Yes, we believe that your institution could risk some liability when reporting suspected elder financial abuse concerning a nursing home resident. If your bank does believe that a report of suspected abuse would help the resident, we would recommend that you request the Ombudsman to report the issue to the Illinois State Police.

Since your institution is not mandated to report suspected elder financial exploitation (see 320 ILCS 20/2(f-5)), the risks of not reporting in response to the Ombudsman’s request are relatively low. On the other hand, the risks of reporting in response to the Ombudsman’s request are relatively higher. As discussed below, although when reporting you likely would qualify for an exception under the Illinois and federal financial privacy laws, the voluntary reporting on suspected financial exploitation of a nursing home resident is not eligible for a safe harbor from criminal or civil liability that could arise under other laws.

Exceptions under financial privacy laws. Both Illinois and federal financial privacy laws include exceptions that would permit you to reveal a customer’s private information when reporting elder financial abuse. The Illinois Banking Act explicitly permits banks to furnish information to the Department on Aging and to law enforcement authorities, among other appropriate agencies, “if there is suspicion by the bank that a customer who is an elderly or disabled person has been or may become the victim of financial exploitation.” 205 ILCS 5/48.1(b)(16). An exception under federal law applies whenever a bank needs “to protect against or prevent actual or potential fraud, unauthorized transactions, claims, or other liability.” 15 USC 6802(e)(3)(B).

No safe harbor from other criminal or civil liability. The Adult Protective Services Act provides immunity for persons reporting suspected financial abuse of an “eligible adult,” and this safe harbor applies to “criminal or civil liability or professional disciplinary action on account of making the report . . . .” 320 ILCS 20/4(a-7). However, the safe harbor does not apply if the alleged victim is not an “eligible adult,” and that term excludes individuals living in many types of nursing home facilities (listed below). If the customer lives in one of the following types of facilities, your institution would NOT qualify for a safe harbor from potential criminal or civil liability for making a report:

• A licensed facility as defined in Section 1-113 of the Nursing Home Care Act [210 ILCS 45/1-113];
• A facility licensed under the ID/DD Community Care Act [210 ILCS 47/1-101 et seq.];
• A facility licensed under the Specialized Mental Health Rehabilitation Act [210 ILCS 48/1-101 et seq.];
• A “life care facility” as defined in the Life Care Facilities Act [210 ILCS 40/1 et seq.];
• A home, institution, or other place operated by the federal government or agency thereof or by the State of Illinois;
• A hospital, sanitarium, or other institution, the principal activity or business of which is the diagnosis, care, and treatment of human illness through the maintenance and operation of organized facilities therefor, which is required to be licensed under the Hospital Licensing Act [210 ILCS 85/1 et seq.];
• A “community living facility” as defined in the Community Living Facilities Licensing Act [210 ILCS 35/1 et seq.];
• A “community-integrated living arrangement” as defined in the Community-Integrated Living Arrangements Licensure and Certification Act [210 ILCS 135/1 et seq.];
• An assisted living or shared housing establishment as defined in the Assisted Living and Shared Housing Act [210 ILCS 9/1 et seq.]; or
• A supportive living facility as described in Section 5-5.01a of the Illinois Public Aid Code [305 ILCS 5/1 et seq.].