Saturday, April 9, 2022
Surviving the Caregiver Swamp and Burnout, Leonie Rosenstiel
Ballad CEO shares thoughts on Vanderbilt nurse conviction
by: Ben Gilliam
JOHNSON CITY, Tenn. (WJHL) – In a letter penned to employees, Ballad Health CEO Alan Levine shared his personal impressions of the negligent homicide conviction of ex-Vanderbilt-nurse Radonda Vaught and what Ballad is doing to prevent medical mistakes like the one that killed 75-year-old Charlene Murphey in 2017.
“This is a tragic case all the way around, and I know there are many questions,” Levine told employees. “I’d like to share my thoughts with you, and perhaps give you some encouragement.”
The case’s outcome has been met with mixed public reaction, and the Tennessee Nurses Association released a statement after the verdict expressing concern that criminally prosecuting certain “accidental medical errors” could keep nurses from reporting mistakes in the future.
Levine said that Ballad’s drug dispensing system, Omnicell, works in a different way than the dispensing policies that allowed Vaught to withdraw the paralytic that killed Murphey rather than the sedative called for in her routine scan. In Vaught’s case, prosecutors said the ex-nurse ignored multiple alarms and warning signs before administering the drug.
In order to retrieve a drug on Ballad’s list of High Alert “I ON CARE” substances, which are posted in each nursing unit, Levine said Ballad staff follow these protocols:
- Staff must enter five characters of the drug’s name into the system’s Omnicell dispensing system, rather than the two required in VMC’s system at the time. This is intended to decrease the likelihood of misspelled medications.
- All neuromuscular blockers (NMBs) like the Vecuronium used on Murphey are stored in paralytic-specific teal or locked containers.
- Before the drug can be removed from the cabinet, a 2-step alert tells nurses that the particular NMB can cause paralysis and that the patient requires ventilation before use. All drips containing NMBs from the pharmacy are to be labeled in a similar way.
- NMB paralytics are not to be transported through Ballad’s vacuum tube system, ensuring that every dose is withdrawn from the central Omnicell system and follows policy.
- Before administering the drug, nurses must scan the patient’s armband and the drug in question to ensure a match.
“I am not an expert on the criminal case that was presented in Nashville, although I have been following it,” Levine said. “And I know that overriding Omnicell is not unusual on a day-to-day basis. I’ve seen it happen myself as I’ve rounded with nurses. And there are very clear reasons why it needs to be overridden at times.”
As a system, Levine said the open admission of mistakes without fear is essential to operation.
“Does this mean a nurse cannot be disciplined for negligent behavior? No,” Levine said. “Our position has always been that we disclose medical mistakes, and we do not discipline nurses just because they made a mistake. If a nurse willingly does not comply with nursing standards, or clearly violates our policies, then yes, we would then take appropriate action to ensure there are consequences for ignoring procedures designed to protect patients.”
Levine acknowledged that nurses on the front lines of healthcare face difficult decisions daily, and that not every case may go the way they hope.
“Every….single….time our nurses interact with a patient, something bad – even deadly – can happen,” he wrote. “It is scary for a nurse, even before the outcome of this case, when administering medications or services which can harm a patient if not done properly. Every time, every shift, nurses stop to pause when considering the potential outcome of their interaction with a patient.”
Levin also spoke to the psychological impact the outcome of Vaught’s case may have on nurses, telling staff that administrators will work with nurses to find out their specific takeaways from the conviction.
“In my opinion, it is unfair to hold a nurse to a criminal standard if the nurse did follow the policies and the practices of the employer responsible for the patient,” Levine told employees. “I cannot substitute my judgment for that of the jury, and must respect the fact that there seems to now be a standard we need to pay attention to.”
Levine compared the case to the legal proceedings following plane crashes, saying that while many investigations focus on the systemic issues that allowed the accident to occur, truly negligent employees are not exempt from accountability.
In his conclusion, Levine said he agreed with the Tennessee Nursing Association’s concerned reaction to Vaught’s conviction.
“Every nurse at every bedside today was given another reason to be concerned,” Levine said. “Even beyond their superhuman concerns for the safety of their patients – concerns which each day I have witnessed as they perform their heroic work.”
Minimum staffing law for nursing homes starts today
|New York's safe staffing law for nursing homes will be in full effect starting April 1. (WHAM photo)|
MaryDel Wypych's mom was in a nursing home for 13 years.
She said while she received adequate care, the same can't be said at all long-term care facilities across New York.
Especially when one nurse is taking care of 15 residents."At those kind of ratios, you can’t address people’s needs. If someone needs to use the bathroom, they can’t get to them. They can put a call light on and wait for well over an hour," said Wypych, a chairperson with the Elder Justice Committee of Metro Justice.
Wypych advocated for New York's safe staffing law that's in full effect on April 1.
The new law mandates minim staffing and minim hours of direct resident care in nursing homes. It requires each nursing home resident to receive 3.5 hours of direct care.
"After many, many years of people trying to
get a law passed in New York State, we were asking for the 4.1 hours,
but due to the industry advocating for less hours, they finally gave in
and finally put the law at 3.5 hours per day," said Wypych.
The law, which took effect Jan. 1, was put on pause because of a health care worker shortage.
Mike Stapleton, CEO of Thompson Health, operates a five star nursing home.
He calls the law unfair.
Especially for the nursing homes continually providing quality care.
lot of this stuff is done because there’s a couple of bad seeds so they
make rules for everyone based on a couple of folks who make bad
decisions," said Stapleton.
Stapleton said hospitals are bursting at the seams with patients needing to find a nursing home.
He said with the staffing mandate coming into play, it's only going to make matters worse.
"A lot of the for-profit nursing homes, it's very difficult for them to run their business and then you got these mandated ratios, these mandated staffing numbers on top of it and they're like, 'it's going to be worse,' and so what are they doing? They're closing beds. And they're going to close more beds and they're going to close more beds," said Stapleton.
Nursing home operators are being told to call a state line hotline if they have immediate safety due to the recent change.
