Saturday, April 27, 2013

Florida: Elderly Advocates Battle Bill to Limit Punitive Damages Against Nursing Homes

Families of nursing home patients and advocates for the elderly are once again fighting legislation that would make it tougher to sue the homes for neglect.

Despite the emotional testimony from the families of nursing home patients who suffered abuses, the bill cleared its last stop on Monday — with a 12-3 vote by the Senate Rules Committee — and is headed to the Senate floor.

Ken Thurston and his sister, Sandra Banning, who have been speaking out against this legislation, told committee members their mother, Virginia, was raped in 2002 at a Jacksonville nursing home by another resident with a history of sexual assaults. The siblings never collected a $750,000 verdict from the owner of the Glenwood Nursing Center (then called Southwood), which was later shut down. The siblings fear it will be even harder to have any recourse against a troubled nursing home if SB 1384 becomes a law.

“When we decided to sue the nursing home, money had nothing to do with it,” Banning said. “I wanted a judgment to be able to force a change.”

Thurston asked the panel: “Who benefits from this legislation? To put it another way, whose rights are being subordinated and whose are being protected by this bill?”

The nursing home industry “is just asking for fairness,” said Kristen Knapp, communications director for the Florida Health Care Association, the trade group representing 500 of the state’s nearly 700 nursing home facilities.

Full Article and Source:
Tallahassee:  Elderly Advocates Battle Bill to Limit Punitive Damages Against Nursing Homes


Alabama: State Senator Cam Ward Stirs Support for Elderly Abuse Legislation

As the Alabama Legislature approaches its home stretch, state Sen. Cam Ward of Shelby County and others at a press conference this morning stirred support of a bill he sponsored that protects seniors from criminal abuse.

Ward has sponsored Senate Bill 29 that expands the opportunity for prosecution as well as the penalties associated with cases of neglect, mistreatment and financial abuse of elderly. A virtually identical bill in the House sponsored by Rep. Paul DeMarco of Homewood is also awaiting passage.

"One of the things we oftentimes don't think about until it happens to us is the terrible tragedy of elder abuse," Ward said. "It's unfortunate that every day in this state there are instances of abuse."

Full Article and Source:
State Sen. Cam Ward Stirs Support for Elderly Abuse Legislation in Alabaster

Court Rules on Discipline Charges Against Indiana Senior Judge

In a settlement agreement with the Indiana Supreme Court, former Winamac attorney Lisa Traylor-Wolff has been permanently banned from judicial service and suspended from the practice of law for at least 45 days, effective immediately.

The decision was handed down by the state supreme court April 9. Traylor-Wolff, who has a law office in Logansport, has most recently served as a public defender in Cass County, and a senior judge serving Fulton and Pulaski counties.

The Indiana Supreme court ruled on disciplinary charges, filed by Indiana Commission on Judicial Qualifications in February, against Traylor-Wolff. The charges stemmed from allegations that Traylor-Wolff had an inappropriate relationship with a criminal defendant she represented.

In addition to the permanent ban and suspension, Traylor-Wolff was ordered to serve two years of probation, which include undergoing treatment with the Indiana Judges and Lawyers Assistance Program.

In the settlement agreement submitted by Traylor-Wolff and her attorney James Bell, she agreed to two of the charges filed against her, and a third charge was dismissed.

The Commission had alleged that Traylor-Wolff violated conduct standards that apply to all judges, including senior judges. Senior judges work on a part-time basis filling-in for trial court judges.

These part-time judges, who are attorneys, are also permitted to represent clients. Full-time judges are not allowed to represent anyone in court. The charges against Judge Traylor-Wolff stemmed from allegations she committed misconduct while representing a client, not while serving as a judge. The Commission has jurisdiction to investigate and prosecute claims against senior judges.

The charges centered on allegations that Judge Traylor-Wolff had a physically intimate relationship with a 26-year-old client that she represented. Traylor-Wolff was appointed to represent a defendant on felony charges.

