Powers of Attorney, Elder Justice, Help Hiring Helpers, and No More Minnesota Nice

New Report on Powers of Attorney (POAs)

On Thursday, AARP’s Public Policy Institute released Power of Attorney Abuse: What States Can Do About It. Written by Lori Stiegel and Ellen Klem of the American Bar Association’s Commission on Law and Aging, the 89-page document compares state laws on POAs and highlights measures that offer special protections against abuse, which include:

Clear statements of agents’ duties to act in good faith, within the scope of their authority, and according to principals’ expectations or best interests; and to follow principals’ estate plans, keep careful records, and cooperate with health care proxies.

Special language used to signal “hot powers,” particularly risky or questionable actions like changing beneficiaries.

Provisions permitting third parties to refuse to honor POAs when there's good reason to believe they’re being used to commit abuse and requiring the parties to report to APS.

Requiring those that have used POAs to misappropriate property or assets to pay it back.

Imposing sanctions for those who refuse to accept legitimate POAs.

In a USA Today article about the report, Naomi Karp, strategic policy adviser for the AARP Public Policy Institute, offered the following advice to anyone who's considering executing a POA:

Don't give anyone, even a child or spouse, POA unless you thoroughly trust that person with your finances.

Consider requiring the person who has POA to periodically report to a third party, such as your lawyer or another family member.

Make sure other family members know who has your POA so they can be on the lookout for misconduct.

The report also describes strategies for advocates who want to improve their states' POA laws. Copies are available at Power of Attorney Abuse: What States Can Do About It.

Give a Shout to the New Administration
Marie-Therese (MT) Connolly, Senior Scholar at the Woodrow Wilson International Center for Scholars (and former Coordinator of DOJ’s Elder Justice and Nursing Home Initiative) is circulating a proposal urging the new Administration to appoint high-level special advisors on elder justice at the Department of Health and Human Services and the Department of Justice to help set priorities and work with Congress and stakeholders around 3 priorities:

Improve research, evaluation, and data collection;

Enhance interventions and responses; and

Increase public awareness

Questions can be directed to MT at marie.connolly@wilsoncenter.org

New Web Site to Help Hire In-home Helpers
Safe Help in Your Home is a new Web site created by Lynn Loar and Jane Tamagna to guide people through the process of screening, hiring, and managing in-home aides. The content is slated for inclusion in their forthcoming book And You Thought Talking to Your Parents About Sex Was Hard—Finding Out What Your Parents Want toward the End of Their Lives. Lynn Loar is a licensed clinical social worker with expertise in abuse and neglect across the lifespan and Jane Tamagna is a social issues editor who has worked for the Bureau of National Affairs and is on the faculty of American University's School of Public Affairs.

The site is for people who are thinking of hiring in-home help for themselves, relatives, or friends; for care providers who want to show clients that they’re capable, trustworthy and responsible; and for agencies that want to provide capable, trustworthy, and responsible aides to clients.

What’s unique about Loar's and Tamagna’s tools, which include comprehensive checklists, are that they go beyond the standard steps (e.g. references, criminal background checks, etc.) to address such common-sense yet critical concerns as matching clients' and caregivers' personality types to avoid conflict. They also advise employers to check child and sex abuser registries and ask potential employees for copies of credit histories and DMV files. Their work draws from their experiences in the field of child abuse prevention, which is significantly ahead of ours in this arena, and they respond (justifiably, if not too gently) to common excuses and justifications they’ve heard from our ranks for why we don’t do more (“It’s too expensive,” “Aren’t we exposing ourselves to more liability by digging deeply? etc.).
Visit the site at Safe Help in Your Home. For more on elder abuse by paid caregivers, see Abuse by Paid Caregivers.

No More “Minnesota Nice"
As a native Minnesotan, I got a kick out of the Minnesota Department of Public Safety’s anti-scam campaign, “No More Minnesota Nice,” which warns Minnesotans about lottery and sweepstakes scams. I’d assumed that the point of the campaign was to urge us Minnesotans to eschew our notorious niceness and hang up on fraudsters as quickly as possible or tell them where to go. Which makes sense since criminal telemarketers know that the longer they can keep someone on the phone, the more likely they’ll be able to complete a scam. But the campaign’s promotional materials fall short of actually promoting or scripting rudeness. So, I thought I'd do it for them:

“The next time you’re contacted by a telemarketer, just say “!!#$%!!#!!”

