Friday, April 17, 2015

Day 7 Report from the Iowa Sexual Assault/Dementia Trial

On  April 17, the trial continued in State of Iowa v. Henry Rayhons.  The evidence included:

  • Testimony by a Des Moines geriatrician, Robert Bender: Testified as an expert witness for the defense to explain that Alzheimer's patients often retain sexual desire, even after losing other brain functions such as speech or memory, and can make a "meaningful decision" to be intimate with the person.  According to the Des Moines Register, Dr. Bender testified that it would be a "medical mistake" for a doctor to draw an arbitrary line between allowing a patient to kiss and hug but not allowing her to have sex, unless there was evidence the patient was being harmed by the activity.

Further, the defendant Henry Rayhons testified, giving his memory of key events, stating he did not have "sexual intercourse" with his wife on the night in question, while also describing what he means by their "playing."  A  video segment of his trial testimony is available here. Additional print media coverage of the final day of testimony on Friday is available here

Additional audio-recording evidence was reportedly presented, from a care conference between Henry, his wife's daughters, and the nursing home staff at which the prosecution alleges Mr. Rayhons was advised of the doctor's conclusion about his wife's inability to consent to sexual activity.  Both parties rested their cases on Friday, and according to media reports, the trial is scheduled to resume on Monday, April 27, with closing arguments by both the prosecution and defense. 

As additional media reports from the trial today become available, I will supplement this post. 

Additional, more comprehensive coverage of the testimony of Henry Rayhons is provided by Bloomburg News' Brian Gruley in Sex with your Wife or Rape? Husband of Alzheimer's Patient Takes the Stand.

In addition, Bloomberg News has "Let's Talk About Sex ... in Nursing Homes," an infographic that charts state policies on sexual rights of nursing home residents and other relevant demographics on population aging.

April 17, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)

Thursday, April 16, 2015

Day 6 Report from Iowa Sexual Assault-Dementia Trial

April 16, 2015 was the sixth day of trial in the criminal prosecution for sexual abuse in the third degree, in State of Iowa v. Henry Rayhons.  The prosecution completed its case-in-chief, the trial judge denied defense counsel's motion for judgment of acquittal, and the defense counsel called several witnesses for Mr. Rayhons.  Today's evidence, as described by various media sources linked below, included:

  • Final Witness for the Prosecution:  The state called a state criminologist to explain testing on various items of physical evidence,from the night in question.  According to media coverage of the trial, the criminologist  testified that "she did not find any seminal fluid in the sexual assault kit [on swabs from Donna taken on the night in question] but says that is not uncommon." She testified there "appeared to be a seminal fluid stain in the inside of Donna’s underwear," the same underwear that was alleged to have been deposited in a laundry hamper by the defendant on the night in question. Tests on the stain "detected DNA from [the defendant]."
  • The First Witness for the Defense, the "Roommate:" The woman who shared Donna Rayhons' room in the nursing home the night on question, was reported as testifying that  "Donna had become a good friend. Someone who she could count on to go to activities and speak with."  She is reported to have testified she’s "uncomfortable talking about that day but says she does remember something happening, but only assumed that it was sex on the other side of the curtain."
  • A Clinical Physician (and Assistant Professor of Medicine from the University of Iowa):  The defendant's expert witness is reported as having given opinion testimony to the effect that based on review of evidence, ""I believe Donna would've been more likely to give consent than not."
  • Patricia Wright, a Daughter of Donna Rayhons (called by the Defense): Reported as saying her mother "lit up" whenever Henry Rayhons entered the room.
  • The Son and Daughter of Henry Rayhons:  Describing their relationship with their father, their  father's relationship with Donna, and their own respect for Donna.

As described by the Globe Gazette, there appeared to be especially poignant testimony from one of Donna's daughters, Patricia: 

In July, Donna Lou Rayhons asked her daughter, Patricia Wright, if she had seen Henry. “He can’t come anymore,” Wright remembered her mother saying.

 

“Mom was talking very softly. Much more softly than she usually did and she kept putting her hand to her head. My impression was she was very sad,” Wright told the jury. “Then she would say things like ‘I love him. I love my girls. I love him. I love my girls.’ And she would say that kind of repeatedly.”

