Saturday, February 22, 2020

Beatings, Burns and Betrayal: The Willowbrook Scandal’s Legacy

Children with developmental disabilities were held under brutal conditions at a notorious New York facility. Decades later, they still face abuse and neglect.

By Benjamin Weiser

[Watch a Times investigation of abuse at state-run group homes on “The Weekly,” on FX and Hulu.]

When the abuse began, Migdalia could not call for help.

She was 57 but with the mind of a child. She had never spoken and could not form words. She lived in a Bronx group home with two dozen other adults who also were mostly nonverbal and helpless.

Bruises started appearing on her arms and legs. What looked like a shoe print on her belly.

A state investigation later concluded that she and other residents had been beaten by some of the home’s employees, the people who had been entrusted with her care. In Migdalia’s case, the abuse represented an especially deep betrayal.

Migdalia and thousands like her had grown up in the Willowbrook State School, a notorious institution on Staten Island. For decades, the state used the facility as a warehouse for children and adults with developmental disabilities. They were left unattended, naked or in rags. Some were strapped in beds or chairs; others were left to rock endlessly on filthy, locked wards.

Exposure of these conditions led to a landmark 1975 federal court settlement in which New York agreed to move Willowbrook’s residents into small group homes. The state pledged that each individual had a “constitutional right to protection from harm.”

But that vow has been broken: Many of the institution’s 2,300 alumni who are alive today still suffer from mistreatment, a New York Times investigation found.

Last year alone, there were 97 reported allegations of physical abuse by group home workers against Willowbrook alumni, according to internal state data obtained by The Times.

There also were 34 allegations of psychological abuse and hundreds more of neglect and other mistreatment, like improper use of restraints or seclusion, medication errors and theft, the data shows.

Negligence may have contributed to the death of one disabled woman in Brooklyn and the loss of another woman’s finger in a Long Island group home, interviews showed. One man placed in a scalding bath or shower went to the hospital with second-degree burns.

Even critics agree that large numbers of the surviving alumni are in a better situation today than they were in the harrowing conditions at Willowbrook, but they say the homes are still short-staffed and the employees do not have sufficient training and oversight.

“The system is floundering,” said Antonia Ferguson, executive director of the Consumer Advisory Board, an independent agency created under the court settlement that advocates on behalf of former Willowbrook residents, particularly those who do not have family available.

The Bronx group home where Migdalia lived, on Union Avenue, offered a clear example of the problem. Of more than a dozen residents found to have been abused or neglected in the state-run facility, at least five of the victims were Willowbrook alumni.

“Now we have small Willowbrooks,” said Ida Rios, 86, a retired teacher whose late son Anthony was at Willowbrook and who now runs an association for Bronx families with relatives in group homes. “As much as things have changed,” she said, “they don’t change.”

The Promise

Credit...John Senzer
In 1964, when Migdalia’s parents placed her at Willowbrook at the age of 7, the overcrowded, understaffed wards were chaotic and violent. In a visit the following year, then-Senator Robert F. Kennedy said the facility “borders on a snake pit.”

“The sadness of the place was overwhelming,” said William Bronston, 80, a former Willowbrook staff physician who had helped organize parents to demand reforms.

Credit...Bill Pierce/The LIFE Images Collection, via Getty Images
Willowbrook exploded in the national consciousness in early 1972, when the television reporter Geraldo Rivera aired graphic footage from inside a children’s ward.

That March, the New York Civil Liberties Union and the Legal Aid Society filed class-action lawsuits over the conditions, leading to the landmark 1975 court settlement in which the state said it would protect Willowbrook’s residents from harm.

“It was better than a promise — it was an order,” said Chris Hansen, one of the early civil liberties lawyers on the case.

But moving the so-called Willowbrook class members dragged on for more than a decade, while conditions inside remained deplorable, recalled another of the lawyers, Robert M. Levy, who visited Willowbrook in the early 1980s and is now a U.S. magistrate judge.

“People would be naked on the wards,” he said. “They would have shoelaces tying their pants up instead of belts. In many ways, it was still like a concentration camp.”

Credit...Bill Pierce/The LIFE Images Collection via Getty Images
Finally, in 1993, with the institution closed, a judge approved a settlement in which New York agreed that the Willowbrook class members were to receive high-quality services for the rest of their lives.

Credit...Demetrius Freeman for The New York Times
As infants, Migdalia and an older sister both received a diagnosis of developmental disability — “mental retardation,” their medical records said.

Their parents tried to care for them in their modest Bronx apartment, but as the family expanded to 14 children, the girls’ needs became too great. They were incontinent and unable to dress or feed themselves and could not respond to simple directions, according to state records.

“It was hard for my mom,” said Sandra Romero, the oldest child. Her mother later explained that a social worker had suggested sending the girls to Willowbrook, where things would be better, she said.

The girls’ 1964 admission forms used the harsh terminology of the time. Under “Mental Status,” for example, the staff had checked the same box for each girl: “idiot.”

Migdalia spent 16 years at Willowbrook; by the time she was moved out in 1980, she was in her early 20s. Migdalia’s sister, who had lost her eyesight while at Willowbrook, also was moved and ultimately placed in a state-run group home on Prospect Avenue in the Bronx.

But Migdalia went home, where she thrived. Her mother took her to the park and to visit relatives and included her when she entertained family and friends, according to Ms. Romero and another sister, Hilda Youssef.

Migdalia was friendly, cooperative and responded to people who were familiar to her, records show. She could smile, feed herself and drink from a cup. She liked to hold a stuffed animal.

