The Elder Justice Act is designed to provide federal resources to prevent, detect, treat, understand, intervene in and, where appropriate, prosecute elder abuse, neglect and exploitation. The Elder Justice Act is a comprehensive elder abuse prevention law which was enacted as part of the Patient Protection and Affordable Care Act on March 23, 2010.
Elder abuse refers to the actions or lack of actions that harm an older adult or place them at risk of harm or within harm’s way. The harm may be physical, mental, emotional and/or financial. True prevalence is unknown primarily due to lack of consensus regarding definition.
The National Academies of Sciences definition of elder abuse includes “intentional actions that cause harm or create a serious risk of harm (whether or not harm is intended) to a vulnerable elder by a caregiver or other person who stands in a trust relationship to the elder. This includes failure by a caregiver to satisfy the elder’s basic needs or to protect the elder from harm.” (Elder abuse: abuse, neglect, and exploitation in an aging America. R. J. Bonnie and R. B. Wallace, eds., 2002)
Elder abuse includes “deprivation of services deemed necessary for maintenance of physical and mental health. Elder neglect is sometimes the result of an inability on the part of an elder to care for him or herself without external assistance or support. It also occurs when the person responsible to provide such support fails to fulfill his or her obligations.” (Fulmer, T. & T. O’Malley, Inadequate care of the elder: A health care perspective on abuse and neglect (1987).)
Unfortunately the failures noted above can often be applied in care settings such as skilled nursing facilities. In addition, lack of access to necessary care, such as home health care, should be treated as an elder justice issue.
The Home Care Crisis: An Elder Justice Issue
CMS rules and policies are resulting in neglected care and endangered safety for some Medicare beneficiaries. While Medicare home health coverage laws apply equally to all individuals, equitable application of coverage laws has been impeded by administrative payment rules and quality measure incentives that favor beneficiaries who have short-term care needs and disfavor those with long-term, chronic care needs.
The National Academies of Sciences includes in the definition of elder abuse, “intentional actions that cause harm or create a serious risk of harm (whether or not harm is intended) to a vulnerable elder…this includes failure…to satisfy the elder’s basic needs or to protect the elder from harm.”
Elder abuse involves “deprivation of services deemed necessary for maintenance of physical and mental health. Elder neglect is sometimes the result of an inability on the part of an elder to care for him or herself without external assistance or support. It also occurs when the [party] responsible to provide such support fails to fulfill…obligations.”
Some Medicare beneficiaries are being harmed by a Medicare program that promises to cover their home health care, but actually provides little access to Medicare-certified home health agencies.
A Study of Two Medicare Beneficiaries: The Case for Elder Justice
Mr. B and Ms. K both meet the Medicare home health coverage criteria.
- B has Parkinson’s Disease and needs long term home care. His plan of care, ordered by his doctor, includes: Nursing for 1 hour/week; Physical Therapy for 3 hours/week; Occupational Therapy for 2 hours/month; and a Home Health Aide for 28 hours/week.
- K had a knee replacement and needs 6 weeks of home care to recover complete independent functioning. Her plan of care, ordered by her doctor, includes: Physical Therapy for 3 hours/week for 6 weeks; and a Home Health Aide to assist with bathing for 5 hours/week.
Mr. B made an exhaustive search of Medicare certified home health agencies that serve his home area. Most would not even evaluate him for care. One agency was willing to work with him, but even that agency said they could only provide him with limited services. Thus, instead of the hour of skilled nursing a week he needs, he receives an hour a month. Instead of 3 hours of physical therapy a week, he receives an hour a week. Instead of 2 hours of occupational therapy a month, he receives 1 hour a month. Instead of 28 hours of home health aide a week, he receives 3 baths a week. The doctor’s order and plan of care had to be adjusted to reflect the limited services Mr. B was actually able to obtain.
Ms. K easily secured a home health agency to provide her full plan of care.
Home health agencies can choose whom to serve, and when to discharge them, under the Medicare Conditions of Participation. CMS payment models and quality measure ratings incentivize home health agencies to serve beneficiaries who only need short term care to get better. Beneficiaries who need long term care are not even accounted for in CMS’ measurements. Individuals whose care is not “measured” by a home health agency will likely not receive care. CMS administrative rules and policies result in the following for Mr. B and Ms. K:
- Home health agencies want to provide care to Ms. K, not Mr. B.
