Former
Illinois and Florida nursing home mogul Philip Esformes wept and
pleaded for mercy Thursday before being sentenced to 20 years in prison
for what the U.S. Justice Department called the largest single health
care bribery and kickback scheme in American history.
A separate hearing will be held in November to determine the amount of money and property Esformes may be required to forfeit.
Esformes,
who once controlled a network of more than two dozen health care
facilities that stretched from Chicago to Miami, garnered $1.3 billion
Medicaid revenues by bribing medical professionals who referred patients
to his Florida facilities then paid off government regulators as
vulnerable residents were injured by their peers, prosecutors said.
He
housed elderly patients alongside younger adults who suffered from
mental illness and drug addiction — sometimes with fatal results. In
Esformes’ Oceanside Extended Care Center in Miami Beach, “an elderly
patient was attacked and beaten to death by a younger mental health
patient who never should have been at (a nursing facility) in the first
place,” prosecutors wrote in a pre-sentencing memo.
As he handed down the sentence, Judge Robert N. Scola Jr. said the
length and scope of Esformes’ criminal conduct were “unmatched in our
community. ... Mr. Esformes violated the trust of Medicare and Medicaid
in epic proportions."
But
Scola meted out a punishment significantly less than the 30 years
prosecutors requested, saying Esformes also had an extraordinary history
of helping people in need. Attorneys for Esformes had described him as a
selfless philanthropist who had donated more than $15 million to
synagogues, schools and needy individuals, often anonymously.
Said
Scola: “I think he should get some consideration for his philanthropy,
although it’s dangerous to say because he was stealing money from
Medicare, so people might say he was giving that money to charity. But
the vast majority of the money he made, he made legitimately. More
importantly he was a true friend to people known and unknown to him, and
that is worthy of mitigation."
In
arguing for a 30-year sentence, prosecutors said his yearslong
bribes-for-patients schemes involved the corruption of medical
professionals and government regulators, and entailed grievous injuries
to a massive number of elderly patients.
“Miami
is the epicenter of health care fraud, there was no one like Philip
Esformes, he was king,” prosecutor Allan J. Medina told the judge in
court Thursday.
Many
of his younger, drug-addicted patients spent the daylight hours
wandering the streets of Miami while he collected government payments
for services that were never delivered, prosecutors said.
“Phillip
Esformes used deceptive and calculated means to orchestrate a fraud of
the magnitude that we have not seen before,” Medina said. “People who
needed to get better, who wanted to get better, they had no shot.”
“His
fraud involved thousands of patients, 16 nursing homes, the systematic
payment of bribes, a complex web of bank accounts, and brazen
obstruction of justice to try to prevent it all from coming to light,”
prosecutor Elizabeth Young wrote in a sentencing memo filed with the
court this week.
Esformes,
who has been in maximum security detention for 37 months since his 2016
arrest, called himself a shattered, repentant man when he stood before
the judge. His shoulders drooped beneath his baggy khaki prison shirt as
he began rocking back and forth.
“I
want to apologize to, your honor, the United States. Sorry. And my
community.” As Esformes began to recite the names of his children, he
briefly became incoherent. Groans and cries of “Oh God!” escaped from
his family and supporters in the gallery.
“I’ve lost everything I love and cared about with the utmost intensity," he said. "There is no one to blame but myself, me.”
While
preparing his defense, Esformes told the judge, he had listened
repeatedly to wiretapped conversations that revealed him arranging
bribes. “I am disgusted by what I heard,” he said, at one point pounding
a courtroom podium with his fist. “The Phil Esformes you heard was
reckless ... an arrogant man.”
Esformes said he was studying the Torah and praying for redemption. “I won’t miss that opportunity,” he said.
Prosecutors
said Esformes should be forced to pay $207 million in restitution to
Medicaid and Medicare; attorneys for Esformes sharply questioned that
amount in court Thursday.
Judge
Scola closely questioned prosecutors about how they calculated the
value of the Medicaid proceeds Esformes stole over the years, ultimately
finding the loss to be between $4.8 million and $8.3 million.
Federal authorities arrested Esformes at one of his $2 million estates
on the Miami Beach waterfront in 2016 and immediately placed him in the
Miami Federal Detention Center.
At
the time, he had a net worth of $78.9 million in bank accounts and
investments, and hardly any debts, according to court papers filed by
prosecutors. He maintained a Chicago Water Tower penthouse and a mansion
in Los Angeles.
Esformes
was deemed an extraordinary flight risk in part because he had been
caught on a wiretap offering to help his business partner Guillermo
Delgado flee from the U.S. to avoid prosecution as the federal
investigators closed in on them.
Delgado,
who helped Esformes defraud Medicare for mental health and prescription
drug services, instead helped federal investigators bring Esformes to
justice. He and his brother Gabriel Delgado are now serving prison time.
In
one of Esformes’ crimes, prosecutors said, he used some $300,000 in
stolen Medicare and Medicaid proceeds to bribe the head men’s basketball
coach at the University of Pennsylvania to admit Esformes’ son to the
school.
That
coach, Jerome Allen, pleaded guilty in October to a money-laundering
charge related to the Esformes bribes. He testified as a government
witness against Esformes at the Miami trial. Allen received a
probationary sentence and is now in his third season as an assistant
coach with the Boston Celtics.
The
dozens of nursing facilities Esformes ran with his father and business
partner Morris Esformes for decades earned millions of Medicaid and
Medicare dollars annually despite repeated federal law enforcement
probes and Chicago Tribune investigations alleging substandard care and
incidents when disabled patients were assaulted by fellow residents.
“Instead
of changing his ways or expressing remorse after these settlements,
Esformes simply altered his criminal scheme to avoid detection,”
prosecutor Young wrote in the court filing.
Esformes
sold his Illinois nursing facilities in about 2012 but kept offices in
the Chicago suburbs as he continued to operate homes in Florida with his
father, government records and Tribune interviews show.
