'The court has plans for you': Inside New Mexico's adult guardianship program

The system of adult guardianship is intended to protect vulnerable elders. Instead, it’s lining the pockets of lawyers and guardians.

 

 by Dillon Bergin 

This story was originally published by Searchlight New Mexico.

Rio Hamilton chats with his mother at the nursing home where she was placed, against her will.

LAS CRUCES — Dorris Hamilton, a 91-year-old retired middle-school principal, had started to notice some odd things happening in her life: She had stopped receiving all mail at her home of 50 years right off Las Cruces’ busy Main Street. She was locked out of all four of her bank accounts across town. Then, one morning in late August 2019, someone knocked on her door and presented her with a document issued by a judge, authorizing her “transport” to a nursing home.

In disbelief, Hamilton got into her gold Nissan Altima and drove to the Third Judicial District Court to find the judge who had ordered this.

Sgt. Robert McCord of the Las Cruces Police Department found her in front of Courtroom 1. She had her papers in the pocket of her vest, and wore a black bell-shaped hat adorned with two pins — a silver butterfly and two golden owls.

She was being stripped of her rights, she told McCord.

“I’m a citizen. I pay my bills,” she said on body-camera footage of the encounter.

“Dorris, I do understand what you’re saying,” McCord said. “But I do know that a judge has put these people in charge.”

“Why?” Hamilton replied. “I haven’t talked to the judge. How can anybody be in charge of my business?”

McCord couldn’t muster much to answer that question, and he had orders. He gently loaded her into the passenger seat of his squad car, as she argued her case, and drove her to the hospital. The next day, she was moved to the Village at Northrise, where she’s been ever since.

Hamilton had fallen into a system known as adult guardianship, intended to protect vulnerable elders who are no longer able to make their own decisions. A court-appointed guardian has the power to make those decisions for them. In reality, the system can strip away a person’s entire independence and funnel their savings into the pockets of lawyers and guardians while leaving them vulnerable to abuse.

Removing someone’s autonomy, and giving someone else almost complete power over them, is a messy and dangerous wager.

Dorris Hamilton's birthday at the Village at Northrise on March 7, 2020, right before covid-19 restrictions stopped them from visiting each other.  Photo Courtesy of Rio Hamilton

Overtaxed and opaque

Guardianship is the most restrictive protection for elders — from themselves, from family members, from friends — and can be necessary or even lifesaving in some cases. Yet previous reporting has documented a pattern of abuse across the country, and problems with guardianship are notoriously difficult to track. Nationally, 1.5 million elders are under guardianship, according to a widely cited report from a Florida court auditor, and the guardians caring for these elders hold $273 billion in assets.

Along with other popular retirement states, New Mexico has experienced and exposed some of the most prominent cases of abuse. Employees of two local guardianship firms, Ayudando Guardians and Desert State Life Management, embezzled a combined $15 million from their clients, and the CEOs of these companies were sentenced to prison time.

In 2016, an Albuquerque Journal investigation exposed how an overtaxed and opaque legal system with large numbers of vulnerable elders makes it possible for an unethical guardian to operate with relative impunity.

Pamela Teaster of the Virginia Tech Center for Gerontology is one of the few academics researching guardianship.

“When I started putting newspaper articles together, I began to see these pockets of corruption that pop up across the country,” Teaster said.

In 2018, prompted by the Journal investigation, state lawmakers passed an ambitious slate of reforms to guardianship. These new laws required guardians to be certified and to provide accurate and timely information on care, stopped guardians from limiting family visits, and opened the court hearings to the public.

Those efforts at reform continue. A new bill introduced this week, House Bill 234, would require state oversight to certify and monitor guardians.

But these laws do little to address how and why guardianships begin in the first place.

Guardianship begins in court, an arena that reforms have left virtually untouched. In 2018, the New Mexico state court system rejected recommendations to hire new auditors and other positions to oversee guardianship cases, instead turning to the office of the state auditor for oversight. But the state auditor cannot audit a case unless a district court judge refers it to them. In Hamilton’s case, Chief Judge Manuel Arrieta has not done this.

New Mexico’s courts also rejected a set of model laws focused on shifting guardianship’s legal approach to protecting elders’ rights and minimizing intervention.

One of these laws would have limited the ability of an attorney to argue in the elder’s “best interest,” and instead require attorneys to prioritize the elder’s wishes and previous planning.

A woman of firsts

Dorris Hamilton at a family reunion in Pine Bluff,
Arkansas.  Photo Courtesy of Rio Hamilton

When Dorris Hamilton was taken to the hospital, Rio Hamilton, her only son and a successful interior designer, was living in New York City. Her old Nissan was towed and sold. So was a mobile home, and almost all the possessions in her house.

Since the early ’70s, Dorris Hamilton had lived in the same modest ranch home, with a manicured lawn and a grill in the backyard. She moved there after separating from her husband, and in doing so became one of the first Black women in the country to obtain a mortgage. Rio Hamilton remembers people coming from all around New Mexico to congratulate her.

In fact, Dorris Hamilton was a woman of firsts. She was the first Black principal in New Mexico, and the first Black woman to graduate from University of Arkansas' main campus.

For birthdays and holidays, Dorris and Rio Hamilton would drive all the way back to Arkansas, the long ride filled with lectures on geography and the landmarks they passed. “I always thought that Dorris Hamilton was the smartest woman in the world, because she knew everything,” Rio Hamilton said. “And she did.”

He also remembers her as the strictest mom on the block.

After he turned 15, his mother bought him a red MG Midget, a two-seater sports car, and made only one request: no speeding. Within weeks, though, he got a ticket. Two weeks later, he got another. He knew that his mother saw it in the mail, but she didn’t say anything.

Then he walked outside one morning and the car was gone. Thinking it was stolen, he called his mom to tell her what happened. “I sold it,” he remembers her saying, and there was no arguing.

But by the time his mother reached her 80s, Rio Hamilton noticed her meticulousness starting to fray.

The Christmas decorations stopped coming down, and the house began to pile up with old mail and boxes.

Even as her hoarding got worse, she explained it away.

Rio Hamilton's second-grade school picture.
Photo Courtesy of Rio Hamilton

She told her son that stepping over and around the piles was good for her flexibility. She said she wouldn’t buy a new car because what 91-year-old woman would drive to a seedy liquor store — the luckiest lottery-ticket spot in Las Cruces — in a brand-new Mercedes-Benz?

“To have her explain it to you at that time,” Rio Hamilton said, “it actually kind of made sense.”

Still, she knew she wasn’t as capable as she once was. She decided to give her son power of attorney, allowing him to make some decisions on her behalf. On Saturday, July 20, 2019, they went together to see a lawyer to help draft the document.

That lawyer, CaraLyn Banks, is one of just a few lawyers who practice guardianship law in Las Cruces. She has practiced law for nearly three decades and has no record of disciplinary action with the New Mexico Bar Association.

They didn’t finish the process in that first meeting, but Rio Hamilton remembers that as they left the office, Banks mentioned knowing someone who could help clean out his mother’s house. Banks said she didn’t say anything about Dorris Hamilton’s home, but that she spoke to Rio Hamilton about guardianship for his mother on the phone after the meeting. 

Just a few days later, Rio Hamilton was traveling for work when he got a series of emails from Banks.

After the meeting, Banks had filed an emergency petition for Dorris Hamilton’s guardianship, recommending that Advocate Services of Las Cruces become Dorris Hamilton’s guardian as soon as possible. She had filed it in Rio Hamilton’s name: He was listed as the petitioner, and Banks identified herself as the attorney to petitioner and Advocate Services as the recommended guardian.

The petition was approved in four days, without a court hearing. One month later, Dorris Hamilton met McCord in the courthouse and was taken away.

