Trust Dispute in Allegheny Co OC Court

Various articles in Pittsburgh newspapers last week described litigation arising from the testamentary distributions proposed from a "Living Trust" of the late Rita Conrady, formerly of Beaver County, which is subject to audit in Allegheny County, PA.

The articles reported about a trusted lawyer, a substantial trust fund, end-of-life changes to testamentary charitable distributions, questioned capacity to make such changes, implementation of those changes by that lawyer as an agent, allegations of conflict of interests, and an Orphans' Court Judge who must adjudicate objections by certain disappointed charitable organizations.

Initially, I read the article, "Nonprofits contesting settlement of estate", by Gary Rotstein, published April 26, 2007, in the Pittsburgh Post-Gazette, which framed the matter from the objections offered by certain disappointed charities to the proposed distribution of a trust fund worth approximately $10 million [links added].

Animal Friends and other nonprofit groups are contesting an estate settlement that would give them hundreds of thousands of dollars, amid accusations that a lawyer in the case diverted additional money intended for them to other organizations.

Lawyers for Animal Friends [of Pittsburgh, PA] , Geneva College [of Beaver Falls, PA] and the American Cancer Society were among those in Allegheny County Orphans' Court last week contesting distribution of the estate of Dr. William and Rita Conrady. The former Beaver County couple died separately in Florida in 1999 and 2006.

Pittsburgh attorney Gregory Harbaugh's handling of the affairs of Mrs. Conrady last year has been criticized by the Animal Friends group, whose board president said the group stands to receive an estimated $500,000 instead of $1 million as a result of being reduced from a 10 percent to 5 percent beneficiary of Mrs. Conrady's estate.

The board president, Marleen Ashton, contended yesterday that Mrs. Conrady's deteriorating health may have hindered her awareness of changes in beneficiaries that Mr. Harbaugh recorded for an estate worth about $10 million. * * *

A revision on March 27, 2006, three days after Mr. Harbaugh received power of attorney, reduces those shares to 5 percent for Animal Friends and the cancer society, and to 8 percent for the humane society and the college. * * *

Another Pittsburgh newspaper, the Tribune-Review, published an article by Justin Vellucci on April 28, 2007, entitled "Beaver Co. widow 'sedated' when will was changed", which reviewed the factual basis for the charities' objections:

A Beaver County widow signed away control of her $10 million estate last year as she sat sedated in bed, battling kidney failure and cancer, a neighbor and a former nurse said.

"She looked drugged up to me. She'd been drugged up a long time, so she didn't look different," said Neim Malo, 50, who lived next to Rita L. Conrady's $765,000 "snowbird" home in Naples, Fla., and witnessed her signing a will and power-of-attorney papers in March 2006, two months before she died. "Her mind wasn't all there, hardly ever was."

Downtown attorney Gregory A. Harbaugh used those documents three days later to shift more than $1 million from Conrady's trust fund to groups with whom he and his wife are affiliated. That action triggered a court battle over Conrady's estate and Harbaugh's ability to alter it. * * *

A longer, much more detailed article then appeared in the Pittsburgh Post-Gazette on April 29, 2007, by Cindi Lash & Jonathan D. Silver, entitled, "Attorney defends how widow's will was altered". Far more facts were reviewed, and the main issues of incapacity and conflict of interest were addressed by the proponents:

By spawning what promises to be an ugly legal battle, the groups have revealed problems that plague the world of estates and charitable giving but are often overlooked, according to the judge who handled a portion of the case.

The groups -- Animal Friends, Geneva College and the American Cancer Society -- claim that Mr. Harbaugh illegally and inappropriately signed off on the changes, cutting the amount they stand to receive by between $200,000 and $500,000 in favor of giving money to other charities with which he is affiliated.

"Your honor, there's something about this case that smells bad. Simply stated, it stinks," attorney James A. Ashton, who represents Animal Friends, told Allegheny County Orphans' Court Judge Frank J. Lucchino on April 16.

"He diverted at least $1.2 million to -- it's not a small amount of money involved here -- $1.2 million, your honor, to charities that he had a vested interest in. He feathered his own nest at the expense of my clients and these other people who are involved in this," Mr. Ashton said. * * *

Mr. Harbaugh, a prominent local attorney with the firm Houston Harbaugh who is active in Republican politics and the nonprofit sector, defended his handling of the couple's estate.

"As far as I'm concerned, I did nothing wrong,'' Mr. Harbaugh said. * * *

The allegations as to facts & law show the murky waters plied by a late-in-life testamentary action, further fogged by an agent's implementing action. You should read these articles to understand the conflict.

The publication on April 29th expanded on the generic problems and offered perhaps the best preventative solution in an accompanying article entitled "Best advice: Depend on those you most trust", by Joyce Gannon, of the Pittsburgh Post-Gazette.

As for the auditing judge, the latest article reported:

In comments to the numerous attorneys assembled before him on April 16, Judge Lucchino expressed concerns about what he called the "unfettered power" conferred to those with power of attorney and how little time charities sometimes spend investigating bequests.

"I'm not suggesting anybody did anything wrong here," Judge Lucchino said. "I'm just suggesting that the potential does exist."

Update: 07/24/07:

The Pittsburgh Post-Gazette published an article, dated July 24, 2007, entitled "Charity says attorney shifted estate funds for personal gain", by Jonathan D. Silver, which noted a recent filing by one of the objecting parties in this dispute:

Animal Friends Inc., which has accused local attorney Gregory A. Harbaugh of illegally reducing its portion of a wealthy widow's estate, along with the shares of three other charitable groups, claimed yesterday that he did so for personal gain.

