A Stakeholder Commission Correctly Diagnoses The Problems With Nursing Homes and Covid-19, But Soft-Peddles The Solutions

by Howard Gleckman

Charlie Campbell accompanies his mom Dorothy Campbell to see her husband Gene Campbell through his room window at the Life Care Center nursing home in Kirkland, Washington. (Photo by JASON REDMOND/AFP via Getty Images)

A national Coronavirus Commission on Safety and Quality in Nursing Homes has identified more than two dozen major flaws in the response of government and the nursing home industry to the covid-19 pandemic. However, the panel, created by the Trump Administration, was relatively passive in its recommendations for how to fix those shortcomings.  

It feels a bit like reading the report of a physician who correctly diagnoses a very complicated disease for a  non-compliant patient, but whose recommended treatment is not aggressive enough to cure the condition.

The panel created a valuable roadmap for ways to correct some of those shortcomings. Unfortunately, the political staff at the Centers for Medicare and Medicaid Services (CMS) that commissioned the report immediately attempted to recharacterize it as “a resounding vindication” of the Trump Administration’s own response to the pandemic.

If the Administration truly believes its actions to date have been a success and refuses to acknowledge shortcomings, it is hard to imagine it would be willing to adopt many of the recommendations. Yet, public relations spin won’t change an environment where as many as 76,000 residents and staff have died from the pandemic.   

Specific steps

In many respects, the report is remarkable. The commission put together a 186-page report in just three months. It describes 27 broad ways, and 100 specific steps, that government and nursing facilities could take to reduce infections even as they recognize the need for residents to resume social contact with family members and each other. 

The recommendations call for reform in several broad areas:

·      Improved access to testing and personal protective equipment.

·      Recognition of the need to balance infection control with quality of life of residents.

·      More transparent communication with residents, their families, and the public.

·      Better training and support for care workers.

·      Recognition of the need to improve the physical infrastructure of many nursing homes.

·      Better data-driven guidance for nursing home operators

·      More funding.

The report does a good job identifying where government and the nursing homes industry failed to respond to the pandemic. But in too many cases, it relies on unenforceable federal guidance to achieve its goals, rather than a more robust mix of safety mandates and additional resources.

For instance, under current regulations, nursing homes are required to have only a part-time staffer responsible for infection control. Importantly, the report identifies this as one of the reasons why many facilities still struggle to manage the pandemic. But it does not urge CMS to mandate a full-time infection control officer for nursing facilities. Instead, it calls on the agency to identify resources facilities could use to hire such a staffer. The problem: These resources don’t exist.

PPE and testing, still

The panel was made up of 25 members, including industry, consumer, and workforce representatives, state officials, and academic experts. Building consensus among such a diverse group in such a short time probably was impossible. Only 13 members fully endorsed the report, 11 agreed but with reservations, and one— Eric Carlson of the advocacy group Justice in Aging—refused to endorse it.

In the short-term, the report urges the CMS to “assume a greater leadership role” in developing and executing a national strategy to improve access to rapid and accurate testing and personal protective equipment (PPE), enhance infection control staffing, and standardize data collection.

Perhaps more than any issue, the absence of testing and PPE has been responsible for the high number of cases and deaths in long-term care facilities. The panel is hardly the first group to call on the Administration to take the lead in addressing these gaps that have persisted for more than six months. Will it have any more impact?

In the longer-run, the commission urges major reforms in training and resources for staff as well as redesign of facilities to reduce the spread of infectious diseases. However, the commission stopped short of making more specific, but more controversial, recommendations such as increasing pay for direct care workers or restructuring the entire funding model for nursing homes.

Most disappointing

Most disappointing, though not surprising, was the Administration’s response. It insisted the report validated steps it already has taken in response to pandemic, something the commission did not do, or even attempt to do. Commission member David Grabowksi, a professor of public health at Harvard, said on Twitter, “Purpose of report was to provide CMS with roadmap out of crisis, not evaluate federal response.” And, he adds, “Lots of work to do.”

Yes, there is. At this point. It seems unlikely that he Trump Administration will act on many of the commission’s recommendations. Perhaps the next Administration will.

