What is a mandatory reporter?

Episode 129
Categories: Neglect & Abuse, Regulations

Under Federal and state laws, certain medical providers, including nurses and physicians, have a legal duty to report elder abuse to a specified state agency. Such statutes include abuse occurring in nursing homes, assisted living facilities, and persona care homes. In this week’s episode, nursing home abuse lawyers Rob Schenk and Will Smith welcome guest Nancy J. Brent, Esq. to discuss mandatory reporting in the skilled nursing setting.

Schenk: Hello out there and welcome back. My name is Rob Schenk.

Smith: And I’m Will Smith.

Schenk: And we are your hosts for this episode of the Nursing Home Abuse Podcast. This episode is going to be chock-full of exceptional information. We’re going to be talking about mandatory reporting, what it is, who are mandatory reporters and all of that. We’re not going to do that alone. We’re going to do that with a guest, an Esquire of a guest. And before we get into who this person is, I just want to say that it goes without saying that this podcast in this particular episode of this podcast is for general information purposes only and should not be construed as legal advice in any way. If you are out there listening or watching and you have specific questions for your specific legal matter, I would highly suggest you contact an attorney in your local area, and with that, Will, who do we have on this podcast today that is going to be talking about mandatory reporters?

Smith: We have Nancy Brent who is both a registered nurse and an attorney in private law practice in Wilmette, Illinois. She represents nurses and other healthcare providers before the state agency that regulates the health professionals. She graduated from Loyola University of Chicago School of Law in 1981 and her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, she decided to establish a private practice in 1986. Brent has published extensively and lectured across the country in the area of law and nursing practice, both of which she is eminently qualified to do. She is a member of several legal and nursing professional associations including the American Nurses Association, Sigma Theta Tau International Honor’s Society of Nursing, the Illinois State Bar Association and the American Association of Nurse Attorneys. So welcome to the show.

Schenk: Welcome to the show, Nancy.

Nancy: Well thank you.

Schenk: All right. How is the weather up there in Chicago right now? It’s like it’s a cyclone.

Smith: Well it’s Wilmette, isn’t it?

Nancy: Yes, Wilmette is a suburb of Chicago. It’s right up north on the lake. There’s Chicago and Evanston and then Wilmette. And so Chicago usually sometimes gets different weather than we do, but for the most part if it’s lousy in Chicago, it’s lousy in Wilmette. So luckily that big storm that came across the country yesterday and went further north didn’t affect us as much as we thought it was going to, so we didn’t have much rain, snow thunder and all those kinds of things. And it’s a nice day today but it’s still pretty cool.

Schenk: Great. And just so the audience isn’t thrown for a loop, as of the date, it’s August 19th, but we recorded this way back in April of this year.

Nancy: Ah-hah.

Smith: Yeah.

Schenk: So that’s why we’re like – anyways, because it might be 89 degrees in Wilmette.

Smith: Well it takes a while for it to get warm. My mom’s from Decatur, Illinois, and that’s all that I’m familiar with. But yeah, so welcome to the show. We’re glad to have you.

Nancy: Well thank you.

Schenk: So Nancy, the overarching theme of this show is talking about mandatory reporters, and for most of the public, at least most of the public that I know, they have never heard those words together ever. So can you just give us a 40,000-foot view of what that term “mandatory reporter” even means?

What is a mandatory reporter?

Nancy: Yes, well I’d be happy to at least translate so it makes sense. A mandatory reporter is someone who is listed in a state law that is required to report a particular situation or event to the regulatory agency that manages the particular problem that might come up such as elder abuse or elder neglect. And so they are mandated by law to report those kinds of observations, information, and if they do so in good faith, there is usually no liability if you will. There’s no criminal liability or any other type of liability, but the person is required to report these observations or concerns in order to help protect individuals who might not be able to report these things themselves.

Schenk: So a couple things with that – so no liability in terms of they can get in trouble for not reporting – that’s the liability component that you’re talking about in that aspect, right?

Nancy: Yes, that’s correct. In other words, if they would not report it and they were a mandated reporter, let’s say as an example, a nurse, a social worker, a teacher, a psychotherapist, if they did not report and that was discovered, then they may face liability. And conversely, it’s important to stress – maybe I didn’t make that quite clear – if they do report and they do report in good faith and that is something that is presumed by the law, they do not face any criminal liability, civil liability or any potential professional disciplinary liability if they follow through with the mandate and report as they are required to.

Smith: Got you.

