Tuesday, October 6, 2015

The Shocking Cost of Financial Exploitation

Does the amount $3 billion shock you:? What about $36 billion? According to an article in Consumer Reports, Financial Elder Abuse Costs $3 Billion a Year. Or Is It $36 Billion?,  the exact amount is unclear.  Here's how the $3 billion figure came about, according to the story:

When Consumer Reports recently reported on elder financial fraud, Lies, Secrets, and Scams: How to Prevent Elder Abuse, we used the number $3 billion. It comes from a study published in 2011 by the MetLife Mature Market Institute, in collaboration with the National Committee for the Prevention of Elder Abuse and the Center for Geronotology at Virginia Polytechnic Institute and State University. We rounded up from that study's estimate of $2.9 billion annually....


We chose that figure because a number of experts we interviewed thought it was a credible figure. But they—and an author of the study—admitted to us when we first reported it a couple of years ago that the figure probably represents the tip of the iceberg. The figure is probably far larger than that.

We have all heard the tip of the iceberg analogy with the number of cases of elder abuse, since we know that elder abuse cases are under-reported.   The article goes on to explain the $36 billion figure which came from TrueLink which "projected that financial elder abuse costs families more than $36 billion a year,"  Their study used a more expansive view of financial exploitation, including fraud and scams as well as financial exploitation.  The article notes that Investor Protection Trust estimates that 20% of elders have been victims.

The author of the article explains the title. 

Though the article focuses on financial exploitation at the hands of strangers, the headline encompasses abuse by all types of con artists, including family members and people the senior knows. When discussing stranger-initiated abuse, we couldn't arrive at a figure that made sense to us. Experts I consulted through a listserve used by professionals in the elder-abuse prevention and treatment community couldn't agree on a figure themselves. However, several professionals I interviewed said they were comfortable with saying it was in the "billions."

The point of this difficult exercise is that no really one knows how big the problem is. But clearly, it's huge. And until seniors feel comfortable reporting their victimization—and there's a standard way to define it and a central place to report it—we'll never know the total impact. Here's hoping that day comes, so the individuals working to help victims and prevent the crime can get the attention and resources they deserve.

Assign this article to your students. It illuminates a number of the issues in these cases. Regardless of whether the total is $3 billion or $36 billion, the numbers are shocking.


October 6, 2015 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship | Permalink | Comments (1)

Monday, October 5, 2015

Elder Justice Americorps

DOJ's Elder Justice Initiative & Office for Victims of Crimes, along with the Corporation for National and Community Service announced the creation of the Elder Justice Americorps.  According to the website

[E]lder Justice AmeriCorps, a new grant program to provide legal assistance and support services to victims of elder abuse, neglect and exploitation and to promote pro bono capacity building in the field.  This effort will expand a partnership between the two agencies, which includes justice AmeriCorps, a legal aid program launched in 2014 by the Department of Justice and CNCS to serve vulnerable populations.


The Elder Justice AmeriCorps program, which is intended to complement existing Office for Victims of Crime grants to support the development of legal assistance networks providing comprehensive, pro bono legal services for victims of crime, will consist of a single grant to an intermediary organization that will support approximately 60 full-time AmeriCorps positions for each year of the two-year program.  Interested applicants can review the Notice of Funding Opportunity at http://www.nationalservice.gov/build-your-capacity/grants/funding-opportunities/2016/americorps-state-and-national-grants-fy-2016#FGSAAA.

October 5, 2015 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Grant Deadlines/Awards | Permalink | Comments (0)

Wednesday, September 30, 2015

Do Tontines Have a Valid Role in Modern Retirement Planning?

Jeff Guo, writing for the Washington Postrecently offered a provocative look at "tontines" as a theoretical retirement planning alternative to "annuities." Apparently these are advocated by some modern legal and financial experts:

Economists have long said that the rational thing to do is to buy an annuity. At retirement age, you could pay an insurance company $100,000 in return for some $5,000-6,000 a year in guaranteed payments until you die. But most people don’t do that. For decades, economists have been trying to figure out why....


But there’s also some evidence that people just irrationally dislike annuities. As behavioral economist Richard Thaler wrote in the New York Times: “Rather than viewing an annuity as providing insurance in the event that one lives past 85 or 90, most people seem to consider buying an annuity as a gamble, in which one has to live a certain number of years just to break even.”


