"Lynching the Elderly and Disabled?"
(Why We Need An Elder Justice Act)

Abuse and Neglect of the Elderly and Disabled: Related to Fraud

All the while these mega-health care corporations defraud Medicare of billions, their actions and inactions directly result in the abuse, neglect and even killing of the elderly and disabled in our nation's healthcare facilities. It is clear that administrators of these criminal enterprises number among those who care more about their own financial gain than caring for the elderly and disabled which their corporations purportedly serve. 

Whether or not these administrators call themselves "right-to-die" advocates, their actions directly deprive the elderly, disabled and other patients of the care they deserve and result in many of the horrific deaths agonizingly experienced by the elderly and the disabled. By diverting funds paid out by Medicare, Medicaid and other health insurers for care services, the executives of these corporations create obscene self-compensation schemes, approved by boards of directors made up of other executives like themselves. Meanwhile, the patients suffer without relief!

One could easily and believably assert that a new type of organized crime runs many health care corporations; it also obviously influences what the Justice Department does. Of course, we just call that influence "corporate lobbying," "campaign contributions," or the deceptively reassuring "soft" money. "The nursing home industry -- which often sees its fiscal health ebb and flow depending on Congressional action -- donated more than $1.4 million in the 2002 election cycle."94

The larger nursing home chains own the majority of nursing homes in the United States,95 and the Justice Department has determined they have committed long-term fraud. While not all nursing homes are making this kind of profit, it is clear that there are numerous cases of fraud perpetrated by industry leaders.96 "Cases involving ... health care fraud have been the primary source of recoveries by the U.S. Justice Department for several years now."97 And the money for this fraud comes from not only working men and women of the USA, but also from the elderly, disabled and chronically ill who have paid their own share of taxes and facility fees.

Even more troubling, "despite more federal dollars, nursing homes haven't spent them on what is considered the best way to improve care: more staffing."98 More importantly, that translates into inferior care for the patients whose very lives depend upon the care they receive. For example, "both Beverly and Kindred were subsequently forced to admit that money that was supposed to go to care was diverted to elaborate corporate schemes and offensive executive salaries."99 More patients die when understaffing exists.100

Death with Dignity is Caring Service: Not Killing

It is imperative that the laws against killing anyone, including the elderly, disabled and chronically ill be enforced. The killings must stop. There is no death with dignity when patients are killed; these are not so-called "mercy killings." Many cases have shown that the right-to-die zealots who murder patients or approve of hastening their death do not believe the patients' lives have any meaning.101 With organizations and hospice professionals openly promoting euthanasia within the hospice setting, the elderly and disabled are right to be confused and worried: are they going to be cared for or killed?

With blatantly pro-euthanasia names such as "Hospice for Hemlock"102 and others that offer no indication of their pro right-to-die agenda ("Compassion in Dying,"103 and "Partnership for Caring,")104 the elderly and disabled may be afraid to enter hospice. The former "Choice in Dying" which merged into Partnership for Caring started out openly as the Euthanasia Society of America; the Partnership for Caring doesn't advertise that.

Compassion or Imposed Death?

Another organization, "Compassion in Dying, has depicted itself as being broadly interested in improving the care of terminal patients when it appears their only interest is to make assisted suicide/euthanasia seem part of the spectrum of legitimate medical care."105

The elderly and disabled don't know if they will be cared for or "assisted to their death" within a hospice. Partnership for Caring provides a wealth of helpful information about improving hospice and palliative care, working with many mainstream hospice groups but also adds the assisted-suicide philosophy into the mix, sort of like a smorgasboard of end-of-life care: we can care for you or we can "assist you" by killing you! Examples of such imposed deaths are posted on the Hospice Patients Alliance euthanasia issues page.

"Experimental Hospice"

It's quite remarkable that the hospice that is holding disabled and non-terminal Terri Schiavo, ready to be euthanized through withdrawal of all tube feedings the moment a court gives the order allowing it,106 is the same hospice where Mary Labyak has served as Executive Director ... the same Mary Labyak who serves on the board of Partnership for Caring which is perceived as a "mainstream" hospice advocacy organization, but includes assisting patients to their death as one of the services they believe should be offered. Every professional working in hospice knows that federal regulations only permit a "terminally ill" patient to be enrolled in hospice. "Terminal" is defined as a disease which will likely cause the death of the patient within six months, given the usual course of a disease. No physician is reported to have diagnosed Terri Schiavo with a terminal illness, yet the hospice is "experimenting" with how far the regulations can be violated with impunity, in the attempt to execute the disabled and helpless Terri Schiavo. The federal regulations do not permit "experimental" violations of the law!

