Saturday, May 4, 2019

“Cruel and Spiteful” Care Worker Jailed After Leaving 87-Year-Old with Dementia on Floor for 2 Days

By Elizabeth Nelson

A care worker who left a frail elderly woman on the floor for two days has finally been sentenced and put in jail. The victim’s family is happy to finally have some justice but still appalled that someone could wilfully do something so terrible to another human being.

The incident occurred in December 2017, a few months after 22-year-old Lena Hakurotwi started working for Nationwide Care Services in Derby doing home visits for elderly patients. One of her clients was an 87-year-old woman with dementia, and she was supposed to be visiting her home three times per day.

However, when the frail senior fell on the floor one day and Hakurotwi found her sitting with her back against a chair, unable to pull herself up, Hakurotwi says she was couldn’t pick her back up and get her into her bed. Instead of asking for help, however, she simply left the woman on the floor for two days. Hakurotwi claims to have given the woman food and made her comfortable on that and each subsequent visit, but when she was discovered, she had no food or water and only a folded slipper for a pillow.

Photo: Adobe Stock/

It seems the elderly woman would very likely have died there if it weren’t for the intervention of her granddaughter, who found her “shaking and cold” on the floor and called 999. The senior was taken to the hospital and treated for hypothermia.

“My mother was completely helpless in that situation and it breaks my heart that she was cold and afraid for so long and couldn’t call us,” says the victim’s daughter. “I have no doubt in my mind that if she had left my mother on the floor for a second night she would most certainly have died there.”

The family went over a year without any justice for their grandmother, until early 2019, when a court heard the case, and a judge sentenced Hakurotwi to 26 weeks in jail, 200 hours of community service, an 8 am to 8 pm curfew, an £85 fee, and a £115 victim surcharge.

Photo: Adobe Stock/Andrey Popov

“I am relieved that it’s all over and that there has been at least some accountability for the awful treatment of my mother,” says the victim’s daughter. “It has taken a very long time to get to this point. How the carer could have left my mum in that situation for so long fills me with rage. I still can’t bear to think of my tiny mum lying on the cold floor overnight.”

Birmingham-based Nationwide Care Services was rated as “inadequate” 18 months before the incident, but director Hamait Ali states that the company has since made changes and passed Care Quality Commission (CQC) inspections with a “good” rating.

Photo: Adobe Stock/Gianfranco Bella

The company insists that it has shed “blood, sweat and tears” ensuring the highest level of care for their clients and that Hakurotwi had five days of training and a job shadow with a more experienced employee before being sent out on her own. The victim’s family, however, says it shouldn’t have taken any training at all to know to get help for someone who has fallen and can’t get up.

“As far as the suspended sentence goes, I still can’t imagine that many people would need much training to seek assistance for a frail elderly person who has clearly fallen on to the floor,” says the elderly woman’s daughter.
“A five-year-old would have called 999. To visit three times and not seek help, leaving food out of reach, is intentionally cruel and spiteful in my eyes, trained or not.”
It is heartbreaking that things like this still happen to people in our modern society. If you believe an elderly person is being abused or neglected, please do not hesitate to alert the family and authorities to keep similar incidents from happening to more people.

Full Article & Source:
“Cruel and Spiteful” Care Worker Jailed After Leaving 87-Year-Old with Dementia on Floor for 2 Days

Unprotected: Inmate who stole from elderly warns families about dangers of hiring a caregiver

By: Ron Regan , Mark Ackerman

CLEVELAND — A former home health care worker serving seven years in prison after fleecing an elderly couple’s life savings is warning families how their loved one’s trust can be easily exploited for financial gain.

“Unprotected”—a continuing 5 on Your Side investigation reveals how Ohio home caregivers escape rigorous oversight and scrutiny placing the elderly at risk for financial exploitation.

In February, our exclusive investigation uncovered a fragmented and broken system of Adult Protective Services across the state—especially regarding financial exploitation.

“There’s a lot of it,” said Michelle Baker, who was convicted in December, 2016 on charges she stole at as much as $266,000 from the account of an elderly man while caring for his wife. “I mean, just being in the medical field for so long, there’s a lot of it, absolutely," she said.
Michelle Baker 2
Baker, who takes full responsibility for her crime, saying while there is no excuse for what she did—her personal life had spiraled out of control leading to her to seek an escape.

“I still know right from wrong and what I did was very wrong," Baker said.

Ultimately, Baker was recorded on a casino surveillance video gambling away tens of thousands of dollars she obtained from the family who trusted her.

“She totally took over their finances,” said Geauga County Prosecutor James Flaiz, “and when she took over those finances she ended up embezzling virtually all of their money.”

Flaiz also warns, “This is becoming a bigger and bigger problem with an aging population."

In fact, Ohio now has the sixth largest population over 65 years of age in the nation — 1.8 million and growing. And our investigation found the home health care industry in Ohio is growing as well—94,000 home health care workers currently employed, according to data supplied by PHI - a national advocacy group tracking elder care. A 2018 report released by the group found the home health care workforce totaled 2.1 million in 2017. That’s a 52 percent increase in just ten years with very little oversight or regulation.
Ohio's Aging Population
“The question really is—what should we be doing to look at those agencies to ensure they’re not crooks,” warns Joe Russell, Executive Director for the Ohio Council of Home Care & Hospice . Founded in 1965, the OCHCH is a non-profit organization representing home health care agencies and caregivers and advocates for improved regulation, training and oversight.

“For non-skilled care you do not need any specialized training, certification or anything like that to be able to provide care," said Russell. Home Health Care workers employed by agencies receiving Medicare and Medicaid funds are required to meet a federal minimum standard of 75 hours of classroom training and undergo a criminal background check when hired. But, there are scores of agencies across the state that do not depend on federal funds and escape scrutiny.

“It’s as easy as just simply opening a business, hanging up a sign—then go out there and start marketing yourself,” warned Russell.

Even more alarming, home health care workers who have committed financial crimes are not tracked in any statewide registry. The National Adult Protective Services Association released findings in a March 2018 report into the availability of abuser registries in states across the country. It identified 26 states with Adult Protective registries but found Ohio's registry is maintained by the Ohio Department of Developmental Disabilities -- not APS employees and applies only in cases where victims are persons with intellectual or developmental disabilities.

“In terms of protecting the public—absolutely—there’s a lot of value in terms of creating a registry to identify some of the bad actors that are out there,” said Russell.

Michelle Baker concedes that while “she cannot undo” the crimes she committed, she is hoping her case can serve as a warning to families employing caregivers.

“You need to be involved, first and foremost,” said Baker. "You just can’t allow people to be there and do what they’re doing without knowing what they are actually doing.”

There are some important tips to keep in mind when choosing a home health aide plus recommendations protect against financial exploitation by caregivers:

* The National Association for Home Care & Hospice recommends asking whether providers select and train its employees, provide written personnel policies, benefits and malpractice insurance

* The American Bankers Association warns of “red flags” such as unusual activity in an older person’s bank account

* The American Association of Retired Persons recommends setting up direct deposit for checks so others don’t have to cash

* The Better Business Bureau advises to look for unpaid bills when funds should be available

*The U.S. Department of Justice provides important information for seniors and family members through its website

Full Article & Source:
Unprotected: Inmate who stole from elderly warns families about dangers of hiring a caregiver

Elder abuse, exploitation charges put two behind bars; 73-year-old woman left penniless, homeless

Sheri and Hezekiah Stallings
Two people have been arrested and charged with elder abuse and exploitation of the elderly for their involvement in a situation that has left a 73-year-old woman in Coweta both penniless and homeless.

