Well, it’s been almost 5 years since Colorado implemented it’s first round of Mandatory Reporting Laws designed to enforce abuse of elders and at-risk adults. The question is, how are these laws actually working out? Who knows, as there has been no audit, but I can tell you from my past experiences that Colorado has some work to do.
The title itself implies that there is a problem. But how can laws designed to protect elders actually have the opposite effect? Well, it’s simple. Colorado legislators created a mandate with good intentions, but poor execution. I am extremely passionate about this issue as vulnerable adults do not do anything to become victims. Unlike able adults, who make poor decisions leading to their victimization in a variety of circumstances such as, leaving doors unlocked, walking alone in dimly lit areas, associating with undesirables who engage in risky behavior, vulnerable adults become victims simply by their inability to communicate, ambulate (move) or reason (cognitive deficiencies). These folks need help with every aspect of their activities of daily living (ADL) and then some jack hole takes advantage of that by, physically or sexually abusing them. Exploit them by stealing their money by theft, fraud or deception, or by neglecting life sustaining care. Not to mention receiving funds from medicaid for services not provided simply because the victim cannot advocate for themselves. (Yup, it happens) This is why the State implemented Mandatory Reporting (MR) Laws. Sure we were the 47th State in the Union to do so, but at least we eventually caught on. I’m also not sure who represented the police when implementing these laws? It couldn’t have been anyone with boots on the ground experience who would actually understand how these laws would affect first responders operationally. These laws do more to confuse and undermine good intentions than make them efficient and effective.
As a former Colorado police investigative sergeant in charge of a Unit whose sole purpose was to investigate crimes of abuse to elders and at risk adults with an Intellectual and Developmental Disability (IDD), I quickly recognized that our laws as written to protect these vulnerable classes of people, do not have the criminal elements needed to provide successful prosecution. Secondly, definitions of the term “at risk” between law enforcement (LE) and adult protective services do not match and there are adversarial laws, policies and procedures in place between the three organizations tasked with enforcing these laws, rules and regulations, leaving gaps in enforcement designed to protect all vulnerable adults in Colorado. It’s like one law will say one thing and another law under a different agency in the same State will say another. These organizations being Law Enforcement, Department of Human Services (DHS) Adult Protective Services (APS) and Colorado Department of Public Health and Environment (CDPH&E).
I hope to expose these shortcomings in a productive manner by providing bullet point examples of the deficiencies created by MR laws. During my research and past experiences I’ve identified 27 concerns of which this article will cover three. As a LE officer in the greater Denver area I was UNABLE to bring these matters to light, because it makes people look bad. As a public figure representing a public agency, making waves is a big no, no. “Such backwards thinking!” Also, most LE agencies have some crazy policy that does not allow for its own officers to point out weaknesses in the very laws they are trying to enforce. Because boots on the ground surely couldn’t know better, right? Well I’m no longer handcuffed (pun intended) by all of this bureaucratic red tape. Now I’m serving and #forcechange as a private citizen, with an absolute agenda to dramatically slow down the abuse of vulnerable adults or as the state calls “at risk persons”. Ok, I’m off my soap box, let’s begin.
So here’s what the law says. CRS 18-6.5-108
(1) (a) On and after July 1, 2016, a person specified in paragraph (b) of this subsection (1) who observes the mistreatment of an at-risk elder or an at-risk adult with IDD, or who has reasonable cause to believe that an at-risk elder or an at-risk adult with IDD has been mistreated or is at imminent risk of mistreatment, shall report such fact to a law enforcement agency not more than twenty-four hours after making the observation or discovery.
Problem #1. Mandating that mandatory reporters (MR’s) have 24 hours to report allegations of abuse. This alone has created a crippling effect for LE for the following reasons.
Tens of thousands of MR’s overnight began calling police agencies to report allegations of abuse. At least sixteen different professions ranging from physicians in numerous fields of study, to nurses of all certifications. Hospital staff, In home care and Long-Term Care staff. Chiropractors to Psychologists, Social Workers to Clergy members, Dentists to Pharmacists, Banking personnel to Community Centered Board staff and lastly all first responders to include Police Officers, Firefighters and Paramedics. If anyone on this list, which is way longer than actually documented here fails to report an allegation of abuse to an at risk elder or at risk adult with an IDD is facing a class 3 misdemeanor and shall be punished in accordance with section 18-1.3-501. The consequences for not reporting are a Class 3 Misdemeanor which is a minimum $50.00 fine, and the maximum penalty is six (6) months in jail, a $750.00 fine, or both.
