Monthly Archives: May 2019

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A National Concern

Whether as the result of isolation, diminished cognition, financial insecurity, trusting too much, being ashamed to report being scammed or concerned about how relatives will react, serious concern for health or other causes, many of these crimes go unreported. As InfraGard members, the more we learn about elderly fraud and abuse, the better we are at protecting ourselves, our families and friends, and helping first responders and the FBI succeed in their efforts to counter this type of crime.

Resources for InfraGard Members

Seven resources have been selected for your convenience and review. They provide protection information from the FBI, the Department of Justice and the Better Business Bureau.

The Federal Bureau of Investigation

See attached “Fraud Target: Senior Citizens” describing how to protect yourself and your family, counterfeit prescription drugs, funeral and cemetery fraud, fraudulent “anti-aging” products and telemarketing fraud.

For more information, click here: www.fbi.gov/scams-and-safety/common-fraud-schemes

Twenty-three types of scams are discussed.

The Department of Justice

The video below discusses scams and identity theft, looks at trends and gives tips and tools with a focus on the Federal Trade Commission’s Pass It On  Campaign: 

https://www.justice.gov/elderjustice/video/introducing-ftc-s-scams-and-identity-theft-older-adults-trends-tips-and-tools

Extent of elder abuse, causes and characteristics, addressing mistreatment, financial exploration and perpetrators:

https://www.nij.gov/topics/crime/elder-abuse/pages/welcome.aspx

Contains prosecutor video series, federal financial exploitation resources, rural and tribal resources, multidisciplinary guide and toolkit, webinars for elder abuse professionals, elder abuse statutes and elder justice resources by state: https://www.justice.gov/elderjustice 

On April 9th, from 2:00-3:00 p.m. EDT, join the Consumer Financial Protection Bureau’s Office for Older Americans for a free webinar highlighting the findings from its new report, Suspicious Activity Reports on Elder Financial Exploitation: Issues and Trends. Click here for more information: https://www.justice.gov/elderjustice/event/suspicious-activity-reports-elder-financial-exploitation-issues-and-trends 

The Better Business Bureau

https://bbb.org/scamtracker/us

The BBB tracks reported scams throughout the U.S.

A jury has awarded $6 million to the wife of James Romano, a nursing home resident confined to a wheelchair after breaking his hip in a fall at Clove Lakes Health Care and Rehabilitation Center nursing home.  Romano fell out of a wheelchair on April 14, 2011.  Romano had been brought to the facility a week earlier to undergo short-term rehabilitation for a back fracture suffered when he fell at home on April 1, 2011.

He was supposed to remain for about three or four weeks and then be released home in ambulatory condition.  The nursing home failed to supervise and offer assistance which allowed him to fall while attempting to stand up out of the wheelchair.

Romano suffered a left hip fracture, resulting in partial hip-replacement surgery at Staten Island University Hospital on April 15, 2011. He remained at University Hospital until April 26, when he was returned to the nursing home.  Romano stayed there for about three more years, confined to a wheelchair due to the hip fracture, until his death at age 87 on March 22, 2014.

Delores M. Romano, the victim’s wife, sued the nursing home.  She alleged Clove Lakes was negligent in failing to take preventive measures, such as using a seat belt, restraining belt or a table tray, to prevent Romano from falling out of the wheelchair. In addition, she alleged there wasn’t sufficient staff on duty, and Romano wasn’t properly supervised.

“It made the last three years of his life very difficult,” said the lawyer. “It stole time from his wife and family.”

Herbert said the trial began with opening statements on April 11, and the jury reached a unanimous verdict on April 17.

The panel deliberated about two hours before finding in favor of the plaintiffs, he said.

A DeKalb County jury awarded $1.8 million to the estate of a nursing home resident who died as a consequence of hitting her head in a fall from bed as the staff carelessly changed the bed linens while she remained in the bed.  She suffered a brain injury after an aide rolled her off her bed, causing her to fall to the floor and hit her head.  The jury verdict covered the pain and suffering of Christine Mitchell but included no damage award on an accompanying wrongful death claim.

Attorneys for the woman’s son and executor said the verdict revealed that a jury could find value in the suffering of even terminally ill plaintiffs.  Mitchell, who was already in poor health, died a month after the 2015 fall at Grace Healthcare of Tucker.  Grace Healthcare of Tucker is a 136-bed for-profit facility which is part of a Tennessee-based chain that operates more than 30 homes in multiple states.  The home currently has a 1-star rating — the lowest — on the federal government’s “Nursing Home Compare” website. The federal website rates the facility as “much below average” on the three key categories of health inspections, staffing and quality measures.

“One of the interesting things about this kind of case is how a jury would look at her. What is the pain and suffering worth for a woman dropped on her head who probably only had another six months to live?” said Evan Jones of Athens’ Blasingame, Burch, Garrard & Ashley.

“The jury answered that very important question: Their pain and suffering does matter,” said Jones, who tried the case with co-counsel Michael Prieto, William Holbert and Jonathan Marigliano of Prieto, Marigliano, Holbert & Prieto, an Atlanta firm.

