Violation of Elderly’s Civil Rights Report Submitted to PA Attorney General (Part 5B)

Civil Rights Report: Part 5B

Introduction

This two-part report of elderly abuse in Perry County, Pa has caught the attention of two national groups that defend the rights of elderly. We are working in co-operation with Kasem Cares Foundation  and CEAR Justice  (Center For Estate Administration Reform). Both of these organization believe this case involving Perry County has national implications because the tactics used against the elder abuse can be applied in many states. These tactics could force Pennsylvania to comply with both state and federal law. We have the full backing and support of these organizations.

To fully understand what happened in Perry County, go to: Part 1

SIGN THE PETITION TO PROTECT THE ELDERLY

We are asking you to sign our petition to Attorney General Shapiro to have the law enforced and restore the rights of the elderly in Perry County, Pa. After reading this report, it is important you sign the petition to the PA Attorney General to enforce the law and provide the elderly with a civil rights suit. You can go to: Sign the Petition.

Contacting Perry County Commissioners

After reading this report and you want to show your dissatisfaction and express your opinion the Perry County Commissioners failed to protect the civil rights of the elderly, you may write to: Perry County Commissioners, PO Box 37, New Bloomfield, PA 17068;  Call: 717 582-5110; Fax (717) 582-5162

If anyone named in this report believes anything is incorrect, he/she is free to contact me, and if corrections are needed I will address them. John Holman: [email protected]

Investigation into the Abuse of the Rights of Elderly: Perry County, PA (Part 2 Civil)

By John R. Holman,

Findings of Investigation

When made aware of violations of a resident’s rights at Kinkora Pythian Home, Perry County Commissioner Brenda Benner failed to report it.

The Perry County Commissions are not properly overseeing the Perry County Area Agency on Aging (AAA) to insure that it is operating in accordance with both state and federal requirements.

Perry County and AAA Solicitor William Bunt was made aware through reports and public hearings that AAA was not following the law regarding investigations, and he failed to take action. As of January 2018, he still failed to take action.

The Perry County Commissioners allowed the AAA operate without policies and procedures as required by law.

When the Perry County AAA was made aware of the abuse of residence rights, it failed to take the complaint and investigate it in accordance with both state and federal requirements.

There is enough evidence for the AAA to investigate residents’ rights violations at Kinkora Pythian Home.

Each county in the State was checked regarding AAA having written policies and procedures and only one did.

Various State officials were made aware of the State not being in compliance with both federal and State law regarding the elderly and no action was taken.

Legal Finding By Perry County District Attorney

Perry County District Attorney Charles Chenot reviewed the report and determined that no crime was committed. He gave an oral opinion that based on the evidence the residents of Kinkora Nursing Home had grounds for a civil lawsuit for violation of their rights.

This finding was reinforced on October 19, 2015, when he gave testimony before the Perry County Commissioners’ meeting. This testimony was recorded.

Introduction

This investigation started when the Rights of the elderly at Kinkora Nursing Home were violated by the staff and administration. The elderly were unable to have visitors of their choice and hold religious meetings. The violation of the elderly’s right were recorded and even put down in writing by a law firm. These violations were brought to the attention of Perry County officials who failed to take action. The problem was brought to the attention of all State officials who also failed to take action.

The investigation also found that Pennsylvania and Perry County officials violated the Federal law regarding the elderly and were made aware of this both in writing and public meetings. Although the were aware of the violation, these officials failed to act and protect the rights of the elderly.

The Incident Which Started the Investigation

Kinkora Nursing Home

In 2012 I was called to minister at Kinkora nursing home. Our meetings were held on Sunday mornings and were voluntarily attended by about thirty residents. All went well for two years until the weekend nurse resigned and nurse Susan Jones became weekend supervisor.

After a Sunday meeting in April 2014, Jones stopped me as I was leaving. She advised me that no more speaking about pro-life issues would be tolerated. I asked Jones,“ by what authority she determined what the residents heard and limit my freedom of speech”.

Jones then proclaimed herself to be an “Advocate for the Elderly” and no more pro-life issues would be permitted to be spoken about at the meetings. Jones told me that if I refused to obey her, she would speak to Kinkora Nursing Home administrator, Mitch Himmelberger and the meetings would be stopped. I asked Jones if she would return to the meeting room and discuss her decision with the residents that attended the meetings.

The next week my wife received a call from Mitch Himmelberger thanking me for my time of ministry at the home and to inform me the Sunday meetings were canceled.

I had made many friends at the home, who by this time were calling me Pastor. I even preached one my friend’s funeral. I returned to Kinkora the following Sunday to visit my friends. While visiting the first of my friends I was asked we did not have a church meeting that week. I explained that Himmelberger had canceled the meetings. The resident said, “Kinkora were not going to do this wanted me to continue to preach at the meetings and wanted to speak to Himmelberger”.

Jones interrupted the visit and asked me to leave. I asked why I had to leave and she refused to give a reason and came back a few minutes later and interrupted the visit again and telling me I had a phone call. My friend told Jones not to interrupt our visit and wanted me to stay.

The phone call was from Mitch Himmelberger. Himmelberger thanked me for being a volunteer and told me the meetings were ended. I told him we were not having a meeting. I told him I was visiting my friends. He told me I was no longer permitted on the premises, and I would be treated as a trespasser if I returned. He told me he decided who visited the residents and he would talk to the residents that attended the service and their families and no more visits would be permitted.

During the conversation, I told him my friend wanted to talk to him to request that I be able to continue visiting. He refused to speak with my friend and ordered me to leave. I told him I would leave after saying good-bye to my friend.

