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breaking
Virginia could decriminalize marijuana with new Democratic majority in legislature

Advocates for reform of Virginia’s marijuana prohibition laws say the new makeup of the legislature means Virginia could vote to decriminalize marijuana next year.

Certain Republican leaders in recent years stopped decriminalization bills from reaching a full vote of the House and Senate, but in January they won’t be in charge anymore. On Nov. 5, Democrats took control of the state House and Senate, and Democratic Gov. Ralph Northam, a doctor, has backed decriminalization for more than two years, saying enforcement is expensive and disproportionately jails African Americans.

It’s “very likely” that a decriminalization bill with bipartisan support will make its way to Northam next year, changing the state penalty for possession of small amounts of marijuana from a criminal misdemeanor carrying up to 30 days in jail to a civil fine, said Jenn Michelle Pedini, executive director of the group Virginia NORML and one of the state’s top advocates for legal use of marijuana.

Virginia would join 26 states and the District of Columbia that have passed decriminalization measures or eliminated the possibility of jail for possession of personal amounts, according to the National Conference of State Legislatures; 11 states and the District of Columbia have legalized small amounts of marijuana.

NORML estimates that state and local governments in Virginia spend $100 million a year enforcing marijuana laws, based on a 2018 study from the Cato Institute that showed Virginia was spending over $81 million in 2016.

Decriminalization is not the same as legalization. Even if it’s decriminalized, marijuana would remain prohibited and police would still be able to detain and charge someone with possession of marijuana. But the charge would be a civil infraction, not a criminal misdemeanor.

Public opinion polls show widespread support for relaxing the prohibition on marijuana; 61% of Virginians said they support legalizing marijuana for adults, according to a recent poll by the University of Mary Washington, with 34% opposed. The Virginia State Crime Commission in 2017 studied marijuana decriminalization at the request of the General Assembly; 3,743 written comments supported decriminalization while 107 opposed it.

“We all believe that decriminalization will occur in the 2020 session,” said Del. Steve Heretick, D-Portsmouth, who has previously introduced decriminalization and legalization bills. “We have folks on both sides of the aisle who understand that it is good public policy.”

Heretick, a lawyer, said some judges and lawyers for years have questioned why marijuana is treated like a drug with the addictive qualities of heroin, for example. In addition to its pervasive recreational use, marijuana is beneficial in treating neurological disorders and pain, he said.

He said he expects Virginia to see legalized marijuana for recreational adult use “probably in the next three to five years.” Heretick said he and Sen. David Marsden, D-Fairfax, will create a “cannabis caucus” in the next session.

Sen. Siobhan Dunnavant, R-Henrico, a doctor who has championed the use of medical cannabis, is among Republicans who have expressed support for decriminalization.

“I’m in favor of the concept of decriminalization, but I would need subject matter experts to define the best legislative path,” she said in a statement. “I am a strong advocate for the medical value of marijuana but am not as well versed in the area of criminal justice. I believe we can build consensus on a plan for decriminalization.”

Supporters of decriminalization were heartened in 2016 when Senate Majority Leader Tommy Norment, R-James City, said the state should stop locking people up for possessing modest amounts of marijuana. But in 2018, Norment opted not to file a decriminalization bill because he didn’t believe it could pass. A GOP-controlled House Courts of Justice subcommittee has killed Democratic bills on marijuana.

Adding to the momentum for a change in the law, Attorney General Mark Herring in June came out in favor of decriminalizing small amounts of marijuana for adults and wrote in a Daily Press op-ed that Virginia should “start moving toward legal and regulated adult use.”

He cited the number of first-time marijuana convictions in Virginia rising from 6,500 in 2008 to 10,000 in 2017. Marijuana arrests reached nearly 29,000 in Virginia in 2018, their highest level in at least 20 years. A 2013 national study by the American Civil Liberties Union found that a black person was 3.73 times more likely to be arrested on a marijuana possession charge than a white person, though blacks and whites use marijuana at similar rates.

Lawmakers will be dealing with a variety of marijuana bills next year. Del. Lee Carter, D-Manassas, has said he plans to file a bill to expunge all criminal records for misdemeanor and felony cannabis possession in Virginia.

Lawmakers have heard arguments against marijuana from the Virginia Association of Commonwealth’s Attorneys.

Michael Doucette, the group’s lobbyist and a former Lynchburg commonwealth’s attorney, said discussions on marijuana legislation should look at the stronger potency of marijuana now compared to the past, whether there are links between marijuana and mental illness, how to regulate smoking in public, and what to do about motorists who have used marijuana.