Jones said his team made a $500,000 offer of settlement on the pain and suffering claim and a similar offer on wrongful death in September, both of which were declined.

McKnight’s had an article on how Eskaton will “work through this” after a jury compensated the family of a former resident $42.5 million in punitive and compensatory damages for neglect that led to her death.  The amount of punitive damages, $35 million, represents more than 10% of nonprofit operator Eskaton’s net worth.

Barbara Lovenstein moved into Eskaton FountainWood Lodge, an assisted living facility in 2012. The resident had an epilepsy diagnosis and had a prescription for the sedative lorazepam (Ativan) that was to be given only when she had “seizure-like activity,” the complaint said.

FountainWood staff members, however, began administering lorazepam to Lovenstein daily as a chemical restraint even after her primary care physician denied their request for a prescription for routine dosage.  As a consequence, Lovenstein choked and was taken to a hospital emergency department, where it was determined that she had aspiration pneumonia, and died April 11, 2012.

The state Department of Social Services, after a 2012 investigation, concluded: “Primary care physician medication orders and communication were not followed.” The state also found that “resident medication [was] not given as prescribed.

“The jury was presented with evidence that Eskaton engaged in this practice not just with Ms. Lovenstein but throughout the memory care unit of its facility because it was dangerously understaffed,” “Eskaton corporate officers were aware of the understaffing, lack of supervision and numerous other systemic failures at the facility but woefully failed to do anything about it.”

 

Stars and Stripes had a fantastic article about the use of “foster families” to help keep elderly veterans out of nursing homes as part of the U.S. Department of Veteran Affairs Medical Foster Home Program. It’s an alternative to nursing home care for veterans who cannot live independently.  The program, which started in 2008, operates in 44 states. The Nolans are among 700 foster-care providers looking after about 1,000 U.S. veterans with chronic conditions.

Each family participating in the program is allowed to take in up to three veterans, provided they meet foster guidelines and have enough room, said Dayna Cooper, director of home and community-based programs for VA. The agreement is a long-term commitment, and the veterans often live in the foster home for the remainder of their lives.  Veterans who enroll in the program also receive at-home visits from doctors, counselors and occupational therapists.

Foster home providers need to pass a background check and complete 80 hours of training before they can accept veterans. They also must take 20 hours of additional training each year, allow VA to make announced and unannounced home visits, and may not work outside the home. They also must maintain certifications such as first aid and CPR.

In return, the families are paid a stipend averaging $2,400 a month per veteran, which is set by care providers and the veteran, and is much less than what a long-term-care center would cost.

The fee is paid by the veterans through their benefits and Social Security, and some use personal funds. About a quarter of the veterans enrolled in the foster program are eligible for nursing home care that is fully covered by VA but prefer to pay for the foster program because they want in-home care, according to VA.

 

An argument about filling a soap dispenser turned into a fight inside University Place nursing home in West Lafayette.  University Place is a care facility for assisted living, independent living, skilled care, memory support and rehabilitation, according to its website.

Police took Lafayetta Tellis to jail but she is no stranger to the criminal justice system.  University Place Executive Director Dave Kinder said they were not aware of Tellis’ extensive criminal history when they hired her.  In November 2001, prosecutors charged her with a count of carrying a handgun without a permit. She pleaded guilty in April 2002 to a misdemeanor count of carrying a handgun without a permit. In September 2003, prosecutors charged Tellis with attempted murder and criminal recklessness. Tellis was accused of shooting an 18-year-old woman twice in the back during an argument, according to news reports from the Evansville Courier & Press. Tellis pleaded guilty in November 2003 to battery with serious bodily injury. She was sentenced to four years in prison and two years on probation.

Kinder said that University Place is not supposed to hire people with felony convictions. University Place is in the process of creating a more comprehensive background check, Kinder said.

WSPA reported the conviction and sentencing of Christopher Pilgrim who pleaded guilty last month to first-degree assault and was sentenced to 10 years with credit for 226 days he has already served.  Pilgrim was arrested last year for sexually assaulting a dementia patient at Magnolia Manor-Inman, a nursing home owned and operated by the national for-profit chain Fundamental Long Term Care Holdings, LLC (aka Hunt Valley Holdings).  Pilgrim will also be required to register as a sex offender, according to court records.

It is unclear how or why the facility allowed Pilgrim access to a vulnerable adult who resided at the nursing home.  Magnolia Manor-Inman has a history of violations, poor care, and lawsuits filed against it.  We hope they do something to keep the rest of the residents safe and free from harm.

Carrie Hoffman and Foley & Lardner wrote a great summary of Adock v. Five Star Rentals/Sales, Inc The plaintiff in Adock was a former employee of Five Star, and he sent a demand letter to his former employer asserting a claim for worker’s compensation retaliation. Adock also requested whether there was an arbitration agreement between himself and his former employer. The letter informed the former employer that Adock would pursue claims in court if there was no arbitration agreement. Five Star failed to respond therefore Adock filed a lawsuit.