While I was saying good-bye Jones interrupted my friend, and I again she screamed for someone to get her a phone book. I believed she was going to call the police. My friend strongly objected to Jones outrageous behavior and became very agitated and once again protested to Jones about her bad behavior and Himmelberger’s refusal to listen to a complaint. I told my friend I would get this problem resolved and come back to visit. I never saw my friend again.

Kinkora staff violated almost every state and federal law regarding residents rights.  I have never met Kinkora Administrator Mitch Himmelberger in person. Himmelberger, nor his law firm, nor anyone working for Kinkora ever gave me a legitimate cause or reason why I am barred from visiting my friends.

Violations by Himmelberger and Jones: Taken directly from Kinkora literature. Kinkora’s own rules and state and federal law sited below.

1. and 2. are two of the Kinkora resident’s rights which must comply with state and federal law: 1. You have the right and freedom to exercise your rights as a resident of this facility and as a citizen of the United States without fear of discrimination, restraint, interference, coercion or reprisal. 2. You have the right to receive or deny visitors.

Pennsylvania State Code: Title 28 Health and Safety, Chapter 201. Long-Term Care Nursing Facilities

(i) The resident shall be encouraged and assisted throughout the period of stay to exercise rights as a resident and as a citizen and may voice grievances and recommend changes in policies and services to the facility staff or to outside representatives of the resident’s choice.

Code of Federal Regulations: 42 CFR 483.10 – Resident rights.

(4) The resident has a right to receive visitors of his or her choosing at the time of his or her choosing, subject to the resident’s right to deny visitation when applicable, and in a manner that does not impose on the rights of another resident.
(b) Exercise of rights. The resident has the right to exercise his or her rights as a resident of the facility and as a citizen or resident of the United States.
(1) The facility must ensure that the resident can exercise his or her rights without interference, coercion, discrimination, or reprisal from the facility
(2) The resident has the right to be free of interference, coercion, discrimination, and reprisal from the facility in exercising his or her rights and to be supported by the facility in the exercise of his or her rights as required under this subpart.

Letters From Kinkora’s Law Firm: Violating the Rights of the Elderly

I received two letters from Capozzi Adler, Kinkora’s law firm. These letters placed restrictions on me visiting the residents at Kinkora. According to law, Kinkora has no right to set limitations on the rights of residents without legal cause. These are written proof of the violation of the residents’ federal and states rights and thus condemn those who abuse these rights!

The first letter dated September 18, 2014.

An analysis of this letter follows

From the letter:

“Our firm represents Kinkora Pythian Home in Duncannon and its Administrator, Mitch Himmelberger. On behalf of our clients we are writing to confirm their prior instructions that you both are not to enter the grounds of Kinkora Pythian Home unless you have been invited by a resident of the Home or the resident’s legal representative to visit that resident at the Home or have been invited by the Administrator. Violations of these instructions will be reported to the local police for action”

Response:

I believe that Kinkora has no legal right to require me to obtain written permission from my friends to visit them, nor does Kinkora Administrator Himmelberger have the authority to grant me permission to visit them. The elderly are residents and not prisoners. This is a violation of my rights and the rights of the residents. Even though Kinkora had no right to require me to obtain permission to visit my friends, I followed the instructions of the letter and obtained written requests for visits from my friends at Kinkora.

The Second letter dated January 16, 2015

An analysis of this letter from Attorney Glenn A. Parno follows:

From the letter:

“ … By letter dated September 18, 2014, you were instructed not to enter the grounds of Kinkora Pythian Home unless first invited by a resident of the Home, a resident’s legal representative or the Administrator. On January 1, 2015, you knowingly violated these instructions by appearing at the Kinkora Pythian Home under the false pretense that you had been invited by several residents.

In fact, you had not received consent to visit the Home by any competent resident. Furthermore, it appears that you improperly obtained written consent to visit the Home from several incompetent residents.”

Response:

A search of both Perry and Cumberland County court records found that only one resident that I visited was declared by the court as “Incapacitated”. I know of no legal term of “incompetent”. Attorney Parno is declaring all these residents “incompetent”, and therefore unable to choose who their quests are and exercise their religious freedom. I know of no law that allows Attorney Parno and this law firm to strip the residents of Kinkora Pythian Home of their rights like this. This is a serious violation of both federal and state law, and they put it in writing!

From the letter:

“When confronted by a Penn Township police officer, you repeatedly disregarded the officer’s instructions to leave the premises, thereby disrupting the operations of the facility and causing great alarm among the residents and staff.”

Response:

I was visiting residents with their written permission, which I have a lawful right to do. Nurse Suzanne Jones, RN, made a disturbance in the hallway as we were walking to the room of my friend which upset many of the residents. Nurse Jones or Administrator Himmelberger then called the police, who confronted me as I walked out from my friend’s room. I spoke with the officer about the residents, rights, but he said that this did not matter, and on instructions from Kinkora he would arrest me if I did not immediately leave.

From the letter:

Parno’s letter continued in bold and underlined:

“Accordingly, you are hereby notified that you are strictly prohibited from entering the Kinkora Pythian Home property under any circumstances unless you first requested and obtained written approval of the Administrator.”

Response:

On January 1, 2015, I visited my friends and took the signed written requests with me. Nurse Suzanne Jones confronted me, and I provided her with copies of the written requests for visiting. She ignored the requests and actually came into the room and attempted to interfere with my visits.  It appears she called the Penn Township police to have me removed from Kinkora. A police officer arrived and told me I had no right to be in Kinkora, and if I did not leave he would arrest me. Based on his threat of arrest, I left Kinkora. Attorney Parno closed the letter by threatening me with arrest under 18 P.S. Section 3503 (Defiant Trespass) a misdemeanor, if I entered the Kinkora property. (Details of this incident are found under Part 1 (Criminal Investigation)

After Attorney Parno declared the residents incompetent, he then states that only Administrator Himmelberger, through written permission, can grant the right to visit the residents. This is total control of the elderly by Himmelberger, who now it appears is declared the resident’s guardian! By this letter Himmelberger seems to be acting more like a prison warden then nursing home administrator! The problem with this, the residents already declared both orally and in writing that they want me to visit, and both Attorney Parno and Himmelberger are overriding their rights! This is a serious violation of the residents’ rights, and they put it in writing!

