Tuesday, May 26, 2015

Texas Bill Governing Judges Raises Questions by Judge over Separation of Powers

Judge Rory Olsen

by Lana Shadwick

A longtime statutory probate judge in Harris County, Texas, is raising an issue which begs the question of where the legislature’s power over the judiciary begins and ends. It is his opinion, that Senate Bill 1876, relating to appointing attorneys, mediators, or guardians, via a rotating list, is unconstitutional as violative of the separation of powers.

The separation of powers doctrine prohibits one branch of government from exercising a power belonging inherently to another.

Texas courts have consistently held that the separation of powers doctrine is violated “when the functioning of the judicial process in a field constitutionally committed to the control of the courts is interfered with by the executive or legislative branches.”

The senate bill is set on the general state calendar in the Texas State House for Monday, May 25th. The House will convene on Memorial Day, and has worked the holiday weekend, in order to get their work done at the end of the 84th Legislative session.

The seventeen-year jurist, probate court judge Rory Olsen, has told Texas lawmakers that the bill, which was passed in the Senate on May 4th, and heard in the House Judiciary and Civil Jurisprudence committee on May 19th, is an unconstitutional overreach by the legislature upon the judiciary.

Judge Olsen testified before the House Judiciary and Civil Jurisprudence committee when the committee held a hearing and took testimony.

S.B. 1876 is authored by Democrat Senator Judith Zaffirini (D-Laredo). She represents the 21st Senatorial District which stretches from the Rio Grande to the Colorado River and to the Port of Corpus Christi and the Valley. Sen. Zaffirini is the second longest serving legislator in the Texas Senate.

Judge Olsen told Breitbart Texas, “The Texas constitution is unique because it contains a very explicit separation of powers provision which dates back to the Republic of Texas. I am of the opinion that SB 1876 violates the doctrine of the separation of powers because it attempts to micromanage the court system in a way far beyond the lawful powers of the legislature.”

The judge continued, “This issue needs to be addressed now before things get any further out of hand.”

The 65-year-old judge earned his Juris Doctor from Duke University, his master of laws in taxation (L.L.M.) from Southern Methodist University, and his master of judicial studies (M.J.S.) from the National Judicial College.

The bill provides that every court in the state of Texas shall establish and maintain a list of all attorneys who are qualified to serve as an attorney ad litem, guardian ad litem, mediator, or guardian. Each court must then use a rotation system and appoint the attorney whose name appears next on the list. If the lawyer is appointed, the court then must place that attorney’s name at the end of the list.
Article II, section 1 of the Texas Constitution provides:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit:  Those which are legislative to one; those which are executive to another, and those which are judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

Judge Olsen states that S.B. 1876 is attempting to micromanage how courts make appointments. The power to appoint people to assist a court in the performance of its duties is a power properly attached to the judiciary and no other branch of government.

Soon after the Speedy Trial Act became effective, Judge Sam Houston Clinton, Jr. of the Texas Court of Criminal Appeals prophesied in an opinion that the Speedy Trial Act was “‘subject to an attack that its effects violate the separation of powers provision of Article II of the Constitution of the State of Texas.’”

In his earlier opinion in a case (Ordunez v. Bean), Judge Clinton opined that the Texas Speedy Trial Act deprives prosecuting attorneys of their right to exercise judgment and discretion in performing their exclusive prosecutorial functions.

He was also of the opinion that it entrenched upon the power and authority of state trial courts to manage their affairs, including controlling their own dockets.

And true to Judge Clinton’s prediction, the highest criminal court in Texas later found the Texas Speedy Trial Act unconstitutional because it violated the separation of powers doctrine.

Judge Olsen has served as an adjunct professor at the University of Houston Law School and the National Judicial College.

Full Article & Source:
Texas Bill Governing Judges Raises Questions by Judge over Separation of Powers

Funding Program Shields Nursing Homes From Lawsuits

The nursing home industry has never accused Texas of being too generous with its Medicaid dollars — the state is among the worst in terms of the money it reimburses such facilities for providing care to needy Texans. 

So when a program began in March that allowed nursing homes to receive supplemental federal funding, hundreds of Texas facilities quickly signed up.