A quick trip to guardianship

Banks’ and Rio Hamilton’s accounts differ as to how that happened: Banks said he was aware that the power of attorney was not sufficient. She said she called him and left a message, although she did not call Dorris Hamilton to inform her. Rio Hamilton said he had no idea about the petition, and still believed that Banks was helping him clean his mother’s home. 

What’s clear, though, is that just a few days passed between the Hamiltons’ meeting with Banks and the emergency petition for guardianship.

Given guardianship’s restrictive nature and the difficulty of reversing it, the process is supposed to be deliberate and rare. The petition for guardianship itself even requires the petitioner to affirm that every other option besides guardianship has been explored.

“We have every responsibility as a society to try to help people stay as autonomous as they possibly can,” Teaster, the Virginia Tech professor, said. “And when we have to shave some of that off, in the name of safety, we had better make sure we’re doing it for the right reasons, and only as much as we have to.”

There is no easy way to find out who has a guardian, who that guardian is, or for what reasons. Only elders and their families have access to their guardianship information. When Searchlight New Mexico petitioned for access to the court records of Dorris Hamilton’s case, Banks filed a response opposing the petition. A hearing for Searchlight’s motion was never scheduled. 

Still, Searchlight talked to five families in guardianship battles with both Banks and Advocate Services, and analyzed 20 cases involving Banks and Advocate Services, most now accessible because the elder under guardianship has died.

The stories the families shared bear striking similarities to the Hamiltons’ and one previously documented by the Albuquerque Journal: They involve a child or relative who is living out of state, an elder living alone, an emergency petition, and a lengthy series of court hearings where Banks represents the elder against their children or relative, arguing that the elder should remain in the care of Advocate Services.

Advocate Services and Banks both get paid through the elder’s estate. With each hearing comes the possibility of more attorney fees and costs to the elder’s estate and to their family.

Many of the court battles become messy. Advocate Services’ (and Hamilton’s) lead guardian, Sandy Meyer, has filed several restraining orders against families.

In 2019, Meyer accidentally sent an email to Rio Hamilton’s lawyer that was intended for Banks. “Do we have to get a restraining order against this guy,” she wrote. “He reports he comes twice a year and knew the condition of the house etc. what do we have to do to stop him in his tracks?”

After multiple requests for comment, Meyer responded in an email, “Contested guardianships do not make us more money. It can cost us more unpaid-time.” Last week, she filed a request with the court to be allowed to step down as guardian if the judge approves a substitute.

The 2018 reforms prevent guardians from barring families from seeing an elder, including through a restraining order. They also require guardians to be certified, which Advocate Services was not when it was appointed Dorris Hamilton’s guardian in 2019. The agency only became certified in late 2020.

In one case, Banks filed an order to void an adult child’s power of attorney so that Advocate Services could become his parents’ guardian. The son in that case, Jack Alvarez, is a 70-year-old retired military contractor from Hatch, New Mexico, who had helped his parents plan their will. Then Banks filed an emergency petition and Advocate Services became his parents’ guardian.

“My parents are just a case, and that’s more money into their business,” Alvarez said. 

Banks contests that she is not separating elders from their relatives, and says she is just protecting them.

Three lawyers who are involved in family law in Las Cruces expressed concern that Banks and Advocate Services may be using unethical but legal methods for obtaining and asserting guardianship. (These attorneys frequently face them in court, and so ask to remain unnamed.)

They described what they saw as “inappropriate,” and “awful.”

A say in the plan

Nearly every morning since August 2019, Dorris Hamilton wakes up in the memory-care unit of the Village at Northrise in Las Cruces. Only 10 minutes across town, Rio Hamilton awakes in his childhood home. He moved back in the fall of 2019 and repaired the house, so that if Advocate Services is ever removed as his mother’s guardian, he’ll be ready to take care of her.

Every second Sunday of the month, he joins a Zoom call of New Mexican families with loved ones in adult-guardianship cases. The consensus in the group is that though laws changed for the better in 2018, bad practices haven’t.

In spite of the trip to the courtroom that ended Dorris Hamilton’s independence, she didn’t get to speak in court for six months.

Guardianship is difficult to contest because an elder often can’t speak for themselves in court, and even if they do, their words don’t carry legal weight. To be put under guardianship, an elder must first be deemed legally incapacitated. And once deemed legally incapacitated, they can’t argue on their own behalf.

This circular logic makes it difficult for elders to argue for their rights to be restored or for changes to their guardianship. Attorneys also say it means Banks doesn’t have to argue for what Dorris Hamilton wants, and can instead argue for what Banks determines is best.

Dorris Hamilton told the judge that she wanted to be a part of the decision-making about the last years of her life.

“I’m perfectly capable of doing this myself along with my son,” she said. As for guardians, she said: “These other people don’t know me, or what I have, or what I’m going to do, or what my plans are, or any of those things for the future. So why should they be stuck in [the plan]?”

“Because the court has plans for you,” Chief Judge Manuel Arrieta responded, and the hearing moved on.

Full Article & Source:

'The court has plans for you': Inside New Mexico's adult guardianship program

A doctor in Tunisia has taken to the violin in an attempt to boost the spirits of patients battling coronavirus.

A doctor in Tunisia has taken to the violin in an attempt to boost the spirits of patients battling coronavirus. http://bit.ly/3dHL07g

 

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A doctor in Tunisia has taken to the violin in an attempt to boost the spirits of patients battling coronavirus. 

We Need to Have a Frank National Conversation About Guardianship Abuse

Source: AP Photo/Jean-Francois Badias

by Dr. Nan Hayworth

We like to think that judges are impartial arbiters of justice and that medical professionals--as a physician myself, I know this should always be true--only have the best interests of their patients at heart. Unfortunately, as a growing number of elderly Americans and their families are discovering, that isn’t always the case.

Conservatorship abuse has been a largely silent problem for decades, but the recent documentary about Britney Spears’s problems has given it a higher profile. Unlike Ms. Spears, who has legions of fans eager to speak in her behalf, most victims of conservatorship abuse can only rely on the advocacy of friends and family. Even if victims have ample financial resources, that’s frequently not enough to overcome the combined authority of the government and medical “experts” and lawyers hired by conservators.

Previously vibrant, capable individuals can be reduced to shells of their former selves under the strain of court-imposed guardianship, dying without the ability to manage their own estates or even to see their loved ones in their final days. Rachel Aviv, writing in the New Yorker in 2017, described harrowing and infuriating instances of courts in Nevada facilitating the machinations of a burgeoning guardianship industry draining the resources of vulnerable seniors--while, hideously, evading and thwarting the efforts of their loved ones to rescue them.

Significant wealth is no bulwark against conservatorship abuse; indeed, it may serve as a temptation. A disturbing recent case in Alabama illustrates this vividly.

In January of this year Joann Bashinsky, the widow of the founder of Golden Flake Foods and so beloved in Alabama that she was known as “Mama B,” died of a heart attack in the midst of an all-consuming battle to regain and retain control of her assets after two employees who had worked with her and her husband for decades weaponized the courts against her.

The employees were a lawyer and a finance manager who refused to comply for over a year with Mrs. Bashinsky’s requests regarding the management of her funds and unilaterally adding themselves into her will, after which she terminated them. Contacting her investment firm directly after the termination, Mrs. Bashinsky learned that the employees had informed the firm--without having warned her of a contention she would have challenged immediately--that she suffered from dementia.

On the day they were dismissed, the lawyer and finance manager successfully introduced an emergency petition to have a court-appointed guardian take charge of Mrs. Bashinsky’s affairs. They produced documentation from a doctor, who had had one limited encounter with “Mama B,”  alleging that she suffered from dementia. 

