Saturday, November 23, 2019

Man jailed by Macomb judge for failing to disclose trust-fund spending, denies wrongdoing

By Jameson Cook

Fred Smith
A Utica man has been confined to the Macomb County Jail for over three weeks and will spend at least two more weeks there for failing to account for millions of dollars spent from his mother’s trust fund that he controlled.

Macomb County Probate Judge Sandra Harrison originally jailed Fred Smith on Oct. 17 after she found him in civil contempt and in early November ordered him jailed at least until Nov. 21.

Harrison said at a Nov. 7 review hearing that Smith has failed to provide “an accounting” of millions of dollars despite four or five orders over more than two years to do so. Harrison has implored him to follow the orders many times.

“Mr. Smith, you’re ordered to file these accounts,” Harrison reminded him. “These are not complicated orders. They’ve been in place for two years. You haven’t done anything to account for millions of dollars.”

Smith was trustee of the trust fund for about 10 years from 2005 to 2015, attorneys said.

Harrison at a prior hearing told Smith he was “co-mingling everything and buying whatever you wanted to buy and keeping no record of it.”

Macomb County Probate Judge 
Sandra Harrison
Smith, 73, denies any improper spending and protested his incarceration. He claimed he is trying to comply but cannot do so while confined in jail.

“I’m not effective in a jail cell, your honor,” Smith said. “I’m limited to a short stubby pencil and limited amount of paper. ... It’s been difficult to operate at all without resources.”

He called the attempted inquiry a “witch hunt.”

“There is nothing there,” he said. “I’m not hiding anything.”

He said he has been stymied in his efforts to provide an accounting as he hired an attorney who failed to provide a quality report, and a Romeo accountant also has worked on getting the information but wrote to Harrison she doesn’t have access to all of the bank accounts.

Harrison said Smith has had plenty of chances to follow the multiple orders. In October 2018, she fined him $200 per day to follow the orders and at one point increased it by another $100. The total amount of fines is about $110,000; Smith has not paid the fines.

“What else would you have me do? What else do we have to do to get your in line?" Harrison said. "You’re going to remain incarcerated until you make real progress to get these accounts filed.

“You gotta get it done. No matter how you go about it or accomplish it, get it done.”

She said Smith can work with his associate, Marty Prehn of Eastpointe, and jail officials in exchanging and filing paperwork.

Smith has failed to follow up on the judge's offer to sign subpoenas for him to secure information from financial institutions, she said. She said Smith needs to provide copies of items such as bank statements, cancelled checks, receipts and invoices.

Fred Smith, carrying his comfort dog, appears in front of Michigan Attorney General Dana Nessel and other government officials last July at the Macomb Intermediate School District building in Clinton Township during one of Nessel's "listening tour" stops regarding elder abuse.
Smith on Nov. 1 appealed Harrison’s Oct. 17 rulings to the state Court of Appeals.

Prehn, a self-described elder advocate, said Macomb Probate Court does not have jurisdiction over the case because the trust fund was created in Florida. Smith’s mother’s husband died in the 1990s when they resided there.

Smith has not formally made that argument in court but on Oct. 17 as he was being taken from the courtroom to go to jail, remarked the court didn’t have jurisdiction.

At an elder-abuse listening-tour event held by Attorney General Dana Nessel in July in Clinton Township, Smith complained about his mother's case.

Prehn also argued to The Macomb Daily “the whole purpose of a trust” is to protect funds from Probate Court interference.

At the Oct. 17 hearing, Smith said his mother, Shelby Smith-Steves, 92, is being isolated from him. Moments before Thursday’s hearing started, Smith greeted his mother in her wheelchair, and she told him she loves him.

Prehn said he believes Smith has grounds for a lawsuit against the county. Prehn said he has complained to the FBI and state Attorney General’s Office about attorney George Heitmanis, the guardian and conservator for Smith-Steves for his actions in this case.

Heitmanis not only staunchly supports Harrison’s efforts to force an accounting of a roughly estimated nearly $5 million in alleged unaccounted funds but gained an order from Harrison to refer the matter to Nessel's office for a potential criminal investigation into Smith and his actions.

Heitmanis told The Macomb Daily he disputes the claim that Macomb Probate Court, a state court, does not have jurisdiction. He said a Michigan court has jurisdiction if any alleged misspending occurred here.

“The question is, what happened to the money?” Heitmanis said. “Who is the end receiver of the money?”

He said at the Oct. 17 hearing, “$5 million can’t just disappear and nobody account for it. That’s something the state recognized has to be resolved.”

He said the Attorney General’s office expressed interest in the case.

As the trustee of the trust, Smith “had a duty to account. He was acting on behalf of his mother for her benefit,” Heitmanis said.

Attorney Eugene Hamlin, substituting for Heitmanis at the Nov. 7 hearing, said regarding Smith’s incarceration: “Our position is if he doesn’t comply with the orders, he should sit in jail.”

Harrison also ordered Smith to bring a classic car that he purchased to Heitmanis’ office so it can be inspected and photographed. She had ordered that previously.

In addition, she ordered that Prehn remove photos of Smith-Steves at the nursing home where she is residing from his Facebook page and has been barred from visiting her. Prehn took the photos during a visit by him and Fred Smith in September.

Harrison scheduled another review hearing for Nov. 21.

Smith-Steves also has a court-appointed attorney, George Drosis, who supports the judge’s effort to seek an accounting.

Smith also filed a motion for release from jail based on his comfort dog, “Schubert,” being in poor health. He said the dog needs him. Smith said he served in the military during the Vietnam War and suffers from post traumatic stress disorder.

But Harrison denied it, expressing sympathy for the dog’s illness but saying that it was not a sufficient reason for release.

Smith-Steves has been residing in a Romeo nursing home for several months but told the judge Oct. 17 she wants to move back into her Romeo area home, which must be renovated to further accommodate her. Her other son currently resides there with his wife, and they would take care of her during off hours when care-taking staff wasn’t working, under a plan revealed at the Oct. 17 hearing.

Full Article & Source:
Man jailed by Macomb judge for failing to disclose trust-fund spending, denies wrongdoing

Kaleida Health, HighPointe nursing home hit with $500,000 penalty

Four months after Larry Myers' death, 17 HighPointe workers were arrested on charges of neglecting him and falsifying records to hide the neglect. (Mark Mulville/Buffalo News file photo)
By Lou Michel

The state attorney general has slapped Kaleida Health with a $500,000 penalty in a settlement that sharply criticized the care provided to a 16-month-old boy who died at Kaleida's HighPointe on Michigan nursing home and the falsified records about a 56-year-old resident who died there.

The $500,000 penalty is among the most significant penalties imposed against a Buffalo-area nursing home, according to the Attorney General's Office.

“Kaleida Health put residents of HighPointe at risk, which is why we fought for corrective actions and restitution," Attorney General Letitia James said.