As more reports are published from the 6th day of the Rayhons trial, I will try to capture them here with a supplement to this Blog Post. 

UPDATE: Here is a link to a more detailed account of the trial testimony on Thursday from The Des Moines Register, explaining that Donna Rayhons had three daughters, including Patricia, from a prior marriage.  One of the other daughters testified for the prosecution.

April 16, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 14, 2015

Day 5 Report on Iowa Sexual Assault-Dementia Trial

UPDATE:  The jury trial of  State of Iowa v. Henry Rayhons is scheduled to continue on Wednesday, April 15.  There were no proceedings on Tuesday, April 14.  In the meantime, here are additional relevant discussions, from several sources:

QUOTATION OF THE DAY

"So much of aging and so much of being in a long-term care facility is about loss, loss of independence, loss of friends, loss of ability to use your body. Why would we want to diminish that?"

DANIEL REINGOLD,   chief executive of the Hebrew Home in the Bronx, which pioneered a   "sexual rights policy" for residents in 1995.

 

  • From the Washington PostWhen the Mind Falters, is Sex A Choice? by Marie-Therese Connolly, a thoughtful opinion piece written in 2009, discussing several challenging scenarios, some involving more casual relationships, or arguably more "extreme" facts, such as a "Wisconsin minister who regularly came to the nursing home to have sex with his comatose wife."  

 

I'll supplement the "Trial Reports" as additional information becomes available. Check back on Wednesday.

April 14, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, April 13, 2015

Day 4 Report on Iowa Sexual Assault-Dementia Trial

On April 13, the fourth day of the trial of State of Iowa v. Henry Rayhons, the prosecution continued presenting evidence in the state's case-in-chief.  Here are links to news sources covering the day's events, including:

  • From KIMT.com: Testimony of a physician from the care facility regarding his opinion regarding  Donna's mental capacity, plus a description of video surveillance of the husband on the night in question, in which "you can see Donna being redirected to her room by Henry, after she had wandered through the halls.  Nearly  30 minutes later, Henry is seen leaving the room [and depositing her underwear in a hamper]."
  • From KIMT's Twitter feed: Excerpts of testimony from nurses and several staff members at the care center, including a report that a Care Center physician testified that "Just like an infant, a person can respond to stimuli. That doesn't involve any consent given."
  • From the Des Moines Register: Reporting that a total of three doctors testified today and that "Dr. John Brady, who is medical director of Concord Care Center, testified that Donna Rayhons had severe dementia caused by Alzheimer's disease. He said any positive reaction to her husband's affectionate advances could be termed a 'primal response,' not a conscious decision to reciprocate."

Further, from the Des Moines Register, an account of the testimony of one of the physicians, a neurologist: "One of the doctors, neurologist Alireza Yarahmadi, disputed any notion that such an Alzheimer's patient could vary greatly in her ability to understand what was going on around her. 'When they're severe, they're going to stay severe,' Yarahmadi testified." 

The trial is expected to continue on Wednesday, April 15 (corrected, after learning no proceedings on Tuesday).

April 13, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, April 10, 2015

Day 3 Report on Iowa Sexual Assault-Dementia Trial

On April 10, the third day of the trial of State of Iowa v. Henry Rayhons, the prosecution offered its first witnesses.  According to news sources, the evidence included:

  • Testimony by an adult daughter of the alleged victim, the defendant's wife. She is reported as saying that she did not disapprove of the 2007 marriage between her widowed mother and the defendant, but that "in the years after the wedding, her mother began showing troubling signs of mental decline."  By the spring 0f 2014, her mother appeared "very confused" and the daughter, who runs an agency for people with intellectual disabilities, observed disturbing behavior, including incidents of her mother's inappropriate and inadequate clothing, inability to use silverware, and an attempt to use a toilet to wash her hands.  At a meeting a few weeks after her mother was moved from the couple's home to a care facility, the "doctor told the family," including the defendant, that Donna Rayhons "was no longer capable of consenting to sex."  She is reported as testifying she did not remember Rayhons' exact response, but that "he indicated it wouldn't be a problem."
  • Testimony of a doctor who met with Donna Rayhons in March 2014 He reportedly testified she was unable to answer "basic questions, including the names of her daughters." According to one news report, he testified that "it wouldn't be likely that a 78-year-old suffering from dementia would be able to consent to sex."
  • Testimony of a social worker from the care center where Donna Rayhons was a resident. According to news reports, the social worker testified about a staff meeting with the family in May, saying that she "wrote up a one-page list of suggestions, including limits on outside activities, and had Donna Rayhon's doctor go over it beforehand." At the bottom of the document, the social worker reportedly wrote: "Given Donna's cognitive state, do you feel she was able to give consent to any sexual activity?"  And according to the news reports, it was the doctor who wrote, "No." She is reported as testifying that she'd "never written such a statement for a family in 18 years on the job," but that she also said she never had a spouse seem to want to continue having sexual contact with a resident who was severely cognitively impaired." According to the Des Moines Register, on cross examination, the social worker said that no one at the meeting explained to Henry Rayhons what sexual activity meant, and that "she never saw any evidence that Rayhons harmed his wife, or that she was afraid of him or angry with him." She was reported as saying his wife was "always pleased to see Henry," and were very affectionate.

The testimony on Day 3 appears to raise interesting questions about the admissibility and effect of opinion testimony regarding the mental capacity of the alleged victim, potentially bringing into play prior Iowa case law.

Continue reading

April 10, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s | Permalink | Comments (0) | TrackBack (0)

Third Circuit Affirms Geriatrician's Conviction for Violation of Anti-Kickback Law

ElderLawGuy Jeff Marshall alerted us to this week's ruling by the Third Circuit Court of Appeals, affirming the conviction of Eugene Goldman, M.D. for several counts of taking "kickbacks" for referral of Medicare and Medicaid patients for hospice services.  Dr. Goldman's sentence of 51 months, followed by three years of supervised release during which he is barred from practicing medicine, was affirmed.  The facts, as set forth in the opinion, are interesting:

"Goldman had a geriatric medicine practice in Northeast Philadelphia. In December 2000, he secured the position of Medical Director of Home Care Hospice ('HCH'). Alex Pugman served as Director of HCH, and his wife, Svetlana Ganetsky, was the Development Executive, responsible for marketing HCH to doctors and other healthcare professionals. According to his contract, Goldman was responsible for quality assurance, consultations, and the occasional meeting. In reality, his job was to refer patients to HCH.

 

Goldman was paid for the number of patients he referred to HCH and the length of their stay. Early in his relationship with HCH, Goldman was paid $200 per referral. By 2011, he received $400 per referral, with an additional $150 for each patient who stayed longer than a month. Ganetsky paid Goldman each month by check. Between 2002 and 2012, Goldman referred more than 400 Medicare patients to HCH and received approximately $310,000 in return.

 

In 2006 the FBI and Department of Health & Human Services began investigating HCH for Medicare fraud. The FBI followed up in 2008 by obtaining a search warrant and seizing over 500 boxes of documents and information from HCH’s servers. Shortly after the raid, Ganetsky and Pugman approached the FBI and agreed to cooperate in the investigation. Ganetsky then recorded several meetings at which she paid Goldman for his referrals. Ganetsky made these payments with funds drawn from an account opened by the FBI for the investigation."

Continue reading

April 10, 2015 in Crimes, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Web-Cameras in Nursing Homes: Do They Invade Privacy (and Whose Privacy or Interests are Paramount)?

In Philadelphia, the decision of a nursing home to remove the compact video camera attached to a computer owned by a 59 year-old disabled resident has triggered a debate about legal issues associated with the resident's broadcasts.  On the one hand, the resident, who had lost the ability to speak and who had limited mobility associated with cerebral palsy, used the camera to facilitate communications with his family.  But, to the nursing home:

... where he has lived for decades, the camera was a watchful eye, scrutinizing its staff's every move and capturing images of people whose privacy they're responsible to protect.

 

Stu's computer equipment was abruptly removed in mid-December, and he was asked to write a note defending his access to it. Family members called it a "cruel hurdle" for a man with limited mobility who selects each letter by pushing the back of his head against a switch.