By cutting the amount earmarked to certain groups by $1.2 million and shunting that money to other nonprofit groups with which he or his wife are affiliated, Mr. Harbaugh stood to drum up business for his law firm, according to a new filing in Allegheny County Common Pleas Orphans' Court Division.

Animal Friends' attorneys, James A. Ashton and Robert O. Lampl, also claimed that three charities added by Mr. Harbaugh to share in the estate were clients of either a lobbying firm founded by Mr. Harbaugh or another lobbying firm that employs the firm's former executive director.

Mr. Harbaugh's attorney, Mario Santilli Jr., has denied his client did anything wrong and said neither Mr. Harbaugh nor his wife received any compensation from the charities. * * *

Updated: 09/25/07:

The Pittsburgh Tribune-Review reported a development in this case on September 25, 2007, in the article entitled "Judge rejects changes to late woman's bequests", by Justin Vellucci:

An Allegheny County judge has sided with a group of nonprofits and an area college in a dispute over part of a deceased Beaver County widow's $10 million estate.

Last year, shortly before Rita L. Conrady died at her winter home in Florida, Downtown attorney Gregory A. Harbaugh used a power-of-attorney document to shift more than $1 million from Conrady's trust fund to groups with whom he and his wife are affiliated.

Common Pleas Judge Robert A. Kelly ruled Friday that Harbaugh did not have the authority under Florida law to change the trust fund. Kelly gave Harbaugh 30 days to submit new plans on how to distribute the fund. * * *

The state Attorney General's Office, whose charitable trusts section reviewed the Harbaugh case, declined to comment. Animal Friends had challenged Harbaugh's control over Conrady's finances in a civil action filed last month. A hearing on that matter has been scheduled for Dec. 6.

IRS to be Tenant of a Trust in Philly

On April 22, 2007, a report in The Philadelphia Inquirer addressed finalized plans for the Internal Revenue Service, as a tenant, to move its local & service center operations into a huge privately-owned facility, as a long-term lease tenant. The facility, located at 30th Street, in Philadelphia, formerly used as a United States Post Office, will be completely renovated. The owner will be a real estate investment trust.

On its web page entitled "Contact My Local Office in Pennsylvania", the IRS lists its twenty-one local service offices located throughout Pennsylvania. Presently, the IRS office in Philadelphia is located downtown, at 600 Arch Street. It offers a wide array of counter services, listed here.

But the IRS presence in Philadelphia is more than just local. In 2007, certain residents of Pennsylvania and Kentucky -- or the professional tax preparers for such resident clients -- who file individual tax returns send them either to the Philadelphia Service Center or to the Cincinnati Service Center (largely dependent on whether payment is enclosed). See: "Where to File Addresses for Individual Taxpayers Filing Form 1040", "Where to File Addresses for Tax Professionals Filing Form 1040", and, most generally, "Where to File Addresses".

As to fiduciary income tax matters, applications for an Employer Identification Number, using a Form SS-4, should be sent to Philadelphia if the entity derives from these states (or if it has no designated location): Alabama, Alaska, Arizona, Arkansas, California, Colorado, Hawaii, Idaho, Iowa, Kansas, Louisiana, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Tennessee, Texas, Utah, Washington, Wisconsin, Wyoming. See: "Where to File Your Taxes" (for Form SS-4).

On the other hand, all fiduciary income tax returns for Pennsylvania estates, trusts, charitable organizations, or split-interest organizations presently are filed at the IRS Service Center in Cincinnati instead.

Well, the point is, the IRS is busy in Philadelphia, and needs much office space. But its current Center City facility & its Northeast Philadelphia campus are inadequate to meet the needs of the IRS for the next twenty years. So government officials were looking for a new location that could consolidate all regional IRS employees.

The apparent result is a proposed move from Center City & the current campus out to 30th Street.

But the arrangements came under scrutiny by the Inspector General's Office of the U.S. Postal Service, as reported by the Inquirer in its article by Thomas Ginsberg, posted April 22, 2007, entitled "Surprising details emerge on Post Office sale" -- "U.S. investigators say a local development group had an 'apparent conflict of interest' in its many project roles".

* * * The Keating Development Group is now poised to become codeveloper of the historic building. Keating Development is a unit of the Keating Group, which also includes construction and environmental management services. Daniel J. Keating III, its chairman and chief executive, said his company did nothing improper.

The buyer, the University of Pennsylvania, which had fought so hard over the $50.6 million purchase, now is planning to sell the iconic building to Brandywine Realty Trust, owner of the nearby Cira Centre, for $20 million.

And federal taxpayers, under the soon-to-close deal, would help finance part of the project by paying a high rent - up to $32.3 million a year - for the new tenant, the Internal Revenue Service.

While acknowledging the costs are high and a few players have an intertwined history, developers and government officials say the project is aboveboard and will be hugely beneficial for the city and Penn.

"We've taken the properties and gotten them successfully developed," said Craig Carnaroli, Penn's executive vice president. "This is part of our march eastward to the Schuylkill river, where we're able to improve the quality of life for everyone." * * *

My main point is that the IRS Philadelphia Service Center is poised to move. If project arrangements are consummated, the new IRS Service Center would be at a location closer to the 30th Street Railroad Station, which will be convenient for travelers.

