Monday, April 27, 2015
Recent news reports in the Sarasota Herald-Tribune have focused on "elder guardianships" in Florida. The articles include:
- The Kindness of Strangers: Inside Elder Guardianship in Florida, a three part "special project."
- A Civil Dispute Over Guardianship, detailing a conflict between co-trustees for a man in his 90s over costs of care. One trustee was concerned about what appear to be charities named as remainder beneficiaries and was described as making "imaginative" use of a guardianship to challenge the wife's role as the other named trustee. A sidebar in this article describes bills pending in the Florida legislature seeking to clarify the legal effect of a "power of attorney" when a guardianship petition is filed.
- Film to Detail Horror Stories from Florida Guardianship, describing a video project to share "stories about Florida's adult guardianship system," supported by a local "nonprofit organization called Americans Against Abusive Probate Guardianship."
April 27, 2015 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
On April 24, 2015, Iowa's Governor signed SF 306 into law, amending Iowa's Guardianship Law to recognize an express right of adult wards to "communication, visitation, or interaction with other persons." The law's effective date is July 1, 2015.
The law further provides that a court shall deny such rights "only upon a showing of good cause by the guardian." In the absence of an ability to give "express consent to such communication, visitation or interaction with a person due to a physical or mental condition, consent of an adult ward may be presumed by a guardian or a court based on an adult ward's prior relationship with such person."
This is an interesting law, especially coming on the heels of the Henry Rayhons trial in Iowa, even though there appears to be no direct correlation. The new provision does not, for example, define "interaction."
According to news reports, Kerri Kasem, the daughter of radio D.J. Casey Kasem, was present at the ceremony and lobbied for the bill after her late father was moved from his nursing home in California, first to Nevada and then to Washington without his children's knowledge or consent:
“This is a silent epidemic,” she said. “There are so many abuses of guardianships and so many abuses of caretakers.”
April 27, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Friday, April 24, 2015
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.
Thursday, April 23, 2015
Justice in Aging (formerly National Senior Citizens Law Center) is offering a free webinar on Wednesday. April 29, from 2 to 3 p.m. (eastern time) on "How New CMS Person-Centered Care Planning Rules Apply to Medicaid Delivered Long-Term Services and Supports (LTSS)."
They report their webinar will focus on the rules as they apply to long-term services and supports delivered through Medicaid home and community-based waivers, and will:
- Provide background context for the new person-centered planning and service plan rule
- Analyze the requirements of the new rule
- Give examples of how selected states (Minnesota, New Jersey, Tennessee, and Wisconsin) are implementing provisions of the rule
- Identify gaps where more detailed state rules or better managed care plan contractual terms are needed to ensure that compliance with the intent of the rule
Who should participate? The program is suggested for health care professionals and their staffs, attorneys for consumers of LTSS services, and public employees -- and consumers, too.
Here is the link for the registration.
Wednesday, April 22, 2015
On Wednesday, April 22, 2015, at approximately 2:30 p.m. central time, after almost two full days of deliberations on a single count of statutory sexual abuse of his wife, a nursing home resident with dementia, the jury found 79-year-old former Iowa legislator Henry Rayhons NOT GUILTY.
As shown with pictures posted by KIMT.com Twitter, there are many tears in the courtroom.
Interestingly, as another indication of the State's aggressive prosecution of this case, the prosecutor filed a "Statement" with the court in Garner, Iowa yesterday, while the jury was still deliberating, asking that in the event of a conviction, Mr. Rayhons be taken immediately into custody. The explanation? The state contended that under Iowa law, sexual abuse in the third degree is covered by Iowa Code Section 709.4.(2)(a), and that any exception to "forcible felony" treatment for criminal sexual acts occurring between husband and wife does not apply, because they were not "cohabiting," at the time.
Therefore, argued the state, if convicted Mr. Rayhons would have been barred from posting bail pending appeal. Further, the prosecution argued the defendant would not have been eligible for a deferred or suspended sentence, and, once released, would be subject to restrictive, special parole terms for the rest of his life. See Iowa Code Section 701.11(1) on "forcible felony." See also Iowa Code Section 811.1. See also Iowa Code Section 907.3.
Fortunately for this defendant, the incarceration arguments are now moot.
This case has demonstrated, all too clearly, that we need better understanding of the relationship between dementia and legal capacity. The Rayhons case challenges us to consider carefully the appropriate balance between protection of individuals with Alzheimer's and recognition of fundamental human rights.
As additional details emerge, we'll supplement this post.