Full Article and Source:
Court Rules on Discipline Charges Against Senior Judge

Friday, April 26, 2013

Texas Guardianship Bill Seeks to Close Current Due Process Loophole

Guardianships limit, even sometimes suspend, many basic rights enjoyed by Texas adults. HB 2600, currently before the legislature, seeks to revise how incapacitation for the purpose of pursuing a guardianship is determined. An analysis by the Texas Conservative Coalition (TCC) discusses this bill’s potential impact on all Texans including the administrative ease with which this rights-revoking status can be attained under Texas’ current Estate Code that includes “no provision for a hearing or due process.” It further notes courts not being required to consider evidence in probable cause determinations. Rather, the code lists two minor items that courts “may” consider.
The Texas Conservative Coalition says this of the bill introduced by Rep. Stephanie Klick, R-Fort Worth:
In most circumstances in which a court appoints a guardian under the Estate Code, the process is governed by Chapter 1101, which details numerous requirements in the application process. Most importantly, the proposed ward is entitled to a hearing, at which the court is required to inquire into the ability of persons to feed, clothe, and shelter themselves, care for their own physical health, and manage their own property or financial affairs. The proposed ward must also be present at the hearing, unless the court determines on the record that their appearance is not necessary. Most importantly, the proposed ward may request a jury trial on the determination of their mental capacity. Before appointing a guardian, the court must find by clear and convincing evidence that the proposed ward is incapacitated, that it is in the person’s best interest to have a guardian appointed, and that their rights and property will be protected.

The provisions in Chapter 1102 – which are addressed by HB 2600 – allow a court to circumvent the protections afforded to proposed wards in the typical process. As written, the chapter includes no provision for a hearing or due process. It does not even require a court to consider evidence when making its determination of probable cause. Rather, the code lists two minor items that the court “may” consider.

HB 2600 closes the current loophole by modifying Chapter 1102 and requiring due process for a proposed ward with a formal hearing wherein that person will be given the opportunity to prove their mental capacity. The United States Constitution prohibits deprivation of life, liberty, or property without due process of law. A person whom the court determines is incapacitated loses the right to make decisions on where and how to live and how to manage their property and finances. These are basic liberties that HB 2600 is intended to protect.
And nearly three hours of testimony Monday before a probate subcommitee of the House Committee on Judiciary & Civil Jurisprudence seemed to support this contention.

The divide between those for and against the bill was quickly evident and the testimony helped illustrate the potential power of this seemingly innocuous legislation.

A stream of witnesses told emotional guardianship horror stories alleging total disregard of any due process by the courts, denial of access to loved ones and expensive legal battles stemming from questionable court actions.

Meanwhile, lawyers and several judges testified against the bill including how the 30-day window for scheduling a hearing is too long, the affidavit requirement will deter some interested parties’ participation and this change will throw more cases to Adult Protective Services, an already over-taxed system.

HB 2600 comes down to requiring that courts “must” do some things to determine incapacitation for guardianship, things which now they “may” selectively do. Small words carrying big meanings.
The legal industry maintains the laws in place to protect potentially vulnerable Texans are followed. Many of these cases, however, don’t support that position. It’s unknown if HB 2600 would be the law to make a difference, but after watching people be denied individual liberties, property rights and access to families, supporters of the bill hope they won’t be denied the fighting chance HB 2600 might offer.

To date, HB 2600 is left pending with the subcommittee.

Full Article and Source:
Texas Guardianship Bill Seeks to Close Current Due Process Loophole

Petition: Free Marquis Tanksley


Marquis Tanksley (pictured with bruises on his forehead and in severe distress at CDC) is autistic and has been and continues to be REPEATEDLY ASSAULTED, RESTRAINED, NEGLECTED and ABUSE at Columbus Developmental Center (CDC) which is an state run ICF/MR facility operated by the Ohio Department...

Support and protect the human and civil rights of one of our most vulnerable populations, the disabled!

Speak out against the abuse of autistic adults in facilities and institutions!

Demand the release of Marquis Tanksley so he can live an happy and productive life that we all are entitled to!

Prosecute the employees who have assaulted and abused Marquis Tanksley and the employees who did not report the assault and abuse of Marquis Tanksley!