I hope I haven’t offended.

For more on mass marketing fraud, see Mass Marketing Fraud.

Wall Street Journal Looks at Home Care Aide Crisis

Readers know that the shortage of in-home workers and elders’ vulnerability to abuse by criminal caregivers has long been a concern of mine. So I was delighted with Phil Shiskin’s in-depth article on the subject that appeared in today’s Wall Street Journal. It focuses on California and mentions Napa's effort to develop a local screening program. Check it out at Caregiver Abuse.

For more on the topic and some of the initiatives cited in the article, see the Elder Abuse By Paid Caregivers page of my Web site.

Luring Health Care Providers into Geriatrics

Supporters of loan forgiveness programs aimed at encouraging health care providers to specialize in geriatrics got a boost from a report issued last month by the Institute of Medicine (IOM). Retooling for an Aging America: Building the Health Care Workforce is based on the findings of an ad hoc committee that looked at the health care needs of the 78 million baby boomers who’ll soon be turning 65. The group estimates that there are currently only about 7,100 doctors certified in geriatrics in the US, one for every 2,500 older Americans, a shortage they attribute to a lack of training programs and low Medicare reimbursement rates for geriatricians compared to other specialists. The report comes just as the government prepares to cut Medicare physician payments this July. The group has called for increased reimbursement rates, loan forgiveness programs, and student scholarships.

I was pleased to see that the report also addressed the need for more direct-care workers, including nurse aides, home health aides, and personal care aides. Unlike geriatricians, who have high job satisfaction rates (the highest, in fact, of any specialty), these hands-on workers are generally dissatisfied and have high rates of turnover due to low pay and working conditions, high rates of on-the-job injury, and few opportunities for advancement. Turnover among nurse aides, for example, averages 71% annually, and 90% of home health aides leave their jobs within the first two years. In response, the committee is calling for more opportunities for career growth, higher pay, and access to fringe benefits. They also recommend that all health care workers be trained in basic geriatric care and treating older patients.

As I've said many times before, we can screen and regulate all we want to prevent worker abuse and neglect, but it’s not going to do much good until we make these jobs tenable and have an adequate pool of workers for seniors to choose from.

At the national level, Senator Boxer’s Caring for an Aging America Act of 2008 (S. 2708) would amend the Public Health Service Act to attract professionals and direct care workers by earmarking $130 million for a loan forgiveness program. Those covered include physicians, physician assistants, advance practice nurses, social workers, and psychologists. The legislation would also create the Health and Long-Term Care Workforce Advisory Panel for an Aging America to advise the Secretary of Health and Human Services, the Secretary of Labor, and Congress on workforce issues related to elder healthcare. The bill has bipartisan support and counts among its supporters the American Geriatrics Society, the National Council on Aging, the Alzheimer's Association, AARP, American Academy of Physician Assistants, American College of Nurse Practitioners, American Psychological Association, Coalition of Geriatric Nursing Organizations, and the National Association of Social Workers.

Here in California, our loan forgiveness program is also making headway. AB 2543, which was developed by the California Senior Legislature under the leadership of Shirley Krohn and introduced by Assembly member Patty Berg, is called the California Geriatric and Gerontology Workforce Expansion Act of 2008. To qualify, loan recipients would have to commit to a minimum of three years of service in geriatric care settings. Covered under the bill are physicians, dentists, psychologists, registered nurses, and social workers.

I thought I’d end with an excerpt from the terrific New Yorker article "The Way We Age Now," by surgeon Atul Gawande, which I cited in a posting last fall (see Geriatricians, Angry and Otherwise):

Several years ago, researchers in St. Paul, Minnesota, identified five hundred and sixty-eight men and women over the age of seventy who were living independently but were at high risk of becoming disabled because of chronic health problems, recent illness, or cognitive changes. With their permission, the researchers randomly assigned half of them to see a team of geriatric specialists. The others were asked to see their usual physician, who was notified of their high-risk status. Within eighteen months, ten per cent of the patients in both groups had died. But the patients who had seen a geriatrics team were a third less likely to become disabled and half as likely to develop depression. They were forty per cent less likely to require home health services.

