U.S. Department of Justice Involvement in Elder/Vulnerable Adult Abuse Prevention and Intervention Efforts

The U.S. Department of Justice (DOJ) is deeply involved in elder and vulnerable adult abuse issues, especially as they relate to residents of long-term care facilities (many of which are dependent on Medicaid/Medicare funding) and “traditional” domestic violence.

Much of DOJ’s involvement is in the form of grants to other entities. Currently, more than 40 active grants are focused on various aspects of elder and vulnerable adult abuse (see related article in this issue, “DOJ Elder and Vulnerable Adult Abuse Grants”), and more are scheduled to be announced shortly.

However, DOJ’s involvement in the field extends much further than these grants. Recently Marie-Therese Connolly, one of DOJ’s premier elder abuse experts, published an article in the University of Maryland Journal of Health Care Law and Policy,” (4 J. Health Care L. & Pol’y 230 (2002)), “Federal Law Enforcement in Long Term Care,” which discusses DOJ efforts in detail.

Connolly provides a conceptual structure for understanding what DOJ sections are involved in elder abuse:

• Three litigation divisions
  o Civil
  o Criminal
  o Civil Rights
• The Department’s local offices -- U.S. Attorney’s Offices
• The Department’s investigative offices -- Federal Bureau of Investigation
• Grant-making, research, and project-funding arm
  o Office of Justice Programs (and its Bureaus)
  o Office of Legal Policy (formerly the Office of Policy Development)
  o Office of Legislative Affairs
  o Office of Public Affairs
• Department’s leadership offices
  o Attorney General
  o Deputy Attorney General
  o Associate Attorney General

COLLABORATION

DOJ engages in a great deal of cross-agency collaboration. Connolly singled out several divisions of the U.S. Department of Health and Human Services (HHS) Office of Inspector General with which DOJ works:

• Office of Investigations (conducts investigations and audits)
• Office of Audit Services (also conducts investigations and audits)
• Office of Counsel (has authority to “pursue a variety of remedies”)
• Office of Evaluations and Inspections (a sort of “think tank” that conducts studies and releases reports on a broad variety of topics).

DOJ also participates in two semi-formal interagency groups. A nursing home steering committee meets monthly and is attended by “numerous components” of the Departments of Justice and Health and Human Services. The committee addresses specific cases as well as policy, training, and legislative issues. They have also “undertaken projects related to data collection and analysis, identification of problematic facilities and chains, implemented a certification on the Minimum Data Set form, discussed and pursued a coordinated interagency approach, and developed consensus recommendations relating to numerous novel issues related to long term care matters.”

The Interagency Elder Justice Working Group, founded in 2001, meets every two months to hear speakers, discuss members’ activities as they relate to elder justice and redressing abuse and neglect, and to identify potential areas for collaboration. Members include DOJ, the Administration on Aging, the National Institute on Aging, and the Health and Human Services’ Office of Inspector General.

LITIGATION

Most of the civil cases DOJ has handled to date alleging abuse and neglect in residential care settings (“failures of basic care leading to profound malnutrition, dehydration, pressure ulcers, scalding, and other illness, injury or death”) have been pursued under the civil False Claims Act (31 U.S.C. § 3729 [1988]), which involves financial fraud. However, a newly emerging civil strategy is to file claims under various “failure of care theories.”

There are a wide variety of federal statutes DOJ can use to pursue criminal cases against those who abuse or neglect and the people who enable these crimes:

• 18 U.S.C. § 4 (2001) misprision of a felony (concealing knowledge of another’s felony)
• 18 U.S.C. § 1347 (2001) health care fraud incorporating definition from 18 U.S.C. § 1346 (“scheme or artifice to defraud” can include “depriv[ing] another of the intangible right of honest services”)
• 18 U.S.C. § 1035 (2001) false statements about health care matters
• 18 U.S.C. § 1001 (2001) false statements
• 18 U.S.C. § 371 (2001) conspiracy
• 18 U.S.C. § 1341 (2001) mail fraud
• 18 U.S.C. § 1343 (2001) wire fraud
• 18 U.S.C. § 286 (2001) false statements to the United States
• 18 U.S.C. § 287 (2001) false statements to the United States
• 18 U.S.C. § 1516 (2001) obstruction of a federal audit
• 18 U.S.C. § 1505 (2001) obstruction of proceedings before a grand jury
• 18 U.S.C. § 1510 (2001) obstruction of a federal investigation
• 18 U.S.C. § 1518 (2001) obstruction of a criminal health care investigation
• 18 U.S.C. § 1623 (2001) perjury

It’s important to note that once a provider has been convicted of a criminal healthcare related offense, exclusion of that provider from federal health care programs is mandatory.

