Law protecting elders called too confining
|||Silence protects thieves while victims suffer|
By Rob Perez
Advertiser Staff Writer
By Rob Perez
A diverse group of legislators, elder advocates, senior citizens and others are calling for a change in Hawai'i's law protecting dependent adults, saying it imposes such stringent requirements that too many suspected abuse cases go unchecked.
"It's way too restrictive," said Laura Manis, 82, who is involved with several elder advocacy groups. "It's a good excuse for not doing anything."
Calls for change have come in the wake of an Advertiser series in which an American Bar Association expert described Hawai'i's law as the most restrictive in the nation, effectively giving free passes to many abusers.
"I believe we need to provide more protection," said state Sen. Les Ihara, who co-chairs the Kupuna Caucus, an advocacy group that promotes ways to improve services and laws dealing with the elderly. "It appears that too many vulnerable people are falling through the cracks."
But not everyone is convinced the Adult Protective Services statute needs changing.
"It's always a feel-good solution for legislators to tinker with the law," said Thomas Farrell, who as a deputy attorney general in the late 1980s helped draft the APS statute. But expanding and providing adequate funding for senior services, such as programs to help the elderly manage their money, would be more effective, Farrell said.
MORE THAN LEGISLATION
Tony Wong, administrator for the Honolulu Gerontology Program, which provides services to the elderly, agreed that more is needed. Wong favors a combination of legislative action, increased efforts to educate seniors about financial abuse, a review of administrative procedures implementing the law and ensuring adequate financial and community resources devoted to the problem.
"I don't tend to believe that just legislative action is going to be a magic bullet," he said.
The statute's shortcomings were among the weaknesses in Hawai'i's system of elder protections that were detailed in last week's Advertiser series focused mainly on the largely underreported problem of financial exploitation. A fragmented, poorly coordinated network of public and private services and gaps in other state laws were some of the other flaws highlighted.
The APS law, however, is getting the most attention now.
MEETING JUNE 28
The Kupuna Caucus is scheduled to discuss the law at an 11 a.m. meeting June 28 at the state Capitol, Room 225. It is open to the public. (Call 586-6130 to reserve a seat.) Sen. Suzanne Chun Oakland, who co-chairs the caucus, said she hopes the increased attention will lead to a proposed bill that can be considered by the Legislature next year.
The Kokua Council, another advocacy group for the elderly, also plans to push for broadening the law, according to Manis, legislative chairwoman for the council.
Under the law, the Department of Human Services' APS agency is required to investigate cases of suspected abuse if three conditions are met: The alleged victim is dependent on others for care because of a physical or mental impairment, has been harmed by the abuse and is in imminent danger of further abuse.
Hundreds of cases of suspected elder abuse have gone uninvestigated over the past several years.
No other state has such stringent criteria, according to Lori Stiegel, associate staff director for the ABA's commission on law and aging who has analyzed APS statutes nationwide.
But DHS officials continue to dispute that contention, saying the law is "not so different from those in other states."
Hawai'i's definition of dependent adults essentially is the same as how other states define "vulnerable," "impaired" or "incapacitated" adults, and all states implicitly have the requirement that the adult be threatened with recurring abuse, according to DHS Director Lillian Koller.
Gary Murai, a Hilo attorney who recently left Legal Aid Society of Hawai'i after seven years and had spent the prior eight years as a deputy attorney general, sometimes representing APS, said broadening the law would be beneficial.
Over the years, Murai said, he saw "some pretty tragic cases" that should have been pursued but weren't because of the statute's narrow focus and an unwillingness by some APS workers to probe beneath the surface of tough, complex abuse situations.
"Quite often the APS statute is used not as a sword to do good but as a shield to prevent them from doing what is difficult," he said.
But Koller said the law is not being used as an excuse to decline investigations.
If cases fall through the cracks, she added, that tends to reflect several factors, including the quality of information APS gets when the initial abuse call is received and the subjective nature of deciding whether the law applies. Koller said the department has increased training to improve the consistency and quality of how the law is applied, including bringing in a national expert to help develop better investigation techniques.
OTHERS CAN BE AT RISK
Critics of the law note that cases in which someone financially abuses a senior but then disappears once the abuse is reported would not be investigated because the victim no longer would be considered in imminent danger of further abuse. The abuser would then be able to target other victims, conceivably keeping investigators at bay by simply leaving once the abuse was reported, preventing the imminent danger factor.
But Farrell, the former deputy AG, said such cases are better handled by police rather than social workers, whose primary focus is to ensure that a dependent adult isn't further abused.
"There are things for law enforcement to do and things for social service agencies to do," he said. "It's not the job of APS to punish perpetrators."
Efforts to broaden the law in the past have not been successful, partly because DHS has opposed such efforts.
Department officials say the law is doing what the Legislature intended, protecting dependent adults. But critics say the system allows many suspected abuse cases involving vulnerable but not dependent seniors to go uninvestigated.
Asked if Gov. Linda Lingle believes that the law needs to be broadened, Koller said the administration wants to provide the best possible protections for seniors.
"If changing the law will make a difference, we'll do what we can to make that happen," she said.
The administration, Koller added, already is doing a comprehensive review of all laws and rules related to elder abuse, including looking at ways to more effectively punish wrongdoers and obtain restitution.
Lingle will make recommendations to amend some laws during next year's session, but what laws and how they should be changed still have to be discussed among the agencies, groups and individuals who deal with elder abuse, according to Koller.
INPUT FROM AARP
Prompted by The Advertiser's series, AARP, the senior advocacy organization that represents about 150,000 members in Hawai'i, also plans to make recommendations on what the state needs to do legislatively and administratively to better protect the elderly from financial abuse, according to Barbara Kim Stanton, the organization's state director.
Honolulu resident Kay Wery, 83, said she favors broadening the law.
"I would rather err on the side of doing too much rather than doing too little," she said.
Reach Rob Perez at firstname.lastname@example.org.