Little of what the geriatricians had done was high-tech medicine: they didn’t do lung biopsies or back surgery or PET scans. Instead, they simplified medications. They saw that arthritis was controlled. They made sure toenails were trimmed and meals were square. They looked for worrisome signs of isolation and had a social worker check that the patient’s home was safe.

How do we reward this kind of work? Chad Boult, who was the lead investigator of the St. Paul study and a geriatrician at the University of Minnesota, can tell you. A few months after he published his study, demonstrating how much better people’s lives were with specialized geriatric care, the university closed the division of geriatrics.

“The university said that it simply could not sustain the financial losses,” Boult said from Baltimore, where he is now a professor at the Johns Hopkins Bloomberg School of Public Health. On average, in Boult’s study, the geriatric services cost the hospital $1,350 more per person than the savings they produced, and Medicare, the insurer for the elderly, does not cover that cost. It’s a strange double standard. No one insists that a twenty-five-thousand-dollar pacemaker or a coronary-artery stent save money for insurers. It just has to maybe do people some good. Meanwhile, the twenty-plus members of the proven geriatrics team at the University of Minnesota had to find new jobs.

Seems to me that the need for more geriatric training is pretty much a no-brainer.

Abuse and Home Care Workers: Giving Policymakers the Lowdown

APS workers, prosecutors, and aging service providers know the frustration well: They discover that a personal care attendant who is being paid with public funds is abusing an elder. When they prevail upon public entities to fire the worker, they’re told “no can do.” When abusive caregivers are hired and supervised by elders, only the elders can fire them.

We also know that seniors sometimes refuse to fire abusive attendants and why. Some are afraid of their workers or of what will happen if they can’t find replacements. Attendants may be threatening them or exercising undue influence. Some seniors don’t realize they’re victims, especially when the workers have been surreptitiously draining bank accounts or transferring property. The elders may have subtle cognitive deficits. Or, they may want to help out troubled family members who need jobs.

I’ve written about the issue often, as well as the related issues of the rising numbers of caregivers who have criminal histories, the need for background checks on caregivers, and the lack of research on which to base screening decisions. I’ve devoted a page on my Web site to the issue. See Elder Abuse by Caregivers.

You’d think that the prospect of government-subsidized abuse would raise more of a hue and cry, but federal policymakers seem largely impassive. The Centers for Medicare & Medicaid Services (CMS) has addressed the need for better screening of nursing home employees, but not independent home care workers. This is despite the fact that in-home workers may spend hours, alone and unsupervised, in the homes of society’s most vulnerable members.

The concept of “self-directed care,” which is intended to empower Medicaid recipients to select, direct, and manage their own services and caregivers, stems from the independent living movement of the 1960s, which was premised on the concept that people with disabilities should have the same civil rights, options, and control over choices in their own lives as others. In recent years, members of the aging and dementia care networks have joined with advocates for the younger disabled in singing the praises of self-directed care, also known as “consumer choice” programs. And the little research that’s been done suggests that people who direct their own care are more satisfied than those who hire workers through licensed agencies. They claim that while abuses may occur, we have a safety net to address them, most notably APS and law enforcement.

Self-directed care is a boon for loving family caregivers who are struggling to manage financially. But in the elder abuse arena, we see the dark side. We see the seniors who hire the wrong caregivers for the wrong reasons. We see others being preyed upon by predators and criminals.

A recent call from the Centers for Medicare & Medicaid Services (CMS) regarding a proposed rule change that would extend the self-directed personal assistance services plan option (Cash and Counseling) may provide an opportunity to raise our concerns:

On January 14, 2008, the Centers for Medicare & Medicaid Services (CMS) announced a proposed rule change that would allow states to adopt a self-directed personal assistance services plan option in their Medicaid programs. This option would permit Medicaid beneficiaries who quality for personal care services to receive a cash allowance that could be used to hire, direct and train their own personal care workers - including qualified family members - rather than receiving home care services from an agency. Many states currently have such options allowed under temporary waivers in their Medicaid programs. This rule change would allow such programs to become permanent state options. The notice of proposed rulemaking was published in the January 18, 2008 issue of the Federal Register. Public comments regarding the proposed rule change are due February 19, 2008. To comment, go to CMS.

