Public Health Law § 4406-d represents an important due process right for New York health care providers besieged by managed-care driven network retractions. At a time when networks continue to shrink and consolidate, providers facing termination from health plans need to know their rights to protect themselves and their patients.
A. A Provider’s Right to a Written Explanation and Hearing.
Upon receipt of the termination notice, the clock begins to tick on a health care provider’s rights. This is a critical time to evaluate both the merits of the termination and whether any of the provider’s or his/her/its patient’s rights are being violated that may require legal intervention. Importantly, a New York appellate court has affirmed a provider’s right to assert a cause of action for a violation of PHL § 4406-d against a health care plan when the provider alleges the termination was arbitrary, i.e. proper notice was not provided.vi Other legal causes of action and remedies may also exist, as well as the ability to negotiate directly with the health care plan.
The battle is not over by merely asserting a cause of action against the health care plan for violating the contract or PHL § 4406-d. This scenario recently played out in a New York appeals court. In Alhmed Elkoulily, M.D., P.C. v. New York State Catholic Healthplan, Inc., the health care plan immediately terminated the provider after conducting a review of patient records because it determined that the provider was treating patients outside its “credentialed expertise,” which created an “imminent harm” to its enrollees.viii While the appeals court found the provider’s allegation that the health care plan acted in bad faith by terminating its contract without justification and fabricating evidence, it ultimately dismissed the case because the provider failed to produce any evidence supporting the allegations. The lesson to the provider is that you will need evidence that the health care plan is acting arbitrarily in terminating the contract in order to proceed with a lawsuit for violations of PHL § 4406-d.
Ultimately, whenever a provider receives a termination notice, immediate action is required to protect the provider’s business and patient rights. Options to prevent a network termination evaporate quickly.
B. What is A Hearing?
When we think of a hearing, our mind conjures up images of an independent panel of peers that will seek the truth through the examination of witnesses and review evidence that is presented by both sides. The existing standards for provider hearings are well established in law. For example, a provider subject to termination from the Medicaid program has well-defined procedural rights during a termination hearing.ix These rights include, among others, the right to be represented by an attorney or representative, to testify, to produce witnesses, to present documentary evidence and to examine opposing witnesses.x The provider also is permitted to examine the documentary evidence against it prior to the hearing.xi It would seem appropriate that a provider subject to termination and afforded a hearing under PHL § 4406-d should have similar rights. However, there is very little statutory guidance in the PHL relating to how a hearing must be conducted under PHL § 4406-d. Moreover, the DOH does not appear willing to enforce due process rights under PHL § 4406-d, like those applicable to Medicaid terminations.
The health care plan determines the persons who will serve on the hearing panel.xii Only one-third of the panel members must be a clinical peer of the provider, which typically consists of only 3 panelists. Id. There is no requirement that panel members be independent or health care professionals or disclose any conflicts of interest they may have, including being an employee of the health care plan. Moreover, by requiring only a single clinical peer, there is no guarantee the other panel members will have any understanding of how the provider’s industry works or its usual and customary practices. This is a major roadblock to a fair and impartial hearing.
While PHL § 4406-d protects a provider’s due process rights by providing for a hearing, it does not define how the hearing is to be conducted, who has the burden of proof or what that burden is. This legislative silence on hearing conduct is unlike the well-defined, statutorily-mandated hearing processes that exists in the analogous situation of professional misconduct. In a professional misconduct hearing, the professional has a right to have counsel, submit a written answer to the charges, produce witnesses and present evidence, as well as cross-examine witnesses and examine the evidence against them and have a record made of the hearing itself.xiii All of this evidence may be used in a later court proceedings, if needed. However, in a hearing conducted by a health care plan, these usual due process protections are eliminated or prohibited by the plan. In addition, the standard of proof required is also defined as a preponderance of the evidence, i.e. more likely than not, in a professional misconduct case. There is no such standard required in a hearing under Section 4406-d, leaving the provider to speculate as to the burden, or even worse, placing a strict and heavy burden on the provider to prove his/her/its case in absolute terms, rather than the health care plan. This is a true reversal of the customary adversarial role in making an accusation of wrongdoing, which amounts to a guilty until proven innocent standard.
C. What Can A Provider Do?
The due process rights provided by Section 4406-d will be rendered meaningless if health care plans are permitted to retain full control over all aspects without adequate oversight or challenges. The legislature does not appear anxious to remedy its silence on the conduct of termination hearings. Likewise, the Department of Health does not appear to be concerned with permitting health care plans from conducting mass terminations of providers with superficial hearing processes. So where does this leave providers?