The USPS-OIG's & the Inquirer's points are far broader and more complex. Yet, after further inquiry, the USPS-OIG became satisfied with the fairness of the transaction for the Postal Service, reported the Inquirer:

The inspector general's office said last week that Samra [Tom A. Samra, the Postal Service's vice president for facilities] was "responsive" and that it no longer was investigating the deal, a spokeswoman said. * * *

The whole complicated transaction, including ownership changes and a memorandum spelling out the government leases, is expected to close this spring.

Alan Kessler, vice chairman of the Postal Service board of governors, said he considered the case closed. * * *

You should read the entire article online (quickly, since it may be pulled from public access after the weekend). [Update: As of May 17th, it was still available online].

It addresses the organizations' needs, proposals, conflicts of interest, self-interests, connections, and big money.

Bills Propose PA Statutes Online!

I learned yesterday, at the Pennsylvania Bar Association's "Committee & Section Day" meeting, held in the Harrisburg area, that a Legislative Bill -- House Bill 976 -- was introduced in the Pennsylvania House on March 29, 2007, that would authorize the online posting of Pennsylvania's existing statutes.

Such legislation would be the answer to the request made in my prior posting & some updates. I explained the pressing need for public availability of Pennsylvania statutes online in my prior posting, "Sunshine Week" in PA Neglects Statutes (03/20/07). Pennsylvania remains the only state that does not post its enacted statutes online for public reference. The proposal would change that, effective January 1, 2008.

The sponsors of HB 976 are: Representatives Benninghoff, Kerry A. (R), George, Camille Bud (D), Readshaw, Harry (D), DePasquale, Eugene (D), Freeman, Robert (D), Hornaman, John (D), Petrone, Thomas C. (D), Payne, John D. (R), McCall, Keith R. (D), Markosek, Joseph F. (D), Cox, Jim (R), Geist, Richard A. (R), Josephs, Babette (D), Youngblood, Rosita C. (D), Shapiro, Josh (D), , Vulakovich, Randy (R), Stevenson, Richard R. (R), Scavello, Mario M. (R), Taylor, Rick (D), Walko, Don (D), Wagner, Chelsa (D), Siptroth, John J. (D), Pallone, John E. (D), Maher, John (R), Sonney, Curtis G. (R), Ross, Chris (R), Sturla, P. Michael (D), & Kortz, II, William C (D).

The Bill is short & simple in its amendment to an existing statute. Its adoption would enable & authorize a great change for the Commonwealth: All enacted Pennsylvania statutes would be made available, officially, online -- and quickly, too!

This is the entire House Bill:

AN ACT
1 Amending the act of December 10, 1968 (P.L.1158, No.365),
2 entitled "An act creating and establishing the Legislative
3 Data Processing Committee: providing for its membership;
4 prescribing its powers, functions and duties; and making and
5 appropriation," directing the committee to provide limited
6 public access to statutes in computer information systems.

7 The General Assembly of the Commonwealth of Pennsylvania
8 hereby enacts as follows:
9 Section 1. Section 2(1.2) of the act of December 10, 1968
10 (P.L.1158, No.365), entitled "An act creating and establishing
11 the Legislative Data Processing Committee: providing for its
12 membership; prescribing its powers, functions and duties; and
13 making an appropriation," amended May 7, 1998 (P.L.352, No.55),
14 is amended to read:
15 Section 2. The committee shall have the following powers and
16 duties:
17 * * *
18 (1.2) Notwithstanding paragraph (1.1), to [provide]:

1 (i) Provide access to information relating to bills,
2 legislative histories and session calendars to the Governor's
3 Office, the Office of Attorney General, the Auditor General, the
4 State Treasurer, the heads of other departments and such other
5 offices within State government as the committee, with the
6 approval of the Senate Committee on Management Operations and
7 the Bi-partisan Management Committee of the House of
8 Representatives, shall determine.
9 (ii) Provide open web-based access for the public to the
10 statutes of the Commonwealth of Pennsylvania residing in its
11 computer information systems.
12 * * *
13 Section 2. Public access to the statutes of the Commonwealth
14 of Pennsylvania shall be available on and after January 1, 2008.

15 Section 3. This act shall take effect immediately.

[Emphasis Added]

Today, I researched Senate Bills, and found Senate Bill 422.

It was introduced on March 14, 2007:

THE GENERAL ASSEMBLY OF PENNSYLVANIA

---

SENATE BILL

No. 422 Session of 2007

---

INTRODUCED BY CORMAN, SCARNATI, PILEGGI, ARMSTRONG, BAKER, BOSCOLA, BROWNE, BRUBAKER, COSTA, EARLL, EICHELBERGER, ERICKSON, FERLO, FOLMER, FONTANA, GORDNER, GREENLEAF, KASUNIC, KITCHEN, LOGAN, MADIGAN, MELLOW, MUSTO, O'PAKE, ORIE, PIPPY, PUNT, RAFFERTY, REGOLA, RHOADES, ROBBINS, STACK, STOUT, TARTAGLIONE, TOMLINSON, VANCE, WASHINGTON, WAUGH, D. WHITE, M. WHITE, C. WILLIAMS, WOZNIAK, WONDERLING AND McILHINNEY, MARCH 14, 2007

