January 15, 2021

A Model of Elder Justice

The full PDF in which this article appears can be found in BIFOCAL Vol. 42, Issue 3. 

The Elder Justice Act[1] was a milestone in elder abuse prevention, not only because it was the first federal legislation to address abuse, but because it recast abuse, or freedom from it, as a right. This came after decades of framing and reframing elder abuse as a medical syndrome, a caregiving issue, and a public health problem. The focus on rights was a marked departure from state abuse response systems, which were patterned after systems designed for children that call on government to protect those who are unable to protect themselves. Some saw the new framing as a response to allegations of ageism and paternalism.

Labels aside, the EJA exclusively addresses elder abuse. But in asserting that freedom from abuse is a right, the law begs the question “what other rights are older people entitled to and what barriers do they face in exercising them?”   

In Elder Justice, Ageism, and Elder Abuse, I explored this question by applying the lens of human rights and social justice to elder abuse and to other policies affecting older adults. I began by providing examples of how “aging policy” has historically advanced social justice. Programs like Social Security and Medicare, for example, advanced “distributive justice,” or parity in how communities allocate resources and opportunities, and “intergenerational justice” which levels the playing field between young and old.  Medicare further advanced racial justice by denying reimbursement to hospitals or other health facilities that discriminated against Black health care providers or patients.

Another milestone was the 1999 Olmstead Supreme Court decision, which ironically did not involve older people yet established older adults’ right to home and community-based care.[2]  Human rights and social justice are also addressed in international law. Although the Universal Declaration of Human Rights[3] does not call for special protections for older adults and subsequent conventions[4] only address a few special circumstances involving elders, an initiative is currently in progress to develop a special convention for the rights of older people. The passage of anti-age discrimination laws, the anti-ageism movement advanced by advocates like Robert Butler and Maggie Kuhn, and the emergence of the field of elder abuse prevention were other highlights in the history of elder justice.   

A Model of Elder Justice

This rich legacy is the starting point for the elder justice model, which is a template for how elder justice translates into interventions, programs, and public policy. The model itself draws from two constructs both of which are used in public health: the ecological model and the hierarchy of prevention. The ecological model assumes that problems and solutions can be addressed at four levels: 1) individual, 2) interpersonal, 3) community, and 4) societal. Each level offers its own strategies and approaches, which build on and reinforce one another.

The public health hierarchy describes approaches to preventing threats to the public’s health ranging from diseases, to domestic violence, to climate change. Primary prevention includes interventions designed to circumvent problems by identifying and reducing or eliminating “risk factors,” which are behaviors, traits, or circumstances that increase people’s vulnerability to the threat in question. Some, like smoking, which is a risk factor for cancer, can be modified, while others, like race, a risk factor for certain diseases, cannot. Secondary prevention is identifying problems in their early stages, typically through screening, and, when possible, lowering the risk. Tertiary prevention is used when all else fails and the focus is on mitigating harm and preventing problems from recurring or getting worse.

Applying these constructs to elder justice, threats can be addressed at four levels: 1) the first level addresses threats to individual rights; 2) threats at the interpersonal level focus on abuses of power against older adults; 3) third level threats include disparities in access to community resources and opportunities; and 4) threats at the societal level include ageism in public policy and opinion.

Level 1: Threats to Individual Rights

The basic rights and freedoms to which all Americans are entitled, including freedom of speech and religion, the right to own and control property, and the right to due process, may become more difficult to exercise as we age. Physical and cognitive impairments may stand in the way of acting freely, and even well-meaning family members and professionals may attempt to limit older people’s freedom in the interests of safety.

Other rights that certain elders are entitled to may also be threatened. Older crime victims are often denied rights granted under state victim rights laws, including compensation, notification about the status of their cases and the whereabouts of offenders, information about the court process, restitution, and services to help them stay safe. Nursing home residents may be pressured into signing unfair binding arbitration agreements that limit their rights as consumers to recourse for egregiously poor care. The rights of prison and jail inmates have received public attention during the COVID-19 pandemic with the discovery that some older inmates were pressured into waiving their right to request early release under compassionate release policies during plea negotiations.[5]

Ageism and bias are key impediments to elder rights. Despite anti-age discrimination laws, ageism exists in employment, health care, housing, lending, and many other arenas. Additionally, the impact of discrimination and bias based on race, ethnicity, gender and gender identity, faith, and other forms of marginalization may accumulate and intensify over the lifespan, resulting in “double” or “triple jeopardy,” which refers to the number of strikes elders have against them. The forces of intersectionality, which refers to the complex interactions among these factors, adds to their cumulative impact and appears to account for the glaring disparities in life expectancy and rates of illness and disability experienced by elders of color. Research shows that many of these same “social determinants of health” are also predictive of elder abuse.     