The request for comments, which explains the programs and CMS’ goals is over 100 pages long. Buried deep within (beginning on page 52) are the sections on “risk management” (the document does not directly mention potential abuse). The proposed regs require states to provide plans for mitigating risk to consumers, including measures for determining who is eligible to serve as workers and when surrogate, or representative, decision makers should be assigned for those with impairments. Among the issues that CMS is asking for comments on is whether criminal background checks should be required. Seems to me like an excellent opportunity to bring up some of the problems we’ve been struggling with. My own list of recommendations includes:

The Need to:

Strengthen the safety net. As more elders hire persons who are unsupervised by agencies, it has clearly placed greater demands on APS, law enforcement, public guardians, and others. In addition to added resources, these entities need guidance and authority to intervene.

Provide guidance and help to elderly consumers in finding, screening, hiring, and supervising workers. Specifically, consumers need screening processes that identify high risk workers, including but not limited to criminal background checks

Conduct research to identify high-risk situations, including research in how to assess criminal background data

Expand the pool of workers

Clearly the protective service networks have a stake in these plans and in working with the consumer choice network. I urge you to make your ideas and experiences known.

County Caregiver Screening Program Faces Challenges

An article in yesterday's Napa Valley Register provides an update on a project I've been watching for many months. Lacking confidence that the state was going to solve the problem of preventing dangerous criminals from becoming caregivers and working in frail elders' homes, advocates in Napa County California, including Betty Rhodes of the county's Commission on Aging and Terri Restelli-Deits, planner with the Area Agency on Aging, launched a campaign to urge the county and its cities to require prospective caregivers to obtain permits. To get permits, prospective workers would be fingerprinted for FBI background checks, have their employment history for the last five years checked, and demonstrate, through Department of Motor Vehicles records, that they have good driving records.

There's a lot of support for the proposed program and little opposition. In fact, according to the article, "the list of people invested in the success of the program is a virtual 'Who’s Who' of law enforcement." It includes District Attorney Gary Lieberstein, who, in an earlier Register article, was quoted as saying he'd heard of parole officers telling convicts that home caregiving was a promising field for gainful employment. “I don’t think they would suggest they do it because they wanted to see someone ripped off,” he said. “I’d imagine it’s because parolees can get the work without a lot of background checking.” Deputy District Attorney Bryan Tong, who runs an elder abuse unit in the DA's office, estimates that about one-third of all the financial elder abuse cases he sees involve home caregivers.

The County appointed staff to help develop the program and yesterday's article reported on some of the obstacles and issues they've identified regarding the program, which include:

The possibility that it would require an act of the Legislature and the state Attorney General before FBI records can be released to the agency Napa County might set up.

The risk Napa County could be sued if a screened caregiver abuses an elder, especially if the system — for whatever reason — failed to flag a caregiver with a significant criminal past.

Problems with delays in getting fingerprint background check results, which could be a month long, as the county In Home Support Services has experienced. In that case, caregivers might not be able to work when they want to, encouraging them to operate underground.

The need for cooperation from local cities if the county passed an ordinance that would affect businesses within city jurisdictions.

Questions about how to enforce the law.

To the last item, I would add the need to develop specific criteria for disqualifying workers (e.g. types of crimes that would disqualify workers, length of time since crimes were committed, etc.) as well as mitigating factors that could affect decisions such as evidence of rehabilitation or restitution. While deciding who should and should not work with vulnerable populations may seem like a no-brainer, states and agencies have run up against myriad problems, some of which I've described in earlier posts. For example, When New Jersey passed a law disqualifying workers with certain convictions from working, over 400 current employees, many of whom had worked for years and were doing a good job, were found to have committed disqualifying crimes. So the state had to figure out how to keep them. Others have reported instances in which disqualified workers have challenged decisions to withhold employment, which has raised the call for scientific evidence linking past criminal conduct to heightened risk. For more on these issues, see Elder Abuse by Paid Caregivers on my Web site.

In the meantime, as Napa continues it struggle to iron out the issues, California and several other states are developing legislation.

Caring About Caregivers

Last month, while we celebrated my mother-in-law’s 90^th birthday at her board and care home, I spent a long time talking to Carole, the daughter-in-law of another resident, Brenda. Before moving into the home a year ago, Brenda had lived with her son and Carole, and the couple’s two pre-teen kids. The arrangement lasted five years, during which, Brenda’s mental capacity declined and Carole’s worries soared.

