Senators Seek Attorney Ad Litem Payment Data

Debbie Salinas Valdez of the advocacy group Guardianship Reform Advocates for the Disabled and Elderly said that no one watches what attorneys ad litem do in a case, and fees can climb to hundreds of thousands.

Reports about improprieties in the attorney ad litem system—the target of allegations of favoritism and nepotism for decades—prompted a senator to take action to further scrutinize attorney fee payments.

Sen. Judith Zaffirini, D-Laredo, said that, last year, reports showed that attorneys ad litem received nearly $26 million, but they probably received much more. A 1994 Texas Supreme Court rule requires clerks to report payments monthly, but only 40 percent of clerks filed reports in 2014. Senate Bill 1369 aims to increase compliance by writing the high court's rule into law, Zaffirini told members of the Senate State Affairs Committee on March 30.

Judges appoint attorneys ad litem to represent people who cannot represent themselves, such as children, the elderly or disabled people.

SB 1369 is a work in progress, and Zaffirini said she plans to introduce a new version later. She explained that the current draft would require clerks to issue an annual report showing payments and the name of the judge who appointed an attorney ad litem, the date of orders approving payments and the style of each case involved. If a clerk failed to issue the annual report, a court would face the consequence of losing its eligibility for state grant money.

Debbie Salinas Valdez of the advocacy group Guardianship Reform Advocates for the Disabled and Elderly said that no one watches what attorneys ad litem do in a case. Many times, attorney fees climb to hundreds of thousands of dollars, she said.

"We see in certain courts, it's the same ad litems, the same guardians who are attached to those ad litems," Valdez said.

Steve Bresnen, a lobbyist for the Texas Family Law Foundation, told committee members that he's convinced that—whether it occurs or not—there is suspicion about abuse among attorneys ad litem. He said the bill should make attorneys ad litem responsible for filing payment reports so that clerks have complete data for their reports. He said that it's easier to find information when public money pays the bill, and harder when the money comes from a private party.

Travis County Probate Judge Guy Herman said that he's concerned the bill might burden judges, who don't have enough staff. He blamed the Supreme Court for the low reporting rate because it's not enforcing its own rule. The high court could get clerks' attention through a letter, he said.

Chambers County Clerk Patty Henry said that she discussed SB 1369 with fellow clerks to find out why compliance rates are so low.

"This is simply an education issue on our part; it's nothing purposeful," Henry said. "Now that we've been made aware of this, we are going to address this issue and make sure that we are compliant."

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Senators Seek Attorney Ad Litem Payment Data

The Dark Side Of Caregiving: Elder Abuse News

By Sherri Snelling
Two recent, high profile news stories shed light on the dark side of caregiving known as elder abuse, a fate that affects one in 10 seniors every year, according to the National Institute of Justice.

In May, Jean Kasem, married for 34 years to American Top 40 radio DJ Casey Kasem, escaped criminal charges of elder abuse sought by her adult stepchildren. The Los Angeles County District Attorney found there was insufficient evidence to prosecute. The beloved DJ passed away last year after reportedly suffering years with Parkinson’s disease and Lewy body dementia.

Kasem’s children from his first marriage accused Jean Kasem of preventing them from seeing him. His oldest daughter, Kerri, filed for temporary conservatorship when — against medical advice — Jean Kasem moved her husband from a convalescent home in Los Angeles, Calif. A court document filed by the district attorney said Jean took Casey Kasem to Las Vegas, Nev., and then Seattle, Wash., where she had him evaluated at a local hospital. Physicians there reported he suffered from a Stage III (second-to-worst level) bedsore and a urinary tract infection.

Kerri attests this neglect hastened her father’s demise, but prosecutors said Casey Kasem’s “longstanding profound health issues” made it impossible to prove abuse or neglect.

A Guilty Plea

While Jean Kasem escaped charges, another caregiver, Linda Maureen Raye, pleaded guilty earlier this year to elder abuse after being initially charged with murdering her mother, Yolanda Farrell, according to an investigative report published by Kaiser Health News.