Then Five Star produced an employment contract that contained a mandatory arbitration provision. Adock informed Five Star he wanted to move the dispute to arbitration, but Five Star claimed Adock had waived his right to arbitrate by initiating state court litigation.

In ruling on the pending motion to compel arbitration by Adock, the court found that the parties had superseded their earlier arbitration agreement by entering into a new agreement not to arbitrate, and that Adock waived his right to arbitrate by invoking the judicial process.  The Texas Court held that Adock’s letter provided Five Star thirty days to provide a copy of a signed agreement to arbitrate and that the failure to do so would be considered an agreement to resolve the dispute in court. Based on Five Star’s failure to provide Adock a copy of the arbitration agreement within the specified demanded timeframe, the Court found that the parties “entered into a subsequent agreement not to arbitrate.” The later agreement, the Court found, superseded the original agreement to arbitrate.

Generally, silence will not be considered acceptance of contractual terms unless one of four conditions exist. See National Union Fire Insurance Co. v. Ehrlich, 122 Misc. 682 (N.Y. App. Div. 1924).

  1. Silence will constitute acceptance if the offeree gives the offeror the impression that silence will be considered an acceptance.
  2. Silence will constitute acceptance where the offeror has told the offeree that silence will constitute acceptance.
  3. Silence will constitute acceptance where an offeree improperly exercised dominion over goods sent to him for approval or inspection. In such an instance, the offeree is contractually bound to buy the goods at the stated price. The offeree will be forced to buy the goods even if he never had any intention of buying them in the first place.
  4. Late acceptance of an offer has the legal weight of a counteroffer. In other words, where an offeror makes an offer to an offeree and the offeree accepts in an untimely manner, that acceptance is not a valid acceptance.

Parties should review their files and respond to informal inquiries about the existence of such arbitration agreements or they will be deemed to have nullified their earlier agreement, or possibly have waived their right to enforce an arbitration agreement.

KMOV had an article on the deterrent effect of cameras in nursing homes to prevent abuse, neglect, and fraud and asks the simple question: “Would you feel better if you could put a camera in your loved one’s room?”  Most people say yes but the industry is fighting back.  Ten states, including Illinois, have already passed what have become known as “Granny Cam” laws.

“Martha Eudaley has made it a personal mission to allow cameras in nursing homes. Due to failing health, several years ago, her husband of 52 years, Tom, entered a local nursing home.  On a visit, Martha says she noticed a gruesome smell.”

“I pushed on the door and it opened and he was sitting in his chair, head down, lifeless,” Martha said.

She says Tom had been horribly neglected. Riddled with bedsores and spiking fevers, she says he was hospitalized, but never recovered.

“Is there any doubt in your mind that it was neglect?” asked Investigative Reporter Lauren Trager. “Not at all. Not at all,” Martha said.

“It’s just heartbreaking to me, heartbreaking that people cannot understand,” she said. “But for the grace of God, that could be you.”

She says one thing could have made the difference, a camera inside her husband’s room.

“Oh, I know it would have, because I would have seen everything that’s happening,” she said.

At a nursing home in the Detroit area, a suspicious son planted a hidden camera. Salim Younes says he was shocked to see the video. The camera captured a nearly 90-year man being thrown, slapped and berated.

Horrible, unspeakable verbal and physical abuse, torture, this was a living hell for this gentleman,” said Jonathan R. Marko, the Younes’ attorney.

Other videos from around the country depict horrifying acts of abuse. But in those instances, they often used hidden cameras. Advocates say they’d like residents to have the choice to use the cameras out in the open.

“When you look at society today, cameras are really everywhere,” said Mary Lynn Faunda Donovan with VOYCE, an advocacy group for residents in long-term care facilities.

She says a “recording in progress” sign inside a resident’s room, she says, could prevent abuse and neglect.

Under Missouri law, a resident of nursing home could be kicked out if a facility finds a camera. Donovan says she wants a law that protects the right of residents.

“The key thing is that the resident has the control over that camera and when it’s on and when it’s off,” Donovan said.

An idiot nurse at Kane McKeesport Community Living Center nursing home is accused of taking photos of at least 17 elderly patients — some of them naked — and sending the photos to another person.  As KDKA-TV and the Pittsburgh Post-Gazette report, Ashley Ann Smith, a practical nurse, was charged with 30 crimes in connection with the photographs, the Post-Gazette writes. Those criminal counts include invasion of privacy and abuse of care.

During a 15-month span between May 2017 and August 2018, Smith is accused of taking the photos of her patients while she was working as a practical nurse at the facility.

Some images showed people “in need of immediate care and private situations,” according to the criminal complaint in the case.

A video on Smith’s cell phone also showed a naked patient undergoing a medical procedure, the complaint said.

“The images are explicit and private, and some have the sole purpose to humiliate the patients,” according to the complaint.

When investigators examined Smith’s phone, they found not only the photos of naked elderly people, but also two pornographic photos of a 2-year-old girl, according to the complaint. As a result, Smith also faces child pornography charges.