What Should Home Health Aides and Social Workers Do When Family Members and Others Abuse A Patient’s Prescription Drugs?

1.         Summary.

(a)        Duty To Report.  “Any person” who has reason to believe a vulnerable adult has been the subject of abuse (the term “abuse” includes the inappropriate use of medication by others likely to cause harm to a vulnerable adult) “shall immediately” notify Adult Protective Services or the nearest law enforcement agency.

(b)       Immunity.  “Anyone” who in “good faith” makes a report is immune from civil and criminal liability in connection with the report or other notification.

(c)        Failure To Report.  A failure to report suspected abuse of a vulnerable adult may itself be a criminal omission.

(d)       Practical Considerations.

Be mindful of the prescriptions being taken.  Arrange for disposal of any prescriptions not in use (unless there is a valid reason for their retention).  Do prevent or stop any problem at the earliest opportunity.  Consider the use of a lockbox, pill count, family meeting, “3-day patch” medication.

Do take careful notes of what you observe.  Do make a report if you believe it appropriate.  Both you and your employer may be liable if you fail to make a report.

Do not be “Jessica Fletcher” and engage in substantive investigations – there may be a practical explanation.  Do not make accusations.  Do talk with your supervisor and others to check your judgment.  Remember that persons with dependency issues may seek to have your firm terminated, and may accuse you of misconduct. 

2.         Scope of the Problem.  The US Department of Health and Human Services released a study in 2007 finding that Utah led the nation in nonmedical use of prescription drugs in 2004 and 2005.  In 2005, prescription drug overdoses accounted for more than twice the number of deaths from illegal drugs – at least a portion of those prescription drugs were obtained illegally.

3.         Example.  In the context of homebound patients, consider the example of Mary.

(a)        Mary had lived with a disability for thirty years and used a wheelchair to get around; she also had diabetes, lung deterioration, heart disease, high blood pressure and arthritis. 

(b)        She took many medications, including painkillers to manage her illness.

(c)        Mary was conscientious about her prescription pain pills; when her husband noticed her pills were disappearing faster than they should have been, he worried she was taking more than she should.

(d)       Mary was on oxygen, and the young man who came to check the equipment was very personable, and he became friendly with Mary.

(e)        Eventually, Mary’s spouse discovered this young man holding Mary’s bottle of pain pills and realized he was the one who had been taking the pills.

(f)        The young man was eventually prosecuted and served jail time as well as paying stiff fines.

(g)        The scenario here involved a business visitor to the home; often family members have even greater access and opportunity to take prescription medications from grandparents or someone else who is ill.  Occasionally, a nurse or home health aide may be involved.

4.         Utah Controlled Substances Act. 

It is unlawful for any person knowingly and intentionally to possess or use a controlled substance analog or a controlled substance, unless it was obtained under a valid prescription or order, directly from a practitioner while acting in the course of his professional practice, or as otherwise authorized by this chapter;

5.         Medicaid Fraud Statute.

(a)        Theft of a prescription drug paid for by Medicaid is Medicaid Fraud 

(b)        The attorney general has:

     (1) concurrent jurisdiction with the department for investigating and prosecuting suspected civil violations of this chapter; and

     (2) exclusive jurisdiction to investigate and prosecute all suspected criminal violations of this chapter.

(Utah Code Ann. § 26-20-13(3).)

6.         Utah Human Services Code.

(a)        “Abuse” means:

(1)        knowingly or intentionally

(i) attempting to cause harm;

(ii) causing harm; or

(iii) placing another in fear of harm;

(2)        unreasonable or inappropriate use of . . . medication, . . .that causes or is likely to cause harm to a vulnerable adult;

(Utah Code Ann. § 62A-3-301(2).)

(b)        Reporting requirements:

(1)       “Any person who has reason to believe that any vulnerable adult has been the subject of abuse, neglect, or exploitation shall immediately notify Adult Protective Services intake or the nearest law enforcement agency.”

            (Utah Code Ann. § 62A-3-305(1).) 

(2)        Anyone who in good faith makes a report or otherwise notifies a law enforcement agency or Adult Protective Services of suspected abuse, neglect or exploitation is immune from civil and criminal liability in connection with the report or other notification.

            (Utah Code Ann. § 62A-3-305(3).)      

(3)        “Any person who willfully fails to report suspected abuse, neglect, or exploitation of a vulnerable adult is guilty of a class B misdemeanor.

 (Utah Code Ann. § 62A-3-305(4)(a).) 

7.         Criminal Code (Similar Provisions to Human Services Code)

(a)        “Abuse” means: 

            (1)         attempting to cause harm, intentionally or knowingly causing harm, or intentionally or knowingly placing another in fear of imminent harm;

           (2)        causing physical injury by knowing or intentional acts or omissions;

(Utah Code Ann. § 76-5-111(1)(b).)

 (b)        The Criminal Code also adds another provision not found in the Human Services Code:  

 (2)        “Under any circumstances likely to produce death or serious physical injury, any person, including a caretaker, who causes a vulnerable adult to suffer serious physical injury or, having the care or custody of a vulnerable adult, causes or permits that adult’s person or health to be injured, or causes or permits a vulnerable adult to be placed in a situation where the adult’s person or health is endangered, is guilty of the offense of aggravated abuse of a vulnerable adult as follows:

(1)  if done intentionally or knowingly, the offense is a second degree felony;”

(Utah Code Ann. § 76-5-111(2).)

(c)        Reporting Requirements: 

(1)        “As provided in Section 62A-3-305, any person who has reason to believe that any vulnerable adult has been the subject of abuse, neglect, or exploitation shall immediately notify the nearest peace officer, law enforcement agency, or Adult Protective Services intake within the Department of Human Services, Division of Aging and Adult Services.”

(2)        “Anyone who makes that report in good faith to a law enforcement agency, the Division of Aging and Adult Services, or Adult Protective Services of suspected abuse, neglect, or exploitation is immune from civil and criminal liability in connection with the report or other notification.” 

(Utah Code Ann. § 76-5-111.1(1) & (2).)

8.         Likely Police Action.

(a)        When they receive a report, they will investigate.

(b)        Taking and using someone else’s medication is described as theft.

              i.      The value of the medication determines whether it is a misdemeanor or a felony theft.

             ii.      In addition, police look at the Controlled Substance Act; if the medication is a controlled substance, then possession or use is a felony.

 (c)        Police also use the elder abuse statute.

             i.    It is abuse if the vulnerable adult is not getting the medication or where something is substituted in place of the medication.

(d)       These are difficult cases.

             i.    Generally victim is not very helpful because of mental deficiency or age, or the victim may die before trial.

            ii.    The family or social workers, or health care providers report the problem to APS or to the police.

iii.  With the cooperation of the family and others, the police can set up stings with hidden cameras, or mark pills, or use pixie dust (invisible—use for money, jewelry and drugs—it stains the perpetrator’s hands when   it   comes into contact with moisture).

           iv.  Interview and try to get confession.  Not always very successful.

          v.   Sometimes the perpetrator is a care giver, or in-home nurse.  These cases are a little easier to work, because their licensing is involved.

(e)        If probable cause the police can make an arrest; ultimately case goes to county attorney and into the court system.  The police have a goal of stopping the problem, getting APS involved, and getting the alleged perpetrator out of the life of the vulnerable adult.

(f)        Right now, police usually don’t press charges for not reporting, but they want the information.

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