Guilfoyle: "Only a Sick Society Would Tolerate Legalized Abuse of Vulnerable Citizens:" Highlights Need for Guardianship Reform

 

The National Association to STOP Guardian Abuse (NASGA) is an excellent organization, and we often share the organization's blog posts on the firm's Facebook Page.  It is rare that the issue of guardianship abuse receives intense national attention and scrutiny.  Perhaps, such a prominent figure speaking out will invite much needed acknowledgment of a national disgrace. You can read the  NASGA blog post here.    

As Abuse in Nursing Homes Increases, Congress Focuses On CMS rather than Nursing Home Providers

Among the many reasons to plan to age in place is abuse that visits residents at nursing homes.  According to McKnights Long-term Care News, abuse deficiencies cited in nursing homes more than doubled in four years, increasing from 430 in 2013 to 875 in 2017.  These were among the findings of a 2019 Government Accountability Office (GAO) report. The most common form of abuse consist of physical and verbal abuse by staff, comprising more than half (58%) of all abuse deficiencies analyzed. 

The Report also concluded, shockingly, that most sexual abuse of nursing home residents come at the hands of nursing home staff, rather than other residents or third parties. 

The Report emphasized that abuse in nursing homes is often under-reported. Moreover, the GAO reported to Congress that even information on reported abuse and perpetrator type is not readily available. Centers for Medicare & Medicaid Services (CMS) does not require the state survey agencies to record the type of abuse and perpetrator.  Worse, when this information is recorded, it cannot be easily analyzed. Therefore, GAO reviewed a representative sample of abuse deficiency narratives from 2016 through 2017.

Nursing home residents often have physical or cognitive limitations that can leave them particularly vulnerable to abuse. Abuse of nursing home residents occur in many forms, including physical, mental, verbal, and sexual, and can be committed by staff, residents, or others in the nursing home. Any incident of abuse is a serious occurrence and can result in potentially devastating consequences for residents, including lasting mental anguish, serious injury, or death. News stories in recent years have noted disturbing examples of nursing home residents who have been sexually assaulted and physically abused.

Federal law clearly mandates that nursing homes receiving Medicare or Medicaid payments ensure that residents are free from abuse. To help ensure this, CMS, an agency within the Department of Health and Human Services (HHS), defines the quality standards that nursing homes must meet in order to participate in the Medicare and Medicaid programs. To

monitor compliance with these standards, CMS enters into agreements with agencies in each state government—known as state survey agencies—and oversees the work the state survey agencies do. This work includes conducting required, comprehensive, on-site standard surveys of every nursing home approximately once each year and investigating both complaints from the public and incidents self-reported by the nursing home (referred to as facility-reported incidents) regarding resident care or safety.

If a surveyor determines that a nursing home violated a federal standard during a survey or investigation, then the home receives a deficiency citation, also known as a deficiency. In addition to state survey agencies, there are other state and local agencies that may be involved in investigating abuse in nursing homes, including Adult Protective Services, local law enforcement, and Medicaid Fraud Control Units (MFCU) in each state, which are tasked with investigating and prosecuting a variety of health care-related crimes.

Attaining and keeping nursing home quality is not a new challenge, and numerous studies and reports have identified CMS challenges in protecting residents from abuse and weaknesses in CMS’s oversight. For example, in multiple reports dating back to 1998, GAO identified weaknesses in federal and state activities designed to correct quality problems in nursing homes. Specifically, in a 2002 report, the GAO found that CMS needed to do more to protect nursing home residents from abuse, and GAO made five recommendations to help CMS facilitate the reporting, investigation, and prevention of abuse in nursing homes.

In April 2019 GAO reported that CMS had failed to address gaps in federal oversight of nursing home abuse investigations in Oregon—an issue that we uncovered during the course of our broader work on nursing home resident abuse.  Further, reports by the HHS

Office of the Inspector General (OIG) have also reviewed incidents of resident abuse and raised concerns about CMS’s procedures.

It is important to note that the legal duty is imposed on each nursing home with CMS oversight helping insure the provides fulfill their duties. If providers perform well their obligations, oversight would be made irrelevant, and more importantly the incidence of abuse would decline.  One might conclude that with abuse rising so dramatically, even as CMS is tightening its oversight capabilities, anger with the industry would be palpable.  In a recent hearing, hovever, Members of the Senate Finance Committee "directed much of their ire not at providers but rather at CMS:

“Not only have abusive incidents doubled in recent years, but the GAO has found that CMS – the agency charged with ensuring that these facilities meet federal quality standards – often cannot access information about abusive incidents after they occur and, therefore, cannot take the necessary steps to remedy the situation,” said Sen. Thomas R. Carper (D-DE).