---

REFERRED TO RULES AND EXECUTIVE NOMINATIONS, MARCH 14, 2007

---

AN ACT

1 Amending the act of December 10, 1968 (P.L.1158, No.365),
2 entitled "An act creating and establishing the Legislative
3 Data Processing Committee: providing for its membership;
4 prescribing its powers, functions and duties; and making an
5 appropriation," directing the committee to provide limited
6 public access to statutes in computer information systems.
7 The General Assembly of the Commonwealth of Pennsylvania
8 hereby enacts as follows:
9 Section 1. Section 2(1.2) of the act of December 10, 1968
10 (P.L.1158, No.365), entitled "An act creating and establishing
11 the Legislative Data Processing Committee: providing for its
12 membership; prescribing its powers, functions and duties; and
13 making an appropriation," amended May 7, 1998 (P.L.352, No.55),
14 is amended to read:

15 Section 2. The committee shall have the following powers and
16 duties:
17 * * *

---

1 (1.2) Notwithstanding paragraph (1.1), to [provide]:
2 (i) Provide access to information relating to bills,
3 legislative histories and session calendars to the Governor's
4 Office, the Office of Attorney General, the Auditor General, the
5 State Treasurer, the heads of other departments and such other
6 offices within State government as the committee, with the
7 approval of the Senate Committee on Management Operations and
8 the Bi-partisan Management Committee of the House of
9 Representatives, shall determine.
10 (ii) Provide access to the public for the limited purposes
11 of displaying, copying or searching the statutes of the
12 Commonwealth of Pennsylvania residing in computer information
13 systems.
14 * * *
15 Section 2. Public access to the statutes of the Commonwealth
16 of Pennsylvania shall be available on and after January 1, 2008.

17 Section 3. This act shall take effect immediately. [Emphasis Added]

The intent of the two bills is identical: Provide PA statutes online.

More than two-thirds of PA Senators are sponsors of SB 422.

Many PA Representatives are sponsors of HB 976

The language of the two bills differs slightly.

The targeted implementation date is identical: January 1, 2008.

Both bills have been referred to committees.

Now, the question becomes: Will they move?

US GAO on Nursing Home Regulation

On April 21, 2007, the United States General Accountability Office released a report, dated March 27, 2007, entitled "NURSING HOMES: Efforts to Strengthen Federal Enforcement Have Not Deterred Some Homes from Repeatedly Harming Residents" (100 pages, PDF format).

GAO's previous reports on the regulation of federally-funded nursing homes dated to 1998 & 1999.

The GAO had concluded that "enforcement actions", known as sanctions, were ineffective in encouraging nursing homes to maintain compliance with federal quality requirements. More specifically, such sanctions were often rescinded before being implemented, because homes had a grace period to correct deficiencies.

For its follow-up study, the GAO gathered data from the Centers for Medicare & Medicaid Services for the period 2000-2005 regarding 63 previously-cited nursing homes. "The 63 homes had a history of harming residents and were located in 4 states that account for about 22 percent of homes nationwide."

Those cited nursing homes were located in the states of Michigan (16), Texas (23), California (10), and Pennsylvania (14).

The newly-issued Report notes little improvement in the enforcement against nursing homes of applicable federal regulations. Its general findings are set forth in the Report's executive summary (I reparagraphed the text for easier readability):

From fiscal years 2000 through 2005, the number of sanctions decreased for the 63 nursing homes GAO reviewed that had a history of serious quality problems, a decline consistent with nationwide trends. While the decline may reflect improved quality or changes to enforcement policy, it may also mask survey weaknesses that understate quality problems, an issue GAO has reported on since 1998.

Although the number of sanctions decreased, the homes generally were cited for more deficiencies that caused harm to residents than other homes in their states. Almost half of the homes reviewed continued to cycle in and out of compliance; 19 did so 4 times or more. These homes temporarily corrected deficiencies and, even with sanctions, were again found out of compliance on subsequent surveys.

Several weaknesses appeared to undermine the effectiveness of the sanctions implemented against the homes reviewed.

First, civil money penalties (CMP), which by statute are not paid while under appeal — a process that can take years — were generally imposed at the lower end of the allowable dollar range. For example, the median per day CMP ranged from $350 to $500, significantly below the maximum of $3,000 per day.

Second, CMS favored the use of sanctions that give homes more time to correct deficiencies, increasing the likelihood that the sanctions would not be implemented. Thus, more than half of the denial of payment for new admissions (DPNA) that CMS imposed were the type that give homes 3 months to correct deficiencies rather than those that only give homes up to 15 days.

Third, there was no record of a sanction for about 22 percent of the homes reviewed that met CMS’s criteria for immediate sanctions, a problem GAO also identified in 2003; moreover, 60 percent of DPNAs imposed as immediate sanctions were not implemented until 1 to 2 months after citation of the deficiency.

Finally, involuntary termination of homes from participating in the Medicare or Medicaid programs was rare because of concerns about access to other nearby homes and resident transfer trauma; 2 of the 63 homes reviewed were involuntarily terminated because of quality problems.

This is GAO's summary conclusion:

CMS’s management of enforcement is hampered by the complexity of its immediate sanctions policy and by its fragmented and incomplete data.

Its policy allows some homes with the worst compliance histories to escape immediate sanctions. For example, a home cited with a serious deficiency and that has not yet corrected an earlier serious deficiency is spared an immediate sanction. Such rules may in part explain why the 63 homes reviewed only had 69 instances of immediate sanctions over a 6-year period despite being cited 444 times for deficiencies that harmed residents.

Although CMS initiated development of a new enforcement data system 6 years ago, it is fragmented and has incomplete national reporting capabilities. CMS is taking additional steps to improve nursing home enforcement, such as developing guidance to encourage more consistency in CMP amounts, but it is not clear whether and when these initiatives will address the enforcement weaknesses GAO found.