Nancy Valko, RN, writes "it is sadly ironic that so many people are arguing against capital punishment lest one innocent person die but offer no similar opposition to withdrawal of food and water and/or basic care from patients despite the many publicized and non-publicized cases of cognitively disabled people who get better even years later."107

In an apparent contradiction to the pro right-to-die stance of Partnership for Caring, board member and prominent hospice physician Ira Byock, MD conjectured years before PFC was formed: "what happens if assisted suicide and euthanasia become legal in today's environment? I submit that in the absence of adequately funded palliative care programs and residential hospice settings, it will become our responsibility to recommend assisted suicide to those who lack basic financial or family resources. What a horrific way for society to respond to the needs of the destitute and dying." And hospice organizations unanimously agree that funding is inadequate.108

While Partnership for Caring and other hospice organizations actually do contribute much that is praiseworthy to the end-of-life care in our nation, their current acceptance of euthanasia and physician-assisted suicide is a policy replete with opportunity for exploitation and harm to helpless patients. In Dr. Byock's own words, warning about financial pressures encouraging the killing of patients, i.e., "assisted suicide" is "horrific!"

It goes without saying that many who end up in hospice are the elderly and disabled. It appears Dr. Byock's prediction is quite accurate: there is a current financial pressure to limit expenditures for health care in order to balance the federal and state budgets. HMOs and health care insurers also wish to limit expenditures in order to increase profit: the obvious answer? passive euthanasia and physician-assisted killing. Of course, the right-to-die zealots have come up with more pleasing language: "aid in dying."

Creating the Legally Sanctioned "Right-to-Kill"

The shortsighted, the naive and the evil: these are the proponents of the right-to-kill movement. Actually, there is no "right to die" movement: it's about the right-to-kill - you - or whomever they wish to eliminate in the health care concentration camps of the 21st century. Let's be frank: they admit they wish to be able to kill old Aunt Jane, disabled veteran Joe and ailing Uncle Bill, who just happen to be helpless and whose intrinsic worth as a human being is not "acceptable" to the right-to-kill zealots' idea of what a "quality" life is. Any system of health "care" that can calmly contemplate the killing of the week, the old, the depressed or "expensive" is evil, a word not mentioned at all by the self-proclaimed bio"ethicists" who eagerly promote the "right-to-die" agenda. It is no surprise that they do not mention evil; they do not concern themselves with real ethics, only the manner in which the greatest profit can be made by themselves and the mega-corporations they support. Rationing health care is another name for determining that the unworthy of life will be executed or made, one way or another, as we have seen, to die.

And what is the absolutely ideal location to push the "right-to-die" onto the unwilling? Hospice! Hospice utilization has been growing by about 10% annually for several years.109 The government and hospice industry do not publicize the financial pressures which may push patients into hospice. They only proclaim their dedication to providing "compassionate care." They do not publicize the real reason the hospice benefit was created by Congress: "Congress established the Medicare hospice benefit as both a cost-containment mechanism to limit the program's high costs for beneficiaries in their last year of life and a quality improvement tool to improve care for the dying."110 Let's be real: if there had been no cost-containment capability in creating the Medicare hospice benefit, the Congress would never have created the Medicare hospice benefit!

The public "angle" to "sell" hospice is that hospice is the compassionate way to care for those facing a terminal illness, and yes, the palliative care offered in hospices is the best way to serve the dying, however, what they don't admit publicly is that to save even more, the elderly, disabled and other patients are being killed outright, under many different circumstances; that is what they don't wish you to know.

The lives lived by the abused and neglected are miserable, with much unnecessary suffering, when society looks the other way! And with all the problems we've reviewed that might happen to the elderly and disabled, isn't it clear that what actually happens to them is like playing Russian roulette? They live in terror of entering a facility or remaining in one. They know; they don't have to pretend that these facilities are all "just fine." They know that entering any health care facility in the nation, while possibly being a lifesaver, may also be a quick path to the grave!

