Saturday, July 18, 2020

In Minnesota, the pandemic doesn’t prevent seniors from being forced to leave assisted living facilities

While Gov. Tim Walz has instituted a temporary ban on most evictions in Minnesota, current law provides no way to appeal terminations of medical services at assisted living facilities, which can force people from their homes.

By Walker Orenstein

In 2019, the Legislature approved new protections from service terminations for residents of assisted living facilities, including several protections that were already afforded to people in nursing homes and group homes.
Photo by james williams on Unsplash
In mid-June, Lisa Layman’s mother was in hospice, suffering from Alzheimer’s and nursing a fractured pelvis from a fall. Then she got an eviction notice.

Her lease would be canceled and her medical service ended within days. Layman’s family suspected they were being punished after clashing with leadership at New Perspective Senior Living, an assisted living facility in Mahtomedi, over the quality of their mother’s care. New Perspective said Layman’s mother needed a higher level of medical help.

Yet there was little the family could do but look for new housing for their mother. The search was “horrifying,” Layman said, and complicated by a pandemic that had killed dozens of Minnesota seniors every week. “It has been as traumatic as we expected,” she added.

While Gov. Tim Walz has instituted a temporary ban on most evictions in Minnesota, current law provides no way to appeal terminations of medical services at assisted living facilities, which can force people from their homes. “There is no right to due process,” said Cheryl Hennen, Minnesota’s ombudsman for long-term care.

And though state lawmakers passed a new set of protections in 2019 for seniors who face a suspension of medical care, many of the rules are not scheduled to be implemented until August 2021.

Stories like Layman’s have spurred legislators to propose a bill that would speed up the start date for new regulations. But that effort has met resistance from the industry, and it is just one of many issues lawmakers are addressing during a brief special session. 

In the meantime, senior advocates say the elderly remain unusually vulnerable to losing housing during an outbreak that puts older Minnesotans at the highest risk of death.

A fractured relationship, then an eviction

Layman’s mother, 77, first arrived at New Perspective in April 2019. She had moved into memory care about three years ago, and left her first assisted living home after staff at the facility made medical mistakes and was not providing adequate services, Layman said. 

At New Perspective, staff assured the family that the experience would be different. But the situation soon turned sour. Layman said New Perspective took her mother — an affable former salesperson with a penchant for travel — on fewer excursions outside the facility than expected, and failed to deliver on promised activities such as video calls with family. But, more important, Layman’s family said New Perspective made errors in giving medication, was understaffed, undertrained and resisted family efforts to put a camera in their mother’s room. (State law authorizes cameras.)

Then, in early June, Layman’s mom fell and fractured her pelvis. A visiting doctor recommended the family consider moving her into a nursing home, though Layman said they felt the doctor was making a suggestion rather than an urgent directive.

On June 15, the family received letters from the facility giving notice of eviction on June 23 along with a notice of a termination of medical services on June 19. The letter cited “recent change” in the condition of Layman’s mother “resulting in the need for services that exceed the current service plan and that cannot be safely met by the community.”

Layman contends her mother’s health could have been managed by the facility, and said New Perspective failed to actually detail why they believed her mother could not be cared for there. She sought help from attorneys and state officials, and believes the service termination was pursued in retaliation after the clashes over the camera and standards of care. 

In a prepared statement, New Perspective’s vice president of marketing and communication, Doug Anderson, said the facility “has not and will not terminate its services to a resident out of retaliation.”

Despite the turbulent experience at New Perspective, Layman felt the prospect of moving her mother, who had weeks to live, seemed worse than trying to improve relations. “To be told we’re looking at weeks — it just seems really cruel to evict her and cruel to try and do a move,” Layman said.

Layman could have tried to fight the eviction under the provisions of Walz’s moratorium. But there is little that can be done under Minnesota law to contest the suspension of medical care at an assisted living facility, which can effectively serve as an eviction. Without care, Layman said her mother would have no help bathing, eating, or receiving medications. “This would just be leaving mom in a room,” she said.

While Anderson declined to give any specific information related to Layman’s mother, citing federal and state privacy laws, he said residents sometimes develop “needs that warrant a higher level of care than the services we can offer within an assisted living setting.” That higher level of care may include a nursing home, Anderson said, “which provides for around the clock onsite nursing care.”

When a resident does need more care, Anderson said, the facility works with doctors, health care providers, a resident’s legal representative and more “in supporting any transition to another setting.” (Layman says that New Perspective offered no help in finding new care for her mother.)

“We continually focus on everything we can do to promote the health, safety, dignity, rights and best interests of each of our residents,” Anderson said.

New regulations coming. In 2021.

Layman’s story is not unique. In 2019, the Legislature approved new protections from service terminations for residents of assisted living facilities, including several protections that were already afforded to people in nursing homes and group homes. The legislation also defined and prohibited retaliation, and notably provides a right to appeal a termination of medical services to an administrative law judge.

The measures came as part of a sweeping set of new regulations that created a licensing system for assisted living facilities after a series of stories by the Star Tribune detailed widespread elder abuse in Minnesota’s long-term care industry. Ron Elwood, an attorney for Legal Aid, said Minnesota was the last state in the country to license assisted living.

Still, much of the 2019 law, including the right to appeal, does not go into effect until August 2021.

The gap was intentional. It was meant to allow the state and assisted living providers to piece together the complex new licensing system. But lawmakers had not anticipated a deadly pandemic surfacing.

Hennen, Minnesota’s long-term care ombudsman, said complaints of evictions and service terminations at assisted living facilities and nursing homes have continued during the COVID-19 outbreak. Between March 1 and June 26, their office opened 79 cases in response to complaints of violations of resident rights in assisted living facilities, and 71 cases in nursing homes.

Hennen said her office, along with the state Attorney General and other senior advocates, have prevented some evictions at long-term care facilities, though some people likely slip through the cracks if they don’t know their rights. She urges people to contact the office if they have questions or concerns about transfers or discharges from an assisted living facility or nursing home. 

Even so, she said there is little her office can do to help someone contest an arbitrary service termination. 

Suzanne Scheller, an attorney for Layman and legal adviser for Elder Voice Family Advocates, which helped write the 2019 law, said any service termination “appears to be more egregious because of the time we’re living in.”

In some instances, Scheller and Hennen said a senior who can’t find proper help and housing after their medical care is suspended sometimes must move to a hospital or a homeless shelter.

Closing ‘back door’ evictions

In light of the pandemic, a group of state lawmakers are hoping to speed up implementation of parts of the 2019 law.

State Rep. Ginny Klevorn, DFL-Plymouth, and Sen. Scott Dibble, DFL-Minneapolis, introduced a bill this week that would give residents of assisted living facilities the right to appeal to an administrative law judge starting in August, among other measures aimed at limiting service terminations and making them less difficult for residents.

“In cases where families or individuals are having their services terminated it’s not an eviction,” Klevorn said. “But if they can’t get the services they need they have to leave. It’s a way to look at this back door and make sure that it’s closed.”

The Legislature is currently in its second special session of 2020, and lawmakers are focused primarily on negotiating a bonding bill of construction projects, tax measures, and police reforms in the wake of Minneapolis police killing George Floyd.

Klevorn’s measure also faces opposition from some senior care businesses.

Patti Cullen, president and CEO of Care Providers of Minnesota, a trade association that represents long-term care providers, said they supported the 2019 law after lengthy negotiations. Some provisions could be implemented faster, Cullen said, such as a measure to require in-person meetings with residents before services are terminated.

