Saturday, August 12, 2017

Man with Alzheimer's on a mission to save his music

PORTLAND, Ore. -- To welcome us to Portland, Oregon, 67-year-old Steve Goodwin would like to play one of his songs for you.

You have no idea how much he would like to play one of his songs for you.

"It made me almost hate the piano. But then I realized it's not the piano's fault, it's this thing that's going on in my brain," he said.

Three years ago, Steve was diagnosed with Alzheimer's disease. He had to give up his job as a software designer, but his wife Joni says the cruelest part is the toll it's taking on the music he composed.
Steve trying to remember songs at the piano
CBS News
"Losing the songs would be like losing him," she said.

Steve and Joni have been married 47 years, and along the way, Steve composed more than two dozen songs, mostly for her. He played them daily, and they became the soundtrack of their lives.

Joni Goodwin
Unfortunately, he never wrote down most of them. So when his memory started failing -- and the songs started fading -- there was no way to get them back. Until a family friend, a professional pianist, offered to launch a rescue mission.

And so, for the past two years, Naomi Laviolette has been reconstructing his compositions note by note.

"I said if he can at least play through it, even in pieces, I can learn it," Naomi said.

And of course they're recording the songs, never to be lost again.

"I realized there was a part of him that wasn't going to fade away," Joni said.
But this may be the best part: With Naomi's help, Steve was able to write a new song.

Although he forgets entire conversations, and can no longer add even single-digit numbers, somehow his mind dreamed up this.

Alzheimer's steals a lot, but today we score one for the beauty left behind.

Full Article & Source:
Man with Alzheimer's on a mission to save his music

No Spouse, No Kids, No Caregiver: How to Prepare to Age Alone

When Carol Marak was in her 30s, she asked herself whose life she wanted: her brother's – the life of a successful and well-traveled businessman – or his wife's – the life of a woman whose career better accommodated raising three children.

The answer was a no-brainer: "My brother was in a position I wanted," says Marak, now a 64-year-old editor at who lives in Waco, Texas. Although she had been married and divorced earlier in life, at that point she had no kids and "made a very conscious decision" to keep it that way, she says.

Plenty of Marak's peers did the same thing. According to a 2012 study in The Gerontologist, about one-third of 45- to 63-year-olds are single, most of whom never married or are divorced. That's a whopping 50 percent increase since 1980, the study found. What's more, about 15 percent of 40- to 44-year-old women had no children in 2012 – up from about 10 percent in 1980, U.S. Census data shows. "My career was No. 1 in my life," says Marak, who worked in the technology industry for years.

But today, Marak and her single, childless contemporaries are facing a repercussion of their decision that never crossed their minds as 30-somethings: "How in the world will we take care of ourselves?" she asks.

Dr. Maria Torroella Carney, chief of geriatrics and palliative medicine at North Shore-LIJ Health System in New York, is asking the same thing. In research presented this year at The American Geriatric Society's annual meeting, Carney and her colleagues found that nearly one-quarter of Americans over age 65 are or may become physically or socially isolated and lack someone like a family member to care for them. Carney calls them "elder orphans."

"The risk of potentially finding yourself without a support system – because the majority of care provided as we get older is provided by family – may be increasing," she says.

The consequences are profound. According to Carney's work, older adults who consider themselves lonely are more likely to have trouble completing daily tasks, experience cognitive decline, develop coronary heart disease and even die. Those who are socially isolated are also at risk for medical complications, mental illness, mobility issues and health care access problems.

"You could be at a hospital setting at a time of crisis and could delay your treatment or care, and your wishes may not be respected [if you can't communicate them]," says Carney, also an associate professor at Hofstra North Shore-LIJ School of Medicine.

Take "Mr. HB," a 76-year-old New York man described in Carney's research as "a prototypical elder orphan." After attempting suicide, he arrived at a hospital with cuts on his wrist, bed sores, dehydration, malnutrition and depression. He lived alone and hadn't been in contact with any relatives in over a year. His treatment was complicated, the researchers report, in part because he was too delirious to make clear decisions or understand his options. He wound up at a nursing facility with plans to eventually be placed in long-term care.

But growing older without kids or a partner doesn't mean you're doomed – just as aging with kids and a partner doesn't mean all's clear. "We're all at risk for becoming isolated and becoming elder orphans," Carney says. You could outlive your spouse or even your children, find yourself living far from your family or wind up in the caretaker role yourself if a family member gets sick. Keep in mind that 69 percent of Americans will need long-term care, even though only 37 percent think they will, according to

Plus, there's no way around the natural physical and mental declines that come with age. "Everybody has to prepare to live as independently as possible," Carney says. Here's how:

1. Speak up. 

Marak wishes she had talked more with her friends and colleagues about her decision not to become a mom early on. That may have given her a jump-start on anticipating various problems and developing solutions to growing older while childless. She advises younger generations to  discuss their options openly with friends – married and single, men and women – before making a firm decision.

"We discuss our psychological issues with professionals. We discuss our money strategies with financial experts," Marak says. "Why not talk openly about family concerns and what it means to have or not have children? So many of us go into it with blinders on." 

2. Act early. 

How early you start planning for your future health depends partly on your current condition – and your genes, says Bert Rahl, director of mental health services at the Benjamin Rose Institute on Aging. "If your ancestry is that people die early, you have to plan sooner and faster," he says.

But whether you come from a family of supercentenarians or people who have shorter life spans, it's never too soon to save for long-term care, whether it's by investing in a home, putting aside a stash for medical emergencies or "whatever you can do to have a nest egg," Marak says. "Life is serious, especially when you get old. Don't get to [a point] when you're 60 and now you're having to scramble to catch up."

Still not motivated? "Everybody wants some control in [their] life," Rahl says. "If you don't plan, what you're choosing to do is cede that control to somebody else – and the likelihood that they're going to have your best interests at heart is a losing proposition."

3. Make new friends and keep the old.

Your social connections can help with practical health care needs, like driving you to the doctor when you're unable. But they also do something powerful: keep you alive, research suggests. In a 2012 study of over 2,100 adults age 50 and older, researchers found that the loneliest older adults were nearly twice as likely to die within six years than the least lonely – regardless of their health behaviors or social status.

Connections can also help ward off depression, which affects nearly 20 percent of the 65-and-older population, according the National Alliance on Mental Illness. "One of the things that keeps people from being depressed is to be connected," Rahl says. "The more social activities you have, the more friends, the more things you can do to keep your body and mind active – that's the best protection you have against mental illness."