The AG's Medicaid fraud unit began investigating HighPointe after the wife of Larry Myers, who suffered from a neurological disease that left him paralyzed, complained in 2013 about the lack of treatment by staff. The Attorney General's Office installed a hidden camera in Myers' room before he died in January 2014. The case ended with 17 workers being convicted of falsifying records or other crimes.

Latifa Johnson kisses her infant son,
Jameir Benn, who died Feb. 18, 2015.
This is Johnson's favorite photo of Jameir,
who died at HighPointe on Michigan
nursing home in Buffalo.
(Courtesy of Latifa Johnson)
Toddler Jameir Benn died at the facility in February 2015 after choking on liquified food given to him through a tube. None of the nursing home staff were watching him when he was fed. The state Department of Health previously fined HighPointe $16,000 after concluding its staff failed to properly monitor Jameir the day he died and failed to wear required pagers that would have alerted them when the toddler began choking.

Both cases were featured in The Buffalo News' 2018 series about local nursing homes.

Kaleida paid the $500,000 to the state’s Medicaid program as a reimbursement for the lack of care it provided to Benn and Myers, according to the settlement released Tuesday.

Under terms of the agreement, Kaleida and HighPointe “neither admit or deny” liability.

In the settlement, Kaleida agreed to numerous improvements at the nursing home, including hiring more staffing and greater accountability to Kaleida's board.

Patricia Myers kisses her husband, Larry K.
Myers, who was paralyzed by Huntington's
chorea, at HighPointe on Michigan nursing
home in an undated photo before his death
on Jan. 9, 2014. (Provided by Patricia Myers)
HighPointe, one of the region's biggest nursing homes with 300 beds, has the area's only pediatric unit. Last year, the federal government rated HighPointe's overall performance at two stars, or "below average." It is now rated at four stars, above average.

Kaleida spokesman Michael Hughes issued a statement pointing out that a number of changes have taken place in the last five years.

“As we have said numerous times in the past, these issues are unacceptable and are not tolerated. Safe and reliable care is at the core of all that we do. Our first and foremost concern is the residents that we serve.”

Kaleida has invested $12 million in staffing and quality of care improvements, Hughes said.

“This includes adding more than 75 full-time employees, changing out 85% of management and 60% of our front line staff.  Most importantly, we are now rated five stars for our quality. So, despite an extremely challenging environment, we continue to make progress,” he stated.

The attorney general said Kaleida spent more than $8.8 million in hiring increased direct care and supervisory staff, a medical doctor and making improvements to systems and equipment and to policies and procedures.

Hughes said the $12 million figure he cited represents the most current amount that has been spent.

Kaleida was sued by the families of Benn and Myers. Myers' case was settled out of court in May, according to court records. Brown Chiari, the law firm representing both families, declined to comment on the status of the Myers case.

But of the case involving the toddler, attorney Donald Chiari said it is expected to go to trial in early 2020.

Chiari said that he and Cheektowaga resident Latifa Johnson, Jameir's mother, met with the Attorney General’s Office Monday for a private review of the settlement.

“The findings show that HighPointe had previous knowledge that these tube feedings resulted in Jameir vomiting,” Chiari said. "HighPointe’s conduct was reckless to say the least."

Of the improvements by Kaleida, Chiari said, “We are very happy they are making significant improvements at the HighPointe facility, but it’s a little disappointing that these measures had to be mandated by the Attorney General’s Office.”

Criticism of care

In the 23-page settlement, the AG's Office provided the results of its investigation into Jameir Benn’s death. It concluded:
  • HighPointe failed to maintain adequate physician notes “reflecting the lack of proper medical care or supervision of the infant” over several days.
  • The nursing home’s management “failed to preserve crucial evidence regarding the death.” That included the director of nursing’s report and video surveillance in the pediatric unit.
  • Management also failed to report his death to the state Health Department.

Of the criminal conduct against Myers, the fraud unit cited the results of an internal investigation conducted by Kaleida:
  • A third of the state Health Department’s deficiencies in this case were the result of the staff “not being able to provide adequate care levels.”
  • The nursing home’s “culture and infrastructure” was in need of change.
  • A “major deficit” existed because of a lack of "accountability" and "poor communications."

Myers, of Orchard Park, died at HighPointe on Jan. 9, 2014, from Huntington's chorea, the disease that had robbed him of mobility and left him totally dependent on the nursing home staff.

The settlement also requires Kaleida to hire a corporate compliance officer “solely” for HighPointe. This individual will file reports that focus on the requirements in the settlement.

Copies of the compliance reports will be forwarded to Kaleida’s board of directors for discussion at their meetings. The reports will also be sent to the Attorney General’s Office.

Full Article & Source:
Kaleida Health, HighPointe nursing home hit with $500,000 penalty

Nursing Home Safety Violations Put Residents At Risk, Report Finds

By Barbara Feder Ostrov

As huge swaths of California burned last fall, federal health officials descended on 20 California nursing homes to determine whether they were prepared to protect their vulnerable residents from fires, earthquakes and other disasters.

The results of their surprise inspections, which took place from September to December of 2018, were disturbing: Inspectors found hundreds of potentially life-threatening violations of safety and emergency requirements, including blocked emergency exit doors, unsafe use of power strips and extension cords, and inadequate fuel for emergency generators, according to a report released Thursday by the U.S. Department of Health and Human Services Office of Inspector General.

The nursing home residents “were at increased risk of injury or death during a fire or other emergency,” the report concluded.

The threat is not theoretical in a state that has been ravaged by natural disasters: One of the nursing homes that was inspected burned down in a wildfire afterward, so the report only includes results for the 19 remaining facilities, which it does not identify.

“The fact that one of the nursing homes inspected was later destroyed by a wildfire speaks to the grave danger residents are facing today,” said Mike Connors of the advocacy group California Advocates for Nursing Home Reform. He called the findings alarming but not surprising.

Even though the report didn’t name the nursing home that was destroyed, the California Association of Health Facilities, which represents most of the state’s skilled nursing facilities, identified it as one that burned down in the November 2018 Camp Fire, the deadliest wildfire in the state’s history.

Craig Cornett, CEO and president of the association, said all the residents were evacuated safely from that home — and from two others destroyed in the same fire. Hundreds of other nursing homes also have responded to emergencies in the past three years without loss of life, he said, which shows that “the deficiencies in the report do not reflect true facility readiness.”

The association is concerned about safely violations, he added, but “this is an example of bureaucracy equipped with blinders.”

The federal auditors said the violations occurred because of poor oversight by management and high staff turnover at the homes. But they also criticized the California Department of Public Health, the agency responsible for overseeing nursing homes in the state, for not ensuring the homes complied with federal safety and emergency requirements.

In some cases, the state’s own inspectors had previously cited nursing homes for the same problems, but did not inspect the facilities again to ensure they had been fixed, the report said.

