By Jessica Coombs, Albany Government Law Review
All fifty states and the District of Columbia have Adult Protective Services (APS) agencies in place to investigate reports of elder abuse and provide vulnerable individuals and victims of abuse with protective services and treatment. APS was created by law to assist in the protection of impaired adults age eighteen and over. Nearly every county has its own APS unit which is maintained by that county’s Department of Social Services. In New York, APS units offer numerous services including investigation and assessment of the adult’s needs, advocacy and case management, legal interventions, counseling for the victim and their family, and emergency living arrangements.
The services provided by APS have the potential to help many victims; however, they are not implicated until APS has been notified of a potential case. The lack of a mandated reporting system in the state of New York hinders APS’s ability to help victims who may not be able to seek help themselves. “Mandatory reporting statutes require individuals to report certain injuries or cases of abuse or neglect to law enforcement, social services, and/or a regulatory agency.” Every jurisdiction has different statutes regarding which types of abuse must be reported, and who is required to report the abuse. New York has no such mandatory reporting requirement.
With elder abuse in particular, it is extremely important that suspected abuse be reported to the proper authorities because the elderly are less likely to self-report any abuse they are experiencing, and because elderly individuals have an increased susceptibility to abuse. Without mandatory reporting laws in New York, there is a decreased chance that cases of elder abuse will be caught at the early stages, when APS is the most effective.
- Adult Protective Services vs. Child Protective Services
When reports of suspected abuse of an older adult are received, APS staff screens the case and makes a determination of APS eligibility. If eligible, the case is assigned to a caseworker, who then contacts the suspected victim to assess risk, investigate alleged abuse, and determine if the abuse is substantiated. If substantiated, and the elderly individual wishes to voluntarily accept help, APS can then provide for a variety of services to protect the adult. Additionally, any substantiated case involving criminal activity must be referred to the proper authorities for investigation and potential prosecution.
Many people link APS with Child Protective Services (CPS) and assume that they are one in the same; however, there are a few major differences between the two. APS was put in place to benefit all individuals over the age of 18 who are presumed competent and with the right to make their own decisions. CPS, on the other hand, benefits all children under the age of 18, who are considered legally incompetent. APS faces a substantial problem when a victim is in need of services but refuses, as they have the right to do. In contrast, CPS services cannot be refused by the potential victim because individuals below the age of 18 are considered to be incompetent and unable to make that decision for themselves.
Elderly victims who are experiencing abuse from family members, friends, or neighbors are likely to refuse help out of fear, embarrassment, or the desire to protect their abuser. Therefore, APS may need to persuade the victim to accept services and, if persuasion is not possible, involuntary services may be forced upon the individual. For involuntary services to be rendered, an APS agent must show that the affected individual lacks the capacity to understand the consequences of their decision to refuse assistance.
In Shelton v. Tucker, the Supreme Court held that regardless of whether the government has a legitimate and substantial purpose in providing individuals with protection, the government must use the least restrictive means in doing so. Consequently, APS should always begin with voluntary interventions and proceed to involuntary interventions only if absolutely necessary to protect the affected individual. There is a major issue when it comes to protecting individuals who do not want help, or are too scared to accept help, because competent individuals have the right to refuse services and there is little that the State can do to interfere in that right.
Another factor that distinguishes APS from CPS is the availability of resources allocated to the two agencies. CPS agencies throughout the state have access to numerous federally funded national resource centers, which provide the agencies with assistance and guidance. In contrast, APS’s access to federal resources is incredibly limited, making the job of an APS agent even more difficult. A survey by the Government Accountability Office found that APS programs would benefit exponentially from “more easily accessible and centrally available information on effective interventions, recommended caseload sizes, financial exploitation, and appropriate outcomes for APS cases.” Without a central resource center for APS, it is unknown how effective the agency actually is. The majority of APS agencies do not follow identical guidelines, and the lack of research available regarding current interventions makes improving standards very difficult, especially considering the number of cases which go unreported.
- Mandatory Reporting
In New York, Child Protective Services differs substantially from Adult Protective Services with regard to reporting requirements. It is required by law that numerous officials report suspected child abuse, ranging from medical and hospital personnel to school officials. Reports of abuse are made to the Statewide Center Register of Child Abuse and Maltreatment which is maintained by the New York State Office of Children and Family Services (NYSOCFS). NYSOCFS also encourages neighbors, relatives, or concerned citizens to voluntarily report any suspected abuse.
While there are fourteen states which require every person who suspects adult abuse to report it to APS, New York is one of four states that does not require individual reporting. However, there are laws in place requiring limited reporting by practitioners who are mandated to report in cases where the elderly individual resides in an institutional setting. Several Bills have been presented regarding mandatory reporting laws in New York State, nevertheless there has yet to be any real obligation placed upon individuals to protect the vulnerable elderly in the same manner as vulnerable children are protected.