- Home health agencies will likely receive a higher profit margin for Ms. K and may lose money caring for Mr. B.
- Home health agencies will receive a positive quality rating for Ms. K and a negative quality rating for Mr. B.
- Home health agencies will be rewarded with value-based incentive payments for Ms. K and be penalized for serving Mr. B.
- Long term care for Mr. B is more likely to trigger an agency fraud audit than short term care for Ms. K.
Mr. B, and other Medicare beneficiaries with long term and chronic care needs, are unable to obtain the Medicare coverage for which they qualify under the law. If they are fortunate enough to find any home health agency to serve them, they are often offered significantly diminished services – likely a fraction of the covered care for which they qualify. Mr. B’s inability to obtain the care he needs, and the Medicare coverage for which he qualifies, jeopardizes his health and well-being. This amounts to an elder justice issue perpetrated by CMS payment and quality rules and policies.
For Mr. B to obtain justice, CMS should conduct Medicare contractor and home health agency trainings about legal home health coverage. CMS should also equalize all payment and quality measures to ensure every beneficiary has fair and equal access to care. If CMS fails to achieve these corrections, Congress should insist CMS properly effectuate coverage laws. Ultimately, if necessary, the courts must compel CMS to ensure that its rules and policies enforce the law to guarantee that Medicare-certified agencies provide appropriate care for all who qualify.
Medicare home health coverage laws are adequate to keep many people in their homes with the care they need. Regrettably, however, CMS home health payment rules and policies create a bias toward serving individuals with short-term needs and neglecting care for people with long term, chronic care needs.
Too many of the most vulnerable Medicare beneficiaries are at risk of neglect and abuse due to CMS rules and policies that keep them from obtaining appropriate home health care. Medicare coverage laws are intended to allow people who legally qualify for the home health benefit to remain in their homes – this promise must be fulfilled.
Note: “Elder Justice”, for purposes of this discussion, applies equally to Medicare beneficiaries under age 65 who are living with a disability.
 Elder Abuse: Abuse, Neglect, and Exploitation in an Aging America. (R. J. Bonnie and R. B. Wallace, eds., 2002).
 T. Fulmer, T. & T. O’Malley, Inadequate Care of the Elder: A Health Care Perspective on Abuse and Neglect (1987).
Injustice In Nursing Homes
The abuses identified daily in the media are not being effectively or seriously dealt with. Nursing home enforcement is woefully inadequate. The Center for Medicare Advocacy publishes a detailed monthly electronic mailing on nursing home enforcement issues describing the latest developments in nursing home enforcement activities, Enforcement: Recent Developments in Nursing Homes.
But what of the more day-to-day problems that are not typically described as abuse? What about the overuse of antipsychotic medications?
For many years, we have treated inappropriate antipsychotic drug use as a regulatory issue, and it is. Since the mid 1990s, the federal government has had strict regulations on the use of antipsychotic drugs. But these are not treated as serious problems in the regulatory system and the rules are rarely enforced.
But look again at the Administration on Aging’s definition of physical abuse – it says “inflicting physical pain or injury on a senior, e.g., slapping, bruising, or restraining by physical or chemical means.”
The misuse of antipsychotic drugs for people who do not need them is restraining by chemical means – quite plainly a form of physical abuse.
- For more on the criminal overuse of antipsychotic medications in nursing homes, see our antipsychotics page.
The misuse of antipsychotic drugs is not an issue that should be looked at in isolation. When the government started its antipsychotic drug initiative, the Boston Globe got national data from CMS on the use of the drugs. Kay Lazar of the Globe reported back in 2012 that there was a correlation between inappropriate prescribing of antipsychotic drugs and nurse staffing levels. She reported “a clear link between the rate of antipsychotic use in a nursing home and its staffing level.” “Homes that most often used these drugs for conditions not recommended by regulators had fewer registered nurses, who direct care, and nurse aides, who provide most of the hands-on care.”
- For more information, see our nurse staffing in nursing facilities page.
We need to treat nursing home issues not only as regulatory issues calling for stricter and more effective enforcement of standards of care. We also need to treat the poor care practices as what they also are – instances of elder abuse.
- Visit elderjustice.gov for community outreach materials.