Complaints against Texas judges are piling up – and so are complaints against the agency tasked with handling them

By Steve Miller

 

For over a decade, the Texas Commission on Judicial Conduct has refused to cooperate with the state in a routine process for assessing the effectiveness of state agencies.

Lawmakers passed a bill earlier this year requiring the agency to be more transparent, but Gov. Greg Abbott vetoed the measure, insisting that the commission could choose to be more transparent if it wanted to be. The agency was created in the 1960s to enforce rules against judicial misconduct. 

Now the backlog of complaints about the conduct of Texas judges is exploding, driven in part by a population boom, which has led to the creation of new courts and election of new, inexperienced judges to fill those benches.

Some individuals say those complaints are falling into a bureaucratic dead zone.

Records show that the number of pending cases jumped almost 75 percent between 2016 and 2018, from 477 to 827.

“A year ago, we filed a complaint on a judge, and if we hadn’t taken a screenshot of that complaint when we filed it, there would have been no way to know that it had ever been filed,” Emily Gerrick, a staff attorney for the Texas Fair Defense Project, told the House Committee on Judiciary and Civil Jurisprudence during a March hearing on the bill.

The bill would have required the agency to update complainants on the status of their complaints at least once a quarter. It also would have required the agency to report annually on the number of unresolved complaints more than a year old.

“The caseload has grown to 300 cases a meeting, I am told,” said El Paso lawyer Steve Fischer, referring to the number of complaints that the commission is expected to rule on. Fischer is a new appointee to the 13-member commission, one of two members appointed by the state bar association. Six other members are appointed by the state Supreme Court and five by the governor.

Fischer, who will attend his first board meeting in December, said he’s already hearing from lawyers eager to air their gripes about judges.

“I have started these Facebook pages, lawyers only, and we have 20,000 lawyers in the groups, which is a fifth of all the attorneys in the state,” Fischer said. Among the messages he sees, he said, are beefs about judges.

“I could not believe this avalanche of messages,” he said.

Fischer said that opening up the process would help the public understand it better and would benefit the accused in cases of spurious complaints.

“The commission should not be a private meeting and many of the complaints should be fully public,” he said. The governor’s veto, Fischer added, has not helped in gaining the public’s faith that its judges are acting appropriately.

The commission is not subject to the state’s open meetings and public records laws. Its website does not provide meeting dates.

The vetoed bill had been a victory of sorts for Sen. Judith Zaffirini, D-Laredo, who has for years crusaded for more transparency by the commission. A similar bill in 2017 failed to get out of committee, but a successful 2015 measure required the commission to report the types of misconduct that resulted in penalties.

In an email, Zaffirini said the vetoed bill was “a first step to implement simple changes that would increase transparency and SCJC’s responsiveness to complainants and judges. SCJC could implement the provisions in this bill independently, but they have consistently declined to do so, much to my dismay.”

The measure had merit, said Bob Bennett, a Houston attorney who represents attorneys and judges who face complaints.

“The system is not working as it should,” Bennett said. He has no gripes with the length of time to complete a case. But the lack of responsiveness of the commission is troubling, he said.

“I’ve filed a complaint about a judge and never heard anything,” Bennett said. “It’s a blank wall; it’s nonresponsive. So anything that would make this commission more accountable and transparent is a positive.”

Jacqueline Habersham, interim executive director of the commission, did not respond to an interview request.

The veto, Bennett said, “is strange, given the support for that bill.”

Abbott did not respond to an email seeking comment.

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Complaints against Texas judges are piling up – and so are complaints against the agency tasked with handling them

Elder guardian suit against Health & Human Services Commission voluntarily dismissed

NEW BRAUNFELS - The 75 year old single, New Braunfels woman who was guardianized by the Texas Health and Human Services Commission (HHSC) after falling ill with potassium deficiency has voluntarily moved U.S. District Judge Robert Pittman in the Western District to dismiss her federal lawsuit.

As reported in the Southeast Texas Record last month, Thomson sued in federal court through legal counsel for alleged violations of freedom of speech and right of association after Comal County Judge Charles A. Stephens issued a Temporary Restraining Order on July 3 preventing her from visiting with Attorney Phil Ross.

Thomson’s notice of dismissal with prejudice filed on Aug. 26 came on the heels of HHSC’s Aug. 23 motion to seal the case.

“The Second Amended Complaint contains Individual Defendant [Anne M.] Angerer’s personal residential address,” wrote Benjamin S. Lyles, the assistant attorney general representing HHSC. “It also contains her work address and the address of her employer, Texas Health and Human Services Commission. In the alternative to sealing, this Motion seeks only the redaction of Individual Defendant Angerer’s personal residential address.” Angerer is employed as an attorney with HHSC.

Following a trip to a hospital emergency room, a court appointed guardianship was imposed upon Ms. Thomson on May 23 by Judge Stephens. She was forced to move out of her New Braunfels home against her will and into a bedroom in a locked section of the Colonial Manor Nursing and Rehabilitation Center, according to a press release.

“Safeguarding our nation’s seniors from abuse and exploitation must be a priority, and too often our current guardianship system fails to protect older Americans,” said Michigan Congresswoman Debbie Dingell who is advocating against such alleged legal forms of kidnapping with the reintroduction of HR 4174 together with U.S. Florida Representatives Darren Soto, Charlie Crist and Gus Bilirakis.

If enacted, HR 4174 is expected to protect from the risks of abuse and neglect under court appointed guardianship.

For example, in Michigan, Attorney General (AG) Dana Nessel and the state Supreme Court launched an Elder Abuse Task Force after Attorney Bradley Geller alleged Medicaid fraud, violations of due process and the Americans with Disabilities Act in a federal lawsuit against each of the state’s probate courts, all 300 professional guardians as well as Nessel and the Michigan Supreme Court.

On Friday August 26, four Michigan public administrators, who are named in Geller’s complaint, were removed by AG Nessel, according to a statement online. They include Robert Kirk, who served 30 years with the Macomb County Probate Court, John Yun, who served 18 years with Oakland County Probate Court, Thomas Fraser, who served 14 years with the Oakland County Probate Court and Jennifer Carney, who served four years with the Oakland County Probate Court.

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Elder guardian suit against Health & Human Services Commission voluntarily dismissed

6 Michigan judges removed in the last decade

Livingston County Judge Theresa Brennan's ousting in June 2019 marked a rare public moment of discipline for a judge.

The Michigan Supreme Court has removed 17 judges in the 51 years since the Judicial Tenure Commission, or JTC, was created and charged with investigating complaints against the judiciary.

Six of the removals, including Brennan, have occurred in the last decade, an MLive review of JTC annual reports shows. Two others left office amid public disciplinary proceedings - one landing in federal prison.

Of the six formally removed, one was accused of an affair with a litigant and another was accused of mental illness. All of them were deemed unfit to be deciders of justice.

Former Jackson County District Judge James Justin gives last comments before being sentenced at the Ingham County Circuit Court on Wednesday, March 13, 2013. (Mike Mulholland | MLive.com)

Jackson County Judge James Justin

Jackson County's 12th District Court Judge James Justin “failed to follow the law, apparently believing that it simply did not apply to him," the Michigan Supreme Court found.

They removed him in January 2012.

Justin dismissed traffic tickets for himself, his wife and his staff, but also had an extensive history of other bad behavior, justices said.

