DDES INFO MEMO 2004-03

Acrobat version of DDES Info Memo 2004-03

June 22, 2004

STATE OF WISCONSIN
Department of Health and Family Services
Division of Disability and Elder Services

To:
Adult Day Care Programs
Adult Family Homes
Ambulatory Surgery Centers
Area Administrators/Assistant Area Administrators
Certified Mental Health and AODA Programs
Community-Based Residential Facilities
County Departments of Community Programs Directors
County Departments of Human Services Directors
County Departments of Social Services Directors
County/Tribal Aging Unit Directors
Division Administrators
DDES Bureau / Office Directors
End Stage Renal Disease Programs
Facilities for the Developmentally Disabled
Home Health Agencies
Hospice Agencies
Hospitals
Long Term Support Coordinators
Lead Elder Abuse Agency Contacts
Nurse Aide Training Programs
Nursing Homes
Outpatient Physical Therapy/Speech Pathology Services
Resident Care Apartment Complex
Rural Health Clinics
Tribal Chairperson/Human Services Facilitators

From:
Sinikka Santala, Administrator, Division of Disability and Elder Services

Re: 
Domestic Violence in Later Life and Sexual Assault Incidents Occurring in Facility Settings – A Resource Memo

The reason for this memo is to underscore the problems of domestic violence in later life and elder sexual abuse occurring in health care facilities, and to provide access to resources related to those topics. A significant amount of information is available to community based providers and the purpose of this memo is to provide information to residential providers. The memo addresses situations that involve sexual assault perpetrated by anyone (e.g., family member, another resident, stranger, volunteer). It also addresses domestic violence in later life, which is defined as a pattern of coercive control that an abuser exercises over an older adult; typically, the abuser is a spouse, adult child or other family member. Caregiver misconduct is addressed in this memo only as it applies to incidents involving sexual assault and domestic violence in later life. For a full discussion of what comprises caregiver misconduct and a facility's responsibility to respond to caregiver misconduct, please see the Bureau of Quality Assurance (BQA) Caregiver Program website at:

http://www.dhfs.state.wi.us/caregiver/contacts/Complaints.htm

The problems of domestic violence in later life and elder sexual assault are far more pervasive than most care to admit. The following cases occurred in Wisconsin during the past years and illustrate the range of sexual assaults taking place in long-term care settings. Cases that illustrate domestic violence in later life (DVLL) are also included.

• While employed as a caregiver (nurse aide) at a nursing home located in a northern county, the caregiver failed to wear gloves as required when providing perineal care and also made disrespectful and inappropriate comments to the resident when providing the care. As a result of the failure to wear gloves as required, the resident's skin became irritated from the nicotine on the caregiver's hands. Furthermore, after cleaning the resident’s genital area, the caregiver smelled his fingers and said to her, "That's how I check for a yeast infection on a woman."

• A resident with dementia relies on staff for assistance with personal cares, including incontinence care, and was observed with a disheveled appearance, dirty clothing, and a strong body odor. Surveyors observed the resident, wearing only a T-shirt, being escorted by two staff from the dining room. Staff did not attempt to cover the resident’s exposed body, including the resident’s genitals and buttocks. In addition to survey staff, two other residents were present. One of the other residents shook her head, laughed, and stated, "Ah, that’s too bad."

• Resident, age 101, lives in a nursing home. Her son-in-law was observed having sexual contact with her. Although the resident acknowledged that the sexual contact was occurring, she did not want it reported. Her son-in-law had told her that he would hurt her daughter (his wife) if she resisted. Trying to protect her daughter, who was also a resident at the nursing home, the resident never told anyone about the abuse, until she was asked about it.

• An 84 year-old female resident was admitted to the facility under emergency protective placement following hospitalization for "severe ecchymosis and swelling of her face." The resident, in the previous months, had been treated for fractured ribs, fingers, and arm and had a history of shoulder and elbow fractures. It was suspected that her husband was abusing the resident. While at the nursing home, the resident’s husband was heard yelling at her and she was crying, "Help! Ouch." After the husband left, the resident told the nurse aide that "he knows where I am…he’ll come here anyway. That’s how my arms got broke and my eyes bruised. And it hurts so bad when he pulls my arms." Subsequent incidents were charted over the course of several months including the occasion when the husband returned the resident to the facility following an outing and the resident was bleeding from the forehead. Another time the husband slapped the resident and told her he would do it again if she didn’t shut up. Later the husband hit the resident with a fly swatter. The following day he fed the resident so fast that she choked. When the resident returned from another outing with her husband, she was crying and had dried blood around her mouth. The resident stated her husband had hit her in the mouth. The husband stated she had bumped her mouth and the social worker charted it as such without having done an investigation. The husband slapped the resident yet another time. The resident stated, "I want him to keep coming to visit me every day, I just don’t want him to hit me. He likes to fight with me and hit me."