 

In another note pleading for his webcam to be returned, Stu, 59, wrote: "WE ARE NOT SPYING ON ANYBODY!" The Sandersons unwittingly became part of a splintered national debate about the role of video cameras in long-term care facilities.

Additional coverage, outlining the delicate case, and suggesting broader issues, is available here and here.  Part of the background for the current issues includes a 2012 investigation of suspected abuse of a resident in a different nursing home in Pennsylvania, where a web camera reportedly led to criminal charges against nursing home employees.

April 10, 2015 in Crimes, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, April 9, 2015

Day 2 Report on Iowa Sexual Assault-Dementia Trial

During the second day of State of Iowa v. Henry Rayhons, the court seated a jury of 6 men and 8 women.  According to early news reports, during voir dire both the prosecution and the defense gave hints of their theories of the case, where the 79-year-old former state legislator is accused of sexual abuse on his wife, who had Alzheimer's.  The Des Moines Register reported:

Several potential jurors indicated they'd read or seen some of the extensive news coverage of the unusual case. [Prosecutor] Krisko told them that if they are picked to hear the case, they will be expected to set aside concerns about how their decision would be viewed or what punishment it might bring to the defendant. "We're not here about making public policy. We're here about one incident — one man, one woman," she said.

 

On Thursday afternoon, defense lawyer Joel Yunek talked extensively to potential jurors about the issues of dementia and sex among the elderly. Yunek noted that his mother has Alzheimer's disease, and he asked how many of the potential jurors had someone in their families with the disease or other types of dementia. Many raised their hands. The defense lawyer expressed sympathy as he led them through discussion of the effects.

 

When one man recounted how a relative with dementia has good and bad periods, Yunek said: "It's a baffling disease, isn't it?" "Yes, sir," the man replied.

Later on the same day, the two attorneys gave their opening statements, as reported here.

The trial is expected to last about a week.

April 9, 2015 in Cognitive Impairment, Crimes | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 8, 2015

Day 1 Report of Iowa Sexual Assault-Dementia Trial

Day one of the sexual abuse trial of State of Iowa v. Henry Rayhons was Wednesday, April 8.  News report of the first day here.  Coverage of pretrial motions here, with the husband's lawyer describing potential  expert testimony about how individuals with Alzheimer's could be capable of consent, while the prosecution argues consent is impossible as a matter of law, making an analogy to sexual contact with a minor or an individual who was unconscious or passed out.  More background here

April 8, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Sad Trial Begins in Iowa for Husband Charged with Sexual Abuse of Wife with Dementia

Today, April 8, is the scheduled day for jury selection to begin for the trial of State of Iowa v. Henry Rayhons.  We've written about the charges here and here, but to summarize, Mr. Rayhons, now age 79, was charged last year with "sexual abuse" of his wife, Donna Rayhons (78 at the time), who was residing in a nursing home with Alzheimer's.  Iowa law has several different ways in which a "sexual act without consent" between a "husband and wife" can constitute "sexual abuse in the third degree."  See Iowa Code Section 709.4(2).

Here, because the husband and wife were not "cohabitating," a conviction would appear to depend on the state's ability to prove that the sex act was with a person suffering from a "mental defect or incapacity which precludes giving consent." It appears the state takes the position that "consent" was impossible because Mrs. Rayhons had been diagnosed with a mental defect, the advanced stages of Alzheimer's.  Further, it appears the state expects to prove that her husband was aware of the diagnosis, and further, that at some point before the evening in question, he "agreed" she was incapable of giving consent because of her condition.  But at the core, isn't there still an essential question about whether, assuming the state can prove those statutory elements, the law is intended to prevent a married couple from having "consensual" relations because one partner has Alzheimer's? 

There apparently was no evidence of physical or emotional damage to Mrs. Rayhons, including no evidence of cries for help or protestations on her part. It appears there will be testimony about the close and loving relationship the couple had before the night in question.   It will be interesting -- and sad -- to hear whether there is evidence of a "sexual act."  