Full Article & Source:

A Stakeholder Commission Correctly Diagnoses The Problems With Nursing Homes and Covid-19, But Soft-Peddles The Solutions

Judicial 'inappropriate conduct' is broader than isolated incidences, panel finds

Click to Watch Video

Washington (CNN)A special US judiciary working group set up last December after a prominent appeals court judge was accused of sexual harassment reported on Monday that "inappropriate conduct" in the nation's courthouses is "not limited to a few isolated instances."

Yet the eight-member group -- which met with scores of former and current employees of the judiciary and invited comment nationwide -- did not detail the magnitude of employee abuse in the US judiciary beyond saying it was "not pervasive." The group also did not note whether, during its five months of study, any action was taken against individual judges or other court employees.

The working group, which was established by Chief Justice John Roberts, made several recommendations in its report, including that:

• judges should put a greater priority on improving workplace culture
• the code of conduct should be revised to make clear what behavior is prohibited
• the complaint system should be made more transparent and accessible.

"The Code of Conduct should make clearer that judges cannot turn a blind eye to a colleague's mistreatment of employees," said the report filed to the Judicial Conference, which sets policy for the nation's federal courts.

 

The federal judiciary's #MeToo movement began after former law clerks and other staffers went public with sexual harassment claims against US Appeals Court Judge Alex Kozinski, who had served for more than 30 years in California.

 

Kozinski, who had been subject to misconduct allegations in 2009, retired in December after the new claims were made, beginning with a Washington Post story. A formal misconduct complaint was filed, but judicial officials declined to investigate because Kozinski retired.

 

A CNN special report in January, examining about 5,000 judicial orders arising from misconduct complaints over the past decade, found that rarely do the judges overseeing the complaint system find that a claim -- by a lawyer, litigant or employee -- warrants an investigation. Even rarer is for any judge to be disciplined. In most cases when a judge faced serious scrutiny, the CNN report found, the judge retired and ended all disciplinary proceedings.

 

Some lawyers and law professors who have spoken out about flaws in the judiciary's misconduct-complaint system and tracked the working group's progress praised its initial recommendations Monday yet noted the lack of findings about the scope of the problem.

 

"We really don't know anything more about the nature and extent of the problem," said University of Pittsburgh law professor Arthur Hellman, who has long studied federal courts and misconduct issues. Hellman wondered whether other reports of egregious behavior by a judge had emerged. "It's very troubling that we don't have an answer to that question," he said.

 

But Hellman lauded the group for recommending that avenues for filing complaints be clarified.

 

Washington lawyer Jaime Santos, a former law clerk on the 9th US Circuit Court of Appeals, where Kozinski was based, said she was pleased that more training was recommended, as well as greater transparency, so that the system encourages victims to come forward.

 

The CNN review found that while 1,000 orders related to misconduct are posted annually on federal court websites, they contain scant details and are not categorized in a way that would separate frivolous cases from those with merit. Simply filing a legitimate grievance can be difficult, as forms and instructions are not easily retrieved and explained throughout the 13 regional circuits.

 

The report released Monday acknowledged that people with valid complaints sometimes hit roadblocks in the judicial bureaucracy.

 

"The Working Group received anonymous anecdotal reports about harassment or other inappropriate behavior that were not properly addressed," the report said. "It is therefore vital that judges and court executives ensure, through educational programs, performance reviews, and other mechanisms ... that judges, executives, supervisors, and managers at every level throughout the judiciary demonstrate the same strong commitment to workplace civility."

 

The report also noted that, as in the Kozinski situation, any investigation or discipline for a judge is generally halted if the judge retires. The report noted that law clerks "expressed concern about the seeming lack of punishment for a judge who, under allegations of serious misconduct, retires or resigns and thereby terminates the disciplinary proceeding."

 

The Washington Post story that first brought attention to Kozinski highlighted an account from a woman who said that the judge, based in Pasadena, California, had asked her to look at pornographic images on his office computer. Several other women subsequently came forward with allegations about misconduct.

 

Kozinski resigned shortly thereafter, saying he "may not have been mindful enough of the special challenges and pressures that women face in the workplace."

 

When reached for comment on Monday, Kozinski's lawyer, Susan Estrich, responded in an email that Kozinski had no further comment. She added that "he denied the substance of the charges" and had resigned because "he did not wish to burden the judiciary or his former clerks with [an] investigation."