There's a catch to the "Minimum Payment Amounts Program": To draw down those funds, nursing homes have to be government-owned — generally by a local county or hospital district. Increasingly, nursing home companies have begun entering into these arrangements, managing care under their new license "owners," and sharing the federal cash with them.

The long-term care industry has hailed the program as a mutually beneficial way to secure desperately needed public funds, particularly for facilities in rural areas.

But critics have called attention to it, saying the program jeopardizes the safety of elderly Texans by shielding negligent nursing homes from lawsuits. Because Texas places strict limitations on lawsuits against local governments, trial lawyers argue, the arrangements have left nursing home residents with few protections.

“There’s just no economic incentive" to sue for damages against a local government, said Guy Choate, a San Angelo-based attorney. "You can pretty much assure yourself that somebody else’s mom is going to die, because there’s no real disincentive for these nursing homes to avoid some pretty egregious stuff."

The program is likely to be short-lived: Lawmakers added a provision to the state budget last week that would end it in September 2016, replacing it with a quality improvement program that would dole out enhanced payments regardless of whether a nursing home was publicly or privately owned.

But it has already had an immediate impact in Texas, where the number of nursing homes owned by local governments has increased by about 200 over the last year, according to data from the Department of Aging and Disability Services. That’s roughly one-fifth of licensed nursing homes in the state.

Increases in Government-Owned Nursing Homes

For nursing homes to be able to receive supplemental federal funding, they have to be government-owned — generally by a local county or hospital district. The maps below show the growing numbers of government-owned facilities since April 2014.
April 1, 2014
47 facilities
Feb. 6, 2015
150 facilities
May 12, 2015
274 facilities

Some local entities have taken ownership of dozens of nursing homes, even ones far outside their geographic jurisdiction. The Coryell County Memorial Hospital Authority, based in Gatesville, is listed as the owner of 21 nursing homes in the directory of facilities regulated by the state — the most of any local entity — despite a county population of about 75,000. Its nursing homes are located everywhere from Austin to Dallas to Jacksonville, between 100 and 150 miles away.

Participation in the program "definitely increased a lot — more than we anticipated that it would,” said Linda Edwards Gockel, a spokeswoman for the Texas Health and Human Services Commission (HHSC), which administers the state's Medicaid program. “Money talks,” she added.

Indeed, the financial benefits have been crucial to improving the quality of care nursing homes can provide, said Kevin Nolting, a consultant who has worked with local governmental entities to draw down funding under the program. 

“A lot of these nursing homes are in small, rural towns, and some of them, we know for a fact, said, ‘We were on the chopping block to be closed before the influx of these new monies,’” he said.
The benefit of reduced liability, he added, was circumstantial.

“The impetus for this program was never really to try to create a more favorable litigation environment,” Nolting said. “It was always related to trying to find these additional revenues that would, in essence, help the operations and the services.”

But Choate, the attorney, said the reduced liability has been dramatic and dangerous. Under Texas law, to sue for damages against a local government, a person must prove he or she was directly harmed by the "use of tangible personal or real property." That would not apply in a situation where a nursing home resident was injured because an employee left a door unlocked, Choate said, or if a resident got bedsores from spending too much time on a mattress. Additionally, Texas tort law caps damages at $100,000 for local governmental entities, which lawyers say makes it not worth the cost or effort of going to court.

“I can’t imagine suing a county for almost anything when your cap is $100,000,” Choate said.

David Byrom, chief executive of the Coryell County Memorial Healthcare System, said the arrangement between his hospital authority and its 21 nursing homes was meant to improve care at the facilities. State officials say the program's intent was to improve coordination and continuity of care between hospitals and nursing homes — a point Byrom agreed with, adding that nursing home liability “hasn’t really been a strong consideration at this point.”

But critics like Austin attorney J.T. Borah say the arrangement is suspect, particularly given how far away many of the nursing homes are from their owner hospital districts.

"This would place a huge burden on family members who are wanting to be very involved in their relative’s care," he said in an email. "This cannot ‘improve the quality of care.' I am not sure how much ‘improvement for the quality of care’ of the patients is involved with these purchases.”

Scrutiny of the program comes at a time when state leaders are debating how best to regulate the nursing home industry. Texas, with its relatively meager Medicaid reimbursements, is home to the highest percentage of nursing homes rated “below average” or “much below average” by the federal government, according to an analysis by the Kaiser Family Foundation.