Cognitive impairment, among the most serious threats to individual rights, can undermine people’s ability to withstand unjustified intrusions into their lives or restrictions on their freedoms or choices. Standardized screening tools that are commonly used in the field of aging can help identify cognitive changes and deficits, but these changes alone do not warrant restricting rights or freedoms. Rather, it must be demonstrated that deficits obstruct people’s ability to protect themselves against serious and imminent harm. These determinations may occur formally during guardianship or other legal proceedings but are also commonly made informally by protective service providers and others in determining if people need protective services or are able to live independently. Whether or not someone is capable of making legally binding decisions depends on the type of decision in question as different decisions require different cognitive skills.

Ensuring the rights of older Americans requires that professionals who work with them are cognizant of legally protected rights, recognize threats to them, and know what to do when rights are violated. Elder abuse multidisciplinary teams or forensics centers can potentially provide forums for ongoing education but would need to be expanded to include lawyers or advocates with expertise in civil rights, consumer rights, victim rights, disability rights, the rights of inmates and those reentering their communities, resident rights, and more.

Level 2: Abuses of Power Against Older Adults

Age related factors can disrupt balances of power within relationships. Physical or cognitive decline, for example, may limit older adults’ independence and relegate some to the care of others who wield control over their basic needs. Caregivers are also likely to have access to possessions, documents, or information that can be used to exercise control or exploit.

Undue influence is when people in positions of power actively and unfairly manipulate others for their own benefit. Sources of power in relationships include professional status, superior strength or intelligence, or privilege based on gender or class. Knowledge of confidential information, ranging from information about an elder’s finances to compromising secrets, can also be sources of power. Among those who are believed to be most vulnerable are older adults experiencing physical or cognitive decline, mental health problems, losses, grief, or trauma.

Protections against abuses of power range from background checks on potential caregivers that can be used in making informed hiring decisions to advance directives to ensure that people’s wishes are respected if they become severely disabled. Because abuses of power often occur in isolation and secrecy, social engagement can potentially reduce risk. Multiple screening and assessment tools exist for identifying risk factors for or the presence of abuse, neglect, and exploitation.

Significant resources have been directed toward the tertiary prevention of elder abuse and undue influence, including prosecution and civil lawsuits, and the development of forensics research and expertise to support them. These approaches are extremely costly and relatively little is known about their impact for victims, which has prompted growing interest in alternatives. Included among these is restorative justice, which engages victims, their families, and social networks in repairing the harm caused by crime. Interest in the approach is evidenced by the 2020 Interdisciplinary Approaches to Elder Justice: Unlocking the Potential for Restorative Justice symposium hosted by the Syracuse University College of Law.[6]   

Level 3: Disparities in Access to Community Resources and Opportunities

Justice is also about parity, or the fair distribution of resources and opportunities among young and old, rich and poor, privileged and marginalized, and urban and rural dwellers. For elders, it requires equity in access to resources and services that enhance autonomy, independence, safety, and security. This includes adult protective services (APS), which were originally created to assist all vulnerable adults living in the community, but which increasingly focus on abused elders. Glaring disparities exist in APS resources, which is due in large part to a lack of dedicated federal funding and standards, leaving it to state and local governments to foot the bill for programs. The extent to which they do so varies widely. 

Protective services funding mechanisms also contribute to intergenerational competition for resources and disparities in protection for young and old.  Social Services Block Grants, for example, can be used for protective services for people of all ages but when state and local program administrators are required to divide funds between programs for adults and children, adults fare poorly. With strict federal requirements and standards in place for children but not adults, program administrators understandably prioritize children to avoid penalties and sanctions. Similar age-based disparities exist in domestic violence prevention programs and crime victim assistance programs.  

Inequities like these could potentially be reduced by adopting across the lifespan approaches to supportive and protective services that are based on need rather than age and funding formulas that reflect demographic patterns and trends. Resource mapping and needs assessments can identify underserved groups and the need for collective community action to achieve greater parity.   

Some suggest that “age friendly communities,” a model developed by the World Health Organization (WHO), can contribute to elder justice. The programs bring together experts to design communities that promote engagement and participation across the lifespan while providing members with adequate protection, security, and care. Some have even suggested that abuse would not exist in truly age-friendly cities.

Level 4: Combatting Ageism in Public Policy and Opinion

To have currency, elder justice must be enshrined in public policy and in the hearts and minds of ordinary citizens. Ageist biases and discriminatory policy and practices must be exposed and rejected. Interventions like guardianship that significantly restrict personal freedom warrant special scrutiny to ensure that they pass Constitutional muster with respect to equal protection and due process. Constitutional scholar Nina Kohn’s work in this area is a notable example.[7]

Elder justice further requires that older adults’ interests and needs be reflected in policies and programs that affect them. “Mainstreaming,” a term used on the global stage, refers to interjecting age-equity and the perspectives of older people into “mainstream” policies and programs. It is hard to imagine policy issues that do not significantly affect older adults, be it immigration, criminal justice reform, cybersecurity, health care, or climate change.  