The department “can reduce the risk of resident injury or death by improving its oversight,” the report said. For example, it could “conduct more frequent site surveys at nursing homes to follow up on deficiencies previously cited rather than relying on reviews of documentation submitted by nursing homes.”

The public health department told the auditors it had followed up with the 19 remaining homes to ensure they were addressing the problems auditors identified. But the state disagreed with the auditors’ recommendation to inspect nursing homes more frequently, saying in a letter to the auditors that federal rules don’t require onsite visits to determine whether problems have been fixed — and that the agency simply does not have enough inspectors.

The department declined a California Healthline request for comment.

The Office of Inspector General is auditing nursing homes across the nation that receive payments from the public health insurance programs Medicare or Medicaid to determine whether the facilities meet the stricter federal safety and emergency guidelines that were adopted in 2016. The auditors did not choose the 20 nursing homes randomly out of the approximately 1,200 statewide, but rather selected those in fire- and earthquake-prone regions, as well as ones already on notice for health and safety violations.

The inspectors found a total of 325 violations at the 19 homes. Among them:
  • Two of the homes had pathways leading to emergency exit doors that were blocked, including one exit door blocked by a pallet.
  • 16 had violations related to their fire alarm and sprinkler systems, including two that didn’t have their fire alarm systems routinely tested and maintained.
  • All had violations related to electrical equipment, including using power strips that did not meet requirements or were unsafely connected to appliances or other power strips.
  • Eight had not properly inspected, tested and maintained their emergency generators, which provide electricity for critical medical equipment during a power outage. Two didn’t have enough generator fuel to last 96 hours. Generator power has become critical for nursing homes in recent months amid widespread power shutdowns aimed at preventing wildfires.
  • Three nursing homes’ emergency plans didn’t address evacuations.
“We don’t want reports like this,” said state Sen. John Moorlach (R-Costa Mesa). “It sounds like maybe we need to ask the state auditor to see if the site visits done by the state are being done thoroughly.”

Full Article & Source:
Nursing Home Safety Violations Put Residents At Risk, Report Finds

Friday, November 22, 2019

Detroit grandmother freed from guardianship after 7 Investigation

DETROIT (WXYZ) — She’s a 78-year-old Detroit grandmother who just wanted a wheelchair ramp. Instead, she was put under court guardianship. The 7 Investigators were in court Thursday when the Chief Probate Judge terminated that guardianship, bringing a lot of joy to Bessie and her family.

Bessie Owens can now make her medical, legal and financial decisions.

And not only did the judge terminate this guardianship and conservatorship – he also put Adult Protective Services on notice that things need to change with how they’re petitioning the court to put seniors under guardianship.

Cheers and applause filled the halls of Wayne County Probate Court Thursday where supporters gathered to watch Chief Judge Freddie Burton Jr. terminate Bessie’s guardianship and conservatorship cases.

“I do not want or need strangers or bureaucrats over my life or finances,” Bessie told the judge.

Bessie called the 7 Investigators in August after she discovered Adult Protective Services investigator Tresna Tupper had petitioned the court, saying Bessie was “medically frail” and “unable to manage her affairs.”

At the time, Bessie says all she needed was a wheelchair ramp so she could get out of her house safely. Instead, court records show Tupper told Judge Burton that she couldn’t find Bessie’s adult children to tell them about the guardianship, as required by law, even though the 7 Investigators easily found Owens’ daughter on Facebook.

“It does look like there’s some things that, in the course of doing your job, that some things were missed,” Burton told an APS supervisor in court on Thursday. The supervisor was in court instead of Tupper.

Bessie’s three adult children were also present.

“It seems to me it would be pretty simple to find them. Were other efforts made,” Judge Burton asked.

The supervisor maintained that Tupper followed APS protocol, but ultimately no one objected to Bessie’s request to drop the guardianship and conservatorship.

“It’s clear to me there’s insufficient evidence to continue the guardianship, and so I will grant the petition to terminate guardianship as you requested,” ruled Judge Burton.

A large group of anti-guardianship protestors in the courtroom cheered and applauded the judge’s decision.

The 7 Investigators showed you last week how Bessie’s conservator, lawyer Cynthia Williams, was asking the court to approve $687.50 in legal fees, even though she never met with Bessie.

“Why are you trying to charge her $687 when she only has $6500,” Catallo asked.

“Because that is my fee for my services,” Williams said.

“What did you actually do though,” Catallo asked.

“It’s on my account, did you see it,” Williams said.

Today Williams argued briefly with the judge, but she ultimately waived her fees and the judge terminated the conservatorship as well.

“The thing that’s important here, Mrs. Owens now has her ramp, and the court is apprised. We need to get out of her way and let her go live her life,” Judge Burton said.

“[I’m] elated and glad it was terminated, there was no need for it. And I think there should be something addressed to keep this from happening to another person and their family and friends,” said Bessie after the ruling.

“Did you have any notice from Adult Protective Services this was happening,” Catallo asked Mischia Smith, Bessie Owens’ son.

“No. I talked to my mother, who I talk to on a daily basis and she informed me, they didn’t contact me at all. And I was very surprised by this whole thing. I believe they should be punished for what they do,” Smith said.

Judge Burton also put APS on notice that he wants a meeting with state officials to make sure they are giving family members notice, before taking the extreme step of declaring an adult legally incapacitated.

“It does look like there’s several things we need to shore up, particularly in terms of making certain notice is provided,” Judge Burton said.

Bob Wheaton, Public Information Officer for the Michigan Department of Health and Human Services, which oversees APS, issued this statement last week about investigator Tupper and this case:

“The Michigan Department of Health and Human Services is committed to respecting human dignity and protecting the health, safety and well-being of vulnerable adults. Adult Protective Services takes very seriously its responsibility to protect vulnerable adults. APS follows policies put in place to help understand and respond to each unique situation, and when necessary, works with partners in the court who make the final decision on what’s best for these individuals. Adult Protective Services aims to provide the least-restrictive services that are necessary to keep a vulnerable adult safe. The department is looking into the concerns that have been expressed.”

Full Article & Source:
Detroit grandmother freed from guardianship after 7 Investigation

See Also:
Detroit grandma just wanted a wheelchair ramp, but ended up being put under guardianship

Kathleen Passidomo, Colleen Burton want to stop guardians from pulling plug on seniors

By Jacob Ogles

Protections for seniors under with guardians anxious to pull the plug could soon be on the way.

State Sen. Kathleen Passidomo and state Rep. Colleen Burton filed legislation boosting individual protections for individuals under guardianship. Among the proposed changes, guardians will be prohibited from signing “do not resuscitate” orders on behalf of wards without court permission.

“Most of the court appointed guardians in this state are caring, dedicated individuals,” Passidomo said.

“Unfortunately, we have seen too many bad actors in a guardian position preying on Floridians who need help the most, and the decisions they’ve made have had severe consequences on Florida families.”