He also prevented the transmission of or altered court information legally required to be given to the Michigan Secretary of State, dismissed cases without conducting hearings or involving prosecutors, failed to follow plea agreements and made false statements to the commission, the court found.

Following his ousting, Justin was sentenced to 18 months of probation on criminal charges for willful neglect of duty.

The Judicial Tenure Commission offices in the Cadillac Place, where State of Michigan offices are held, in Detroit's New Center, Aug. 5, 2019. (Tanya Moutzalias | MLive.com)

Inkster Judge Sylvia James

Inkster's 22nd District Court Judge Sylvia James misused funds meant for crime victims, the Michigan Supreme Court found.

As such, James was removed in July 2012.

James spent funds intended for the court's Community Service Program, a portion of which is marked for crime victim restitution, on travel, advertising and donations to charities of James' choice, MLive previously reported.

"Many of these expenditures were for advertisements that promoted the judge, prominently displaying her picture and only tangentially mentioning the CSP," according to the opinion.

In addition, the court found she implemented a dress code meant to keep revealing clothing and clothing suggestive of gang connections out of the court, but it inappropriately denied some visitors access to the court.

She also rehired an unqualified magistrate who then erroneously signed over 15,000 bench warrants, hired and gave raises to her niece, and lied under oath, it found.

The Judicial Tenure Commission's 2019 photo inside their offices in the Cadillac Place, where State of Michigan offices are held, in Detroit's New Center, Aug. 5, 2019. (Tanya Moutzalias | MLive.com)

Wayne County Judge Deborah Ross Adams

The JTC recommended a 180-day suspension for Wayne County's 3rd Circuit Court Judge Deborah Ross Adams. The Michigan Supreme Court removed her from office instead.

Adams came under scrutiny during her divorce, which began in 2009, MLive previously reported. 

She inappropriately called the office of the judge handling the case - instead of having her lawyer do so - to request an adjournment and later lied about it, the Michigan Supreme Court determined. She was also accused of forgery, for sending communications to her ex-husband's attorney and filing a motion in her attorney's name.

The Michigan Supreme court found that her deeds warranted a more severe punishment and removed her from office in June 2013.

Wayne County Circuit Court Judge Wade McCree, left, sits with his attorney Brian Einhorn and Colleen Burke during a Michigan Judicial Tenure Commission hearing for McCree at Washtenaw Circuit Court in Ann Arbor on Monday, May 20, 2013 in Ann Arbor. McCree, accused of having an affair, faces Michigan Judicial Tenure Commission hearings on charges of judicial misconduct. The commission says McCree lied during the agency's ethics investigation and falsely reported to prosecutors that the woman who disclosed the affair was stalking him. (AP Photo/Detroit News, David Coates, Pool)

Wayne County Judge Wade H. McCree

When Wayne County's 3rd Circuit Court Judge Wade H. McCree got in trouble for sending a shirtless photo to a court employee, he famously told a news reporter "no shame to my game."

He also feigned taking off his shirt, according to news reports of the time.

He was publicly censured by the Michigan Supreme Court in 2012.

Years later, the son of the first black judge on the 6th U.S. Circuit Court of Appeals would be ousted for something else - an affair with a woman who appeared before him in a child support case.

McCree was removed from office in March 2014 following the scandal and has been barred from taking the bench until 2021.

The state Supreme Court determined McCree discussed possible punishment for the father of the woman's child with her, had intercourse in his chambers, snuck a cell phone in through the employee entrance for her and lied when he finally recused himself from the case.

He also made false claims that the woman was stalking and trying to extort money from him, sent derogatory texts from the bench about those who appeared before him, and lied under oath, according to the opinion

An information sheet for the Judicial Tenure Commission. (Tanya Moutzalias | MLive.com)

Wayne County Judge Brenda K. Sanders

Wayne County's 36th District Court Judge Brenda K. Sanders was removed in July 2015 after concerns were raised about her mental health when she sent a conspiracy- filled letter to then-U.S. Attorney Barbara McQuade.

The letter requested an investigation into the deaths of two judges who she said died suddenly after speaking out about wrongs in the court, MLive previously reported. She also claimed a newspaper tried to name her as a suspect in the deaths and accused the Republican Party and Michigan Supreme Court of trying to evict her.

Sanders was also accused taking a long-term leave of absence for knee surgeries that were never performed and making false representations to the JTC.

She refused psychiatric examinations but was deemed by a doctor to have a psychotic disorder.

Sanders was previously suspended in 2010 for acting as her own campaign treasurer and continuing a campaign for mayor as an elected judge.

In this Oct. 1, 2018 photo, Livingston County Judge Theresa Brennan sits during her judicial misconduct proceeding in Livonia, Mich. Brennan has been ordered to trial on criminal charges related to her divorce. The decision Wednesday, June 26, 2019, came a week after the Michigan Supreme Court heard arguments about removing Brennan from the bench in a separate matter. (Jose Juarez/Detroit News via AP)

Livingston County Judge Theresa Brennan 

Livingston County's 53rd District Court Judge Theresa Brennan became the latest judge removed from office in June 2019.

Her downfall began during her own divorce proceedings in 2017 when an accusation arose publicly that she'd had an affair with a lead detective in a double-homicide case, for which a man was sentenced to life in prison.

Though Brennan fought the accusation, the Michigan Supreme Court found Brennan failed to disclose the extent of the relationship during the trial.

But that wasn't Brennan's only mistake.

"We are not often confronted with the multifarious acts of misconduct that are present in this case," justices said in a footnote of the decision. "The individual findings of misconduct range from those warranting the most severe sanction of removal (such as lying under oath) to those that are still unacceptable, but might warrant a lesser sanction (such as respondent’s improper demeanor on the bench)."

Brennan took multiple days to disqualify herself from her own divorce case, deleted data from a phone despite a filing to preserve evidence and interrupted depositions in the divorce, according to the opinion.

She also improperly had her court staff work on her 2014 campaign and made false statements to the commission and in her divorce.

She also was "persistently impatient, undignified, and discourteous to those appearing before her," the court found.

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6 Michigan judges removed in the last decade

Green Bay man charged in Sheboygan nursing home abuse; coworker says he punched resident

SHEBOYGAN - A Green Bay man was charged Monday with four felonies related to two July 7 incidents in which a coworker said he assaulted a resident in the Sheboygan nursing home where he worked.

David Stephen Boozer, 66, was charged with two counts of intentionally subjecting an individual at risk to abuse and two counts of aggravated battery to the elderly.

According to court documents, a coworker assigned to a floor for patients with dementia and Alzheimer's said she saw Boozer use violence to get a patient back to his room, including punching the patient in the chest. After Boozer pushed the patient back to his room in a wheelchair, she found the patient on the floor and the wheelchair tipped over, she told police.

David Stephen Boozer
(Photo: Sheboygan County
 Sheriff's Department)

A little while later, the coworker said Boozer rammed a wheelchair into the same patient's legs. When the patient tried to enter another patient's room, Boozer dragged him to the floor and out of the room by the shirt, court documents said.

According to court documents, the coworker estimated that she had worked with Boozer about 20 times in the past. She previously reported him to the nursing home's administration for negligence, she told police, including for one instance where she said he refused to provide needed medications to dying patients.

A cash bond of $50,000 was set and a preliminary hearing is scheduled for July 17.