4. Appoint a proxy. 

Who is your most trusted friend or relative? "Identify somebody to help you if you're in a time of crisis, and revisit that periodically over your life," Carney suggests. Make sure that person knows your Social Security number, where you keep your insurance card, which medications you take – "the whole list of things somebody needs to know if they're going to help you," advises Dr. Robert Kane, director of the University of Minnesota’s Center on Aging.

Before you start losing any cognitive capacities, consider designating that person as your durable power of attorney for health care, or the person who makes health care decisions for you when you're no longer able.

If no one comes to mind, hire an attorney who specializes in elder care law by asking around for recommendations or searching online for highly rated professionals. Unlike your friends, they have a license to defend and are well-versed in elder care issues. Most of the time, Rahl's found, "they're trustworthy and will do a good job for you."

5. Consider moving.

Marak is on a mission: "to create my life where I'm not transportation-dependent," she says. She's looking to move to a more walkable city, perhaps a college town where she's surrounded by young people and can stay engaged with activities like mentoring. She also hopes her future community is filled with other like-minded older adults who can look out for one another. "I want to … set up my life where I'm not living alone and isolated," she says.

Adjusting your living situation so that you can stay connected to others and get to, say, the grocery store or doctor's office is the right idea, says Carney, who cares for a group of nuns who live communally and has seen other adults create communities that act like "surrogate families," she says.
"Think: Where do you want to live? What's most easy? How do you access things? How do you have a support system?"

6. Live well.

Marak is lucky: She's always loved eating healthy foods and walking – two ways to stay as healthy as possible at all ages. "Some of the foods that we eat are really, really bad for the body," she says. "That's one of the major causes of chronic conditions – and not exercising."

Keeping your brain sharp is also critical if you want to be able to make informed decisions about your health care, Rahl says. He suggests doing activities that challenge you – math problems if numbers trip you up, or crossword puzzles if words aren't your forte. "The old adage, 'If you don't use it, you lose it,' is 100 percent correct," he says.

Full Article & Source:
No Spouse, No Kids, No Caregiver: How to Prepare to Age Alone

Aug. 1: Greitens' Budget Cuts Hit Missouri Nursing Homes

Click to Watch Video
SPRINGFIELD, Mo. –- Gov. Eric Greitens’ budget cuts take effect in Springfield nursing homes Tuesday, Aug. 1. The $251 million cut to Missouri’s budget translates to half a million dollars gone at just one of Springfield’s many nursing homes.

Keith Steenbergen, the administrator for Glendale Gardens Nursing and Rehab, expects to make tough budget calls day by day, with each harder than the previous.

"Today starts a very difficult period for our industry,” Steenbergen said.

It’s the day Gov. Greitens' budget cuts to Medicaid reimbursement take effect in Springfield, and all across the state. The building received a 3.5 percent cut to Medicaid reimbursement, which amounts to $5.37 gone per resident on Medicaid per day.

"It adds up pretty quick, that's anyone who receives Medicaid funds,” he said. “So for our facility itself, over a year, it's getting close to half a million dollars."

Most administrators, like Paige Wheeler at Life Care Services, agree that nurses should be the last to go.

"We have to try to look at what we can do to not compromise quality of care when our reimbursement rates are consistently less,” Wheeler said.

Steenbergen says it could happen.

"Unfortunately if it continues like it’s going right now, nursing will be affected as well,” he said.

Residents might also have to go. Along with the budget cuts come a harsher point system to determine who’s eligible for Medicaid. The lower your number, the healthier you are.

"Until now, residents needed a 21 on the scale to be admitted into a skilled nursing facility and receive Medicaid services in Missouri. Starting Tuesday, they'll have to be a 24 to be eligible, and in some cases as high as a 27.

"A 21, truly, in our scope, is someone who's needing 24-hour care,” Steenbergen said.

No residents should lose Medicaid services Tuesday, even with a score of 21. That would potentially happen the next time they’re assessed.

"Generally those assessments, I believe, take place on a six month basis,” Wheeler said.

For now, homes will have to choose what they and their residents can live without.

“Administrators are responsible for that,” Steenbergen said.

The Missouri legislature will be back in session in September to potentially override or veto the legislation. Steenbergen told KOLR10 he’s staying in touch with his state representative until then.

Full Article & Source:
Aug. 1: Greitens' Budget Cuts Hit Missouri Nursing Homes

Friday, August 11, 2017

Daughter of Holocaust Survivor Al Katz Asks for Help

Al Katz, a Holocaust survivor now deceased, was a snowbird from Indiana who went to Florida one year as he always did -- only this time he never came home. On his profile on NASGA's Victims page, his daughter, Beverly Newman, stated,

Al Katz speaking to his guardian
"In Florida State guardianship, Dad was locked up, at 89 years old, in the dismal, isolated basement of a metropolitan hospital, with a no-contact order, separating him for weeks from his family and friends. He relived the Holocaust here in Manatee Memorial Hospital, with fierce, penetrating fears of abandonment and confinement, his worst fears come true. I, his daughter, just outside the thick metal doors, was ordered to leave the premises by the police guarding the poor old man from the touch he needed for comfort.

Three weeks behind locked electronic, guarded doors, my Father relived, flashbacked to the Holocaust, when his adored parents and baby brother were murdered in mass killings of Jews. He could not help his own cherished family, and I could not help him 70 years later."

Al Katz passed in 2009, but his daughter now living in Florida, is still in litigation and the case is not settled.  Beverly states, "they have said they will have me arrested here in Florida and shipped back to Indiana like a criminal, which is likely to cost me my life."  She also states she is being retaliated against, intimidated, and the truth is being obscured.

Beverly asks for both help and prayers.  And she asks that as many people as possible share her plea for help so hopefully an interested investigative reporter will step up and bring sunshine on her case.  Beverly can be reached at

See Also:
NASGA:  Al Katz, IN/FL Victim

Fatally Flawed Justice System: The Monopoly of the Corporate BAR Associations

“There is absolutely nothing in the Constitution for the United States authorizing, or otherwise directing the creation of these self protecting unions that have monopolized our judicial system at every level and use that monopoly to profit at the public’s expense. And, there is nothing authorizing the incorporation of these specialized unions or of the Supreme Court itself. Yet here we are in the grips of these corporate entities who have monopolized the very judicial system meant to protect America from just such things.”
by  Marti Oakley 

In every state and on the Federal level, the BAR Associations have established a monopoly on our courts and our so-called judicial system. The existing Sherman Act: the Clayton Act and FTC Act only become active when the monopolized systems that have been established harm consumers. I can think of no other more harmful monopoly to the American public overall, than what passes for the judicial system in America and its associated BAR unions that not only control and own our courts, but also profit mightily from doing so. The law is what they say it is regardless of what the law might actually be.