In 2004, when Migdalia was 47, her mother died suddenly. Ms. Romero, who worked full-time, placed Migdalia at Union Avenue, a three-story facility with eight residents to a floor.

Ms. Romero remembered touring the building and meeting the staff. “I was comfortable,” she said. “I trusted them.”

Credit...Demetrius Freeman for The New York Times
The investigation at Union Avenue began after an employee turned whistle-blower sent letters in the summer of 2014 to a state official and to relatives of three residents who were found with unexplained black eyes and other bruises.

In the letters, the employee accused staff members of pervasive abuse and claimed that some supervisors had helped to cover it up.

A state agency, the Justice Center for the Protection of People with Special Needs, substantiated numerous allegations of abuse and neglect against 13 employees, according to records, transcripts of employee interrogations and legal depositions obtained by The Times.

Five of the Union Avenue abuse victims had already endured the hardships at Willowbrook, including one who was hit so hard in the head he needed stitches and another who was struck repeatedly by the same Union Avenue worker as he ate, the records show.

“He is afraid of her and hunches over his plate,” investigators wrote.

Willowbrook continued to cast a shadow as the Justice Center’s inquiry moved forward. Employees told the investigators of a “Willowbrook attitude” among some workers who, disrespectful of the residents, would line them up in their underwear for “assembly line” showers.

Tara Ganni, a Justice Center investigator, almost seemed astonished when questioning another employee to learn that former Willowbrook residents had gone through additional suffering at Union Avenue, a transcript shows.

“That’s kind of sad, isn’t it?” Ms. Ganni said. “You have to live through that — and then do it again.”

In Migdalia’s case, the Justice Center collected evidence that she suffered repeated trauma over at least six months in 2014. Workers told of seeing her with a “big purple blotch” resembling a shoe imprint below her navel, as if someone had kicked her, and of “big red circles” on her stomach, chest and legs.

She had received no medical attention. “Staff is under the impression that as long as a bruise was documented on the body check form,” they did not have to tell anybody about it, the investigators wrote.

The state Office for People With Developmental Disabilities, which oversees group homes, tried to fire the workers, but none lost their jobs. Strong union protections allowed them to block their dismissals in arbitration. Ultimately, allegations that had been substantiated were dropped entirely for some employees, records show.

“It’s a fair process,” said Denise Berkley, an official with the union, the Civil Service Employees Association. “Sometimes we like what the arbitrator says, sometimes we don’t.”

The union never condones abuse, she added.

The Bronx district attorney, Darcel D. Clark, said her office investigated for more than a year at Union Avenue, but there was insufficient evidence to prosecute the allegations of abuse. Victims could not speak for themselves, she said, and her office could not obtain cooperation from witnesses. “It’s not whether or not it happened,” she said. “It’s what could we prove.”

The state office for people with disabilities declined to comment on specific cases but said any abuse was unacceptable. It said disciplinary action was taken against workers with substantiated allegations, and employees received retraining and enhanced supervision after the arbitration process. Nine of the employees still work for the agency, and seven of those continue to work in group homes, though none returned to Union Avenue, the state said.

The office said it takes its commitment to quality services and safety very seriously, and offers oversight, protection and corrective actions when abuse or neglect is reported.

The Justice Center said it could not comment on individual cases or its own confidential appeals process, which it said reversed the findings against two employees. One worker who was found to have beaten Migdalia also had that finding reversed, according to a person familiar with the ruling.

The center said various factors can lead to a reversal, like a witness’s unwillingness or inability to testify and the available evidence at the time of the appeal. A reversal does not necessarily mean abuse or neglect did not happen, the center said.

The most effective action against the Union Avenue employees accused of abuse turned out to be a 2016 lawsuit filed on behalf of three residents — none of them Willowbrook class members.

The state, in settling the lawsuit this fall, agreed to pay $6 million to the three families and to transfer control of the facility to a nonprofit provider, the Institutes of Applied Human Dynamics, which took over in December.

Omayra Andino, the chief executive of Applied Human Dynamics, said her organization has brought on all new staff.

One day last spring, two staff members from the Consumer Advisory Board, the independent agency that advocates for former Willowbrook residents, visited a class member — a woman in her 50s — living in an upstate group home.

The woman, in addition to her mental impairment, had difficulty walking and maintaining her balance, and she wore a soft helmet because of falls, including one tumble backward down the cellar stairs.

The advisory board, a kind of front line for accountability for Willowbrook class members, already had concerns about her care and wanted her moved to a different home. On this visit, the staff members were horrified to see items strewn across the woman’s floor that she was allowed to keep as “toys” — marbles; batteries; a toilet-bowl brush holder; Lego pieces; plastic dog dishes; and a filthy industrial mop bucket atop a broken wooden toy chest that had exposed nails and screws.

Beneath the chest was an infestation of ants.

Photos were shared with the group’s board, which included parents and siblings of class members. One parent told the other board members that the mop bucket resonated with her: She remembered that when she visited her son at Willowbrook, she often saw children playing with mop buckets because of the lack of appropriate toys and activities.

Antonia Ferguson, the advisory board’s executive director, emailed state officials.

“It is 2019,” Ms. Ferguson wrote. “Nobody should be reliving their horrors of Willowbrook — whether it be class members or their family members.”

As the Willowbrook alumni age and their relatives die or move away, it has fallen to the advisory board as well as two legal groups appointed by the court to watch over the class members’ personal and legal interests.