Although the letter states that I need Himmelberger’s written request is illegal, I complied with this requirement. Himmelberger was hand delivered a letter dated February 19, 2015, with my request for his written permission for me to visit. Himmelberger failed to respond to my request. A copy of this letter follows:

Confessions of Offenses Against the Elderly

I made posts on FaceBook about what was happening at Kinkora. Several employees responded or people with knowledge of what happened. They all said I was removed from Kinkora because of my religious beliefs and preaching. They exaggerated what I was preaching. I had an excellent relationship with about 30 residents of Kinkora and not one ever complained about me. No one from Kinkora ever reported a complaint from a resident, but it appears it was the staff, who especially took offense when I mentioned pro life issues. I think speaking about babies in the womb was the issue that caused my removal.

The following are a few of the FaceBook posts that show the issue was both my and residents’ religious beliefs:

Facebook post by Linda Toland, Kinkora Employee

October 14, 2015 (This is an excerpt and the full post is available)

Linda Toland: Mr. Holman

“I work at Kinkora and I remember your Sunday Sermons to the residents and a lot of us there agreed that what you preached was very disturbing……why would you preach about ‘burning in hell’ and homosexuals to nursing home residents??? And I have been reading through your e-mail to me…thank you for sending it by the way…..but the 3 residents I have read about so far are incompetent and would sign any dang thing you gave them. I am around 2 of them everyday and I can see it, One has since passed away, she spent a lot of her time ‘in the past’ …..hardly anything she talked about was present time while she was there…..so you see I don’t think you have a leg to stand on so just get over it and move on. You and Joy need to get a life and just stay away from any place where you can’t and don’t serve a good purpose in a residents life.”

My response: Toland used hot button words like “burning in hell” and “homosexuality” to attack me. I never spoke about homosexuality and my goal was to exalt the Lord Jesus and prepare the elderly to be with him. She knows religion was the issue and notice how she attacks the mental state of elderly. She appears to be someone who would eagerly go along with the violation of their rights and she worked at Kinkora!

Post by Ashley Hoffman Stahl, former Kinkora employee

September 2, 2015

Wow, I left Kinkora over a year ago and you weren’t allowed in then and you are still trying?!

Ashley Hoffman Stahl Seriously

John Holman, my life doesn’t revolve around facebook, so if you could give me time to answer your questions before you throw more at me, that would be great. It’s absolutely none of your concern what has been said between Mitch and I.

Ashley Hoffman Stahl

The administration wanted you out because of what you preached, which they so clearly explained to you on numerous occasions.

My response: It seems the employees knew why Himmelberger wanted me out, but no one ever told me. It was over the religious beliefs of both the residents and me because the residents agreed with me.

Interaction with Perry County Officials

June 9, 2014:

Debbie Willi,  Supervisor,  Perry County Area Agency for Aging (AAA)

I called Willi who refused to take my complaint. She referred me to State Representative Mark Keller’s office. By refusing my complaint, Willi violated state and federal law which I cite at the end of this posting

July 15, 2014:

State Representative Mark Keller

Keller represents the residents that live at Kinkora Pythian Nursing home. When I called Keller’s office and explained the situation they were angry that the (AAA) was not doing their job again.  This shows that Keller was aware there was a problem and (AAA) was not functioning according to the law. Keller’s office was unable to help.

January 26, 2015:

Commissioner Benner

Subject: Meeting with Perry County commissioners

Present: Commissioners Brenda Benner and Paul L. Rudy Jr.

John R. Holman and Chaplain John P. McTernan

We met with the Commissioner regarding the rights of residents at Kinkora Pythian Home. I presented the Commissioners with a letter of explanation of what transpired since April 2014. I played the recording of Nurse Suzanne Jones RN, interfering with the meeting with Katherine Dunkel on January 1, 2015. (This recording is attached)

I gave Commissioner Benner a release Dunkel signed to use the recording and a request that she signed to have the Office of Aging investigate the abuse of her rights by the Kinkora staff. She said to contact her in one week.

We also spoke with Commissioner Benner about her authority over the Perry County Office of Aging. She did not present a clear understanding of what her authority was. Both Chaplain McTernan and I were very confused by Commissioner Benner’s attempted explanation.

On February 2, 2015, I called Commissioner Benner. She said she contacted the Perry County Area Agency on Aging and they were not beneficial. She said she did not deliver the document from Catherine Dunkel to Area Agency on Aging.  When I questioned her, she said she didn’t have much authority over the Agency. She said she visited a nursing home in Selinsgrove and found that residents are so lonely that most of them would say anything to get a visitor

Meeting With Perry County Office of Aging

Current Location of Perry County AAA

Date: February 2, 2015

Location: 2 West Main St, New Bloomfield, PA

Reporting: Chaplain John P. McTernan

Subject: Violation of residences rights at Kinkora Pythian Home

I meet with Alyson Smith, Ombudsman, who works for the Office of Aging. I explained to Smith about the events taking place at Kinkora, regarding the violation of the rights of Katherine D and others.

I provided Smith with a copy of a letter that Katherine D had signed on January 20, 2015 requesting an investigation of her rights being violated and to meet with whomever she wanted and the protection of her religious rights. I told Smith that a conversation had been recorded of Katherine D rights being violated by Suzanne Jones RN and that Katherine D had signed a waiver that the recording could be used in public.