Police have arrested two men in Louisiana after an elderly woman in their care was found with maggots in her wounds.
The victim, whose name and age were not clear, was being cared for by Raymond Hoffpauir, 57, and Dustin Welch, 27, who lived at her home in Crowley, southwest Louisiana, Fox affiliate News 15 reported.
The
woman's condition came to light after an extended family member visited
her at her home, which they found to be infested with roaches. The
relative told police the woman was very weak. Her ankles and legs were
bandaged.
When the family member removed the dressing to look at
her lesions, she found them to be extremely discolored. Maggots were
crawling in some of her sores. The woman is also believed to have been
bitten by a rat.
The victim was taken to Acadia General Hospital, where police were alerted to the alleged abuse.
Crowley Police officers questioned Hoffpauir and Welch. Initially, they denied their involvement, but later admitted they had not looked after the woman in weeks, ABC affiliate KATC reported.
The
carers told police they had not changed the woman's dressings in days.
They also failed to give her the insulin injections she required for
weeks. The hormone is generally used to treat diabetes.
Police told KATC the victim is in hospital, and the Adult Protective Services have been alerted.
Hoffpauir and Welch were charged with cruelty to the infirm. Their bonds have been set at $25,000.
Elder
abuse is a "significant public health problem," the Centers for Disease
Control and Prevention states. One in 10 people aged 60 and over suffer
abuse including neglect and exploitation, according to the agency. That
amounts to hundreds of thousands of people a year.
Elder abuse is
defined as "an intentional act, or failure to act, by a caregiver or
another person in a relationship involving an expectation of trust that
causes or creates a risk of harm to an older adult."
Abuse can range from the physical, psychological, financial, sexual, as well as neglect.
The charity Action on Elder Abuse advises those who believe someone is abused to try sensitively bring up the topic, and to provide help and support.
"Whether
you are a practitioner, friend or relative, you should always be honest
and never make false promises—sometimes the abuse might affect more
than one person and you will have a responsibility to other people too,"
the organization states.
GULF BREEZE, Fla. (WEAR) — A certified nursing assistant in Gulf Breeze has been arrested.
27-year-old Kayla Oeth is facing felony charges after she was accused of abusing an elderly man.
KAYLA OETH. (SRCSO)
The alleged incident happened on August 10 at Bay Breeze Senior Living and Rehabilitation Center.
Sergeant
Rich Aloy with the Santa Rosa County Sheriff's Office confirmed a
warrant was issued on September 16 - more than one month after the
incident.
Oeth was arrested hours later.
"The allegation is that this
individual put their hands on a senior citizen, to the point where
there were some injuries," said Aloy.
According to a report from
the Santa Rosa County Sheriff's Office, the victim's arms were bloodied
and bruised from his wrists to his elbows.
The victim described
Oeth as "violent and mean", and said he feared she would hurt him again,
so he stayed in his wheelchair next to the nurses' station all night.
"It's
zero tolerance for this kind of activity," said Aloy. "When you're
dealing with an individual in an assisted living facility, they need
help. They're looking to their caretakers for help."
Oeth claims
the victim was in a "horrible mood" and his injuries were sustained as
she was trying to help him into bed. She says he fought with her and
spit in her face.
Another Bay Breeze employee was present at the time.
He
told a deputy Oeth did not follow protocol. He says she failed to tell
the victim what she was doing, causing him to become confused then
"freak out", "flailing his arms".
Assistant State Attorney Greg Marcille says it appears to be an isolated incident, but they do not take these cases lightly.
"One
sanction that we would clearly seek is that that individual not be
allowed to work in a health care facility in the future," said Marcille.
Marcille says they will be recommending the maximum sentence.
"The circumstances of this particular case, the maximum sentence is up to five years in state prison," said Marcille.
Justin
Gibson, an administrator at Bay Breeze Senior Living and Rehabilitation
Center, confirmed Oeth no longer works at the facility.
"We all
have parents, we all have folks who we care for or may live with who are
elderly and they look to us for assistance, and when something like
this happens, it's very angering and it's also very sad," said Aloy.
Oeth is scheduled to appear in court on October 3.
It is becoming increasingly apparent that many so-called “professional guardians” are in actuality serial killers. Two recent examples of this were Rebecca Fierle in Florida, and April Parks in Las Vegas. Both were found to have stored and kept the cremated ashes of their victims just as other serial killers keep trophies from their kills to help them relive their pleasure in their crimes. How many other “professional guardians” are keeping trophies?
Cohorts in Crime:
Referred to as “Angels of Death”, many nurses and caregivers are serial killers who are sadistic and take pleasure in ending the lives of the elderly and others. Lacking any sense of compassion or regard for human life, they kill with efficiency. Hiding behind professional titles or, working one on one in a care setting, these people cause untold numbers of deaths.
Claiming their victims are suffering and that toxic drugs are needed in massive doses, the patient is rendered unable to complain. Soft sounding words to the family and friends includes phrases such as, “They have dementia…they forgot how to swallow”. Or how about, …”You don;t want them to suffer do you?” (Now there’s a guilt trip for you!) never mind that the person telling you that is the same person who contributed to the suffering.
These individuals appear to have a pathological interest in their perceived power over life and death. They most always situate themselves in the medical or care giving fields. This not only provides them with the perfect cover, it also provides them a steady supply of victims. The total lack of compassion towards their intended victim is on display as they move from room to room, victim to victim. It is this lack of compassion and the sheer number of victims that defines them as an angel of death.
Do they kill for some sense of power? Is it money? Or do they do it simply because they can?
A Macomb County judge violated state law when she appointed a
guardian-and-conservator company that reaped financial benefits from the
appointment, according to Attorney General Dana Nessel.