But she said putting new rules onto assisted living facilities that are laser focused on COVID-19 prevention could prove burdensome. In April, the Minnesota Department of Health, which would regulate the assisted living industry, proposed delaying licensing under the 2019 law for another year because the agency has been fixated on other aspects of pandemic response. (The agency did not comment on Klevorn’s legislation.)

Cullen said Care Providers support a delay, and said Klevorn’s bill “can’t be operationalized because it’s applying a new system to a license that doesn’t exist yet.”

“We’ve been kind of struggling with how that language would actually work, just to be blunt,” she said.

Cullen also defended medical service terminations. The vast majority, she said, are because a resident does need a higher level of care than a facility can provide. Some are because a resident is a violent risk to themselves or others. And others are because a resident can’t pay for services. Plus, eviction protections remain in law the same as they are for any renter, Cullen said.

Sen. Karin Housley, a St. Mary’s Point Republican who chairs the Senate’s Family Care and Aging Committee, said she supported consumer protections for residents of assisted living facilities but also had concerns about the burden on care providers. She said a version of Klevorn’s bill circulated by Elder Voice was “overly broad” and she opposed parts unrelated to the service terminations.

Housley said senior advocates and the long-term care industry would need to reach a compromise in ongoing private negotiations to pass anything during the special session in Minnesota’s politically divided Legislature. The GOP has a majority in the Senate, while Democrats have a majority in the House.

A plea for action

Layman also waded into the political debate, saying she hopes new regulations would help people in her family’s situation in the future. She still believes, however, that problems with the assisted living industry run deep, and that New Perspective tried to run afoul of Walz’s existing eviction protections.

“The only reason we had her live there was all of our research and all of the people we talked to said it would be a good place,” Layman said. “And then it wasn’t. Who is to say the next place would be any better?”

Her mom did eventually relocate to a St. Paul nursing facility. But the move was painful, Layman said, and her mother has declined further. She now has days to live. 

“I would just implore whoever the decision makers are in this to expedite the rules,” Layman said.

Full Article & Source:
In Minnesota, the pandemic doesn’t prevent seniors from being forced to leave assisted living facilities

Pa. nursing home data used to track covid-19 deaths, cases riddled with errors

by Jamie Martines

Data posted online this week by the Pennsylvania Department of Health shows 76,336 residents at an Elk County nursing home have died from covid-19. The home is licensed to house 138 residents.

The state listed 133 deaths at an Erie facility that previously reported no cases among residents or staff. That facility is licensed to house 133 residents.

These are obvious and extreme errors. But they are two examples of challenges the health department continues to face in its effort to report weekly snapshots of how nursing and long-term care facilities are coping with the coronavirus pandemic.

Two months ago, the first facility-level reports included errors and disputes over whether some deaths should be attributed to covid-19. Today, those errors are causing frustration for families who have loved ones in homes and those who must make the difficult decision to place a relative in such a facility during the pandemic.

“We’re trying to get a handle on where the cases are, how many,” said Diane Menio, executive director of the Philadelphia-based advocacy group CARIE, the Center for Advocacy for the Rights and Interests of the Elderly. “We hear things anecdotally through residents and families, but we’re not necessarily aware other than seeing these reports.”

Such reporting mistakes typically are redacted by health department team members and replaced with “no data” before the reports are made public, spokeswoman Maggi Mumma said in an email Tuesday. “But it would appear that these errors were missed,” Mumma said.

That is small consolation, Menio said.

“Many of the facilities we’re looking for have no data,” she said. “We want to know where the hot spots are.”

Discrepancies in the data

Nursing home residents — generally elderly people with underlying health conditions, living in communal settings — have been among the most vulnerable populations since the start of the coronavirus pandemic earlier this year.

The need to track cases at long-term care facilities became apparent in March as outbreaks hit nursing homes in Washington state, Illinois and New Jersey, where cases were linked to staff who worked at multiple facilities. Shortages of personal protective equipment for staff and residents also contributed to the spread of the virus.

In Pennsylvania to date, nursing home resident deaths make up about 68% of the nearly 7,000 deaths attributed to covid-19, state data shows.

The state’s weekly facility-level report released Tuesday reflects a statewide total of as many as 3,437 nursing home deaths. But a separate daily coronavirus report generated by the state that same day lists 4,712 nursing home deaths — a difference of more than 1,000 people.

The discrepancy, Mumma said, is because the different reports rely on different sources for data. The numbers in the daily update are pulled from the National Electronic Disease Surveillance System, or NEDSS. The weekly report, though it previously included data from NEDSS, was changed in June to rely only on data reported directly by the nursing facilities.

“We still have challenges with facilities reporting and cannot rely on facility reports for an overall statewide picture,” Mumma said.

Of the 694 facilities included Tuesday in the weekly report, 132 long-term care facilities reported “no data.” That included facilities that previously reported double-digit case and death counts.

St. Barnabas Nursing Home in Richland is one such facility. State reports last included data from the 152-bed facility on June 10 and indicated that those figures were pulled from NEDSS.

That report showed 62 resident cases — 14 staff cases and 31 resident deaths — which was more deaths than at any other facility in Allegheny County, both at the time of that report and according to the most recent data.

But those figures are likely not accurate, said J.D. Turco, senior vice president and chief financial officer for St. Barnabas Health System.

“I do believe that those numbers are elevated,” Turco said. “I’m going to say they’re probably between 15% to 20% high. However, still take that into consideration, it’s not a good number.”

Facilities are required to report data to several agencies in addition to the state health department. Definitions across agencies often differ for what qualifies as a covid-19 death or case. That leads to disputes over how many individuals were residents of a facility when they were sick, Turco said.

Since June 10, St. Barnabas has added one staff member case and one resident case, Turco said. There have been no additional deaths, he said.

“We are reporting our data every day,” Turco said. He added that the state has confirmed it is receiving the information, but he couldn’t explain why those figures were not updated in the weekly report.

Technical issues and typos add to challenges

A weekly report released July 7 included 211 facilities that listed “no data,” up from 106 facilities a week earlier.

That increase was caused by a problem with the software used to collect data from facilities, health department spokeswoman April Hutcheson said at the time.

Mumma on Wednesday added that the department is no longer relying on NEDSS to fill gaps in the self-reported, facility-level data.

“We want to encourage folks to report,” she said. “We are only including the self-reported data.”

Officials from Pinecrest Manor in St. Marys, the Elk County facility incorrectly reporting more than 76,000 deaths, did not respond to multiple messages seeking comment. Previous health department reports show that the facility did not report any covid-19 deaths or cases prior to Tuesday’s report.

Officials from Guardian Healthcare, which manages Western Reserve Healthcare and Rehabilitation Center in Erie, said Tuesday’s report of 133 deaths was a typographical error. They confirmed that the facility has had no cases or deaths to date.

“The safety of our residents and our employees remains our top priority,” a statement from Guardian Healthcare said. “We are exceptionally proud of our caregivers for all of their hard work during recent months; they are truly health care heroes.”

Mumma said those facilities likely uploaded data into incorrect fields.

Zach Shamberg, president and CEO of the Pennsylvania Health Care Association, which represents for-profit nursing homes in the state, said it’s unfair to blame facilities for problems with the state’s data collection system.

Pinecrest Manor, Western Reserve Healthcare and Rehabilitation Center and St. Barnabas Nursing Home are not members of PHCA, Shamberg said. But members have reported confusion over definitions of what data must be submitted, log-in issues and technical problems such as not receiving a receipt to confirm that data was successfully submitted, he said.