Here is where tontines come in.  If people irrationally fear annuities because them seem like a gamble on one's own life, history suggests that they irrationally loved tontines because they see tontines as a gamble on other people's lives.


A simple modern tontine might look like this:  At retirement, you and a bunch of other people each chip in $20,000 to buy a ton of mutual funds or stocks or whatever.  Every year, the group withdraws a predetermined amount and divides it among the remaining survivors.  You might get a bonus one year, for instance, because Frank and Denise died....

 Want to know more?  Read It's Sleazy, It's Totally Illegal, and Yet It Could Become The Future of Retirement.  Hat tip to David Pearson for sharing this story. 

September 30, 2015 in Consumer Information, Crimes, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Retirement, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 22, 2015

Financial Exploitation-Robbing the Victim of Retirement too?

I was having a conversation recently with our elder consumer protection fellow at the College of Law about remedies for financial exploitation, so this headlline from US News & World Report Health certainly got my attention. Vanishing Retirement: the Hidden Epidemic of Financial Exploitation focuses on the ramifications of being a victim of financial exploitation.

Many Americans look forward to the day they'll be able to put their weekly routines aside and enjoy retirement. It takes decades to realize this goal – after putting kids through school, paying mortgages, making car payments and covering myriad other expenses, all while saving for a time when Mondays no longer mean a return to work. So much time and effort goes into building the nest egg – the target of so many schemes in recent years as more and more older Americans face financial exploitation.

Once someone’s income starts being depleted, many things have to be given up. Discretionary items fall to the wayside first: vacations, hobbies and leisure activities. One may lose the ability to leave an inheritance. Even basic travel becomes difficult when a person can’t afford auto insurance and fuel. Then, paying for basic utilities becomes a challenge, leading to late fees and threats power will be shut off.

Personal health becomes compromised as medication costs overtake retirement income. Even a person’s ability to stay in his or her own home becomes threatened, due to the loss of sufficient funds to pay for rent, taxes or water.

The article mentions Mr. Mickey Rooney's testimony before the Senate Special Committee on Aging.  I still remember his testimony, especially him noting if it could happen to him, it could happen to others.  The story turns to the lack of recognition that exploitation (or other types of elder abuse) is taking place. The article notes that there are many professionals who could be in a position to spot financial exploitation (such as a bank teller or pharmacist).

It should be a community responsibility to get to know our seniors, engage them regularly​ and recognize and address concerning changes. That’s why, in many states, mandated reporters for elder abuse include any individual, from the physician to the janitor working in a nursing home, who has contact with an older person. This acknowledges we all have the opportunity to identify abuse.

 It is so easy to pass off these clues and say, “It’s not my responsibility,” or “Someone else will take care of it.” But addressing the suspicion of wrongdoing can save a person from Mickey Rooney’s fate.

September 22, 2015 in Crimes, Elder Abuse/Guardianship/Conservatorship, State Statutes/Regulations | Permalink | Comments (1)

Thursday, September 17, 2015

Nursing Homes in Prisons

Last semester one of my students wrote a paper on the graying of prisons. So tThis article in Kaiser Health News (KHN), When Prisons Need To Be More Like Nursing Homes  caught my eye. 

Why do we see the graying of prisons? The article references the tough on crime lasts back in the 1980s and 1990s but there is more to it. "In 2013, about 10 percent of the nation’s prison inmates ... were 55 or older. By 2030, the [ACLU] report said, one-third of all inmates will be over 55. At the same time, it is widely accepted that prisoners age faster than the general population because they tend to arrive at prison with more health problems or develop them during incarceration."

The article also discusses the costs of caring for inmates who are elderly and reviews some state responses. For example the Fishkill Prison in New York has a unit for those prisoners with cognitive impairments:

This unit, the first of its kind in the country, is specially designed to meet the needs of inmates with dementia-related conditions. It is part of the state’s medical hub at Fishkill, a medium-security prison 70 miles north of New York City. The 30-bed unit, opened in 2006, is set up to resemble a nursing home more than a prison ward. The walls are painted white and the lights are bright, intended to elevate and stabilize mood. Inmates are allowed to walk freely around the unit (wandering is common for those with dementia or related conditions). The staff includes specially trained physicians, nurses, clinical psychologists, psychiatrists, social workers, and corrections officers. The average age of the unit’s 24 inmates is 62.