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Green Bay man charged in Sheboygan nursing home abuse; coworker says he punched resident

Cashing in on dementia patients: drugmaker to pay $116 million in fraud settlement

By Blake Ellis and Melanie Hicken

(CNN)A pharmaceutical company that whistleblowers alleged paid doctors to prescribe its main drug and urged salespeople to push it as a way to control unruly dementia patients will pay more than $100 million to settle government fraud allegations.

The Department of Justice announced the settlement with Avanir Pharmaceuticals on Thursday, four years after these whistleblowers alerted the federal government that they believed the company was paying kickbacks to doctors and illegally marketing its main drug, Nuedexta -- particularly in nursing homes. Each of these three whistleblowers will receive a portion of the millions Avanir has agreed to pay.

 

In addition to the settlement with Avanir, Justice Department officials announced they had indicted two doctors and two of the drugmaker's salespeople for their alleged involvement in a "kickback conspiracy." 

The allegations resulting in Thursday's $116 million settlement -- which includes both civil damages and criminal penalties to federal and state governments -- mirrored those exposed by a 2017 CNN investigation into inappropriate and potentially fraudulent use of Nuedexta in nursing homes. Avanir said the company is "deeply committed to regulatory and legal compliance, integrity and ethical behavior" and that it had cooperated with the government investigation and "engaged in extensive remedial measures," which the government said included terminating or otherwise removing multiple employees. 

 

The DOJ also said Avanir admits it paid a doctor "to induce him to not only maintain, but increase his prescription volume." 

 

Nuedexta, which hit the market in 2011, is only approved by the federal government for a rare condition characterized by uncontrollable laughing and crying, known as pseudobulbar affect, or PBA. 

 

Yet whistleblowers alleged in lawsuits that from the drug's early years, the company illegally directed salespeople to market Nuedexta in nursing homes as an alternative to antipsychotic drugs specifically for "use in controlling the behavior of patients prone to disruptive outbursts." This came as the government attempted to crack down on the use of antipsychotics in restraining elderly dementia patients.

 

They also claimed that salespeople coached doctors on how to fill out prescriptions to ensure approval, forged physician signatures on paperwork for insurers and asked nursing home employees for names of patients to create lists of people physicians should target with Nuedexta.

 

"At least one Avanir (salesperson) went so far as to dress in scrubs, review patients' files at the nurses' station in nursing homes, and write the diagnosis for PBA in the medical files of patients," one lawsuit stated, adding that these tactics were allegedly praised by an executive on a national sales call.

 

Federal laws restrict the tactics pharmaceutical sales representatives can use to sell a medication. They can't give favors or payments in exchange for a doctor prescribing the drug. They can't have any contact with private patient records without the patient's consent. And they can't promote use of a drug off-label, in a way that hasn't been approved by the FDA.

 

Pharmaceutical companies are allowed to pay a doctor to promote a drug to colleagues and other medical professionals. It is illegal, however, for doctors to prescribe the drug in exchange for kickback payments from a manufacturer.

 

But the DOJ found that in order to boost prescriptions -- and in turn their own paychecks -- Avanir salespeople incentivized physicians by paying them for speaking events and meals. In one case, a salesperson allegedly offered to pay for a physician's firearms training. And in another, a doctor's staff Christmas parties were allegedly paid for by Avanir, according to one of the whistleblower suits.

Thursday's announcement resolved a government investigation involving the two separate whistleblower lawsuits. These complaints were originally filed under seal in 2015, and they were kept secret until the DOJ chose to publicly intervene in the cases with this settlement. Separately, the Los Angeles City Attorney's Office opened its own probe into the sale and marketing of Nuedexta in the wake of CNN's investigation in 2017. The office would not comment on whether this inquiry is ongoing.

 

"It is particularly concerning when a pharmaceutical company uses kickbacks to drive up sales in connection with a vulnerable population, such as elderly patients in nursing care facilities," US Assistant Attorney Jody Hunt said in the DOJ statement.

 

Medicare's Part D prescription drug program spent roughly $225 million on Nuedexta in 2017 -- up more than 700% from five years earlier, according to government data.

 

Much of this sales growth was fueled by doctors who received kickbacks, according to the whistleblowers. They noted how some of the doctors who were paid to promote the drug went on to prescribe Nuedexta to disproportionate numbers of patients in the same nursing homes -- pointing to one example where a doctor allegedly put at least 30% of a facility's patients on Nuedexta. And the DOJ said an Avanir employee reported that a physician had placed "entire units" of patients on the medication.

 

"Avanir instructed sales representatives to provide false and misleading information that PBA patients could be exhibiting a wide variety of 'behaviors' such as crying without tears, moaning, or making other inarticulate sounds, when, in fact, those symptoms are commonly observed in patients who have dementia but do not have a diagnosis of PBA," the DOJ's press release stated. "This strategy worked, and Nuedexta utilization in (long-term care) facilities increased."

 

One of the whistleblowers involved in Thursday's settlement, a former sales director, said he was fired months after starting with the company, after he spoke out against practices including improper payments to a select group of high-prescribing doctors "who were willing to recommend Nuedexta to patients who likely didn't need the drug," according to a press release from The Employment Law Group, which represents him.

 

"Soon after he complained to an Avanir vice president about the company's use of 'speaker fees' to reward doctors for writing unnecessary prescriptions for Nuedexta, (he) was fired," the release states. While the government settlement resolves fraud claims against the company, the former employee is still suing Avanir for unlawful retaliation.

 

His suit also highlighted payments to an Ohio doctor, Deepak Raheja. CNN previously reported that Raheja had received nearly $300,000 from Avanir during a four-year-period, and was under investigation by the federal government for fraudulently diagnosing patients with PBA in order to secure Medicare coverage.

 

The DOJ also announced on Thursday that Raheja had been indicted -- saying he was one of multiple doctors who allegedly prescribed Nuedexta in exchange for payments from the company. The top prescriber of Nuedexta in a nearly five-year period, Raheja allegedly falsified symptoms in patient records to support his phony diagnoses, the DOJ stated. Earlier this month, a letter from the Ohio Medical Board stated that Raheja had inappropriately diagnosed nearly a dozen patients with PBA and then prescribed them Nuedexta "without sufficient justification."

 

As a result, the board is determining whether Raheja's license should be revoked, suspended or otherwise limited. Raheja's attorney declined to comment.

 

"Doctors should prescribe medicine based on what is best for their patients, not on which drug company is paying for their travel and meals," US Attorney for the Northern District of Ohio Justin Herdman said in Thursday's statement.

 

Clarification: This story has been updated to reflect that the doctor Avanir admitted to paying in order "to induce him to not only maintain, but increase his prescription volume" may not be one of the doctors who was indicted.

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Cashing in on dementia patients: drugmaker to pay $116 million in fraud settlement

LARA shuts down Southfield special needs group home due to violations, unsanitary conditions

By: Rudy Harper

SOUTHFIELD, Mich. (WXYZ) — A facility housing people with special needs suddenly shutdown Thursday. The home is located off Fairfax in Southfield.

Lisa Caruso made a desperate plea to find another home for her disabled uncle who is blind and mentally ill.

"There are a lot of very intelligent, good people who deserve a good life," Caruso said. "I just don't think they got it here."

Caruso said some residents are homeless after the sudden closure.

