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 (0) | 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)

Comment Window Opens for Proposed Rules re Conflicts of Interest in Retirement Advice

The U.S. Department of Labor has released a new proposed rule intended to protect consumers from conflicts of interest among an array of folks who want to give advice about how and where to invest 401(c) and IRA retirement funds.  The new rule would impose a "fiduciary duty" standard on those advisors, rather than the current, lower "suitability" standard for investment advice.

A DOL press release explains the goal: 

"This boils down to a very simple concept: if someone is  paid to give you retirement investment advice, that person should be working in  your best interest," said Secretary of Labor Thomas E. Perez. "As commonsense  as this may be, laws to protect consumers and ensure that financial advisers  are giving the best advice in a complex market have not kept pace. Our proposed  rule would change that. Under the proposed rule, retirement advisers can be  paid in various ways, as long as they are willing to put their customers' best  interest first."

 

Today's announcement includes a proposed rule that would  update and close loopholes in a nearly 40-year-old regulation. The proposal  would expand the number of persons who are subject to fiduciary best interest  standards when they provide retirement investment advice. It also includes a  package of proposed exemptions allowing advisers to continue to receive payments  that could create conflicts of interest if the conditions of the exemption are  met. In addition, the announcement includes a comprehensive economic analysis  of the proposals' expected gains to investors and costs.

The New York Times covers the new rules in "U.S. Plans Stiffer Rules Protecting Retiree Cash," and notes the history of opposition to this kind of reform from -- surprise, surprise -- the "financial services industry." There is a 75-day window for public comments on the latest proposal.

Perhaps my biggest surprise was the remarkably "consumer friendly" presentation of the proposed change by the Department of Labor on its webpage, beginning with this simple video describing conflicts of interest.   

April 16, 2015 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Property Management, Retirement | Permalink | Comments (0) | TrackBack (0)

NYT: Nursing Homes Chase Lucrative Patients (But That's Not the Whole Story)

From the New York Times on April 14, an article from the business section, As Nursing Homes Chase Lucrative Patients, Quality of Care is Said to Lag.

Promises of “decadent” hot baths on demand, putting greens and gurgling waterfalls to calm the mind: These luxurious touches rarely conjure images of a stay in a nursing home.

 

But in a cutthroat race for Medicare dollars, nursing homes are turning to amenities like those to lure patients who are leaving a hospital and need short-term rehabilitation after an injury or illness, rather than long-term care at the end of life.

 

Even as nursing homes are busily investing in luxury living quarters, however, the quality of care is strikingly uneven. And it is clear that many of the homes are not up to the challenge of providing the intensive medical care that rehabilitation requires. Many are often short on nurses and aides and do not have doctors on staff.

Some colorful quotes here ("patients are leaving the hospital half-cooked"), but a lot of this well-written article nonetheless seems like old news to me (okay, perhaps that's because of my chosen research focus), with reporting on trends influenced by operating margins on the "nonprofit" side of care, and "return on investment" for shareholders on the for-profit side.  Perhaps "intensity" of the pressures is the theme here? 

Tip of the hat to George Washington University Law student Sarah Elizabeth Gelfand ('16) and GW Professor Naomi Cahn for making sure we saw this article!  

April 16, 2015 in Consumer Information, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, Retirement, Statistics | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 15, 2015

Day 5 (the actual fifth day) of the Iowa Sexual Assault-Dementia Trial

On April 15, the trial  proceedings in State of Iowa v. Henry Rayhons continued, after a day without courtroom proceedings. 

The day started with testimony from an "Iowa DCI Agent" about a secret recording, two hours in length, that the agent made of his interview with Henry Rayhons on June 12, 2014, during which they discussed the couple's relationship and events surrounding the night of May 23, 2014 (the date of the alleged sexual abuse).  Reading between the lines of early news reports, it appears the prosecution was planning or wanted to play excerpts from the recording as part of its case-in-chief, and the defense lawyer took the position that if anything comes in, the whole recording comes into evidence.