The Sherman Act outlaws “every contract, combination, or conspiracy in restraint of trade,” and any “monopolization, attempted monopolization, or conspiracy or combination to monopolize.” Long ago, the Supreme Court decided that the Sherman Act does not prohibit every restraint of trade, only those that are unreasonable. Obviously, the Supreme Court has decided that the monopolies that exist in our courts are not unreasonable. Especially since they too, participate in that monopoly. 

Q: Do you believe the monopolies on our courts at every level via so-called BAR Associations are unreasonable?

When individuals go to all the expense and time of acquiring a degree in law, why should they then be required to pass some contrived test, many times at great expense, to acquire a union card (The BARS are UNIONS) permitting them to work in the field they trained in or to practice their trade in any court room in this country? No union card? No access to the courts. Didn’t pay your BAR union dues for access to the courts they monopolize? Too bad for you!

Even the Supreme Court of the United States has established itself as its own BAR. To be heard in this highly politicized “court”, you must be a member in good standing for four years in another BAR union before you can apply to appear in their closed union shop called the Supreme Court.

Why Is The United States Supreme Court Listed as a Private 

Corporation On DUN & BRADSTREET? 

From: John-Henry Hill Law blog

Not only is the United States a corporation, but the “Judicial Branch of US Govt” is also a Delaware Corporation (Delaware SoS file number: 3383789), listed in Dun & Bradstreet: 

The following is the DUNS number for JUDICIAL BRANCH OF US GOV: DUNS number: 956858625”, as well.

So our courts from the Supreme Court down to state courts are corporate “policy” (as in police) courts.” 

About the Court

“EQUAL JUSTICE UNDER LAW” – These words, written above the main entrance to the Supreme Court Building, express the ultimate responsibility of the Supreme Court of the United States. The Court is the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.

Equal Justice Under the Law? Really?

R.I.P. Pro Se Litigants Before the Supreme Court

The Supreme Court has finally revised its rules to prevent a non-lawyer from arguing before the Court.

When the Supreme Court issued its new rules for the Court in July of 2013, it curiously included rule 28.8. The move by the Court merely codified its standard practice of denying requests by non-lawyers ( no BAR union member) to argue their cases. In fact, the last time a non-lawyer managed to get in front of the Court was in 1978

Antitrust law only springs into action against a monopoly when it destroys the ability of another company to enter the market and compete. But! Since all courts and BAR Associations operate as corporations, does this not make them businesses operated with one fiduciary duty? That duty is to make a profit. 

Q: Does it not also make them invested competitors against the pro se litigant?

The key question, of course, is whether a particular monopoly is harming consumers – or merely harming its competitors for the benefit of those consumers.

Q: Who would be the competitors these closed union shops are competing with?

A: The pro se litigants who have realized that the thousands of dollars demanded for representation will likely produce few results. Because of this, they have chosen to learn the law and represent themselves.
The answer isn’t as simple as “big equals bad”, or “competitor harm equals consumer harm.” Instead, courts must rely on complex economic analysis to determine whether consumers, not just competitors, have suffered harm.”

No they do not. They simply have to rely on the Constitution and the laws that are in compliance with it. But, as these “courts” have decided unilaterally that the Constitution applies only if and when it is to their benefit, or one of their corporate contractors, they have lost any relevance or reasonable excuse for their continued existence.

The Constitution provides no provision for the courts to declare themselves immune from prosecution for wrong doing or for their obvious pandering to their own members of their specific union.. Neither does it make any provision for the establishment of these unions or the monopolies that have resulted in what are supposed to be the people’s courts of law. 

If you or I cannot claim “ignorance of the law”…why is a judge or attorney allowed to? Aren’t they supposed to be experts in the law? Supposedly, this is the reason they voted to give themselves immunity. Otherwise they might be afraid to hand down certain rulings….like those where they ignored the law or where they knowingly violated the very principles that put them on that bench.

Practicing Law without a license

The Constitution does not say that we need to have a license to access the law. That is a self-protective declaration used to keep non-union members out of the courts. What it does say is that we are allowed to have representation i.e., someone who acts on our behalf. Not a word is said about hiring a BAR union member who will charge you unimaginable fees just to gain access to that court.

In Summary

We need to end the BAR Associations and return the law and the access to the courts to the people. No one should be forced to pay exorbitant fees to closed union BAR members to access the courts. What is the first question many judges ask before any court begins proceedings? “Has your attorney been paid?”. And that would concern that judge for what reason? 

Neither does any judge have the authority to order anyone to “hire an attorney”. Yet it happens everyday in court rooms across America.  (Click to continue)

Full Article & Source:
Fatally Flawed Justice System: The Monopoly of the Corporate BAR Associations

Franklin Lakes sued over "arbitrary, capricious" denial of senior home application

Architect Steven Ruiz
FRANKLIN LAKES — The developer that had hoped to build an assisted care facility in the borough is suing the zoning board for what it claims was the "arbitrary, capricious" denial of its application.

Sunrise Development, Inc., is also claiming that the board failed to formalize its denial of the application within the mandated 45-day period. The board voted 4-3 on June 1 to deny the application.

"We believe there remains a large unmet need for high-quality senior care in Franklin Lakes and appreciate the public and board of adjustment’s feedback throughout this process, which we have incorporated into our designs," said Jerry Liang, senior vice president of investments and development for Sunrise. "We look forward to moving closer to our goal of providing local families this need for assisted living and memory care support services."

Calls to borough attorney Robert Davies and zoning board chairman Robert Bavagnoli were not returned.

Franklin Lakes' zoning board held six hearings on Sunrise's proposal to construct a two-story, 88-unit complex on 4.6 acres at the corner of Franklin and Shirley avenues. The proposed 73,207-square-foot structure was to be built on four combined single-family lots, excluding a 1.3-acre wetlands buffer.

A use variance was required because the properties were in a residential zone where senior facilities are not allowed. The developer claimed that another borough property, which was zoned for senior facilities, was unsuitable because of its dimensions and terrain.

In response to concerns that the building fa├žade facing Shirley Avenue would overwhelm the residential neighborhood, Sunrise had provided an alternative design that reduced the frontage along that street.

But residents attending the hearings still objected to the application, questioning the adequacy of on-site parking for staff and visitors, and the ability of management to control illegal and on-street parking they said they have photographed at other Sunrise facilities.

Residents also challenged the need for the facility, estimating there were 16 senior facilities within a 10-mile radius. Sunrise, however, presented testimony that customers preferred placing their relatives no more than six miles away on average, and that there were no such facilities in the borough. 