Smith said that it was the Office of Aging’s policy not to accept Katherine D request for an investigation because it was not signed in Smith’s presence. She also could not listen to the tape recording because Katherine D would have to approve it in Smith’s presence. She also stated that I had no right to act as the complainant on the behalf of Katherine D.

Smith stated that the Office of Aging’s policy was for her to go to Kinkora and speak with several residences. If they did not bring up any rights violation then that would end the investigation. She said that the residents had to raise the issue. She asked me for Katherine D room number which I did not know. She never asked me for Katherine D name and only asked for her room number.

I presented Smith with the signed request by Katherine D and the recording of Katherine D rights being violated. She pushed them both back to me and said she could not accept them. I challenged her on this, and then she called her supervisor Debbi Willi. Smith explained my complaint to Willi, and according to Smith, Willi agreed with her. Smith refused to accept my documentation of Katherine D rights being violated.

Visitation of Residents at Kinkora Pythian Home (1)

Date: February 23, 2015

Visitors: Chaplain John P. McTernan and Diane Savich

Report By: Chaplain John P. McTernan

John Holman requested that I visit the residents to whom he had ministered. He was prevented by Mitch Himmelberger, administrator, from entering the home, and it had been almost a year since he had visited with them. He had written requests from the residents, but Himmelberger would not honor the requests.

Holman prepared an iPad presentation with his wife Joy for his friends. On it he said hello, explained why he could not visit with them, that their rights could be restored, and they could sign a form requesting an investigation by the Office of Aging. (Exhibit 13)

I went with Savich to Kinkora and met with Mrs L and Mrs W. I played the iPad presentation and Mrs L  immediately recognized the Holmans. She agreed and signed the request for an Office of Aging investigation into the abuse of her rights. Wagner did not sign the request saying that never signed any documents.

I offered them a copy of my book, I Could Take His Punch and a brochure I wrote. They wanted a copy of each, so I left it with them. I asked if they would like me to read the Bible and pray with them and they agreed.

While I was reading the Bible, Nurse Suzanne Jones, RN came into the room without knocking or announcing herself. Nurse Jones entrance startled me as she directly approached me and demanded who I was. I told her that I was a chaplain, and I was reading the Bible to the residents. She asked if I had permission to visit and I responded that I did. She then asked me to leave the room because she wanted to talk privately with Mrs L and Mrs W. I said I wouldn’t leave. Nurse Jones then said she was going to get the administrator.

I then sat back down and continued speaking with the two women. A few minutes’ later four Kinkora staff members burst into the room led by a male, who in an aggressive tone, demanded to know who I was and what was I doing. Nurse Jones was with him and stood by his side while the two other employees stood watching at the entrance to the room. One was a female dressed as a nurse whose name I believe is Mary Mertz LPN. The second was a female dressed in normal attire whose name I believe is Karen Kelly RN.

I stood up and introduced myself and told him was a chaplain ministering to the residents. I went to shake his hand but he refused. I asked his name and he said Mitch Himmelberger, Administrator. He then asked if I had prior permission from the residents to visit. I told him, “Yes”. He refused to accept this answer and then asked Mrs L and Mrs W if they wanted me to visit. They both told him, “Yes”. I showed Himmelberger my identification card as a member of the National Chaplain Association, and he said he was not interested.

Himmelberger would not accept their response, so he continued to ask them questions. I told him that it was not right to continue his questioning and we should go in the hall. We went out into the hall, just outside the doorway. The three other Kinkora employees were all with Himmelberger. He asked what permission I had, and I told him it was written. He questioned me if I had obtained the permission. I told him that John Holman had obtained the permission, but Himmelberger had blocked Holman from visiting, so I was visiting in his place.

Himmelberger said that the written permission was not valid because the residents were incompetent. I told him that a search of court records disclosed that they were not declared incapacitated. He ignored the court findings, and said they were declared incompetent, but he could not discuss this because of HIPAA. I told him that his law firm in a letter to Holman had no problem publicly declaring the residents incompetent. He did not respond to my statement.

I also handed Himmelberger a letter written to him by Holman requesting his permission to visit friends in Kinkora. Himmelberger’s law firm had sent Holman a letter stating that he could not visit Kinkora without Himmelberger’s written permission or he would be arrested. Holman wrote the letter in compliance to the directions of the law firm. I also asked if he ever put in writing or told Holman why he was banded from visiting Kinkora. Himmelberger failed to respond to my question.

Himmelberger was visibly upset talking to me and kept asking me questions. I asked him if I had broken the law by visiting the residents, he said, “No”. I asked him if he was demanding that I leave, and he then walked past me back into the room and for a second time asked Mrs L and Mrs W if they wanted me to leave. Once again they said they wanted me to stay. When Himmelberger came back into the room, Nurse Jones came with him. The other employees stayed at the doorway. I was intimated by Himmelberger and his staff as they seemed desperate to get me to leave Kinkora.

Himmelberger would not accept their second response that they wanted me to stay. He then continued to aggressively question me. For a second time, we moved into the hall just outside the door way. He again said that they were incompetent and had only said “yes” to be kind to me. He refused to accept their written request and said the residents were incompetent. I again told him that no court had declared them incapacitated. He said he was protecting their rights and went back into the room a third time and asked Mrs L and W if they wanted me to stay. They shook their head indicating yes. I could see on the faces of both women that they now were being intimated by Himmelberger and his staff who were also in the room.

Himmelberger would not accept their answer and again he claimed that Mrs L and and W’s written requests were not valid. He completely ignored both of the women’s multiple oral approvals given in his presence and in the presence of his staff.