State
Public Administrator Michael Moody, on Nessel’s behalf, argues in a
legal document Friday that Probate Judge Kathryn George created a law
violation by appointing Clinton township-based Caring Hearts of Michigan
Inc. as guardian and conservator for Robert Mitchell and Barbara
Delbridge last November, over a daughter and stepdaughter of the couple.
Caring
Hearts hired Executive Care to perform the care for the couple,
according to the state. Both companies are owned by Cathy Kirk. In
addition, Caring Hearts employed the firm of her husband Robert Kirk --
Kirk, Huth, Lange and Badalamenti -- for legal services. The trio of
companies share the same address on Hall Road, east of Romeo Plank Road.
Caring Hearts charged more than $250,000 for about six months of care.
George through a spokeswoman declined to comment Monday, referring the matter to court officials.
The
Attorney General in the filing Friday seeks to intervene in the Probate
case, saying that all prior transactions are “voidable” due to the
arrangement.
Michigan Attorney General Dana Nessel
The law in question says, the “Court shall not
appoint as guard an agency, public or private, that financially
benefits from directly providing housing, medical, mental health or
social services to the legally incapacitated individual.”
Moody comments in the brief, “The intention behind this provision is to prevent conflicts of interest.”
“All
of these financial transactions set forth in Caring Hearts’ Final
Account are presume to be affected by a conflict between personal and
fiduciary interests, and therefore voidable,” Moody adds.
Caring
Hearts attorney Edward Nahat disputed Nessel's claims Monday, saying
state attorneys misapplied the law and should not have sought to enter
the case.
"The Attorney General's petition ... misapplied the
statute to these circumstances and is over-reaching by trying to
intervene in a case she shouldn't be involved in," Nahat said.
He
said the law quoted by state lawyers applies to investments and housing
transactions, neither of which Caring Hearts and Executive Services were
involved.
He said George knew of the arrangement.
Nahat called Nessel's involvement "heavy handed," noting that it has drawn publicity.
He said Caring Hearts supports a review of the accounting and charges in the case.
"A
remedy is already available to the family," he said. "They can get
their own day in court. They don't need the Attorney General's help."
Probate
Court in September 2018 instituted a policy that requires a company or
fudiciary must reveal whether a person related to the company or
fudiciary is performing a service for the fudiciary or company,
according to John Brennan, deputy court administrator.
Brennan said he does not believe the relationships were disclosed in the Mitchell and Delbridge cases.
Expenditures will be reviewed over the next several months. A hearing in the case is scheduled for Jan. 10.
Nessel issued a news release on the matter Monday.
“It
is absolutely incumbent on the courts to ensure that the state’s
guardianship system is providing properly for the vulnerable and that
the court-appointed conservators fulfill their fiduciary
responsibilities to those in their custody,” she said. “That does not
appear to be happening in the case of Caring Hearts, which was appointed
by Judge Kathryn George as guardian and conservator for Robert Lee
Mitchell and Barbara Delbridge.”
Nessel added that the "Estates
and Protected Individuals Code specifically prohibits certain financial
self-dealing by the guardian with respect to the ward.”
State
Supreme Court Chief Justice Bridget McCormack and Macomb Chief Judge
James Biernat Jr. at that time of the announcement released a joint
statement in support of the probe.
Family members of the couple
said George should have appointed them as guardians and conservators to
watch over the care and finances of the couple, both 70 or older and in
declining health.
Robert Mitchell and Barbara Delbridge
Mitchell’s daughter, Marcie, and other family members complained
their visits were limited and that caregivers installed a 6-foot fence
around the property near Hall Road and Van Dyke Avenue that blocked the
vision of family members who resided next door. The said the couple were
virtual prisoners in their home.
They also raised questions about
the guardian and conservator company's spending from the couple's more
than $2.5 million in assets.
The pair on Friday also were named conservators, although each has to file a bond and paperwork in order to take over.
Attorney
Frank Cusumano said Monday he plans to file a legal action on Little's
behalf "to unwind the transactions" involving Caring Hearts, Executive
Services and the law firm.
"Anita Little wants to do her part to make sure that this activity does not occur and injure another family," Cusumano said.
The older couple are currently residing in a facility in Genesee County, closer Marcie Mitchell’s Clarkston home.
The
case developed as Nessel has been vowing to crack down on elder abuse.
She formed Michigan Elder Abuse Task Force earlier this year shortly
after she took office. This summer, she conducted a statewide “listening tour”
to hear complaints about elder abuse and complaints about Probate
Court, which oversees will and estates of incapacitated and deceased
individuals.
George
has served as a Macomb Probate Judge since 2003. More than a decade
ago, George came under the scrutiny of state officials and removed as
chief probate judge for her relationship with a now-defunct guardianship
company, conflict with the second probate judge and dysfunction at the
court.
The state’s judicial ethics office is investigating a Greenville
circuit judge who issued an arrest warrant for a Lexington County woman
who says she has been living as a fugitive since April 2012 in
connection with her legal battle for guardianship of her adult disabled
daughter.
And, in a related development, Brenda Bryant, who contends she has
been forced to live out of state because of the active warrant, has sent
letters to the S.C. House and Senate asking lawmakers not to vote for
13th Circuit Judge Edward “Ned” Miller in the judicial election
tentatively scheduled for Feb. 4, according to copies of the letter she
provided this week to The Nerve. She also said she has notified Gov. Nikki Haley’s and Lt. Gov.-elect Henry McMaster’s offices.
South Carolina and Virginia are the only states where their legislatures play primary roles in electing judges.
“I cannot begin to tell you how this abuse of justice has affected
our lives,” wrote the 60-year-old Bryant, who has been jailed twice
after being found in contempt of court, in her letters to the
Legislature. “I have a home but cannot come back (;) if I do I could go
to jail.”
The Nerve profiled Bryant’s case in October. She referenced The Nerve story with her packet of information she sent to the House and Senate this week.