Here's a KIMT.com  link to a story about this recording, including Rayhon's emotional reaction to the playing of the recording in the courtroom.   Here's a link to KIMT's live twitter posts on the trial. 

The above was available from the morning session of court.  More updates on later  proceedings will be posted here, if additional information on today's session becomes available. 

Here is an "update" from news media in Iowa, focusing on alleged details from the tape-recorded interview by the DCI (Department of Criminal Investigations) Agent with Henry Rayhons a few days after the night in question.  The prosecution appears to be offering segments as evidence that Rayhons "confessed" during the interview, while other segments appear to show his confusion and lack of awareness (or perhaps understanding) about the doctor's diagnosis. 

I'm not clear whether this "interview" triggered Miranda warnings, or whether they were waived, but it appears the agent did not tell Rayhons it was being recorded.

More and more lessons seem to be emerging, regardless of the eventual verdict in this case.  The more I hear of details from the trial, the more it amazes me how a March 2014 admission to a care facility, that apparently followed the daughters' reasonable concerns about the behavior of the wife, can fail to involve deeper family counseling, discussion and support for both the wife and the husband. This was a dramatic change in their relationship. My head is spinning with all of the missed opportunities for counseling, and, if necessary, mediation.

I'm seeing far more time spent on a criminal investigation about the night of May 23, 2014, than on counseling a 78-year-old man about what it might mean to have a wife in a nursing home in Iowa, where there are Iowa-specific laws about sexual conduct between married partners no longer cohabiting. I'm thinking the wife's daughters could have been assisted by sensitive counseling as well, both before and after March 23. But, I also suspect that there is no Medicare or insurance "billing code" for counseling the family members in this scenario. 

And finally, here is late-day coverage by the Des Moines Register from the trial, also focusing on the investigator's recording: Rayhons told investigator he didn't force sex on wife.

April 15, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | 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)

New Article On "Best Practices for a State Alzheimer's Disease Registry"

University of Georgia Law Professor Elizabeth Weeks Leonard has a forthcoming article in the Minnesota Journal of Law, Science and TechnologyUniv of George Law Professor Elizabeth Leonard Professor Leonard, working with graduate research assistants and colleagues from the University of Georgia's Institute of Gerontology, draws upon Georgia's recent experiences in implementing a state public health registry for Alzheimer's disease or similar dementias under legislation passed in 2014.  The article provides guidance on how to navigate the legal and ethical issues that can arise in implementing such a registry.   

This is a cutting edge program in its early stages, as described by the authors:

"This article offers a unique window into one state’s experience establishing an Alzheimer’s disease and related dementia registry. Georgia is the most recent of handful of states to adopt such a registry and, in doing so, has already committed to robust data collection practices along with clear commitment to protecting patients’ privacy. The authors were privileged to convene a group of stakeholders to brainstorm and submit rulemaking comments on Registry implementation to the Georgia Department of Public Health.

 

In addition, through further consultation with state leaders in gerontology and building on our own health law, public health, and legal services expertise, we offer additional recommended best practices for the Registry. We anticipate that Georgia is leading a nationwide trend in addressing the rapidly rising incidence of Alzheimer’s disease and related dementia with the aging population. Accordingly, our recommendations will be valuable not only for Georgia but also for other states that may decide to establish similar Alzheimer’s registries."

You can get an early look at "Best Practices for a State Alzheimer's Disease Registry: Lessons from Georgia," here on SSRN. Professor Leonard's research focuses on health care finance and regulation.

April 13, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Science | Permalink | Comments (0) | TrackBack (0)

Saturday, April 11, 2015

ALs, PCHs, CCRCs, SNFs, RCFEs and the Name Game in Senior Housing

One of the first assignments I give to law students in my Elder Law course is to visit a "nursing home" and to see if they can get a copy of the admission agreement or contract.  (Most of the facilities in my area cooperate with these student visitors.)  The lesson here, however, is revealed when the students bring the documents back to the classroom for discussion. We discover that the majority of the contracts are not for admission to "skilled nursing facilities."

