Guardianship, Reverse Mortgage Fraud, and Politicians Posing as Health Care Workers

Advocacy Update
There’s lots happening on the advocacy front, and I’m a bit behind. But here goes:

Guardianship Reform: The National Scene
Last week, Senator Gordon H. Smith (R-OR) released Guardianship for the Elderly: Protecting the Rights and Welfare of Seniors with Reduced Capacity, a report on the role of the feds in overseeing the guardianship system. The report was based on responses to a call for papers Smith issued following a 2006 Senate Special Committee on Aging hearing. The hearing had followed a flurry of negative reports about guardianship, including the findings of a GAO report and a scathing 2005 Los Angeles Times series that exposed blatant abuses by professional conservators (California parlance for guardians) and negligence by courts in monitoring them. Widespread media coverage about philanthropist and socialite Brooke Astor, whose son was charged with looting her estate while acting as her guardian, had also brought additional attention to the problem.

According to the report, federal actions that warrant consideration include uniform federal standards for guardianship and an enforcement mechanism; a national guardianship office, possibly administered through the Department of Justice, to promote best practices, training standards, data collection, and oversight; increased coordination among the multiple government agencies that are involved including the Social Security Administration, Department of Justice, and Department of Health and Human Services; an infusion of federal funds to boost local court supervision programs; a national system of data collection and research; improved regulation and oversight of private and professional guardianship entities; and greater attention to guaranteeing the safety and due process rights of incapacitated seniors under guardianship. Specific areas of need include ensuring the right to counsel, independent medical and physical examinations, and the right to petition the court for guardianship termination. A full copy of the report is available at www.aging.senate.gov/minority or by calling 202-228-5862.

Smith’s report was released in conjunction with the publication of Guarding the Guardians: Promising Practices for Court Monitoring by Naomi Karp of the AARP Public Policy Institute and Erica Wood of the ABA’s Commission on Law and Aging. This resource for courts and policy-makers is a follow-up to Guardianship Monitoring: A National Survey of Court Practices, a 2006 report by Karp and Wood. The first report highlighted the results of a 2005 national survey of judges, court managers, guardians, elder law attorneys, and advocates. It called for better reporting by guardians (including prospective, or forward-looking, plans to show how they will manage the affairs of those they supervise); improved verification of reports; the use of technology for greater efficiency; and more resources devoted to monitoring. Part 1 is available at AARP's Web site.

The follow-up report (also available online on AARP's Web site), showcases specific practices, examples of which include:

• Ramsey County, MN has an e-filing system, which not only allows guardians to file their annual accountings online, but has built-in red flags to identify irregularities that bear further investigation

• Maricopa County, AZ uses fiduciary arrest warrants when necessary. Arizona’s guardianship certification program also performs intensive random audits of professional guardians.

• Suffolk County, NY has adopted a “problem-solving restorative jurisprudence approach to guardianship,” which includes mediation, a resource coordinator, volunteer advocates and the ability to integrate all pending cases involving the incapacitated person, including divorces, evictions and other matters.

The follow-up report even provides tips on how to spot “guardianships going bad"; examples of how courts handle specific situations like guardians’ failure to file reports; and ideas for how to raise and leverage funds for court monitoring.

According to Naomi Karp, “Their innovations show that effective oversight is more a matter of will than of money. It's not really rocket science and it's not really expensive. In all cases, there's at least one person who's a real visionary who is dedicated to getting it done."

And, In California:
As described in an earlier post (see Feel Good Laws or Real Reform?), the LA Times expose’ on private professional conservators prompted California last year to enact a package of laws to reform guardianship. Although courts were promised new funds to implement the provisions, with some having already hired additional staff to do so, the promised funding never came. Courts are doing their best to make due in the meantime and are hopeful that the state will honor its commitment next year.