“Providers are spending every waking moment — or at least they should be — to try to protect their staff and residents,” Shamberg said. “No administrator, no front-line staffer, should be spending hours in front of a computer trying to log in to this system. That’s just not good enough.”

In a June 18 letter, the health department threatened nursing home administrators with daily fines or prison time if they did not comply with reporting requirements.

Health department officials confirmed Thursday that no penalties have so far been issued.

“We are continuing our work to hold nursing home operators accountable who are not complying with the department’s orders, and will take action, as needed,” health department Spokesman Nate Wardle said.

All of these reporting issues are playing out as facilities work to fulfill a health department directive requiring facilities to test all residents and staff by July 24.

As of Wednesday, 349 — or about 50% — of the state’s facilities had completed the testing.

Those results are included in NEDSS and the public facility-level data, Mumma said.

The next weekly facility-level update is expected to be released July 21.

Full Article & Source:
Pa. nursing home data used to track covid-19 deaths, cases riddled with errors

Covington woman, 53, arrested for fraud, elderly abuse

Sandra D. Paulsen. Photo/Fayette County Jail.
By Ben Nelms

A Covington woman who traveled to Chamblee attempting to cash a check stolen in Fayetteville ended up in the Fayette County Jail.

Sandra D. Paulsen, 53, was charged with two counts of financial identity fraud and two counts of elder abuse, according to Fayette County Jail records.

Sheriff Barry Babb said a business mailbox was broken-into in the Kenwood Business Park on March 16.

Paulsen on a later date attempted to cash the check in Chamblee, at which time the Fayetteville business was alerted, Babb said.

The check Paulsen attempted to cash had been written to the business by an elderly couple as payment for services, said Babb, adding that both their names were on the check.

Paulsen was subsequently arrested at her home in Covington on July 14.

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Covington woman, 53, arrested for fraud, elderly abuse

Friday, July 17, 2020

Missouri to allow nursing home residents and families to install video cameras in rooms

Julie Griffith, Mabel Porter & David Griffith
JEFFERSON CITY — Missouri nursing home residents can have surveillance cameras placed in their rooms starting in August, subject to certain rules, under a bill signed into law Tuesday by Gov. Mike Parson.

The measure, backers say, will help prevent abuse or neglect and aid investigations into misconduct at long-term care facilities.

And cameras will also simply allow families a window into their relatives’ care — a greater need after nursing homes banned indoor visitations in March to help prevent the spread of COVID-19, said Marjorie Moore, executive director of VOYCE, a Creve Coeur-based nonprofit that pushed the legislation with support from AARP and the Missouri Coalition for Quality Care.

“With COVID-19 shutting long-term care communities down for nearly four months, some longer, this is more than necessary,” Moore said.

Residents’ mental and physical health were negatively affected when they no longer could visit with family and friends or socialize with other residents, according to VOYCE. Many families in the St. Louis area have also complained of difficulty getting information about loved ones living inside facilities where the virus has spread, including Cyndi Niehoff, who called to check up on her mother at Frontier Health & Rehabilitation March 29 only to learn she had died after testing positive for COVID-19 two days earlier.

Nursing homes nationwide have been particularly hard hit by the virus, which is dangerous to older adults and people with preexisting medical conditions.

COVID-19 has killed at least 305 residents and three employees at about 80 federally licensed nursing homes across Missouri and has infected more than 1,245 other residents. Dozens of other types of residential care facilities have also been affected, according to the Missouri Department of Health and Senior Services.

“It’s an important bill for this time,” said Rep. Jim Murphy, R-Oakville, who sponsored the legislation Parson signed Tuesday. “It gives our citizens the opportunity to look in on their loved ones and protect them from abuse and just see what is going on.”

The Missouri Health Care Association, the state’s chief nursing home industry group, had lobbied against the video camera measure in past years, citing concerns any footage could be released out of context and violate residents’ and employees’ privacy.

The association reached a compromise this year with backers of the bill to prohibit footage from being released without permission from both the resident or the resident’s family and the nursing home operator, Murphy said. The law makes an exception for officials investigating abuse or neglect.

Legislation that would allow cameras in nursing homes also gained traction in other states this year after visitation bans at nursing homes renewed interest in the subject. About a dozen states already have laws or regulations in place allowing residents and their families to install video cameras in nursing home rooms.

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Missouri to allow nursing home residents and families to install video cameras in rooms

Blame game? Cuomo takes heat over NY nursing home study


Virus Outbreak Wary New York

FILE —In this April 17, 2020, file photo, a patient is prepared to be loaded into the back of an ambulance by emergency medical workers outside Cobble Hill Health Center in the Brooklyn borough of New York. Cuomo also ordered nursing homes to accept recovering coronavirus patients to free up hospital beds, a move since blamed for the rapid spread of the disease in those facilities. More than 6,400 people have died of coronavirus in New York nursing homes, and the policy was later rescinded — though state officials argued it was employees who were causing the outbreaks. (AP Photo/John Minchillo, File)
NEW YORK (AP) — New York Gov. Andrew Cuomo is facing blistering criticism over an internal report that found a controversial state directive that sent thousands of recovering coronavirus patients into nursing homes was “not a significant factor” in some of the nation’s deadliest nursing home outbreaks.

Scientists, health care professionals and elected officials assailed the report released last week for flawed methodology and selective stats that sidestepped the actual impact of the March 25 order, which by the state’s own count ushered more than 6,300 recovering virus patients into nursing homes at the height of the pandemic.

And some accused the state of using the veneer of a scientific study to absolve the Democratic governor by reaching the same conclusion he had been floating for weeks — that unknowingly infected nursing home employees were the major drivers of the outbreaks.

“I think they got a lot of political pushback and so their response was, ‘This isn’t a problem. Don’t worry about it,’” said Rupak Shivakoti, an epidemiologist at Columbia University’s Mailman School of Public Health.

“It seems like the Department of Health is trying to justify what was an untenable policy,” added Charlene Harrington, a professor emerita of nursing and sociology at the University of California at San Francisco.

Cuomo, who has been praised for leadership that helped flatten the curve of infections in New York, has also been criticized over his handling of nursing homes, specifically the order that told homes they could not refuse to accept recovering COVID-19 patients from hospitals as long as the patients were “medically stable.” The order barred homes from even testing such patients to see if they still had the virus.

The directive was intended to free up hospital beds for the sickest patients as cases surged. But relatives, patient advocates and nursing home administrators have called it a misguided decision, blaming it for helping to spread the virus among the state’s most vulnerable residents.

Cuomo reversed the order under pressure May 10, long after New York’s death toll in care homes had climbed to among the highest in the nation. To date, nearly 6,500 deaths have been linked to the coronavirus in the state’s nursing home and long-term care-facilities.

But the 33-page state report flatly says "that nursing home admissions from hospitals were not a driver of nursing home infections or fatalities.”

Instead, it says the virus’ rampant run through New York nursing homes was propelled by the 37,500 nursing home workers who became infected between mid-March and early June and unknowingly passed the virus on.

The report noted that the number of residents dying at nursing homes peaked on April 8, around the same time as COVID-19 deaths statewide, but nearly a week before the peak of coronavirus patients being transferred from hospitals.

It also said 80% of the 310 nursing homes that admitted coronavirus patients already had a confirmed or suspected case among its residents or staff before the directive was issued. And it contends the median number of coronavirus patients sent to nursing homes had been hospitalized for nine days, the same period that the study said it likely takes for the virus to no longer be contagious.

