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.



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 (1)

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)

Wednesday, July 27, 2016

New Article: "Life, Death and Medicare Fraud: The Corruption of Hospice..."

Georgetown University's American Criminal Law Review recently hosted a symposium on health care fraud and one of the articles to come out of that program is by University of Alabama Law School Adjunct Professor James F. Barger, Jr. His article uses the 2013 criminal case of U.S. v. Kolodesh, which resulted in a "guilty verdict on all thirty five counts," to examine "the general trend of Medicare Hospice fraud enforcement actions."   The author reports:

The vast majority of False Claims Act hospice cases in which the United States has intervened have settled in favor of the United States without consideration by a jury, and every criminal hospice fraud prosecution by the United States to date has resulted in a guilty plea or a conviction by jury. Every such case—whether civil or criminal—was initiated by a whistleblower under the public-private partnership of the False Claims Act.


The FCA’s whistleblower provisions have been highly effective at detecting fraud and recovering misappropriated Medicare dollars, but deterrence and prevention remain unattained goals.


The calculated business decision to settle False Claims Act allegations has proven over time to have a neutral-to-positive effect on corporate profitability in the hospice sector. For-profit hospice giants such as SouthernCare and Odyssey, who have paid eight figure settlements, have rebounded quickly and actually gained position over their competitors.....


Nevertheless, while the whistleblower provisions of the False Claims Act have proven extremely effective at discovering hospice fraud and at recovering at least some of the lost Medicare funds, alone the statute has demonstrated very little deterrent effect. Outside of a legislative overhaul of the Medicare Hospice Benefit, the only effective deterrent scheme will be for enforcement officials to supplement their use of the civil False Claims Act with traditional criminal fraud statutes. For this to work, however, criminal penalties must be imposed not only on the relatively small-scale players, like Matthew Kolodesh and Home Care Hospice, but also on the mega hospice companies and their executives and owners.

For more, read "Life, Death and Medicare Fraud: The Corruption of Hospice and What the Private Public Partnership Under the Federal False Claims Act is Doing About It," published in the 2016 issue of the American Criminal Law Review.

July 27, 2016 in Consumer Information, Crimes, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Thursday, July 14, 2016

Neglected to Death

My local paper ran a story recently about a vulnerable adult who was neglected to death.  66-year-old Gulfport woman dead after police say she was neglected by caretakers  reports that "[t]he caretakers told police they moved out of the apartment eight to 10 days before the woman's death. That left her alone, police said, with little ability to care for herself." A follow up story, Gulfport police: 66-year-old woman left to die in squalor and heat,  reports that the caregivers went back daily to check on her, saw her getting worse, but took no action to help her.  Both caregivers were jailed and "facing a felony charge of abuse or neglect of an aged or disabled person."

July 14, 2016 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship | Permalink | Comments (0)

Wednesday, July 13, 2016

Telemarketing Sales Rule Protections Against Scammers

Good news for consumers! The Federal Trade Commission (FTC) announced on June 27, 2016 that the telemarketing sales rule (TSR) prohibitions went into effect in June.

The changes to the TSR will stop telemarketers from dipping directly into consumers’ bank accounts through checks and payment orders that have been remotely created by the telemarketer or seller. Since they’re remotely created, they’re never actually signed by the account holder – and that makes it easy for telemarketers and sellers to dip directly into consumers’ bank accounts. And it’s then hard to reverse the transactions with consumers’ banks (again, a reason why con artists love using these methods).

In addition, with the updated rule in place, telemarketers now can’t get payments through traditional cash-to-cash money transfers – the type provided by companies like MoneyGram and Western Union. Scammers use these cash transfers as a quick, anonymous, and irrevocable way to get money from consumers. Once the seller picks up the transfer, the money is gone.

The TSR changes also prohibit telemarketers from accepting as payment cash reload PIN numbers. That means no requests for payment by using MoneyPak, Vanilla Reload, or Reloadit packs, used to add funds to existing prepaid cards. Because scammers use the cash reload PIN numbers to apply the funds to their own prepaid debit cards – and disappear with the money. Except not anymore, under the updated TSR.

Good news all around for consumers! More information for businesses about complying with the TSR is available here.  Thanks to blog reader Mike Polk for alerting me to this update!


July 13, 2016 in Consumer Information, Crimes, Current Affairs, Other | Permalink | Comments (0)

Tuesday, July 5, 2016

Nursing Home Resident Abuse-Who is the Perpetrator?

