Saturday, May 9, 2020

Calls for Probe of Nursing Home That Sent Comedian’s Kin to Wrong Cemetery

By Virginia Breen

Comedian Elayne Boosler visited her cousin Dorothea Buschell in Brooklyn’s Hamilton Park Nursing & Rehabilitation Center in August 2018. Photo: Courtesy of Elayne Boosler
New York’s long-term care watchdog and a local lawmaker called for an investigation of the Brooklyn nursing home where comedian Elayne Boosler’s Jewish cousin was sold a pricey Christian funeral package before landing in the wrong cemetery.

“How and why was a guardianship obtained without the knowledge of the family?” asked Deirdre Garrett-Scott, director of the Long Term Care Ombudsman Program at the Center for Independence of the Disabled in New York (CIDNY), which is funded by the federal government and state Department of Health to advocate for patients.

“This sounds absurd and possibly fraudulent, and the Department of Health and attorney general should be looking into how this happened,” she added.

Garrett-Scott’s comments followed THE CITY’s report detailing Boosler’s harrowing tale of her elderly Jewish cousin Dorothea Buschell, who died April 13, apparently of COVID-19, at the Hamilton Park Nursing & Rehabilitation Center in Bay Ridge.

The Hamilton Park Nursing and Rehabilitation Center Photo: Ben Fractenberg/THE CITY
Buschell was sent to the wrong cemetery, and her estate was charged more than $15,000 for a Christian burial, although she already had a paid-for family plot at a Jewish cemetery on Long Island.
While Boosler stressed she and another cousin, Harriet Saltzman, remained active in Buschell’s life, court records show Hamilton Park petitioned Brooklyn Supreme Court for a guardianship on behalf of “Dorothea Buschell, an Incapacitated Person” on June 25, 2015. New York Guardianship Services was appointed guardian on Oct. 21, 2015.

Two years later, an employee of Guardianship Services, David Blau, signed a $15,000 pre-need burial document on Buschell’s behalf, charging her estate for a lengthy list of items — including a mahogany casket, clergy, rosaries and a crucifix.

Secret Guardianship

Boosler told THE CITY neither she nor Saltzman knew about the guardianship. The nursing home staff never told them on the phone or during Boosler’s last visit to Buschell in 2018, which would have been “the perfect opportunity for them to bring up the guardianship, the pre-need, anything,” Boosler said. “They did not say a word.”

After THE CITY’s story ran, Boosler said Saltzman finally reached Blau, “whose answer to all of this when she posed it to him was ‘It all has to go through the courts.’ They want to be sued.”

Blau has not returned calls for comment, though Guardianship Services blamed the nursing home for “unacceptable negligence.”

Richard J. Brum, an attorney for the Allure Group, which owns Hamilton Park nursing home, said he was unable to provide any details regarding residents “for privacy reasons,” in accordance with the Health Insurance Portability and Accountability Act (HIPAA).

The Health Department referred all calls to the state Attorney General Letitia James’ office, which said it was unable to comment on specific nursing home investigations. A source confirmed, however, that James’ office was investigating various complaints at a number of nursing homes across the state.

“All of these nursing homes need to be investigated,” said Councilmember Justin Brannan, whose district includes the Hamilton Park Nursing & Rehabilitation Center.

“While the entire planet has been focused on ensuring our hospital system could handle the COVID-19 crisis, a perfect storm has been quietly brewing inside a different facility altogether: our city’s nursing homes.”

Councilmember Justin Brannan (D-Brooklyn) Photo: Ben Fractenberg/THE CITY
The state Department of Health recently released new and more detailed data showing that as of May 3, Hamilton Park had logged 12 COVID-presumed deaths at the facility.

Garrett-Scott pointed out that as of March 4, the federal Centers for Medicare & Medicaid Services (CMS) ordered state nursing home inspectors to suspend routine inspections and focus on COVID. The state has also barred families from visiting nursing homes since March 13.

“Since we have been declared non-essential workers, we have not been able to get into these facilities,” Garrett-Scott noted. Prior to the order, ombudsmen had round-the-clock access to the homes. They may now only investigate by telephone, which hinders their ability to check on residents with cognitive or physical disabilities.

“There were a few places we tried to contact that took a few days of constant, continuous calling before we were able to get through,” Garrett-Scott said. “I can only imagine what family members are going through.”

Gallows Humor

Garrett-Scott also pointed out that the lack of federal and state oversight during the pandemic has made it difficult for families to get clear information about the status and location of loved ones.

In particular, she noted that nursing homes and long-term care facilities were now permitted to transfer residents “with symptoms of a respiratory infection or confirmed diagnosis of COVID-19 to another facility.”

Other federal and state waivers allow doctors to use telehealth technology to care for long-term care residents, rather than having to treat patients in person. CMS also suspended paperwork requirements to allow physicians to issue verbal, rather than written, medical orders.

“Vulnerable people were already being taken advantage of on a daily basis at long-term care facilities, and the pandemic has allowed the situation to escalate,” Garrett-Scott said. “Coronavirus opened a Pandora’s box.”

As for Boosler, she said she had no other option but to hire a lawyer. She hoped her cousin’s story would serve as a “cautionary tale and a head’s up for families” of those in long-term care, even as she tried to keep her trademark sense of humor.

“I am incensed and outraged,” Boosler said. “Which I think was also a hit for the Ventures in the ‘60s.”

Full Article & Source:
Calls for Probe of Nursing Home That Sent Comedian’s Kin to Wrong Cemetery

New York State Senators call for independent investigation of state’s response to nursing home deaths

by: George Stockburger

ALBANY, N.Y. (WEMT) – Following a call from former Governor George Pataki, members of the New York State Senate Republican Conference are also calling for an independent investigation of the state’s response to COVID-19 deaths in nursing homes.

The Senators say Governor Cuomo and the state Department of Health “have mandated that nursing homes admit COVID-19 positive patients into their facilities, a directive that has imported the virus into places that house New York’s most vulnerable.”

Senate Republicans are also calling for an immediate change in policy to create regionally based specialty long-term care facilities for COVID-19 positive nursing home residents.