The longer due process violations go unchallenged, the harder it will be to undo the damage; particularly to small and mid-size providers who may not have the resources to be a lone soldier. The health care industry has undergone significant change and consolidation in recent years. The forces leading this endeavor are continuing to expand their power and influence in their practices and through the legislature, government agencies and the courts. Providers need to proactively take action to define and protect their rights contractually, legislatively and using the legal avenues available to them. The legislature had good intentions in enacting Section 4406-d’s due process protections, but providers need to ensure those protections are being implemented and enforced.
i See PHL § 4406-d(2)(a ). A contract can be immediately terminated in cases involving imminent harm to patient care, a determination of fraud, or a final disciplinary action by a state licensing board or other governmental agency that impairs the health care professional’s ability to practice. Id.
ii See PHL § 4406-d(6)-(7).
iii See PHL § 4406-d(2)(b)-(c).
iv See PHL § 4406-d(2)(f).
vi See Alhmed Elkoulily, M.D., P.C. v. New York State Catholic Healthplan, Inc., 2017 NY Slip Op 06242, Index No. 8552/13 (2d Dept Aug. 23, 2017) (holding a private right of action existed under PHL § 4406-d for health care professionals).
viii Id.; Ahmed Elkoulily, M.D., P.C. v. New York State Catholic Healthplan, Inc., 2017 NY Slip Op 06244, Index No. 8852/13 (2d Dept Aug 23, 2017) (dismissing case because the provider failed to raise an issue of fact whether the health care plan’s termination was arbitrary).
x See 18 NYCRR § 519.8; 18 NYCRR § 519.10; 18 NYCRR 519.19.
xi 18 NYCRR § 519.13.
xii See PHL § 4406-d(2)(b)(ii) and (c). Legislation has failed several times—most recently in 2016—in efforts that would have refined PHL § 4406-d to permit the health care plan to appoint a member, the provider to appoint a member and the two panel members to appoint a third panel member. See New York State Assembly Bill No. A1212 and Senate Bill No. S04751. The legislation further required the panelists to be licensed health care professionals in New York in the same area as the provider. Id. This would have created an independent peer-reviewed hearing process. As of this writing, another bill is pending before the New York State Senate to include these revisions to the PHL. See New York State Assembly Bill No. A02704 and Senate Bill No. S03943. The legislation would also extend due process rights to contract non-renewals. Id.
If you have questions or require further assistance regarding the information contained in this Legal Alert and the impact on your organization, please contact Brad M. Gallagher at bgallagher@barclaydamon.com, or Linda J. Clark, Chair of the Barclay Damon Health Care Controversies Practice Area at lclark@barclaydamon.com.


Sentinel Management Group, Inc. (“Sentinel” or “Debtor”) was an SEC-registered investment advisor and a CFTC-regulated futures commission merchant (“FCM”) that managed investments for its various customers and divided its customers into different investment groups.
Sentinel entered into customer agreements with each of its customers (each, a “Customer Agreement”) which specified that the customer’s cash investment would be invested in a specific investment group, along with the cash investments from other Sentinel customers in the same investment group. Each customer within the investment group would own an indirect interest in the segregated investment portfolio of their particular investment group, but the customers did not own any of the particular securities included in the investment group’s portfolio. Rather, the customers were entitled to receive redemptions of cash proceeds from the investment group.
In August 2007, Sentinel filed for bankruptcy protection under Chapter 11 of the Bankruptcy Code. Grede, the trustee for the liquidation trust created by the Debtor’s plan of reorganization, filed an adversary proceeding seeking to avoid and recover pre- and post-petition transfers made by Sentinel to FCStone, LLC (“FCStone”), one of Sentinel’s many customers. Count II of the adversary proceeding sought to avoid one such transfer in the amount of just more than $1 million as an avoidable preference pursuant to § 547(b).
On the day before Sentinel filed bankruptcy, Sentinel sold to Citadel, a third party, a portfolio of 98 securities that had been allocated to certain Sentinel investment groups. The net sale proceeds realized from the sale of the securities exceeded $300 million, and such proceeds were deposited by Sentinel into a segregated cash account to be further allocated to the investment groups. On the next day, Sentinel distributed approximately $22.5 million of the Citadel sale proceeds to an account specifically for the benefit of two investment groups. Of the $22.5 million, just more than $1 million was then distributed as a cash redemption to FCStone, one of the investment group customers. Later that same day, Sentinel filed its voluntary petition for relief initiating its bankruptcy case.
The dispute over Count II was whether the $1 million transfer from Sentinel to FCStone was shielded from avoidance by the § 546(e) safe harbor provision, which protects from avoidance settlement payments and transfers in connection with securities contracts. FCStone asserted that the customer redemption transfer was both a settlement payment made to a commodity broker as well as a transfer made in connection with a securities contract, to wit, the Customer Agreement that governed the relationship between Sentinel and FCStone. The Trustee, on the other hand, argued that the $1 million customer redemption transfer was not made “in connection with a securities contract” pursuant to § 546(e) because the Customer Agreement was not a “contract for the purchase, sale, or loan of a security,” pursuant to § 741(7). In addition, the Trustee argued that the $1 million transfer was not a “settlement payment” because it was not “made to complete [a] securities transaction.” Rather, the Trustee asserted that the relevant “securities transaction” took place between Sentinel and Citadel rather than the cash redemption transaction that took place between Sentinel to FCStone.