Raye, who was homeless, persuaded her ill mother to move from a nursing home into a one-bedroom apartment so she could care for her. They lived off her mother’s Social Security benefit.

In a period of two years, Raye became the agent of her mother’s death through overwhelming neglect, refusing in-home professional nursing help and allowing her mother’s unattended bedsores to lead to septic shock, according to police and court records.

In her mother’s last year, Raye benefited not just from the Social Security income but also collected $900 a month from California’s In Home Supportive Services (IHSS) program. The state program allows low-income qualifying seniors and persons with disabilities to hire a family member to care for them and be compensated through taxpayer dollars.

After her guilty plea, Raye was sentenced to 11 years in prison.

Predator or Pressured to Care?

These caregiving situations are different in the caregivers’ means and actions. But both show the complex relationships and pressures that can exist within families and the potential for neglect.
By 2050, one in five Americans will be over age 65 — double the number in 2012 — and the population over age 85 will more than triple, based on the latest U.S. Census studies. With more older citizens to care for, the ranks of family caregivers, currently 44 million caring for someone over age 50, is growing daily.

Some caregivers believe caring for a parent or other loved one is a labor of love. Others feel pressured into their caregiving role, creating anger, frustration, depression and other emotional issues that can play a part in future abuse. In fact, the University of California, Irvine, Center of Excellence on Elder Abuse and Neglect reports 47% of dementia caregivers mistreated their loved one; factors like anxiety, depressive symptoms, social contacts and perceived burden played a role.

What Is Elder Abuse?

Elder abuse, defined by the National Center on Elder Abuse, is a series of intentional actions that cause harm or create a serious risk of harm to a vulnerable senior. Statistics show that older women seem to suffer more abuse than their male counterparts, and as age increases, so does the risk for abuse.

Although Adult Protective Services agencies throughout the country report that there has been an increase in the reporting of elder abuse cases, only one in 14 cases ever comes to the attention of the authorities. Sometimes the lack of reporting is because the caregiver is the abuser.

There are horrific stories of elder abuse from “gray market” services that are found through Craigslist, local newspapers and agencies that don’t have important liability insurance coverage or conduct criminal background checks. But the reality is 90% of elder abuse cases are perpetrated by family members. Even the rich and famous don’t escape the abuse, as witnessed in recent years with cases involving family members of Mickey Rooney and Brooke Astor.

Lack of Training May Be Fueling Crisis

Whether intentional or not, the elder abuse crisis for our growing aging society is aided by lack of caregiver training. A 2012 AARP study found 46% of family caregivers perform medical or nursing tasks and 35% are providing wound care. Most caregivers have received little or no training to conduct these para-professional services.

While training is not a requirement to care for an aging loved one at home, there are several organizations that provide training services for family caregivers.

The Savvy Caregiver program is a seven-week course of two-hour training sessions weekly, either online or in-person. The lessons cover the spectrum of caregiving needs including understanding the emotional challenges of caring for an older loved one. This program is offered through several organizations, including the Alzheimer’s Association, Family Caregiver Alliance, Healthcare Interactive and the Rosalynn Carter Institute for Caregiving.

Another program, Powerful Tools for Caregivers, is a self-care education program that includes tools and resources to help family members become more effective caregivers.

Paying Attention to Transitions

Recognizing the problems in care transitions for patients being discharged from hospitals to home or long-term care facilities, United Hospital Fund along with Centers for Medicare & Medicaid Services (CMS) and several other organizations developed Next Step in Care. The online tools include videos, checklists and how-to information to help make the transition from hospital to home or long-term care facility easier for caregivers and safer for patients.

In fact, care transitions are getting a hard look by policymakers. The hand-off of patient care from hospital professionals to family members is becoming the focus of legislation supported by AARP, currently making its way into law in Oklahoma and New Jersey and pending in Hawaii, Illinois and several other states.

Known as the CARE Act (Caregiver, Advice, Record, Enable Act), the proposed legislation includes a requirement that hospitals or long-term care facilities record a family caregiver’s name when a loved one is admitted; notify the family caregiver when a loved one is to be discharged and most importantly, require hospitals and rehabilitation facilities to explain and provide live instruction for family caregivers on medical tasks, treatment and other important long-term care needs.