The Nerve this week left written and phone messages for
Miller, who has been on the bench since 2002 and serves as the chief
administrative general-sessions court judge for Greenville and Pickens
counties, but did not receive a response.
Miller on April 2, 2012, issued a bench warrant for Bryant’s
“immediate arrest” after finding her in contempt of court for ignoring
previous court orders to pay $9,639 to Rodney Pillsbury, an attorney for
Tracy Parsons, a court-appointed guardian for Bryant’s intellectually
disabled daughter. Bryant contended Parsons, a licensed professional
counselor, didn’t do enough to protect her daughter, now 40, from being
sexually and physically abused during her stay in a Greenville County
group home.
Bryant in 2010 sued Parsons, the state Department of Disabilities and
Special Needs (DDSN), the Greenville County Disabilities and Special
Needs Board, and others. In issuing the bench warrant for Bryant’s
arrest, Miller described her lawsuit as “patently frivolous … to the
extent that it included Defendant Tracy Parsons.”
Bryant was initially jailed in September 2011 in Greenville County
after Greenville County Associate Probate Judge Edward Sauvain found her
in contempt for refusing to pay Parsons $9,338 in court-ordered fees.
She told The Nerve she was jailed for 30 days but was released after paying the fees, though she said she made the payment under protest.
After Miller issued his bench warrant, Bryant was arrested and jailed in Asheville, N.C; she told The Nerve
she spent six days in jail before being released. A magistrate’s order
noted that Bryant “feloniously” fled South Carolina, and that her
offense was punishable by “death/1 yr in prison.”
Most of the legal actions against Bryant, who for years had legal
guardianship of her daughter before it was stripped by the courts,
occurred after she won a major legal victory in 2006 in the S.C. Supreme
Court. The state’s top court ruled that DDSN and the Babcock Center, a
private, nonprofit service provider in Richland County, owed a duty of
care to Bryant’s daughter, who Bryant alleged was raped by several men
while in the care of Babcock during the 1990s.
Few Judges Sanctioned
In a letter this month to Bryant, Joseph Turner, assistant
disciplinary counsel in the state Office of Disciplinary Counsel (ODC) –
an arm of the Supreme Court that investigates ethics complaints against
judges and lawyers – acknowledged his office had received Bryant’s
complaint against Miller, noting, “We will conduct an investigation into
the matters you have reported.”
“Where misconduct is found, sanctions may be imposed ranging from a
confidential letter of caution or admonition, public reprimand, or
removal from office,” Turner said in the Dec. 10 letter. “If our
investigation does not reveal evidence of judicial misconduct, your
complaint will be dismissed.”
“It is often many months after receipt of a complaint before a final decision is made,” Turner added.
The ODC typically dismisses most complaints without an investigation,
often ruling that the issues raised are appellate in nature as opposed
to ethical violations. Of 317 pending and received complaints last
fiscal year, which ended June 30, 193, or nearly 61 percent, were
dismissed after initial review, according to a year-end report. In
comparison, the office last fiscal year dismissed 27 complaints after an
investigation, and another 54 complaints were dismissed by an
investigative panel of the 26-member state Commission on Judicial
Conduct.
Only 19 complaints against judges last fiscal year resulted in any
discipline, according to the report. Most of the sanctions were private
letters of caution; just one public reprimand was issued. No judges were
suspended or removed from office.
Legislatively Controlled Screening Panel
Turner’s letter was sent just over a month after a legislatively
controlled screening panel, known as the S.C. Judicial Merit Selection
Commission (JMSC), qualified Miller for another six-year term on the
bench, according to Bryant. Miller is running unopposed for his
re-election to his seat.
Under state law, the House speaker appoints five members of the
10-member commission; the Senate Judiciary Committee chairman, three
members; and the Senate president pro tempore, two members. Only
candidates nominated by the commission are eligible for election by the
General Assembly.
The law requires that six of the 10 members of the JMSC be lawmakers,
which two national legal organizations have said doesn’t meet their
standards because the panel and selection of its members are dominated
by legislators, asThe Nerve previously has reported.
The commission’s chairman this year was Rep. Alan Clemmons, R-Horry,
who was appointed to the panel in 2008 by then-House Speaker Bobby
Harrell, R-Charleston, who resigned from office in October after
pleading guilty to spending campaign funds on personal expenses.
Harrell’s plea and resignation stemmed from a 2013 public-corruption complaint filed by the South Carolina Policy Council, The Nerve’s parent organization, with S.C. Attorney General Alan Wilson.
Because Bryant said she couldn’t return to South Carolina to testify
at Miller’s screening hearing in November for fear of arrest on the
outstanding bench warrant, she had her husband of 39 years, Rickey
Bryant, testify on her behalf. She said she also provided the commission
with court records on her case.
In an affidavit provided for the hearing, a copy of which Bryant provided to The Nerve,
Bryant said Miller issued the bench warrant without having legal
jurisdiction, noting, among other things, that she previously had filed a
notice of appeal in her case with the state Court of Appeals.
The JMSC has not yet issued its official nomination report to the
Legislature, though Bryant said the panel qualified Miller despite her
husband’s testimony. The commission typically requalifies and
renominates unopposed incumbent judges; efforts by The Nerve this week to reach commission staff were unsuccessful.
Besides Clemmons, the other lawmakers on the JMSC include Reps. Bruce
Bannister, R-Greenville and the House majority leader; and David Mack,
D-Charleston; and Sens. Larry Martin, R-Pickens and the Senate Judiciary
Committee chairman; Chip Campsen, R-Charleston; and Gerald Malloy,
D-Darlington. Clemmons, Bannister, Campsen and Malloy are attorneys.
Bryant told The Nerve she sent letters this week to House
Speaker Jay Lucas, R-Darlington, and Speaker Pro Tempore Tommy Pope,
R-York; as well as to Senate President Pro Tempore Hugh Leatherman,
R-Florence, who also is the Senate Finance Committee chairman, asking
them to copy her letter and attachments to all lawmakers. In her letter,
Bryant asks lawmakers to “please vote against Judge Edward Miller.”