The Washington Post's Sarah Kaplan has drawn together a history on the case to this point, including details first reported by Bryan Gruley for Bloomberg News.  At one point the prosecution tried to get a change of venue for the trial -- a very unusual request from a prosecutor -- which the trial court denied. 

I've been hearing from a lot of folks lately about this case, including several medical professionals. I think that after the charges were first announced in August 2014, many people expected the case to quietly disappear, especially as Mrs. Rayhons has passed away, and her husband, then a state legislator, had retired from office. 

Yesterday, I had the interesting experience of being interviewed for a KABC radio show in Los Angeles by "Dr. Drew." It was pretty clear that with his background, board certified in internal medicine and a clinical professor of psychiatry at USC, Dr. Drew Pinsky was troubled by the possibility that a medical diagnosis could, without more, be treated as prohibiting legally effective consent to sexual relations. (A guardian was appointed for Mrs. Rayhons, but those proceedings were begun after the night in question.)  As Dr. Drew commented during the radio show, even in advanced dementia, there may be core functions that a person continues to be able to enjoy and therefore seek, including eating, drinking and ... intimacy.   

April 8, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, April 6, 2015

Oregon A.G. Urges Lawmakers to Authorize Special Prosecutor for Elder Abuse

From KTVZ.COM news in Oregon, a report that the state's top prosecutor, joined by citizen groups, is calling for appointment (and funding) of a special prosecutor to pursue elder abuse cases:

"Ten organizations wrote letters or testified Monday before the Subcommittee on Public Safety of the Oregon Legislature’s Committee on Ways and Means in support of funding for the state's first statewide Elder Abuse Resource Prosecutor. The position would be housed within the Oregon Department of Justice’s Criminal Division, and would increase Oregon’s capacity to stop elder financial and physical abuse by providing training, technical assistance and legal expertise to district attorneys, law enforcement and others who work with seniors. 

 

If funded, Oregon would be the second state in the country with a statewide prosecutor devoted to elder abuse.

 

'Oregon has specific laws that criminalize the abuse, neglect and exploitation of older adults. However, these cases can be difficult to prosecute.  Many involve the victimization of older adults by family members or others with whom they have an ongoing relationship. Victims may also be slow to recognize and report abuse, and reluctant to cooperate with criminal justice professionals,' said Attorney General Ellen Rosenblum.

 

Elders in Action, the Office of the Long-term Care Ombudsman, AARP, Legal Aid Services of Oregon, the Oregon State Bar, Alzheimer’s Association, the Oregon Department of Veteran Affairs, the Governor’s Commission on Senior Services, Campaign for Oregon’s Seniors & People with Disabilities, and the Residential Facilities Advisory Committee all voiced their support for the new position."

If this position would be the "second" in the country, which state already has a special prosecutor for elder abuse?

April 6, 2015 in Crimes, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 31, 2015

April Fools? (Unfortunately, Not So)

When I ask real or prospective law students what television programs they watch, I often get two answers:  "The Big Bang" or "Suits."  I have to admit I love to use Big Bang's "roommate contract" for my contracts class examples.  But, Suits is a bit more problematic -- until now.

The key character in Suits is "Mike Ross," a college dropout, and the back story is that he's brilliant, with a superb memory, and stumbled into being a "lawyer" after a life of petty crime that somehow included taking the LSAT exam for others.  I would like to think that the appeal of the program is the law, but I am realistic enough to suspect the "charm" is the idea that you can succeed in law without knowing the law, indeed without being a "real" lawyer. A little fantasy, right?

Now we have a report -- and I wish this wasn't true -- from my own state of Pennsylvania, of a 45-year-old woman who allegedly posed for 10 years as an estate planning lawyer, even making partner in a law firm, who may have faked her attendance at a specific law school.  In fact, she may have faked everything that should have happened afterward, such as being licensed to practice law.  

According to news reports, the individual has been charged with crimes.  To follow her defense, and the developing details, see here, here, and here

March 31, 2015 in Crimes, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, March 27, 2015

NOT Elder Law, But It Is CRIMINAL Law

As reported in the ABA Journal, "A New Jersey lawyer has been sentenced for 10 years in prison for her part in a scheme to steal $3.8 million from 16 elderly victims:"

Prosecutors say the group took control of the finances of their victims by forging a power of attorney or obtaining one under false pretenses. They then added their names to the victims’ bank accounts and transferred the victims’ funds into accounts they controlled. As part of a plea deal with prosecutors, Lieberman has agreed to pay $3 million in restitution and testify against her co-defendants. 

