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| Shawn Majette |
“All rise,” the bailiff said as Richmond Circuit Judge W. Reilly Marchant entered the courtroom and took his seat.
“Good morning, Your Honor,” Majette said. “I have the honor of representing Virginia Commonwealth University Health System.”
Majette
then asked the court to appoint a lawyer from his firm to serve as
guardian of a patient at the hospital, giving the attorney the power to
make decisions about the person’s medical care, place of residence and
finances. Like most of these guardianship cases, the patient was neither
present at the hearing, nor did he have a lawyer to advocate for him.
Instead, a guardian ad litem, appointed by the court as a neutral party,
was there to represent the patient's best interests.
Over
the past 35 years, Majette has carved out a niche in some of the
toughest legal areas involving mental health, competency and
guardianship proceedings. He’s become adept at navigating the
bureaucracy of Medicaid and creating special trusts for people with
disabilities.
His expertise has
made him the go-to person in Richmond for guardianship cases. He's
taken on more than 200 such cases in the past five years alone — 10
times the two second-most active guardianship lawyers in the city, who
also work for his law firm.
A yearlong Richmond Times-Dispatch investigation that included analyzing
more than 250 court case files and interviewing nearly three dozen
people raises questions about the oversight of guardianship proceedings
and the regulation of private, professional guardians. Court records
show that Majette and his colleagues at ThompsonMcMullan law firm are
authorized to take control of vulnerable people’s decision-making rights
at the request of the health care providers that pay them. Hospitals
engage attorneys, who then are appointed as guardians, to have
low-income people evicted from expensive acute care beds - in some cases
in disagreement with the wishes of the person or family members,
according to court documents and interviews with family members.
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Once patients are deemed by the court to
be incapacitated, they usually end up on Majette’s list of up to 120
wards — six times the number allowed for state-funded public guardians —
or are assigned to one of two other lawyers in a department he oversees
at ThompsonMcMullan. They’ll ensure a prompt discharge from an
expensive hospital bed and have the patients placed, in most of the
cases recorded in court documents reviewed by the Richmond
Times-Dispatch, in a nursing home that has received poor ratings from
the Centers for Medicaid and Medicare Services.
Majette
says his law firm performs a community service by taking on
guardianship of dozens of low-income people, ensuring that they are
admitted to a nursing home and get their bills paid.
“We
do more I think for these folks … than anybody I know of — more than
other people can do,” he said in an interview last month.
But
his work as both a lawyer for the health care provider and as guardian
for the people he helps the hospital or nursing home declare
incapacitated raises the question: Is he looking out for the best
interests of people under his guardianship, or for the interests of the
health care providers that pay him?
Ten
experts in the fields of guardianship, medical ethics, law and
disability rights said that the arrangement of having the attorney
representing hospitals and nursing homes also serving as guardian raises
concerns about how independently he can look after the interests of the
people placed under his guardianship.
"It
is such blatant conflict of interest," said Sally Balch Hurme, a
Virginia-based elder law attorney and author who has served on the board
of directors for the National Guardianship Association and advised on
the drafting of the Uniform Law Commission's model guardianship law,
after reviewing The Times-Dispatch's findings. (Hurme is not related to
the reporter.) "It’s the same as an attorney who is drafting a will
naming himself as the beneficiary of the will."
ThompsonMcMullan
and two Virginia attorneys said the setup does not violate the Virginia
State Bar’s ethics rules to serve as both attorney for the petitioner
and guardian because the attorney ceases to represent the health care
provider as soon as a judge declares a person incapacitated, moments
before he is appointed the guardian.
“I
see zero ethics problems. ... We [attorneys] can’t deprive any client
of our zealous representation,” said Thomas Spahn, an attorney
specializing in ethics with McGuireWoods law firm, who spoke to The
Times-Dispatch at the request of ThompsonMcMullan. “They [attorneys]
don’t let their judgement be affected. The fact that it might be
affected, that can be true in every situation.”