“If you were to place blame, I would blame coronavirus,” Dr. Howard Zucker, the state health commissioner, told reporters last week.

Cuomo said in a later news conference that“ugly politics” were behind “this political conspiracy that the deaths in nursing homes were preventable. And now the report has the facts, and the facts tell the opposite story.”

But several experts who reviewed the report at the request of The Associated Press said it has fatal flaws, including never actually addressing the effect of the order.

Among the questions not answered: If 80% of the 310 nursing homes that took coronavirus patients already had cases before the order, what was the effect of the released patients on the other homes that were virus free? If the median number of patients were released into nursing homes for nine days, that means that by the study’s own count more than 3,000 patients were released within nine days. Could they have been infectious?

Denis Nash, an epidemiologist at the City University of New York School of Public Health, also noted that New York’s nursing home death toll doesn't include nursing home residents who died at a hospital, a “potentially huge problem” that undercounts the virus' toll and could “introduce bias into the analysis.”

Among the holes in the study highlighted by University of Texas, Houston, epidemiologist Catherine Troisi was a lack of data on what happened at dozens of nursing homes that had no COVID-19 infections before those sick with the virus were sent to them.

“Would this get published in an academic journal? No,” Troisi said.

Shivakoti said he thinks the report may be correct in concluding that the major drivers of the outbreaks were nursing home workers who were sick without knowing it. But that's not the same as saying the discharges played no role.

“If they didn’t infect other patients directly,” Shivakoti said, “they still could have infected a worker.”

Dr. Mark Dworkin, a former Illinois state epidemiologist, said the finding that people don’t transmit the virus after nine days of illness applies in the population at large, but it’s not clear whether that’s true of nursing home residents who may have weaker immune systems and shed the virus longer. He said the state's report used “overreaching” language.

"They really need to own the fact that they made a mistake, that it was never right to send COVID patients into nursing homes and that people died because of it,” said Dr. Michael Wasserman, president of the California Association of Long Term Care Medicine.

New York Department of Health spokesman Gary Holmes said the study was intended to “measure the strength of the variables. ... The strongest factor in driving the nursing home infections was through staff infections.”

The Cuomo administration report will likely not be the last word. New York’s Legislature plans to hold joint hearings next month, and Republicans in Congress have demanded Cuomo turned over records on the March 25 order and its effects.

“Blame-shifting, name-calling and half-baked data manipulations will not make the facts or the questions they raise go away,” Louisiana U.S Rep. Steve Scalise, Republican leader of a House subcommittee on the COVID crisis, wrote in a letter to Cuomo last week.

Asked to respond, Cuomo spokesman Rich Azzopardi said: “We’re used to Republicans denying science but now they are screeching about time, space and dates on a calendar to distract from the federal government’s many, many, embarrassing failures. No one is buying it.”

AP investigative news researcher Randy Herschaft and reporter Jennifer Peltz in New York, and reporter Marina Villeneuve in Albany, N.Y., contributed to this report.

Full Article & Source:
Blame game? Cuomo takes heat over NY nursing home study

Britney Spears' Mom Lynne Files Legal Docs to Be Included in Daughter's Finances

Lynne Spears wants to be more in the know about her daughter Britney Spears' finances and trust. In court docs obtained by ET, the pop star's mother filed a request with the Los Angeles County Court on Monday to receive special notice on "all matters" in regard to Spears' SJB Revocable Trust.

The "Stronger" singer filed the SJB Revocable Trust in 2004 to protect her multimillion-dollar assets and set up her two sons for their future. It was also established to "hold and manage her material financial assets during her lifetime, and provide distribution of those assets upon her death," according to The Blast, which was first to report the news.

In May 2019, Lynne also requested special notice of all matters relating to Britney's conservatorship, in which she hasn't had any role previously.

"Britney's mother has always wanted to have a position in Britney's conservatorship," a source told ET at the time. "Her mom has tried at different points over the years to have some sort of say," the source said.

In May of this year, Britney's conservatorship was extended until at least the end of the summer. According to court documents obtained by ET at the time, Judge Brenda Penny issued an order authorizing the temporary conservator, Jodi Montgomery, to stay on Spears' conservatorship until at least Aug. 22, 2020.

Per the docs, the extension comes after the judge decided a hearing on the matter could not take place due to the COVID-19 pandemic. Spears' father, Jamie, stepped down as her conservator in September 2019. Jamie had previously petitioned the court to hand over the reins of the singer's conservatorship, citing ongoing health issues. A judge approved the request and appointed Montgomery, Spear's longtime care manager, as her new conservator.

Lynne was by Britney's side in 2008 when she was placed on an involuntary psychiatric hold. In 2010, Lynne opened up to ET about the harrowing night.

"With the hospital, that was the most horrible time, because I felt so helpless... I'm her mom," she said. "It's a long journey and we still have many bumps to go, you know, but we are resilient."

Full Article & Source:
Britney Spears' Mom Lynne Files Legal Docs to Be Included in Daughter's Finances

Thursday, July 16, 2020

Neglected in Care

Long before the coronavirus devastated nursing homes, inadequate staffing in for-profit Texas facilities endangered residents, leading to injuries and deaths.

By Elena Mejía Lutz

A special investigation from the Texas Observer and Type Investigations.

In January 2017, Rosalie Downing was admitted to Mountain View Health & Rehabilitation, a low-slung nursing home with four wings in El Paso’s Golden Hill neighborhood. Rosalie had kidney disease, high blood pressure, and diabetes. She used a wheelchair and needed help using the bathroom, bathing, and getting into bed. Her son, Charles Downing, made the tough decision to put her in the nursing home, one recommended by her physician.

“She was getting dementia,” Charles said. “She wasn’t able to take care of herself. She was waking up two or three times a night.”

One November morning in 2018, Rosalie fell when a nurse tried to move her from the bed to her wheelchair. She fractured her right arm and hip and was in severe pain. Charles got a phone call from the nursing home and rushed to the facility, but Rosalie had already been sent to the hospital for surgery.

She died four days later at the age of 87. An inspector later determined that Rosalie’s nurse failed to follow “proper and safe” transfer procedures, resulting in blunt force injuries that contributed to her death.

Mountain View Health & Rehabilitation was acquired in February 2018 by Creative Solutions in Healthcare, a company that owns and operates 64 facilities in Texas and is the state’s second-largest nursing home owner.

At the time of Rosalie’s death, nine months after Creative Solutions took ownership of the facility, Mountain View was short-staffed. It received one out of five stars on the staffing rating provided by the federal Centers for Medicare and Medicaid Services (CMS), operating with 40 percent fewer registered nursing staff than its residents needed. Charles, who visited his mother every morning, said she sometimes waited 20 minutes for someone to answer her call light when she needed to use the bathroom.

“[Nurses] said, ‘Well, I’m with another patient. I can’t just leave the patient and hurry to the bathroom,’” Charles said.

In Texas, corporate-owned homes like Mountain View serve over 76,000 people—83 percent of the state’s nursing home residents. Long before the coronavirus spread with devastating consequences through these facilities, residents were getting injured and dying from inadequate care, lending Texas the dubious distinction of being one of the most dangerous states in the country to be a nursing home resident. Since 2015, more than 1,800 dangerous incidents, categorized as “serious deficiencies,” have been reported to federal regulators from Texas—more than in any other state. New York, the state with the most people in nursing homes, had 162. In the past five years, at least 143 people have died due to neglect and poor quality of care in Texas nursing homes.