The District Court affirmatively declined to address the specific arguments raised by the parties. Rather, the District Court stated that “regardless of whether the distribution of the Citadel proceeds fits under a literal interpretation of § 546(e), I find it inconceivable that Congress intended the safe harbor provisions to apply to the circumstances of this case.” The District Court based its conclusion that “applying the safe harbor here would produce a result ‘demonstrably at odds with the intentions of its drafters’” on its findings that (1) applying the safe harbor to shield the transfers to FCStone would create the very type of systemic market risks that Congress sought to prevent, and (2) failing to apply the safe harbor to this case would not result in the unwinding of completed transactions that Congress sought to protect.
Based on these findings, the District Court concluded that applying § 546(e) in this case would be demonstrably at odds with the intentions of its drafters and therefore held that the § 546(e) safe harbor did not apply in this case; accordingly, judgment was entered against FCStone on Count II.
In a footnote, the District Court conceded that Congress intended for § 546(e) to reach a broad scope of financial instruments. However, the District Court declined to extend § 546(e) “beyond the securities transaction to subsequent, indirectly related cash transactions to customers.” The District Court also acknowledged that the Southern District of New York has ruled differently on this issue. See Picard v. Katz, 462 B.R. 447 (S.D.N.Y. 2011); Picard v. Greiff et al., No. 11 Civ. 3775, 2012 WL 1505349 (S.D.N.Y. April 30, 2012). The holding in Grede is also difficult to reconcile with such cases as the Second Circuit opinion in Enron3 and the decisions in Quebecor4 and Verizon,5 which take a broader view of what constitutes a transfer “in connection with” a securities contract and is a rare example of a holding determining that a bankruptcy statute is unenforceable as demonstrably at odds with the intent of the drafters. See Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) (noting that where statutory language is plain, “the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms”); see also U.S. v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989) (“The plain meaning of legislation should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’”).
Please note that the District Court’s ruling currently stands in contrast to much of the existing case law regarding § 546(e) and that FCStone is currently appealing the decision to the Seventh Circuit Court of Appeals.
1 Memorandum Opinion and Order, Frederick J. Grede, not individually but as Liquidation Trustee of the Sentinel Liquidation Trust v. FCStone, LLC, Case No. 1:09-cv-00136 (N.D. Ill. Jan. 4, 2013) [Docket No. 182].
2 The Memorandum Opinion and Order also contains analysis, holdings, and rulings with respect to a number of other issues not relevant to the § 546(e) issues discussed herein.
3 In re Enron Creditors Recovery Corp. v. Alfa S.A.B. de C.V., 651 F.3d 329 (2d Cir. 2011).
4 Official Comm. of Unsecured Creditors v. Am. United Life Ins. Co. (In re Quebecor World (USA) Inc.), 453 B.R. 201, 215 (Bankr. S.D.N.Y. 2011) (“[I]t is not necessary to consider the impact of avoidance of a claimed settlement payment on the securities markets.”).
5 U.S. Bank N.A. v. Verizon Communications Inc., No. 3:10-CV-1842 (N.D. Tex. Sept. 14, 2012) (noting that “[m]any courts have expressed reluctance to create an extra-textual exception to Section 546(e)”).


§ 201-2 Adoption of Property Maintenance Code.
§ 201-3 Amendments, additions and deletions.
§ 201-4 Unlawful growth of weeds, grass, and other vegetation.
§ 201-5 Noxious weeds declared a nuisance.
§ 201-6 Notice to owners or occupants.
This article shall be known as the "Property Maintenance Ordinance of the Borough of Waynesboro, Franklin County, Pennsylvania."
A certain document, three copies of which are on file in the office of the Secretary of the Borough of Waynesboro, Franklin County, Pennsylvania, being marked and designated as International Property Maintenance Code 2012, as amended hereafter from time to time and published by the International Code Council, be and is hereby adopted by the Borough of Waynesboro, Franklin County, Pennsylvania for the regulation of buildings and structures. All of the provisions, penalties, conditions and terms of the International Property Maintenance Code 2012, as amended hereafter from time to time and published by the International Code Council, are hereby referred to, adopted and made a part hereof as if fully set out in this article with the additions, insertions, deletions, and changes, prescribed in this article.
101.1 Title. These regulations shall be known as the "Property Maintenance Ordinance of the Borough of Waynesboro," hereinafter referred to as "this article."
