Bill would ban nursing home inspections in court cases

Editor's note: This Shark wonders how big of a pay off from the "Judicial-Nursing Home Complex" was required for this travesty of justice? Lucius Verenus, Schoolmaster, ProbateSharks.com

Bill would ban nursing home inspections in court cases

Posted 5:28 pm, March 9, 2015, by Zaneta Lowe, Updated at 08:52pm, March 9, 2015

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MEMPHIS, Tenn. — One patient choked to death, another claimed he was raped. WREG has uncovered new and very disturbing details about problems at a local nursing home.
The On Your Side Investigators also discovered these same details could be kept secret.
An inspection report from federal and state health surveyors shows Signature Healthcare at St. Peter Villa in MidTown Memphis was hit with more than 20 deficiencies in August of 2014.
Read full report here.
The survey shows one resident choked to death after the facility failed to provide the proper diet, neglected to monitor the patient during meals, and never even attempted a maneuver to stop the choking.
It also reveals Signature Healthcare at St. Peter Villa “failed to thoroughly investigate” an alleged rape.
The resident wasn’t sent to the ER for a rape kit, and the nursing home never even notified police.
The On Your Side Investigators recently uncovered problems at another Memphis nursing home owned by the same company.
Dozens of viewers contacted WREG after our report on Signature Healthcare at Saint Francis.
One wrote in an email, “My grandfather died in the care of the staff at Signature Nursing home.”
Another said in a Facebook message, “My mother was Resident #5 in the story you did last night about Signature Healthcare. So glad you have put this out there.”
However, details like the horrific ones in the surveys we revealed could soon be kept secret, if a bill sponsored by Tennessee State Senator Brian Kelsey and Representative Leigh Wilburn becomes law.
Senate Bill 889 would prohibit survey and investigation results from being used as evidence in malpractice cases.
Read bill here.
Cameron Jehl is a Memphis Attorney who has sued nursing homes before. He opposes the proposed legislation.

“If the nursing homes violates federal law and federal regulations, they’re required to comply with in order to keep and take care of the elderly, then they should be held accountable for their actions,” Jehl said.
However, Senator Kelsey says attorneys will sometimes misuse negative survey results to paint nursing homes with a broad brush, rather than focusing on a single incident that led to a injury or fatality.
“I think we have to look at the instances when this information should be available and what are the instances in which it’s being used in a way that’s not exactly the full and 100 percent truth,” Kelsey said.
The bill also addresses ads that law firms often run in newspapers about problems at nursing homes.
It stipulates that if the ad mentions a deficiency, it also must be noted if and when the deficiency was corrected.
Proponents say the advertisements, often run by out of state law firms, don’t always include timely information.
When asked about using inspections in court cases, and how such evidence could be used on behalf of a plaintiff to reveal a pattern of problems that the nursing home has been made aware of, Senator Kelsey told WREG, “This is really just the beginning of the conversation. This bill will be amended when it goes through the committee process. It will get a full hearing.”
Jehl added, “These nursing homes, when they neglect and abuse the elderly, they have to be held accountable.”
The Senate version of the bill heads to the Senate Judiciary Committee.  The house version is going to the Health Subcommittee.
To check out inspections for nursing homes or compare facilities in the Memphis area, go here.
Inspections can also be found at this state site.
WREG reached out to the administrator of Signature Healthcare at St. Peter Villa but we have yet to receive a response.

Filed in: News, On Your Side
Topics: Brian Kelsey, LEIGH WILBURN, nursing home inspections, Signature Health Care at St. Peter Villa, Signature Healthcare at Saint Francis

S.C. House Approves Jail Time for Filing ‘Groundless’ Complaints against Judges

Editor's note: This Shark believes that this law would slant to the judges in the Probate Court of Cook County. Thus, the judges could not only prevent visitation of wards but could prevent freedom of any complainants.  Lucius Verenus, Schoolmaster, ProbateSharks.com

S.C. House Approves Jail Time for Filing ‘Groundless’ Complaints against Judges

by Rick Brundrett
Feb. 23, 2015, 8 a.m.