Senior "Specialists" Often Swindlers

Sometimes titles are important: M.D., PhD., J.D. Then again, there are faux titles like “senior specialist,” which often tell me that some financial exploitation is afoot.

For years, regulators have been monitoring brokers who use titles like “retirement planning specialist.” It’s hard to say which of these designations are meaningful since they are so loosely regulated. In many cases, the financial services industry doesn’t want customers to know that little training or expertise is involved.
The Consumer Financial Protection Bureau (CFPB) recently issued a report on these titles, which helps to illuminate a specialized form of financial abuse:

The Bureau found that there are more than 50 different senior designations that financial advisers use to indicate that they have advanced training or expertise in the financial needs of older consumers. These designations can confuse older consumers, who are already at risk for deception and fraud.”
“With such a bewildering array of titles and acronyms, it is no wonder that older Americans are confused and misled by these titles,” said CFPB Director Richard Cordray.

“Today’s report underscores the need for consistent high-level standards of training and conduct for those advisers who want to acquire a bona fide senior designation.”

Full Article and Source:
Senior Specialists Often Swindlers

See Also:
Read "Senior Designations for Financial Advisors"

Murder Trial Postponed: Defense Attorney Faces Suspension

Accused child murderer Anthony Michael Bennett’s trial in federal court has been postponed, originally to give his attorney more time to prepare.

Now, defense attorney Anthony T. Chambers is facing suspension. Effective Monday, Chambers, who practices law in Detroit and has been licensed since 1985, is suspended for six months by the State of Michigan Attorney Discipline Board for misappropriating client fees, illegal use of client accounts, failure to keep clients informed and failure to respond to a grievance.
Chambers was also under investigation by the discipline board for allegedly not paying withholding taxes on wages he paid employees between November 2010 and November 2011 Formal complaints were filed against Chambers on July 26.

Roughly two months after being informed that he was to appear at a hearing, Chambers got an attorney, who requested Sept. 18 to postpone the hearing to give her time to prepare, according to documents obtained from the discipline board.

Full Article and Source:
Carnel Murder Trial Postponed

Thursday, April 25, 2013

CT Lawyer Who Stole From Aunt Faces Prison

A former White House adviser, aide to a U.S. congressman and prosecutor, Rik Bachman can now add convicted embezzler to his resume.

The Fairfield lawyer pleaded no contest Thursday in state Superior Court to second-degree larceny for stealing more than $200,000 from the accounts of his 85-year-old aunt. He is accused of using some of the money to buy sports memorabilia.

Senior Assistant State's Attorney Howard Stein said he will recommend the 57-year-old Bachman, of Woodbine Lane, serve a three-year prison term when he is sentenced by Judge Robert Devlin Jr. on June 28.

"The state intends to ask for the maximum amount of time under the plea agreement," Stein said. "As a member of the bar, he should have been more than aware that his conduct was unlawful in nature."

Bachman, who had a law office in White Plains, N.Y., was a former New York prosecutor specializing in financial crimes and previously worked in the White House and for former New York congressman Jack Kemp.

He is accused of taking over the affairs of his aunt, Beatrice Bachman, in 2009 and keeping her secluded from other family members while he made large withdrawals from her bank accounts for his personal use.

Stein said after relatives repeatedly sought to contact the woman, Bachman had her moved from her apartment in New York to an assisted-living facility in Trumbull.

Full Article and Source:
Lawyer Who Stole $200K From Aunt Faces Jail

NM Judge Naranjo Suspended

According to the disciplinary order issued by the New Mexico Supreme Court, Naranjo is suspended without pay for 90 days, effective Monday, April 22, with 60 days deferred on the condition he successfully completes the supervised probation term imposed by the court; formal mentorship for the remainder of his term as magistrate, which will begin when the Supreme Court appoints a mentor; and a National Judicial College online course, “Ethics and Judging: Reaching Higher Ground,” which he will attend at his own expense.

The disciplinary order states the 60-day deferred suspension will be automatically imposed if Naranjo violates any term of the stipulation agreement and consent to discipline filed in the Supreme Court. It also states Naranjo shall immediately and permanently resign from office if he causes a notice of formal proceedings to be issued in any matter while he is on probation.