103.5. Fees. The fees for services, inspections, and activities performed by the department in carrying out its responsibilities under this article shall be as set forth in the Fee Schedule of the Borough of Waynesboro, adopted by resolution and amended from time to time.
106.3 Prosecution of violation. Any person failing to comply with a notice of violation or order serviced in accordance with Section 107 shall be deemed guilty of a summary offense. If the notice of violation is not complied with, the Code Official may institute the appropriate proceedings at law or in equity to restrain, correct, or abate such violation, or to require the removal or termination of the unlawful occupancy of the structure in violation of the provisions of this article or of the order or direction made pursuant thereto. Any corrective action taken by the authority having jurisdiction over such premises may be charged against the real estate upon which the structure is located and shall be a lien upon such real estate.
106.4 Violation penalties. Any person, firm, or corporation who shall violate any provision of this article shall, upon conviction thereof, be subject to a fine of not more than $1,000 or imprisonment for term not to exceed 30 days, or both at the discretion of the court. Each day that a violation continues shall be deemed a separate offense.
106.6 Administrative search warrants. The Code Official may seek an administrative search warrant to ensure that any property regulated by this Code is in compliance with this Code.
106.7 Violations as public nuisances. Any property regulated by this code that is in violation of this code may be considered a public nuisance and be abatable as such in accordance with 53 P.S. § 46202.
Editor's Note: See now 8 Pa.C.S.A. § 1202.
106.8. Authority to issue ticket for violation. The Code Official or his designee(s) are hereby duly authorized to issue a ticket in a form established by the Borough to any owner violating the provisions of this article. The ticket shall identify the address of the property where the violation exists, as well as the nature of the violation. The ticket may either be handed to an owner or occupant of the property or may be affixed to a door on the property where the violation exists fronting a right-of-way or conspicuously posted on the property. The ticket shall instruct the violator that if the violator reports to the Borough Office and pays to the Borough the sum of $100 within 10 days of the date of issuance of the ticket, then such payment shall save such violator from prosecution by a citation, which prosecution may result in court costs and attorney fees being assessed against the violator in addition to the fine. In any event, if a ticket is not paid in full within 10 days of issuance, the Code Official or his designee(s) shall issue a citation to the violator. Notwithstanding the foregoing, the Code Official or his designee(s) shall have the sole and absolute discretion to issue a citation without first issuing a ticket as provided for herein.
111.3 Notice of meeting. The Board shall meet at its regularly scheduled meeting, notice of which shall be published in accordance with the requirements for publishing public notice of local agency meetings. The Board may also hold special meetings, which meetings shall be held in accordance with the Sunshine Act.
111.4.1 Procedure. The Board shall conduct the public hearing in accordance with the Local Agency Law adopted by the Commonwealth of Pennsylvania.
111.7 Court review. Any person aggrieved by an adjudication of the Board of Appeals who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals by or pursuant to Pennsylvania law.
304.14 Insect screens. During the period from May 1 to August 31, every door, window and other outside opening required for ventilation of habitable rooms, food preparation areas, food service areas or any areas where products to be included or utilized in food for human consumption are processed, manufactured, packaged, or stored, shall be supplied with approved tightly fitting screens of not less than 16 mesh per inch (16 mesh per 25 mm) and every swinging door shall have a self-closing device in good working condition.
602.3 Heat supply. Every owner and operator of any building who rents, leases or lets one or more dwelling units, rooming unit, dormitory or guest room or terms, either expressed or implied, to furnish heat to the occupants thereof shall supply heat of not less than 68° F. during the period from September 1 to May 30.
602.4 Occupiable work spaces. Indoor occupiable work spaces shall be supplied with the heat during the period from September 1 to May 30 to maintain a temperature of not less than 65° F. during the period the spaces are occupied.
It is unlawful for any person, firm, trust, association or corporation owning or occupying any property within the Borough of Waynesboro to permit any weeds, grass or plants other than trees, bushes, flowers, or other ornamental plants, or crops or vegetable plants grown for consumption to grow to a height exceeding 10 inches upon such property in the Borough of Waynesboro, except as expressly exempted herein. Any such plants or weeds exceeding such height are hereby declared to be a nuisance and detrimental to health, safety and general welfare of the community.
Agricultural exemption. Any property of five acres or greater used primarily for the cultivation of crops or the grazing or containment of livestock shall be exempt from this section; however, in the event that the property contains a dwelling unit that is located partially or wholly within 250 feet of the edge of a public cartway, the area between the cartway and the dwelling unit shall comply with this section.
Large vacant lot exception. Any property of five acres or greater that does not house a current structure but is unimproved shall partially be exempted from this section; the property owner shall maintain a buffer 25 feet along the front, side, and rear yards of the property. However, no less than once annually, the grass, weeds, and other vegetation shall be cut to a height of 10 inches or less.