UPDATE: 3/4/15 - The S.C. House dropped a provision from an omnibus ethics bill (H. 3722) that would have criminalized "groundless" judicial complaints "wilfully" filed by citizens. The House action was based on an amendment by Rep. James Smith, D-Richland and an attorney, who earlier had successfully pushed for the criminal penalty to be reinstated in a smaller ethics bill (H. 3184) cited in The Nerve story below. The larger bill, sponsored by House Speaker Jay Lucas, R-Darlington and an attorney, was introduced after The Nerve story below.
Anyone who “wilfully” files a “groundless” ethics complaint against a South Carolina judge could face a maximum one-year prison sentence or a fine of up to $1,000 if convicted of the criminal misdemeanor charge, under a state House bill now in the Senate.
There currently is no such criminal charge covering "groundless" complaints filed with the S.C. Commission on Judicial Conduct, a 26-member panel appointed by the Supreme Court that can authorize ethics charges against judges and conduct hearings.
On top of the criminal penalty, H. 3184, sponsored by Rep. Tommy Pope, R-York and a former solicitor, would allow a reconfigured Commission of Judicial Conduct to impose a maximum $1,000 civil fine against a person who filed a complaint that was "groundless, wilful and without just cause or with malice" - something which is not specified in current law or court rules.
Judges in the Palmetto State rarely face any discipline - public or private - despite several hundred complaints filed yearly, The Nerve found in a review of court statistics over the past five fiscal years. And the disciplinary process is largely secret under court rules.
Under those rules, anyone filing complaints against judges can publicly reveal their allegations whether or not formal ethics charges are authorized by the Commission on Judicial Conduct, though H. 3184 would keep complaints secret unless charges are issued. Under the bill, the “wilful release of confidential information" would be a criminal misdemeanor, punishable upon conviction by a maximum one-year prison sentence or a fine of up to $1,000.
Contacted Friday, a retired Colorado appellate judge and former executive director of the American Judicature Society, a national judicial research organization that dissolved last year, told The Nerve that the language in H. 3184 could have a chilling effect on citizens filing legitimate ethics complaints against S.C. judges.
“It’s like going through a red traffic light - you just have to go through the traffic light to get a ticket,” said Russell Carparelli, who served on the Colorado Court of Appeals from 2003 to 2013. “That’s what they seem to be saying here (in H. 3184) - you just have to do it. There’s no criminal intent.”
Neither the terms “wilful” nor “groundless” are defined the bill, which Carparelli said would give S.C. authorities wide discretion in interpreting it, adding, “If you make it too wide in the beginning, it can have far more unintended consequences.”
Pope, who is the House speaker pro tempore, told The Nerve when initially contacted last week that he thought the bill’s language was copied from existing state ethics law covering state lawmakers and other public officials.
“I’m thinking it’s to mirror that,” said Pope, a former longtime solicitor for York and Union counties.
Under current ethics law, the House and Senate Ethics committees have sole jurisdiction over House and Senate members, respectively, while the State Ethics Commission polices other state and local public officials for ethics violations. Pope’s bill would give a reconfigured State Ethics Commission - which would be made up of members appointed by the governor, Supreme Court and Legislature - the authority to investigate state lawmakers.
Current law allows for a civil fine in lieu of, or in place of, the criminal penalty for the “wilful” filing of a “groundless” complaint against lawmakers or other elected public officials. In contrast, H. 3184 would allow for a civil fine in addition to the criminal penalty for "wilful" and "groundless" complaints against judges.
Under the bill, if the State Ethics Commission found that a "complaining party wilfully filed a groundless complaint, the finding must be reported to the Attorney General and to the Commission on Judicial Conduct." The reconfigured judicial commission would be made up of 24 members, with the Supreme Court, governor and Legislature each appointing eight members.
The Nerve in a written follow-up message asked Pope, who previously served on the House Ethics Committee, whether he believed potential criminal and civil penalties for filing ethics complaints against judges and politicians would have a chilling effect on citizens’ free-speech rights. No response was given by publication of this story.
Lee Coggiola, who heads the state Office of Disciplinary Counsel, which screens ethics complaints against judges and conducts investigations on behalf of the Commission on Judicial Conduct, was surprised when contacted last week by The Nerve about the bill’s language concerning judicial complaints.
