Dave Tate, Esq. – expanding my mediator and conflict resolution part of the practice – video

David W. Tate, Esq., San Francisco and California – dave@tateattorney.com

To all of my friends, colleagues and connections – I am expanding my mediator and conflict resolution practice, and, as you see below, continuing to experiment with video. Below is a video discussing my mediator and conflict resolution qualifications and experience. The goal is to make the mediator and conflict resolution engagements up to 20% or so of my practice. The remainder of my practice will remain the same – heavy duty litigation and trials, governance, administrations, and investigations. Thank you, and please do pass the word to people who would be interested.

Best to you, Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com

———————————————————————-

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

* * * * *

 

Independence Of Government Department As Investigator And Attorney General As Counsel Raised (In This Example – In Regard To The NY Nursing Home Investigation)

I am forwarding this post from my other blog: http://auditcommitteeupdate.com

David W. Tate, Esq., San Francisco and California – dave@tateattorney.com

Investigator independence or lack of conflict of interest, and the independence or lack of conflict of interest of legal counsel representing the investigator are important and can carry significant legal ramifications, in addition to the optics that are presented and possible issues of investigation trustworthiness in the particular situation.

As I have written, these are issues that should be considered and vetted while initially forming the investigation team, and throughout the investigation as the issues and the situations that are being investigated, and the people and stakeholders who are at issue or who are involved can change and expand or grow.

See pasted below a snapshot of an article out of New York discussing an investigation of nursing homes that was recently ordered by the Governor. The investigation is being done by the state Health Department which is being represented by the Attorney General’s Office. Some people have questioned whether the Health Department and the Attorney General are the appropriate departments or offices to be involved in the investigation in this circumstance. In addition to the departments or offices that are involved, I will add that interpersonal relationships can also be or become an issue.

While the Health Department certainly is an appropriate department to conduct a nursing home investigation, and the Attorney General’s Office appropriately represents the Health Department, as it has been noted, in the current investigation it is possible that the policies of the Governor and/or the policies and procedures of the Health Department with respect to COVID-19 and nursing home residents might be or become in play. And as also noted, the situation could be akin to the investigator and its counsel investigating their own policies and procedures or those of their boss. These are issues or possible issues to consider in every investigation depending on the facts and circumstances of the particular situation, and as the fact and circumstances might change over time and during the course of the investigation.

Best to you, Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com

———————————————————————-

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediations and Services as a Mediator

* * * * *

California Department of Public Health Monitors Some Nursing Home Resident COVID-19 Reporting – What Does It Mean, Do They Investigate, Prosecute? Forwarded From http://auditcommitteeupdate.com

David W. Tate, Esq., San Francisco and California – dave@tateattorney.com

The following post was originally made on my other blog at http://auditcommitteeupdate.com

I have provided below two snapshots from the California Department of Public Health’s website discussing and disclosing some information pertaining to nursing home resident COVID-19 cases and deaths, as reported to the Department by the nursing homes themselves. I took both snapshots today, May 9, 2020. I have also provided below a link to the Department’s website page pertaining to nursing home residence COVID-19.

The first snapshot contains the Department’s top-of-the-page introductory paragraphs, indicating that the information provided by the nursing homes is as of May 7, 2020, and describes how that information is reported. The second snapshot is a random snapshot of some of the information that is provided by the Department in the chart of information further down the Department’s page. Note that the actual chart does contain an additional column to the left which provides the name for each nursing home that is listed – I left that information off because it is not related to the purpose of this post, and because you can also find that information yourself if you would like.

Nursing home resident care, processes and procedures, risk management, and reporting are always of absolutely key importance, and are of even more deadly importance in this COVID-19 time. You will also find other prior elder care and nursing home related posts on this blog.

As indicated in the first snapshot, the information that the Department has and provides only is information that is reported by the nursing home facilities themselves to the best of each nursing home’s knowledge. The Department does not discuss the actual criteria or evaluation processes were used by each nursing home, the extent to which the information that has been provided is reliable, whether reliability is evaluated, or how reliability is evaluated if in fact it is. Thus, I would have to assume that the information is not comparable as between different nursing homes. And I would also have to assume that some of the information that has been provided is not accurate or does not satisfy whatever reporting requirements the Department communicated.

Regarding evaluation of compliance programs the U.S. Department of Justice Criminal Division, just as an example, lists three primary criteria, plus subparts:

I.  Is the Corporation’s Compliance Program Well Designed?

II.  Is the Corporation’s Compliance Program Being Implemented Effectively?

III.  Does the Corporation’s Compliance Program Work in Practice?

It would be legitimate to ask the above three questions of each nursing home and of the Department of Public Health with respect to resident care, processes and procedures, risk management, and reporting in this COVID-19 time. The following is a link to an earlier post discussing the Department of Justice’s guidelines for its evaluation of compliance programs: https://wp.me/p75iWX-nb

The first snapshot is provided immediately below. Snapshot two and comments about snapshot two are provided following the first snapshot.