Here are two early stories on the aftermath of the jury's verdict:
From Bloomberg News' Bryan Gruley: Iowa Man Accused of Raping Wife with Alzheimer's is Acquitted, noting that this case "offered a rare look at a complex dilemma that will become more common as the 65-and-over population expands."
From The Des Moines Register (Tony Leys): Jury finds Henry Rayhons Not Guilty.
And from Iowa Public Radio and the local Globe Gazette, a brief video interview with a tearful Henry Rayhons. (Note the comments posted by viewers after the interview.)
April 22, 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 (1) | TrackBack (0)
LTCCC press release says new study assesses nursing home citation rates nationwide, finds little or no punishment when nursing homes fail to provide care that meets the standards they are paid to achieve, even when such failures result in significant suffering.
Widespread and persistent nursing home problems, including serious deficiencies in care, result in unnecessary harm to thousands of vulnerable residents every day. Deficient and worthless services also cost taxpayers hundreds of millions of dollars a year. The nursing home industry frequently complains that it is one of the most highly regulated in the country. But what does that mean when so many nursing homes are consistently paid to provide care that fails to meet those standards?
LTCCC’s new report, , presents a comparative overview of every state’s (50 states + DC) performance on several key criteria. LTCCC assessed overall state citation rates, number and amounts of fines that each state has imposed in the last three years for violations of minimum standards and the rates at which the states identified resident harm when they found deficiencies. In addition to reviewing state citations as a whole, the study focused on three criteria important to quality care – pressure ulcers, staffing and antipsychotic drugging.
“While no data are perfect, we felt that assessing overall citation and penalty rates, as well as citations for three critical quality criteria, would together provide valuable insights into State Survey Agency performance and the extent to which important problems are being addressed in each state” said Richard Mollot, LTCCC’s Executive Director and author of the report.
1. Resident Harm. States only find harm to residents 3.41% of the time that they cite a deficiency. California and Alabama tied for lowest in the country, finding harm only 1.14% of the time.
2. Inappropriate Antipsychotic Drugging. The nationwide average antipsychotic drugging rate is 18.95% while the average citation rate for inappropriate drugging is 0.31%. This indicates that there is a significant amount of inappropriate antipsychotic drugging that is not being cited by the states.
3. Pressure Ulcers. Pressure ulcers (bed sores) are a problem for over 86,000 nursing home residents. Though they are largely preventable, states cite nursing homes the equivalent of less than 3% of the time that a resident has a pressure ulcer. When states do cite a facility for inadequate pressure ulcer care or prevention, they only identify this as harmful to residents about 25% of the time.
4. Sufficient Care Staff. Insufficient care staff is one of the biggest complaints made by nursing home residents and their families. Studies have repeatedly identified it as a serious problem in a majority of US nursing homes. Nevertheless, insufficient staffing is rarely cited by the states. The annual rate of staffing deficiencies per resident is infinitesimal: 0.042%. Less than 5% of those deficiencies are identified as resulting in harm. Twenty one states never connect insufficient care staff to resident harm in their states.
The report is available on LTCCC’s dedicated nursing home website at http://www.nursinghome411.org/articles/?category=lawgovernment. The website includes interactive charts showing key rates for each state as well as national averages. They include state rankings on criteria identified as important to nursing home resident care and the protection of taxpayer funds that pay for the majority of nursing home care. These charts can be used to gain insights into the strengths and weaknesses of quality oversight in any state.
Most of my family likes the PBS television show "This Old House." (Not me: I prefer "International House Hunters.") I have a good friend-- we'll call her Louise -- who is getting ready to celebrate her 90th birthday and has the ability to turn a good phrase. For years she has been saying her plan was to stay in her home, a lovely "old house" built in the 1920s, until "whatever happens next." (She also refers to my writings here for Elder Law Prof as my "blobs.")
Recently, however, Louise admitted to considering a new plan. One thing after another in "this old house" was going wrong. First it was her land-line phone that would intermittently crackle and pop, eventually making all calls impossible. Next it was seemingly random problems with loss of electricity to one side of the house or the other. Finally, when everything in the kitchen lost power, she got serious. Soon there was a big trench behind the house, as the electricians tried to locate the problem.
Eventually they found about a 4 foot length of burned wiring in the ground, inside of the buried conduit leading to the house (!). They explained the wiring in and to Louise's house was just "too old." Fortunately, my friend could afford the massive repairs (not cheap), but that still meant living with her daughter 45 minutes away, and commuting to meet with the workers during the weeks without any power. And as she asked, "what's next?" Her house is about 3 years older than Louise.