While we were speaking the hall way, on at least six occasions Himmelberger stated that both women were incompetent. By his agitated and excited state, I believe that the residents could hear Himmelberger declare them incompetent.

I told Himmelberger that there was no need to continue this discussion and I was going to pray with the residents. He and Jones followed me back into their room and stood next to where I was sitting in front of Mrs L and Mrs W. I asked him if he would like to pray with us and he said, “No”, and turned his back and walked out. Jones stood staring at me, and I asked her if she would like to pray with us. She also said “No” and walked away.

I was very upset after this confrontation by Himmelberger and his staff. Both women also looked very troubled, so I decided to have short prayer with them and leave. When I finished, they were very thankful. When I stood up and turned to leave the room the door was open, and I was shocked to see Kelly outside the door spying on my meeting. As I walked out the door, I was stunned to see a nurse standing to my left. She could easily overhear our conversations in the room.

I intended to visit other residents, but with two employees spying on me and the terrible encounter with Himmelberger, I believed it was best to leave and not unsettle other residents with confrontations by Kinkora’s staff.

On the way out, I spoke with Himmelberger and told him I was leaving. Savich was with me. He was still agitated and told me that the written requests obtained by Holman were not valid. He said that Holman used coercion to obtain them because the residents were incompetent. I challenged this statement and Himmelberger once again said the residents were incompetent and Holman used coercion; therefore the written requests were not valid.

I again mentioned that there were no court records declaring them incapacitated. He ignored what I said and then began to explain that doctors were involved in declaring them incompetent. He said it was his responsibility to watch over these residents to make sure that they did not sign any document or agree to record a conversation because they were incompetent. He said he was protecting their rights because they were incompetent.

I told Himmelberger that he was not a warden and they were not inmates but residents. Again, he said he was protecting the resident’s rights because they were incompetent.

I was going to contact other residents to pray and to find out if they wanted to sign the form requesting an Ombudsman’s investigation. In addition, John Holman was in contact with the Alliance Defending Freedom law firm (ADF) regarding the violation of residents’ rights at Kinkora. ADF responded by saying if there was a signed request by a resident, ADF was interested in defending the resident or residents.

Part of my mission at Kinkora was to talk with the residents and explain their legal representation by ADF to defend them. Holman provided me with documents for 17 residents to sign. Mrs L had just signed the request for an Ombudsman investigation, and I was starting to talk with Mrs L and Mrs W regarding their legal rights and to sign this request for representation, when Himmelberger and his staff barged into the room. This prevented me from continuing with them about their legal rights and to sign the document.

Because of the hostile environment created by Himmelberger in Mrs L and Mrs W’s room, and that I was being followed and monitored by Kinkora staff, I decided to leave. It was clear that they were intimidated by the actions of Himmelberger and his staff in their room. I did not want additional confrontations in front of them or other residents. In addition, I was very distressed by Himmelberger and his staff confrontation with me; therefore, I believed it was best not to meet with other residents for the purpose of explaining their legal rights, including being represented by ADF.

By Himmelberger declaring the residents incompetent and trying to deny them their rights, he appears to be in violation of 28 PA Code § 201.29: Resident Rights, as only a court can declare a person incapacitated.

Visitation of Residents at Kinkora Pythian Home (2)

Date: February 23, 2015

Location: 25 Cove Road, Duncannon, PA

Visitors: Chaplain John P. McTernan and Diane Savich

Report of: Diane Savich by Chaplain John P. McTernan

Diane Savich read Chaplain McTernan’s report of February 23, 2015, about the incident at Kinkora Pythian Home. She agreed that the report was an accurate representation of the events.

She added when Mitch Himmelberger, Administrator, and Chaplain McTernan were talking in the doorway, she could hear most all of the conversation, including Himmelberger declaring the ladies incompetent. She was sitting very close to Mrs L Mrs W and believes they also could hear Himmelberger declare them incompetent. Mrs L was concerned and asked what was the problem? She wanted us to stay and for John Holman and his wife Joy to come back for visits.

Both ladies seemed to become intimidated by the four Kinkora staff members being present in their room, and Himmelberger continually asking them if they wanted us to stay.

When we were leaving Kinkora, Himmelberger stated that John Holman used coercion to obtain written requests from the residents, and the residents were incompetent. Since I obtained the requests from the residents for the Holmans to return, there was no coercion. I simply asked if the residents would like for the Holmans to return and they signed the request form.

Report of Investigation

Date: March 9, 2015

Location Perry County Commissioners Meeting

Subject: Meeting with Perry County commissioners (This meeting was recorded)

Present: Perry County Commissioners, Solicitor Bunt, John R. Holman, and Chaplain John P. McTernan

John McTernan delivered and read excerpts from this report to the Commissioners. Copies of this report were given to the three Commissioners and Solicitor Bunt.

Report of Investigation

John Holman and Joy Holman attended the Perry County Commissioners meeting to follow up on the report of investigation that had been given them at the previous meeting.  Solicitor Bunt was unable to comment on the report reflecting the state and federal law, which it does.

Date: March 16, 2015

Location Perry County Commissioners Meeting

Subject: Meeting with Perry County commissioners

Present: Perry County Commissioners, Solicitor Bunt

This meeting was recorded by John Holman

The individuals recorded follows:

JH: John Holman

WB: William Bunt, Perry County Solicitor

BB: Brenda Benner, Perry County Commissioner

(BB) Ok Mr. Holman

(JH) I am here to follow up on a report that ah McTernan and I submitted at your previous meeting showing that Perry county and your agency are not being compliant with state and federal law.

(JH) And I had a conversation on 02/15 with Perry County Office of Aging Director Sheriff and she said that she could not produce a copy of policy and procedure manual for conducting a complaint investigation or a list of current ombudsmen and suggested a conference call with Solicitor Bunt.