Here are more details.  And here. And here. And here And according to one news source, the attorney actually served on the New Jersey Supreme Court's Ethics Committee while already engaged in misusing client funds.  Hat tip to retired New York Attorney Karen Miller, now living in Florida, for sharing a link to the ABA Journal article on this sad set of facts.

March 27, 2015 in Crimes, Current Affairs, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, March 26, 2015

Pennsylvania's New Pro Rep Rules Target Financial Accountability for Lawyers, Including Restrictions re Sales of "Investment Products"

New rules supplementing Pennsylvania's Rules for Professional Conduct, adopted by the Pennsylvania Supreme Court in late 2014, are intended to require greater accountability by lawyers for handling of client funds, including sums temporarily deposited in IOLTA accounts.  The rules became effective on March 1, 2015. As we reported on this blog earlier, including here and here, the changes were an important response to disturbing instances of individual attorneys who stole client funds -- in the aggregate amounting to millions of dollars -- that they had purported to "invest" for the clients. 

On March 25, I had the interesting task of serving as a moderator for a meeting hosted by the Elder Law Section of the Pennsylvania Bar Association to explore the implications of the new rules.  Panelists included attorneys Stephen K. Todd and David Fitzsimons who have each served on the Pennsylvania Disciplinary Board. They were involved in either the drafting or implementation stages for the new rules. Also helping to set the stage were two additional panelists, practicing elder law and estate planning attorneys, Linda Anderson from the east side of Pennsylvania and John Payne from the west side of the state. 

The audience included attorneys from a range of practice areas around the state, as well as Pennsylvania Supreme Court Justice Debra Todd.  The dialogue following the panelists' opening remarks was robust, demonstrating support for the increased standards for record-keeping and safe-keeping of property, as well as enhanced powers for the Disciplinary Board to investigate suspected misconduct and demand accountability and disciplinary compliance. 

Many of the comments and questions focused on a single new rule, reportedly the first in the nation, that addresses the role of lawyers with respect to "investment products," defined to include annuity contracts, life insurance contracts, commodities, investment funds, trust funds or securities. 

The key provisions of new Rule 5.8 provide:

Continue reading

March 26, 2015 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 11, 2015

U.S. Department of Justice Launches Elder Justice Website

Julie Childs, Project Manager for the U.S. Department of Justice's Elder Justice Website shared with us the resources now available to researchers, students and advocates.  Some of the highlights:

Here, victims and family members will find information about how to report elder abuse and financial exploitation in all 50 states and territories. Simply enter your zipcode to find local resources to assist you.

Federal, State, and local prosecutors will find three different databases containing sample pleadings and statutes.

Researchers in the elder abuse field may access a database containing bibliographic information for thousands of elder abuse and financial exploitation articles and reviews.

Practitioners -- including professionals of all types who work with elder abuse and its consequences -- will find information about resources available to help them prevent elder abuse and assist those who have already been abused, neglected or exploited.

This website is intended to be a living and dynamic resource. It will be updated often to reflect changes in the law, add new sample documents, and provide news in the rapidly evolving elder justice field.

It will be interesting to watch this site develop. 

March 11, 2015 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Statutes/Regulations, Statistics | Permalink | Comments (1) | TrackBack (0)

Friday, March 6, 2015

Pennsylvania Bar Association Program on New Rules of Professional Conduct & Disciplinary Enforcement

On Wednesday, March 25, 2015 (1:30 to 3:30 p.m.), the Pennsylvania Bar Association (PBA)'s Elder Law Section is hosting a panel session at the annual PBA Section/Committee Day to discuss important changes in the Pennsylvania Rules of Professional Conduct and the Disciplinary Enforcement Rules. 