Below is the second snapshot. As I have stated above, the actual chart on the Department’s page contains an additional column to the left which provides the nursing home’s name. Let’s look at the chart. First I noticed that while most nursing homes have provided information, throughout the chart and in the snapshot below, there are facilities for which the information is N/A, or, in other words, there is no information provided. I do not know why there is no information provided, but if I was the Department I would want to investigate the reason for each such facility, and most likely report the reason. And for each such facility I would also need to decide how to proceed on the issue of reporting and there being no information. Of the sixteen facilities in the snapshot below, two are N/A, which is 8% based on a random sampling.

Many nursing homes report no COVID-19 cases or deaths, which is good, but only if the information is reliable. The first column in the snapshot below lists the county in which the nursing home is located, the second column lists confirmed health care worker COVID-19 cases reported that day (May 7, 2020), the third column reports confirmed resident COVID-19 cases reported that day, the fourth column reports confirmed health care worker COVID-19-related deaths cumulative, and the fifth column lists confirmed resident COVID-19-related deaths cumulative. For unknown reason if there are occurrences but those occurrences are less than 11, the actual number of occurrences is not listed. You can view the information provided yourself and reach your own opinions. If you have a loved one in a nursing home you should also ask the facility the questions for which you want information.

You might also be interested, the following is a link to a recent short blog post about family councils: https://wp.me/p1wbl8-w0.  And you can find the Department’s COVID-19 page at https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/SNFsCOVID_19.aspx.

Best to you, Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com

———————————————————————-

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediations and Services as a Mediator

* * * * *

 

May is Mental Health Month – Every Month Should Be

May is mental health month – every month should be. This is not a long blog post (I already wrote a post this morning about Caremark, CAMs and audit committees on my other blog, and I need to move to my cases) – this post is simply a comment or observation, and a link. I will be spending more time on this topic in the future, including about both physical and mental health and care including for seniors and dependent adults, and discussing nursing homes (SNF), assisted living facilities, and residential care facilities for the elderly (RCFE). The following is a link to a page from the website for Mental Health America that you might find thoughtful https://mhanational.org/mental-health-month (note that I have no affiliation with MHA or their materials – I’m simply passing materials along to you).

Take care in this challenging time. Best to you, Dave Tate, Esq. (San Francisco and California)

———————————————————————-

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediations and Services as a Mediator

* * * * *

 

 

 

 

IT’S A GOOD TIME FOR NURSING HOME AND RESIDENTIAL CARE FACILITY FAMILY COUNCILS TO GET ACTIVE

California nursing homes and residential care facilities must permit, and assist, family councils. You can refer to California Health and Safety Code §§1418.4 and §1569.158. An active family council can be effective in improving care at the facility.

With respect to nursing homes, in relevant part, §1418.4(g) states that “The facility shall consider the views and act upon the grievances and recommendations of a family council concerning proposed policy and operational decisions affecting resident care and life in the facility,” and §1418.4(h) states that “The facility shall respond in writing to written requests or concerns of the family council, within 10 working days.”

And with respect to residential care facilities, in relevant part, §1569.158(f) states “If a family council submits written concerns or recommendations, the facility shall respond in writing regarding any action or inaction taken in response to the concerns or recommendations within 14 calendar days.”

The above wording is very broad as to the types of issues, grievances, concerns and recommendations that a family council might consider and raise with the facility.

Thus, for example, obviously facilities should have already reviewed their policies and procedures to prevent, minimize and remedy illnesses at the facility. Click on the following link  https://wp.me/p1wbl8-vG for my blog post entitled “An illness spreads through a nursing home . . . some of the possible issues and legal issues to evaluate . . .”

1.  Is the risk management and compliance program well designed, and how does the facility know that?

2.  Is the risk management and compliance program being implemented effectively, and how does the facility know that?

3.  Does the risk management and compliance program work in practice, and how does the facility know that?

Obviously the above 3 points are major considerations for which the facility would need to effectively and extensively drill down into the details.

