by Tyra Phipps, Ed.D. (tyra.phipps@gmail.com)

Mr. Donald S. Goldbloom, Esquire

Mr. Donald S. Goldbloom, Esquire, has been practicing law in the Grantsville area since 1996. He represents clients in the areas of family law, elder law, personal injury, social security disability, criminal cases, and other areas of general practice. Mr. Goldbloom founded this firm with a mission to provide peace of mind for those with legal concerns.  

Goodwill Retirement Community:  An Eviction Case Study

March 17, 2016, the assisted living manager and the delegating nurse entered my apartment.  Much to my surprise, I was presented with an envelope.  The manager read the eviction letter which follows.  I realized that sixty days coincided with my final exam date.  The delegating nurse did not say anything.  A separate letter accompanied the eviction letter.  It detailed an increase in the daily rate and the level of care.  Both letters follow with no edits.

March 16, 2016

Ms. Tyra Phipps

Dawn Buskirk, Resident’s Representative

Dear Ms. Phipps,

            This letter is to notify you that, pursuant to the terms of the Assisted Living Agreement (“Agreement”) you signed on June 25, 2012 and the requirements of COMAR 10.07.14.33, we will terminate your Agreement effective 60 days from today, the date on which this letter is being hand-delivered to you. We are taking this step because we believe that, in accordance with Section VII, part 9(c) of the Agreement, your health status requires full assistance with transfers, which Goodwill Mennonite Retirement Community does not as a matter of policy provide. Further, we believe that because we cannot lift you, and because you require this service, your continued residence at Goodwill Mennonite constitutes a risk to your continued health and safety.

            You have been a resident in this community for almost four years, and we have enjoyed having you here. However, in recent months, your condition has declined to the point where you are no longer capable of supporting any of your own weight. You rely on Goodwill Mennonite staff to lift you when you need to be transferred from one location or position to another. This is inconsistent with Goodwill Mennonite’s no-lift policy.

            As indicated in Section 1, part 2 of the Agreement, because we are not capable of providing the services you require, we are happy to assist you in transferring to another facility. Further, in accordance with Section VII, part 9, of the Agreement, we request your cooperation with our staff in this matter. When you identify a new facility in which to reside, we will provide all necessary records to assist in the transition of your care.

            We wish you the very best. Should you have any questions, please do not hesitate to contact Cortney Mitchell, Assisted Living Manager at (301)895-4021.

Sincerely,

Cortney Mitchell, Assisted Living Manager

Assisted Living at Goodwill 

*****************************************************************

March 16, 2016

Dear Ms. Phipps,

Sandi Myers, our Delegating Nurse and I have recently reviewed your chart and have determined that your level of care has increased from a level two to a level three. The daily rate will increase from $114.00 to $160.00 effective today, March 16, 2016. The change is based on various factors; such as, your overall health, independence with daily activities, and the amount and type of medications and treatments required for your care. Your level of care has been assessed based on a standard form issued by the state of Maryland.

If you have any questions please call me at 301-895-4021.

Thanks,

Cortney Mitchell

Assisted Living Manager

Subsequent Action:

Within days of delivering the letters, Ms. Mitchell stopped by my room almost daily to check on my progress in relocating and meeting the deadline.  My personal attendant and I packed as much as we could to get ready for a relocation, but my focus was teaching online and finishing my academic career.  I contacted the Ombudsman, Mr. Richard Kerns, who advised me to seek legal recourse.  Mr. Donald S. Goldbloom, Esquire, agreed to take the case.  This is an example of Elder Law intervention.  Mr. Goldbloom wrote the following legal brief.

LAW OFFICE OF DONALD S. GOLDBLOOM

12590 National Pike, Grantsville, Maryland 21536

Phone (301) 895-5240 *** Fax (301) 895-5272

www.goldbloomlaw.com

Donald S. Goldbloom

donald@goldbloomlaw.com

                                                                   May 12, 2016

Kevin Miller  

Cortney Mitchell

The Maryland Department of Aging

Rick DeWitt, Social Services

Service:  Hand delivery to the office at Goodwill Mennonite, and facsimile transmission to remaining addressees, with follow up letters sent by US Mail, first class, postage prepaid this date, May 12, 2016.

