Former judge Sherwood sentenced up to 9 years; stole millions from elderly clients

The Enterprise — Elizabeth Floyd Mair
Richard Sherwood leans over to try to
sign, awkwardly, a court document while
wearing handcuffs. His attorney, William
Dreyer of Dreyer Boyajian, looks on.

GUILDERLAND — Richard Sherwood, once a Guilderland town judge, stood before the bench of both a federal judge and then a county judge on Thursday to be sentenced for crimes to which he had pleaded guilty: stealing millions of dollars from elderly clients whose estates he managed.

Wearing a green and orange prison jumpsuit, he told federal judge Lawrence Kahn that he was “so ashamed, embarrassed, and angry at myself,” just before he was sentenced to 54 months, or 4½ years, to be followed by one year of supervised release.

Later that same day, in the state’s Supreme Court — the lowest rung in its three-tiered system — Sherwood was sentenced by Judge Peter Lynch to 3 to 9 years; the two sentences will run concurrently.

Sherwood was in prison garb because he was already in federal custody. He had needed to turn himself in prior to the sentencing, his attorney William Dreyer of Dreyer Boyajian said, for it to be possible to have the sentences run concurrently.

In federal court, Sherwood received a sentence of 54 months for one count of conspiracy to launder money and 36 months on each of two counts of filing false income tax returns, for the years 2013 and 2015. The sentences on the three federal charges are to run concurrently, for a total of 54 months. Sherwood had faced a maximum of 20 years on the charge of conspiracy to launder money.

Sherwood, who hung his head throughout nearly the entire proceeding, had asked Kahn whether he should stand to give his statement.

He told the judge, ”I just want to express my sincere remorse for the horrible thing I have done.” He added, “I sincerely apologize to anyone I have hurt or disappointed or embarrassed, including the bar and the judiciary, by what I have done.”

Sherwood and Lagan’s elderly clients were Capital Region philanthropists Warren and Pauline Bruggeman, who had intended part of the assets for the lifelong care of her sisters, also elderly; remaining funds were to go to charity once all the family members had died. All four had eventually died, and none of them had any children.

Restitution will be made to the intended charities, once it can be ascertained who was to get what. Assistant United States Attorney Michael Barnett told Kahn, at Lagan’s sentencing, that the pair of financial advisors had made such a mess of the books that investigators had not yet sorted everything out.

Sherwood’s wife, Carole, was in the courtroom, but declined to comment after the sentencing.

Dreyer, Sherwood’s attorney, told the federal judge on Dec. 19 that Sherwood had admitted guilt right away when first approached by agents from the Federal Bureau of Investigation in February 2018. The agents had visited both Sherwood and his co-conspirator Thomas Lagan at the same time and, while Sherwood was explaining to them how the trust had been set up as a fraud, Lagan was apparently telling them that the trust was legitimate and reflected their elderly client’s wishes for Lagan and Sherwood to have the money.

Lagan then spent a year denying everything, Dreyer said, while Sherwood explained how the pair’s financial crimes had worked and helped the officers track the funds.

The amount of restitution due, Kahn said, is the total amount Sherwood stole, $5,560,505.

Assistant United States Attorney Michael Barnett told The Enterprise after the sentencing that Sherwood has at this point “satisfied a substantial amount of his restitution obligation.”

Watching

The victims of Sherwood’s financial crimes are dead, but in the courtroom was a woman who said she had waited years to see justice done. Melinda Peck had appeared in Sherwood’s Guilderland courtroom in July 2016 to give a victim impact statement against her former boyfriend, William Beer, whom a jury had convicted of having assaulted her in April 2014 by punching her repeatedly in the head one night while he drove and she sat in the passenger seat. The assault charge was a misdemeanor, but Beer had opted for a jury trial.

Sherwood gave Beer no jail time but only a $1,000 fine and 100 hours of community service. The District Attorney’s Office had asked for nine months in Albany County’s jail. “I felt like he was in a really high position, and he was looking at my life like I was nothing. He had more compassion for my assailant, a criminal, than he did for me,” Peck told The Enterprise in the federal courtroom Thursday morning.

All the effort she had made for the two years it took her case to work its way through the system, including reliving the details in open court while Beer and a friend sat in the gallery and snickered, felt like it was for naught, she said.

This time, she said at Sherwood’s sentencing, she got to see the justice system work. She felt peace, she said, adding, “”This is the end of a long, emotional road. Now I get to go home to my family.” She doesn’t take pleasure in his demise, she said, but she is relieved to see the justice system work, she said, “the way it is supposed to.”

After the conclusion of the federal sentencing, Peck said she had spoken to Carole Sherwood, telling her, “I’m one of the people your husband hurt.”

Peck said that she had had added, “Let him know I accept his apology.”

The sentence

Earlier, on Dec. 11, Lagan was sentenced to 78 months, or 6-½ years, a sentence two years longer than given to Sherwood.

Kahn said at Sherwood’s sentencing that he was taking into account many factors, including the pre-sentencing report, plea agreement, sentencing memorandum by counsel, and the sentencing guidelines. The sentencing guidelines advise a period of imprisonment of between 78 and 97 months.

Kahn also considered, he said, the defendant’s overall conduct, lack of criminal history, and his long-standing prior work as “a respected attorney and as a judge.” Kahn took into account, he said, Sherwood’s immediate admission and his ongoing cooperation, his truthfulness throughout the investigation, his help in tracking the assets involved, and his demonstrated remorse.

The judge noted that Sherwood had indicated during the investigation that he had stolen to “make up for lost income from sloppy billing practices in his law firm over the years.” Kahn noted that this was not an excuse, but said that Sherwood’s co-defendant, Lagan, had never offered any reason whatsoever for his actions.

Khan said he was also factoring in the substantial loss, and Sherwood’s abuse of trust.

“As a former judge, Mr. Sherwood knows more than most defendants that no one is above the law,” Kahn said.

After announcing Sherwood’s sentence, Kahn told him, “I'm sure once this is behind you, you will have, hopefully, many years of a good life with your family again that still supports you.”

County court

Later that same day, in the state’s Supreme Court — the lowest rung in its three-tiered system — Sherwood was sentenced by Judge Peter Lynch.

In Lynch’s court, the attorneys — Dreyer for Sherwood and Christopher Baynes of the Attorney General’s Office for the state — both asked the court to modify Sherwood’s sentence on a single charge of second-degree grand larceny to, instead of 3-½ to 10 years, 3 to 9 years.

Dreyer told The Enterprise that Sherwood will have an opportunity to apply for parole after three years.

Lynch addressed in court the possibility of applying for parole in three years, and noted that, if the application is made and then denied, Sherwood could not apply again for two years. That would mean, the judge said, that his sentence would be longer than the 4-½ years given by Kahn. The parties all agreed that, if that were to happen, they would return to Lynch’s court for a resentencing.

The amount of restitution due in the state proceeding is $5,329,706.

Kahn had clarified in his sentencing that restitution of either amount will count toward the other, so that Sherwood will not be paying twice.