The New York Civil Liberties Union, one of those groups, described recent incidents in which an employee’s negligence, even inattention, had disastrous consequences for class members.

Last spring, a 56-year-old woman in a Long Island group home had to have part of her finger amputated after it became caught in a wheelchair wheel. An employee had failed to ensure the woman’s hands were in her lap.

In December, a 58-year-old woman with seizures and asthma was found dead in her bed in a Brooklyn group home after an employee failed to check on her every 15 minutes, as medical orders required.

And in 2017, a Manhattan man, 69, ended up in a hospital burn unit with second-degree burns over his entire back, groin, calves and feet; he had been placed in a scalding tub or shower.

The group home’s staff had to be retrained in how to measure water temperatures.

Credit...Demetrius Freeman for The New York Times
Migdalia, now 63, still lives at the Union Avenue home. On a day of brilliant sunshine in September, she sat on a bench in a nearby playground next to her younger sister, Ms. Youssef, and Ms. Youssef’s son.

Migdalia gave no indication that she recognized Ms. Youssef, but she held her hand. “She knows that I’m family,” Ms. Youssef said.

But Migdalia seemed agitated. She looked left and right, making humming sounds and sucking her thumb. Her curly black hair was unwashed and mussed.

Ms. Youssef said that Migdalia’s sister, who lives at the nearby group home, is groomed and dressed neatly and appears to be happy and to have devoted caretakers.

Ms. Youssef began singing “Mary Had a Little Lamb” and tried a round of patty-cake. Migdalia seemed uninterested.

Soon, Ms. Youssef and her son led Migdalia back to her group home. Later, Ms. Youssef choked back tears as she described trying to hug her sister, who kept pushing her away. It seemed as if Migdalia was always watching her back, Ms. Youssef said. As if she was trying to say something, but could not.

Susan C. Beachy, Alain Delaquérière and Tiff Fehr contributed research.

Full Article & Source: 
Beatings, Burns and Betrayal: The Willowbrook Scandal’s Legacy

New Mass. Law Creates Registry For Caretakers Who Have Abused Disabled

Author: Chris McKinnon

BOSTON (CBS) – There’s a new law on the books in Massachusetts that will create a state registry for caretakers who have abused people with disabilities.

Gov. Charlie Baker signed Nicky’s Law on February 13. It’s named after a young man who had been abused by a caretaker.

“His parents realized after the incident when they couldn’t get the person prosecuted fully through the court system that, oh my goodness, this guy could work again somewhere else. His mom said ‘We’ve got to do something about this,’” said Leo Sarkissian, the executive director of The Arc of Massachusetts. The charity represents people with intellectual and developmental disabilities and helped push for the new law.

According to Sarkissian, state statistics show a 30-percent increase in abuse cases being referred to district attorneys offices. He said many cases don’t get prosecuted because the victim can’t communicate to defend himself or herself.

“Only 10 or 15 percent actually get prosecuted. That’s why this law is so important,” Sarkissian told WBZ-TV. “To capture those that do registerable abuse, abuse that’s physically or psychologically very harmful, that they can be placed on a registry.”

Elizabeth Bostic supported the bill after her son James was abused by a caretaker. There was no way to track the abuser’s past or find out if James’ next caregiver had any substantiated abuse claims.

“The offenders tend to just go from place to place to place, hurting people,” Bostic told WBZ. “There is this rising problem of people who are so vulnerable really getting abused and being hurt.”

“As I go forward and look for people to support James, I can be sure that they are people who have not hurt people before,” Bostic said.

Full Article & Source:
New Mass. Law Creates Registry For Caretakers Who Have Abused Disabled

Woman says NC rehab center left elderly father outside in rain for hours

CHARLOTTE, N.C. (WSOC) — A woman in North Carolina said a rehabilitation center left her elderly father, who has trouble walking and talking, out in the rain for hours.

Willie Williams, 78, had been at Charlotte Health and Rehabilitation Center for a month, but on Thursday, his daughter, Maxine Rozzelle, got a call saying there was an issue with his insurance, and he had to leave.

“She had told me that there would be someone to pick him up in 25 minutes,” Rozzelle said. “I say, ‘I cannot get there in 25 minutes’, so I said ‘you have to give me more time than that.’ So she was like, ‘I’ll see what I can do.'”

Rozzelle said the facility then got a transportation service to bring him home. When she arrived at his house hours later, she found her father outside in the rain with no way to get inside.

“He was upset. He was screaming,” Rozzelle said.

Rozzelle said her father did not have shoes or socks on. Luckily, a neighbor came over to give him a jacket and a blanket.

Rozzelle tried to call the facility and the transportation service but has not gotten a response. The rehab facility said the following in a statement in part:

“When an insurance company denies further nursing facility benefits and transportation home needs to be arranged, we contact the transportation company authorized by the insurer and arrange a safe transport. We ensure that patients are safe, stable and all needs provided for when they leave our facility.”

Rozzelle said her father was neither stable nor safe. The transportation company that moved Williams did not respond to request for comment.

Full Article & Source:
Woman says NC rehab center left elderly father outside in rain for hours

Friday, February 21, 2020

New charges, new investigation involving embattled former professional guardians

I-Team has investigate both cases for months

By: Adam Walser

OCALA, Fla. -- Disgraced former professional guardian Rebecca Fierle was arrested and is facing two felony charges after an eight-month police investigation.

Her arrest comes at the same time a Pinellas County judge ordered auditors to open a new investigation into another guardian -- Traci Hudson -- who is accused of stealing money from an elderly man.
After spending the night in jail, Fierle wouldn’t answer reporters’ questions Tuesday morning, as she walked out of the Marion County Jail after posting bond.