Sheri Stallings, 49, and her husband Hezekiah Stallings, 27, were acting as caregivers for Sherri's mother, Henrietta Swarthout, who has been diagnosed with early stages of Alzheimer's.

In February, Wagoner County Sheriff's Deputies were called in to assist Adult Protective Services who had found Swarthout in a home with very little furniture, including no bed, and with little to no food. Swarthout was removed from the home and placed in APS custody.

APS investigated and turned their findings over to WCSO investigators for further review. During their investigation, they found evidence that suggested Sheri Stallings took control of her mother's checking account and retirement accounts. She also took control of proceeds for the sale of Swarthout's home in Tulsa.

Sergeant Jeff Halfacre reports evidence also showed that Stallings used Swarthout's money as a personal slush fund that included the purchase of two 10-acre properties in Wagoner County without the elderly woman's knowledge or permission.

Investigators believe that the Stallings' stole what appears to be approximately $283,000 from Swarthout.

"I am appalled at the blatant evidence my investigators have uncovered in this case," said Wagoner County Sheriff Chris Elliott. "True evil preys on the elderly and children. It's bad enough with all the scammers in the world, but it's unfathomable when your own children, fueled by greed and cloaked as a 'caregiver', can do this to their own defenseless mother."

"Of course everyone has the presumption of innocence and will have their day in court, but I'm confident the evidence will speak for itself in this case," the sheriff added. "My agency is committed to speaking and seeking justice for the defenseless amongst us."

Sheri and Hezekiah Stallings were both taken into custody without incident. They are being held at the Wagoner County Detention Center on a $20,000 bond.

Full Article & Source: 
Elder abuse, exploitation charges put two behind bars; 73-year-old woman left penniless, homeless

Friday, May 3, 2019

No Answer to Grievance Committee Letters on Failure to Appear at Guardianship Proceedings Gets Lawyer Suspended

The First Department appeals panel granted an attorney grievance committee’s motion to suspend the lawyer based on his failure to cooperate with an investigation into professional misconduct allegations against him.

A New York lawyer has been suspended from practicing law after not answering at least five grievance committee letters regarding a guardianship-related complaint that said he never appeared for court proceedings aimed at discharging him as the guardian for an incapacitated person who had died.

Kavin L. Edwards—who according to practices real estate law, apparently as a solo practitioner—has been suspended pending further court order by an Appellate Division, First Department panel.

The panel, in a unanimous decision, granted the First Department attorney grievance committee’s motion to suspend Edwards based on his failure to cooperate with the committee’s investigation into professional misconduct allegations against him.

Edwards did not submit a response to the grievance committee’s motion, the panel noted.

Attempts to reach Edwards for comment Tuesday were not successful.

Angela Christmas, a First Department grievance committee spokeswoman, also couldn’t be reached.

In reciting facts in the opinion, which it appears were conveyed by the grievance committee, the First Department panel pointed out that the committee has also become aware of “a second guardianship matter in which [Edwards] failed to file a final accounting pursuant to court rules, and he repeatedly failed to appear for scheduled compliance dates.”

In addition, the panel explained, again reciting committee-presented facts, that although Edwards did appear at an August 2018 deposition before the committee, he failed in November and December 2018 to show up for a deposition continuation.

He also has allegedly still not answered the original guardianship complaint made in January 2018 by Bronx Supreme Court guardianship department compliance referee John D’Alessandro, the panel wrote. The panel noted that as of the grievance committee’s January 29, 2019 motion date, the committee still hadn’t heard from Edwards.

D’Alessandro’s complaint kicked off the grievance committee’s 2018 efforts to reach Edwards for answers, the panel’s opinion said.

The panel of Justices John Sweeny, Sallie Manzanet-Daniels, Cynthia Kern, Jeffrey Oing and Anil Singh also noted—while again citing the presented facts—that Edwards had been appointed as the guardian for the incapacitated person in June 2015.

In January 2018, D’Alessandro sent the committee a complaint saying the client had passed away, and Edwards “had repeatedly failed to appear in court in connection with proceedings to discharge him as her guardian even though he was notified by letter, telephone and court order,” the panel wrote citing presented facts.

The next month, the committee asked Edwards by letter to respond to the complaint. It used an Office of Court Administration-listed address for him, the panel said, citing the facts.

That first letter was returned as undeliverable, but then the committee discovered a new address for Edwards, on Seventh Avenue, the panel said.

In April and May, the committee sent additional letters and in one advised Edwards “of 22 NYCRR 1240.9(a) and citing precedent that provided for suspension of attorneys who failed to cooperate with the Committee,” the panel wrote, still citing the presented facts.

In July 2018, the committee subpoenaed Edwards for a deposition. He later appeared pro se and was directed again “to provide an answer to D’Alessandro’s complaint and reminded … that, if he was needed to appear for a subsequent examination under oath, the subpoena remained in effect throughout the duration of the case,” the panel also wrote.

In suspending Edwards, the panel wrote that he “has repeatedly failed to submit an answer to the [compliance referee’s] complaint and has not appeared for a continuation of his deposition, even though he was advised of the possible need for a subsequent deposition under this Court’s subpoena.”

“Additionally, he has defaulted on this motion seeking his interim suspension,” the panel continued, adding that “such conduct demonstrates a willful noncompliance with a Committee investigation and warrants his immediate suspension,” citing Matter of Matic, 165 AD3d 45Matter of Morgado, 159 AD3d 50Matter of Spencer, 148 AD3d 223; and Matter of Raum, 141 AD3d 198.

Edwards was admitted to the state bar in 2006, the decision noted.

Full Article & Source:
No Answer to Grievance Committee Letters on Failure to Appear at Guardianship Proceedings Gets Lawyer Suspended

A Case Lesson In “What Not To Do” When Billing As A Conservator

Based on recent appellate cases, one of which is discussed below, the court’s scrutiny of conservators’ conduct and, specifically, private fiduciaries, is seemingly on the rise. Private fiduciaries acting as conservators should always remain focused on performing and charging only for those services that are consistent with the best interests of their conservatees. California case law continues to refine that understanding.

In the recent case of the Conservatorship of Presha, the Court analyzed one professional fiduciary’s fee request of $12,621.60. If any of you thought that a relatively low amount of a fee request could help avoid intense court scrutiny, think again. The court in Presha went to great lengths to shave off just over $5,000 from the fiduciary’s request, ultimately landing at $700 per month – a somewhat arbitrary “reasonable” number – for a total of $7,000 in approved fees.