Secondly the law is limited to at-risk elders and those over 18 with an IDD. At risk elder is defined as anyone who is 70 and over, (so if you’re a younger senior citizen, than you’re not afforded the same protections by the law). In my opinion, everyone who is dependent on someone else for help with eating, bathing, dressing, toileting, transferring, or processing routine executive functions is a dependent adult and should be covered by this law. But, if you are blind, deaf, an amputee or otherwise cripple, experienced a traumatic brain injury after the age of 22 or any other reason besides being 70 and over, or IDD, you don’t fit into Colorado’s mandatory reporting laws.
So who are persons with and IDD regarding to this law? Well, we’re talking about person’s on the Autism spectrum, those with Down Syndrome or Cerebral Palsy, Epilepsy and several other neuropsychological disabilities. They’re literally are hundreds of syndromes that fit on this list that can categorize you as a person with an IDD. We use to call them special needs, and before that mentally retarded, but we now use the term IDD. That’s a good thing, but for the untrained thousands of MR’s who don’t understand the difference and reading their own laws found in title 6 Code of Colorado Regulations 1011-1 health facilities, they’re calling police because they think they know which at risk people fit into this law, based on definitions from their professions legal statutes, which do not match Colorado Revised Statutes, MR Laws definition of who is at risk. Believing people who are seniors (over 60 typically), bed ridden from a variety of diseases, wheelchair bound disabled persons, patients with dementia younger than 70, ohhh, the list goes on and on! These classes of people are at-risk, but they just don’t fit into Colorado’s MR Laws as written. But police departments everywhere in Colorado are being called to investigate allegations of abuse to all of these other classes of at-risk persons only to find out that the reporter didn’t need to call the police for such persons.
Third, the phrase imminent risk of abuse is speculation written right into the law? Please focus your attention to the two highlighted areas above as I expound further on this issue. Refer to all the listed mandatory reporters stated above now making these reports, (because they have to) and assuming they have even been trained about this topic are now calling police to report an allegation of abuse. Not an actual verified case of abuse, but an allegation of abuse.
So, lets drill down these three bullet points starting with, “what is imminent risk of mistreatment?” Every time you leave your car in a parking lot, your vehicle is at imminent risk of being broken into. When you leave your home, your house is at imminent risk of being broken into. While driving your car, you are at imminent risk of being clobbered by a drunk driver. But do we have a mandate to call the police each and every time these conditions exist? Obviously the answer is a resounding “No”. Heck, the mere presence of an at risk person in a care facility is at “imminent risk” of being abused. Sorry care facilities and host home caregivers, but we all know this to be true. (Ouch that’s another article)
Continuing, combining this phrasing with most police policies is like fitting a square peg into a round hole. Most police departments will not send an officer to respond to a crime if there are no suspects, no injuries or witnesses. But these are the very circumstances which exist in many many allegations of abuse. No one saw it, it's not on camera (see previous article “No Cameras Allowed”) there are no injuries, but some untrained MR, feels like a crime occurred. As they should, since MR laws as written force them too.
Moving forward, what happens from there? There is confusion with the first layer of people you call. Our beloved 911 dispatchers. Adhering to policy and procedure, they ask questions which in many cases lead them down a path per policy or software program, which directs them to refer the MR to make a desk report. The law says that the person observing the abuse must be the one to call police. So immediately we have a problem on multiple fronts. The caregiver is thinking, Am I going to leave my home full of people who need my care, to make a report at the police department? Am I going to violate my companies policy and call police before telling my supervisor? I don’t think so and therein lies two problematic idiosyncrasies the law created. These idiosyncrasies create inefficiencies. These inefficiencies create mistrust. Mistrust and inefficiencies then take MR’s down a natural path of least resistance.
Heck, before I retired I noticed a trend of assisted living and nursing home staff members calling the police to simply obtain a case number in order to report their allegations of abuse so they could document that they called the police to satisfy their legal mandates. Much like citizens who are involved in car accidents with no injuries and minor damages. They need the case number to give to their insurance company in order to receive compensation for the damages to their car. This made me ask myself, “why would anyone in the caregiving profession do this?”