“CMS needs to ramp up its oversight efforts and fix the problems identified by the Government Accountability Office,” added Sen. Charles Grassley (R-IA), the chairman of the committee.

All parties at the hearing, which included American Health Care Association’s President and CEO Mark Parkinson, stressed a need and commitment to reducing abuse and neglect in nursing homes. They all also found common ground on better background check practices. Ranking committee member Sen. Ron Wyden (D-OR) expressed surprise that 13 states have no background check process for nursing home employees.

There are inconsistencies and loopholes throughout the country when it comes to nursing home oversight, including about providers having to self-attest their ownership, testified Megan H. Tinker, Senior Advisor for Legal Review of the Office of Counsel to the Inspector General, Health and Human Services.  Additionally, a provider can be eligible for Medicaid if it is already in the Medicare program, even if there hasn’t been a background check through Medicare, Tinker added.  “That leaves open a possibility a provider could be a provider for Medicaid with no background check,” she said.

Despite agreement on needing to reduce abuse and neglect, policy makers and experts differed on the best way to achieve those goals, specifically when it comes to funding.

“Medicaid covers two out of three nursing home residents. We need to strengthen Medicaid,” said Sen. Debbie Stabenow (D-MI).

In response to a question about mandatory staffing from Sen. Catherine Cortez Masto (D-NV), AHCA’s Parkinson harkened back to his days running nursing homes, acknowledging that more workers is generally better but also how it depends on how careful and efficient a given certified nursing assistant is.

He also noted that in order to achieve a higher ratio of staff to residents of 4.1 hours per resident per day, as some have suggested, it would cost potentially an additional $6 billion.

“If there’s a mandatory staffing requirement that would be paid for, we’d be all for it,” he said. “But if it’s not paid for, there is no practical way to do it.” 

Lori Smetanka, Executive Director of the National Consumer Voice for Quality Long-Term Care, pushed back in subsequent remarks.

“I think we do need to look at how the money is currently being spent by long-term care facilities,” she said. Her group encourages auditing before assessing how much additional funding is needed.

The GAO made the following recommendations to curb abuse  in its report:

•  Require that abuse and perpetrator type be submitted by state survey agencies in CMS’s federal databases for deficiency, complaint and facility-reported incident data, and that CMS systematically assess trends in these data.

•  Develop and disseminate guidance — including a standardized form — to all state survey agencies on the information nursing homes and covered individuals should include on facility-reported incidents.

• Require state survey agencies to immediately refer complaints and surveys to law enforcement (and, when applicable, to Medicaid Fraud Control Units) if they have a reasonable suspicion that a crime against a resident has occurred when the complaint is received.

• Conduct oversight of state survey agencies to ensure referrals of complaints, surveys and substantiated incidents with reasonable suspicion of a crime are referred to law enforcement (and, when applicable, to MFCUs) in a timely fashion. 

• Develop guidance for state survey agencies clarifying that allegations verified by evidence should be substantiated and reported to law enforcement and state registries in cases where citing a federal deficiency may not be appropriate. 

• Provide guidance on what information should be contained in the referral of abuse allegations to law enforcement.

The hearing was live-streamed and can be viewed on the committee’s website.

Hospitals Cause or Facilitate Abusive Guardianships

When planning to Age in Place, folks must be aware of the causes of guardianship if they hope to have any chance of preventing abusive guardianships.  Hospitals are increasingly the source of guardianship referrals, and many are compromised or abusive guardianships The ABA Journal recently published an article, Cases Raise Questions about Adult Guardianship and Lawyer-Hospital Relationships,  reporting two recent sets of cases in which lawyers received guardianship appointments as a result of their relationships with hospitals. 

In one case, a Michigan judge removed a lawyer from several cases in which she served as a guardian or conservator after raising questions about a conflict of interest.  The case was originally reported in the Lansing State Journal. The presiding Judge  also referred the attorney to the state bar for a possible ethics investigation.

The lawyer was removed  for failing to disclose an agreement with a hospital in which she was paid to petition for guardianship of certain patients. In at least two of the cases, the hospital paid the attorney for time spent with the patients after she was appointed guardian.  The guardianship turned abusive, though, because the lawyer allowed his granddaughter and her boyfriend  to reside in the home of a ward for which the lawyer was guardian.

In South Carolina, the hospital's general counsel served as a patient’s guardian and conservator. The lawyer, received a public reprimand in an agreement for discipline by consent. The Legal Profession Blog noted the case.  The attorney billed more than $8,600 for her time as conservator and paid her son $700 to do repair and cleaning work at the patient’s home. At some point, the lawyer's son moved into the home without her knowledge; she had meningitis and was hospitalized for three months during the time period. The son also vandalized the patient’s home and sold the patient’s car after forging her name on a car title, the reprimand says. The attorney reported her son to police when she discovered his theft.