“Our nursing homes, their staff, and their residents, who are really a family, are on the absolute front lines of this pandemic, and they need our strong and enduring support. We know that allowing COVID into a nursing home is an invitation for it to spread, and we need to make sure that we take necessary steps to protect residents. We also believe that an independent investigation into the state’s actions is warranted to make sure that the tragic deaths at these nursing homes never occur again,” said Senate Republican Leader John J. Flanagan.

On Tuesday evening Governor Pataki called for a federal investigation into the state’s response, saying the Center for Disease Control or Health and Human Services should lead the investigation after over 1,700 unreported nursing home deaths came to light.

The state’s reporting of nursing home deaths has been behind county reports, including Steuben County where approximately 20 nursing home deaths were not reported by the state weeks after the county’s initial report.

“When your loved one enters a nursing home, you expect them to be safe — safer than they are even in their own homes. Many of these facilities are going above and beyond to protect residents while the state’s response to the crisis in nursing homes has been wholly inadequate. Instead of scapegoating, or threatening blanket receivership, the state needs to step up to the plate, and do all that it can to support these facilities to ensure that residents are receiving the highest quality of care. Weeks ago, I released a plan that would create an independent council to enforce transparency in facilities and concentrate COVID-19 patients in separate specialty care centers. The state needs to take these proposals seriously and act immediately to protect residents and give families peace of mind,” said Senator Sue Serino, Ranking Member of the Senate’s Aging Committee.

“An independent investigation is the only way to ensure transparency and find out what happened in these nursing homes and why.  Residents and families deserve answers that can only be found through an investigation by impartial experts. It is inappropriate for the Department of Health to lead a probe into its own procedures,” said Senator Patrick Gallivan, Ranking Member of the Senate’s Health Committee.

Full Article & Source:
New York State Senators call for independent investigation of state’s response to nursing home deaths

98 Seniors Die of Coronavirus at One New York City Nursing Home

Nearly a hundred residents of one New York nursing home have died of the new coronavirus, the Associated Press reports. A state count of COVID-19 deaths at the Isabella Geriatric Center in Manhattan released Friday listed only 13 casualties, but the actual tally was 46 deaths from confirmed cases and 52 assumed cases, officials at the 705-bed home told the AP. New York City mayor Bill de Blasio lamented the outbreak: “It’s absolutely horrifying. It’s inestimable loss, and it’s just impossible to imagine so many people lost in one place.” COVID-19 has devastated elder care facilities in nearly every state.

Read it at Associated Press

Full Articles & Source:
98 Seniors Die of Coronavirus at One New York City Nursing Home

Friday, May 8, 2020

Turning our backs on seniors in their hour of deepest need

(David Ryder/Getty Images)
In the epicenter of America’s COVID-19 pandemic, elderly New Yorkers are most vulnerable to suffering severe complications from the virus, including death. The risks multiply when these seniors are poor, with disabilities and other underlying health conditions. And when family support networks and connections to social services are removed from the equation, you have a recipe for incomparable catastrophe.

This is not an abstract thought experiment. It is the backdrop we are experiencing every single day in the fatality-ridden nursing homes where many of our clients are unable to make life or death decisions for themselves. Many have already died.

As part of the Guardianship Project, which I direct, our lawyers, social workers and bookkeepers oversee services that keep the most vulnerable New Yorkers safe and engaged in their communities. We are the court-appointed guardians tasked with ensuring impoverished seniors without relatives can live as independently as possible — a steep challenge even before the pandemic arrived.

Now, faced with unprecedented overlapping economic and social crises, New York City’s government is looking to cut costs. Lawmakers must look elsewhere. If funding for our project is slashed, it will lead to an onslaught of unspeakable tragedy. Even in normal times, many elderly, economically disadvantaged New Yorkers and those with disabilities can’t fully care for themselves, manage their money, and make important decisions about health care and other life issues.

Without the Guardianship Project, they’re at risk of a wide range of abuses. The alternative for many of our clients would be victimization or ending up in expensive, publicly funded institutions where their quality of life would deteriorate. Now their lives are in grave danger as well.

The horrors of COVID-19 have already ravaged the lives of many of our clients. Just prior to the pandemic, the Guardianship Project cared for 175 elderly New Yorkers. Of those, 33 have either tested positive or been symptomatic of the virus. And 23 clients have died in the last month alone. This represents a 1,200% increase in the rate of death over the previous one-year average — and we expect these gruesome figures to rise.

The situation in nursing homes and hospitals is even more bleak. Twenty-nine out of our 33 symptomatic clients – approximately 88% – were housed in one of these institutions. Many of the nursing homes are understaffed and lack the appropriate personal protective equipment for workers and residents. One of our clients who is ill from COVID is completely bed-bound, suggesting they most likely caught the virus from a staff member.

Despite this dire situation, the Guardianship Project’s staff is on the ground every day in Brooklyn, the Bronx, Manhattan, Queens and Staten Island serving clients outside of facilities, coordinating their care, monitoring their health, and delivering everything from money to food to medications. With no other family member or decision-maker offering support, our clients have no other lifeline to help them receive medical treatment, make decisions about their care, and convince medical professionals that their lives have value.

While miniscule compared to the rest of the city budget, this program is not only beneficial to the elderly, it is also a sound investment. The total cost of the Guardianship Project to the city is only $750,000 — an infinitesimal fraction of its $89.3 billion annual budget. In addition, a recent cost-benefit analysis by the Vera Institute of Justice showed that the Guardianship Project saves roughly $3 million in Medicaid dollars annually by moving seniors away from long-term institutionalization.

There’s no question that COVID-19 has forever changed the social fabric of New York City in ways that will be analyzed for years to come. But some facts are self-evident right now. Put simply: cutting funding for the Guardianship Project is tantamount to a death sentence for the most vulnerable New Yorkers. There is a better way to balance the budget than on the backs of our elderly neighbors who are most at risk of illness and death.

Full Article & Source:
Turning our backs on seniors in their hour of deepest need

Minnesota Senate passes enhanced protections for seniors against financial exploitation

On Monday, the Minnesota Senate unanimously passed legislation that enhances protections for senior citizens against financial exploitation. The bill, Senate File 2466, permits certain financial services providers to temporarily delay transactions where financial exploitation is suspected and to disclose that information to authorities.