Fierle was arrested Monday night for aggravated abuse of an elderly person and neglect of an elderly person.

Both crimes are felonies.
The charges involve the death of Steven Stryker, a man under her care who died at St. Joseph's Hospital last May after investigators say Fierle plugged his feeding tube and ordered a do not resuscitate order against his wishes.

Fierle wouldn't answer our questions either in July after a judge removed her from nearly 100 cases.

The Price of Protection

The allegations against Fierle were first brought up in a July report for the Florida Office of Public and Professional Guardians.

Florida Attorney General Ashley Moody wouldn't say why it took eight months to arrest Fierle.
A spokesperson told the I-Team it is still an active, ongoing investigation.

Documents we obtained show investigators didn’t interview the hospital staff at St. Joseph’s until September, about four months after Stryker’s death.

The arrest warrant was signed by a judge February 10, the day of Fierle’s arrest at one of her homes in Ocala.

She will stand trial on the charges in Hillsborough County, but an arraignment date has not yet been set.

In Pinellas County, a judge ordered the Office of Inspector General to investigate embattled former professional guardian Traci Hudson for "concerns about the care and well-being of people and property under her care."

Hudson was arrested in November, accused of stealing more than $500,000 as the power of attorney for an elderly man.

The order is a reversal for Judge Pam Campbell, who previously said she believed it was an isolated incident.

“None of us, and we've all conferred about it, are aware of any kinds of improprieties in the guardianship cases,” she said in November, at a hearing following Hudson’s arrest.

Hudson is scheduled to appear in court in April on that criminal case. An arraignment hearing for Fierle will be set in the next 30 days.

Full Article & Source:
New charges, new investigation involving embattled former professional guardians

Audit: State failing elderly victims of abuse, neglect

By Brad Schrade

A state audit identified damning new evidence that Georgia’s system to protect seniors and vulnerable adults from abuse, neglect and exploitation is failing and the breakdowns are causing additional harm.

Among the significant gaps cited in Friday’s report by State Auditor Greg S. Griffin on Georgia’s Adult Protective Services system was that investigators are taking too long to respond to urgent cases, such as when the elderly were going hungry or were sexually abused. One year, some 500 vulnerable adults facing serious situations waited three days or more before an investigator arrived. APS employees also were rejecting reports that should have been investigated, the audit found.

The system failures leave thousands of elderly and disabled adults at risk. The report says one in 10 older Georgians may be victims of abuse, neglect or exploitation during their lifetimes.

Failures of law enforcement to communicate with APS play prominently in the breakdowns, the audit found.

Multiple law enforcement personnel the auditors interviewed indicated they don’t report all cases of abuse, neglect or exploitation to APS, despite statutory requirements to do so.

The audit noted that law enforcement officers “are hesitant to report cases that involve certain types of victims or abuse.” Officers said they prefer to handle cases themselves because of negative experience with APS or a belief that APS is overworked and can’t handle all the cases reported.

And nearly half of law enforcement officials surveyed in Georgia and more than half of district attorneys surveyed didn’t have a firm grasp on Adult Protective Services’ critical role in helping victims.

Reporting is haphazard, depending on what county the victim lives in, the audit indicates. Cobb and Gwinnett, for example, have about the same number of vulnerable adults. But in fiscal 2018, Cobb reported 50 percent more cases to APS. Law enforcement in the two counties had an even larger disparity.

In 29 counties across Georgia there were no reports from law enforcement, and another 24 had just one report for 2018.

“If reports are not made, victims cannot obtain potentially necessary services and may be at continued risk for future occurrences of abuse, neglect, or exploitation,” the report concludes.

The audit was also critical of the Georgia Bureau of Investigation. It notes that after the General Assembly approved funding in fiscal year 2016 to hire eight agents to focus on elder abuse, GBI didn’t use the funds to hire the allotted additional agents. Instead, it trained an agent in each of its 15 regions to be a resource on elder abuse. The audit questioned how effective the agency has been in addressing elder abuse, although the agency in its response said it had increased its caseload.

The audit also took aim at the way APS manages calls for help. The office only accepts calls from 8 a.m. to 5 p.m., Monday through Friday. That can lead to delays for reports that come in at night and on weekends, when the agency’s website in the only way to report a call.

Auditors also found the APS lacks any systematic way to analyze its work and ensure the decisions on cases are consistent and appropriate. As a result, the agency may be rejecting cases that warrant investigation. In FY 2018, 6,300 cases were rejected and 41 percent of those had no documented reason in the case file for why the decision was made.

About 40% of cases alleging sexual abuse were classified as standard cases, despite an APS policy that such allegations should be designated as priority.

The breakdowns point to the need for significant training and awareness across Georgia’s system.

The Department of Human Services, which oversees APS across the state, generally agreed with the report’s findings. It noted that it has expanded training and outreach to law enforcement and other mandated reporters through its At-Risk Adult Crime Tactics training program that has educated more than 3,000 front-line workers across the state on how to recognize and report abuse. It also noted that it believes policies about investigator response to categorizing reports as standard or priority are confusing and need review.

It did not agree with the recommendation to change its business hours, nor with the recommendation that it lacks a process to ensure decisions are appropriate.

While APS investigates abuse, neglect and exploitation and connects victims with services in the community, it is not the only state agency tasked with protecting seniors from abuse and neglect.