Bernard
DiMuro, an attorney and former president of the Virginia State Bar,
said in a statement solicited by ThompsonMcMullan after The
Times-Dispatch reached out to the law firm, “As the Firm
[ThompsonMcMullan] transitions from counsel to the petitioner [health
care provider] to guardian for the ward after the court’s
determinations, the Firm is not representing two clients whose interests
are directly adverse.”
But Hurme said that argument is flawed.
"The
hospital is the petitioning attorney’s client who is in an adverse
position to the guardian of the individual — of the discharged patient,"
she said. "Let’s say there had been some sort of malpractice or
improvident discharge. The guardian would be in the position to sue the
hospital, but if the attorney appointed as guardian was the attorney for
the hospital … they would not be able to adequately defend the
interests and the rights of [the patient]."
George Cohen, a University of Virginia law professor, also said there were problems with the arrangement.
"The
interests of the hospital and the interests of the guardian could
certainly be in conflict," Cohen said after reviewing The
Times-Dispatch's findings. "Suppose you had someone who had a loan to a
bank. Would we say a lawyer for the bank could come and file one of
these petitions and become the guardian? That would seem to be very
troubling."
And some family
members of the people Majette’s charged with protecting say the change
of loyalty is difficult to see in practice.
“The only interest Majette had was
getting him the hell out of [VCU Medical Center],” Richelle
Richardson-Hayes said of her brother, Richard Richardson, who was one of
the dozens of VCU patients put under Majette’s guardianship. “The only
thing Majette cared about was his client. ... Shawn Majette is [VCU's]
lawyer first, my brother’s and everyone else’s guardian second.”
Virginia’s public guardianship program, which serves 1,049 people, is held up as a model for the nation because it caps its guardians’ caseloads at 20 people, requires monthly visits and emphasizes planning that encourages autonomy.
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Majette
asked a judge to either appoint him Richard's guardian or allow VCU
Health System to put Richard, who was paralyzed from the shoulders down,
out on the street.
***
Virginia’s public guardianship program, which serves 1,049 people, is held up as a model for the nation because it caps its guardians’ caseloads at 20 people, requires monthly visits and emphasizes planning that encourages autonomy.
But it is overwhelmed.
Lack
of funding and inefficient processes have left more than 85 people on a
waiting list as of Nov. 13 and an unknown number of vulnerable,
low-income people without an advocate, according to Patti Meire, the
program’s coordinator.
The
result is that some poor people end up under the care of private,
professional guardians, who are not subject to the same rules.
And experts say the number of
guardianships — currently estimated at 1.5 million nationwide — is
likely to rise as the population ages.
Nursing
homes have employed Majette's firm to use guardianship to get bills
paid, including, on one occasion, by taking power of attorney and
medical decision-making authority away from the son of an elderly
resident, Charles Ellis, because the son's attempts at applying for
Medicaid had failed, according to court documents and an interview with
the son.
And as long as the
lawyers retain guardianship authority, they can apply for Medicaid
benefits, pay the person’s nursing home and, in many cases, step into
medical treatment and discharge decisions at the hospital or nursing
home’s request, even while rarely visiting the people under their
guardianship, according to annual guardianship reports filed by
ThompsonMcMullan with the court.
ThompsonMcMullan
says that because the public guardianship program is so overwhelmed,
the people kept under the firm's guardianship would be helpless without
help from its lawyers. The firm said it pays staff members about
$176,000 each year for all of the work they do maintaining guardianships
that the fees collected from indigent clients don't cover.
“I
wish that we had funding like I understand public guardians do,”
Majette said. “They are paid, I think, several thousand dollars per
slot. We are paid zero to do that. Nothing.”
A
spokeswoman with Commonwealth PR, a local public relations firm that
ThompsonMcMullan hired in October after The Times-Dispatch's third
request for an interview, said the firm collects an average monthly fee
of $55.57 per indigent ward. Occasionally, the firm will find that the
person has additional assets and can charge higher fees in the thousands
per year, according to the firm and court documents.
VCU
Health System, one of the ThompsonMcMullan's biggest guardianship
clients, has paid the firm $1,158,746.46 since 2007 for guardianship
work.
The state funds the
public program $4.5 million annually and pays between $5,000 and $7,000
each year per person under public guardianship, according to a program
spokesperson.