This memo provides information about clear and assertive responses to the case examples listed above that draw upon state, county and provider expertise and collaboration. Working together, needed victim services can be provided in a timely and appropriate fashion. In addition, collaborative efforts can result in prevention and earlier intervention. The remainder of this memo outlines how social services, regulatory, law enforcement, and advocacy agencies can work together to address elder sexual assault and domestic violence in later life, including potential roles and responsibilities. In addition, the memo provides links to various state and national web sites that feature additional background materials (see: http://dhfs.wisconsin.gov/caregiver/ElderAbuse.htm.)The sites also list organizations that may be able to provide you with consultation and technical assistance.

The information for this memo and the memo attachments come from a variety of sources including the Wisconsin Coalition Against Sexual Assault, the Wisconsin Coalition Against Domestic Violence/National Clearinghouse on Abuse in Later Life (NCALL), the National Organization for Victim Assistance (NOVA) and this Division’s Bureaus of Quality Assurance and Aging and Long Term Care Resources. The resource listing is intended to be a beginning, and will be updated as new resources are identified. If you have any additional resources, materials or other information related to domestic violence in later life and/or elder sexual abuse in facility settings that should be added, please contact:

Shari Busse
Caregiver Investigation Lead
Bureau of Quality Assurance
Office of Caregiver Quality (OCQ)
Phone: 608-243-2036
Fax: 608-243-2020
E-mail: bussese@dhfs.state.wi.us

Although this is a best practices guide (compared to mandated procedures), please note that sexual assault and domestic violence statutes as well as client rights’ codes govern responding to elder sexual assault and domestic violence in facility settings. These include Wisconsin State Statutes §50.09(1)(k), §51.61(1)(m), §940.285, §940.295 and Wisconsin Administrative Codes HFS 94 and 132. A list specific to abuse, neglect and exploitation that details components of these statutes and codes is summarized as follows:

• Residents have the right to be treated as an individual, with courtesy, respect and dignity in the environment in which they live.

• Facilities have a duty and legal obligation to provide a safe and humane psychological and physical environment for residents.

• Facilities must maintain or enhance each resident’s dignity and self-worth. No one should humiliate, harass or threaten a resident.

• All people, regardless of age or infirmity, have the right to live free from financial, verbal, sexual, physical and mental abuse, punishment and isolation.

• Abuse and/or sexual assault must be appropriately addressed in order to:

1. protect the victim/survivor from future assault/abuse;
2. assist the victim/survivor in healing from the assault/abuse; and
3. prevent the abuse and/or sexual assault of others.

• Every resident has the right to voice grievances about the care and treatment they receive without discrimination or reprisal and the right to prompt efforts by the facility to resolve any concerns or complaints.

In addition, the sexual assault criminal statute, Wisconsin State Statute §940.225, and the domestic violence mandatory arrest law, Wisconsin State Statute §968.075, may also apply when certain illegal actions have taken place.

It is important that the awareness of sexual abuse among residents, facility staff, law enforcement, and helping agencies is increased. Domestic violence can occur in residential care settings as well as non-institutional settings. We need to be aware that older people, especially those with physical or cognitive limitations, can be abused and/or sexually assaulted by family members, friends, neighbors, and other adult acquaintances in facilities designed to provide care. Unfortunately, because such domestic abuse and sexual violence is rarely recognized, it often is not appropriately responded to by many professionals or the community at large.

Lack of awareness and recognition of these types of crimes committed against older adults reinforces the reality of underreporting. In addition, many victims do not report out of fear of retaliation or what might happen to them or the perpetrator or may have been abused so long that they do not see any way out of the situation. Residents may be isolated and not have anyone other than paid staff to tell. Family, friends and volunteers may not have information about the signs of abuse or what to do if they suspect a problem, especially if the older person does not communicate verbally. When facility staff identifies abuse, there may be confusion about whom to call and what to do or reluctance to report because they don’t want police involved or regulatory action started.