In 2017, a vote of the association’s membership found about 50% of prosecutors didn’t want any change in the law, he said.

“There may be some links between mental illness and the use of marijuana,” he said, citing a January article in the magazine Mother Jones about the book “Tell Your Children” by Alex Berenson, who examined teenage marijuana use and mental illness.

Doucette also cited a January article in The New Yorker about Berenson’s book, which referenced a 2017 report by the National Academy of Medicine that said, “Cannabis use is likely to increase the risk of developing schizophrenia and other psychoses; the higher the use, the greater the risk.”

Prosecutors will meet at an executive conference in early December about where they stand on policy issues.

“It is a changing environment,” Doucette said. “We get that. It is a changing legislature.”

The General Assembly has already passed legislation to allow up to five dispensaries across the state to produce cannabis products for medical purposes. In a secret process, the Virginia Board of Pharmacy last year chose five companies out of 51 applicants.


Z-no-digital
Unguarded: Discharged

Ora Lomax felt in her bones that her husband of 63 years would die that day.

Four days before Christmas, something in William Lomax had changed. He was praying and singing “This Little Light of Mine” and “Jesus Loves Me.”

He must have felt death, she thought.

She couldn’t stand to see it happen. But before she left him, he squeezed her hand and told her he loved her for the last time.

Just three months earlier, he’d been living with her in their small home near Virginia Union University. Ever since a car accident in 2016 left William, 87, with a brain injury, Ora, also 87, needed help from 24-hour home health aides to take care of him. She couldn’t change him or help him out of bed because of her own physical limitations, but she was there to make sure the aides did.

He’d spent his final weeks in a nursing home where Ora said she frequently found him unwashed, cold and begging for water. He’d become agitated and inconsolable.

He was angry with her for leaving him in this place.

“You have forsaken me,” he told her.

He didn’t understand that she had no choice.

On Nov. 2, 2018, seven weeks before William’s death, Ora sat in Richmond Circuit Court without a lawyer and watched as a judge took away her right to make decisions about her husband’s care and treatment.

VCU Health System, where William had been a patient for just over a month — ever since one of his home aides had called 911 because he was having trouble breathing — had filed a petition with the court to have William declared incapacitated and have a guardian appointed to make decisions for him. His medical team at VCU Health System didn’t think Ora should be the guardian because they said it wasn’t safe for her to take William home again.

William, who was diagnosed with congestive heart failure, chronic kidney disease, dementia and a number of other health problems, had been admitted to VCU Health System 12 times in the past eight months, which doctors took as a sign that he wasn’t getting adequate care at home. They said they believed that he would be better off in a nursing home.

The judge granted VCU Health System’s request to have its attorney, R. Shawn Majette, appointed William’s guardian, the person legally allowed to make medical and housing decisions on behalf of an incapacitated person, and his conservator, the person who controls his finances.

A yearlong investigation by the Richmond Times-Dispatch, which involved analyzing more than 250 court cases and interviewing nearly three dozen people, revealed that VCU Health System has taken hundreds of low-income patients to court over the past decade to remove their rights to make decisions about their medical care.

This process, which frees up hospital beds at VCU Health System and saves thousands in uncompensated costs, often results in sick, elderly or disabled patients being placed in poorly rated nursing homes, sometimes against the wishes of their own family members.

In these cases, VCU Health asks the court to grant an attorney at the ThompsonMcMullan law firm the power to make critical medical and life decisions for its patients. The court orders the attorney to represent the best interests of those patients, but the law firm continues to look out for the hospital’s interests on dozens of guardianship cases each year.

At the same time, the hospital is often losing thousands of dollars every day the patients it takes to court stay in the hospital. It’s an arrangement that calls into question the attorneys’ abilities to independently advocate for the best interests of the patient, according to 10 people who specialize in guardianship, medical ethics, law and disability rights.

Representatives of two hospital systems in Virginia said they file guardianship cases against their patients, but don’t allow their attorneys to serve as the guardian, calling the scenario an ethical conflict.

“What I see as the overall problem is that this efficient way for hospitals to discharge their patients is evading or avoiding all of the due process protections that are embedded in the Virginia guardianship code,” said Sally Balch Hurme, a Virginia-based elder law attorney who served as chairwoman of the National Guardianship Network and helped write a model guardianship law for the Uniform Law Commission, after reviewing The Times-Dispatch’s findings. (Hurme is not related to the reporter.) “There are a lot of things going wrong and they’re all very distressing.”