This training includes how to safely transfer a loved one who is in a wheelchair, how to properly give medications and how to care for wounds.

As many of us become caregivers to our older loved ones helping them age with dignity in the peace and sanctuary of their own home, we owe it to them and ourselves to seek the training needed to keep them as safe and as healthy as possible.

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The Dark Side Of Caregiving: Elder Abuse News

Commission To Investigate Elder Guardianship

RENO, NV - If we are lucky we hope to live a long life. But there is a chance you may run into health problems and need help. That's where hopefully someone trusted can come in and assist with your personal welfare as well as take care managing your finances. That doesn't always happen. Nevada's Supreme Court hopes by examining the guardianship system in our state, improvements can be made with more accountability.

In 2008 in a Reno apartment complex, Reno police found 70-year-old Leonard Gunderson dead.

“He looked like a prisoner of war when he was dead, just skin and bones," says Roy Stralla, Washoe County Deputy District Attorney

Stralla says the investigation led to 43-year-old Sharnel Silvey, to whom Gunderson signed over power of attorney.

"That was the biggest mistake he could make because, basically, she took all of his money. She was supposed to take care of him. She let him die on his couch in his apartment in his own feces,” says Stralla.

He says when Silvey found Gunderson dead, she cleared the remaining money out of his bank account she had not yet spent-- went to a spa, shopping spree, and paid off her car.

The judge ordered her to serve up to five years in prison.

"That case was one of the most satisfying I've had as a prosecutor in my 20 years. Because I think in her own mind, she believed she didn't do anything wrong. And the jury disagreed with that,” says Stralla.

Gunderson's power of attorney was handled privately. Most guardian-type cases are handled this way and unfortunately while the Silvey case is extreme, there can be abuse. That's even if the guardianship is handled and overseen by courts.

Judges decide if a person is appropriate for such a task; systems are set up to account for money and the ultimate care of the elderly person. But in Clark County, so-called guardians for hire have skirted the court system, gained control of homes and all of the possessions, leaving family members out of any decision making.

How big a problem is this statewide? Are judges adequately trained in this area? What will guardianship case loads be in the future?

That's what Chief Justice James Hardesty intends to find out with the Supreme Court Guardianship Commission.

“The statues are actually pretty effective in our state. They provide effective accountability. But is the system making those participants in this process accountable?” says Hardesty

Hardesty may appoint up to 20 members from the public and private guardianship system. Public hearings will also be scheduled.

Commission findings should be released by the end of December 2015.

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Commission To Investigate Elder Guardianship

Chemical Restraints: Anti-psychotic meds given to elderly despite warnings

45 area nursing homes rate below average for the use of antipsychotic drugs

It's estimated one out of every three elderly nursing home residents diagnosed with dementia is prescribed antipsychotic medication. That's according to studies by the Centers for Medicare and Medicaid Services and the Government Accountability Office. The drugs continue to be given to older adults in the facilities despite FDA warnings over the past decade that certain types of the drugs can be deadly.

Marisa Conover, of Fair Oaks, said her mother Genine Zizzo was given antipsychotic medication at a nursing home in 2012, even though she was promised the drug would not be used to treat Zizzo.

As documented in a coroner's investigative report, Conover also said she thinks the drugs contributed to her mom's death just 12 days after she was admitted to Roseville Point Health and Wellness Center.

That investigative report, as well as medical records from Kaiser, said Zizzo went into Roseville Point needing physical therapy after she fell at her home. The report goes on to say Zizzio left less than two weeks later after slipping into a "vegetative state" and then a "coma." Zizzo's death certificate reports she had "multiple organ failures."


Fighting for Change

A Sacramento County elders rights watchdog group, largely funded by private donations, said its seen cases like this before. Carole Herman's Foundation Aiding the Elderly represents nursing home abuse and neglect victims.

Carole Herman 

Herman has accumulated a 20-foot by 20-foot storage room full of cases since she founded the non-profit in 1982. She said medicare and medicaid pay for a vast majority of all nursing home treatment for the elderly.