“One in five Minnesotans over the age of 65 have been the victims of financial fraud or exploitation – and in many cases, they are unaware what is happening. Before they realize what is happening – or before authorities have had the chance to step in – the perpetrator has taken their money and moved on to another victim. This legislation offers an additional layer of protection for seniors against this reprehensible behavior,” said Senator Karin Housley (R-St. Marys Point), the author of the bill. “There are few things as disgusting as exploiting an elderly or vulnerable person. This bill gives banks and credit unions the latitude to act if they suspect something is wrong. Hopefully, we can stop fraud in its tracks.”

The legislation allows banks, credit unions, and other financial services providers to delay a transaction if they have a reasonable belief it would result in the financial exploitation of a vulnerable person or an individual 65 years of age or older, and permits them to disclose their suspicion to the Minnesota Adult Abuse Reporting Center or other third parties. The bill also provides individuals and financial services providers immunity from liability for disclosing that information in good faith. This action would not freeze the victim’s entire account; other transactions could continue to take place while the pending transaction is investigated, and all delays or holds would expire when there is a reasonable belief the transaction will not result in financial exploitation or 15 days after the attempted transaction. The bill mirrors legislation passed in 2018 that gave broker-dealers the authority to freeze a transaction if they suspect fraud involving senior citizens.

“This is another step toward making Minnesota a great place to grow old. I am hopeful the House will pass this bill and Governor Walz will sign it into law,” said Senator Housley.

Senator Karin Housley represents Forest Lake, Stillwater, and the surrounding St. Croix Valley in the Minnesota Senate. She serves as chairwoman of the Senate Family Care and Aging Committee and is an assistant majority leader.

Full Article & Source:
Minnesota Senate passes enhanced protections for seniors against financial exploitation

Protecting the vulnerable- Those in their golden years need special support

Todd Weaver, President, Royce Weaver, volunteer for Always Accurate Hospice, Cindy Strother, volunteer, Kelly Curley, APS supervisor Unit 78 Region 4 ECD and Misty Quattlebaum, APS specialist IV.
Purple pinwheels decorate the courthouse lawn once again in honor of May being Elderly Abuse Awareness Month. A proclamation will be made at 9 a.m. Tuesday via online streaming at the Commissioners Court of Henderson County.

“I became a Chaplain for Always Accurate Hospice and my heart goes out to the elderly in the community because I see the suffering that continues to go on,” said Todd Weaver Henderson County Adult Protective services President. “We are a support board for APS case workers and the Department of Family and Protective Services to provide support and raise awareness to better enable them to do what they do. They are not just the elderly population, these are our moms, dads, brothers, sisters and grandparents. It really touches my heart, they are not forgotten.”

Weaver has been with HCAPS for four years and said the board is comprised of people who have a heart for the issues.

Weaver spoke about the fast pace of today's society and the need to slow down in order to keep an eye on elderly loved ones and friends, but not all caregivers are created equal and this is where the importance of community involvement comes into play.

The National Council on Aging presented some statistics showing the reality of the situation.

It is estimated that one in 10 Americans over 60 have experienced abuse on some level, sadly with two-thirds of the abusers being family of the victim. Only one in 14 is estimated to be reported leaving them to endure it in silence. Some of whom are unable to be a voice for themselves due to impairments or threats of harm.

Many of the victims have some sort of physical or mental impairments. Chances of premature death increase 300% compared to those not abused.

“We send a caregiver to take care of them and our lives have become so fast paced, we forget. I don't want to do that, it is our responsibility to care for them,” Weaver said.

In addition to the mental and physical abuse, financial abuse and exploitation is also a reality for the elderly. One example would be a relative moving in with the victim and using their money or stealing from them while they fail to provide their needs.

Those with Dementia often struggle with abuse because people do not understand their communication needs.

Some signs of neglect, abuse and exploitation to watch for are weight loss, unkempt appearance, cleanliness, withdrawn and obvious physical markings, the National Council on Aging website shows. Red flags for financial exploitation can include unexplained withdraws, additions to their bank account or bank cards, unexplained loss of funds or valuable possessions or an inexplicable transfer of assets.

Churches and businesses can get involved by messaging board members through the organization's Facebook page. Individual donations are also be accepted. HCAPS also accepts fans and donations for the care boxes that include just enough non-perishables to help get through a few days while awaiting assistance.

Programs like Meals on Wheels and the Rebekah Project are extremely effective “boots on the ground” in discovering those with no help or care at all. Some of our most valuable citizens can go an entire day or longer without speaking to another soul. Especially with the recent quarantine, determining how many have fallen through the cracks without food or basic needs is still remaining to be seen. That is what makes this issue so important.

Seniors are the members of society that have already raised a family, had a career, and now are in need of the same care and love they gave so freely. It is vital that the community keeps an eye out for the elderly. Check on your neighbors, make sure they have food and watch for signs of abuse.

For those that can, consider adopting an elderly person and being a smile and voice calling to check in. Go select a person at a nursing home or retirement community and be their friend. It is this kind of involvement that makes the difference and teaches the next generation how to think of others. Many will find themselves in the same situation one day, wouldn't it be nice to have taught your children the right way to look after and care for the elderly?

Volunteers benefit from things money cannot buy such as stories, history, and wisdom all tied together with life experiences.

Those who suspect elder abuse may request a welfare check through local police or by calling Adult Protective Services at 1-800-252-5400 or by visiting

Full Article & Source: 
Protecting the vulnerable- Those in their golden years need special support

Thursday, May 7, 2020

Supreme Court Will Soon Decide Whether To Reconsider Qualified Immunity

By Jay Schweikert

For the last several years, Cato has been leading the campaign to abolish qualified immunity — an atextual, ahistorical judicial doctrine that shields state officials from liability, even when they violate people’s constitutional rights. The most immediate practical goal of this campaign has been to convince the Supreme Court to hear one of the many cases calling for qualified immunity to be either narrowed or reconsidered outright. And over the last seven months, I’ve written several times about how the Court has indicated that it’s preparing to consider several qualified immunity cases, given the manner in which it has repeatedly rescheduled several cert petitions that have been fully briefed and ready for resolution since October of last year. My hypothesis at the time was that the Supreme Court was delaying resolution of these petitions so that it could consider them along with several other high‐​profile cases that also raised the same underlying question of whether qualified immunity should be reconsidered.

