Friday, November 14, 2014

Case in Virginia shows that elder-neglect laws do have some teeth; a tragic story with extreme age; the adult child was already 70 herself

A recent sad incident in Alexandria, Virginia provides a reminder that neglect when having eldercare responsibilities can result in criminal prosecution.  The story leads the Metro section of the Washington Post Friday, November 14, 2014, and is by Matt Zapotosky, link here
The case involves a 70 year old woman, Anne Bailey, caring for her 98 year old mother.  Apparently when the mother fell (from a wheelchair) the defendant left her alone on the ground for two days.  The mother eventually died, but from a heart attack not related to the fall.  And complicating the story is the fact that Bailey did call 911, and it is not clear why that call failed (technically) or why other attempts to get help failed (as detailed in the story).  Nevertheless, Bailey plead guilty to a single felony count of “neglect of an incapacitated adult”.  The text in the Virginia code is here. The sentence is likely to be limited to community service and there are legal maneuvers designed to keep a felony off the defendant’s record.
One striking aspect of the case is the extreme age of the mother, but also the daughter.  People, especially women,  are surviving into the late nineties or to over 100 with extreme disability (particularly dementia) much more often than in the past. Adult children do have a legal obligation to provide for their care in most or many states, about 30 of which (including Virginia) have filial responsibility laws.
Another relevant fact was that Bailey seemed to be providing care alone, and that the City of Alexandria had offered to provide home health services.  It is not clear from the story how these would have been paid for.  Medicare does not pay for custodial care, but Medicaid will pay for nursing home care for those without sufficient assets.  It is theoretically possible to require the daughter to pay for the nursing home care before Medicaid does, but so far, to my knowledge, the only state in which this has actually happened is Pennsylvania (May 22, 2012 story here, the Pittas case).  Readers of this blog may know of other cases and are invited to comment.
In my own case, I had returned home to Virginia in 2003 when I was 60 myself, after forced “retirement” (job buyout/layoff in Minnesota).  My own mother (born in 1913) started showing more serious problems in 2007 (with a parking lot fall that did not result in serious injury).  In May, 2009 she had a mild stroke and spent three weeks in Medicare-approved skilled nursing.  She was released with a diagnosis of dementia, which was believed to be more heart-related (vascular) than Alzheimer’s.  I arranged for occasional home health as soon as she returned home in June.  Usually, someone would come if I went out for an extended period.  In July she seemed to improve and I actually allowed her to be alone when I went out (usually not more than about four hours at a time).  Once she was allowed to drive to the grocery store, and came back without incident.   But in August the decline set in again, and home health was usually hired.  I had two different companies.  One of the companies sent a nurse for review and that nurse told me, sometime later in the fall of 2009, that leaving a patient on Aricept alone could be prosecuted as neglect.  (A physician later discounted this idea.)  By November we had care here during the day all weekdays, and by Spring 2010 we had day care every day, which extended to 24 hour care in September.  But care had been arranged throughout 2010 for most weekend evenings, as I often needed to go out.  Mother would pass away at 97 on December 14, 2010 after four days in Capital Hospice.  I had the services of Hospice (Medicare-paid) at home (nurse visits and social worker) starting in November 2009 (when there is a life expectancy of six months or less).  Medicare typically gets billed about $4000 a month for in-home visits.  Self-pay of 24 hour home health (from her assets) cost about $12000 a month, more than a nursing home (then about $7500) but she was determined to stay at home.  I had met with a lawyer and set up a trust back in early 2009.
The obligation of adult children (I am an only child) to provide for parents, while sometimes driven by family loyalty and emotion, is an important moral question, too, and it would have bearing on other major policy issues, especially marriage (even now same-sex marriage) and policies that influence the decision as to how many children to have (or even adopt).  Not everything in life is just a matter of personal choice and living up to the choice.  There are things we don’t have a choice about. 

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