Care for prisoners in this unit costs almost twice as much as for those in the prison population outside this unit. In California inmates in "good standing" provide care for inmates who have dementia or other illnesses related to advanced age.

The Gold Coats — the caretakers wear gold-colored jackets — assist patients with daily tasks such as dressing, shaving, showering, and other personal hygiene. They escort patients to the dining hall, and to the doctor. They act as companions, protecting their patients from being bullied, and make sure they get food at meal time. The Gold Coats also lead exercise classes and activities designed to stimulate memory. There are Gold Coat programs at 11 California prisons.

Connecticut tried a completely different approach, basically building a nursing home for prisoners  and others who are "difficult to place" and in need of that level of care.  As noted in the article,that road hasn't been completely smooth.

The town has sued to shut it. Citing zoning restrictions, the town argues that 60 West should be considered a prison/penitentiary, rather than a nursing home. Rocky Hill says it also fears that if nursing-home care for inmates becomes more common, rules on admission will eventually be loosened to allow more dangerous patients to be admitted, potentially endangering neighborhood.

At the same time, the federal government has declined to certify 60 West as Medicaid eligible, because of the unlikely event that an ailing inmate could recover and be returned to prison. Inmates aren’t eligible for Medicaid, and with the prospect, however unlikely, that some patients could once again be incarcerated, the government is arguing that the patients are ineligible, and thus the entire facility is ineligible. The owners are considering an appeal.

Regardless of the approach taken by these 3 states, clearly state correctional officials need to think through the options to provide care for prisons' graying population.

Just fyi the  "[KHN]  story was written by Maura Ewing for The Marshall Project, a nonprofit news organization that covers the U.S. criminal justice system." Some additional stories from the Marshall Project include Do You Age Faster in Prison? , Older Prisoners, Higher Costs , Dying in Attica and Too Old to Commit Crime?

September 17, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0)

Wednesday, September 9, 2015

Professor Matthew Andres' Civil Remedy for Financial Exploitation Enacted by Illinois Legislature

University of Illinois Matthew AndresWe recently learned of the important role played by Matthew Andres, Director of the Elder Financial Justice Clinic at the University of Illinois School of Law, in convincing the Illinois legislature of the need for a clear civil remedy for seniors and disabled persons who are victims of financial exploitation.  

Earlier this year, the Illinois legislature approved Public Act 99-0272, amending existing law that defined the crime of financial exploitation, to provide a specific civil remedy, one that would no longer be tied to (or require) a criminal prosecution. Effective on January 2, 2016, the new Illinois law provides:

Civil Liability. A civil cause of action exists for financial exploitation of an elderly person or a person with a disability as described in subsection (a) of this Section. A person against whom a civil judgment has been entered for financial exploitation of an elderly person or person with a disability shall be liable to  the victim or to the estate of the victim in damages of treble the amount of the value of the property obtained, plus reasonable attorney fees and court costs.

In a civil action under this subsection, the burden of proof that the defendant committed financial exploitation of an elderly person or a person with a disability as described in subsection (a) of this Section shall be by a preponderance of the evidence. This subsection shall be operative whether or not the defendant has been charged or convicted of the criminal offense as described in subsection (a) of this Section. This subsection (g) shall not limit or affect the right of any person to bring any cause of action or seek any remedy available under the common law, or other applicable law, arising out of the financial exploitation of an elderly person or a person with a disability. 

Professor Andres was the author of a white paper on the need for the changes to prior law, and the resulting bill was supported by AARP.  For more, see the news from the University of Illinois website hereGreat work, Matt!

September 9, 2015 in Consumer Information, Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Statutes/Regulations | Permalink | Comments (1)

Wednesday, August 26, 2015

"Sixty-five is the New Sixty-four!"

Recently I was listening to satellite radio while on the road, and caught a Fresh Air interview with Robert Price, celebrated author of hardscrabble crime fiction, including Clockers (2008)and his most recent novel The Whites (2015).  Is it my imagination, or are "older adults" appearing more and more often in mainstream fiction and movies?  Apparently a central character in The Whites is just such an "senior."  In Price's interview, I was struck by the humor of his observations about how growing older himself has influenced his writing, but also about much his grandparents' lives affected his fiction.  And I couldn't help but laugh when he observed that no one likes the "math" as you get older, although he is now the first to admit that "65 is the new 64."  Here's a link to the 44 minute podcast with Terry Gross. 