Now it would seem that prediction has been vindicated. Just today, the Supreme Court distributed thirteen* different qualified immunity cert petitions for its conference of May 15, 2020. This is obviously no coincidence, and it means that by the morning of Monday, May 18th, we will finally know whether the Justices are prepared to confront one of the most pernicious and legally baseless doctrines in the history of the Court.

Here’s the complete list of the thirteen different petitions that have been distributed for the May 15th conference. In most of these cases, Cato filed an amicus brief in support of the petition, and in many of them, we either helped coordinate or took the lead on a “cross‐​ideological brief,” on behalf of a diverse alliance of organizations opposed to qualified immunity.
  • Baxter v. Bracey. In this case, Sixth Circuit granted qualified immunity to two officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up. The ACLU filed a cert petition back in April 2019, asking whether “the judge‐​made doctrine of qualified immunity” should “be narrowed or abolished.” Cato filed a brief in support of the petition, and we also helped to coordinate the filing of a cross‐​ideological brief. This case was originally set to be considered all the way back on October 1, 2019, but it has been rescheduled five times since then. Now, it looks like the Court is finally prepared to resolve Mr. Baxter’s petition.
  • Brennan v. Dawson. In this case, the Sixth Circuit granted immunity to a police officer who, in an attempt to administer an alcohol breath test to a man on misdemeanor probation, parked his car in front of the man’s home at 8:00pm; turned the lights and sirens on for over an hour; circled the man’s house five to ten times, peering into and knocking on windows; and wrapped the home’s security camera in police tape. The court held that this warrantless invasion of the curtilage violated the Fourth Amendment, but nevertheless granted immunity due to a lack of “clearly established law.” The cert petition in this case was filed on January 11, 2019, and asks the Court to “reign in the qualified immunity standard to … reflect the common‐​law roots of qualified immunity.”
  • Zadeh v. Robinson. In this case, the Fifth Circuit granted immunity to state investigators that entered a doctor’s office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients.
  • Corbitt v. Vickers. This is the case where the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten‐​year‐​old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. The plaintiffs in both Zadeh and Corbitt are now represented by Paul Hughes, who filed cert petitions on November 22, 2019, each of which asks “[w]hether the Court should recalibrate or reverse the doctrine of qualified immunity.” Cato submitted briefs in both cases, this time taking the lead on the cross‐​ideological brief, whose signatories also included the Alliance Defending Freedom, the American Association for Justice, the ACLU, Americans for Prosperity, the Due Process Institute, the Law Enforcement Action Partnership, the MacArthur Justice Center, the NAACP, Public Justice, R Street, and the Second Amendment Foundation.
  • Kelsay v. Ernst. This is the case where the Eighth Circuit, in an 8–4 en banc decision, granted immunity to a police officer who grabbed a small woman in a bear hug and slammed her to ground, breaking her collarbone and knocking her unconscious, all because she walked away from him after he told her to “get back here.” The MacArthur Justice Center filed a cert petition on November 26, 2019. While the petition doesn’t ask the Court to reconsider qualified immunity outright, it does ask the Court to “take steps within the confines of current law to rein in the most extreme departures from the original meaning of Section 1983.” Cato filed a brief in support of this petition as well.
  • West v. Winfield. In this case, the Ninth Circuit granted immunity to police officers who bombarded an innocent woman’s home with tear‐​gas grenades. The homeowner had given the officers permission to enter her home to look for a suspect, but never consented to anything like the practical destruction of her home that resulted. Nevertheless, the court granted immunity on the grounds that no prior case specifically established that this sort of bombardment exceeded the scope of consent that the homeowner had given. On January 16, 2020, the Institute for Justice filed a cert petition asking the Court to clarify and limit the scope of qualified immunity, and Cato filed a brief in support of this petition.
  • Jessop v. City of Fresno. In this case, the Ninth Circuit granted immunity to police officers who stole over $225,000 in cash and rare coins in the course of executing a search warrant. The court noted that noted that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never issued a decision specifically involving the question of “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” Neal Katyal filed a cert petition on behalf of Mr. Jessop on February 14, 2020, and Cato, joined by Americans for Prosperity, filed a brief in support of the petition.
  • Mason v. Faul. In this case, the Fifth Circuit granted immunity to a police officer who shot a man seven times in response to a 911 call. This is one of the rare cases in which qualified immunity was actually resolved at trial, rather than at the motion‐​to‐​dismiss or summary‐​judgment stage. At trial, the jury found that while Officer Faul’s shooting of Quamaine Mason was objectively unreasonable under the Fourth Amendment, Faul was nevertheless entitled to qualified immunity. The cert petition was filed on November 14, 2019, and it asks the Court to address the “confusion and uncertainty” in qualified immunity case law.
  • Cooper v. Flaig. In this case, the Fifth Circuit granted immunity to officers who killed an unarmed man in his parents’ home by tasing him nine times while he was having an acute mental‐​health episode. The cert petition was filed on February 5, 2020, and it explicitly asks whether the Court should “eliminate or significantly revise the judicially created doctrine of qualified immunity.”
  • Anderson v. City of Minneapolis. In this case, the Eighth Circuit granted immunity to 911 first responders who were alleged to have prematurely declared a 19‐​year‐​old dead of hypothermia, in violation of their own emergency protocols, thereby depriving him of what could have been life‐​saving medical assistance. The cert petition was filed on November 18, 2019, and it asks the Court to clarify the standards for determining “clearly established law,” especially in the context of the state‐​created danger doctrine.
  • Clarkston v. White. In this case, the Fifth Circuit granted immunity to a state education official who was alleged to have caused the denial of a charter school application in retaliation for remarks made by the school’s CEO about disciplinary practices. The cert petition was filed on March 3, 2020, and it asks the Court to clarify that qualified immunity should not apply when a constitutional right is clearly established and the only uncertainty in the case law is whether a particular individual can be sued for its violation.
  • Hunter v. Cole. Of all the qualified immunity cases going to conference on May 15th, this is one of only two in which the lower court denied immunity to the defendants. In this case, the Fifth Circuit denied immunity to an officer who shot a 17‐​year‐​old boy without warning. Although the boy was holding a gun, he had made no threatening gestures toward the officers and was facing away from them and unaware of their presence when he was shot. At the en banc stage, this case generated a lively discussion between several Fifth Circuit judges about whether qualified immunity should be reconsidered, which I discussed here. On December 9, 2019, the officer filed a cert petition, asking the Court to hold that his shooting of the teenage boy did not violate clearly established law.
  • Davis v. Ermold. The one other case in which the lower court denied immunity involves Kim Davis, the former Kentucky county clerk who refused to issue marriage licenses to same‐​sex couples in the wake of the Supreme Court’s landmark decision in Obergefell v. Hodges. Those couples sued Davis for violating their right to marry, and the Sixth Circuit denied immunity to Davis, finding that the plaintiffs had sufficiently alleged that she violated their clearly established constitutional rights. Davis’s cert petition was filed on January 22, 2020. 
The fact that the Court sent all thirteen of these cases to conference on the same day — especially after repeatedly rescheduling many of them — is unmistakable evidence that the Justices are looking closely at the fundamental question of whether qualified immunity itself needs to be reconsidered. This is a question that Justice Thomas urged the Court to take up all the way back in 2017, and which Cato has been vigorously pushing since it launched its qualified campaign back in March of 2018. It is far past time for the Supreme Court to reconsider qualified immunity, and in less than three weeks, we’ll finally know whether the Court is prepared to take up that question.