“The public
guardianship program is wonderful,” said Christopher Malone, president
of ThompsonMcMullan. “It's a wonderful idea, but the limited number of
slots that are available in the state ... the limited funding for the
program, the fact that it could take six months from the beginning of a
request for a public guardianship slot until one spot could be made
available ... and meanwhile that person is trapped in a hospital.”
Majette
said he and his colleagues serve as limited guardians — a role they say
is mostly focused on getting the person admitted into a long-term care
facility and relieves them of some of the responsibilities of general
guardianship, such as visiting with the person.
The
powers of the limited guardian are restricted to the areas laid out in
the court order, but many of the orders reviewed by The Times-Dispatch
grant the firm's attorneys significant powers over the lives of the
patients. This includes the powers to consent to or withdraw any medical
treatment, decide what facility patients will live in and how their
money is spent.
"They're making
placement decisions and they’re making end-of-life decisions," said
Hurme, the Virginia lawyer who advised on the drafting of the uniform
law on guardianship. "That is not a limited guardian."
Majette
and his colleagues rarely visit many of the people under guardianship,
according to annual guardianship reports filed with Richmond Circuit
Court. Many reports said that the guardian had either never visited the
person, had visited once while they were at VCU or had visited “several”
times, without specifying how many.
“It
would make me deliriously happy if we had the resources to become a
general guardian and to do what the public guardian is — again — paid
fairly substantial amounts [to do],” Majette said. “Do I wish we could
do that? Yeah. I'm afraid we cannot do that.”
Public
guardians are required by law to visit those under their guardianship
at least once a month, and the National Guardianship Association
Standards of Practice say that a professional guardian “shall visit the
person no less than monthly.”
“As their advocate and decision maker,
we need to make sure every person and every provider is providing the
best service for this person,” said Edward Richards, the manager for
Senior Connections’ public guardianship program that serves up to 40
people in the Richmond area and a guardian himself. “If your family
member had to go to one of these places, what would you do? You would
comb through whatever they were doing to make sure that they are being
taken care of. We do that with our visits … emails and phone calls and
day-to-day interactions.”
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Reports filed by Shawn Majette vs. public guardian |
Majette
said that he counts on the state’s Department of Health and local
departments of social services, which are responsible for licensing
long-term care facilities and investigating abuse and neglect
complaints, to ensure the safety of his wards. He had 92 as of October.
“I
don't register the visits that I do make because, as far as I'm
concerned, I'm going to visit these people to do the best that I can do
to make sure that if there's a concern it's addressed,” Majette said. “I
don’t have a duty to do that because I have asked the court to appoint
me as a limited guardian and rely upon one group of people to make sure
that if for some reason there's something going wrong in that nursing
home - in the assisted living facility — that that's being looked at,
and that group is the commonwealth of Virginia through the licensing
authority.”
David Hutt, an
attorney with the National Disability Rights Network, said a facility's
state license doesn’t guarantee that a person living there is treated as
they should be.
“Relying on
the state, history has shown, is not adequate to make sure the person is
being taken care of,” he said. “There have been a number of cases where
private attorneys acting as guardians have hundreds of individuals
[under their guardianship]. … They can’t be understanding what the needs
are for the individuals.”
Most
of the nursing homes where Majette and his colleagues placed their
low-income wards are poorly rated. They've also placed people in nursing
homes that they have represented in guardianship petitions.
In
58% of the 122 nursing home placements that were recorded in court
documents from 2013 through 2019, the nursing home is currently rated
two or fewer stars out of five by the Centers for Medicare and Medicaid
Services. In 30% of the cases, the facility does not have a rating, and
in 11%, they are rated three stars or higher.
ThompsonMcMullan
placed at least eight people in Envoy of Stratford Hills from 2013 to
when it lost its Medicare funding in 2015 for failing to comply with CMS
standards, including by failing to follow sterile procedures with a
tracheotomy patient and improperly storing medical supplies. From 2013
to 2018, the firm placed nearly two dozen people in Envoy of Westover
Hills, one of the facilities Majette has represented and the only
nursing facility in Virginia currently on the CMS Special Focus Facility
list. That list includes nursing homes whose performances have been so
bad that CMS has threatened to stop their Medicare funding if the
facilities don’t improve within two years.