The agency is not responsible for investigating reports of abuse and neglect in state-licensed facilities.

But the audit mirrors similar problems identified by The Atlanta Journal-Constitution in its recent investigation of assisted living and personal care homes. The AJC found that the Department of Community Health, which is responsible for investigating cases in state-licensed homes, had gaps in its oversight. The AJC also found significant problems with the way police and regulators communicate, which led to few crimes ever being prosecuted.

Full Article & Source:
Audit: State failing elderly victims of abuse, neglect

Medicare payment change is making it harder for some patients to get home health care

By Judith Graham

The decision came out of the blue. “Your husband isn’t going to get any better, so we can’t continue services,” an occupational therapist told Deloise “Del” Holloway in early November. “Medicare isn’t going to pay for it.”

The therapist handed Del a notice explaining why the home health agency she represented was terminating care within 48 hours. “All teaching complete,” it concluded. “No further hands on skilled care. Wife states she knows how to perform exercises.”

That came as a shock. In May 2017, at age 57, Anthony Holloway was diagnosed with ALS (amyotrophic lateral sclerosis): Anthony, of Frederick, Md., can’t walk, get out of bed or breathe on his own (he’s on a ventilator). He can’t use the toilet, bathe or dress himself. Therapists had been helping Anthony maintain his strength, to the extent possible, for two years.

“It’s totally inhumane to do something like this,” Del said. “I can’t verbalize how angry it makes you.”

Why the abrupt termination? SpiriTrust Lutheran, which provides senior services in Pennsylvania and Maryland, said it could not comment on the situation because of privacy laws. “In every client situation SpiriTrust Lutheran is committed to insuring the safety and well-being of the individual,” Crystal Hull, vice president of communications, wrote in an email.

But its decision comes as home health agencies across the country are grappling with a significant change as of Jan. 1 in how Medicare pays for services. (Managed-care-styled Medicare Advantage plans have their own rules and are not affected.)

Agencies are responding aggressively, according to multiple interviews. They are cutting physical, occupational and speech therapy for patients. They are firing therapists. And they are suggesting that Medicare no longer covers certain services and terminating services altogether for some longtime, severely ill patients.

Altogether, about 12,000 home care agencies (most of them for-profit) provided care to 3.4 million Medicare beneficiaries in 2017, the most recent year for which data is available.

To qualify for services, a person must be homebound and in need of intermittent skilled care (less than eight hours a day) from nurses or therapists.

Previously, Medicare’s home health rates reflected the amount of therapy delivered: More visits meant higher payments. Now, therapy isn’t explicitly factored into Medicare’s reimbursement system, known as the Patient-Driven Groupings Model (PDGM).

Instead, payments are based on patients’ underlying diagnosis, the presence of other complicating medical conditions, the extent to which the patients are impaired, whether they are referred for services after a hospitalization or a stay in a rehabilitation center (payments are higher for people discharged from institutions) and the timing of services (payments are higher for the first 30 days and lower thereafter).

Agencies now have a stronger financial incentive to serve patients who need short-term therapy after a stay in the hospital or a rehabilitation facility, said Kathleen Holt, associate director of the Center for Medicare Advocacy. Also attractive will be patients who need nursing care for complex conditions such as post-surgical wounds.

At the same time, there are fewer incentives to serve patients who need extensive physical, occupational and speech therapy.

The new system encourages a “holistic” assessment of patients’ needs, and there’s convincing evidence that home health agencies sometimes provided too much therapy under Medicare’s previous system, said Jason Falvey, a postdoctoral research fellow in the geriatrics division at Yale School of Medicine. Between 2000 and 2016, Medicare home health therapy services soared 112 percent, according to the most recent data published by the Medicare Payment Advisory Commission.

But the risk now is that too little therapy will be offered, Falvey said.

“We are very concerned about that potential,” said Kara Gainer, director of regulatory affairs for the American Physical Therapy Association.

Early reports from the field suggest reason for concern.

Last fall, the National Association for Home Care and Hospice asked 1,500 agencies how practices would change under PDGM. One-third said “categorically, across the board, we’re going to reduce our therapy services,” said William Dombi, the association’s president.

Dombi said his group has advised agencies that these cuts “may not be a good move” medically (patients might deteriorate without therapy and end up in the emergency room or the hospital) or “from a business perspective.” (If more patients end up worse off and going to ERs or are hospitalized, that will reflect poorly on agencies and may affect referrals.)

The American Occupational Therapy Association is also surveying members. Based on 526 responses to date, occupational therapists and assistants are being laid off, asked to decrease the number of visits to clients and directed to provide services for less than 30 days, said Sharmila Sandhu, vice president of regulatory affairs.

In an email, a spokesman for the Centers for Medicare and Medicaid Services said the federal agency is “monitoring the implementation of the PDGM, including therapy service provision, at the national, regional, state, and agency level.” (A similar system for skilled nursing facilities that provide rehabilitation was implemented in October.)

“We do not expect home health agencies to under-supply care or services; reduce the number of visits in response to payment; or inappropriately discharge a patient receiving Medicare home health services as these would be violations of [Medicare] conditions of participation,” the spokesman wrote.

Yet that appears to be happening.

Carrie Madigan, an occupational therapist who worked for Kindred at Home in Omaha, said she was laid off in November as the company — the largest U.S. home health provider — cut therapy positions nationwide. Her agency lost four occupational therapists and three physical therapists last year as it implemented layoffs and cut back on therapy visits in anticipation of PDGM, she said.

