542 RETALIATION FOR REPORTS OF ELDER ABUSE (Sec. 46.90(4)(b), Stats.)

[Ed. note: Pursuant to sec. 46.90(4), Stats., it is unlawful to retaliate against employees for reporting suspected abuse or neglect of an elder person to the designated county official, any state official, or the long-term care ombudsman. Any employee who is discharged or otherwise retaliated against or discriminated against in violation of this provision may file a complaint with the Equal Rights Division under sec. 106.54(5), Stats. Such complaints are processed in the same manner that employment discrimination are processed under the Fair Employment Act. Decisions of the Equal Rights Division under this law are appealable to LIRC.]

The Complainant, a personal caregiver at a non-medical home-care business, was not a person protected from retaliation for reporting elder abuse or adult-at-risk abuse under Wis. Stat. § 46.90(4)(ab) or 55.043(1m). In particular, she was not a health care provider as defined in Wis. Stat. § 155.01(7). Kuzmanovic v. Petra Living Assistance, LLC (LIRC, 08/22/2018), aff'd Kuzmanovic v. LIRC (Waukesha Co. Cir. Ct. 03/17/2019).

The Complainant asserted a complaint under Wisconsin's Elder Abuse Reporting Act and contended that Wis. Stat. §46.197(6)(d) protects employees from retaliation for reporting fraudulent activity. The Chapter cited by the Complainant, Chapter 49, did not apply. Chapter 49 covers public assistance and children and family support services, and the anti-retaliation provisions contained in that section only apply to the Department of Health Services, a county, a tribal governing body, or an employee of one of these entities. Kuzmanovic v. Estate of Fickau (LIRC, 05/31/17).

The Complainant, who was a daycare aide in a community-based residential facility, left a telephone message for the ombudsman stating that she was “calling regarding non-care of resident at group home she worked at.” Even if this message constituted a “report” within the meaning of sec. 46.90, Stats., the message does not state that the Complainant believed that “abuse, material abuse or neglect has occurred.” Moreover, even if her message was considered to be a report that abuse or neglect has occurred, it fails to satisfy the requirement under sec. 46.90(4)(a)1, Stats., that “[t]he person shall indicate the facts and circumstances of the situation as part of the report.” Clearly, the Complainant’s message did not indicate any facts or circumstances regarding asserted abuse or neglect of a resident at the Respondent’s facility. The Complainant argued that a failure to conclude that her message constitutes a report of a fact-based abuse or neglect sufficient to bring sec. 46.90, Stats. into play would not advance the stated public purpose of the statute. In Hausman v. St. Croix Care Ctr., 214 Wis. 2d 655, 571 N.W.2d 393 (1997), the Supreme Court stated that sec. 46.90(4)(b), Stats., demonstrated a fundamental and well-defined public policy of protecting nursing home residents from abuse and neglect. Nevertheless, the Complainant’s message fails to meet all of the requirements of sec. 46.90(4), Stats. Her public policy argument is a matter better addressed by the Legislature. Schultz v. Community Living Arrangements (LIRC, 08/28/03).

A complaint was dismissed for failure to state a claim under either sec. 16.009(5), 46.90(4) or 50.07(30), Wis. Stats. Those statute sections are contained within statutory provisions relating to long-term care facilities, to elder abuse and other care and service residential facilities. They afford persons protection against being discharged or otherwise retaliated or discriminated against: 1) for “contacting, providing information to or otherwise cooperating with any representative of the Board (on aging and long-term care),” 2) for “reporting in good faith to the county agency or to any State official, including any representative of the Office of the Long-Term Care Ombudsman. . .that he or she believes that abuse, managerial abuse or neglect has occurred. . .” and 3) for “contacting or providing information to any State official, including any representative of the Office of the Long-Term Care Ombudsman. . .or for initiating, participating in, or testifying in an action for any remedy authorized under (subchapter 1 of ch. 50, Wis. Stats.).” The common thread through all of these statutory provisions is that the protective report must be made before the alleged discriminatory or retaliatory conduct takes place in order for the protections of the statutes to be in effect. In this case, the Complainant did not allege that he contacted, provided information to or cooperated with any representative of the Board on Long-Term Care, that he reported suspected abuse to the county agency or any State official, or that he had initiated, participated in or testified in an action for any remedy under ch. 50 before the discriminatory or retaliatory conduct complained of had occurred. DeGroot v. Parkview Adult Family Home (LIRC, 07/17/00).

The protection outlined under sec. 46.90(4)(b)1, Stats., does not extend to reports of abuse or neglect to governmental agencies other than to the designated county agency as provided under the statute. In this case, the Complainant did not make a complaint to the Pierce County Office on Aging Lead Elder Abuse Agency, the agency designated under sec. 46.90, Stats, for the purpose of receiving reports of abuse or neglect of elderly persons. Therefore, her complaint was properly dismissed for failure to state a claim upon which relief could be granted. Hausman v. St Croix Care Ctr. (LIRC 03/07/96); Wright v. St. Croix Care Ctr. (LIRC, 03/07/96), both cases aff’d sub nom. Hausman v. LIRC (Dane Co. Cir. Ct., 05/08/97).