By way of background and as many already know, private professional fiduciaries are entitled to “just and reasonable” fees for the services they provide for a conservatee. Either the services must actually benefit the conservatee or the fiduciary must have a good faith and objectively reasonable belief that they will benefit the conservatee. Fees are usually paid from the conservatorship estate only after court approval under the Probate Code. As a general guideline, the California Rules of Court Rule 7.756 sets forth the factors that the court will consider in determining what is “just and reasonable” compensation:

(1)The size and nature of the conservatee’s or ward’s estate;

(2)The benefit to the conservatee or ward, or his or her estate, of the conservator’s or guardian’s services;

(3)The necessity for the services performed;

(4)The conservatee’s or ward’s anticipated future needs and income;

(5)The time spent by the conservator or guardian in the performance of services;

(6)Whether the services performed were routine or required more than ordinary skill or judgment;

(7)Any unusual skill, expertise, or experience brought to the performance of services;

(8)The conservator’s or guardian’s estimate of the value of the services performed; and

(9)The compensation customarily allowed by the court in the community where the court is located for the management of conservatorships or guardianships of similar size and complexity.

In the case of the Conservatorship of Presha, Christine Davidson was the court-appointed conservator of the person and estate of Lorraine Presha from 2009 to 2015. Ms. Presha died in March 2015. In June 2015, Ms. Davidson filed a combined petition for approval of the sixth and final accounting and for conservator’s fees in the amount of $12,621.60. The court took issue with many of Ms. Davidson’s billing entries and was concerned about the duplication of entries and charging different clients for the same actions. That concern ultimately led the Court to, on its own, investigating into 15 other concluded matters in which Ms. Davidson had sought fees, essentially to evaluate the extent of her double billing and other inappropriate billing practices.

During one of the hearings, the court gave one example of a questionable entry that read: “Received, reviewed, and filed. Notice of changes from Security Bank, re in form of changes in bank fees, terms, and effective date.” In response, the court commented:

“the Court doesn’t want to be petty or feel petty, but we all get that little slip of paper once in a while from the bank that says, ‘We have exciting new changes to the terms of your account.’ And then you look at it and what they have done is increased the punishment for a bounced check from $20 to $22. We all glance at those papers and we throw them away. Why this estate has to pay $12 for glancing at that and throwing it away is a big question.”

During the same hearing, the court went on to question:
  • Why fees were being charged for confirming that a bank statement went to the correct mailing address when it was clear Ms. Davidson received the bank statement herself;
  • Why Ms. Davidson charged for meeting with a financial advisor to discuss how laws related to the “Affordable Care Act” taxes would affect her clients and whether the charge appears in 30 or a 100 clients’ billings.
  • Whether Davidson’s charge for 24 minutes to take a check to the bank was legitimately billed – “Is that the only check she took to the bank? Or did she take a hundred checks from a hundred clients? In which case, it was four hours billed if you add them all up, and did it take four hours to go to the bank. Or did she do the foolishness of taking this [one] check.”
In the court’s examination of 15 other matters in which Ms. Davidson provided services, the court notes further questionable billing practices. For example, the court found that on one particular day, eight disabled clients in eight separate cases were each billed two-tenths of an hour for receiving telephone calls from the bank – Was this all billing for the same phone call? The court also pointed to a similar example where eight clients were billed for a total of 3.6 hours of meeting with a bank manager on the same day. The list went on.

Despite Ms. Davidson’s arguments to the contrary, on appeal, the court found that the trial court’s scrutiny, in particular, the investigation into 15 other matters, was proper. It held that because Ms. Presha’s estate was being potentially abused by an agent of the probate court (Ms. Davidson), it was precisely the type of case where it could invoke its broad powers under the Probate Code to regulate and control the discharge of Ms. Davidson’s duties. The appellate court affirmed that the trial court had the ability to investigate the propriety of the conservator’s billing practices and affirmed the judgment for reduced fees in the amount of $7,000.

The case is certainly a cautionary tale for private fiduciaries and worth a read for those who want to see more of the specific types of questionable practices that concerned one judge enough to investigate further. It may be prudent to re-evaluate one’s billing and filing practices to ensure that duplicative billing practices are avoided and that the best interests of conservatees is always in mind while performing and billing for services.

Full Article & Source:
A Case Lesson In “What Not To Do” When Billing As A Conservator

Thursday, May 2, 2019

TONIGHT ON MARTI OAKLEY'S TS RADIO NETWORK, with co-host Coz Whitten Skaife: Unfit to serve as guardian? Pennsylvania will hire you!

8:00 pm EST:     The situation for elderly individuals in Pennsylvania in the Orphan's court has reached critical mass. As more victim's of this corrupt system come forward, the state's concern is not the victims, but rather, finding more predators to handle the cases they have decided would be profitable. While claiming that the problems are a result of too few guardians, no one mentions the fact that the real problem is that most of these people simply need some minor help and do not need guardianship at all.

One elderly individual is worth a fortune in this system. The guardians, attorney's, judges, medical providers, nursing homes, social services agencies are all using the victim as an cash ATM. With little to no accounting, no back ground checks, no monitoring of the guardian and attorney's activity's, the financial exploitation and physical and psychological abuse of the victim proceeds unimpeded.

This is a bird's eye view of the capturing of an elderly individual and how that individual is monetized, bought, sold, traded and exploited by the very people and system that supposedly exists to help and protect them.

LISTEN LIVE or listen to the archive later

Former court-appointed Philly guardian charged with stealing from three families

JOSE F. MORENO / Staff Photographer
The Philadelphia District Attorney’s Office on Tuesday announced that a former Orphans’ Court guardian had been arrested and charged with stealing money, family heirlooms, gold coins, and other valuables from three estates in her capacity as a court-appointed guardian for the elderly.

Gloria Frances Byars, 58, of Aldan, Delaware County, was charged with multiple felony counts of theft, including for allegedly stealing from a Fox Chase couple, Edmund and Margareta Berg, for whom Byars had been appointed guardian in December 2016.

The Bergs’ experience with Byars was the focus of a March 2018 Inquirer article that highlighted a lack of state requirements, including criminal background checks, for guardians who manage the affairs of people deemed incapacitated.

Byars, whose former Global Guardian Services was located in Lansdowne, is also charged over her handling of two other estates.

“Gloria Frances Byars’ actions are despicable, and what she did to these three elderly families as their court-appointed guardian is deplorable,” Philadelphia District Attorney Larry Krasner said in a statement Tuesday. “I would like to thank the good work of my office’s Economic Crimes Unit, the county detectives supporting them, and want to make it clear to everyone that their investigation into this defendant is far from over.”

Byars was arrested at her home Thursday and released on her own recognizance the next morning. No attorney was listed for her on her court dockets; she has a hearing in the Stout Center for Criminal Justice on Friday.

Byars could not be reached. A woman who answered the cellphone number she used last year hung up Tuesday when called by The Inquirer.

Guardians are appointed by judges to help arrange care for people who are deemed incapable of taking care of themselves or their finances. As a fiduciary, Byars was supposed to act in her clients’ best interests.

But questions about her financial management led judges in Philadelphia and Montgomery and Delaware Counties to remove her as guardian from about 100 cases since 2017.