Mrs. Bashinsky, who’d had no prior notice of the petition, had to find new legal representation--the court forbade her the counsel of the attorneys who were familiar to her-- and obtain documentation from her own doctor, as well as from psychiatric professionals expert in gerontology who interviewed her, that she was mentally competent.

After many months of proceedings, Mrs. Bashinsky won her appeal to the Alabama Supreme Court to overturn the emergency guardianship order. 

Unfortunately, the lower courts continued to pursue efforts to appoint a permanent guardian, necessitating that “Mama B,” whose generosity to charity and to her beloved home state of Alabama was legendary, spend what turned out to be her final months fighting for her legal rights instead of savoring the blessings of a life well led.

There’s simply no moral, ethical, or medical justification for treating people this way. 

It’s all too regrettably easy to surmise that greed played a role in the harm inflicted on Mrs. Bashinsky. Her estate is worth hundreds of millions of dollars, and the employees who initiated the guardianship and alleged wrongly that she had dementia were among its beneficiaries. 

Once the effort to have a court appoint a guardian succeeds, these guardians may be able to exercise complete control over their wards’ finances, typically collecting substantial fees in the process, and in many cases survivors are forced to fight protracted legal battles just to retain what remains of their loved ones’ estates.

Conservatorship law varies from state to state, but, clearly, we need to have a frank, national discussion about conservatorship abuse. The heartless exploitation of elderly Americans cannot be something that is tolerated or overlooked--especially not in a country that purports to respect the rights of individuals and to guarantee equality under the law.

Full Article & Source:

We Need to Have a Frank National Conversation About Guardianship Abuse

Woman whose father who died in nursing home says without answers 'there's really no closure'

By Daniella Genovese

His name is Anthony Rodriguez. He was an "amazing father" and most commonly seen as the "John Wayne" of the household before he died, his daughter, Joann Rodriguez, told Fox News. 

Joann Rodriguez was one of his primary caretakers while he was in the nursing home. And her time with him was abruptly cut short earlier this year after more than 9,000 recovering coronavirus patients in New York state were released from hospitals into nursing homes. 

The Cuomo administration’s March 25 directive barred nursing homes from refusing people just because they had COVID-19. It was intended to free up space in hospitals swamped in the early days of the pandemic.

Anthony Rodriguez was one of nearly 15,000 nursing home residents who died after the order was implemented. 

Joann Rodriguez and her father Anthony Rodriguez (Joann Rodriguez)

"They allowed us FaceTime visits with my dad because we could not go in. And that happened twice, three times a week with me and my sister," Joann Rodriguez told Fox News. "At the very beginning of April that changed." 

The Rodriguez family had tried to contact the nursing home several times by phone, email and text multiple times but couldn't get ahold of anyone. 

It wasn't until later they found out about the order, which effectively "created a war zone inside the nursing home," she said. 

Even before the pandemic, nursing homes had already faced insufficient staffing and did have not enough adequate care, Joann Rodriguez said. 

"They relied on me and my sister to come in and help feed him, to help do the simple hygiene, things like clipping his nails," she said. "I mean, we actually did a lot in his care because they lacked sufficient staffing." 

Knowing this, she said that it's impossible to fathom why the order was put in place, calling it a "very callous decision." 

The last time she saw her father was on FaceTime from the emergency room. He died two days later on April 28. 

Anthony Rodriguez' grandson, Aiden. (Joann Rodriguez)

"I just felt so helpless, helpless towards him," she said. "He had a lot, a lot of life in him left." 

She described her father as a warm and welcoming man who was quiet but "very, very strong-minded." In fact, he was to go-to in an emergency situation.

Even on FaceTime, he always smiled and finished every conversation with "I love you," she said.

It's been almost a year since Joann Rodriguez and her family lost him to the pandemic. However, they still struggle with being "denied the right to know what happened" and why.  

"There's really no closure," she said. "When you finally find out about this mandate that potentially killed thousands ... it's incomprehensible that our government could do that." 

Even after her father died, the nursing home didn't answer their questions, she said. 

"In fact, they blew it off," she said. "And the only thing they had to tell us was 'when will you be able to pick up your father's belongings?'"

The decision was "irresponsible and it's unacceptable" Joann Rodriguez said. Her hope is that those who are responsible are finally held accountable.

"[It's] something that needs to be brought out into the open and people need to be held accountable," she said. 

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Woman whose father who died in nursing home says without answers 'there's really no closure'

Why did Governor Cuomo give nursing homes immunity from Covid deaths?

by Ron Kim

Was the corporate immunity linked to $1.5m in political contributions from lobbyists? Only a full investigation can help us find out

Imagine fielding hundreds of calls from worried constituents at the peak of the first Covid-19 wave, trying to help scared families protect loved ones in nursing homes.

Imagine being stonewalled by those nursing homes and the department of health as you sought answers to life-and-death questions, knowing that Governor Andrew Cuomo’s directive forced these unprepared facilities to take in thousands of Covid-positive patients.

This was what I was going through as a New York state assemblyman when I received a call from a New York Times reporter about a corporate legal immunity provision that gave for-profit nursing homes and hospitals get-out-of-jail-free cards.

My heart sank as I read it. I did not need a PhD or law degree to understand the repercussions of handing out legal immunity to for-profit nursing homes, which now had legal and criminal shields to disincentivize them from saving lives.

Many of my colleagues had no idea the 2020 budget contained a legal shield that gave nursing home executives, trustees and board members blanket immunity. I voted against the budget bill, but if more members knew about the full implications of the legal immunity clause, there was no chance it would have passed.

So how and why did a blanket corporate immunity clause end up in the state budget?

In Albany and state capitals across the country, powerful governors routinely sneak toxic, corporate-friendly provisions into annual budget bills, hoping that lawmakers and the public are not paying attention. These are laws – like corporate legal immunity – that would never pass as stand-alone legislation.

The bigger question is why this provision was added in.

During the peak of the first wave, the Greater New York Hospital Association (GNYHA), a lobbying arm of hospitals and nursing home facilities, drafted immunity legislation and sent it to the governor’s office. On 3 April, they bragged in a post on its website (later taken down) that they had drafted and passed the “gold standard” of legal immunity for their members in New York’s 2020 budget.

At the time, New York’s nursing home fatalities were among the highest in the nation. As my office began investigating, what became certain was a clear connection between early blanket corporate immunity and higher rates of fatalities at nursing homes.

I felt as if I had to make this public: we believed in our data, compiled three reports and drafted a bill to fully repeal the corporate immunity law.

However, shortly after our reports were published, the governor’s administration changed how fatalities were being counted. Nursing home residents who died in hospitals were now attributed to the hospitals and not the nursing homes. As a result, New York’s nursing home deaths “decreased” and no longer seemed as awful compared with other states.

In August, at a joint oversight hearing, the president of GNYHA admitted they “lobbied extensively for the immunity law”, and that he was “proud to have done it and continue to do it right now in Washington as it relates to the federal level”.

There is a strong link between Governor Cuomo’s push for legal immunity and lobbyists like the Greater New York Hospital Association, which in one year gave him more than $1.5m in political contributions. There is more than a good chance that he continued to listen to these lobbyists after the budget – and the immunity clause – passed.

And there is a real possibility that lobbyists for hospital executives and for-profit nursing homes pushed the administration to suppress death numbers to defend their legal immunity.

Despite many pleas to disclose the full data, the governor and his administration purposefully suppressed this information until very recently, when the New York state attorney general reported an almost 50% underreporting in nursing home deaths.

For these reasons, we must thoroughly investigate why Governor Cuomo gave these for-profit facilities legal immunity, and who influenced him to suppress the nursing home death numbers.