Best to you, Dave Tate, Esq. (San Francisco and California)

———————————————————————-

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediations and Services as a Mediator

* * * * *

 

California Department of Insurance Issues Alert for Insurers to Accept, Forward, Acknowledge, and Fairly Investigate All Business Interruption Insurance Claims

On April 14, 2020, the California Department of Insurance (by Insurance Commissioner Ricardo Lara) issued an Alert in reference to the COVID-19 pandemic, specifically to all admitted and non-admitted insurance companies, all licensed insurance adjusters and producers, and other licensees and interested parties entitled “Requirement to Accept, Forward, Acknowledge, and Fairly Investigate All Business Interruption Insurance Claims Caused by the COVID-19 Pandemic.” You can find the Alert at the following link: http://www.insurance.ca.gov/0250-insurers/0300-insurers/0200-bulletins/bulletin-notices-commiss-opinion/upload/Business-Interruption-Claims-Notice.pdf?inf_contact_key=44c76327a563a3b14bfebe52cf1546a1b7af0999dac2af6212784c39e05d2aef

You might be aware that possible insurance recovery by businesses for losses arising from COVID-19 already is a heavily discussed legal topic in the context of business interruption and other possible insurance policies and coverages. Each business should be evaluating each of its policies, not just its business interruption policy, for possible coverage. Such a discussion and evaluation requires specific policy analysis which is beyond the scope of this post or of any one post. Each insurance policy and its coverage, exclusions, etc., must be read and evaluated separately including such matters as the applicable jurisdiction and laws, not just the wording of the policy but also the intent of the policy and the parties, contract and insurance policy legal interpretation, presumptions, burden of proof, etc.

The Alert is also interesting for its citations to the California Code of Regulations at Sections 2695.5 and 2695.7, and requirements pertaining to the acceptance, forwarding, acknowledgement, and fair investigation, acceptance, or denial as those Sections apply to all insurance policies and claims. For example, in part, Section 2695.7(b) requires:

(b) Upon receiving proof of claim, every insurer, except as specified in subsection 2695.7(b)(4) below, shall immediately, but in no event more than forty (40) calendar days later, accept or deny the claim, in whole or in part. The amounts accepted or denied shall be clearly documented in the claim file unless the claim has been denied in its entirety.

(1) Where an insurer denies or rejects a first party claim, in whole or in part, it shall do so in writing and shall provide to the claimant a statement listing all bases for such rejection or denial and the factual and legal bases for each reason given for such rejection or denial which is then within the insurer’s knowledge. Where an insurer’s denial of a first party claim, in whole or in part, is based on a specific statute, applicable law or policy provision, condition or exclusion, the written denial shall include reference thereto and provide an explanation of the application of the statute, applicable law or provision, condition or exclusion to the claim. Every insurer that denies or rejects a third party claim, in whole or in part, or disputes liability or damages shall do so in writing.

(2) Subject to the provisions of subsection 2695.7(k), nothing contained in subsection 2695.7(b)(1) shall require an insurer to disclose any information that could reasonably be expected to alert a claimant to the fact that the subject claim is being investigated as a suspected fraudulent claim.

(3) Written notification pursuant to this subsection shall include a statement that, if the claimant believes all or part of the claim has been wrongfully denied or rejected, he or she may have the matter reviewed by the California Department of Insurance, and shall include the address and telephone number of the unit of the Department which reviews claims practices.

However, in part, Sections 2695.7(c), (d), and (e) also provide:

(c)(1) If more time is required than is allotted in subsection 2695.7(b) to determine whether a claim should be accepted and/or denied in whole or in part, every insurer shall provide the claimant, within the time frame specified in subsection 2695.7(b), with written notice of the need for additional time. This written notice shall specify any additional information the insurer requires in order to make a determination and state any continuing reasons for the insurer’s inability to make a determination. Thereafter, the written notice shall be provided every thirty (30) calendar days until a determination is made or notice of legal action is served. If the determination cannot be made until some future event occurs, then the insurer shall comply with this continuing notice requirement by advising the claimant of the situation and providing an estimate as to when the determination can be made.

(2) Subject to the provisions of subsection 2695.7(k), nothing contained in subsection 2695.7(c)(1) shall require an insurer to disclose any information that could reasonably be expected to alert a claimant to the fact that the claim is being investigated as a possible suspected fraudulent claim.

(d) Every insurer shall conduct and diligently pursue a thorough, fair and objective investigation and shall not persist in seeking information not reasonably required for or material to the resolution of a claim dispute.

(e) No insurer shall delay or deny settlement of a first party claim on the basis that responsibility for payment should be assumed by others, except as may otherwise be provided by policy provisions, statutes or regulations, including those pertaining to coordination of benefits.

Obviously each individual insurance policy and coverage situation must be separately evaluated. Similarly, in this unusual time many contracts between suppliers and buyers also need to be evaluated – see my prior post at https://wp.me/p75iWX-sK.

