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Vol. 73, No. 7, July 2000 |
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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.
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