Statutory Changes to Protect Reporters of Elder Abuse
by William Donaldson
The Board on Aging and Long Term Care (BOALTC), a state-created
entity to assist elderly and disabled residents of long-term care
facilities, depends upon reports made to its ombudsmen to carry out its
mission of protecting these vulnerable persons. The board's Long-Term
Care Ombudsman Program, created by section
16.009(4)(a) of the Wisconsin Statutes, was mandated to carry out
the requirements of the federal Older Americans Act, codified at 42 U.S.C. section
3058g.
Prior to Hausman, there were two sections of the Wisconsin
Statutes that provided explicit protection for "whistle-blowers" seeking
the assistance of the state in asserting the rights of vulnerable
residents or patients of health care providers. The Wisconsin Elder
Abuse Protection statute, section
46.90 of the Wisconsin Statutes, provided that no employer could
discharge or otherwise discriminate against a person in retaliation for
that person's making a good faith report of suspected abuse, neglect, or
mistreatment of an elderly person to a designated county agency. This
statute protected any reporter of abuse, whether or not the alleged
victim was a resident or patient of a facility. It offered no
protection, however, for those making reports to any entity other
than the county agency (such as the ombudsman or the state
Department of Health and Family Services.)
Slightly more protection was offered by Wisconsin Statutes section
50.07(1)(e), which prohibited retaliation against any resident or
employee who contacted, provided information to, or cooperated with "any
state official" in the context of an investigation into or judicial
action arising from alleged violations of the laws, rules, and
regulations governing the operation of any facility governed by the
Department of Health and Family Services (DHFS). The DHFS governs more
than 40 types of facilities, including nursing homes, community-based
residential facilities, sheltered workshops, all types of residential
facilities, and the like. The problem with section
50.07(1)(e) was that no private remedy was provided for the victim
of retaliation, only criminal sanctions against the offending
facility.
The BOALTC had long maintained that reporting to its ombudsman was a
protected activity, since the federal Older Americans Act requires such
protection be assured by the states, and Wis. Stat. sections 46.90
and 50.07
appeared to do so. As well, the provisions of Wis. Stat. section
16.009 included a specific mandate that the ombudsman must "carry
out the requirements of" the federal statute. The ombudsman staff
therefore assured clients and complainants that their reporting could
not subject them or the person about whom the report was made to any
retaliatory conduct. Without the assurance that confidences are secure,
and that retaliation will not result from filing a report, the ombudsman
program's reporting sources would quickly evaporate.
Aware of several instances of retaliatory conduct for reporting
mistreatment, including the administrative decision that
Hausman and Wright were not protected by Wis. Stat. section
46.90 for reporting to the ombudsman, the BOALTC and other elder
advocacy groups worked with Rep. Tammy Baldwin for the passage of 1997
Wis. Act 131. This act, passed in April 1998, added language to sections
46.90(4)
and 50.07(1)(e),
and created sections 50.07(1)(em),
50.07(3), and 16.009(5)
of the Wisconsin Statutes. The new laws explicitly grant protection of
the state, through the Department of Workforce Development (formerly
DILHR) and the Personnel Commission, to employees who report problems to
state officials, including the long-term care ombudsman. Wisconsin
Statutes sections 106.06(5)
and 230.45(1)(j)
also were amended to provide jurisdiction to the Department of Workforce
Development and the Personnel Commission, respectively. Employees who
report to any state official now have a private cause of action for
retaliation, which is administered in the same manner as other
employment discrimination cases.
Newly created section
50.07(3)(c) of the Wisconsin Statutes grants to nonemployee
reporters such as pool certified nurse assistants, nurses, and other
"temps," family members, friends, or the resident him or herself the
right to seek redress in circuit court for damages incurred as a result
of retaliatory conduct. With the passage of Wis. Act 131, all of these
individuals who strive to protect the rights of the elderly and infirm
are afforded protection in situations where dealing directly with the
care providers does not resolve the problem, and further action to
achieve a satisfactory result must be taken.
William Donaldson,
Marquette 1993, is counsel to the Wisconsin Board on Aging and Long Term
Care. He provides legal advice and research on complex care and
treatment, resident rights, and administrative issues for the agency's
executive director, the long-term care ombudsman, Medigap Helpline
programs, and for the citizen board that oversees the agency's
operations.
Wisconsin
Lawyer