August 26, 2015 in Books, Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s | Permalink | Comments (0)

Sunday, July 26, 2015

New Book: Dry Bones in the Valley

With just a few weeks left before law school classes start again, I hope your summer writing and research projects are well underway, giving you time to relax a bit with a good beach read.  I've got one to recommend, too.  It's Dry Bones in the Valley by Tom Bouman

The mystery is set in northeastern Pennsylvania, where old time music haunts the air, mixing with the off and on whine of modern day fracking.  One of my favorite authors is Tana French, whose Dublin-based "police procedural mysteries" are an excuse for deep exploration of the human condition. Tom's debut novel is in that tradition, even bringing to bear an Irish spirit or two. I like it best when I can see, hear and "feel" the settings in a novel, as in this passage, where bone-tired Henry Farrell struggles to find balance while carrying out his official duties as the rural township's investigator:

I knew I wouldn't sleep and likely shouldn't with my head the way it was.  Went back inside, got out my fiddle, and rosined the bow....


I needed something I could rip into. "Bonaparte's Retreat" found me. . . . By the time I got to the modified part B Copland had made so famous, I had to stop and breathe.  I thought of George Ellis.  Got a piece of paper and curled it into a funnel, poured the rest of my whiskey back into the bottle, and went to bed, but never to sleep.


It's not hard to get up if you never go down.  Dawn brought a hint that the weather might get clearer.  With enough pain pills, my head would too.  The eastern sky was bright as a wild rose as I walked stiff-backed from my woodpile with an armload for the stove.  The snow had melted, and my boots left prints on a field that, newly bared, crackled underfoot and shimmered silver; it was a beauty that would not last another ten minutes, so I dropped the firewood and stood and watched the night's frost dissolve into morning mist.  Somewhere in the tree line, a bluebird burbled a tune, but I couldn't pick him out.  It was the first songbird I'd heard that spring....

Strong writing, yes? But, how does this particular book relate to the Elder Law Prof Blog?  Well, as you may have come to expect from me by now, one reason is a central character in the mystery, ol' Aub, may -- or may not -- be too old to remember the truths of what happened.

Another reason is the author is a current Penn State Dickinson law student, and his new book has already earned a 2015 Edgar Award for best first novel and a 2015 Los Angeles Times Book Award for best mystery/thriller. 

Congratulations, Tom! 

July 26, 2015 in Books, Cognitive Impairment, Crimes | Permalink | Comments (0)

Friday, July 24, 2015

Huguette Clark Family Foundation Announces Grant for Study of Elder Exploitation

From the ABA Bifocal, details about the 2015 award of a $50k grant by the Huguette Clark Family Fund for Protection of Elders to develop model civil statutes covering elder financial exploitation:

The project will be managed by the National Center for Victims of Crime under the guidance of Executive Director Mai Fernandez. Lori Stiegel of the American Bar Association Commission on Law and Aging will serve as a consultant on the project. Ms. Stiegel, a senior attorney, joined the ABA Commission in 1989 and has developed and directed its work on elder abuse.


“Creating a template of civil statutory provisions for elder financial exploitation is a short- term, innovative project that can have a lasting impact,” Ms. Fernandez said. “It can give attorneys an effective tool for pursuing civil cases and provide victims with the greatest chance to recover stolen assets. We welcome the support of the Huguette Clark Family Fund for Protection of Elders on this important project.”

The news release explains the donor-advised fund was established by the family in 2013 to honor the late Huguette Clark, "who was victimized by her caregivers for more than two decades."  Previous recipients of grants from the Huguette Clark Fund include San Diego State University and the Philadelphia Corporation on Aging.

