Husband Charged with Raping His Wife- Nursing Home Aids Claim Dementia Made Consent Impossible

Henry Rayhons, is accused of having sexual relations with his wife at a nursing home when she was unable to give consent due to Alzheimer's disease. He's charged with one count of felony sexual abuse.

 Donna Lou Rayhons’ dementia advanced so quickly in the months before her death she couldn't recall how to eat, thought her mashed potatoes were eggs and couldn't make decisions on her own, care center workers testified.  Prosecutors say Henry Rayhons had sexual relations with his wife on May 23, 2014, in her room at the care center. Prosecutors say he was told earlier that month that his wife was no longer able to consent to sex.

Donna Lou Rayhons died in August. Henry Rayhons was arrested five days later.

A 14-member jury, eight women and six men, heard testimony from Barrick and other staff who worked at the care center, Garner police and Dr. John Brady of Garner Medical Clinic. Prosecutors spent much of the day asking the care center workers and doctor about Donna Lou Rayhon's condition and her husband's behavior in the weeks leading up to the alleged incident.

Charge nurse Shari Dakin testified she didn't see Donna Lou Rayhons make a single decision on her own without help in the months she lived in the care facility in Garner.

"You could see that Donna had Alzheimer's — she was not like you and I," Dakin said. "She was just in her pleasant little world, her own little world."

Barrick told the jury that Henry Rayhons was upset when told he could no longer take his wife out of the care center as he had in the past.  She said he took Donna Rayhons to a doctor, after telling staff they were going for breakfast, in a bid to get overnight visits reinstated.

The doctor, John Brady, told jurors Henry Rayhons made an unsolicited comment while in the exam room with his wife.  "Mr. Rayhons expressed his frustration with not being able to take Donna outside the facility as they had been doing previously," said Brady, of Garner Medical Clinic. "He made an unsolicited comment about his frustration with the family, but saying it's not like I'm going to take her out for sex or anything."

Jurors were shown surveillance footage of Henry Rayhons walking to and from his wife's room on May 23. On the way out, he drops an item in a laundry cart.  Witnesses said it was a pair of Donna Rayhons' underwear. Police collected the undergarments as evidence. Sheets, a blanket and Donna Rayhons' comforter also were taken for testing.

Henry Rayhons' attorney, Joel Yunek, questioned how often laundry was done. He also pointed out Donna Lou Rayhons' roommate, who reported the alleged incident, never explicitly said she heard the Rayhons having sex.

He said it may have been what care center workers thought she implied, but not what she actually said. In his opening statement, Yunek said there's no physical evidence his client had sex with his wife on May 23, as prosecutors contend.

Yunek asked several witnesses whether anyone ever saw Donna Rayhons act afraid of her husband, or show any signs he was mistreating her.  Apparently no one testified that she complained, and no one reported any signs he was mistreating his wife. Though often "pleasantly confused," Donna Rayhons spoke warmly of her husband, Concord Care Center employee Brittany Bouslaugh reportedly said Monday.  "She said 'He takes me out and he buys me these beautiful things and beautiful jewelry'," Bouslaugh said. "And, she was just very, very happy."

Defense lawyer Joel Yunek contended in his opening statement that Henry Rayhons had lost a "power struggle" with two of his stepdaughters, which led to his wife being placed in a nursing home against his will last March. One of the step-daughters petitioned for, and received appointment as a guardian for her mom.  After the felony charge was filed last August, Henry Rayhons' supporters suggested the prosecution was sparked by bad feelings between him and two of his stepdaughters.

According to the New York Times, "it is rare, possibly unprecedented, for such circumstances to prompt criminal charges. Mr. Rayhons, a nine-term Republican state legislator, decided not to seek another term after his arrest."

For more on this case, click here, here, here, and here. 

"Extra Help" Aids People With Limited Incomes Pay for Medicare Prescription Drug Coverage

Extra Help is a federal program that helps people with limited incomes to pay the costs associated with Medicare prescription drug coverage (Medicare Part D). Extra Help is administered by the Social Security Administration. To qualify, you must meet income and asset guidelines that are determined by the federal government each year. If you are single in 2015, your monthly income must be below $1,471 ($1,991 for couples), and your assets must be up to $13,640 ($27,250 for couples) in order to qualify for Extra Help.

In order to have Extra Help, you must get your prescription drug coverage through Medicare Part D. You can get this coverage through both a stand-alone Part D plan that works with Original Medicare, or through a Medicare Advantage plan that includes prescription drug coverage. Extra Help does not work with other forms of prescription drug coverage, such as coverage from an employer. If you do not have a Part D plan, Extra Help gives you a Special Enrollment Period to enroll in a Part D plan outside of typical enrollment periods.

Depending on your income and assets, you may qualify for either full or partial Extra Help. With either program, you don't pay the full cost of your drugs on your plan’s formulary (the list of covered drugs) that you buy at a pharmacy in your plan’s network. You also can use a mail-order pharmacy with Extra Help. Extra Help can also assist with your monthly Part D premium and annual deductibles.

You can apply online, through the Social Security Administration by calling the National Hotline at 800-772-1213, or by visiting your local Social Security office. 

Extra Help is automatically provided to anyone who has a Medicare Savings Program, receives Supplemental Security Income (SSI), or has Medicaid.  

If you do not qualify for Extra Help, your state may have a State Pharmaceutical Assistance Program (SPAP) that can assist with prescription drug costs. Eligibility requirements and program benefits may vary, depending on the program. Contact your local State Health Insurance Assistance Program (SHIP) to see if there is one available in your state. To find your SHIP, visit www.shiptacenter.org or call 877-839-2675.