The law firm says there is no ethical conflict because the moment the court order is issued making the attorney a guardian, the attorney ceases to represent the hospital that paid the firm for the proceeding and is only focused on the well-being of the person under guardianship. VCU Health System has paid Thompson-McMullan $1,158,746.46 since 2007.

Some family members of people put under the law firm’s guardianship at VCU Health System’s request — like Ora — have felt that the system is stacked against them, unfairly cutting them out of their loved one’s care. And those put under guardianship without any loved ones to look after them end up in a system with little oversight to ensure they are receiving proper care in exchange for taking away their rights to make health care decisions for themselves.

Majette and two of his colleagues at ThompsonMcMullan, Andrea Yoak and Paul Izzo, have been involved in more than 90% of guardianship cases filed by health care providers in Richmond since 2014. Majette has as many as 120 people under his guardianship at a time — six times the caseload allowed for the state’s public guardians — and rarely visits them, even if he has had them placed in nursing homes that have a history of problems, according to annual guardianship reports he has filed.

Meanwhile, Virginia’s $4.5 million public guardianship program is considered by guardianship experts to be a model for the nation, but it is plagued by insufficient funding, a long wait list, and inefficient processes that can take an average of six months to get someone enrolled.

The Richmond Circuit Court, charged by the state with upholding the laws intended to ensure vulnerable people receive due process before having some of their most basic rights taken away, regularly takes 15 minutes to hear guardianship cases involving Majette or one of his colleagues, without the patient being present or having a defense attorney to speak on their behalf.

The judges often trust the recommendation of the guardian ad litem, an attorney appointed by the court as a neutral party to represent the patient’s best interests. The guardian ad litem — frequently suggested to the court by Majette — in nearly 90% of all VCU Health guardianship cases since 2014 was the same person, Henrietta Cannon, who was also paid by VCU Health for her work on its guardianship cases.

Once VCU’s request to have its lawyer make decisions for William Lomax was approved, he was promptly discharged to ManorCare Health Services-Richmond on Hilliard Road, a nursing facility rated one out of five stars by the Centers for Medicare and Medicaid Services. The facility had 26 health citations on its latest inspection report in May, more than twice the Virginia average, including medication errors and failing to create a homelike environment.

“ManorCare Health Services-Richmond and ManorCare Health Services-Imperial strive to provide patient-centered quality care in a secure and homelike environment,” said Kelly Kessler, a ManorCare spokesperson, in a statement, saying that the facility could not comment on specific cases because of patient privacy. “ManorCare Health Services-Richmond and ManorCare Health Services-Imperial are currently in compliance with regulations set by the department of health as determined by their most recent state surveys.”

In the following weeks, Ora called Majette so frequently that she had his number memorized, but she said he didn’t involve her in decisions about her husband’s care. Majette said she called more than 250 times. He said the calls became so threatening that he believed her to be dangerous and reported her to the police.

When Ora discovered a bump on William’s head that she suspected he suffered in a fall, she didn’t have the authority to have him sent to the hospital for tests. She couldn’t take him home or send him to a different nursing home. The nursing staff wasn’t required by law to disclose medical information to her or ask her opinion.

And when William died on Dec. 21, 2018, she said ManorCare didn’t call her.

***

VCU Health System files about 30 guardianship petitions a year, a number that hospital officials say shows it is done very rarely — out of the nearly 40,000 hospital stays they see each year — and only as a last resort. Experts say the number of people who need guardians — estimated across the country to be 1.5 million people — is likely to rise as the population ages.

VCU hospital officials said all patients receive personalized discharge planning to help ensure they have a smooth and safe transition from the hospital to wherever they go next, whether that’s home or a nursing home.

“When it comes to taking care of our patients, our mantra has been and continues to be safety first,” said Dr. Ron Clark, chief medical officer of VCU Health System. “We look to do the best that we can for all patients who come in, not only while they’re here, but after they go home.”

Hospital officials would not speak about specific patient cases but said they would resort to guardianship against the wishes of a family member or friend only if they have serious concerns about the patient’s safety under that person’s care or if there is a dispute among relatives about the person.

When that does happen, they said they turn to someone with guardianship expertise.

Before hiring Thompson- McMullan in 2007, the hospital had its in-house attorney handle guardianship cases, but she became too overwhelmed with other legal matters to handle them all, Clark said. Majette was working on guardianship cases long before representing VCU Health System, taking on his first case in 1984 as a favor to the assistant city attorney at the time, Majette said.

“At the point I become the fiduciary [guardian], I am then focused on one thing, and that is that person,” said Majette, whose guardianship cases are known as “limited” in court but give him financial and medical control.