Friday, April 8, 2022
Nursing home care, funding system need overhaul, report says
By MATT SEDENSKY
NEW YORK (AP) — Nursing home residents are subjected to ineffective care and poor staffing, while facility finances are shrouded in secrecy and regulatory lapses go unenforced, according to a report Wednesday that called for wholesale changes in an industry whose failures have been spotlighted by the pandemic.
To anyone who saw the scourge of COVID-19 on the country’s most vulnerable, the findings of the National Academies of Sciences, Engineering, and Medicine might seem sobering but unsurprising, as the long-term care system’s inadequacies were made plain by more than 150,000 resident deaths. The authors of the 605-page report insist it could be an impetus to address issues that have gotten little more than lip service for decades.
“The public is so concerned about the quality of care that most people really fear their family having to be in a nursing home,” said Betty Ferrell, a nurse who chaired the report committee. “We’re very optimistic that our government officials will respond to what has really been a travesty.”
The report covers a vast cross-section of long-term care, from granular details such as the way facilities are designed to foundational issues that would require massive political capital and investment to address. Among them: the authors advocate for creating a new national long-term care system that would exist outside of Medicaid, the program that is at the center of most long-term care financing.
The likelihood of such a proposal successfully winding its way through Congress seems low in the current political climate. The most recent federal attempt to reform long-term care financing was a voluntary long-term care insurance program known as the CLASS Act. It was included in the Affordable Care Act but later repealed when the Obama administration found it unworkable.
“It has been a long time since we as a country have been wanting to dig in and reform how we finance, pay, regulate and delivery nursing home services,” said David Grabowski, a nursing home expert and Harvard Medical School professor who served on the report committee.
The industry’s biggest lobbying groups insisted reforms must be met by increased government funding.
The American Health Care Association said “what we cannot support are unfunded mandates.”
Katie Smith Sloan, who leads LeadingAge, which represents nonprofit nursing homes, called the report “a piercing wake-up call” about an industry “in desperate need of an overhaul,” but likewise said the success of remaking the system would depend on how funding issues are addressed.
“As policymakers consider how to enact the report’s recommendations, they must back their actions with sufficient funding to make changes a reality,” she said. “Without that, the committee’s work will be for naught.”
On the issue of nursing home staffing, which advocates have repeatedly said is too low, too untrained and too underpaid, the report’s authors called for facilities to have at least one registered nurse on duty at all times and for an infection prevention and control specialist and social worker to also be on staff.
More broadly, across all staffing in homes, including nurse aides who make up the bulk of front-line caregivers, the authors called for additional study on optimal staffing.
Industry lobbyists have fiercely fought against more stringent staffing requirements. Federal law only requires nursing homes to have sufficient staff to meet residents’ needs, but nearly all interpretation of what that means is left to states. President Joe Biden, too, has called for establishing national staffing minimums.
Among the more routine subjects in the report, but one that nonetheless impacts residents’ everyday lives, the authors call for homes to prioritize private rooms and bathrooms instead of the communal ones that can fuel infections and underscore the institutional setting. And in a blunt reminder of how bleak life in nursing homes can be, the report notes most residents spend “little if any time outdoors,” calling for facilities to make outside access more accessible.
The proposals, Grabowski said, have the potential to improve the days of residents who, even when they are having their basic medical needs met, are frequently lacking in other areas of their lives.
“I think the average nursing home resident has an OK quality of care but a poor quality of life,” Grabowski said.
Advocates for nursing home residents have long pleaded for attention on homes’ shortcomings, and the pandemic gave them a media spotlight. But decades of inaction by politicians and resistance by the industry are difficult to overcome, and what the report might spark remains unclear.
forerunner to the study, 1986′s “Improving the Quality of Care in
Nursing Homes,” was also a product of the National Academies. Some
issues of that report were taken on in the sweeping 1987 Nursing Home
Reform Act, which created the regulatory framework homes are still under
today. Others remain unaddressed 36 years later.
Federal judges to review disciplinary proceeding involving Abq. attorney
A panel of three federal judges will review disciplinary action taken against Albuquerque attorney Victor Marshall, who is accused of defaming retired state Court of Appeals Judge James Wechsler.
The state Supreme Court suspended Marshall’s law license indefinitely in January after finding he violated the judicial Code of Conduct by filing a frivolous charge, defaming a judge and engaging in conduct detrimental to the administration of justice.
The sanction is related to a motion Marshall filed in a long-running water rights case, which awarded more than 600,000 acre-feet of water to the Navajo Nation. Marshall contended a settlement in the case should be set aside because Wechsler failed to disclose he had worked for the Navajo Nation more than 40 years before approving the 2013 deal.
Much of the discussion during oral arguments on the disciplinary action centered on language Marshall used in his pleading.
“Our concern is not so much he made a claim that Wechsler had a conflict,” Supreme Court Justice Julie Vargas said at the time, “but the way that he made it.”
Vargas said Marshall implied Wechsler intentionally concealed his relationship with the Navajo Nation, ignored the law and “fixed” the case in favor of his former clients.
Wechsler had worked not for the Navajo Nation itself but a nonprofit legal aid organization known as DNA in the 1970s, according to information provided by the Administrative Office of the Courts.
Marshall argued in a motion filed in U.S. District Court late last month the sanction should be set aside, at least temporarily, to allow him to continue representing some of the same plaintiffs in a separate but related water case pending in federal court.
“Suspending Mr. Marshall from this case would cause grave injustice to his clients because they have relied on him for more than 15 years to build expertise about the federal water laws cited in the complaint,” according to the motion.
Marshall’s motion says his clients in the federal case can’t find a new attorney in time to address a pending dismissal motion, in part because many water lawyers in the state have conflicts of interest and because the clients couldn’t afford to pay the rates charged by other experienced water attorneys.
Marshall’s request for relief is based on a rule that puts the burden on him to prove his due process rights were violated during the disciplinary process or the misconduct warrants a less-severe punishment.