The New Yorker, too, is raising questions about the guardianship system in Clark County, Nevada, in which elderly people were removed from their homes without notice and without a lawyer to represent them.  In Nevada, hospitals also play a role in guardianships.

“Hundreds of cases followed the same pattern,” the article reported. “It had become routine for guardians in Clark County to petition for temporary guardianship on an ex-parte basis [meaning without a court hearing or notice to family, friends, or the public]. They [lawyers] told the court that they had to intervene immediately because the ward faced a medical emergency that was only vaguely described: he or she was demented or disoriented, and at risk of exploitation or abuse. The guardians attached a brief physician’s certificate that contained minimal details and often stated that the ward was too incapacitated to attend a court hearing.”

The article focused on one guardian, who was awarded a guardianship once a week, on average, and had up to a hundred wards at a time. There was evidence that the guardian visited hospitals and lawyers to build relationships and generate leads for potential clients.

Debra Bookout, an attorney at the Legal Aid Center of Southern Nevada, told the New Yorker that some hospitals were eager for a guardianship appointment:

 “When a hospital or rehab facility needs to free up a bed, or when the patient is not paying his bills, some doctors get sloppy, and they will sign anything.”

The "anything" is often the physicians’ certificate used to obtain ex parte guardianships.

The lawyer subject of the New Yorker article was indicted for perjury and theft in a case that focused on alleged double billings and sloppy accounting.

The New Yorker article notes that Nevada is reforming its guardianship system; a new law will entitle all wards to be represented by lawyers in court. The New Yorker questions whether that is enough. The guardianship commissioner who approved Parks’ appointments was transferred to dependency court but didn’t lose his job. And another guardian who is considered “the godfather of guardians” in Nevada is still listed as a trustee and administrator in several cases.

Guardianship Reform Helps, but Planning Shouldn't Wait

Pennsylvania has implemented a Guardianship Tracking System (GTS), a new web-based system for guardians, court staff, Orphans’ Court clerks and judges to file, manage, track and submit reports. The system integrates statewide guardian information, thereby helping to protect Pennsylvania’s most vulnerable citizens while streamlining and improving the guardianship filing process.  Every little bit helps. One of the unstated benefits of making guardianship reporting easier, is that ease encourages filial and social caregivers to act as guardians. 

Of course, a better plan is to adopt an estate plan incorporating "Aging in Place" strategies, appointing and empowering trusted caregivers (not corporate trustees -banks, financial advisers, or attorneys) and preventing court-appointed guardian control of assets. In addition to making it even easier for filial and social caregivers to act on your behalf, such planning makes court-appointed guardianship more difficult and less lucrative for those who might be interested primarily in financial gain. The National Association to Stop Guardianship Abuse (NASGA) says it best; abusive guardianships have a distinctive pattern: Isolate- Medicate- Liquidate- Drain the Estate.

Guardianship reform helps, and should be encouraged and applauded. Planning, however, shouldn't wait. 

Click here to read the original Facebook post.

Click here to proceed directly to the National Association to Stop Guardianship Abuse Blog article.  

"SICK, DYING AND RAPED IN AMERICA'S NURSING HOMES" - CNN Exposes Sexual Abuse in Long Term Care Institutions

Nursing home residents are among the nation's most vulnerable.  Many suffer from illness, disabilities, Alzheimer’s or dementia,  mobility limitations, and speech or hearing impairments.  They are often weak, fragile, and unable to defend themselves. A CNN investigative report has exposed  that, rather than protecting these vulnerable seniors, many long term care facilities expose them to sexual assault, abuse, and rape.  Worse, the abusers are often protected by the facilities, regulators, and legal systems. Although elder sexual abuse can occur anywhere, it ragically occurs most often in nursing homes.

In the explosive exposé, the first installment of which is entitled "Sick, Dying, and Raped in America's Nursing Homes," CNN reported  “this little-discussed issue is more widespread than anyone would imagine. Even more disturbing, in many cases, nursing homes and the government officials who oversee them are doing little -- or nothing -- to stop it.” 

More specifically, “more than 16,000 complaints of sexual abuse have been reported since 2000 in long-term care facilities.” This number wholly fails to reflect the  true extent of the problem because it includes “only those cases in which state long-term care ombudsmen (who act as advocates for facility residents) were somehow involved in resolving the complaints.”  As might be expected, ombudsmen are only rarely involved in such incidents, and as a result, the statistic only serves to illustrate a far greater underlying problem.  