Gloria Byars in a police mug shot when she was arrested in Virginia in 2003.
Suffolk (Va.) Police Department
Gloria Byars in a police mug shot when she was arrested in Virginia in 2003. 
In Philadelphia, the Bergs’ niece, Heidi Austin, and her father, Josef Wituschek, who is Margareta Berg’s brother, grew suspicious of Byars and hired attorney Daniel McElhatton after Byars moved the Bergs from their Fox Chase home, then sought court approval to sell the house.

McElhatton brought Byars’ past convictions on fraud, bad checks, and forgery to Orphans’ Court Judge John Herron’s attention. He asked the judge to remove Byars as the Bergs’ guardian and to deny her request to sell the Bergs’ house. The judge granted both requests.

On Tuesday, McElhatton said of Byars’ arrest: “I am gratified that the criminal-justice system has caught up with her, and that she is going to be held to account as she should.”
Heidi Austin, with her father, Josef Wituschek, displayed a photo of Gloria Byars from Byars’ Facebook page during a 2017 interview with The Inquirer.
MARK C. PSORAS / For The Inquirer
Heidi Austin, with her father, Josef Wituschek, displayed a photo of Gloria Byars from Byars’ Facebook page during a 2017 interview with The Inquirer.
Herron last year referred the Bergs’ case and that of the estate of Estelle Segal to the District Attorney’s Offices in Philadelphia and Delaware County for review. The Montgomery County office is also investigating Byars.

In the city, the Philadelphia Corp. for Aging had recommended Byars for many of her guardianships.

Philadelphia prosecutors did not specifically identify Byars’ alleged victims, but The Inquirer had previously spoken to family members in each case.

In the Bergs’ case, the District Attorney’s Office found that items in their Fox Chase home disappeared after Byars moved the couple to a nursing home. Those items included a grandfather clock, a large collection of German steins, expensive jewelry, and heirlooms. Austin had previously told The Inquirer that the items were missing after Byars used her husband’s clean-out business to empty the Bergs’ house.

The District Attorney’s Office said its investigation also found multiple instances of Byars’ routing funds from the couple’s estate into accounts linked to Byars. This included $10,250 in checks, endorsed by Byars and made out to a woman named Asia Jones, who was supposedly a home-health-care worker. After being contacted, the District Attorney’s Office said, Jones said she was not employed as a home-health-care worker and did not sign the checks.

The alleged misspending also included $4,600 for a roof repair that was not needed or made and $11,000 that Byars paid to her husband’s business, DEPCO LLC, for cleaning out the Bergs’ home. (Byars has since reimbursed the Bergs the $11,000.)

With regard to Segal’s estate, the District Attorney’s Office said an investigation found that Byars failed to account for more than $104,000 in missing funds and losses to her estate. Segal, who lived in Northeast Philadelphia, died in February 2018 in a Bucks County nursing home.

Herron, in a September decree, had ordered Byars to reimburse Segal’s estate $52,161, including $35,405 in unaccounted-for expenditures. Last May, he had ordered Byars to pay $63,079 to the Bergs, including about $34,000 for improper expenditures. She has not paid those amounts to either of the estates.

Last summer, Byars and her husband, Leon DeShields, renewed their vows at a "fantasy wedding” that cost $39,000, the District Attorney’s Office said.

In the third case, the District Attorney’s Office said Byars billed the estate of a woman more than $30,000 payable to a company that doesn’t appear to exist. And the investigation found that 26 gold Krugerrand coins, valued at about $32,000, were missing from the woman’s safe deposit box and that Byars was the only one with access to the coins, the office said.

The woman’s niece, Lillian Viglianese, previously spoke to The Inquirer about the alleged thefts from her aunt Theresa Rzemieniewski. Her aunt, who lived in Port Richmond, died at a Philadelphia nursing home in January 2017 at age 79, the niece said.

After Byars’ past criminal convictions were brought to Orphans’ Court’s attention in 2017, guardians in Philadelphia were required to affirm that they were not convicted of any crime involving fraud, deceit, or financial misconduct. Also, state criminal history reports were required.

The requirements mirrored recommendations proposed by the Pennsylvania Supreme Court’s Orphans’ Court Procedural Rules Committee. Last year, the justices approved new statewide rules requiring criminal background checks, which take effect this June.

Full Article & Source:
Former court-appointed Philly guardian charged with stealing from three families

Nursing Home Blames Incapacitated Sexual Assault Victim

HOUSTON, May 1, 2019 /PRNewswire-PRWeb/ -- Brown, Christie & Green, a Houston medical malpractice law firm, has filed a lawsuit on behalf of the heirs of Ms. Rosa Woodard. The Original Petition was filed in the District Court of Harris County, Texas, Cause No. 2018-90891. The plaintiffs are Byron K. Woodard and Rondia Crenshaw. The defendants are Willowbrook SNF and Willowbrook Residence and Rehabilitation Center.

The lawsuit was filed in response to an alleged sexual assault that occurred while Ms. Woodard was a resident at Willowbrook Residence and Rehabilitation Center in March 2018. According to the plaintiffs, Ms. Woodard was allegedly sexually assaulted by a male resident. The lawsuit alleges that a male resident was found in Ms. Woodard's room undressed from the waist down. The male resident was allegedly forcefully engaging in oral sex with Ms. Woodard.

The plaintiffs allege that Willowbrook was negligent in protecting residents, which resulted in the alleged sexual assault of Ms. Woodard. Records indicate that due to her having Stage IV Parkinson's Disease and Dementia, that Ms. Woodard was not capable of consenting to sexual activity.

"The law acknowledges that nursing home residents have the right to live free of sexual abuse. Ms. Woodard's family brought suit to hold Willowbrook accountable for allegedly violating Ms. Woodard's rights," said the family's nursing home abuse attorney Charles Brown.

In addition to the alleged sexual assault, the plaintiff's claim that Willowbrook leadership and staff made a series of errors in how they managed the alleged assault. It is alleged that Willowbrook staff did not take appropriate measures to contact authorities, get medical treatment for Ms. Woodard, preserve evidence, or notify her family. The Department of Health and Human Services has conducted a thorough investigation into these claims, and it is their opinion that some errors were made.

Willowbrook has responded to the Original Petition by denying that they violated the standards of care. The defendant's Affirmative Defense states that the alleged injuries sustained by 65-year-old Ms. Woodard, if any, were the result of her "own acts or omissions."

The alleged assailant is not named in the lawsuit, but is facing criminal charges. He is due to appear in court on July 26, 2019.

Plaintiff's Family Hopes for Justice

Ms. Woodard's son and daughter are now looking to the District Court to review the allegations made against Willowbrook. If the court finds that the standards of care were, in fact, violated, the plaintiffs hope that the court will hold Willowbrook accountable for any such failures and the harm that their mother allegedly endured.

Ms. Woodard's daughter stated, "I placed my mother in Willowbrook believing that she would get the utmost care, attention, and safety. Instead, my mother suffered. I will not rest until the facility is held accountable."

About Charles Brown - Brown, Christie & Green

Attorney Charles Brown is the Managing Partner at Brown, Christie & Green law firm located in Houston, Texas. Brown, Christie & Green is the largest plaintiff's medical malpractice firm in Texas. Charles is a top-rated trial lawyer, and has consistently been honored and awarded for his work advocating for his clients. Brown, Christie & Green focuses on medical malpractice and nursing home abuse cases. The primary office is located at 712 Main St., Suite 800, Houston, TX 77002. For more information, please visit, or call (800) 600-4210.