At first, Carole had the standard fears about accidents and fires. She feared that Brenda would forget to turn off a burner or get lost. That Brenda was still driving was a major source of dread. Once, when Brenda didn’t get home when she was supposed to, Carole found her in her car, parked on a side street, in tears; she’d been blinded by the setting sun and panicked. Another time, Brenda drove to Reno. When the family came to get her, they found her in a casino, waving a fistful of cash. Carole breathed a sigh of relief when the DMV called Brenda in for a driving test, but her relief was short-lived; they renewed Brenda’s license for another two years. Carole sat through her kids’ soccer games worrying whether she was giving them the attention they deserved. She worried that she had started telling Brenda what to do instead of asking her to do things, and that her patience was waning. Carole ended her litany of worries with one that worried me—she worried that if she ever had a momentary lapse that resulted in harm to Brenda, she’d be accused of elder abuse.

I hate to think that caregivers see our network as a threat rather than a resource. I admire people who open their homes and lives to elderly members and have been deeply moved by books like For Sasha with Love and The 36-Hour Day, which chronicle the experiences of caregivers. My favorite is the touching and inspiring Elegy for Iris, written about Iris Murdock by her literary critic husband of 40 years, John Bayley. In it, he describes his tender love for her that is disrupted by fits of rage when the unrelenting demands of caregiving and the cruelties of dementia overwhelm him.

Caregivers don’t just worry about being accused of abuse. According to a 1995 study by Karl Pillemer and Jill Suiter, 20% of dementia caregivers fear they’ll actually become violent toward those they care for, a rate that jumps to 57% if the care receiver has been violent toward them. A shared living situation and disruptive behaviors by care recipients also increase caregivers’ fears. Pillemer and Suiter also looked at whether fearful caregivers actually abuse, and found that 6% do.

In previous blog postings, I’ve called for our network to reach out to the dementia care network. Some in our field disagree. There’s a pervasive “been-there, done-that” attitude when it comes to focusing on caregivers. Some believe that framing abuse as a “caregiving issue” leads to inappropriate interventions that place victims, particularly battered women, in danger. Some fear that caregiver stress will be used as a defense to excuse the inexcusable.

Their concerns are understandable. But caregivers need and deserve help; and, in fact, there are very few programs or resources out there for those at risk of abusing. We’re in a unique position to fill that gap. We now know that caregiver stress isn’t simply a matter of how much care patients require; other factors like poor past relationships (and domestic violence), aggressiveness and violence by care receivers, mental health issues, and the “fear factor” play a role. What’s needed are screening tools to assess high risk caregiving situations and strategies to help caregivers manage aggressive behaviors, deal with their fears, and plan for their safety. If caregivers continue to feel that they will be treated unfairly or punished for asking for help, they will never reach out or get services they desperately need.

Criminal conduct should never be excused or spun as something it’s not. But in elder abuse, we deal with lots of nuanced distinctions and slippery slopes. We expect the public, judges, and juries to understand cognitive deficits, power and control, and undue influence. By comparison, caregiver stress is well within the scope of experience that anyone who has raised a child or cared for a disabled loved one can comprehend. Most of us can appreciate John Bayley’s rage and still distinguish right from wrong.

From the Folks Who Brought You “Friendly Fire”

What do the U.S. military and the long-term care network have in common? It seems we’re competing for the same criminals (reformed, hopefully) to fill critical manpower shortages. In our case, the shortage is for nursing home employees and in-home attendants. In theirs, it’s for soldiers to fight an unpopular war. We’re both struggling with the uncertainties of deciding when past criminal conduct should not stand in the way. The military’s approach is to issue an increasing number of “moral waivers,” which permit would-be personnel who’ve committed disqualifying offenses to serve.

According to a New York Times article that ran last week, the number of moral waivers granted to Army recruits with criminal backgrounds has grown nearly 65% in the past 3 years. Prior to issuing the waivers, the military looks at the nature of the crimes, when they were committed, recruits’ degree of rehabilitation, and references from teachers, employers, coaches, and clergy. The sharpest increases have been for serious misdemeanors, which include aggravated assault, burglary, robbery, and vehicular homicide. In 2006, 11.7% of Army recruits had criminal histories.