The Report noted a decline in CMPs ("Civil Monetary Penalties") applied in Pennsylvania, just as in the other three states, but noted that "States’ preferences for either state or federal CMPs may in part affect their use."

[T]he homes we reviewed in Pennsylvania had only one implemented CMP and paid no federal CMPs from fiscal years 2003 through 2005; however, during the same period, the Pennsylvania state survey agency implemented seven state CMPs and collected $12,050.39.

A Pennsylvania state survey agency official said that the state prefers to use state sanctions because they can be implemented more quickly and are believed to be more effective than federal sanctions. * * *

The Report noted Pennsylvania's reliance more on state, not federal, violation proceedings:

* * * As noted throughout this report, we found variation among the states we reviewed in areas such as the number and amount of CMPs implemented and the proportion of homes with double Gs. In general, these differences reflect the state survey agencies’ views on the effectiveness of certain sanctions and differences in state enforcement policies.

For example, Pennsylvania state officials prefer state rather than federal sanctions because they believe the former are more effective, have a greater deterrent effect on providers, and are easier and quicker to impose. Pennsylvania requires homes to pay a state CMP prior to appeal, even if the home appeals the deficiency.

In contrast, homes need not pay a federal CMP until after an appeal is resolved. Pennsylvania rarely implemented federal CMPs on the 14 state homes whose compliance history we reviewed, preferring to use state sanctions instead. * * *

We believe it is important for CMS to explore the differences in state enforcement approaches and policies so that it can both identify problem areas and identify best practices that could be disseminated nationwide. * * *

One conclusion, on Page 58 of the Report, contained a chilling admission and a warning, perhaps understated:

Some of these homes repeatedly harmed residents over a 6-year period and yet remain in the Medicare and Medicaid programs.

Until these systemic weaknesses are addressed, the effectiveness of sanctions in encouraging homes to return to and maintain compliance will remain questionable and the safety and security of vulnerable residents will remain at risk. * * *

The Report's findings were reported by The New York Times on April 22, 2007, in an article entitled "Oversight of Nursing Homes Is Criticized", by Robert Pear. The article addressed reactions and possible effects:

Senator Charles E. Grassley, Republican of Iowa, said the conclusions of the study — an exhaustive review of progress over the last decade — were “very discouraging.”

“After the tremendous reform effort of the last 10 years,” Mr. Grassley said, “the federal agency that’s supposed to coordinate regulatory efforts is taking an approach that is undermining the sanctions that are available to try to improve care in the most questionable nursing homes.” Mr. Grassley, who requested the study, is the senior Republican on the Finance Committee, which has authority over Medicaid and Medicare.

Members of Congress are likely to use the report as a map for legislation requiring stiffer penalties for the most serious violations. Administration officials agreed that higher fines were appropriate in some cases. They said they would ask Congress for the power to collect fines more swiftly, without waiting for all appeals to be resolved.

The article also noted how many people and institutions are affected by enforcement programs.

About 1.5 million people live in the nation’s 16,400 nursing homes on any given day. More than 3 million people receive nursing-home care at some point in the year.

These are the four short-form recommendations of the GAO to the CMS Administrator (who "generally concurred"):

1. Develop an administrative process for collecting civil money penalties more expeditiously and seek legislation to implement this process effectively, as appropriate;
2. Strengthen its immediate sanctions policy;
   
3. Expand its oversight of homes with a history of harming residents; and
4. Improve the effectiveness of its enforcement data systems.
   

Following are the links provided by the GAO on its website regarding its Report, "Nursing Homes: Efforts to Strengthen Federal Enforcement Have Not Deterred Some Homes from Repeatedly Harming Residents" GAO-07-241, dated March 26, 2007:

• Abstract
  
• Highlights-PDF
  
• PDF
  
• Accessible Text

“The history of sanctions may be a good predictor of future behavior.”

-- Leslie V. Norwalk, Esq., Acting Administrator,

Centers for Medicare and Medicaid Services

(as quoted by The New York Times)

Zimmers "Talkin' 'Bout My Generation"

From an email message sent by Coming of Age, in Philadelphia, PA, for the week April 21-27, 2007, I learned about a new pop music phenomena involving seniors -- a new "British Invasion", forty years after the original one.

Nearly a million computer users worldwide have viewed The Zimmers' rendition of The Who's classic rock song "My Generation" on U-Tube. This is the listing:

Geriatrics Go Wild! - The Zimmers - "My Generation" (04:07) -- Introducing ...... THE ZIMMERS -- covering The Who's "My Generation" (Download released 21st MAY. CDs in the shops 28th MAY [2007].)

The video is available now at many other online sites, such as iFilm, here.

Who are The Zimmers? The average age of the group members is 78. The lead singer 90. They all hail from England.

One blog, The Lefsetz Letter ("First in Music Analysis"), noted the group's underground popularity and the infrastructure that allows its connections to fans worldwide, in a commentary simply entitled "The Zimmers".

* * *"My Generation" is a novelty. Not far afield from the jokes that used to cross the Net transom back in the nineties. But the mania, the rabidity with which this story has spread, is utterly fascinating.

Sometime in the last week I started getting links. Today I must have gotten five. And I’ve yet to see a story in the straight press, yet to see a story on TV. And aren’t those the media that break stories? Isn’t it about massaging gatekeepers to get them to say yes, to get your story out? * * *

Here's one fan's comment made on U-Tube:

Lead singer Alf is 90 - it’s quite something when he sings “I hope I die before I get old”. And he’s not the oldest -- there are 99 and 100-year-olds in the band! The Zimmers will feature in a BBC TV documentary being aired in May 2007.