Schenk: Got you. And I know you don’t have the entire list in your pocket right now, but what are some of the groups of people, classifications of people that are mandatory reporters? And what are some of the groups of people – you mentioned the elderly – but what are some of the groups of people that are actually I guess the “victims” or the beneficiaries of the reporting? Who are those classifications?

Who are the beneficiaries of mandatory reporting laws?

Nancy: Sure. Okay, well let’s start with the groups first. Of course, anybody who’s involved in the medical field would be required to be a mandated reporter. Also law enforcement are required to report abuse and neglect that they might observe. Social workers, those may or may not be in the healthcare setting, but social workers. And so these individuals are people who are in a position to potentially discover abuse and neglect because they work with populations that are vulnerable, that are needy, that may not be able to speak for themselves.

And of course, elder abuse and exploitation is one group of people that might be victims. Other are children, and that’s usually defined as someone under the age of 17. Those who are disabled, either physically or mentally, and have difficulty communicating or have to rely on someone to care for them 24/7, and situations may arise in that kind of situation. So they’re vulnerable individuals and because they may not be able to speak for themselves or they’re afraid to speak for themselves, these mandated reporters are required to do that for them. They’re advocating, if you will, for the victim.

Smith: So if you’re a nurse or a doctor and you’re examining, for whatever reason, an elderly person or maybe a child and you notice suspicious markings or bruising around the genitalia, then you’d have a duty to say, “Hey, I think something may be going on here.”

To whom does mandatory reporting apply?

Nancy: That’s correct. And let’s be clear that obviously sometimes these things are discovered at a moment and it’s not clear whether or not there is actual abuse or neglect going on, but based on information, the questions that might be asked of the individual or the person who is the potential victim, things don’t quite make sense, the parents aren’t being very cooperative or the elder resident’s family doesn’t really want to speak with you about these kinds of things, then you start to have a suspicion about, “Well maybe something isn’t quite right.” So it isn’t that you have to have actual knowledge that something has happened. It’s that you have to have a reasonable belief or suspicion is another word that is used sometimes that abuse and/or neglect has taken place. And if that’s the case and you can document that carefully and factually and honestly, then that has to be reported to the respective agency where the report is to go.

Schenk: So that makes sense in terms of you mentioned the good faith effort to report, and that goes to the occasion in which the parent, there may be symptoms of abuse but there’s not abuse – there’s an innocent explanation, so the parent or whoever is the accused cannot retaliate against the actual reporter if the report was done in good faith.

Are mandatory reporters protected from reports made in good faith?

Nancy: That’s correct. And most of these reports are made confidentially, so although the family member may know or think they may know who reported, they’re done confidentially and there can be no retaliation for reporting in good faith. Now if somebody, the person across the street doesn’t like the family and so reports without any kind of clear suspicion, good faith suspicion, then of course that’s outside the protection of the mandatory reporting statute, then they could be held liable.

Schenk: So I feel some of the audience might say something along the lines of, “No, duh. Why are we having to legislate this?” And I think the reason why people don’t know this, and I know it was like one of the first days of tort class in law school, you learn that at least in the United States, unless there is some type of duty by operation of law, you don’t have a duty really to help anybody. You can walk past somebody on the side of the road and you can easily help them – you don’t have the duty to help them, and actually that was one of the final Seinfeld episodes explore that topic. But anyways…

Smith: It’s like the lady in New York that’s screaming on the sidewalk in the famous case and nobody does anything.

Schenk: Yeah. But can you kind of delve into it a little bit, that component of it? The actual policy rationale behind why we have to legislate that?

What is the rationale behind mandatory reporter laws?

Nancy: Well and it makes sense and it’s truly a very simple rationale. If one can’t speak up for themselves in situations where they are dependent on a family member or a nurse in a long-term care facility or a social worker, and they’re concerned about maintaining that relationship but yet they’re scared about what’s happening, they don’t know who to turn to, they become very, very unsure of what they should be doing. And as a result, they may become depressed. They may be withdrawn more than they usually would. Their whole focus and their whole being can be radically changed because they can’t speak up for themselves or don’t think they should. They’re worried about the consequences, and as a result, the mandatory reporters are the ones that have to be ever vigilant to the potential for abuse, neglect, sexual exploitation, financial exploitation, so that if in fact it is going on, that’s not for the nurses to say, “Oh yeah, I know it is” or “No, it’s not.” Once it’s reported, it is investigation, and if it’s a founded report, then it’s taken on through the process and help is offered and dealt with in relation to the victim. But the nurse shouldn’t be going in or the teacher or anyone going in and saying, “Hey, let me help you. Let’s get you out of here. I know where you can stay until we get this resolved.” It’s the reporting and the actual factual truthful reporting that is the obligation of the mandatory reporter.