Regardless, whatever statistics or surveys one is able to ferret from which to create data, sexual abuse in nursing homes and other long term care institutions is vastly under-reported.  According to a report prepared by the  National Research Council, “a vast reservoir of undetected and unreported elder mistreatment in nursing homes" exist precisely because the population is vulnerable.  "Because nursing home residents as a class are both extremely physically vulnerable and generally unable either to protect themselves or report elder mistreatment they experience, the physical and emotional costs of elder mistreatment in such environments are likely to be very high."

Further frustrating appreciation of the problem is wanton concealment by the industry.   CNN  found, “the federal government has cited more than 1,000 nursing homes for mishandling or failing to prevent alleged cases of rape, sexual assault and sexual abuse at their facilities during this period...[a]nd nearly 100 of these facilities have been cited multiple times during the same period.”  CNN interviewed family members who believed their loved ones were being violated as well as nursing home employees who claim to be forced from their jobs for disclosing sexual abuse suspicions. They also spoke to advocates for the elderly and to industry insiders who agreed that immediate change is needed in regard to how alleged sexual abuse reports are handled.

Shockingly, the federal and state regulatory agencies make identification of even reported cases difficult, because, despite the frequency and extent of the problem:

"Despite the litany of abuses detailed in government reports, there is no comprehensive, national data on how many cases of sexual abuse have been reported in facilities housing the elderly."

State health investigators examine all types of abuse reported at nursing homes and assisted living facilities, whether reported by the facilities or flagged by complaints to the state from witnesses, family members or victims. In the case of nursing homes, state officials typically conduct these investigations, as well as routine inspections, on behalf of the federal Centers for Medicare & Medicaid Services (CMS), which regulates the more than 15,000 facilities that receive government reimbursements that pay for many residents' care. Both state health agencies and the federal government then use the information to rate facilities and issue financial penalties for the worst offenders.

CNN surveyed the health departments and other agencies that oversee long-term care facilities in all 50 states. Of the states that could provide at least some data, the responses varied widely.   Wisconsin, for example, reported it didn't have a single substantiated report of abuse in the last five years!  Worse than the unbelievable, is that most states were wholly unable to say how frequently abuse investigations involved sexual allegations, often stating that sex abuse allegations are not categorized separately from other forms of abuse.

The federal government doesn't specifically track all sexual allegations either. CMS lumps sexual allegations into a category that includes all kinds of abuse, such as physical or financial. CMS told CNN that it did not segregate sexual abuse because it takes all forms of abuse seriously.  It is unclear whether CNN asked CMS why, then, it tracks some incidents, rather than others?  When asked by CNN, the agency conducted a specialized search using sex-related keywords, but because not every case was sexual in nature, CNN had to review each case individually to filter out any irrelevant citations.

According to CNN, "the reports show that 226 nursing homes have been cited for failing to protect residents from instances in which sexual abuse was substantiated between 2010 and 2015." Of these cases, "around 60% resulted in fines, which totaled more than $9 million -- though only 16 facilities were permanently cut off from Medicare and Medicaid funding."  Because the federal government only regulates nursing homes, CNN's analysis did not include assisted living facilities.

In the installment entitled, "Six Women. Three Nursing Homes. And the Man Accused of Rape and Abuse," CNN followed the trail of a nursing aide who was a serial sexual offender, and despite having demonstrated an obvious and discoverable pattern of sexual abuse and rape, was able to move from one facility to another.   With a history of sexual abuse allegations, the aid continued to find employment in the nursing home profession.   CNN found that nursing home officials are quick to dismiss a resident’s sexual abuse claims as "hallucinations" or "fantasies."  CNN also discovered that state labor laws often protected abusers, and discouraged administrators from properly disciplining serial abusers.  

Although women are, by far, the most common victims of sexual abuse in long term care institutions, men, too, are often victimized. Sexual abuse of older men in nursing homes crosses traditional gender, cultural, and role boundaries for both victims and perpetrators.

Worse, although most offenders are "loners," who commit their abuse secretly and alone, CNN discovered a frightening number of examples in which abusers conspire to commit sexual abuse of the most vulnerable, spurred in part by a form of dehumanizing "mob mentality:"  

For months, a group of male nursing aides at a California facility abused and humiliated five male residents -- taking videos and photos to share with other staff members. One victim, a 56-year-old with cerebral palsy, was paraded around naked. Another, an elderly man with paralysis who struggled to speak was pinched on his nipples and penis and forced to eat feces out of his adult diapers. He was terrified his abusers would kill him. While the aides lost their certifications, an investigation by Disability Rights California found that many of them never faced charges.

