Sunday, February 26, 2017

CNN Report: Sexual Assaults in Nursing Homes

CNN has published an investigative report on sexual assault of residents in nursing homes.  Sick, dying and raped in America's nursing homes opens with these paragraphs "Some of the victims can't speak. They rely on walkers and wheelchairs to leave their beds. They have been robbed of their memories. They come to nursing homes to be cared for... Instead, they are sexually assaulted... The unthinkable is happening at facilities throughout the country: Vulnerable seniors are being raped and sexually abused by the very people paid to care for them."

The report looks at a variety of issues and the failings of the system in responding to the attacks.

In cases reviewed by CNN, victims and their families were failed at every stage. Nursing homes were slow to investigate and report allegations because of a reluctance to believe the accusations -- or a desire to hide them. Police viewed the claims as unlikely at the outset, dismissing potential victims because of failing memories or jumbled allegations. And because of the high bar set for substantiating abuse, state regulators failed to flag patterns of repeated allegations against a single caregiver.

The facts of the cases are hard to read but important in understanding the scope and significance of these crimes.   The perpetrators were as young as teenagers or as old as the victims.  Some were caregivers, others residents.

Rather than summarizing any further, just read the story.  Nothing I can add here would give you the same impact.

Responses to the report from the National Consumer Voice for Quality Long Term Care and others can be accessed here.

February 26, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0)

Tuesday, February 21, 2017

Texas Elder Abuse Statute Used to Convict and Sentence Doctor to Life in Prison

The deeply disturbing medical practice history of Christopher Duntsch, who worked as a neurosurgeon in Texas until 2013, culminated in his February 2017 conviction and sentence of life in prison for his injuries to a 74-year old patient.  It is relatively rare for medical "malpractice" cases to lead to criminal charges, but as detailed in news articles covering the trial, there was strong, adverse medical testimony about how Duntsch's improper surgical procedures caused a horrific outcome.

Initially accusing Duntsch of criminal acts arising in the context of surgical procedures to several of his patients, the prosecution ultimately focused the criminal trial on his 2012 spinal surgery on a single patient under Texas Penal Code Section 22.04, for "Injury to a Child, Elderly Individual, or Disabled Individual." The pertinent portion of the statute provides:

"(a) A person commits an offense if he intentionally, knowingly, recklessly or with criminal negligence, by act . . . causes to a . . . elderly individual . . . : (1) serious bodily injury."      

The offense becomes a first degree felony, if it is proven that the conduct was "committed intentionally or knowingly." If the conduct had been "only" reckless, the offense would be a felony of the second degree.

Under the statute, an "elderly individual" is defined as a "person 65 year of age or older." 

In a Washington Post article on the conviction, a Texas attorney is quoted:

“I cannot recall a physician being indicted for aggravated assault for acts committed during surgery,” Toby Shook, a Dallas defense attorney who spent 23 years working as a Dallas County prosecutor, told the magazine. “And not just Dallas County — I don’t recall hearing about it anywhere.”

February 21, 2017 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, January 15, 2017

Mark Your Calendar-DOJ webinar

Do you know about the DOJ Elder Justice Initiative? If not, then this webinar is for you. Even if you do know about it, still register for this webinar!  According to the email I received,

On January 26, 2017, the Elder Justice Initiative will be hosting a webinar to highlight resources and information available on the Elder Justice Website. 

This webinar will be hosted by Susan Lynch and Sid Stahl and will introduce you to the Department of Justice’s Elder Justice Website and will help you to navigate the many tools and resources available on DOJ’s website for elder abuse prosecutors, law enforcement, victim advocates, victims, families, caregivers, and elder abuse researchers.  These tools can help you find assistance when in need, get involved in combatting elder abuse and financial exploitation, and educate you on elder justice programs operating at the federal, state, and local levels. 

Registration opens the week before the webinar.

January 15, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Programs/CLEs, Webinars | Permalink | Comments (0)

Tuesday, January 10, 2017

Register Now: Free Webinar on Recognizing and Preventing Scams

The American Bar Association Senior Lawyers Division is offering a free webinar on January 19 at noon on scams, as part of its series on preventing elder abuse.  The webinar will include panelists from the Consumer Financial Protection Bureau, DOJ and the Harry & Jeanette Weinberg Center for Elder Abuse Prevention.  Topics to be covered include the frequency of elder abuse, trends in scams, scam prevention, what to do if a victim, and civil remedies. Click here to register.