Marshall argues his right to due process was violated because the disciplinary panel refused to allow him to present evidence acquired after filing the motion, contending it would have proved his allegations regarding Wechsler’s potential conflict of interest were “substantially true.”
According to his motion, keeping him from providing counsel to his clients in the federal case would be an injustice — not only for them but for all water users in New Mexico and lawyers who are obligated to make arguments on behalf of their clients.
“The New Mexico disciplinary process has taken away a lawyer’s license for raising legitimate questions about the recusal of a judge,” he wrote. “These sanctions send an intimidating message to all attorneys who hold a New Mexico law license: DO NOT EVER FILE A MOTION TO RECUSE A JUDGE, BECAUSE YOU MIGHT LOSE YOUR LICENSE.”
As to the severity of the sanction, Marshall pointed to evidence in the record that an assistant counsel for the disciplinary panel originally recommended he receive a public reprimand, but the panel later elected to impose the harsher penalty, citing his lack of remorse.
“This demand for “remorse” was an attempt to coerce a confession from [him], and to force him to abandon the rights of his clients,” wrote Marshall, who has represented The New Mexican and practiced in the state for more than 45 years without prior sanction.
“I hate to see these kind of cases and a situation get this far along because normally it means there was a failure of communication,” said Gary Mitchell an attorney who serves on the Criminal Defense Lawyers Association’s strike team. The group represents attorneys facing contempt of court or other sanctions.
Mitchell said he wasn’t familiar with the facts of Marshall’s case but said the rights of the media and lawyers to be critical of government are essential to upholding the constitution.
“If the lawyers aren’t able to criticize the government through the cases they bring, that pretty well wipes out the First Amendment,” he said. “If we start getting disciplined for being critical of the government, that becomes a real problem.”
Mitchell said he could not remember U.S. District Court involvement in a state disciplinary action.
“It’s sort of rare,” he said.
William P. Johnson — Chief U.S. District Judge of the District of New Mexico — has appointed himself, Judge Kea W. Riggs and U.S. Magistrate John F. Robbenhaar to review the disciplinary proceeding against Marshall.
Johnson issued an order April 1 giving Marshall 30 days to file written material he wishes the panel to review.
Marshall may have a difficult time presenting a complete record within that period.
State Chief Justice Michael Vigil announced the sanctions against Marshall following oral arguments Jan. 12 and issued a brief order memorializing the court’s decision the following day. But the court has yet to publish a formal opinion in the case.
Meanwhile, the state’s Chief Disciplinary Counsel, Anne Taylor, has filed two motions in the state Supreme Court case, alleging Marshall’s motion for relief constitutes the practice of law in violation of his suspension. The court also is being asked to order Marshall to show why he shouldn’t be found in contempt of court for filing the motion.
The court has not taken action on those motions.
Iowa Legislature approves stiffer penalties for elder abuse, criminalizes financial exploitation
Iowa would strengthen penalties for abusing Iowans 60 or older and create a new criminal charge of financial exploitation under a bill now headed to Gov. Kim Reynolds' desk.
The legislation, a top priority of the AARP and other agencies that represent older Iowans, would increase criminal penalties for assaults and thefts against Iowans 60 or older.
It would also create a new criminal charge for "financial exploitation of an older individual" and would additionally create new criminal penalties for "elder abuse," a charge that includes emotional abuse, neglect, isolation and sexual exploitation of older Iowans.
Iowa law currently includes definitions of elder abuse but does not include criminal penalties. Under current law, Iowans who suffer elder abuse can sue and get courts to block the abuser from having contact with them or from exercising financial oversight or other types of legal authority over them.
"What this bill does is it says to those people that are looking for vulnerable victims: 'Not here. You're not going to do it here,'" said Rep. Dustin Hite, R-New Sharon, the bill's floor sponsor in the House.
The bill, Senate File 522, passed both chambers of the Iowa Legislature unanimously. With the Senate's vote Tuesday, it now heads to Reynolds for her signature.
Bill changes criminal penalties for crimes against older Iowans
The bill would establish the following criminal penalties for crimes against those 60 years and older:
- Assault of an older individual, ranging from a simple misdemeanor punishable by up to 30 days in jail and $855 in fines, to a class D felony, punishable by up to five years in prison and up to $10,245 in fines — depending on the severity of the crime.
- Theft against an older individual, which raises the penalties of Iowa's existing theft charges by one degree.
- Elder abuse, which ranges from a serious misdemeanor, punishable by up to a year in prison and $2,560 in fines, to a Class C felony, punishable by up to 10 years in prison and up to $13,660 in fines.
- Financial exploitation of an older individual, ranging from a serious misdemeanor to a class B felony, punishable by up to 25 years in prison, based on the severity of the crime.
In both chambers, Democrats joined Republicans in support, saying they wanted to see additional protections for older Iowans.
Rep. Mary Wolfe, D-Clinton, said she supported the bill because it filled some gaps in the ability to prosecute certain offenses. But she also said she is concerned that the parts of the bill that raise existing penalties for theft and assault specifically against people over 60 may not have an effect.
"I also don't think there's any evidence that enhancing penalties in that way increases protection for elderly people," she said during the March 23 floor debate in the House.
Hite said he believes the penalties should be harsher for theft or assault against older Iowans because "when somebody takes on the most vulnerable of Iowans, they deserve a harsher punishment."
According to AARP Iowa, Iowa is one of few states that don't have criminal penalties for elder abuse.
"Passage of this bill comes at a critical time when elder abuse is on the rise in Iowa and across the country, and we are grateful vulnerable older Iowans will now have better protection from elder abuse," AARP Iowa State Director Brad Anderson said in a March 23 statement.
How common is elder abuse?
The most reported form of elder abuse is financial exploitation, although it often occurs with other forms of emotional, physical or sexual abuse, according to AARP Iowa. Those who commit abuse can be strangers or, more commonly, trusted people such as family members.
Iowa currently criminalizes the abuse of dependent adults, but advocates say the new penalties are needed to fill in gaps that leave out certain older Iowans.
