Friday, May 22, 2015

Removal of Private Guardian Is Latest News in Challenge to Nevada Elder Guardianships

As we described last month, Nevada is one of the states facing serious "elder guardianship" concerns, and specifically concerns about court-appointed, fee-paid private guardians. This week, a Nevada court removed a guardian in one of the cases at issue, calling the problems observed "enormous" and "more than technical." The court commissioner who granted the requested relief continues to be the focus of other inquiries about his supervision of private guardians.  Contact 13 News described matters revealed in its own investigation and presented in court:

Since the fall of 2013, the court has allowed [the guardian] Parks to control every aspect of [an elderly married couple's] lives--where they would live, how their money was spent, what items they could keep--and sometimes, who they could see.

 

"They took my parents," said Julie.  "I didn't know who. I didn't know what."

 

When Contact 13 looked at the guardianship case, we found mistakes, over-charging and double-billing by [guardian] Parks.  Our findings played a key role in Wednesday morning's hearing.

 

"She's costing me $300 an hour to sit here and degrade me and my family," Rudy said. "I will not stand for it and I will not pay for it."

 

Parks' attorney did the talking for her, claiming the process to remove Parks is being rushed, "...based on innuendo, based on hearsay, based on salacious representations made on the media about Ms. Parks," said Aileen Cohen. "This matter is turning into a witch hunt."

 

But Commissioner Jon Norheim was having none of it.  "The idea that she's been compliant? Not even close."

For more about the ongoing inquiry into alleged abuses by private guardians in Nevada, see Couple Liberated from Guardianship System, by Kean Bauman, for Channel 13 News, KTNV, Las Vegas, Nevada. 

UPDATE:  Before the virtual ink had even dried on my posting above about one couple's case, additional word comes that the Chief Judge of the Eighth Judicial District, Clark County, Nevada has ordered systemic review and immediate changes in the guardianship appointment and oversight authority. For the Court's important May 21, 2015 order, see here. Additional details are available from the Las Vegas Review Journal.  

May 22, 2015 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 20, 2015

Massachusetts Case Demonstrates Significance of Contracts in Senior Living Options

This week I attended the 16th Annual Meeting of the Massachusetts Life Care Residents Association (MLCRA) near Boston.  Having last met with the group in 2011, I was impressed with the residents' on-going commitment to staying abreast of legal and practical developments affecting life care and continuing care (CCRC) models for senior living.  Their organization has some 800 individual members, representing a majority of the communities in the state. 

MILCRA Annual Meeting 2015In 2012, MLCRA was successful in advocating for passage of amendments that substituted "shall" for "may" in the laws governing key disclosures to be made to prospective and current residents. 

My preparation for the meeting gave me the opportunity to read one of those troubling "unpublished" -- but still significant -- opinions that shed light on attempts to make consumer protections stick.  Here the "contract" trumped the statute. 

In a February 2014 decision in Krens, v. 1611 Cold Spring Road Operating Company, a son who sought refund of his deceased mother's $282,579 partially "refundable" Entrance Fee was denied relief by a Massachusetts appellate court, despite the fact that Massachusetts law expressly mandated that a continuing care contract "shall provide" for a refund to be paid "when the resident leaves the facility or dies." The reasoning? The actual contract provided merely that the refund could be paid "within 30 days of actual occupancy of the vacated unit by a new resident." More than three years had elapsed since the mother's passing, apparently without the unit being "resold" or rented, and therefore the CCRC operating company took the position that no refund obligation had been triggered.

Continue reading

May 20, 2015 in Consumer Information, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (1) | 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)

Wednesday, April 29, 2015

Systemic Concerns about Adult (Including Older Adult) Guardinships in Nevada

After my blog piece earlier this week about "elder guardianship" concerns in Florida, I've received communications about similar concerns in other states, including Nevada.