"Our tax dollars are what's paying for this shoddy care," Herman said. "And for making all of these nursing home operators very wealthy."

The antipsychotic drugs are classified as heavy tranquilizers and have been linked to heart failure, according to the FDA. The agency placed a warning label on the drug Haldol. That's the same medication that Roseville Point injected into Zizzo.  (Continue Reading)

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Chemical Restraints: Anti-psychotic meds given to elderly despite warnings

Judges find accounting irregularities, prompting review at Public Guardian.

Monterey County resident James Green is what’s known as a “dependent adult,” someone with a medical condition along the lines of dementia or Alzheimer’s that renders him unable to handle his own needs. He is under the care of the Monterey County Public Guardian’s Office, the agency tasked with caring for those adults who through mental illness or medical issues are unable to care for themselves. Many of these people have no families, or families who are unable or unwilling to step up. The deputy public guardians tasked with looking after Green and those like him are supposed to ensure the client receives adequate medical care, food and shelter, and that nobody’s mistreating or taking advantage of them.

Green’s case was one of several recently flagged by a pair of Monterey County Superior Court judges who are questioning whether the Public Guardian’s office is doing its job, or just failing to do the strict accounting and paperwork required as a routine part of the job.

It’s resulted in an internal investigation at the Public Guardian’s office in which cases are being examined, accounting practices questioned and new checks and balances are being put into place.

In Green’s case, Judge Efren Iglesia issued an order on April 15 noting the Public Guardian had made errors in requesting fees. But he also noted the Public Guardian had only spent 4.5 hours on Green’s case over a two-year period.

One insider tells me 4.5 hours isn’t enough time to deal with Green’s bills, much less make sure he has proper care.

“The court wonders if the conservatee has been visited at all,” Iglesia wrote, “and finds this is not acceptable.”

Iglesia ordered more frequent visits, and plans to review the case in six months to make sure that’s happening.

But what launched the internal investigation began in February, when Judge Thomas Wills issued an order in the case of Richard Stanley Fleming, a successful agriculture inspector who was stricken by dementia and became unable to care for his own needs. Fleming was placed under conservatorship in 2005. Because Fleming had financial resources, the Public Guardian billed his estate for its time. (If he didn’t have resources, the office would charge a nominal fee at taxpayer expense.)

Fleming died in 2011. His case was still under review when Wills noted the accounting from Fleming’s deputy public guardian was seriously inaccurate.

What happened, apparently, is the deputy assigned to Fleming copied and pasted months of time records, typos included, as if they were new. There’s no implication of nefarious intent – just serious sloppiness that, at least in part, the Public Guardian attributes to a confusing change in software.

“The court finds this is a very serious matter,” Wills wrote. He ordered the Public Guardian to show why it shouldn’t have to return fees in the Fleming case.

Wills ordered that hearing to take place on May 13. Monterey County Director of Health Ray Bullick, who also acts as chief public guardian, filed a declaration and agreed to waive attorney and guardian fees in the Fleming case totaling $5,235.

Bullick revealed the Public Guardian’s office had launched the investigation, including an audit of time entries of all deputies. Each deputy carries upwards of 100 cases; the audit sampled 20 clients per deputy. Based on the audit results, Bullick said he was confident the accounting of other deputies happened properly.

Wills asked questions, listened attentively and then asked Bullick and Deputy County Counsel Cathleen Giovannini if they had their pencils ready.

Then he rattled off the names and numbers of five other cases, including Green’s, court investigators found that contained similar accounting errors.

Bullick tells me, “It’s basically a great reminder that as public fiduciaries, we need to have absolute accountability,” he said.

James Green, Iglesia noted, is unable to fill out a voter registration card. For those like him under guardianship, that accountability is the most important thing of all.

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Judges find accounting irregularities, prompting review at Public Guardian.

Judge sets date for Reichert probate hearing

District Judge Joe Loving ruled on three motions in the Reichert probate case Wednesday and set a bench trial date.