Majette’s firm hired Commonwealth PR, a local public relations firm, to coordinate an interview after The Times-Dispatch’s third request to speak with him for this story.

He said his high caseload of people under his guardianship is a symptom of a system that fails vulnerable, poor people. He and the two other attorneys at his firm who serve as guardians and five support staff who help them are the only option to make sure these people are able to stay in the nursing homes where they are placed, Majette said.

“A day doesn’t go by that we don’t have those people [the law firm staff] here and making sure that every bill is paid, making sure that every penny is accounted for, making sure that the quarterly meetings that every nursing home is required to conduct ...” Majette said. “They all get attended to.”

Majette said he doesn’t always keep track of his visits to the nearly 100 people currently under his guardianship, although the reports he files contain a sworn statement that the information in the report is true and correct to the best of his knowledge. Because he doesn’t regularly visit the people under his guardianship, he said he trusts the state departments of health and social services to ensure the licensed facilities where they are living are safe.

The state-funded public guardianship program is required by law to use what it calls a person-centered approach, limiting guardians to 20 people under their care at a time, requiring that they visit the person at least monthly to ensure they are properly cared for and encouraging the person under guardianship to define the direction of their life as much as possible.

Pamela Teaster, a gerontology professor at Virginia Tech who helped create the state’s public guardianship system when she was a doctoral student in 1998, wrote in her testimony before the U.S. Senate Special Committee on Aging in 2018 that, “Some paid professional and public guardians have ratios of one to over 100 protected persons, a ratio far too high to afford an individualized and appropriate level of protection and care.”

Clark, VCU Health System’s chief medical officer, said Majette’s caseload did not raise any red flags about the care that patients are getting after they are put under his guardianship.

“I’ve never had a concern brought to my attention about a patient we have engaged in that process to facilitate their safe care as an untoward outcome,” he said. “I really leave that in the hands of the court to determine what is legal and ethical and appropriate in those matters.”

Pam Lepley, vice president for university relations for VCU, said the hospital brings the case to court, but the final decision is up to the judge.

“We’re actually legally out of it once the court appoints the guardian,” Lepley said. “We’re not in charge anymore.”

The clerk of the Richmond Circuit Court, Edward Jewett, said the court is not responsible for guardianship oversight, and the chief judge, Joi Jeter Taylor, declined an interview.

***

In the cases reviewed, 87% of the people appointed a guardian in health care provider-initiated guardianship proceedings were deemed by the court to be very poor and couldn’t afford an attorney, meeting the state’s definition of indigent. Many of them had complex mental health diagnoses, including symptoms of schizophrenia, bipolar disorder, dementia or traumatic brain injury. Many also had serious medical diagnoses, from diabetes to heart failure to paralysis. Some struggled with homelessness and substance abuse. Court records indicate that many had no family or friends willing or able to step in and help them.

But in some cases, hospitals pursue guardianship when a suitable caregiver is available, according to Veronica Williams, an elder law attorney based in Newport News with a special interest in what she calls “inappropriate hospital-sponsored guardianship petitions.”

This decision can be influenced by a hospital’s desire to move the patient out of an acute care bed, disagreement with the family’s preference for treatment, or assumptions about the family’s desire for community-based care over institutional care, Williams wrote in an article published by the Virginia Academy of Elder Law Attorneys.

In the Lomax case, the hospital argued that William would be safer in a nursing home than at home with Ora and that his many hospital stays showed Ora could not adequately care for him. But Williams, who decided to represent Ora for free after The Times-Dispatch contacted her for her expert opinion on the case, filed a petition with the court that said the hospitalizations showed that Ora sought medical attention for her husband when he needed it, “the hallmark of a good caregiver.”

“When a ‘non-family member’ is appointed by the Court to serve as a patient’s guardian, the family technically loses the authority to ask questions about the patient’s condition, and the family also technically loses the authority to make medical care and treatment decisions for the patient (to include end of life type decisions),” Williams said in a statement. “In my opinion, it is not in the best interests of a patient for a caring and devoted family member(s), who always make a habit of being at the patient’s bedside during a hospitalization, to lose the authority to ... make inquiries about the patient’s condition and ... to make medical care and treatment decisions regarding the patient.”

In 24 cases since 2013, including 18 initiated by VCU Health System, records indicate that there were family or friends willing to serve as a guardian, but the hospital’s attorney was appointed the guardian. In at least 13 cases, Majette or another attorney was appointed guardian for the stated purpose of having the patient discharged to a nursing home, signed up for Medicaid or to ensure a bill was paid.