Louise's story plus a recent article from the Patriot News got me thinking. In Harrisburg, PA, the mayor was proposing a way to help a 92 year-old-woman get help to deal with sewer line repairs from the street to her house that cost $10,000. Helping one person -- the proposal was for $2,000 -- was just the tip of the iceberg (so to speak -- I'm running out of metaphors). The article explained:
Tuesday, April 21, 2015
Coverage of the closing arguments on Monday, from State of Iowa v. Henry Rahons, including video excerpts from each side's attorney, is provided here by the Des Moines Register.
According to KIMT.com's twitter feed, attorneys and Mr. Rayhons went into the judge's chambers at about 3:30 p.m. Central time on Tuesday, the second day of deliberations -- could a jury verdict be close?
UPDATE: Apparently the conference in the judge's chambers was to address jury questions. At approximately 4:15 on Tuesday, April 21, the jury "left for the day," to return to deliberations on Wednesday.
April 21, 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)
On April 20, while the jury was hearing oral arguments on the high profile case of State of Iowa v. Henry Rayhons, I joined an academic colleague, Dr. Claire Flaherty, a neuropsychologist from Penn State Hershey Medical Center, to discuss the implications of this criminal case, during a Smart Talk public radio program in central Pennsylvania. Claire and I have been engaged in a cross-discipline dialogue for about two years about a host of legal questions that can arise with a diagnosis of any form of dementia, including FTD and Alzheimer's Disease. This time we were talking about the challenges of finding the right balance between protection from harm and recognition of human rights when the issue is sexual intimacy. Dr. Flaherty's clinical background, including her experience counseling individuals and families who are coping with the realities of dementia, helped make this a very down-to-earth conversation on a sensitive subject for live radio.
Our half of the program, was preceded by Joanne Carroll, president of TransCentral PA, and therapist and social worker Alexis Lake, a therapist and social worker who counsels LGBT clients, who discussed challenges and rights for transgender, gay, lesbian, and bi-sexual people, and the progress that has been made in the last decade, even as more progress needs to be made. I was struck by their frankness, both about their personal journeys, and the potential costs for anyone transitioning, including simple costs associated with new documents of identity, to bigger questions about how to pay for any surgeries, including whether Medicare will pay for the older person's surgery.
UPDATE: Here is an alternative link to the Smart Talk Program described above, on "SoundCloud," and available in three segments, each about 15 to 20 minutes in length. Our discussion of dementia and consent to sexual relations starts at about the 9 minute mark of Segment B.
April 21, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Medicare, Science, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Monday, April 20, 2015
On Monday, April 20, prosecution and defense made closing arguments in the trial of State of Iowa v. Henry Rayhons, a former state legislator, for alleged sexual abuse of his wife with Alzheimer's.
KIMT.Com's twitter account has photos combined with excerpts from the arguments, here.
Bryan Gruley, whose detailed December 2014 feature article for Bloomberg News on the Rayhon couple's history and the charges, remains the best account of the anticipated issues, has written a follow-up story for Bloomberg News about the trial itself, pointing to the potential long-range impact from the case. See today's Questions about Sex and Dementia Go to Jury for the First Time.
As before, if new details become available on public media about the trial, including any jury verdict today, we'll capture them on this post, with an update.
UPDATE: According to Iowa media sources, the jury adjourned for the day about 5 p.m. central time, after approximately an hour and a half of deliberations, including two questions from the jury.
April 20, 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)
Whenever I look at national programs on "hot topics" in healthcare law, I'm seriously impressed by the number of offerings on regulatory compliance issues connected to Medicare and Medicaid payments. There are abundant reasons for this emphasis. Each year the Department of Justice touts its statistics on "recoveries" for False Claim Act cases. For the fiscal year ending September 30, 2014, the DOJ enthusiastically reported its "first annual recovery to exceed $5 billion" in a single year. No wonder health care law is a hot field. And remember, much of the money is connected to senior care in all of its guises.
A recent $1.3 million settlement on a Medicare-related False Claims Act case might seem like small potatoes at first glance. But, I was struck by the fact that it was a DOJ settlement with a (non-profit) Continuing Care Retirement Community. I don't usually think of CCRCs as being a major target of False Claim Act allegations. Details are a bit sparse, but the size of the payment seemed pretty hefty when you consider that Asbury Health Center near Pittsburgh, PA actually "self-disclosed" its violation of Medicare regulations. The DOJ press release on April 15 explains:
"For post-hospital skilled nursing care, Medicare regulations require that a facility obtain a physician certification at the time of admission or as soon thereafter as reasonable and practical. The facility must also obtain a physician recertification within 14 days of admission and every 30 days thereafter. Based on information provided by Asbury, the United States alleged that it had civil claims against Asbury resulting from Medicare payments for post-hospital skilled nursing services that were not supported by physician certifications and recertifications."
