by Stephen Hawkins
Effective August 11, 2021, Ruth Ellen Ratzlaff of Kingsburg is disbarred for failure to comply with conditions of probation resulting from earlier discipline.
Ratzlaff was previously suspended for 60 for failure to perform and failure to appear and timely pay sanctions.
by Bobby Schindler
The man is not cognitively impaired but cannot physically produce speech. This is the first time signals directly from the brain, using an electrode array placed on the brain surface, have been used to decode speech as words from such a person.
Researchers from the University of California, San
Francisco used an algorithm to identify and decode words from the brain
signals, along with language modeling in which words were identified
using the context in sentences. They were able to decode speech with a
word error rate of 25.6 percent when decoding sentences. CONTINUE
HOUSTON, Texas - U.S. Sen. Ted Cruz (R-Texas), along with the other Republican members of the Senate Judiciary Committee, today sent a letter to Chairman Dick Durbin (D-Ill.), urging him to hold a hearing on the civil rights of senior citizens in New York, Pennsylvania, Michigan, and New Jersey nursing homes following their death rates due to COVID-19 and the decision by these states to force nursing homes to accept COVID-positive patients.
Co-signers of Sen. Cruz's letter to Chairman Durbin include Sens. Chuck Grassley (R-Iowa), Lindsey Graham (R-S.C.), John Cornyn (R-Texas), Mike Lee (R-Utah), Ben Sasse (R-Neb.), Josh Hawley (R-Mo.), Tom Cotton (R-Ark.), John Kennedy (R-La.), Thom Tillis (R-N.C.), and Marsha Blackburn (R-Tenn.).
In the letter, the senators wrote:
"Congressional oversight is needed to ensure the protection of seniors' civil rights and to seek justice for seniors in long-term care facilities who lost their lives to COVID-19, given the Department of Justice's Civil Rights Division's recent announcement that it will not ‘open a CRIPA (Civil Rights of Institutionalized Persons Act) investigation of any public nursing facility within New York, Pennsylvania, or Michigan at this time.' This decision not to pursue potential civil rights violations in states with high-profile Democrat governors raises serious concerns that the Biden administration is acting based on politics, not the law.
"There is ample basis to investigate the nursing home response in New York, Pennsylvania, Michigan, and New Jersey, particularly in light of the billions of dollars that Congress appropriated for the COVID-19 response. These four states pressured nursing homes to accept patients with active COVID-19 infections who were being discharged from hospitals at the height of the pandemic."
Read the full text of their letter here and below.
August 13, 2021
The Honorable Dick Durbin
Chairman, United States Senate Committee on the Judiciary
224 Dirksen Senate Office Building
Washington D.C. 20510
Dear Chairman Durbin,
In February, nine members of this Committee sent you a letter asking you "to open an investigation and schedule hearings" into whether state governors, and especially Governor Cuomo of New York, violated the civil rights of seniors by sending individuals with COVID-19 to nursing home facilities. We have yet to receive a response from you.
Congressional oversight is needed to ensure the protection of seniors' civil rights and to seek justice for seniors in long-term care facilities who lost their lives to COVID-19, given the Department of Justice's Civil Rights Division's recent announcement that it will not "open a CRIPA (Civil Rights of Institutionalized Persons Act) investigation of any public nursing facility within New York, Pennsylvania, or Michigan at this time." This decision not to pursue potential civil rights violations in states with high-profile Democrat governors raises serious concerns that the Biden administration is acting based on politics, not the law.
There is ample basis to investigate the nursing home response in New York, Pennsylvania, Michigan, and New Jersey, particularly in light of the billions of dollars that Congress appropriated for the COVID-19 response. These four states pressured nursing homes to accept patients with active COVID-19 infections who were being discharged from hospitals at the height of the pandemic. Moreover, these states did so despite directions from the Centers for Disease Control and Prevention (CDC) that hospitals should not discharge patients with a COVID-19 diagnosis to a long-term care facility unless "the selected long-term care facility [is] able to safely care for a patient recovering from the virus by implementing all recommended infection control procedures." By discharging patients to long-term care facilities, the states likely increased the case rate or fatality risks for nursing homes. And then, to cap it off, there is significant evidence that Governor Andrew Cuomo of New York and his senior staff engaged in a cover-up to minimize the death toll in these facilities.