*Correction: A previous version of this post listed only eight qualified immunity cert petitions. It has been updated to reflect all thirteen qualified immunity cases that will be considered at the May 15th conference.

Full Article & Source:
Supreme Court Will Soon Decide Whether To Reconsider Qualified Immunity

3 members of Congress give 11 assisted living CEOs until Friday to detail their COVID-19 strategies

Senior living operators may not be receiving the personal protective equipment that nursing homes have been promised by the federal government to fight COVID-19, but now they may be receiving a level of federal scrutiny similar to nursing homes.

The CEOs of 11 of some of the country’s largest senior living companies have until Friday to respond to a letter from three members of Congress asking them to detail the extent of COVID-19 at their communities and the actions they are taking to prevent or mitigate the disease.

“Assisted living facilities deserve particular scrutiny in this pandemic because they share several of the same characteristics that increase risks at nursing homes — a population of senior citizens, many with chronic health problems, living and interacting closely together — but they face a significantly less stringent regulatory environment,” wrote Sen. Elizabeth Warren (D-MA), a member of the Senate Health, Education, Labor, and Pensions and Senate Aging Committees; Sen. Edward J. Markey (D-MA) and Rep. Carolyn B. Maloney (D-NY), chair of the House Committee on Oversight and Reform, in a letter dated April 29 and released publicly on Friday. The characteristics delineated by the members of Congress echo some of the ones listed by associations representing the sector when arguing why senior living operators in addition to skilled nursing providers should be prioritized for PPE.

The letter was sent to the CEOs of Affinity Living Group, Atria Senior Living, Brookdale Senior Living, Capital Senior Living, Enlivant, Eclipse Senior Living, Five Star Senior Living, Gardant Management Solutions, LifeCare Services, Senior Lifestyle Corp. and Sunrise Senior Living. The 18 questions in the letter ask the leaders to share the total number of communities, residents and staff members at each company as well as the number and severity of COVID-19 cases among residents and staff members and the communities in which any cases have occurred; details related to testing and the reporting of results; sick leave, family leave, medical leave and hazard pay offered to employees; visitation policies; and the use of PPE.

Warren was one of four senators who had requested that the Government Accountability Office study state reporting of deficiencies in care and services provided to Medicaid beneficiaries in assisted living communities, an effort that resulted in a January 2018 report, which the new letter referenced.

The members of Congress said they are requesting the information because “there was not and is not a national reporting requirement for assisted living facilities with COVID-19 cases: there is only non-binding guidance from [Centers for Disease Control and Prevention] on preventing and mitigating outbreaks in assisted living facilities. As a result, there is little comprehensive national information available on the extent of COVID19 outbreaks in assisted living facilities and the actions taken by assisted living facilities and their operators to address these risks.”

Full Article & Source:
3 members of Congress give 11 assisted living CEOs until Friday to detail their COVID-19 strategies

Pasco County Resident Arrested for Identity Theft and Exploitation of an Elderly Person or Disabled Adult

TALLAHASSEE, Fla.—Attorney General Ashley Moody’s Medicaid Fraud Control Unit and the Tarpon Springs Police Department today arrested a Pasco County resident for exploiting two seniors under the defendant’s care. Ronald Rose, Jr., 48, withdrew thousands of dollars from the relatives’ bank accounts without approval to spend on personal expenses such as rent, vehicle payments and phone services.

Attorney General Ashley Moody said, “My office is committed to protecting seniors. Older Floridians should not have to worry about being taken advantage of by those entrusted with their care. Thank you, to my MFCU team, for stopping this unconscionable behavior and I look forward to my Office of Statewide Prosecution now holding the defendant responsible for these crimes.”

Acting on information received from a Medicaid provider, the Attorney General’s MFCU Patient Abuse, Neglect and Exploitation Team began investigating the defendant for misuse of patient funds. The investigation revealed that Rose allegedly obtained funds unlawfully from two elderly persons suffering from physical limitations. Rose oversaw the care and finances for the victims, each living in a care facility. Rose allegedly stopped payment to the facilities from the victims’ accounts and began spending the money for personal benefit.

Rose faces two counts of exploitation of an elderly person or disabled adult, a third-degree felony, and one count each of identity theft more than $5,000 and identity theft of a victim over 60 years of age, each a second-degree felony. The Office of Statewide Prosecution will prosecute the case. 