A
CMS inspection report of Envoy of Westover Hills documented dozens of
violations and said that one resident’s bedsore had a maggot in it. A
spokesperson for Envoy of Westover Hills did not respond to requests for
comment.
Majette and Malone,
the law firm’s president, said there is a shortage of nursing home beds
in the state, particularly for low-income people who may have complex
health care needs.
But Hurme said guardians should not be excused from ensuring their wards are properly cared for.
"A
guardian has more of a responsibility than finding a nursing home and
applying for Medicaid," Hurme said. "I’m a limited [guardian] therefore
all I have to do is plop them into a nursing home and forget them?"
On at least 13 occasions, Majette or one
of his colleagues suspended their rights and duties as guardian of a
person, but retained the ability to step back in if the person ended up
in VCU Health System and the hospital requested it.
Cohen,
the UVA law professor who reviewed The Times-Dispatch's findings, said
the resignation exception raises the question: "Are [the attorneys]
serving the interests of the hospital more than the interests of the
ward?"
"In what sense is that
being done for the benefit of the person subject to guardianship?" Cohen
said. "It has the appearance that this is being done because the lawyer
is trying to protect the interests of the hospital. ... [The interests
of the ward] are the same regardless of where they’re going to be
hospitalized. Why is this automatic process just for this one place and
not for others?"
Majette said
he resigned in some cases if the person under guardianship was believed
to have the ability to live independently, but that he reserved the
right to step back in if the person ended up back at VCU Medical Center
so that he could have them discharged and admitted to a long-term care
facility again.
Asked what
would happen if the person were taken to another hospital besides VCU,
such as Bon Secours St. Mary’s Hospital in Henrico County, Majette said,
“I don’t represent St. Mary’s. I do not represent — I do not know what
their discharge planning is. I do not know what their process is.”
Bon
Secours Health System pursues guardianship cases for its patients, but
does not allow its attorney to be appointed guardian because it is
unethical, according to Kelly Stuart, executive director of physician
ethics. Instead, the hospital pays for Catholic Charities, which is part
of the public guardianship program, to take on the guardianship of the
patient after the discharge. Similarly, Sentara Healthcare, which runs
several Virginia hospitals, pays Jewish Family Services, another public
guardian agency, to take on its patients.
In
interviews and court records, some family members of people placed
under Majette’s guardianship have complained that he has demonstrated
disregard for the well-being and wishes of the wards and their loved
ones. In one case, a man under Majette’s guardianship complained that he
could not afford to buy himself a coat with the $40 a month that
Majette gave him for personal expenses.
The
guardian ad litem, the attorney appointed by the court prior to a
hearing to investigate the case, said in her report that the man did not
want a guardian and that she didn’t think the man was incapacitated.
Still,
Majette, who had represented Chippenham Johnston-Willis Medical Center
in the guardianship petition, was appointed his guardian. The man was
discharged from the hospital to Envoy of Westover Hills and, two years
later, asked that his friend become guardian instead of Majette. The
guardian ad litem visited him again and said that, although he could
take the bus to Walmart, feed himself, bathe himself and get in and out
of bed from his wheelchair by himself, there was too much risk of him
falling to allow him to live independently. The friend ultimately said
she did not want to take on the responsibilities of guardianship and his
case was dismissed.
“These are
difficult situations where our hospitals manage and serve patients as
best as they can on a case-by-case basis,” said Malorie Burkett,
spokeswoman for HCA Virginia, which runs Chippenham Johnston-Willis
Medical Center, in a statement. “We have a rigorous process in place for
when we deem guardianship necessary; it is a last resort when no other
options are available. We remain dedicated to providing our community
with the highest quality of health care and ensuring the safety and
comfort of all our patients.”
In
another case, the aunt of a person under Majette’s guardianship hired
an attorney and filed a counter petition for guardianship of her nephew.