In earlier posts, I’ve talked about how, as the pool of long-term care workers is depleted, the number of people with criminal histories being hired by nursing homes and frail elders has gone up (See Criminal Caregivers). In Texas, where people with certain convictions are barred from working in long-term care facilities or home health care settings, employers are provided with reports of all potential employees’ convictions. In 1995, facilities received reports on 3.4% of the potential employees. By 2000, that percentage had risen to 9.1%. A 2005 study of nursing homes in Michigan found that almost 10% of the state’s nursing home employees had criminal backgrounds, which included homicide, criminal sexual conduct, weapon charges, and drug offenses.

Given the current shortages, our network, like the military, has to make allowances. When New Jersey passed a law requiring all home care workers to have FBI fingerprint checks, they discovered that 400 current employees had committed disqualifying crimes. Many had been working for years, and losing them would have dealt a devastating blow to the system. The state sought to get them exempted.

I don’t believe that hiring people with criminal histories is entirely bad. Youthful mistakes don’t make people hardened criminals, and people deserve second chances. The problem is, we simply don’t know much about recidivism and patterns of re-offending. Nursing homes, or worse, the private homes of frail elders, are not exactly ideal venues for finding out (I’ll reserve comment about whether battlefields are).

What we do know about recidivism isn’t reassuring. A study commissioned by the Office of the Assistant Secretary for Planning and Evaluation (DHHS), Ensuring a Qualified Long Term Care Workforce: From Pre-Employment Screens to On-the-Job Monitoring, looked at whether nursing home employees with criminal histories are more likely to commit abuse. They are.

The military has also conceded that they’re having problems. According to the Times, “many criminals have at some point exhibited serious lapses in discipline and judgment.”

Personally, I find the term “moral waiver” offensive. Still, I think our network should consider adopting it. If word got out that nursing homes and home care agencies were issuing "moral waivers" to prospective employees with criminal histories, it might ignite the public outrage needed to get the government to fund critically needed research on recidivism. Perhaps the Army would like to join us in a study.

PPS on Undue Influence: The Civil Side

For the season of giving...
Caregivers in California who receive last-minute bequests from those they care for are presumed to have exercised undue influence, even if they were close friends. That’s because of a controversial 1993 law that was recently upheld on appeal (Bernard v. Foley).

Probate Code Section 21350 was enacted following a scandal that involved an estate-planning attorney who named himself and his family as fiduciaries for, and beneficiaries of, clients’ estates. The law lists categories of people who can't inherit unless they can prove that transfers weren't the product of fraud, menace, duress, or undue influence. It includes those who draft wills and trusts and law firms, lawyers, and employees of law firms associated with them. And caregivers.

The suit involved 97-year-old Carmel Bosco, a widow who died childless in 2001, leaving an estate of around $448,000. Two months earlier, she’d moved into the home of an old friend, Ann Erman and Erman’s boyfriend, James Foley. Mrs. Bosco made the move at the urging of Erman, who had previously been married to Bosco’s nephew, Arthur Erman.

Erman and Foley took care of Bosco during the last months of her life, tending her bedsores, administering morphine, preparing meals, and helping to change her diapers. They went through her mail and handled her financial and investment affairs. During that time, Bosco amended her living trust several times, each time giving more to the couple– she'd originally left her estate to family members. A few days before she died, she changed it again, naming Foley and Erman each as 50% beneficiaries

Bosco's family, including nephew Arthur, sued, claiming that Foley and Erman had exerted undue influence over Mrs. Bosco, who was gravely ill and heavily sedated when she changed the trust the last time. The case got down to whether Foley and Erman were care custodians, and therefore, covered under the law. Foley claimed that he and Erman were simply “performing acts of kindness on a purely volunteer basis as good friends often do for others.” The trial court agreed.

But the family appealed, the court of appeal reversed, and the California Supreme Court agreed with the appeals court, writing that “a caregiver may be a personal friend, and in fact, personal friends are uniquely in a position to unduly influence the elderly for whom they care.” Chief Justice George agreed with the majority but suggested that the law be amended to differentiate between long–term caregivers and those who provide care for short periods of time.

In response, in September, the California Assembly passed AB 2034, sponsored by the State Bar Trusts & Estates Section, which directs the California law Revision Commission to study Section 21350. The Commission is expected to begin looking at the issue in March.

