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Elder Justice Act Under Obamacare Fails Seniors – Part 1 and Part 2
- by Nancy Thorner
- July 8, 2015
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A few weeks ago, Tom Field, a 25-year advocate of legal reforms as they apply to the elderly, reached out to Nancy Thorner via a phone call from Mentor, Ohio, to ascertain whether Thorner had further interest in pursuing the issue after reading an article emailed to him and others that Thorner had written on July 9, 2011 titled, “Allegations of Alleged Corruption and Abuse at the Probate Court Level in Cook County, IL.”
What prompted Tom Fields to devote 25 years as an elder care/abuse advocate were the circumstances that surrounded his dad’s death in Florida. Read here the story Fields wrote about this tragic happening.
As background to understanding what exists at the present time to deal with elder care and its abuse, it is necessary to know what laws have been enacted and the reach and application of these laws.
The Elder Justice Act of 2010
The Elder Justice Act was enacted as part of the Patient Protection and Affordable Care Act (PPACA), also known as Obamacare, on March 23, 2010. The Office of Elder Justice and Adult Protective Services manages the operation, administration, and assessment of elder abuse prevention, legal assistance development, and pension counseling programs. The act itself applies to long term care providers who have received at least $10,000 during the previous year in federal funds. As can be noted below, under the statute assisted living facilities do not qualify as long term care providers.
- Nursing facilities
- Skilled nursing facilities
- Inpatient hospice units
- Intermediate care facilities for mentally disabled
After Thorner’s cursory reading of The Elder Justice Act, it sounded quite acceptable, at least in its written form, but further research indicated that it was a mistake to have focused exclusively on the written word. In doing so overlooked was what the Act doesn’t do.
Further research revealed that funding for the Elder Justice Act is allocated by the Older Americans Act (OAA), established in 1965 in response to concern by policymakers about a lack of community social services for older persons. Amended numerous times since 1965, the original OAA legislation established authority for grants to States for community planning and social services, research and development projects, and personnel training in the field of aging. Now days the OAA is considered to be the major vehicle for the organization and delivery of social and nutrition services to the aging through APS (Adult Protective Services).
Regarding funding, in FY 2014 less than $9 million or 0.5 percent of total OAA funding went to the APS for the prevention and detection of elder abuse. It is Adult Protective Services (APS) that provides services to insure the safety and well-being of elders and adults with disabilities who are in danger of being mistreated or neglected, are unable to take care of themselves or protect themselves from harm, and have no one to assist them. In most states, APS caseworkers are the first responders to report abuse, neglect, and exploitation of vulnerable adults.
Should this lack of APS funding be a legitimate excuse for ignoring elderly abuse? Increased APS funding, which seems to be the government’s solution to solving all of its problems, is not needed to correct the failure of our laws to establish a mechanism that will alert authorities to deplorable and heart-wrenching situation, nor will increased APS funding ensure that authorities will respond correctly to situations involving elderly abuse.
Defining Elder Care Abuse
Although the true prevalence of elder abuse is unknown primarily due to lack of consensus regarding the definition, the failure to follow through with action that either causes harm or places older adults at risk of harm, or within harm’s way, are systematic of abuse situation. Abuse may take the form of physical, mental, emotional, and/or financial.
Much material exists about the exploitation of adults by professional guardians. As already noted, one of the articles Thorner wrote in 2011 prompted Tom Fields to reach out to her. Her article, “Abuse and Corruption Rampant in Probate Court of Cook County, IL”, exposed the wide spread corruption in the Chicago Probate Court System. Thorner details how a judge removed the power of attorney from a daughter who was caring for her elderly mother. With a court appointed custodian, over time the daughter’s elderly mother’s funds were depleted in a process that involved a corrupt judicial system in which the presiding judge, a court-appointed power of attorney, and a compliant nursing facility all colluded to propagate the elder abuse scheme. The husband of the elderly mother’s daughter, who wasn’t even allowed to visit her mother in the nursing home after her custodianship was removed, set up this website to note and expose other situations involving elderly abuse and judicial corruption.
Tom Fields’ video as a powerful example of elderly abuse
The elderly abuse in this video was shared by Tom Fields and addresses the need for legislation to prevent the financial exploitation of the elderly. The scene is from a 3-minute video recorded in a hospital’s emergency room. The ABC News Broadcast of the video can be viewed here, as part of an online report that was presented by ABC on elder abuse.