In the insurance policy context whether or not an insurer has acted reasonably or unreasonably and possible bad faith are evaluated on many different actions and criteria, some but not all of which, can include the following:

  • The failure to investigate the claim or to investigate the claim thoroughly (and fairly to the insured);
  • The failure to evaluate the claim objectively;
  • Using incorrect, erroneous, improper or unduly restrictive standards or interpretations to delay, frustrate or deny the insured’s claim or the claim form;
  • Delay in claims handling;
  • Unreasonably and unfairly requesting additional and further unnecessary documents or evidence from the insured;
  • The failure to timely or with sufficient detail communicate acceptance or denial of the claim or acceptance or denial of the individual parts of the claim;
  • Unreasonable or unfair delay in payment on the claim;
  • Unreasonably low first party or third party claim or settlement offers;
  • Unreasonable litigation, or unreasonable litigation tactics to delay, frustrate or avoid payment on the insured’s claim;
  • Unreasonable or unfair post claim interpretation or underwriting practices;
  • And other unreasonable, unfair, deceptive, abusive, or coercive practices and tactics to delay or avoid the payment of claims.

Best to you, Dave Tate, Esq. (San Francisco and California)

———————————————————————-

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

New Case – Estate of Ashlock – relating to Probate Code Section 859 recovery of “twice the value of the property recovered”

On March 3, 2020, the California Court of Appeal, Fifth Appellate District, in Estate of Ashlock, Case No. F078083, issued a new Opinion, part of which was certified for publication, in the long-running battle involving the Estate of Lonnie Lamont Ashlock, Stacey Carlson and Gabriel Ashlock. These are hotly litigated cases. There have been several prior appellate Opinions issued, most of which are unpublished. Indeed, only a small part of the March 3, 2020, Opinion is certified for publication.

These cases involve trust, will, partnership, alleged forgery, alleged breach of fiduciary duty, instrument/document contests, and other issues, also including California Probate Code Sections 850-859.

The holding in the published part of the March 3, Opinion is that Probate Code Section 859 provides for recovery of the actually recovered property plus twice (or two times, or double) the value of the recovered property. As noted in the Opinion, California Appellate Court’s have interpreted the wording of Section 859 in different ways. For example, one Court has interpreted the Section as stating that the recovery of twice (or two times, or double) the value means the recovery of the actual property plus the value of the recovered property. For example, if the recovered property has a value of $1,000, under the first scenario (and in accord with the Opinion in Estate of Ashlock) the recovery would be the property ($1,000) plus an additional $2,000 (twice the value of the property), whereas under the second scenario the recovery would be the property ($1,000) plus an additional $1,000.

An increasing number of cases involve claims under Probate Code Sections 850-859. Unfortunately, and surprisingly, there are few appellate cases that interpret those code sections or that apply different fact situations to those code sections. It is my view that particularly with respect to Sections 850 and 859 it would have been helpful if the Legislature had made some of the wording and provisions more clear. Many of my cases involve Probate Code Sections 850-859.

For your ease of reference, below I have pasted the current wording of California Probate Code Sections 850 and 859.

Section 850

(a) The following persons may file a petition requesting that the court make an order under this part:

(1) A guardian, conservator, or any claimant, in the following cases:

(A) Where the conservatee is bound by a contract in writing to convey real property or to transfer personal property, executed by the conservatee while competent or executed by the conservatee’s predecessor in interest, and the contract is one that can be specifically enforced.

(B) Where the minor has succeeded to the interest of a person bound by a contract in writing to convey real property or to transfer personal property, and the contract is one that can be specifically enforced.

(C) Where the guardian or conservator or the minor or conservatee is in possession of, or holds title to, real or personal property, and the property or some interest therein is claimed to belong to another.

(D) Where the minor or conservatee has a claim to real or personal property title to or possession of which is held by another.

(2) The personal representative or any interested person in any of the following cases:

(A) Where the decedent while living is bound by a contract in writing to convey real property or to transfer personal property and dies before making the conveyance or transfer and the decedent, if living, could have been compelled to make the conveyance or transfer.

(B) Where the decedent while living binds himself or herself or his or her personal representative by a contract in writing to convey real property or to transfer personal property upon or after his or her death and the contract is one which can be specifically enforced.

(C)Where the decedent died in possession of, or holding title to, real or personal property, and the property or some interest therein is claimed to belong to another.

(D) Where the decedent died having a claim to real or personal property, title to or possession of which is held by another.

(3) The trustee or any interested person in any of the following cases:

(A) Where the trustee is in possession of, or holds title to, real or personal property, and the property, or some interest, is claimed to belong to another.

(B) Where the trustee has a claim to real or personal property, title to or possession of which is held by another.

(C) Where the property of the trust is claimed to be subject to a creditor of the settlor of the trust.

(b) The petition shall set forth facts upon which the claim is based.

(Added by Stats. 2001, Ch. 49, Sec. 1. Effective January 1, 2002.)

Section 859

If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to a conservatee, a minor, an elder, a dependent adult, a trust, or the estate of a decedent, or has taken, concealed, or disposed of the property by the use of undue influence in bad faith or through the commission of elder or dependent adult financial abuse, as defined in Section 15610.30 of the Welfare and Institutions Code, the person shall be liable for twice the value of the property recovered by an action under this part. In addition, except as otherwise required by law, including Section 15657.5 of the Welfare and Institutions Code, the person may, in the court’s discretion, be liable for reasonable attorney’s fees and costs. The remedies provided in this section shall be in addition to any other remedies available in law to a person authorized to bring an action pursuant to this part.

