The truism, “not only must Justice be done; it must also be seen to be done” – actually, it’s a famed quote from a 1924 British legal case – should apply to court proceedings and – if credibility is to be maintained – to democratic government generally.
With intent interest, the citizens of Otsego County have observed the wheels of justice turn since Memorial Day Weekend 2016, after it surfaced that a resident of Focus Otsego, identified only as M.P., had been left sitting in a chair, largely untended, for 41 hours.
In the subsequent months, four aides and LPNs responsible for M.P.’s care faced criminal charges and were convicted. The state Attorney General’s Office then took up the case, and brought nine charges against two top executives at Focus Healthcare, the Rockland County corporation that owned former county nursing home in Index, Town of Hartwick.
The Focus CEO, Joseph Zupnik, and the financial officer, Daniel Herman, were found guilty of one count of neglect, a misdemeanor, on Sept. 12 in Otsego Town Court. On Oct. 10, Town Justice Gary Kuch fined each of them $1,000 and sentenced each to 250 hours of community service. (The state has also fined the men $1 million, which they will split.)
So far, the proceedings have been transparent. Now, it appears the public is limited to what it can learn about the final step – how and where the 250 hours will be served.
The defendants’ lawyers asked that the men fulfill their obligation near their homes, Zupnik in Rockland County, where he is an EMT, and Herman in New Jersey.
The attorney general’s prosecutor, Kathleen Boland, argued the responsibility should be fulfilled in Otsego County. Judge Kuch sagely observed: “Doing community service at something you love doing – it doesn’t make any sense to me.”
However, he noted court rules prevent him from even making a recommendation. That decision is now in the hands of Alternatives to Incarceration, which has been administered under contract with the county since April 2011 by the Catholic Charities chapter, based in Oneonta.
The director, Ameen Aswad, will immediately tell you he can’t talk about specific cases, but he said that, generally, he assigns defendants referred to him to tasks within the county. The exception can come in cases where a guilty party was visiting for a short period from somewhere far away.
The nursing home’s Family Council has expressed no preference about where the community service should be done, according to its secretary, Bill Hayes.
In a letter to Kuch, Hayes and his wife, Betsy, Family Council chair, urge the men serve their time in “a residential facility’s laundry room, processing soiled garments and the equivalent of the ubiquitous brown washcloths they ordered for residents’ personal hygiene.” However, Bill Hayes said the couple has no firm opinion where the service should be, either.
Here’s another view: The case occurred in Otsego County; the community service should be done in Otsego County. Justice that can’t be observed is justice taken on faith. Is that good enough?
Be that as it may, Aswad said that Alternatives to Incarceration – it is overseen by a 19-person advisory board that includes police, judges, people from community services agencies, even a representative of the college – hasn’t made public what service culprits are required to perform or where.
The Committee on Open Government, which provides advice on the state’s Freedom of Information Law, says that court records are specifically exempt from FOIL. But if, in fact, Alternatives to Incarceration is a county agency – like, for instance, the probation department – it would be subject to FOIL.
There’s no reason why it should get to that.
There are differences of opinion on Zupnik and Herman’s community service. Given the high profile and emotions excited by M.P.’s case, it might make sense – and this may be argued otherwise, too – to allow the culprits to fulfill their obligation without publicity.
This is certain: When it’s over, there should a public accounting. The Alternatives to Incarceration board owes that to the public, for its own credibility if nothing else.
Not only must justice be done; it must also be seen to be done.
► Click Here to read report on the October 10 sentencing of FOCUS executives Joseph Zupnik and Daniel Herman in Otsego Town Court.
FLY CREEK – The two executive facing criminal charges in mismanagement of the Focus nursing home today had eight counts against them reduced to one, and will face fines, community service and possible exclusion from going back into the nursing home business.
But no jail time? “I was hoping,” said Betsy Hayes, chairman of Focus’ Family Council, which continues to operate under Focus successor Cooperstown Center, as required by Medicare regulations. She hoped the community service would be in a nursing home.
“I had hoped it would have been a little more severe,” said Bill Dornburgh, who served on the Health Facilities Corp., set up by the county Board of Representatives to sell Otsego Manor; he had voted nay on the Focus sale.