(JH) My question. Is there a copy of policy and procedures and list of current ombudsmen available for the public?

(WB) The answer is e ah I, I personally cannot tell you the answer to that question.

(JH) Ok

(WB) You can request that from Mrs. Sheriff.

(JH)  Ok

(JH) Ah what action was taken by the solicitor and county commissioners on the report that John McTernan and I submitted to you on 2/9/15?

(WB) Well I’m going to respond to that eah I met with Mrs. Sheriff and discussed the matter with her. That is the only public response I make.

(JH)  Did the report reflect the law regarding the AAA?

(WB)  You’ve already received my response.  I have no further responses to any more questions.

(JH) Ok

(JH)  Was the report handed to the AAA as a complaint?

(WB)  It was provided to her, yes, absolutely.

(JH)  It was submitted to the AAA?

(B)  Thank you are there any other comments?

Report of Investigation (District Attorney)

Date: March 19, 2015

Former DA Chenot

John McTernan delivered a copy of the Kinkora Nursing Home report of the investigation to District Attorney’s Chenot’s Office. This was the same copy delivered to the Perry County Area Agency on Aging.

District Attorney Chenot called me and said that he reviewed the report and determined that there was no crime committed by Mitch Himmelberger or his attorney, Glenn A Parno for declaring the residents of Kinkora Nursing Home incompetent when they were not.

I then discussed with DA Chenot about the evidence in the report showing that Himmelberger and Parno had interfered with the rights of the residents. This evidence included a letter dated January 16, 2015, from Parno declaring the residents incompetent and the fact that a record check at the Perry County Court disclosed that the residents were not legally declared “incompetent” with one exception. We also discussed my encounter with Himmelberger in which he declared the residents incompetent and he was their guardian.

I asked DA Chenot if there was no crime committed but the residents were illegally declared “incompetent” what happens now. DA Chenot responded by saying based on the evidence that the residents of Kinkora Nursing Home had grounds for a civil lawsuit for violation of their rights.

The District Attorney decision was based upon the residents being illegally declared incompetent. We also spoke about that the fact only a court can declare a resident incapacitated. The actual legal term is incapacitated and not incompetent.

This finding was reinforced on October 19, 2015, when he gave testimony before the Perry County Commissioners’ meeting. This testimony was video recorded.

Report of Investigation

March 18, 2015

John Holman received a letter from the Perry County Solicitor. The solicitor states that based upon a letter received from the Perry County Area Agency on Aging that it is Perry County’s opinion the AAA investigation fully followed the law. The letter from the Area Agency on Aging does not show that the Agency followed state and federal law.

This letter is attached.

At a Perry County Commissioner’s Meeting, John McTernan and I confronted the Commissioners and Solicitor Bunt about the Perry County AAA investigation not being conducted according to the law. This meeting was video recorded.

 Report of Interview (Director AAA)

Date: April 7, 2015

Location: Office of Perry County Solicitor William Bunt

Karen Sheriff, Director, Perry County Area Agency on Aging.

John Holman Chaplain John McTernan

Subject: Letter dated March 17, 2015 from Director Sheriff regarding report of investigation, and letter dated March 18, 2015 from Solicitor Bunt.

Chaplain McTernan asked questions regarding the investigation that Director Sheriff’s office conducted into allegations against Kinkora Pythian Home. He asked Director Sheriff if the investigation was conducted according to the law. Solicitor Bunt answered and said the investigation followed the law which he listed in the letter dated March 17, 2015.

Chaplain McTernan stated to Director Sheriff that he was the complainant and was never interviewed and was this according to your written policy and procedures? Director Sheriff stated it was policy as the agency actions were resident driven.

Chaplain McTernan stated that there were four witnesses to the elderly’s rights being violated, and they were never interviewed. Director Sheriff said this was according to their normal policy.

Chaplain McTernan had several other questions, but Solicitor Bunt said, at this time, there would be no more questions.

John Holman asked Director Sheriff if she gave the complete report to Protective Services. She refused to answer.

Holman provided Director Sheriff with a Freedom of Information request for the Area Agency on Aging’s policy and procedures.

 Analysis of Meeting

John McTernan and I had scheduled a meeting with Director Sheriff, however she refused to meet with us without Solicitor Bunt. Director Sheriff refused to answer any questions. This gives the appearance that she is not competent for her position. She did not inspire confidence that she is capable of doing her job. Solicitor Bunt refused to answer questions regarding whether the Area Agency had followed all the law for an investigation. He gave the appearance that he is not competent on the law. This was not a real investigation of our complaint, and we were not satisfied with the competence of either Solicitor Bunt or Director Sheriff.

Perry County responded to the Freedom of Information request in a letter dated April 7, 2015 which stated the Perry County Area Agency has no policy and procedures for investigations.

The Pennsylvania Department of Aging responded to a Freedom of Information request in an e-mail dated 05/08/2015 stating they use the 98-10-01 state mandate.

The Perry County response to the Right-to know request follows:

On January 24, 2018, an additional request was sent to Perry County AAA for a copy of their written policies and procedures. The response was there are no policies and procedures. The response follows:

 Report of Investigation

John P. McTernan

October 19, 2015

TO: Perry County Commissioners: Brenda K. Benner, Stephen C. Naylor and Paul L. Rudy, Jr.

SUBJECT: Complaint Against Perry County Area Agency on Aging (AAA) for not following the law when conducting investigations and for lying to the public.

This report was submitted as a follow up to an oral report that I made on September 28, 2015, at the Commissioners’ meeting. (This meeting was video recorded.)