(Amended by Stats. 2013, Ch. 99, Sec. 1. (AB 381) Effective January 1, 2014.)

—————————————————————

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com; Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

  • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries and beneficiaries; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

  • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
  • Misappropriation of trade secrets
  • M&A disputes
  • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes
  • Buy-sell disputes
  • Funding and share dilution disputes
  • Accounting, lost profits, and royalty disputes and damages
  • Access to corporate and business records disputes
  • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

  • Corporate, business, nonprofit and governmental internal investigations
  • Board, audit committee and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards

The following are copies of the tables of contents of three of the more formal materials that I have written over the years about accounting/auditing, audit committees, and related legal topics – Accounting and Its Legal Implications was my first formal effort, which resulted in a published book that had more of an accounting and auditing focus; Chapter 5A, Audit Committee Functions and Responsibilities, for the California Continuing Education of the Bar has a more legal focus; and the most recent Tate’s Excellent Audit Committee Guide (February 2017) also has a more legal focus:

Accounting and Its Legal Implications

Chapter 5A, Audit Committee Functions and Responsibilities, CEB Advising and Defending Corporate Directors and Officers

Tate’s Excellent Audit Committee Guide

The following are other summary materials that you might find useful:

An internal investigation summary overview page from a prior blog post which you can find at https://wp.me/p75iWX-dk if the below scan is too difficult to read (and you will also find other posts about investigations on my blog):

 

OVERVIEW OF A RISK MANAGEMENT PROCESS THAT YOU CAN USE 03162018

Audit Committee 5 Lines of Success, Diligence, and Defense - David Tate, Esq, 05052018

COSO Enterprise Risk Management Framework ERM Components and Principles

 

AUDIT COMMITTEE SELF-EVALUATION

David W. Tate

Attorney at Law

Certified Public Accountant (inactive California)

Copyright 2019 David W. Tate (however, you are authorized to download and print these materials for your use, and to also pass them to other people who would be interested)

BLOGS

D&O, Audit Committees, Risk Management, Compliance, Investigations & Governance: http://auditcommitteeupdate.com

Trust, Estate, Conservatorship & Elder Abuse Litigation: http://californiaestatetrust.com

Linkedin: http://www.linkedin.com/in/davetateesq

Twitter: http://twitter.com/davidtateesq

Self-evaluation is an important board and committee activity, and can be very helpful if done properly.

A.  Introduction and Overview

The following discussion covers audit committee self-evaluation and provides processes that you can use. As noted elsewhere in these materials, although many board and audit committee functions, responsibilities and tasks are specified by statute, regulation, rule or pronouncement, board and audit committee member standards of care remain significantly dependent on due diligence and prudent judgment.

Boards and audit committees of various entities are required by law, regulation or rule to conduct annual committee self-evaluations; however, it is worthwhile for boards and audit committees of all public and private companies and nonprofit entities to conduct self-evaluations. Board and audit committee jobs are challenging, ongoing, and technical in nature, and require the members to significantly interact with many people in different capacities within and outside of the entity. It only makes sense that both boards and audit committees should at least once each year take time to step back and review, evaluate and make improvements to their manners of operation, and also consider helpful actions that can be taken by other people with whom the boards and audit committees interact. Self-evaluation will be worthwhile even if it results in improving only one area of operation.

Board and audit committee responsibilities originate from several different sources at least including (1) activities and responsibilities that boards or audit committees voluntarily undertake or that are delegated to them; (2) the business judgment rule; (3) the specific laws, regulations and rules that are applicable to the entity’s directors and audit committee members; (4) the wording of the board and audit committee charters, if there are charters; (5) shareholder and stakeholder expectations, and (6) for audit committees, accounting and auditing pronouncements relating to the outside auditor’s activities.

Prudent board and audit committee processes and diligence are also important to reduce member and entity liability and reputation risk. An increasing number of cases hold that board and audit committee members can be liable for failure to exercise sufficient diligence, failure to spot and respond to red flags, and failure to take action. Active board, committee and corporate diligence tend to demonstrate prudent business judgment and negate allegations of recklessness, improper intent, intentional wrongdoing, or “scienter” such as in the context of securities litigation, thus reducing the risk of securities liability and damages. In the context of audit committee activities, potential entity, board, and audit committee member liability typically arises in the context of alleged improper accounting practices, written and oral public misrepresentations (such as with respect to financial matters), and improper employment practices.