“I really thought that had come out (of the bill),” she said.
Pope included criminal and civil penalties for "wilfully" filing "groundless" complaints against judges when he initially introduced his bill on Dec. 18, though that section later was taken out by the House Judiciary Committee. But on Jan. 28 on the House floor, Reps. James Smith, D-Richland, and Doug Brannon, R-Spartanburg - both of whom are attorneys - successfully sponsored an amendment reinserting the sanctions and allowing the civil fine to be in addition to the criminal penalty instead of "in lieu of" as written in Pope's original version, according to the House Journal.
The legislation, which is co-sponsored by 39 House Republicans and Democrats, including House Speaker Jay Lucas, R-Darlington and an attorney, is part of a package of House bills aimed at reforming various parts of state ethics law. Pope’s bill passed the House on Jan. 29 and was referred to the Senate Judiciary Committee, chaired by Sen. Larry Martin, R-Pickens. Freshman Rep. Jonathon Hill, R-Anderson, was the only House member to vote against the bill on the final reading.
Martin, who is chairman this year of the legislatively controlled judicial screening commission, was the main sponsor of an omnibus ethics bill (S. 1), which failed earlier this month on the Senate floor after an amendment, sponsored by Sen. Luke Rankin, R-Horry and the Senate Ethics Committee chairman, was added that would have kept lawmakers involved with investigating themselves for alleged ethics violations.
Under current law, neither the House or Senate Ethics committees nor State Ethics Commission has jurisdiction over judges for violations of the state’s judicial code of conduct. Discipline of judges rests with the S.C. Supreme Court; the Commission of Judicial Conduct - made up of 14 judges, four lawyers who have never held a judgeship and eight public members - is responsible for investigations and hearings, with assistance from the Office of Disciplinary Counsel (ODC), an arm of the Supreme Court.
One of the judicial conduct commission’s members - Greenville County Circuit Judge Edward “Ned” Miller, whom the Legislature re-elected earlier this month - is under investigation by the ODC for alleged ethics violations filed by Brenda Bryant of Lexington County in connection with her legal battle involving guardianship of her adult intellectually disabled daughter, as The Nerve has chronicled since October.
South Carolina and Virginia are the only states where their legislatures play primary roles in electing judges.
Few Judges Disciplined
The Nerve’s review of annual statistical reports by the Commission on Judicial Conduct found that the vast majority of complaints against judges are dismissed, and there are few public sanctions of judges.
Over the past five fiscal years, the commission received a total of 1,473 complaints against judges, plus handled a collective 180 complaints that were pending at the beginning of those fiscal years. The vast majority of complaints - 1,365, or nearly 83 percent of the total 1,653 received and pending complaints - were dismissed, mainly by the ODC after initial review.
Specifics about the dismissal reasons were not given in the reports. Court officials previously have told The Nerve that complaints typically are dismissed because they raise appellate issues rather than ethical allegations, though the public usually has no way of reviewing those complaints because they are kept secret under court rules.
The vast majority of complaints that were not dismissed over the five-year period were handled with private sanctions or other private actions - 120, or nearly 88 percent, out of 137 complaints, The Nerve’s review found.
Of 17 public sanctions issued over the period, according to commission reports, 14, or 82 percent, were public reprimands - generally the least-severe public sanction available under court rules. Two judges were suspended, and one was removed from office, records show.
No disciplined judges are identified in the reports. The Nerve’s review of online Supreme Court disciplinary orders over the past five fiscal years found no public sanctions of any family, circuit, master-in-equity or appellate judges, though a total of 725 complaints were filed against judges in those categories over the period, commission reports show.
Virtually all of the judges identified in the disciplinary orders were lower-level magistrates, also known as summary court judges, which include municipal judges. The only sanctioned judge during the period besides a summary court judge was an associate probate judge. Most of the disciplined judges received public reprimands.
The only jurist removed from office by the Supreme Court during the period was a municipal judge; several magistrates resigned or retired from office before receiving public reprimands, The Nerve’s review found.
Reach Brundrett @ (803) 254-4411 or rick@thenerve.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and Twitter @thenervesc.