In a morning hearing yesterday in the Titus County courthouse, Loving signed an order granting a motion filed by Brandi Michelle Reichert to withdraw her application for temporary administration of the estate of the late Dr. Oscar M. Reichert.

Brandi Reichert made the application as the oldest daughter of the deceased from Oscar M. Reichert’s first marriage. The motion she filed read that, “Due to recent unexpected events in Applicants life which have caused tremendous emotional stress, Applicant does not believe she is emotionally strong enough to perform the functions of the Temporary Administrator.”

Loving also signed an order calling for genetic testing to determine whether Brandi Reichert is the biological child of Oscar M. Reichert.  That order provides that Brandi Reichert submit to genetic testing within 30 days and provide necessary samples of her blood, body fluid and/or tissue for testing. With the order, Loving granted the motion filed with the court June 10 - by Oscar M. Reichert’s ex-wife from his second marriage, Denise Harper Reichert, and their daughter from that marriage, Maegan Reichert Hotaling - calling for the genetic testing. 

Also stated in the order, American Forensics shall conduct the genetic testing from the samples of blood body fluid and tissue obtained from the deceased during a court-ordered autopsy on his body. That autopsy was ordered by Loving in a hearing May 22, when he granted a motion calling for an autopsy filed by Brandi Reichert.

Wednesday, Loving granted a third motion filed in the case by Pittsburg lawyer Tedde Blunck, who has been representing Brandi Reichert in the guardianship and the probate causes regarding Dr. Oscar M. Reichert, his death and his estate.

Blunck had filed a motion June 4 to withdraw as counsel for Brandi Reichert.  In court Wednesday he told the judge that he had received Brandi Reichert’s consent to withdraw. 

The order Loving signed on the matter allows Blunck’s withdrawal and states that Brandi Reichert receive all notices in this cause by certified and regular first-class mail; and that Blunck immediately provide written notification to her of any additional settings or deadlines now known to him of which she has not already been notified.

In court, the judge said Brandi Reichert could represent herself as long as she does not seek a fiduciary relationship in the case.

Blunck said he did not know if she had been able to obtain other counsel representation for the case matters.

Loving on Wednesday tabled a ruling on transferring a case filed in Hunt County by American National Bank to Titus County into the Reichert estate case. 

According to the court documents filed on behalf of Denise Harper Reichert and Hotaling, after Michael Taylor was appointed as the guardian of the estate in September of 2014, he deposited money belonging to Reichert in an account at American National Bank in Greenville. After Taylor’s guardianship of the estate was voided in a court order March 19, 2015, Denise Harper Reichert, acting as her ex-husband’s power of attorney, requested the bank release the funds to her. 

Subsequently, the bank filed an original interpleader petition and request for discharge in the 354th District Court of Hunt County.

In court Wednesday, Don Ford of Houston, the attorney for Denise Harper Reichert and Hotaling, told the judge he would work out a non-suit with the lawyers of the bank to transfer the funds to Titus County. 

Loving set a bench trial date of December 7 to hear the probate of Reichert’s estate.

Three motions filed regarding the estate, reportedly valued at more than $3 million, have not been ruled on.

On May 7, three days after Reichert died in a Rockwall hospital, Denise Reichert filed an application to probate the will dated June 24, 2013.

On May 20, Brandi Reichert filed a contest of will claiming the will was invalid because her father did not have testamentary capacity at the time of the will’s execution and had suffered dementia for two years preceding his death; and that the will was made after Denise was divorced from Reichert.

That June 24, 2013 will names Denise Reichert as the sole executrix of the will and refers to her as Reichert’s “spouse.” 

A motion filed June 10 by Denise Reichert and Hotaling requests that should the June 24, 2013, will be determined invalid, the court follow the will dated August 21, 1992, which appoints Denise Reichert as the independent executrix, Dr. Gary B. Taylor, a former business partner of the deceased Reichert, as the first alternate independent executor, and, if neither of those two can serve, the will calls for Kerry Wootten to serve as independent executor.

The court is still waiting on the autopsy report of Reichert’s body, Loving told counsel at the bench Wednesday.