 

 

 

January 10, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Webinars | Permalink | Comments (0)

Monday, December 19, 2016

Aging and Dying in Prison

We have written several posts about the graying of the prison population. Here is one more-looking at the long term care prisons provide, functioning in some instances as a nursing home or a hospice.  Kaiser Health News (KHN) ran the story, More Prisoners Die Of Old Age Behind Bars.

The number of federal and state prisoners age 55 or older reached over 151,000 in 2014, a growth of 250 percent since 1999.

As this population grows, prisons have begun to serve as nursing homes and hospice wards caring for the sickest patients. The majority of state prisoners who died in 2014 were 55 years or older, and 87 percent of state prisoners died of illnesses, according to the report. The most common illnesses were cancer, heart disease and liver failure.

The article, noting that elders may have multiple health conditions, reports of one inmate with dementia who was placed in the general population rather than in the medical wing.  The article also discusses the early release program in some states, known as "compassionate release"

For prisoners clamoring to spend their dying days at home, U.S. prison jurisdictions have some laws on the books, often called “compassionate release” or “medical parole,” allowing for early release if prisoners are very sick and not a threat. But in practice, very few inmates are set free through these programs, said Dr. Brie Williams, director of the University of California Criminal Justice and Health Project in San Francisco.

However, compassionate release isn't always the solution as the article points out, especially when those seeking release are violent offenders, as the article explains some instances where early release of a prisoner resulted in another crime, or release was  obtained through fraud.  But without compassionate release, the prisoners die in prison, and thus the prison needs to provide nursing home or hospice care for inmates.

What's the solution to this growing problem? " Williams has been watching the population of older prisoners continue to grow, outpacing the general population of the U.S. As this trend continues, she said, prisons and jails need to catch up... 'I’m talking about a massive expansion of the field of palliative care into the correctional system,” she said, “so it’s integrated into the fabric of correctional care.'”

December 19, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0)

Tuesday, November 29, 2016

PBS Special on Elder Abuse

Nashville Public Television ran a story about elder abuse in Aging Matters-Abuse and Exploitation. Here is a summary of the story:

It is estimated that one in ten adults over the age of 60 is a victim.  But the truth is we don’t know for certain how many older adults are suffering from abuse. In the eighth edition of Aging Matters, Nashville Public Television explores the issues behind elder abuse, neglect and exploitation. 

Experts suggest that our understanding of elder abuse lies decades behind that of child abuse and domestic violence. Elder abuse is underreported. It lacks clear legal definition and is complicated by ethical challenges.  The system of response is different depending on where you live.

What are the risk factors, what can we do to protect ourselves and our loved ones, and what is our responsibility to intervene for those in need? The questions are simple, but the answers are not.  Find out more in Aging Matters – Abuse & Exploitation.

The story is accompanied by a panel discussion and includes background resources.

November 29, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Programs/CLEs, Webinars | Permalink | Comments (0)

Thursday, November 10, 2016

Older Adults-Confidence About Law Enforcement and Courts?

I recently was called for jury duty. One of the questions asked during voir dire was about jurors' attitudes regarding the prospect of service. That made me think of a study I ran across recently, Measuring Older Adult Confidence in the Courts and Law Enforcement, published in Criminal Justice Policy Review.  The abstract for the article explains

Older adults are an increasingly relevant subpopulation for criminal justice policy but, as yet, are largely neglected in the relevant research. The current research addresses this by reporting on a psychometric evaluation of a measure of older adults’ Confidence in Legal Institutions (CLI). Confirmatory factor analysis (CFA) provided support for the unidimensionality and reliability of the measures. In addition, participants’ CLI was related to cynicism, trust in government, dispositional trust, age, and education, but not income or gender. The results provide support for the measures of confidence in the courts and law enforcement, so we present the scale as a viable tool for researchers and practitioners interested in understanding older adults’ confidence in these institutions. We conclude by discussing the implications of our work on efforts to improve interactions between older adults and legal institutions, and we highlight avenues for further research.