The current response to older persons residing in facilities who have experienced abuse and/or sexual assault needs to be strengthened. Too often professionals in a variety of disciplines do not have the information and resources they need to respond appropriately, effectively and sensitively. These cases may be complicated. Determining the best way to hold offenders accountable will vary, depending on the circumstances and whether the perpetrator is a family member, caregiver or resident. In situations involving domestic violence in later life, abusers use a variety of tactics to gain and maintain power and control over their victims. Similarly, many abusers will sexually assault/abuse their victims to demonstrate power and control over the victim. However, in later life, some older perpetrator's sexual offending and abuse may be the result of a manifestation of an illness or a condition related to dementia. Regardless of the motivation behind the assault/abuse, ending the abuse and supporting the victim are paramount. Holding abusers accountable and keeping victims safe requires different responses in different situations.

There are three basic components to responding to older victims of domestic violence or sexual assault in facility settings. The first is to recognize it. The second is to react. And the third is to refer.

If someone tells you he or she has been hurt or is afraid, consider that abuse may have occurred. Even if you have reason to doubt the abuse is real or have misgivings about other things that the person tells you, do not immediately dismiss the allegation. Instead, consult with a colleague to gain additional perspective. You may choose to consult with staff from the Bureau of Quality Assurance (BQA) (caregiver_intake@dhfs.state.wi.us or 608-243-2019) or an ombudsman with the Board on Aging and Long Term Care (http://longtermcare.state.wi.us/home/). Other options include contacting the county elder abuse agency or a sexual assault or domestic violence program in your area to gain insight and possible advice. (For a list of elder abuse agencies, please go to: http://dhfs.wisconsin.gov/aging/elderabuse/agencies.htm. For a list of domestic violence programs, please go to: http://www.wcadv.org/?go=gethelp/local. For a list of sexual assault programs, please go to: http://www.wcasa.org/findhelp/index.html.) Calls to elder abuse, sexual assault and domestic violence agencies can occur in an anonymous fashion, i.e., there is not a need to provide identifying information specific to your organization or the resident you are concerned about.

[Note: To assist you in identifying both domestic violence in later life and elder sexual assault in facility settings, additional information (e.g., definitions, indicators of abuse, perpetrator types, why elders are vulnerable) may be found attached to this memo in Appendix A.]

Once a case of elder sexual assault is identified, there are some crucial steps that should occur immediately. They are as follows:

1. Provide non-judgmental emotional support.
2. Provide protection from the abuser – for ongoing abuse to continue, secrecy and victim isolation are necessary. Consider the safety of the victim and yourself before taking action.
3. Provide needed medical care. Be careful to preserve evidence, e.g., do not bathe or shower the resident or change his/her clothing or bedding*.
   *It is recommend that evidentiary exams be completed within ninety-six (96) hours after a sexual assault. However, post ninety-six (96) hour exams can be done if the victim reports (1) pain or bleeding, (2) an unusual amount of force was used in the assault, (3) ejaculation occurred without clean-up or (4) in case by case exceptions. (Source: "The Elderly Victim of Sexual Assault and SANE [Sexual Assault Nurse Examiner]" power-point presentation prepared by C. Jill Poarch, RN, BSN, SANE and Kim Macauly, RN, BSN, SANE, Meriter Hospital SANE Program, Madison, WI, 2003.)
4. Report/refer case to proper authority(ies). (Please see the section/table that follows in this memo titled "Professionals and Their Roles and Functions" for a list of individuals/agencies you may choose to report to.)
5. Ensure throughout the entire process the thorough and accurate documentation of information, observations and facility decisions.** (For guidance on record keeping, please see the section that follows in this memo titled "The Importance of Documentation.")
   **Note: When developing sample policies and procedures for responding to sexual assault in facility settings, see Appendix B "Suggested Sexual Abuse Response Protocol" developed by the Sexual Assault/Domestic Violence Industry Training Advisory Group, Department of Health and Family Services, August 2003.