The Public: Failing to Protect

Now back to the original question in this article: what does it take to get the public's attention? What headline would really awaken the sense of horror at what is increasingly happening to the disabled and elderly? I have listed more than 20 different ways the elderly and disabled are currently being killed, and noted that the public still doesn't seem to care. Yes, perhaps "lynching" is the only type of killing society could get alarmed about. Of course, we already do that with bedrails. I guess it's just hanging from a rope that is unacceptable! Our society has become so callous that we cannot call ourselves civilized when we allow the abuse, neglect and killings to continue.

A humane society's role is to protect the vulnerable. That is the vision of a loving service-oriented health care system. That is the image of health care that the health care industry markets to the public. However, there is a "schizophrenic" kind of disconnect between the idealized image promoted in the advertisements and press releases of the health care industry and the constant stream of government investigations reporting severe and longstanding problems with fraud, criminal abuse, neglect and killing of the elderly, disabled and chronically ill.

The image portrayed purposely by the industry itself (which is utilitarian in administration) is that of its opposite: the loving caring service-oriented field where all decisions are based upon love, caring and the patient's welfare above all. The portrayal of the industry in this way directly contradicts the actual actions and decisions taken by the industry every day, moment to moment, in every state of our nation. Industry administrators consciously exploit the goodwill created by those dedicated health care professionals who still abide by the values and standards of the loving and caring vision of health care. However, decisions are not based first and foremost, upon the patient's welfare in all situations. Decisions are made first and foremost upon what will reduce expenditures for services and increase the revenue stream flowing into the corporation! Once expenditures for service are "approved," then service is provided.

I remember an unforgettable incident back in 1990 when a fellow nurse was caring for a just-admitted 23 year-old migrant worker who had been rushed into a local acute care hospital, suffering from a heart condition, rare among those so young. Once admitted to the hospital, doctors and other consultants evaluated the patient. They declared he needed treatment and should be admitted. However, my friend was astounded when the hospital administrators essentially threw her patient out of the hospital by discharging him back to his home since he had no insurance coverage that could adequately cover the treatments he would require.111 We both sat there with disbelief in our eyes until the reality hit us: "welcome to health "care!"

Our society has failed miserably when it comes to the elderly, disabled and chronically, or even acutely, ill. Judging by the actions of our society, it must be concluded that we are not a humane society. The problems in health care could be much reduced if industry owners and administrators subscribed to the same values as the workers who comprise the industry, who serve directly in the field.

We must choose to cherish and care for our fellow citizens, including the elderly and disabled, because they are literally "we, the people." As disability rights organization, Not Dead Yet, so eloquently put it, the constitutional rights of the elderly and disabled are being "trampled as health care providers rule their lives too burdensome."112 Whether through abuse, neglect or direct euthanasia, the elderly and disabled confront a formidable evil alliance of those responsible and willing to kill them or let them die, one way or another!

Disability rights activist Harriet McBryde Johnson, a lawyer and a voice for those who are disabled, writes: Prof. Peter Singer,113 of Princeton University "is the man who wants me dead. No, that's not at all fair. He wants to legalize the killing of certain babies who might come to be like me if allowed to live. He also says he believes that it should be lawful under some circumstances to kill, at any age, individuals with cognitive impairments so severe that he doesn't consider them "persons." ... "At this stage of my life, he says, I am a person. However, as an infant, I wasn't. I, like all humans, was born without self-awareness. And eventually, assuming my brain finally gets so fried that I fall into that wonderland where self and other and present and past and future blur into one boundless, formless all or nothing, then I'll lose my personhood and therefore my right to life. Then, he says, my family and doctors might put me out of my misery, or out of my bliss or oblivion, and no one count it murder."114

The utilitarian vision does not recognize the soul; it does not recognize God; it does not recognize an ethics derived from a basis of love or religion; it does not recognize any worth to a life that might contain intense suffering. Those who suffer, such as the elderly, disabled, chronically ill, and others, are "better off dead," they argue without making any sense to those who live with a completely different world-view. The utilitarians fail to recognize that the elderly and disabled have their own right to live.

The Constitution does not say that "all men are created equal, except the elderly and disabled or ailing." It doesn't say that any person should be executed simply because they exist, yet that is exactly the goal of the right-to-die zealots, the utilitarians and the big-business interests of mega-healthcare corporations that worship at the altar of their own personal greed and corporate profit.

