The Other Half of “EADACPA”
By Kimberly A. Valentine and Stephanie Silverman Warden
The cumbersomely named “Elder Abuse and Dependent Adult Civil Protection Act,” with the equally awkward acronym, “EADACPA,” is commonly referred to as the “Elder Abuse Act.” Shortening the name in this manner is perfectly logical and the fact that it omits dependent adults is certainly not intended to carry any hidden meaning. It does, however, echo a genuine problem in the legal community and society at large, far beyond rhetorical nitpicking.
The Stigma of Disability
Over the last several decades, the stigmatization of individuals with disabilities had decreased significantly. After all, not even a century ago, the Supreme Court of the United States upheld the practice of forced sterilization as means of controlling “undesirable” populations including those with mental illness, disabilities, and other “defects”:
“It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind…Three generations of imbeciles are enough.”
(Buck v. Bell (1927) 274 U.S. 200, 207.)
The concept of eugenics continued influencing policy for another fifty years, all the while reinforcing the perception of people with disabilities as subhuman. At the epicenter of the eugenics movement, California was responsible for one-third of all compulsory sterilizations nationwide, more than 20,000 documented cases. (See, Alex Wellerstein, “States of Eugenics: Insititutions and Practices of Compulsory Sterilization in California,” in Sheila Jasanoff, ed., Reframing Rights: Bioconstitutionalism in the Genetic Age (Cambridge, Mass.: MIT Press, 2011), 29-58). Jumping ahead to today, the notion that eugenics would play any role in policymaking or serious legal discourse is unthinkable. Unfortunately, the shameful period in our history cannot be neatly erased from the collective consciousness.
Of particular salience in recent years is the notion of implicit bias, which operates on an unconscious level, without the perceiver’s knowledge or intent. One study analyzed implicit attitudes held toward different social groups and found, “[p]reference for people without disabilities compared to people with disabilities was among the strongest implicit and explicit effects across the social group domains.” (Brian A. Nosek et al., Pervasiveness and Correlates of Implicit Attitudes and Stereotypes, 18 Eur. Rev. of Soc. Psychol. 36 (2007).
Given these biases at play, silently influencing not just our attitudes but also our behavior, it comes as no surprise that individuals with disabilities are far more likely to experience abuse and neglect throughout their lives. Often, this mistreatment occurs in the very place that should be a safe, reliable home. Some of the most vulnerable among us are callously discarded, their humanity forgotten. As a society, we have been far too willing to accept this as inevitable. It is all the more important, then, for those of us in the legal profession not to echo the same harmful sentiment through apathy and inaction.
The Elder Abuse and Dependent Adult Civil Protection Act
It often falls on advocates, legal and otherwise, to fight for progressive policies that protect the rights of individuals by persuading the legislature to act. This is not one of those instances. In this case, the legislative framework already exists but has not been fully embraced by the legal community.
In 1982, the California Legislature enacted the Elder Abuse and Dependent Adult Civil Protection Act, codified in Welf. & Inst. Code §§ 15600 et seq. Leaving no ambiguity as to its intent, the Legislature expressly recognized, “elders and dependent adults may be subjected to abuse, neglect, or abandonment and that this state has a responsibility to protect such persons.” (Welf. & Inst. Code § 15600(a).)
Despite the clarity of the legislative pronouncement, it soon became apparent that the Elder Abuse and Dependent Adult Civil Protection Act (also referred to as “the Act”), lacked the statutory bite necessary to serve its intended purpose. The Act was subsequently amended and expanded, and by 1991, it resembled the Act as it stands today. Importantly, it addressed the need for a more robust framework for incentivizing civil enforcement:
The Legislature further finds and declares that infirm elderly persons and dependent adults are a disadvantaged class, that cases of abuse of these persons are seldom prosecuted as criminal matters, and few civil cases are brought in connection with this abuse due to problems of proof, court delays, and the lack of incentives to prosecute these suits.
(Welf. & Inst. Code § 15600(h).) Specifically, the Legislature clarified that the addition of Article 8.5 (commencing with Section 15657) was intended to, “enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.” (Welf. & Inst. Code § 15600(j).)
The addition of Article 8.5 to the Act hastened a paradigm shift in the legal landscape by providing for enhanced damages where the plaintiff establishes by “clear and convincing evidence” that a defendant is liable for physical abuse or neglect and “has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse.” (Welf. & Inst. Code § 15657.) Enhanced remedies are in addition to all other remedies otherwise provided by law and, in this context, include reasonable attorney’s fees and costs and punitive damages. Furthermore, plaintiffs are permitted to recover damages for a decedent’s pre-death pain and suffering as the limitation on damages imposed by the Code of Civil Procedure section 377.34 does not apply.