Full Article & Source:
Judicial 'inappropriate conduct' is broader than isolated incidences, panel finds

Panel fields input on adult guardianship system, plans Santa Fe meeting Friday

A commission tasked with studying the state’s guardianship system for adults who lack the capacity to make decisions about their own care and financial management has been gathering public input from around the state on how courts can improve the way they handle these sensitive cases.

A legal guardianship — usually for an elderly person, or a person with mental illness or a developmental disability — removes some of a person’s rights and often involves family disputes.

State Sen. Gerald Ortiz y Pino D-Albuquerque, one member of the commission, said the panel has heard about several frustrations that family members and others face while trying to navigate the guardianship system. One of the main issues raised so far, he said, is that confidentiality in the cases — aimed at protecting the privacy of people with guardians — makes it difficult for family members to get information about how a case is proceeding or the care of a loved one.

The 16-member New Mexico Adult Guardianship Study Commission, appointed in April, will hold a public meeting Friday in Santa Fe — its fourth in the state but its first in the city — to collect comments from local people on how to overhaul the system.

The commission is scheduled to give an initial report to the state Supreme Court in October.

Ortiz y Pino said some of the concerns raised about the guardianship system involve procedural barriers and delays. For instance, he said, court-appointed guardians are required to file annual reports disclosing fees and other information, but the court does not have a system in place for ensuring the reports are filed and that the information in them is accurate.

And, he said, hospital representatives in Alamogordo told the panel that when they petition the court to appoint a legal guardian for a patient who cannot make medical or financial decisions, it can take up to two months for a hearing to be set.

The commission also will examine the use of mediation to try to solve some issues before a case goes to court, Ortiz y Pino said.

Right now, he said, mediation is optional, not mandatory.

Commission members Tim Gardner, president of the nonprofit advocacy group Disability Rights New Mexico, said his organization opposes guardianship petitions on behalf of people with disabilities who don’t want to give up all of their decision-making power and still have the ability to make some decisions for themselves.

For example, he said, some people are able to make decisions about health care or housing, but not financial management.

Other people, he said, might be mentally capable of making decisions for themselves, but don’t have the communication skills to voice their wishes.

“So they get put into guardianships that seem inappropriate,” Gardner said.

He proposes examining new approaches to guardianship petitions that give people involved more say and creating a system that allows for limited guardianships, which would provide safeguards but also protect a person’s independence, he said.

“Not to say we don’t think there is a role for guardianships,” Gardner said. “But we have found there are many cases of folks put into guardianship petition where there could be less invasive alternatives put into place.”

Patricia Galindo, a staff attorney for the state Administrative Office of the Courts and vice chairwoman of the commission, said the state has made changes to the way guardianship cases are tracked.

Officials hope to examine the first full year of data available under the new system at Friday’s meeting, scheduled from 8:30 a.m. to 4 p.m. in Room 317 at the Capitol.

Full Article & Source:
Panel fields input on adult guardianship system, plans Santa Fe meeting Friday

Panel takes first step to undo secrecy

The rules guiding adult guardianship cases provide for too much secrecy and not enough notice of court hearings to families of the incapacitated adults, members of the New Mexico Adult Guardianship Study Commission heard last week.

Marjory and Leroy Martinez

In its second meeting, the commission, appointed by the New Mexico Supreme Court to study the state’s system of adult guardianships, listened to dozens more stories from families outraged by the “racket” of the court oversight process for their elderly or infirm family members.

While the first two meetings have focused on bringing all 16 commission members up to speed on the often complicated guardianship process, Commission Chairwoman Wendy York, a retired state district judge, said the panel is starting to home in on recommendations to improve the system.

“We are hearing common themes, so it gives us the beginning of a road map,” York said after the all-day meeting. “We are hearing about notice of court hearings, involvement of family members, and what is the appropriate line to draw between complete access to information and privacy.”

The themes are arising out of public comment from families affected by the guardianship system, which is the legal process that oversees the lives and finances of incapacitated adults when family members can’t do it – often because they cannot agree on a course of action. The court appoints third-party nonrelatives and corporate professionals to determine how the incapacitated adult, often times elderly, will live and how his or her money will be spent.

