[§28-94]  Dependent elder abuse; suits bythe State; civil penalties.  (a)  The attorney general may bring a civilaction on behalf of the State, against any caregiver who commits abuse of adependent elder, to prevent, restrain, or remedy such conduct.  Any caregiveragainst whom a civil judgment is entered on a complaint alleging that thecaregiver committed abuse against a dependent elder, shall be subject to acivil penalty of not less than $500 nor more than $1,000 for each day that theabuse occurred, and the costs of investigation.

(b)  For the purposes of this section:

"Abuse" means actual or imminentphysical injury, psychological abuse or neglect, sexual abuse, financialexploitation, negligent treatment, or maltreatment.

Abuse occurs where:

(1)  Any dependent elder exhibits evidence of:

(A)  Substantial or multiple skin bruising orany other internal bleeding;

(B)  Any injury to skin causing substantialbleeding;

(C)  Malnutrition;

(D)  A burn or burns;

(E)  Poisoning;

(F)  The fracture of any bone;

(G)  A subdural hematoma;

(H)  Soft tissue swelling;

(I)  Extreme physical pain; or

(J)  Extreme mental distress which includes aconsistent pattern of actions or verbalizations including threats, insults, orharassment, that humiliates, provokes, intimidates, confuses, and frightens thedependent elder;

and the injury is not justifiably explained,or where the history given is at variance with the degree or type of injury, orcircumstances indicate that the injury is not the product of an accidentaloccurrence;

(2)  Any dependent elder has been the victim ofnonconsensual sexual contact or conduct by a caregiver, including but notlimited to:

(A)  Sexual assault, molestation, sexualfondling, incest, prostitution;

(B)  Obscene or pornographic photographing,filming, or depiction; or

(C)  Other similar forms of sexualexploitation;

(3)  Any dependent elder is provided with dangerous,harmful, or detrimental drugs as defined by section 712-1240; however, thisparagraph shall not apply when such drugs are provided to the dependent elderpursuant to the direction or prescription of a practitioner, as defined insection 712-1240;

(4)  Any dependent elder is subject to neglect;

(5)  Any dependent elder appears to lack sufficientunderstanding or capacity to make or communicate responsible decisionsconcerning the dependent elder's person, and appears to be exposed to asituation or condition which poses an imminent risk of death or risk of seriousphysical harm; or

(6)  There is financial and economic exploitation. 

"Caregiver" means any person who hasundertaken the care, custody, or physical control of, or who has a legal orcontractual duty to care for the health, safety, and welfare of a dependentelder, including, but not limited to, owners, operators, employees, or staffof:

(1)  Hospitals;

(2)  Hospices;

(3)  Adult residential care homes;

(4)  Developmentally disabled domiciliary homes;

(5)  Developmentally disabled adult foster homes;

(6)  Intermediate care facilities;

(7)  Skilled nursing facilities;

(8)  Special treatment facilities;

(9)  Assisted living facilities;

(10)  Adult foster family homes;

(11)  Adult day health care centers and adult day careprograms;

(12)  Independent living centers;

(13)  Long-term care facilities;

(14)  Community care facilities for the elderly;

(15)  Respite care facilities;

(16)  Foster homes; and

(17)  Private residences used for commercial purposesto care for dependent elders.

"Dependent elder" means any personsixty-two years of age or older who, because of mental or physical impairment,is dependent upon another person, a care organization, or a care facility forpersonal health, safety, or welfare.

"Financial and economic exploitation"means the wrongful or negligent taking, withholding, misappropriation, or useof a dependent elder's money, real property, or personal property. "Financial and economic exploitation" may include but is not limitedto:

(1)  Breaches of fiduciary relationships such as themisuse of a power of attorney or the abuse of guardianship privileges,resulting in the unauthorized appropriation, sale, or transfer of property;

(2)  The unauthorized taking of personal assets;

(3)  The misappropriation, misuse, or unauthorizedtransfer of moneys belonging to the dependent elder from a personal or jointaccount; or

(4)  The intentional or negligent failure toeffectively use a dependent elder's income and assets for the necessitiesrequired for the elder's support and maintenance.

Theexploitations may involve coercion, manipulation, threats, intimidation,misrepresentation, or exertion of undue influence.

"Neglect" means the recklessdisregard for the health, safety or welfare of a dependent elder, that resultsin injury, loss, or damage.  "Neglect" includes, but is not limitedto:

(1)  Failure to assist in personal hygiene, or in theprovision of food, clothing, or shelter;

(2)  Failure to provide or arrange for necessarypsychological, physical, or health care; except when such failure is inaccordance with the dependent elder's directive;

(3)  Failure to protect a dependent elder from knownhealth or safety hazards; and

(4)  Failure to protect against known acts of abuse bythird parties. [L 2003, c 196, §2]

 

Cross References

 

  Some other actions or penalties for violations committedagainst elders, see §§412:3-114.5, 444-10.7, 454-4.5, 480-13, 480-13.5,485A-603.5, 485A-604.5, and 487-14.

 

Law Journals and Reviews

 

  Holding Hawai‘iNursing Facilities Accountable for the Inadequate Pain Management of ElderlyResidents.  27 UH L. Rev. 233.