The petition said Majette had “failed to seek or maintain a
relationship with family members,” including the aunt, who had built an
extra room onto her home to take in her nephew. It said Majette had
“unnecessarily insulted” her and that she had tried to work with VCU
Health System before guardianship was pursued, including telling staff
about the addition to her home, “but she was treated as someone unworthy
of involvement in decision making for his care,” according to court
records.
The aunt’s case was dismissed.
VCU
Health System declined to comment on specific patient cases, but said
that it pursues guardianship of a person with an interested family
member only if the medical care team believes it would be unsafe to
allow that person to make decisions for the patient.
***
VCU Health System
always called Richelle Richardson-Hayes for permission whenever her younger brother, Richard Richardson, needed a procedure, she said. Although Richard was mentally stable, he’d been paralyzed after falling from a balcony on Thanksgiving 2014, when he was 35, and sometimes needed his sister to consent on his behalf. The VCU medical staff had called her when he needed a breathing tube inserted and when they wanted to give him a halo brace to support his neck and head.
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always called Richelle Richardson-Hayes for permission whenever her younger brother, Richard Richardson, needed a procedure, she said. Although Richard was mentally stable, he’d been paralyzed after falling from a balcony on Thanksgiving 2014, when he was 35, and sometimes needed his sister to consent on his behalf. The VCU medical staff had called her when he needed a breathing tube inserted and when they wanted to give him a halo brace to support his neck and head.
That’s
why she was shocked when she found out from Richard that the hospital
was discharging him to a nursing home in Petersburg without telling her.
Richard,
then 38, had been staying at VCU for the past four months, ever since
he’d been admitted from his nursing home for a worsening bed sore,
complications with his catheter and excessive sweating, according to
court records.
Richelle said the hospital staff had
been getting impatient with her and Richard’s two other sisters for not
finding a place for Richard to go since he was ready to be discharged
from the hospital.
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Richard Richardson received rehabilitative services at Sheltering Arms in 2016 while he was living with his family. FAMILY PHOTO |
According to
his medical records, there had been no medical reason for him to stay
in the hospital for the past month, but the VCU social workers told
Richard that the only place that would accept him was a facility about
45 minutes away in Petersburg. Richard refused to go there. He said that
he wanted to be closer to his family in Henrico County.
Richard told a VCU psychiatrist that he
knew he had to leave the hospital, but he wanted to go somewhere
half-decent, unlike the places he’d been shuffled around to for the past
three years, according to court records.
Richard’s
sister Jennifer, 35, and their mother, Jackie, 60, wanted to get a home
where they could bring Richard and take care of him themselves. But it
would take some time to get things in order.
One
of the social workers said that if they didn’t find a place to send
Richard soon, VCU would put him on a stretcher and leave him out on the
street, the sisters said.
Ryan
Raisig, associate vice president for coordinated care and post acute
services for VCU Health System, said the hospital never puts people out
on the street.
But when VCU
asked Majette to take Richard to court, the petition filed Oct. 20,
2017, requested permission to immediately discharge him, without
liability, "to any public street, way or location off the premises" if
the court didn't grant guardianship.
Richard owed the hospital $86,179. The petition said his debt to the hospital was growing at a rate of $3,314 every day.
The court assigned Henrietta Cannon to
be Richard's guardian ad litem. She also had been the guardian ad litem
in nearly 90% of all VCU Health System guardianship cases since 2014,
usually at Majette's proposal, and was paid by VCU Health System on its
cases.
On Oct. 31, 2017 — 11
days later — the Richmond City Circuit Court held a hearing, and,
although both the guardian ad litem and a psychiatrist at VCU found that
Richard was mentally competent, the judge granted VCU’s request to have
Majette made Richard's guardian.
Majette
said that his firm mailed out the hearing notices required by law to
Richard’s family members, but family members said they never learned of
the hearing until after it was over.
Cannon, who was charged with speaking
with family members and loved ones about the hearing in advance of the
court date, said in her report to the court that she had called the
number she had for Richard's older sister, Richelle, and had left a
message with the person who answered but had not heard back.
In
handwritten notes, the court order was made temporary, requiring that
another hearing be held in 90 days to determine who Richard's long-term
guardian should be.