July 24, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Grant Deadlines/Awards | Permalink | Comments (0)

Friday, July 17, 2015

9th Circuit Sets Aside Case Precedent on Whistleblowers Under False Claims Act

On July 7, 2015, in U.S. ex rel Hartpence v. Kinetic Concepts, Inc., the Ninth Circuit, sitting en banc, created an easier path for whistleblowers to recovery under the False Claims Act for disclosure of fraudulent claims for Medicare reimbursement.  From its introduction to the ruling in consolidated civil qui tam suits:

If a whistleblower informs the government that it has been bilked by a provider of goods and services, and that scheme is unmasked to the public, under what conditions can that same whistleblower recover part of what the guilty provider is forced to reimburse the government? We hold today that there are two, and only two, requirements in order for a whistleblower to be an “original source” who may recover under the False Claims Act: (1) Before filing his action, the whistleblower must voluntarily inform the government of the facts which underlie the allegations of his complaint; and (2) he must have direct and independent knowledge of the allegations underlying his complaint. Abrogating our earlier precedent, we conclude that it does not matter whether he also played a role in the public disclosure of the allegations that are part of his suit. We also hold that the district court erred in its application of the rule that a whistleblower must be the first to file an action seeking reimbursement on behalf of the government based on the fraudulent scheme.

According to one lawyer interviewed here, the impact of the decision to reverse 25-year old case precedent, though important, may be limited to older cases, "since 2010 amendments to the False Claims Act have further clarified the 'original source' requirements. 

Additional history -- and predicting clarifications --  about the public disclosure provisions of the False Claims Act comes from Albany Law Emeritus Professor Beverly Cohen, in an article from Mercer Law Review, titled "Trouble at the Source: The Debates Over the Public Disclosure Provisions of the False Claims Act's Original Source Rule."   For more, see Professor Cohen's interesting article (in my own law school's law review, I was happy to discover!), "Kaboom! The Explosion of Qui Tam False Claims Under the Health Reform Law."

July 17, 2015 in Crimes, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Medicare | Permalink | Comments (0)

Tuesday, June 30, 2015

Long Island "Elder Law" Attorney Pleads Guilty to Stealing $797K from Clients

On June 23, 2015, Martha Brosius, a "retired" attorney who once held herself out as an "elder law attorney," pled guilty in New York to stealing $797,322 from clients.  In one alleged instance of breach of fiduciary duties and embezzlement, she was the court-appointed guardian for a 77-year-old disabled man.  It was alleged she used client funds to pay office, payroll and personal expenses. 

The mother of two minor-aged children and the wife of a district attorney, Brosius is scheduled to be sentenced in August.  According to The Long Island Press, the special prosecutor has sought a sentence of between six to eighteen years plus restitution; the defense counsel says some moneys have already been repaid.

June 30, 2015 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases | Permalink | Comments (0)

Friday, June 26, 2015

Florida Appellate Court Reverses Conviction on Financial Exploitation of Elder

On June 24, 2015, a Florida intermediate appellate court reversed the 2013 conviction of Tyrone Javallena for "financial exploitation of an elderly person or disabled adult," ruling that there was no evidence the defendant in question, who was the husband of a financial advisor for a 94-year-old woman who made late-in-life changes to her estate plan benefitting the couple, had the requisite knowledge of any plan to exploit.  In Javallena v. State, the 4th DCA ruled:

The [elderly woman's estate] documents were amended so that, ultimately, the defendant and his wife were residual beneficiaries of the estate. The defendant and his wife served as witnesses to Teris' execution of some of the amendments, and at some point in time, his wife became aware of the substance of the amendments. However, there was no evidence that the defendant, who also chauffeured Teris on errands, had any knowledge of a plan to exploit the victim. As for Teris' mental capacity at the time she executed the amendments to her estate documents, there was conflicting evidence before the jury.


On appeal, the defendant argues that his conviction under a principals theory constituted error as there was no evidence he participated in the exploitation. We agree.


"To convict under a principals theory, the State is required to prove that the defendant had a conscious intent that the criminal act be done and . . . the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit or attempt to commit the crime."Hall v. State, 100 So. 3d 288, 289 (Fla. 4th DCA 2012) (citation and internal quotation marks omitted).

The original conviction of Javallena and his wife in 2013 was high profile news, in part because of the estate in question -- referred to in the appellate opinion as "vast" -- was reported to be $10 million.  No word on the status of any appeal on the separate conviction of Javallena's wife. 

June 26, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Saturday, June 13, 2015

Forty-nine years ago...

The New York Times' "On this Day" squib reminded us today: 

"On June 13, 1966, the Supreme Court issued its landmark Miranda vs. Arizona decision, ruling that criminal suspects must be informed of their constitutional rights prior to questioning by police."