We know anyone can be a victim of elder abuse. We also know anyone can be a perpetrator. With that in mind, the results of a study published in the Annals of Internal Medicine might be surprising to you.... or not.  The study found that in about 20% of the cases, the perpetrator was another resident. The Prevalence of Resident-to-Resident Elder Mistreatment in Nursing HomesResident-to-Resident Elder Mistreatment in Nursing Homes explained that "[r]esident-to-resident elder mistreatment (R-REM) in nursing homes can cause physical and psychological injury and death, yet its prevalence remains unknown."  The full article requires a subscription but the summary available offers this information:

Results: 407 of 2011 residents experienced at least 1 R-REM event; the total 1-month prevalence was 20.2% (95% CI, 18.1% to 22.5%). The most common forms were verbal (9.1% [CI, 7.7% to 10.8%]), other (such as invasion of privacy or menacing gestures) (5.3% [CI, 4.4% to 6.4%]), physical (5.2% [CI, 4.1% to 6.5%]), and sexual (0.6% [CI, 0.3% to 1.1%]). Several clinical and contextual factors (for example, lower versus severe levels of cognitive impairment, residing on a dementia unit, and higher nurse aide caseload) were associated with higher estimated rates of R-REM...

Conclusion: R-REM in nursing homes is highly prevalent. Verbal R-REM is most common, but physical mistreatment also occurs frequently. Because R-REM can cause injury or death, strategies are urgently needed to better understand its causes so that prevention strategies can be developed.

There was a webinar on the topic earlier in the spring. Slides from the webinar are available here. There is also an abstract from the 2014 report available on the National Criminal Justice Reference Service and the report is here.

July 5, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care | Permalink | Comments (0)

Tuesday, June 21, 2016

New Concepts from Authorities Who Investigate and Prosecute Scammers and Financial Abusers

On June 15,  I logged into the National Consumer Law Center's webinar on Financial Frauds and Scams Against Elders.  It was very good.  Both David Kirkman, who is with the Consumer Protection Division for North Carolina Department of Justice, and Naomi Karp, who is with the federal Consumer Financial Protection Bureau, had the latest information on scamming trends, enforcement issues, and best practices to avoid financial exploitation.  Here were some of the "take away" messages I heard:

  • "Age 78" -- why might that be important?  Apparently many of the organized scammers, such as the off-shore sweepstakes and lottery scams, know that by the time the average consumer reaches the age 78, there a significant chance that the consumer will have cognitive changes that make him or her more susceptible to the scammer's "pitch."  As David explained, based on 5 years of enforcement data from North Carolina, "mild cognitive impairment"  creates the "happy hunting ground" for the scammer.
  • "I make 'em feel like they are Somebody again."  That's how one scammer explained and rationalized his approach to older adults.  By offering them that chance to make "the deal," to invest in theoretically profitable ventures, to be engaged in important financial transactions, he's making them feel important once again.  That "reaction" by the older  consumer also complicates efforts to terminate the scamming relationship. David played a brief excerpt of an interview with an older woman, who once confronted with the reality of a so-called Jamaican sweepstakes lottery, seemed to make a firm promise "not to send any more money."  Yet, three days later, she sent off another $800, and lost a total of some $92k to the scammers in two years.
  • "Psychological reactives."   That's what David described as a phenomenon that can occur where the victim of the scam continues to play into the scam because the scammer is offering the victim praise and validation, while a family member or law enforcement official trying to dissuade the victim from continuing with the scam makes him or her feel "at fault" or "foolish."   An indirect, oblique approach may be necessary to help the victim understand.  One strategy to offset the unhelpful psychological reaction was to show the victim how he or she may help others to avoid serious financial losses. 
  • "Financial Institutions are increasingly part of the solution."  According to Naomi, about half of all states now mandate reporting of suspected financial abuse, either by making banks and credit unions mandatory reporters or  by making "all individuals" who suspect such fraud mandatory reporters.  Both David and Naomi said they are starting to see real results from mandatory reporters who have helped to thwart fraudsters and thereby have prevented additional losses.

The federal Consumer Financial Protection Bureau has several publications that offer educational materials to targeted audiences about financial abuse.  One example was the CFPB's 44-page manual for assisted living and nursing facilities, titled "Protecting Residents from Financial Exploitation." 

June 21, 2016 in Books, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (2)

Wednesday, June 15, 2016

Nebraska Mandates Protection for Health Care Whistleblowers

In a recent McKnight's News column, Registered Nurse Pam McKnally wrote an interesting and candid account of "What It's Like to Be a Nurse Whistleblower."  Her experiences with retaliation  -- indeed bullying-- after she complied with laws requiring to her report observations of improper use of narcotics in the workplace led her and others to advocate for changes in the law.

In April 2016, in response to the experiences of McKnally and others, Nebraska enacted changes to state law, prohibiting retaliation against whistleblowers and mandating confidentiality for the identities of anyone making reports of violations by "credentialed" health care providers. Nebraska Legislative Bill 750, amending Nebraska's law that governs a broad range of health care providers, specifies:

An individual or a business credentialed pursuant to the Uniform Credentialing Act shall not discriminate or retaliate against any person who has initiated or participated in the making of a report under the act to the department of [health and human services].  Such person may maintain an action for any type of relief, including injunctive and declaratory relief, permitted by law. 

Further, the law now provides that "The identity of any person making such a report [of suspected violations] or providing information leading to the making of a report shall be confidential" and further, "The identify of any person making a report, providing information leading to the making of a report, or otherwise providing information to the department, a board, or the Attorney General included in such reports, complaints or investigational records shall be confidential whether or not the record of the investigation becomes a public record."