Reverse Mortgages
In an email with the subject line “Mr. Cole Goes to Washington,” Shawna Reeves Nourzaie of the Fair Lending Project for Seniors of the Council on Aging Silicon Valley alerted me to the December 12 Senate Special Committee on Aging hearing “Reverse Mortgages: Polishing not Tarnishing the Golden Years.” Mr. Cole is our very own Prescott Cole of the San Francisco-based California Advocates for Nursing Home Reform, who was the lead witness. The hearing was prompted at least in part by lawsuits filed against "reverse mortgage specialist" company Financial Freedom. Although invited, Financial Freedom was not represented.

In a bizarre twist, Financial Freedom has since announced that the company did not make the loan that was the subject of damning testimony by panel witness Carol Anthony, who claimed that the company had wheedled her elderly mother into an expensive and inappropriate loan. Rather, Financial Freedom reps claim that the company simply purchased the loan after it had been closed by the original lender, Senior Freedom Corporation Funding. They blamed the confusion on the similarity of the names. But, as Shawna points out, even so, one might wonder what responsibility loan purchasers have in making sure that the loans they buy were not procured by fraud.

Also during the hearing, AARP unveiled its in-depth study of the Reverse Mortgage industry, highlighting many of the sales practice abuses directed towards seniors. You can view a webcast of the hearing, which was chaired by Committee Member, Claire McCaskill (D-MO), at http://aging.senate.gov/

Candidates Learn from Health Care Workers
Congressional and presidential hopefuls got a chance to experience first hand (well, sort of) what life is like for home care workers, nursing home aides, and other health workers as part of the “Walk a Day in My Shoes” campaign sponsored by the Service Employees International Union (SEIU). The campaign is “about making sure politicians truly know what the real world is like for the rest of us.” You can watch Hillary walk in the shoes of a registered nurse, Obama walk in the shoes of a home care worker, and Edwards walk in the shoes of a nursing home worker. Also shown walking the halls of a nursing home is U.S. Senate candidate Al Franken, who’s career I’ve been following since well before his Saturday Night Live days when my sister and I took a filmmaking class with him in the 60s. Footage of the candidates’ visits is available at SEIU’s Web site. (The Nerenberg/Franken productions were lost or destroyed by our mom.)

Looking for a Stocking Stuffer?
Springer Publishing has agreed to provide my blog and Web site readers with a 30% discount on my book, Elder Abuse Prevention: Emerging Issues and Promising Strategies, from tomorrow through the end of the year. They tell me the book will be released "any second." To get the discount, click on the icon that appears on the right or from my Web site at http://lisanerenberg.com/.

Happy Holidays
At the rate I’m going, this may be my last posting for 2007. So, Happy New Year to all and keep up the terrific work!

Geriatricians, Angry and Otherwise

Last week, I had a fascinating conversation with French journalist Dominique Prédali, co-author of On Tue Les Vieux, or Killing Elders, which describes elder abuse in French nursing homes and hospitals. Written for the general public, the book's small initial printing sold out the first day it hit bookstores last year and is now in its third printing. She is currently researching a new book on elder abuse around the world, which will be called Douze Gériatres en Colère or Twelve Angry Geriatricians. The angry geriatricians will talk about the social and economic factors that contribute to elder abuse, including ageism in health care, inadequate pensions, and poverty. She will also be looking at the role of failed health policy, including the introduction of market oriented healthcare reforms, in compromising the poor's access to health services.

Her research on the role of economic forces in elder abuse has been far flung, and includes delving into the sociology and anthropology literature that focuses on the effect of poverty on violent crime in developing countries. Among the experts she's interviewed is Ted Miguel, a medical anthropologist at the University of California, San Francisco, who is looking at witch killings in Meatu villages in Tanzania. Witch killings, which have been reported in Kenya, Ghana, Zimbabwe, the Congo, South Africa, Uganda, and parts of South America and India are typically committed against elderly women, and, according to Miguel and others, are much more likely to occur when food is scarce as a result of drought, floods, and other "income shocks." For more on global issues in elder abuse, see my review of Missing Voices: Views of Older Persons on Elder Abuse, which was jointly produced by the World Health Organization and the International Network for the Prevention of Elder Abuse at Missing Voices.