The Iowa Department of Human Services saw a 37% increase in dependent adult abuse reports from the first half of 2020 to the second half of 2021, according to DHS statistics.
Elder abuse affects about one in 10 people 60 and older but is often under-reported, according to the National Council on Aging.
Thursday, April 7, 2022
Colorado’s controversial public guardianship program scrutinized in legislative budget battle
Lawmakers who want to stop the program’s expansion are concerned about deaths of 14 wards in two years and a lack of oversight.
|The Colorado Capitol on Dec. 10, 2021. (Olivia Sun, The Colorado Sun via Report for America)|
A controversial plan to expand Colorado’s fledgling public guardianship program for people who have no family or friends to speak for them is in jeopardy as state lawmakers debate the state’s budget.
The Office of Public Guardianship, which began taking wards in 2020, is now making decisions for about 70 people who are unable to care for themselves because of age, disabilities or medical conditions. The program has so far operated only in Denver, but is seeking an additional $770,000 to expand to two other regions — the three counties in the judicial district based in La Junta and the six counties in the district based in Montrose.
The plan to expand has divided Colorado lawmakers, who have yet to make a final decision on the program’s funding. It is among the pieces of the $36.4 billion budget bill the legislature is trying to iron out as it heads toward final approval.
The House last week stripped the $770,000 needed to add staff and expand the program to two more jurisdictions. The 35-29 vote followed impassioned debate among a handful of lawmakers, including those who pointed to the deaths of 14 wards during the program’s short but troubled tenure.
In addition to the deaths, lawmakers are concerned about complaints from Denver Health that paid public guardians ignored requests to visit wards in the hospital and had abandoned wards after they died. One guardian was escorted from the hospital because of belligerent behavior with staff, Denver Health officials said.
“That’s not something I want to multiply into other jurisdictions,” said Rep. Stephanie Luck, a Republican from Penrose.
Rather than expanding the current office, Luck wants to look at more comprehensive programs that go beyond a government agency only making legal and health decisions. “That’s not really providing community for these people,” she said. “Those people are still living in isolated situations. They are still not being visited. They are still not being cared for. There are other models that we could employ to ensure that people are actually being embraced in our communities and finding a family, even if it’s not biological.”
But on Tuesday, a Senate committee restored funding for the program expansion, wiping out the House amendment before sending the budget bill to the full Senate. Still, the debate isn’t over, as the budget is up for discussion on the Senate floor this week and then will head next week to the Joint Budget Committee to sort out the disagreements between the Senate and the House.
A mother of a teenage son with Down syndrome and autism who might one day need a guardian has been the program’s harshest critic. Maureen Welch asked senators Tuesday not to expand the program, which she has called dangerous and haphazard. Instead, Colorado should push pause and create structure and oversight to ensure that guardians cannot take advantage of vulnerable wards, she said.
Additional funding would allow the Office of Public Guardianship to expand its staff to 11 from seven, including hiring guardians in southeast and southwest Colorado. The new funding would come July 1, at the start of the state fiscal year, and only six months before the office is required by law to submit a report to the legislature about its pilot program.
The legislature is set to decide in January whether to make the office permanent, a process spelled out in the 2017 law that created the pilot program. The original bill called for installing public guardians in three districts, but the program has been stalled by the pandemic and funding issues.
Six months is hardly enough time to produce adequate data to show whether the program is helping people in two additional regions, Welch argued. And she questioned what would happen to new wards in rural Colorado if lawmakers decided not to make the office permanent.
“This is not the time to expand the program,” she said.
But some lawmakers want the program to expand this summer in the hopes of getting additional data by January. That includes Sen. Chris Hansen, a Denver Democrat and vice chair of the Joint Budget Committee, which included the expansion funding in the budget in the first place.
“Here’s our opportunity to get some data from those parts of the state, see how it’s working in a more rural context, and then have a better chance of evaluating the program,” Hansen said. “There have been issues raised with this program, and I think that’s what we were trying to do, to get a more full assessment of what’s working and what’s not.”
Regarding the 14 deaths, Hansen and Rep. Julie McCluskie, a Dillon Democrat, urged others not to jump to conclusions. While 14 deaths out of about 80 wards in the past two years is significant, lawmakers should consider the circumstances, McCluskie said.
“We know that this population is elderly, medically frail or health challenged,” she said, noting that higher rates of mortality were expected among wards compared with the general population.
The guardianship office told The Sun the deaths were due to medical conditions, and the median age of wards who died was 67.
Despite the controversy, no one has argued that Colorado doesn’t need a program to help people who cannot make their own decisions.
A state survey taken before the guardianship office was created found that 1,000 to 1,300 adult guardianship cases were filed in courts across Colorado each year. Colorado law says a person who is concerned about another’s welfare can petition for guardianship. If a judge is convinced a person needs a guardian, the judge can appoint one who is then responsible for financial, medical and other decisions for their ward. But often, no relatives or friends are found.
Without a public guardianship office, hospitals, long-term care facilities and others must seek guardianship for their abandoned patients through probate court, a process that’s costly and time-consuming.
The legislature approved the pilot program in 2017, then funded the Office of Public Guardianship in 2018. The office hired an executive director at the end of 2019 and began taking on wards in April 2020.
Lawmakers arguing against the expansion said they do not want to do away with the program entirely.
“Press pause on this program,” said Rep. Meg Froelich, a Greenwood Village Democrat. “There is a lack of transparency, a lack of responsiveness. We’re not saying that there’s not a desperate need, but because it serves such vulnerable people, we absolutely have to get it right.”
Staff writer Jesse Paul contributed to this report.
Connecticut judge who collected as much as $400K while missing 2 years of work tells state Supreme Court she should not be disciplined
Judge Alice Bruno told the state Supreme Court on Tuesday that she should not be disciplined for missing more than two years of work while collecting as much as $400,000 in salary because she suffers from a disabling health condition that state judicial administrators exacerbated by refusing to provide her with some sort of accommodation.