“We need judicial reform in S.C.,” Bryant wrote, concluding, “I will
not be home for Christmas this year but I pray to be home soon. God
bless you and Merry Christmas.”
Maria
Davila with her husband, Anthony Hernandez. She is one of numerous
patients at a Brooklyn nursing home with a highly contagious
drug-resistant infection.CreditCreditJeenah Moon for The New York Times
By Matt Richtel and Andrew Jacobs
Maria Davila lay
mute in a nursing home bed, an anguished expression fixed to her face,
as her husband stroked her withered hand. Ms. Davila, 65, suffers from a
long list of ailments — respiratory failure, kidney disease, high blood
pressure, an irregular heartbeat — and is kept alive by a gently
beeping ventilator and a feeding tube.
At least 38 other patients at Ms. Davila’s nursing home, Palm Gardens Center for Nursing and Rehabilitation in Brooklyn, have been infected with or carry C. auris,
a germ so virulent and hard to eradicate that some facilities will not
accept patients with it. Now, as they struggle to contain the pathogen,
public health officials from cities, states and the federal government
say that skilled nursing facilities like Palm Gardens are fueling its
spread.
“They are the dark underbelly
of drug-resistant infection,” said Dr. Tom Chiller, who heads the fungal
division at the Centers for Disease Control and Prevention, speaking
about skilled nursing facilities, particularly those with ventilated
patients, but not Palm Gardens specifically.
Such nursing
homes are playing a key role in the spread in New York, where 396 people
are known to be infected and another 496 are carrying the germ without
showing symptoms, according to public health officials. In Chicago, half
of patients living on dedicated ventilator floors in the city’s skilled
nursing homes are infected with or harboring C. auris on their bodies,
said Dr. Allison Arwady, the acting commissioner of the city’s
Department of Public Health.
Much of
the blame for the rise of drug-resistant infections like C. auris, as
well as efforts to combat them, has focused on the overuse of
antibiotics in humans and livestock, and on hospital-acquired
infections. But public health experts say that nursing facilities, and
long-term hospitals, are a dangerously weak link in the health care
system, often understaffed and ill-equipped to enforce rigorous
infection control, yet continuously cycling infected patients, or those
who carry the germ, into hospitals and back again.
“They are caldrons that are constantly seeding and reseeding hospitals
with increasingly dangerous bacteria,” said Betsy McCaughey, a former
lieutenant governor of New York who leads the nonprofit Committee to
Reduce Infection Deaths. “You’ll never protect hospital patients until
the nursing homes are forced to clean up.”
The story is far bigger than one nursing home or one germ.
Drug-resistant germs of all types thrive in such settings where severely
ill and ventilated patients like Ms. Davila are prone to infection and
often take multiple antibiotics, which can spur drug resistance.
Resistant germs can then move from bed to bed, or from patient to family
or staff, and then to hospitals and the public because of lax hygiene
and poor staffing.
These issues have
also vexed long-term, acute-care hospitals, where patients typically
stay for a month or less before going to a skilled nursing home or a
different facility.
A recent inquiry
by the New York State Department of Health found that some long-term
hospitals grappling with C. auris were failing to take basic measures,
such as using disposable gowns and latex gloves, or to post warning
signs outside the rooms of infected patients. At one unnamed facility, it said, “hand sanitizers were completely absent.”
Officials at the 240-bed Palm Gardens did not respond to repeated requests for comment.
Over the past year, the number of patients who were infected with or
were carrying C. auris there grew to 38 from six, according to a nurse
there and public health officials. The tally has now fallen into the
high 20s after some patients died or moved elsewhere.
The New York
health department issued a statement in response to queries from The New
York Times: “The Department of Health has made controlling the spread
of C. auris a high priority and has conducted extensive training and
education on infection control policies and procedures for Palm Gardens
and other nursing home providers throughout this region. The health and
well being of nursing home residents is our primary concern and we take
complaints regarding quality of care very seriously.”
Scientific research on nursing homes and drug resistance is sparse, but some recent studies offer evidence of the problem. A study published in June
in the Journal of Clinical Infectious Diseases found that patients and
residents in long-term care settings have alarmingly high rates of
drug-resistant colonization, which means they carry the germs on their
skin or in their bodies, usually without knowing it, and can pass them
invisibly to staff members, relatives or other patients. Elderly or
severely ill people with weakened immune systems who carry the germ are
at high risk of becoming infected. (Health officials in New York state said 14 percent of those now infected started out carrying it and then developed symptoms).
The study, which focused on Southern California, found that 65 percent
of nursing home residents in that region harbored a drug-resistant germ,
as did 80 percent of residents of long-term acute-care hospitals, where
their “status is frequently unknown to the facility.” By comparison,
only 10 to 15 percent of hospital patients carried such germs, the study
found.
The phenomenon is global. A study published
in 2017 found that elderly residents of long-term care facilities in
Britain were four times as likely to be infected with drug-resistant
urinary tract infections as elderly residents living at home. Soaring
levels of resistance were found in long-term care facilities in Italy, a
2018 paper found. And a 2019 study
found that long-term care facilities in Israel are “a major reservoir”
of carbapenem-resistant Enterobacteriaceae, or CRE — a major family of
drug-resistant germs — contributing to their “rapid regional
dissemination.”
Experts said the
problem is pronounced in the United States, given changing economics
that push high-risk patients out of hospitals and into skilled nursing
homes. The facilities are reimbursed at a higher rate to care for these
patients, they said, providing an economic incentive for poorly staffed or equipped facilities to care for vulnerable patients.
C. auris, which is resistant to major antifungal medications, was
first identified in 2009 in Japan and, as of July 31, had infected 796
people in the United States, largely in New York, Chicago and New
Jersey, since its arrival here in 2015, according to the C.D.C. Another 1,540 people have been identified as carrying the germ on their skin or in their bodies without showing symptoms.