Judge Naranjo Suspended

PA District Judge Violated Integrity and Impartiality of Office, Board Says

A state board of judges has ruled that suspended District Judge Kelly Ballentine violated five standards of office when she dismissed her own parking tickets.

The state Court of Judicial Discipline, in a recent order, ruled that Ballentine violated the "integrity and impartiality" of her position.

That also was the conclusion of the state Judicial Conduct Board. The Court of Judicial Discipline said it will announce a penalty at a later date.

Ballentine could receive a reprimand, a suspension of her term as district judge or permanent disbarment. Ballentine pleaded guilty to three misdemeanors on Feb. 1 and was fined $1,500 for dismissing three of her own tickets in 2010 and 2011.

The state attorney general's office filed 12 charges last year; nine of those were eventually dismissed. The Court of Judicial Discipline outlines the violations in a 12-page opinion.

Full Article and Source:
District Judge Kelly Ballentine Violated Integrity and Impartiality of Office in Ticket Fixing Case, Board Says

Wednesday, April 24, 2013

Bill to Protect Elderly and Disabled Adults in California From Excessive Lawyer Fees Sails Through Key State Senate Committee

Legislation to protect incapacitated adults in California from excessive legal fees when their lives and finances are under court supervision sailed through a key committee Tuesday and is headed to the Senate floor.
Members of the Judiciary Committee voted unanimously for Senate Bill 156 -- a bill inspired by 38-year-old Danny Reed's years-long battle with a court-appointed estate manager and bevy of lawyers. Together, their hundreds of thousands of dollars of fees would have gobbled up most of the San Jose man's life savings.

"When you see what really happened, everyone agreed," the bill's author, Democratic state Sen. Jim Beall of San Jose, said after the hearing. "Our bill is pretty simple. It just allows judges to protect people."

SB156 would avoid the burden Reed faced of "fees-on-fees," which leaves dependent adults paying for both sides of legal disputes over excessive fees, whether they win or lose their arguments. The bill would tackle that problem by creating a "loser pays" system. If an elderly or disabled adult objects to the fees of a court-appointed conservator and wins the case, then the conservator could be required by a judge to pay his or her own legal fees. Otherwise, those fees would be drawn from the person's estate.

In Reed's case, he objected when his court-appointed trustee charged $108,771 for four-and-a-half months' work in 2010, but that spiraled into legal bills more than double the original amount. Reed's case -- highlighted in this newspaper's investigation "Loss of Trust" -- was resolved in the appeals court, but only after a lengthy court fight and the help of a dedicated pro bono legal team.

SB156 has so far attracted only one formal objection -- from the trade group representing fiduciaries, who serve as probate court-appointees handling the money and daily care of dependent adults. Jerry Desmond, the lobbyist for the Professional Fiduciary Association of California, was the sole opponent of Beall's bill testifying at Tuesday's Senate Judiciary Committee hearing. While Desmond said his group shares Beall's intent to best serve vulnerable adults, he believes the bill would scare fiduciaries away from seeking court assignments.

"We could end up in a situation where we don't have enough professional conservators to take the cases," Desmond told senators.

Full Article and Source:
Bill to Protect Elderly and Disabled Adults in California From Excessive Lawyer Fees Sails Through Key State Senate Committee

See Also:
Loss of Trust Series - Santa Clara County's Court-Appointed Estate Managers are Handing Out Costly and Questionable Bills

Disbarred Attorney Indicted for Allegedly Stealing More Than $400K From Elderly Woman

Ohio Attorney General Mike DeWine and Hamilton County Prosecutor Joseph Deters announced today the indictment of a former attorney who allegedly stole more than $400,000 from an 83-year-old woman from Morrow.

William G. Goetz of Cincinnati, was indicted Tuesday by a Hamilton County grand jury on two counts of Theft from the Elderly, two counts of Money Laundering, and one count of Tampering with Records.

If convicted, Goetz faces a maximum of 31 years in prison.