There are a number of reasons why New York might not want to implement mandatory reporting laws for the sake of an elderly victim. For example, it might undermine a victim’s autonomy, lead some victims not to seek help, or breach confidentiality. There are also other reasons, such as the expense of another Statewide Central Register for adult abuse as well as fear of liability issues. Still, the positive aspects of mandatory reporting of elder abuse far outweigh the negatives.
Many elderly victims may not even realize they are being victimized because the majority of abusers are family members or people the abused are close to. Mandatory reporting may improve the victim’s safety by connecting them with APS and the services the agency offers. Additionally, mandatory reporting may lead to a greater understanding of elder abuse as more and more cases are reported.
Implementation of mandatory reporting laws in the state of New York with regard to abuse of the elderly population would be beneficial, not only for Adult Protective Services, but for our elder generation as well. Many elderly individuals are highly susceptible to abuse in the form of financial deprivation, neglect, or physical abuse, and most do not report the abuse for many reasons. If it were required that those who witness any type of abuse toward the elderly had to report it, APS would have more information regarding this increasing phenomenon and would possibly have the ability to intervene in the early stages, preventing the furtherance of abuse.
 Alice Y. Flanagan, Elder Abuse: Cultural Contexts and Implications 27 (2011).
Adult Protective Services, NYS Office of Children and Family Services http://www.ocfs.ny.gov/main/psa (last visited Feb. 2, 2014).
 Flanagan, supra note 1, at 23.
 NYS Office of Children and Family Services, supra note 2.
 Jessica Mindlin & Bonnie Brandl, Mandatory Reporting of Elder Abuse for Victim Service Providers: 6-Part Series of Information Sheets, Part 1 1 (2011).
 U.S. Gov’t Accountability Office, GAO-11-208, Elder Justice: Stronger Federal Leadership Could Enhance National Response to Elder Abuse 14, 41–42 (2011) [hereinafter GAO].
 Bonnie Brandl & Tess Meuer, Domestic Abuse in Later Life, 8 Elder L. J. 297, 298 (2000); see also Elder Abuse Prevalence and Incidence Fact Sheet, National Center on Elder Abuse, http://www.ncea.aoa.gov/Resources/Publication/docs/FinalStatistics050331.pdf (last visited Feb. 2, 2014) [hereinafter NCEA Fact Sheet].
 GAO, supra note 7, at 15.
 NYS Office of Children and Family Services, Adult Protective Services: Scope of Protective Services for Adults, http://www.ocfs.state.ny.us/main/psa/protectiveservices.asp (last visited Feb. 2, 2014).
 NYS Office of Children and Family Services, supra note 12.
 See A Parents Guide to Child Protective Services, Preventing Child Abuse New York, (last visited Feb. 2, 2014), http://www.preventchildabuseny.org/resources/for-parents/a-guide-to-child-protective-services/.
 Shelly L. Jackson & Thomas L. Hafemeister, Financial Abuse of Elderly People vs. Other Forms of Elder Abuse: Assessing Their Dynamics, Risk Factors, and Society’s Response 31 (2010), available at https://www.ncjrs.gov/pdffiles1/nij/grants/233613.pdf.
 Id. at 171.
 See Shelton v. Tucker, 364 U.S. 479, 487 (1960).
 Hearing on Justice for All: Elder Abuse, Neglect and Financial Exploitation Before the Senate Special Committee on Aging, 112th Cong. 11–12 (2011) (statement of Marie-Therese Connolly, Senior Scholar, Woodrow Wilson International Center for Scholars) [hereinafter Justice for All].
 GAO, supra note 7, at 20.
 See Justice for All, supra note 20, at 9.
 See NCEA Fact Sheet, supra note 8.
 NYS Office of Children and Family Services, supra note 13.
29 GAO, supra note 7, at 15–16, 41.
30 Adult Protective Services, NYS Office of Children and Family Services, http://www.ocfs.state.ny.us/main/psa/professionals.asp (last visited Feb. 2, 2014).
31 See Financial Crimes Against the Elderly 2012 Legislation, National Conference of State Legislatures, http://www.ncsl.org/issues-research/banking/financial-crimes-against-the-elderly-2012-legis.aspx#NY (last visited Feb. 2, 2014).
 Jessica Mindlin & Bonnie Brandl, Mandatory Reporting of Elder Abuse for Victim Service Providers: 6-Part Series of Information Sheets, Part 2 2 (2011).
 See GAO, supra note 7, at 27, 34–35.
 See id. at 1; MetLife Mature Market Institute, the National Committee for the Prevention of Elder Abuse, & the Center for Gerontology at Virginia Polytechnic Institute and State University, Broken Trust: Elders, Family, and Finances 4, 13 (2009), available at http://www.metlife.com/assets/cao/mmi/publications/studies/mmi-study-broken-trust-elders-family-finances.pdf.
 Mindlin & Brandl, supra note 32, at 1.