Wooded lot. A wooded lot shall mean a lot on which exists a continuous or near continuous forest canopy of mature trees.
A fully wooded lot which does not house a dwelling unit or business structure is exempt from this section.
A partially wooded portion of a lot shall not be subject to this section, provided the partially wooded portion of the lot constitutes at least 25% of the lot coverage.
It shall be unlawful for any person, firm, trust, association or corporation owning or occupying any property within the Borough of Waynesboro to permit any weeds listed on the noxious weed control list set forth in Title 7, Chapter 110.1 of the Pennsylvania Code, as amended from time to time, to grow or remain upon such property. Any such noxious weeds are hereby declared to be a nuisance.
In the event of a violation of the provisions of §§ 201-4 or 201-5, the Code Enforcement Officer or other designated Borough official may serve a notice either by personal service or by United States mail to the owner or occupant of any premises on which plants or weeds are permitted to grow in violation of the provisions of this article and to demand the abatement of the nuisance and compliance with the provisions of this article within five days from the service of the notice.
Any person, firm, trust, association or corporation ("violator") who shall violate any of the provisions of this article or who shall knowingly or willfully fail to comply therewith, shall upon conviction thereof before any Magisterial District Judge having jurisdiction, be sentenced to pay a fine of no less than $150 and not more than $250, together with costs of prosecution and attorneys' fees. In the event of default of payment of such fine and costs, the violator may be imprisoned for not more than five days.
Notwithstanding Subsection A above, the Code Official or his designee(s) are hereby duly authorized to issue a ticket in a form established by the Borough to any person, firm, or corporation ("violator") violating the provision of this article. The ticket shall identify the address of the property where the violation exists, as well as the nature of the violation. The ticket may either be handed to or mailed certified to the owner or handed to an occupant of the property or may be affixed to a door on the property where the violation exists fronting the right-of-way or conspicuously posted on the property. The ticket shall instruct the violator that if the violator reports to the Borough office and pays to the Borough the sum of $100 within 10 days of the date of issuance of the ticket, then such payment shall save such violator from prosecution by a citation, which prosecution may result in the costs of prosecution and attorneys' fees being assessed against the violator in addition to the fine. In any event, if a ticket is not paid in full within 10 days of issuance, the Code Official or his designee(s) shall issue a citation to the violator. Notwithstanding the foregoing, the Code Official or his designee(s) shall have the sole and absolute discretion to issue a citation in accordance with Subsection A without first issuing a ticket as provided for herein.
Each day during which a violation continues shall be deemed a separate offense.
The provisions of this article are declared to be severable, and if any section, subsection, sentence, clause or part thereof is, for any reason, held to be invalid or to be unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of any remaining sections, subsections, sentences, clauses or part of this article.


text:
Credits and discussion appear below the following excerpts.
Our long-time Associate Judge Sam Taylor of Montgomery Alabama has discovered in the Alabama Archives the diary of Hardy Vickers Wooten. In this diary, Hardy supplies an unusual wealth of genealogical information concerning his parents and other relatives, as well as many anecdotes giving a colorful picture of a boy’s life in rural Georgia around 1820.
Judge Taylor has sent us substantial excerpts from the Diary, both in Hardy’s original handwriting and in typed transcription, and the Alabama Department of Archives and History has kindly granted us permission to reproduce these excerpts in our Quarterly. Readers wishing to examine the complete Diary may do so at the Department’s Reference Division, 624 Washington Avenue, Montgomery Alabama.
We begin with a transcription of the first four pages of the first four pages of the Diary, and also reproduce the original first page, showing Hardy’s excellent handwriting and his obvious intention to give an orderly account of his life. In fact, these early pages read more like an autobiography than a mere diary.
I was born on the 15th of December A. D. 1813, in the County of Burke, and State of Georgia. My father’s name was Eli Wooten, who when a young man emigrated to Georgia from North Carolina, induced I suppose by the greater promise of the former place, to one like him, who was destined to procure a living by the work of his hands. Concerning my father’s family in N. C. I know but little, having seen but few of them, yet judging, from what I do know, I suppose they were generally poor, honest, & respectable people. Two of his brothers came to Georgia with him; Hardy & David, the former procured for himself a pretty large family & died about the year 1817. The latter went to Alabama, & died single about the year 1824.
My mother’s name was Jerusha Vickers. She was the daughter of John Vickers, a revolutionary whig, who after the war emigrated from Virginia to Georgia, and settled in the County before mentioned. My grandfather Vickers had many sons and daughters (to wit) James, Hardy, Nathan, Jonathan, Mary, Celia, Elizabeth, Winney, Jerusha, Rachael, & Nancy. Of most of these, of course I have nothing to say. I will only record, that so far as I know, all of them, but one, lived to a good old age, and raised respectable families. This one, (Nancy) died early after her marriage.