“Abuse has more headlines, but neglect has more victims,” said J.T. Borah, an Austin-based nursing home abuse and neglect lawyer. “What you end up with is too few people spending their whole shift putting fires out, as opposed to actually managing the care they’re supposed to be giving to the residents.”

Neglect, which is defined by the state as the failure to provide medical services necessary to avoid physical or emotional harm or pain, accounts for the vast majority of deaths, and, along with abuse and exploitation, is a top cause for serious deficiencies in Texas nursing homes. This includes staff failures to provide CPR, prevent falls, monitor lab results, or report changes in a patient’s condition to physicians.

Over the past year, the Texas Observer and Type Investigations analyzed tens of thousands of federal inspection reports, examined staffing ratios of more than 1,200 facilities in Texas, and reviewed four years of federal penalty data. The analysis found that nearly all of the for-profit corporations operate nursing homes well below the thresholds for adequate staffing determined by federal regulators. A review of inspection reports shows that many deaths and serious injuries are related to low staffing levels—a problem our analysis shows is particularly acute in the state’s for-profit nursing homes. Experts around the country have repeatedly found that corporate owners cut staff hours to increase profits, leaving residents at increased risk. Texas has, on average, the lowest staff-to-patient ratio in the country.

Gary Blake, Creative Solutions’ president and cofounder, said in a statement that administrators and staff at each of its facilities are held to the highest standards, working diligently to provide the tools necessary to ensure the staff receive ongoing training. “The unexpected loss of someone in our care is a devastating event,” Blake said. “We will launch an internal investigation after any state inspection that results in an unacceptable finding and appropriate measures will follow.” Creative Solutions declined to answer specific questions about Rosalie Downing’s death.

At the same time, companies owning problematic nursing homes continue to operate and grow with relative impunity. Fines from regulators amount to a tiny fraction of their annual revenues; a lawsuit reform bill passed by Texas legislators in 2003 arbitrarily capped damages for families seeking justice through the courts, disincentivizing lawsuits against nursing homes. Even when a nursing home operator is sued successfully, it can hide its assets, making it nearly impossible for families to collect judgments.

“There is virtually no downside to them drastically cutting back on staffing and killing people because they will be making money,” said Ernest Tosh, a Texas nursing home neglect lawyer. “The state isn’t going to fine them very much, if at all. So why wouldn’t you do that if you’re a nursing home?”

In Wills Point, a small city east of Dallas, a diabetic nursing home resident couldn’t eat or talk for seven hours in 2018 when his blood sugar dropped dangerously low. He was eventually found on the floor without a pulse and died a few hours later. Last year in Southlake, a 98-year-old woman had a urinary tract infection, but lab results fell through the cracks. Her infection drastically worsened four days after the lab results came in. Another woman in Winnsboro waited 17 days for treatment of an infected pressure wound in her pelvis. By the time she got to the hospital—screaming in pain—the wound had developed gangrene, dripping a large amount of “thick, brown, foul smelling” discharge. With poor chances to recover, her family opted for hospice, where she later died.

Each of these residents lived at for-profit facilities. The conditions under which these residents died were documented by state inspectors, tasked with investigating all nursing home deaths. In Texas, the Health and Human Services Commission (HHSC) conducts annual inspections, along with investigating facilities’ self-reported incidents and complaints filed by family members or residents. Incidents involving harm or death must be reported by nursing home facilities to HHSC. But advocates and lawyers said facilities sometimes fail to report, so when a family does not file a complaint, or a resident has no family, incidents involving harm or death may go unchecked.

When elderly or disabled Texans can’t take care of themselves, they can opt to live at a nursing home that’s either for-profit, nonprofit, or run by the state. For-profit homes accumulated 23 percent more federal violations per capita than nonprofit homes, and investigators substantiated about 70 percent more complaints from families; of the 143 people who have died in Texas nursing homes due to poor care and neglect since 2015, 120 lived in for-profit homes.

Using payroll records, CMS rates each facility’s staffing from one to five stars. More than half of Texas nursing homes have a one-star total staffing rating, the highest number in the country. The shortage of registered nurses, the highest-trained nurses responsible for managing care and supervising staff in these facilities, is even more stark—58 percent of Texas homes received a one-star rating for registered nurse staffing, the second worst after Louisiana.

Federal minimum staff-to-patient ratios do not exist, but CMS does require facilities to have a registered nurse on-site eight consecutive hours a day, seven days a week, with a few exceptions. In 2019, more than half of Texas nursing homes reported no registered nurses on their payroll at any given point. Texas does have minimum staffing ratios in place. But the standard is so low as to be essentially meaningless, requiring only 0.4 licensed care hours per day, or one licensed nurse for 20 residents. By this standard, all facilities in Texas were, on average, adequately staffed in 2019.

A Centers for Medicare and Medicaid Services (CMS) inspection report from a survey completed on May 9, 2019.
A Centers for Medicare and Medicaid Services (CMS) inspection report from a survey completed on May 9, 2019.  Illustration by Drue Wagner
Nursing homes need different levels of care depending on how frail their residents are, so CMS adjusts the staffing data based on the needs of each facility’s residents. Using the adjusted staffing data, we found that for-profit nursing homes in Texas were more likely to operate with low staffing levels than those run as nonprofits. In 2019, there was, on average, one registered nurse for every 35 residents at nonprofits, one registered nurse per 70 patients at government-run facilities, and one for every 77 residents at for-profit homes.

Creative Solutions operated with, on average, one registered nurse for every 98 residents in 2019.

Patrick Woodson, a Fort Worth-based lawyer who has worked on nursing home cases for more than 20 years, said the rampant inadequate staffing stems from for-profit corporations squeezing “every penny they can out of operating these facilities at the detriment of the residents.”

“They have them laying in their own waste because [nurses] don’t come by enough because they’re understaffed. They get pressure sores and they get infected. They go into septic shock, and it’s just flat-out neglect,” Woodson said.

Mountain View, Rosalie’s facility, decreased its registered nurse staffing ratio by 46 percent the year after it was acquired by Creative Solutions. The facility’s corresponding CMS rating dropped from two stars to one in 2019.

In a statement, Creative Solutions’ Blake said the company invests deeply in each of its facilities. He said that in some cases, raising the standard of care within a newly acquired facility requires changes in staff, which can create short-term challenges.

The state inspector who documented Rosalie’s death described another incident in the same report: A 57-year-old woman was found on the floor screaming—she had a laceration on her chin and a “large purple, red and green bruise to her right eye” from an earlier fall two days before. It was her fourth fall in less than four weeks. According to interviews with nurses, the evening and weekend shifts were operating with only two certified nurse aides—employees who help residents take showers, change soiled briefs, and participate in daily activities.

“[Nurse aide] said on weekends and evenings with less staff you cannot monitor the residents frequently, so more accidents and incidents happen,” the inspection report said. The resident fell one more time after that, found on the floor naked with large dark purple bruises on her left hip and side and her entire back.

The nursing home industry blames low Medicaid reimbursement rates for staffing shortages. Kevin Warren, CEO of the Texas Health Care Association, said low reimbursement rates in Texas—which are among the lowest in the country—prevent facilities from improving staffing levels or increasing wages. “Our current average Medicaid rate is almost $50 per day less than the national average Medicaid rate,” he said. “The last rate increase for Texas nursing facilities was almost 10 years ago.”

Blake said that hiring and retaining well-qualified health care providers has been Creative Solutions’ top priority, but it is an industrywide challenge, particularly in Texas.