According to investigators, Goetz prepared legal documents and participated in a complex real estate transaction for the homeowner. He allegedly took more than $400,000 from the homeowner that was intended for future tax payments stemming from the land deal. Goetz is accused of depositing the funds into his business accounts for his own personal use.

As part of the deception, Goetz also allegedly created a fake letter from the Ohio Attorney General's office to further his crimes.

Goetz was disbarred by the North Dakota Supreme Court in 1991 for fraudulent dealings with his clients. He is not and has never been an attorney admitted to the practice of law in Ohio.

The Ohio Supreme Court sanctioned Goetz for unauthorized practice of law and fined him $30,000 in 2005.

A warrant has been issued for Goetz's arrest. 

Man Allegedly Stole $400,000 From Elderly Morrow Woman

Elderly Pets Homeless When Senior Goes Into Nursing Home

The photo of two boxers, huddled together on a bed, desperately trying to find comfort in one another, is heartbreaking in and of itself - knowing the reason that the senior dogs are at this animal control facility makes the situation all the more sad.

The dogs, Chilee and Molee, were surrendered to the Albuquerque, N.M., Animal Welfare Department facility by their elderly owner who was moving to a nursing home.

Undoubtedly, this was a devastating and difficult for the dogs' guardian. Equally devastating is the sadness and confusion that these beautiful dogs are left with.

Chilee and Molee do not realize why they were left at an unfamiliar kennel - they have no idea if their person is coming back.

All these dogs have right now are each other.

Please take a moment to network Chilee and Molee's information with the hope that it reaches a person who wants to adopt them, or a rescue agency who is able to take them in.

Elderly Guardian Goes to Nursing Home; Two Senior Dogs Go to Animal Control

Tuesday, April 23, 2013

Glen Campbell to Appear at Senate Hearing on Alzheimer's

Glen Campbell will visit the U.S. Special Committee on Aging on Wednesday (April 24) for a hearing about Alzheimer's. His daughter Ashley Campbell will accompany him to Washington to testify at the hearing on behalf of the family. Campbell went public with his Alzheimer's diagnosis in 2011.

Editorial: NY Confiscates 'Private' Records of Psychiatrists

The march to tyranny has picked up fierce momentum in the state of New York, where the criminal Cuomo administration is now issuing subpoenas that demand psychiatrists turn over ALL their records to the state, reports

This is just the first step for the New York government's "HIPAA" committee, whose sole purpose is to "illegally obtain and access the private medical records of potentially millions of NY State Residents."

Regardless of your views on firearms ownership, such actions are absolutely chilling. It puts the government in the position of violating doctor-patient confidentiality for the purpose of the state determining who suffers from "mental health" problems that the state uses to justify almost any action it wishes to take.

This is not a gun rights issue, this is a patient rights issue. If a state government can simply seize all records from all psychiatrists, then it can also use that information to decide whose children to have taken away by CPS... or who to deny the right to vote by having them labeled "mentally incompetent."

And So It Begins:  New York Government Confiscates Private Records of Psychiatrists in Chilling Orwellian Mental Health Sweep

PA Task Force Established to Study Legal Issues Faced by Older People, Recommend Changes

A new Elder Law Task Force will take up special legal issues faced by older Pennsylvanians, from their vulnerability to abuse and neglect to the ways in which the judicial system should change to accommodate their needs, state court officials said Thursday.

The 38-member task force held its first meeting this week in Harrisburg, and has about a year to study the topic and make recommendations for changes to court rules, new legislation and other solutions.
"Every Pennsylvanian is going to face this in one way or another, whether it's their parents, their loved ones or themselves," said state Supreme Court Justice Debra Todd, who chairs the panel. "And we really want to do everything we can to keep our older adults safe."

Among the issues being studied are guardianship matters, improving access to the judicial system and abuse — whether physical, psychological or financial.
"We've focused so much in recent years, and we continue to focus, on child abuse, because our children are a vulnerable population," Todd said. "But our elderly are a vulnerable population as well."