But policy alone is not enough. Kathy Greenlee, the former Assistant Secretary of Aging, who had primary responsibility for implementing the Elder Justice Act, has conceded the point, calling for a “culture of elder justice” (K. Greenlee, personal communication, April 16, 2018).

But what would a culture of elder justice look like and how could it be created? Clearly, it requires the public to recognize elders’ rights and threats to them. It further requires rejecting ageism by challenging deeply engrained biases and reforming the institutions that enshrine them. Much has been written about the medicalization of old age that associates old age with disease, suggesting that it requires a cure. This perception, in turn, has resulted in the lion's share of health care dollars going to hospitals, nursing homes, and costly treatments and drug therapies. A more realistic approach is to accept advanced age as a stage of life that can be supported and enhanced through programs that focus on risk reduction, chronic disease management, and social and civic engagement—the hallmarks of public health.  

Public awareness campaigns can also reject divisive rhetoric that fuels intergenerational animosity and competition for resources and influence. This might include impressing upon non-elders that they have a vested interest in what has traditionally been labeled as “aging policy” and sustaining programs like Medicare and Social Security. Older people too need to be reminded that they have a stake in the success and prosperity of younger people, including immigrants who provide huge amounts of long-term care and support and contribute to the solvency of retirement programs.

Benefits of the Model

The elder justice model was created to highlight the roles and relationships among the disparate entities in the elder abuse prevention field and the broader network of advocates who champion elders’ rights, independence, security, safety, and participation. The goal is to create a shared sense of purpose and direction that translates to greater cohesion in policy and practice and, ultimately, to a more equitable society.

The fields of aging and elder abuse prevention are intrinsically interdisciplinary, drawing from the social sciences and fields of medicine, public health, caregiving, disability rights, law, and others.  While this merging of disciplines has enriched the field, it has revealed divergent points of view that can strain relationships or become adversarial. Public guardians, for example, are often viewed as being at cross purposes with advocates as they debate the need for protective interventions. If elder justice is to provide an overarching paradigm for policy and practice, the roles of diverse entities must be understood and the conflicts among them accepted as indispensable checks and balances.

The field of elder abuse prevention further operates apart from other entities in the aging and long-term services and support (LTSS) networks and from organizations that advocate against age discrimination in employment, health care, housing, and lending. It is unmoored to the broader human rights or social justice movements. This is despite the far-ranging potential benefits of collaboration and coordination among these networks.    

Understanding social justice policy and precedents can also increase advocates’ effectiveness. When California Governor Gavin Newsome proposed draconian cuts to homebased services to make up for COVID-related revenue shortfalls, a move that threatened to relegate more older adults to nursing homes because of Medicaid’s institutional bias, advocates argued that the cuts would endanger beneficiaries and ultimately incur greater costs. But perhaps the more compelling argument came from advocates who invoked the Olmstead decision, claiming that the move would have denied older adults essential rights protected under the Americans with Disability Act. The proposal was retracted.

The elder justice model is not impartial. It prioritizes community and societal interventions that effect the greatest good for the greatest number and favors proactive measures to prevent inequities. It can be used to detect biases in existing and proposed policies and programs and suggest ways to better align them with human rights and social justice goals. In other words, it offers an approach to more clearly defining, operationalizing, and fostering elder justice.        

 

[1] U.S. Congress. 2009. Elder Justice Act of 2009. Washington D.C., 111th Cong., 1st sess. S. 795, April 2.

[2] Olmstead v L.C.(98-536) 527 U.S. 581 (1999). The plaintiffs were two women with developmental disabilities who were confined in a state-run psychiatric unit, whose attorneys argued that they could live independently in their communities with help and resources, and that the state’s failure to provide help violated the women’s right to “reasonable accommodation” under the Americans with Disabilities Act (ADA).

[3] The United Nations, 1948, art. 21.3

[4] In international law, conventions are treaties or agreements between countries.

[5] Gartrell, N. (2020, August 24). COVID-19 brings change in federal prosecutors’ handling of compassionate-release requests. The Mercury News. Retrieved from  https://www.mercurynews.com/2020/08/24/before-covid-19-federal-prosecutors-routinely-required-defendants-not-to-seek-compassionate-release-as-part-of-plea-deals/

[6] An edited recording of the conference is available at

http://law.syr.edu/interdisciplinary-approaches-to-elder-justice-event

[7] Kohn, N.A. (2012). Elder (in)justice: A critique of the criminalization of elder abuse. American Criminal Law Review, 49, 1-29.

Lisa Nerenberg, MSW, MPH

Executive Director

California Elder Justice Coalition.

All ABA content is copyrighted and may be reprinted and/or reproduced by permission only. In some cases, a fee may be charged. To protect the integrity of our authors’ work, we require that articles be reprinted unedited in their entirety. To request permission to reprint or reproduce any ABA content, go to the online reprint/reproduction request form.