Follow-up on Government-Subsidized Elder Abuse

Although I welcome feedback, apparently my blog doesn’t. Seems it’s been rejecting comments. I’m exploring how to fix the problem, but in the meantime, I wanted to pass along an item from Lori Delagrammatikas, program coordinator of Project Master at San Diego State University’s School of Social Work:

Riverside County (California) convinced an IHSS administrative hearing judge to deny a client the right to continue to use an abusive independent provider using the argument that the purpose of the IHSS program is to maintain the client safely at home. (Clients who have complaints about state benefits and services can request hearings, which are presided over by administrative law judges from the California Department of Social Services. Clients [and their advocates] and representatives from their counties present their sides.)

This was a domestic violence case and the boyfriend was not only the IP but also the client's authorized representative. He was very violent, and when he came to the hearing, he was verbally abusive to the hearing judge! It was obvious that paying this particular provider caused the client to be "unsafe" at home, undermining the purpose of the IHSS program. Unfortunately, the judge's ruling was for this individual case and did not set a precedent for other cases.

I’d be interested in hearing about what’s happening in other states.

Georgia Anetzberger, assistant professor at Cleveland State University, wrote suggesting the need for an in-depth article on this topic and more research. Georgia, by the way, did some of the seminal research on family abusers and has continued to do cutting edge work for over two decades. I fully agree about the need for research, especially studies to help identify high-risk IPs, which could serve to educate administrative hearing judges (and others) and alert consumers to risks.

I’ve also received many positive comments about the blog, suggestions for publicizing it, and ideas for future topics. Thank you all, and I’ll make every effort to oblige. Also, feel free to comment and let me know if you have problems doing so.
Lisa

Consumer Choice or Government-Subsidized Elder Abuse?

Years ago, San Francisco’s multidisciplinary team was discussing a case involving flagrant abuse by a chore worker. When the group learned that the worker was being paid with public funds through the state’s In-Home Support Services program, we turned to Mary Counihan, supervisor of our APS and IHSS units, and chimed in unison “Fire him!”

It wasn’t that simple, Mary explained. Under IHSS, clients can either be provided with workers through licensed agencies, or they have the option of hiring and supervising their own “independent providers,” including family members, with IHSS funds. In our case, the abuser was an IP, and the victim refused to fire him. Mary went on to explain that it was younger adults with disabilities who’d advocated for allowing IHSS “consumers” to take a more active role in managing their own services, which included making hiring and firing decision. It was a matter of client autonomy.

But autonomy was our mantra too, we complained. Still, paying abusers with public funds didn’t sit well with many of us.

The county eventually exercised its option to change the “mode of service,” which meant requiring the client to accept services from a licensed agency. But for many of us, the case was our first exposure to the incipient “consumer choice” movement. Flash forward ten or so years. The movement has flourished, fueled by the 1999 Olmstead decision, a Supreme Court case brought on behalf of two developmentally disabled women who’d been living in an institution but wanted to live in the community. Their lawyers successfully argued that the state had an obligation, under the Americans with Disabilities Act, to reasonably accommodate the women in the community. In essence, Olmstead framed community-based, long-term care as a human rights issue. It further got translated to mean that states had to offer consumers more options.

Since then, many in the aging services community have joined the disability community in support of consumer choice. Prominent organizations like The National Council on the Aging have been among the foremost supporters, and the Robert Wood Johnson Foundation has funded projects to increase opportunities for consumer choice.

In the meantime, APS and IHSS programs have continued to struggle to protect clients from abusive chore workers. It hasn’t been easy. Over 90% of IHSS clients choose the IP option and half hire family members. In California, repeated attempts by counties to change the mode of service of clients whose workers have abused them have been successfully challenged. Counties have challenged the challenges, but it seems to be a losing battle. According to Mary, there’s widespread agreement around the state that if clients want to keep their abusive IHSS workers, there’s little counties can do.

Okay, those of us in elder abuse prevention are jaded. It’s hard not to be when we hear about rampant abuse by chore workers and know that elders hire troubled offspring who can’t find better jobs. And then there’s the critical shortage of workers, the lack of screening, and recent studies showing disturbingly high rates of chore workers with serious criminal histories. Not to mention the rumors that probation and parole officers are actually encouraging their clients to become chore workers. And while consumer choice advocates acknowledge that some workers abuse, they seem to shrug off the risks and point to the “safety net” of APS and the elder abuse prevention network.