Congressional Law: Failing to Protect

And that brings us to one area we have not discussed: the law. It is through the law that the utilitarians wish to impose their dark vision of health care upon the rest of us. While ERISA provisions exempting HMOs from liability were originally set into law by Congress to encourage the proliferation of HMOs, which would promote "health maintenance" and prevention of disease, the HMOs found that the fruits of their efforts made to promote health, prevent disease or maintain health were lost when participants in the HMO plan transferred to another company or plan. In other words, an HMO's efforts to maintain health and prevent disease were not rewarded with any financial gain, in fact, costly services provided regularly ended up benefiting the HMOs or other insurance plans which acquired the participants as plan members upon transfer. Without any financial incentive to continue health maintenance as envisioned by Congress, the HMOs altered course toward the lean, cost-cutting, treatment and life-denying lords of health care that we see today. The HMOs today bear no resemblance to the ideal envisioned by Congress years ago!

The ERISA exemption entitles HMOs to kill, maim and otherwise harm with impunity. And now the type of unconscionable abuses found in some of the worst HMOs is making its way quickly into all areas of healthcare. When patients and families seek relief through the courts, based upon the rule of law, "the patient will find that the usual state law Tort Claims115 are also preempted by ERISA, so any claims against the HMO or Employee Benefit Plan for medical malpractice, wrongful death, fraud, etc. will be summarily dismissed."116 It is the Congress which originally gave this immunity to HMOs and it is the Congress that can and must remedy this loophole which allows the chronic plundering of the citizens of our nation, by subjecting them to abuse, neglect, denial of treatment and outright killing in health care facilities.

If all the victims of this evil alliance of killing were to be lined up together and placed in one mass grave, it would fill an entire city and would be called the worst incidence of mass killing ever known. Because each death is conducted, rather, each "killing" is conducted individually, in a separate location, known only to separate individuals who are isolated from all the other individual cases, each case appears to be "an isolated incidence." However, these are not isolated cases; they are all part of the pattern of victimization of the vulnerable.

The First Amendment in the Bill of Rights states that "Congress shall make no law... abridging ... the right of the people ...to petition the government for a redress of grievances." Yet, the ERISA exemption for HMOs prevents the redress of grievances and creates a class of invulnerable mega-corporations that can manipulate the patients in their care without any real oversight or regulation. Without access to the courts to correct the wrongs perpetrated by some HMOs, the people are made to be a subservient class of citizens,117 without the rights guaranteed by the Constitution, and capable of being maimed or killed without even a whisper of outrage from the courts or society!

In many states, the obstacles to filing legal action against health care agencies or other providers (to seek justice from the courts) are almost insurmountable for the common citizen. While wealthy individuals have full access to the courts, many victims or families of victims simply do not have the funds to hire an attorney. Legal assistance on a pro-bono basis is as rare as a flight by the fabled Pegasus in downtown Chicago. The creation of an under-class of the legally shutout victims of health care is a foreseeable consequence of the various legal protections for HMOs, health care agencies and the financial power of these entities. Corporations hire law firms on retainer as a matter of course; individuals are unable to hire them at all.

Victims and families of victims find it extremely difficult to find any attorneys to represent them when an elderly or disabled person is harmed or killed in a hospice or other facility. Attorneys will almost universally proclaim the validity of the claim, but universally reject the case on the basis that recover is limited and is not worth filing a suit. Prosecutors almost universally refuse to prosecute cases involving hospice as well. When there is no potential for legal action, whether in criminal or civil court, against the victimizers, the victimizers are free to do anything at all they wish to do, including murder! The utilitarian vision of health care is currently free to wreak havoc without regard to the harm it unleashes upon the public.

Steps to Reform

However, evil is not the only force in the world. While our health care system is not perfect, it still contains many dedicated workers who truly care about the residents and patients they serve. There are those working to protect the elderly and disabled. Their voices are not always heard and their wishes are not always carried out, but they are trying. We must move forward with hope that correction of the evils mentioned can occur. We need effective enforcement of the regulations that are supposed to protect the vulnerable. We need county prosecutors who are willing to prosecute the murderers and rapists of the elderly and disabled; we need courts that will put these monstrosities in jail for life, just as they would do when any other group of citizens had been victimized.