Documentary-maker Tim Samuels has been all over Britain recruiting isolated and lonely old people -- those who can’t leave their flats or who are stuck in rubbish care homes.

The finale of the show is this group of lonely old people coming together to stick it back to the society that’s cast them aside -- by forming a rock troupe and trying to storm into the pop charts.

Official information for fans about the band is posted on the group's website on mySpace:

Formed in early 2007, The Zimmers are not only the oldest gigging band in the world (with an average age of 78), they are also the most celebrated, having recorded their debut album at the famous Abbey Road Studios, under the watchful eye of Acclaimed Producer Mike Hedges.

Oh and by the way, don't tell them you think this is funny, with more aggression than Nirvana and more talent than The Beatles, these OAP's are here to stay. Their first single 'My Generation' is released on May 14th. Expect it to climb faster than a Stenna Stair Lift!

Other songs in THE ZIMMERS repertoire include 'Firestarter' by The Prodigy, 'When I'm (one hundred and) 64' by The Beatles and the live favorite (Jermain Stewarts worldwide hit) 'We Don't have to take our clothes off (to have a good time)'.

That fan website gives biographical information about various band members, including:

• Winifred Warburton (99) -- Lives in a care home in Derbyshire. * * *
• Eric Whitty (69) -- Lives in a care home near Liverpool. * * *
• Tim O'Donovan (81) -- Lives in a care home attached to a convent in Clacton. * * *
• Joan Bennett (it's rude to ask a ladies age!) -- Lives on her own in London. * * *
• Alf Carretta (90) is the lead singer.
• Ivy Lock, Rose Dickens, Dolores Murray, Rita, Sylvia Beaton, & Sally Page -- This group of people met at the Mecca bingo hall on Essex Road and have been friends ever since. * * *
• Gillian (Deddie) Davies (69) -- Actor. * * *
• Peter Oakley (Coming up for 80) --Otherwise known as “Geriatric 1927” to regular You Tubers
• Buster Martin (100) -- Works 3 days a week for Pimlico Plumbers. * * *
• John & Bubbles Tree, Rob Fulford & Dennis Skillicorn -- they’re united in their determination to get older voices back on air. * * *
• Grace Cook (83) -- * * * she’s definitely still got it.

The band's website also notes relevant "Zimmer Facts" about the elderly population worldwide:

• In 2000, there were 600 million people aged 60 and over; there will be 1.2 billion by 2025 and 2 billion by 2050.
• Today, about two thirds of all older people are living in the developing world; by 2025, it will be 75%.
• In the developed world, the very old (age 80+) is the fastest growing population group.
• Women outlive men in virtually all societies; consequently in very old age, the ratio of women/men is 2:1.
  

More videos of The Zimmers' performances were posted, and are available either on the group's website or by a search on U-Tube under their name.

People try to put us d-down (Talkin' 'bout my generation)
Just because we get around (Talkin' 'bout my generation)
Things they do look awful c-c-cold (Talkin' 'bout my generation)
I hope I die before I get old (Talkin' 'bout my generation)

This is my generation
This is my generation, baby

-- "My Generation", by The Who (1965)

* * *

Update: 05/14/07:

On May 13, 2007, the Kansas City Star noted the worldwide attention given lately to The Zimmers. See: "Senior citizens re-make 'My Generation'", quoting from the Brisbane (Australia) Courier-Mail:

Forty years after creation of the teen rock anthem “My Generation,” a group of senior citizens has banded together to make it a hit again — this time on the Web site YouTube. * * *

There’s a lot of talk in the media world about convergence. This is a living, breathing example. Pre-baby boomers pinching the baby boomers’ music and making it relevant through the medium of Generation Y, which just goes to show the original writer, Peter Townshend, was a visionary.

Update: 06/05/07:

The Washington Post reported, on June 4, 2007, in an article entitled "Zimmer Generation on UK Top 40 Chart", that "[t]he elderly rockers known as The Zimmers entered the British Top 40 chart Monday at No. 26 with their guitar-smashing take on The Who's "My Generation."

The group -- which takes its name from the Zimmer frame, the British term for a walker -- was formed by Tim Samuels for a British Broadcasting Corp. documentary.

"Considering we weren't on any playlists, because we were not being young and trendy enough, I think this is an absolute triumph," said Will Daws, producer of the documentary. * * *

Samuels said the band was intended to combat the victim status of the elderly.

"If you can judge a society by how well it treats its old people, we'd be in trouble," Samuels said. "I wanted to do something to help them fight back; something with a little bit of attitude and chutzpah."

Update: 06/23/07:

On Saturday, June 23rd, I heard a segment on "Weekend Edition", broadcast by National Public Radio, entitled "British Pensioner Rocks Out on YouTube", which I highly recommend for your listening.

At 2.5 million views and counting, 79-year-old Peter Oakley is one of the hottest acts on YouTube. The widower and former British army radar technician is also a fledgling musician with the senior citizens' rock band, The Zimmers.

The story lists these additional web links:

• YouTube Videos
• Peter Oakley's Web Site
• The Zimmers

NPR's Commentaries on Aging

This morning, I heard on National Public Radio a fine essay read during Morning Edition in its continuing, once-a-week, broadcast series "This I Believe".