It was clear from the outset Tuesday that the court was on new ground. the purpose of the hearing was to give Bruno an opportunity to argue why she shouldn’t be disciplined.
In spite of its instruction that Bruno answer questions in person, her
lawyer filed 11th-hour motions a day earlier asking that she be excused
from appearing and that two sets of her medical records — which underpin
the proceeding — be sealed from the public and kept out of the
discussion. Bruno’s lawyer, Jacques Parenteau, also told the justices
that she intends to retire on a medical disability — something Chief
Justice Richard Robinson said could make the hearing and questions about
discipline or removal moot. (Click to continue reading)
The Difference Between Supported Decision Making, Conservatorships and Power of Attorney
Distinctions between the legal designations reveal an evolution in the disability community
by Hannah Herner
Conservatorships have been in the spotlight lately, but they’re a concept that the disability community has reckoned with for decades.
Just last month, news landed that iconic downtown business Ernest Tubb Record Shop and its building are up for sale after 75 years on Lower Broadway. Phillip McCormick is the brother and conservator of longtime Ernest Tubb owner David McCormick. Phillip recently brought charges against the people the shop was sold to in 2020, JesseLee Jones and Emily Ann Cousins, who had power of attorney for David at the time of the sale. Phillip alleges that the couple took money from David’s personal account without his knowledge. Jones and Cousins deny wrongdoing — the two say David McCormick was fully aware of the transactions.
Will McMillan has Down syndrome. When he turned 18, rather than a conservatorship, he and his family opted to abide by a concept called supported decision making. Instead of having a conservator, McMillan consults with a trusted circle of people before making big decisions.
“I’ve learned a lot from my friends who make their own decisions,” McMillan says. “I made my decision to actually be independent and also supported from parents.”
When McMillan goes to the doctor, his father usually goes with him. But because he’s over 18 and not in a conservatorship, McMillan has to give permission to have another person in the room. He and his mother have joint access to his bank account.
Supported decision making, power of attorney and conservatorship all fall under the umbrella term “decision-making supports.” While there are statutes in states including Indiana, Louisiana, Texas and Wisconsin, supported decision making is something that isn’t yet embedded in Tennessee law. What is codified in the state, however, is the idea that in all of this, the court should abide by the “least restrictive alternative” for those with disabilities.
“We would like to see supported decision making adopted into Tennessee law at some point, but for now, our focus is on fulfilling the needs of individuals and families who are exploring options when it comes to making decisions,” says Penny Johnson, coordinator for the Tennessee Center for Decision-Making Support. “We trust that the work we’ve been doing on a daily basis since 2020 will showcase the need for Tennessee law to include [supported decision making] in the near future.”
Erica Reed is senior associate counsel for the Tennessee Department of Intellectual and Developmental Disabilities. She warns that when someone is granted power of attorney, while less restrictive than a conservatorship, it’s still significant. A person with power of attorney can access the individual’s bank account and health care records — and act on their behalf on basically anything, Reed says.
“With a power of attorney, the individual can still make his or her own decisions,” says Reed. “They’re not giving that up. But they are giving that other person that ability to make it for them.”
In a conservatorship — the type of guardianship agreement that entered international headlines last year due to the case of pop star Britney Spears — rights are taken away. The court is meant to go category by category and remove an individual’s rights only when absolutely necessary to keep the person safe. If a right isn’t specifically transferred to a conservator — like property ownership or the ability to make financial decisions — it remains with the individual. The court also appoints a guardian ad litem, who has the duty of considering whether a prospective conservator is a good fit for the role. If someone doesn’t have a person in their life to serve as a conservator, public guardians, law offices and advocacy groups such as The Arc Tennessee can step in.
“Decades ago, you would see orders that would refer to a full conservatorship, and that is basically when the courts would just strip away all rights to the person and give those to a conservator,” Reed says. “That is not something that you see very much at all in modern times, because the courts, they’ve evolved — just as we’ve evolved in society — realizing that just because a person may have a limited capacity in one area, that doesn’t mean that he or she needs all of their rights and decision-making authority stripped from them.”
Will McMillan’s mother Elise McMillan serves as co-director for Vanderbilt Kennedy Center for Excellence in Developmental Disabilities. She says supporting Will in his decision-making reminds her that to some degree, all of us use supported decision making when making big life decisions.
“We all need support in different areas,” she says. “And it’s the same for people with disabilities too. But we have to give folks also the opportunity to make mistakes. Will has taught our family a great deal. And one of the things we learned from him early on is that he has his own life to lead. He can make his own decisions.”
For more information on decision-making support, visit tndecisionmaking.org
Wednesday, April 6, 2022
National Guardianship Network Releases New Video with Recommendations for Reforming Guardianship System
Contact: David Card
Washington, DC – In May 2021 the National Guardianship Network (NGN) held a successful weeklong virtual summit around the theme of Maximizing Autonomy and Ensuring Accountability and adopted 22 recommendations. In partnership with the Syracuse University College of Law, the Summit brought together attorneys, judges, advocates, scholars, and family members to discuss the current state of the nation’s guardianship and conservatorship system and to develop recommendations for future reform.
Today, NGN released a new video that showcases the highlights of the Fourth National Guardianship Summit and the 22 recommendations to reform and improve state guardianship systems. The video also addresses the history of these national summits, the importance of the Fourth Summit and the main topics discussed during the Summit:
- Rights of Persons Subject to Guardianship
- Supported Decision-Making
- Limited Guardianship, Protective Arrangements, and Guardianship Pipelines
- Rethinking Monitoring and Addressing Abuse by Guardians
- Fiduciary Responsibilities and Tensions
- Developing a Guardianship Court Improvement Program
In addition to this video, the adopted recommendations, along with a number of papers written specifically for the Summit, will be published soon in a Symposium issue of the Syracuse Law Review. Summit documents are available from the Syracuse College of Law.
