This New Dawn

Both federal and state laws address elder abuse, neglect and exploitation, but state law is the primary source of sanctions, remedies and protections related to elder abuse. A few federal laws relate specifically to elder abuse and neglect, but none of these laws provides broad regulatory mechanisms for state or local programs established specifically to support services for victims of elder abuse.

The Elder Justice Act of 2009 was enacted in March, 2010 as part of the Patient Protection and Affordable Care Act which authorized funding in several areas.  These include   creating elder abuse forensic centers; other programs which deal with recruiting, training and retaining long-term care staff as well as programs to improve management practices and adoption of standards for the electronic exchange of clinical data.  A third program provides grants to enhance the provision of adult protective services by state and local agencies, and to conduct programs to assist in detecting and preventing elder abuse and financial exploitation. Creating a national institute for training, technical assistance, and development of best practices to improve investigations of elder abuse reported in long-term care facilities is also part of this Act.

The Act also requires owners, operators and employees of long-term care facilities to report suspected crimes committed there and to provide 60 days written notice to the HHS Secretary and the state of a facility's impending closure. The notice must include a plan for transfer and adequate relocation of all residents.

Another provision requires the HHS Secretary to establish a nationwide program for national and state background checks on prospective employees with direct patient access of long-term care facilities and providers.

All states have adult protective services (APS) or elder protective services (EPS) statutes that authorize and regulate the provision of services in cases of elder abuse. Some states have both EPS and APS statutes, and some states have more than one APS law. These statutes set up systems for reporting and investigating suspected elder abuse and for delivering services to victims.  Eligibility for APS services is based not only on the age of the adult, but also on legally defined disability, vulnerability or impairment.  Eligibility criteria and definitions of those criteria vary widely across the states and acquiring an adequate understanding of the requirements in some states can be challenging.

All states also have statutes establishing a Long-Term Care Ombudsman (watchdog) Program. These programs advocate for the rights, safety and other interests of long term care facility residents. Programs typically are administered under a state or local office on aging. Approximately 15 states also have separate statutes that address abuse, neglect and exploitation of residents of long term care facilities and other institutions.

All states have general criminal statutes on assault, battery, sexual assault, theft, fraud and other offenses that can be applied in cases of elder abuse. Many states have specific crimes against family members. A few states provide increased penalties for victimizing older adults, while some states specify elder abuse as one or more separate crimes.  

Civil remedies for particular types of elder abuse are available in most states under statutory and case law.   All states provide civil remedies for domestic abuse.   Examples of other civil remedies include civil liability for identity theft, financial exploitation, and deceptive practices, petition for access to an elderly person, and removal of durable power of attorney.