Full Article & Source:
Franklin Lakes sued over "arbitrary, capricious" denial of senior home application

Issues for Elders: Guardianship should only be sought as a last resort

Jill Burzynski
Guardianship is a process whereby a person is deemed legally incapacitated to make certain or all decisions and another person or persons is appointed to make decisions on the legally incapacitated person’s behalf.

Many people are actually incapacitated and unable to make their own decisions, but never have to go through the guardianship process. Having appropriate legal documents in place avoid many guardianships. These legal documents may include trusts, durable powers of attorney and designations of health care surrogate. Most types of trusts do the best job of guardianship avoidance because they take the grantor out of harm’s way when judgment is lacking.

While durable powers of attorney are helpful, they give the agent concurrent authority, leaving the incapacitated person vulnerable both to exploitation and his or her own poor judgment. Even if no legal documents exist and a person is incapable of understanding and thus executing documents, a careful review of the way assets are titled may prove that guardianship may not be necessary.

Some guardianships are necessary, even when legal documents exist, when the incapacitated person rejects efforts to provide assistance and is neglecting his or her own care. The disease of dementia can slowly rob a person of the judgment necessary to live independently.

If discussions about alternative living situations are delayed until the judgment is completely lacking, the incapacitated person cannot take part in decisions about care when care is needed.

Assistance to prevent self-neglect include several options, but are largely driven by finances and the ability for family to assist. Family members may be willing to provide help, but the elder may not want this type of help because he or she may not wish to burden the family with that responsibility. Other times family may not be able to provide the assistance needed due to jobs or other family demands but the elder may have assumed that family would provide all needed care.

Home care by an outside agency can certainly prevent self-neglect but extensive home care is an expensive proposition. Some families try to cut that cost by hiring individuals rather than agencies, but this decision carries a risk of exploitation, unrecoverable theft and tax risks. Other options include care in an assisted living community or (when needed) memory care. An ongoing discussion about alternatives to living alone while a dementia process is in the early stages may prevent a guardianship necessary due to self-neglect.

Guardianships are sometimes necessary because of exploitation or scams. If a senior has named a fiduciary who is not acting in his best interest, a guardianship can rectify the situation. However, guardianship should not be used just because one of the children disagrees with the choice of fiduciary that the senior made. Seniors are often targeted by sweepstakes and scams. Seniors who have financial worries are particularly vulnerable to scams. When efforts to dissuade further participation in scams fails, a guardianship can stop the abuse.

The process of guardianship can be hard on the senior as well as the family. The court appoints an attorney to represent the alleged incapacitated person as well as an examining committee. The committee visits with the alleged incapacitated person and issues a report. The attorney explains the process to the alleged incapacitated person (to the extent possible) and represents the incapacitated person at a hearing. The process is expensive. After the adjudication of incapacity, the guardian has ongoing court responsibilities and is limited in the actions that can be taken without a court order.

Guardianships are absolutely necessary in situations where no alternatives exist to prevent exploitation or neglect. However, planning early in the aging process can be invaluable in avoiding the hardship of a guardianship.

Full Article & Source:
Issues for Elders: Guardianship should only be sought as a last resort

Thursday, August 10, 2017

Reforms starting for guardianship system

More than 100 adults, including incapacitated and disabled people, are alleged to have suffered combined losses of at least $8 million at the hands of New Mexico guardians and a trust company that were supposed to be watching over their finances.

So far, there is little indication these people will recover their money because of weaknesses in the safety net designed to protect them.

Yet, some changes are in the works.

For instance, judges assigned to the civil bench in Bernalillo County have agreed to require conservators to post bonds when appointed to manage funds of an incapacitated person with assets over $30,000, said civil division chief Judge Shannon Bacon and chief Judge Nan Nash. Currently, state law gives judges the option to do so, but it’s not mandatory.

Meanwhile, Bacon has asked the state Supreme Court to support legislation that would make the bond posting requirement mandatory.

Bacon said in a July 18 letter to Chief Justice Judith Nakamura that while judges can currently require bond, “In our experience, this statutory provision is rarely if ever employed by courts in Conservator cases.” Bacon wrote that the bond would be paid for out of the assets of the estate, “as it protects the value of the estate and inures to the benefit of the protected person.”

Changing the law to require bond would “provide additional protection for the estates of incapacitated adults,” Bacon wrote.

Bacon has also asked State Auditor Tim Keller to audit all commercial guardianship companies on contract with the state Office of Guardianship.

System rocked

While some judges and others have publicly defended the commercial guardianship industry in New Mexico, the system has been rocked by two recent cases.

In one case, the FBI and state agencies are investigating the alleged embezzlement of at least $4 million from an estimated 70 clients of the Desert State Life Management trust company. In the other, federal prosecutors have filed a 28-count indictment against two top managers of the Ayudando Guardians Inc. guardian/conservatorship company – president Susan Harris and chief financial officer Sharon Moore. The company itself is also a defendant.

Federal documents allege that more than 40 clients’ Ayudando accounts were siphoned over a period of years. Client funds were allegedly used to pay off more than $4 million in charges on a company credit card account used by Harris, Moore and their families for personal purchases.

Court records show that Ayudando was appointed as conservator, or guardian/conservator in more than 40 court cases since 2010.

Desert State served as court-appointed conservator in about seven cases in recent years, but the company’s focus was primarily on managing private trust accounts for special needs clients, the elderly and others. In some cases, family members were guardians in charge of care, but relied on Desert State for money management.

One of Desert State’s conservatorship cases involved the loss of as much as $600,000 intended to help care for four developmentally disabled adults, according to one recent lawsuit pending against Desert State.

In that case, Desert State filed the required annual reports with District Court and noted that an accounting was attached. But an attorney in the case says there was no accounting in the court file.

As a trust company, Desert State falls under oversight of the state Financial Institutions Division. But the company is designated as nonprofit and wasn’t required to post a bond when Paul Donisthorpe took over as CEO in 2006. The state also hadn’t conducted a financial examination of Desert State’s books since 2008.

New Mexico Regulation and Licensing Superintendent Mike Unthank said his agency is proposing legislative changes to ensure clients of nonprofit trust companies, like Desert State, are better protected.

“We believe moving forward with reforms for non-profit trust companies will be crucial to ensuring this type of victimization cannot happen again. My plan is to put forward a straightforward, common sense approach with backing from the industry and with the good of all New Mexicans in mind,” Unthank told the Journal on Friday.

Ayudando is also a nonprofit corporation, but is not a trust company. In addition to reporting to the courts, Ayudando was subject to oversight for the state Office of Guardianship for about 166 indigent or low income clients who receive guardianship services.