Dreyer had requested of Kahn that he recommend that Sherwood serve his time at the federal prison in Canaan, Pennsylvania — the same prison that Lagan had requested a week earlier because, Lagan’s attorney Kevin Luibrand said, it has an outstanding substance-abuse treatment program.

After the sentencing in county court, Dreyer told The Enterprise, “He doesn’t want to be in there with Mr. Lagan. He wants to be in that facility.” There was no indication, in either sentencing, that Sherwood has any substance abuse problems, as Lagan does.

Rather, Sherwood’s attorney said, he made the request because the prison in Canaan is the federal prison with openings that is closest to the Capital Region.

Full Article & Source:
Former judge Sherwood sentenced up to 9 years; stole millions from elderly clients 

The Media’s New Hashtag: #GuardianshipIsGood for Britney Spears

By Miranda Spencer

In the past several months, the media has again turned its attention to the “mental health” of Britney Spears, with many articles commenting on whether there is reason for her to remain under a “probate conservatorship” (guardianship by a court-approved third party) that controls both her finances and personal life. This coverage, a Mad in America examination found, reflects conventional attitudes about “mental illness” that are both stigmatizing and encourage legislation that promotes forced treatment—despite the fact that the conservatorship she is being subjected to isn’t even designed for the “mentally ill.”

First, They Mocked Her

Estimated to be worth $215 million, Spears is one of the most successful entertainers on record, a Grammy Award winner who’s sold more than 100 million records worldwide. She’s performed professionally since the age of eight, and at 15 became a hit pop singer; her 1999 album “Baby One More Time” is the best-selling album ever by a teenager. Though her public image was often sexualized, it was still that of a “good girl” until she reached adulthood when, in typical late-adolescent fashion, she pushed limits with excessive partying and impulsive behavior, marrying Kevin Federline, a backup dancer she’d known for a few months, at age 22.

During 2007-2008, at age 26, Spears suffered a “mental breakdown.” Postpartum with her second child in a year, she had recently left her husband, lost a close aunt to cancer, and was struggling with substance abuse—all while being pursued relentlessly by press photographers. Headlines during this period regularly captured socially unacceptable incidents such as shaving her head, beating a paparazzi’s car with an umbrella, driving with her baby on her lap, and speaking in unusual accents.

One night, she held a standoff at her home with police, locking her young sons and herself in a bathroom and refusing to relinquish them into Federline’s care. Her divorced parents, from whom she was then estranged, got a psychiatrist to place her on a “5150” hold for an involuntary mental health assessment and then briefly placed her under a brief LPS conservatorship, a legal arrangement that forced her into psychiatric care.

Back then, Spears’ struggles were mocked, and her behavior shamed in the media. She was scolded in headlines such as “Sick!” (US Weekly, November 19, 2007), featured in a New York Times roundup of celebrity “train wrecks,” and eulogized in an 8,000-plus-word cover story in Rolling Stone, “The Tragedy of Britney Spears.” According to the press, Britney was done.

The Men Take Over

Despite her having returned to work within a few months of her commitment, a judge allowed her to be placed under a permanent probate conservatorship that continues to this day. Under this guardianship arrangement, Britney’s personal affairs and financial interests over the past decade-plus have been controlled by handsomely paid, court-appointed overseers. Her father, Jamie—a recovering alcoholic who was placed on a restraining order this past September after Federline alleged that he attacked one of their sons—handles her “person.” A business attorney named Andrew M. Wallet took care of her money. These men have had the power to decide matters as intimate as her medical care, visitors, and whether she can remarry—and as mundane as whether she’s permitted to drive her own car or grab a Starbucks. After Wallet abruptly quit in March and Jamie temporarily stepped down this fall citing ongoing health issues, Britney’s healthcare manager, a professional conservator named Jodi Montgomery, has temporarily taken over the job.

The Statute

Why is this needed? Spears is said to suffer from an unspecified mental illness, for which her 2008 “meltdown” has been deemed prima facie evidence. But California’s probate conservatorship statute is not usually applied to “mentally ill” people, as it does not allow forced psychiatric treatment or medication, nor is it often used to protect the young and otherwise healthy (Spears just turned 38). Rather, it’s reserved for gravely disabled people, typically seniors, who cannot perform basic self-care and are non-compos mentis. 

In California, guardianship of those diagnosed as mentally ill is governed by the Lanterman-Petris-Short (LPS) Act, and recent policy moves are attempting to bolster it. According to Disability Rights California, a proposed law, AB1572, aims to significantly broaden the definition of “gravely disabled” under LPS “in order to expand the number of persons that can be involuntarily held” by the mental health system and then placed under conservatorship. And under SB1045, a bill passed last year and slowly being implemented in Los Angeles and San Francisco, the state can place homeless mentally ill people under conservators who would order them into rehab.

However, Britney Spear’s guardianship was not authorized under that law. The reason may be that even though probate conservatorship is supposed to be reserved for “gravely disabled” people, the courts have interpreted that standard in a way that makes it easier for those seeking control over multiple areas of another’s life to obtain such guardianship. According to the California Advocates for Nursing Home Reform, the law, as interpreted, requires mainly that the person be unable to “provide properly” for their own needs, a more subjective assessment. In a report, CANHR notes: “The California test for conservatorships is purely functional, opening the process to taking over the affairs of mere eccentrics.”

In addition, whereas LPS conservatorships are designed expressly to facilitate the treatment of people with “mental illness,” they don’t allow for control over other aspects of the conservatee’s medical care or broader areas of their lives the way probate conservatorships do, according to Jan Costello, a professor at Loyola Law School in Los Angeles who specializes in health and disability. A probate conservatorship potentially gives much more control to the guardian than an LPS conservatorship, and thus they are “supposed to be tailored to the needs of the individual,” Costello told Mad in America. “The court is not supposed to remove decision-making power from the conservatee in areas where they are able to act on their own.”

As such, Costello explained, “a probate conservatorship isn’t focused on whether you’re sane or insane, but your ability to make decisions and manage your life.”

Conservatorships are reviewed at least once a year, and theoretically the legal burden should be on the person who wants to continue the conservatorship to show it’s still needed, Costello said. Instead, as the law is regularly applied, if the conservatee wants to be released, or to request greater freedoms, “she has to show that things have changed since the conservatorship was last renewed.”

This, of course, leads to a Catch-22: “If the original finding took away most powers, in order to show you can do something, you have to show you’ve in fact been doing that thing,” and also obtain a confirming professional opinion, Costello said.

In other words, the conservatee has to prove he or she has been handling the very responsibilities or freedoms that the conservatorship has limited their ability to engage in.

Britney’s Successful Life

What Britney has accomplished over the past 12 years would seem to belie any finding that she is “gravely disabled” and unable to provide for her own needs. She has co-written and recorded multiple hit albums, toured, and performed onstage almost nonstop while also representing a popular fragrance brand. She’s apparently able to maintain personal relationships, having co-parented her children and enjoyed several long-term romantic relationships since her 2007 divorce. And like all big celebrities, she has numerous assistants, bodyguards, business associates, and other employees around to facilitate her daily life and ensure her safety.