Though far from a panacea, the Act has allowed for significant progress in the area of elder abuse and neglect. The last two decades have seen a rapid growth in the field of elder law, supported by a robust network of advocates and other resources. Unfortunately, plaintiffs’ attorneys, even those of us who are intimately familiar with the Elder Abuse and Dependent Adult Civil Protection Act, tend to focus on the “elder abuse” portion, often to the exclusion of an entire category of persons the legislature intended to protect: dependent adults. Allowing this blind spot to persist is inconsistent with the values we share as consumer attorneys.
Who is a “Dependent Adult?”
Determining whether an individual qualifies as an “elder” within the meaning of the Act is a simple two-pronged test: does the person reside in California and is he or she 65 years of age or older? If both answers are in the affirmative, the individual is an “elder” pursuant to Section 15610.27. In contrast, the Act sets forth two ways in which an individual between the ages of 18 and 64 may be deemed a “dependent adult”:
- “Dependent adult” means a person, regardless of whether the person lives independently, between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age.
- “Dependent adult” includes any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.
(Welf. & Inst. Code § 15610.23.)
The two definitions are alternatives to one another, not prerequisites. With respect to subsection (a), there is a paucity of published case law interpreting phrase “limitations that restrict…[one’s]…ability to carry out normal activities.” As a result, it is foreseeable that a defendant will argue that a plaintiff’s mental or physical limitations do not constitute the requisite restriction of his or her abilities. However, the broad language of the statute suggests that, in many cases, plaintiffs are likely to achieve favorable outcomes.
Interpreting California Penal Code § 368, the criminal statute prohibiting abuse of a dependent adult that includes a definition of dependent adult that is functionally identical to Section 15610.27(a), the Court of Appeal held that an individual who had suffered a massive stroke resulting partial paralysis, impaired ambulation, and memory/language deficiencies was a dependent adult. (People v. Mayte (2008) 158 Cal.App.4th 921, 925-926 [70 Cal.Rptr. 3d 342].).
The Mayte court specifically identified walking as “a normal activity,” and found that, although the individual could walk (by holding onto something or with the assistance of a cane or walker), it was difficult; her ability to walk was restricted.
The Mayte court was also unpersuaded by the defendant’s emphasis on the things that this individual could do. Despite testifying that she had a driver’s license and was able to drive, she also said she had not driven in a few years. “[A]lthough [she] said she could drive, it appeared her physical limitations restricted her ability to the extent that she did not do so.” (Id. at 926.) In explaining its rationale, the Court noted:
‘Restrict’ is not synonymous with ‘preclude.’ A restriction is only a limitation or restraint. [Citation.] Therefore, it is not necessary to prove that the person is incapable of carrying out normal activities or of protecting the person’s rights; it is sufficient if the person’s ability to do so is limited in some significant way.
(Id. at 925.)
One category of people expressly identified in subsection (a) as dependent adults are those with developmental disabilities. A developmental disability is defined in Welf. & Inst. Code Section 4512 to mean:
“[A] disability that originates before an individual attains 18 years of age; continues, or can be expected to continue, indefinitely; and constitutes a substantial disability for that individual…. this term shall include intellectual disability, cerebral palsy, epilepsy, and autism. This term shall also include disabling conditions found to be closely related to intellectual disability or to require treatment similar to that required for individuals with an intellectual disability, but shall not include other handicapping conditions that are solely physical in nature.”
Section 15610.23(b) sets forth an objective inquiry that seldom gives rise to dispute; if the individual falls within the appropriate age range and is admitted as an inpatient to one of the statutorily enumerated facilities, he or she is a dependent adult.
A recurrent theme
Oftentimes, a single instance of egregious conduct is what triggers someone to take a closer look but is, in fact, just the tip of the iceberg. One may not need to look very hard to uncover the pattern of reckless neglect the Act was designed to target. For years on end, problems are swept under the rug or explained away until it escalates to a situation so severe or so blatant that it can no longer be ignored. This is particularly true as it relates to individuals with developmental disabilities.
In one recent case, a young man endured years of his adult life trapped in a facility where he was neglected, ignored, and despised. With a severe intellectual disability, autism, and schizophrenia, and almost no ability to communicate verbally, he was placed in a residential care facility for developmentally disabled adults, a place that exists to meet the physical and mental needs of individuals like him. One evening, he disappeared from the facility in the middle of night (known as “elopement”). A few miles away, an onlooker noticed him wandering the streets, disoriented and alone, and called the police. He was taken to the hospital as a John Doe and, because hospital staff had no information about his condition, he was subjected to chemical and physical restraints. He was eventually diagnosed with and treated for hepatic encephalopathy and a urethral tear with gross hematuria.