We need to understand what happened and the extent to which these states violated federal law. That is why nine members of this Committee previously asked you to schedule a hearing on these issues. It is also why, on March 12, four members of this Committee and Senator Tim Scott, as the Ranking Member of the Select Committee on Aging, sent a letter to Attorney General Garland asking him to "investigate whether any such state directives were inconsistent with guidelines or requirements for participation in Federal programs and determine whether there was a cover-up or obstruction of justice by public officials who were the subject of DOJ's investigation."
At the time we called for a hearing in February, our purpose was to promote transparency for the American people on this issue and to determine whether "the Department of Justice has all the tools and funding that it needs to investigate and prosecute to the extent necessary this tragedy." Now, with the Department's decision not to open a CRIPA investigation, a hearing is needed for those same reasons, as well as to ensure that the Department is acting impartially and in accordance with the law.
As part of our duty to oversee the Department of Justice, we need to know, for example, why the Department has decided not to pursue a CRIPA investigation, who made that determination, and whether that decision was made in consultation with the White House. Indeed, these questions are all the more important considering that the Civil Rights Division under Kristen Clarke has been extraordinarily aggressive in pursuing actions against political opponents, but appears to have taken a markedly different approach with regard to this investigation. We also need to know whether political considerations are interfering with any criminal investigation being conducted by the U.S. Attorney's Office for the Eastern District of New York.
Grieving families deserve more than silence from this Committee: they deserve answers and accountability. We should hold a hearing on whether New York, Pennsylvania, Michigan, and New Jersey violated seniors' civil rights by sending COVID-19 patients to nursing homes, whether any of these states lied about COVID-19 deaths, and whether the Department of Justice is thoroughly and impartially investigating these matters.
Sincerely,
/s/
###
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| A nursing home patient is loaded into an ambulance in Brooklyn, N.Y. |
The bill, dubbed the Nursing Home Improvement and Accountability Act, was introduced by six Democrats, including Ron Wyden of Oregon, chair of the Senate Finance Committee, and Bob Casey of Scranton, chair of the Senate Aging Committee.
It comes as covid-19 infections across the country surge, fueled by the highly contagious delta variant.
Stunning death tolls
The initial surge in infections in early 2020 focused a bright light on continuing staffing deficiencies and infection control issues in nursing homes such as the Brighton Rehabilitation and Wellness Center in Beaver County. Eventually, Pennsylvania Gov. Tom Wolf sent in the National Guard to assist staff at the massive 589-bed facility. More than 70 residents died. Officials eventually said everyone in the nursing home had been infected with the coronavirus.
While Brighton had more covid-19 deaths than any nursing home in Western Pennsylvania, few facilities escaped unscathed before vaccines were released late last year. Recent reports detail how more than half of the 27,957 covid-19 deaths in Pennsylvania occurred in long-term care facilities — 13,434 among nursing home residents and 1,894 in personal care and assisted-living facilities.
Such numbers were the rule rather than the exception in many states.
In June, the New York Times reported that while only 4% of the nation’s covid-19 cases occurred among nursing home patients, the frail and often disabled residents of those facilities accounted for 31% of the nation’s covid-19 deaths.
Casey, who highlighted continuing health and safety violations at hundreds of nursing homes a year before the pandemic, was among those who have vowed to bring increased scrutiny and reform to nursing home operations.
The stunning death toll the pandemic claimed among nursing home residents underscored the need for such action, he said.
Only when vaccines became available and officials prioritized nursing home residents as the first to receive them did covid-related deaths in such facilities begin to subside.