Re:  Tyra Phipps, Letter of March 16, 2016, Notice of intent to discharge without consent.

Dear Mr. Miller and Ms. Mitchell et. al.:

            This letter is constructed as a formal grievance that is being cross-filed with you and the other agencies listed as addressees in this letter, pursuant to the grievance procedure you have outlined as an exhibit attached with the occupancy agreement signed by both my client, Tyra Phipps, and a representative from the Goodwill Retirement Community, hereinafter simply referenced as Goodwill.

            Formal objection is being made to the attempt to remove Tyra Phipps involuntarily pursuant to the letter hand delivered on March 16, 2016, a copy of which is attached.  The gravamen of this complaint is that Goodwill has no just cause to discharge.  Tyra Phipps, hereinafter referred to as Phipps, pursuant to the requirements of COMAR 10.07.14.33 and Goodwill’s occupancy agreement.  Since this is not a “nonpayment” issue, and Goodwill is not alleging a material breach of this agreement by Phipps or her breaking any rules, it seems the relevant portion to consider is section (c) of the “Just Cause” clause Goodwill cites in the occupancy contract for termination.  That section states “health status or behavior that constitutes a substantial threat to your health or safety or the health or safety of other residents.”

            The short analysis of this section shows that under Goodwill’s original assessment, Goodwill had evaluated Phipps at level “2,” and now by Goodwill’s own assessment, Goodwill has moved Phipps to level”3.”  See the exhibit, part of the occupancy contract, showing her assessment at “2” upon entry on June 25, 2012 and the summation of the “report” from Delegating Nurse Sandi Myers that Phipps is now allegedly at level 3.  This report was prepared by Cortney Mitchell, assistant manager, showing an additional fee is being charged, because Phipps is now alleged to be at level 3. 

            Since Goodwill rates Phipps as level 3 and Goodwill’s facility is licensed at level 3, as shown in the original occupancy documents, exhibit attached, there is no reason to discharge her based on alleged safety to her health or the safety of others. Additionally, COMAR 10.07.14.24,  states that in addition to enumerating the level of care the facility is licensed for and the level of care of the resident, the occupancy contract shall provide for the following under section D (3) of that regulation: “Unless the assisted living program is part of a continuing care retirement community and the agreement is signed by a continuing care subscriber as defined in COMAR 32.02.01.01B(35), a statement indicating that if the resident’s level of care, after admission to assisted living, exceeds the level of care for which the licensee is permitted to provide and a waiver for the continued stay of the resident has not been granted” there can be cause to terminate.(Emphasis supplied).  No such language exists in the occupancy contract, and Phipps has not exceeded the facility’s licensure care level anyhow.  Even if she did, there is plenty of precedent for a short-term waiver (see settlement offers referenced below).

            According to Goodwill’s own paperwork, there is no rating above level 3 for Phipps.  As to the allegation about having to lift Phipps, there is little formal documentation of this.  Apparently, there has not been a fully-fledged evaluation since the inception of Phipps’ care.

            As this moves through the grievance procedure, Phipps intends to call Dr. Margaret Kaiser, 13079 Garrett Highway, Oakland, Maryland 21550, (301)-334-8600, treating physician,  as an expert witness with whom she has just spoken within the last month.  She is likely to opine that Phipps is not higher than a level 3, perhaps still a 2 (to be determined) and clearly is not a danger to her own health or of others by remaining at this facility.

            In fact this grievance challenges the elevation from level “2” to level “3” and constitutes a formal grievance regarding the extra pay assessed for the alleged higher level of care needed from “2” to “3” from March 16, 2016 forward.  She wants the increased fee refunded to her.  We will need to see the two formal level assessments, if they exist, side by side, the one alleged to have been done at admission and the current one.