The National Disability Rights Network (NDRN) and the American Bar Association – Commission on Law and Aging led NGN’s efforts to organize the Summit. Ten other organizations joined the fourteen NGN members in sponsoring the Summit. The State Justice Institute and the Borchard Foundation Center on Law and Aging also provided funding.
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Florida personal injury attorney disbarred after mowing down 4 people: cops
By Emily Crane
|Florida attorney Beatrice Bijoux was disbarred after allegedly hitting four pedestrians on a sidewalk with her car in Fort Lauderdale. Stuart Police Department|
A Florida personal injury attorney has been disbarred after she was accused of mowing down four people in a parking lot because of “voices” in her head, police said.
Beatrice Bijoux, 31, was charged with four counts of attempted murder after she allegedly mounted the sidewalk and struck the pedestrians outside a Fort Lauderdale grocery store back in February.
She told cops that “voices in her head had told her to kill the people,” according to an arrest report obtained by the Miami Herald.
Bijoux, who was allegedly driving at about 35 mph, made no attempt to slow down during the attack, police said.
At one point, surveillance video showed her “reversing at a high rate of speed” before she allegedly tried to strike another pedestrian, according to cops.
The attorney has since been disbarred after the state Supreme Court granted the Florida Bar’s emergency request to suspend her.
Bijoux, who once represented clients injured in such incidents, was admitted to the state’s bar association back in 2016.
She is being held without bond after pleading not guilty to one count of aggravated assault with a deadly weapon, one count of high speed or wanton fleeing and four counts of attempted murder.
Embezzlement from vulnerable adult leads to guilty plea, probation
|News File Photo The Alpena County courthouse appears in this August 2021 News archive photo.|
ALPENA – A helper who stole thousands of dollars from a man debilitated by a stroke won’t have to serve jail time, thanks in part to the compassion of her victim.
Natasha Kaercher, 33, pleaded guilty in December to embezzling from the bank account of an older man for whom she ran errands and performed other household tasks.
Kaercher’s unapproved withdrawals from the man’s account began shortly after a stroke landed him in a nursing home, public conservator Nicki Janish said at Monday’s sentencing hearing in Alpena’s 26th Circuit Court.
Kaercher’s employer, who knows about the theft, has entrusted her with a managerial position, and Kaercher has worked to be able to pay back most of the more than $20,000 she stole, said defense attorney Julie Miller.
In a statement on behalf of the victim, Janish said the theft has taken away not only the man’s money but also his trust in the people on whom he has to rely for his care.
In a visit to the man at his nursing home last week, Janish had to tell the man he had to sell his house to pay his bills, Janish told the court.
The man told her he was upset about the house, but he was also worried about Kaercher’s children.
“He broke down in tears,” Janish told Judge Ed Black, “and said, ‘I’m not the only victim.'”
Sentencing Kaercher to three years of probation, Black admonished the
defendant that sympathy for her children would not keep him from
putting her in jail should she violate probation.
Tuesday, April 5, 2022
Montcalm Co. Defendants Who Stole from Elderly Woman Sentenced
Agency: Attorney General
Media contact: AGPress
Public inquires: 517-335-7622
March 31, 2022
LANSING - Three people charged for embezzling thousands from a 90-year-old woman in Montcalm County were sentenced, Michigan Attorney General Dana Nessel announced today.
Earlier this month, a jury convicted Teri Miller of the following:
- one count of embezzlement from a vulnerable adult, between $50,000 and $100,000;
- one count of embezzlement from a vulnerable adult, $1,000 or more but less than $20,000;
- one count of using a computer to commit a crime;
- three counts of using a financial transaction device without consent; and
- one count of tax - failure to file.
This morning, Judge Ronald Schafer sentenced Miller to 57 months to 15 years on the embezzlement between $50,000 and $100,000 count, as well as 14 months to five years on the embezzlement of $1,000 or more but less than $20,000 count. The sentences are to be served consecutively for a total of 71 months' incarceration. She was also ordered to pay $97,798 in restitution to the victim's estate.
Miller still faces one count of resisting or obstructing a police officer, which stemmed from her arrest on the embezzlement charges. That charge is pending in a separate case.
Her husband, Kelly Miller, as well as her brother, Tim Riva, were also sentenced Thursday.
Riva previously pleaded no contest to:
- one count of receiving stolen property, $200 or more but less than $1,000; and
- one count of embezzlement from a vulnerable adult, $200 or more but less than $1,000.
Kelly Miller previously pleaded no contest to:
- two counts of receiving or concealing stolen property, $200 or more but less than $1,000.
Judge Schafer sentenced Kelly Miller to 59 days' jail with credit for 59 days served, three years' probation, and ordered him to pay $2,700 in restitution to the victim's estate.
Riva was ordered to pay $2,000 restitution to the victim's estate and is under probationary supervision until the restitution and other court costs and fines are paid in full.
UPDATE ON FINANCIAL ELDER ABUSE CASES
These latest sentencings bring the total convictions secured by Nessel's Financial Crimes Division to 15 in cases involving elder abuse since 2019.
"When I launched the Elder Abuse Task Force, we understood that financial exploitation of seniors in our state was a significant concern," Nessel said. "Too often our state's most vulnerable are exploited for their resources. My Financial Crimes Division remains committed to securing accountability in these cases and to our priority of protecting the elderly."
In addition to recent convictions, the Division successfully prosecuted a financial elder abuse case that is now the controlling caselaw for vulnerable adult prosecution. In August, the Michigan Court of Appeals (COA) upheld the conviction of a West Michigan man sent to prison for embezzling hundreds of thousands of dollars from an elderly widow.
Gary Haynes' conviction came after he stole over $300,000 from a widow in her 90's while serving as her financial advisor. One of Haynes' arguments on appeal was that there was insufficient evidence that the victim was a vulnerable adult, arguing, in part, because she was mentally capable of handling her own affairs. In affirming the defendant's conviction, the COA found that there was strong evidence by which a jury could find, beyond a reasonable doubt, that the victim was a vulnerable adult because she walked with a cane, needed help buying groceries, getting to appointments, doing chores around the house, and needed help paying her bills online because she was not familiar with computers.