More frequently the facilities in question are licensed as "continuing care retirement communities" or CCRCs, which are big in Pennsylvania, or personal care homes (PCs or PCHs), or assisted living (AL) communities, each of which have different state regulations applying to their operations. These are not "nursing homes," or at least, they are not "skilled nursing facilities." Further, in Pennsylvania, increasingly there may be no label at all -- at least not a label that the public is familiar with -- and that is often by design as the facility or community may be attempting to avoid a "higher" level of requirements. 

The usual explanation is that the choice in label is not driven by concerns over "quality" of care, but by costs of having to meet some non "care" related regulation, such as AL state requirements for room size or physical accommodations.  The facility makes the case that it can meet the real needs of its clientele without being tied to "higher care" and therefore more "costly" models for senior housing.  Fair enough.  Caveat emptor.  If you are the customer, make sure you do your homework, ask questions, comparative shop, and avoid assumptions based on pretty pictures in marketing brochures. And try to do all of this before an emergency that accelerates the need for a move.

But, there can be significant differences triggered by a label (or lack thereof) that are not readily apparent to the public. A recent Policy Issue Brief published by Justice In Aging (formerly the National Senior Law Center) uses examples from California to shine a spotlight on subtle issues in labeling, as well as on the importance of regulations that are responsive and up-to-date.  Merely changing an "identity" or label should not be the basis for failing to comply with minimum standards relevant to the clients' needs.

In How California's Assisted Living System Falls Short in Addressing Residents' Health Care Needs,  Justice in Aging (JIA, to make our circle of acronyms almost complete), provides a sample job notice for a California facility and asks "can you spot the legal violations in this Assisted Living job announcement?" The notice, appears to be hiring for a "certified med aide," despite the fact that  there is no such thing in California, and more importantly, if the facility calling itself "Assisted Living" is actually a RCFE (residential care facility for the elderly), the California regulations do not permit staff to administer medications.  Outside of Medicare/Medicaid standards for skilled nursing facilities -- the "nursing homes" of the past -- there are no national standards for labeling of "assisted living" or the many alternatives. 

JIA's issue brief dated April 7, 2015 is part of a series that explores how California's system functions and points to ways it could be modified to help assure residents their expectations and needs will be satisfied.

The lessons in the JIA brief -- with a few tweaks to respond to any given state's set of acronyms -- seem equally relevant in all states.

April 11, 2015 in Consumer Information, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, Retirement | Permalink | Comments (0) | TrackBack (0)

Friday, April 10, 2015

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

PA Governor's Executive Order Raises Questions re "Unionizing" Home Care Workers

On February 27, Pennsylvania's new governor, Tom Wolf, issued Executive Order 2015-05 regarding "participant-directed home care services."   

The order reportedly reflects the Governor's interest and support for home care for seniors and persons with disabilities, while also recognizing potential issues such as low wages or absence of benefits, high turnover, inconsistent quality or lack of standards.  The order:

  • Creates a Governor's Advisory Group to advise the administration on "ways to improve the quality of care delivered" through publically funded home care service programs;
  • Recognizes a "representative for Direct Care Workers for the purpose of discussing issues of mutual concern," while also authorizing a procedure for "election" of the representative; and
  • Establishes a "Direct Care Worker List" of all workers paid through state programs, and further permits "an employee organization that has as one of its primary purposes the representation of director care workers" to petition the state to represent a particular unit of direct care workers.

As set forth in recent media reports, the Executive Order has met with resistance from some quarters, including those who are challenging the order as unlawfully permitting "unionization" of home care workers.  On April 6, 2015, a complaint seeking injunctive relief from implementation of the executive order was filed in the Pennsylvania Commonwealth Court by a home care worker and his long-time client, a "quadriplegic adult with muscular dystrophy receiving care from the [state administered] Attendant Care Services Act.." The complainants are reportedly represented by "The Fairness Center, a conservative public-interest law firm."

April 9, 2015 in Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 8, 2015

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)

Tuesday, April 7, 2015

Health Care Reform, Transition & Transformation in LTC

Saturday, April 4, 2015

"Informal" Arrangements for Home Care? What's the Downside? Here's One...