Here is a short excerpt from the conclusion:

Why is it that older, older adults report more confidence in the criminal justice system than younger, older adults? Does this reflect a cohort effect or individual differences? In addition, future research should examine whether these confidence subscales predict willingness to engage or actual engagement in legal activities such as jury service, reporting crimes (as a victim or witness), or initiating litigation as well as they do in more general samples

The full article published in the journal is available here for a fee.  A pre-publication pdf from ResearchGate is available here for free.

 

November 10, 2016 in Consumer Information, Crimes, Current Affairs | Permalink | Comments (0)

Wednesday, October 26, 2016

DOJ Settles False Claims Case vs. SNF

DOJ announced recently that it had settled a False Claims case against Life Care Centers of America Inc. (Life Care) and its owner, Forrest L. Preston. The defendants agreed to pay $145 million to settle a case where the Government claimed “that Life Care violated the False Claims Act by knowingly causing skilled nursing facilities (SNFs) to submit false claims to Medicare and TRICARE for rehabilitation therapy services that were not reasonable, necessary or skilled….” In addition, the defendant also signed a Corporate Integrity Agreement with the Office of Inspector General (HHS-OIG) for HHS. Under this 5 year agreement, “an independent review organization [will] … annually assess the medical necessity and appropriateness of therapy services billed to Medicare” by the defendant.  The suit was brought pursuant to the whistleblower provision of the False Claims Act.

According to the suit, the defendant put corporate-wide procedures and polices into place that caused a maximum number of “beneficiaries in the Ultra High reimbursement level irrespective of the clinical needs of the patients, resulting in the provision of unreasonable and unnecessary therapy to many beneficiaries.” Further the defendant tried to keep SNF residents longer than needed so the defendant could continue to bill for rehab, even though the therapists concluded therapy should be ended. The defendant kept careful track of the therapy minutes per patient and the patient’s therapy days so that the maximum number of patients were at that “highest level of reimbursement for the longest possible period.”

According to an email I received, the amount of the settlement was partially based on statistical sampling.

Thanks to Laurence Hooper for emailing me.

October 26, 2016 in Consumer Information, Crimes, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Sunday, October 23, 2016

Abuse of Elder Mothers

The National APS Resource Center released a new research brief, Elder Abuse, Mother Abuse & Parenting in Later Life. The focus of the brief is older mothers with adult children who are described as difficult. "The sample is low income and minority older women 62 years and older. All of the women had allowed their adult children to move back into the family home when the adult children had [become] unable to support themselves due to mental health issues, break up of a romantic relationships or unemployment." The brief explains the stress these mothers undergo and the reasoning for why the mothers allowed their children to move back in with them and why they don't make the children move out once problems occur.  Consider this from the brief,

A surprising finding is that none of the women ever used the word “abuse,” including those who had contacted law enforcement and/or had obtained an order of protection. Instead, they presented themselves as mothers who made the decision to protect their adult children over their own personal comfort or safety.

As far as policy implications, "[a] surprising finding is that none of the women ever used the word “abuse,” including those who had contacted law enforcement and/or had obtained an order of protection. Instead, they presented themselves as mothers who made the decision to protect their adult children over their own personal comfort or safety. "  The brief suggests that APS workers and elder mothers develop a "safety plan" for addressing both the mother and child's needs.

As

 

October 23, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship | Permalink | Comments (0)

Monday, October 10, 2016

Update on 2015 Iowa Case, Raising Issue of "Consent" to Sexual Relations in Nursing Homes

In April 2015, we followed the Iowa state criminal trial of a former state legislator for allegedly having sexual relations with his wife in her nursing home after she was diagnosed with Alzheimer's Disease.  See here, here and here, for example.  The charge of "sexual assault" was based on an Iowa statute that criminalized a sexual act "between persons who are not at the time cohabiting as husband and wife" if "the other person is suffering from a mental defect or incapacity which precludes giving consent." See Iowa Criminal Code Sections 709.1, 709.1A, and 709.4(2)(a).   After a several day high-profile trial -- where emotions were running high on all sides with family members, witnesses and attorneys --  the jury acquitted Henry Rayhons, then age 79.  The prosecutor took the position that any theory the wife "consented" to sexual relations was completely irrelevant as a matter of law, because of her debilitating mental condition.