DOJ’s Special Litigation Section pursues civil rights cases under the Civil Rights of Institutionalized Persons Act (CRIPA), 28 U.S.C. § 1997 (2001). CRIPA covers nursing homes; other long term care institutions such as facilities for individuals with mental retardation or developmental disabilities; psychiatric institutions; juvenile detention facilities; and jails and prisons. “CRIPA actions usually result in consent decrees and monitoring of consent decrees by the Civil Rights Division.”

ADMINISTRATION OF JUSTICE

“Justice may come in many forms. The best form of justice for all involved is prevention. Many other factors, however, also are relevant to promoting justice, such as increasing the knowledge base and identifying protocols that will enhance our ability to detect and diagnose abuse and neglect, effective treatment and other assistance for victims, prompt reporting of suspected violations, careful selection of caregivers, and myriad interventions, including emergency, medical, social service, policy, reimbursement, advocacy, legal, legislative, and multi-disciplinary interventions. Enhancing our capacity in each of these domains is critical if we are to address the problems in long term care, not just in the form of prosecutions after the fact, but in a more comprehensive manner. In other words, our ability to progress on each of these fronts will in turn have a bearing on our ability to promote justice.”

“Pursuing cases is not the only role to be played by federal law enforcement. Also vital is the Department’s ‘administration of justice,’ in which the Department on its own, in collaboration with others, or by funding other entities, takes steps to assess the problem, study the phenomenon and what interventions work, promote awareness, coordinate the many relevant entities, provide training and education, and take other necessary steps to improve our ability to prevent, detect, treat, intervene in, report, investigate, and prosecute abuse and neglect of older and disabled people in long term care and other settings.”

DOJ has been very active under the “administration of justice” umbrella. In the last few years it has trained more than 1500 people; held four regional nursing home abuse and neglect prevention and prosecution conferences (July 1999 - February 2000); sponsored a meeting of State Working Group representatives and national representatives of umbrella organizations involving more than 30 active working groups and representatives from more than 40 states (June 2000); held a Promising Practices Symposium in conjunction with HHS (October 2000); and convened a roundtable of experts to discuss medical forensic issues in elder abuse and neglect (also held in October 2000).

In 1998 Congress enacted Public Law 105-277, which allows long term care facilities to request that the FBI search its fingerprint database for criminal history matches. The DOJ/HHS Nursing Home Steering Committee has been working with the FBI to “educate providers and the relevant state agencies about the existence of and procedures for obtaining background information” from the FBI.

A particular DOJ emphasis has been on exploring medical forensic issues, or how to prove medically that a crime has taken place. As follow-up to the roundtable mentioned above, DOJ has contracted with four agencies to develop recommendations about medical forensic issues related to abuse; to fund four elder abuse fatality review teams and produce a “promising practices” and replication guide; to investigate bruising in elders; to identify forensic markers in elder sexual abuse; and to study an existing state’s program to identify elder abuse and neglect from death records. (For more details, see related article in this edition, “DOJ Elder and Vulnerable Adult Abuse Grants.”)

DOJ has also undertaken several other elder abuse projects. In 2001, it co-sponsored with HHS the National Policy Summit on Elder Abuse. It has produced an elder abuse training module for law enforcement officers and other first responders which includes skills needed to investigate abuse and neglect in long-term care facilities, underwritten a monograph on emerging issues in elder abuse (which was not, unfortunately, ever published), and funded the Baylor College of Medicine to develop an elder victimization curriculum targeted to physicians in emergency medicine, geriatrics, and general medicine.

Unfortunately, the former website “home” of many of these DOJ activities, Elder Justice, was recently dismantled. Therefore, it has become much more difficult to find relevant documents on the DOJ website. AAR has selected the following key links.