Accountability Ethics General Assembly Judiciary Transparency Legislative Power Trip
Office of Discplinary Counsel Rep. Tommy Pope Circuit Court Edward Miller Sen. Larry Martin S.C. Commission on Judicial Conduct S.C. Supreme Court Brenda Bryant House Speaker Jay Lucas

Guardianship bill clears panel

Editor's note: But how would this play in Illinois with a probate court stocked with Kawamoto and Solo clones?  Lucius Verenus, Schoolmaster, ProbateSharks.com

Guardianship bill clears panel

By Lloyd Dunkelberger , Herald-Tribune

/ Thursday, January 22, 2015

TALLAHASSEE
New protections could be coming for Floridians who end up under a guardian’s supervision because of illness or mental incapacitation.
The proposed law still has a long way to go, but it received unanimous support Thursday from a Florida House panel.
“This is a very emotional issue. You can hear the anguish in voices of the family members who are appearing before us,” said Rep. Kathleen Passidomo, a Naples lawyer and Republican who is crafting the legislation. “I want to take the emotion out of it and create a bill that works and that will make our guardianship process better.”
The House Civil Justice Subcommittee strongly backed Passidomo’s bill (HB 5), while a similar bill (SB 360), sponsored by Sen. Kelli Stargel, R-Lakeland, is pending in the Senate.
The legislative action follows a December series in the Herald-Tribune — “The Kindness of Strangers: Inside Elder Guardianship in Florida” — that detailed cases of people who believe they were denied due process in court and afterward.
The series highlighted the potential for conflicts of interest among judges, attorneys, guardians, health care providers and other business people who work closely within the system. Because wards’ cases are confidential, there is often little opportunity for oversight.
Sam Sugar, an Aventura physician who founded Americans Against Abusive Probate Guardianship, called the House bill “a very good step in the right direction.”
Sugar said one of the measure’s strengths is that guardians who abuse their wards could face criminal charges. He said he would like to see a stronger role for local state attorneys.
“We all understand that there are good guardians and bad guardians,” Sugar said. “But there is never any specific path toward enforcement, supervision and ultimately conviction.”
Sugar said while the current law has strong provisions, it is often ignored in the process. “Like stop signs in Miami, maybe they are just suggestions,” he said.
He also questioned why families have to rely on the overburdened Department of Children and Families to handle grievances in guardianship cases. “Nobody has to mention that DCF has its own problems,” he said.
Among the new provisions in the bill is a requirement that families receive at least a 24-hour notice before an emergency guardian is appointed — although the bill does provide for that requirement to be waived in some cases.
The bill also would prohibit the emergency guardians — in most cases — from becoming the permanent guardians. Passidomo said that provision is aimed at ending the practice of “trolling,” in which would-be guardians seek an emergency appointment that they then can convert into a permanent guardianship.
Another problem cited by advocates are “stay-away orders” that prevent family members from having any contact with the ward — based on the claim that family members could be harmful to the ward.
Alan Sayler of Pinellas Park said the stay-away orders are “one of the biggest problems” in the system and that they “isolate from the family and there’s no relief for that.”
Sayler said there needs to be more legal justification for imposing those orders on the families. “They should have to come forward and present evidence and state why they think this is harmful to the ward,” he said.
Under the bill, families would be able to petition the court for a review of visitation rights. But Sugar urged Passidomo to make the reviews mandatory if requested.
“I think this is really important to protect the families of the wards, so we can avoid these really egregious and ugly stay-away orders,” Sugar said.
The bill will require guardians to keep more accurate records about their wards. But Sugar and the other family advocates said secrecy is a big problem in the system.
“Frankly we’re all flying in the dark here,” Sugar said. “Nobody in this room can tell me how many guardianships there are in the state of Florida.”
He said while he understands the privacy provisions were aimed at protecting the wards, it also has prevented more scrutiny and research about the system.
“The issue of protecting a name when you destroy a life doesn’t make any sense to me,” Sugar said.
Passidomo said she has been meeting with a group of elder-law attorneys, advocates and others since the summer in developing the legislation. The House also held a workshop on the bill earlier this month.
She said she remains open to all the suggestions in improving the legislation as it moves through its next two committees — the Judiciary Committee and Justice Appropriations Subcommittee — and then to the House floor.
“I want this bill to be the best bill we can pass,” Passidomo said. “I may not agree with everything but I’m going to listen.”
Sugar said it is significant that the Legislature has responded with a major bill on guardianships because it “calls attention to the fact that there is a serious problem.”
“This is a great day for our cause,” he said after the meeting. “We’re looking for more supervision and more ability for our voices to be heard in court.”