John Vickers raised a Company during the Revolutionary War, of which he became Captain and fought through the war.
It will be perceived, that I had an uncle on each side named HARDY, so I being the first son of my parents, it is but natural that I should be named HARDY VICKERS WOOTEN.
In 1816 I had a brother born, who, for his father, was named Eli. It was I believe in the early part of this year that my Grandparents Vickers died, their deaths being not far distant from each other. In 1817, my parents moved to another place further out from the Ogeechee river. All of the family were very sickly, and I had my share, indeed I was so near dead at one time that my shroud was prepared.
In 1818, my father bought a tract of Land on the road from Louisville to Savannah, to which he moved, and on which the family remained after his death. It was during the early part of this year that I first commenced going to school. At first my father hired me with 6 ¼ cents, but such was the fondness which I soon contracted for it, that, in a few days my mother wishing to carry me to a tailor, (as I had got to be a “little man”) had to give me another “thrip” to stay from school. I continued at school for about 4 months, in that year, during that time I passed nearly through Webster’s spelling book. Our school was in a little pole cabin near the corner of an old field, and the school master was an old Scotchman named Bolling. He frequently came to school drunk, as was the practice of many schoolmasters in those days. . . .
No other memorable event in my history occurred during that year.
3 weeks with pleurisy, and died on the 28th January. . . .[clinical description of his condition. ED] By the time of his death, my father had procured a comfortable competence for the support of his family, being however, somewhat in debt it took some time struggling to pay off without parting with any of the estate, which was eventually done. My father left his estate to my mother during her life or widowhood, and she by extraordinary management & industry, kept it all together until her death, paying off the debts my father left unsettled, by the proceeds of the estate. My father died, as I learn from unimpeachable sources, without an enemy on earth. On the 9th of March I had another brother born, who was named James David, for his Uncle on each side. He was blest with health and grew up. My mother superintended her farm herself this year and saved a good crop.
The foregoing excerpts contain most of Hardy’s statements concerning his own parentage and relatives.
From the Diary and other records, we now summarize the main events of Hardy’s life.
1822-He refers in the Diary to his principle playmates. . . cousins Joel Wooten and James V. Jones. Note that this Joel Wooten was son of Hardy’s uncle Hardy Wooten.
Hardy V. then attended the Augusta High School for Boys, and in October 1833 entered Augusta Medical College, from which he graduated with honors. He then studied medicine further at the University of Pennsylvania in Philadelphia.
Following his graduation, he moved to Lowndesboro Alabama, where he practised medicine for some 20 years, and where he still maintained residence at the time of his death 9 July 1856, although he actually died in Marysville TN.
He married Charlotte Rochelle 24 Jan 1841 in Lowndesboro. Of their five children, only one survived to have issue, the third child Ella, reported to have married Joseph Mark Howard. The other children, all died early, were Garvin, Rochelle, Ida, and Zoe.
In 1851, Hardy accepted a teaching position at the Memphis medical college, but after three years was forced by ill health to retire in 1854, when he returned to live in Lowndes County Alabama until his death. His wife Charlotte lived on until 1885.
We should note that some of the data given above are from a biographic sketch of Hardy in Thomas McAdory Owen, HISTORY OF ALABAMA AND DICTIONARY OF ALABAMA BIOGRAPHY, Vol. IV pp 1807-1808. This is an old work reprinted 1978 in Spartanburg SC. The sketch has several serious errors, and should be used with caution.
For example, Owen gives Hardy’s mother as Ruth Vickers, while Hardy himself says her name was JERUSHA. Georgia records made during her lifetime show JERUSHA or sometimes JERESA, but not RUTH. Owen also states that Hardy’s wife Charlotte was great-granddaughter of a Huguenot George Rochelle, who escaped from France after the Edict of Nantes. This is patently incorrect. The Edict of Nantes was issued in 1598, providing for TOLERANCE of the Huguenots, not persecution. Owen (or his informant) probably should have said the Revocation of the Edict of Nantes, which took place in 1688 and set off a wave of persecution of French protestants.
On the basis of Hardy’s statements in the first four pages of his Diary, there can be no doubt as to his Wooten ancestry. He is a descendant of Thomas and Jane Watton of Castor, Northamptonshire, England, whose son Thomas was baptized in Castor in 1612 and emigrated to Virginia sometime before June 1639.
This Thomas acquired land in Isle of Wight County Virginia in 1645, and about 1649 married Sara the widow of his friend and neighbor Arthur Wood. Thomas and Sara had only one son Richard, who lived his whole life in Isle of Wight, married Joyce, and had two sons Thomas and Richard II. It was this second Richard Wootten who married Lucy Council and had certainly sons Richard III and William, almost certainly a son John, and probably also a son James.