State Sen. Charles Schwertner, R-Georgetown, filed a bill this session that would revoke the licenses of “bad actor” nursing homes with repeat safety violations. Schwertner has said the bill was prompted by a critical report that found that state regulators took enforcement action in less than 1 percent of the almost 38,000 cases of nursing home violations confirmed by staff in fiscal year 2013.

Kevin Warren, president and chief executive of the Texas Health Care Association, which lobbies for nursing homes, said securing additional funding for nursing homes was necessary for investments in high-quality care. According to HHSC, the average Texas nursing home is more than 30 years old.

Warren estimated that the Minimum Payment Amounts Program allowed nursing homes to collect an additional $70 to $100 in Medicaid payments per resident per day, depending on the circumstances, which he said helped with “staffing and capital investments.” He declined to comment on the changes to nursing homes' legal liability.

“The facility still maintains the responsibility to care for their residents,” he said.

On that point, trial lawyers agree.

“These people are absolutely at their mercy,” Choate said. “And there’s nobody in society who’s more vulnerable than people in these nursing homes.”

This story was produced in partnership with Kaiser Health News, an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente.

Full Article & Source:
Funding Program Shields Nursing Homes From Lawsuits

Caregiver Punches, Kicks 84-Year-Old Woman (Video)

Footage of a caregiver punching and kicking an elderly woman at a nursing home sparked controversy after quickly going viral.

The video was reportedly captured at the Berea Gardens Retirement Foundation Lily Kirchmann home in East London, with the 84-year-old woman later identified as Hope Shepherd. Shepherd was shown in the clip being hit and pushed by her caregiver as she seemingly tried to get Shepherd into her bed. According to reports, Shepherd was attempting to leave her bed and the caregiver was preventing her from doing so.

Shepherd began trying to fight back, which prompted the caregiver to elbow her in the back and head. The situation later became tense as the caregiver started punching Shepherd in the face and pulling her hair.

The caregiver, who was identified as Ncendiswa Mkencele, was fired by the nursing home and is currently the subject of a police investigation.

Though Mkencele expressed regret for the way she handled the situation, she claimed that Shepherd provoked her by throwing feces in her face and using racial slurs against her. The 84-year-old, according to her family, suffers from dementia and acknowledged that there have been complaints about her from staff regarding physical violence against them.

Mkencele could reportedly face charges of assault with intent to cause grievous bodily harm. The investigation is ongoing.

Full Article & Source:
Caregiver Punches, Kicks 84-Year-Old Woman (Video)

Monday, May 25, 2015

Remembering Our Veterans With Respect and Gratitude

On this Memorial Day, we send our thanks and prayers to those who protected our freedoms in war - and especially to those who gave their lives for us.

We also pray for those brave men and women who America has abandoned - those who are being held captive in guardianship because there was a profit to be gained for the person(s) who put them there. 

Special Thanks to Steve Miller

CHANGE OF THE GUARDIAN: Former Las Vegas City councilman and prolific pain in the neck Steve Miller continues to pound away at controversies inside the local guardian’s office.

The mainstream press has picked up on it, and it is now on the radar of the Clark County Commission.

Las Vegas Review-Journal Column - John L. Smith

Steve Miller: The Anatomy of a Federal Racketeering Lawsuit: Olvera vs. Shafer

READ the full 17 pg. amended lawsuit filed May 21, 2015

See Also:
New Lawsuit Filed Against Nevada "Guardians" Patience Bristol and Jared E. Shafer

Mom is Home!

"Pulled from the jaws of nursing home hell, after almost a year my mom came home and was reunited with out fur baby Jamie. She thinks she's dreaming. Guardianship battle continues but she's at home on our turf. They'll have to go over me with a tank to get her back. Couldn't have done it without you.

Just wanted to share a happy moment and a big victory getting her out. 2 days before she's 93. What a birthday wish for all 3 of us. I had to crate Jamie for the hospital bed delivery and for the paramedics to safely bring her in. He weighs more than she does and was so happy he would've knocked them all down."

Mom is Home!