Another group of nursing aides, teenagers in Albert Lea, Minnesota, tormented at least 15 male and female residents, many of whom suffered from Alzheimer's. The female aides struck, poked and rubbed the residents and touched their breasts. They inserted their fingers into one resident's rectum. They rubbed the residents' crotches and laughed. One aide pulled down her own pants and sat on a female resident's lap -- humping and groping her. "I was basically appalled by the callous disregard for human decency," a judge later said. Two of the abusers, who were 18 at the time and convicted of disorderly conduct by a caregiver, served 42 days in jail. The other teens were tried in juvenile court and faced no jail time at all. (emphasis added).

Detection of the crime can be difficult, if not impossible.  Residents often are unable to complain or report details of attacks.  Physical evidence is often scant.  Even when combined with strangulation, which is occurs in as many as one quarter (25%) of reported sexual assault cases, there may be no obvious physical signs or marks of the assault.  Strangulation requires less pressure than the pressure of an average handshake; it is possible to strangle a person to death and leave no  marks or signs.  

The psychological and emotional trauma is too easily ignored when exhibited by the elderly.  Sexual assault can cause  anxiety, depression, suicidal thoughts, PTSD, memory loss, and when combined with strangulation or use of force, even stroke. Victims may have lost consciousness during the assault,  and may have trouble recalling details of the sexual assault. They may also be embarrassed by some of their symptoms, such as urinary or fecal incontinence.  These effects are often attributable to other causes or conditions suffered by the elderly.  Sadly, CNN found that workers often lacked specific training needed to spot sexual abuse -- keeping reports of abuse from ever reaching authorities.

Certainly, many nursing home employees promptly report abusers to authorities as required by federal law and assist in the investigations. But in numerous examples of abuse uncovered by CNN, the facilities themselves made it possible for violent rapes and sexual assaults to go unchecked, unreported, and poorly or incompetently investigated.  Allegations are routinely questioned or dismissed because victims have cognitive conditions such as Alzheimer's.  According to CNN, "the reputation and safety of the facility may take priority: There's often a fear that bringing investigators into a cash-strapped facility may expose other issues, threaten a nursing home with closure or open the door to costly lawsuits."

CNN reported on one such case:

When the chef at an assisted living facility, was arrested in Louisiana last year in the alleged rape of a 78-year-old resident, a director at the facility, Julie Henry, was quick to issue an emotional statement to local media -- claiming the company was "shocked and disheartened." But not long after, Henry was arrested, accused of orchestrating an elaborate cover-up of the abuse. According to police, she had tried to prevent an investigation by instructing staff not to report the incident. She asked employees at the assisted living facility, Beau Provence Memory Care, to hand over all evidence to her, which she then allegedly destroyed. The chef, Jerry Kan, was indicted on a first first-degree rape charge and has pleaded not guilty. The case is ongoing and his attorney declined to comment.  

CNN reported that at the time of publication, "Henry has not been indicted."

The National Association of Health Care Assistants responded with a pledge to act. They stated its members are “saddened and sickened by the CNN investigative report” and planned to increase training and education within its membership. They said this includes ensuring that nursing assistants know how to identify warning signs of potential abuse and the proper mechanism for reporting it to higher authorities.

AMDA – The Society for Post-Acute and Long-Term Care Medicine, also responded:

AMDA emphatically condemns any type of abuse of post-acute and long-term care (PALTC) residents, and stands by its mission to promote and enhance the development of competent, compassionate, and committed medical practitioners and leaders to provide the highest quality, goal-centered care to patients and residents across all PALTC settings.

Adequate education, training, and leadership is vital to ensuring the safety, comfort, and quality of life of PALTC residents and patients. For 40 years, the Society has worked to:

• Train practitioners to identify and report elder abuse – Society educational programs including the Annual Conference, and the Core Curriculum on Medical Direction in PALTC provide education on residents’ rights, elder mistreatment, and more.

• Train practitioners to provide high-quality care to all patients, and to be aware and able to properly deal with issues made more complicated when treating patients with cognitive impairments. Sexual activity among residents in PALTC settings is a challenging topic for all parties. The Society continues to work on educational and policy initiatives to protect and better care for patients with cognitive impairments.

The Society believes that it is vitally important to provide patient-centered care in all circumstances, to all patients, listening to and investigating all complaints, concerns, and other comments by patients and family members. The Society will continue to train health care practitioners, advocate for them, their patients and family members, and educate the public, to advance its mission: A world in which all PALTC patients and residents receive the highest-quality, compassionate care for optimum health, function, and quality of life.

Legislative solutions are often proposed, but provide a mix of possible solutions.  On one hand, the State of Missouri is taking measures to allow hidden cameras within nursing homes to catch offenders. Other legislation, however, is aimed at making it much harder to take legal and punitive action against nursing homes that have a problematic past.