But the process is secret, which is a protection for the vulnerable adult’s information but also, critics say, a protection for unscrupulous people looking to get rich off a family’s estate.

One lawyer offering public comment Friday said the secrecy of the process raises “due process concerns.”

Brian Vogler told the commission that his client needed to get some information from his guardian, but the guardian declined to provide that information.

“(It) seems there needs to be a window in to see how the court is proceeding,” Vogler told the commission. “It’s hard to balance everyone’s needs.”

After the meeting, he said his inability to see how judges behave or have behaved prevented him from accessing the nuances of the situation. He said he wanted to speak to the commission to provide a perspective that the secrecy “doesn’t just impact families.”

The commission on Friday took a step toward making certain guardianship case dockets are available on the state court system’s public website, where they are scheduled to appear later this month under an ongoing court effort to streamline case files.

Commissioners voted to have York send a letter to the court asking that the records access changes be made a priority if the implementation doesn’t happen as planned on May 23.

Until now, despite assurances from court officials that the documents were public, they have not been available on the website, nmcourts.com.

York said Friday that was mostly a clerical issue. She said members of the public said some court clerks were unaware that certain information in guardianship cases was public under states law.

But other changes to address the secrecy shrouding the process aren’t clear.

“Talking about the problems in the system is easier, but suggestions are more difficult,” York told the crowd, a group of about 30 people, most of whom had experiences with guardianship in their family.

The commission is studying whether reforms are needed in the laws, rules or court practices that up to now have mostly been playing out in closed-door District Court guardianship/conservatorship hearings, which by law are sequestered to protect the privacy of the incapacitated person. An interim report of possible recommendations is due to the Supreme Court by Oct. 1.

Leroy and Marjory Martinez told the panel that when her mother was put under court-ordered guardianship about seven years ago, she was shuffled between numerous nursing homes without informing family members.

“When she went to the emergency room, we weren’t told she was there for six hours,” the Martinezes told the panel.

And when they tried to question how the woman’s finances were being handled, “we were told, ‘don’t worry about it. She has enough money,’ ” Leroy Martinez said.

“But why did she need three wheelchairs, and an extra big bed one day which they had to get rid of the next, for a smaller bed? Why did she need the suite that cost so much more?”

Full Article & Source:
Panel takes first step to undo secrecy

It’s all about the money in probate

by  Kelley Smoot Garrett

Who makes money when a judge orders a person – usually an older woman – into professional guardianship?

Who makes money when the judge makes the discretionary, and radical, decision to revoke and not honor a ward’s perfectly executed existing legal documents including powers of attorney, trusts, property ownership that were written and signed while the ward still had mental capacity?

According to research conducted by Americans Against Abusive Probate Guardianship, 95 percent of the time existing valid, legal documents – created by the wards in case they are put under guardianship – are ignored by judges when ordering another life into their overly secret court system.

In so doing, the judge instantly transforms that guardianship case from being one of short, inexpensive, brief judicial administration, which follows the wishes of the incapacitated or deceased, into the much more lucrative, lengthy, expensive, adversarial litigation, denying the ward due process by failing to honor their legal documents. It is not uncommon for such court-sanctioned litigation to last for years, sometimes decades, as families desperately seek justice and due process for their elders, generating wealth for the court insiders.

Often, in order to receive their inheritances after the ward is dead, parties are forced by court-appointed attorneys to sign legal releases, denying heirs their right to appeal. Most AAAPG complaints in New Mexico record the use of judicially compelled “hold blameless” agreements for the court appointees before the District Court judge will agree to release inheritances to the heirs. Because the cases are overly sequestered, the public is unaware of the serious risk that guardianship creates, endangering all New Mexicans’ transference of their family assets to their chosen heirs.

Who makes money when the adult children of the ward are forced go to court to contest the judge’s decision to give complete – financial, medical, emotional, physical – power over their loved one to a stranger, denying the ward’s wishes? The insiders.

Who pays? Everyone else, including taxpayers.

Given the dire straits of New Mexico’s judicial budget it would behoove all New Mexicans to rein in the vast amounts of court time and money guardianship cases cost us all.