A company representative wrote in an email that Kindred at Home doesn’t discuss staffing decisions. The person maintained that its “focus always has been, and will remain, on providing the right care at the right time for our patients.”

Several large agencies said they had prepared extensively for PDGM. The Visiting Nurse Service of New York has trained coaches to work with Medicare home health patients and is bringing remote monitoring equipment into people’s homes to track their progress, said Susan Northover, senior vice president of patient care services. The agency provided home health services to more than 30,000 Medicare beneficiaries in and around New York City last year.

Under PDGM, there are 432 ways of classifying patients. For each, the group is recommending “the amount of time we think a patient should be receiving care,” based on extensive analysis of historical data, Northover said. “I absolutely see no change in how we will provide therapy going forward.”

Encompass Health of Dallas serves about 45,000 home health patients in 33 states, most of them covered by Medicare. It’s using an artificial intelligence tool to predict what kind of services, and how many, patients will need. “We’ve been able to eliminate some wasted visits” and become more efficient, said Bud Langham, chief strategy and innovation officer.

Langham said he was disturbed by reports he was hearing that “agencies are taking a very draconian approach to PDGM.”

“That’s dangerous, and it’s going to lead to worse outcomes,” he said.

In Frederick, the Holloways have struggled since SpiriTrust terminated Anthony’s services Nov. 11. Four other agencies rejected Anthony as a patient. Without help stretching his limbs and strengthening his core muscles, he is in more pain and has four new bedsores.

Before his services were cut off, Anthony had been getting three hours of physical therapy, two hours of occupational therapy, one hour of speech therapy per week, plus a visit every other week from a registered nurse.

In an email, Hull of SpiriTrust wrote that “individualized plans of care are developed specific to the needs of each client” and that “PDGM did not influence any decision made specific to this particular client’s plan of care.”

Before retiring in 2016 because of ill health, Anthony was chief of police for the U.S. Bureau of Engraving and Printing. “It seems to me nobody cares about what’s happening to me,” he told me. “It makes me feel terrible — awful, less than human.”

There is a glimmer of hope. A few days before I spoke with the couple, a fifth home care agency said it would initiate services: two hours each of physical and occupational therapy, one hour of speech therapy and one hour for a home health aide every week.

“I’m relieved, but I also feel I’m walking on eggshells,” Del said, “since they can terminate you at any time.”

This column is produced by Kaiser Health News, an editorially independent news service that is a program of the Kaiser Family Foundation.

Full Article & Source:
Medicare payment change is making it harder for some patients to get home health care

Thursday, February 20, 2020

Vulnerable Voiceless: Apparent elder abuse through the eyes of Gary Cummings

Click to Watch Video
By Stephanie Sierra

COLORADO SPRINGS, Colo. (KRDO) -- We often protect those we love the most, nurturing and supporting our loved ones, especially our parents as they grow older.

But it doesn't always happen that way, especially for one elderly man in El Paso County, Gary Cummings.

Gary's story

At age 89, Gary often described his lust for life as his "most treasured gift." The athletic pickle-ball enthusiast, pictured below, enjoyed life on and off the court.

According to his friends who saw him three to four times a week, his competitive spirit was "thriving."

Here's what the group told us about Gary's demeanor in late 2018.
  • "He plays a mean game of pickleball"
  • "He was a happy-go-lucky guy. He had no care in the world."
  • "He was very happy... he smiled a lot."
  • "He was coherent and interested in other people."
During this time, Gary paid his longtime friend, Nefthali Capua to care for him.

The two lived together for seven years -- adventuring in Colorado and playing pickleball.

But, that all changed in a mere four months. Gary's life took a drastic turn.

"All of a sudden he's just gone," said Don Nelson, one of Gary's close friends.

Gary was isolated from his caretaker Capua, his friends; months later, his physical condition began deteriorating.

So how did this all happen? Let's go back to November of 2017.
  • Friends said Gary wanted landscaping work done on his home, but he was having trouble with his checking account.
  • In late Nov. of 2017, Gary transferred $35,000 to Capua, requesting Capua make a payment on his behalf.
  • The money was sent in three $10,000 increments. That immediately flagged Gary's bank and alerted the potential fraud to Adult Protective Services or (APS) who launched an investigation into Capua.
  • Yet documents prove Capua immediately transferred that money to the landscaping company. Weeks later, Capua was cleared from the bank.
Capua was cleared, but the investigation turned to Gary. APS deemed him incompetent, requesting emergency guardianship and conservatorship.

This isn't uncommon.

A guardian is the legal caretaker of an incapacitated person. Whereas, a conservator is financially responsible for someone physically and mentally incapable.

But, Gary didn't fit either description. And there's video to prove it. Fourteen months after Gary was declared mentally incompetent, he's seen in the video doing his taxes on March 4, 2018. Nearly a year after being declared physically incompetent, Gary is seen playing competitive pickleball.

Gary felt his competency evaluation was rushed and biased, according to a phone recording of him describing the demeanor of the psychologist who evaluated him.

"The psychologist... and he comes up and says he's starting to go [motioning to his head] he can't do any of this," said Cummings.

Yet, despite proof of his good condition -- Gary Cummings lost all personal and financial freedom.

Records show that Tammra Hasling, the former temporary conservator assigned to Gary's case, took control of his bank accounts, property, and other assets. Yet documents show Hasling failed to pay a number of Gary's bills like utility accounts, credit cards, sports club membership dues, and property taxes on his $622,000 home.

That's five failed payments. Yet, Hasling faced no penalty.