And in six cases, including five filed by VCU Health System, the guardian ad litem or a psychiatrist had believed the person to be mentally competent, but an attorney was still appointed the person’s guardian.

“It is not a light matter for a non-family member to take over guardianship,” Williams said. “It seems paternalistic [for the hospital to pursue guardianship over disagreement about care]. ... We always want to honor what the patient wants done.”

***

Ora and William Lomax met as two African American teenagers coming of age in a deeply segregated Richmond.

Ora would take the bus from where she was staying with her sister in Church Hill to her job downtown. When William boarded the bus a few stops later, he’d sit next to her.

William — or Lomax, as Ora called him — was a barber-in-training, a path he chose after shining shoes in a shop to make extra money while he attended Maggie L. Walker High School.

But then, with the Korean War raging overseas, William joined the Army.

When he returned home, he hadn’t forgotten the pretty girl from the bus.

One day, he noticed her walking into a show at the Robinson Theater in Church Hill. He bought a ticket, sat right behind her and tapped her on the shoulder.

The couple married on July 3, 1955, at Great Hope Baptist Church in Union Hill.

Ora went on to be the first African American saleswoman at Raylass Department Store on Broad Street, selling furs and Estee Lauder to white women. When customers called her the N-word, she’d brush it off on the sales floor and then cry in the bathroom.

William opened his own barbershop on North Second Street, and Ora later opened a beauty salon next door.

The walls of their small home were lined with the many awards and plaques they’d received for their contributions to the community.

They spent decades mentoring youths, being active leaders in the NAACP and speaking up about the political issues of the day — from opposing adding context to Confederate statutes instead of removing them, to protesting a $25 fee to hold meetings at the Richmond Public Library.

Through it all, they were together. Until a court order came between them.

***

In the city, health care providers almost exclusively turn to one law firm for guardianship petitions. ThompsonMcMullan attorneys filed 257 guardianship petitions from 2013 through 2018. Majette, the guardian in the Lomax case, filed 83% of those. In the same time frame, the next most common attorney not affiliated with the firm filed six cases.

Majette said he makes a point to be appointed a limited guardian as opposed to a general guardian. This means his duties and responsibilities are limited to what is laid out in the court order.

The court orders that the judges sign appointing the Thompson-McMullan attorneys limited guardians generally give them the power to discharge the person from the hospital, have them admitted to and kept in a nursing home, consent to or withdraw any medical treatment, and control their finances, according to court records.

In the Lomax case, the order stated that Majette alone could determine what medical treatment or withdrawal of treatment was in William’s best interests if William’s wishes were unknown to Majette, stating that Majette’s decision “shall not be subject to question by any person.”

“We have a commitment to the community writ large,” Majette said. “We pay our people to help us do this. But I’m not a general guardian and so I have to have some framework in which to serve. And the orders — every one of them — says exactly that. There are no tricks. There’s no misrepresentation.”

ThompsonMcMullan said it pays staff about $176,000 each year for all of the work they do maintaining guardianships that the fees collected from indigent clients don’t cover. The firm said it receives an average monthly payment of $55.57 per person. Majette said the other private guardianships he does help bring in the revenue that allows the firm to take on a high number of indigent cases.

“We accept these costs as a part of our commitment to the ward and to the court,” Majette said in a statement made through Commonwealth PR.

VCU Health System paid Majette’s firm $1,137,015.62 for bringing the guardianship petitions to court since 2007. Most of the time, someone from the firm is also appointed guardian.

The result gives the attorney the power to discharge the patient at the hospital’s request and place the person in a nursing home, even if it is against the person’s or family members’ wishes.

The scenario presents a potential conflict of interest problem, according to George Cohen, a professor who teaches professional responsibility at the University of Virginia law school.

“The interests of the hospital and the interests of the [ward] could certainly be in conflict,” Cohen said after reviewing The Times-Dispatch’s findings.

ThompsonMcMullan said it does not believe representing the hospital and serving as guardian to be a conflict of interest. To prove that, after the Richmond Times-Dispatch contacted the firm, it solicited an opinion from Bernard DiMuro, an attorney who was president of the Virginia State Bar in 2002 and chairman of the Virginia Supreme Court Disciplinary Board from 1992 to 1995.

“At the time that the court declares that the respondent is incapacitated and the appointment of a guardian is warranted, VCU/MCV’s interests end and the Firm has no ongoing duties to the facility regarding the respondent,” DiMuro wrote.