On April 7, 2015, I met with Director Karen Sheriff and Perry County Solicitor William Bunt; with me was John Holman. The purpose of this meeting was to discuss a cover letter dated March 18, 2015 from Solicitor Bunt to both John Holman and myself. Attached to this letter was another letter dated March 17, 2015 from Director Sheriff to the Commissioners. This second letter was a report of an investigation conducted by the AAA based on complaints by Holman and myself. Bunt’s letter stated that the AAA investigation, “fully complied with all applicable Federal and State laws and regulations.” (These letters are attached )

During the meeting, I asked Director Sheriff questions about the investigation reported in her March 17, 2015 letter. Given that I was the Complainant, I asked why I never was interviewed. She stated that this was their policy, as the Perry County AAA actions were resident-driven. She said that she followed written Perry AAA policies and procedures. I asked her several other questions about basic investigation steps which were not followed, and Director Sheriff responded by again saying that the investigation followed normal Perry County AAA policies and procedures.

At the conclusion of the meeting Director Sheriff was provided with a Right-To-Know-Response Form requesting a copy of the Perry County AAA policies and procedures used for investigating complaints. The Perry County Chief Clerk, Kathy Burkholder responded by stating:

“The Perry County Office of Aging does not have its own policy and procedures manual to investigate complaints concerning residents living at long term care homes. In investigating complaints concerning residents living at long term care homes, the Perry County Area Agency on Aging follows statutory law and regulations promulgated by the Commonwealth of Pennsylvania.”

The fact that AAA has no policies and procedures shows that Director Sherriff lied during the interview. It is obvious that basic investigative steps were not followed, and to cover this up, Director Sheriff lied by claiming that AAA had written policies and procedures. I reviewed both the state and federal law and in no place did either say that the AAA investigations were resident-driven. This is another lie.

A review of the Right-To-Know-Response Form also disclosed apparent collusion in an attempt to mitigate that Perry County AAA’s non-compliance with the law. In Clerk Burkholder’s response, she stated that AAA did not have its own policies and procedures for conducting an investigation. (This is a violation of the law.) Then she added a sentence that had no relation to the original request:

“In investigating complaints concerning residents living at long term care homes, the Perry County Area Agency on Aging follows statutory law and regulations promulgated by the Commonwealth of Pennsylvania.”

The fact that Perry County AAA did not have policies and procedures is prima facie evidence that the law was broken. This is a direct contradiction of the second sentence which states that AAA, “follows statutory law and regulations promulgated by the Commonwealth of Pennsylvania.” It appears that someone coached Clerk Burkholder to add this, in an attempt to mitigate the damage. Otherwise why would this be added? It appears to be collusion to cover up a lie! The only person who would do this is Director Sheriff and/or Perry County Solicitor Bunt. This shows the length to which someone went, in an attempt to cover up a lie.

As the Director of AAA, Sheriff is in violation of federal law for operating the agency without policies and procedures. The Federal law states: 45 CFR-Part 1327

• 1327.11 Establishment of the Office of the State Long-Term Care Ombudsman: (e) Policies and Procedures

“Where local Ombudsman entities are designated within area agencies on aging or other entities, the Ombudsman and/or appropriate agency shall develop such policies and procedures in consultation with the agencies hosting local Ombudsman entities and with representatives of the Office. The policies and procedures must address the matters within this subsection.”

As the Director of AAA, Sheriff must follow all federal, state and local laws, as this is part of the PA Department of Aging requirements found in: ABD Number 91-01-05. She also must sustain public confidence. ABD 91-01-05 requires that the AAA Director sign a “Statement of Assurance on Corporate Eldercare” that the AAA is complying with all the laws.

A section of ABD 91-01-05 follows:

“State and Area Agencies on Aging, in the final analysis, have their foundation in the Older Americans Act. As such, they are public purpose agencies obliged to use publicly accountable means to secure public interest ends. In the case of Area Agencies on Aging, this means at least two categories of obligation. The first involves faithfully conforming to all of the requirements of the Older Americans Act, as well as other Federal, State and local laws which may govern public funds.

Beyond that, however, Area Agencies on Aging are obliged to become and remain credible vehicles of public policy. That means that they have to sustain public confidence in their objectivity and their commitment to the board interests of the entire older population that they were created to serve, with a particular emphasis upon serving low-income minority older persons.

For this reason, Area Agencies on Aging should avoid any activity which may have even the appearance of subordinating their public purpose mission to either organizational self-interest or to the private interests of particular individuals or organizations.”

The manner in which the AAA investigation of my complaint was conducted, together with the lies I was told, led me to believe that the AAA does not have the interests of the elderly residents in mind, but seems to be protecting the nursing home. The AAA investigation ignored four eye witnesses to the abuse, a recording of the abuse and written documentation whereby the lawyer for the nursing home purported to strip the elderly of their rights, and yet the AAA found no wrong doing! The natural conclusion is that AAA was protecting the nursing home and not concerned with the rights of the elderly.

On February 2, 2015, I first attempted to file a complaint about the abuse of elderly rights with Ombudsman Alyson Smith. I provided her with a tape recording of the abuse along with a transcript. She refused to even listen to the recording. She said that the complaints were resident-driven, so she could not listen to the tape recording. She claimed that it had to be presented to her by the resident! Smith also refused to accept a document of complaint signed by the resident. She stated that this had to signed in her presence. She gave the evidence back to me without looking at it or listening to it.

I asked Smith if this was AAA policy and procedure and she said it was. This seemed very odd, so I pressed her on this. In my presence, she called and spoke with her supervisor Debbi Willi. Smith claimed that Willi agreed that not accepting the recording was part of AAA policies and procedures.