Several of the recent changes, including rules mandating greater oversight for trust accounts, timelier handling of complaints, and specific new prohibitions or restrictions on attorney involvement in marketing of "investment products," were a response, at least in part, to serious cases of attorney misconduct resulting in tragic financial losses for individuals.  In some instances the clients were older persons who entrusted large retirement assets to the care of a small number of attorneys. 

In planning the program, Elder Law Section Chair Jacqui Shafer commented that the program reflects the continuing commitment of the Bar and the Section to take affirmative steps to address and prevent misappropriation of funds from any client, including vulnerable seniors and their families.

Panelists include experienced private practitioners in elder law or estate planning practices and representatives of the Disciplinary Board and PBA's Legal Ethics and Professional Responsibilities Section.  Several participants were members of the Pennsylvania's recent Supreme Court Elder Law Task Force. 

Here is the link for more details on the program, including the link for required registration (free, including lunch).  The deadline for on-line registration is March 20.

March 6, 2015 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, February 26, 2015

The French "Bettencourt Affair" - A "Universal Story" on the Cover of the NYT

The New York Times  offers dramatic front page coverage of a criminal trial against ten defendants in France, accused of manipulation of Liliane Bettencourt, the 92 year-old heir of the L'Oreal cosmetics fortune.  The defendants include a "celebrity photographer" (and his "long-time companion"), a former wealth manager, and an 81-year-old notary "who certified, with misgivings, Mrs. Bettencourt's decision to make" the 67-year-old photographer her sole heir, cutting out her only daughter. 

Serious money is involved, with Forbes once estimating Mrs. Bettencourt's fortune at more than $40 billion.  She has been diagnosed with "dementia and moderately severe Alzheimer's."

The prosecutors said her advanced age, the beginnings of dementia and a daily medical regimen of 56 pills, including antidepressants, also invited exploitation. And investigators contend that the schemes were so widespread that they included a political scandal involving a former finance minister seeking cash for the 2007 presidential campaign of Nicolas Sarkozy.

 

Some of the house staff members risked their jobs to challenge her advisers and confidants, particularly a French society photographer who gained the largest share of her fortune. At one point, investigators estimated that share to be about a billion euros, or $1.13 billion, in gifts during 20 years of friendship ending in 2010.

 

“Liliane wanted to do things for me, to ease my life,” testified the photographer, François-Marie Banier, 67, who is facing the highest penalty of the defendants, three years in prison. “I refused things like a mansion. But she took it so poorly. It’s really hard to cross that extraordinary woman.”

For all the details, sadly familiar if you followed the Brooke Astor history of wealth and manipulation, about the trial that just ended before a panel of judges who will issue their verdict on May 28, read "The Case of L'Oreal Heiress, A Private World of Wealth Becomes Public."

February 26, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International | Permalink | Comments (0) | TrackBack (0)

Thursday, February 19, 2015

Should an Individual's "Vulnerability" be a Defining Criterion for Social Welfare Policy or Services?

Emory Law Professor Martha Fineman, long known for her feminist jurisprudence, has attracted increasing attention for her work on specific concepts of dependency and vulnerability.  Her 2008 analysis of vulnerability, rather than, for example, gender or race, as a tool to shape a more responsive state and a more egalitarian society, has been seminal.

Syracuse Law Professor Nina Kohn, in her latest work, "Vulnerability Theory and the Role of Government," notes the "attractiveness" of vulnerability theory, but pushes back against the growing reliance on it as a policy tool, using her own understanding of old-age related government services as the basis for comparison. She raises a serious concern about the potential for the current definition and focus on vulnerability to promote "unduly paternalistic laws." For example, Professor Kohn writes:

"Vulnerability theory as currently articulated would focus attention on maximizing safety and security without adequately considering the impact of potential laws and policies on individual autonomy, or how a sense of autonomy may actually contribute to an individual’s safety and security. This effect is particularly problematic in the context of evaluating laws that seek to protect individuals from entering into or maintaining personal relationships perceived to be unsavory, as is the case with many of the policies designed to protect older adults from abuse, neglect, and exploitation. This is because the autonomy being undermined is the autonomy of the person whom the state is trying to help; since undermining an individual’s autonomy can harm that person in both tangible and intangible ways, the state’s actions are prone to being at least partially counterproductive. Thus, vulnerability theory might be of greater prescriptive value if it distinguished between infringements on autonomy where the person whose autonomy is being sacrificed is the supposed beneficiary of the infringement and infringements on autonomy designed to benefit another."