According to a report by Contact 13 (ABC affiliate), on April 21 Commissioners in Clark County (Las Vegas area) conducted a "first-of-its-kind" hearing on alleged guardianship abuses that were described by some as "appalling, frightening and plagued by problems." At the heart of the complaints by individuals and family members was frequent court appointment of "private guardians" rather than family members, and an alleged absence of notice to family members about court hearings. A "blue ribbon" panel or expert may be appointed to audit Clark County's court-supervised guardianships.  A recent statement by the Chief Judge for the district court, set forth in full on the Contact 13 website, pledges the court's commitment to "ensuring clarity and instilling public trust in the process of handling guardianship cases.

According to the Las Vegas Review-Journal, the Chief Judge's response follows a series of stories by the Review-Journal about "thousands of elderly and mentally ill in Clark County open to exploitation."

As reported by the Las Vegas media, the problems reported in Nevada are not unique to one county or even to one state, as demonstrated by an Associated Press series of articles in 1987 titled "Guardianships of the Elderly: An Ailing System."   See also the national Center for Elders and the Courts for more information on guardianship reforms in state courts.

April 29, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 28, 2015

Is Georgia A Window Into Political Influence of State Nursing Home Lobbies?

According to the Atlanta Journal-Constitution, the "long-time head of [Georgia's] powerful nursing home lobby has resigned after months of internal differences."  The resignation appears to be about more than just internal politics, perhaps implicating state ethics.  AJC explains:

"The resignation of Jon Howell, first reported by Georgia Health News, came only a few months after he told lawmakers that the industry didn’t need all of the money Gov. Nathan Deal recommended as part of  a rate hike for select nursing homes. Several of those nursing homes are owned by one of Deal’s top contributors. But one state official said the 'civil war' within  the organization began before this year’s General Assembly session.

 

The nursing home association is a major player at the statehouse, and owners have a big stake in what happens at the Capitol. The state pays more than $1 billion a year to nursing homes to care for Georgians. Owners have long been politically active, donating big money to state leaders and lawmakers who fund  reimbursements. Earlier this year, Deal recommended that select nursing homes get a $27 million a year rate increase, a bump stalled by the Department of Community Health board last year...."

Separate articles in the AJC indicate that federal CMS authorities are now seeking millions of dollars of reimbursement for Medicaid payments made to 34 specific nursing facilities, although whether this claim correlates with the governor's recommended rate increase is not clear from the articles.  State officials are reported as disagreeing with the federal CMS ruling that triggers the reimbursement claim.

Recent rate increases recommended by the Georgia governor were rejected by Georgia's General Assembly. Additional coverage on the Georgia nursing home industry's organization is provided by McKnight's Long-Term Care News. 

I suspect the Georgia stories are part of a bigger picture.  Compare, for example, Al Jazeera's America Tonight report from April 2014 on The Whopping Political Power of the Florida Nursing Home Lobby, describing the nursing homes advocating for placement of children into facility-based care.

April 28, 2015 in Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases | Permalink | Comments (0) | TrackBack (0)

Monday, April 27, 2015

News Reports Spotlight Guardianship Issues in the Sunshine State

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)

Iowa's New Law Recognizes Rights of Communication and Visitation in Guardianships

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)

Wednesday, April 22, 2015

Iowa Sexual Assault/Dementia Trial -- and the Jury Says....

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)

Tuesday, April 21, 2015

Closing Arguments in the Iowa Sexual Assault/Dementia Trial (Updated)

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)

Talking about Sexuality, Gender, Aging and Cognition


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. 

To listen to the two half-hour segments, here's a link to the podcast of WITF'-FM's Smart Talk program for April 20, 2015.

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.

Download 150420 SHOW A

 Download 150420 SHOW B

Download 150420 SHOW C 

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

Day 8 Report from the Iowa Sexual Assault/Dementia Trial

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

Over the weekend, reporter Sarah Boden at Iowa Public Radio ran a report on the trial, with the podcast available 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)

Friday, April 17, 2015

Day 7 Report from the Iowa Sexual Assault/Dementia Trial

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

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

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

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

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

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

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

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

Thursday, April 16, 2015

Day 6 Report from Iowa Sexual Assault-Dementia Trial

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

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

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

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

 

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

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

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

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

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)

Friday, April 10, 2015

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

Day 1 Report of Iowa Sexual Assault-Dementia Trial

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

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