During the pandemic, elder law attorneys are making a difference in their communities. Read how two members took action. Andrew Boyer went into action to correct the government’s manipulation of the facts when the Florida Department of Health changed the method of counting COVID-19 infections in residents and staff at long-term care facilities. In Texas, Chris Krupa Downs provided her experience and elder and special needs law expertise to help guide the many attorneys who were providing pro bono basic estate plans for first responders and medical personnel.
An Interview with Andrew R. Boyer, Esq.
Fighting City Hall: A NAELA Member’s Quest for Government Transparency in the Era of COVID-19
By Eric J. Einhart, Esq.
Sometimes being in the right place at the right time just isn’t enough.
Sometimes you need the right person to be willing to put himself in the right place at the right time. Fortunately for Florida residents and NAELA members everywhere, the right person to demand transparency in reporting COVID-19 infection rates from the State of Florida turned out to be NAELA member Andrew R. Boyer, Esq.
After reading reports based on information released by China last February suggesting the possibility that the coronavirus posed a greater risk to the elderly population, Andrew Boyer feared that it was only a matter of time before the virus would spread rapidly throughout the population of residents of assisted living facilities and nursing homes in his home state of Florida.
The Right Place
Boyer, the managing partner of the estate planning and elder law firm of Boyer & Boyer, PA, in Sarasota, Florida, began using daily reports issued by the Florida Department of Health’s website to track the cumulative number of COVID-19 infections in residents and staff at long-term care facilities throughout Florida. Boyer’s research revealed a rising number of residents and staff members contracting the coronavirus. Using the information provided by the state, Boyer created spreadsheets and graphs specifically related to infection rates at long-term care facilities in each county, and the state as a whole, and posted them on his firm’s website.
“On a daily basis, I would get the Florida state report and plug the numbers in for all the counties,” Boyer said. “At first, the numbers were cumulative, so there was an account of the infections in long-term care facilities from the beginning.”
The Right Time
On April 27, 2020, after five weeks of reporting the cumulative infections and the rate of new cases in long-term care facilities throughout Florida on his firm’s website, Boyer noticed that the Florida Department of Health stopped reporting the cumulative infection numbers for long-term care facilities, completely removing that information from its daily reports.
Instead, the Florida Department of Health replaced the reporting of cumulative infections for long-term care facilities with a list of names of nursing facilities and the number of current COVID-19 infections in each facility.
“When I started looking at the state’s numbers and trying to reconcile them with the numbers I had from the state report for the prior month, none of it was adding up,” Boyer said. “It was impossible using that new list to gauge whether or not the outbreak was getting better or worse in long-term care facilities. It’s kind of like if we only published the number of people who are currently sick in a statewide total. It would look bad, but you wouldn’t get a total of how many new infections each day.”
The new reporting also failed to clearly state the method employed to determine when infected residents and staff were deemed recovered and consequently removed from the new list. Boyer believed the action was an attempt to obfuscate the impact on facility residents and staff because the new method being used to calculate infection rates came at the same time that infection rates at long-term care facilities were sharply increasing, and the State was in the process of releasing its plan to reopen the economy.
The Right Person
Although this seemingly minor change may have gone unnoticed by the general public, Boyer’s daily data tracking, coupled with his keen understanding of its importance, placed him in a unique position to raise the issue and to demand that it be rectified.
“I was looking at the right metric at the right time and was studying that one metric,” Boyer said. “So, when the state removed that information, I was kind of the only person who saw it.”
Boyer was outraged by the state’s decision to actively withhold important information regarding an at-risk population during the midst of a deadly global pandemic. He began contacting colleagues and various media outlets to inform them of the government’s lack of transparency. He also posted information on social media to correct the government’s manipulation of the facts and submitted a Freedom of Information Act (FOIA) request to obtain the missing data.
Unfortunately, despite his clear explanation of the issues, many news outlets misreported the issue. They failed to note the problem of removing cumulative infection totals in long-term care facilities and replacing that information with daily current infections. Eventually, Boyer connected with a reporter from Tampa, Florida, who understood the importance of the issue and began to expose it publicly. The reporter was Mahsa Saeidi, who happened to be a licensed attorney and former New York City prosecutor.
“She really got it. She understood what I was talking about and reported the story in early May,” Boyer said.
Despite the media coverage, the Florida Department of Health still failed to publish the information Boyer felt Florida residents, his colleagues, and his clients deserved. So, he followed up with the FOIA request which he had submitted to the Department several weeks prior, to which they had also failed to respond.
Frustrated with the lack of responsiveness and transparency from the state government, Boyer created a Florida not-for-profit corporation called, “Citizens for Transparency Inc.,” and threatened to bring a lawsuit against the state if it did not publish the cumulative COVID-19 infection rates in long-term care facilities. In his correspondence to the Florida Department of Health Records Custodian, Boyer demanded that the government comply with his FOIA request and produce the records that exhibit the current cumulative total of residents and staff at long-term care facilities that have been infected with COVID-19 as well as the records for that data retroactively from the date the state stopped reporting it to the current date. His goal was to get the cumulative data published and to ensure its continuous availability to the public.
“I created a Florida not-for-profit corporation for a couple of reasons, but most importantly because under Florida’s ‘Government in the Sunshine’ laws, we have a particular statute that allows you to sue and collect attorney’s fees if the government doesn’t turn over information that it is supposed to make public,” Boyer said. “I informed the state that if the records are not released within five days, we would have no choice but to seek judicial relief to enforce the law, including costs and attorney’s fees.”