C. auris up close
Ms.
Davila resting in a Brooklyn hospital in August, where she was rushed
after a routine blood test found her white cell count plummeting.CreditHilary Swift for The New York Times
On
Palm Gardens’ second floor, where Ms. Davila and other ventilated
patients reside, signs posted outside nearly every room warn visitors
and staff members to wear gloves, gowns and masks — a state requirement for those infected with C. auris.
But
during two recent visits to Palm Gardens by a Times reporter,
accompanying Ms. Davila’s husband as his guest, orderlies and nurses
moved in and out of her room without the required protection.
“The
nurses and janitors are just spreading this thing from room to room,”
her husband, Anthony Hernandez, said on a visit in August, shortly after
a nurse, who was wearing gloves but no mask or gown, poured liquid
nourishment into his wife’s feeding tube. During a brief interview in
the lobby, Pamela Delacuadra, the center’s director of nursing, said
employees had initially struggled with the infection-control protocols required for C. auris.
“It was overwhelming at first but with help from the health department, we’ve gotten much better,” she said.
Ms.
Davila’s medical records, reviewed by The Times, do not identify the
specific date when she got C. auris. But a chart written by a Palm
Gardens doctor in December 2018 includes a note listing her as a carrier
of the fungus.She was put in
isolation for C. auris patients, and her records subsequently referred
to her as having the infection and taking antifungal medications for it.
Palm
Gardens occupies a nondescript seven-story brick building in a
working-class neighborhood in central Brooklyn. Magenta banners promote
its dialysis center and adult day care services, as well as a
“respiratory pavilion” for patients on mechanical life support.
Information about infections, including C. auris, in a hallway at Palm Gardens.CreditJeenah Moon for The New York Times
A high-level official from a local hospital that
has seen a number of C. auris patients from nursing homes said Palm
Gardens was a major source. He declined to be named because his employer
had not authorized any comment.
Palm Gardens’s performance is poorly rated by the federal government; it received two stars, a below-average rating for staffing and overall care, from the Centers for Medicare and Medicaid Services, an agency that ranks nursing home care on a scale from one star to five. In 2018, the agency investigated
the deaths of two ventilator patients at Palm Gardens, finding that
employees had failed to turn their ventilators back on after performing
mechanical checks. The patients died within minutes of each other, the
report said.
C.M.S. declined to comment on Palm Gardens.
The ownership of Palm Gardens is controlled by someone identified as Shimon Lefkowitz, according to public filings.
Mr.
Lefkowitz did not respond to efforts to reach him through Palm Gardens.
Calls to several law firms that represent Palm Gardens in lawsuits were
not returned.
Not all Palm Gardens residents with C. auris contracted the germ there, and it is not clear how many did. One patient who died was infected at Maimonides Medical Center in Brooklyn, according to the man’s family.
A changing role in health care
A hallway at Palm Gardens.CreditJeenah Moon for The New York Times
Skilled
nursing homes and long-term care facilities have been playing an
increasingly important role in caring for seriously ill patients who
used to stay longer in hospitals.
Advances
in medical technology have made it possible to prolong the lives of
desperately ill patients, while changes in Medicare reimbursement rates
created a financial incentive for the expansion of such facilities, said
Neale Mahoney, an economist at the University of Chicago who studies the industry’s growth. There are now about 400 long-term care hospitals across the country, up from about 40 in the early 1980s, he said.
Since
2012, the number of skilled nursing homes with ventilator units rose to
436 from 367 — a significant jump but still a fraction of the nation’s
15,000 nursing homes — according to C.M.S.
“Ventilator
units are the poster child, the best example of a place that has
challenges,” said Dr. Alexander Kallen, an outbreak expert at the C.D.C.
The federal government reimburses facilities for ventilator patients at significantly higher rates than for other patients, according to C.M.S. Ventilated patients can bring in $531 a day compared to $200 for a standard patient. That’s about $16,000 a month compared to $6,000.
The reimbursement rates reflect the significant care required for vulnerable patients, and the cost of equipment.
C.M.S. contends the majority of skilled nursing homes do well with staffing and overall care. Yet roughly 1,400 nursing homes received a one-star rating for staffing in 2018 from the agency.
“It
is impossible for them to do a good job with the way their staffing
is,” said Dr. Mary Hayden, a professor at Rush Medical College who
studies the rise of drug-resistant infections in health care, adding of
the challenges of curbing drug-resistant infection: “The way they’re set
up, they can’t do it.”
Ms. Davila’s path
“If I can take her home to die that would be a blessing,” said Mr. Hernandez, Ms. Davila’s husband.CreditJeenah Moon for The New York Times
Ms. Davila carried C. auris with her on her journey through the health care system.
In
early August, after a routine blood test found her white cell count
plummeting, she was taken by ambulance to Methodist Hospital in Brooklyn
for a blood transfusion. Doctors discovered an infection and put her on
two different antibiotics. Heavy use of antibiotics, while often
necessary, can kill off the nonresistant infections and allow resistant
ones to thrive.
Her condition stabilized after two weeks
and she returned to Palm Gardens. It was one of at least a dozen trips
she had taken to the hospital since she first arrived at Palm Gardens.
Her
sharp decline began in 2017 after pain from a suspected hernia sent her
to the hospital. A lifelong smoker, Ms. Davila had emphysema, which led
to a litany of complications and infections, according to a review of
her medical records.
Now she spends her days frozen in bed, serenaded by a Latin music radio station and the mechanical whir of her respirator.
Mr. Hernandez doubts his wife will recover. “If I can take her home to die that would be a blessing,” he said.
He
pulled the blanket higher, turned up the radio and told his wife he
loved her. Momentarily alert, she fixed her eyes on his and then
mouthed: “I love you, too.”