“What’s going on?” she said she asked when he answered the phone. “How do I get guardianship of my brother?”
This is my personal number, Richelle said he told her, don’t you ever call me on this number again.
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Richard Richardson's case file |
Cannon died in May before The Times-Dispatch could reach out to her for this story.
Richelle
said she never got the message. Even though she and her sisters took
turns visiting Richard in the hospital every day and his medical team
had their contact information, the family received no notice of the
guardianship proceedings, she said.
Richard was able to address the judge through video conference during the hearing, but did not have a lawyer.
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Guardianshipreports |
In the meantime, Majette could have Richard discharged to the Petersburg nursing home against his will.
After
Richelle heard from her brother that an attorney had been appointed his
guardian, she got Majette's contact information from the hospital.
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Guardianshipreports2 |
Majette
said he didn’t recall the conversation with Richelle, but said that he
often asks people to call his office number rather than his personal
number if the reason for the call is not an emergency.
***
One Friday night
this summer, the Senior Connections Public Guardianship Program
emergency line rang. Edward Richards, the program manager, answered it
and then hurried to the emergency room. Someone under his guardianship
had been taken to the hospital because an infection on his finger had
made it swell to twice its normal size.
Richards
gave the hospital consent to give anesthesia to the man, who has an
intellectual disability. He was also there to comfort him. Being in the
hospital setting made the man under Richards' guardianship nervous, and
he’d been alarmed and confused by all that was happening around him.
Richards put some of his experience with social work to use to help ease
the man’s anxiety.
Richards is one of dozens of public guardians charged with advocating for some of the most vulnerable people in the state.
The
Virginia Department for Aging and Rehabilitative Services contracts
with 13 service providers scattered across the state to serve as
guardians for the 1,049 public guardianship slots that the state General
Assembly funds. About half of the slots are reserved for people with
intellectual or developmental disabilities or a mental illness
identified by the state’s Department of Behavioral Health and
Developmental Services. Many of these people have previously lived in a
state-operated institution, with guardianship used as a way to
transition them into a community care setting, such as a group home or
nursing facility.
Richards makes a point of changing the
timing of his client visits to make sure he’s seeing how they are
treated in different settings. He tries to get to know the person so
that he can tell when something seems off. And he develops a rapport
with the person’s caretakers so he can effectively advocate for his
client.
“Obviously, we don’t
just visit one time a month, but at minimum one time a month,” Richards
said. “When we do these visits, we look to see if there are any signs of
abuse or neglect. Does a person have a new bruise we haven’t seen
before? Is behavior not what we’re used to seeing before?”
On
one recent afternoon, Richards visited one of the people under his
guardianship living in a nursing home. He knew to look for the person in
their usual hangout spot, watching TV in the dining room. The person
eagerly caught Richards up on the latest gossip about the nursing home
as he checked the person to make sure they were well-groomed and taken
care of by the staff. Before heading off to his next visit of the day,
he remembered that the person’s right hand pained them and offered his
left hand to shake as he said goodbye.
From Richards’ perspective, having 20 clients under his care is a lot of responsibility to take on, but it's manageable.
Virginia’s
1-20 ratio is “the envy of the country,” according to Pamela Teaster, a
gerontology professor at Virginia Tech who helped create the state’s
public guardianship system when she was a doctoral student in 1998. By
comparison, Florida’s ratio is 1-to-40.
But
private guardians, like Majette, have no cap on how many people they
can have under guardianship, nor are they required to visit their wards.
“Some
paid professional and public guardians have ratios of one to over 100
protected persons, a ratio far too high to afford an individualized and
appropriate level of protection and care,” Teaster wrote in her
testimony before the U.S. Senate Special Committee on Aging in April
2018.
Meire, the program’s
coordinator, said she’s known of a guardian who woke up at 4 a.m. to go
to a dentist appointment with a client who was afraid of getting her
teeth pulled, another who brought their family to see the client perform
in a theatrical production on a Saturday, and another who made sure the
client was placed in the same home as her former foster sister.