But Cohen said the fact that the firm regularly represents the hospital could bring into question the attorney’s ability to independently look out for the interests of the person under guardianship.

“If [the law firm is] repeatedly representing the hospital, the concern is that they’re going to be more likely to make decisions that the hospital is happy with because it will ensure they get this continuous ability to represent the hospital in other cases,” Cohen said. “Whether to keep the person in the hospital [and] which place to refer them to could be unduly influenced.”

In at least 13 cases, court records show that Majette or one of his colleagues at ThompsonMcMullan resigned from their duties as guardian, but reserved the right to resume authority to make medical and discharge decisions without further court order if that person should ever end up at VCU Health System again.

“I’ve never heard of a guardian resigning but holding out the opportunity to be automatically restored without in-court intervention,” said Hurme, the Virginia attorney who helped write the uniform guardianship law and an international treaty for protecting vulnerable adults. “That clearly indicates to me that the guardian is serving the hospital, not serving the individual.”

Majette said that in those cases, he resigned to give the incapacitated person a chance to live independently if the facility where the person had been living approved of the idea.

He said he retains the ability to resume guardianship of the person if “bad things happen to them” and they end up back at VCU Health System.

“I can step back in, if requested, and help with that discharge and to help that [person] get back into a nursing facility or an assisted living facility,” Majette said.

Asked what would happen if the person were taken to a hospital other than VCU, such as Bon Secours St. Mary’s Hospital in Henrico County, Majette said, “I don’t represent St. Mary’s. I do not represent — I do not know what their discharge planning is. I do not know what their process is.”

Majette’s biography on the law firm webpage says, “Hospitals, nursing homes, assisted living facilities and other corporate clients often consult Shawn for innovative, efficient solutions to discharge and Medicaid problems.”

“Oftentimes, hospitals want and may need to discharge people,” said Erica Wood, assistant director of the American Bar Association Commission on Law and Aging, who has conducted national studies on public guardianship and guardianship monitoring. “We know that it’s difficult to find placements for those people. Guardians can serve an important purpose, but at the same time it can become a pipeline. It can overemphasize institutionalization. It can give a lower priority to looking at less-restrictive options than it should have.”

Guardianship reform movements across the country have been calling for a greater emphasis on less-restrictive options to guardianship, such as supported decision-making, which allows a person to retain their rights while receiving additional resources to help make decisions; the use of “person-centered” planning to ensure guardians are respecting the person’s wishes rather than substituting their own; better data collection; and oversight of guardians.

When hospitals, like VCU Medical Center, have a patient who they believe needs a guardian and is racking up a hospital bill that they are unlikely to be able to pay, it is far quicker to hire an attorney and have a private guardian granted than to go through the process for public guardianship.

When ThompsonMcMullan files a guardianship petition, it’s resolved in an average of two to three weeks, according to an analysis of court records, compared with the average six-month process for public guardianship.

Bon Secours Health System, which operates four hospitals in the Richmond area and three in Hampton Roads, and Sentara Healthcare, which operates 11 hospitals in Virginia, including six in the Norfolk region, also hire attorneys to bring guardianship petitions for their patients, but the systems don’t allow those attorneys to serve as the patient’s guardian.

“There’s never a case where I would take on being the guardian. I solely represent the petitioner,” said Debbie Holroyd, the attorney who handles Sentara’s guardianship cases. “It’s quite a task to take on the fiduciary responsibility to care for someone. If I did serve as a guardian for other people, I would not petition to appoint myself. That would be a conflict.”

Instead, the hospital systems use community care or indigent care funds to pay a professional guardian at Commonwealth Catholic Charities or Jewish Family Services. Both organizations also work for the state’s public guardianship program.

“We try to take an incremental approach. … We don’t want to seek guardianship,” said Kelly Stuart, executive director of physician ethics for Bon Secours. “Except in emergencies, it’s a bad idea to have a health system making decisions for you.”

***

On Sept. 28, 2018, Ora Lomax came home from one of her regular five-hour dialysis treatments to an empty house.

The home aide who had been looking after her husband hadn’t called her when William was having trouble breathing. The aide had called an ambulance and left after it took William away.

Ora frantically dialed the hospitals in the area and finally discovered that he’d been admitted to the VCU hospital. When she spoke with William’s medical care team, they told her that they wanted to operate on his heart. She asked if it would improve his health. They told her that, at his age, he probably wouldn’t survive the surgery, she said.

Unwilling to risk her husband’s life, she refused to give consent.