And indeed, between 2008 and 2019, numerous articles told of how Britney was back. There were even a few features that explored why she remained under the probate conservancy, given her life. A 2008 A Rolling Stone cover story, “Britney Spears Returns!” asked what the conservancy “has cost her,” and reported on Spears’ own comments on her frustrations and some details on her initial attempts to fight it. A 2017 New York Times feature was titled “Is Britney Spears Ready to Stand on Her Own?” While agnostic on that question, this article more explicitly questioned the merits of the conservatorship, and the Catch-22 she was in.

“Ultimately some of the people who would help to decide whether to end [the conservancy] are the conservators and doctors who now help oversee it, many of whom receive fees from Ms. Spears’s estate for their work on her behalf,” the Times wrote. “…There has been some debate in California over whether court-appointed lawyers do enough to advocate the rights of those under conservator-ship.” The Times later called the state’s system “troubled for decades.”

At the same time, there were some articles that quoted anonymous sources stating that the conservatorship needed to remain, such as one in The Huffington Post. “Though Spears has been doing ‘extremely well,’… her ‘personality disorder’ apparently makes her too much of a wild card to be able to make her own decisions…. Britney’s team of doctors just don’t feel that she is ready for the conservatorship to end.”

And so the conservatorship fees rolled on.

Press: Britney’s Off Her Meds!

In April of this year, the media reported that Spears had spent a month at a mental health facility. In January, she’d taken an indefinite hiatus from her Vegas show to deal with the stress of her father’s near-fatal ruptured colon and was said to have agreed to inpatient treatment due to feeling overwhelmed and having problems with her medications. Now, still shaky, she was trying to regroup.

But a fan podcast broadcast that same month called Britney’s Gram made her conservatorship into an issue of contention. The podcast aired a voice message from someone who claimed to be a former paralegal at a law firm involved in her case, alleging Spears had decided to stop her meds, been forced into treatment, and wanted more freedom in her life. In response, a movement of concerned fans began demonstrating and a #FreeBritney hashtag began proliferating on social media, both of which continued into the fall.

This stirred the press to weigh in on her conservancy, and as it did, Spears was once again seen through the lens of “mental illness” that has been promoted by American psychiatry and advocates of forced treatment. Articles that sought to defend her handlers’ version of events told of a compliant patient who wasn’t resisting treatment or the conservatorship.

For example, an April 23 article in People had this headline: “Britney Spears’ Wellness Treatment Includes Adjusting Her Meds. ‘No One Forced Her,’ Says Source.” A US Weekly magazine article on May 1 portrayed her as assiduously focused on self-care, “taking her medications as prescribed.”

In contrast, US Weekly’s May 13 article told of a breakdown triggered by Spears’ failure to take her meds, and this was why she needed to be protected by the conservatorship:

“Multiple sources are now painting a picture of a situation that was more dire than initial reports led fans to believe—a downward spiral months in the making . . . After [dad-conservator] Jamie became sick, Britney stopped taking her medication, says the insider: ‘She wasn’t sleeping and had drastic mood swings. It was becoming eerily similar to the events in 2007 that led to the conservatorship.’”

The magazine was getting all this from an anonymous “insider” who continued:

“Before Jamie became ill, he always stayed on top of Britney’s health . . . He’d do daily phone checks with her and her bodyguards to make sure that she was taking her meds,” adding, “The sole reason the conservatorship has gone on this long is because Britney would be non-compliant about taking her meds.”

Although these articles described different facts, both were rooted in the same beliefs: Britney suffers from a “mental illness,” which needs to be treated with medications. In the People and US articles, she is presented as compliant and doing well on the meds, which implies she understands she is “ill” and thus, the conservatorship is needed. In US Weekly, her breakdown is attributed to her being non-compliant, and this non-compliance also requires the conservatorship.

Two different images of Britney, but both singing the same gospel.

Others Do the Talking

These articles suffered from a lack of any comments from Britney herself (save quotes from her Instagram account, which don’t address direct questions). Equally concerning, many relied on anonymous sources “close to the situation,” and/or second- and third-hand reports and experts not involved in her care. Spears, for her part, has never stated that she believes she has a “mental illness” and has seldom mentioned the conservancy.

On May 10, Spears, her parents and their lawyers attended a court hearing on her conservatorship. A week later, a feature in The Washington Post titled “The Battle of Britney Spears” reported on the hearing, which, though journalistically balanced, ultimately served to defend the conservatorship and to dump cold water on the #FreeBritney effort.

The Post article led with how Britney left the courthouse shoeless (as though this were a sure sign of mental illness) and linked to a sensationalistic TMZ article that described her as unwell. (TMZ, a frequent source for many articles we studied, is a tabloid rated untrustworthy by the media watchdog Newsguard).

“The [court] documents don’t specify what the expert will be evaluating, but in conservatorship cases, it often involves a mental examination of the conservatee … in this case, Britney. … Additionally, we’re told Britney asked the judge to allow her certain freedoms — things she’s not able to do under the conservatorship — but the judge did not grant any of her requests. The court’s decision highlights what we’ve been reporting … Britney’s not doing well after her 30-day stay in a mental health facility.”

Next, the Post article describes the conservatorship as benign, “a carefully protected bubble, handlers shielding her from negative influences or hangers-on.” The guardianship, it quotes her long-time manager, is “not a jail.”

Then the article describes how helpful the conservatorship has been for Spears. In 2009, the article states, a lawyer who claimed she’d hired him “attempted to win back her autonomy. The judge admonished him, saying [Britney’s having self-determination] would be a ‘travesty of justice’ in light of Spears’s ‘remarkable’ improvement, which she credited to the ‘superhuman’ work of her conservators.”

There was no mention of Britney’s role in her own recovery, only her guardians’.

Finally, the article tells why the conservatorship is still needed. People “in the singer’s circle stress that the conservatorship was enacted in early 2008 to save her life after a mental-health crisis involving several trips to rehab and two separate hospitalizations under psychiatric holds.” The conservatorship continues, her manager told the Post, because earlier this year she had been struggling to adjust to changes in her medication regimen and became “rattled and destabilized.”

Having defended the conservatorship, the Post article then turned its attention to the #FreeBritney movement. In this arena, noted TMZ in one of its articles, Spears did have a voice. “There are indications that Spears herself craves more freedom. At the hearing, she reportedly told a judge that ‘her father . . . committed her to a mental facility a month ago against her will and also forced her to take drugs.”

The Post article pooh-poohed such reports. The #FreeBritney advocates, with their “sign waving and conspiracy theories,” are naïve and counterproductive: “As social media supplants gossip blogs, and mockery is replaced by calls for support, it’s created a frenzy of fan speculation around Spears that some in her camp say may be just as detrimental…[Britney] indicated as much in a caption to an April Instagram video….”