He said he was hired as a caretaker and hasn’t been paid in four weeks. He also told me, he cared for 12 people in the house at one time. Our full report airs in minutes on @wxyzdetroit pic.twitter.com/pQ7bHAGIhb

— Rudy Harper (@RudyHarperWXYZ) September 27, 2019

"I'm trying to get a hold of anybody to help me get medications from his home," Caruso said. "He has been locked out, although his rent has been paid."

Around 5 p.m., investigators with Michigan's Licensing and Regulatory Affairs (LARA) descended on the group home and posted violation notices.

The facility was licensed to care for people who are physically handicapped, developmentally disabled, mentally ill, traumatically brain injured, or suffer from Alzheimers.

Action News has obtained a report of major violations. Among the complaints, it states, a staff member punched a resident. There are also allegations of unsanitary conditions and an overall unhealthy environment.

My Beloved Group Home Special Investigation Report by WXYZ-TV Channel 7 Detroit on Scribd

Action News spoke with the staff member who is accused of punching a resident. He said the resident assaulted him and he accidentally punched the resident in self defense.

The owner of the facility is Theressa Nelson. She declined an on-camera interview Thursday evening, but denied the allegations via telephone.

LARA did not immediately return Action News' call for comment.

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LARA shuts down Southfield special needs group home due to violations, unsanitary conditions

Sterilization judge denied quash in elder guardian racketeering lawsuit

By David Yates

OHIO - The Honorable Cuyahoga County Court of Common Pleas Judge  Sherrie Miday denied Lorain County Probate Judge James T. Walther’s motion to quash last week in response to a forlorn husband's request for  his wife’s adult guardianship records, according to a press release.

“The  court hereby orders that an in-camera inspection is to be conducted to determine relevancy to the allegations in this complaint per the request  of the movant,” wrote Judge Miday in her Sept. 30 order. “The Lorain  County Probate Court is hereby ordered to produce to Judge Sherrie Miday  for an in-camera inspection on or before Oct. 18, 2019.”

Dr. Mehdi Saghafi, 89, filed the racketeering lawsuit in the state of Ohio on Jan. 31 under the Organized Crime Control Act of 1970 after guardians appointed by Probate Judge James Walther in Lorain County allegedly initiated a divorce between the retired general surgeon and his wife of 60 years, Mrs. Fourough Bakhtiar [Saghafi] with whom he had amassed $8  million in marital assets, according to a press release.

“Should  any item(s) be found relevant by this court,” stated Judge Miday. “A  protective order will be in place prior to production.”

A  protective order, if issued, would allegedly preclude the parties from  circulating an April 2, 2015 tape recorded interview with the  85-year-old Mrs. Saghafi.

“She  was asked permission to use her assets to pay for Guardian of the  Estate Jaleh Presutto’s criminal defense attorney fees, which were  incurred as a result of being charged for the kidnapping of Mrs. Saghafi  and the theft of her money,” Dr. Saghafi’s attorney Charles Longo said.  “It is believed that the recording will reveal communication between  Guardian of the Estate Zachary Simonoff, Jaleh Presutto and counsel that  relate to Mrs. Saghafi giving permission to pay those criminal defense  fees even though Mrs. Saghafi had been deemed incompetent.”

In  2013, the Honorable Judge Walther made national headlines when he  ordered dead beat father Asim Taylor to stop making babies or face  prison time until $100,000 in child support was paid, according to media  reports. That same year, court records show that Judge Walther  guardianized 85-year-old Mrs. Saghafi while her physician husband  alleges that the court appointed guardians and others are operating a  scam to liquidate the Saghafi family assets.

“Jaleh  Presutto was removed as guardian for criminal activity three times and  was reappointed by Judge Walther despite pleading guilty to multiple  charges of forgery and theft for defrauding the Amherst school system,”  Dr. Saghafi’s attorney Charles Longo previously told the Southeast Texas  Record. “By law, Mrs. Saghafi’s funds are only supposed to be used for  the care and needs of Mrs. Saghafi not legal fees but Mrs. Saghafi’s  funds were used to finance her personal attorney, Neil Spike,  $270,000.00, most of which was paid when Presutto had been removed as  guardian.”

The  Saghafi lawsuit is one of many filed across the country that are  exposing the unexpected downsides of court-appointed adult guardianships  of the elderly and people with disabilities, which are designed to help  them manage their lives. Those downsides, which include accusations of  neglect, elder abuse and financial exploitation, haven’t escaped the  watchful eye of Congress, which re-introduced HR 4174 to enact  protections against elder abuse and neglect under guardianship.

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Sterilization judge denied quash in elder guardian racketeering lawsuit

91-year-old man attacked with rock while visiting wife's gravesite in California

(CNN) -- Authorities are on the hunt for the man who violently attacked a 91-year-old widower with a large rock as he was visiting his wife's gravesite, police said.

The suspect "took property from the victim" and then fled on foot and later a bike, the Santa Clara Police Department said, calling the attack "unprovoked and ruthless."

The attack took place at the Mission City Memorial Park cemetery on the morning of September 14. The victim was taken to a nearby hospital for treatment.

Police said they believe the attack was an isolated incident, but urged the public to report "any suspicious activity."

The suspect was described as a 35 to 50-year-old Hispanic or Latino male, about 6 feet tall with a medium build, police said.

He had gray "slicked back hair," a gray mustache and was wearing a white T-shirt and long black shorts, the department said, and was last seen riding a gray and black mountain bike.

PRESS RELEASE - Public Assistance Needed to Locate Suspect
Date: 9/14/19
Time: 10:42am
Incident: Felony Assault, Elder Abuse & Robbery
Case Number: 19-914065
Location: Mission City Memorial Park - 420 North Winchester Blvd
Full Press Release at https://t.co/mEGxaqxG7T pic.twitter.com/o9356UIrnR

— Santa Clara Police (@SantaClaraPD) September 26, 2019

"Anyone with information regarding this crime, including any video capturing the streets surrounding Mission City Memorial Park... is asked to contact Detective Sergeant Nick Richards at (408) 615-4814 or anonymously at (408) 615-4TIP (4847)," the department said.


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91-year-old man attacked with rock while visiting wife's gravesite in California

Ex-TD Bank manager to plead guilty to stealing $97K from customer's accounts

Britt Landsperger

BRENTWOOD — State prosecutors will ask a judge to sentence a former assistant vice president and manager at a TD Bank in Portsmouth to at least four years in prison after she agreed to plead guilty to stealing more than $97,000 from a mentally disabled customer.

As part of a deal reached last week, Britt Landsperger, 47, of Stratham, will plead guilty to multiple theft charges at a plea and sentencing hearing scheduled for Nov. 1.

Landsperger was indicted in January on seven felony counts of theft by unauthorized taking for allegedly stealing from seven of the customer’s bank accounts on several occasions between 2013 and 2018. She is accused of taking more than $1,500 from each account.

Landsperger was also charged with misdemeanor theft alleging that she took less than $1,000 from another account.

The Attorney General’s office has said that the total amount stolen from all of the accounts exceeded $97,000.

The charges accuse Landsperger of taking advantage of the 68-year-old customer’s “mental condition that impaired her ability to manage her property or financial resources.” Some of the charges allege that Landsperger also took advantage of the customer’s age.

The customer had relied on employees to help her with finances because she wasn’t able to balance her own checkbooks.

Assistant Attorney General Brandon Garod, who leads the office’s Elder Abuse and Exploitation Unit, will ask Judge Andrew Schulman to sentence Landsperger to 4 to 8 years in state prison.