In a perverse way, the elopement turned out to be a blessing in disguise; for years, he lived in a persistent state of neglect, just below the radar, until this incident brought about some meaningful level of scrutiny. Based on the defendants’ shameless attempt to conceal and misrepresent the circumstances of the incident, it seemed likely they understood at the outset that shining a light on the conduct that took place day after day behind the four walls of the facility was a perilous path.
Following a similar fact pattern, a developmentally disabled individual endured ongoing neglect and abuse for years before allegations of a particularly disturbing physical assault finally brought the mistreatment to light.
Facilities may attempt to justify the neglect by emphasizing the obstacles of providing adequate care and supervision to one who may be resistant or even outright hostile to it- and to be sure, there may well be legitimate difficulties. But that is precisely why the facilities have been entrusted with, and are compensated for, the care and supervision of these individuals. The fact that it can be challenging to meet the needs of developmentally disabled adults, by virtue of their disabilities, cannot be used to shield those in the business of providing such care from liability for flagrantly disregarding the welfare of these individuals.
Many of the same difficulties presented by dependent and developmentally-disabled adults in the context of health facilities are also present in the context of legal representation. Plaintiffs often display challenging behaviors such as aggression, self-injury, or inappropriate sexual behavior, all of which may contribute to him or her being perceived as “unsympathetic.” Moreover, opposing counsel will assuredly put forth a narrative emphasizing these behaviors while framing defendants as selfless do-gooders, laboring day after day, making the best of an unenviable situation; the phrase “doing god’s work” tends to be featured heavily. Then, instead of a thank you, they get a lawsuit.
Simply put, jurors are not always inclined to extend the same sympathy to dependent adults that they might for elderly plaintiffs. Jurors, like all people, are more concerned with situations that they might personally encounter. All of us expect to become, or perhaps already are, elders. All of us have or had loved ones who are elders. Most of us do not have close ties to anyone with severe disabilities and, perhaps, for that reason, it is easier to apply the label of “otherness” and never fully grapple with facts in quite the same way.
With all that being said, the proposition that lawyers should be more willing to take on these cases might understandably be met with a healthy dose of skepticism. An individual who strikes his caregiver is beaten in return. A non-verbal person with severely impaired cognitive processing abilities spends day after day on the couch, unengaged and ignored. Given the barriers to success inherent in these cases, is undertaking representation ever really a sound business decision? Can we convince a jury to care enough to return a favorable verdict? Do we care enough to try? We should.
If ever there were a population deserving of our respect and protection, dependent adults are it. While their lives can and should be as rich and fulfilling as anyone else’s, they often rely, to varying degrees, on the care and support of others to ensure their full potential is reached. Those who have a living by providing that care and support understood what that career choice entailed when they made it. They choose to continue accepting the weight of their responsibilities every day they go to work and each time they accept a paycheck for providing services to vulnerable individuals who cannot advocate for or perhaps even comprehend their rights.
As lawyers, we have the opportunity to stand for what is just and right, not only through our words but through our actions. What, then, are we saying about the value of individuals with disabilities if we deem their suffering unworthy of our efforts, and what is the message to the perpetrators if we fail to hold them accountable? The momentum of the status quo is strong, but it is not a foregone conclusion.
Change on a societal scale is slow and its effects are diffuse, but for an individual client, the impact of having an advocate who believes that he or she deserves better can be profound. We have the chance to see the client who was beaten by a caregiver thriving in a new environment where he has learned to control his aggressive impulses and develop relationships. Far from being confined to a couch-dwelling life of isolation, the individual who was neglected and ignored for a decade is almost unrecognizable today, surrounded by nurturing caregivers in a place he can call home, he’s more likely to be found engaging with others, dancing, laughing, and experiencing joy, a feeling that had been missing from his life for years. The fact that all of us have the chance to bring about that change is a privilege and a reward in itself.
As with any client, no two are exactly the same and, when advocating for a client with developmental disabilities, it is all the more important to tailor your approach and remain flexible. The spectrum of disabilities is wide and the strengths and limitations of your client should be kept in mind throughout all stages of litigation. Admittedly, these final thoughts may sound like meaningless platitudes, as vapid as they are sanctimonious. That said, the work of keeping our own biases in check is never finished and that is something worth remembering.
“Injustice anywhere is a threat to justice
everywhere. We are caught in an inescapable network of mutuality, tied in a
single garment of destiny. Whatever affects one directly, affects all
indirectly.” Dr. Martin Luther King Jr., 1963.
 24-hour health facilities, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code include: General acute care hospitals, Acute psychiatric hospitals, Skilled nursing facilities, Intermediate care facilities, Intermediate care facilities for the developmentally disabled (including habilitative and nursing facilities), and Congregate living health facilities.