“The robust economy we have enjoyed, coupled with a relatively low Medicaid reimbursement, makes competition for qualified workers especially difficult in some of the communities we serve,” he said.

Facilities can get additional reimbursement through two state programs. One gives providers more Medicaid money to hire more workers, which provided an estimated $91.5 million to 962 nursing facilities in fiscal year 2020. Another program boosts Medicaid payments to facilities that improve on quality metrics, with funding dedicated to improving recruitment and retention of staffing and increasing the number of daily registered nurse hours in facilities. More than 800 facilities received $66 million in fiscal year 2020 from this component.

David Grabowski, a Harvard Medical School professor, agrees that low reimbursement rates are the main reason facilities are unable to staff at adequate levels. But companies still need stronger oversight, he said. “If Texas were to increase reimbursement, a concern by a lot of advocates is whether those dollars actually find their way to direct patient care,” Grabowski said.

Texas lawmakers have tried to pass bills in the past two legislative sessions to increase Medicaid reimbursement rates in an effort to improve nursing home conditions, with no success. Patty Ducayet is the state’s long-term care ombudsman—she heads an independent office connected to HHSC that advocates for residents’ rights. Ducayet said that these efforts do not create safeguards so that state dollars actually support staff wages, health care benefits, and sick leave.

“With these corporate-owned facilities, where does the money go if we increase rates? The only way to improve care is to ensure the money doesn’t go into their pockets,” she said. Some facilities are “literally competing with fast-food restaurants” when it comes to nursing wages. In San Antonio, the average hourly wage for a nurse aide is $11, according to Cindy Boyum, a local ombudsman.

And although Medicaid reimbursement rates are low, so is the cost of doing business in the state. Poor staffing is “related in part to business decisions that these operators are making, and I’m very concerned it might be related to squeezing profits out,” Ducayet said.

In addition to citing noncompliant facilities, HHSC can recommend federal fines, suspend new admissions to facilities, and revoke or suspend licenses based on inspectors’ findings. While serious deficiencies, which can result in a financial penalty, have dropped by more than half since 2016, HHSC reported that it investigated a “substantially higher number of complaints” from 2013 to 2018, leading advocates to wonder if serious deficiencies are being undercounted.

Robyn Grant, director of public policy at advocacy group National Consumer Voice, said her team has seen cases of death, broken bones, and serious hospitalizations not categorized as “serious deficiencies,” or an immediate jeopardy to a resident’s health or safety. Classifying these incidents as serious is “critical because that drives the enforcement system,” Grant said. “You do not have meaningful penalties until you have harm.”

In 2017, President Trump rolled back Obama-era regulations that fined facilities for each day they were out of compliance. Now they are fined only once per violation. During the first quarter of 2019, the state’s average fine for a nursing home deficiency was $41,296, down from $62,431 in 2017.

“The nursing home industry pushed aggressively for that change,” Grant said. “It [shows] the power of the industry and, quite frankly, an administration that has a deregulatory philosophy and an approach to doing things that help business owners.” Creative Solutions, which reportedly had $282 million in revenue in 2018, was fined $56,618 in 2018 for more than 300 deficiencies in Texas nursing homes that year.

Elliott Sprehe, a spokesperson for HHSC, said that penalties are assessed on a case-by-case basis. The agency’s considerations are based on the facility’s compliance history as well as whether a pattern exists, the violation is recurring, or the violation presents a danger to resident health and safety. The penalty’s amount depends on the potential hazard to residents and the facility’s efforts to correct it, Sprehe said. “Our top priority always remains the health and safety of staff and residents in all the nursing and assisted living facilities throughout Texas,” Sprehe said in a statement.

Of the 40 deaths in 2019 identified by the Observer and Type Investigations, Texas facilities were fined by CMS, on average, $15,549 per death.

The state also has the power to impose fines, but HHSC issued just three fines in three years.

Worse still, residents and their families cannot appeal the decision if state inspectors do not substantiate a complaint of neglect or abuse. Meanwhile, facilities can dispute deficiencies to change their scope of severity or remove them. They can also appeal enforcement actions.

The so-called Three Strikes Bill passed in Texas in 2016 required HHSC to revoke a facility’s license if the provider had committed three serious deficiencies in two years. But in 2018, the state reported that 15 facilities with one or more strikes simply changed ownership, so their strike count went back to zero. Ten facilities cleaned their record after appealing.

Despite their terrible staffing rating and documented pattern of serious safety violations, Texas nursing homes are substantially protected from medical malpractice litigation. In 2019, AGRC, a risk management company, released a report saying that Texas was among the states with the lowest “loss rate”—the annual amount of money, per bed, spent by long-term care providers to defend, settle, or litigate claims in a year. The state’s projected loss rate in 2020 is $670, far below the national projection of $2,300. That’s largely because in 2003, the nursing home industry lobbied zealously to keep malpractice awards at $250,000, the lowest malpractice cap in the country.

“They can have pressure sores all over their body. They can have maggots in their pressure sores, they can have flies flying around them, and they can lay there and rot to death. And the max you could get is $250,000,” Woodson said.

“They’re not going to change their staffing for that; that is nothing,” said Tosh, the abuse lawyer. “That is the cost of doing business in Texas.” And since bringing these cases to trial is often so expensive, he said, even the maximum award can be consumed by legal and expert fees.

Plaintiffs attorneys face additional challenges trying to collect awards. Many nursing home owners use obscure ownership structures to hide their assets—if they do get sued, they can claim their reserves are too low to pay out.

According to lawyers who have worked in nursing home litigation, corporations that own nursing homes, like Creative Solutions, typically fracture their operations into various obscure “single-purpose entities,” each designated to offer various services to their nursing homes. For instance, a company might create a real estate company, a therapy company, an insurance company, and a pharmacy. They then require each of their homes to transact business with their own entities at rates above market rate, allowing the owners to siphon profits into related companies while showing no assets. A 2013 study by Grabowski and other Harvard Medical School researchers revealed that Texas companies have increasingly relied on this method to obscure their finances.

Nursing homes in Texas are also not required to be insured. Tosh said facilities sometimes buy a “wasting” policy, so that the cost of the defense comes out of what is often only $100,000 in coverage to avoid paying much in the event of a lawsuit. The more work defense attorneys do for a case, the less money will be left for paying a settlement.

“I am aware of a situation in which the defense attorney informed the plaintiff’s attorney that all that remained of the $100,000 policy was $20,000 and that was all they would ever offer the family of a resident who died due to negligence of the nursing home,” said Borah, the Austin-based attorney, in his testimony to the Texas House Human Services Committee in November 2018.

With low chances of success in the courts, family members are usually left with no other options as they deal with the pain of losing their loved one under conditions that often lead to slow and painful deaths. In the meantime, facilities continue to operate, sometimes without being fined.

State inspectors cited Mountain View after medical records showed Rosalie Downing’s fall contributed to her death. But no fine was issued. Charles Downing recalled his frantic dash to the hospital when he got the call from the facility about her fall. Doctors inserted pins to hold the fractures in position until her bones healed. But her body couldn’t take the weight of surgery. She died at 4:21 a.m. on a Monday.

“She wouldn’t have passed away other than this happening,” Charles said.

Elena Mejía Lutz is an associate visual journalist for FiveThirtyEight. She has a master’s in data journalism from Columbia University.

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Neglected in Care

VA hospital employee charged with murdering seven patients

by: Nexstar Media Wire, Mark Curtis, and Jessica Patterson

CLARKSBURG, West Virginia (WOWK/AP) – A former staffer at a veterans hospital in West Virginia pleaded guilty Tuesday to intentionally killing seven patients with fatal doses of insulin, capping a sweeping federal investigation into a series of mysterious deaths at the medical center.

