The Ombudsman in California have authority to receive and investigate serious allegations of neglect and abuse, but cannot share their information without written consent from the victim, even with law enforcement agencies. In fact, facilities are required to send reports of suspected abuse to the ombudsman program, who then has the power to investigate. This puts the ombudsman in the untenable position of knowing about abuse but not being able to report it to any agency who can do something about it.
The primary motive for such strict confidentiality is to ensure that the resident is protected from retaliation by the nursing home if they complain. But the ombudsman reports that three-quarters of residents who complain refuse to release their identities.
That means that the vital services of the unpaid volunteers of the Long Term Care Ombudsman program are handcuffed and that the extent of criminal abuse and neglect in long term care facilities is essentially obscured and under-prosecuted.
In a recent report the California State Senate Office of Oversight and Outcomes found that as a result of the confidentiality provisions the extent of criminal abuse and neglect in long term care facilities is essentially obscured and under-prosecuted.
Assembly member Mariko Yamada has introduced AB 40 in an effort to address this "glaring hole" in reporting requirements by requiring all elder abuse reports made by a mandated reporter (including the facility) to the Ombudsman to also be reported to local law enforcement, a move she calls a "cc" for justice. Presently, the law requires only a report to either the ombudsman or law enforcement.
In my experience, elder "neglect" cases are rarely prosecuted against a long term care facility. Law enforcement is trained to recognize and more readily interested in claims of abuse, assault, sexual crimes, financial abuse, and the like. Neglect can be difficult to recognize in an elderly, frail person with complex medical conditions. Determining whether a death or injury is caused by misconduct or natural disease requires training and insight. But, AB 40, requiring increased reporting of suspected abuse and neglect to law enforcement may help shed some light on this important problem and result in more training and better advocacy for seniors.