Full Article and Source:
Pa. Task Force Established to Study Legal Issues Faced by Older People, Recommend Changes

TX Man Turns Himself in After Elderly Woman Notices $100K Missing

A man turned himself in after an elderly woman reported nearly $10,000 missing from her bank account.

Brandon Scott Smith, 41, was charged with theft of $20,000 or more but less than $100,000 from an elderly individual, a second degree felony.

In January, Smith’s step-grandmother, a Kempner resident, reported to police that funds had been taken from her bank account and she suspected Smith, police said.

A police investigation concluded that $90,988.81 was transferred to his account via the Internet, police said.

Smith was released from the Lampasas County Jail on $5,000 bond.

Lampasas Man Turns Himself In After Elderly Woman Notices $100,000 Missing

Monday, April 22, 2013

TN Conservatorship Bill Amendment Regarding Emergency Hearings and Also Hospitals Goes to Governor

A rewrite of the state law governing conservatorships setting new first time standards for emergency cases has been approved by the Tennessee General Assembly and will now goes to Gov. Bill Haslam.

The measure was approved on a 32-0 vote Friday by the state Senate after that body agreed to a last minute amendment sought by hospitals and previously approved by the House. There was no debate.

The overall proposal was offered earlier this year by the Tennessee Bar Association following a series of public hearings held across the state.

“We’re very pleased to have had an opportunity to take a careful look at the law,” said Allan Ramsaur of the bar association following the Senate vote. It should bring some clarity to the way the process works.”

The change in the law followed controversy surrounding several conservatorship cases in the Nashville area in which those placed in a conservatorship charged that they were not given adequate notice and that all their possessions were taken away in the process.

Under the bill voted Friday, a person being placed in a conservatorship on an emergency basis would have to be informed of the action within 48 hours and a hearing would have to be held in five days.

The bar association found in its hearings that without a statewide standard, courts across the state were using varying methods to handle emergency cases.

The last minute amendment sets up a special process for cases in which a hospital patient can be placed in a temporary conservatorship on an expedited basis in cases where the hospital stated the patient needed to be transferred to a lower level of care but lacked the capacity to make his or her own health decisions.

In those cases the hospital could petition the court for the appointment of a temporary conservator with the authority to approve a transfer to a nursing home or other health facility.

Officials of the Vanderbilt Medical Center said the provision would enable them to free up a scarce acute care bed for another patient needing that level of care.

A second amendment approved by the House and Senate clarifies that the new law will only apply to cases filed after July 1 of this year.

Conservatorship Abuse Law Goes to Haslam
See Also:
TN Lawmakers Amend Conservatorship Bill After Concern From Hospitals

NY Woman Accused of Financial Exploitation

A Rochester woman has been charged with multiple felonies in Olmsted County District Court after authorities say she spent more than $17,000 of another woman's money.

Theresa Anne Kuhn, 49, faces two counts of financial exploitation-vulnerable adult, and one count of financial transaction card fraud. She's scheduled to make her first appearance May 9.

Investigators were assigned to the case after a social worker alerted Rochester police to the transactions allegedly made by Kuhn, who had power of attorney for the 76-year-old woman. According to the criminal complaint, the older woman spent about six weeks during 2012 in a senior care services facility, where she was diagnosed with dementia.

During that period, the complaint says, Kuhn made cash withdrawals of $11,289 on the woman's bank accounts, as well as credit card charges of $6,039. When police spoke to Kuhn, she allegedly admitted that none of the money or charges went to benefit the victim. The report says she admitted to gambling and shopping sprees with the cash; the charges allegedly were for clothing and liquor, and to pay her taxes.

Two of the counts are punishable by up to 10 years in prison, a $20,000 fine, or both. The other charge carries a maximum penalty of a year in jail, a $3,000 fine, or both.

Full Article and Source:
Woman Accused of Financial Exploitation

Former Oklahoma Judge Craig S. Key Indicted

The former judge involved in the Kelsey-Smith Briggs case was accused Thursday in three state indictments of embezzling from clients and stealing cattle.
Craig S. Key was the former Lincoln County associate district judge who lost re-election in 2006 after he was widely criticized for his handling of the abused girl's case.
Kelsey, 2, died on Oct. 11, 2005, at her Meeker home. She had suffered repeated injuries in the year before her death.
Key was criticized because he had returned Kelsey four months before her death to her mother even though the mother was suspected of abusing her.