Click here or here to read more about Extra Help and to learn about whether you may qualify for Extra Help. Click here to learn about other programs and ways that can help lower your prescription drug costs.

Cleveland Attorney Accused of Stealing $115,000 from Estate

An 84-year-old Cleveland attorney is accused of stealing $115,000 from the estate of a client, and using the money to pay his bills.

Gerald Cooper is charged in federal court with wire fraud for stealing from the estate of Henry Luke. He used the money to pay credit card bills, sports tickets and mortgage payments, among others, prosecutors allege.

The charges were filed Tuesday in an information, which usually means a guilty plea is forthcoming.

Cooper, a Pepper Pike resident, was admitted to practice law in Ohio in 1957. The Supreme Court of Ohio's website lists him as retired.Gordon Friedman, Cooper's attorney, told a local paper that his client is working toward paying all of the money back.

"He has had an outstanding and remarkable career as a lawyer," Friedman said. "It is unfortunate that this final moment of his practice is kind of a dark mark on his reputation." According to the information:  Cooper filed an application to administer Luke's estate in Cuyahoga County Probate Court. Between February and March 2014, he received $138,397 from three of Luke's bank accounts.

Cooper then took $115,000 from the estate between February to October 2014 by writing a series of checks. The money then went into his personal account.

You can read the entire article here.

Nursing Home Resident Not Entitled to Hearing on Readmission After Hospitalization

Nursing homes have almost unlimited authority to refuse to readmit a resident following a hospitalization.  This was demonstrated  recently in an Illinois appeals court case which ruled that a nursing home resident who entered a hospital while waiting for a hearing on an involuntary discharge, was not entitled to a hearing when the nursing home refused to readmit him. Gruby v. Department of Public Health (Ill. Ct. App., 2nd Dist, No. 14-MR-0354, March 26, 2015).

Marvin Gruby was a resident of Manorcare Highland Park nursing home. The nursing home issued him a discharge notice, claiming that Mr. Gruby threatened the safety of individuals in the nursing home. Mr. Gruby requested a hearing as was his right under state law. Before the hearing could take place, however, Mr. Gruby entered the hospital for a scheduled procedure. The nursing home notified Mr. Gruby that he would not be able to return to the facility after his hospitalization and it withdrew the notice of discharge.

Mr. Gruby argued that he was entitled to a hearing on the discharge. The administrative law judge determined that a hearing was no longer necessary and closed the case. Mr. Gruby appealed to court. The court ruled that the controversy became moot when the nursing home withdrew the notice of discharge. Mr. Gruby appealed, arguing that he was still a resident of the nursing home while he was in the hospital. Under federal regulations, if a nursing home resident enters a hospital for 10 days or less, the nursing home may not refuse to readmit the resident on the basis of his or her Medicaid status.

The Illinois Court of Appeals affirmed the administrative law judge's decision, holding that under federal nursing home law, Mr. Gruby is not entitled to a hearing for being denied readmission to the nursing home. According to the court, Mr. Gruby did not remain a resident of the nursing home once he was admitted to the hospital because the 10-day bed hold requirement applies only to the Medicaid provisions. The court rules that when the nursing home withdrew its notice of discharge, there was no longer a need for a hearing. The nursing home, in effect, is permitted to circumvent the resident's rights by simply refusing readmission of the the resident, so long as the refusal is not because of the resident's Medicaid status.  

For the full text of this decision, click here. 

Life Estate Renders Medicaid Applicant Ineligible

Life estates are frequently used by seniors to gift real property to family members because the seniors are assured that the retained life estate secures their use and enjoyment of the property for the remainder of  their life.  These estates, however, present complicated tax and legal issues rarely considered and resolved prior to the gift.  

Life estates often complicate Medicaid eligibility.  See, for example, my prior article, "Entire Value of Property in Which Medicaid Recipient Had Life Estate is Recoverable in Idaho."    In a more recent example, North Dakota's highest court ruled that a Medicaid applicant who had a life estate in property is entitled to the income generated from that property, even though she argued she permanently gifted the income to her son. Bleick v. North Dakota Dept. of Human Services (N.D., No. 20140103, March 24, 2015).

Shirley Bleick transferred property to her son in 1988, reserving a life estate for herself, and then she moved off the property.  In 1992, her son leased a portion of the property to another farmer for $8,200 a year. The rental income went to Ms. Bleick's son. In 2011, Ms. Bleick applied for Medicaid benefits, but the application was denied. The state determined that Ms. Bleick should be receiving a portion of the rental income, so her countable assets exceeded the maximum limit.

Ms. Bleick appealed the state's decision, arguing she gifted the right to the income to her son. The trial court affirmed the state's decision to deny Medicaid benefits, and Ms. Bleick appealed.

The North Dakota Supreme Court affirmed, holding that the income stream from the life estate exceeds the asset limits for Medicaid benefits. According to the court, if Ms. Bleick intended to gift all the income from the property to her son, she could have released the life estate and transferred title to the property. The court ruled that the rental income, if it is viewed as a gift, is an annual gift. One justice dissented, arguing that all the evidence indicates that Ms. Bleick intended to permanently gift the income to her son.

The lesson could not be more clear: consult with an elder law attorney before making gifts in order assure that the consequences of the transaction are fully understood and considered. For more information, see "Six Questions to Ask Before Making Gifts."    

For the full text of this decision, go to: 

http://www.ndcourts.gov/court/opinions/20140103.htm