• Ron Kim is in the New York state assembly representing the 40th district
  

Full Article & Source:

Why did Governor Cuomo give nursing homes immunity from Covid deaths?

Florida nursing home residents' health records found dumped on roadside

by Jackie Drees 

Protected health information and pharmacy records belonging to nursing home residents at HarborChase of Mandarin in Jacksonville, Fla., were recently discovered strewn along the roadside in northeast Florida, according to a Feb. 23 First Coast News report. 

The paper records, which were found miles away from the assisted living facility, included protected health information from Guardian pharmacy, which notified HarborChase of the breach upon learning of the incident. 

Individual protected health information exposed included names, birth dates, medication prescriptions and Social Security numbers, according to the report. HarborChase told First Coast News it is investigating the shredding company it hired to safely dispose of the records. 

"HarborChase contracts with a third-party vendor to dispose of materials containing sensitive resident and company data," a facility spokesperson said. "All materials recovered were items that were disposed of through the proper procedure and sent out for destruction through the third-party vendor." 

The facility said its investigation is ongoing and is working to determine how the breach occurred in order to prevent future instances.

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Florida nursing home residents' health records found dumped on roadside

Netflix's 'I Care a Lot' should worry you

By Nina A. Kohn and David M. English

A stranger knocks on the door. The older woman who answers the door is informed that the visitor is now her legal guardian and will make all decisions for her. Within days, the older woman has been placed in a nursing home and her home sold so that the stranger may profit.

It’s a perfect opening for a psychological thriller. In fact, it is the opening for Netflix’s new featured movie “I Care a Lot,” starring Rosamund Pike as Marla, a ruthlessly ambitious woman who has made a business out of exploiting older adults. Her method: petitioning a local court to appoint her as emergency guardian for older adults whom she alleges cannot make decisions for themselves.  

Unfortunately, the plot of “I Care a Lot” — despite its share of plot twists and theatrics — is not as far-fetched as it might seem. Every state allows courts to appoint a third party (called a “guardian” or “conservator”) to make decisions for someone the court determines is at risk because they lack the ability to make decisions for themselves. The process can provide needed protection to those who are unable to care for themselves. Yet it also has real costs. Not only do individuals for whom guardians are appointed lose the right to make some or nearly all decisions for themselves, but reports of unscrupulous guardians using the system to exploit vulnerable adults are far too common.  

This exploitation is made possible, in part, by outdated state laws. Take Marla’s first “trick:” petitioning for a guardianship without telling her elderly mark. State guardianship laws permit courts to appoint “emergency guardians” without notice to either the person alleged to need a guardian or family or friends who might come to their defense. Even when state laws say that individuals are entitled to notice before a guardian is appointed, courts can (and do) waive giving that notice. And long-term guardians are also routinely appointed without the subject of the proceeding being present in court.  

Marla’s next trick is also generally legal: immediately placing her victim in a nursing home and selling her house. In most states, such moves are considered routine matters and guardians do not need separate court approval for such life-changing decisions — even though investigations (including high-profile ones in Florida and Nevada) have documented abuse similar to that perpetrated by Marla.

Finally, take Marla’s not-so-secret weapon: getting the court that is supposed to oversee her to ignore clear evidence of her wrongdoing. Failure of courts to adequately monitor guardians is a long-standing and chronic problem in guardianship systems — leaving those under guardianship at risk.  

Fortunately, states can reform their laws to prevent the abuses depicted in “I Care a Lot”. In fact, the Uniform Law Commission has already created model legislation — the “Uniform Guardianship Conservatorship and Other Protective Arrangements Act” — to help states do just that. As the chair and reporter (principal drafter) for the committee that drafted this model legislation, we are confident that its adoption could substantially curb abusive guardianship practices.  

The act bars courts (absent extraordinarily limited circumstances) from imposing guardianships over a person who was not present at the court proceeding. If the person cannot come to court, the court must go to the person — even if that means holding court in the individual’s hospital room. The act also limits the ability of guardians to make major decisions — such as selling a person’s home, placing them in a nursing home or blocking visitors — without explicit court permission. In addition, it contains a variety of provisions that would substantially enhance court monitoring of guardians. And it gives family and friends new ways to keep tabs on guardians and bring problems to the attention of the court and others who could help.

In 2018, the U.S. Senate Special Committee on Aging issued a report urging every state to adopt the model act. Only two — Washington and Maine — have so far. Instead, state legislatures typically ignore the issue or pursue piecemeal reforms. Guardianship just hasn’t been a “hot issue” politically — and those who seek to reform guardianship law have faced opposition from cash-strapped courts and attorneys who have grown (perhaps too) comfortable with the status quo.   

I Care a Lot may just be the push state legislatures need to adopt the reforms needed so that stories like those depicted in it are relegated to the realm of fiction. 

Nina A. Kohn is the David M. Levy professor of law at Syracuse University and the Solomon Center Distinguished Scholar in Elder Law at Yale Law School. She served as reporter for the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act and has testified on guardianship abuse before the U.S. Senate Special Committee on Aging.  Find her on twitter @ninakohn. 

David M. English is the W.F. Fratcher professor of law at the University of Missouri and the former chair of the American Bar Association’s Commission on Law and Aging. He served as chair of the drafting committee for the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act.

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Netflix's 'I Care a Lot' should worry you

Is Nursing Board Discipline Getting More Aggressive?

— Texas Board epitomizes national trend, with nurses seeing campaign of intimidation

 

by Ryan Basen

Joe Flores, NP, JD, has been defending nurses against investigations by the Texas Board of Nursing for several years. Flores, a Corpus Christie attorney and part-time hospice care nurse practitioner, rarely turns away these clients. He feels it's important they have representation if they have a case.

But since the pandemic started, Flores has had to turn away many cases. Demand for his services is up, he says, as nurses are being investigated by the Board even as they struggle to perform their jobs with the added stress of the pandemic.

The nature of the complaints is also different: "I have never had [board] reports regarding masks, gowns; this is new, this is particular to the pandemic," said Flores, who is now representing a dozen nurses facing potential discipline. "They are overworked, understaffed." But, he added, patients and management "just report them" and the board opens cases against many of them -- as a nursing board did recently against a Minnesota nurse.

These actions aren't unique to Texas or to the pandemic, nursing advocates say. In their view, boards nationwide have aggressively pursued complaints against nurses and intimidated them for years. Boards have stripped nurses of their licenses and taken other disciplinary actions against them for engaging in personality conflicts with managers or reporting safety issues publicly; even for offenses unrelated to their work, such as missing child support payments.

"When I started digging, I was horrified, really," said Aurora Kim Paradisis, EdD, RN, a law student whose 2018 doctoral dissertation was subtitled, "The Lived Experience of Unjust Discipline Among Registered Nurses."

"It's really retaliatory," she told MedPage Today. "People are scared because it's their livelihood and they don't want to get to the point where it gets to nursing boards because once they get you, they don't let you go."

Board staff and their advocates disagree. They defend disciplinary actions by pointing to their overarching mission: to ensure public safety by keeping nurses accountable.

"To my knowledge they're doing an excellent job. I know they are extraordinarily conscientious about their mission and their role," said Maryann Alexander, PhD, chief officer of nursing regulation with the National Council of State Boards of Nursing (NCSBN).

But nursing advocates cited several states for egregious actions over several years, including California, Arizona, and Missouri.

The Texas board especially stood out in news reports and conversations with MedPage Today.

"There's a problem here," said Darlene Nelson, RN, a long-time nurse who runs a Texas consultancy to assist nurses facing board reviews. "We have helped nurses in many states, and it's the same everywhere."