Reta Mays, a former nursing assistant pleaded guilty today in federal court here to murder and assault charges in the deaths of eight veterans at the Veterans Affairs Medical Center in Clarksburg, West Virginia (Photo Courtesy: WV Regional Jail & Correctional Facility Authority)
Reta Mays, a former nursing assistant at the Louis A. Johnson VA Medical Center in Clarksburg was charged with seven counts of second-degree murder and one count of assault with the intent to commit murder of an eighth person.

Mays faces up to life in prison for each count of second-degree murder and up to 20 years in prison for “assault with intent to commit murder.” U.S. Attorney Bill Powell says under the Federal Sentencing Guidelines, the actual sentence imposed will be based upon the seriousness of the offenses and the prior criminal history, if any, of the defendant.
“These cases are tragic and heartbreaking. I thank the VA OIG agents and our law enforcement partners who worked tirelessly to ensure justice was served and that the victims’ families have some measure of closure. They are in our thoughts and prayers as we work with VA to help prevent anything like this from ever happening again.”
At a plea hearing, Mays, 46, admitted to purposely killing the veterans, injecting them with unprescribed insulin while she worked overnight shifts at the hospital in northern West Virginia between 2017 and 2018.

The patients who died were identified as veterans Robert Edge Sr., Robert Kozul, Archie Edgell, George Shaw, W.A.H., Felix McDermott, and Raymond Golden.

Mays’ voice cracked throughout the hearing as she answered a judge’s questions. She shook and appeared to weep as details of the charges were read aloud.

U.S. Attorney Bill Powell told reporters that Mays’ motive is still unclear, saying that authorities did not receive a “satisfactory response” to questions about the reasoning behind her actions.

“Though we can’t bring these men back because of her evil acts, we hope the conclusion of the investigation and guilty plea helps ease the pain of the victims’ families,” Powell said.

Court records unsealed Tuesday, which named Mays publicly for the first time, came after multiple families initiated civil lawsuits against VA leadership alleging a widespread system of failures at the hospital, where victims were wrongfully given insulin and suddenly died.

The widow of one of the victims, 81-year-old George Nelson Shaw Sr., filed a case against the VA alleging the retired Air Force member was given four insulin shots without a doctor’s order in March 2018, accusing the hospital of failing to securely store insulin and prevent its access by unauthorized personnel. As a nursing assistant, Mays did not have authorization or qualifications to administer medications.

Powell has described a criminal investigation of the deaths, which initially involved at least 11 fatalities, as a top priority that required the exhumation of multiple victims. He told reporters Tuesday that prosecutors brought charges in all instances where there was sufficient evidence against Mays.

U.S. Sen. Joe Manchin, who previously expressed “grave concerns over the pace of the investigation” to Attorney General William Barr, said then that the VA inspector general told his office that the probe was opened in July 2018, after at least nine patients were diagnosed with unexplained low blood sugar.

“While overdue, today justice is finally being served,” Manchin said in a statement Tuesday. “I hope today’s announcement brings some semblance of peace to their hearts and to the families who are still uncertain about the fate of their Veterans.”

The VA is the government’s second-largest department, responsible for 9 million military veterans. The agency’s former director was fired in 2018 in the wake of a bruising ethics scandal and a mounting rebellion within the agency, and the doctor who Trump nominated to replace him had to withdraw his nomination amid accusations of misconduct.

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VA hospital employee charged with murdering seven patients

Local business owners foil scam, saving senior $19K

By Jack Rooney Sentinel Staff

The owners of the Shipping Shack on Emerald Street in Keene recently helped foil a scam that had an elderly woman mailing $19,000 in cash.
It started as a normal shipping transaction Friday afternoon.

A woman in her 80s came to the Shipping Shack on Emerald Street in Keene around 4:30 p.m. to overnight a package, Brenda Beaulieu, the store’s co-owner, said.

Then Beaulieu asked the woman what she was sending.

“You always have to ask what the contents of the package are. Whether they tell you or not is something different. Most of the time they just say [it’s a] gift, or whatever,” Beaulieu said. “But she actually came out and said, ‘cash.’ ”

Specifically, the woman, a Keene resident, was trying to send $19,000 in cash to someone in Milwaukee, Keene police Lt. Steven Tenney said Monday. The woman had gotten a phone call claiming her Social Security number had been stolen, and that she needed to send the money to get a new number and card.

Beaulieu became suspicious, and warned the woman that this could be a scam, but Beaulieu said she insisted on sending the package. That’s when Beaulieu alerted her husband and store co-owner, Bryant, to the situation. He took the package to the Keene Police Department, where officers confirmed that the woman had been targeted for fraud.

An officer called back the number that had initially contacted the woman. When the officer identified himself, the man on the other end of the phone, who claimed to be from the Social Security Administration, hung up and deactivated the phone number, Tenney said.

“It was lucky someone was paying attention,” Tenney said. “Often, that money just disappears.”

In this case, though, police were able to return all of the money to the woman, Tenney added.

“I’m elated that they got her her money back,” Brenda Beaulieu said. “If that [package] had gone out, and he actually received it, there’s no getting it back. She’s lost it forever. And this is a woman that’s in her 80s and is probably living off of this money for the rest of her life.”

Shipping Shack has seen scams like these before, Bryant Beaulieu said.

“This is not the first time,” he said. “My wife has intervened on several occasions and kept people from losing a lot of money.”

The Beaulieus have owned Shipping Shack for more than 11 years. The store ships through several companies, including FedEx, UPS and the U.S. Postal Service, and offers services such as mailbox rentals and package receiving.

Brenda Beaulieu said the store has prevented five or six fraud cases in the past few years.

“There’s quite a few scams out there,” she said. “I’m happy we can catch some of them, but there’s a lot more out there that we don’t know about.”

Common scams can involve unsolicited phone calls or emails from people claiming to be from the government, or a debt collection agency, demanding personal information and/or immediate payment.

Senior citizens can be particularly vulnerable to fraud, and millions of older Americans fall victim to financial scams each year, costing them more than $3 billion annually, according to the FBI.

From 2013 to 2017, U.S. financial institutions reported more than 180,000 cases of suspicious activities targeting seniors for more than $6 billion, according to a report last year from the Consumer Financial Protection Bureau. But these cases “likely represent a tiny fraction of actual incidents of elder financial exploitation,” that report notes.

Older people may be less likely to report fraud because they don’t know how, or are ashamed to admit they have been scammed and worried that family members will lose confidence in their ability to handle their own affairs, according to the FBI.

The COVID-19 pandemic has led to a new wave of scams, according to the CFPB, with some seeking to take advantage of the federal stimulus checks that were part of an initial economic relief package. Regardless of the context of the potential fraud, though, expert advice remains the same: Never give out personal information over the phone or online.

“No one’s going to call you on the phone and tell you to send money,” Tenney said.

And, Brenda Beaulieu added, if a request from an unknown person on the phone or online seems suspicious, ask someone else about it.

“If it looks funny, ask somebody about it first,” she said. “If there’s any hint in your head, in your mind, that it doesn’t look right, ask. And never give out your personal information.”

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Local business owners foil scam, saving senior $19K

Wednesday, July 15, 2020

Steps to Protect Those with Diminished Mental Capacity from Elder Financial Abuse

By Robert Mauterstock

The fastest growing age group in the United States is the "old old," those people over the age of 85.