“There’s a lot of involvement with the client,” Meire said.
But
even so, Meire said the guardianship program should be a last resort,
favoring restoring the person’s rights or allowing a family member or
friend to take over when possible.
“Guardianship is the nuclear option,” she said.
Before
guardianship proceedings are pursued, a volunteer panel of community
leaders, including doctors, lawyers, health care administrators and
social services representatives, review each case to make sure the
person is an appropriate candidate for public guardianship, which is
intended for someone who is indigent and “friendless,” meaning there’s
no one in their life to help care for them.
The
process takes time. A person is generally referred to the public
guardianship program by a community services board — a local entity
tasked with providing mental health services — someone in the community,
or a health care provider. If the panel finds the person to be
eligible, they must wait until a slot opens up in the program. Once the
slot opens, the petition can be filed.
In
many cases, the public guardianship program has struggled to find an
entity or attorney willing to bring the case to court. The Attorney
General of Virginia has declined to represent DARS as petitioner in
guardianship cases unless the state legislature
specifically allows his office to because the arrangement would be a
conflict of interest, according to the 2018 report on public
guardianship to the state General Assembly.
Majette
said the state had no issue with his both representing the petitioner
and serving as guardian in several cases in 2008 when then-Attorney
General Bob McDonnell's office asked him to represent the Virginia
Department of Medical Assistance Services on four guardianship cases
when the state closed down a nursing home. A spokesperson for the Office
of the Attorney General did not answer questions for this article after
several requests.
The lack of a
petitioner in public cases can further delay proceedings, although the
state’s behavioral health department and DARS will sometimes reimburse
attorneys for petitioning to have someone placed under public
guardianship, according to Meire.
It
takes an average of six months for intellectual disability cases to
move through the process. Richards has seen it take anywhere from three
months to a year.
The programs
also often run near or at capacity. There were 85 people on waiting
lists in Virginia as of Nov. 13 just for the state-designated slots.
Local programs maintain additional waiting lists for the slots that are
not reserved for people leaving state-operated institutions. There are
no regulations to address what happens to people while they are on the
waiting list, Meire said.
DARS
expects the need for public guardianship services to continue to grow,
particularly as Virginia’s population ages, with an anticipated 1.8
million people age 65 and older by 2030, and as the state works on
moving people with intellectual disabilities out of state hospitals due
to a settlement with the Department of Justice.
With
the program already at capacity and dozens of people stuck on waiting
lists, people can fall through the cracks. Sometimes that means falling
under the guardianship of a private professional who isn't required to
follow the same rules as the public program.
Teaster
said that she wasn’t aware of any guardians maintaining 100 or more
wards since a national report was done in 2010. “We don’t see those
numbers as high, or they’re not telling anybody,” she said.
But
if there were guardians with that caseload, “[the wards] are not
getting care and not having their needs met. That would be the
antithesis of person-centered care.”
Majette
said he could not maintain the people under his guardianship without
the help of his firm’s support staff, which includes five people who
assist the firm's attorneys to make sure bills are paid, paperwork and
accountings are filed and that quarterly meetings held by nursing
facilities where the people reside are attended via teleconference.
Teaster
said Virginia’s guardianship monitoring places a higher importance on
making sure finances are accounted for than it does ensuring that the
person under guardianship is getting the proper care.
****
When Richard Richardson woke up at VCU Medical Center in November 2014 unable to move his arms and legs, he had no idea how he had gotten there.
 |
He
couldn’t remember going to his sister’s apartment on Thanksgiving and
telling his family that he didn’t think they loved him. He didn’t
remember climbing out on the balcony and attempting to go from the
second floor to the third floor or the fall onto the ground below. He
couldn’t remember his sisters’ screams or the ambulance rushing him to
the emergency room.
His sisters would never know what had come over him that day.
Richard and his family were always close.
He was an active father and uncle, often
bringing his sons over to his sisters’ homes to play with their cousins
and taking the kids to the park.
But
the accident changed him. Once his doctor told him he would never walk
again, it was like a death sentence. It stole his hope, Jennifer said.