Here’s why. To my surprise CDPH&E supposedly tracks these incidents, but nothing in the MR laws state that anyone in LE has to notify CDPH&E. So take a guess, these facilities who are supposed to self report occurrences and incidents of abuse to CDPH&E are not reporting everything they should. Shocked? “Yup, the secrets out!” They call police dispatch to receive a case number so they could look like they reported the allegation of abuse to law enforcement. But in actuality, no one in law enforcement responded to the scene. This is the cycle created by mandatory reporting. I always wondered how facilities that we have conducted numerous investigations on, have 5 star ratings of approval on Government web sites that rank these facilities safety records. Facilities, insiders know are dumps and fraught with allegations of abuse are in good standing with the State. This may also be due to the fact that CDPH&E only has approximately 9 investigators overseeing over 50 thousand statewide assisted living and home care facilities. “Ooops, you thought the State protected your loved ones, but how can they with only 9 investigators and super confusing laws.” There is a disconnect.
Next up in the layers of confusion are my beloved peacekeepers. Cops are taught from the beginning of time to enforce laws based on reasonable suspicion and probable cause. Most police departments will not even write a police report if there is no crime to write about. “No reasonable suspicion, no probable cause, NO CRIME.” Now you have an entire group (mandatory reporters) of folks who think that something is going to be done, because they reported an allegation of abuse. An allegation is just that. It’s a thought, a suspicion. It is not a fact, nor is it even reasonable suspicion. And now police departments everywhere in Colorado are responding to things that take them away from actual verifiable crimes. In addition these people or their agencies leadership invariably call the police department the very next day tying up more law enforcement man hours, trying to figure out what the police is going to do with their report. Not because they are not concerned for the at risk persons safety, but how this report will reflect on their place of business and or whether or not they will self report the incident to CDPH&E. The entire system is out of whack. Just calling it like I saw it, for three years. Now this situation repeats itself over and over and the reality becomes, law enforcement agencies are completely buried in allegations of abuse that they need to follow up on and investigate while the real cases of abuse are buried in the same mix. My Unit alone was (and probably still is) months behind with investigations and I had an entire Unit. I cannot fathom those departments who have one, two or no team put together to address these crimes. The results are those who need police intervention are left waiting as law enforcement sifts through the muck.
For example here’s a short scenario in its simplest terms. Oh and by the way even the simplest of allegations of abuse can be complex and time consuming. I digress. A caregiver or any MR notices some bruising on an elders upper arm. Elders in care facilities can bruise very easily. Unbeknownst to the MR making this observation, the elder received her blood pressure earlier. Let’s say he/she has dementia and cannot speak. Now we have thousands of people thinking they must report this to the police. The police arrive, (If actually dispatched) they take a report and ask questions. At the end of questioning and in conjunction with our current laws which were squeezed into our mandatory reporting laws, come to the conclusion that no crime occurred. And let me tell you, there are layers and layers of the process I am intentionally leaving out to keep this article from being even more of a novel. But the officer now needs to report this same allegation to Department of Human Services (DHS) Adult Protective Services (APS) and their local district attorney’s offices. Kind of like a checks and balances situation and enabling DHS/APS to begin their investigation as well. So now we have an officer out of service for at least an hour, investigating, documenting, collecting evidence if any and then reporting this to two other agencies. Given this scenario even if everything was verified, given our laws is not a crime.
This scenario is more of the norm than the exception. So imagine this scenario happening in a variety of differing situations where the caregiver cannot explain what happened and calls the police. Now you have police responding to thousands of these events across the metro area. For perspective, my former Department alone received over 2,000 allegations of abuse in one calendar year. Each time they respond they come to no conclusion of abuse because the threshold they are trying to meet (probable cause) doesn’t happen. It does not happen by our assault statutes, neglect statutes and the states harassment statutes do not fit in the mandatory reporting laws. This translates into a crying wolf atmosphere. One I recognized almost immediately upon embarking on at risk investigations, but had no avenue to inform law makers, because officers cannot lobby.