            This is relevant, because there is not a scintilla of justification of just cause without the detailed evaluations or assessments.  They should be prepared in consultation with Phipps’ treating medical doctor. I do not believe that has been done.

            In summation, this is to be construed as a formal grievance to officially place on the record Ms. Phipps’ desire to stay in assisted living indefinitely at Goodwill at the rate of level 2, or in the alternative with substantial proof which passes the preponderance of the evidence test, raises her to a level 3.  She also seeks to have her pay that was raised for level 2 to level 3 coverage restored unto her, until such time as level 3 care is documented to be necessary by a preponderance of the evidence.

            I will need to have an answer by the close of business Friday, May 13, 2016, in writing by facsimile, or scanned by email at the fax number and email address indicated on this letterhead as to Goodwill’s intentions.  For the current moment, Phipps is willing to accept a reprieve from the requirement she move until she can secure alternative living in a reasonable time and fashion.

            If your intent is to still seek to remove Ms. Phipps forcibly on Monday May 16, 2016 and not stay this action until the grievances are resolved, I will have no option but to do the following:

1. File in the Circuit Court for Garrett County for emergency injunctive relief staying her removal until we can settle the contractual issue of “just cause.”
2. File a police report with the Maryland State Police, Garrett County Sheriff‘s Department and/or the Garrett County State’s Attorney’s office for Garrett County seeking the imprisonment and fine (maximum $5,000 fine and/or five years in jail) for those directly responsible for putting Phipps out on the street, alleging a violation of the criminal law, Abuse or Neglect of a Vulnerable Adult in the Second Degree, Md. Code. Criminal Law Ann. §3-605. By Goodwill’s admission Goodwill believes Phipps is so vulnerable with her MS, she has to be lifted and has no family.

            Of course, the agencies I am notifying as part of this grievance can initiate their own investigation as to elder abuse.

            I note in passing I am just beginning to research the issues of “retaliation” for “whistle blowing” that Phipps has made reference to with me, evidenced by alleged discrimination of treatment (alleged resident in worse condition with MS being allowed to remain, for example).  My preliminary research yields possible civil fines and other remedies.  Further investigation throughout Goodwill may indeed open a Pandora’s Box of irregularities that may have licensure implications and other deleterious effects.

            After much discussion with Phipps, she advised me that if we can settle this, she will let what has happened in the past stay there, and she will be willing to leave cooperatively if she can simply be given more time to secure another location.

            We have discussed that “winning” the battle in court or through “grievance” may be a Pyrrhic victory in that with MS, eventually her condition will likely worsen, bringing this whole matter up again; she will have not made many friends certainly at Goodwill; and she tells me that a more urban and diverse environment may be good for her.  Goodwill certainly has had a reputation in the past for being friendly, accommodating, clean, and very professionally run.  She tells me how “old-timers” on the staff relate to many wonderful years in the past at Goodwill.

            We are hopeful we can achieve a win/win situation where all parties can reach their goals.  For starters, with the addressees on notice of this issue, this process may inspire the Department and the Maryland legislature to review the governing statutes, rules, and regulations regarding involuntary termination of assisted living patients.  Assisted living facilities ought to be regulated in the same fashion as comprehensive care and extended care facilities, such as nursing homes, where automatic appeal rights are provided, pursuant to Md. Health General Code Ann. §19-343 et. seq.

            We can also hope that all nursing and assisted living facilities throughout the state and even the country (Phipps runs a nationally recognized blog site) can continue in the fine tradition for which Goodwill has been historically recognized. Hopefully Phipps’ allegations have been isolated incidents.  Phipps hopes that Goodwill and other assisted living facilities consistently give residents with a far lower IQ than Phipps and with little money or family the same humane and dignified treatment as the most intelligent or wealthy person.

            As to Phipps, her realization is that she is really better suited for a more urban culture, where she will be closer to a more diverse and cosmopolitan environment than she now has, both in the facility and in her outside surroundings.  What is great for one, a sedate rural environment, may not stimulate another.