What should make geriatricians happy is the loan forgiveness program for health care professionals proposed by Shirley Krohn, a member of the California Senior Legislator (CSL). Shirley has pulled together an impressive group of geriatricians and others to help draft legislation to cancel all or part of government student loans to those studying geriatrics. Modeled after the state assembly, CSL's 40 senior senators and 80 assembly members develop proposals, which are then ranked by the full group; the highest ranked are pitched to legislators for sponsorship. CSL boasts a 70% success rate of bills chaptered into law. Shirley is working on several other elder abuse bills that address such critical areas as criminal background checks for home care workers and adding undue influence to California's penal code section on elder abuse.

All the talk about geriatricians got me thinking me about a terrific article that appeared in The New Yorker last April, which I've been meaning to add to the reading list of a course I'm developing. In "The Way We Age Now," Atul Gawande, a surgeon, describes the field of geriatrics, beginning with an achingly graphic description of how the body declines as we age ("the gums tend to become inflamed and pull away from the teeth; when you reach inside an elderly patient during surgery, the aorta and other major vessels often feel crunchy under your fingers").

When he accompanies a geriatrician from his hospital on visits, Gawande is struck by the multiple complaints that his colleague's elderly patients describe (unlike his own patients who typically present with a single major problem) and how he triages them. For example, when they visit a patient with arthritis, back pain, incontinence, and what might be metastatic colon cancer, Gawande hypothesizes that his colleague will zero in on the potentially life-threatening cancer. Instead, he spends most of the visit inspecting her feet inch by inch, having concluded that the greatest threat to her engagement in the world is a fall. It is this emphasis on functional capacity and quality of life that Gawande finds remarkable. The article goes on to describe the dwindling number of geriatric programs across the U.S. It is available online at "The Way We Age Now."

And finally, according to the promotional materials, it's like “having a doctor in your pocket.” The UCI School of Medicine recently released its excellent “Pocket Doc” for social work, legal, and law enforcement professionals who want to talk the talk. Written by Laura Mosqueda, it's a portable, comprehensive guide to common geriatric disorders and medications. To get a copy, click on Pocket Doc.

NYT's Article on Nursing Home Buyouts Prompts Action

In a follow-up to its September 23rd article "At Many Homes, More Profit and Less Nursing" by Charles Duhigg, the New York Times yesterday reported that the article has prompted a flurry of Congressional activity. Last week, Senators Max Baucus, who chairs the Finance Committee, and ranking member Charles Grassley sent letters to five private investment firms requesting information about their ownership and management of nursing homes–the Finance Committee oversees Medicaid and Medicare, which pay for more than two-thirds of nursing home patients. Among the firms they contacted was the Carlyle Group, one of the world’s largest private equity firms, which was in the process of buying Manor Care at the time of the report. Manor Care operates 552 facilities in 32 states. Senator Grassley has also asked the Government Accountability Office to examine how private equity ownership has affected the quality of nursing home care. And, earlier this week, two Congressional committees, the Energy and Commerce Committee and the Financial Services Committee, announced that they would also be investigating private investment firms' practices with respect to nursing homes.

The Carlyle Group also acted quickly, sending letters to regulators and officials in states where Manor Care has facilities, promising to maintain staff levels and other standards. The firm also sent letters to residents and families criticizing the Times article and denying its claim that they were intending to overhaul Manor Care to make it harder for regulators to trace ownership. But yesterday's article cites documents filed with Maryland regulators that indicate that Carlyle plans to reorganize Manor Care to make each home a stand-alone company and to separate ownership of the homes' real estate and operations, a move that other private investment groups have used to avoid liability and scrutiny by regulators.