A review of Director Sheriff’s letter dated March 17, 2015, disclosed some irregularities. The first is on page 1, line 20. Sheriff stated that my complaint was about resident’s access to religious meetings being violated. I never said a word about religious meetings. My complaint was about the denial of residents’ requests to have certain visitors. On page 3, last paragraph, Sheriff went into detail about her investigation of the religious aspect. This is all nonsense, and I believe it is a smoke screen, because the issue of religious rights was NEVER made in my complaint. In light of Sheriff and other AAA employees lying, I believe this was an attempt to cover up the real issue of the complaint.

On page 2, first paragraph, Sheriff stated there was a reference to a possible criminal investigation and Perry County AAA does not investigate criminal allegations. The law provides that Sheriff can refer any criminal complaint to the proper law enforcement agency. This she failed to do.

 Attempt to Resolving the Issue

In order to resolve this issue, I attempted to contact Mr. Gerald Deitch, Supreme Chancellor, Knights of Pythias which oversees Kinkora Pythian nursing home. I sent a letter to Mr. Deitch explaining the situation.  He never responded.

July 18, 2014

State Senator Rob Teplitz: I spoke to Teplitz staff members. Nothing was done.

U.S. Senator, Pat Toomey. His staff never replied to my contact.

Representative Lou Barletta: I spoke with a female staff member. She suggested I call Kinkora and speak to one of the residents involved as this was my right and the residents’ rights to receive phone calls.  I called and spoke to one of my friends.  During the conversation my friend requested my wife and I visit.

It appears Kinkora staff was eavesdropping on the call. An employee took the phone from my friend and asked who I was.  She identified herself as LPN Mary Mertz. I asked her to put my friend back on the phone.  I began to speak to my friend again and then Evan Keogh the nursing supervisor took that phone from my friend, and told me that I was not permitted communication with residents. He said my wife and had received a letter from Kinkora’s Attorney regarding contacting the residents and hung up.

We did not receive a letter from Kinkora’s Attorney until 9/20/2014.

Kinkora staff violated the almost every law regarding residents rights.

I received a final telephone call from the staff member stating that the congressman’s office had overreached their authority and could do no more.

Without exception, officials tried to avoid the issue of the residents rights being violated by diverting the issue to my rights.

Helping the elderly

After reading this investigation, I am requesting you sign the petition to Josh Shapiro, Pennsylvania State Attorney General requesting that he conduct an investigation in Perry County for violating the civil rights of the elderly.

To read Part 1 of this report go to: Part One. To start at the beginning, go to: Part 1

The State and Federal law involved with protecting the Rights of the elderly

Code of Federal Regulations (from Older Americans Act)

42 CFR 483.10 – Resident rights.

(4) The resident has a right to receive visitors of his or her choosing at the time of his or her choosing, subject to the resident’s right to deny visitation when applicable, and in a manner that does not impose on the rights of another resident.

(b) Exercise of rights. The resident has the right to exercise his or her rights as a resident of the facility and as a citizen or resident of the United States.

(1) The facility must ensure that the resident can exercise his or her rights without interference, coercion, discrimination, or reprisal from the facility.

(2) The resident has the right to be free of interference, coercion, discrimination, and reprisal from the facility in exercising his or her rights and to be supported by the facility in the exercise of his or her rights as required under this subpart.

(6) The resident has the right to have reasonable access to the use of a telephone, including TTY and TDD services, and a place in the facility where calls can be made without being overheard. This includes the right to retain and use a cellular phone at the resident’s own expense.

(8) The resident has a right to participate in other activities, including social, religious, and community activities that do not interfere with the rights of other residents in the facility.

Older Americans Act of 1965 (As Amended In 2006 (Public Law 109-365)

Section. 712. State long-term Care OMBUDSMAN PROGRAM.

(B) DUTIES.—An individual so designated shall, in accordance with the policies and procedures established by the Office and the State agency—

(i) provide services to protect the health, safety, welfare, and rights of residents;

(ii) ensure that residents in the service area of the entity have regular, timely access to representatives of the program and timely responses to complaints and requests for assistance;

(iii) identify, investigate, and resolve complaints made by or on behalf of residents that relate to action, inaction, or decisions, that may adversely affect the health, safety, welfare, or rights of the residents;

(iv) represent the interests of residents before government agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the residents;

Pennsylvania Law Aging Program Directive ADP#91-01-05

This ADP requires Pennsylvania’s Department of Aging to conform with The OLDER AMERICANS ACT and all other federal law.

Pennsylvania Department of Aging Directive APD #98-10-01 (Perry County AAA violated the law by not taking the original complaint)

1. Complaints

A complaint is a concern made by or on behalf of older individuals who are consumers of long-term care services relating to action, inaction, or decisions of providers or their representatives, of long-term care services, of public agencies, or of health and social service agencies, which may adversely affect the health, safety, welfare, or rights of such consumers including the appointment and activities of a guardian or representative payee. Complainants shall be encouraged to attempt self-resolution prior to intervention by the Ombudsman.

All complaints, including those from anonymous sources, shall be investigated or referred for investigation where the complaint involves areas beyond the scope of the Ombudsman program. However, all activity involved in the complaint process shall cease immediately if the complainant/older individual withdraws the complaint. If the Ombudsman finds that other older individuals may be in jeopardy or may benefit from intervention based on the information obtained, the Ombudsman may proceed as the complainant while maintaining confidentiality of the source.

Pennsylvania Code Title 28 Chapter 201

(i) The resident shall be encouraged and assisted throughout the period of stay to exercise rights as a resident and as a citizen and may voice grievances….

Pennsylvania law declares in that only a court can adjudicate a person incapacitated.

28 PA Code § 201.29: Resident Rights

(l) The resident’s rights devolve to the resident’s responsible person as follows:

Attachment

Letter dated March 18, 2015 from Solicitor Bunt.