Sunday, May 24, 2015

Casey Kasem’s widow won’t face elder abuse charges

Jean Kasem and Casey Kasem

Los Angeles prosecutors said Friday they will not file elder abuse charges against Casey Kasem‘s widow.

A charge evaluation sheet released by the Los Angeles County District Attorney’s Office said there was insufficient evidence to charge Jean Kasem.

Prosecutors cited Jean Kasem’s efforts to ensure her husband was continuously supervised by doctors.

“Because of Mr. Kasem’s longstanding profound health issues, this case cannot be proven beyond a reasonable doubt to a jury,” the decision said.

Jean Kasem was married to the radio personality for more than 30 years but was stripped of control over his medical care in the final days of his life.

Casey Kasem died in June 2014 in Washington state, where his wife took him after removing him from a medical facility where he was receiving around-the-clock care.

The longtime “American Top 40″ host had a form of dementia and severe bedsores when he died.

His daughter, Kerri Kasem, was named his conservator and sought elder abuse charges against her stepmother.

Los Angeles police investigated the allegations against Jean Kasem.

A judge in May 2014 temporarily stripped her of her caretaker role after she moved Casey Kasem from a medical facility in Los Angeles to a friend’s home in Washington.

Jean Kasem said she relocated her husband to protect his privacy and to consult with doctors.

Casey Kasem developed a severe bedsore while in Washington and was in critical condition by the time he was hospitalized in early June.

Casey Kasem’s legacy reached well beyond music. His voice was heard as the character Shaggy in the “Scooby-Doo” TV cartoons and in numerous commercials.

His “American Top 40″ began July 4, 1970, in Los Angeles, when the No. 1 song was Three Dog Night’s cover of Randy Newman’s “Mama Told Me Not to Come.”

In his signoff, Casey Kasem’s would tell viewers: “And don’t forget: Keep your feet on the ground, and keep reaching for the stars.”

Full Article & Source:
Casey Kasem’s widow won’t face elder abuse charges

Prosecutors decline to file elder abuse charges against Casey Kasem’s widow

Casey Kasem's wife, Jean, arrives at Kitsap County court on Friday, May 30, 2014, with a lawyer. (Photo: FOX News)
LOS ANGELES (AP) — Los Angeles prosecutors have rejected filing elder abuse charges against Casey Kasem’s widow.

A charge evaluation sheet released Friday by the Los Angeles County District Attorney’s Office states there is insufficient evidence to file charges against Jean Kasem.

She was married to the radio personality for more than 30 years but was stripped of control over his medical care in the final days of his life.

Casey Kasem died in June 2014 in Washington state, where his wife took him after removing him from a medical facility where he was receiving around-the-clock care.

The longtime “American Top 40″ host had a form of dementia and severe bedsores when he died.

His daughter, Kerri Kasem, was named his conservator and sought elder abuse charges against her stepmother.

Kerri Kasem released the following statement later Friday:

“My family is very sad to learn the Los Angeles County District Attorney Jackie Lacey has decided not to file charges against Jean Kasem.  We did everything we could to save my Dad at the end of his life, including getting an emergency court order for conservatorship.   But we were too late.  My father’s second wife Jean had done everything she could to keep our father from us while not providing the quality care that he – and every other senior in our society – deserves. 

“We’re hopeful that the prosecutors in Kitsap County, Washington where my father was taken against his will and later died, will do the right thing and file charges against Jean.  

“The Los Angeles County District Attorney, with her professed interest in ending elder abuse, could do more.  Her website says ‘she leads the largest prosecutorial office in the nation, with nearly 1,000 attorneys, 300 investigators and 800 support staff members.’

“It’s a sad day in our country when our parents, family members and loved ones die at the hands of others, and our elected prosecutors elect to do nothing.”

Full Article & Source:
Prosecutors decline to file elder abuse charges against Casey Kasem’s widow

See Also:
Kasem's family still at odds as judge says host must be fed, hydrated

 Casey Kasem, Legendary Radio Personality, Has Been Found

Authorities: Casey Kasem found in Washington state

Judge orders investigation into Casey Kasem's whereabouts

Judge rejects conservatorship for Casey Kasem

Casey Kasem Near Death but Alert, Children Suing Wife Jean for Conservatorship NOT Will and Money