Full Article & Source:
Pasco County Resident Arrested for Identity Theft and Exploitation of an Elderly Person or Disabled Adult

Wednesday, May 6, 2020

She needed a will. A lawyer named himself the main heir to her $1.7 million estate.

by Justin Jouvenal

Friends remembered Wilma Williams as fiercely independent, but a stroke left her in a wheelchair and reliant on hearing aides as large as headphones the day her attorney arrived with a plan to divvy up her $1.7 million estate. 

© Family photo Wilma Williams
The 93-year-old military widow with no children had nieces and nephews, but Bob Machen personally drafted a will that made himself her primary beneficiary and his son — a man she had never met — a possible heir as well.

Machen said the will represented the wishes of a woman who was like a sister to him and who he helped for years. He claims he watched as she affixed a scribbled signature to the document in a Fairfax County rehabilitation center on July 31, 2018.

Williams died 10 days later, and her relatives said they were stunned to eventually learn that Machen was poised to reap a $1.5 million windfall while they would receive modest bequests. They couldn’t believe the will truly represented Williams’s desires and decided to challenge it in court.

They say the case is a particularly brazen example of the financial exploitation of the elderly, a problem that is rapidly increasing as the senior population grows. The number of people aged 65 and older is projected to double between 2018 and 2060, according to government figures. Various estimates put their losses from fraud between $2.9 billion and a staggering $36.5 billion each year.

Wilma Williams fits the profile of a prototypical target. A MetLife study reports that twice as many elderly women are taken advantage of as men and that most victims live alone, like Williams did. Her case is likely to be a preview of many to come.

Machen maintains he did nothing wrong.

“Finding out Wilma’s will was written by her attorney leaving himself the majority of her estate was a gut punch,” said David Williams, Wilma’s nephew. “That really made me very determined to see justice done for my aunt.”

Appreciation, then suspicion

David Williams said he was elated when he opened a letter in October 2018 saying that he would receive $30,000 from Williams’s estate. He remembered his aunt fondly but never expected to be named an heir.

The letter from an attorney named Mark Kellogg on behalf of Machen never mentioned that Wilma Williams’s estate was worth $1.7 million, or that Machen drafted the will himself and was to receive an exponentially larger sum.

David Williams said his eye caught on one line that left him dumbfounded and wondering how it could be legal.

“It made a statement to the fact that if you contest the will or even complain about the administration of the estate that you are cut out of the will completely,” Williams said.

His joy curdled into suspicion. He Googled Machen.

One of the first results left a pit in his stomach: “Robert B. Machen . . . Unethical Attorney” read a Web page someone had built that meticulously listed alleged misconduct by the lawyer dating back years.

Machen has a criminal record. In 1988, he was convicted in federal court in Virginia for doctoring ledgers during an investigation of an IRS employee, according to court records. That IRS employee: Mark Kellogg. Kellogg was never charged in that case and denies any wrongdoing in Wilma Williams’s case.

Machen said he had “nothing to do” with altering the financial documents and was wrongly convicted.

Machen’s law license was suspended but then quickly reinstated after he served a prison sentence. Machen managed to hold on to it in the intervening decades, despite subsequent reprimands by the Virginia State Bar, including one for engaging in “conduct for personal advantage, involving deceit.” Machen denies wrongdoing in those cases.

Williams said he called his sister to warn her about what he had found, only to discover that she and every other niece and nephew had already returned a release from legal action Machen asked them to sign in order to get their bequests.

Alarmed, the family members reached out to a lawyer named Mark Obenshain. Obenshain said he sent a letter to Kellogg, asking about the size of the will, who wrote it and Williams’s mental state at the time. Obenshain said while there were communications, no answers were provided to those specific questions.

The family decided it was time to challenge the will in court.

A legal fight

Obenshain told a Fairfax County jury at the outset of the trial in December that their evidence would detail an elaborate scheme by Machen to subvert the last wishes of a dying woman. He said it was a blatant conflict of interest for Machen to author a will that would make himself a millionaire.

“This case is about forgery and fraud and right and wrong,” Obenshain said in his opening statement.

Machen’s attorney countered that his client had been a trusted caretaker for Williams, one who repeatedly offered a lifeline when she needed it over the years. Naming Machen an heir made sense.

Early witnesses told jurors Williams had a secret.

She spent so frugally many thought she was on a fixed income, but the retired administrative assistant who lived in a modest split-level home in Annandale was a savvy investor who had built a fortune.

She didn’t tell her family, scattered across the South, or Machen, a family law attorney she had known since the 1980s, when he helped her navigate a separation from her husband. They remained friends afterward.

Williams suffered a stroke in July 2018 and was admitted to a Fairfax County rehabilitation center, where Machen was a regular visitor. It was there, in Machen’s version of events, that Williams handed him a handwritten will one day that named him a beneficiary.

Machen said in an interview that he was stunned. At the time, he said he never expected his bequest to add up to much: He didn’t know about Williams’s nest egg and expected end-of-life care to eat up much of her estate.

“I had no idea what Wilma had,” Machen told The Washington Post. “All during this time she never talked about finances.”

That changed one day while Machen was visiting Williams.

Laurie Flint, a friend of Williams’s, came by with a stack of Williams’s mail that included a statement detailing her investments, she testified during the trial. Flint testified that Williams told her on several occasions that she trusted Machen but to keep an eye on him.

“She really didn’t want to let anyone look at that statement, but over the course of the next half an hour or so, Mr. Machen eventually talked her into letting him take a look,” Flint told the jury.

Machen said he discovered that Williams had upward of $1 million in a UBS account, which he said jump-started an effort to draw up a better will. Machen said he reached out to Kellogg to draft the will but never followed through.

Machen said in an interview that he was pressed for time because they were trying to move Williams to a nursing home, so he penned the update himself. The will shows he named his son as a possible heir and included the “no contest” clause that caught David Williams’s attention.

Machen and an old friend grabbed a stranger at the rehabilitation center to be the third witness to the signing on July 31, 2018. While Machen and the friend testified at trial that Williams willingly signed the will, the stranger offered a different story.