“The profound loss of life in nursing homes from covid-19 was a tragedy within the broader tragedy of the pandemic,” Casey said, announcing the new bill. “The residents, workers and families who suffered through it are owed solutions, to ensure we prevent such tragedies in the future. This legislation provides the transparency and accountability that families deserve, expanding staffing, technical assistance and oversight efforts across the board.”
The bill would bump up staffing requirements. Among the new regulations, each facility would be required to have a full-time infection control and prevention specialist. It also requires that a registered nurse be available 24 hours a day at each facility.
The federal legislation would provide additional funding to underwrite such changes and raise wages. A recently proposed state regulation to increase minimum staffing requirements for nursing care at such facilities did not.
Where nursing homes stand
It’s an important issue, said Zach Shamberg, president and CEO of the Pennsylvania Health Care Association, a trade group that represents more than 200 Pennsylvania nursing homes and 200 assisted-living and personal care homes. He said Casey has been a friend to the sector, and they hope to have continuing dialogue with him.
Nonetheless, his group has concerns about parts of the bill. A provision banning requirements that patients sign agreements waving their right to sue when they are admitted to nursing homes struck the trade group as unreasonable.
“To ban arbitration agreements in Pennsylvania, one of the most litigious states in the country on long-term care, would result in more and more dollars going to trial attorneys instead of bedside care,” Shamberg said. “And funding for staffing would last for six years. But on the seventh year, the money runs out and it becomes another unfunded mandate.”
State regulators also are demanding that nursing homes improve infection prevention by requiring that workers be vaccinated.
On Thursday, Keara Klinepeter, executive deputy secretary of the Pennsylvania Department of Health, said nursing homes should plan to have at least 80% of their staff vaccinated for covid-19 by Oct. 1. She said current reports show only 12.5% of the state’s nursing homes have reached that vaccination level.
The vaccine mandate — met with skepticism in an industry already plagued by a shortage of workers — is needed to prevent future outbreaks in those facilities, Klinepeter said.
The controversy underscores an increasingly contentious relationship between nursing homes and those who regulate them.
Shamberg said the industry has been working to educate workers and residents on the benefits of the vaccine ever since it became available.
“Instead of proposing solutions to increase vaccine acceptance
rates in long-term care, the Department of Health threatened providers
and issued a punitive mandate on nursing homes if 80% vaccination rates
are not achieved,” he said.
Q. What happens if a person dies owing the IRS and was having payments taken out of his Social Security check? He has no estate and no will. Social Security was notified by the funeral home. He had a live-in girlfriend and was estranged from his children. Who has to pay?
— Not me, I hope
A. In this case, no one.
When someone dies without a will, it’s called dying “intestate.”
Normally, an heir of the deceased would ask a probate judge to put them in charge of the deceased’s estate, said Bernie Kiely, a certified financial planner and certified public accountant with Kiely Capital Management in Morristown.
But you said in your question that the deceased had no estate and the children were estranged.
“There may be no one to stand up and accept responsibility,” Kiely said. “If there are no assets, no one would want to get involved.”
You said the deceased lived with his girlfriend. If they lived in an apartment, then there is no property there, Kiely said. If the deceased owned his home, then there may be some net worth in the home, he said.
“If
the deceased died with no assets, then the IRS is out of luck,” Kiely
said. “In this country, children do not inherit their parents’
liabilities.”
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| Britney Spears. (Photo via Creative Commons/Flickr by Rhys Adams) |
THE UNFORTUNATE experience Britney Spears has had under guardianship should not be construed to imply that all guardianship arrangements are abusive or exploitative.
And the Spears case should not be used, in particular, to advocate for legislation that could make it more difficult for family members to become or remain as guardians of persons with intellectual and other developmental disabilities.