Within weeks, Ora had received notice that VCU was questioning her ability to make decisions for William and would contest her rights in court.

A guardian ad litem, Henrietta Cannon, was appointed by the court to investigate and make recommendations on what the court should do. In her report, she outlined VCU’s concerns: that William had been admitted to VCU 12 times in the past eight months; that Ora had fired three home aides; that Adult Protective Services reports had been filed, although no action was taken; and that Ora failed to comprehend her husband’s condition.

The report also detailed her short visit with William. She told him VCU was requesting that the court appoint a limited guardian and conservator for him and that VCU was proposing that person be a lawyer named R. Shawn Majette.

When Cannon asked him who he wanted contacted about his care, he said, “wife.”

When she asked him what he thought about going to a nursing home, he said he wanted to “go home.”

At home, Ora said she ensured the aides changed him, used the ointment that kept his skin soft and did the physical therapy exercises that had helped him stay mobile enough to get around with a walker. At home, the couple slept next to each other; ate bacon, eggs and grits for breakfast; and watched their favorite shows together.

In her report, Cannon wrote, “At this stage in the lives of both William A. Lomax and Ora Mae Lomax and with respect to their commitment to each other, it would seem only fair that the two of them be allowed to care for the other, to the best of their abilities, within the bounds of sound medical requirements.”

Ora hand-wrote a letter to the court explaining her concerns about the care William was receiving at VCU. During her visits, she’d noticed that he smelled of urine and his adult diapers hadn’t been changed, no one had applied the creams to prevent diaper rash, and he was not receiving the proper “ADL’s,” a professional caregiver acronym for Activities of Daily Living. She wrote about how the caregivers that she employed at her home would do therapy with him to build his strength and would use a gait belt, an assistive device to safely transfer a person from bed to a wheelchair, to prevent him from falling. She said the VCU medical staff refused to talk to her about her husband’s care.

Ora told The Times-Dispatch in December 2018 that Cannon agreed to come and inspect their home to determine if it could be appropriate for William’s care, but she never came. Ora said she had fired three home caregivers because one had hit William, one had come to work intoxicated, and the third had lied about her criminal record.

Still, Cannon decided that Ora was unable to accept her husband’s impairments and was, therefore, not able to appropriately care for him. She suggested that perhaps Ora could move into the same nursing home as her husband.

Cannon died in May before the Richmond Times-Dispatch could contact her for this story.

On Nov. 2, five weeks after William’s admission to VCU, the court appointed Majette his guardian and conservator. Majette agreed to place William in a nursing home close to Ora so she could visit him, Ora said.

William was placed at ManorCare Health Services-Richmond — a 20-minute drive from their home. When she couldn’t find a member of the local NAACP chapter to drive her, Ora had to spend $30 on taxi rides to and from the home to visit her husband.

In the weeks he was at ManorCare, Ora watched William decline.

Ora called the Virginia State Bar to complain about Majette. She called Adult Protective Services and the police to report what she saw as abuse and neglect of her husband, but it didn’t make a difference.

Majette said it was clear Ora was bereaved, but she could not take care of William at home and had not made arrangements to have him placed in a better nursing home.

The in-home care was not working, he said, because “she just fired everybody. She would not let anybody in to take care of her husband.”

He requested that an attorney who worked with Ora on some matters, but had refused to represent her in the guardianship case, write a letter about his opinion of the guardianship situation.

“She was getting to a point where she could not properly take care of herself and therefore there was no way she could take care of Willie,” wrote John Janson, a South Hill-based attorney, in the letter to Majette. “Ora was quite stubborn however, and the reality of the situation did not agree with what she thought she could do.”

According to the letter, Ora had incorrectly said he was her lawyer in the case and that she had made arrangements for William at a different nursing home.

Janson said the home aides were not always consistent and he believed William couldn’t continue to live at home. He thought Majette and Cannon did great work on the Lomax case.

“I don’t know how they do it or why they do it, because it’s just thankless, difficult, emotional work,” he said in an interview. “I couldn’t imagine dealing with that every day. It takes a Mother Teresa-type that has a calling to do that work.”

Williams, the Newport News elder law attorney, filed a petition with the court to modify William’s guardianship order and restore Ora’s rights to oversee her husband’s care. The petition outlined how Ora had not been represented by an attorney in the guardianship proceedings, how she’d been cut out of her husband’s care, how William had suffered head injuries and bedsores in his time under Majette’s guardianship, and how Ora had hired a licensed social worker to prepare a suitable plan for at-home care.