Smith: And I think you made a very good point and some people maybe didn’t realize this is that the whole reason for this is to protect the vulnerable, is to protect children, to protect the elderly. If I go to get a physical and the doctor notices, like I mentioned earlier, bruising around certain areas of my body, I’m a 41-year-old independent man, they’re not going to report. The idea is that there are those like you said who don’t have a voice that need extra protection. And so it seems like that’s the impetus behind it.

Who is protected by mandatory reporters?

Nancy: Yes, and I think it’s also interesting along the similar vein – now when you go into the hospital, even as an outpatient basis, at least for women anyways, they’re now required to ask, “Do you feel safe at home?” And regardless of the age – so if I…

Smith: I’m laughing only because I had a friend and I know him and his wife very closely, and she fell down some stairs and broke her nose, and if you know this couple, you know he’s a very meek person. They went to the hospital and they actually had to – she was telling me about this – they took her aside and they were like, “Ma’am, do you feel safe?” and she was like, “What are you talking about? I actually fell. I really did this.” But yeah, she’s my age as well but they did that.

Nancy: Yeah, and I think it’s not – there’s exception to it. They just ask. And of course, I can say yes or no, but if I’m sitting there and I have bruises and so forth, then someone who is able to make a better assessment needs to follow through with that. But I think we’re becoming aware there is a lot that goes on in the world that people are vulnerable. Even – whether they have mental health problems or physical problems or are disabled or are just meek and by themselves and depend on other people to take care of them, that can be very problematic if you’re exploited or abused or neglected. You keep quiet because you don’t want to change the format of care.

Smith: Yeah, that’s a very good point. Very good point.

Schenk: Can you talk about where mandatory reporting exists in terms of is it federal law? Is it something that each state has? Can you kind of elaborate on that?

Are mandatory reporting laws State, Federal, or both?

Nancy: Yes. Well I think the real immediate area is state laws. They have – all states have Adult Protection Services. All states have child abuse and neglect reporting acts, elder abuse acts, and so it’s really on the state level. There are some federal laws, but really, the state laws mimic those. And so it would be a state agency or the state level where they complaints would be given, reported – sorry, and then taken on the state level.

Schenk: And at least in your experience and your understanding of the law as it is maybe in Illinois, what are some of the typical signs, physical, outward signs – not if somebody says, “Please help me,” – but the physical, outward signs someone would have that would invoke the mandatory reporting for a nurse or a doctor or whoever it is?

Nancy: Okay. Well I think any kind of consistent bruising – for example, black eyes all the time or broken bones, “Oh, yes, I fell.” “Well isn’t this the third time?” “Yeah, I’m kind of clumsy.” You might want to start thinking about that kind of thing. I also think when people are not eating but they have been eating fairly well and you have a resident in a nursing home and likes to be involved in the activities and so forth and then all of a sudden doesn’t, gets withdrawn, that’s another problem. Unexplained bleeding from a body part, particularly like the vagina or the anus would be another problem that one would start to worry about what is going on with that resident or that child sexually.

And also financial exploitation is another concern and you don’t necessarily see physical presence of that, but what you’ll see is maybe the resident or the individual saying, “I don’t really want to see Fred again this week. He was here last week. I had to sign several documents. I don’t want to see him again.” So these are all – it’s the overall picture of the individual and it may be a physical problem or it may be more of a behavioral issue.

Another concern for residents in long-term care facilities are decubiti because they should not have them to begin with. I mean they’re difficult to prevent, but if you have a good regime of turning and changing and so forth, there should not be an over-excessive amount of decubiti and the patient is either bedridden or even sits in a wheelchair for most of the day.

Smith: It’s interesting that you bring up the financial part because we actually just spoke to someone yesterday, and this is Georgia, but he heads the – or he’s involved – in the what’s called the North Georgia Elder Abuse and Exploitation Task Force.

Schenk: Yeah, that was Joe Gavalis. We had him on Episode 126.

Smith: Yeah, and he was discussing the move to have banks essentially become mandatory reporters in certain ways when they notice certain financial transactions that are sketchy. So if Grandma all of a sudden depletes all of her – takes all of her life savings out, they’re going to potentially report that to somebody.