Those, however, are implications that we think can be drawn from an opinion piece by Scott Harshbarger and Paul Lanzikos in CommonWealth. Citing the Spears case, the piece states that Harshbarger’s and Lanzikos’ organization, The Massachusetts Guardianship Policy Institute, is seeking better oversight “to prevent overreaching by guardians or conservators…”
The article specifically calls for legislation to create a state Office of Adult Decisional Support Services (H.1898 and S.974). According to the piece, the office would “improve oversight and best-practices in guardianship and conservatorship, as well as support alternatives to guardianship—such as supported decision-making—statewide.” (Emphasis mine.) More about supported decision-making in a moment.
Certainly, there are compelling questions as to why someone like Britney Spears remains under guardianship, also known in some states as conservatorship. She is a hugely talented singer, songwriter, dancer, and actress who we assume is cognitively normal, and who appears to be involuntarily trapped under the guardianship of her father. She appears to be capable of making her own life choices.
But not all guardianship arrangements are like Spears’ relationship with her father, and not all persons under guardianship are capable of making their own life choices. Yet that is one of a number of distinctions that appear to be lost or glossed over in Harshbarger’s and Lansikos’ piece, and are glossed over as well by the supported decision-making movement.
Guardianship is under attack, and the Spears case, in particular, is being used by anti-guardianship activists around the country and even by some members of Congress to justify the elimination of guardianship.
We are concerned that the Guardianship Policy Institute may be proposing the Office of Adult Decisional Support as a backdoor means of instituting supported decision-making in Massachusetts as an “alternative to guardianship.” Supported decision making is an arrangement in which individual guardians are replaced by teams or “network supporters,” who enter into written agreements with disabled individuals to help them make decisions about their care, finances, and living arrangements, and in other areas. Supported decision making proponents maintain that guardianship unduly restricts the rights of disabled individuals to make those decisions.
We think supported decision-making can hold promise for some high-functioning individuals; and we would support its adoption with adequate safeguards, particularly safeguards against the potential marginalization of family members. The problem with proposed legislation to implement supported decision-making in Massachusetts (H.272 and S.124) is that, as with earlier versions of the measure, there appear to be few, if any, such safeguards in it. The bills still provide no standard for determining who might be eligible for supported decision-making.
The legislation continues to avoid the question whether everyone is really capable of making their own decisions in those very important areas. Supported decision making proponents need to recognize that there are some individuals who do not have the cognitive skills necessary to make reasonable decisions. Those people need guardians – preferably guardians who are family members.
The legislation that would create the Office of Adult Decisional Support Services is, moreover, vague as to the duties of the proposed agency; and “decisional support services” are not even defined in the legislation. The Office would be tasked with “developing oversight and accountability procedures to prevent potential errors or abuses by decisional fiduciaries.” We think better oversight and more accountability are needed in the probate system; but it is unclear what the proposed Office would consider to be abuses.
We have identified what we think are abuses, including the incentives the probate court system in Massachusetts gives to professional guardians to acquire as many wards as possible while doing little to represent them. This raises another distinction that Harshbarger and Lanzikos appear to have failed to make. In our experience, the overreaching that they refer to applies much more commonly to professionals hired to serve as guardians than it does to family members.
We think reform of the probate system in Massachusetts is needed, and a first step would be passage of H.1733, a bill which would require that probate court judges consider parents of individuals in the DDS system to be suitable guardians for them. In too many instances, Department of Development Services officials, clinicians, providers, and probate judges dismiss families as uninformed or meddlesome. But we have seen time after time that it is family members who not only have their loved ones’ best interest at heart, but are often the ones most intimately knowledgeable about their physical and emotional conditions.
A serious discussion of guardianship reform is sorely needed. But the
proposal from Harshbarger and Lansikos appears to be one-sided. Basing
their proposal on the Britney Spears case is a key indication of that.
A Topeka attorney who was convicted in a fatal hit-and-run crash has been disbarred.