More than a dozen financial elder abuse cases remain open and ongoing. The newest prosecution is against Craig Macauley in Kalamazoo County District Court.
He's charged with seven counts of embezzlement from a vulnerable adult, $1,000 to $20,000. The Department alleges Macauley took over $45,000 from an elderly woman who depended on others to assist with tasks, like driving her to appointments. Additionally, Macauley allegedly transferred the title of the victim's truck to himself, maxed out her credit cards and overdrew her bank account.
Macauley is scheduled for a preliminary exam before Judge Christopher T. Haenicke April 13.
More information on the Elder Abuse Task Force is available online. Those interested in updates are welcome to subscribe to receive the newsletter.
Disbarred Lawyer Facing New Charges From San Francisco DA After More Victims Found
The charges against Russell Robinson add to the initial charges in November that he ignored his June disbarment and continued to practice law, Boudin said, adding that more victims have stepped forward in the past five months to claim they had retained Robinson’s services as an attorney.
In a news release from Boudin’s office, the new allegations include Robinson pretending to clients that their cases were ongoing after they had actually ended years earlier in dismissal or other court orders.
Robinson is alleged to have never told the clients that he was suspended from practicing law in June 2019 and disbarred in June 2021.
“The public should be able to trust lawyers to follow the law, but here a disbarred attorney exploited his clients by continuing to practice as an attorney,” Boudin said in the statement. “We are glad that our initial announcement filing charges helped identify additional victims, so we can seek justice for everyone he has wronged.”
new charges against Robinson include two felony counts of unauthorized
practice of law and two felony counts of willful failure to comply with
the California Supreme Court’s disbarment order.
Cornerstone retirement center caretaker jailed for alleged assault of dementia patient in Texarkana
By Field Walsh
A woman working at Cornerstone retirement center in Texarkana was arrested last week for allegedly assaulting an 87-year-old woman suffering from dementia.
Sharee Shantrell Bryant, 48, was allegedly caught on video entering the woman’s room and slapping her across the face at Cornerstone on Moore’s Lane in Texarkana, Texas, according to a probable cause affidavit.
The woman’s son placed a camera inside his mother’s room after noticing several bruises on her. Texarkana, Texas, Police Department responded to a call from an administrator at the nursing facility about the alleged abuse Thursday. An officer viewed the video with the elderly woman’s son and turned the case over to a detective.
Bryant was arrested Friday on a charge of injury to a child, elderly or disabled person. Her bond is set at $200,000 and she is currently being held in the Bowie County jail.
Monday, April 4, 2022
U.S. Attorney Announces Indictment Of Georgia Man For Laundering Proceeds From Fraud Schemes Perpetrated By Nigeria-Based Criminal Enterprise
Defendant Controlled at Least 15 Bank Accounts With Deposits Totaling Over $8 Million, Which Primarily Consisted of Proceeds of Fraud Schemes
Damian Williams, the United States Attorney for the Southern District of New York, and Patrick Freaney, Special Agent-in-Charge of the New York Field Office of the United States Secret Service (“USSS”), announced the indictment of UWEMEDIMO UMOREN in connection with his role in a fraud and money laundering conspiracy based in Nigeria, involving the theft of millions of dollars from victims across the United States. UMOREN was previously arrested in Georgia on December 17, 2021.
U.S. Attorney Damian Williams said: “Uwemedimo Umoren, as alleged, was a member of a multimillion-dollar fraud enterprise built on the cruel exploitation of elder adults. Among other tactics, members of Umoren’s prolific fraud scheme posed as romantic interests to their victims, with the sole purpose of syphoning their bank accounts. We thank our outstanding law enforcement partners at the United States Secret Service for their continued vigilance in the effort to protect elder Americans from fraud.”
Secret Service Special Agent-in-Charge Patrick Freaney said: “As alleged, the defendant participated in multiple fraud schemes, including romance and investment scams that targeted some of our most vulnerable community members, the elderly. While the defendant in this case will answer the charges brought against him in the Southern District of New York, the threat posed by those who seek to financially victimize the elderly persists. Although elder fraud endures, the U.S. Secret Service remains vigilant in identifying and investigating those who wish to defraud the elder population out of their retirements and savings.”
According to allegations in the criminal complaint and the indictment filed against UMOREN:
From at least in or about 2016 through at least in or about December 2021, the defendant was a member of a criminal enterprise (the “Enterprise”) based in Nigeria that committed a series of business email compromises and investment and romance scams against individuals and businesses located across the United States. The objective of the Enterprise’s business email compromise fraud scheme was to trick and deceive businesses and individuals into wiring funds into accounts controlled by the Enterprise through the use of email accounts that “spoofed” or impersonated employees of a victim company or third parties engaged in business with a victim company. The Enterprise conducted the investment scams by contacting victims by phone and email regarding purported investment opportunities that the members of the Enterprise said could generate millions of dollars in returns. Finally, the Enterprise conducted the romance scams by using electronic messages sent via email, text messaging, or online dating websites that deluded victims, many of whom were vulnerable older men and women who lived alone, into believing the victim was in a romantic relationship with a fake identity assumed by members of the Enterprise. Once members of the Enterprise had gained the trust of the victims, they used false pretenses to cause the victims to transfer money to bank accounts controlled by members of the Enterprise.
UMOREN received fraud proceeds from victims of the Enterprise in more than a dozen business bank accounts that he controlled in Georgia. The business bank accounts were opened in the names of companies formed by the defendant that were purportedly involved in, among other things, automobile sales and health care. From in or about 2016 through at least in or about December 2021, UMOREN controlled at least 15 bank accounts that received deposits totaling over approximately $8 million.