The legal proceedings did not stop with the criminal case.  A year later, Henry Rayhons filed a civil suit for damages, alleging various state law claims such as (1) defamation, (2) intentional infliction of emotional distress, (3) malicious prosecution, (4) negligent infliction of emotional distress, (5) negligence, and (6) loss of consortium against various individual defendants. Defendants named on certain of the state law counts included two adult daughters of his deceased wife and his wife's  treating physician at the nursing home.  Separate counts named the nursing home itself on state law claims of vicarious liability.  Count IX of the petition alleged a claim under the federal civil rights statute, 42 U.S.C. Section 1983, against the state prosecutor in the criminal case.  In July 2016, the prosecutor, Susan Krisko, removed the case to federal court and filed a motion for summary judgment.  

Continue reading

October 10, 2016 in Advance Directives/End-of-Life, Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (2)

Thursday, September 29, 2016

More on the Reg Change Regarding Pre-Dispute Arbitration Clauses for Nursing Homes

I blogged yesterday about the new and updated regs for nursing homes and highlighted a few changes. One that is getting attention is the reg regarding pre-dispute arbitration clauses, mentioned in yesterday's post. The NY Times ran an article, U.S. to Bar Arbitration Clauses in Nursing Home Contracts offers some examples of individuals who were injured but not able to seek redress in the courts.   The article notes that this is the first significant revision to the FNHRA regs in a while, and also another federal agency moving to limit the use of arbitration clauses. "It is the most significant overhaul of the agency’s rules governing federal funding of long-term care facilities in more than two decades...And the new rule is the latest effort by the Obama administration to rein in arbitration’s parallel system of justice that was quietly built over more than a decade...In May, the Consumer Financial Protection Bureau, the nation’s consumer watchdog, unveiled the draft of a rule that would prevent credit card companies and other financial firms from using arbitration clauses that bar consumers from banding together in a class-action lawsuit." The article also references prior stories by the Times that focused on arbitration, the links to which are available at the end of the story.

September 29, 2016 in Consumer Information, Crimes, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Tuesday, September 27, 2016

Kindred Health Care Inc. Hit With Sanctions for Failure to Comply with Federal Settlement Terms on Hospice Care

Kindred Healthcare Inc., the nation's largest post-acute care provider (after acquiring Gentiva Healthcare in 2015) recently paid more than $3 million to the federal government as sanctions for inaccurate billing practices under Medicare for hospice services.  That may not sound like a lot of money in this day and age of Medicare and Medicaid fraud cases, right?  After all, North American Health Care Inc. reportedly settled a false claims case with the Department of Justice earlier this month in a rehabilitation services investigation by agreeing to pay $28 million

But, the Kindred Health Care sanction is actually a penalty for failing to comply with the terms of a previous multimillion dollar settlement by the feds with Gentiva.  As part of that settlement, the company and its successors agreed to comply with a Corporate Integrity Agreement (CIA).  From the Office of Inspector General, Department of Health and Human Services press release:

It is the largest penalty for violations of a CIA to date, the Office of Inspector General (OIG) said.

 

The record penalty resulted from Kindred's failure to correct improper billing practices in the fourth year of the five-year agreement. OIG made several unannounced site visits to Kindred facilities and found ongoing violations. "This penalty should send a signal to providers that failure to implement these requirements will have serious consequences," Mr. Levinson said. "We will continue to closely monitor Kindred's compliance with the CIA."

 

OIG negotiates CIAs with Medicare providers who have settled allegations of violating the False Claims Act. Providers agree to a number of corrective actions, including outside scrutiny of billing practices. In exchange, OIG agrees not to seek to exclude providers from participating in Medicare, Medicaid, or other Federal health care programs. CIAs typically last five years.

The post-acute care world -- which includes hospice, nursing homes, rehabilitation and home care -- is a tough marketplace.  According to a McKnight News report, Kindred is also closing some 18 sites as "underperforming."  For more on Kindred's operations, including its explanation of the penalty as tied to pre-acquisition practices of Gentiva, see this article in Modern Healthcare, "Kindred Pays Feds Largest Penalty Ever Recorded for Integrity Agreement Violations."

September 27, 2016 in Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Monday, August 29, 2016

Where's the Beef? One University of Arizona Professor Apparently Knew....