Full Article & Source:
Nursing Home Blames Incapacitated Sexual Assault Victim

50 Palm Beach County nursing homes don't have generators as hurricane season approaches

Residents sought shelter from Hurricane Irma with their pets at the West Boynton Park and Recreation Center. (Sun-Sentinel file)
by Lois K. Solomon - Contact Reporter - South Florida Sun Sentinel

Fifty Palm Beach County nursing homes still lack generator backup if a hurricane zaps their electricity, county emergency managers said Tuesday.

The state Legislature passed a law last year requiring nursing homes to have generators and fuel to power air conditioning in the event of a major power outage. The law came after 12 residents of a Hollywood nursing home died following Hurricane Irma in 2017. The hurricane knocked out the facility’s air-conditioning system, creating sweltering conditions.

In Palm Beach County, 50 of 250 nursing homes in the county lack a generator for power outages, emergency management officials said Tuesday.

County commissioners expressed concern about the nursing homes’ preparedness when disaster strikes.

“They’re not going to be ready and it will fall to the county and municipalities” to figure out how to evacuate the frail seniors who could suffer when the power goes out, Commissioner Gregg Weiss said.

Still, Palm Beach County’s 20 percent variance rate is better than the Florida average. Across the state, 40 percent of nursing homes have asked for more time to comply with the new law.

Hurricane season begins June 1 and ends Nov. 30. Although 2018 was an above average year with 15 named storms, 2019 is forecast to be an average year, with 13, including two intense storms with winds over 111 mph. Predictions change over the course of the season.

Palm Beach County managers said they were concerned about residents’ nonchalance to hurricanes and other potential calamities. A 2015 study showed that 60 percent of Americans have not prepared for a disaster, even though 80 percent live in areas that have been hit with weather-related menaces such as hurricanes. Palm Beach County’s emergency managers said they believe the same numbers apply in southeast Florida.

Hurricane Irma in 2017 proved a turning point for several Florida counties that realized they were unprepared for realities such as nursing home power failures and large numbers of evacuating residents with medical needs.

In Palm Beach County, emergency managers said they have since added several amenities to their 15 shelters to make them more comfortable and secure, including two-way radios, televisions, translators and wrist bands to identify who’s registered to spend the night. Each is also set to have the support of nurses, paramedics and mental health workers.

Palm Beach County will have 506 employees at its shelters, which are mostly schools.

Broward is still struggling with staffing its shelters. The county had 431 workers for 27 shelters during Irma, but emergency managers said the county would need more than a thousand workers if it opened all its 33 shelters. It’s hundreds short.

With the start of hurricane season a few weeks away, Broward still doesn’t have a plan in place. It’s asking for help from cities and the school district to cobble together enough people to have on call for the shelters.

Palm Beach County emergency managers emphasized they are not only preparing for hurricanes. They also train for active shooters, agricultural pests and diseases, fires, nuclear emergencies and Lake Okeechobee dike breaks.

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50 Palm Beach County nursing homes don't have generators as hurricane season approaches

Wednesday, May 1, 2019

Nursing home lobbyists write bills to restrict inspections, lawsuits against owners

Wanda Delaplane, former Kentucky assistant attorney general, recounts the story of how she lost her father to nursing home neglect in 2006 and how she now advocates for safety in nursing homes.

Lobbyists for Kentucky’s nursing home industry have helped write two bills so far in the 2019 General Assembly that would place new restrictions on state inspections of nursing homes and on wrongful death and personal injury lawsuits filed against owners of the facilities.

House Bill 210, filed by House Majority Leader John “Bam” Carney, would require inspectors with the Kentucky Cabinet for Health and Family Services to let nursing home management attend their interviews with employees during inspections. Inspectors also would have to sign a newly crafted confidentiality agreement barring them — at risk of losing their jobs — from revealing information to anyone outside of the cabinet about what they witnessed during nursing home inspections.

The cabinet is reviewing Carney’s bill and is not ready to comment on it, spokesman Doug Hogan said Monday. But a national expert on nursing home regulation said the bill “raises red flags.”

Inspectors get valuable information from talking privately to employees who are willing to reveal problems like under-staffing and patient neglect, which is unlikely to happen if their boss is in the room, said Toby Edelman, senior policy attorney for the Center for Medicare Advocacy in Washington.

And inspectors sometimes feel obligated to publicly blow the whistle on serious issues they see at nursing homes that aren’t being addressed by their regulatory agencies, an act that would violate the confidentiality agreement, Edelman said.

For example, in 2016, former Kentucky nursing home inspector Tony Cisney filed a whistle-blower lawsuit against the cabinet in Jefferson Circuit Court, alleging that his superiors ordered him to soften his enforcement of health and safety violations at several facilities. Cisney’s case went to trial last fall, but he backed out of a settlement deal with the cabinet.

“To me, this bill sounds like it’s trying to restrict what the surveyors can do in uncovering problems at facilities,” Edelman said. “How is that an improvement? It’s hard enough to be a surveyor as it is. They work nights and weekends, they have to travel all over the place, the pay isn’t very good, and frankly, there is political pressure brought to bear on them by the facility owners and their friends.”

The cabinet presently permits nursing home managers to attend inspectors’ interviews with employees, but that is meant to be an “occasional” exception only allowed for employees who suffer from “extreme anxiety,” according to a cabinet newsletter sent last November to Kentucky nursing homes. And that policy is being abused by some supervisors, the cabinet warned.

“We are often told in confidence that management has required staff to ask for them to be present during interviews with surveyors, sometimes at risk of losing their jobs if they don’t comply,” wrote Sandra Houchen, director of the cabinet’s Division of Health Care, in the newsletter. “It should be noted that trying to obstruct the ability of survey staff to conduct private interviews as required by the survey process could be considered as impeding the survey process.”

Rep. John “Bam” Carney
In an interview Monday, Carney said the language in question in his bill was crafted for him by the Kentucky Association of Health Care Facilities, the state’s nursing home lobbying group and one of Frankfort’s larger campaign donors.

The Kentucky Association of Health Care Facilities announced in its 2017 annual report that its members raised more than $170,000 in political donations for state Senate and House races, and it “successfully fought to oppose all legislation that negatively affected long-term care,” including a bill that would have cracked down on bedsores.

Carney, R-Campbellsville, said his bill originally was meant to have a much narrower focus. He wanted to allow nursing home residents diagnosed with dementia or Alzheimer’s the right to refuse an interview with state inspectors unless they could be joined by their legal representatives who held either power of attorney or health care surrogacy. That section remains in the final bill.

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Nursing home lobbyists write bills to restrict inspections, lawsuits against owners

Manhasset attorney pleads guilty to stealing $230K

Alfred DiGirolomo pleaded guilty

A Manhasset attorney pleaded guilty Thursday to stealing $230,000 from a client, authorities said.

Alfred DiGirolomo pleaded guilty to second-degree grand larceny, according to Nassau County District Attorney Madeline Singas.