When you do learn of sexual assault/abuse, do not be hesitant to report it. It is your right as a resident, facility employee, county social worker, family member, friend or interested other to report and to have appropriate agencies, including law enforcement, respond. Delays in reporting greatly hinder investigations and prosecution of abusers.

Once a case of domestic violence in later life (that does not involve sexual assault) is identified, the initial response should be identical to elder sexual assault, steps one through five listed above. However, in executing step number four, the entity may decide to report or not report the situation to an individual(s) who works outside of their immediate organization. An entity should report to appropriate outside agencies whenever any of the following occurs:

1. Whenever the individual (the alleged victim) requests a report be made;

2. Whenever the elder adult-at-risk is incapable of seeking help;

3. Whenever the elder adult-at-risk is under guardianship or has an executed durable power of attorney for health care. (Note: If the alleged abuser is neither the guardian and/or agent, a report should be made to that legal representative so that s/he may carry out his/her responsibilities in defending the rights of the alleged victim. However, if the alleged abuser is believed to be the guardian and/or health care agent, at minimal, a report should be made to your county’s adult protective services agency.);

4. Whenever the elder adult-at-risk is in imminent life-threatening danger; and/or

5. Whenever there are other adults-at-risk that are at risk of serious bodily harm, death, sexual assault, or significant property loss inflicted by the suspected perpetrator.

The rationale for an entity to potentially not report an incident of domestic violence in later life to an external agency is based on the need for victim safety (trusting the victim to know what is best for him/her) and the principles of self-determination and empowerment. When an incident of domestic violence in later life involves a competent victim and the event does not constitute a crime (e.g., potential emotional abuse as demonstrated by yelling and shouting), then the facility may defer to the wishes of how the victim would want to proceed. In these circumstances (victim is competent and incident does not constitute a crime), it does not matter if the incident was witnessed by staff or was a result of victim disclosure. Recognize that factors such as loyalty, love or loneliness often keep the victim from severing the relationship with the abuser. The victim’s goal is often to have the relationship continue – just not the abuse.

In these circumstances an empowerment model of offering information, options and assistance is much more likely to be successful and not put the victim at greater risk. Find out what the victim wants to have happen and support those decisions as best you can. Victims of abuse can benefit simply from being heard, believed and supported. Identify ways that the victim can increase safety when the abuser visits. For example, inquire if the resident would want to meet in a public place (e.g., dayroom) rather than his/her own room – the additional eyes and ears may help to keep the abuser in check. Likewise, you may ask the victim if they would prefer not to go on a day or weekend pass with the abuser but rather stay at the facility and if the answer is yes, then provide the excuse for the victim to do so.

Informing the resident can be done respectfully. Discuss with the resident that you must report and why. Say for example: "I have heard your concerns about contacting law enforcement (adult protective services, ombudsman program, etc.). However, I am compelled under state statutes (federal laws, professional code of ethics, facility protocol, etc.) to report cases such as yours. I am very concerned about your health and safety. I would like to take the time now to talk with you (and, if appropriate, with your family, guardian, friend, etc.) about safety planning and follow-up services (e.g., medical appointments, counseling, execution of legal documents, etc.)."

Collecting thorough information improves the likelihood that the first response and/or investigation yield satisfactory resolution(s). No inquiry is complete without thorough documentation of every step along the way. Since documentation can serve as a legal document and an official record, the following needs to be considered:

• Information should be systematically presented, well organized and legible.

• Behaviors should be described rather than interpreted and facts reported objectively. Do not write judgment statements about the victim such as "she was hysterical and overreacting" or "he was evasive." This is an opinion; the reaction may have been perfectly appropriate given the circumstances.

• The written history should include information about who caused the injury, how the injury occurred and if the injuries are consistent with the resident’s explanation of the cause. Avoid language such as "alleges" which suggests you do not believe the information given.

• It is useful to document the actual words of the victim and others interviewed, and all sources of information should be included.

• Document injuries by taking photos or drawing on body maps.
  
• Document where report(s) of the incident(s) were made*** (e.g., charge nurse, facility administrator, law enforcement, Bureau of Quality Assurance, lead elder abuse agency), what interventions were offered (e.g., social services, counseling, safety planning, medical treatment) and the outcomes (e.g., accepted brochures, consulted with a social worker, obtained temporary restraining order). You should also identify, if applicable, any individuals you consulted with concerning any aspect of the case.
  ***If you did not file a report with an external agency about an incident of domestic violence in later life which involved a competent victim but did not constitute a crime, you should document rationale for doing so. Sample entry could read: "After discussing with the victim the situation (including options that could be explored) and receiving direction as to how s/he would like to proceed, I did not believe filing a report with an outside party would be in the best interest of the victim."