The Naples Republican serves as Republican Leader in the Florida Senate and recently secured votes to become Senate President after the 2022 elections. Passidomo recently told Florida Politics that protecting seniors would be a top priority for her this session and beyond.

While Passidomo carries the Senate bill (SB 994), Burton, a Lakeland Republican, will champion companion legislation (HB 709).

“It is heartbreaking to see savings robbed, families torn apart and lives ended because of the selfishness of individuals in a guardian position,” Burton said. “That ends with this legislation.”

The lawmakers worked closely with Department of Elder Affairs Secretary Richard Prudom on the bill. The legislation would also put new conflict of interest rules in place, stop individuals from participating for guardianship rights for individuals who are not relatives, and would boost reporting requirements for guardians.

He said the regulations shouldn’t bother honest guardians but would stop others from exploiting system loopholes—sometimes at risk of individuals health and safety.

“Professional guardians are entrusted with an immense responsibility when they are appointed to care for someone else,” Prudom said.

“While there are many dedicated individuals who do so with honor and integrity, there are some who have used their position to prey on the vulnerable, and they must be stopped. This legislation includes important changes for Florida’s guardianship program to help restore public trust, improve transparency and prevent the exploitation of those under the care of a guardian.”

Passidomo said Florida’s seniors remain a population at risk of profiteers who don’t have their best interests at heart.

“As elected officials, the most important responsibility we have is to keep Floridians safe, particularly those who are most vulnerable,” she said. “This legislation reforms the law to protect Floridians from guardians seeking to take advantage of others.”

Full Article & Source:
Kathleen Passidomo, Colleen Burton want to stop guardians from pulling plug on seniors

New task force aims to improve nursing home care in Summit County

When Nora Stadler’s mother went into a nursing home a few years ago, Stadler said she expected her mother would be “gone out of the house for a week, max.”

She picked a facility for her mother in Summit County. Twelve days later, an aide told her to get her mom out and to a hospital.

Stadler found out her mother was malnourished and dehydrated, with a urinary tract infection and open sores.

Stadler’s mother, who has Alzheimer’s disease, is now at a different facility.

“I will say there are times where she currently is where I do leave in tears wondering is my mom safe tonight? Is she OK?” she said. “It has eaten away at me.”

Over the next six months, Stadler will work with 17 other people as part of the Summit County Nursing Homes and Facilities Task Force to examine the condition of nursing homes and other long-term care facilities in the county and advocate for change.

The group had its first meeting Tuesday in the Greater Akron Chamber office, with about 30 members of the public attending.

The 18 task force members include local nursing home administrators, an elder care attorney and representatives from the county’s Department of Job and Family Services, the county’s Probate Court, the Direction Home Akron Canton Area Agency on Aging and Disabilities, Summit County Public Health, the Ohio Department of Job and Family Services and the Ohio Department of Health.

The group also includes community members who have had family members in nursing homes.

Summit County Council President Jeff Wilhite, who proposed creating the group and is chairing the task force, said while anecdotes of people’s experiences in nursing homes and other facilities are important, it’s also necessary to collect facts and data to inform the task force’s recommendations.

“Where this review leads us cannot be determined at this beginning stage, but the focus will be first and foremost on the dignity of family members, of those residents of nursing homes and facilities in Summit County who are our neighbors, friends and family members, many of whom — due to age, fragility, physical disability or mental disability or a combination thereof — are vulnerable and reliant upon the quality and quantity of care expected and provided to them by their caregivers,” Wilhite said.

The task force will focus on three areas over the next six months: reviewing current conditions, assessing possible solutions and best practices, and making recommendations. The group will then present its findings and recommendations to Summit County Council and the county executive in a written report.

The group is currently in the first stage, reviewing current conditions. At its 90-minute meeting Tuesday, members decided to create four committees: a legislation committee to look at current and pending laws related to nursing homes and other facilities at the federal, state and local levels; an operations committee to define services and payment-related topics and issues; a visiting committee to visit some of the highest- and lowest-rated facilities in the county; and a staffing committee to look at employment, training and wages.

“The pool of applicants that we have to hire from, it’s a national and international problem that there’s more jobs than there are people, and I think one of the things that this group and Summit County specifically can do is to work on employment, whether it’s training or some sort of structure,” Michael Wojno, CEO of assisted living developer and operator Gables Management and owner of a home health and hospice company, said of staffing issues.

May Chen, the retired executive director of Asian Services in Action Inc., proposed recruiting from the immigrant and refugee population.

“Their training needs to be more culturally and linguistically specific, so the mainstream training is not one size fits all,” she said. “They bring a lot of respect for elders, a lot of compassion for elders because that’s a part of their culture and tradition.”

Wilhite emphasized the task force’s mission is not to put nursing homes and other facilities out of business.

“All we’re asking is you do your job and you allow us to help you do your job so that the ladies and gentlemen in your care don’t suffer in a negative and inhumane way,” he said.

Summit County Council approved creating the task force in August. The idea for the group came about after a June report listed a Copley facility that is now closed among the worst in the nation.

Fairlawn Rehab and Nursing Center on Ridgewood Road was one of five Ohio nursing homes on a list of 88 federal “Special Focus Facilities” nationwide with the most serious history of quality of care issues. It closed this summer.

Wilhite said the “inhumane care and neglect” described at the facility “struck me emotionally.”

“Then the anger set in. It is unconscionable and disgusting at best,” he said. “To sit and just shake your head is not enough. We need to act, to address this very important human service need and I would add human rights issue.”

Task force meetings are scheduled for Jan. 21, Feb. 18, March 24, April 21 and May 19, all at 10 a.m. in the Greater Akron Chamber conference room in Akron’s AES Building, 388 S. Main St., Suite 205. The meetings are open to the public.

For questions, call the Summit County Council office at 330-643-2725.

Full Article & Source:
New task force aims to improve nursing home care in Summit County

Thursday, November 21, 2019

Dozens of For-Profit Hospices Fail to Visit Dying People in Their Final Days, GAO Says

Dozens of for-profit hospice providers failed to visit dying patients in their last few days, according to a recent report by the U.S. Government Accountability Office (GAO).

© Chip Somodevilla/Getty Images HIV-positive Shana Reynolds-Fairley, 34, leaves Joseph's House, a hospice that provides nursing and support services to homeless men and women dying of AIDS and cancer, to go to Georgetown University Hospital for treatment of edema on August 30, 2013.
The investigation focused on providers paid by the Centers for Medicare and Medicaid Services (CMS) in 2017. While for-profit and nonprofit hospices had similar scores on pain assessment and other quality measures, more than 450 private groups discharged patients before they died.

This is not the first troubling report on the Medicare-paid hospice system. Earlier this year, the Office of Inspector General (OIG) found that 18 percent of all hospices in a nationwide survey had serious deficiencies, like failing to vet staff.