Public defender Kevin O’Keefe is expected to seek 2 to 4 years.

Landsperger was accused of using the money for rent, shopping, eating out, getting manicures, hosting a graduation party for a relative and taking family summer vacations, authorities have said.

Portsmouth police and the state’s Bureau of Elderly and Adult Services learned about the thefts from a bank employee in May 2018.

Landsperger admitted depositing the customer’s money into her own account, forging signatures and changing the amount to be withdrawn on signed checks, according to a Portsmouth police affidavit.

Landsperger, who was hired by TD Bank in 2013, faced the possibility of enhanced penalties for allegedly taking advantage of the customer’s age or physical condition.

If the case went to trial and a jury convicted her, Landsperger could have been sentenced to up to 10 to 30 years in prison on each felony count while the misdemeanor could carry a sentence of up to 2 to 5 years.

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Ex-TD Bank manager to plead guilty to stealing $97K from customer's accounts

Blair at forefront of new guardian tracking system

Despite some complaints, a new Guardianship Tracking System by the Blair County courts is proving to be a valuable protection against exploitation of incapacitated, elderly and disabled adults.

Blair County President Judge Elizabeth A. Doyle said in a interview that a recent criminal case in Blair County brought attention to how vulnerable those who are incapacitated can be.

A caretaker for a 75-year-old woman was sent to prison in August for physically and psychologically mistreating her elderly client.

The situation came to light when the family installed a nanny cam in their mother’s home and caught the abuse on camera.

Blair County First Assistant District Attorney Peter Weeks said the laws against elder abuse need to be tougher as a deterrent to such mistreatment.

Strengthening the criminal laws is a task for the General Assembly, but Doyle wanted the public to know that Blair County is aware of elder abuse and for several years has been upgrading the county’s guardianship system.

This is a system in which the Court of Common Pleas, upon medical testimony that a person cannot continue to responsibly handle his or her own affairs — financially, medically or for other reasons — appoints a guardian.

According to a recently published Blair County Handbook for Guardians, the person, or in some cases an agency, “have a duty to protect the rights and property of the incapacitated person.”

Guardians have traditionally been required to file annual reports with the Blair County prothonotary and clerk of courts.

Several agencies provide the guardianship services, including Blair Senior Services, Distinctive Human Services with offices in Cambria County and Ursuline Support Services of Pittsburgh.

However, most guardians are family members or others close to the person who has been declared incapacitated.

In the past, the requirement for annual reports has sometimes been waived or a judge has told the guardians to send a letter reporting what is being done to protect the person.

In 2013, the Pennsylvania Supreme Court convened an Elder Task Force to improve the way the courts address the challenges presented by the older population and incapacitated adults, such as those with mental disabilities or adults recuperating from serious accidents.

The task force concluded that guardianship case docket practices statewide “are inconsistent and in need of improvement.”

It noted clerk of courts offices often did not know when court-ordered guard­ian­ships were concluded by death or by discontinuance of the need for a guardian.

The task force concluded that the aging population can better and less expensively be maintained in the community but warned that elder abuse and exploitation will not be a short-term problem.

The report produced dozens of recommendations and resulted in the formation of an Advisory Council on Elder Justice in the Courts.

It also recommended the creation of a Pennsylvania Office of Elder Justice in the Courts.

Blair County at the forefront

As a protection against exploitation of incapacitated residents, Blair County this year implemented a new Guardianship Tracking System.

It requires an inventory of the incapacitated person’s assets and requires annual reports outlining how the person’s money has been spent.

It also requires a final report if a person has died or is no longer in need of a guardian.

Those reports are expected to be filed online, although the reports can still be filed on paper, but for an extra fee paid to cover the time it takes for a clerk to type the report into the computer system.

It also provides for a review of the reports and oversight of the guardianship program by two longtime Blair County attorneys who are experienced with elder care issues, James V. McGough and Maryann Joyce Bistline.

McGough has practiced in Blair County for 42 years, while Bistline has been a member of the local bar for 32 years.

“We review the files, and if questions need raised, we refer them to the court,” Bistline said.

The online system is programmed to “red flag” possible problems in the reports.

McGough stated that inventories of the incapacitated person’s assets often raise red flags, and he noted that if the person receives Social Security benefits, the guardian is expected to attach a Social Security benefit report to the annual guardianship report.

Guardians have been having problems uploading the Social Security reports, and this will be addressed by the local and state officials, he said.

Many of the red flags noted through the state computer system are easily resolved.

One annual report for instance listed a payment for real estate taxes. That was flagged because the inventory of the person’s assets listed no property.

Bistline explained that issue was quickly resolved because the payment was $9.80.

It was determined this was a head tax reported on the wrong line.

McGough explained he and Bistline have been involved with improvements to the guardianship system during the past five or six years.

McGough said, “Blair County was one of the counties in the forefront of providing oversight of guardianships within the courts.”

The two attorneys have reviewed all of the reports filed this year by the guardians for 280 incapacitated individuals with active cases in Blair County.

“It’s a challenge. It requires a fair amount of time and commitment,”
McGough said.

He and Bistline split the reports, alternating months as to who reviews them, but sometimes they jointly review a report.

“We are doing this because we want to, because of the type of work involved. I find it fulfilling on a personal level, having dealt with elderly parents. I’m realistic about the responsibility and challenges,” McGough said.

Bistline has a similar feeling about the challenging task of reviewing hundreds of reports. “I think it is a worthwhile project we have undertaken.”

She looks at the new requirements being placed on guardians “as a gentle reminder as to what their responsibilities are.”

The rules have changed

Doyle said the idea of the new system isn’t to burden people who, in many cases, have been caring for their disabled children or elderly parents for many years without having to file lengthy reports.

But it is important that the county knows who the guardians are and the status and details of their guardianships.

If reports aren’t being filed, she said, “We’ll see that.”

If the proper reports are not filed, a notice will be sent. If reports still are not filed, a hearing will be scheduled.

A guardian who refuses to file the reports could be replaced, the judge said.

Blair county has prepared a “Handbook for Guardians” that answers many questions that have arisen with the implementation of the new system.

It explains the inventory that must be itemized in an initial report by the guardian.

The inventory includes bank accounts, personal property, vehicles and money the incapacitated person expects to receive.

It explains the rights the incapacitated person retains, which include the ability to participate in decisions affecting the quality of one’s life and the right to take an active role in planning support services as well as the right to petition the court for review of the guardianship.

The reporting requirements are explained if there is a change in the incapacitated person’s status.

A copy of the questions that must be answered in the annual report are also included in the handbook.

While there is an emphasis on online reporting, Bistline is aware not all people have computers.

She suggested if that is the case, guardians can access the reporting system by going to one of Blair County’s eight libraries where computers are available.

In summing up what the new Guardianship Tracking System means, Bistline stated, “The rules have changed. People aren’t doing anything wrong. It’s just that the rules have changed.”

The person who must deal with the new rules on a day-to-day basis is Robin Patton, Blair County prothonotary and clerk of courts.

She and her office staff went through several days of training earlier this year, sponsored by the Administrative Office of the Pennsylvania Courts.

Patton has assigned a member of her staff to handle all the records and filings involved with the new tracking system.

“They (state AOPC personnel) were here several days, training and answering questions,” Patton stated.

It has taken time getting used to the new system.