Medicaid wouldn’t pay for all the physical therapy he needed, and he was
often told his prognosis wasn’t good anyway.
 |
He'd
run into some trouble with the law on drug charges in his early 20s,
but his sisters said he'd turned his life around since his last charge
in 2004.
He treated his bike
like his car, riding it from his home in downtown Richmond out to his
sister’s place in the suburbs. He worked as a roofer and practiced mixed
martial arts in his free time.
Jennifer recalled a time Richard had fixed an elderly man's roof for free to keep rain from coming into his home.
 |
Jennifer and Phyllis, pose for a picture after church in 1991. |
Every
now and then his sisters would see some of his old personality shine
through. He would light up with his nieces and nephews. He continued to
follow his favorite football team, the L.A. Chargers, and watch Ultimate
Fighting Championship matches on YouTube.
But
they knew he was suffering and depressed. He’d been tossed from one
place to another. His most stable living situation was when he lived
with Jennifer for a year before he started having seizures. The last
nursing home he’d been in landed him in the hospital yet again, this
time for a bed sore. And he was afraid of where he might end up next.
Health
care providers said that he was noncompliant with care, according to
court records and emails. His family said he sometimes did not want to
be touched or given medication when he was in a bad mood or in pain, but
more often his caretakers at the nursing homes offered substandard
care, neglecting to turn him to prevent bedsores, giving him his
medication late or forcing him to eat hot food before it cooled.
Richard's
sisters had planned to rent a home together where his family could take
care of Richard, but he had already been at VCU for months, and their
time was up.
Once Majette was
granted temporary guardianship and conservatorship of Richard on
Halloween 2017, he had him discharged to Petersburg Healthcare Center, a
nursing facility that had 13 health citations on its latest inspection
report and was rated two out of five stars by the Centers for Medicare
and Medicaid Services.
Richard
often called Richelle and told her about how he hadn’t been turned to
prevent bed sores or that he hadn’t eaten all day. Richelle emailed the
nursing home administrators to complain. Eventually, they told the
family Richard couldn’t have a phone anymore, she said.
“That
place is horrible! Why would you send somebody’s family to a place like
that?” Phyllis Richardson, Richard's youngest sister, said. “Man! It’s
understaffed. I sat there days, like plenty of days and watched people’s
lights just blinking, blinking for 30 minutes. Like, I remember one day
I went up to the nurses station and I went, ‘Ma’am, the person across
from my brother’s light has been going off for like 45 minutes, is
somebody going to check on him?’”
"How
long did my brother have to sit there and just lay there day after day
in that place and [Majette] didn’t even come and see him?” Phyllis said,
crying.
Fred Stratmann, a
spokesman for Petersburg Healthcare Center, said he couldn’t speak about
a specific case because of patient confidentiality but said the center
always complies with federal regulations on staffing levels and
encourages its administrators and staff to be sensitive to the needs of
the residents.
He also said
that although CMS gives the center an overall rating of two stars out of
five, the center received a five-star rating for short-stay residents
on “quality measures” such as hospitalizations, falls with major injury
and bed sores. It received a three-star, or average, rating on quality
measures for long-stay residents.
“The facility does have its issues and we’re diligently working to correct those issues,” Stratmann said.
Three months after the initial court
proceedings, Richelle stood before a judge asking to take back the right
to make decisions for her brother. Majette agreed to resign as
Richard’s guardian, but told the judge that he didn’t think the family’s
plan to care for Richard at home was feasible. Richard’s sister,
Jennifer, and his mother, Jackie, were both on disability, so Majette
doubted they’d be able to give Richard the care he needed, according to
the sisters.
The court order
that the judge signed that day made Richelle her brother’s guardian, but
with some conditions. Richelle would not be allowed to go against the
advice of Richard’s attending physician, whether at the Petersburg
nursing home or at any future health care facility where Richard might
be treated, according to court documents.
And,
although Richelle didn't realize it at the time, Majette could resume
his authority, without further court order, at VCU’s request.
Full Article & Source:
UNGUARDED: PART TWO: A paralyzed man owed VCU Health $86,000. VCU’s lawyer asked to be his guardian or have him put on the street.
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