That is as close as the Post gets to including input from Spears herself, returning to the subject of her mystery malady and deferring to the authorities who control her:

“Sources close to the singer are pushing back on the #FreeBritney narrative, emphasizing that Spears is in the conservatorship for a reason — long-term mental-health issues that they would not specify. They know #FreeBritney is born out of fans’ love for her, they say, but insist that fans don’t understand the details of Spears’s condition and the logistics of the legal arrangement, which is monitored closely by medical professionals and the courts.”

The article concluded by scolding the #FreeBritney crowd: “Despite the podcast’s posture of solidarity with the beleaguered and beloved star, it has drawn backlash from critics who note that the hosts have no firsthand knowledge into what’s going on in the life of a woman with a documented history of complex emotional struggles.”

That line is a bit like the pot calling the kettle black. Reporters don’t have firsthand knowledge of what is happening to Britney either, as they hadn’t interviewed her directly.

The Post article, like so many pieces on Spears’ recent struggles, not only leans on anonymous sources, dismisses challengers of the conservatorship, and lacks any direct input from her, but also never addresses such questions as why a probate conservatorship, which is for gravely disabled people, is being applied to someone who has had episodes of “mental illness” (seemingly the point of the story); why someone might want to stop taking their meds; how the guardianship takes away the autonomy and agency of a woman in the prime of her life; and finally, the possible financial and power motives of those close to her who are profiting from the conservatorship—a well-documented problem with guardianships that has drawn the attention of the US Senate Special Committee on Aging.

It’s for Her Own Good

In September, Spears attended another hearing to review her conservatorship. This one, and the accompanying protests, merited an investigative feature on the conservatorship by the Los Angeles Times, titled “Britney Spears Hasn’t Fully Controlled Her Life for Years: Fans Insist It’s Time to #FreeBritney.”

The article didn’t mention that it tried to contact Spears herself. Instead, it sought to interview “those who might have seen firsthand how it has affected her.” Yet, the paper conceded, “no one in her inner circle responded to requests for comments.”

The article stated that after a three-month investigation, which would appear to have included reviewing public court documents, it “could find no independent evidence that Spears was being harmed by the arrangement.” While it may be unusual for a young, productive person to be placed under a conservatorship, the paper added, Spears’ wealth provided a reason to do so in this case:

“Her estate is immense and complicated to manage, so she could be subject to ‘undue influence’—a factor judges consider along with mental capacity when deciding whether a conservatorship is a good fit.” Added a psychologist: “a person with that kind of wealth would be attracting a lot of people toward them, many of whom may not have their best interests in mind.” It’s hard to imagine the same paternalism applied to a male rock star.

Indeed, a former conservator, Andrew M. Wallet, when he successfully petitioned the court for a raise earlier this year, called the arrangement a “hybrid business model.” (A use for which conservatorships were not intended.) What this could mean, the Times wrote, “is that the conservatorship has enabled Spears to clinch business deals that might have been unavailable to her after her most turbulent years, [lawyer Andy] Mayoras said. She might have been seen as too much of a risk otherwise.”

People had a similar take in a September 23 article. Although Spears was still “not speaking” to her father-conservator, she still “needs someone around that makes daily decisions for her,” a “source” told the magazine.

More recently, USA Today provided its readers with similar reasoning. Its October 24 article featured an interview with Troy Martin, who helped the paper examine Spears’ publicly available court files but is not involved in her case. He outright praised the arrangement: “Everybody looks at conservatorship as a terrible thing foisted on her. I look at it as a success story… Her life was a wreck. … By all appearances, things are a heck of lot better now than they were in 2008.”

However, this article did at least quote a critic of conservatorship. “We have found that [a conservatorship] is very easy to get into and extremely hard to get out of,” said attorney Zoe Brennan-Krohn of the Disability Rights Project of the American Civil Liberties Union, “and the problem is they are stripping a person of all her civil rights and liberties. It can seem to be a sort of benign process if the conservator is well-meaning. But even if it seems benign, the person does not have their rights about basic things.” She added, “Most of us are free to make bad choices and learn from them, but that’s not true about people with disabilities.”

The Bottom Line     

The coverage in recent stories about Spears, filled with truisms about mentally ill people’s incompetency, could have benefited from a more critical eye and less speculation. Instead, we see stories built on anonymous sources, who frequently use reporters for their own purposes; reporters’ inability to sit down with the star renders their reporting more like glorified gossip. Little attention was paid to an obvious fact about her case that resonates beyond it: The state has the power to circumscribe an allegedly disabled but highly functional woman’s right to self-governance “for her own good” even though she has committed no crime. Also, less extreme alternatives to conservatorship were never mentioned, such as supported decision-making.

Britney Spears’ next conservancy hearing is due in January 2020, which gives the news media another opportunity to better cover her case, beyond speculation and stereotypes. Let’s hope that she eventually is able and willing to sit down with reporters and speak freely about her future.

Full Article & Source:
The Media’s New Hashtag: #GuardianshipIsGood for Britney Spears

Boise caregiver convicted for elder abuse, neglect and exploitation

Sherri Watring. (Courtesy Ada County Sheriff's Office)

BOISE, Idaho (CBS2) — A jury found a Boise caregiver guilty Wednesday for elder abuse, neglect and exploitation.

Sherri L. Watring, 53, was arrested in Jan. 2019 and charged with two felony counts of abuse and neglect of a vulnerable adult - under circumstances likely to produce great bodily harm. Watring was also convicted of exploitation of a vulnerable adult in excess of $1,000, as well as a misdemeanor petit theft charge.

Watring was working as a caregiver for an elderly couple for a number of years. According to court documents, she had steadily gained trust with the couple and gained power of attorney in 2016.

The male victim died on Feb. 1, 2018 and Watring had him cremated without the family knowing. The family fired her later that month. She then took the man's ashes and spread them somewhere unknown to the family, before turning over the empty urn to authorities.

Watring was also found guilty of neglecting and abusing the female victim by failing to provide adequate nutrition and performing improper medical treatments - which created circumstances likely to produce great bodily harm. The woman later died in hospice care in June of 2018.

Watring committed the crimes over the span of two years from 2016-2018.

Watring was also charged for exploiting the couple by taking more than $1,000 from them. She used online transfers to get money from the victim's bank accounts to her own, and added debt in the victim's names using her position as their power of attorney.

A jury found Watring guilty on all charges following the three-day trial.


Full Article & Source:
Boise caregiver convicted for elder abuse, neglect and exploitation

The Price of Protection - Genyte Dirse | ABC Action News Streaming Original

Before 85-year-old Genyte Dirse was taken into court-ordered guardianship in 2018, she was living independently at a small hotel she owned and operated in St. Pete Beach for more than 30 years. That hotel – and the fight over the sale of the property – is the reason she ended up in guardianship. This episode highlights how someone who barely knows you can ask a judge to put you in guardianship and take away your rights.