Patton said, “The guardians don’t like it,” pointing out many of the guardians have served in that capacity for years and are now required to file comprehensive reports.

She noted the staff member she has assigned to docket the reports and oversee the system within her office is “well-versed.”

“We are still learning about it and tweaking it (the tracking system),” she commented.

Full Article & Source:
Blair at forefront of new guardian tracking system

Clinton Township guardianship company disputes Attorney General's intervention in probate case

By Jameson Cook
 
A Clinton Township guardianship and conservatorship company accuses the state Attorney General of being "over-zealous" in trying to intervene in a high-profile Macomb County Probate Court case involving the company.

Caring Hearts Inc., represented by attorney Edward Nahhat, earlier this month filed a response to Attorney General Dana Nessel’s request to intervene in a review of the case involving wards Robert Mitchell and Barbara Delbridge, who were under the guardianship of Caring Hearts Inc.

Nessel questions Judge Kathryn George’s appointment of Caring Hearts, its expenditures and its decision to hire Executive Care to perform care-taking services for the couple who were living in Utica. Both companies are owned by Catherine Kirk, whose husband, Robert, is a partner in a law firm that represented Caring Hearts.

Nahhat also accuses Nessel’s office of making “overbroad” accusations in a politically-motivated effort in seeking to enter the case.

“The Attorney General’s objections … are overbroad, unsubstantiated by detail and inequitable,” Nahhat wrote. “It appears the Attorney General has misapplied this statute (one of the applicable laws) as well, in order to political scapegoat Catherine Kirk, Robert Kirk, and their respective services.

“Clearly, Caring Hearts Michigan In. and its contracted in-home health care provider (Executive Care) and its contracted law firm (Kirk, Huth, Lange and Badalamenti) provided valuable services to the benefit of the wards over a significant period of time, and was appointed by the court (Judge Kathryn George) without petitioning itself to be appointed for these individuals.”

Nahhat wrote that Judge George was aware of the relationship between Caring Hearts and Executive Care when she made the appointment.

The Attorney General Office says the appointment violated law.

Caring Hearts charged more than $250,000 for about six months of care.

Assistant Attorney General Michael Moody alleges the relationship between the companies makes the transactions involving the funds “voidable" in court documents.

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 wrote, “The intention behind this provision is to prevent conflicts of interest.”

But Nahhat responds the Attorney General has “misapplied” the law because Caring Hearts or Executive Care have not provided any of those services.

“The Attorney General, in an over-zealous pleading, repeats general but inaccurate slanders about Caring Hearts Inc.,” Nahhat says. “The fact is that Caring Hearts Inc. never engaged in any behavior prohibited (by law).”

Nahhat also vehemently denies accusations of a conflict of interest due to the arrangement between the Kirks, accusing the Attorney General of a “wildly exaggerated interpretation” of the law “for political purposes.”

Nahhat notes Mitchell and Delbridge received something of value from the Caring Hearts and Executive Care.

He says that typical cases that violate the law involve a guardianship company hiring a family member to manage a ward’s investments.

“Nothing has been hidden in the work provided, and Catherine Kirk never involved her spouse in ‘investment or management transactions,’” he says.

A hearing in the case is set for Jan. 10 in front of circuit court Judge James Biernat Jr., who as chief judge is substituting for George in Probate Court.

Caring Hearts was first appointed as guardian and conservator for Mitchell and Delbridge, who are both over 70, over family members in November 2018.

In May, 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.

Caring Hearts and Executive Services in early June withdrew from serving as guardian and conservator.

Biernat granted Marcie Mitchell guardianship and conservatorship over her father, Robert, and Anita Little gained guardianship and conservatorship over her sister, Delbridge. The conservatorships were named pending the posting of bonds.

Moody in the early-September intervention request says George violated the law by making the appointment.

Full Article & Source: 
Clinton Township guardianship company disputes Attorney General's intervention in probate case

Watchdog: In Short Hearing, Fierle Given Guardianship Over Patient

By Greg Angel

ORLANDO, Fla. — In less than three minutes, Steven Stryker was stripped of all legal authority to make decisions for himself.

• Steven Stryker died in May because Do Not Resuscitate order was filed
• Rebecca Fierle accused of filing DNR without Stryker's permission
• Fierle under investigation for actions as a guardian on other cases as well
• CHART: Senior Care in Question: The Rebecca Fierle Case Explained

Newly-obtained court audio from September 2018 shows when now-embattled professional guardian Rebecca Fierle was given full authority over Stryker, 75, of Brevard County, in a court hearing that at times included laughter. Stryker hadn't even met Fierle yet.

The hearing's audio is a stark contrast from the sharply-worded petition issued by Ninth Circuit Judge Janet Thorpe, this summer. She was the same judge who presided over that September 2018 hearing. It is not clear what records Thorpe may have reviewed before granting guardianship.

The petition began to reveal what many had tried for years to show: Florida’s guardianship system is in crisis.

State investigators blame Stryker’s death on Fierle, saying she ordered his feeding tube capped, and because Fierle placed a Do Not Resuscitate order against Stryker’s wishes, doctors could not provide lifesaving support.

Stryker’s death sparked multiple ongoing criminal investigations, as well as Fierle’s resignation from hundreds of guardianship cases statewide, and growing scrutiny on the system.

"We had no time to prepare"

“Steve was very capable of making his own decisions,” said Linda Lanier, a close friend of Steven Stryker’s for nearly a decade.

In 2014, Stryker appointed Lanier his durable power of attorney and health care surrogate.

“That only ever came up because of medical issues,” Lanier said. “Steve was having a lot of issues with his esophagus.”

In June 2018 Stryker was Baker Acted to AdventHealth in Orlando, which Lanier said he then self-admitted for treatment.

“All of a sudden a sudden within a week of that treatment, I’m getting phone calls from Florida Hospital saying he’s got to go, he’s ready for discharge, but we can’t find a place for him unless there’s a guardian in place,” Lanier said.

Perplexed as to why a guardian was necessary, Lanier said the ultimate plan was for Stryker to live with her and her husband at their Brevard County home while Stryker received additional treatment at the VA Center.

It was on August 29, 2018 that Lanier says she was suddenly served with a notice of a hearing set for the following week: September 5, 2018.

“We had absolutely no time to prepare, Steven’s daughter Kimberly who lives in Virginia, and I were going nuts,” Lanier said.

The September 5, 2018 hearing was in response to AdventHealth’s petition to the court asking specifically for Rebecca Fierle to be appointed as Steven Stryker’s guardian.

A Spectrum News investigation found AdventHealth had made multiple petitions previously seeking Fierle be appointed guardian for various patients. In multiple cases seeking Fierle appointments, AdventHealth relied on attorney Philip Wallace as outside counsel.

Stryker’s family disputes AdventHealth’s claims in their petition that family could not be reached, and Steven Stryker was unable to make his own health care decisions.

“The decision was made for Rebecca to be assigned. She never contacted me, she never reached out, never asked for any information from me,” Steven’s daughter Kimberly told Spectrum News in July.

With days until the September 5, 2018 hearing, Lanier said she begged AdventHealth’s attorney Philip Wallace and Stryker’s court-appointed attorney Lori Loftis to delay the hearing.

“Both of them told me, quote unquote, Judge Thorpe would not allow this to happen,” Lanier said.

