Solving the staffing shortage in nursing homes is not enough to eliminate elder abuse. Research indicates that training for interventions has not been utilized and should be implemented and evaluated in LTC settings.
- States using legislation to allow electronic monitoring of a loved one using video surveillance have put the burden of cost for equipment/resources on the family/legal representative. This creates inequity for access to prevent abuse to those who can afford the equipment. States should consider following the model of state programs where the state bears the cost.
- Most of the focus has been on regulation of electronic monitoring in the nursing home context, but there are other institutionalized settings to be considered where elder abuse could occur.
- One possibility to consider is automatically enrolling people in electronic monitoring based on certain disabilities or cognitive conditions such as dementia, where communicating abuse is difficult or impossible.
- Privacy is a critical concern in this area of regulation, with different approaches being taken by states. A variety of privacy considerations are at play, including the privacy needs of residents, staff, family, visitors, and even strangers.
As the aging population grows, the potential for elder abuse is severe and prevention is going to be critical moving forward. Unless and until efforts are made to combat elder abuse in LTC settings, elder abuse may become the next public health crisis.
Laura C. Hoffman is an Assistant Professor of Law at Cleveland State University College of Law and Co-Director of the CSU Law Center for Health Law and Policy.