The elderly patient in the video has just suffered a massive stroke. The attorney is presenting the patient a will to sign. The attorney is recording the video in order to present it as evidence that the patient’s condition is not being financially exploited. In fact, the video ended up being key evidence that resulted in the attorney being disbarred and indicted on criminal charge.
Accordingly, the video reflects a situation that happens all too often when the validity of the ward’s POAs (Power of Attorneys) is challenged and ignored. It matters not whether the issues involved are simple or complicated, if lawmakers are derelict in doing what is expected of them to prevent the cognitive impairments of the elderly from being exploited. Additional abusive guardianship situations can be viewed here.
Little more is required than (1) a simple checklist which identifies the most obvious situations, such as the one recorded by the video; (2) a law which requires authorities and/or affected family members to be notified in those situations; and (3) a script for authorities to follow that ensures they interview the subject in a manner which meets forensic standards that prevent interested parties from biasing or otherwise interfering with the interview.
The moral arising from Tom Fields’ video is as follows: No scam should be simpler to prevent than one which take place in the emergency room of a hospital, yet our government and professional associations have repeatedly proven themselves unequal to this task. .
Questions addressing elements of federal laws that facilitate rather than stem exploitation
Neither the Elder Justice Act, nor any other laws now in place, can be counted upon to reliably prevent or remedy the kinds of scams many are experiencing at the hands of legal professionals to prevent financial exploitation while attending to their elderly loved ones or friends with cognitive impairments
As to the video itself, it provides the context for the following rather lengthy list of questions posed by Tom Fields which address elements of federal laws which not only facilitate the exploitation of cognitively-impaired older adults, but which also are responsible for its under-reporting. Fifteen of the questions have been noted here.Check here for the remaining eight questions.
1) Does the video provide any REASONS FOR SUSPECTING that this victim was being financially exploited?
2) Does the video suggest that the LAWYER WAS AWARE that someone might reasonably suspect that this victim was being taken advantage of?
3) Did MANDATORY REPORTING LAWS protect this victim against being taken advantage of?
4) Did ADULT PROTECTIVE SERVICE LAWS protect this victim against being taken advantage of?
5) Did GUARDIANSHIP LAWS protect this victim against being taken advantage of?
6) Did the ADA (Americans With Disabilities Act) protect this victim against being taken advantage of?
7) Did the OAA (Older Americans Act) protect this victim against being taken advantage of?
8) COULD OUR LEGISLATURE include in our mandatory reporting laws a provision that would require mandatory reporters to report circumstances such as these?
9) SHOULD OUR MANDATORY REPORTING LAWS INCLUDE a provision that would require mandatory reporters to report circumstances such as these?
10) TO WHOM SHOULD OUR MANDATORY REPORTING LAWS REQUIRE NOTIFICATION in situations such as this one? A representative of the hospital, such as its risk manager or patient ombudsman? Adult Protective Services? Law enforcement? Affected family members? At least one of the above? All the above?
11) SOME STATES DEFINE “EXPLOITATION” as the unlawful or improper act of a caretaker. SHOULD THESE STATES AMEND THEIR CODE so as to include the unlawful or improper acts of others, as do the statutes of other states, including Florida, as well as the Older Americans Act?
12) DO OUR LAWS REQUIRE A MEDICAL EXAMINATION of the subject in order to establish the validity of a will, trust, deed, POA or other significant document that is executed in a situation like this?
13) SHOULD OUR LAWS REQUIRE a medical examination of the subject in order to establish the validity of an important document that is executed in a situation like this?
14) WOULD A MEDICAL EXAMINATION of the subject suffice to establish the validity of an important document that is executed in a situation like this?
15) CAN SOMEONE WHO IS MENTALLY COMPETENT still be defrauded or unduly influenced into executing an important document in a situation like this?
Severe cognitive impairment vs. mild
Both the government and professional associations, including the American Bar Association and the Investor Protection Trust (IPT), could and should do a lot more to prevent scams by implementing the recommendations of the American Medical Association and others, but none do, despite awareness of what they need to do.