The Kansas Supreme Court revoked Roy Artman's law license because of his role in the fatal 2016 crash that killed 29-year-old Anthony Espinoza. He was found guilty in 2019 of leaving the scene of a fatal crash.
According to court records, Artman struck two people who were changing a tire on their vehicle while he was driving on Interstate 70 between Topeka and Lawrence. Espinoza was killed and the other person was injured.
Artman testified he had a couple alcoholic drinks at a restaurant before the crash and that he didn’t know what he hit that night, according to the Topeka Capital-Journal.
The Kansas Supreme Court said Artman’s testimony about the crash wasn’t consistent with the evidence.
Artman was sentenced to 24 months of probation after he was convicted in November 2019.ad more |
| Image credit: © Andrey Prilutskiy | Dreamstime.com |
The Elder Justice Reauthorization and Modernization Act of 2021 would add significant muscle to state programs to investigate elder abuse, neglect, and exploitation, according to the Insured Retirement Institute (IRI).
The much-needed increase in federal assistance under the legislation recently introduced in Congress dedicates funding to vital programs to address vulnerable seniors’ needs. The measure is one of several priority items advocated by IRI, which called for the passage of this legislation in its 2021 Federal Retirement Security Blueprint.
“In addition to advocating for expanded retirement savings opportunities and lifetime income options for workers and retirees, IRI supports increased protection to safeguard our elderly population from fraud, abuse, and exploitation,” Paul Richman, IRI Chief Government and Political Affairs Officer, said in a statement. “IRI commends and strongly supports the work and leadership of the House and Senate bill sponsors, Rep. Richard Neal, D-Mass., Sen. Ron Wyden, D-Ore., Rep. Suzanne Bonamici, D-Ore., and Sen. Robert Casey, Jr., D-Penn.
According to the advocacy organization, the bill would ensure that the services and programs authorized under the Elder Justice Act (EJA) can continue to protect older and vulnerable Americans by authorizing $4 billion, including $1.4 billion to support state and local Adult Protective Services (APS) agencies.
Financial firms and professionals, law enforcement officials, policymakers, and others are also beefing up resources to help retirees avoid the devastating loss of retirement income as a result of scams or exploitation, especially by caregivers or family members. An IRI survey found that about 60 percent of financial professionals saw a confirmed case of financial abuse of elderly investors at least once over three years
“Financial abuse can erase a lifetime of savings and leave older
workers and retirees in financial ruin,” Richman added. “With the
population of older Americans expected to double in size to nearly 84
million citizens by 2050, there needs to be a concerted effort to combat
financial exploitation.”
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| A #FreeBritney protest outside Spears’ conservatorship hearing in Los Angeles last month. Photograph: Étienne Laurent/EPA |
Around the world, fans of pop star Britney Spears celebrated her father’s announcement last week that he would resign as her conservator. This development is welcome news for Spears and her supporters, dubbed the #FreeBritney movement. But it will not end Spears’ conservatorship, which has prevented her from making decisions about her own life since it was established shortly after she had a mental breakdown in 2008. Nor will it prevent others from finding themselves in similar situations. That will require changing the underlying legal systems that created Spears’ predicament.
While many have only recently learned of conservatorship thanks to the #FreeBritney movement, this legal process is neither new nor unique to the US. It is a common court proceeding in which the court appoints someone to make decisions for individuals the court has found cannot make decisions for themselves. California – where Spears lives – calls this proceeding conservatorship and calls the appointee a conservator. More commonly, it is called guardianship and the appointee is called a guardian. While Spears has drawn attention to guardianship, the process typically entangles those far less privileged. Changes in the pop star’s situation , as welcome as they may be, won’t themselves trigger the reform of a legal mechanism mainly experienced by people society has historically treated as expendable.
Since medieval times, English law has recognised the government’s power as parens patraie (or “parent of the people”) to manage the property and bodies of citizens with cognitive disabilities. The first guardianship statutes were adopted in England in the 1600s during the reign of Charles II. And countries around the world have parallel systems that enable courts to appoint others to make decisions for people determined unable to do so for themselves. In England and Wales, for example, the court of protection can appoint a deputy in such situations; in Scotland, sheriff courts can appoint a guardian.