Source:
The Price of Protection - Genyte Dirse | ABC Action News Streaming Original

Locked into Poverty

Anna Landre

Impossible choices
forced on the disabled

by S.I. Rosenbaum

Presented by Microsoft News in partnership
with Spotlight on Poverty and Opportunity

Anna Landre grew up believing she had a future as bright as any one of her classmates. A mutant quirk of her genome makes her muscles weak, and she gets around in a wheelchair. But she assumed she’d find a way around any obstacle.

“My mom was always determined that my disability would not at all limit my future in any way shape or form,” Landre said. “I could do anything anyone else would do, and it would be harder but we’d figure it out.”

Neither Landre nor her mother realized that Landre’s freedom — to work, to save money, even to get married — would be restricted by something much more complex and implacable than genetics: a government welfare policy meant to help people like her but which too often presents the real possibility of personal and financial catastrophe.

“People don’t completely understand how backwards and unjust these regulations are,” Landre said. “Every time I talk to someone who isn’t in the disabled community they’d be like, ‘You’re kidding me. That can’t be how it is, that can’t be the law, there must be a way to fix it.’”

The financial trap of disabilities programs

Nearly 30 years after the Americans with Disabilities Act first outlawed workplace discrimination on the basis of disability, more disabled people live in poverty than when the law was passed. It’s a complex problem with many factors, but in some cases the very program intended to help disabled people becomes a devastating financial trap.

Medicaid was established in 1965 — not as a program for people with disabilities, but as a last-ditch healthcare program for the poor. It’s federally funded, but administration is largely left up to the discretion of states, and local policies differ widely.

In the 1970s Medicaid was linked to a new program: Supplemental Security Income (SSI), a federally-funded income assistance program for disabled people. Back then there was no law against private health insurance companies turning away disabled customers, and so Medicaid became the default insurance option not just for the poor but also for most disabled people. And in the 1980s, as the nation moved to deinstitutionalize disabled people, Medicaid added home-care benefits that would allow people with disabilities to direct their own care in their own homes.

Today in most states, the same application is used to apply for SSI and Medicaid. And both programs come with austere income and asset limits. To qualify for SSI, an individual can’t earn more than $771 in a month — less than $10,000 a year. And they can’t have more than $2,000 in assets at any time, a number which counts most personal valuables as well as cash in the bank.

Medicaid income and asset limits vary from state to state. Many states use the same limits as SSI, though others allow for as much as $1,012 a month in income for an individual. Two states, Arkansas and North Carolina, allow up to $7,560 in assets, and Arizona has no asset limit. On the other hand, some states — such as Connecticut — have asset limits as low as $1,200.

No alternatives

The problem is that Landre and roughly 3 million other disabled Americans have no alternative. While the Affordable Care Act has made it illegal for private insurance companies to refuse her, Medicaid is still the only insurance program in America which covers personal care assistance — the benefit Landre needs to survive from day to day.

“My assistants help me with getting out of bed, getting dressed, showering, household chores like laundry, cooking, and cleaning; nebulizer treatments for my breathing; going to the bathroom during the day,” she said. At night, an assistant helps her turn over in bed.

Losing personal care “can literally result in deaths for people with disabilities,” said Rebecca Cokley, director of the Disability Justice Initiative at the Center for American Progress.

Without Medicaid, disabled people “could go from having their basic needs met and living in the community … to being forced into nursing homes, or even dying as a result of lack of care,” Cokley said.

So people who rely on home care have no choice but to stay poor. “This isn’t an inconvenience, it’s a death sentence,” Cokley said. “It forces families and individuals to make choices they shouldn’t have to make.”

Landre didn’t realize any of this when she first started using personal care assistants in high school. By the time she went off to college at Georgetown in 2017, Medicaid was providing her 112 hours of assistance a week — enough to live on own in the dorm.

She had to learn to handle timesheets, payroll and scheduling for a constantly rotating staff, but it was worth the freedom and security it gave her. She assumed that was how she’d manage her adult life.

Anna Landre, a Georgetown University junior year student, has been advocating to change Medicaid financial requirements after being told she wouldn't be able to work an internship because she would make too much money to qualify. Photography by John Shinkle for Freedman Consulting.

The penalty of income

Then, at the end of her freshman year, Landre landed a paid internship for the summer. She’d be making $14 an hour. When she mentioned the news to a social worker, she expected congratulations. Instead, Landre recalled, “She was like, ‘Oh, you’re not going to be eligible for Medicaid anymore — you’re making too much money.’”

Landre felt blindsided. Suddenly she was facing the choice of keeping the services that would make it possible for her work, or actually working. She couldn’t do both.

Medicaid policies seemed to have been written by people who could not imagine someone like Landre. “It’s this assumption that if you’re so disabled, you’re not going to be able to work,” she said. “And if you’re able to work, you must not be that disabled.”

The problem is that Medicaid and SSI aren’t designed to raise disabled people to equity with nondisabled people. Instead, they can border on the punitive, as MIT political science professor Andrea Louise Campbell noted in her 2014 book Trapped in America’s Safety Net: One Family’s Struggle.

“American social assistance programs are stingy and difficult to access because of an age-old suspicion of the poor,” she wrote. “They are so miserly as to be impossible to live on.” And while they are, in Campbell’s words, “designed to be less attractive than work,” the irony is that they ultimately penalize disabled people for working.

Facing down this dilemma, Landre went to the New Jersey Medicaid office looking for options that would allow her to take the internship and keep her benefits. Officials didn’t offer her any. Frustrated, she started calling reporters and connected with Jay Carino, a writer at her hometown newspaper Asbury Park Press.

But the same day Carino’s story ran, Landre received an email from Medicaid telling her they were arbitrarily cutting her coverage from 16 hours of assistance a day to just 10. This wasn’t a policy issue, and had nothing to do with her finances — it was just a random decision made by someone who had never met her.

Now Landre was fighting on two fronts: to be allowed to keep her benefits while working as an intern, and to appeal a vast and arbitrary reduction in care.

“There’s no preparation for this,” she said. “No one expects a 20-year-old to manage a staff of eight people and be fighting an entire state bureaucracy at every turn.”

A public forum

Much of Landre’s fight took place in public. She knew the optics were good: “People got really angry, because it’s that narrative of ‘Look, it’s a disabled person trying really hard to work and have a productive lifestyle and the horrible government won’t let her.’”

She reached out to her state legislators. She blitzed social media. She talked to reporters, and then more reporters.

As the story spread, she began to get emails from disabled people across the country. She heard from people like Daniel Florio, who has a Harvard MBA but can’t get a job in his home state of New Jersey without losing his benefits. Or Josh Basile, a Maryland malpractice lawyer with a spinal cord injury who was asked to choose between his job and his nursing care.

She even heard from people who wanted to marry but couldn’t, because their partner’s income would disqualify them from benefits.

All of them had scoured the conflicting Medicaid policies for solutions; none of them had found one.
In the end, Landre went off to her internship while appealing the cut in hours.

Eventually, the hours were reinstated — after a drawn-out court process, and only with relentless pressure from the media and legislators. Landre waited for a call ending her services because of the money she’d earned at her internship, but it never came. She thinks New Jersey Medicaid just decided they didn’t want more bad press.