Folks I have so many examples of this lack of understanding in just this category its not even funny. Now let's complicate matters even more. Let's say the MR tells her supervisor of her finding per their Code of Colorado Regulations and then tells her boss because that is their policy. “I mean we can’t have this low level caregiver destroy our business by reporting to the police like the law says.” Her boss tells her boss and that person then calls the police. Since this scenario is not an emergency, police arrive hours later only to find that the person who witnessed the allegation of abuse is no longer at work. In fact the reporter and the witness are long gone and everyone at the facility now has no idea why there is a police officer there. “Sorry folks, real talk going on.” All of this is unnecessary. The very wording in this law created this complex mess in conjunction with existing laws that other agencies are abiding by. Almost five years later and the crying wolf atmosphere has been firmly established. Officers responding to these calls arrive thinking the call will have no merit. Their investigations and documentation of the facts directly reflect that perception. This vastly differs from their investigations when there is a suspect or a witness to the abuse. But it is my professional estimation that more than 50% of these allegations reported to police are false simply because of the phrases, allegation of abuse, imminent risk of abuse, and MR’s reporting abuse for people who are not protected by the Mandatory Reporting Laws. All of these idiosyncrasies between policy and procedure, standard operating practices, omissions in the law, unclear definitions between the agencies designed to investigate, enforce, and prosecute render these laws very difficult to prosecute. Time and money by all wasted on a good idea, but in reality undermining the very goal the State was trying to achieve. Unfortunately all of this gets overlooked and bypassed because of goofy policies and procedures, lack of leadership, chains of commands, lack of exposure, lack of publicity and lack of caring.
Whew, when I started this article, I had no idea it would take this much articulation to make a few simple points. I have a list of 27 different bullet points of which this was number one, that explains how Colorado’s MR laws for abuse and exploitation of at-risk elders or at-risk adults with an IDD foster confusion, create inefficiencies, and ultimately muddy up the waters of actually investigating abuse for these population groups.
Oh yeah, and to boot, Law Enforcement didn’t get one red cent to increase staff to respond to this 60% average call load increase or to train their officers. Luckily due to my former Department’s professionalism and forward thinking, was able to see this silver tsunami coming and addressed the issue by creating a team to investigate these allegations. One I was honored to lead. It didn’t happen without an expense though. Four middle schools lost their School Resource Officers for my Unit to be created. It had to be done to respond to the sheer flow of unanticipated new work. Interestingly enough, my team of six investigators including me alone, outnumbered many police departments entire investigative division. There are police departments right now, who either refuse or cannot comply with this law because it exhausts their departments patrol divisions, is too labor intensive, ridiculously confusing, policy conflicting, and ultimately the goals of protecting vulnerable adults are sabotaged by these conflicting laws and policies. Apparently there is no State oversight on the matter, and I personally know of numerous Departments who continue to ignore the State mandates and the results are the elders and at risk adults in their communities are still underserved.
Folks, please recognize I write these articles mostly right off the top of my head from my own past experiences. Occasionally I need to find a statute or policy to support what I know manifests as a deficiency in real life. It’s extremely difficult for me to organize my thoughts in a rational manner because the laws, policies and procedures governing at-risk persons are so complex, boring to read, hard to follow the legalese tree and create so many unwanted inefficient symptoms for multiple organizations.
In closing, and as my website indicates, I am trying to figure out a way to carefully expose these inefficiencies, to gain traction so that something can be done to fix this situation. It’s been five years already, and very few are doing anything to make a difference. If you are the one who makes command decisions for your agency, whether it be a Police agency or someone in the Caregiving industry, I can help you navigate through this mess. For Police, I can consult and offer problem solving solutions that will save hundreds of man hours for your patrol and investigative units. For those in the caregiving profession I can conduct assessments on your policies and procedures to help you remain compliant with the law and eliminate the inefficiencies created by being a mandatory reporting.
Welcome to LEMRS (Pronounced Lee-Murs) My organization will attempt to bring exposure, education, training, and policy change to the forefront, so that agencies that serve at risk persons can be efficient and effective at protecting these vulnerable populations. Right now you can help by “liking” this article and “sharing” it amongst your contacts. I know many cannot, because they are held hostage to those same bureaucracies that I once was. If I take the same path that everyone does, this issue will just continue to be a problem for our society and at the rate these at risk populations are growing, we need solutions now! Please put your personal feelings aside, look into your heart and do the right thing. Like, share, and comment. I am most grateful you hung in there reading this unpopular topic and for your assistance with helping to slow down the abuse of our vulnerable adult populations.
By: Damon Vaz
Founder & CEO of LEMRS