Friday, April 17, 2015
On April 17, the trial continued in State of Iowa v. Henry Rayhons. The evidence included:
- Testimony by a Des Moines geriatrician, Robert Bender: Testified as an expert witness for the defense to explain that Alzheimer's patients often retain sexual desire, even after losing other brain functions such as speech or memory, and can make a "meaningful decision" to be intimate with the person. According to the Des Moines Register, Dr. Bender testified that it would be a "medical mistake" for a doctor to draw an arbitrary line between allowing a patient to kiss and hug but not allowing her to have sex, unless there was evidence the patient was being harmed by the activity.
Further, the defendant Henry Rayhons testified, giving his memory of key events, stating he did not have "sexual intercourse" with his wife on the night in question, while also describing what he means by their "playing." A video segment of his trial testimony is available here. Additional print media coverage of the final day of testimony on Friday is available here.
Additional audio-recording evidence was reportedly presented, from a care conference between Henry, his wife's daughters, and the nursing home staff at which the prosecution alleges Mr. Rayhons was advised of the doctor's conclusion about his wife's inability to consent to sexual activity. Both parties rested their cases on Friday, and according to media reports, the trial is scheduled to resume on Monday, April 27, with closing arguments by both the prosecution and defense.
As additional media reports from the trial today become available, I will supplement this post.
Additional, more comprehensive coverage of the testimony of Henry Rayhons is provided by Bloomburg News' Brian Gruley in Sex with your Wife or Rape? Husband of Alzheimer's Patient Takes the Stand.
In addition, Bloomberg News has "Let's Talk About Sex ... in Nursing Homes," an infographic that charts state policies on sexual rights of nursing home residents and other relevant demographics on population aging.
April 17, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)
Scott E. Townsley, a very bright attorney, an adjunct associate professor at UMBC's Erickson School of Aging Studies, and a principal with CliftonLawsonAllen LLP, invited me to join him recently for a presentation to the 2015 Mid-Atlantic Region Resident Council Conference in Silver Spring, Md. (The lovely D.C. area cherry trees were in full bloom that day.)
Our theme was "Hot Topics in Continuing Care." Scott, a regular consultant to nonprofit CCRCs, used his deep experience in senior housing to outline his perspective on the biggest issues facing CCRCs. In preparation for my part, I reached out to my contacts in resident groups around the country and asked them to share with me their biggest concerns.
We then trimmed down our two respective lists and used a Point/Counter Point approach to the debate. Do any of our readers remember 60 Minutes' James Kirkpatrick and Shana Alexander? (Okay, how about Dan Aykroyd and Jane Curtin's lampoon of the Point/ Counter Point format? I think it is fair to say that we were less political than the first combo, and more polite -- if less humorous -- than the SNL crew. But we had fun.)
With a tip of the hat to David Letterman in borrowing his "top ten" format, here is a very distilled version of my list of Resident Concerns:
10. What does it really mean to be a nonprofit CCRC in 2015?
9. Do we need to worry about conversions of nonprofit CCRCs to for-profit?
8. What is the right response to the trend that residents are older and more disabled, even when first entering the community?
April 17, 2015 in Consumer Information, Dementia/Alzheimer’s, Discrimination, Health Care/Long Term Care, Housing, Property Management, Retirement, State Statutes/Regulations, Web/Tech | Permalink | Comments (3) | TrackBack (0)
Thursday, April 16, 2015
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)
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!
Wednesday, April 15, 2015
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
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:
- New York Times: Sex, Dementia and a Husband on Trial at Age 78. The electronic version of the NYT on April 14 also carried the following as the Quotation of the Day:
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 JUSTIA.Com: When Does an Alzheimer's Patient Lose the Capacity to Consent to Sex? by Cornell Law Professor Sherry F. Colb.
- From the Washington Post: When 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."
- From the Huffington Post: Iowa Case Sheds Spotlight on Whether People With Alzheimer's Can Consent to Sex.
I'll supplement the "Trial Reports" as additional information becomes available. Check back on Wednesday.
Monday, April 13, 2015
University of Georgia Law Professor Elizabeth Weeks Leonard has a forthcoming article in the Minnesota Journal of Law, Science and Technology. 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.
Saturday, April 11, 2015
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.
Friday, April 10, 2015
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."