We often report on crimes against older adults on this blog, but last week an 80-year-old former University of Arizona professor pleaded guilty to theft of more than $80,000 from  his employer. How did he accomplish that?  

The animal sciences professor was in charge of the land-grant university's "Meat Store" in Tucson and was charged with diverting thousands of dollars in proceeds from sales of meat into his own bank accounts. John Marchello worked for U of A for more than 50 years, and retired just days before his indictment in 2015. Indeed, I attended U of A many moons ago, and as a former 4-Her who took a few Ag Sciences courses along the way, I probably even took a "meats lab" course from him.  

Talk about alternative "long-term care" planning. Sadly, Marchello is scheduled to be sentenced in November and faces a potential sentence between one and three years for the Class 4 felony.

There is also a civil suit pending, alleging more than $200,000 in theft.  For more, see Longtime UA Professor Pleads Guilty.

 

August 29, 2016 in Crimes, Retirement, State Cases | Permalink | Comments (0)

Friday, August 26, 2016

The CNA Conundrum: Background Checks, Continuing Education & Licensure

The long-term care industry depends hugely on the services of "nursing assistants," also known as NAs, who provide basic but important care for residents or patients under the direction of nursing staff (who, in turn, are usually Licensed Practical Nurses or Registered Nurses). As the U.S.Department of Labor describes, NAs typically perform duties such as changing linens, feeding, bathing, dressing, and grooming of individuals. They may also transfer or transport residents and patients. Employers may use other job titles for NAs, such as nursing care attendants, nursing aides, and nursing attendants. However, the Department of Labor makes a distinction between NAs and other key players in long-term care, including "home health aides," "orderlies," "personal care aides" and "psychiatric aides." 

According to DOL statistics, the top employers of NAs include skilled nursing facilities (37% of NAs), continuing care retirement communities and assisted living facilities (together employing some 18% of NAs), and hospitals and home care agencies, which each employ about 6% of the NA workforce.  

For many years, states have offered licensing for nursing assistants.  The designation of CNA or "certified nursing assistant" meant that the nursing assistant had satisfied a minimum educational standard and had successfully passed a state exam.  As another key protection for vulnerable consumers, CNAs had to pass background checks, involving fingerprints and criminal history searches.

In Arizona, however, now I'm hearing a new label:  LNAs or Licensed Nursing Assistants.  The Arizona Board of Nursing continues to license CNAs, but now it is offers the designation of Licensed Nursing Assistants. What's the difference?  Frankly, not much, at least in terms of skill levels. Then why the change?

In Arizona, CNAs and LNAs have the same educational requirements, and must pass the same test and satisfy the same work credits. But, as of July 1, 2016, individuals seeking the LNA designation will be required to pay the state a fee to cover their mandatory background checks, including fingerprinting.  CNAs, however, will no longer be required to undergo background checks or fingerprinting.  

What is this about? Arizona is trying to save money.  It seems that state and federal laws prohibit state authorities from mandating that CNA candidates cover the cost for their own background checks.  In other words, if the candidate showed financial need in the application process, the state was required to pick up the costs for any background checks. Let's remember that the average wages of CNAs are relatively low -- the national mean is less than $30,000 per year. Presumably that is the reason behind the older laws limiting how much states can charge CNA applicants for their own background checks. By creating a new designation, LNA, Arizona takes the position it avoids the federal restriction.

But, what about the public?  Will the public understand that CNAs licensed after July 1, 2016 will not be subject to fingerprinting and background checks?   Responsible employers would, presumably, require such checks or limit their hires to LNAs.   At least, let's hope so.

I also learned that apparently Arizona does not require "continuing" education for either CNAs or LNAs.  (Again, you would hope that responsible employers would either provide or require such education.)  Arizona used to require a minimum of 120 hours every 2 years of what are, in essence, "job credits" -- i.e., proof of employment in an NA position -- to maintain the CNA license.  Recently, however, Arizona diluted that requirement to just 8 hours every two years for both CNAs and LNAs.  

Arizona does have a useful website where current or prospective employers, including families, can check the licensing status of CNAs or LNAs. The website is searchable by name or license number, and shows whether an applicant has failed the entrance exam, or has withdrawn an application or lost the license.  