What Happened at the Hearing

Audio reveals those attending the September 5, 2018 hearing included Rebecca Fierle, AdventHealth representatives Philip Wallace and Melixa Carbonell, as well as Lori Loftis, Stryker’s then court-appointed attorney, who waived Steven Stryker’s right to appear at the hearing.

Wallace, Loftis, and Fierle are all heard identifying themselves at the beginning of the recording.

The hearing is supposed to set the status of Stryker’s temporary guardianship, but that quickly changes after Judge Thorpe announces she has possession of three reports from members of the court’s examining committee.

Judge Thorpe: “Ok, one, two, three…we’ve got three reports already in.”
Unknown: (Chuckling)
Attorney Wallace: “Yes ma’am.”
Judge Thorpe: “So much for emergency.”
Attorney Wallace: “Right” (chuckle)
Judge Thorpe: “We’ve got the final list later this month.”
Attorney Wallace: “Is the 26th, I believe.”
Judge Thorpe: “Well not anymore.”
(Collective laughter)
Unknown: “It’s right now. First and final.”
Judge Thorpe: “We just changed that. Alright. The recommendation of the three examining committee members, are they in consensus?”
Attorney Wallace: “They are your honor.”

The audio transcript shows in full how the decision was made at that point to give Fierle permanent control over Stryker’s affairs, assets, and life.

“To hear it now, to hear the voices and the laughing, it’s horrifying,” Lanier said.
The audio continues:

Judge Thorpe (to attorney Loftis): “You’ve seen the client?”
Attorney Loftis: “Yes”
Judge Thorpe: Are you (interrupted)
Attorney Loftis: “I’m in agreement your honor. There was a friend out there that was serving, we’re not sure if POA (interrupted)”
Attorney Wallace: “There is a reported Power of Attorney, signed in February. We don’t believe he had capacity to execute it. I’ve been in close contact. I spoke with her for a long time yesterday, she’s in agreement with having a professional guardian appointed.”
Attorney Loftis: “She conveyed that to me as well.”

This is a notion that Lanier fiercely denies, saying she was never in an agreement for a permanent guardian to be appointed to oversee Stryker.

“Philip Wallace left me a voicemail the day of the hearing saying 'I told the judge quote unquote your wishes, or your position', he didn’t tell the position,” Lanier said. “My position was he [Stryker] needs to go to the VA.”

Lanier is adamant that Stryker’s court-appointed attorney, Lori Loftis, acted against his wishes by not allowing him to appear in court.

“Steve wanted to go to the hearing, he was ready," Lanier said. "And the hospital said no.”

Spectrum News made multiple efforts to seek comment from attorneys Philip Wallace and Lori Loftis, but messages were not returned.

A spokesperson for the Ninth Judicial Circuit, on behalf of Judge Thorpe, told Spectrum News, “…hearings vary in length depending on their scope, purpose, and many other factors. The Court cannot comment further while there is an ongoing court case and law enforcement investigation.”

The Need for Oversight

Stryker’s case has put much attention on the state’s guardianship program and what critics say are large voids of oversight.

Lanier points to the September 5 hearing’s audio transcript as evidence.

“Not too truthful, you know, I want to give the judge at least the benefit of the doubt, a little bit. She can only go by who comes in front of her bench,” Lanier said. “You’re counting on these individuals to bring you the right information, but how much due diligence are these judges doing, to make sure all of this is correct?”

Judge Thorpe first called out Fierle ahead of a July 11, 2019 emergency hearing. Judge Thorpe wrote in a petition that there was sufficient evidence to see Fierle’s “abuse of power” and a series of “conflicts of interest”.

Judge Thorpe ordered reporters to leave that July 11 hearing at the request of attorneys, and sealed the proceeding. However, a transcript of the hearing put into focus a series of actions that Judge Thorpe said Fierle took without court knowledge.

The hearing also raised questions about the judge’s oversight of local guardians when the July 11 hearing revealed the number of cases Fierle was assigned.

“She had 97,” Thorpe said according to the July 11, 2019 hearing transcript. “We overloaded her. We overloaded her. So it probably won’t be a situation if she comes back in to take a look at it.”

A judge can appoint a guardian to oversee the welfare of an individual, extending the legal right to make decisions on behalf of the person’s affairs, health care, and finances, with control of various bank accounts and other assets.

Judge Thorpe also revealed that same day that she found Fierle had not been bonded and insured since 2013, so should have been disqualified as a guardian in the past six years.

Additionally, Fierle had employees working for her at her Geriatric Management company, without reporting those employees to the state and ensuring they were going through required criminal and financial background checks.

On September 13, 2019, Judge Thorpe also filed an order permanently removing Rebecca Fierle from any appointment in Orange County as a professional guardian, based on the findings of a second investigation by the Orange County Comptroller’s Office, which again raised questions about Fierle’s handling of financial assets of her wards.

“At no time during this Judge’s tenure in the Probate Division for Orange County did Ms. Fierle bring an issue dealing with a “Do Not Resuscitate Order” to the Court’s attention, much less in the specific case which brought this issue to light,” Judge Thorpe wrote in the September 13, 2019 order. “This appears to be a direct violation of the Administrative Code and her duty to ensure a Ward’s best interests are paramount. This Court finds probable cause that Ms. Fierle violated the Florida Administrative Code and her general duty to perform in a Ward’s best interests.”

Judge Thorpe wrote in the above order that Fierle failed to disclose her financial relationship with AdventHealth.

A September 2019 investigation by the Orange County Comptroller’s Office found Fierle charged AdventHealth at least $3.7 million for services; invoices Advent Health paid to Fierle without court approval nor knowledge.

Florida Administrative code states: “A professional guardian is specifically prohibited from soliciting or accepting incentives from service providers.”

“It is clear from the AdventHealth documents and the Comptroller’s Report that Ms. Fierle substantially benefited from her association with the facility, a service provider,” Judge Thorpe wrote in her September 13, 2019 order. “This Court finds probable cause that Ms. Fierle had a fiduciary duty to, at the very least, disclose her relationship with AdventHealth to the Court and the monies she was receiving prior to her appointment as guardian of any wards coming from AdventHealth. This information would have been extremely helpful to the Court in ensuring there was no conflict of interest in Ms. Fierle acting as either a temporary or permanent guardian of AdventHealth’s patients.”

“We were very troubled to see that there were duplicated bills sent to the hospital and to the court, and I think that is wrong,” Orange County Comptroller Phil Diamond told Spectrum News on September 12, after his office released their latest report.

A spokesman for AdventHealth responded to the Comptroller’s Report by saying they too were unaware of Fierle’s non-disclosure.

“We are both surprised and dismayed with the Orange County Comptroller’s findings that a professional guardian withheld information from the court and improperly billed the hospital and the court for resources to care for the most vulnerable in our community,” AdventHealth spokesman Bryan Malenius said. “The report from the Orange County Comptroller’s Office clearly highlights the importance of the state taking action. We are committed to lending our voice to reforming the guardianship system because it is core to our mission to ensure those who need this kind of help are cared for and protected.”

Florida Department of Law Enforcement and the Office of Florida Attorney General both have ongoing criminal investigations open, focused on Fierle.

• RELATED: Agents find human cremated remains in raid on Fierle’s office

Private Investigator Angela Woodhull told Spectrum News she tried to alert state and federal investigators years ago to Fierle’s alleged fraud and wrongdoing, to no avail.