In the recent report, eighty for-profits failed to send registered nurses, physicians or nurse practitioners to visit discharged patients even once in the last 72 hours of their lives, while only three nonprofits did the same.

Both for-profit and nonprofit hospices gave these end-of-care visits to most patients, but the dozens that didn't left at least 800 dying people and their families without guidance.

"According to researchers we interviewed and one of the studies we reviewed, provider visits near the end of a hospice beneficiary's life are critical to providing quality care, including for emotional support and for training the beneficiary's family members or other caregivers on the signs and process of dying," the GAO said.

A smaller number of for-profit hospice units (55) did not provide any visits from medical social workers, chaplains or spiritual counselors, licensed practical nurses or hospice aides in the entire week preceding more than 600 patients' deaths.

As baby boomers enter old age, there has been a substantial growth in Medicare payments for hospice services, as well as the number of Medicare beneficiaries using hospices, since 2000, according to the GAO.

Yet CMS doesn't instruct its surveyors to record information on providers' performance, the GAO said. That can impede oversight of providers doing a poor job. At the same time, the only penalty CMS can impose is kicking these hospices out of the reimbursement pool entirely, a punishment too severe for most offenses.

The GAO, together with the Department of Health and Human Services, called on Congress to give CMS more authority to create additional enforcement remedies for hospices not up to par.

"Americans at the end of life and their families expect the best care possible—it's unacceptable that too often hospice providers are falling short," Senator Ron Wyden, who requested the investigation, said in a Thursday statement.

Full Article & Source:
Dozens of For-Profit Hospices Fail to Visit Dying People in Their Final Days, GAO Says

Gov. Ivey awards $2.1 million to aid elderly and disabled abuse victims

Gov. Kay Ivey has awarded $2.1 million to the state Department of Human Resources to assist elderly and disabled adults who have been abused.

The grant will enable the department’s Adult Protective Services Division to provide several preventative options for victims who are suffering from abuse.

“No one should ever have to be the victim of abuse, and those who have unfortunately suffered from abuse need ready access to professional assistance,” Gov. Ivey said. “This grant will ensure assistance for those elderly and disabled adults who are victims of physical and mental abuse.”

The funds will help create safe surroundings for elderly and disabled adults either by providing in-home care and supervision to enable victims to remain in their homes after offenders have been removed or relocating the victims to nursing homes or assisted living facilities. Both measures are temporary until more permanent solutions are found.

The Alabama Department of Economic and Community Affairs is administering the grant from funds made available by the U.S. Department of Justice.

“Gov. Ivey is both compassionate and determined when it comes to preventing the exploitation and abuse of the elderly or disabled,” ADECA Director Kenneth Boswell said. “ADECA is pleased to join with Gov. Ivey and the Alabama Department of Resources to provide solutions to help these victims.”

ADECA administers a wide range of programs that support law enforcement, victim programs, economic development, water resource management, energy conservation and recreation.

Full Article & Source:
Gov. Ivey awards $2.1 million to aid elderly and disabled abuse victims

False Hope Found in Nursing and Rehabilitation Centers

by Stephen Louis Krasner

Inundated with medical information, health updates and making decisions while serving as a caregiver to a seriously ill person is a tough position to be in for anyone. When it results in the loss of that person while being under the premise they would recover — the shock can be devastating.

Misleading Names and Messaging

It is reasonable to believe that most people would infer that upon the discharge of a patient from a hospital and into a skilled nursing facility (SNF) that they would be on the road to rehabilitation and recovery — heading home in the not too distant future. This is due in large part to information provided to caregivers upon plans made to have a patient admitted there.

A great number of these facilities have the word “rehabilitation” in their name — a look at New York’s statewide directory lists 622 facilities — with over half of them having “rehabilitation” in the title. Hence the very name of these places is misleading to some extent when evidence suggests a significant number of patients entering these facilities meet adverse outcomes — and never make it back home.

You Can Never Go Home Again

A study published in the journal Annals of Surgery examined the outcomes of patients admitted to these facilities in five states, being California, Florida, New York, Texas and Washington. It concluded that 41% of patients discharged into a skilled nursing facility never returned home.
It is often communicated to patients and families that discharge to an SNF is a step in the process of recovery, and because clinicians have very limited evidence about the natural history of patients discharged to SNFs, patients may be given an unreasonable expectation of return to home. This study demonstrates that a significant proportion (41%) never returns to home, and the 1- and 3-year risk of death is much greater than that in the general population.
Looking through the data in such a study brings up the question as to what other factors outside this study might also be contributing to large numbers of patients not making it home again. Examining the quality of care people are receiving, and the variables at play behind that care, provides some answers.

Money Versus Mission

Comparing these types of centers by looking at the non-profit sector versus those operating in the private sector is disconcerting.

In a 2018 report published in the journal Gerontology, findings involving for-profit nursing homes raise several red flags. In commenting on the report its lead researcher, Lee Friedman, stated the following:
We saw more — and more serious — diagnoses among residents of for-profit facilities that were consistent with severe clinical signs of neglect, including severe dehydration in clients with feeding tubes which should have been managed, clients with stage 3 and 4 bed sores, broken catheters and feeding tubes, and clients whose medication for chronic conditions was not being managed properly.
The motivations behind the nursing facilities in each sector likely play a role in the quality of care and qualifications of the staff working there — especially when one considers mission driven work versus the goals of profit driven work.

Touching on this Friedman said, “For-profit nursing facilities pay their high-level administrators more, and so the people actually providing the care are paid less than those working at nonprofit places. So staff at for-profit facilities are underpaid and need to take care of more residents, which leads to low morale for staff, and it’s the residents who suffer.”

With upwards of 70% of these types of facilities falling in the for-profit ownership category — one has to wonder as to the extent negligence plays a role for those patients that are never able to go home.

Full Article & Source: 

Wednesday, November 20, 2019

Banned from seniors’ homes (Marketplace)

Why are some long-term care and retirement homes banning families from seeing their loved ones? Administrators say it's because they're being too aggressive. Families argue they're just fighting for better care. 

Banned from seniors’ homes (Marketplace)

November 12 2019 - BBO v Belanger

November 12, 2019 - Catch of the Day Video News was given permission to record the Boston Bar Overseers public hearing regarding LIsa Belanger, ESQ. Contact Janet Aldrich at 978-388-2457 for more information. Some of the Video portion is blocked, per request of BBO (audio only)

November 12 2019 - BBO v Belanger

Emergency situation calls for temporary guardianship

By Sandra Reed

Evelyn, who lives one hundred miles away, visits her mother, Marie, who suffers from dementia, and finds she is in a seriously weakened state from diarrhea and dehydration. She contacts sister, Jane, who lives a similar distance from their mother, to inform her. Upon further investigation, Evelyn discovers that her brother, Ralph, has been mixing a box of X-Lax into their mother’s food over the past three weeks. Ralph, who is in debt, is apparently attempting to rush his inheritance of one-third of the family ranch. What can Evelyn do to protect her mother?