Iowa is considering legislation aimed at limiting the legal liability of nursing homes as well as doctors and facilities in the medical industry, in order to cut health care costs affected by huge lawsuit amounts.  Advocates for nursing home abuse victims are strongly opposed to such legislation, but they also often oppose on worker and resident privacy grounds remedial efforts, such as cameras.  . Some suggest that without the threat of litigation, nursing home companies are free to operate without accountability, notwithstanding that large lawsuit recoveries don't appear to be effective currently in creating accountability.  

Looking for legislative solutions, however, is likely a fools errand.  The problem is not new. As a 2003 National Academies Press Report lamented: 

We are not the first to lament the poor state of knowledge about elder mistreatment. In 1986, a consensus conference of leading researchers (including two of our panel members) was convened at the University of New Hampshire to point the way toward advancing knowledge. The conclusions and recommendations reached at that conference are strikingly similar to those appearing in this report. (emphasis added).

The best solution to institutional care risks remains avoiding institutional care.  "Aging in Place" should be a significant discreet objective of your estate and financial plan. 

One in Five SNF Residents Abused By Another Resident

McKnight's reports the results of a new study which reveals that at least one in five seniors living in nursing homes has experienced some sort of resident-on-resident abuse:

Researchers tracked reports of resident-to-resident mistreatment over a one-month period at five urban and five suburban New York nursing homes through resident and staff interviews, observations and incident reports. Of the 2,011 residents included in the study, 407 — or more than 20% — said they had experienced at least one abusive event over the course of the month. The study was released Tuesday in Annals of Internal Medicine [hyperlink added].

The most common forms of resident-on-resident mistreatment were verbal at 9.1% and miscellaneous instances, including invasion of privacy or menacing gestures, at 5.3%. Physical and sexual abuse incidents followed at 5.2% and 0.6%, respectively. 

Factors such as a resident's level of cognitive impairment, whether the residents resided in a dementia unit and higher nurse aide caseload were linked to higher rates of resident-on-resident mistreatment, results showed.

The findings indicate that traditional efforts to curb nursing home abuse may be disproportionately aimed at staff mistreatment instead of resident-on-resident events, researchers noted. 

In an editorial article accompanying the study, XinQi Dong, M.D., Ph.D., with the Rush Institute for Health Aging, pointed out that while further research is needed to develop “evidence-based, culturally appropriate” interventions for resident-on-resident mistreatment, providers and government entities “cannot wait” to advocate for better protections for residents. 

“We must recognize that residents may be both victims and perpetrators of [elder abuse], and avoid blaming victims or resorting to interventions of convenience, such as the use of chemical sedation or physical restraints,” Dong wrote. 

Providers also should look into ways that technology like cameras and data collection can help measure and prevent abuse, Dong added.

Resident on resident abuse has recently made headlines in Kentucky, where a resident of a residential care facility was charged with another resident's murder, in Texas, where a nursing home changed its name in the wake of a resident-on-resident double homicide, in New Hampshire, where a resident suffering from Alzheimer's strangled and killed another during an assault, and in Florida, where a resident died from injuries inflicted by another resident suffering from dementia.  In 2014, a female resident in Georgia strangled and killed her resident roommate, and in 2006, a resident in a Toledo, Ohio, nursing home beat and killed his roommate in a dispute over sleeping arrangements.  

Hospice Owner Accused of Instructing Nurses to Kill Patients by Overdose

McKnight's reports that the owner of a Texas hospice company has come under fire for allegedly encouraging employees to overdose patients and hasten their death in order to avoid the federal reimbursement cap for hospice stays.

Brad Harris, 34, owner of Novus Health Care Services Inc., allegedly told a nurse to overdose three patients on drugs such as morphine, and instructed another employee to give a patient four times the maximum dose allowed, according to an FBI affidavit obtained by a Dallas television station. In another instance, Harris texted an employee of the Frisco, TX-based company “you need to make this patient go bye-bye.”

The FBI affidavit was written in February, but not publicly released until this week. No charges have been filed against Harris or Novus as of press time, and Harris remains free. The FBI declined to comment on the investigation, the Dallas Morning News reported.

The affidavit also accuses Harris of telling other healthcare executives that he sought out “patients who would die within 24 hours,” and of making comments like “if this f— would just die.” While at least one employee refused to comply with Harris' instructions, it's unclear if any patients were harmed.

The FBI's affidavit says Harris was motivated to find patients whose hospice stays were forecasted to be short, or even speed up patients' deaths, in order to skirt the payment caps placed on hospice care by Medicare and Medicaid.