Although not required, there can be advantages to having a facilitator conduct an interactive interview approach to the self-evaluation process, but without performance grading or rating: it can be difficult to construct a questionnaire with standardized questions that would be similarly understood by each of the participants in the self-evaluation process; different people use different rating scales; different people express responses in different manners; and certain important issues will change from year to year. A facilitated approach may encourage better discussion and comment, compilation, continuity, explanation, and follow-up. Contact me if you are interested in committee self-evaluation assistance at a reasonable fixed fee.

Issues and topic areas to consider during the self-evaluation process will naturally vary from entity to entity, and from board and audit committee to board and audit committee. Thus, to stimulate discussion, below for both boards and audit committees I have provided lists of potential broad issues or topic areas to consider for discussion and evaluation, including both successes and possible improvements; and I have also outlined processes to assist your board and audit committee self-evaluation processes.

B.  Audit Committee Self-Evaluation

1.  Sample List of Issues and Topics to Consider for Audit Committee Self-Evaluation

The following is a list of issues and topic areas to consider for discussion and evaluation. The list is intended to help trigger thought processes, but, of course, is not exhaustive as areas of discussion and evaluation will vary from entity to entity, and from committee to committee. The following list is not intended to and does not suggest that each or any of the below issues and topics must be considered or covered and is not a checklist – instead, if your audit committee is required to conduct a specific evaluation process or to cover certain specific issues and topics, you will need to separately consider the specific requirements, if any, for your audit committee and its evaluation process pursuant to law, regulation or rule. In that regard, please also see the disclaimer and limitations at the beginning of these materials.

-Audit committee meeting agenda preparation and dissemination process.

-Committee member independence and situational independence, financial literacy, experience and expertise.

-Committee member access to information and/or education pertinent to the functions and responsibilities of the audit committee. Are the needs of the committee members being met, so that they are sufficiently knowledgeable and educated about the company or nonprofit and its industry; relevant significant accounting and auditing issues; relevant legal matters; internal controls, risk assessment and management; governance; and new developments in those and other areas?

-Committee and committee member interactions, including interaction between committee members, and between the committee and the board, the CEO, the CFO, the outside auditor, the internal auditor, legal counsel, compliance and ethics, HR, consultants, and other people.

-The committee’s processes for identifying and spotting issues, evaluation and decision making.

-The contents of the audit committee charter, and a mutual understanding of the audit committee’s responsibilities and tasks. The charter is a requirement for public companies, and is a good idea for many private companies and nonprofit entities. The charter is a prudent document to identify and clarify the audit committee’s responsibilities. In addition to the committee itself, it is important for the board, the executive officers, and other stakeholders to have a correct understanding about the committee’s responsibilities and limitations, and the extent to which state or local jurisdiction, U.S. and international requirements and responsibilities apply or may apply to your audit committee.

-Selection of the outside auditor; audit planning; review of the performance of the outside auditor; and review of the quarterly review and annual audit report and process (or compilation if appropriate).

-Review of recent developments relating to the business judgment rule, standard of care and acceptable reliance on other people.

-Review of accounting and financial internal and fraud/embezzlement related controls and processes, risk assessment and management, possible entity and individual liability and reputation risk exposure; and compliance assessment and management relating to laws, regulations, and rules that are within the scope of the audit committee’s functions and responsibilities including issues relating to the Foreign Corrupt Practices Act.

– Review of the accounting department, and accounting and financial reporting for transactions including all of the subcomponents such as principles and policies applied (quality not just acceptability); judgments, estimates and reserves; timing and cutoff procedures; off balance sheet transactions; related party transactions; contingencies and liabilities; revenue recognition; expenses; inventories; goodwill; insider trading; and other matters relating to accounting and financial statement reports.

-Implementing revenue recognition rules, and other important, new or changing accounting principles.

-Review of internal investigation processes, procedures and needs.

-Review of the financial and internal audit functions, and how they can be helpful to the audit committee in the performance of its responsibilities and tasks.

-Review of risk management and uncertainty issues, practices and processes that are within the scope of the audit committee’s function and responsibilities.

-Implementing COSO 2013 or other appropriate processes.

-Documenting and reporting the audit committee’s activities and minutes.

-The audit committee’s use of attorneys and consultants.

-The company’s investor communication processes.

-Whistleblower, ethics, anonymous reporting and complaint handling processes to the extent that the reporting is within the scope of the audit committee’s function and responsibilities.

-Document retention policies.

-Review of the compliance and ethics function and processes that are within the scope of the audit committee’s responsibilities, and how they can be helpful to the audit committee in the performance of its responsibilities and tasks.

-Governance, including tone at the top, financial leadership, transparency and appearance.

-Review of employer, employee and workplace processes, culture, safety, and disciplinary practices that are within the scope of the audit committee’s function and responsibilities.

-Review of tax compliance and reporting issues that are within the scope of the audit committee’s function and responsibilities.