Where to Report

The key systems that should respond to reports of domestic violence in later life and elder sexual abuse in a facility setting are social services (elder abuse and adult protective services), regulation and licensing, criminal justice including victim services, and, advocacy organizations. Frequently healthcare is another system that plays an important role in responding to reports of elder physical and sexual abuse. An understanding of which agencies are responsible for investigating abuse and which individuals within those agencies are responsible for receiving complaints is necessary to ensure appropriate, timely referrals from institutions.

Prevention/early detection is a critical component in providing a safety net for Wisconsin’s most vulnerable populations. As identified above, older victims benefit from a coordinated response to situations involving abuse, neglect and exploitation. County elder abuse interdisciplinary teams (I-teams) are a way to educate in advance the professionals involved and their role in responding to abuse, neglect and exploitation. An I-Team is a group of selected professionals from a variety of disciplines who meet regularly to discuss and provide consultation on specific cases of elder abuse, neglect or exploitation. (In some counties, social workers from nursing homes participate. In other counties, a long term care ombudsman serves on the team.)

If your entity is seeking guidance on how to proceed with a case of sexual assault or domestic violence in later life, contact your county’s lead elder abuse agency representative and, if timely, ask to be placed on the next I-team meeting to discuss the situation. Otherwise, ask the I-team coordinator’s opinion about how to best proceed in getting additional insight (some agencies have a core group that can be pulled together for emergent cases, others have an electronic message board for seeking advice).

[Note: To assist a county in developing a "Phone/Contact Page" for referring cases of abuse, neglect and exploitation, see Appendix C.]

The Department’s goal is to end abuse, neglect and exploitation of Wisconsin’s most vulnerable citizens. Regulatory oversight, facility practices and policies, and individual background checks are three methods of protecting vulnerable individuals from abuse, neglect and exploitation. However, one of the most effective prevention and intervention methods regardless of where a person resides is increased communication and collaboration among agencies. It is important that agencies coordinate efforts and resources. Information must be provided to residents, family members and care providers on how to identify abuse, neglect and exploitation and to report it.

This information memo provides facts specific to domestic violence in later life and elder sexual assault in facility settings and gives guidance on identifying, responding and referring cases in a timely, appropriate fashion. The memo also strongly emphasizes the need to collaborate with a wide variety of systems to most effectively meet the wishes of the victim, including victim safety, and to hold the abuser accountable.

CENTRAL OFFICE CONTACTS: 
Shari Busse, Caregiver Investigation Lead
DHFS/DDES/BQA/Office of Caregiver Quality (OCQ)
2917 International Lane, Suite 300
Madison, WI 53704
Voicemail: 608-243-2036
FAX: 608-243-2020
Email: bussese@dhfs.state.wi.us

Jane A. Raymond, Advocacy and Protection Systems Developer
DHFS/DDES/Bureau of Aging and Long Term Care Resources
P.O. Box 7851
Madison WI 53707-7851
Voicemail: 608-266-2568
FAX: 608-267-3203
Email: raymoja@dhfs.state.wi.us

MEMO WEB SITE: http://dhfs.wisconsin.gov/partners/local.htm

c: 
Area Agencies on Aging Executive Directors
Alcohol and Drug Abuse Coordinators
Board on Aging and Long Term Care
Coalition of Wisconsin Aging Groups – Elder Law Center
DDES Facility Directors
Developmental Disabilities Coordinators
Mental Health Coordinators
Wisconsin Coalition for Advocacy
Wisconsin Coalition Against Domestic Violence
Wisconsin Coalition Against Sexual Assault
Wisconsin Council on Developmental Disabilities
Wisconsin Council on Mental Health

Attachments: 
Appendix A – Facts About Domestic Violence in Later Life and Elder Sexual
Assault Occurring in Residential Care Facilities

Appendix B – Background Information on the Sexual Abuse Response Protocol

Appendix C – Contact Information for Reporting Abuse, Neglect & Misappropriation (Financial Exploitation) Incidents

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