Are other states creating this LNA designation as a "workaround" (loophole?) for financing background checks for CNAs?  Let us know!  

August 26, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, August 23, 2016

Philadelphia to Host the 27th Annual National Adult Protective Service Assoc Conference, August 29-31

Recently I received an email reminder from ElderLawGuy Jeff Marshall that Pennsylvania is hosting this year’s National Adult Protective Service Association (NAPSA) Conference from August 29 through 31 at the Loews Hotel in Philadelphia. The conference will feature many of the nation’s leading adult protective services professionals who will share their ideas, expertise and creative approaches, with workshop sessions for brainstorming application of new ideas. More details, including information about CLE credits, are available here. Immediately following the NAPSA conference, in the same Philadelphia location, is the 7th Annual Summit on Elder Financial Exploitation, on September 1.

These national meetings come at a time when elder abuse and elder justice have been the subject of growing attention in Pennsylvania, as well as around the nation.  It seems fitting that Philadelphia is hosting the national meeting, as it follows a months-long Task Force analysis of the role of Pennsylvania court systems in helping to protect at-risk seniors or other vulnerable adults.  

Thanks, Jeff!  

August 23, 2016 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, August 18, 2016

A Day in the Life of Phone Scams

I'm house-sitting in Phoenix this summer, and I've been gobsmacked, to use a good British word, to realize exactly how many unwanted callers manage to circumvent the home's do-not-call registrations.  Even worse is to realize how many of the calls expressly target senior consumers.

One of the most annoying call begins, "Hello Mrs. XXXX, I see that your physician has prescribed Xarelto for you, and I'm calling to let you know that we can offer you special pricing, at less than half what you are currently paying....."

Suffice it to say that this was a scam.  No physician had shared any prescription information about the homeowner in question.  But for the older consumer worried about costs, I can just imagine how effective the scammer's "guess" could be, as the scam focused on a very expensive and important drug for many older patients.  They were after credit card information.  I bet the boilerroom for this operation has a whole list of popular "senior" prescription drugs. 

Another frequent caller poses as the IRS and claims there is a deficiency on some tax payment that can be "handled" over the phone. Again, a scam -- and certainly one that could frighten many people.  In a single week, I intercepted 7 such calls, despite each time attempting to make it clear I knew this was a scam, and then blocking the number.  

Perhaps the most frequent callers are those trying to market "solar" systems, guaranteeing tax credits or rebates  -- and I guess that one just goes with the territory when you are living in sun-drenched Arizona.

August 18, 2016 in Cognitive Impairment, Consumer Information, Crimes, Ethical Issues | Permalink | Comments (0)

Monday, August 15, 2016

ALF Residents with Agression

The current issue of the Journal of Applied Gerontology features an article, Resident Aggression and Abuse in Assisted Living. The full article is available as an html here or a pdf here.

The introduction explains: "The purpose of this article is to estimate the prevalence and identify risk factors of engaging in resident aggression and abuse in assisted living facilities. Measuring the prevalence of resident aggression and abuse in assisted living facilities is needed to better understand the scope of the problem. Identifying strategies to mitigate and prevent resident aggression and abuse can help to improve social well-being and progress toward achieving public health objectives."  The authors conclude that

Prior studies have found evidence of resident abuse in nursing homes (Pillemer et al., 2011; Pillemer & Finkelhor, 1988; Pillemer & Moore, 1989). Our findings build on this knowledge base with nationally representative estimates of resident aggression and abuse in assisted living settings. In conclusion, this study provides evidence of the prevalence of resident aggression and abuse in assisted living facilities. Given the rising prevalence of dementia and aging population in the United States, resident aggression and abuse is a growing problem that warrants more attention from policy makers, researchers, and long-term care providers. Furthermore, dementia and SMI were significant risk factors for physical, verbal, and sexual abuse in residential care settings. Future research is needed to develop better methods for identifying residents at greater risk of engaging in abuse as well as supporting ongoing training and prevention efforts to mitigate this risk.