Another employee said Harris would frequently decide which patients would be moved to and from home care, despite not being medically certified; Harris is an accountant by trade. Harris would have employees sign transfer papers with the names of doctors employed by the company, according to the affidavit.

"If a patient was on hospice care for too long, Harris would direct the patient be moved back to home health, irrespective of whether the patient needed continued hospice care,” the affidavit reads.

Horrific. 

Columbus Dispatch Exposes Abuse and Exploitation of the Disabled

The Columbus Dispatch, in a series of articles culminating in last Sunday's article “Abused and Ignored,” detailed heartbreaking examples of young people being abused and prostituted by family members, and contained shocking statistics about the prevalence of abuse and crime among people with developmental disabilities. Among them:

• About 70 percent of developmentally disabled people report being physically and sexually assaulted, neglected or abused; about 90 percent of them reported multiple occurrences. Yet fewer than 40 percent of people reported this abuse to authorities, and those who did saw an arrest rate of less than 10 percent.

• Disabled people nationwide are three times as likely to be raped or sexually assaulted as the general population, with younger people and those with several cognitive disabilities at highest risk. An Ohio reporting system for the developmentally disabled received more than 2,000 reports of sexual abused from 2009 to 2014, but less than 1 in 4 of those cases was substantiated.

Fortunately, the paper discovered that Ohio has among the best reporting systems protecting the disabled, and prosecution success is common.

"Contrast these statistics to those in Summit County," the article reads. "Under Deputy Sheriff Joe Storad, the county tripled the number of police investigations involving disabled victims in the past two years. While the overall numbers are relatively small, it has achieved a 100 percent success rate for prosecutions: 31 out of 31 cases.  In neighboring Stark County, Deputy Sheriff Rocco Ross also pushes for vigorous prosecution of crimes against the disabled.  In just the past nine months, Ross says he has seen 560 potential criminal cases of this type, about half of which will be investigated for potential prosecution.  Ross told The Dispatch that it was a “very eye-opening experience” when he first became involved with investigating these cases. “I had no clue there were this many incidents against disabled individuals,” he said.

To read the Dispatch article, go here.

To read about a national reporting website for abuse against the disabled, go here. 

To read about the results of the reportage, go here.

First National Website Aims to Reduce Abuse of People with Disabilities

The Vera Institute of Justice has launched the first national website aimed at curbing abuse of people with disabilities.

The Vera Institute said people with disabilities are "victimized at alarming rates," and are three times more likely than the average population to experience sexual and violent assaults.

The website was developed by Vera’s Center on Victimization and Safety with funding from the U.S. Department of Justice’s Office of Violence Against Women. It offers an interactive map of people, programs, and projects nationwide.

“For many people with disabilities, their needs aren’t being met when they reach out for help, or their requests are met with skepticism, dismissed, or outright ignored,” said Reynoldsburg resident Nancy Smith, head of the victimization center. “Others may not understand what happened to them or be able to put a name to the pain and abuse they have survived. This website aims to ensure that survivors’ experiences are acknowledged and respected, and their needs are attended to.”

To read the Press Release accompanying the announcement, go here.  

Husband Acquitted of Nursing Home Rape of His Wife

The jury acquitted the 78-year-old retired farmer and former state legislator of sex-abuse charge in a case that captured international attention.

To read my prior post regarding and including a background of this case, click here.

Prosecutors had contended he was guilty of the felony because he had sexual contact with his wife after nursing-home staff members told him her Alzheimer's disease had stolen her ability to consent. The case raised wide-ranging questions regarding the law, and relationships between persons where one suffers from dementia. The defendant's attorney, in fact, warned that conviction might cause partners to avoid visitations in order to avoid potential criminal culpability.

Regardless the outcome, the case has led to a heightened awareness regarding the need for dialogue regarding such matters.  See, for example, Eliza Gray's article, "Why Nursing Homes Need to Have Sex Policies," published in Time magazine.  

Court Upholds Conviction of Agent under Power of Attorney for Gifting Funds to Himself to Qualify Principal for Medicaid

A Texas appeals court upholds the conviction of an agent under a power of attorney who transferred funds to himself, supposedly to qualify his former grandmother-in-law for Medicaid. In an earlier proceeding, a jury sentenced the agent to 25 years in prison. Natho v. State (Tex. Ct. App., 3rd Dist., No. 03-11-00498-CR, Feb. 6, 2014).