Under its most recent state contract, Ayudando posted a $1.5 million “fidelity” bond, said John Block III, executive director of the Developmental Disabilities Planning Council. He said the bond would cover expenses incurred by the guardianship office in finding new guardians for Ayudando clients in light of the recent federal indictment.

But Block said it hasn’t been determined whether that fidelity bond could be used to reimburse Ayudando clients for their losses.

More info required

Bernalillo County District Court, which has been working on guardianship/conservatorship issues for more than two years, has substantially increased the amount of information conservators are required to provide in their annual reports to the court. Those reports are confidential under state law, but are designed to help judges oversee the incapacitated people whose finances are managed by conservators – private or professional.

Instead of relying solely on a two-page form in use by courts elsewhere in New Mexico, Albuquerque judges are also requiring detailed conservator reports to show the protected person’s income sources. Expenses are to be itemized, down to the amount spent for clothing and entertainment each year.

The new accounting measures adopted in Bernaillo County District Court don’t require documentation, such as bank statements.

Full Article & Source:
Reforms starting for guardianship system

Cornyn, Klobuchar Bill to Protect Seniors from Financial Exploitation Passes Senate

Court-Appointed Guardian Accountability and Senior Protection Act would help crack down on elder abuse by strengthening oversight and accountability for guardians and conservators
WASHINGTON – Today U.S. Senators John Cornyn (R-TX) and Amy Klobuchar (D-MN) announced that their bipartisan legislation to protect seniors from neglect and financial exploitation has passed the Senate. The Court-Appointed Guardian Accountability and Senior Protection Act would help crack down on elder abuse by strengthening oversight and accountability for guardians and conservators.
“This bill strengthens support for our nation’s senior citizens by ensuring they get the court-appointed care they need, while also protecting them from exploitation and fraud,” said Sen. Cornyn.  “I’m proud to join Sen. Klobuchar in standing up for enhanced oversight to ensure this critical program helps, not harms, America’s senior citizens.”
“While most court-appointed guardians and conservators are undoubtedly professional, caring, and law-abiding, there are some who use their position of power to exploit seniors,” Senator Klobuchar said. “This bipartisan legislation would strengthen oversight and accountability for those entrusted to with the well-being of seniors, and will protect those who are most vulnerable.” 
Cornyn and Klobuchar’s bipartisan legislation passed as part of the Elder Abuse Prevention and Prosecution Act. The Court-Appointed Guardian Accountability and Senior Protection Act makes courts eligible for an already existing program designed to protect seniors. Under the program, state courts would be able to apply for funding to assess the handling of proceedings relating to guardians and conservators, and then make the necessary improvements to their practices. For example, the courts could conduct background checks on potential guardians and conservators, or implement an electronic filing system in order to better monitor and audit conservatorships and guardianships.

Full Article & Source:
Cornyn, Klobuchar Bill to Protect Seniors from Financial Exploitation Passes Senate

Power Of Attorney 101

 Perhaps you've heard the phrase "Power of Attorney" on a TV lawyer show, or even from a real lawyer. Ever wonder what it means?

What is Power of Attorney?

A Power of Attorney (POA) is a document granting one person or organization (typically called an agent or attorney-in-fact) the authority to act on the behalf of another person. POAs can be general and broad in scope or limited to specific aspects such as health-care decisions or financial management.

A POA is often used to outline plans in case you become incapacitated and are unable to handle your own affairs. In that case, a POA is called a durable power of attorney since it continues beyond your incapacitation.

It is important that your agent for the POA be a reliable individual whom you can trust. Agents are expected to look out for your best interests and must not abuse the powers that you have given them.

You can revoke your POA at any time by notifying your agent in writing and collecting all the existing copies of the POA. You may also need to notify agencies and financial institutions that the POA has been revoked. Once you have signed a POA, you can continue to make your own decisions until the conditions that trigger the POA happen (such as incapacitation).

An attorney is not necessary to create a POA, but it is usually wise to consult with one. The POA defines the powers that are to be given to the agent and the conditions under which they are valid (such as durability). It is very important to write the POA precisely as per your wishes to ensure that they are carried out properly.

Financial POAs are usually set up for an agent to take care of day-to-day decisions as well as major financial ones in case you are unable to make these decisions for yourself. They could include bill paying, tax obligations, disposition of property and assets, or directing investments.

What You Need to Know About Being Granted Power of Attorney

What if you are on the other end of a POA and named as an agent for another person? Once you assume the POA for another person, you have a fiduciary responsibility to that person to act in his or her best interests. The first item of business is to read the POA and make sure that you fully understand the powers that are being granted to you. The POA document and applicable state laws outline and define your powers.

Note that you are obligated to carry out the directions in the document, even if you believe that one of those directions should be done differently. If you do not think you can carry it out, ask your principal to find another agent. When possible, continue to involve the principal in the financial decisions.

It is extremely important to keep the principal's finances separate from yours and to keep meticulous records to track the principal's finances. As an agent, you must avoid conflicts of interest or even the appearance of such not easy to do when you are the agent for a close friend or relative.

When a principal's government benefits such as Social Security are involved, you will not be able to manage them as the agent without a special appointment by the agency. There may be a separate representative payee for these benefits. Co-agents are not uncommon, and co-agent relationships are sometimes directly spelled out in the POA. Regardless of how co-agents are designated, you are obligated to work with the co-agent to maintain the best interests of the principal.

The Consumer Financial Protection Bureau (CFPB) has more details on your responsibilities and options in case you are asked to become an agent. See their pamphlet, "Managing Someone Else's Money" for more information.

POAs are important, powerful documents that are not to be taken lightly whether you are the principal or the agent. Set up your POA carefully with appropriate legal assistance. If you are named as an agent, make sure you take your POA responsibilities seriously and be diligent in executing them. Treat the principal as you would want to be treated.

Let the free Retirement Planner by MoneyTips help you calculate when you can retire without jeopardizing your lifestyle.

Full Article & Source:
Power Of Attorney 101

Wednesday, August 9, 2017

Professional for-profit Guardians: Just one step away from the public auction block

I have watched in dismay as bills have been introduced and/or passed supposedly addressing the trafficking of human beings including the elderly, the disabled and children through the cash incentive systems that fund the buying, selling and trading of the American public. We have been commodified. This system is so rampant and so blatant that we are literally just a step away from auctioning off human beings for profit in the public square. And it wouldn’t be the first time this has happened. The US has a sordid history of selling human beings for profit, only this time around we are all potential property that can be auctioned off.