            Phipps is not seeking money for money’s sake, or to play “got you” with the assisted living facilities.  She wants to eschew litigation if at all possible.

            She simply wants the dignity of being allowed to finish grading her papers and end this semester’s contractual obligation with Frostburg State University with her online teaching, and to be given the time to seek shelter elsewhere and a possible small refund of money.

            Phipps has not been stalling for time over the last sixty days.  I have tombs of email from her documenting her attempts to secure alternative housing, which would have made this moot.

            So, here we are, and we are requesting the relief asked for above, such that all parties can work cooperatively and in a win/win situation to secure placement elsewhere and a refund of the extra fees since March 16, 2016.

            Keep in mind my legal disclaimer that offers of settlement in this letter are what they purport, offers of settlement, and objection will be made if an attempt is made in litigation to introduce into evidence the position Phipps is taking at this time. She will allege the general inadmissibility of settlement negotiation evidence at any hearing or trial. 

            Phipps and I plea that all parties involved take the approach that will bring about restorative peace and justice.  Though this is a formal legal document, I cannot help but end with the words of Micah 6:8 (New International Version):

“He has shown you, O mortal, what is good. And what does the Lord require of you? To act justly and to love mercy and to walk humbly with your God.”  This hopefully reflects the Mennonite mission so strongly evident at Goodwill.

            I do ask for God’s blessings, though I am explicitly asking that this paragraph and the one preceding this be left off the legal record of what is obviously a secular proceeding.  Again, this is “settlement negotiation!”

            With warmest regards, Phipps and I remain, in the hope that this whole issue may be quickly and reasonably settled.

                                      Donald S. Goldbloom, Esq.

*No representative of Goodwill contacted Mr. Goldbloom with a response on May 13, 2016.

Subsequent Action:

Prior to relocation there was a meeting on October 19, 2016 with Ms. Bevan Tucker, Ombudsperson for Garrett County and Ms. Cortney Mitchell, Assisted Living Manager to discusses departure and reimbursement of unjustified rate increase in the amount of $9,264.00.  This amount represents the change in daily rate from a Level II to a Level III between March 17 and October 19, 2016.  Goodwill was not forthcoming with the requested rate reimbursement.  On January 15, 2017, the case was filed with the Office of Health Care Quality (OHCQ).  The review by OHCQ only determined that Goodwill did not violate policy in the Code of Maryland.  The next step was filing the case with the Attorney General’s office in the State of Maryland.  Ms. Mary Ann Straughn is a Registered Nurse with the Medical Advocacy Unit.  She recommended arbitration with an arbitrator from the Attorney General’s office.  The proceedings can be handled by conference call.  This case was heard on May 31, 2018.  

              In summary, I am not seeking retribution for a clear pattern of mistreatment and improprieties.  Ms. Pamela Hageman, Director of the Office of Aging and Nutrition best summarized that pattern by saying, “There is no question that you were treated horribly!”  While Mr. Goldbloom made it clear that I have the right to exercise my First Amendment rights, Goodwill should have been more forthcoming in working with me as a resident.  Mr. Kevin Miller, the former CEO, never showed for any one of three meetings we had scheduled, and Mr. Anthony Lehman never responded to an e-mail.

              This brings me to the closing argument of refunding the $9,264.00.  This amount is based on what I was paying to Goodwill March 16 to August 31.  The amount was $119 with an increase in rate to $160 for a difference of $41 daily.  There were 168 days at $41 a day for a subtotal of $6,888.   After the across the board increase in September, I was paying $170 daily while the highest rate online was $126 for Level 2 care.  This is a difference of $44 a day.  There were 54 days from September 1 to October 24 with a $44 difference that is a subtotal of $2,376.  The total refunded amount I am asking for is $6,888 + $ 2,376 === $9,264.00

            I could seek an addition $7,760.00 dollars for what appears to be a $5 difference a day of my daily rate.  My rate increase letter states I was paying $114 a day when in fact, I was paying $119 a day during my four and a half year stay at Goodwill.  See Exhibit G. 