Once UMOREN received fraud proceeds in bank accounts under his control, he withdrew, transported, and laundered those fraud proceeds to other members of the Enterprise abroad. The defendant laundered the fraud proceeds through his businesses by, among other things, using the proceeds to purchase automobiles and other goods from U.S.-based suppliers and distributors of such products and shipping those products to Nigeria and elsewhere. The defendant’s transactions had the appearance of legitimate business transactions when, in fact, the products had been purchased using the proceeds of fraud schemes. This trade-based money laundering scheme was designed to obscure the origin of the fraud proceeds as well as the identity of the ultimate beneficiaries of these schemes.
* * *
UWEMEDIMO UMOREN, 60, of Hoschton, Georgia, is charged with one count of conspiracy to commit wire fraud and one count of conspiracy to commit money laundering, which each carry a maximum sentence of 20 years in prison; and one count of conspiracy to receive stolen money, which carries a maximum sentence of five years in prison. The case is assigned to U.S. District Judge Victor Marrero.
The maximum potential sentences are prescribed by Congress and are provided here for informational purposes only, as any sentencing of the defendant will be determined by the judge.
Mr. Williams praised the outstanding investigative work of the USSS. Mr. Williams also thanked the USSS Field Office in Atlanta, Georgia, for its assistance in the investigation of this case.
The prosecution of this case is being handled by the Office’s Complex Frauds and Cybercrime Unit. Assistant United States Attorney Juliana N. Murray is in charge of the prosecution.
 As the introductory phrase signifies, the entirety of the Complaint and Indictment and the description of the Complaint and Indictment set forth herein constitute only allegations, and every fact described should be treated as an allegation.
Family Court Judge Resigns Amid Accusation of ‘Groping’
By Alice Giordano
A Massachusetts family court and probate judge accused of inappropriate touching of an employee has resigned.
Judge Paul Sushchyk turned in his letter of resignation to Massachusetts Gov. Charlie Baker earlier this week on Mar. 28. Sushchyk’s alleged misconduct happened outside of the courtroom.
Sushchyk has been the subject of an ongoing investigation that started in 2019 after a female co-worker accused him of groping her buttocks.
At the time, the woman served as the field coordinator for the Massachusetts Administrative Office of the Courts. She was also a staff liaison to the Massachusetts Court’s Judicial Education Committee.
In the complaint she filed against Sushchyk, the female court employee accused Sushchyk of groping her buttocks using what she said felt like “a full hand.”
Sushchyk’s attorney, Michael Angelini of the Worcester law firm Bowditch & Dewey, did not return phone calls from The Epoch Times about the allegations.
According to court records, the incident is alleged to have occurred at a dinner event that was part of a probate and family court conference for judges that she, Sushchyk, and other Massachusetts court officials attended.
In her complaint, the worker named potential witnesses all of whom were other court employees, and also produced evidence of a text message she sent to her sister immediately following the alleged incident.
“While at the bar after dinner one of the newer judges full palmed my ass. I am still reeling a bit today from it. Kinda thought maybe it was a mistake until today he spent the day hovering uncomfortably around me,” she texted.
In a formal response to the complaint against Sushchyk, Angelini wrote that his client “denies that he had any physical contact whatsoever with any part” of the woman’s body.
However, in a written statement he gave nearly a year earlier and shortly following the alleged groping incident, Sushchyk wrote that he had come into “momentary contact with a portion of her lower body” in an attempt to steady himself.
“I was somewhat unsteady on my feet, feeling the effect of past hip replacement surgery, the long day, the evening meal, and the alcohol consumed,” Suschyk wrote.
The Massachusetts Commission on Judicial Conduct found the contradiction enough to recommend that Suschhyk be suspended without pay during the continued investigation into the alleged incident.
“He falsely claimed to the court administration investigating the matter that he had a recollection of incidental contact, a falsehood he knowingly provided in an attempt to exculpate himself.
“Such misdirection during the investigation not only evinces a consciousness of guilt, but is wholly inconsistent with the oath of office and ethical conduct required of a judge,” the commission wrote in its findings.
However, the Massachusetts Supreme Judicial Court, which has the authority to impose administrative discipline against state judges, did not follow the commission’s 2020 recommendation and instead allowed Sushchyk to continue receiving his annual $185,000 judge’s salary while keeping him on administrative suspension during the investigation.
It wasn’t until recently on Mar. 23 that the court ordered Sushchyk be taken off the state’s payroll and issued a ruling that it found there was sufficient evidence that Sushchyk engaged in “intentional, nonconsensual, and unwelcome touching,” of his female co-worker.
The court did not recommend terminating Sushchyk as a judge.
In its decision, the court indicated that Sushchyk was only being suspended without pay for a “reasonable time to permit the executive and legislative branches to consider, ‘if they wish,’ whether [Sushchyk] should retain his judicial office.”
It also did not follow the judicial conduct commission’s recommendation that Sushchyk be publicly reprimanded and be ordered to reimburse the state for the commission’s investigation.
“We do not adopt the commission’s recommendations that the respondent be censured publicly and ordered to pay the commission’s costs because we believe the objectives of those sanctions effectively have been achieved by the sanction we have imposed,” it wrote in its order.
Sushchyk served less than a year on the bench before he was accused.
Iowa proposal gets tough on elder abuse
People who abuse the elderly would face possible prison time under a bill that unanimously passed the Iowa House last week.
Why it matters: This type of offense is often hidden or unreported, and costs billions of dollars annually to a growing segment of the population, according to research from the National Council on Aging.
Catch up fast: Iowa already has among the best elder abuse protections in the nation, according to an analysis published last year by personal finance site Wallethub.
- In the last decade, Iowa passed laws that define elder abuse and give courts more authority to enforce power of attorney contracts.
Yes, but: The state's legislation doesn't include criminal provisions with consequences like mandatory sentencing requirements. And specific cases involving things like financial exploitation are sometimes outside the reach of the criminal system.
- It's the biggest remaining legal gap in the state's elder protection system, AARP Iowa said in a February news release.
Zoom in: Assault and theft against a person 60 or older would come with enhanced penalties under the bill.
- Financial exploitation would become a serious misdemeanor or felony.
What’s ahead: The bill is back before the Senate where it must pass again before it can make its way to the governor.