Elder Abuse for Profit

In a chilling article that ran on September 23, The New York Times analyzed trends in patient care in nursing homes purchased by private investment groups. Using Centers for Medicare and Medicaid Services (CMS) data, The Times looked at more than 1,200 nursing homes purchased by large private investment groups since 2000 and more than 14,000 other homes; they compared the investor-owned homes against national averages in multiple categories, including complaints received by regulators, health and safety violations cited by regulators, fines levied by state and federal authorities, and the performance of homes as reported in the Minimum Data Set Repository and the Online Survey, Certification and Reporting database.

Not surprisingly, they found that investors' profits came at the expense of patient care.

The article focused on Habana Health Care Center, a 150-bed nursing home in Tampa, Florida, which was struggling when a group of large private investment firms purchased it and 48 other homes in 2002. According to the article:

The facility’s managers quickly cut costs. Within months, the number of clinical registered nurses at the home was half what it had been a year earlier, records collected by the Centers for Medicare and Medicaid Services, indicate. Budgets for nursing supplies, resident activities and other services also fell, according to Florida’s Agency for Health Care Administration. The investors and operators were soon earning millions of dollars a year from their 49 homes.

Residents fared less well. Over three years, 15 at Habana died from what their families contend was negligent care in lawsuits filed in state court. Regulators repeatedly warned the home that staff levels were below mandatory minimums. When regulators visited, they found malfunctioning fire doors, unhygienic kitchens and a resident using a leg brace that was broken.

The article also focuses on how private investment companies have made it nearly impossible for families to sue them or for regulators to levy fines by creating complicated corporate structures that obscure who controls the homes. For example, when Vivian Hewitt sued Habana in 2002 after her mother died from a large bedsore that became infected by feces, she found that its owners and managers had spread control of the home among 15 companies and five layers of firms. As a result, Mrs. Hewitt’s lawyer has been unable to establish definitively who was responsible for her mother’s care.

Investors claim that the corporate structures are common in other businesses and have helped them revive an industry that was on the brink of widespread bankruptcy. According to Arnold M. Whitman, a principal with Formation Properties I, the fund that bought Habana in 2002, "Lawyers were convincing nursing home residents to sue over almost anything…Homes were closing because of ballooning litigation costs…We should be recognized for supporting this industry when almost everyone else was running away.”

Other excerpts:

At facilities owned by private investment firms, residents on average have fared more poorly than occupants of other homes in common problems like depression, loss of mobility and loss of ability to dress and bathe themselves, according to data collected by the Centers for Medicare and Medicaid Services.

The typical nursing home acquired by a large investment company before 2006 scored worse than national rates in 12 of 14 indicators that regulators use to track ailments of long-term residents. Those ailments include bedsores and easily preventable infections, as well as the need to be restrained. Before they were acquired by private investors, many of those homes scored at or above national averages in similar measurements.

The Byzantine structures established at homes owned by private investment firms also make it harder for regulators to know if one company is responsible for multiple centers. And the structures help managers bypass rules that require them to report when they, in effect, pay themselves from programs like Medicare and Medicaid.

The Times’s analysis of records collected by the Centers for Medicare and Medicaid Services reveals that at 60 percent of homes bought by large private equity groups from 2000 to 2006, managers have cut the number of clinical registered nurses, sometimes far below levels required by law. (At 19 percent of those homes, staffing has remained relatively constant, though often below national averages. At 21 percent, staffing rose significantly, though even those homes were typically below national averages.) During that period, staffing at many of the nation’s other homes has fallen much less or grown.

To see the full article, see At Many Homes, More Profit and Less Nursing.

BTW, Charles Duhigg, the reporter who wrote the piece, is now working on an article on dynamics within families that may lead to, or be perceived as, financial abuse. His request came to Sharon Merriman-Nai, Project Director of the National Center on Elder Abuse (NCEA) Co-Management, who posted it on NCEA's list serve. Mr. Duhigg is also asking for suggestions for related topics. He can be reached at duhigg@nytimes.com

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.