D.C. Bills Estate of Retarded City Ward
Sister Suing District Over Man's Care
By Marcia Slacum Greene and Lena H. Sun
The man, Frederick E. Brandenburg, died penniless, but his sister has filed a class-action lawsuit against the city and the group home provider for $1.16 billion. If she were successful, the money would be paid to Brandenburg's estate. The city's action--taken a month after the sister's lawsuit was filed--seeks to collect a cut of that potential award.
"It's unbelievable. I'm just completely dumbfounded," said Kelly Bagby, an attorney with University Legal Services, which has been designated the city's "protection and advocacy" agency for persons with disabilities. "This appears to be a punitive measure to discourage any family from suing the District when it harms a family member."
Both Mayor Anthony A. Williams (D) and the city's health director said yesterday they were unaware that lower-level officials had filed the claim. "I am outraged that there was a business-as-usual process" that triggered the filing, said Ivan C.A. Walks, the city's chief health officer.
Brandenburg's care was covered by Medicaid, a federal- and city-subsidized health plan for poor and disabled people. If a former recipient leaves an estate, federal law requires the city to automatically file a claim against it. Walks said his department will try to get a federal exception so the city will not have to move against estates of its mentally retarded wards.
In 1997, Brandenburg, 57, lived at a Tenley Circle group home where he was tranquilized in a staff mix-up, grew ill and slowly died without treatment. After his death, Brandenburg's body was washed, moved to the basement of the home and later cremated without autopsy. The tale of his death was part of a Washington Post series of stories on neglect and abuse in the city's group homes for the mentally retarded.
For the care Brandenburg received, the city's Department of Health last month billed his estate $440,969.18, including charges of $21.19 for lorazepam, a potent, long-acting sedative sold under the trade name Ativan. Two days before his death, a group home nurse injected Brandenburg with Ativan without required doctor's orders, city records indicate. The city's claim does not include a charge for that injection.
Herbert Weldon, the city's Medicaid director, said that when the Department of Health filed against Brandenburg's estate, it did not consider that Brandenburg was a former ward, that he had no assets or that the only potential funds in the estate would be from damages for poor care.
"If this process is not pretty the way everyone would like it to be, then you change the federal law," Weldon said. "It would not be a fair and impartial systematic process if you figure out who you go after and who you don't go after" for repayments.
Early yesterday, Weldon said the department would also move against the estates of two other mentally retarded wards who died in city group homes and whose families have sued. However, after director Walks learned of his department's claim against Brandenburg, he said he and the mayor would work with the federal government to prevent the filings.
Following the Post stories, the mayor repeatedly expressed outrage and promised to correct massive monitoring and management problems at group homes. But critics, including the U.S. Justice Department and D.C. Council members, have questioned the pace at which Williams moved to protect the city's most vulnerable population.
Williams insisted that city officials had failed to inform him of the depth of the problems and recently characterized the dysfunctional group home system as "another inherited, accumulated wreck."
Ira Sherman, a lawyer who represents Brandenburg's sister, Juanita DeButts, in the class-action lawsuit filed against the city and Brandenburg's private group home provider, D.C. Family Services, characterized the city's claim as insensitive.
"This is a blind response by a bureaucrat to a very sensitive situation," Sherman said. "The District of Columbia was apparently blind to its wards when they were alive, and it is not surprising to me that they are blind to them in death. If it is proven that [Brandenburg] died through the District's negligence, the District gets its money first."
Lawyers who specialize in probate law said it is unusual for the city to attempt to recover Medicaid costs from damage awards the city might be forced to pay in a lawsuit.
"It's a strange circular twist that the funds to repay the District for the cost of this man's care are in fact the same funds that the estate may receive in an award against the District because that care may have been negligent," said Cathy Hughes, a Virginia lawyer who specializes in estate planning and probate law. "It's a bizarre juxtaposition."
The Brandenburg lawsuit was the first of several filed in D.C. Superior Court against the city and group home providers after Post stories that tallied 116 deaths in the D.C. group home system from 1993 through September 1999. The Post found that at least 34 of the cases involved delayed treatment, neglect, falsifications in records or other lapses.
After Brandenburg died on Jan. 10, 1997, he was cremated without an autopsy. City officials have said the autopsy was not done because Brandenburg's two sisters, who they said were Jehovah's Witnesses, had refused to permit one. Neither sister is a Jehovah's Witness. They said they were never asked about an autopsy.
After disclosures of deaths in the group homes, the city established a permanent interagency panel to review those deaths and asked homicide detectives to investigate Brandenburg's death and that of another ward.
Through petitions filed in the Probate Division of D.C. Superior Court, Brandenburg's sister and others established estates on behalf of mentally retarded relatives and are now responsible for collecting assets and paying debts for those estates.
Earlier this month, the Department of Health sent an attorney handling the Brandenburg estate an itemized list of six years' worth of Medicaid expenses for Brandenburg, ranging from the $316,872.12 paid to group home providers to a $9.60 charge for periodic dental screening.
In a cover letter, the city advised that the claim could be satisfied with "your cashier's check, certified check or money order, made payable to the D.C. Treasurer."
After reviewing the city's system for caring for the mentally disabled, the Williams administration last month concluded that the system was "unable to execute its mission at its most basic level." But the District's Medicaid office, backing up its bill to the Brandenburg estate for services rendered, was able to document in exacting detail what it spent for taking care of Brandenburg.
A 38-page computerized printout lists payments for routine medical exams, dental screenings and a host of medications. The medications range from potent drugs used to treat heart problems, control seizures and increase the production of urine to calcium supplements and antifungal creams.
Staff writer David Brown contributed to this report.
To read complete Post coverage of group homes and to see documents gathered by The Post, go to www.washingtonpost.com/ invisible
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