Having successfully stolen an estimated 3-5 billion annually from the elderly (low estimate) some think the real amount is closer to 10 billion. And, while there are cases of family members, friends, or others in the community who have exploited the elderly and abused them, the vast majority of cases, especially where a large estate is attached, are committed by parasitic individuals who work as predators within and with the cooperation of the probate system, for no other purpose than self-enrichment. These parasites could not care less about the lives they destroy or the misery they cause other human beings.
“Go ahead and see what you can do, because you have been deemed incapacitated, so everything you say or do is meaningless,” said Brenda Uekert, principal court research consultant with the National Center for State Courts. “You can’t even get an attorney, because a judge has already determined that you don’t have the ability to make decisions for yourself.
Two recent bills supposedly intended to address the growing threat of predation of senior citizens who committed the new age crime of aging with assets, address none of the real causes of abuse, neglect, and financial exploitation that occurs under the protection and direction of the so-called “stakeholders” who assembled this system of trafficking, legalizing the conversion of assets from the targeted individuals into the accounts of total strangers whose only interest is self enrichment, is even acknowledged.
What Is Stolen?  

Thefts from the dead fall into two basic categories:

1) Theft from the body of a dead person; and

2) Theft of property and/or money from their home and estate.

It just so happens that thefts from vulnerable adults and elders also fall into two basic categories:

1.) Theft of property, including homes deeded over, cars retitled, medication (especially narcotic pain medications that can be sold for cash), art work or jewelry taken without the knowledge or the consent of the elder, or taken from an elder through coercion or intimidation or undue influence; and

2) Theft of financial assets such as: taking cash or draining bank accounts; running up credit card balances or getting new cards in the elder’s name; stealing IRS refunds; stealing Social Security retirement or disability checks; stealing pension payments; defrauding elders into investing in businesses that don’t exist; coercing an elder into co-signing a loan at a bank; getting elders to buy expensive cars and jewelry and making “gifts” to the abuser. Frankly, the list is endless in this category.

The administrative tribunals called “probate” were constructed specifically to avoid your natural rights and liberties as protected in the Constitution for the United States. What are referred to as “collateral consequences” are civil and regulatory and therefore not subject to Constitutional limits.

In “probate” as with all administrative tribunals, you have no rights. And there are far too many examples of probate administrators who sit in place of an actual Judge of the law, who will vehemently threaten those who are forced into these tribunals, with being sent to jail if they mention the Constitution or who may try to claim their natural rights and liberties contained in it. More than one administrator has screamed at those captured in these tribunals that “the law is what I say it is”. This most likely is one of the few honest statements you will hear. These tribunals are not bound by the rules of evidence as would be adhered to in an actual court of law.

The predator who is about to steal your identity from you can and will make serious charges of neglect, abuse, exploitation and other egregious claims for which they have no evidence, and are never required to produce any evidence that these claims have any truth to them. And the victim, nor his/her advocates are allowed to present any evidence that may contradict the exaggerated and baseless claims made by the predators. The administrator won’t allow it….don’t even try to put it on their desk.

This is really a handy system. This way, transcripts read that no one objected and no one presented any evidence to contradict the claims of the predators.

How it works

Using exaggerated and/or fabricated claims of imminent danger, the professional predator files an emergency petition for guardianship. In almost every instance of these claims, the predator has never even seen the targeted victim, and could not identify them if they were in a one person lineup. But what they have seen is a list of assets including property owned, liquid assets, personal items of value, possible stock portfolios or other real property.  Where did they find these assets?  Ask that estate planner who sold you that plan how this information can become available to interested party’s.

Collateral Damages

The result of being declared a “ward” is the loss of legal status which is an inherent element of criminal punishment. Being declared a “ward of the state” is a statutory civil death. It is equivalent to natural death in its legal consequences and has historically been treated as criminal punishment.
Why would you construct a system that treats aging with assets as a crime? And it must be viewed by the BAR Associations and their cohorts as such as it is they who assembled and wrote the statutes in every state that deprive you not only of your assets and your freedom, but also your very identity.

The ultimate in Identity Theft

Once guardianized, now having suffered a statutory civil death., you cannot speak for yourself. Dead people can’t talk. 

From “The New Civil Death”

As stated by Chitty, “he is disqualified from being a witness, can bring no action, nor perform any legal function; he is in short regarded as dead in law.”
The Illinois Supreme Court in 1907 quoted approvingly a scholar’s conclusion that it raises a feeling of repulsion, whether the incapacity is presented singly or as a consequent of another punishment. It is a barbarism condemned by justice, by reason and by morality.”

Your identity is stolen from you and given to your new owner; the professional predatory guardian. Now under the legalized theft of your identity, they speak, act and present themselves legally as YOU. With this theft of identity, comes access to all of your assets, personal possessions and anything else you may own or possess. Your home will be violated, your possessions inventoried (unless of course they find something really valuable and somehow these items never appear on the inventory) while mementos, family albums, and personal items of sentimental value are added to a pile of trash. 

Those estate plans you paid an attorney to put together for you? Any probate administrator in the country can and routinely does discard all pre-standing legal instruments if the new guardian hasn’t disposed of them already and denied that these documents ever existed. Once discarded and cast aside, all benefits, powers of attorney, medical directives, estate administration and distribution is held by your new owner: that person who now presents themselves as you. 

Neither bill addresses the redistribution of wealth, the interference with inheritance, the conversion of property under the guise of protection, that operates inside administrative tribunals constructed specifically to facilitate the now legalized theft of estates by professional predators who make their living converting the assets of targeted victims, into their own private accounts. All to benefit the “ward” of course.

What these bills do, is to expand and further empower the very agencies and associations that are used to facilitate the destruction of lives, the theft of the estate, and the rendering of basic human rights as void.

When I see a bill come out that actually addresses the root causes of this epidemic, that holds accountable the people, institutions, associations and agencies responsible; when the federal government stops funding the exploitation of the American public through cash incentive programs hidden in regulations that keep state treasury’s flush with cash, I’ll support those bills.  Until then, do not expect me to cheer for these do nothing bills that are nothing more than fluff and buff bills meant to make you think they really do care.  They don’t.

And for those of you who are enamored by, brought to your knees in supplication by the mere presence of politicians who graciously gave you a few minutes of their time and then immediately forgot you…..get over it.  Remember who you are, and that it is YOU who employs them.  It is YOU who pays for the grand building they sit in along with that elegant office and the staff that tends to his or her Royal Highness.  And it is YOU who not only pays their salary but most likely helped put them in position.  Treat them as you would any other employee….respect them but demand that they do the job they were hired to do.