Authorities say that DiGirolomo’s client, a restaurateur, gave him that money to fund several lawsuits. But DiGirolomo spent the money instead to pay for expenses related to credit cards, utilities, gasoline, automobiles, insurance, department stores, a civic association, a figure skating club, a cigar club, and a country club, the district attorney’s office said. None of these expenses were connected to his client.

DiGirolomo, who has already paid $99,479 in restitution, will be automatically disbarred, according to the DA’s office.

He is due back in court June 4. He is expected to be sentenced to 30 days to six months in prison if he pays the remaining restitution of approximately $131,000, or one to three years in prison if he does not pay restitution, officials said.

“This defendant used his client’s money to fund a luxurious lifestyle that included cars, country club membership and a cigar club,” Singas said in a statement about the plea.

From Jan. 1, 2014, to May 5, 2016, DiGirolomo represented the restaurateur client in three different lawsuits. To fund the settlements from the lawsuits, the client paid DiGirolomo $229,990, authorities said. Instead of sending the money to the appropriate parties, DiGirolomo kept the money for himself. He sent forged documents to his client that indicated that the lawsuits were resolved, when they were not.

After hiring a new attorney, the restaurateur discovered that none of the documents related to the settlements were filed with the court. The client then contacted district attorney’s office and a case was opened in January 2017.

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Manhasset attorney pleads guilty to stealing $230K

Sandra Day O'Connor And Alzheimer's: A Personal Story

By Richard Harris, Next Avenue Contributor

Alzheimer’s disease doesn’t discriminate. No matter your fame, no matter how deep your pockets, it slowly, but methodically ravages minds. It's an unwelcome visitor. Few understand this more than the family of retired Supreme Court Justice Sandra Day O’Connor, the first woman to sit on the court.

During O’Connor’s life, she has become all too familiar with the disease. By last October, when publicly revealing her diagnosis of "dementia, probably Alzheimer's" (those were the doctor's words), the disease had already taken her mother, aunt and husband.

Her youngest son, Jay, a tech executive in San Francisco, spoke with me about how his mother provided Alzheimer's caregiving for his father John while she was on the Supreme Court and how that led her to retire at 75, in 2006. He also talked about how his mother, now 88, is living with her own diagnosis. He and his brothers also provided recollections in the O’Connor biography out today, First, by Evan Thomas.

In these conversations, an intimate picture emerges of one of the country’s most powerful women navigating work/life balance on a grand scale — the twin pressures of a husband progressively losing cognitive function while she carries out her unique responsibilities as one of nine justices on the Supreme Court.

The job and family circumstances may differ, but similar scenes are playing out privately in millions of homes across America.

How Sandra Day O'Connor Disclosed Her Dementia Diagnosis

O’Connor disclosed her diagnosis last October in an open letter to friends and her fellow Americans years after she got the news. She wrote: “Some time ago, doctors diagnosed me with the beginning stages of dementia, probably Alzheimer’s disease. As this condition has progressed, I am no longer able to participate in public life.”

For her family, it was never a question of whether to go public. “We knew at some point it would become known that she was suffering from dementia and it seemed like a good idea to get ahead of this so some good can come out of this,” Jay O’Connor told me.

What O’Connor chose not to reference in her letter were her years as an Alzheimer’s caregiver for her beloved husband, where she had a front row seat to a progressive disease with no cure. O'Connor told Thomas that her decision to retire from the Supreme Court, largely to focus on her husband’s needs, was "the biggest mistake, the dumbest thing I ever did."

O'Connor and the National Alzheimer's Report

The unforgiving demands of caring for a husband who diminishes by the day would inform O’Connor’s service as honorary chair of the Alzheimer’s Drug Discovery Foundation and on the Alzheimer’s Study Group (ASG), the 2009 nonpartisan panel that developed a national plan to combat what the report said “poses a grave and growing challenge to our nation.”

The day that report was released, 10 years ago this month, O’Connor issued this warning in Congressional testimony: “Our study shows that in the next 20 years, the numbers of people with Alzheimer’s will increase more than 50%. And without some basic action in this country, ultimately one in two people over 80 are going to have this disease. That’s too many.”

What she couldn’t have known as she spoke those words was that she would soon be among those statistics.

Caregiver for Husband John O'Connor With Alzheimer's

For John O’Connor, a partner at a prestigious Washington, D.C. law firm, the early signs of memory loss didn’t escape the people who saw him every day.

“Linda Neary, his secretary, began wondering why he was asking her to copy the same documents twice, “ Thomas writes. And by 2000, Thomas reports, O’Connor went to Georgetown Hospital to see a neurologist, without telling his wife, and got the official word that he had Alzheimer’s.”

As O’Connor’s condition worsened over the next few years, Thomas writes, his neurologist told his wife that her husband was “having trouble writing down his thoughts. He can’t remember his words.”

The O’Connors then sold their home and moved to a condominium “so someone would be at the front desk,” Jay O’Connor told me, “to look out for my dad and make sure if he starts to wander out of the building, they could grab him.”

During certain hours of the day when his father wasn’t in his care program, Jay said, his mom would bring him to her spacious chambers at the Supreme Court.

“He would come and sit in her big office,” Jay explained. “She had a couch. She would do her work and he just sat there and looked through the newspaper. If he did wander off, it would be harmless, because there always would be a guard nearby.”

Leaving the Supreme Court

For Justice O’Connor, there were two tipping points in her husband’s Alzheimer’s journey.

The first came when she concluded she could no longer stay on the court. It was both a huge personal decision and, as the decisive fifth vote on the high court in controversial decisions, O’Connor was mindful of the ramifications for the country.

But it was a decision O’Connor felt she owed her husband. Thomas writes that she had told a friend, “John gave up his position in Phoenix to come with me [to Washington] so now I am giving up my job to take care of him.”

But in the months following her announced intention to step down, there was, in Jay’s words, “a strange turn of events.” Chief Justice William Rehnquist died, John Roberts was confirmed as his successor and Harriet Miers, nominated to be O’Connor’s successor, withdrew after some controversy. That would keep O’Connor on the court for another seven months until the following February when her eventual successor, Samuel Alito, was sworn in.

Thomas writes: "It was tragic because within six months of her leaving the court, he could barely recognize her."

The Second Tipping Point

But sadly, with her husband’s condition deteriorating, it would be only months later that the newly retired justice would have to make the most wrenching decision of all, which was the second tipping point.

Every Alzheimer’s family has a moment when the spouse or children can no longer adequately care for the person with the disease. For Justice O’Connor, that moment came after she and her husband took a cruise off Turkey that Jay’s older brother, Scott, told Thomas was “a disaster,” adding, “they were afraid dad would jump overboard.”

The newly retired Justice had long resisted moving her husband to a special facility. But when she got back to Washington, according to the Thomas book, Scott said she cried and told him, “I’m ready. Show me what you’ve researched.” The O’Connors moved John O’Connor to his new home, an Alzheimer’s care facility in Phoenix.

While there, he formed an attachment to another woman. The newly retired Justice O'Connor, Thomas writes, "would come in and find her husband holding hands with this other woman, and with her characteristic strength she would sit down and take her husband's other hand."