Board Allegiance, Nursing Experience Questioned

The Texas board is structured like the majority of nursing boards. The state's governor appoints members, and the governor and legislature have authority over the board. Staff handle everyday tasks including triaging complaints, conducting investigations, and arguing the board's position at hearings. Board members make ultimate decisions about sanctions at hearings.

The Texas board has 13 members: nine nursing representatives and four representing consumers.

MedPage Today conducted online backgrounding of board members and top executives as of the start of this year -- finding that of the nine nursing reps, just three reported being active nurses. Four worked in healthcare management, according to official bios, LinkedIn pages, and other reports.

Even some of the consumer representatives have been involved in healthcare. Mazie Mathews Jamison is a former healthcare executive. David Saucedo II is vice president of a lock company, and he invests in the Borderplex Alliance, an El Paso advisory and community group that has partnered with HCA Healthcare, CardinalHealth, and other healthcare organizations, according to its website.

Similarly, full-time staff -- including executives -- have more administrative than nursing experience. Katherine Thomas, MSN, worked for 6 years as a nurse practitioner, but has been the organization's executive director since 1995.

Enforcement director Tony Diggs, general counsel Dusty Johnston, and operations chief Mark Majek don't report any nursing experience in their public profiles. Diggs oversees some 50 staff in the enforcement division. Along with Thomas, they have all been in their roles for more than 20 years.

"They're not nurses. They can't possibly understand what a nurse is trying to explain" during investigations, said Lolly Lockhart, PhD, RN, a long-time nursing consultant and Texas Nurses Association member.

Board members and staff take their role seriously and are trained to handle their responsibilities, Johnston said, adding he has never seen a member use the board for personal or political gain.

"If you don't want experienced nurses reviewing the competency of nursing practice, that doesn't sound quite right," he said, discounting that many board nursing reps have not been practitioners in years. "I guarantee you we are not evaluating the standard of care today based on standards of care that may have been in place in 1983," he said, alluding to the last year Thomas was a practicing nurse.

Alexander, the NCSBN official, praised the blend of state boards' composition in general, including in Texas: "It's what we would probably call a well-balanced board because you want a mix of public [members] who ensure the board members who are representing the profession are doing their job, and you want the expertise of members of the profession."

More Investigations, Sanctions

National and state data show increases in several disciplinary categories at nursing boards over the last two decades, particularly from 2005 to 2016.

Nationally, adverse actions reported against registered nurses (RNs) more than doubled from 2001 to 2011, according to the National Practitioner Data Bank (NPDB), and increased steadily from 14,092 in 2012 to 16,190 in 2016. These actions fell slightly from 2016 to 2019, the last year for which complete data were available.

Similarly, actions against advanced practice nurses (APNs) surged more than five-fold from 2001 to 2014, according to NPDB data.

NPDB data for Texas show that adverse actions against RNs and other nurses more than doubled from 2008 until 2012. The number of actions against Texas APNs in 2016 was nine times the 2013 number.

The Texas board's own data show the total number of actions taken against all nurses increased sharply in the first decade of this century, which Johnston said is due to a change in policy: criminal background checks were mandated in 2005. Nurses with criminal histories were found to be in violation, thus forcing actions against many nurses. (An NPDB official said the data don't match exactly, in large part because not all state board actions are reportable.)

Texas board data also show that the number of investigations involving RNs nearly tripled from 2006 to 2013, and sanctions against their licenses rose 70% from 2010 to 2013. Published numbers show subsequent declines, but MedPage Today found significant data were missing, particularly from 2018 and on.

While the number of complaints has also risen over time, the percentage of complaints leading to discipline has increased as well -- notably in the first half of the last decade for RNs, rising from 18.1% in 2010 to 22.7% in 2012, for example.

In addition to practice violations, nurses can be disciplined for actions in their personal lives. The Texas board, for example, is required by state law to discipline nurses found by the attorney general's office to have neglected child support payments, Johnston confirmed, and the board has taken action for violations as trivial as accepting gifts from former patients.

"Attorneys agreed the nursing board had an aggressive approach to off-duty behavior, though it wasn't unique" among state boards, according to a 2013 report by the Austin American-Statesman.

'Presumed Guilty'

Darlene Nelson and Maggie Ortiz run Expert Nurse Consultants, a San Antonio-based organization that assists nurses. Nelson was disciplined by the board in 2019, while Ortiz said she worked for the board for 6 months before quitting over moral objections.

Along with two other nursing consultants, Joe Flores and Texas attorney Mark Weitz, they depicted a board that unjustly penalized nurses in an overzealous and apparently retaliatory fashion for years, while deliberately minimizing communication during reviews.

"They delay because they try to railroad you, they try to scare you," said Nelson, a three-decade emergency department trauma nurse veteran. In a typical year, more than 80% of complaints are resolved within 6 months, Johnston said. But among reviews, about half take longer -- and at least one-quarter exceed a year.

Ortiz left her emergency department job in November 2013 to join the board as an investigator. She opened new reviews weekly as others that were a couple of years old sat untouched.

"I was told any nurses reported to the board were all guilty, so why are you wasting your time reading their response [to the initial board letter]?" she said. "That is the culture of the board." Ortiz quit early in 2014.

Another problem is the board follows administrative law, which lacks sufficient due process protections, several sources said. For instance, the board can overrule recommendations about sanctions made by the administrative judge who oversees hearings. One client of Expert Nurse Consultants remained under investigation even after her former employer stated she had not committed any violations.

During the pandemic, nurses have been investigated after speaking to managers and/or publicly about pandemic-era PPE problems and staffing shortages, Flores said.

Tonya Randolph, RN, said she was fired by Lake Granbury Medical Center in March for wearing a mask after management asked nurses not to wear one "because it scared their patients," according to a Texas Public Radio report. She was reported and the board is now reviewing her case, according to a source who asked to remain anonymous, citing client confidentiality. (Randolph could not be reached through her employer, TravelMed USA.)

Such behavior follows a longstanding board pattern, sources said.

"[Nurses] are prohibited from reporting or even raising concerns and, in too many instances, are intimidated and even fired for raising concerns. In retaliation, they are often over scrutinized [sic] and blamed for some problem and reported to the Board of Nursing," Lockhart, the nurse consultant, wrote in a January 2014 letter to the board. "When nurses are wrongfully terminated they often cannot find employment in other facilities close by, and their nursing careers come to an end."

In general, state boards tend to over-discipline because "boards of nursing, especially in Texas, are so terrified of making a mistake" and letting a guilty nurse off, Lockhart told MedPage Today. "They don't have bad intentions."

"The issues are structurally how this nursing board functions," Weitz said. A review is "just such an arduous process."

Weitz has represented nurses in some cases that had been open for so long, "it's like the staff attorney has never seen the file because they probably haven't looked at it in a year."

Weitz has an ongoing case in which a nurse is accused of a medication error involving a male patient. A board witness had not worked on men in 25 years and did not know anything about the patient's procedure.

Physicians are usually affluent enough to resist strongly when accused of wrongdoing. Many nurses, however, "don't have the financial wherewithal to fight the kind of fight that a doctor can."

"Once you get in the system, it sucks," he added. "It breaks my heart sometimes because a lot of women I get have never had a complaint."

Afraid to Practice Nursing

Johnston, the Texas board's general counsel, denied that the board acts aggressively or overzealously. "I would not be surprised if there are cases when we have over 12,000 matters being investigated that these attorneys wouldn't be complimentary of how their particular case is being handled," he said. "But I'm satisfied with our efficiencies, but we are always working on that; it's something we need to improve."

A recent 5% state-mandated budget cut means the board cannot add any staff, Johnston said, although it has been permitted to fill a few open investigative positions.