Emergency situations, such as the one in the hypothetical situation, call for the remedy of a temporary guardianship. The existence of financial exploitation by a relative, friend or caregiver represents another example in which a temporary guardianship is appropriate.

Evelyn should immediately contact a lawyer who can file an application to establish a temporary guardianship for her mother. Applications for temporary guardianship take precedence over any other matter that the court must hear except other matters of a similar nature. Therefore, Evelyn can count on quick results.

If the temporary guardianship is granted, it will be automatically terminated at the end of 60 days, unless it is contested. If contested, the court will have the authority to extend the temporary guardianship until the contested issues are resolved in court.

The applicant must give Marie notice that the guardianship is being filed. Although it is not necessary to give Ralph notice, Evelyn realizes that, as a practical matter, Ralph will undoubtedly learn of the filing. Therefore, she anticipates he will contest it.

Evelyn’s elder sister, Jane, who has always thought her judgment was superior to her sister’s, insists they be named as co-guardians. The lawyer explains that Texas does not allow co-guardians to be appointed. Jane eventually consents to Evelyn’s filing as proposed guardian.

A physician’s statement of incapacity that would be required for a permanent guardianship is not necessary for the temporary. At the hearing, Evelyn must show substantial evidence that Marie is incapacitated and that the circumstances present probable cause to appoint a temporary guardian.

Full Article & Source:
Emergency situation calls for temporary guardianship

Stockbroker fleeced elderly woman’s accounts and ran up credit card

Both federal and state laws have been enacted to protect seniors from elder financial abuse. (Dreamstime)
By Rafael Olmeda

James Marino’s plan to cheat his client out of her fortune began to unravel in 2014, when an accountant noticed an American Express card he had opened in his name but under her account.

Marino, 33, pleaded guilty Monday to one count of grand theft of a victim over age 65, becoming only the latest to admit to exploiting Florida’s vulnerable older residents.

Florida has by far the greatest proportion of residents over 65, many with significant wealth — creating what the Florida Bar calls “a sea of opportunities for exploitation of the elderly."

A survey by Florida’s Department of Elder Affairs in 2016 found that 6 of 10 seniors were at least somewhat concerned about becoming the victim of consumer fraud or a swindle. Nearly one-fifth reported that they had already been exploited, often by family members, health providers and financial advisers like Marino.

In pleading guilty, the former stockbroker agreed to five years of probation. He also repaid $27,500 he stole from the woman, according to the Broward State Attorney’s Office.

Calls to his attorney were not returned Monday.

Court papers do not identify the victim, who was in her 80s and showing signs of dementia in 2013 when she agreed to turn over a $3.9 million Merrill Lynch account to his stewardship at Edward Jones, according to court records.

Investigators said he gained the victim’s trust in March 2014 by “helping her with daily tasks and errands.”

Marino cashed eight checks amounting to $20,500 from her account from March until September 2014, according to his arrest record. Around the same time, he had one of the victim’s American Express cards issued in his own name, using it to at grocery stores, hardware stores, restaurants and gas stations. He racked up $6,715 on the card.

When confronted in 2015, Marino told investigators he had noticed a decline in the victim’s mental capacity but insisted she wanted to help him rebuild his own credit.

Assistant Broward State Attorney Al Guttman said there was no indication that Marino exploited other people, but crimes like his are not unusual in South Florida.

In June 2018, a husband and wife were accused of siphoning the bank accounts of an 87-year-old Pembroke Pines woman and selling her condo. They also faced a civil lawsuit from the Florida Attorney General’s Office alleging they swindled at least 50 other seniors.

Two months earlier, former caretakers for a late Fort Lauderdale woman were accused of stealing $1.4 million in cash and jewelry from her and her estate,

According to the Aging and Disability Resource Center of Broward County, several signs could indicate that an elderly person is being abused: new close friends, unusual activity in bank accounts, bank statements no longer coming to the person’s home, unpaid bills and questionable withdrawals.

Cases of elder abuse can be reported at 800-96ABUSE, which is 800-962-2873.

Full Article & Source:
Stockbroker fleeced elderly woman’s accounts and ran up credit card

Tuesday, November 19, 2019

SPECIAL REPORT | Unguarded: How Richmond’s guardianship process leaves vulnerable people unprotected

Guardianship, the legal process of taking away an adult’s rights to make life decisions, is intended to protect vulnerable people from neglect and abuse.

In Richmond, VCU Health System and other health care providers have used the process to remove poor patients from hospital beds, sometimes against the wishes of family members, with the help of a local law firm.

A year-long Richmond Times-Dispatch investigation has found that what happens to the patients after they’re discharged is left up to a system that fails to provide the one justification for the power it wields – protection.

Ora Lomax felt in her bones that her husband of 63 years would die that day.
Four days before Christmas, something in William Lomax had changed. He was praying and singing “This Little Light of Mine” and “Jesus Loves Me.”

He must have felt death, she thought.

She couldn’t stand to see it happen. But before she left him, he squeezed her hand and told her he loved her for the last time.

Just three months earlier, he’d been living with her in their small home near Virginia Union University. Ever since a car accident in 2016 left William, 87, with a brain injury, Ora, also 87, needed help from 24-hour home health aides to take care of him. She couldn’t change him or help him out of bed because of her own physical limitations, but she was there to make sure the aides did.

He’d spent his final weeks in a nursing home where Ora said she frequently found him unwashed, cold and begging for water. He’d become agitated and inconsolable.

He was angry with her for leaving him in this place.

“You have forsaken me,” he told her.

He didn’t understand that she had no choice.

Full Article & Source:
SPECIAL REPORT | Unguarded: How Richmond’s guardianship process leaves vulnerable people unprotected

Amid Guardianship Scrutiny, DeSantis Wants $6.4M to Boost Oversight

Rebecca Fierle appears in court on July 25, 2019 in this file image. She's the subject of multiple criminal investigations stemming from her activities as a professional guardian. (File)
By Greg Angel

TALLAHASSEE, Fla. — Gov. Ron DeSantis unveiled his $91.4 billion budget request Monday, including a plea for more money to help expand oversight of the state's professional guardians.
  • DeSantis's budget proposal includes $6.4 million for state guardian office
  • Guardianship program has been under fire after death of Brevard man
  • Agency says it is anticipating more complaints, increase in legal costs
The funding request comes amid growing scrutiny of a system that some family advocates say is plagued by a lack of oversight, leading to neglect and, in some cases the death of seniors.

"I think it’s a seriously important issue that deserves more of a quick fix," Florida’s Elder Affairs Secretary Richard Prudom told Spectrum News Watchdog reporter Curtis McCloud in August. "It is something that I will be working with the governor and his policy staff, and we will be working with the Legislature and I think the judicial branch as well."

In his budget proposal, DeSantis is requesting lawmakers provide $6.4 million to support the Office of Public and Professional Guardians through the Florida Department of Elder Affairs.