Professor Kohn's article, published in the most recent issue of Yale Journal of Law and Feminism, uses recent changes in California law to demonstrate a framework for revision of the current theory of vulnerability, with a goal of identifying a "standards based approach" for specific government response.

February 19, 2015 in Crimes, Discrimination, Ethical Issues, Social Security | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 18, 2015

Questions Raised by Doctor's Guilty Plea for Kickbacks from Prescribing Risky Drugs to Seniors

A long-running investigation of a doctor in Illinois for Medicaid and Medicare fraud is coming to a close.  Michael Reinstein, "who for decades treated patients in Chicago nursing homes and mental health wards," has pleaded guilty to a felony charge for taking kickbacks from a pharmaceutical company.  As detailed by the Chicago Tribune, on February 13, Reinstein admitted prescribing, and thus generating public payment for, various forms of the drug clozapine, widely described as a "risky drug of last resort."

The 71-year old doctor has been the target of the state and federal prosecutors for months, and he's also agreed to pay (which is, of course, different than actually paying) more than $3.7 million in penalties.  He may still be able to reduce his prison time from 4 years to 18 months, if he "continues to assist investigators."

The investigation traces as far back as 2009, as detailed by a Chicago-Tribune/ProPublica series that revealed he had prescribed more of the antipsychotic drug in question to patients in "Medicaid's Illinois program in 2007 than all doctors in the Medicaid programs of Texas, Florida and North Carolina combined."  Further, the Tribune/ProPublica series pointed to autopsy and court records that showed that, "by 2009, at least three patients under Reinstein's care had died of clozapine intoxication." Reinstein's, and one assumes, the pharmaceutical company's, defense was that the drug could have appropriate, therapeutic effects for patients, beyond the limited "on-label" realm.

Assuming that the government ever sees a dime in repayment, from either the doctor or the drug company, my next question is what happens to that money?  At a minimum, shouldn't there be review of the effect of the drugs on these patients, some of whom may have been administered the drug for years? We keep reading that the drugs are "risky," but shouldn't there be evidence of real harm -- or perhaps even benefit -- from the documented "off-label" use?  Certainly, prosecutions for off-label drugs are understandable attempts to claw-back, or at least reduce, public expenditures. But isn't more at stake, including the search for relief or workable solutions for patients who are in distress? 

In March 2014, for example, Teva Pharmaceutical Industries Ltd., the maker of generic clozapine, reportedly agreed to pay more than $27.6 million to settle state and federal allegations that it induced Reinstein to prescribe the drug. Recovering misspent dollars is important.  But I also would like to see evidence of the harm alleged by the government -- or the benefit asserted by the defendants -- from the administration of the drugs.  Isn't objective study of the history of these real patients a very proper use of the penalties? 

February 18, 2015 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 11, 2015

Guide for Law Enforcement on Alzheimer's

The Bureau of Justice Administration (BJA) along with Center for Public Safety and Justice have released a guide for law enforcement on dealing with individuals with Alzheimer's. Alzheimer's Aware: A Guide for Implementing a Law Enforcement Program to Address Alzheimer’s in the Community is designed to help law enforcement create a community program to deal with the potential interaction with a person with Alzheimer's. This booklet identifies a number of scenarios when an officer might interact with a person with Alzheimer's. The tools provided by this initiative is designed

to assist in the development and implementation of a community educational campaign by, or n partnership with law enforcement. The resources have recommendations for developing a strategic plan with practical action steps and activity implementation, in order to develop a holistic  community approach to responding in crisis situations, involving persons with Alzheimer’s disease, as well as increase awareness of Alzheimer’s and other forms of dementia.

The booklet includes recommendations for law enforcement to develop a program on making their officers aware of Alzheimer's and the issues they may encounter. These include officer training, policy reviews, creation of a "local registry", encouraging the use of monitoring technology or wearable devices and collecting statistics.

February 11, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s | Permalink | Comments (1) | TrackBack (0)