Posts Tagged ‘group home’

Phoenix Seminar on Preventing Abuse, Neglect, Exploitation

JANUARY 20, 1997 VOLUME 4, NUMBER 29

Last week in Phoenix, the Maricopa Elder Abuse Prevention Alliance hosted a two-day seminar on prevention of abuse, neglect and exploitation of the elderly. Speakers ranged from nationally-known advocacy leaders to local social service and legal practitioners.

Jeff Calvert, coordinator of the Alliance, listed some of the warning signs of abuse, distinguishing between physical signs (burns, bruises, decubiti, malnutrition, etc.) and behavioral signs. Calvert noted that many behavioral conditions may exist in elders not subjected to abuse, but that they may also indicate something is amiss. His list included:

  • Agitation, anxiety
  • Withdrawal
  • Isolation
  • Confusion
  • Fear
  • Depression
  • Anger
  • Disorientation
  • Resignation
  • Hesitation to talk openly
  • Implausible stories
  • Non-responsiveness

Donna M. Reulbach, director of a Massachusetts program to prevent financial exploitation by involving bank tellers and officers, described her agency’s efforts with banks. She also listed some of the indicators that financial professionals can use to recognize exploitation. The elder customer may be:

  • accompanied by a stranger who urges large cash withdrawals
  • in the company of family members who appear to speak for the elder and make all decisions
  • nervous or afraid of the person accompanying them
  • giving implausible explanations about financial matters
  • unable to remember transactions
  • fearful that they will be evicted (or sued) if money is not given to a caregiver
  • isolated from family or supports (or isolated from family other than the relative accompanying them to the bank)

Lori Stiegel, Associate Staff Director of the American Bar Association’s Commission on Legal Problems of the Elderly, described national trends in prevention and punishment of abuse, neglect and exploitation. She noted that Arizona’s recent inclusion of “emotional abuse” in its criminal statute, coupled with the broad definition of “vulnerable adults” as the group entitled to special protection, made Arizona one of the more progressive states in dealing with problems of abuse, neglect and exploitation.

Phoenix prosecutors Terri Clarke and Pamela Svoboda, together with Phoenix Police Lieutenant Ken Tims, described the goals of and problems encountered by a concerted program to prosecute abusers. Their most notable concern: the difficult in prosecuting cases where the victim may be incapacitated, ill, or deceased, or may now be denying any abuse took place. They noted that abused elder women may commonly suffer from low self-esteem, come from traditionalist backgrounds, demonstrate “learned helplessness” and see their own role as keeping the peace between the abuser and the rest of the family (or society).

Phoenix Doctor Walter J. Nieri noted that many instances of abuse and neglect (as well as some examples of financial exploitation) come from long-term care settings. While nursing homes are closely regulated, and the possibility of undetected abuse is consequently lower, adult care homes are much more numerous and subjected to less state monitoring. He also pointed out that much abuse and neglect can be traced to caregiver stress, and provided a checklist for assessment of the level of stress in individual cases.

Susan Aziz and Chayo Reyes described the Los Angeles Fiduciary Abuse Specialist Team, a multi-agency task force established to combat the “crime of the nineties:” elder financial abuse. The three-year-old program involves Police, Public Guardian, Adult Protective Service and Probate Court representatives, among others. The Team conducts training sessions and focuses on fiduciary abuse.

Michigan City’s Exclusion of Adult Care Home Reversed

JANUARY 6, 1997 VOLUME 4, NUMBER 27

Mortenview Manor is an adult foster home in Taylor, Michigan. The facility is housed in a ranch-style home, and houses six elderly disabled individuals. It is a for-profit business, and is owned by Smith & Lee Associates, Inc.

Six years ago, Mortenview was expanded from three bedrooms to six, with the intention of increasing the number of residents from six to twelve. The City of Taylor was approached about zoning requirements for the increase (the City had already approved the building permits necessary to increase the size of Mortenview).

Michigan law requires every city to permit up to six unrelated individuals in a single home in residential neighborhoods, and so Mortenview’s previous status was not in question. The City of Taylor, however, has a zoning ordinance limiting the number of unrelated persons in a residential neighborhoods to six, and so zoning examiners advised Mortenview that it would need a zoning variance before it could increase its size.

Mortenview applied for the change in zoning, but the City of Taylor refused. The reasons given for the refusal were that the proposed use would be inconsistent with the master plan for the area, and that the rezoning would permit additional inappropriate uses in the future. Mortenview’s owners, however, believed that the City was intentionally discriminating against group homes for the elderly, and particularly against for-profits.