Johnston also denied the accusation that the board doesn't provide due process: "The board is required to follow the due process provisions outlined in the Texas Administrative Procedures Act ... and in the Texas Nursing Practice Act."

The Texas board is "one of the most respected" nationally, NCSBN's Alexander said, with a "highly regarded" staff.

Nursing advocates feel differently, and not just about the Texas board.

While the NCSBN publicly catalogues violations on a national database called Nursys, Alexander confirmed that no national guidelines exist concerning discipline. "It would be too difficult," she said. "There are a number of different reasons why a nurse can be disciplined."

The NCSBN has not weighed in on how its own members could handle issues during the pandemic, including nurse discipline, other than recommending they allow previously disciplined nurses to temporarily return to work.

Investigators are also motivated to at least sometimes build cases finding nurses at fault, Paradisis and others said, to demonstrate they are doing their jobs.

Paradisis, who was disciplined by New Jersey's nursing board stemming from a 2012 complaint, noted that the boards are not conducting research on administrative intimidation of healthcare workers, particularly during the pandemic.

Nor does the NCSBN study the effectiveness of nurse discipline. MedPage Today found little research on the topic, save for a 2019 review that concluded, "More systematic research is needed, together with clear definitions of disciplinary procedures."

"It's a topic that people don't want to take on," said Paradisis, who spent most of her 20-year nursing career in management. "These are giants in our society. These are entire institutional structures and they are not going away."

Nelson said that because of nursing boards' behavior, "nurses operate in a culture of fear."

Said Lockhart: "Nurses can't be afraid of practicing nursing, which is what's going on now."

Last Updated February 23, 2021

 

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Is Nursing Board Discipline Getting More Aggressive?

Brokerage Firms Face Litigation Risks With Senior, Vulnerable Clients

Senior citizens chat in a park.

Photo by Christopher Furlong/Getty Images

With the youngest of baby boomers set to reach age 65 in 2029, brokerage firms will increasingly face dilemmas involving diminished capacity and financial exploitation of their senior and vulnerable customers. Bressler, Amery & Ross P.C. attorneys look at proactive steps firms can take to protect themselves and clients from unwelcome litigation.

Litigation involving the elderly and other vulnerable investors is set to increase in the coming years due in part to an aging investor population (indeed, all baby boomers are set to reach at least age 65 in 2029!).

As investors age, brokerage firms and investment advisers will increasingly face dilemmas involving diminished capacity and financial exploitation of their senior and vulnerable customers. Spotting potential issues in this space is not always easy and firms can face costly litigation as a result.

Consider the following hypothetical:
A 75-year old customer calls his financial adviser seeking to change the beneficiary on his account to his new caregiver and instructs the adviser to liquidate a large and long-held position with Company X. Feeling that the customer’s requests are suspicious, especially given the customer’s age and a recent hospitalization, the financial adviser raises the issue with his manager, and the manager directs that a hold be placed on the transaction.

The firm conducts a thorough internal review and, determining there to be no evidence of financial exploitation, the transaction hold is lifted. In the interim, however, Company X’s share price drops. The customer loses out on a significant amount of profit per share and seeks recovery against the financial institution through litigation.

FINRA Rules and State Laws

A firm’s temporary hold on a customer’s transaction must be authorized by rule, statute, or account agreement. FINRA Rule 2165 permits firms to place temporary holds only on disbursements of securities from accounts of senior and vulnerable adults. Under current FINRA rules, therefore, the firm in the scenario above would not have the ability to place a temporary hold on the customer’s transaction. This situation, however, is evolving. FINRA has proposed an amendment to Rule 2165, which would allow firms to place transaction holds in suspected instances of financial exploitation.

But, the firm is not out of luck. Twenty-nine states have adopted, in whole or in part, a statute modeled after the North American Securities Administrators Association (NASAA) Model Act that is designed to protect vulnerable investors from financial exploitation. Most states permit firms to place a temporary transaction hold. This represents a growing trend—with New Jersey, Florida, West Virginia, and Oklahoma all adopting financial exploitation statutes with transaction holds in 2020.

Best Practices

Firms are under tremendous pressure to make correct decisions, as displayed in the case study above. If the broker or firm turns out to be wrong, it may find itself the subject of an arbitration action. So, how do firms make sure to get these calls right?

Firms should take proactive steps to protect senior and vulnerable customers before any financial exploitation is suspected. In addition to protecting the vulnerable customer, these steps, some of which are outlined below, will benefit the firm in future litigation.

Training and Policies and Procedures. Florida and New Mexico have statutes that require firms to develop training, policies, and procedures “reasonably designed” to train agents on issues relating to financial exploitation of vulnerable adults. Firms should design their training programs to educate their employees about different signs of financial exploitation.

The training, policies, and procedures should be robust: a customer’s counsel will attempt to attack the firm’s training to undermine state statutory immunity.

Centralized Reporting Groups. Firms that employ a centralized reporting group (or individual) are more likely to be equipped to identify and act on suspected financial exploitation. Individuals within a centralized group operate at an “expert” level on FINRA rules and state laws that is not always achievable for a registered representative.

Protecting the Customer (and the Firm) After Suspected Exploitation

Even the best training programs, policies, and procedures cannot prevent financial exploitation. The question then becomes: What steps should the firm take after suspecting financial exploitation to both protect its customer from harm and shield itself in a potential litigation? Thankfully, the steps taken to achieve these goals are typically aligned.

Contact Third Parties. FINRA Rule 4512 requires brokerage firms to make reasonable efforts to obtain the name and contact information for a trusted contact person. The trusted contact person is a great place to start when the firm suspects financial exploitation. However, clients often choose not to designate such a person, or the trusted contact may be the one suspected of engaging in the exploitation. In that case, firms should turn to state law.

Many states allow firms to go beyond FINRA’s trusted contact person to contact individuals “reasonably associated with the vulnerable adult.” Understanding state law requirements is a great first step.

Contact Government Agencies. Firms should look to the state where the customer is located and report to all applicable government agencies—no matter whether the state requires reporting. In states with NASAA-based financial exploitation statutes, firms should also be aware of their reporting obligations under long-standing adult protective services laws.

Documentation. Firms should document each step they take after suspecting financial exploitation, including the rationale for contacting third parties and government agencies, and the results of their internal review. For example, defending against the senior investor’s claim in the scenario above will require documentation as to why the registered rep developed a reasonable belief of financial exploitation, what steps the firm took to investigate, and which individuals/government agencies were contacted.

Firms are accustomed to lawsuits brought by disgruntled customers. By taking the steps above, firms can act proactively to protect their customers while developing important tools and evidence to be used in potential litigation.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Full Article & Source:

Brokerage Firms Face Litigation Risks With Senior, Vulnerable Clients

Cleveland council member accused of stealing $127,000 from city

Kenneth Johnson says hello to councilman Anthony Brancatelli as Johnson enters the Cleveland Council Chambers to be sworn in as Ward 4 Councilman on Monday, Jan. 7, 2013, in Cleveland. Johnson, a longtime Cleveland City Council member, was arrested Tuesday, Feb. 23, 2021, in connection with a criminal indictment accusing him of stealing tens of thousands of dollars from the city and a federal program. Lynn Ischay/The Plain Dealer Via AP

CLEVELAND — A longtime Cleveland City Council member was arrested Tuesday in connection with a criminal indictment accusing him of stealing tens of thousands of dollars from the city and a federal program.

Kenneth Johnson, 74, was first elected to the council in 1980. He faces 15 counts including conspiracy to commit federal program theft, tampering with a witness, falsification of records, federal program theft and aiding in the preparation of false tax returns.

Johnson, a Democrat, is accused of submitting false invoices to Cleveland for reimbursement of monthly expenses from January 2010 through October 2018 totaling $127,000.