To the contrary they ignore the needs which arise when an elderly individual suffers from “severe” cognitive impairment — such as was depicted in the 3-minute video — in contrast to “mild” cognitive impairment which is characterized by Investor Protection Trust as mild cognitive impairment occurring in seniors who can perform most daily functions, but have trouble or become confused with others, such as following their medicine regimen and managing their finances.
Part 2 will discuss the negligence and fraud which plagues our court system and has destroyed confidence in not only our legal system. but also more generally in our government, as well as proposed legal reforms.
— Nancy Thorner
Nancy Thorner writes for Illinois Review.
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White House Conference on Aging: Will Elder Justice be Addressed Sufficiently?
- by Nancy Thorner
- July 9, 2015
As noted in Part 1, Tom Fields of Mentor, Ohio, as a 25-year advocate for legal reforms to fix the broken elder care system, provided links and documents for me to focus attention on the issue of Elder Justice. At the same time, Mr. Fields alerted me to the upcoming White House Conference on Aging which should serve as a venue to discuss Elder Care Justice and the remedies and reforms so urgently needed to fix a failing system.
Next Monday, July 13, the White will host its 5th Conference on Aging, as it has once every decade since 1961, to identify and advance actions to improve the quality of life of older Americans. As 2015 marks the 50th anniversary of Medicare, Medicaid, and the Older Americans Act, as well as the 80th anniversary of Social Security, the 2015 White House Conference on Aging is an opportunity to recognize the importance of these key programs as well as to look ahead to the issues that will help shape the landscape for older Americans for the next decade.
Organizers of the July 13th conference have singled out the following four themes for consideration.
Each of the four themes have been addressed by the White House Conference on Aging (WHCOA) in a series of policy briefs made available on-line. The WHCOA has also invited public comment and published them on-line along with its briefs. This comment contributed by Tom Fields on the subject of Elder Justice can be found at 6/10/2015 3:01:04 PM. In the past the conference processes were determined by statute with the form and structure directed by Congress through legislation authorizing the Older Americans Act. Of concern is that to date Congress has not reauthorized the Older Americans Act, and the pending bill does not include a statutory requirement or framework for the 2015 conference.
In an effort to engage with older Americans, their families, caregivers, leaders in the aging field and others on the key issues affecting older Americans, the White House Conference on Aging did launch a series of five regional forums to help provide input and ideas for its July Conference, co-sponsored with AARP and co-planned with the Leadership Council of Aging Organizations (a coalition of more than 70 of the nation’s leading organizations serving older Americans).
Tom Fields, as an attendee at the Cleveland regional forum, encouraged WHCOA organizers to address a checklist of the kind that he has proposed for use in clinical and other settings at his website . Fields further requested at the Cleveland regional forum that his 3-minute video be presented and discussed, which ABC News presents online at this site and reports on here.
Why the need to address a checklist at WHCOS?
The American Medical Association in the past has recognized the need for a checklist in clinical settings. More specifically, the AMA reported the following:
“Every clinical setting should have a protocol for the detection and assessment of elder mistreatment. This may be a narrative, a checklist, or some other type of standardized form that enables all providers in that practice setting to rapidly assess for elder mistreatment and document it in a way that allows physicians to look at patterns over time.” (Source: Diagnostic and Treatment Guidelines on Elder Abuse and Neglect, American Medical Association, 1992, pages 7-12)
The AMA in the same report offered the following advice:
“Clinicians do not have to prove that elder mistreatment has occurred; they need only document a reasonable cause to suspect that it has. “Reasonable cause” reporting can be as simple as stating that the patient seems to have health or personal problems and needs assistance, especially if the clinician suspects forms of abuse or neglect that are difficult to quantify.”
The AMA even had thoughts on how the interview should be conducted:
“The interview and examination of an elderly patient should always be conducted first, away from the caregiver or suspected abuser.”
As suggested by Tom Fields, a well written checklist would identify specific signs of severe cognitive impairment, any one of which should provide a mandatory reporter of abuse to suspect and then report an abusive situation.
The checklist’s criteria could be determined by victims as well as experienced professionals in the fields of medicine and law; nevertheless, it is victims and experienced medical professionals who can best identify conditions which suggest severe cognitive impairment to competent medical authority.