Rosie Shelton signed a power of attorney, appointing her former grandson-in-law, Ronnie Natho, as her agent. The power of attorney gave Mr. Natho the power to act on her behalf, including with regard to Medicaid issues, but it did not give him the authority to make gifts on her behalf. Mr. Natho was also the sole beneficiary under Ms. Shelton’s will. After Ms. Shelton entered a nursing home, Mr. Natho gifted himself her car and then consulted with an attorney who helps clients qualify for Medicaid. The attorney informed Mr. Natho that he could spend down Ms. Shelton's money and it was acceptable for him to make gifts to himself as long as Ms. Shelton's needs were met. Mr. Natho then transferred Ms. Shelton's life insurance policy to himself and gave himself other gifts as well.

When Ms. Shelton discovered the transfers, she revoked Mr. Natho's power of attorney, and criminal charges were filed against Mr. Natho. A jury convicted Mr. Natho of misapplication of an elderly person's fiduciary property, and sentenced him to 25 years in prison. Mr. Natho appealed, arguing he was acting in Ms. Shelton's best interest to qualify her for Medicaid.

The Texas Court of Appeal affirms the conviction, holding the evidence was sufficient to find Mr. Natho misapplied Ms. Shelton's assets. The court rules that the fact that the power of attorney did not give Mr. Natho the power to make gifts, that he gifted himself the car before he consulted with the attorney, and that the car and insurance policy would have been excluded from a Medicaid eligibility determination, show that Mr. Natho wasn't acting to benefit Ms. Shelton.

For the full text of this decision, click here.

Banks Can Report Abuse of Elderly Without Violating Privacy Laws

UC Irvine's Center of Excellence on Elder
Abuse and Neglect - committed to eliminating
 abuse of the elderly

The Federal Government has issued new guidelines aimed to help banks understand how to report suspected financial elder abuse without violating privacy laws. It was co-authored by eight federal agencies, including the FTC, SEC, FDIC, and the new Consumer Financial Protection Bureau. The privacy protection law in question is the 1999 Gramm-Leach-Bliley Act (GLBA).

As the Guidance explains, GLBA allows banks to disclose private information “to comply with…state laws that require reporting by financial institutions of suspected abuse.” It may also be released to respond to a government investigation or to respond to judicial process. The guidance was issued to reassure financial institutions that they will not run afoul of federal law by reporting suspected abuse as required under state law.

Ohio law protects the disabled and elderly from abuse, neglect, and exploitation, and requires certain professionals, including doctors, nurses, lawyers, physical therapists, social workers, law enforcement and emergency response personnel. having reasonable cause to believe that an elderly person is in need of protective services to report such information.

Ohio law does not currently require financial professionals such as tellers to report.  Ohio law does, however, protect any person that does report suspected abuse, whether or not required to report.  Any person who makes a report with reasonable cause to believe that an adult is suffering abuse, neglect or exploitation is immune from civil or criminal liability under Ohio law.

The importance of banking professionals in identifying abuse and exploitation cannot be overstated.  According to Richard Cordray, Director of the Consumer Financial Protection Bureau:

"Many older consumers are known personally by the tellers in their local banks and credit unions. These employees may be able to spot irregular transactions, abnormal account activity, or unusual behavior that signals financial abuse sooner than anyone else can. Today’s guidance makes clear that reporting suspected elder financial abuse generally is not subject to these same concerns and does not violate the Gramm-Leach-Bliley Act.

The guidance mentions repeated large withdrawals, debit transactions uncommon for an older adult, random attempts to wire large amounts and the closing of CDs or accounts despite penalties as possible signs of elder financial abuse. 

  

For more information on the new federal guidance, see here, or see the full document here.

Elder Abuse and Exploitation Rampant

New research from Cornell University's medical college suggests that the incidence of elder abuse and exploitation is far greater than experts had expected.

The study, which is not available online, compared the number of cases reported to law enforcement  agencies that serve the aging and other authorities with those mentioned in 4,000 random phone surveys of people 60 and older.  One would expect that some cases would go unreported, and thus it is generally understood that such offenses are unreported.

The extent of  unreported offenses was, however, shocking.  According to the study, for every elder abuse case reported to a mandated enforcement agency, the survey found, 23.5 unreported cases actually occurred. What's more, for each case of financial abuse of elders reported to authorities, 43.9 actually occurred.  Finally for each reported case of neglect of an elderly person, 57.2 cases of neglect actually occurred. One can only be shocked that such a vast array of offenses against the elderly go completely unreported.

The extent of unreported cases helps to explain why abuse, financial fraud, and neglect are so prevalent among the elderly. Aside from what may be a natural vulnerability among some segments of the elderly population, it is obvious that perpetrators can repeat offend with relative impunity.  Imagine for a second how prevalent convenience store robberies would be if only one out of every 57 store owners  victimized even reported the crime! 

Read more: http://www.sacbee.com/2010/12/31/3291158/fraction-of-elder-abuse-cases.html#ixzz1AHH0aMqp