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Judge sets date for Reichert probate hearing

See Also:
Legal battle continues over late doctor’s remains, estate

KXAN investigation into abuse report at assisted living center results in new law

AUSTIN (KXAN) — A year and a half long KXAN investigation resulted in a change in Texas law.

KXAN uncovered how the state agency responsible for protecting elderly patients at assisted living facilities did not do its job and broke the law by not reporting 78 percent of abuse allegations to law enforcement.

A local lawmaker saw our original report and promised to help with legislation. This week Gov. Greg Abbott signed his bill into law.

The investigation started with allegations that a male resident of an Austin assisted living facility sexually assaulted a woman there who had dementia and a court ordered guardianship in place.  The investigator didn’t take note of her guardianship order which stated she could not make decisions on her own.

But the new law, which was authored by State Rep. Elliott Naishtat and goes into effect Sept. 1, requires facilities to keep guardianship orders on file and also requires investigators at the Department of Aging and Disability Services to check for that document before completing their investigation.

“I promise you that the agency will be following up on this and making sure that the new law is complied with,” Naishtat told KXAN.

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KXAN investigation into abuse report at assisted living center results in new law

Miami Nursing Home To Pay Record $17M in Whistleblower Suit

A Miami-based nursing home network agreed Tuesday to pay a record $17 million to settle a False Claims Act suit brought by its former CFO, accusing it of running a kickback scheme. The case is United States of America et al v. Plaza Health Network et al., aka Hebrew Homes.

From 2006 through 2013, Hebrew Homes allegedly hired physicians as medical directors —really “ghost positions” — at its facilities, who had to perform few or no contractual job duties.  Instead, these physicians were paid to refer patients to Hebrew Homes facilities, dramatically increasing the number of referrals. Each facility had several of these medical directors, who were paid thousands monthly.  Hebrew Homes did not admit to liability with the settlement.

“Illegal inducements paid to physicians in exchange for patient referrals will not be tolerated,” Benjamin C. Mizer, principal Deputy Assistant Attorney General for the DOJ's Civil Division, said in a statement. “Medicare funds should be used to provide care for our senior citizens, not as an inducement to physicians to refer business.”

The settlement is the largest in U.S. history for a nursing home allegedly violating the Anti-Kickback Statute. The company entered a five-year Corporate Integrity Agreement with the U.S. Department of Health and Human Service’s Office of the Inspector General and agreed to alter its policies regarding how it will hire and maintain medical directors. The former CFO will receive more than $4 million from the settlement.

This decision underscores the need for employers in the health care industry to rigorously comply with the federal Anti-Kickback Statute, which prohibits the exchange (or offer to exchange), of anything of value, in an effort to induce (or reward) the referral of federal health care program business. It is broadly drafted and establishes penalties for individuals and entities on both sides of the prohibited transaction. Conviction for a single violation may result in a fine of up to $25,000 and imprisonment for up to five years. In addition, conviction results in mandatory exclusion from participation in federal health care programs. Absent a conviction, individuals who violate the Anti-Kickback Statute may still face exclusion from federal health care programs. The government may also assess substantial civil money penalties. Under the False Claims Act, whistleblowers may bring “qui tam” actions alleging violations of the Anti-Kickback Statute.  If the Federal government brings a successful action as a result of the qui tam action, the whistleblower receives a percentage of the ultimate recovery.

Employers should regularly audit their practices to look for any signs of inappropriate financial transactions in exchange for referrals. Their employment agreements and policies should expressly forbid such conduct, and employers should also establish internal procedures through which employees who wish to raise complaints are encouraged to come forward. Establishing an office of an ombudsperson to handle complaints can provide employees with a vehicle to have their voices heard. Further, individuals who come forward should be informed that they have the right to make complaints without fear of retaliation. By taking proactive steps, health care industry employers can reduce the risk that the first time they learn about a kickback issue is upon receipt of a whistleblower lawsuit.  

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Miami Nursing Home To Pay Record $17M in Whistleblower Suit

Today We Remember Our Dads Lost to Guardianship Abuse