Nancy: Well that’s interesting because I don’t think – and I think that would be a good idea. Currently I do not believe the banks have that responsibility.

Smith: They don’t.

Nancy: But one of the exceptions – but I think that individual banker would have the overall picture of what’s going on with that person’s account, just like for example, I couldn’t find my new checks that were sent one time to the office. They didn’t come. They didn’t come – they must have been misdelivered. So I called my personal banker and she was on the lookout for them and luckily a friendly neighbor whom they’d been misdelivered to got them to me and that was fine and it worked out okay, but she knew she had to watch my account and put a security thing on it and so forth. So they’re in a very important position to be able to eyeball financial exploitation because it happens probably more than some of the others do.

Smith: Oh, it does. It’s a huge, huge problem.

Schenk: Nancy, so with regard to let’s say a nurse for example, and there is a senior citizen or a female or a child or whatever the case may be where there’s not necessarily physical symptoms, but as you mentioned, emotional symptoms or the emotional withdrawal and depression or whatever, I feel like that puts that nurse in a very difficult position in terms of having to judge that situation. In representing nurses in that capacity, what are some of the issues that arise in making that call of is this triggered under the report? Is the a “If there’s any doubt, report it” type of thing? Can you speak to that?

Are there any complications with mandatory reporter laws?

Nancy: Yeah, and well I think the most important thing is when a nurse does this, there are more behavioral kinds of concerns to share that with his or her nurse manager, supervisor, whatever the term may be, to determine whether perhaps rather an immediate reporting, assessment need be done by a psychiatrist or a psychologist or a social worker, whomever might be involved in doing it, to see if further information can be obtained. Again, a nurse isn’t the investigator, but on the other hand, she doesn’t or he doesn’t want to willy-nilly, “Yeah, I’m going to report this because I think this is a problem.” It just might have been a bad day or whatever. But the fact that he or she observed and knows the patient, it needs to be taken to another level of assessment and then a determination made.

I might add here that when you start sharing that kind of information, let’s say the nurse manager may say, “Well we don’t care what it is. We can’t have any reporting coming out of this hospital that there’s been a child that has been abused or neglected,” or “That’s my neighbor’s kid. We’re not going to do that.” You can have liability, again, for not reporting when that reporting is blocked by someone else. In other words, the nurse manager would be in trouble there and then the nurse herself might be in trouble. She would have to do an end run around the nurse manager because no one can obstruct you from making a report that you believe in good faith needs to be made.

Schenk: That’s actually – that brings up an important point, Nancy. What are the liabilities for failure to report when it should have been done? Is it criminal liability? Is it civil liability? Are you open to lawsuits from the victim’s family? How does that work?

What is the liability for failure to report?

Nancy: Okay, well if you have a statutory mandated reporting, the statute or the law would tell you what your liabilities would be if you did not. And usually it’s a misdemeanor and that’s a criminal matter, meaning that it’s either a one year in jail or a $1,000 fine or a combination thereof, so that’s the criminal side.

The civil side, it’s interesting that there is no specific penalty in the statute or there is no statute about mandatory reporting. You can sue civilly under a negligence theory in that you knew or should have known that this was abuse or neglect and therefore if they have found that you have breached your duty of reporting in that situation, then you would be liable for any kinds of costs or damages that the victim would have suffered.

And then if you a license or are certified, such as a certified nurse assistant or a registered nurse or physician, failure to report is also included in professional licensure statutes, so that they might lose their license or be disciplined by the state board that regulates their practice.

Schenk: Yeah, that makes sense. Well Nancy, are there any issues that are like on the – that are new to mandatory reporting and liability for failure to report? Is there anything that’s kind of like you’re seeing more and more?

What are some common issues with mandatory reporter laws?

Nancy: Not really. I still have nurses who call me and say, “I’m not sure about this,” and “What should I do?” So one of the things that I think is important for someone to think about who is a mandated reporter is to seek legal advice if they are concerned whether or not they’re doing so in good faith or they’re not sure if this is really a sign or a symptom of abuse that’s been going on for a long time, or what about this or that. I think that it’s important to point out and it continues to be the case in my practice and if there is a concern, the nurse seeks advice as to “How I should handle this? What do you think? What should we do?” And then we balance it and decide whether or not there should be a report or not, and usually I will caution anyone who speaks with me to err on the side as if they have this good faith suspicion and we’ve looked over what observations and behaviors and so forth has been seen by the health professional. So that’s I think one new thing to emphasize is that if someone is not sure, get some input. Go to your resources. Go to risk management if you’re uncomfortable about talking with an attorney. But someone should help you make the determination but cannot block you from doing so. So sometimes maybe it’s better to have a personal attorney who, again, is not involved in the system in which one works or whatever to help with that determination.