It was a victory of sorts. But when she asked that state officials make changes to protect other disabled people from going through the same thing, they never followed up.

“Nothing changed at all,” she said.

Spotlight on Solutions

Corporations and businesses are increasingly focused on hiring and retaining those with disabilities, providing health care benefits and salaries worth considering.

The Disability Equality Index sought to identify companies who were committed to behaviors like hiring goals, leadership, benefits, accessibility, support services and community engagement supporting equity for those with disabilities. Over 100 companies were awarded top scores including Walmart, Sprint, Verizon, Starbucks, Delta Airlines, and others.

The Valuable 500 is a global movement, putting disability on the business leadership agenda. Companies involved with this movement ensure that disability is on their board agendas and they commit to a public tangible action each year.

While SS and Medicare policies do nothing to elevate the disabled to the nondisabled economic status, there are a few federal programs intended to ease the burden of relying on Medicaid and SSI:

• ABLE Accounts: Created in 2014, these special accounts shield savings up to $100,000 from the SSI asset cap.

• Section 1619(b): A federal work-incentive program established in 1987 that allows people with disabilities to continue receiving Medicaid benefits while working if their out-of-pocket care costs would exceed their income. The catch: they still can’t save more than the SSI asset limit.

• Medicaid Buy-In: An optional program adopted by some states that allows some working people with disabilities to pay a premium to “buy in” on Medicaid benefits. Depending on the state, the program cuts off at a certain income level — for example, in New York an individual can have a gross income of up to $63,492 and keep Medicaid. But for a professional, that’s still pretty low: a raise or two could mean losing everything.

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Locked into Poverty

Elderly ‘Poisoned’ By Too Many Medications

Because little is known about the correct dosage for older patients and how different drugs react to each other, The Guardian reports the elderly are often “poisoned” with excess medication or combined drug reactions — called drug-drug reactions.

Drug dosage is tested in younger populations who do not have multiple diseases. Tests are not done on those over 60, according to the report, even though liver and kidney function declines as a person ages and senior citizens tend to have more adverse drug reactions than younger people.

More than half of American adults are regularly taking prescription medications and those numbers continue to climb. About a quarter of the population ages 65 to 69 are taking at least five prescription medications each day to treat chronic health conditions and that increases to nearly half of Americans ages 70 to 79. 

While every age group is at risk for being prescribed medications they do not need, the elderly are at particular risk. In addition, they are often prescribed narcotic painkillers, significantly increasing their chance of falling, which could lead to further disability or death.
One group of individuals who are at high risk of receiving prescription medications for diseases or illnesses they do not actually have are nursing home residents who suffer from dementia.

Adverse drug effects occur in at least 15% of seniors, and in nearly half of those cases the problem may have been prevented with greater communication between physicians and pharmacies treating the same patient.

Adding to the problem is the fact that there’s been a major rise in the number of antidepressants being prescribed for older adults over the last two decades, without proof that there is any increase in the number depressed.

Even though the number of depressed older adults living in care homes was unchanged, the use of antidepressants rose from 7.4% to 29.2%! Most of those prescribed antidepressants had not been diagnosed with depression.

Antidepressants are often ineffective for treating depression and pose risks to the elderly, including increasing the risk of falls, osteoporosis and fractures. Those types of injuries are usually treated with pain medication and that may lead to an entirely new problem.

An estimated 202,600 Americans died from opioid overdoses between 2002 and 2015 and 74% of farmers report being addicted to opioids, or know someone who is. Opioids are commonly prescribed for pain.

The massive increase in opioid sales and subsequent addiction rates came about after a premeditated marketing plan misinformed doctors about the drug’s addictive potential.
The same company that manufactured the addictive pain killers also came up with the medication to treat the addiction, all the while increasing their profits while thousands died. More than 70,200 Americans of all ages died from drug overdoses in 2017, according to the National Institute on Drug Abuse. 

If you or a loved one are elderly, don’t hesitate to speak to your doctor about any changes to your lifestyle choices that may reduce your need for medication and improve your health. Reasearch alternative pain treatments that don't require medication and stick to a diet filled with organically grown, nongenetically modified whole foods. 

Full Article & Source: 
Elderly ‘Poisoned’ By Too Many Medications

San Antonio Attorney Phil Ross Thrashed in Court, Now Facing The Texas Commission for Lawyer Discipline, But He’s Not Worried About a Slap

By justicefortexas

San Antonio lawyer Philip Martin Ross represented a woman who didn’t have the capacity to execute legal documents, according the petition in Commission for Lawyer Discipline v. Ross.

LIT COMMENTARY

Published; 21 Dec., 2019

Maverick lawyer, Phil Ross, known for his combative style has been sued by the State Bar of Texas over a grievance filed against him alleging among other things, dishonesty.

Photo Credits: Carlos Javier Sanchez / Contributor / San Antonio Express News

Below is the Synopsis of the Case that Made Ross, well, Infamous…

Published; Dec. 20, 2019

A Texas judge has ordered a lawyer and his clients to pay more than $220,000 in sanctions for an alleged “vexatious litigation campaign” against a mentally incapacitated millionaire and his guardians.

Judge Oscar Kazen imposed the sanctions against lawyer Phil Ross and his clients in a May 24 decision, the San Antonio Express-News reports.

Ross misrepresented himself as the lawyer for 81-year-old Charlie Thrash, the mentally incapacitated millionaire, and assisted in Thrash’s marriage and adoption of his new wife’s adult children, Kazen said in his opinion. Thrash’s marriage to Laura Martinez, who was Ross’ client, was annulled and the adoptions were undone, according to the Express-News.

Thrash is the former owner of a specialty auto repair shop whose estate is valued at more than $3 million. Martinez has been involved with Thrash since 2012, the article reports. A court-appointed psychiatrist had found Thrash to be mentally incapacitated in 2017 after an anonymous complaint was filed to Adult Protective Services.

A court investigator concluded earlier this year that Thrash didn’t want to marry Martinez and she was isolating him from friends.

Thrash did not have legal capacity to marry, and Ross and Martinez were aware of the January order finding that Thrash was incompetent at the time of the marriage, Kazen said in his opinion.

Ross served as best man at the March wedding, held in another county, and he signed the marriage certificate. The lawyer also signed and filed an application for spousal support on behalf of Martinez.

Ross also signed and filed an adoption petition in March that asserted Ross was Thrash’s lawyer, Kazen said. Ross did not disclose the incapacity order during adoption proceedings before a different judge, Kazen said.

Ross also appeared before a justice of the peace with Martinez and one of her daughters, Brittany, to assert rights under a lease. After being confronted by lawyers for Thrash, Ross admitted the lease was “reconstructed from memory,” according to Kazen.

Martinez and Ross also went to a Social Security office to get checks for Thrash redirected to Ross at his residence, Kazen said.