Justice O'Connor on Being an Alzheimer's Caregiver

Just months before John O’Connor died in 2009, Justice O’Connor appeared on an NPR call-in program. It was the day the Alzheimer’s Study Group report came out. There, she spoke candidly about the caregiving challenges of having a spouse with Alzheimer’s.

“Someone who is truly afflicted with Alzheimer’s needs somebody with them all the time. There are occasionally gaps as long as an hour after my husband was brought home from a day care facility for people with Alzheimer’s before I could get home. And during that hour, he started wandering,” she said. “And that was frightening for me and I’m sure for him, too, when he realized he didn’t know where he belonged or how to get back. It’s like caring for a small child. You can’t leave them unattended.”

In his book, Thomas traces a series of public moments for Justice O’Connor — her forgetfulness or odd behavior — that, looking back could have been a roadmap to her eventual dementia diagnosis.

Early Signs of O'Connor's Dementia

Perhaps the most telling was from September, 2013 when she was due to give a lecture at the University of Colorado Law School. Backstage, O’Connor turned to her friend and asked, “What am I speaking about?” Then she asked two friends to join her onstage and, Thomas writes, “they prompted her through a labored conversation.” One of her friends said, She knew what was happening, but she was not ready to confront the reality.’”

Sandra Day O’Connor grew up on the Lazy B cattle ranch in Arizona, knowing there were no sure bets in life. Prolonged drought meant dead cattle and fears of selling off the ranch. Later, while on the Supreme Court, O’Connor was successfully treated for breast cancer. And during her life, she has watched some of the people closest to her — her mother, aunt and her husband — transformed into shells by Alzheimer’s. Now, this most unwelcome visitor has her in its grip.

Jay O’Connor understands that short of a miraculous treatment or cure, there is no way out.

“It's this dreaded disease that she helped my dad through all these years, watched it just completely destroy him. And now she's got the exact same diagnosis,” he told me.

How O'Connor Responded to Her Diagnosis

At first, Jay says, his mother didn’t want to believe it — her worst fear — given a family history of dementia. So, for a number of years, he adds, “she just tried to power through. She’s a woman who has been able to overcome so many powerful obstacles in her life and career. And it turns out that dementia and Alzheimer's is just the obstacle you can't overcome.”

These days, Jay O’Connor and his brothers, like others with a family history of Alzheimer’s, wait and wonder if they, too, will be visited by the unwelcome guest or be spared.

“Our hope is that we won’t be afflicted with the condition ourselves, but our greater hope is that a cure is found for Alzheimer’s so nobody has to experience it,” says Jay. “You know, life goes on, so you just need to plow ahead.”

Full Article & Source:
Sandra Day O'Connor And Alzheimer's: A Personal Story

Tuesday, April 30, 2019

Caregiver Sentenced to Prison for Defrauding Client of $100K

Department of Justice
U.S. Attorney’s Office
Eastern District of Virginia

Friday, April 26, 2019

Caregiver Sentenced to Prison for Defrauding Client of $100K

NEWPORT NEWS, Va. – A Hayes woman was sentenced today to more than five years in prison for stealing approximately $100,000 from a disabled woman for whom she provided caregiving services.

“The financial and emotional harm these deceitful and illegal acts can cause victims and their family members cannot be overstated,” said G. Zachary Terwilliger, U.S. Attorney for the Eastern District of Virginia. “Denton is a serial fraudster who in this case defrauded and victimized a particularly vulnerable woman who had entrusted Denton with providing care to her and her son, who also suffers from certain disabilities. Denton abused and violated that position of trust and stole nearly $100,000 from the victim. We will continue to work with our federal, state and local law enforcement partners to make sure we are protecting those in our communities who are most vulnerable.”

According to court documents, Amy Denton, 43, worked as a caregiver for a Gloucester woman who suffered from various medical issues and limitations. In early 2015, her client’s mother passed away, leaving her a number of life insurance policies. In her role as caregiver, Denton obtained notices of the policies, but then forged her client’s signature on various forms to request the life insurance funds. Denton caused the victim to complete a Virginia Durable Power of Attorney Form (POA) that gave Denton access and control over her client’s finances. The woman signed this form without knowing the authority it provided Denton over her finances.

“Fraud and betrayal by a trusted caregiver is a shameful crime,” said Martin Culbreth, Special Agent in Charge of the FBI’s Norfolk Field Office. “The price of this defendant’s greed is the financial security of the victim and her son. The FBI will continue to hold accountable anyone who preys on the vulnerabilities of others.”

Denton used the POA to open bank accounts and add herself to her client’s existing bank account. In May 2015, Denton fraudulently obtained five life insurance checks in the total amount of approximately $100,000, and then routed these funds through bank accounts she controlled. She used the funds to purchase a vehicle, pay off court costs related to a prior state fraud conviction, and for other travel and entertainment expenses. Once the life insurance proceeds were spent, in November 2015, Denton attempted to obtain an additional $40,000 in assets that were held by a law firm and would have accrued to her client. In May 2016, the victim learned that her bank account lacked sufficient funds to pay various bills, and had a seizure at the bank and additional seizures thereafter that required hospitalization.

G. Zachary Terwilliger, U.S. Attorney for the Eastern District of Virginia, Martin Culbreth, Special Agent in Charge of the FBI’s Norfolk Field Office, and Darrell W. Warren, Jr., Gloucester County Sheriff, made the announcement after sentencing by U.S. District Judge Arenda Wright Allen. Assistant U.S. Attorney Brian J. Samuels prosecuted the case.

A copy of this press release is located on the website of the U.S. Attorney’s Office for the Eastern District of Virginia. Related court documents and information are located on the website of the District Court for the Eastern District of Virginia or on PACER by searching for Case No. 4:18-cr-70.

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Caregiver Sentenced to Prison for Defrauding Client of $100K

After 5 years in a nursing home, a Buffalo woman moves out

Janine Ziomek-Witek welcomes a visitor into her new apartment in Stovroff Towers at the Weinberg Campus in Amherst earlier this month. She spent five years in poorly rated Buffalo nursing homes after her lower right leg was amputated. On April 1 she was discharged from Buffalo Community Healthcare Center, formerly called Emerald North nursing home, after persuading officials she could live on her own. (James P. McCoy/Buffalo News)

What was supposed to be a three-week stay for rehabilitation at a Buffalo nursing home turned into five long years for Janine Ziomek-Witek.

Her lower right leg had been amputated in 2014. She wanted to return home to her husband following the therapy. But questions were raised about her ability to live on her own, she said, so she remained at the troubled Emerald South Nursing and Rehabilitation Center.

“In some ways I felt like a prisoner. I was told I had to meet requirements medically before I could get out. I disagreed, but there was nothing I could do about it,” Ziomek-Witek said.

On April 1, after convincing nursing home officials she could live on her own, the 53-year-old Buffalo woman was finally moved into an Amherst apartment, giving her a reason to celebrate.

Ziomek-Witek, who uses a wheelchair to get around, is not alone.

The state and federal governments fund a program known as Open Doors that helps nursing home residents make their way back to independent living. More than 200 people in this region have been able to leave nursing homes as a result in the last three years, according to Gerilyn Capps, the Open Doors program coordinator at Western NY Independent Living.