Former Oklahoma Judge Indicted

Sunday, April 21, 2013

Tonight on T.S. Radio: Boston Probate - Targeting Wealthy Elders

Join us this evening as Lisa Belanger joins us from Boston to report on the ongoing abuses in the Boston probate system.

Boston, which is notorious for forcing court employees, attorneys and others out of the system for refusing to participate in the corruption, rolls on in its efforts to target and loot the estates of elderly individuals who committed what must be the new age crime of “aging with assets”.

All to benefit the ward of course!

Across the country, an estimated 3 billion is stolen from vulnerable elderly individuals annually in what is nothing less than grand larceny with the sole intention of personally profiting from theft of an estate.

All of it sanctioned and facilitated by the probate court judges. This system is protected by the ubiquitous “BAR Association” and judicial oversight boards which seem to exist to provide cover for the egregious activities taking place in courts across the country.

5:00pm PST … 6:00pm MST … 7:00pm CST … 8:00pm EST

LISTEN to the show LIVE or listen to the archive later

Federal Appeals Court Sides With HIPAA Over Florida Law in "Catch 22" Case Over the Release of Deceased Patient Records by Nursing Homes

As we first reported in December 2011, it's a common scenario: A Florida nursing home resident dies, and his or her spouse, surrogate, proxy, or attorney requests the resident's medical records.
However, if the nursing home releases the records, it might be violating federal law. If it doesn't, it violates Florida law. A federal trial court then noted this "Catch-22" and declared the Florida law invalid. The decision was appealed and now the U.S. Court of Appeals has affirmed the decision in a decision rendered April 9, 2013. The impact of this decision on nursing homes and other providers is outlined below.

***Conflicting Laws
Florida Statutes Section 400.145 provides that nursing homes "shall furnish to the spouse, guardian, surrogate, proxy, or attorney in fact . . . of a former resident . . . a copy of that resident's records which are in the possession of the facility." Also, "Copies of such records . . . may be made available prior to the administration of an estate, upon request, to the spouse, guardian, surrogate, proxy, or attorney in fact."

However, the federal Health Insurance Portability and Accountability Act of 1996 ("HIPAA") provides that nursing homes may only release medical records to a patient or his/her personal representative. 45 C.F.R. 164.502(a)(1), (g)(1). When a patient is deceased, "personal representative" means an "executor, administrator, or other person [who] has authority to act on behalf of a deceased individual or of the individual's estate." 45 C.F.R. 164.502(g)(4).

Thus, a person authorized under Section 400.145 can be–but is not always–the same as the personal representative under HIPAA. As a result, Florida law requires nursing homes to release medical records even though doing so might violate federal law.

***The Federal Court's Decision:
Opis Management Resources, Inc., together with four other nursing home providers were cited by the Florida Agency for Health Care Administration ("AHCA") for failing to provide records to spouses or "attorneys in fact" of deceased residents because they were not authorized to receive the records pursuant to HIPAA. Their position was also upheld by the U.S. Department of Health and Human Services Office for Civil Rights when the requestors complained about the nursing homes' actions. They then sought declaratory relief from federal court based on the conflict between state and federal law.

On December 2, 2011, the United States District Court for the Northern District of Florida concluded that Section 400.145 is contrary to HIPAA and, therefore, invalid. Opis Management Resources, LLC v. Dudek, No. 11-400 (N.D. Fla. Dec. 2, 2011). The Court described the following scenarios:

A decedent's spouse, for example, could seek [protected health information] for any number of reasons . . . . A spouse could be trying to establish paternity, or her rights to life insurance. These goals do not conform to HIPAA' s purpose to protect privacy and act in the interest of the patient.