Michigan Attorney General Dana Nessel. Courtesy Getty Images.
Ms. Nessel,
While you were running for Michigan Attorney General in 2018, I was
an award-winning investigative journalist, member of the LGBTQ community
and a Democrat.
Had I also been a resident of Michigan, I would have cast an
enthusiastic vote for both you and Governor Gretchen Whitmer. This was
not because of my political and social backgrounds.
I've interviewed politicians, lines of them. All of them parroted
whatever talking points they thought my newspaper’s readers wanted to
hear. The post-election reality was, as expected, entirely different.
You ran a campaign that seemed to be based on genuine sincerity rather than expedient politics.
“It’s just a basic belief that it’s never the wrong time to fight for justice,” you said. “It’s
never the wrong time to fight for what’s right, and that there are so
many people out there clamoring for representation, clamoring to have
their voices heard, clamoring for recognition of their rights and equal
dignity, just as human beings.”
Having spent my career, driven by the same ideology, your promises
resonated with me as much as they clearly did with Michigan’s voters who
included the voiceless.
But the post-election reality is that you have not only broken that
promise, but actively shielded the alleged perpetrators of some of the
most horrific and repugnant crimes and flagrant abuses of civil and
human rights in Michigan’s history.
In July last year, myself, a team of three Wayne State University
researchers and a forensic fraud examiner launched an investigation into
the systemic judicial removal of the civil, constitutional, statutory
and human rights of Michigan’s senior and developmentally disabled
communities as well as subsequent allegations of the abuse, exploitation
torture, isolation and robbery of them by public administrators and
judges at the Detroit-area Oakland County Probate Court.
On March 12, at the behest of your Communications Director Kelly
Rossman-McKinney, my team met with a contingent of your staff led by
Child, Elder, Family and Financial Crimes Division Chief Scott Teter.
Over the course of four hours, we presented evidence in the form of
court documents culled from 2,278 separate cases belonging to now-former
Oakland County Public Administrators Jennifer Carney, Jon B. Munger,
Thomas Brennan Fraser and John Yun who had been appointed as guardians
and/or conservators over allegedly “legally incapacitated” seniors and
developmentally disabled individuals by Oakland County Probate Court
Judges Jennifer Callaghan, Linda Hallmark, Daniel A. O’Brien, Kathleen
Ryan and former judge Elizabeth Pezetti.
Our findings, which also included data-driven research and interviews
with family members and whistleblowers in the legal and medical
communities, included:
Thomas Howard. Image taken shortly before his death after
two years of guardianship. Image courtesy of Dr. Bachard
Abuo-Rass
Guardian ad Litems (GALs) working in the interest of a
court appointed guardian rather than prospective wards by encouraging
them to accept a public administrator (sometimes name specific), while
discouraging them from attending a guardianship hearing and filing their
reports and recommendations as late as the day of a guardianship
hearing.
Public administrators appointed with no due process
afforded to the wards or rights guaranteed under Michigan Compiled Law
as well as the dismissal of family members in favor of a public
administrator.
The use by APS of legal representation by the Attorney
General’s office to ensure the guardianship of a ward, over their
objections and in cases where the GAL also felt no guardianship was
necessary.
Injuries sustained by 96-year-old ward Pauline while
under guardianship
and as a resident of Medilodge,
Southfield. Image courtesy of the
family.
The vacating of advance directives such as Durable Power of Attorney and Medical Advocacy forms without cause.
Families (husbands/wives, siblings, parent/child) put under guardianship at the same time and, in some cases separated.
Possible Medicaid fraud where Medicaid is applied for by a
public administrator prior to a spend-down and when the ward has over
$2,00 in non-exempt assets.
Fungus growth on leg of Nancy Haddock
after one year of guardianship. Image
courtesy of Catherine Haddock
Resale of homes by investors at full market value or higher.
Evidence of home mortgages owned by judges and attorneys paid off in three years or less.
Massive over-billing, breach of fiduciary duty, double and
triple dipping and hundreds of thousands of dollars in unaccounted for
money in estates belonging to wards who passed away while under
guardianship.
Guardian accounts of annual ward billing filed with no
corroborating evidence, such as receipts, to justify charges which were
approved by all four judges.
This evidence was just part of a systemic pattern and practice
established by this investigation, which has been unchecked since for at
least the past two decades.
However, in an email that evening, Mr. Teter requested I forward him
only the case number and alleged victim contact information in one case
where a home was sold under market value or a Durable Power of Attorney
ignored.
He did not ask for any further information regarding the use of
unlicensed group homes, Medicaid fraud, over-billing, judicial
misconduct or public administrator malfeasance.
This was a surprise, given the weight and breadth of the evidence we
presented to you. Where two cases can be dismissed as a
misfortunate error, 2,278 seems like more than carelessness.
Equally startling was your subsequent March 25 announcement of an
Elder Abuse Task Force, my attendance at which Ms. Rossman-McKinney
actively blocked by telling my then-Detroit Free Press editor the
conference would only address “high level elder care issues” and neither
guardianship nor Oakland County.
This was a lie.
During the announcement, you presented nine legislative reforms to
Michigan’s guardianship system. No criminal investigations into the
activities of public administrators, private guardianship companies,
probate attorneys or judges were ever mentioned.
The membership of your Task Force was also concerning as it included
pro-guardianship agencies and organizations such as the Michigan Probate
Judges and Guardianship Associations, the Michigan State Bar and the
State Court Administrator’s Office (SCAO) who successfully blocked
reform legislation proposed by the 1998 Supreme Court Guardianship and
2005 Governor Jennifer Granholm Task Forces.
Furthermore, the SCAO has actively and consistently shielded probate judges, such as Macomb County Probate Judge Kathryn George.
After an investigation by the Michigan Judicial Tenure Commission
however, no disciplinary action was taken. Indeed, since 1995 not a
single probate court judge engaged in misconduct has been removed from
the bench.