OTSEGO – Joseph Zupnik and Daniel Herman, the former executives at Focus Otsego who were charged with multiple counts of Willful Violation of Health Laws and Endangering the Welfare of the residents, plead guilty to one count of the eight-count indictment, Endangering the Welfare of an Incompetent or Physically Disabled person, in the Town of Otsego Court just moments ago.
Now we know, lives indeed may be at stake.
Two top executives of Focus Ventures have been arrested on eight counts involving two residents of the county’s former nursing home, Otsego Manor. (The county sold the Manor to Focus in January 2014, for $18.5 million, and Centers Health Care bought it from Focus in January for an undisclosed sum.)
Five of the counts are “endangering the welfare of an incompetent or physically disabled person.” The other three are “willful violation of health laws.”
Two patients were involved. The first, identified as M.B., was a celebrated case. She was left untended in a wheelchair throughout Memorial Day Weekend 2016. Several nurses and aides faced criminal charges as a result. The second, now known to be Robert Banta, longtime chair of the Otsego County Soil & Water Conservation board; the conservation center on Route 33, Town of Middlefield, is named in his honor. He fell on June 17, 2015, the night he moved into Focus, hit his head, and died a week later.
Arrested and arraigned May 31 in Otsego Town Court in Fly Creek were
Focus CEO Joseph Zupnik and Daniel Herman, a
partner in the company.
The company that operated Focus Otsego, CCRN
Operator, was also charged.
On the one hand, there’s hope in this piece of bad news, hope that nursing-home operators can’t recklessly cut staff and not be held responsible for deadly consequences.
Two weeks before, another piece of bad news, that Centers, Focus’ successor, had unilaterally raised “private pay” rates from $320 to $510 a day, the highest in New York State – Long Island and New York City included – caused a sense of despair. (Since, Centers has rolled it back to $410.)
With federal reimbursement policies forcing public nursing homes into private hands, can nothing be done to ensure the new private owners provide satisfactory care to our most vulnerable fellow citizens?
Recently, Gary Koutnik, D-Oneonta, vice chairman of the Otsego County Board of Representatives and chairman of its Human Services Committee, wrote a letter in response to an editorial urging the county board take more responsibility for the former Otsego Manor.
Having sold the Manor, he said, the county board no longer has responsibility for what happens there. This is not to beat up on Koutnik: His opinion is widely shared among county representatives.
The Zupnik-Herman arrests prompt us to repeat our point, and expand on it.
At the very least, the county board should have a representative at every meeting of the Centers (formerly Focus) Family Council. Medicaid regulations require nursing homes that accept federal reimbursement to have such councils. It is the only opportunity for the public to be briefed and ask questions of administrators.
Our state senator and assemblymen should do the same. And certainly, Congressman John Faso, R-Kinderhook, or any Democrat who might defeat him this fall should follow suit – after all, federal reimbursement policies forced the county to sell excellent Otsego Manor to profit-powered entities.
Since, who hasn’t heard stories with dismay about the degradation of service locally?
Regardless, the Zupnik-Herman indictments are excellent news, whatever the resolution of the court case.
The indictments, by the state Attorney General’s Office, send the message loud and clear: Top executives of nursing-home corporations may be exempt from the common decency in the search for profits, but they aren’t exempt from the criminal code.
What’s needed is whistle-blowers, not just private citizens, but the officials we elected to take care of us, who have greater clout in forcing action than the rest of us.
(In this case, that might indeed have already happened; if so, bravo.)
Two executives at the company that owned the former Focus of Otsego nursing home have been charged with eight felony counts, including six of endangering the welfare of an incompetent or physically disabled person, according to charges filed by the state Attorney General’s Office in Otsego Town Court. The CEO of CCRN Operator, Joseph Zupnik, and another principal, Daniel Herman, were arraigned in the Fly Creek courtroom on May 31; CCRN, the name of the LLC that owned the local nursing home, has also been charged. If a guilty plea is not agreed on by July 18, a conference will be held to determine if the case will be turned over to a grand jury. Centers Health Care bought the facility on Phoenix Mill Road in January; Focus had purchased the Schuylkill Manor nursing home from the county in 2015.