Full Article & Source:
Professional for-profit Guardians: Just one step away from the public auction block

Attorney Forges Judges’ Signatures Over 100 Times. Earns Jail, Sick Burn

It’s been about a year and a half since we last checked in on Jose Camacho, a Florida lawyer charged with forging the signatures of seven different judges on over 100 documents. Yesterday, he was sentenced to 364 days in jail, 10 years of probation, and a comical tongue-lashing from the court.

Ultimately Camacho forged signatures on 114 documents — structured settlements factoring transactions for his clients — and filed them with the Broward County clerk. Broward has since put a stop to allowing attorneys to file documents supposedly coming from the judges, a policy fix so obvious it’s shocking it wasn’t long in place. (UPDATE: Originally this article described these documents as setting up structured settlements, but it’s a little different than that. The National Structured Settlement Trade Association points out that the documents at issue set up factoring transactions that allowed settlement purchasers to offer discounted cash payments in exchange for the rights to future settlement payments. This supercharges the potential for abuse here because, while judges most often approve these deals, they should be scrutinizing them due to the risk of disadvantaging victims.)

It remains one of the most baffling cases of professional misconduct we’ve covered at Above the Law for the simple reason that Camacho seemingly garnered no advantage at all from his actions. The settlements would’ve earned a rubber stamp had he submitted them to the court. He just… didn’t.
“He was lazy,” she testified. “He was purely lazy.”
That’s Judge Marina Garcia-Wood, one of the Broward judges who uncovered the scheme, testifying at Camacho’s sentencing this week.

Meanwhile, Miami-Dade Circuit Judge Ellen Sue Venzer, who presided over the case because, quite frankly, how could you trust the Broward courthouse after realizing they let this go on, offered a time-worn burn while she sentenced Camacho:
“In today’s environment, lawyer jokes are abundant. You’ve heard the one about what’s 1,000 lawyers at the bottom of the sea? A good start,” Venzer said. “You only only reinforce that stereotype, but you buttress the idea that lawyers can’t be trusted.”
It’s bad enough to be heading to jail, but to sit through a lawyer joke too? It’s not even one of the good lawyer jokes either! That’s what makes it such a harsh rebuke — Judge Venzer didn’t even find Camacho worth crafting a good joke for. She just threw out a lazy quip that’s been copied a hundred times.

Oh. That’s some postmodern trolling, right there.

Full Article & Source:
Attorney Forges Judges’ Signatures Over 100 Times. Earns Jail, Sick Burn

West Columbia assisted living facility director charged with assault of resident

WEST COLUMBIA, SC (WIS) - The executive director of Brookdale Assisted Living Facility has been accused of abusing one of the residents in a police report obtained by WIS.

Gary Mark Tyson, 59, is accused of assaulting two residents in formal complaints made to the West Columbia Police Department.

In one report, the daughter of a resident at the assisted living facility claims that Tyson hurt her mother on July 11. A witness and employee at the home said the daughter called, claiming her mother accused Tyson of forcing her to take a shower, leaving bruises on her body.

Another incident report claims that a welfare check was made when a 911 caller said the facility was understaffed when her mother was picked up and took her home.

The incident report also states that the employee who officers spoke with was the only one on staff, which is a violation of DHEC regulations.

Tyson was arrested on July 28 and charged with third-degree assault.

Brookdale Assisted Living Facility is located on 190 McSwain Drive.

Full Article & Source:
West Columbia assisted living facility director charged with assault of resident

Tuesday, August 8, 2017

Editorial: Commission needs to dig deep into guardianship travesty

It would be impossible for a special commission — appointed by the New Mexico Supreme Court to review and recommend changes in the state guardianship system — to ignore shocking recent allegations of outright theft by guardians and conservators.

These are the same guardians and conservators who are appointed by judges to protect some of our most vulnerable residents — the elderly and disabled.

When federal investigators describe a commercial guardian company like Ayudando Guardians Inc. as “permeated by crime,” it would seem even the most ardent defenders of the system would have to take notice. Remember, Ayudando was appointed in hundreds of cases and represented the professional guardians at one commission hearing.

Such cases highlight obvious areas in need of reform. The courts have no forensic auditing capability, there are no meaningful financial reporting requirements, no requirement in state law for guardians and conservators to post bond and no place for families to complain.

 But the commission and court also need to look at other, more subtle, problems in a system that lacks meaningful oversight even though it is susceptible to corruption.

Consider these scenarios, based on real-life examples from the Journal’s ongoing investigation:

1. You are struggling with how to care for a parent whose mental faculties have deteriorated. You temporarily put Mom in a care facility, then decide to bring her home. But caregivers and attorneys who make a living in this system urge you to petition for a guardianship. It will be so much less stress, they say. The professionals can handle it so much better, they say. You can go back to being son or daughter. They might even privately urge Mom to tell you that’s what she wants. The pressure is subtle and they don’t mention, of course, that this is their source of income.

2. You concur and petition for a guardianship. A judge declares Mom or Dad incapacitated and appoints a guardian and/or conservator. But a year or so later you aren’t happy with the care Mom’s getting and you think the charges racked up by the professionals — and taken from Mom’s assets — are excessive. Conservators and guardians have virtually no check on their spending other than possible after-the-fact review by the judge. You object. But they dismiss your complaints. You have nothing to say about this any more.

3. You can’t even discuss these issues with Mom. It “upsets” her, says the guardian. In fact, so much so they can cut you off from Mom. Totally. Without judicial approval. Visits, if allowed, will be “monitored” for content.

4. You go back to your attorney for help. Ooops. He/she can’t help you because he/she represents the guardian and/or conservator in other cases. This is, after all, an industry dominated by insiders.

5. The guardian and/or conservator fight your efforts for removal and even cut off your visitation. They, after all, are empowered by the court. And they pay their lawyers who are fighting to keep you away from Mom out of — you guessed it — Mom’s estate. And they don’t need advance court approval for this.

6. You’ve found a new lawyer and started over. But it’s an uphill battle. You will be portrayed as the shrill and “emotional” family member by industry insiders and their lawyers, who are smooth and polished before the judges they know well and who defend them publicly.

7. You dig into your own pocketbook and the guardian and/or conservator finally relent. OK. You can see Mom and maybe they will even agree to step aside and allow appointment of another firm. But part of the price to end the legal war is a “side” agreement in which you promise never to criticize the company or even acknowledge the existence of such an agreement.

8. You’ve had running disputes with the conservator but really want the estate settled now that Mom’s gone. You’re asked to sign a document releasing the conservator from all liability and, likely, a promise you won’t criticize. But you want a real accounting? You may have to post a significant bond — even though guardians and conservators typically in New Mexico haven’t been required to do that when they take over your loved one’s estate and finances.