The same is true for disciplinary actions against probate attorneys
by the Michigan Attorney Grievance Commission. The one glaring exception
was the disciplinary action against attorney Steven G. Cohen after he
spoke out about the alleged collusion between a Wayne County Probate
Judge and two attorneys who drained the estate of civil rights activist Rosa Parks.
George remained on the Macomb County bench allowing history to allegedly repeat itself when a 2019 investigation by WXYZ
determined precisely the same behavior with guardianship company Caring
Hearts formed by an attorney who donated to George’s campaign.
Meanwhile George is still taking guardianship and conservatorship cases
in Macomb County begging the question as to why.
That isn’t the only thing which has not changed.
Family members who attended your Elder Abuse Task Force Listening Sessions and
presented horrific stories of abuse and neglect at the hands of probate
judges, public administrators and attorneys across Michigan have
reported back that there has been no action taken by your office to
investigate these cases.
We have letters to families, from your employee State Public
Administrator Michael Moody, who responded with a similar answer to
complaints, received long before and after the announcement of your Task
Force, by telling them that their best option to deal with allegations
of abuse and neglect by Michigan’s professional guardians and probate
attorneys is to “get an attorney.”
August 14, 2019 letter
from Michael Moody to complaining family concerning crimes allegedly
committed to Nancy Collins by Thomas Brennan Fraser. Image courtesy of
Jayne Collins.
Although Munger was fired as a public administrator in
2017, he still takes guardianship, conservatorship and deceased estate
cases in Oakland County the most prolific of which is the guardianship of Aretha Franklin’s eldest son Clarence. The
ongoing deceased estate case is presided over by Callaghan who used to
work for Munger’s former law partner Yun and whose Judicial Attorney
Christina Waid is also a former Munger employee.
At a September 16, 2019 Elder Abuse Awareness event you attended
alongside Michigan State Rep. John Cherry (D), numerous frustrated and
angry Michigan families, whose relatives have suffered horrific and
neglect abuse by probate attorneys and judges statewide, finally asked
the questions as to why these crimes have not been investigated.
They were questions my peers in the media have been unwilling to put to you.
Growing increasingly foul tempered and
unprofessional, you attack the audience: “You don’t know how to vote?”
and apportion blame for your office’s inaction to protect Michigan’s
vulnerable on Republican legislators who “Don’t care for me,” Governor
Gretchen Whitmer, the Secretary of State, budget cuts, every other
agency she oversees, lack of staffing and the amount of time she’s been
in office.
You responded to these families by telling them “I would rather ensure you don’t lose your money at all, than prosecute.”
You added that they should take their complaints concerning probate
judges to the Judicial Tenure Commission, the Michigan Supreme Court or
just “vote them out.”
“I guarantee you this is the only way anything will happen, “ you said.
You stated that you need more time.
While that is ticking on, court files indicate that neither they nor
the judges have modified their behavior in the slightest. Furthermore,
there is evidence that Munger and Fraser are disposing of their assets
and that court files such as guardian accounts and ex parte orders are
being deleted from the dockets or altered and refiled.
That this is happening under the nose of an Attorney General is
unacceptable, That thousands of vulnerable people are in danger while
they wait “for the system to work” is unacceptable.
Families in Oakland, Wayne County, Washtenaw and St. Clair counties are now turning to me for help.
Your September 6, 2019 announcement to “object to” over $200,000 in
billing by Caring Hearts in Macomb County. is more of a band-aid than a
solution. Accounts filed by a guardianship company with no
corroborating evidence should be investigated. The receipts should have
been filed upon demand from the family and the company should not have
been given until January next year to produce them.
We have found absolutely no evidence that you are investigating any other incidents of alleged probate court corruption.
Professional guardians are not immune from investigation when wrong doing is found. This was the case in Nevada and most recently in Florida.
After professional guardian Rebecca Fierle was found to have executed
Do Not Resuscitate (DNR) orders without the knowledge of her wards
or their families, Governor Ron DeSantis made the astute observation
that new or existing legislation is meaningless without consequences for
those who break it.
In contrast, your lack of commitment to any kind of criminal
investigation into alleged crimes in Michigan is astonishing and led my
team down a new line of inquiry as to why.
During your campaign, you pledged that “As AG, I will
increase resources to defend seniors from neglect, abuse, and
exploitation. I'll ensure that unsafe assisted living facilities and
in-home care providers are stripped of their licenses, issue scam
notifications for public awareness, and vigorously prosecute cases of
Medicaid fraud.”
It seems this particular promise came with conditions that did not
include anyone other than allegedly abusive family members, friends or
low-level nursing home employees such as CNAs. Your arrests of these
individuals, while laudable, fit the “majority of abusers” narrative
both yourself and the Michigan Guardianship Association have been
hammering home since March 25.
Nursing home executives, probate attorneys and judges have yet to become part of that narrative.
A politician who makes promises she has no intention of keeping is
expected. One who attempts to shield alleged criminals who are attacking
defenseless people with nothing more than a public relations campaign
designed to pull the wool over the eyes of the voters who placed you
into office is utterly despicable.
While you have forced me to question my own loyalties to party and
community, the real shame of it all is that those who will suffer the
most are the “people out there clamoring to have their voices heard,
clamoring for recognition of their rights and equal dignity, just as
human beings.”
Padlocked refrigerator at unstaffed unlicensed group home in Oak Park, Michigan. Image by Slone Terranella.
The seniors and developmentally disabled individuals who are being
terrorized by these courts are not just the people you swore to protect,
they are human beings.
They deserve better. They deserve justice. It is clear that we disagree on that.
However, for the rest of your tenure, if I have to fight you alone to
ensure these human beings are protected and that the attorneys and
judges who have allegedly committed some of the most unprecedented and
horrific crimes against them receive swift justice. you had better
believe I will.