OPPG is seeking an increase of $454,930 specifically for professional guardian investigative services and legal fees.

"With the increased public awareness of guardianship, concerns about guardianship abuse and exploitation and outreach about the program’s responsibilities, OPPG anticipates an increase in the number of professional guardian complaints, investigations, administrative complaints and subsequent legal costs," the agency wrote in a pitch to lawmakers.

The increased public awareness has come from a series of investigations into the system.

Spectrum News first reported on the case of Steven Stryker in July 2019. State investigators say he died in part because of neglect by his court-appointed guardian, Rebecca Fierle.

Orange County Judge Janet Thorpe appointed Fierle as Stryker's guardian in September 2018. The court appointment gave Fierle full legal authority to make health-care decisions for Stryker as well as control of his money and assets.

Spectrum News later learned Fierle was registered as a guardian for at least 450 people, or "wards," in 13 counties.

Fierle has not been charged in the death, although she is the focus of multiple criminal investigations into at least two underway as of November 2019: one by the Florida Department of Law Enforcement and the other by the Florida Attorney General’s Office.

Additionally, two investigations by the Orange County Comptroller’s Office accuse Fierle of mishandling cash and assets belonging to her wards, as well as receiving almost $4 million by overbilling AdventHealth and the court system.

Family advocates also place blame on the court system itself, saying judges routinely fail to provide the necessary oversight.

"Except for maybe one brief appearance in front of a judge, a judge never sees these wards ever again, and — in fact, one of our biggest complaints — do they not only not see them, but they forget about them and they fail to do their job of monitoring every guardianship they create," said Dr. Sam Sugar, founder of the group Americans Against Abusive Guardianships.

Spectrum News’ extensive investigation found that Thorpe later revealed, when revoking Fierle’s guardianship status, that Fierle had not been insured as a guardian in six years and failed to notify the court of several employees.

While Florida lawmakers are still crafting specific legislation that state officials say is necessary to provide appropriate oversight, federal lawmakers have also taken steps to improve guardian programs across the country.

Full Article & Source:
Amid Guardianship Scrutiny, DeSantis Wants $6.4M to Boost Oversight

‘Replace denial with proposal’ on long-term care, House committee told

“All viable proposals deserve to be vetted, studied and moved forward,”
Robert Blancato, national coordinator of the Elder Justice Coalition,
told the House Ways and Means Committee. (YouTube)
Congress must “replace denial with a detailed, bipartisan legislative proposal on long-term care” to address the needs of a growing older population facing high costs for healthcare and housing, Robert Blancato, national coordinator of the Elder Justice Coalition, told the House Ways and Means Committee at a hearing Thursday.

Blancato, one of six hearing witnesses, and Rep. Richard Neal (D-MA), chairman of the committee, both noted that assisted living costs more than $40,000 per year, on average.

“Navigating a fragmented and insufficient long-term care system can be not only confusing and emotionally taxing, but also enormously expensive – even unaffordable. …These high price tags weigh heavily on aging Americans and their families as they try to plan for future long-term care needs,” Neal said in prepared remarks, noting costs associated with nursing homes and home healthcare as well.

Long-term care-related costs are the biggest unfunded liability facing baby boomers, Blancato said in his prepared remarks. “Many older adults rely on Medicaid to fund their long-term care needs. However, states are increasingly considering waivers that would block-grant Medicaid, which could lead to individual caps on care funding,” he said.

Approximately 16.5% of assisted living residents rely on Medicaid to cover their assisted living services, according to the National Center for Assisted Living.

The National Investment Center on Seniors Housing & Care-funded study that found that 54% of the 14.4 million middle-income older adults in 2029 in the United States will lack the financial resources to pay for senior living and care, Blancato said, indicates that “future ability to privately pay [for long-term care needs] may be in jeopardy.”

The witness said “all viable proposals deserve to be vetted, studied and moved forward,” including those involving Medicare and Medicaid reform, to address long-term care costs. “I believe we can all agree that something needs to be done,” he said.

A “real national solution,” Blancato said, should include:
  • A strong Medicaid program that continues to support home- and community-based services over institutional care.
  • Possibly a long-term care benefit in Medicare.
  • Use of the tax code to provide a “meaningful” tax credit for family caregivers and a tax deduction for the purchase of private long-term care insurance.


‘Disturbing pattern of abdication’

In addition to cost issues, Blancato noted in his prepared remarks, “We see a disturbing pattern of abdication by certain federal agencies vested by law with the responsibility to ensure quality care in nursing homes, assisted living and long-term care facilities.” He in part called for additional funding and training for long-term care ombudsmen “so they can expand their important work into assisted living.”

Hearing witness Richard Mollot, executive director of the Long Term Care Community Coalition, told committee members that alternatives to nursing home must be affordable, accessible and safe.

“Seniors and families want and deserve options to nursing homes that provide safety in a more home-like setting,” he said. “While most states are rightfully opening up assisted living to Medicaid beneficiaries, the utter lack of federal standards in this sector has, unsurprisingly, led to increasing reports of rampant abuse and neglect. Our seniors and their families deserve better.”

Mollot also cited “inadequate access to humane dementia care” as an issue involving assisted living and nursing home operators.

“Far too many facilities fail to anticipate the needs of individuals with dementia or equip their staff with the knowledge and skills necessary to provide comfort and care to residents who are experiencing common behavioral and psychological symptoms of the disease,” he said. “In what other industry would it be acceptable to be unable to meet the needs of the majority of one’s customers?”

Care planning benefit eludes most

Hearing witness Robert Egge, chief public policy officer of the Alzheimer’s Association, shared the findings of a recent study that found that in 2017, less than 1% of Medicare beneficiaries living with dementia received comprehensive dementia-specific care planning that could improve care, quality of life and medication management as well as reduce hospitalizations and emergency department visits. This is despite the fact that since 2017, physicians and other healthcare professionals have been able to obtain reimbursement for providing such care planning.

“For the benefits of care planning to reach more Americans affected by Alzheimer’s, more clinicians must use the care planning benefit,” he said. The bipartisan Improving Hope for Alzheimer’s Act (H.R. 1873 / S. 880), Egge added, would help achieve this goal by requiring the Department of Health and Human Services to educate clinicians and report to Congress on ways to increase the benefit’s use and on related barriers.

“This bill has already garnered significant bipartisan support in both chambers, and we urge the Committee on Ways and Means to hold a markup,” he said. “We look forward to working with the bill’s sponsors and committee leadership to ensure its movement in the full House and Senate.”

Watch the hearing here. Read witness testimony here. Read Neal’s opening statement here.