Senators Valesky, Gallivan Release Report Exposing Elderly Abuse and Exploitation

Legislators Propose Preventative Measures that Include Providing Banks the Authority to Reject Deceptive Financial Transactions
(Albany, NY – May 10, 2014) Senator David Valesky (D-Oneida pictured) and Senator Patrick Gallivan (R-Elma) released an extensive report that shows financial abuse amongst New York’s seniors to be more prevalent than initially thought, with much higher rates of undocumented incidents that actually exist.  Data obtained by the New York State Office of Children and Family Services project a surge in the number of cases of financial abuse by the year 2030, with nearly 200,000 incidents predicted to occur.
The number of incidents involving elder abuse correlate with statistics that show a significant increase in New York’s senior population, which is the third most populous in the United States. Unfortunately, these incidents often times go unreported due to the startling fact that the abuser is someone that the victim either trusts, is a caregiver, or more often than not, is a family relative.
Seniors tend to be vulnerable to certain degrees of financial abuse, including theft, concealment of funds, or even property. Yet while they possess adequate financial assets, they lack the capability to manage these items as they age and begin to suffer cognitive illnesses, such as Alzheimer’s or dementia.
Senator David Valesky, Chairman of the Senate Aging Committee, said: “The prevalence of elder abuse in all forms, especially financial, is increasing as our senior population grows. It is incumbent upon us to ensure that there are laws on the books to protect seniors and give law enforcement the tools they need to prosecute offenders.”
Senator Patrick Gallivan, Chairman of the Senate Crime Victims, Crime and Corrections Committee, said: “Our seniors deserve our respect and our protection.  As a former New York State Trooper and Sheriff of Erie County, I believe we must do everything we can to guard against all forms of elder abuse, whether physical, psychological or financial.  This legislation will make sure these despicable acts do not go unpunished.”
Over the years, there has existed a wide array of types of financial abuse that are targeted towards seniors. These include scam solicitations via robo-call advertising or using other modes of communication such as the internet. While there are many law enforcement agencies and nonprofit organizations that conduct their own investigations into crimes committed relating to elder abuse, there is no single institution that collects all data incidences of elder abuse statewide.
In addition, New York State lacks a statutory definition for prosecuting elder abuse. Instead, it relies upon separate definitions under the New York State Social Services Law. One pertains to “adult abuse” for individuals over the age of 18 who may be dependent on someone else, while another, “financial exploitation,” deals with the improper use of ones funds, property, resources, and so forth.
According to one study referenced in the report, Under the Radar: New York State Elder Abuse Prevalence Study, while documented cases provided by agencies amounted to 3.24 cases per 1,000 seniors in 2010, researchers concluded that the actual caseload of abuse was, in fact, much higher. When using self-reported data collected, researchers estimated that the total amount was actually closer to a rate of 76 per 1,000. In other words, nearly 280,000 seniors experienced at least one type of abuse during that year, with about 155,000 facing financial abuse alone.

Rates of Elder Abuse in New York State: Comparison of Self-Reported One-Year Incidence and Documented Case Data

	Documented Rate per 1,000	Self-reported Rate per 1,000	Ratio of Self-Reported to Documented
NYS – All forms of abuse	3.24	76.0	23.5
Financial	0.96	42.1	43.9
Physical and Sexual	1.13	22.4	19.8
Neglect	0.32	18.3	57.2
Emotional	1.37	16.4	12.0