Smith & Lee Associates (the owners) brought a Federal Court action against the City of Taylor, alleging violations of the federal Fair Housing Act. Believing that a violation had been committed, the U.S. Attorney’s office joined in suing the City. After several legal skirmishes (including one trip to the Court of Appeals), the Federal District Court agreed with Smith & Lee, and ordered the City of Taylor to change its zoning ordinance to permit twelve residents to live in for-profit adult foster care homes. The City was also ordered to pay a $20,000 fine. Finally, Smith & Lee was awarded $284,000 in damages for lost revenue during the pendency of the court proceedings.

On appeal, the Sixth Circuit Court of Appeals now agrees with most of the District Court’s logic, but rejects the lower court’s rulings. The Court of Appeals particularly notes that the use of adult foster care homes is beneficial to the demented elderly, and that refusal to make reasonable accommodations to permit such use is a violation of federal law by the City of Taylor.

Nonetheless, the Court of Appeals reverses the District Court’s order compelling the City to change its ordinance; courts do not have the power to order changes in the legislation, according to the opinion, but do have the power to invalidate local laws. Accordingly, the City is ordered to approve the Mortenview Manor application, but the City ordinance can not be changed by judicial order.

The Court of Appeals also determines that an enterprise like Mortenview can be profitable with only nine residents, and so orders the trial court to redetermine the amount of damage sustained by Smith & Lee based on nine residents rather than the twelve Smith & Lee sought. Finally, the Court of Appeals reverses the $20,000 fine against the City, finding that the evidence of intentional discrimination is weak.

One of the three appellate judges disagreed with portions of the Court of Appeals decision. Judge Aldrich agreed with the trial judge that “a strong message” should be sent to violators, that the “not in my backyard” attitude of the City of Taylor should be attacked, and that the evidence showed the City was motivated by “discriminatory animus” in refusing to accommodate Mortenview’s request to expand.

Group Homes, Retirees Win in Separate Court Decisions

OCTOBER 23, 1995 VOLUME 3, NUMBER 17

Two recent U.S. Supreme Court cases, though each dealing with a limited population, may have an effect on clients. In one, the Court dealt with group homes and boarding homes; in the other, the Court addressed long-standing state tax inequities.

Group Home Regulation

Oxford House, a Washington drug and alcohol treatment program, tried to open a group home in the city of Edmonds. Local planners objected, citing a city ordinance which prohibited more than five unrelated individuals from living together.

Oxford House appealed the denial through the federal court system, losing in the District Court but winning in the Ninth Circuit Court of Appeals. Now the Supreme Court has agreed that Edmonds’ rule is too restrictive.

The American Association of Retired People (AARP) joined Oxford House in opposing the rule. Though the proposed use in this case was a drug and alcohol rehabilitation program, AARP noted that it would restrict the ability of boarding homes, foster homes and similar facilities to care for elderly clients in residential areas. The Supreme Court agreed.

The Oxford House decision relies on the federal Fair Housing Amendments Act of 1988, which prohibits zoning ordinances restricting occupancy limits unless they are reasonable. The Supreme Court noted that the Edmonds ordinance did not restrict the number of family members who could live in one residence, so deduced that the limitation was based on something other than a desire to control the size of households. Since the limit was different for unrelated housemates, it was inherently unreasonable. Edmonds v. Oxford House, 115 S. Ct. 1776 (1995).

[Note: Tucson had a similar zoning provision until the mid-1980s]

Taxes on Federal Retirees

In the 1980s, Georgia (along with Arizona) was one of about 20 states that tried to impose state income taxes on federal pensions while exempting state pension income. Those tax efforts were struck down after only a few years of collections.

Georgia (like Arizona) initially argued that refunds for the illegally collected tax should be limited to those taxpayers who protested the tax at the time of payment. Since few had protested, this rule would have saved Georgia an estimated $100 million in refunds to 50,000 retirees. The Supreme Court, in its 1994 term, ruled Georgia’s proposal unacceptable, and ordered the state to adopt “meaningful backward-looking relief” for taxpayers who were illegally taxed. Reich v. Collins, 115 S.Ct. 547 (1994).

[Note: Arizona has grappled with the same problem, and has now adopted legislation to permit taxes to be recovered. Many of the taxpayers have now died, and the claims for repayment must be pursued by heirs.]

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