It was the son William, born after 1710, who married Ann (probably Bryant) and moved south to North Carolina, where we find records of him in Northampton County by 1743, in Johnston County 1750-1755, and then for good in Edgecombe County in 1756.
All statements made above are fully documented by records presented in our Special Study No. I, THE WOOTTONS OF ISLE OF WIGHT COUNTY VIRGINIA.
William and his wife Ann had only four sons who have been reliably documented: Amos, James, Joel, and Joshua. William’s deed of gift of 513 acres to his son Amos is in Edgecombe DB E p 255, made 13 Jan 1783. A similar deed to his son Joel for 40 acres is in Edgecombe DB 6 p 430, made 26 Feb 1791.
On 19 Jan 1797, Amos’ sons Eli and Hardy Wootten witness a deed from James Wootten to Joel Wootten for 150 acres (Edgecombe DB 8 p 665). The same day, Joel deeds 225 acres to Edward Cobb (DB 8 p 701). These are Joel’s last transactions in Edgecombe; he next turns u in Burke County GA. This is also Hardy’s last appearance in Edgecombe for some years; he too next turns up in Burke County GA.
Eli Wootten, however, is still found in Edgecombe 8 Jan 1799, when he witnesses a deed from Hardy Norville to Keton Everette involving land adjoining and formerly belonging to Amos Wooten (Edgecombe DB 10 p 73). At this point, Eli too disappears from Edgecombe to surface in Burke County GA.
This certainly suggests that Eli, Hardy, and their Uncle Joel planned this move to Georgia together. Joel moved even further south by 1805, when he is shown as drawing two blanks in the First Georgia Land Lottery and as residing in Montgomery County.
Eli and Hardy are both shown as residing in Burke County in 1805, when Eli drew one blank and Hardy two blanks in the same Lottery.
In the Second Georgia Land Lottery, drawings in 1807, Hardy, residing in Burke, won 202 ½ acres in Wilkinson County, but there is no record that he ever moved to Wilkinson.
Meanwhile, back in Edgecombe County NC, Amos Wooten, the father of Eli and Hardy, died before 4 April 1812, when his son and executor Stephen reported inventory of Amos' estate. In his will, Amos had left a large portion of his estate to his wife Priscilla for her lifetime, without specifying how it was to be divided after her death.
The heirs therefore, in February 1813, petitioned the Edgecombe Court to appoint commissioners to divide the lands amongst them. This petition is on behalf of all the heirs in Edgecombe at that time, plus two additional heirs Hardy and Eli Wootten residents of Georgia. We reproduce the first page of this petition, since it names ALL of Amos’ children, including his daughters and their husbands.
The Court duly appointed Commissioners as requested, and the division was made 23 Nov 1813, as entered in Edgecombe Deed Book 15 p 37. A total of 1153 acres on both sides of Autrey’s Creek (now Otter) was accordingly divided among the 13 heirs, with Lot no. 3 being 81 acres to Ely Wooten, and Lot no. 10 of 86 acres to Hardy Woooten (here erroneously entered as “Henry”).
Lee same date (DB 15 p 208). The previous day, 31 March 1815, Hardy sold his portion to his brother Stephen Wootten (DB 15 p 232).
Amos’ widow Priscilla died before 6 March 1815, when her son Stephen was appointed to administer her estate. The sale of her property brought in money which on 11 April 1817 was divided equally among the 13 heirs: William Wootten, Absalom Wootten, Hardy Wootten, Eli Wootten, Jesse Wootten, Stephen Wootten, Ephraim Wootten, Amos Wootten, David Wootten, Ann Edwards, Winney Cobb, Eliza Edwards, and Milley Corbitt.
It appears Eli and Hardy received their shares of this money by giving their powers of attorney, since we find no record of their making another trip from Burke County GA. It seems possible that Eli used his share to buy land in 1818, as indicated by Hardy V. in his Diary. Eli’s death is given by his son Hardy V. as 29 Jan 1819, so he did not have much time to enjoy his new land.
Eli’s brother Hardy also died before 1820 (around 1817 according to the Diary), and we find their deaths reflected in the 1820 Census for Burke County (Roll 8 pp 32-33). Here we find living quite close together two widows.
On page 32, 11th on page, is JERUSA WOOTON, with males 3 under 10, and females 3 under 10, 1 10-16, 1 16-26, and 1 over 45 (herself), with 10 slaves. Matching this household to Hardy V’s account, we can identify the three boys under 10 as James David b. 9 March 1819, Eli b. 1816, and Hardy V. himself b. 1813. According to Hardy V’s account, the two girls older than Hardy are Martha and Elizabeth, who married John and Simeon Lodge. We are not yet able to identify his younger sisters.
On page 33, 3rd on page, is MOURNIN WOOTON, with males 1 under 10, and females 1 under 10, 2 10-16, 2 16-26, and 1 over 45 (herself), with 13 slaves.