Smith: And I would imagine you’re very uniquely qualified to doing that, having both a JD and an RN.

Nancy: Well I’d like to think I’m really unique, yes. I think I understand what nursing is all about, not every single aspect of it, and many times clients have to update me on what’s been going on because I’ve been practicing law for some time and I practiced nursing a long time ago. But I think that professionals who have these concerns like to speak to an attorney who knows their profession, so whether it be a physician’s lawyer or a nurse lawyer or a social worker attorney, those are good places to start to get input because they don’t have to explain the nursing practice. However I will say…

Smith: You know the landscape.

Schenk: Yeah.

Smith: …There are many attorneys who are not healthcare – don’t have a healthcare background but know very much about these kinds of things as well. But yes, thank you, I try to combine the two the best I can and have been doing that for many, many years now.

Schenk: Well speaking of that, Nancy, what is a good way for somebody who is a nurse or a doctor or a mandatory reporter that is in the state of Illinois, how would they get a hold of you?

Nancy: Well probably the easiest way – I do a number of columns online and the BrentLaw@Nurse.com is a good place to send in questions or concerns. I don’t always get a chance to answer all of them and I do put them on the blog as opposed to independently talking with the person.

Smith: Oh, okay.

Nancy: But my office of course, I’m listed in the phone book if they have a personal concern that they want to deal with. So those are two options that people can call in if they want to.

Schenk: Very good.

Smith: And I would suggest people, and we’re going to put your contact information up there.

Schenk: The Brent Law email address we put up there.

Smith: Yeah.

Nancy: Okay.

Smith: But I would suggest people go to this blog too because it’s very possible that somebody has asked that question before, somebody’s experienced the same thing.

Nancy: Well that’s right. And sometimes just looking online, punching in the search bar blogs on reporting, mandatory reporting of abuse and neglect, you’ll get a lot of information, and mine will come up there because I’ve done a number of them over the years.

Schenk: Excellent.

Smith: There you go.

Schenk: Well Nancy, thank you so much for coming on the show and sharing your knowledge. This is an area that we get a lot of questions about, so we were glad you were able to answer our questions.

Nancy: Well I appreciate the opportunity to have done so and I wish both of you good luck in your continued podcast. I look forward to hearing this one.

Schenk: Awesome. Thank you so much, Nancy.

Smith: Thank you, Nancy.

Nancy: Okay.

Schenk: Lot of great stuff. Nancy, one of the few attorneys we’ve had on the show. We’ve had maybe a handful. We’ve had Iris Gonzalez from the AARP Foundation.

Smith: Richard Mollot.

Schenk: Eric Carlson.

Smith: Melanie McNeil.

Schenk: Okay, so she’s one of dozens and dozens – a majority of our…

Smith: She is the only…

Schenk: Nurse attorney.

Smith: Nurse attorney, and that is very impressive that she has not only a nursing degree but a juris doctor as well.

Schenk: That’s right.

Smith: And I imagine that comes in very handy.

Schenk: A lot of edu-ma-cation.

Smith: Yes.

Schenk: Something that I wanted to bring up is that this Wednesday is a holiday called Senior Citizens Day, so that’s obviously, as a nursing home podcast, that’s very near and dear to us. So get out there. Visit your local nursing homes. Call your grandparents.

Smith: Yeah.

Schenk: Well depending how old you are, call your parents. But show some appreciation. Take some Krispy Kreme donuts to a nursing home. Spread some love on this Wednesday, which is Senior Citizens Day, which is August 21.

Smith: Absolutely.

Schenk: All right. That will conclude this particular episode of the Nursing Home Abuse Podcast. You can catch new episodes of the podcast every other week on Monday morning, every other Monday morning I should say. Every other Monday morning, you can catch a new episode.

Smith: Twice a month.

Schenk: Twice a month. Bi-monthly. Yes – on our website, which is NursingHomeAbusePodcast.com or on YouTube, or you can check us out wherever you get your podcast from – Stitcher, Spotify, Google – no, yeah, Google Play, Apple Cast, Pod Puppies, Apple Puppies, wherever you get them. And with that, we’ll see you next time.

Smith: See you next time.