-Review of cybersecurity and internet security issues that are within the scope of the audit committee’s function and responsibilities.

-Insurance.

-Review of pension and health plan related issues that are within the scope of the audit committee’s function and responsibilities.

-Review of information privacy issues, practices and processes that are within the scope of the audit committee’s function and responsibilities.

-Review of asset protection, IP, trade secret, etc. practices to the extent that they are within the audit committee’s function and responsibilities.

-Review of environmental issues and safety that are within the scope of the audit committee’s function and responsibilities.

-Review of product and consumer safety issues, practices and processes that are within the scope of the audit committee’s function and responsibilities.

-Review of ESG, ESG processes, and ESG discussions and disclosures.

-Review of billing and accounting relating to the receipt of funds or revenue from governmental sources such as Medicare and Medicaid; compliance with applicable laws, regulations, rules and other requirements; and oversight of expenses relating to these areas.

-Review of the acceptance, receipt, allocation, expenditure or distribution, and accounting for all charitable and donor funds, grants, contributions, pledges and other resources, including compliance with all requirements, restrictions and special uses.

-Review of accounting for collaboration and joint venture arrangements, including the allocation of receipts/income and distributions/expenses between the entities.

-And, in this economic environment, review of the fair value of funds and investments, including loss of value; liquidity concerns; possible going concern issues; estimates for uncollectibles and related reserves; debt/loan covenants; and funding source uncertainties including those that relate to collaboration and joint venture arrangements.

-It is also important for the audit committee to clarify with the board what responsibilities it has, if any, for oversight of the numerous and various areas of taxation and compliance; ERISA, pension and health and welfare plans; investments; tax exempt status including fund raising, dues, solicitation, and political, campaign and lobby activities; and other areas significant to the entity.

-Discussion about audit committee membership and recruitment needs.

-Additional significant topics or issues that should be discussed.

2.  A Self-Evaluation Process and Format for Audit Committees

The following eight primary steps outline a proposed audit committee self-evaluation process that is workable for audit committees of public companies, private companies and nonprofit entities, whether using or not using, an outside facilitator.

 

Step 1. Determine the people who will be participating in the evaluation process, including the audit committee members, and other people, if any, to interview for comment.

Provide the names of the people who will participate in the evaluation process.

 

 

Step 2. Determine how the participant interviews will be conducted, individually or in a group, in person or by telephone, skype or some other means.

Provide comments or information about how the interviews will be handled with the various different people who will participate in the evaluation.

 

 

Step 3. Arrange participant individual or group interview dates and times.

Provide participant individual or group interview date and time information.

 

 

Step 4. Provide the participants with pre-interview materials and a list of possible issue or topic areas (broad and specific) for consideration and discussion. Of course, the participants can add additional issues or topics. Use this paper for that purpose.

Provide information regarding the status of disseminating the pre-interview materials.

 

 

Step 5. Have each participant provide a list of one to five, or more, issues or topic areas that the participant would specifically like to discuss during the evaluation process.

Provide comments and information regarding receipt of issues or topic areas from the self-evaluation process participants, and the respective issues or topic areas listed.

 

 

Step 6. Conduct information intake or interviews with participants individually or as a group.

Provide comments and information from the participants or the status of such – the input can be made by the participants themselves or by a facilitator during self-evaluation interviews.

 

 

Step 7. Summarize in a report format the issues and topic areas, information received, and suggestions made during the self-evaluation process.

Provide a summary in a report format.

 

 

Step 8. Provide a report back to the audit committee, and possibly conduct a committee group review of the self-evaluation process, information obtained, and suggestions made, and possible future actions or follow-up.

Provide additional comments and information about the self-evaluation process or results.

 

 

Concluding comments. I hope you have found this discussion helpful and at least a good starting point for your audit committee self-evaluation. Feel free to contact me if you are interested in discussing the audit committee self-evaluation process, or if you would like help with facilitation of committee self-evaluation at a reasonable fixed fee.

Best to you,

David Tate, Esq.

 

 

 

An illness spreads through a nursing home . . . some of the possible issues and legal issues to evaluate . . .  

An illness spreads through a nursing home . . . some of the possible issues and legal issues to evaluate . . .

Note that the following is not a legal analysis, nor is it a complete list as each situation and case is different depending on the facts and circumstances. But the following are possible legal issues that do come to mind when an illness spreads through a nursing home – the following are not in any particular order.

First and obviously the concern is for the residents and both their immediate and their future health, safety and well-being. It goes without saying that residents in nursing homes are at risk physically, medically, emotionally, and mentally, and that they are significantly dependent on the good and appropriate actions of other people for their well-being.

Then there are legal issues. The following are some that come to mind, but, again, each situation is different:

-The facts of the situation.

-The optics of the situation – how do the situation and the response appear to an average person and to the various professionals and professions that are or should be or could be involved? The optics of the situation run through each of the items that are listed below.