At a March 22 town hall meeting, panel member and retired Judge Ted Baca announced that 35 percent of the guardianship cases in the 2nd Judicial District (Bernalillo County) were “problem cases.” AAAPG statistics indicate that nationally 7 percent of the total guardianship cases are estimated to be fraudulent and thus prone to looting by insiders. The fact that New Mexico has five times the amount of problematic guardianship cases as the national average could potentially indicate that an estimated $150 million annually in New Mexico can be converted from family assets to third-party professionals who make a handsome living off the way guardianship is currently conducted here.

It also means that each of New Mexico’s 13 District Courts – which receive a single budget each year to handle criminal, civil, family and children’s courts – might do well to review the amount of time their civil divisions spend on guardianship cases.

When civil court guardianship cases become problematic, they go from judicial administration – the original intent of guardianship statutes and rules – to lengthy, time-consuming adversarial litigation.

The courts themselves could potentially solve much of their budget shortfall by ordering their judges to honor the incapacitated or deceased individuals’ wishes as expressed in their legal documents.

District Court judges must not let these cases disintegrate into what often amounts to gratuitous – and lucrative – litigation that profits only the court insiders at the complete financial, medical, emotional and physical expense of the family the court is allegedly “protecting.”

Full Article & Source:
It’s all about the money in probate

IRS impostor scam top hotline complaint

WASHINGTON (AP) — It’s the top complaint to a U.S. Senate hotline for seniors: fraudsters posing as IRS agents, threatening arrests and demanding money.

Treasury Department official Timothy Camus told the Senate Aging Committee that more than 10,000 people have reported falling prey to the so-called “IRS impersonation scam” over the last several years — many of them elderly Americans.

Phillip Hatch, who is 81 and testified before the panel via video, told lawmakers how he received a phone call one day at his home in Portland, Maine. The caller told him there was a mistake on his tax returns and federal marshals were coming to arrest him unless he paid the money. Worried, Hatch did as instructed and went to the local CVS to purchase iTunes cards. He then read the numbers on the backs of the cards to the caller. After four hours on the phone with the caller, Hatch was out $8,000. He told the panel he wishes he hadn’t been “so cooperative.”

Republican Sen. Susan Collins of Maine, chair of the committee, says the criminals who prey on seniors are relentless. “They will harass seniors over and over again until they have drained every penny from their life savings,” she said.

Federal officials, from Treasury and the Federal Trade Commission, testified about efforts to combat the fraud on senior Americans.

Last October, more than 50 people were indicted in a scam that involved call centers in India and bilked thousands of victims out of more than $270 million. Camus, with the Treasury Inspector General for Tax Administration office, says it is the largest single domestic law enforcement action to date related to the IRS impersonation scam.

For some time, scammers had been duping victims into getting money orders. More recently, however, Camus says his office has seen a shift to iTunes cards because it’s easier to get the money since the scammers no longer need middlemen to convert the money orders. “They’re now selling the iTunes cards on the third party market and pocketing the money immediately,” Camus said.

The Senate Aging Committee has a hotline for seniors to call about fraud (1-855-303-9470). Last year, the hotline received more than 2,200 calls from people all over the country — more than double the number of calls from 2015. The top complaint was the IRS impersonation scam. That was followed by lottery or sweepstakes scams, in which callers promise a huge lottery prize that can only be awarded if taxes and other fees are sent immediately to the caller.

Full Article & Source:
IRS impostor scam top hotline complaint

NY commission hearing set on attorney discipline

ALBANY, N.Y. (AP) - A new state panel examining how attorneys are disciplined in New York plans to hold its first public hearing next week.

The Commission on Statewide Attorney Discipline is set to meet for two hours on Tuesday at the Court of Appeals in Albany.

Other hearings are scheduled Aug. 4 in Buffalo and Aug. 11 in Manhattan.

Issues before the commission appointed by Chief Judge Jonathan Lippman include whether disciplinary charges or findings should be made public earlier as a consumer protection matter.

The panel will also examine whether there should be more uniformity in the approaches by the state's four judicial departments.

Full Article & Source:
NY commission hearing set on attorney discipline

Ex-official: guardianship system 'isn't that bad'

Elizabeth Diana Indig reacts

By Colton Lochhead
Las Vegas Review-Journal

Clark County‘s guardianship system, which has left thousands of elderly and mentally incompetent residents vulnerable to financial abuse, "isn‘t that bad," according to a man who has worked in "and financially benefited from"€” the system for over 35 years.