When it becomes impossible for a loved one to stay at home without help, one decision that families made need to face is whether to use an agency, or hire one or more individuals outright. Agencies are usually more expensive (at least on paper). But direct hires of home aides can raise other questions, including how to handle state and federal income taxes and documentation, insurance, transportation (read: more insurance questions), coverage for holidays, sick leave, overtime, and more.  You start off thinking this is short term help; the reality is it can last much longer....

But there is still one more question that may not be on the family's radar screen, until it is too late.

If the informal home care arrangements eventually don't suffice, perhaps because of increasing frailty and care needs, what happens when the individual's money is gone and there is a need for Medicaid-paid care?  

As explained in a recent Michigan Court of Appeals case, "informal" arrangements for home care may trigger ineligibility for Medicaid-paid care based on state rules or policies implementing federal law.

Continue reading

April 4, 2015 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, April 2, 2015

Must Lawyer Consult With "Agent" Before Complying With Elderly Client's Request to Terminate POA?

Here is a recent ruling (February 2015), based on a fact pattern that many elder law attorneys will appreciate as both familiar and challenging.

In Runge v. Disciplinary Board, the Supreme Court of North Dakota reversed a disciplinary board "admonishment" of an attorney for "violating" the Rules of Professional Conduct, Rule 1.14.  North Dakota's Rule 1.14, addressing representation of a "client with limited capacity," is similar to the ABA Model Rule 1.14 on clients with "diminished capacity."

At issue in the disciplinary proceeding was the lawyer's representation of a 79-year-old man who was residing in a "Care Center." The man wished to leave the nursing home, against "medical advice" and, apparently also in opposition to his daughter's apparent belief about what was best for him. The man had, before experiencing a heart attack, named his daughter as an agent under a durable POA. 

By the time the attorney met with the man, the man had been living in the care center for several months.  After meeting with the older man (and a female friend of the man), at the man's request the attorney prepared a revocation of the POA.  The lawyer explained to the care center that absent someone holding a guardianship or custodianship for the man, and as long as the lawyer was persuaded his client had sufficient capacity, the revocation of the POA was effective and neither the center nor the daughter had grounds to prevent him from leaving.

Unhappy with this outcome, the daughter filed a Disciplinary Board complaint against the attorney, asserting the lawyer had acted improperly by failing to consult with her as her father's named agent, and taking the position her father's "incapacity" for purposes of an earlier "emergency care" statement was conclusive of his incapacity.  The Court, however, observed:

"Here no guardianship or conservatorship existed that withdrew Franz's authority to act for himself. Rather, Franz shared his authority to act and he remained free to withdraw the authority conferred under that power of attorney, which, in any event, precluded anyone from making his medical decisions. This record reflects [Lawyer]Runge talked with Franz by telephone and in person to ascertain his wishes before Franz revoked the power of attorney. Runge's recitation of his conversations with Franz does not clearly and convincingly establish Franz was incapacitated in April 2013. This record does not reflect any subsequent attempt to obtain a court-ordered guardianship or conservatorship for Franz, which belies any suggestion that he was incapacitated in April 2013."

Therefore, the North Dakota Supreme Court dismissed the daughter's Disciplinary Board complaint.

Significantly, the Court observes that although the lawyer "could" have contacted the daughter before executing the revocation of the POA, the provisions of Rule 1.14 did not "require" him to do so. 

Lots of potential lessons here.  A key to the outcome seems to be the lawyer's persuasive testimony, showing the care he took in making the decision to represent the man and to prepare the revocation.  As the court observed, "[The lawyer's] assessment of [the man's] capacity was within the range of a lawyer's exercise of professional judgment."  This case is another demonstration that lawyers hold a lot of power -- and responsibility -- in matters involving client capacity.  

Many thanks to Professor Laurel Terry at Dickinson Law for sending this decision our way. 