 

August 15, 2016 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing | Permalink | Comments (0)

Wednesday, August 10, 2016

Integrating Criminal Justice Standards with Professional Conduct Rules for Attorneys Representing Clients with a Mental Health Disability

During the 2016 Annual Meeting of the American Bar Association that concluded on August 9 in San Francisco, the ABA adopted "the black letter of the ABA Standards for Criminal Justice: Criminal Justice Mental Health Standards, chapter seven of the ABA Standards for Criminal Justice, dated August 2016, to supplant the Third Edition (August 1984) of the ABA Criminal Justice Mental Health Standards." 

Here is a link to the Full Resolution

Here is a link to further details and a report: Proposed resolution and report

Significantly, the revised ABA standard expressly requires criminal defense lawyers to consider the implications of ABA Model Rule of Professional Conduct 1.14 (for representation of a client with diminished capacity), in determining whether, when and how much information can be shared about the client's disability with family members or others during the course of representation.  My initial reaction is this integration of the two concepts may actually broaden the defense attorney's authority to share information, rather than restrict it.  

Any thoughts among our readers? My special thanks to my colleague Professor Laurel Terry at Dickinson Law, guru of all matters related to professional conduct rules for attorneys and judges, for sharing the revised standard. 

August 10, 2016 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Ethical Issues | Permalink | Comments (0)

Wednesday, August 3, 2016

Prisoners with Disabilities

We have blogged on several occasions about the graying of prisons. What about individuals in prisons who have, or develop disabilities? The Center for American Progress issued a report, Disabled Behind Bars: The Mass Incarceration of People with Disabilities in America's Jails & Prisons.   Here is an excerpt from the introduction

People with disabilities are thus dramatically overrepresented in the nation’s prisons and jails today. According to the Bureau of Justice Statistics, people behind bars in state and federal prisons are nearly three times as likely to report having a disability as the nonincarcerated population, those in jails are more than four times as likely. Cognitive disabilities—such as Down syndrome, autism, dementia, intellectual disabilities, and learning disorders—are among the most commonly reported: Prison inmates are four times as likely and jail inmates more than six times as likely to report a cognitive disability than the general population. People with mental health conditions comprise a large proportion of those behind bars, as well. The Bureau of Justice Statistics reports that fully 1 in 5 prison inmates have a serious mental illness. (Citations omitted).

The full report is available here.

 

August 3, 2016 in Consumer Information, Crimes, Current Affairs | Permalink | Comments (0)

Monday, August 1, 2016

New Scholarship: Can Adults, including Older Adults, Give Advance Consent to Sexual Relations?

As some readers may recall, last year we reported on the emotionally fraught criminal trial in Iowa for a former state legislator, who was ultimately acquitted of sexual assault of his wife.  The allegations arose in the context of alleged sexual relations with his wife after she was admitted to a nursing home.  

Assistant Professor of Law Alexander A. Boni-Saenz, from Chicago Kent College of Law, has drawn upon this case and others to further explore his proposals for "advance directives" whereby adults could specify their decisions in advance of incapacity.  Alex's latest article, Sexual Advance Directives, forthcoming in the Alabama Law Review, is available on SSRN here.   From the abstract:

Can one consent to sex in advance? Scholars have neglected the temporal dimension of sexual consent, and this theoretical gap has significant practical implications. With the aging of the population, more and more people will be living for extended periods of time with cognitive impairments that deprive them of the legal capacity to consent to sex. However, they may still manifest sexual desire, so consenting prospectively to sex in this context serves several purposes. These include protecting long-term sexual partners from prosecution by the state, ensuring sexually fulfilled lives for their future disabled selves, or preserving important sexual identities or relationships. The law currently provides a device for prospective decision-making in the face of incapacity: the advance directive.

 

The central claim of this article is that the law should recognize sexual advance directives. In other words, people facing both chronic conditions that threaten their legal capacity to make decisions and institutional care that threatens sexual self-determination should be able to consent prospectively to sex or empower an agent to make decisions about sex on their behalf. To justify this claim, the Article introduces a novel theory of sexual consent—the consensus of consents—that diffuses the longstanding philosophical debates over whether advance directives should be legally enforceable. With this normative foundation, the Article then draws on insights from criminal law, fiduciary law, and the law of wills to fashion a workable regime of sexual advance directives that adequately protects individuals from the risk of sexual abuse. 

Alex is a thoughtful writer on challenging topics, often looking at the intersection of health care, estate law and elder law planning.

August 1, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues | Permalink | Comments (1)