Investigative Reporter Stephanie Sierra questioned Hasling about that.

"I'm just trying to understand why that wasn't done?" Sierra asked.

"I can't answer that question," Hasling said. "I will have to ask my attorney if I can talk to you."

Gary's case turned over to the permanent conservator, Janice Eder. From there his assets were liquidated and in mid-April of 2019, Cummings was forced from his home into a nursing facility that prohibited visits from nearly all his friends.

Except one, Gary's close friend, Don Nelson -- who managed to see Gary by mistake of the nursing staff.

"He had lost a lot of weight, he was sad, and he tried to get away and they drugged him," Nelson said.

During that visit, Nelson said Gary gave him a letter pleading to leave the nursing facility.

"The first thing he said was, 'Get my bag, I want to get out of here,'" said Nelson, before he was asked to leave.

The following day, Nelson tried to visit. But, Gary was moved.

"I don't even know where he is," Nelson said.

Rumors spread Gary was sent to another nursing home. But, exactly where remains a mystery.

What we do know is Gary's children filed the petition stating they believe their father is incompetent. Yet according to Nelson, Gary hasn't been in contact with his children for years.

I tried calling each of Gary's four children to get their side. I didn't receive a call back. But, after the story aired our team received an email from the family attorney, Robert Erler.

The message wrote:

"We wish to state that we, as Gary’s family, have been closely involved and carefully watching throughout all of our dad’s court proceedings to make sure that his best interests are being looked after. We have and continue to fully support what APS, the Court and the professionals have done and are doing to protect our father. Our dad is safe and doing well in large part because of what these professionals have accomplished."

The email also pointed out there are legitimate reasons why Gary’s privacy, including his location, are being protected. But those reasons were not disclosed.

We sat down with attorney Terrence Doherty, who has experience fighting elder abuse cases. He said most often the motive is simple.

"9 out of 10 times... it's greed," Doherty said.

While we can't confirm that's the motive for Gary's case, failed payments and unexplained isolation point toward his current caretakers, conservator Janice Eder and guardians Kyndra Carpenter and Genie Black.

We wanted to know why Gary is being isolated from his friends, why he is being forced to live somewhere he hates, why evidence proving his competency is being ignored, and most of all, why a seemingly alert 89-year-old deteriorated in a mere three months time?

We brought these questions to his conservator, Janice Eder.

"I understand you are the conservator for Gary Cummings," said Sierra. "Can you explain to us why Gary has been isolated from his friends for 10 months now? We want to hear your side."

"Uh, you have to go through my attorney," Eder said.

We tried to ask Eder why she failed to pay property taxes on Gary's home. But, she refused to answer.

Nefthali Capua, Gary's former caretaker, was previously arrested for neglect and violating his restraining order -- both charges pertaining to Gary's case. It's unclear where the criminal case stands.

El Paso County's Adult Protective Services responds to roughly 3,500 reports of elder abuse and exploitation each year. Yet many of those reports aren't getting the attention they deserve as cases continue to get backlogged at the county courthouse.

The guardians requested Gary be prohibited from having any contact with any of his friends. That request was granted by Judge Robin Chittum, who also sealed all court documents from the media.

We've since learned Chittum has been removed from the case.

Full Article & Source:
Vulnerable Voiceless: Apparent elder abuse through the eyes of Gary Cummings

Trial of man accused of raping incapacitated woman at Hacienda Healthcare delayed

"When I set this trial, and I thought I was clear the last time, it's gonna be a firm trial date," the judge said. "I will not continue this case again for any reason -- period."

PHOENIX (3TV/CBS 5) – The man accused of sexually assaulting a helpless patient and fathering her child while she was in his care at Hacienda Healthcare in 2018 will not go on trial as scheduled. The decision came down at a court hearing Tuesday morning.

[CONTINUING COVERAGE: Hacienda Healthcare Investigation]

The trial of Nathan Sutherland, who was arrested a month after an incapacitated woman gave birth at Hacienda Healthcare in December 2018, was slated to start on Tuesday, Feb. 25. Detectives say DNA confirmed Sutherland is the baby’s father. Nobody knew the woman was pregnant until she gave birth.

[LISTEN: 911 call from December 29, 2018]

[RELATED: Phoenix police arrest 36-year-old nurse in Hacienda HealthCare rape (Jan. 23, 2019)]

[WATCH: Phoenix police, mayor announce Hacienda Healthcare arrest]


Sutherland was in court for Tuesday morning's ruling. Arizona's Family reporter Gibby Parra was there, as well, and said the judge got heated with the attorneys. Judge Stephen Hopkins wanted jury selection to go ahead as scheduled and was obviously unhappy with the request for more time.

[WATCH: Judge not happy with delay, takes both lawyers to task]

“When I set this many, many months ago, I told everyone I was setting it very far out so that everyone would have the opportunity to prepare,” Hopkins said. “I also put – specifically – in my order setting this trial that I was not going to entertain any requests for a continuance at the last minute. The parties have had every opportunity to try and pursue resolution short of trial. The fact that this is apparently just coming up on the eve of trial is not 'extraordinary circumstance.' I don’t see anything else in your motion that would qualify as an extraordinary circumstance."

It wasn't just Sutherland's lawyer, who filed his request for a continuance on Friday, asking for more time. When asked point-blank if the state was ready to proceed next week, the prosecutor's answer was no. "We anticipated that this matter would be continued," Yigael Cohen said. He said he needed another two weeks to prepare.