April 2, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (2) | TrackBack (0)

Wednesday, April 1, 2015

AARP Reports on the Struggle to Overcome Unemployment for Older Job Seekers

The AARP Public Policy Institute has recently published an Insight Report (March 2015) on older workers and unemployment following the recent economic crisis.  The report draws upon surveys of persons aged 45 to 70 affected by unemployment during the last 5 years.  The primary focus of the analysis is on "reemployment," including what strategies were used in successful efforts to find jobs. 

Lots of interesting information here.  Even though the rate of unemployment is lower for older workers, those losing their jobs later in life stayed unemployed longer than younger job seekers, and their recovery jobs reportedly paid less.  Some of the findings, however, are of equal relevance to younger job seekers.  One set of responses was especially sobering, on a question about possible working life regrets:  

"When asked whether there was anything they wished they had done differently over their working lives or careers to better position themselves for dealing with unemployment, 52 percent said 'yes.' The most common answer —65 percent — was a wish that they had saved more money. Also of note, 48 percent wished they had gone back to school to complete or get another degree, and 38 percent wished they had chosen a different field. The unemployed and the long–term unemployed were more likely than the other groups to wish they had chosen a different field. Those who elected that regret also tended to be younger (56 percent were ages 45 to 54)."

Many thanks to Professor Naomi Cahn at George Washington Law for alerting me to this report, and sending a link to related Wonk Blog coverage of the study from the Washington Post  -- lots of well-explained graphs from an oral presentation that accompanied the launch of AARP's written report. 

April 1, 2015 in Consumer Information, Current Affairs, Discrimination, Ethical Issues, Retirement, Statistics | 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)

Massachusetts Federal Court Calls for Clearer Rules to Permit Sound Planning for Special Needs

In DeCambre v. Brookline Housing Authority, decided by a federal district court in Massachusetts on March 25, the issue was whether a disabled adult living in Section 8 housing becomes ineligible for the housing subsidy because of disbursements to her from a special needs trust, funded as the result of a personal injury settlement. 

Although the court affirmed the Bureau of Hearings and Appeal ruling on her income and expenses, thus disqualifying her for public housing benefits, the court also called for clearer federal guidelines to permit better planning for needy beneficiaries: 

"[This case demonstrates the serious problem that beneficiaries of irrevocable trusts face; in particular, those that seek to pour lump-sum settlement funds into irrevocable trusts. But until the rules and regulations are clarified, public housing authorities should provide clear guidance and instruction for potential tenants with regard to their financial planning and spending. A more thorough and thoughtful analysis is required by public housing authorities when determining Section 8 eligibility, until further guidance is provided by the HUD."

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

Educating the Public about Powers of Attorney (With the Help of Friends Across the Pond)

As we have described often on this Blog, there is a fair degree of concern about whether members of the public understand the potential significance of a  Power of Attorney before they sign the document.  Apparently the U.S. is not alone in this concern. 

Recently, Northern Ireland's Law Society (for comparison purposes, an organization which somewhat of a hybrid of the American Bar Association and a state's licensing board or disciplinary authority), issued an interesting pamphlet about "enduring powers of attorney" or EPAs, to serve as a guide for members of the public, using a Q & A format. EPAs are similar to our durable POAs, and, of course, their utility depends on being executed in advance of any need.  Topics addressed include: 

  • Do I lose control when I sign an EPA?
  • Is this just a note of my wishes?
  • Do I need an EPA if I have a will?
  • If I don't have investments or property is there any point?
  • What if all my assets are jointly owned?
  • Can I have more than one attorney [agent]?
  • Who should I appoint as my attorney [agent]?
  • What power does an attorney [agent] have?
  • What responsibilities does my attorney [agent] have?
  • Is my attorney [agent] paid for work undertaken?
  • Can I change my mind and revoke an EPA?
  • If I recover my capacity, who is in charge of my affairs?
  • Is it expensive to make an EPA? 

You are curious about the answers, aren't you!  For the cleanly written answers to these questions, access the PDF from the Law Society here.   Thank you to my Dickinson Law colleague Laurel Terry for the pointer.

March 31, 2015 in Consumer Information, Ethical Issues, Property Management | Permalink | Comments (0) | TrackBack (0)