That triggered memories, as the day the landmark decision first became known in Arizona, the father of one of my friends offered everyone in the neighborhood a glass of champagne, even us kids.  At the time I did not fully appreciate the reason.  It was only years later that I put it together that the celebrant was John P. Flynn, the lawyer who successfully argued the Miranda case before the U.S. Supreme Court.

Even more years later, in the 2000 Supreme Court decision of Dickerson v. U.S., another man from that same Phoenix, Arizona neighborhood would confirm the importance of "Miranda warnings" as an accepted mainstay of protection for individuals suspected of crimes.  Chief Justice William H. Rehnquist did not share the legal or political philosophies that generated the original ruling, but he could be persuaded to respect the role of stare decisis. I have often been bemused by the fact that John Flynn, a bold advocate and life-long Democrat,  had once celebrated his biggest victory with the children of the neighborhood, including the children of a future Supreme Court Justice, well known for his conservatism.  Phoenix, especially the legal community, was a very small town in those days.

My trip down memory lane took me to a colorful account of John P. Flynn's life.  It is the story of a creative and talented lawyer, from an era much more tolerant of personal flaws. Read "Remembering John Flynn" by his one-time law partner Tom Galbraith.

June 13, 2015 in Crimes, Ethical Issues, Federal Cases, Other | Permalink | Comments (0)

Wednesday, June 3, 2015

Does 8th Amendment Bar Execution of Murderer Who Develops Advanced Dementia After Conviction?

On March 17, 2015, Missouri executed "convicted cop killer Cecil Clayton."  Clayton's prosecution was a matter of much legal commentary from the very outset of his arrest and prosecution in the 1990s, because of the documented history of removal of 1/5 of the frontal lobe of his brain following a sawmill accident in the 1970s. 

However, as his prosecution, appeals, and post-conviction challenges wended their way through state and federal courts on issues of effective assistance of counsel, insanity and mental defect, an additional cognitive impairment was underway.  By the time of his execution Clayton was reported to be Missouri's "oldest death row prisoner" at age 74 and at least five years before his last day, he had been diagnosed with progressive, neurological deterioration, consistent with "dementia."

The last court to consider the Clayton's last (and last minute) challenges to the death penalty, the United States District Court for the Western District of Missouri, wrote on the same day as his execution:

Should the Atkins [v. Virginia, 536 U.S. 304 (2002)] reasoning be applied, by analogy, to cases involving persons with physical brain damage and progressive deterioration, and an Atkins-like evaluation performed to determine whether the death penalty may be properly imposed? It seems fair to analogize the diminished capacity of the mentally retarded that lessens personal culpability and prohibits execution of the mentally retarded...to those whose physical brain damage and progressive deterioration have, for example, lessened their capacity to meaningfully participate in legal proceedings. Using a different analogy, it would be difficult to imagine, for example, that a civilized society would execute a person who was not mentally retarded at the time of the commission of a capital crime, but who subsequently developed advanced  Alzheimer's disease by the time of the execution.

Ultimately, the court ruled that no relief was available to Clayton on the record before it, but the court clearly was concerned about the potential for evidence of post-conviction dementia to establish independent grounds for a valid 8th Amendment challenge.  The court concluded:

Again, at this very late date, the question of whether the death penalty can be imposed against a person such as Clayton with physical brain damage—a hole in his frontal lobe—associated with progressive deterioration over time, has not been litigated here, and it may be too late. In the time available, the Court cannot conclude under the deferential AEDPA standard that the Missouri Supreme Court's decision should be disturbed.

For more on the litigation history of Clayton's mental impairment(s), see Clayton v. Al Luebbers, 2015 WL 1208786 (W.D. Mo., May 17, 2015).

June 3, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, State Cases | Permalink | Comments (0) | TrackBack (0)

Saturday, May 30, 2015

Alzheimer's Activist Confronts Challenges of His Disease

The Washington Post recently profiled Alzheimer's activist Michael Ellenbogen, including the possibility that the very disease he's urging public authorities to confront by committing to find a cure, has impaired his ability to use sound judgment about his tactics:

When Michael Ellenbogen calls for a more aggressive fight against Alzheimer’s disease, he speaks with passion that comes from experience. As someone who was diagnosed with early-onset dementia, Ellenbogen can convey firsthand the pain and frustration at what he sees as insufficient government support for research to find a cure or better treatments.