Whether the changes to Nebraska law, especially in the absence of a specific statutory sanction for retaliation or breach of confidentiality, will be effective to address the backlash experienced by McNally will bear monitoring.  She cautions:

I resigned, as my work life was intolerable, and it was clear that I was about to get fired. The EOC investigated my claims. The costs in employee hours and attorney fees, plus fines for violations can be astronomical. Had the situation been handled differently by the Human Resource department, the outcome may have been much different.


It is time for employers to stop blaming and discrediting professionals who simply follow the law and advocate for themselves and their patients....


When nurses are happy they work hard. They are loyal and seek out constructive ways to help their organization deal with conflict. In long-term care, Medicare and Medicaid cuts mean money needs to be saved now more than ever. Keeping a business viable includes mitigating the need for attorneys and dealing with nurse turnover.

June 15, 2016 in Crimes, Current Affairs, Discrimination, Ethical Issues, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, June 14, 2016

Elder Abuse in Florida

The Orlando Sentinel ran a story about elder abuse increasing in Florida. Although the data is hard to come by, Elder Abuse on the Rise in Florida explains that:

In Florida, the number of verified cases of elder abuse and neglect has climbed 74 percent since 2011, according to the Florida Department of Children and Families. In 2015, the statewide total was 2,525.

More than 800 people have been charged with elder abuse and neglect in Florida in the past five years, according to the Office of State Courts Administrator. More than 370 have been convicted or sentenced.

The story also offers data on a nationwide basis and discusses the difficulties in prosecuting elder abuse cases, such as the victim's close ties to the perpetrator or cognition issues of the victim

The accompanying sidebar provides statistics, Elder Abuse in Florida by the Numbers for the past 5 years, broken down by verified cases of elder abuse or neglect and criminal elder abuse or neglect.

June 14, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, June 9, 2016

What Are Physicians' Responsibilities for Older Patients with Firearms?

Florida State Law Professor (and friend) Marshall Kapp has a new article out, and my recent post "He Died with Guns in His Closet" triggered him to share it with us.  Marshall tackles the challenging topic of "The Physician's Responsibility Concerning Firearms and Older Patients," with thoughtfulness and candor.

Professor Kapp opens with observations and predictions about the potential for Americans to continue to own firearms as they age, even if they have declining cognition.  He writes:

In the general population, the presence of firearms in the home is positively associated with the risk for completed suicide and being the victim of homicide. It is well-documented that “[g]un ownership and availability are common among the elderly”and that the rate of use of guns in suicides and homicides by older Americans is significant. Firearms, along with falls and motor vehicle accidents, cause the most traumatic brain injury deaths in the U.S. for people over age 75.


Mental illness has been found to be strongly associated with increased risk of suicide involving firearms. The disproportionate incidence and prevalence of cognitive and emotional disorders such as dementia, mild cognitive impairment, and depression--often presenting themselves simultaneously and exacerbating each other--among older persons has been identified clearly. However, many persons with such disorders do not receive a formal clinical evaluation for those issues. Age-associated decline in health status, in combination with other factors, is a risk factor for dementia.

Professor Kapp examines state laws and the collective role of the medical profession regarding firearms as a public health matter, including specific ideas about what might be an individual doctor's "duty to inquire about or report on access to weapons for a patient who demonstrates cognitive changes," and the potential for any such "duty" to impact patient choices about treatment. For example, he reports:

Under current law, physicians, with the possible exception of those practicing in Florida, have latitude to act according to their own discretion when it comes to questioning their patients about guns in the home in this context. According to a coalition of leading health professional organizations and the ABA, physicians are able to intervene with patients whose access to firearms puts them at risk of injuring themselves or others. Such intervention may entail speaking freely to patients in a nonjudgmental way, giving them safety-related factual information, answering patients' questions, advising them about behaviors that promote health and safety, and documenting these conversations in the patient's medical record (just as the physician would document conversations with their patients regarding other kinds of health-related behaviors).

On free speech implications, he writes:

The courts thus far are split in their responses to First Amendment challenges to compelled medical speech brought by physicians qua physicians in their role as patient fiduciaries or trust agents (as opposed to claims brought by physicians seeking protection in their capacity as ordinary citizens). Nevertheless, there is a strong argument for requiring that state laws compelling particular speech by physicians in their physician role be examined under at least a strict scrutiny standard.

And to further whet your appetite for reading the full article, in his conclusion, Professor Kapp advocates for certain changes in state law, including:

State statutes should authorize physicians to inquire of and about their older patients regarding patient access to firearms in the home and to counsel the patient, family members, and housemates about firearms safety, up to and including recommending that firearms be kept away from the patient. However, the states should not enact legislation that positively requires the physician to make such inquiries and engage in counseling, although states should consider a tort standard of care evolving through the common law in a direction that imposes an affirmative obligation on the physician to inquire and counsel.

The full article appears in the Spring 2016 issue of the Kansas Journal of Law & Public Policy.  

June 9, 2016 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)