Colorado Real Estate Journal - March 18, 2015
With the Colorado's senior population increasing drastically and the financial struggles many younger generations are experiencing as the U.S. recovers from the recession, Colorado likely will see a rise in financial exploitation of elders. This form of exploitation is already the fastest-growing type of elder abuse in Colorado. Financial exploitation is defined as (i) a third party’s use of deception, intimidation or undue influence for the purpose of depriving a victim of their money or property or (ii) a third party’s use of the victim’s money or property for the benefit of the third party at the expense of the victim. Colorado’s C.R.S. § 18-6.5-108 (Colorado Reporting Law) and the Federal Elder Justice Act each mandate reporting of suspected resident financial exploitation by Colorado senior care facilities’ staff. Failure to comply with these laws can result in massive fines, lawsuits and even jail time. Due to increases in such exploitation, staff in Colorado’s senior housing facilities and nursing homes are more likely to be cited for noncompliance with mandatory reporting laws as government officials more stringently enforce these laws as a means to curb increases in crimes against elders. Under the Colorado Reporting Law, which took effect in 2014, a staff member of a senior care facility licensed or certified in Colorado who has “reasonable cause” to believe a 70-year or older resident is or imminently will be financially exploited, must report such financial exploitation to local law enforcement within 24 hours. Failure to report can result in a fine of $750 and six months imprisonment. A nurse at a Colorado senior care facility already has been charged with violating this law. The Colorado Reporting Law applies not only to senior care facility staff, but also applies to a laundry list of other professionals who have close contact with the elderly population including doctors and social workers. Currently, legislation adding certified public accountants and financial advisors to this list is winding its way through the state Legislature. The Federal Elder Justice Act requires staff of a long-term care facility that has received at least $10,000 from a federal program under United States Code, Title 42, Chapter 7 (e.g., Medicaid or Medicare) in the previous year to report any “reasonable suspicion” of a state or local crime against any facility resident to local law enforcement and the Colorado Department of Public Health and Environment within 24 hours. Currently, the Centers for Medicare and Medicaid Services interpret this law to apply to nursing and skilled nursing facilities but not assisted living facilities. Failure to comply with the law can result in a fine of $300,000 and exclusion from almost every federal health care program. If such exclusion occurs and the staff is employed by a long-term care facility, then the facility could lose all Medicaid and Medicare funding. The Elder Justice Act also requires longterm care facilities to educate staff on their reporting duties and provide notice that the facility will not retaliate against staff for reporting a crime committed against a resident. As such, it is important that staff recognize signs of financial exploitation. The No. 1 rule in recognizing financial exploitation of residents is the financial exploiter likely is someone who has a relationship with the resident, not a stranger. One medical journal study found that 89.7 percent of elders who were financially exploited were exploited by someone they knew. For detecting potential resident financial exploitation, staff should pay close attention to a resident’s interactions with family and friends. Look for a family member or friend pressuring the resident to sign a document such as a power of attorney; showing abnormally intense affection toward the resident; being present whenever the resident has another visitor; pressuring the resident to decline necessary treatments; or causing the resident to be anxious or frustrated before or after visits with that person. Changes in a resident’s financial habits are also signs of financial exploitation. Such changes include a resident’s late payment of bills in cash; writing of checks payable to cash; or decision to stop purchasing necessities like toiletries. Staff should listen to residents regardless of the resident’s cognitive state. If a resident says money was stolen or someone is threatening them, staff should seriously investigate such statements. As with everything, preparation leads to success. The best way for Colorado’s senior care facilities and their staff to be prepared to protect residents and comply with reporting laws is for the facilities to regularly educate their staff on ways to recognize exploitation and the legal requirements for reporting such exploitation. Training should be conducted through yearly seminars and updates made to existing employee handbooks.