This I Believe is a national media project engaging people in writing, sharing, and discussing the core values and beliefs that guide their daily lives. NPR airs these three-minute essays on Morning Edition and All Things Considered. The project is based on the popular 1950s radio series of the same name hosted by Edward R. Murrow.

Today's essay, entitled "As I Grow Old", was written & read by David Greenberger. His interactions with aging folks have affirmed his belief that "the elderly friends he's made over time are teaching him how to grow old."

* * * It's a mistake to think that old people have special secrets to impart or pearls of wisdom to hand out. Pearls are a rare commodity and you have to work to find them. The most valuable thing for me has been getting to know my elderly friends in the moment — wherever the conversations may lead — rather than through often-told stories from their past. Tales of events before my birth won't necessarily help me know someone better.

That's part of the wonder of relationships: Anything that happened before we knew each other is slightly mysterious. It's only the present we can know. And a conversation in the present is given shape by the lifetime of events and ideas that preceded it. There's no need to go fishing for the past; it will make itself known. * * *

Growing older, he concludes, is not about remembering a longer past; it is about experiencing daily occurrences -- living presently.

As I grow old, I know issues that were once of great concern to me won't seem important anymore. I believe that having something new happen, no matter how small, is what makes for a healthy day, no matter how many days may be left.

I recall hearing other meaningful essays on past Monday mornings, read by their authors in the "This I Believe" series, including:

• "The Deeper Well of Memory" (April 9, 2007) -- "Watching her mother battle Alzheimer's, Christine Cleary feared she might one day forget things she holds dear, including her own late husband. Now Cleary believes memory is more about heart than mind."

• "The Guts to Keep Going" (March 12, 2007) -- "Amy Lyles Wilson helped her newly widowed mother adjust to life alone, teaching her how to do things her father had always done. It inspired Wilson's belief in 'gutsy, wrinkled broads' who have the courage to carry on."
  

• "A Way to Honor Life" (February 5, 2007) -- "Nurse Cortney Davis frequently encounters grief. For years, she sought to counter it with cheer and consolation, but now she believes grief is to be embraced as a way of honoring of the fragility of life."

• "Utterly Humbled by Mystery" (December 18, 2006) -- "When he was young, Richard Rohr wanted firm answers -- not ambiguity. But after 30 years in the priesthood, Rohr now believes there is comfort, humility and closeness to God in accepting the mysteries of life."

If, after reading or hearing those inspiring viewpoints, you still are not suitably motivated to live longer, passionately, in the moment, then read the story that was displayed on NPR's website today right next to the "As I Grow Old" essay.

Read The Long View --"Hugh Hefner on a Life Less Ordinary" -- "A new reality show chronicles the lives of Hefner, 81, and his three blonde live-in girlfriends."

How did Hefner make the transition through decades of cultural changes when others couldn't? Case in point: a new reality show, The Girls Next Door chronicles the lives of Hefner's three blonde live-in girlfriends. The shows demographics may surprise some; viewers are 70 percent female, and most of them are younger women.

After searching the 25,000 available "This I Believe" essays indexed online here, I did not find one authored by Hugh Hefner. So, you'll have to consult a different source for his written personal philosophy.

* * *

“The big surprise for me is that age is just a number, . . . It's a number without meaning. A person who dies at 40 -- through cancer, a car accident, what have you -- how old is that person, really, at 38? He's near the end of his life, whether he knows it or not. And what about a person who dies at 100? How old is that person, really, at 78?"

-- Hugh Hefner, entrepreneur & publisher

Moved by Sorrow with Mourning Online

"We will continue to invent the future through our blood and tears
and through all our sadness . . .
We will prevail . . ."

-- Nikki Giovanni -- a poet, activist, & Distinguished Professor of English
at Virginia Polytechnic Institute and State University.

Virginia's Governor declared Friday, April 20, 2007, as a day of mourning for the victims of the shootings that occurred on Monday, April 16th, at Virginia Tech. He called for a moment of silence at noon on this day.

Meanwhile, parents urged everyone "to focus on healing from the deadliest shooting rampage in modern U.S. history." See: "Day of mourning intended to celebrate lives of Va. Tech victims", by Matt Apuzzo (04/20/07); & "Day of mourning and revelation for Virginia Tech community", posted on NBC's KARE-11 TV's website (04/20/07).

Churches around the country, from California to the National Cathedral in Washington, D.C., planned vigils and prayer services for the 32 victims. * * *

The governor also appointed an independent panel that includes former Homeland Security Secretary Tom Ridge to look into how authorities handled the tragedy.

Ridge said Friday that the group would look into the time lapse and how students were notified of the dangers, and whether privacy laws and the need to communicate for safety conflicted, among other things.

"This was out-and-out murder," Ridge said. "This was a horribly, horribly deranged young man."

At worship hall in State College, Pa., the family of shooting victim Jeremy Herbstritt sat quietly as students and staff lit candles Thursday and signed a condolence banner about the graduate student.

"We will remember" read a large sign near the front of the hall. Several students and staff wore Virginia Tech sweat shirts.

Pennsylvanians, including Tom Ridge & the students at Penn State, do mourn for the dead & pray for the injured -- for all victims of this senseless act of indiscriminate violence inflicted within an otherwise peaceful Commonwealth.

Those VT students & teachers were as innocent, as helpless, as were the child victims of the Nickel Mines Massacre that occurred in a simple Amish schoolhouse in Lancaster County, PA, on October 2, 2006. See: PA EE&F Law Blog posting "In Amish Tragedy, Autopsies Required, Acceptance & Faith Abound" (10/06/07).

