Opinion: The 'Abuser Protection Act' of 2011
By Lynn Breedlove, Kristina Finnel And Al Majkrzak
Jan. 24, 2011
Milwaukee Journal Sentinel
Wisconsin has a long history of commitment to a high quality of life for its vulnerable residents. It is a reason we should feel safe moving an aging parent into a nursing home when we can no longer care for them at home. But the actions of our state Legislature last week have taken us a step backward. In a bill guised as lawsuit or tort reform, our lawmakers have decided that long-term care providers will be able to police themselves and provide better care without the threat of an expensive lawsuit.
A broad group of statewide aging and disability groups feels otherwise. We are united in opposition to this change and assert that our vulnerable elderly and people with disabilities will be left unprotected and unable to prove they were harmed when abuse and neglect occur.
In the Legislature's haste to produce a bill, it neglected its due diligence; and we have received unintended consequences and a new law that some are calling Wisconsin's "Abuser Protection Act."
Abuse and neglect in Wisconsin nursing homes and a variety of other facilities are unfortunately not on the decline. Those of us who work daily to protect the rights of vulnerable individuals see cases in which an elderly person with Alzheimer's was allowed to starve, where a young woman was sexually assaulted at the Milwaukee County Mental Health Complex or when a 7-year-old girl with disabilities was crushed to death by a staffer in a residential treatment center. Each of these cases was defined as negligence, and wrongdoing was found on the part of the facility or a care provider. Families received justice.
Tort reform will rob future families of justice.
This bill is broad and sweeping: It affects a range of settings and people, including children and adults with disabilities, veterans with brain injury, individuals with mental illness and the elderly. Because this bill removes the ability to use incident (factual) reports in court, the only facts available to a family may be the testimony of the abuse victim, who may be unable to share his or her experience. Because this bill removes the ability to charge a care provider criminally under certain circumstances, and denies even the district attorney from using all available information, a family will have a slim chance of a case, much less a favorable verdict.
Changing the law to ultimately shield abusers and negligent facilities from accountability will not reduce abuse and neglect; it will have the opposite effect.
One other unintended consequence is the impact on taxpayers. When victims of abuse or neglect receive damages for their injuries or when a court considers punitive damages in line with the egregiousness of an offense, it is the provider agency (or their insurance company) which pays for the expensive long-term care that results from an injury. The Legislature's changes mean our already overburdened Medicaid system, and ultimately taxpayers, now will pick up the tab.
Perhaps the most inexcusable element of this bill is the haste with which it was passed. Vague language has resulted in multiple interpretations of intent and impact. We believe there are now holes in our safety net - big enough for an abusive care provider to wiggle through.
Wisconsin has a strong bipartisan tradition of maintaining protections for our aging loved ones, our injured veterans and children and adults with disabilities and mental illness. The unintended consequences of this bill undermine this tradition. We urge the Legislature to take another look and repair our safety net.
Lynn Breedlove is executive director of Disability Rights Wisconsin. Kristina Finnel is president of Mental Health America of Wisconsin. Al Majkrzak is president of AARP Wisconsin.