Guardianship can provide valuable protection and assistance to those unable to care for themselves. Suppose an individual has a chronic illness but, due to advanced dementia, cannot understand the nature or consequences of that illness even with substantial help. If the person never executed a power of attorney appointing someone to make decisions for them, the best option may be for a court to appoint another person to make those decisions.
But – as the Spears case painfully illustrates – guardianship also has very real costs. Individuals subject to guardianship lose the right to make some or nearly all decisions for themselves. Guardianships can also undermine fundamental human rights –indeed, broad guardianships may run afoul of the UN convention on the rights of persons with disabilities.
The result is that guardianship can be stigmatising and traumatising for the very people it is designed to protect. Spears, for example, provided heart-wrenching testimony about the trauma of being prohibited from making basic choices about her life and body – including whether to remove an IUD preventing her from having further children.
Given the costs it poses, it is widely agreed that guardianship should only be used as a very last resort. And when guardians are appointed, they should be granted only those powers truly necessary to meet individuals’ identified needs. If a court finds a person lacks the ability to make major financial decisions, it does not mean the person should not be allowed to manage their own personal affairs or control smaller amounts of money.
Unfortunately, guardianship is often treated as a go-to intervention for individuals with cognitive disabilities or serious mental health problems, not a last resort. Research suggests guardianships in the US are routinely granted with minimal independent evaluation of the individual’s needs and abilities, and without full exploration of less restrictive alternatives. Indeed, they are so routinely granted over young adults with intellectual disabilities in the US that they are treated almost as a rite of passage. In addition, guardians are routinely granted very broad powers. Best evidence indicates that the vast majority of guardianships in the US are plenary – that is, they strip those subject to them of all rights that can be removed under state law.
Making matters worse, once granted, guardianships can be very hard to end. Individuals subject to guardianship often lack the awareness, resources and legal assistance needed to successfully challenge the appointment. This problem appears to be particularly acute in California, where courts have unconstitutionally denied individuals subject to conservatorship – including Spears – the right to choose an attorney to represent them in challenging their conservatorship.
For decades, advocates for older adults and individuals with disabilities have called for reforming guardianship laws around the world. In recent years, there has also been an explosion of interest in encouraging alternatives to guardianship – especially supported decision-making, a process by which individuals who might otherwise be unable to make their own decisions do so with help from people they trust.
In the US, the Uniform Law Commission created model legislation that, if adopted by states, could help prevent others from finding themselves in Spears’ predicament. The legislation would, for example, make it harder to impose guardianships and easier to terminate them, require courts to be more proactive in removing guardians and terminating guardianship, prohibit courts from denying individuals like Spears access to counsel of their own choosing, and limit the ability of unscrupulous guardians to drain assets by charging unreasonable fees.
But, although the US Special Committee on Aging and others have urged every state to adopt the model Act, only two – Washington and Maine – have. Instead, state legislatures have either ignored the problem or made piecemeal reforms.
What accounts for this tepid response to law reform efforts? Guardianship reform historically hasn’t been a “hot” political issue. Most people subject to guardianship are older adults or persons with substantial cognitive disabilities – groups too often treated as expendable. And reform efforts often face opposition from judges and attorneys who have grown comfortable with the status quo.
The good news is Britney Spears’ very public struggle with her conservatorship has the potential to spark the reform. Seeing a young, vibrant, working pop star who can clearly articulate her own wishes traumatised by the guardianship system may be the wake-up the world, and especially the US, needed. Perhaps now there will be the political will needed to ensure guardianship finally becomes the last resort it should always have been.
Nina A Kohn is the David M Levy professor of law at Syracuse
University and the Solomon Center distinguished scholar in elder law at
Yale Law School.