They were as innocent & as helpless as any, as all, of the victims of the shooting sprees that have occurred during the past decade in schools worldwide. It is a long list. See: "A Time Line of Recent Worldwide School Shootings" (1996-2007).

The Amish dealt with their tragedy through a community-unifying, individual-sustaining, firm faith:

"[A]t their core, the Amish believe life is based on faith. And belief in the world to come, where there is no violence."

But how can a multi-cultural, geographically-diverse, mixed-belief university population deal with its grief?

The home page on the website of Nikki Giovanni suggests a way -- one likely not intended by her specifically for this situation when it was posted, but clearly applicable today: "living in an electronic age seeing the whole world by pushing a button".

Today, the home page of the website of Virginia Tech shows the photo above, quotes those words by Giovanni, and lists the names of the dead under the heading "In Memoriam -- We Remember".

This is how society today can communicate and commemorate its grief: Through the Internet, on the world wide web.

About a year ago, two national newspapers noted the established new custom of memorializing the dead on websites, where the sad news was announced, where testimony about the deceased could be centralized & retained, and where mourners could congregate & communicate electronically, long-term.

• "Rituals of Grief Go Online", by Warren St. John, published in the New York Times (04/27/06).

• Just as the Web has changed long-established rituals of romance and socializing, personal Web pages on social networking sites that include MySpace, Xanga.com and Facebook.com are altering the rituals of mourning. Such sites have enrolled millions of users in recent years, especially the young, who use them to expand their personal connections and to tell the wider world about their lives.

• Inevitably, some of these young people have died — prematurely, in accidents, suicides, murders and from medical problems — and as a result, many of their personal Web pages have suddenly changed from lighthearted daily dairies about bands or last night's parties into online shrines where grief is shared in real time. * * *

• "Online Memorials Bring Strangers and Friends Together in Community of Grief", by Yuki Noguchi, published in the Washington Post (05/29/06, Page A01):

• Viewers use the Web sites to find and comfort one another -- not only to facilitate communication from far-flung or long-lost friends who couldn't attend a funeral, but also to send messages from one dead soldier's wife to another, from one mourning mother to another or among those galvanized to fight a disease. * * *

• While many non-Western cultures build rituals around death that allow a person to grieve over time, in highly individualistic societies, losing a loved one can be isolating, some psychologists say, which may be why some turn to the Web to reach outside their traditional social network.

• "When death happens, we're so alone," said George Bonanno, a psychologist at Columbia University. "It would be nice if we had a sense of community, and maybe that's what the Internet provides." * * *

For an exhaustive, academic examination of the new, and likely permanent, custom of online mourning & memorializing, see an excellent paper written by an Australian author, Kylie Veale, of Curtin University of Technology, published in the FibreCulture Journal, entitled "Online Memorialisation: The Web As A Collective Memorial Landscape For Remembering The Dead".

Even media stories posted on the web can aid in mourning. A previously wounded victim or a family survivor of a past tragedy can tell their story of horror, loss, pain, reconciliation, & healing. See: "Columbine survivor: Expect an emotional roller coaster", by Mary Carter, posted by CNN on April 20, 2007.

Perhaps someday I'll explain the details of setting up a memorial website. But not today. Today is a day of national mourning, again.

"We are sad today, and we will be sad for quite a while.
We are not moving on.
We are embracing our mourning.
We are Virginia Tech ... "

-- Nikki Giovanni

* * *

Update: 05/06/07:

For the political reaction in Pennsylvania, see: "Pa. unlikely to follow Va. on broad mental health gun restriction", by Martha Raffaele, an Associated Press Writer, published May 5, 2007, by AP State News (NEPA):

The Rendell administration is examining laws that control who may buy guns in Pennsylvania in the aftermath of the Virginia Tech shootings, but the governor is unlikely to follow his Virginia counterpart's lead and call for barring firearms sales to anyone ordered to get mental-health treatment, a top administration aide said.

"Should everybody who's depressed not be able to buy a gun?" asked Donna Cooper, Gov. Ed Rendell's policy secretary, whose staff is pulling together information about how other states balance patient privacy rights and public safety.

A judge ruled in 2005 that Virginia Tech gunman Seung-Hui Cho was mentally ill and a danger to himself, but he was ordered to attend outpatient counseling and not committed to a mental hospital. That enabled Cho to avoid being entered into the state's background-check database that licensed gun dealers use to evaluate prospective gun buyers.

Virginia Gov. Timothy M. Kaine closed the loophole Monday by signing an executive order that requires anyone receiving court-ordered mental health treatment to be added to Virginia's database of people barred from buying guns _ regardless of whether the treatment is inpatient or outpatient.

Pennsylvania does not prohibit gun ownership by people ordered to receive outpatient treatment for mental-health issues. Cooper said most of the people in that category are nonviolent and require counseling to help them cope with such things as eating disorders, the stress of a child-custody fight or the grief of a parent's death.

"If you're a danger to yourself or to others, it is unlikely that (a judge) is going to order outpatient treatment for you," she said.

The administration is considering whether to broaden the scope of mental health records that are included in the state police database of people barred from buying guns to cover outpatients under certain circumstances, but officials have reached no decisions about how and where to draw the line, Cooper said.

"Diagnoses are not consistent across settings, across doctors," Cooper said. "This is a very, very complicated issue." * * *