As to the objectives of the checklist, it would be to assist in identifying those conditions which should provide competent medical or legal authority — not necessarily both — a reason to suspect that the subject is suffering severe cognitive impairment, where severe cognitive impairment is the condition, which, either alone or in conjunction with physical impairment, prevents a subject from performing everyday activities without assistance.
Value of playing and discussing 3-minute video at WHCOA
As Elder Justice is one of the four themes selected for consideration by the conference, it is urgent that a positive response be directed toward elder abuse, which often involves the exploitation of an elder’s cognitive impairment.
Accordingly, the message sent by the 3-minute video cannot be denied or overlooked: No scam should be simpler to prevent and remedy than one which takes place in the emergency room of a hospital.
The above statement of fact should prompt WHCOA members and others to ask and seek answers to questions such as:
- What would it cost to prevent such scams?
- What have federal and state lawmakers done to prevent such scams?
- What has the U.S. Senate Special Committee on Aging done to prevent such scams?
- What have the American Bar Association, state bar associations, and local bar associations done to prevent such scams?
- What have the Elder Justice Act and other laws done to prevent such scams?
- What has the Consumer Financial Protection Bureau done to prevent such scams?
Scams involving financial exploitation are rampant
The scams most authorities focus on today involve the exploitation of elders suffering a mild cognitive impairment, which has been characterized by the Investor Protection Trust and others as a condition of seniors “who can perform most daily functions, but have trouble or become confused with others, like following their medicine regimen and managing their finances”
Financial abuse of the elderly is running rampant in the country and is growing as the population ages. Yet, there are few consistent national standards for what financial advisors, who deal with the money elderly people have worked a lifetime to save, should do when they suspect abuse. Input is being sought at the site noted on fraud against the elderly.
Professionals’ judgements contribute to both the prevalence of abuse and the ability to prevent and intervene. As suggested in this study: “Identifying and enhancing risk thresholds in the detection of elder financial abuse: a signal detection analysis of professionals’ decision making”, it is desirable to try and bring novice professionals’ judgmental risk thresholds to the level of competent professionals as quickly and effectively as possible.
It is quite telling that the exploitation of mild cognitive impairment has not changed from what it was back in 1939 when Fred Rodell, wrote in his book, “Woe Unto You Lawyers”: “The legal trade, in short, is nothing but a high-class racket. It is a racket far more lucrative and more powerful and hence more dangerous than any of those minor and much-publicized rackets
In Conclusion
The following question should be of concern to all senior citizens. If government and professional organizations are not going to do what is necessary in order to protect you from being scammed while your cognitive abilities are “severely” impaired, are they really going to do what is necessary to protect you from being scammed if their cognitive abilities are only “mildly” impaired or not impaired at all?
Over three years ago, in 2012, Tom Fields submitted a 16-page document in response to a request for information by the CFPB’s (Consumer Financial Protection Bureau) on the financial security of older Americans. So far the federal government has remained delinquent on the issues surrounding elder care.
With the White House Conference on Aging set for July 13, will the 5th conference accomplish anything of note to help prevent elder abuse scams?
Calls must be made to the White House and to elected legislators with a message reminding them that seniors are a powerful force in politics and society. They deserve to be treated with dignity and should not be used as pawns by some in the legal profession as a means to enrich themselves financially from those who lack the cognitive ability to perceive what is happening, through devious means.
In Chicago and in many cities throughout the U.S., elder abuse scams happen with regularity in the Probate Courts, but justice is rarely served, as the fraud perpetrators are not apprehended.
Some supplementary reading material:
- “Wills, Testamentary Capacity, and Undue Influence”, Irwin Perr, MD, JD, Bulletin of the AAPL, Vol IX, No. 1, pages 15-22
- “Undue Influence and Written Documents: Psychological Aspects”, Margaret Thaler Singer, Ph.D., Cultic Studies Journal, Vol 10, No. 1, 1993, pages 19-32
- “Should Attorneys Have a Duty to Report Financial Abuse of the Elderly?”, Carolyn Dessin, Akron Law Review, Vol. 38, p. 707, 2005
- Financial Abuse of the Elderly; A Detective’s Case Files of Exploitation Crimes, Joe Roubicek, 2008, Chapter 6
— Nancy Thorner
Nancy Thorner writes for Illinois Review.
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