Full Article & Source:
‘Replace denial with proposal’ on long-term care, House committee told

Monday, November 18, 2019

Michigan county seized retiree’s home over $8 debt – now he’s fighting back in state’s top court

Uri Rafaeli, 83, had his Michigan property seized, put it up for auction and sold after a mistake in calculating his property taxes left Rafaeli’s account delinquent by $8.41. (Courtesy of the Pacific Legal Foundation)
In August 2011, Uri Rafaeli bought a three-bedroom, 1,500-square-foot home in the Detroit suburb of Southfield, Mich., for $60,000. He converted the fixer-upper into a rental property.

Two-and-a-half years later – and at the time unbeknownst to the retired engineer – Oakland County seized his property, put it up for auction and sold the house for $24,500. All this, after a mistake in calculating his property taxes left Rafaeli’s account delinquent by just $8.41. Oakland County ended up keeping all of the $24,500 from the sale, while Rafaeli, now 83, was left without the home and the income he made from renting it.

Rafaeli’s stunning case, which is at the heart of a legal battle currently being considered before Michigan’s Supreme Court, is an extreme example. Yet it is hardly unique: more than 100,000 homeowners in the state have fallen victim to an aggressive property tax law that legislators in Lansing passed two decades ago. Similar statutes have been passed in more than a dozen other states.
'You have a situation where a person owed $8 and lost their house. I mean, how is that equitable?'
— Michigan Supreme Court Justice Richard Bernstein
Act 123 of 1999 was meant to speed up the redevelopment of blighted properties amid Michigan’s economic woes, but critics of the statute say it has allowed county officials to act as debt collectors and line their coffers by retaining the excess revenue made by selling houses with unpaid property taxes -- no matter how paltry the debt.

“When the government takes property to settle a debt, they have to give the extra money they make back to you,” Christina Martin, a lawyer with the Pacific Legal Foundation who is representing Rafaeli in his case against Oakland County, told Fox News. “It doesn’t matter what law Michigan passes, they have the constitutional obligation to pay back any more than they are owed.”

In a recent op-ed for The Detroit News, Rafaeli said he was "shocked and angry" over the county's actions.

"Soon I would learn that while I had signed up for a piece of the American Dream with my investment, I was entering a bureaucratic nightmare — all thanks to Michigan’s Draconian tax forfeiture laws, which I’m now challenging in court," he wrote.

At the core of Martin’s argument is a clause in the Fifth Amendment, which states that the government cannot take a citizen’s private property for public use, “without just compensation.” In the case before the Michigan Supreme Court, Martin argued that Oakland County has violated both the state and U.S. constitutions under the Takings Clause by seizing and selling Rafaeli’s property and then failing to recoup him any of the money made from the sale.

The property that was seized from Uri Rafaeli by Oakland County. (Google Maps)
The property that was seized from Uri Rafaeli by Oakland County. (Google Maps)

Martin added that even if the county had paid Rafaeli the extra $24, 491.59 that it made from the sale of his property, that money still pales in comparison to what the retired engineer really lost given that he paid $60,000 for the house, pumped thousands more into fixing it up and has lost years of rent he could have collected were the property still in his possession.

Property values in Southfield have also skyrocketed since Rafaeli bought the home in 2011 for $60,000, with estimates currently valuing the house at more than double what he paid.

“The money the county made falls far short for Mr. Rafaeli,” Martin said. “In Mr. Rafaeli’s case, he should get much more than that.”

Rafaeli’s tax woes started about a year after he purchased the house in Southfield when he was notified that he had underpaid his 2011 property taxes by $496. In the meantime, he had continued making the following property tax payment on time, and in January 2013 he attempted to settle the outstanding debt he had with Oakland County.

But due to a mistake he made in calculating his interest, he was short of paying off his balance by $8.41. The bill eventually grew to $285 with penalties and interest.

The Oakland County Treasurer’s Office attempted to collect the debt a number of times – sending mailed notifications to both the property in Southfield and to an address it had for Rafaeli in Michigan. But Rafaeli had by that time moved out of state, and his tenants in Southfield did not forward the notices.

In February 2014, the property was eventually seized by the county and was one of 11,000 homes put up for auction.

Rafaeli, however, was unaware that his property was no longer his property and continued to pay property taxes even after it was seized, his lawyers said. He only became aware that something was amiss when he stopped receiving rent payments from his tenants – who no longer resided at the seized home.

“You shouldn’t have to rely on the mercy of a tax collector to have your constitutional rights protected,” Martin said. “No amount of mail should allow the government to steal your property.”

After discovering that his property had been seized and sold, Rafaeli and his family hired local lawyers to help him regain either his house or his money.

These efforts, however, proved fruitless as his case – in which his lawyers argued that his due process rights had been violated – was first dismissed by the Oakland County Court and later the Michigan Court of Appeals ruled against him, citing the state’s civil forfeiture laws.

It was here that Martin and the Pacific Legal Foundation stepped in to help – petitioning the Michigan Supreme Court. The state’s high court granted Rafaeli’s case a review after Martin argued that his constitutional rights were violated under the Takings Clause.

The Oakland County Treasurer’s Office declined Fox News’ request for comment, but in a written brief to the court, the county’s lawyers argue that “by failing to pay back taxes and failing to redeem the property before auction, the taxpayer no longer possesses an interest for the government to ‘take.’” The brief also noted that Rafaeli was given “numerous notice provisions and opportunities” to pay his balance.

William Horton and John Bursch, the county’s attorneys, contested Martin’s assertion that the county’s actions violated the Takings Clause – saying in the brief that “tax collections are not the taking of private property for public use in the constitutional sense” and that Martin’s argument is similar to ones previously shot down by courts across the country.

“This is hardly the first time that a delinquent taxpayer has brought a claim to recover the ‘surplus’ proceeds in a tax sale,” the lawyers said.

In court last week, Bursch argued that a ruling in favor of Rafaeli would set a precedent that could ultimately bankrupt Michigan counties by forcing local governments to compensate all homeowners in similar situations. He estimated it would cost around $2 billion.

Michigan Supreme Court Justice Richard Bernstein did not appear to agree with the county lawyer’s assessment of the situation.

"The interpretation you gave was very dramatic: that this is going to end schools, and the counties are going to crumble, and society is just going to implode," Bernstein said. "You have a situation where a person owed $8 and lost their house. I mean, how is that equitable?"

Rafaeli's case will be decided sometime before the end of July 2020.

Martin hopes that a ruling in favor of Rafaeli will not just be a victory for the 83-year-old retiree, but will set a precedent in Michigan and across the nation -- possibly leading to a ruling by the U.S. Supreme Court on a similar case in the future.

There are 14 other states in the U.S. that have statutes on the books similar to Michigan, and five of those states – Arizona, Colorado, Illinois, Massachusetts and Nebraska – allow private investors to make money off the sale of foreclosed homes.

“The government should not be making a windfall ... when collecting unpaid taxes,” she said. “This is a practice that needs to come to an end.”

Full Article & Source:
Michigan county seized retiree’s home over $8 debt – now he’s fighting back in state’s top court