Majette said he didn’t see any “obvious signs” that William had fallen during his two visits with him in the seven weeks William was under his guardianship. He also did not recall whether there had been any record of William having bedsores. William was sent to Parham Doctors’ Hospital for a day in early December but was discharged the same day, according to the firm.

Williams argued that the same facts that VCU Health said made Ora an unfit caretaker — taking William to the hospital when he needed emergency care — showed she was a diligent caretaker. She wrote that it was not in William’s best interests to have Ora cut out of the decision to put him on hospice, which Majette had informed Williams he had done.

“Arguably, no individual would have more insight into his desires ... than ... Ora Mae Lomax, based upon her emotionally intimate relationship with him which spans in excess of their 62 years of marriage,” Williams wrote.

Williams asked the court to reduce Majette’s “current unilateral power” to place William on hospice because it was decided in a “paternalistic manner” and Ora was not given the opportunity to say what she believed William would want.

But it was too late. William died the same day the petition was filed.

***

Hospitals have a strong financial incentive to initiate guardianship proceedings, according to a 2018 report to the Virginia General Assembly by the Department for Aging and Rehabilitative Services on the state Public Guardian and Conservator Program.

“Hospitals are trying to get folks under guardianship to get people discharged if they don’t have a close family member because they want to get them out,” said David Hutt, managing attorney for community integration at the National Disability Rights Network, a group that advocates for people with disabilities.

Majette said the research he is aware of says that “it’s not a good use of resources and it’s not a safe place for the person to be,” to keep someone in a hospital.

The Centers for Medicare and Medicaid Services reimburses acute care hospitals not on the individual care provided to a patient, but instead using a formula that determines how much the hospital will be paid by classifying the patients into groups using a number of factors, including diagnosis, treatment and age of the patient.

“The hospital has an incentive to get the patient out as fast as possible,” said Melony Goodhand, a health care management consultant and former CFO of Chicago-based Presence Health hospital system, now called AMITA Health. “It’s a set amount based on the diagnosis. ... The hospital wants a short length of stay. It’s the same payment whether it’s two days or 15 days.”

VCU Health System officials said the hospital losing money is never a consideration when they pursue guardianship proceedings.

“It’s such a small population that it just really doesn’t have an impact on our financials in any regard,” said Lepley, the VCU spokeswoman.

The care coordinators at VCU, who work on discharge planning, have target lengths of stay for each patient, according to Ryan Raisig, associate vice president for coordinated care and post acute services for VCU Health System, but their performance evaluations do not track how often they fail to meet the targets.

The state and federal governments paid VCU Health System $108.7 million in fiscal year 2019 to cover uncompensated indigent care that the hospital provides. In fiscal year 2020, the public funding has dropped to $37 million, a reduction that factors in the anticipated impact of the additional Medicaid payments the hospital will receive as a result of the state’s decision to expand Medicaid eligibility.

Still, if a person is uninsured or on Medicare or Medicaid, the hospital stands to lose thousands of dollars the longer the person stays in the hospital.

Some guardianship petitions filed by the hospital include the person’s growing debt as one of the reasons to expedite guardianship and discharge, including one case where Richard Richardson, a 38-year-old quadriplegic man, owed the hospital $86,179. The petition said the patient’s debt to the hospital was growing at a rate of $3,314 every day.

The hospital pays Thompson-McMullan about $4,000 per case to file for guardianship, Lepley said.

The petition asked that if the court did not find Richardson to be in need of a guardian, it instead permit the hospital to immediately discharge him without liability “to any public street, way or location off the premises.”

***

Ora Lomax stared at her knees and slumped in her wheelchair as a friend pushed her into the chapel at March Funeral Home on Jan. 10, 2019.

A couple dozen mourners filed in and scattered around the pews of the octagonal chapel as the soloist sang “What A Friend We Have in Jesus.”

At the front of the room, William Lomax’s remains lay in a casket draped in the American flag, a recognition of his service in the Army.

Friends stood up and read verses from William’s well-worn Bible.

They spoke of how they remembered William: a skilled barber and caring person, a veteran dedicated to serving his country, an active community leader.

But most of all, a loving husband.

“We will never forget his love for his wife and the example they set,” said the Rev. Robert Jones.

As the soloist led the congregation in singing “Amazing Grace,” Ora’s sobs rose above the voices, her hand reaching toward heaven.

She didn’t want to go on without her Lomax.

Less than four months later, friends would gather in the same chapel, this time for Ora.

They’d then make the same drive to the Virginia Veterans Cemetery in Amelia County where, after seven months of sleeping apart, Ora and William would finally rest together.