Ross says Thrash has regained his mental competence, and he is appealing the January 2019 order finding him to be totally incapacitated. He has filed more than 70 pleadings in a bid to oust the guardians and obtain Kazen’s recusal. He has also filed separate suits against Kazen in state court, against the two guardians in federal court and against the guardians in state court, according to the Express-News.

Kazen imposed a joint and several sanction of about $187,500 on Ross, Laura Martinez and Brittany Martinez, payable to Trash’s estate and his guardians to cover attorney fees. He also ordered Ross to pay a sanction of about $30,400 for attorney fees and a punitive sanction of $5,000. The judge ordered Laura Martinez to pay a $2,500 punitive sanction and ordered Brittany Martinez to pay a $1,500 punitive sanction.

Kazen also said he would impose a sanction of $30,000 in the event of an unsuccessful appeal of the sanctions order to the Texas Court of Appeals and $50,000 for an unsuccessful appeal of the order to the Texas Supreme Court.

As an additional sanction, Kazen barred Laura Martinez from pursuing any claim that she is or ever was Thrash’s wife, either through a ceremonial or common law marriage.

Kazen previously issued a temporary restraining order requiring the Martinez family to leave Thrash’s home. Thrash has been moved to a relative’s home and has caregivers watching him around the clock, one of Thrash’s guardians told the Express-News.

Ross told the News-Express that he hasn’t harmed Thrash and the sanctions raise more questions about the case. He says he is representing his clients pro bono.

“How did the judge allow the guardians’ lawyers to bill more than a quarter-million dollars to Charlie’s estate trying to stop his common law wife Laura and Brittany from trying to help him restore his capacity and to remove the guardians?” he said in a News-Express interview.

“The other question is why are they so afraid of us? They are trying to silence us. All we’re saying is that Charlie is not incapacitated and the guardians should be removed,” he said.

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San Antonio Attorney Phil Ross Thrashed in Court, Now Facing The Texas Commission for Lawyer Discipline, But He’s Not Worried About a Slap

Some nursing homes are illegally evicting elderly and disabled residents who can't afford to pay

By Katie Engelhart

 

BISHOP, Calif. — When Jamie Moore arrived home on a Thursday evening in March, she was surprised to find her mother-in-law in her living room. Glenda Moore, 67, had been sitting in her wheelchair for hours. Without anyone to help her to the bathroom, she’d had an accident. She was also having trouble breathing. “It was awful,” Jamie Moore recalled.

Glenda Moore told Jamie that she had been discharged from the Bishop Care Center nursing home, in Bishop, California. She had been living at the nursing home — a sprawling brick building on the side of a state highway — for several weeks, recovering from a back surgery that unexpectedly left her unable to walk much or take care of herself.

Several days earlier, nursing home administrators had shown Glenda Moore a letter from Medicare, explaining that her rehabilitation coverage was ending. She was unable to pay the nursing home’s more-than-$7,000 monthly fee, so, thinking she had no other options, she left. (A relative dropped her off at Jamie’s home, where Glenda Moore had lived previously, without telling Jamie.)

“They pushed her out and she was not ready,” Jamie Moore, who has worked as a nursing assistant, said. “She was not ready at all.”

Glenda Moore went to a nursing home to recover from a back surgery that unexpectedly left her unable to walk much or take care of herself.Valerie Bischoff / for NBC News

As the family later learned, Glenda Moore had the right to appeal the Medicare decision, or to apply for Medicaid — and, if she qualified (which she later did), to stay in the nursing home on Medicaid for as long as she needed nursing care. Instead, Moore’s family said, Moore became one of thousands of Americans discharged against their wishes or evicted from nursing homes each year. (The Bishop Care Center maintains that Moore's health had improved and that she voluntarily left the facility, and points out that they gave her a document noting her right to appeal the Medicare decision.)

Nationally, long-term care ombudsmen, who advocate for elderly and disabled residents of nursing homes and assisted living facilities, received 10,610 complaints about discharges and transfers in 2017, up from 9,192 in 2015. The ombudsmen, whose work is federally mandated and state-funded, receive more complaints about discharges and transfers than any other grievance.

The complaints likely expose just a small fraction of the problem, said Kelly Bagby, vice president at the AARP Foundation, a nonprofit that serves vulnerable people over 50.

“Most people don’t even know they have rights,” she said. And many complaints never result in a formal state investigation.

Advocates, experts and the federal government say that nursing homes tend to evict low-income, longer-term residents who receive Medicaid, to make room for shorter-term rehabilitation patients who are covered by Medicare. Medicare reimburses nursing homes at a higher rate than Medicaid, so it’s more lucrative for facilities to house Medicare patients who stay for short stints before recovering and moving elsewhere.

In California, for example, the average state Medicaid reimbursement for a nursing home is $219 per day, according to the California Association of Health Facilities, while Medicare may reimburse more than $1,000 per day, but only for up to 20 days, when patients must begin paying part of the fees. (Medicare coverage ends completely after 100 days.) Advocates say that eviction notices are often handed out around the 20-day mark.

“It is illegal to discriminate against residents based on payment source, but it happens all the time,” said Tony Chicotel, attorney at the California Advocates for Nursing Home Reform, a nonprofit that supports long-term care residents in the state. “It feels like there’s just a tidal wave of cases.”

Chicotel said he receives calls every day from panicked residents or family members being threatened with discharge from a long-term care facility.

Deborah Pacyna, director of public affairs at the California Association of Health Facilities, a trade association representing nursing homes, told NBC News that improper and illegal discharges are “a really rare thing,” and that the issue is exaggerated by media attention.

She added that California’s Medicaid program, Medical, does not provide “adequate funding” to care for many patients with complicated health issues and behavioral disorders. “Medicare pays more. Those people are rehab patients; they’re in and out,” she said. “That is how they break even,” she added of nursing homes. “Society’s problems are manifesting themselves on the doorsteps of nursing homes.”

‘You’re just a piece of garbage’

Nursing homes are legally permitted to evict residents under several conditions: if a resident’s health improves sufficiently; if his presence in a facility puts others in danger; if the resident’s needs cannot be met by the facility; if he stops paying and has not applied for Medicare or Medicaid; or if the facility closes. Facilities are obligated under federal law to give 30 days’ notice, in writing, and also to work with the resident on a transition plan.

Bagby, of the AARP, said that while some residents are issued formal discharge letters with advance notice, others are asked or pressured to leave with “no due process rights, no notice.”

In one case in Los Angeles, in April 2018, Ronald Anderson said he was woken at night by the nursing home staff at the Avalon Villa Care Center and told he was being evicted. Anderson, 51 at the time, had moved into the facility over a year earlier to recover from a partial foot amputation. He said he was loaded into a van and dropped off on a sidewalk in downtown Los Angeles, which has one of the largest homeless populations in the country, according to a report from the California Department of Public Health.

Anderson, who is diabetic, was left in a wheelchair without his insulin or testing supplies — on a street cluttered with tent encampments and broken glass. The Department of Public Health report noted that he could have slipped into a coma or died.

“You’re just a piece of garbage,” Anderson said, from the Union Rescue Mission homeless shelter in Los Angeles where he now lives. “They’ll kick you right out on the curb.”