Toni Foreman testified in a deposition played for the jury that Machen presented himself as Williams’s son, a claim Machen denies. Foreman testified that she was never told she was witnessing a will signing and never saw Williams actually sign the will.

Medical records listed Williams as “alert” that day, but Foreman said she barely spoke as she sat in a wheelchair in her room.

“[Williams] just sat there listening to her music, looking blank and smiling,” Foreman testified.

Machen testified that he told his son the same day that he had named him as a possible heir and executor of the will and gave him power of attorney over Williams, in case Machen passed away. His son was flabbergasted — “Dad, what the hell,” Machen testified his son told him. The same day the son resigned as power of attorney. Obenshain said it did not appear Machen had informed his son of his plans to include him in the will beforehand.

The jury deliberated for about six hours before returning a verdict. They sided with Williams’s family and nullified the will. Machen is appealing the ruling to Virginia’s Supreme Court. A court may ultimately decide how to split up Williams’s estate.

The family is gratified by the ruling but still devastated. Machen is still licensed to practice law.

They say family heirlooms went missing from Williams’s home during a period when she was in poor health and various people entered her home. One of those was the flag that draped the casket of her husband, who was buried with honors at Arlington National Cemetery. Machen said he suspects a crew cleaning up Williams’s home took the items.

“I would love to have some of those mementos so I could hand them down to my son,” David Williams said. “That was part of our family history.”

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She needed a will. A lawyer named himself the main heir to her $1.7 million estate.

Seven Palm Beach County attorneys disciplined

Kip Kootz, of Ocean Ridge, disbarred after DUI conviction revealed four more in another state.

A 77-year old Boca Raton lawyer agreed to give up his law license after he was accused of stealing $4.2 million from a longtime client, according to the Florida Bar.

Craig Sherman, who is being sued in Palm Beach County Circuit Court by his client, Barry Smith, is among seven Palm Beach County attorneys and 23 statewide who were disciplined by the Florida Supreme Court in March and April.

Two other Palm Beach County attorneys were stripped of their ability to practice law, the Bar said this week.

Kip Kootz, of Ocean Ridge, was disbarred after he was convicted in Palm Beach County Court of driving under the influence. In researching Kootz’s criminal record, a prosecutor discovered the attorney had been convicted of DUI four times in Minnesota. In violation of professional rules, he failed to tell the Florida Bar about his convictions.

West Palm Beach lawyer David Jaynes was disbarred for ignoring an order that required him to tell clients, judges and other lawyers that his license had been suspended last year. The Supreme Court found him guilty of contempt of a court order.

Brian Becher, of Boca Raton, was prohibited from practicing for two years after the Supreme Court found that he “engaged in conduct contrary to honesty and justice,” the Bar said. He knowingly made false statements to a judge and helped multiple companies avoid being served foreclosure lawsuits, it said.

Joshua Hauserman, of West Palm Beach, lost his license for six months, retroactive to Oct. 21, after the court found he failed to adequately supervise a non-lawyer who worked in his office and failed to effectively communicate with a client about the status of a case.

Aaron Cohen, of Delray Beach, and Stafford Shealy, of Lantana, both received public reprimands. The court said Cohen failed to respond to requests for information from the Bar. Shealy didn’t immediately report his DUI conviction to the Bar.

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Seven Palm Beach County attorneys disciplined

'It makes no sense': Feds consider relaxing infection control in U.S. nursing homes

by Marisa Kwiatkowski and Tricia L. Nadolny

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The federal government is considering rolling back infection control requirements in U.S. nursing homes – even as the long-term care industry's residents and workers are overwhelmed by the coronavirus.

A rule proposed last year by the Centers for Medicare and Medicaid Services (CMS) would modify the amount of time an infection preventionist must devote to a facility from at least part-time to "sufficient time," an undefined term that lets the facility decide how much time should be spent. The regulation has not been finalized, but CMS last week defended its proposal, saying it aims to reduce regulatory burden and strengthen infection control.

Opponents of the change said the rule could leave nursing home residents more vulnerable to infection. They expressed concern, especially given the devastation COVID-19 has caused within long-term care facilities.

"It makes no sense at all – prior to pandemic, but more so now during a pandemic – to roll back any of the necessary infection and control requirements and the federal regulations," said Lindsay Heckler, a supervising attorney at the Center for Elder Law & Justice, a civil legal services agency in Buffalo, New York. "They should be strengthening these infection and control requirements."

CMS has acknowledged that infection is "the leading cause of morbidity and mortality" in the nation's 15,600 nursing homes. In its proposed rule, the agency said between 1.6 million and 3.8 million infections occur each year in those facilities, with almost 388,000 deaths attributed to infections.

Patient Armando Mendoza, who spent 45 days at St. Joseph's Hospital battling COVID-19, is released to applause and celebration from hospital workers who helped save his life during the outbreak of the coronavirus disease (COVID-19) in Orange, California on May 5.
The coronavirus has put a spotlight on the problem. More than 16,000 long-term care residents and staff have died of COVID-19, according to a USA TODAY analysis of government data. And nearly 97,000 residents and staff have tested positive for the virus. Those figures are an undercount, because testing has been limited and many states have not released full data.

CMS told USA TODAY its rule would allow facilities to determine for themselves the time needed for infection prevention and go above part-time when warranted.

"This is a person-centered approach to care and would allow CMS to hold facilities accountable by having the infection preventionist onsite full time, especially in times of an outbreak," the agency said in a statement last week.

The changes were first proposed in July 2019, part of an ongoing effort by the Trump administration to reduce regulations for nursing home providers and suppliers. In addition to modifying the infection preventionist requirement, the proposed rule would also reduce the need for a facility-wide assessment from once a year to every other year and allow certain facilities to disregard a requirement that caps residents at two per room. CMS said the changes would reform "unnecessary, obsolete or excessively burdensome" requirements.

© Ted S. Warren, AP A patient is loaded into an ambulance at the Life Care Center in Kirkland, Wash. Monday, March 9, 2020, near Seattle. The nursing home is at the center of the outbreak of the COVID-19 coronavirus in Washington state.
CMS, which has the authority to change regulations on nursing homes without legislation, said the proposal is still under review. There were 1,731 comments on the rule – from nursing home owners to advocates to residents and their family members – when the period for public input closed in September.