The indictment says Johnson, his council aide and the director of a community development agency in Johnson's ward also conspired to steal $50,000 in federal money through payments made to Johnson's son and two people for whom Johnson served as court-appointed guardian. The aide and agency director also were indicted.

A telephone message seeking comment was left with Johnson's attorney on Tuesday.

Johnson and the aide are accused of having a Cleveland recreation employee falsely sign timesheets that led to Johnson being reimbursed $1,200 a month in expenses for nearly nine years. The employee pleaded guilty earlier this month to conspiracy to commit theft.

The payments made to Johnson's son and wards came from federal money allocated to the community service agency Johnson ostensibly controlled. The payments were ultimately deposited into Johnson's bank account, the indictment said.

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Cleveland council member accused of stealing $127,000 from city

Ashley Moody, lawmakers unveil legislation to address elder exploitation

by Jason Delgado

The bills are intended to 'strengthen senior protection in Florida.'

Two state lawmakers and Attorney General Ashley Moody announced proposals Tuesday that would, among other pursuits, broaden the Attorney General’s jurisdiction and create new elder exploitation offenses.

The proposals, SB 1344 and HB 1041, are sponsored by Republican lawmakers, Sen. Danny Burgess of Zephyrhills and Rep. Colleen Burton of Lakeland. 

Under the bills, the Florida Attorney General’s jurisdiction would expand to include offenses regarding elderly persons and disabled adults.

“The abuse of a position of trust that causes significant financial or physical harm to a senior is not just a civil matter, it can be criminal and should be prosecuted,” Moody said in a news release. “As Attorney General, I am dedicated to protecting our great seniors and ensuring that criminals who target them are brought to justice. To better accomplish this important goal, we must strengthen our laws to ensure none of these criminals evade responsibility for their devious actions.”

The proposals would also bar a person convicted of abusing, neglecting or exploiting an elderly person from serving as a personal representative.

Moreover, those convicted of elder exploitation would no longer be eligible to receive benefits under a deceased person’s will. 

“With this bill we are taking a necessary step to eliminate abuse of elderly and disabled individuals by setting limitations on who can represent them and setting guidelines on inheritance if abuse occurs,” Burton said. “It is our responsibility to not allow our vulnerable citizens to be taken advantage of and we must take action now.”

The proposal would expand who may file a protection injunction for exploitation and extend a temporary injunction to up to 45 days.

Intentionally isolating a disabled or elderly person as a way to conceal criminal activity would also be criminalized under the measures.

“Protecting our most vulnerable population has and always will be a top priority for me,” Burgess said. “This great bill ensures that their assets are taken care of and I am honored to work alongside Attorney General Ashley Moody and Representative Colleen Burton to combat and prevent these inexcusable crimes.”

The bills are intended to “strengthen senior protection in Florida,” a news release said.

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Ashley Moody, lawmakers unveil legislation to address elder exploitation

HEARTBREAKING: 99-year-old mother dies of COVID-19 in California nursing home under lockdown after months of isolation from family

by Mia Cathell 

99-year-old Gabrielle "Gaby" Lewis endured an unrelenting COVID-19 outbreak at her nursing home under lockdown in Duarte, California. Then she contracted the deadly coronavirus one week before vaccines were due to arrive at the facility.

After weathering months of loneliness, forbidden family visits, and missed holidays, Lewis passed away loved from afar. Her daughter, 62-year-old Denise Bogan of Riverside, shared with The Post Millennial the heartbreaking details of what it's like to be isolated inside one of America's nursing homes throughout the COVID-19 pandemic. Her story is just one of many.

Bogan had not seen her elderly mother since March 14 due to the statewide lockdown. On that day at the outset of the public health crisis, her sister had warned that the nursing home was about to shut out visitors for an indefinite period. With six adult children, Lewis was used to the company of family surrounding her almost every single day. Bogan and her siblings gathered around their mother for their last precious moments in-person that they were permitted before the nuns rushed in, accompanied by a security guard, ordering: "That's it. Let's go. Everybody out. You gotta go."

"I was trying to be strong for my mom and telling her that it would be okay—that as soon as we could, we would be back," Bogan recounted. "But that was the last day that we held her."

The few patio visits they were allowed in August—when Lewis was wheeled out in her wheelchair—were interrupted by the West Coast wildfires. The medical staff determined that the air was not clean enough to leave Lewis outside. Then the family begged for window visits, but the smoke seeped underneath the doorway where their conversations were held. Those, too, were taken away.

Fortunately, her sister spent their last hour together setting up her Facebook Portal device, which became the family's lifeline to their mother. They were able to video chat with Lewis daily, but the technology itself was unreliable and dependent on the WiFi signal's strength. Sometimes Lewis didn't understand that she was talking to her daughters. She'd ask her children, "Have you seen my daughters?" And they reminded her, "We're right here with you, Mom." When Bogan's sister, Madeleine, joined the calls, her mom almost always said, "Oh, I love that name. That's a beautiful name." And Madeleine replied, "Yes, Mama. You gave me that beautiful name. I am named after your sister."

Her dementia accelerated. Bogan attributed her mother's decline to the lack of physical touch. "We all need and deserve to have somebody hug us, kiss our cheeks, and hold our hands every day," Bogan implored, especially at that age.

"It's the circle of life. It's just like an infant needs that attention and that supervision, so do the elderly. And that's what my mom lives for—for the companionship of the people that she loves. And it's been stripped from her," Bogan stated. "We're human beings. We are hardwired for connection to one other. We are of each other."

Lewis holds hands with her family | Photo: Denise Bogan

As attentive as the nursing home caretakers were, Bogan acknowledged, "that's their job. That's not their love. That's the service that they're providing, because of the job that they're getting paid to do." Bogan knew that their hands-on care could not take the place of family.

Over the course of her secluded stay, Lewis uttered heart-wrenching phrases that Bogan had never heard from her mother’s mouth before. "I'm miserable. I'm so miserable," she had said. "This is no way to live," Lewis told her daughters. "I'm lonely." She begged for her children to come see her and take her home.

"My mom is so faithful and so kind and so generous of spirit and so loving that she'll catch herself even with dementia," Bogan described her mother's fortitude and unwavering positivity. "Oh, I am not going to complain. I'm not a complainer," Lewis rebounded from her downtrodden moments. Bogan and her siblings had to remind their mother that it was okay for her to feel sad. "This is really, really hard. It's hard on you. It's hard on us," they consoled her.

"This little, tiny, frail, old woman is bigger than life and she is full of life still," Bogan said. "She is the hugest source of unconditional love that I've ever seen in my life and she's been that way her whole life. Her friends used to say she was an angel on earth, because she was so generous, so loving, so positive, so giving. And she deserves more, and so do everyone else in these nursing homes."

Bogan hugs Lewis from behind | Photo: Denise Bogan

Lewis was transferred three times to different rooms in the nursing home. Relocation can be upending for dementia patients, because their surroundings are what ground them to reality. Lewis was first transported closer to the nursing station when she was deemed a fall risk. A month or two later, she was displaced when her living space was evacuated to shelter coronavirus patients. The third and final move was to the "dark, cold, and nasty library…turned COVID-19 ward," Bogan chronicled. Their virtual meetings were no longer scheduled and their calls became few and far between.

After nine cautious months of limited communication, it was one of the caretakers who brought COVID-19 into the nursing home. Lewis tested positive for the coronavirus on Dec. 22 and the family was told the news the day before Christmas Eve.

"The woman is the strongest thing you've ever seen in your life," Bogan spoke of her mother in an interview conducted prior to Lewis' death. Her symptoms were mild at the time. She developed a slight fever but did not require oxygen. Lewis even sang Christmas carols with her children over the virtual calls. "We didn't know at that point whether she was going to survive," Bogan said, but she and her siblings remained hopeful.