-Are there appropriate preventative and responding processes in place?

-Were the appropriate preventative and responding processes followed?

-What standard(s) of care are applicable:

Standard(s) of care in the community and industry.

Applicable statutes, regulations, rules, policies, and procedures. Many statutes, regulations, etc. have been enacted that apply to and regulate nursing homes.

-Is there negligence?

-Is there gross negligence?

-Is there neglect or abandonment, as we have seen in some news situations where people in charge and control did little or less than what they should have and could have done?

-Is there elder or dependent adult abuse? Consider medical malpractice v. elder abuse – it depends on the facts and circumstances.

-Is there sufficient diligence, or a lack thereof?

-What preventative processes were in place and utilized as required by law, as required by the standard(s) in the community and industry, or that are discretionary and available and that were or were not used?

Although this post does not consider possible criminal liability with respect to risk management and compliance programs, from my other blog http://auditcommitteeupdate.com consider the Department of Justice, April 2019, Evaluation of Corporate Compliance Programs if it was applied to the nursing home’s risk management and compliance processes, and the three primary headings or sections that are listed and discussed by the Department of Justice:

    1. Is the Corporation’s [i.e., Nursing Home’s] Compliance Program Well Designed?
    2. Is the Corporation’s [i.e., Nursing Home’s] Compliance Program Being Implemented Effectively?
    3. Does the Corporation’s [i.e., Nursing Home’s] Compliance Program Work in Practice? And with respect to this third section, the question is asked: how does the Corporation [i.e., Nursing Home] reasonably know, before the risk actually occurs, that the risk management and compliance processes in place will work? How has actual effectiveness been evaluated or tested beforehand so that it is reasonably known and believed that effective risk management and compliance processes are in place?

-What red flags became known or should have become known?

-What were the responses to red flags and/or facts that became known or that should have become known?

-What, if any, reporting requirements existed, and were they complied with in terms of the health, safety, and well-being of each resident?

-What requests for needed outside assistance were made?

-How was the adequacy and how is the sharing of information to family members, the outside, and others, or is there secrecy, misinformation, partial significant information, delayed information, hush/hush, etc.?

-Is there responsibility and liability for:

The nursing home;

Nursing home officer personal liability;

Nursing home director personal liability;

Nursing home medical director personal liability;

Nursing home director of nursing personal liability;

Nursing home assistant personal liability; or

Personal liability for other people who are employed by the nursing home?

-Are the situation and wrongdoing egregious – in addition to liability, should there be punishment?

-Has the nursing home basically done a good job for each resident and with respect to their health, safety and well-being?

—————————————————————

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs:

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com;

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

 

 

 

 

Summary of California Trustee and Beneficiary Responsibilities and Rights, and Handling Contentious Trust Administrations and Other Family Situations (PPT slides saved as PDF)

The following is a link to a PDF of my PowerPoint slides for a Summary of California Trustee and Beneficiary Responsibilities and Rights, and Handling Contentious Trust Administrations and Other Family Situations: David Tate, Esq. – Summary of California Trustee and Beneficiary Responsibilities and Rights 02252020 Slides Saved as PDF

And below is a snapshot of page 1 of the slides. Best to you, Dave Tate, Esq.

 

 

When do you not have the right to remain silent in conservatorship proceedings (Weintraub Tobin) – with Tate’s comments added

I have provided below a link to a Weintraub Tobin post about conservatorship proceedings and when a conservatee or prospective conservatee might have or might not have the right to remain silent (i.e., the right to not be compelled to testify). The post references Conservatorship of Bryan S. which was a LPS conservatorship; however, some of the same arguments might also be made in regular or general conservatorship proceedings.

A conservatorship proceeding is a state action in which the court is petitioned to order that there be a limitation on the conservatee’s freedom of choice or decision making, and in some circumstances the conservatee’s personal freedom of movement, or of living condition, or of right to not be medicated.

This post by Weintraub is also timely in light of the State of California’s initiative to use conservatorship proceedings more often.

As noted, in Conservatorship of Bryan S. the Court held that the prospective conservatee did not have the right to refuse to testify unless the questions and the answers thereto may incriminate the prospective conservatee in a criminal matter – and that question or issue, i.e., about possible incrimination, could be relevant for consideration in at least some conservatorship proceedings. And I also note that Conservatorship of Bryan S. involved only one Court of Appeals – other Court of Appeals might differ and at some point this issue might be brought up to the California Supreme Court.

You can find other posts about conservatorship proceedings throughout this blog – in the search box type in the word conservatorship.

The following is a link to the Weintraub Tobin discussion: https://www.weintraub.com/blogs/when-do-you-not-have-the-right-to-remain-silent-conservatorship-proceedings-and-equal-protection-clause-claims

—————————————————————

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com; Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com