Some of the submissions are prescient given what has since occurred with COVID-19.

"Too many people have died and too many have suffered," Alice Hedt, a former director of the National Ombudsman Center, wrote in a comment posted Sept. 24. "Minimizing the requirements of the Infection Preventionist when we know infections can be prevented and addressed will result in even more deaths and suffering. I personally think this person should be full time in every facility until the death rate from infection and unnecessary hospitalizations decline by fifty percent."

Hedt, who spent 30 years as an advocate for long-term care residents, called the proposal "a slap in the face of residents who are more frail than anytime in our long term care history."

Experts say COVID-19’s devastating impact on people in long-term care is due to a complex mix of factors, including the characteristics of the virus, vulnerability of older adults and those with underlying conditions, staffing levels and national availability of testing and personal protective equipment. For some, the virus' effect on nursing homes has renewed their concerns about the proposed rule.

"That softening of that rule I think, in retrospect, is exactly the wrong thing," said Christopher Laxton, the executive director of The Society for Post-Acute and Long-Term Care Medicine.

Laxton, whose association represents about 5,500 medical professionals working in long-term care settings, last year offered tepid support of the change, writing that his group didn’t object to the new language but that both terms "may be confusing and difficult to define." He wrote that the amount of time spent on infection prevention should be based on real-life factors, such as the facility’s risk assessment, seasonal changes and the presence of outbreaks.

In an interview last week, he said it is “a different world than when we first commented on that proposal.”

"At this point, sufficient time for an infection control preventionist in a building means full time," he said. "And it means dedicated to a single building. And being there every day. That's what sufficient means in this context. It may not mean that outside of a COVID pandemic. But it certainly means it now."

‘Sometimes regulation hinders us’ 

Within the long-term care industry, some are less convinced that leaving the rule as is, or even strengthening it, would make a meaningful difference in infection control.

"Sometimes regulation hinders us from putting resources where we know they need to be," said Dr. Gregory Johnson, chief medical officer of the Evangelical Lutheran Good Samaritan Society, the largest not-for-profit provider of long-term care and senior services in the United States.

He noted that only a small portion of the facility-wide assessment – which the proposed regulations would require to be conducted every other year rather than annually – focuses on infection control. The amount of work that goes into what can become a 300-page document is "colossal," Johnson said, and there are other regulations that address infection control.

During the pandemic, he said, his organization has "far exceeded" even the part-time requirement. Johnson said they began implementing visitor restrictions and other preventative measures in early March. As of Sunday, the Good Samaritan Society said 26 of its 143 skilled nursing facilities had at least one confirmed case of COVID-19.

Johnson said the organization – which operates in 26 states – grapples with differing local, state and federal regulations and tries to surpass them.

Too often, Johnson said, the public hears only about the nursing homes that are "bad apples."

"There are a whole lot of people out there in this business who are doing it because of a deep care and a deep commitment to mission," he said.

Combined, the CMS regulations serve as the basis for federal inspections that are conducted in U.S. nursing homes. Mark Parkinson, president and CEO of the American Health Care Association and National Center for Assisted Living, said that survey process is "broken on many levels" because it measures too many things and is too punitive.

His organization, which represents more than 14,000 long-term care facilities that collectively provide care to more than 5 million people, said it supports quality infection prevention in facilities but is behind CMS' proposed rule change. The organization said in a statement that "more oversight is not the answer to what has happened during the pandemic – it would reduce critical resources these centers need, or even put them at risk of closing." But it also said facilities can always do more.

"When we get through this, the entire country will need to have a serious discussion and reckoning about our infection control practices in health care settings and throughout society," the statement said.

Opposition to proposed rule

People who oppose CMS’ rule change say COVID-19 has proven that strong infection control is paramount.

The Association for Professionals in Infection Control and Epidemiology (APIC) has remained steadfast in its opposition to CMS’ proposed rule. The nonprofit organization said it was disappointed to see CMS acquiesce to the argument that compliance is overly burdensome and expressed concern that the federal government was trying to change the regulations, which have been phased in since late 2016, before their impact has fully been felt.

"The COIVD-19 outbreak has really brought to light the opportunities and vulnerabilities of long-term care and the need for effective infection prevention," said APIC President Connie Steed, who is the director of infection prevention and control at Prisma Health in South Carolina. "And it doesn't matter if it's COVID-19 or influenza or other concerning infections and outbreaks that can occur in these settings. A robust infection prevention control program is really imperative for these types of facilities."

Carol Buckner, a registered nurse who works in telehealth, said she has long had concerns about the quality of care at the Rochester, New York nursing home where her brother lives, The Pearl Nursing and Rehabilitation. The center, which until recently was named New Roc Nursing and Rehabilitation Center, is one of 88 nursing homes identified by CMS as a Special Focus Facility, homes that have chronic deficiencies and face additional government oversight.

"There’s not enough staff. They’re not trained. And there’s no direct oversight. I never see a nurse in there unless they’re passing meds," she said. "And then you add COVID into this?"

The facility's administrator did not respond to a request for comment

Last year, Buckner wrote to CMS to object to the proposed rule change by noting that infection control is the "single most protective" measure a facility can provide its residents. She said she knows her brother’s home has an infection preventionist only because she once spotted a staff list on a visit and saw that title listed beside a person’s name. She does not know how many hours the employee devotes to infection control.

She said the facility has not reported any cases of COVID-19, but she still worries.

"I’m still nervous," she said. "I mean I’m hoping they’re doing a stringent job with being masked. But I had asked the facility, 'What can I help you with?' They said if you have any long-sleeved men’s shirts they could put on backwards and wear like gown. So obviously they’re telling me they don’t have enough PPE."

Buckner said CMS needs to impose stricter regulations.

"I’m hopeful things are getting better," she said, "but I don’t know that things will ever improve until full regulations are really strengthened and shored up. They need to be much better than they are."

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'It makes no sense': Feds consider relaxing infection control in U.S. nursing homes