For example, the NCOA publication Myths and Realities and Consumer Choice includes as Myth 2: Consumer-directed services are not appropriate for elderly persons with disabilities or for individuals with cognitive impairments. The authors counter the “myth” with “Studies have shown that many elderly individuals with disabilities and persons with cognitive impairments can express daily preferences.” It’s true that many cognitively impaired consumers can express preferences, but that’s not what has me worried. It’s their ability to screen workers, detect exploitation, seek shelter, and withstand undue influence. The same publication lists as Myth 4, “Consumer-direction places older adults at greater risk,” and goes on to point out that “There is no evidence that the consumer direction model of service delivery is inherently “riskier” than professionally-managed services.” I have trouble with this one too. Studies I’ve read that compare abuse rates by IPs with agency-managed workers do suggest lower rates of some forms of abuse by IPs, especially family IPs, but they rely on elderly consumers’ perceptions of whether or not they’d been abused, which, as we know, is by no means a perfect indicator. Many victims don’t know they’ve been abused, are afraid to say so, are manipulated by their workers, or are more concerned with seeing troubled kids get jobs than their own safety.

I’m not against consumer choice. In fact, I’m a firm believer that responsible family caregivers should be compensated for the enormous contributions they make. What’s troubling to me is that the “safety net” isn’t working and members or our network have not, to my knowledge, been involved in state and federal policy discussions about consumer choice. Dealing with abuse by IPs is tricky business, which has gotten trickier in the age of identity theft and worker shortages. And then there are the unanswered questions about capacity. How do you define capacity to screen, supervise and fire workers? Since cleaning up messes is harder than avoiding them in the first place, shouldn’t we be involved in policy discussions about consumer choice, building relationships with the consumer choice network, explaining the barriers we face, and figuring out how to make consumer choice programs as safe as possible? I think so.

Criminal Caregivers

Criminals shouldn’t be providing care to frail old people. That assumption is what’s driving more and more agencies, states and the federal government to explore criminal background checks for prospective long term care employees.

But ensuring that vulnerable elders have trustworthy caregivers isn’t that easy. When Pennsylvania amended its protective service law prohibiting long-term facilities from hiring or retaining employees convicted of certain crimes, the state’s Supreme Court ruled it unconstitutional. When New Jersey passed a similar law, over 400 current employees, many of whom had worked for years and were dong a good job, were found to have committed disqualifying crimes.

Keeping patients safe when there’s a critical shortage of workers is a balancing act—one that prompted the Office of the Assistant Secretary for Planning and Evaluation (DHSS) to commission “Ensuring a Qualified Long Term Care Workforce: From Pre-Employment Screens to On-the-Job Monitoring,” a study, which explores, among other things, the relationship between past criminal background and subsequent abuse. As a member of the project’s advisory committee, I met recently with other members and staff of the Lewin Group, which conducted the study.

It came as no surprise that the preliminary findings affirm a link between criminal history and abuse. After all, an earlier study by Michigan’s attorney general showed that a quarter of CNAs convicted of crimes against nursing home residents had prior criminal backgrounds. But the group also discussed the need for more research on recidivism and the dissemination of existing information to guide hiring decisions. One advisory committee member cited a recent study that suggests that after 7 years, past criminals are no more likely than others to commit new crimes.

The need for more research to guide hiring decisions became clear to me years ago when a worker at an Oregon agency responsible for hiring home care workers told me about a convicted child abuser who, after being denied employment, successfully challenged the decision claiming that there was no empirical evidence to show that persons who abuse children are likely to abuse elders.

In calling for more research, we will find some unlikely allies. These include offenders’ rights advocates, who hope that new studies will create more opportunities for reformed offenders. They argue that the need for research has become particularly critical in light of Internet technology, which has made checking backgrounds easier than ever to obtain. They furhter caution that the rapid growth of the largely unregulated criminal background check industry poses serious threats to offenders' rights.

Ensuring patient safety at home is even harder--home care workers are in even shorter supply and spend significantly more time with elders alone and unsupervised. The popularity of “consumer choice” programs in long term care, some of which permit low income elders to use public benefits to hire workers on their own (as opposed to using licensed agencies), have forced some frail elderly “consumers” to make hiring decisions on their own in a stunted market with inadequate information. These are clearly issues looming on the policy horizon. Hopefully, the DHHS study is just the start. More on consumer choice programs to come.