Bogan's sister, Madeleine, drove an hour to deliver Christmas presents. She also carried her homemade fudge—their mother's favorite recipe that she passed down to all of her daughters. The nursing home accepted the gifts but turned Madeleine away from visiting their mother during the joyous occasion.

"Can you please open my mom's mini-blind, so I can see her through the window?" Madeleine asked the sympathetic front desk clerk who then transferred her request. The activities director, tasked with keeping the families connected, told Madeleine: "I'll go ask. I'll try. I'll do my best." Echoing the sister's pleas, the employee presumably spoke with whoever's in charge but to no avail.

"It's salt in the wound. And the wound is deep and heartfelt and traumatic," Bogan commented on the incident. She expressed how these were her mother's last days, weeks, and months alive spent in isolation. "But all that precious time has been stolen from her and from us. And it's just unacceptable," Bogan declared.

Bogan celebrates her mother's 98th birthday | Photo: Denise Bogan

Bogan invoked thousands of others with similar tales. "This story about my mom is not unique. This is going on everywhere," she maintained. "And we hope to God that they survive COVID, especially after they're locked down for months to keep COVID out."

The family was informed via email of the growing coronavirus numbers at the nursing home. "I've kept track of it, because if I don't write it down, my trauma makes me forget," Bogan said. "So starting with Nov. 29, there was one infected staff member; Dec. 4, two staff members; Dec. 5, one staff member; Dec. 8, two staff members..." Bogan rattled the dates and cases off until she reached the day that her mother was reported as the latest resident who had tested positive.

"It's not stopping," Bogan pointed to the uptick of cases. "And it doesn't feel like anybody's doing anything about it. People are going to die there."

It's not just senior citizens in nursing homes who comprise "the forgotten population," she continued. Bogan mentioned the disabled youth in long-term care who have been separated from their parents and their loved ones as well.

"It's very sad that this is the way that our country is treating our elderly," Bogan stated. She rebutted claims from critics who may question, "Well, why'd you place your mother in the nursing home in the first place?" Bogan emphasized that while she would have "given anything" to take care of her mother at home, the choice was a family decision—and they have a large family. Adult children often have to consider the fragility of their aging parents whose mental or physical state may demand professional care where trained nurses are available around the clock. In numerous other situations, elders are in nursing homes because there is nobody else in their families who can take care of them.

"There's many, many reasons. But none of them give us the right to just forget them, leave them, and take away their civil rights under the guise of 'We're going to protect you to death. We're going to protect you from COVID,'" Bogan rebutted.

Nursing homes and assisted living facilities hold less than 1 percent of the population in the United States yet are to blame for an astounding 37 percent of the nation's total coronavirus deaths, Bogan cited AARP's recent analysis of federal data. "That right there is just staggering. It's just unacceptable," she countered. "And yet very little, if anything, is being done."

Bogan characterized the long-term care industry's mentality: institutions presume they have sole jurisdiction over what's best for the residents since families have forfeited care over to the medical personnel.

While infectious disease experts have focused on the virus itself and COVID-19's spread in communal housing, the impact of prolonged separation has gone undetected. Therefore, the restrictions in place reflect this tradeoff between safety and quality of life.

Bogan adds the #IsolationKillsToo frame to her Facebook profile picture to raise awareness of the Caregivers for Compromise campaign that warns that loneliness can be just as fatal as COVID-19.

Bogan scrutinized the issue on the national scale. "In the United States, especially, we do not honor and respect the elderly," she described the generational divide.

"There's ageism in our country, big time,” Bogan asserted. "And we seem to only value the young, the fit, the beautiful. And the older you get—it seems to me—in our society, the less value is attached to you." Americans tend to believe that "life is for the living," she went on, and they're afraid to understand that "life is also for the dying. Life is for all of us from birth all the way until our deathbed."

Americans often shy away from the talk of death, because "our medical system is set up to save everybody," Bogan rationalized. And if doctors are unable to save their patients, it's considered as if they've failed, she continued. "And that just isn't so. Every single one of us is going to meet our maker. Regardless of who we are or how we came into this world or how we lived our life, we're going to die," Bogan said.

"And it's become very, very important to me that my mom not only live well, but that she die well," Bogan said just days before her mother's death. "And she can't if she's in a nursing home under lockdown—and neither can the thousands of others."

As humans continue to live longer over the next decade, Bogan prompted the young generation to reflect—"to look at ourselves, to look at our systems, to look at how we warehouse the elderly in nursing homes."

She urged funding to change, so that America's aging population are afforded "comfortable, loving" end-of-life experiences in their own homes or smaller residences where there are fewer caretakers present, not overcrowded workforces that usher in "all these germs."

Caretakers were the culprits who brought the fatal disease into the nursing home—"not with any ill will," Bogan interjected. "It's just the facts. It's the numbers. It's the truth. And how can we sit back and allow this to just continue?"

Bogan suggested that each resident have at least one family member who can suit up in personal protective equipment (PPE), test at regular intervals, and enter the nursing facility as an essential caregiver. This practice is championed in several states. One such proposal in Indiana, Senate Bill 202, would require all nursing homes to let at least two designated caregivers visit under any public health emergency—with proper safeguards—unless federal regulations ban all visitors. If enacted into law, an Essential Family Caregiver Program would be established that permits outside contact with residents at least twice per week.

"Turns out that family members are very, very motivated to keep their loved ones safe," Bogan said. "Certainly, we could allow one essential visitor for each one of the residents who will take all precautions to go in. Why is California so far behind with that?" she pressured.

Compassionate care scenarios—such as terminal illness, bereavement, and depression—necessitate this last touch of humanity, Bogan advocated. Family, in particular, would ensure that they self-quarantine and curb their social activities with the health of their loved ones at stake. It's staff who dine at restaurants, drink at bars, and shop at grocery stores during their everyday routines outside of work, Bogan speculated.

The presence of family also increases the level of care in nursing homes, which is two-fold by enforcing accountability as inside watchdogs and supplying an additional set of hands as impassioned caregivers.

Bogan stated that those who don't live in nursing homes "don't know what it's like within those walls." She ventured to suggest that these same people "don't want to know," because they don't want to think about their own parents aging—let alone themselves nearing death. Thus, the cycle is perpetuated.

Blaming poor government oversight, she pressed governors in all states to "suit up" and "go see for yourself." Drive to 10 random nursing homes, "not ones that are five-star that some staff members picked out for you to go see," Bogan fired at state leaders. "And you will see isolation, loneliness, depression. You will see neglect. In the worst of them, you'll see cruelty and a lack of empathy."

"You, too, one day will be old," Bogan said she would tell governors across the country. "And your parents—if they're still alive—may end up in one of these facilities." Bogan stressed that "it's not right to separate families anywhere—nowhere, not at the border, not in nursing homes."

Bogan urged governors to take action. "Please, it's urgent. Get the legislation in place to stop this tragedy, to stop death by isolation, to stop death by COVID in nursing homes—because they're hotspots," she said. "I would hope their hearts are big enough to take my advice and to change things."

Bogan and Lewis embrace each other | Photo: Denise Bogan

"I want [the public] to know that my mom is their mom," Bogan emphasized. "My mom is any other human being who's been privileged enough to live to [age] 99. Few of us will get that far, but she has. And I want the public to know that she has value—that she has an incredible life story of her younger years, her middle years, and her end years. And she has the right to live in harmony and peace with the people who are most connected to her at the end of her life and so does everyone else."

 

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HEARTBREAKING: 99-year-old mother dies of COVID-19 in California nursing home under lockdown after months of isolation from family