The initial reaction by some District Court judges in Albuquerque to family complaints — Judge Shannon Bacon being a notable exception — was one of denial. Nothing to see here. Move along.

But that’s not possible now with law enforcement accusations of millions of dollars stolen from protected wards by court-appointed guardians such as Ayudando.

Yes, there are some obvious reforms. And as noted in today’s Page 1 story by investigative reporter Colleen Heild, Bernalillo County district judges have begun taking important steps.

But to fix the structural problems that have allowed this abuse of people and their assets, the commission and the Supreme Court will need to dig a little deeper into the decay that has allowed these problems to flourish.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.

Full Article & Source:
Editorial: Commission needs to dig deep into guardianship travesty

Two arrested in Volusia elderly exploitation case, third sought

"They are the epitome of what a scumbag is, to go after your grandparents," Sheriff Mike Chitwood said.

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Investigators in Volusia County are have arrested two of three people, including the granddaughter of a victim, in connection to an elderly exploitation case.

Candyce Nesheim said thieves broke into her Gardenia Avenue home and ransacked the place while she was away in July.

Nesheim said the thieves cut a screen, shattered a window and stole a television, tools, money and precious heirlooms.

Deputies with the Volusia County Sheriff's Office said surveillance images from a local pawn shop showed Matthew Hall with some of the stolen items but said Albert Blackburn was the actual thief.

The pair were living next door to the burglary victim at the home of an elderly couple.

Deputies said they'd been invited in by the couples' granddaughter, Mary Hall.

"They are the epitome of what a scumbag is, to go after your grandparents," Sheriff Mike Chitwood said.

Chitwood said police found out the three were exploiting the seniors, getting money from the couple through threats and intimidation.

"To basically eviscerate these folks in their golden years, to destroy their money and their sense of security," Chitwood said.

Sheriff's Office investigators said the elderly couple lived in such fear of their granddaughter and the two men she allegedly brought into their home, they lost significant weight, their health deteriorated and they are now in an assisted living facility.

Investigators said the suspects have since disappeared after Mary Hall allegedly stole her grandparents' car, but they've spotted her out of state on social media.

"Now she's set up a GoFundMe account claiming she needs money to get to Florida to take care of her elderly grandparents," Chitwood said.

Investigators said the only people the suspects were helping were themselves.

Albert Blackburn and Maria Hall have been arrested in North Carolina.

Full Article & Source:
Two arrested in Volusia elderly exploitation case, third sought

Fight over right to sue nursing homes heats up

Consumer groups are making a last ditch effort to stop the Trump administration from stripping nursing home residents and their families of the right to take facilities to court over alleged abuse, neglect or sexual assault.

The Centers for Medicare and Medicaid Services (CMS) announced plans in June to do away with an Obama-era rule that prohibited nursing homes that accept Medicare or Medicaid funds from including language in their resident contracts requiring that disputes be settled by a third party rather than a court.

Public comments on the CMS proposal to do away with that rule are due Monday, and groups are urging the agency to reconsider.

More than 75 consumer, health and advocacy groups have come together to form the Fair Arbitration Now Coalition to stop CMS from reversing what they claim is a critical protection for the elderly.

Remington Gregg, counsel for civil justice and consumer rights at Public Citizen, said the rule change is not only unnecessary, but shameful.

Gregg said the provisions, known to lawyers as pre-dispute arbitration agreements, create an unequal balance of power between the nursing home and its elderly patients or the family members caring for them.

“When you are trying to get someone in a nursing home, often time it's stressful or an emotional time. Often times loved ones can’t take care of themselves, so for a nursing home to say in order to get in you have to waive your right is shameful,” he said.

“We’re talking about everything you may have a problem with — abuse, neglect, sexual assault, a wide variety of things — they are now saying you are waiving your right to full justice.”

CMS said it decided to reconsider the rule after a federal district court judge in Mississippi issued an order in November temporarily blocking the rule from taking effect.

The American Health Care Association (AHCA) and a group of nursing homes had sued CMS and the Department of Health and Human Services in October, claiming that the rule violated the Federal Arbitration Act and that the agencies had overstepped their statutory authority in issuing the law. The AHCA said Congress has repeatedly rejected legislation to invalidate arbitration agreements.

In June, the federal judge agreed to the parties’ joint request to put the case on hold while CMS revises the rule.

Under its proposed revisions, CMS said nursing homes would be required to write the arbitration agreements in plain language and explain the agreement to the prospective resident or his or her representative. Residents would also be required to acknowledge they understand the agreement.

The U.S. Chamber of Commerce is also backing the rule change. The nation’s leading business group fought against the original rule, claiming that restricting arbitration would raise the cost of nursing home care and make it harder, and more costly, for residents to resolve disputes.

“For many individual disputes, litigation in court is simply impractical. Litigation in court is procedurally complex, which means that non-lawyers need legal representation to have any hope of successfully navigating the system,” the chamber said in 2015 comments to the agency it provided The Hill.

“But many plaintiffs’ claims are too small to justify paying a lawyer to handle the matter and, in any event, most people do not have the resources to do so.”

The AHCA did not comment but provided a fact sheet outlining its position, which said arbitration is faster and cheaper than litigation. It also claimed there's no limit on the monetary award that residents can receive.

The Fair Arbitration Now Coalition, though, is making a full-court press to save the rule.

AARP, which is part of the coalition, argued in comments it submitted to CMS on Thursday that the agency lacks the statutory authority to eliminate a protection that was properly written.

“To the extent that CMS may be relying on the authority to promulgate regulations ‘to promote the effective and efficient use of public moneys’ the regulations still need to be for the benefit of Medicare and Medicaid nursing facility residents and not to their detriment,” wrote the nonprofit group for Americans 50 years and older.

In its proposal to revise the rule, CMS said “upon reconsideration,” it believes “that arbitration agreements are, in fact, advantageous to both providers and beneficiaries because they allow for the expeditious resolution of claims without the costs and expense of litigation.”

But AARP claims that statement contradicts evidence the agency cited in 2016 when it issued the rule.

Carolina Fortin-Garcia, a CMS spokeswoman, said the agency will respond to public comments received when it issues the final rule.

Opponents of the rule change are also weighing legal action.

Gregg said it’s never a good idea to threaten litigation but that Public Citizen will explore all of its options if CMS ultimately decides to allow arbitration agreements in nursing home contracts.

“Any agency action must meet a high bar for ensuring the action taken isn’t arbitrary and capricious,” he said.

“Simply making the argument that we are a new administration and want to make sure corporations don’t have regulations that are forcing them to be accountable is not a good enough reason to change a rule that underwent extensive review."

Full Article & Source:
Fight over right to sue nursing homes heats up