Legislative Action to Combat Widespread Abuse
In order to combat these rising trends and to protect even more elderly individuals from becoming future victims themselves, Senator Valesky and Senator Gallivan propose a package of legislation that will, among other things: (1) prevent deceptive financial transactions from taking place, (2) update collection of data methods to track abuse statewide, and (3) amend existing law to stiffen penalties to deter criminal acts from occurring in the first place.
·         S.6221 (Senator Valesky) authorizes banks to refuse any transaction of moneys if the banking institution, social services official, or law enforcement agency reasonably believes that financial exploitation of a vulnerable adult has occurred or may occur.
·         S.7179 (Senator Valesky) proposes to allow a prosecutor to obtain medical records, without a privilege waiver, with a subpoena, endorsed by the court, based upon a showing that the patient suffers from a mental disability, and that the patient has been a victim of a crime.
·         S.2951 (Senator Valesky) expands the definition of “caregiver” under the penal law to include a person who voluntarily, or otherwise by operation of law, (such as an appointed guardian or power of attorney) assumes responsibility of an elderly person so that they would be tried under the “endangering the welfare of a vulnerable elderly person” law.
·         S.2323-A (Senator Klein) requires the Office of Children and Family Services to define, identify and collect data related to the incidence of elder abuse possessed by state and local agencies. It also mandates the Office of Children and Family Services to establish an inter-agency reporting system that contains a uniform set of standards to collect and analyze information on the incidence of elder abuse.
·         S.7177 (Senator Gallivan) seeks to establish that an alleged abuser may not use the defense of obtained consent to take, withhold, or obtain property, where such consent was obtained from a person who the accused knew or had reason to know was mentally disabled.
·         S.7187 (Senator Nozzolio) amends the penal law to explicitly state that in a prosecution for larceny by false promise, partial performance does not, by itself, prevent a reasonable jury from making such finding from all the facts and circumstances.
·         S.7188 (Senator Nozzolio) would allow a caregiver to accompany a vulnerable elderly person who is testifying in front of a grand jury. The caregiver may only fulfill their function with the consent of the prosecutor.
·         S.7178 (Senator Gallivan) allows the prosecution and defense attorneys to preserve the testimony of witnesses who are age 75 or older.
“Financial exploitation of older New Yorkers is a huge and growing problem – and far too often goes unreported,” said Beth Finkel, State Director of AARP in New York State. “As society ages and people live longer, it’s only going to get worse if left unaddressed. These bills take the right approach by identifying the extent of the problem, preventing potential abuse, encouraging victims to come forward, and cracking down on abusers. AARP commends the leadership of Senators Klein, Valesky, Gallivan and Nozzolio for tackling elder financial exploitation, which can rob older New Yorkers of their life savings.”
Ann Marie Cook, President and CEO of Lifespan said: “One of Lifespan’s primary objectives has always been to protect older New Yorkers from all types of abuse. Whether it’s physical, psychological, or financial we will work every day to protect our parents, family, friends and neighbors,” Ann Marie Cook, President and CEO of Lifespan said. “These are critical pieces of legislation that will help older New Yorkers and their families enjoy their golden years together.”
Bobbie Sackman, Director of Public Policy, Council of Senior Centers and Services (CSCS), states, “Council of Senior Centers and Services is pleased to stand with state legislative leadership and support its package of bills addressing the hidden crisis of elder abuse. The daunting fact that 260,000 older New Yorkers statewide experience physical, psychological, sexual and financial abuse that goes unreported, and the nature of these heinous crimes cries out for the state to intervene to protect elder abuse victims. This package which confronts financial elder abuse by partnering with banks to expedite reporting suspicious activity, includes caregivers who are trusted by the victim in criminal law, and directs the state to establish a central data base of elder abuse and neglect, shows a strong commitment to meeting this crisis head on. CSCS looks forward to winning the enactment of this package of bills. The lives of thousands of elder abuse victims depends on it.”
Laura Cameron, Association of Aging, said: “The Association on Aging in New York applauds efforts by Senator Valesky and Senator Gallivan to address the growing problem of elder abuse,” said Laura Cameron, Executive Director of the Association on Aging in NY. “Our members, the local offices for aging, are on the front lines every day serving the needs of our older population, and we welcome the support of our state legislative leaders who understand the importance of protecting older New Yorkers so they can successfully age in place with both dignity and independence.”
Maria Alvarez, Executive Director, New York StateWide Senior Action Council: “New York StateWide Senior Action Council has been a supporter of the mandatory reporting of elder abuse, whether it be financial or otherwise.  In addition, we think that in order to ensure that these policies are implemented properly, funding must be allocated to training professionals that work with senior citizens such as bank workers, police and law enforcement personnel, as well as others in the business and social services fields.”