Id (internal citations omitted). States are generally free to pass their own privacy laws, but "provisions of state law which are contrary to HIPAA are preempted unless that state law is 'more stringent.'" Opis Management, No. 11-400 slip op. at 3 (citing 45 C.F.R. § 160.203). Because the Court found section 400.145 provides less protection than HIPAA, not more, it concluded that the state law is preempted.

***The Appellate Court's Decision:
AHCA appealed the trial decision and argued against preemption on the basis that HIPAA provides that any person who has authority to act on behalf of a deceased individual under state law can be treated as a personal representative. According to AHCA, the state statute identifies groups of people who may have access to a deceased resident's medical records "on behalf of" the resident, meaning they should be treated as personal representatives. Since personal representatives under HIPAA enjoy the same access to confidential information as the deceased individual, AHCA argued the two laws complement each other rather than conflict.

The court rejected this argument and noted that the Florida law authorizes sweeping disclosures, "making a deceased resident's protected health information available to a spouse or other enumerated party upon request, without any need for authorization, for any conceivable reason, and without regard to the authority of the individual making the request to act in a deceased resident's stead." Under HIPAA, a personal representative may only access the decedent's confidential information that is relevant to the personal representation. The court agreed with the trial court's view that Florida's less stringent protection of confidential information frustrated HIPAA' s purpose and was, therefore, invalid. Interestingly, because AHCA did not raise the issue in the lower court of whether the state law was allowed by HIPAA Rule 164.512(a)(1) which allows for the release of PHI "as required by law," the appellate court did not address whether this would have saved the constitutionality of the state law.

***What This Means for Nursing Homes:
Because of the Court's ruling, section 400.145 is invalid and AHCA cannot currently sanction nursing homes for failing to abide by it. Therefore, nursing homes in Florida should only release a deceased resident's medical records to a personal representative of the estate, executor, administrator, or other person authorized to act on behalf of the deceased patient or the deceased patient's estate. If no such person exists, the nursing home should wait for a court to appoint an appropriate person.

Full Article and Source:
Federal Appeals Court Sides With HIPAA Over Florida Law in "Catch 22" Case Over the Release of Deceased Patient Records by Nursing Homes

NY: Twenty Judges Reprimanded in 2012

Three judges were removed from office last year and another 11 resigned after investigations by the state Commission on Judicial Conduct found the jurists had breached their ethical or legal responsibilities.

The agency, which oversees the state court system, received 1,785 complaints about judges suspected of misconduct in 2012, leading to 460 preliminary inquiries, 182 full-fledged investigations and 20 reprimands, the group disclosed in an annual report Thursday. That’s up from 14 reprimands in 2011.

In addition to the judges who left office after charges were brought against them, nine judges were censured and three were publicly admonished after the commission determined they’d abused their power.

“It’s fair to say that any number of disciplines against judges is too many, to the extent that it reflects misconduct being committed by those who have an ethical obligation to uphold the highest standards,” commission administrator Robert Tembeckjian said. “But given that there are 3,500 judges in the court system, the number who are disciplined really doesn’t reflect a systemic ethics problem among the judiciary.”

Although there were more reprimands in 2012 than the previous year, more judges resigned in 2011, when fifteen jurists stepped down from their posts. There were also more complaints filed in 2011 compared to last year. There were 1,818 complaints in 2011.

The commission may discipline judges but does not have the authority to request that cases be reopened, should it appear that a judge’s ethical or legal breach jeopardized a case. Tembeckjian said a party in the case would have that option.

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Twenty Judges Reprimanded in 2012

Prosecutors Give Opening Statements in Federal Case of Company Accused of Bilking Investors of More Than $7M

Federal prosecutors say a Kansas City, Kan., man and four other people continued to sell stock in a Kansas City, Mo., company for two years after Missouri regulators ordered them to stop.

Prosecutors said in their opening statements that many of the investors were poor, elderly churchgoers who were persuaded by their pastors to buy the company's stock.

Company founder Isreal Hawkins and four others are on trial in federal court, accused of bilking 14,000 investors out of more than $7 million by selling worthless stocks in Petro America, an oil and mining company.

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Prosecutors Give Opening Statements in Federal Case of KC Company Accused of Bilking Investors