Ronald Anderson now lives at the Union Rescue Mission homeless shelter in Los Angeles.Valerie Bischoff / for NBC News

Avalon Villa Health Care, which runs the nursing home, later paid $450,000 to settle a civil complaint filed by the Los Angeles city attorney in response to Anderson’s case and other evictions of homeless residents, with the money going toward civil penalties, hiring and training Avalon Villa staff and finding temporary housing for the facility’s homeless residents. The city attorney set up an emergency hotline and invited members of the public to report cases of resident abandonment.

A lawyer for the Avalon Villa Care Center told NBC News that the facility “strongly disputes that it has inappropriately discharged any patients” and “rejects the allegations of the city attorney.”

The Rev. Andy Bales, director of the Union Rescue Mission, said “resident dumping” from nursing homes and hospitals is so common that the shelter set up a security camera outside — which Bales calls “the dump cam” — to capture evidence of it. He said he is aware of at least four instances from the last year in which people have been dropped off on nearby streets by hospitals or nursing homes — though he believes the number is higher. As a result of the security camera, he said, “They won’t dump them off in front of us anymore.”

California’s long-term care ombudsmen received 1,404 complaints about nursing home evictions in 2018, up from 1,022 in 2014. Several lawsuits concerning nursing home discharges have recently been filed in the state.

Molly Davies, a California long-term care ombudsman, said that in addition to receiving more complaints about evictions, “there has also been an uptick in the egregiousness of some of these cases.”

In some instances, she and other experts said, nursing homes drop residents off at a low-cost motel and pay for a night or two. “We’ve seen cases with residents who have dementia put into a van and dropped downtown onto the streets, without the ability to care for themselves,” she said.

The California Department of Public Health does not track where nursing homes discharge patients, according to a department spokesman, nor does the California long-term care ombudsman program. In some instances, however, routine state inspections and inspections following complaints uncover problems.

In a 2018 incident, described in a California Department of Health and Human Services report, a Rosemead nursing home discharged a resident to a hotel without any medical equipment and without ensuring that the hotel was “a safe environment.” The female resident still required assistance with activities such as using the toilet and bathing, and was found to lack “the capacity to make her needs known.” The nursing home received a federal “deficiency” citation.

In another case that resulted in a deficiency citation, a nursing home resident who “needed extensive assistance” to move between locations in his bedroom was discharged to a motel — and, a few days later, ended up in a hospital for emergency care.

These practices are not unique to California. In Maryland, one nursing home resident was dropped off in Baltimore, a city she had never been to, according to the state attorney general’s office. In another instance, a Washington County Sheriff’s deputy accused a nursing home of discharging a resident to a storage unit on a hot summer day.

Even when residents appeal eviction decisions through a state process and win the right to return to a nursing home, that nursing home sometimes refuses to readmit them, a group of plaintiffs told the Ninth Circuit Court of Appeals found in July. The case is still pending, but the appeals court agreed with the plaintiffs that federal law does not allow “meaningless show trials that allow nursing homes to persist in improper transfers and discharges.”

The California Department of Health Care Services, the California Department of Public Health and the federal Centers for Medicare & Medicaid Services all declined to comment, citing department policy not to comment on pending litigation.

A push for enforcement

In 2016, the Centers for Medicare & Medicaid Services strengthened regulatory requirements around nursing home discharges and transfers, specifying that residents cannot be evicted for nonpayment while they are in the process of applying for Medicaid or appealing a Medicaid denial. A year later, the agency announced an initiative to prevent illegal nursing home discharges, acknowledging that “some discharges are driven by payment concerns, such as when Medicare or private pay residents shift to Medicaid as the payment source.”

So far, the agency has approved $784,630 for a program in California that focuses on training nursing home staff on discharge regulations, a spokeswoman said in an email. The agency also provided $84,00 for a smaller project in Montana. Beyond that, the agency is not acting directly to address illegal evictions but is instead encouraging states “to propose projects that seek to address facility-initiated discharges that violate federal regulations,” the spokeswoman said by email.

Advocates for nursing home patients said more is needed. They want both federal and state agencies to do more to enforce existing rules on evictions.

“We haven’t seen any change in practice,” said Davies, the California long-term care ombudsman. “We haven’t seen a reduction in inappropriate transfers and discharges. There are certain enforcement tools that they have that they aren’t using consistently.” These tools, she said, include substantial fines.

But the federal government has made changes that reduced fines against nursing homes that harm or endanger residents. Nursing homes used to receive fines for each day a violation was observed, but after a change the Trump administration implemented in July 2017, nursing homes are now usually fined just once per retroactive violation.

Robyn Grant, director of public policy and advocacy at the National Consumer Voice for Quality Long-Term Care, an advocacy group, says this change can affect the way illegal evictions are punished. For instance, a nursing home that evicts a patient and refuses to readmit the person may be fined one time, instead of every day that the resident is denied access to a bed.

In the first 18 months following the change in guidelines, nursing homes across the country paid about $47 million less in fines for all violations compared to the previous 18-month period, said Dr. David Gifford, senior vice president of quality and regulatory affairs at the American Health Care Association, the nursing home industry’s main lobbying group.

Gifford told NBC News that the change was not about saving the industry money, but was meant to ensure consistent standards. He said the new fine structure incentivizes nursing homes to report violations and improve resident care.

‘I thought I was completely covered’

After she left the Bishop Care Center nursing home in March, Glenda Moore grew sicker. Over the following weeks, she cycled among her son and daughter-in-law’s home, several emergency rooms and another nursing home an hour away. According to her son and daughter-in-law, she was diagnosed with a bladder infection and pneumonia.

“I don’t want to be a burden on the kids,” Glenda Moore told NBC News in an interview in April. “I had retirement insurance, I had Medicare, I thought I was completely covered. That doesn’t count for anything … I had no idea.”

In May, her family appealed her discharge from the center. At a hearing conducted by the California Department of Health Care Services, the nursing home’s administrator said Glenda Moore had left willingly, according to the state’s summary report.

The state’s hearing officer ultimately found that the facility “failed to meet all of the regulatory-mandated discharge planning requirements.” However, the hearing officer ruled in favor of the nursing home, noting that Glenda Moore agreed to leave and was given paperwork notifying her of her right to appeal Medicare’s noncoverage decision.

By late July, her weight had dropped to about 80 pounds. She was hospitalized, and on Aug. 2 she died from acute renal failure and cardiopulmonary arrest.

Glenda Moore lived for a time with her son and daughter-in-law. Valerie Bischoff / for NBC News

Her family believes she wouldn’t have become so sick if she had been able to stay in the Bishop Care Center for a few weeks longer, until she was more stable.

Jamie Moore said her mother-in-law’s experience has changed the way she thinks about her own retirement.

“I never thought about it much until now. It scares the crap out of me,” she said. “The system is the system. What are you doing to do?”

Full Article & Source:
Some nursing homes are illegally evicting elderly and disabled residents who can't afford to pay