Within 24 hours, Boyer’s demands were met — sort of. Instead of publishing the information in the easy-to-read format utilized in the reports prior to April 27, 2020, the Florida Department of Health buried the information in a separate report that reported infection numbers at the county level.
“So, I think that they [Florida Department of Health] were trying to save face,” Boyer said. “The information didn’t show up for about a month until I sent that letter, and then it started to appear in the county-level report the next day. This makes it more difficult for me to put in my spreadsheet, but the fact is that it was put back in.”
A few days later, the Department also supplied Boyer with the records that he had requested. Boyer said that those records included a spreadsheet for each day and included not only the cumulative infection totals for the state and counties, but also the cumulative and new infection rates for each facility, as well as other data that the state does not include in its regular daily reports. Boyer believes this detailed data if regularly reported would allow us to better understand and to prevent facility outbreaks and would allow residents and staff to better gauge their individual risk.
Even after his successful efforts to ensure government transparency regarding the COVID-19 global pandemic, Boyer continues to provide information to his clients, colleagues, and the public, by posting on his firm’s website, information on COVID-19 infection rates in long-term care facilities in Florida. He also continues to be a resource for journalists and for his colleagues in the field of elder law.
In addition to discovering how helpful accurate information can be to our community, to medical professionals, and to nursing home administrators, this experience has taught Boyer that when professional journalists and attorneys get together on certain issues, it is very difficult for the government to turn a blind eye to those issues.
Boyer also said that it is essential to understand that long-term care facilities, like nursing homes, are not to blame for the lack of transparency. He believes many facilities have unfairly received blame for the State of Florida’s questionable reporting.
“A lot of times, people would think that I’m trying to go after the nursing homes,” Boyer said. “That’s not what it’s about at all. We have very good relationships with a lot of nursing homes. I think that the folks in the nursing homes are trying to honestly do a good job while dealing with a lack of personal protective equipment, and a shortage in staffing. We’re trying to help while also making sure that the folks that we serve are all protected here.”
When asked what advice he has for other NAELA members who are experiencing issues with government transparency in the era of COVID-19, Boyer responded by saying, “Sometimes you have to fight city hall.”
“My advice for other NAELA members is, don’t be afraid to stick your neck out,” Boyer said. “As elder law attorneys, we’ve got to look out for our clientele. Not necessarily just our clients, but our clientele. The folks who don’t have a voice, who don’t have a family that’s fighting for them in the nursing home. We certainly have to look out for our clients in particular, but a by-product of that is protecting the rest of the folks who are also being taken care of as a part of that whole system.”
About the Author
An Interview with Christene Krupa Downs, Esq.
Eric J. Einhart, Esq., is a partner with the Russo Law Group PC, Garden City, New York. He is a member of the NAELA Board of Directors and is the Editor in Chief of NAELA News.
Pandemic Pro Bono
By Jennifer Balmos, Esq.
Christene (Chris) Krupa Downs has always had a “service first” attitude. Even with a busy estate planning and guardianship practice at the Weeks Law Firm in Plano, Texas, she has given her time to numerous civic and community organizations over the years. To name a few, Chris has served on the City of Plano’s Cultural Affairs Committee, which promotes art in the city, and with a passion for children and families, she also served on the Board of CITYHouse, which provides emergency shelter for children in Collin County.
With her commitment to serving her community and her personal motto to “be kind,” it was no surprise that she would be doing pro bono work during the pandemic.
As fears about the pandemic began to rise, Texas attorneys formed a group to provide basic estate plans for first responders and medical personnel. Holly Draper, a family law attorney in McKinney, Texas, formed the group, which grew to include over 300 volunteer attorneys. At first, Chris saw an opportunity to serve first responders but then realized there was an opportunity to use her legal experience and expertise to guide some of the volunteer attorneys.
“I saw so many attorneys with skill sets in other practice areas eager to jump in and help,” Chris said. “I was very inspired by that and wanted to be a resource for them.” Chris assisted by answering questions on the group’s Facebook page and provided an “Estate Planning 101” training via Zoom, where she walked through pertinent code sections, essential provisions in wills and powers of attorney, and the mechanics of getting a will signed properly during a health emergency.
As an experienced legal practitioner, she viewed building relationships as one of the key components of her role, and even though she was teaching other attorneys about estate planning, working during the pandemic taught Chris some lessons about how the field of elder law and estate planning could change in the future.
“I think we need to be more embracing of technology,” she said. “We need to be easily adaptable and ready to serve our clients with secure meetings and secure portals for documents.” Importantly, Chris noted that even with technology on our side, elder law attorneys must continue to find ways to incorporate the personal touch, which she feels is so important to this practice area.
Find Your Niche
Chris believes that anyone who wants to give back to their community can find the right niche to do so. For those wishing to make a difference in the legal field, she suggests volunteering with a local Legal Aid office. Critically, she advises other attorneys not to be scared to volunteer in an area where you are not already an expert. Legal Aid and other organizations will provide training and make sure that complicated cases go to more experienced attorneys.
Though the first responder program has wound down, there is no doubt that Chris will certainly continue to use her skill set and experience to make a difference in her community.
About the Author
Jennifer Balmos, Esq., has an elder law practice in Bartonville, Texas. She is a member of the NAELA News Editorial Board.