“A lot of people are prematurely placed in nursing homes when they can live in the community with community-based services that can meet them at their level of care,” Capps said. “We get referrals daily from people who want to leave the nursing home and return to the community.”

There’s another reason for Open Doors. It saves taxpayers’ money.

Federal, state and county governments spend billions of dollars through the jointly funded Medicaid program to pay the bills of most nursing home residents after they use up other forms of insurance and private resources.

Ziomek-Witek's stay at the troubled Emerald South, where a woman was beaten to death and a man fell to his death trying to escape in recent years, had cost taxpayers hundreds of thousands of dollars. When the home closed in January following its sale, the state reimbursement rate for its residents on Medicaid was $212 per day.

At her two-room apartment, the monthly rent is $599 or about $20 a day. Ziomek-Witek’s apartment is part of a Medicaid-supported managed long-term care program at Stovroff Towers on the Weinberg Campus in Amherst.

Although Open Doors was not involved in Ziomek-Witek's departure from a nursing home, Capps said the program is saving the state hundreds of thousands of dollars a year by helping others leave nursing homes.

Emerald South nursing home resident Janine Ziomek-Witek, in wheelchair, attends a rally by workers outside the nursing home to protest unsafe conditions there on June 28, 2018. A resident at Emerald South fell to his death on June 4 and another was previously beaten to death. (Sharon Cantillon/Buffalo News file photo)

Life fell apart

Ziomek-Witek and her husband of more than two decades had lived in an apartment in Kaisertown for years before she was taken to the hospital with an infection in her right leg. The infection spread to her blood.

“I was told that if I didn’t have the emergency amputation I was going to croak,” Ziomek-Witek said.

Soon after the June 28, 2014, surgery, she was transferred to Emerald South for therapy. Because a previous surgery on her left knee had not healed correctly, she said she was unable to make use of a prosthetic for her right leg.

“That’s why I’m in a wheelchair,” she said.

But even so, Ziomek-Witek said she believed she could navigate life back home.

“They did medical assessments and said I couldn’t leave,” she said. “I went from a short-term resident to a long-term resident in September 2014.”

And so began her battle.

“I joined the resident council and became president and was trying to work through the council to get out, but that went nowhere,” she said.

Michael Witek, her husband, continued to reside at their Cable Street residence and took Metro buses several times a week to visit Ziomek-Witek. But by the second year at Emerald South, the federal Supplemental Security Income checks they were using to pay rent on their  apartment halted.

Michael Witek said he ended up homeless for a short period, before a relative opened his home to him.

“When I was at the nursing home, I was complaining that the staff wasn’t taking care of Janine. I wanted her out. I wanted to take care of her, but I didn’t have a place,” Michael Witek said.

His wife couldn't just leave the nursing home. She had no place to go.

Janine Ziomek-Witek and husband Michael Witek, in her room at Emerald South on Sept. 11, 2018. She entered the nursing home for rehab after her lower right leg was amputated in 2014 and ended up staying there for five years. (Robert Kirkham/Buffalo News)

After deaths, nursing home closes

In 2016, Ruth Murray, an 82-year-old resident in Emerald South’s dementia unit, was beaten to death by another unit resident after she mistakenly wandered into his room. Last June, William Strasner, 87, also a dementia unit resident, fell from his third-floor window in an attempt to escape.

The state Department of Health issued fines of $10,000 in connection with each death. The federal government designated the 122-bed Emerald South a “special focus facility” because of the unsafe conditions.

Grand Healthcare System of New York City purchased the operations for Emerald South and the nearby Emerald North Nursing and Rehabilitation Center last fall and soon announced it would close Emerald South.

With Emerald South's 64 residents being transferred to other facilities, Ziomek-Witek says she started pushing hard to be released. It worked. She credits Dawn LaMagna, a regional nurse for Grand Healthcare, with taking up her cause.

“Basically, there was a rush to get people out the door at Emerald South. Things were going full tilt. Dawn arranged for me to have an assessment and it was determined I could be released,” Ziomek-Witek said.

But first she would have to spend a few months at Emerald North, where she received physical therapy to strengthen her arm muscles.

Jay Lawrence, a spokesman for Grand Healthcare, said he could not comment on Ziomek-Witek’s case, but said LaMagna and other staff members worked diligently to make sure the transfer of all the residents from Emerald South was accomplished in an appropriate manner.

There was some political pressure, too.

Michael Witek said he sought and received help from the staff of Assemblywoman Crystal D. Peoples-Stokes, whose district includes the Delaware Avenue nursing homes, in making sure his wife was properly placed.

Legal right to leave

Residents in nursing homes have the legal right to leave, but if the nursing home determines a return to the community is unfeasible, home officials must list the reasons in the resident’s medical records and explain the reasoning to the resident, according to federal regulations.

The regulations also require nursing homes to refer the resident to local support services if the individual decides to leave, even if a discharge is not supported by the facility. As for residents deemed able to return to the community, the nursing homes must develop a discharge plan to ensure a safe transition.

Lindsay Heckler, the supervising attorney at the Center for Elder Law and Justice in Buffalo, says there are some individuals in nursing homes who do not belong in them and want to return to the community. She bases this belief on individuals who have sought legal assistance from the center.

“While not every person who lives in a nursing home may be appropriate to return to the community setting, every person should be afforded the opportunity to do so,” Heckler said.

Heckler said the first step is for a resident to notify the nursing home’s social worker. “If you feel that the nursing home is not doing enough to facilitate a discharge to the community, our office is available to assist in referrals to available resources and provides free legal representation in some cases,” Heckler said.

Capps, the coordinator for the Open Doors program, said nursing home residents can obtain assistance by going to the New York Association on Independent Living and scrolling to Open Doors or by calling her at 836-0822, ext. 203.

Janine Ziomek-Witek relaxes in her apartment in Stovroff Towers at the Weinberg Campus in Amherst. “You have to fight for your rights and if you have to go to a nursing home for rehabilitation, make sure it is a good one,” she said. She entered the poorly rated Emerald South for three weeks of rehab after an amputation in 2014 and ended up spending five years there. (James P. McCoy/Buffalo News)

‘Fight for your rights’

Sitting in the privacy of her tiny apartment, Ziomek-Witek says her experience has taught her that persistence is a necessary quality for success in being discharged into a suitable place to live in the community.

“You have to fight for your rights and if you have to go to a nursing home for rehabilitation, make sure it is a good one,” she said.

Her apartment includes a bathroom and a second room that doubles as her bedroom and living area. To one side is a small refrigerator and a microwave. Twice a day, she said, Meal On Wheels delivers food.

And while she is living independently, she says aides from the Fallon Health Weinberg Managed Long-Term Care program look in on her a couple times a day.  

Yet Ziomek-Witek is not completely satisfied.

The next step in her journey, she says, is to live under the same roof with her 58-year-old husband. Michael Witek says he is working on getting permission for his wife to live with him at Walden Park Senior Complex on Buffalo’s East Side.

“You have to be 55. Janine is 53 but because she is disabled there’s a good chance she can get in here,” Witek said. “I’ve been talking with the manager and it will be a slow process.”

But both husband and wife say they are hopeful.

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After 5 years in a nursing home, a Buffalo woman moves out