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.  

Incorrect Denial of Medicaid Benefits Not a Defense to Nursing Home Claim on Contract

A recent case illustrates that seniors, their families, and caregivers should not rely upon institutions or the state to plan for their care; the results are often unpredictable and damaging. A New York trial court has held that the fact that Medicaid wrongly denied benefits to a nursing home resident is not a defense in a breach-of-contract claim against the resident, who died leaving an unpaid bill. East End Healthcare v. Gegenheimer (N.Y. Sup. Ct., Suffolk Cty., No. 12-21672, June 29, 2015).

Anna Amico entered a nursing home and signed an admission agreement guaranteeing payment for services.  She had a reverse mortgage, and little in the way of resources, so she applied for Medicaid.  Her niece, Joan Gegenheimer, withdrew money from Ms. Amico's reverse mortgage line of credit account shortly after Ms. Amico entered the nursing home.  The proceeds were placed in a joint bank account between Amico and her niece.  The niece withdrew some funds to pay for Ms. Amico's needs at the home.  Substantial funds were turned over to Ms. Amico, who, knowing she was terminal, paid off debts to families and friends.  When Ms. Amico applied for Medicaid benefits, the state assessed a penalty period because of the transfer. Ms. Amico died owing an amount to the nursing home, which, because of the penalty period, was equal to the amount withdrawn.

Ms. Amico died before the Medicaid determination was made, and therefore, no one filed an appeal of the denial.

The nursing home sued the niece, Ms. Gegenheimer in her capacity as executrix of Ms. Amico's estate, for breach of contract and fraudulent conveyance. Ms. Gegenheimer argued that she withdrew the money from Ms. Amico's reverse mortgage account for Ms. Amico and did not keep any of the money. According to Ms. Gegenheimer, Medicaid improperly denied coverage to Ms. Amico because it counted the money in the reverse mortgage line of credit as an available resource.  The nursing home moved for summary judgment.

The New York Supreme Court, Suffolk County, granted the nursing home summary judgment on the breach-of-contract claim, but denied summary judgment on the fraudulent conveyance claim. The court held that any mistake by the state in considering Ms. Amico's reverse mortgage line of credit funds as an asset that led to the denial of Medicaid benefits is not a defense, because Ms. Amico signed a contract expressly agreeing to make private payments. The court also ruled that because there was no evidence introduced that Ms. Gegenheimer kept the money that she withdrew from Ms. Amico's account, or that the nursing home sent Ms. Amico a bill for her services, there remains  triable issues of fact as to whether Ms. Gegenheimer or Ms. Amico believed that the use of funds would make Ms. Amico insolvent.  The case was remanded to trial court for further proceedings.  

For the full text of this decision, go here.

Read Ohio Dad's Tear-Jerking Letter to Newlywed Daughter With Down Syndrome

Just in case you missed it, please go here.  

Assisted Living Medicaid Waiver Recipients Entitled to Retroactive Benefits Even in Ohio

In another setback for the State of Ohio Department of Medicaid, a federal district court has ruled that  applicants for an assisted living Medicaid waiver program in Ohio are entitled to retroactive benefits. Price v. Medicaid Director, Office of Medical Assistance (U.S. Dist. Ct., S.D. Ohio, W.Div., No. 1:13-cv-74, Sept. 1, 2015).

Assisted living residents Betty Hilleger and Geraldine A. Saunders applied for a Medicaid assisted living waiver from the state of Ohio to pay for home health care. The state found them eligible for benefits, but it denied them retroactive benefits because the state provides only prospective coverage from the date the applicant is enrolled in the waiver program.

Ms. Hilleger and Ms. Saunders filed a class action lawsuit against the state, arguing that Ohio is violating federal law by providing only prospective assisted living waiver benefits. Federal law specifically requires that retroactive benefits be provided during the three months before the application if the applicant was eligible for benefits during that time. The state argued that eligibility for assisted living waiver benefits is prospective only, because it requires, among other things, a face-to-face assessment of the applicant.  Because these specific Ohio rules mean that an individual applicant cannot be eligible for benefits prior to the face-to-face assessment, individuals cannot be enrolled retroactively in the waiver program.

The United States District Court, Southern District of Ohio, agreed that Ohio is violating federal law and granted summary judgment to Ms. Hilleger and Ms. Saunders certifying the class action.  The Court held that the clear language of federal Medicaid law requires the state to provide retroactive benefits. According to the court, "there is nothing about a face-to-face assessment or the use of the assessment tool that prevents a retrospective determination of eligibility."  In other words,  state rules cannot be used in a manner to deny the applicant what federal law plainly permits.