Groups like Americans Against Abusive Probate Guardianship say Florida’s guardianship program has been fractured for years, like other states. They say much of the blame should be on judges who appoint guardianship with little actual oversight.

AAPG is hosting a community Town Hall on the issue of guardianships. The rescheduled town hall will be held November 4 from 3:00 p.m. to 7:30 p.m. at Marriott Orlando Airport Lakeside, located at 7499 August National Drive in Orlando. The town hall will begin with a screening of the documentary “The Guardians” followed by a Q & A session.

Full Article & Source:
Watchdog: In Short Hearing, Fierle Given Guardianship Over Patient

On Eldercare, The Math Is Unforgiving

by  Elizabeth Bauer

$21.

$21 per hour times 44 hours per week times 52 weeks per year = $48,048.

$21 per hour times 24 hours per day times 365 days per year = $183,960. (Note: see below for clarification.)

That's the cost, at median, for homemaker-type elder care services in the case of an individual requiring daytime care (e.g., when the primary caregiver, a child or spouse, is at work) or full-time care in shifts, courtesy the Genworth Cost of Care Survey.

The median private-room nursing home cost? $100,375.

Of course, the cost varies by region. In my own neck of the woods, the Chicago metro area, the rates are $24/$52,912/$210,240/$112,238. In Mississippi, the hourly cost is only $17, in rural Louisiana, $14. On the other hand, in San Jose, the median rate rises to $30. And in Maine, featured in a recent Washington Post article on the subject, the rate is $27.

Mind you, this is not the salary that these workers earn — this is the rate families pay to an agency, whose costs include, in addition to the salaries of the workers, all of the associated taxes, benefits where applicable, the overall management of the agency, regulation/compliance costs, and the like. According to the Bureau of Labor Statistics, the median wage for a home health aide (not reflecting any benefits) is $11.16. Among the less-expensive regions, in Mississippi, it's $10.53 and in rural northeast Louisiana, it's $8.72. For comparison, in Chicago, it's $11.20, in San Jose it's $14.61, and in Maine it's $11.98.

All of this adds up: for the year 2017, the Centers for Medicare & Medicaid Services reported that Americans spent $9 billion on out of pocket home healthcare from home health agencies, and $44 billion on nursing homes and other "care communities," out of a total of $263 billion in total expenditure (of this, a further $27 billion was private health insurance and the remainder Medicare, Medicaid, or other government programs). In addition, Medicaid reported spending a further $111 billion on Long-Term Services and Supports for the elderly (2016 data), Medicare $80 billion, other public entities $23 billion, private insurance and other private payers $52 billion, and individuals paid $57 billion out-of-pocket, for a total of $366 billion. It all adds up to $109 billion out-of-pocket and $629 billion in total. This does not appear to include under-the-table care (that is, families hiring an aide directly, who may or may not have legal authorization to work, and skipping the various employment taxes), and it does not include the economic value of family caregiving, which the AARP has calculated as $470 billion, based on 40 million caregivers providing an average of 18 hours of care per week, at an average hypothetical wage of $12.51.

(Why does the economic value of unpaid work matter in a discussion of numbers? Don't we all have an obligation to provide care for our parents/spouses in need, in the same manner as, however much we worry about the cost of care for children during their parents' work hours, we don't expect the state to be responsible for, or have much concern for, the time parents expend changing diapers during nonwork hours? For some families, there is a real economic cost as a child or spouse must quit work or reduce their hours in order to provide the care; besides this, various of the Democratic presidential candidates are promising that their new healthcare plans will also include generous provision of long-term care for all, and any cost estimates of such programs must surely take into account costs due to families currently taking on the work themselves, seeking out paid caregivers if someone else begins to pay.)

Oh, and why am I referencing Maine? Because of an article in the Washington Post earlier this month, describing the labor shortage in that state, in which, with wages constrained by state budgets and family budgets, families are struggling to find care for their elders in that oldest-in-the-nation state — finding both that home care workers' wages are unaffordable (the Post cites a rate of $50 per hour for private help, which appears questionable as it's double the Genworth rate cited above) and that nursing home staff shortages result in nursing home bed shortages, as about a dozen nursing homes in Maine have closed their doors in recent years. To what extent the workers are simply not available at any cost, with Maine unappealing to immigrants and American labor-force drop-outs alike, versus the wage hikes on which the Post reports being inadequate to bring in fresh workers due to budget constraints, is not made clear.

What's more, the reflexive answer of "more immigration" is not necessarily an easy fix. While it's true that many immigrants, legal and illegal, have found work in elder care, personal care workers need to be able to communicate with the individuals they are caring for, and care for individuals with specialized medical needs requires specialized training. In addition, again, Maine has not proven itself to be attractive to immigrants. Should the state seek a guest-worker program similar to that used in agriculture, where its workers are tied to specific employers? We accept, more or less, the idea of migrant workers coming to live temporarily to harvest a field; it's much harder to be comfortable with the idea of mom and dad's caregivers coming and going no differently than an au pair, and we would certainly look askance at a nursing home or home health agency with such high turnover.

As it is, in terms of individual caregivers, a 2015 book, The Age of Dignity; Preparing for the Elder Boom in a Changing America, by Ai-Jen Poo, explains that two-thirds of domestic workers (the statistics include nannies and housecleaners) are foreign born, half are here illegally, and their illegal status results in below-minimum wage pay, uncompensated overtime, and other unfair practices. Poo advocates for a guest worker program as well, but, again, regardless of who's doing the work, it costs money.

What's more, the campaigns to raise the minimum wage state-by-state or nationwide will raise costs further. It won't be as simple as, for instance, Illinois' $11.19 increasing to $15, when its minimum wage hike is fully phased in, as employers will need to offer wages that are sufficiently higher than "minimum wage jobs" to attract workers. And, beyond that, regardless of whether we solve the labor shortage by means of importing elder care workers directly, increasing overall rates of low-skill immigration, boosting birth rates for the next generation of elderly, and regardless of whether wages rise due to supply and demand or mandated pay boosts, we'll inevitably have to find our way to paying more for care services. Whether the money comes from families' additional out-of-pocket spending, or state and federal programs, it still affects the health of our economy and the well-being of Americans.

And, finally, it should go without saying that solving the present-day problems of individuals affected by the burden by eldercare is only the start, as we are in the midst of a skyrocketing old age dependency ratio, which was a stable 20 retirees per 100 workers throughout the 1990s and 2000s, and is now in the middle of a rise to a new level of 35 to 100 at pretty much exactly at that point at which the Trust Fund is exhausted. (See my "Who's Afraid Of The Big, Bad Old Age Dependency Ratio?" from a year ago.)

What are the solutions? Only three. Find ways to reduce cost/labor — that's what the Japanese are doing with their research into robotics for elder care purposes. Find ways to reduce the need for caregiving by improving older Americans' health (hence, the massive expansion in money targeted at research for dementia prevention and treatment). Or, absent progress on either of these fronts, a solution that isn't really much of a solution at all: find ways to make do with less, in other areas of government spending.

Update/clarification: multiplying the average caregiver rate by the number of hours in the day gives the most dramatic number but is not entirely correct for extensive caregiving, and, in particular, for overnight care, which can vary based on needs (in particular, the degree to which the overnight hours require direct care), and might range from $100 to $300 per day, according to SeniorLiving.org.

Full Article & Source:
On Eldercare, The Math Is Unforgiving