But to some, Ellenbogen’s passion recently went too far.


After he submitted remarks to the national Advisory Council on Alzheimer’s Research, Care and Services that mentioned the Columbine massacre — asking whether it would require a mass shooting by someone with dementia to draw more attention to the crisis — the Department of Health and Human Services deemed Ellenbogen a security threat. The federal agency, which hosts the council’s meetings, banned him from its premises.

For the full story, see Frederick Kunkle's article More People with Alzhemier's Are Becoming Activists -- Which Brings Its Own Challenges.

May 30, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 12, 2015

Pharma Company Fights Back on Off-Label Drug Use Prosecutions

We've written on this blog several times about successful prosecutions connected to so-called "off label" drug use, including the use of antipsychotics for agitation in dementia patients.  See here and here, for example.  Now, courtesy of a New York Times article, there is news of a pharmaceutical company's lawsuit to preempt such prosecutions, raising First Amendment free speech rights as grounds for off-label advocacy: 

On Thursday, Amarin Pharma took the unusual step of suing the Food and Drug Administration,  arguing that it has a constitutional right to share certain information about its product with doctors, even though the agency did not permit the company to do so. Lawyers for the company said that they believed their case was the first time a manufacturer had pre-emptively sued the agency over the free-speech issue, before it had been accused of any wrongdoing. Other companies have sued the agency only after they have gotten into trouble....


Lawyers for Amarin say the company is not proposing to market Vascepa to a wider population of patients, merely to share with doctors the results of a 2011 company-sponsored clinical trial that showed the drug lowered triglycerides in patients with “persistently high” levels....

More details about the suit available here

May 12, 2015 in Consumer Information, Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Monday, May 11, 2015

A Juror's Perspective from the Iowa Sexual Assault-Dementia Trial

I'm catching up on news items after being away for a few days.  There are additional insights about the sad trial of Henry Rayhons in Iowa, that ultimately resulted in his acquittal, from one of the jurors, who also happened to be a reporter.  Too often it is easy to focus about what is wrong with the court system, but here is a reminder of just how seriously most jurors take their duties. 

Read, "The Rayhons Trial: A Juror's Perspective," by Angela Nelson.  And my thanks to Bryan Gruley who made sure we did not miss this powerful coda to the trial. 

May 11, 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)

Friday, May 1, 2015

Criminal Record? Is Life-Time Ban from Care Industry Employment Necessary to Protect Older, Vulnerable Persons?

In 2003, in Nixon v. Commonwealth, Pennsylvania's Supreme Court struck down a provision of the state's Older Adult Protective Services Act that imposed an absolute bar on designated care "facilities," including nursing homes, personal care homes, and home health agencies, prohibiting them from hiring  "new" employees who had been convicted of certain crimes. The Court concluded that the prohibition, which affected only "new" employees, or those working at a covered facility for less than one year, did not bear a real and substantial relationship to the Commonwealth's interest in protecting the elderly, disabled, and infirm from victimization, and therefore unconstitutionally infringe[d] on the Employees' right to pursue an occupation." 

Twelve years later, the Pennsylvania legislature, despite consideration of many proposals to "fix" the "Nixon case problem," still had not amended the statute. (This is the second time in a week that Pennsylvania's speed -- or lack thereof -- in enacting important reforms has attracted media attention.) As explained by NPR in a feature story by Carrie Johnson, a new lawsuit again challenges Pennsylvania's employment ban:

In 1981, when he was just 18, [Tyrone] Peake was arrested with a friend for trying to steal a car to take a girl home after a long weekend. "No, we never got the car," Peake said. "We broke the ignition column and then the cops came."


Peake couldn't even drive back then. He says he was just along for the ride. He never went to prison. Instead, he got probation. But that single charge years ago still haunts him, sometimes even after he's gotten work....


"I've been fired from three jobs," Peake said, "because [of] having a criminal record. And my record is like 32 years old, and I haven't been in trouble since then." A lot's happened since the 1980s for Peake. He went back to school, and he's been working part time as a counselor for men addicted to drugs and alcohol. But the law prevents him from being hired full time to work in a nursing home or long-term-care facility because of that single criminal conviction.