[WATCH: Sutherland waives right to speedy trial]

While Hopkins said he was "not inclined" to put off Sutherland's trial, he did grant a 60-day continuance. He was, however, adamant that there would be no more delays.

"When I set this trial, and I thought I was clear the last time, it's gonna be a firm trial date," Hopkins said. "I will not continue this case again for any reason -- period."

Hopkins made it clear to Sutherland that by going along with the continuance, he was waiving his right to a speedy trial.


Arizona’s Family was the first to bring you the story, which made national headlines, and has followed it closely for more than a year now. The surprise birth shed light on a myriad of problems at Hacienda Healthcare and cost one doctor his medical license. The Arizona Medical Board dismissed a case against a second doctor.

[HACIENDA INVESTIGATION: One year later, what has changed?]

Hacienda Healthcare found itself under the state’s scrutiny in the wake of the birth, and it was unclear if it would be able to stay open. Last month, the Arizona Department of Health Services said that the facility would keep its license and continue operating. It also said there was no need for a change in management. That same day, Hacienda said it reached an agreement to keep its Medicaid contract. The U.S. Centers for Medicare and Medicaid Service had announced in June that it was ending its contract with the embattled facility, but Hacienda appealed. While it is still open and caring for patients, Hacienda has scaled back services, including closing its skilled nursing facility.

Sutherland, a licensed practical nurse who was one of the woman’s caregivers – even though her parents had requested that only women look after her -- is charged with one count each of sexual assault and abuse of a vulnerable adult. He pleaded not guilty. Sutherland had been an LPN at Hacienda since January 2012.

[RELATED: Former Hacienda employee details working with Sutherland, document shows his written goals]


In addition to the criminal case against Sutherland, the family of the woman who had the baby has filed a lawsuit against her doctors, their employers, and the state. Court documents in that suit note that Sutherland was assigned to look after the woman within days of starting work at Hacienda. They also state that Hacienda records show that Sutherland "provided care for [the woman], by himself and unaccompanied by female staff, on hundreds of occasions."

The baby boy is now almost 14 months old.

Full Article & Source: 
Trial of man accused of raping incapacitated woman at Hacienda Healthcare delayed 

See Also:
Arizona, 2 doctors sued over rape of incapacitated woman 

Trial Date Set For Man Accused Of Raping Incapacitated Woman At Hacienda Healthcare

Judge orders former Hacienda nurse accused of raping patient to take HIV test pending appeal

Arizona care unit where incapacitated woman gave birth to stay open

Hacienda HealthCare to cease operation at South Phoenix facility

Arizona governor calls for stronger protections after incapacitated woman’s pregnancy

Ex-nurse accused of impregnating a severely disabled Arizona woman pleads not guilty

Lawyer: No proof nurse raped Arizona patient who had baby

Nurse arrested in rape of woman in vegetative state who gave birth at care facility

Center where comatose woman had baby faced criminal probe

Lawyer: Incapacitated woman who gave birth not in coma

Patient alleges abuse at Hacienda Healthcare, two staff members placed on leave

Facility CEO resigns after woman in vegetative state gives birth; new allegations emerge

Patient in vegetative state gives birth, sex abuse investigation underway: report

Fordham professor laments physician-assisted suicide, says it hurts vulnerable people the most

Nine states have already legalized physician-assisted suicide,(PAS) and New York may be next in line, Fordham University professor of theological bioethics Charles Camosy told Fox News' "Tucker Carlson Tonight" Tuesday.

Camosy told host Tucker Carlson that the most common reason patients in Oregon, where assisted suicide has been legal since 1997, request access to PAS is not due to "physical pain and suffering," -- as is often assumed -- but rather a fear of "being a burden on others," and fear of "losing one's autonomy."


"I'm a college professor so I'm around progressives a lot," Camosy said. "It's an absolutely bizarre reaction ... to say 'Well, there are these people who fear these things because of our socially unjust world, [so] let's make it easier for them to kill themselves.' That can't possibly be the correct response from somebody that cares about social justice."

Carlson suggested to Camosy that it would only be a matter of time before companies "figure out that it's a lot cheaper if you are dead than if you are, say, being treated for diabetes."

Camosy agreed, noting that what he called the more "vulnerable" populations that seem the most skeptical of PAS.

"They get it," he said. "They know that when you say things like, 'Who is a burden?' It's them. Who has lost their autonomy? It's them. There is a whole elitist substructure which says 'We're going to benefit from that now.' It's not explicit but they do in fact benefit from that.'"


Camosy said his book "Resisting the Throwaway Culture" emphasizes the importance of speaking up on the issue, "at least if we do care about vulnerable populations."

Camosy also noted that Latinos and African-Americans specifically are "on the front lines of this" and have spoken out against PAS "very disproportionately especially compared to privileged whites."

"We hear about racial justice all the time ... how about being consistent and saying 'Let's listen to these voices of color here, not just on the set of issues that we happen to care about Monday through Friday," Camosy said.

Camosy predicted that New York state was likely to legalize PAS in the near future, but urged viewers to "pay attention to those vulnerable voices."


"I think if we can pay attention to those vulnerable voices, those who don't get heard, the forgotten people and really pay attention to them and not just give them lip service, we will be deeply skeptical of this," he concluded.

California, Colorado, Hawaii, Oregon, Vermont, Washington, Maine, New Jersey and Washington, D.C., all have legislation permitting medically assisted suicide, according to the Death With Dignity National Center and the Death With Dignity Political Fund.

Full Article & Source:
Fordham professor laments physician-assisted suicide, says it hurts vulnerable people the most