It does not take a majority of health care workers who harm, neglect or abuse patients; it only takes a few who are left unpunished, unrestrained who continue to terrorize the elderly, the disabled and other patients in facilities across our nation. While some debate the numbers of those creating havoc in our system, there is no question that the combination of corporations exploiting the system along with individuals who are willing to abuse, neglect or harm those entrusted to their care results in truly horrific circumstances.

Some suggest that further study is needed and that we need a dispassionate discussion of the issues. Others say that, "now is not the best time to get this issue discussed or to get action from Congress." There are always other problems, other concerns which have seemingly overwhelming importance: wars, scandals, budget concerns and turf wars between doctors, malpractice insurance companies, lawyers and patients. But there is no excuse for any further delay.

How long shall these atrocities go uncorrected?

How long shall the vulnerable suffer?

What is needed first and foremost, is a decision to choose the right path, which is a path dedicated to service to and protection of the vulnerable. The elderly, disabled and other patients need justice. We must decide to correct the wrongs occurring on a daily basis. The people know they need a law protecting their rights as patients. The people know when they go up against an HMO and find they cannot take legal action at all, or find their search for justice otherwise blocked, that there has to be a change. The ERISA exemption took away patient rights that up till that time had existed. A new patients rights law would restore patient rights and justice to the system, stopping a decades long trend of exploitation of patients within the system.

We must make a strong resolve to end the abuse!

We need an independent investigation of the behind-the-scenes manipulations of the Justice Department that result in policies rewarding criminal corporations who defraud Medicare. Years ago, almost all health care agencies were nonprofit since they were uniformly founded upon missions of service and caring. We need to re-think the very entry of for-profit corporations into health care. The for-profit corporations have implemented policies that have been disastrous for those entrusted into their care. The worst cases of fraud in health care have involved for-profit corporations manipulating the health care system to personally profit and reward the stockholders of their corporation.

However, if for-profit corporations are allowed to remain, then strict enforcement of the laws and regulations of our nation must be implemented in order to protect the most vulnerable of all. The ERISA exemption for HMOs needs to be reformed; it has become the license under which HMOs kill. Hopefully, the recent ruling by the U.S. Appeals Court for the 2nd District in Cicio v. Vytra Healthcare expanding the right of patients to sue HMOs will survive certain appeal to the Supreme Court.

And those who seek tort-reform at this time, are truly seeking to stifle the only voice left to the weary and suffering victims of health care abuse. Those who support tort reform's proposed cap on punitive damages argue that their proposals would still allow payment for all medical bills and rehabilitation for the lifetime of the victim. What is left completely unmentioned, is that there are no payments of medical bills or rehabilitation when the patient has been killed. Tort reform basically allows health care corporations to kill any patient and merely "pay off" the family to make them go away. The "cap" is the maximum price the corporations would have to pay (only in those cases where a plaintiff actually bothered to file legal action), whether the patient still lives or is killed outright. With patients who have complex medical conditions, killing them is cheaper than caring for them!

We Need An Elder Justice Act!

Senator John Breaux and Senator Orrin Hatch, of the U.S. Senate Special Committee on Aging have re-introduced legislation to pass an Elder Justice Act.118

"The Breaux-Hatch measure establishes dual Offices of Elder Justice at the U.S. Departments of Justice and Health and Human Services to coordinate disparate federal, state and local efforts to combat elder abuse, neglect and exploitation in residential and institutional settings." "The bill also establishes new programs to assist victims and provides grants for education and training for law enforcement and prosecutors, while developing more forensic expertise. It requires reporting of crimes in long-term care settings and requires FBI criminal background checks for those employed by long-term care providers, rather than state checks alone." "Finally, the Breaux-Hatch bill includes measures to increase and retain staff in long-term care facilities, including a staff demonstration project, training and degree programs, and incentives to draw more people to health professions serving elders."

I pray that this time the U.S. Congress hears the cries of the elderly and of the disabled and quickly takes strong action to stop the massive victimization and murder of the elderly and disabled. The vulnerable can no longer wait for relief! Their very lives are at risk each and every day! It is time for Congress to take strong action to protect the elderly and disabled. Any further delay is choosing to allow further harm to our nation citizens and its health care system.

Next Page: Endnotes
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