Peake's history of attempting to get on the right side of the law presents a dramatic contrast between the law's laudable purpose of protection of vulnerable adults and its sometimes harsh effect.  For more, see NPR's Can't Get A Job Because Of A Criminal Record? A Lawsuit Is Trying To Change That. 

May 1, 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)

Tuesday, April 28, 2015

Upcoming Webinar: U.S. Department of Justice and Fraud Schemes Targeting Older Americans

U.S. Department of Justice and Fraud Schemes Targeting Older Americans

  1. Wed, May 27, 2015 1:00 PM - 2:30 PM CDT

U.S. Department of Justice and  Fraud Schemes Targeting Older Americans Attorneys from the Department of Justice’s Consumer Protection Branch will describe fraud schemes targeting older Americans, including Jamaican lottery scams and large-scale psychic schemes. The crimes, perpetrated through mass mailings and telemarketing, affect hundreds of thousands of U.S. consumers. Presenters will describe how the scams contact victims, the manner in which they operate and the Consumer Protection Branch’s interception and prosecution efforts. The webinar will also address tips on how to avoid the scams and improve prevention efforts.

Rich Goldberg (Assistant Director, U.S. Department of Justice, Consumer Protection Branch); Kate Drenning (Trial Attorney, U.S. Department of Justice, Consumer Protection Branch); Ann Entwistle (Trial Attorney, U.S. Department of Justice, Consumer Protection Branch)

Additional sponsorship for this Webinar is provided by a grant from the Administration on Aging/Administration for Community Living. This webinar is part of a series of National Elder Rights Training Project webinars for the National Legal Resource Center.

There is no charge for this webinar.
All time listings are in Eastern Time.
If you have any questions email trainings@nclc.org

April 28, 2015 in Crimes, Elder Abuse/Guardianship/Conservatorship, Webinars | Permalink | TrackBack (0)

Friday, April 24, 2015

How Should Decisions Be Made About Sexual Rights During Facility-Based Care?

For me, a chilling moment in the trial of State of Iowa v. Henry Rayhons came during the prosecution's case-in-chief, with the reported testimony of a physician at Mrs. Rayhons' nursing home.  According to the coverage of the trial, the doctor testified that based on her decreasing score on the BIMS (Brief Interview for Mental Status), he determined Donna Rayhons lacked the cognitive ability to give consent to sex.  In contrast, a defense expert was reported to have testified it was a "medical mistake" to have used such minimal evaluations of capacity to draw an arbitrary line between permission to kiss or hug, as opposed to engaging in more intimate relations. 

The contrasting testimony put a spotlight on the very serious questions of who makes decisions -- and how decisions are made -- about "capacity" to engage in essential behaviors such as sex for persons with dementia. This topic is further explored, with great prescience, by a law student at the University of Illinois in the current issue of the Elder Law Journal, written well before the Rayhons trial.  Stephanie Tang, who was also the managing editor for the journal in 2014-15, writes:

To best balance the interests of the elderly with those of the states, states should develop and adopt a model assessment tool that employs a clinical perspective to evaluate a person’s capacity to consent to sexual activity. Model assessment tools provide courts with a clear and objective standard, which would increase predictability and uniformity of court decisions.


Moreover, identifying specific cognitive functions that need to be assessed would constitute a major step forward in those states that have not yet done so.This Note advocates for the use of two tests: 1) the Socio-Sexual Knowledge and Attitudes Test (SSKAT) and 2) Cognisat. Authors have previously argued for the adoption of the SSKAT to assess sexual capacity to consent among mentally retarded patients. The American Bar Association and American Psychological Association cited use of Cognistat to assess cognitive capacity to consent to sexual activity among hypothetical patients with diminished capacity.

To put this simply, in her article,When "Yes" Might Mean "No": Standardizing State Criteria to Validate The Capacity to Consent to Sexual Activity for Elderly with Neurocognitive Disorders, Ms. Tang is arguing that far more sophisticated and appropriate tools are available and should be used to assist in evaluating capacity to participate in sex. Brava, Ms. Tang!

Ms. Tang's article draws in major part on the detailed factual reporting of Bryan Gruley for Bloomberg News, in his important series on rights of the elderly with dementia.  Mr. Gruley's articles began to appear as early as 2013, and became even more relevant with his investigation of the events underlying the 2014 charges against Mr. Rayhons.

April 24, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Science, Statistics | Permalink | Comments (0) | TrackBack (0)