Three of the state‘s top judges don‘t share that view. They commissioned a Supreme Court panel aimed at fixing what they see as a troubled process that has seen some guardians drain hundreds of thousands of dollars from the accounts of elderly and mentally incompetent Nevadans.

Private Professional Guardian Jared Shafer caused an uproar during the 26-member panel‘s first meeting Wednesday in a courtroom at the Regional Justice System in Las Vegas. One woman shouted, "You used the money to pay lawyers!"

Many who attended the meeting stood in front of the group and explained that their family members who had been made wards of the county had been exploited by their guardians.

"The guardians are in control, and the family court is facilitating the fleecing of the wards by blindly rubber stamping anything they filed due to lack of personnel, time, research and oversight," said Elizabeth Indig, whose mother is in the middle of a guardianship dispute. "It should be that the court is in control and the guardians are the facilitators of the system."

Longstanding problems with the system that handles about 8,500 adult guardianship cases in Clark County each year were exposed in a series of Las Vegas Review-Journal articles published in April. Highlighted cases showed a lack of oversight by the courts, such as failing to require guardians to file annual accounts of wards‘ finances as required by state law.

Shafer appeared to take offense at comments about private guardians and also a Review-Journal article that highlighted the plight of one of his former wards, World War II veteran Guadalupe Olvera.

Those who have spoken out recently about guardianship issues are the "10 percenters who didn‘t get what they wanted," said Shafer, who was the Clark County public administrator and public guardian for more than 20 years before starting his private practice in 2003.

"I‘ve been doing this for 35 years," Shafer said. "And until a couple cases came up, there‘s never been a problem with the system."

After speaking, Shafer walked out of the court room.

Deputy Clark County District Attorney Jay Raman, who prosecutes most of the county‘s guardianship and elder exploitation cases, has seen evidence that contradicts Shafer‘s view.

Fees charged by private guardians, he said, deserve some focus. Statewide they range from about $40 to upwards of $250 an hour.  (Continue Reading)

Full Article & Source:
Ex-official: guardianship system 'isn't that bad'

Panel appointed to improve Clark County’s troubled guardianship system

By COLTON LOCHHEAD
LAS VEGAS REVIEW-JOURNAL

The Nevada Supreme Court named 23 people Friday to a panel aimed at reforming and improving the state’s guardianship system, according to a Friday news release.

Longstanding problems with the system that handles about 8,500 adult guardian­ship cases in Clark County each year were exposed in a series of Review-Journal articles published in April. Cases high­lighted by the newspaper showed a lack of oversight by the courts, such as failing to require guardians to file annual accounts of a ward’s finances even though it is required by state law.

Supreme Court Chief Justice James Hardesty petitioned to form the panel last month. The panel will listen to public testimony and make recommendations about the system.

The panel will include several judges from across the state, including: Hardesty; Nevada Court of Appeals Chief Judge Michael Gibbons; Washoe County district court judges Frances Doherty and Egan Walker; Clark County district court judges Cynthia Dianne Steel and William Voy; and Elko district court judge Nancy Porter.

Two deputy district attorneys — Jay Raman from Clark County and Timothy Sutton from Nye County — and three legislators — Assemblymen Michael Sprinkle and Glenn Trowbridge and Sen. Becky Harris — were also named to the panel.

Others named to the panel include: Trudy Andrews of Pacifica Senior Living; Deborah Bookout of Legal Aid of Southern Nevada; Rana Goodman of The Vegas Voice; Terri Russell of Reno’s KOLO-TV, Channel 8; Kim Spoon of Guardianship Services of Nevada, Inc.; Susan Sweikert, a victim’s advocate; Julie Arnold of Southern Nevada Senior Law Program; Clark County Public Guardian Kathleen Buchanan; Susan Hoy of National Guardian Services, LLC; Reno attorney Kim Rowe of Maupin, Cox, and Legoy; David Spitzer of Washoe Legal Services; and Las Vegas attorney Elyse Tyrell.

The first meeting of the panel will be held in mid-July, the release said.

Full Article & Source:
Panel appointed to improve Clark County’s troubled guardianship system