That’s the good news. However, the Alzheimer’s Association has predicted that 46% of those people will develop Alzheimer’s or some form of dementia. Five million Americans currently have the disease. It is the sixth leading cause of death in the U.S. Ten million baby boomers are expected to become victims of Alzheimer’s.

Unfortunately, there currently is no cure for Alzheimer’s, and it is often difficult to predict if an individual has succumbed to it. As people age it is normal to expect that there will be some loss of memory. Many people are fearful that they are afflicted as they begin to have difficulty remembering names, dates and other information. How is one to know if Alzheimer’s is a real concern?

The first step is to assess the situation. What changes in memory, thinking or behavior have you noticed? Has the person who was normally very prompt begun to miss or come late to meetings? Is the individual having difficulty doing simple math calculations or following simple directions? Has the person shown increased anger or irritation when you try to correct them? Has the individual become disoriented in identifying where they are or gotten lost traveling to locations they were very familiar with in the past?

Secondly you should consider if there were any other factors that could result in this behavior. Is there currently a significant amount of stress in their life? Are they dealing with some health issues like diabetes or depression? Have they suffered a urinary tract infection? Are they recovering from surgery and anesthesia?

Have other people who know this person well expressed concerns? Have any family members or close friends noticed changes? What was the behavior that they observed? The Alzheimer’s Association has identified 10 early signs and symptoms of dementia. See if the individual shows any of these symptoms.

If various factors are indicating that there is a problem, it is time to start a conversation. If it is you that you are worried about, share your concerns with a good friend or family member. If it is someone else, decide who would be the best person to open up a conversation with them. The Alzheimer’s Association website can give you suggestions on how to conduct the conversation in a non-threatening way.

Based on your discussions it may be time to reach out for help. You may decide to accompany the person to visit their doctor. The Alzheimer’s Association maintains a 24-hour support line (800-272-3900). They can help guide you to organizations in your area that support Alzheimer’s patients and their families.

There are certain steps that you must take to maintain the safety of an Alzheimer’s patient.

The Durable Power of Attorney

In addition to a Will, the durable power of attorney is a document everyone must have, especially those individuals who are concerned that they may lose their ability to conduct financial transactions. Without a durable power of attorney, your spouse or your children cannot act on your behalf in financial matters if you are incapacitated. One of my clients became very ill. He was in the hospital when I called his home to suggest that he transfer an investment from one fund that was performing poorly to a CD with a higher interest rate. He needed to sign a document to make the transfer. If his wife had had a durable power of attorney, she could have signed the document for him. She didn’t have the authority, so we had to wait until he was well enough to do it himself.

You may use this document many times. It allows the “attorney in fact” to act on your behalf, sign checks for you, sign legal documents, etc. It should be updated every two to three years. Selecting someone to have the durable power of attorney is an important decision. You should give your spouse this power and another person, a family adviser or one of your children whom you consider responsible and trustworthy.

The Health Care Proxy

This is a legal document that identifies who will make the difficult health care decisions if you are unable to make them. It is especially important for a person who has been diagnosed with Alzheimer’s to identify this individual. This person is often called the health care agent and the document is often called the Durable Power of Attorney for Health Care. It is necessary that you select a person who understands what your wishes are and is willing to carry them out. It may be your spouse, one of your adult children, a friend or an adviser. It is also important to name a successor for this role if the agent is unavailable.


The third important document that an individual must have is what I call the “Lifefolio” or “Grab and Go Binder.” This document is a single source for all important financial information related to the individual. It is especially important to have this document readily available if a person experiences an emergency or has lost the capability to find and recall important information. It can be collected in a three-ring binder or in selected computer programs such as EMoney, Everplans, or Whealthcare Planning. The document should include reference to all legal documents, insurance policies, investments, key advisers, and internet passwords. It is important to keep this information up to date and in a location readily available to family members.

Financial Advisers and Elder Abuse Protection

A trusted financial adviser is a critical team member for most families. Often that adviser is the first person to recognize that a client may be experiencing diminished mental capacity. In response, the adviser must have a standard protocol or policy to deal with the situation. Advisers are strongly recommended that when they take on a new client, they ask for a trusted contact who can be engaged if the client is beginning to show mental deficiencies. FINRA, the overseer of broker/dealer firms has issued a new regulation, Rule 4512, that requires members make reasonable efforts to obtain the name and contact information for a trusted contact person upon the opening of a non-institutional customer’s account or when updating account information for a non-institutional account. The trusted contact person is intended to be a resource for the member in administering the customer’s account, protecting assets, and responding to possible financial exploitation.

Financial firms are advised to establish policies and procedures to document and escalate cognitive decline issues. They should consider identifying potential trigger events and how they work with a client after a trigger event. In addition, they should establish procedures for escalating and documenting their findings. Firms also need to determine when to involve outside parties or counsel after a trigger event occurs. They should establish a point person in the firm to monitor the situation with a client and make sure that all established procedures re followed.

The establishment of these diminished capacity protocols is designed to protect the firm and provide meaningful support to the client. As the average age of clients is increasing more and more advisers will be faced with clients who are losing their mental capacity. The firm’s protocol will become an important compliance issue that firms must establish.

Diminished Capacity and Elder Financial Abuse

Older adults are becoming a prime target for financial scams and other forms of financial exploitation. One in 20 older adults has experienced some form of financial abuse over the last 12 months. Yet less than half of those situations are reported. Dementia plays a very big role in many of these cases. The need for help with the activities of daily living has made victims especially vulnerable. Ninety percent of abusers are family members or trusted friends or caregivers. One out of every 10 of these cases results in elders resorting to Medicaid to meet their financial needs.

The most common abuses include the unexpected addition of authorized persons or changes to beneficiaries of bank accounts and insurance, out-of-the-ordinary withdrawals from investment accounts, or multiple calls or activity on accounts in a short period of time.

Often these situations include requests for payment for work not done, lottery scams, “phishing” emails and unauthorized investments or insurance products. One of the most common scams is the “Grandparent scam.” Nearly one in five people losing money are called by a person posing as a grandchild who is in trouble and needs money. The imposter often asks the individual to contact a “local authority” who will provide instructions for sending the money. In 2017 individuals lost over $328 million dollars to this scam. People over age 70 suffered the greatest losses.

Recent Regulations to Protect Older Individuals

FINRA recently enacted Rule 2165 which affects advisers with broker/dealer firms. It is intended to help a “specified adult” which includes a person over age 65 or an 18-year-old with a physical or mental impairment. It provides broker-dealers and their associated persons with a “safe harbor” from previous rulings, enabling them to withhold certain disbursements if they are of a suspicious nature for a period up to 25 days. They cannot restrict the sale of securities but can delay the disbursement of funds while they investigate the transaction.

The federal government issued the Senior Safe Act in May of 2018. This act enables financial institutions to report suspected fraud to law enforcement without fear of litigation as long as the financial institutions have trained their employees how to detect suspicious activity which might indicate financial abuse. This law was designed to encourage firms and agencies to invest in training their employees to identify and report instances of elder financial abuse. It is not certain how many firms have moved forward in establishing these training programs.

In many states, firms are required to alert government protection service organizations if they suspect financial exploitation of elders. These agencies include Adult Protective Services (APS), State Securities Commissions (SSC) and law enforcement services in their state. The NASAA Model Act to Protect Vulnerable Adults from Financial Exploitation has been enacted by a number of states.

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Steps to Protect Those with Diminished Mental Capacity from Elder Financial Abuse