            To review, this case is about a pattern of harassment, mistreatment and improprieties.  The documentation includes the use of disinformation and fraudulent case building along with violations of state policies.  The unjustified rate increase totaling $9,264.00 must be refunded with the hope that Goodwill learns that transparency is better than secrecy and open discourse is absolutely essential to provide care.  Should you have any questions regarding my letter, please contact me online or by phone. Thank you for your time and this investigation.

Mr. David Rubenstein presided as the arbitrator from the Attorney General’s office.  Three weeks later Mr. Rubenstein rendered this decision that the claimant failed to meet the burden of proof. 

CLAIMANT

Tyra Phipps

RESPONDENT

Goodwill Mennonite Home, Inc.

CONSUMER PROTECTION DIVISION OFFICE OF THE ATTORNEY GENERAL

STATE OF MARYLAND CASE NO: 2018-021

ARBITRATION DECISION

An Arbitration Hearing in the above-captioned matter was duly scheduled and held at 10:00 am on May 31, 2018, pursuant to the written agreement of the parties and upon written notice to each of them. The Hearing was held by telephone.

proceeding.

FINDINGS AND DECISION

 There is insufficient evidence that Respondent failed to follow proper procedures to classify her.

Maryland law and the OHCQ provide regulations on the assessment and classification of residents of assisted living facilities.  OHCQ also provides forms for a physical assessment, an assisted living manager's assessment and a Level of Care Scoring Tool.  The Arbitrator finds, based on a totality of the evidence, including two determinations by the OHCQ, that Respondent used the proper forms and procedures and, based on the data contained on the forms, correctly reached the conclusion that on March 16, 2016, Claimant was at Level 3 care.  There is insufficient evidence that the data on the form is incorrect.  The Arbitrator finds, based on a totality of the evidence, that Respondent's determination that on March 16, 2016, Claimant was at a Level 3 care, was properly based on criteria set by the OHCQ and data obtained from Respondent's records and staff.  The Arbitrator also finds that the rate increase to Level 3 was based on a change in Claimant's medical condition.  Therefore, no 45-day notice was required.

The testimony and evidence in this Proceeding having been duly considered, the Decision in this Arbitration Proceeding is that Claimant has failed to prove that she is entitled to any monetary award from Respondent.  Her claim for an award is Denied.

This Decision is determinative of all the claims that either party may have against the other arising out of the subject transaction, known or which reasonably should have been known by them at the time of this Hearing, whether or not asserted herein. Jurisdiction over the parties hereto (including but not limited to the right to reconvene the Hearing), and over the subject matter hereof, is reserved in the undersigned Arbitrator for a period of one hundred and twenty (120) days from the date entered below. Failure to comply with the terms of this Decision may result in the implementation of enforcement proceedings in the appropriate Circuit Court of the State of Maryland.

Dated this 19 day of June 2018,            Hy David Rubenstein

          Chief Arbitrator

 Summary:

Unlawful discharges and evictions have significantly increased since the year 2010.  Family members are frequently the best advocates for residents or patients located in continual care facilities.  Most states now have appeal processes in place, but there is always a question of retaliatory behaviors or lack of care even if the appeal is resolved within the facility.  Family members and residents can turn to the ombudsman in the Department of Aging, or a Health and Human Services type of department in states that provide intervention.  However, seeking legal help is the best recourse.  Elder lawyers are becoming more and more common and frequently do not charge full fees to assist elderly.  Some elder lawyer specialists provide services pro bono.  The important point is to find someone skilled in elder law that crosses over to criminal law, because those two legal areas frequently intersect when dealing with an unlawful discharge or eviction.  If the case involves malfeasance, fraud, violations of the Code of Maryland (or any other state), or resident rights, it is recommended to seek legal intervention through the court system.  To get a fair and unbiassed decision, it is imperative to find an arbitrator/judge who is familiar with assisted living/skilled nursing conditions, personal circumstances, and technical matters to make a sentient -- and fair -- evaluation.