As there are no other Wootons in Burke, there seems no doubt that Mournin is widow of Hardy Wooten, brother of Eli and son of Amos. The one male under 10 in Mournin’s household consequently must be the favorite playmate described by Hardy V. as his cousin Joel. We have not yet found the names of the 5 younger females in Mournin’s household.
We have already learned from Hardy V’s own words how he grew up, studied medicine, and moved to Alabama, but let’s follow him and his playmate cousin Joel through the US Census.
Orphans”. These are obviously the four children of Jerusha Wooten as identified above in the 1820 Census. Remember that at that time, children were described as orphans if their father died, even if their mother was still alive.
There is another Wooten winner residing in Burke County, a David Wooten, who wins 490 acres in Irwin County. Let us recall that on page 1 of his Diary, Hardy V. states that TWO of his father’s brothers came to Georgia with him, Hardy and David. Hardy V. also says that HIS brother James David, born in 1816, was named for TWO uncles (James Vickers and David Wooten). We may conclude, then, that this David Wooten was Amos Wooten’s youngest son, shown in the Edgecombe estate records cited above. Our diarist Hardy says David went to Alabama and died single about 1824.
The 4th Georgia Land Lottery, drawn in 1821, again shows a Wootten winner residing in Burke. This time, it is Juresa Wootten, obviously Jerusha, whoo wins 202 ½ acres in Henry County.
The Wooten luck continues in the 5th Georgia Land Lottery, where Mourning Wooten widow residing in Burke wins 202 ½ acres in Muscogee County in 1827.
We should point out that a considerable proportion of the winners in these lotteries never occupied their prize lands, but instead sold their claims to land speculators.
In 1830, both Jerusa nd Mourning are still close together, in fact shown as adjoining, in Burke County (Roll 16, p 126).
JERUSA WOOTTEN, 10th on page, with males 2 10-15, females 1 40-50 (herself), 5 slaves. From Hardy V’s statements, it appears that the 2 males are Hardy himself and his brother James David who was “blest” with good health. The brother Eli has apparently died, or is living elsewhere. The older sisters have married and left home; the younger ones probably died, since Hardy describes the family as being generally sickly.
MOURNING WOOTTEN, 11th on page, with males 1 15-20, 1 70-80; females 1 15-20, 1 20-30, 1 40-50, 16 slaves. The one son is still obviously Joel, the old man may be Mourning’s father. Note the discrepancy in Mourning’s age, which is off her 1820 age by at least 5 years.
This brings us to the point where Hardy V. was attending the high school in Augusta. In 1832, he drew in the 7th Georgia Land Lottery, known as the GOLD LOTTERY gold had been found in the foothills and mountains of north Georgia where these lands were located. Single white males 18 or over were eligible to draw. Hardy won 40 acres in Section 2 of the old and very large Cherokee County, District 15 Lot no. 446, which would place it in either the new smaller Cherokee County on in Cobb County.
Legal disputes, involving the Cherokee Indians, the US Supreme Court, and the State of Georgia, caused a delay of years in processing these grants, in some cases to well after 1840. Consequently, it seems likely that Hardy either sold his rights to the grant or let them lapse, because he was in Philadelphia studying medicine in the late 1830s, and was in Lowndes County Alabama already by 1840, as we shall now show.
By 1840, we find both Hardy V and his playmate Joel have left home. In Lowndes County Alabama (Roll 6 p 220), we find H. V. WOOTON 3rd on page, with a one-man household of himself age 20-30.
In Meriwether County GA, (Roll 46 p 111) we find JOEL WOOTEN, with males 1 under 5, 1 20-30 (himself); females 1 under 5, 1 20-30.
At this point, we can identify all members of Joel’s household. Joel himself was born 31 Aug 1811 in Burke County GA, making him about 1 ½ years older than his playmate Hardy V. Joel left his mother’s home around 1836, and married Nancy Hurlie Roberts in Meriwether County 18 Dec 1836. They named their first daughter Frances MORNING Wooten, born 1 Oct 1837, the girl under 5 shown above. Their second child was named Thomas HARDY Wooten, born 26 April 1840, in time to be the boy under 5 shown above. Note that the middle names of these children are the names of Joel’s parents Hardy and Mourning.
This SC is obviously erroneous, since Hardy states in the very first line of his Diary that he was born in Burke County GA.
Gavin Wooton 8, Rochell Wooton 6, Ellen Wooton 4, Ida Wooton 3, Zoe Wooton 1, all these born Alabama.
This completes our census history of Hardy V. Wooton, who died in 1856.
Hardy’s cousin Joel is still in Meriwether County GA in 1850 (Roll 77 p 316), as follows, all born GA.
Note that Joel’s first son Thomas Hardy Wooten is missing; he is reported to have died in infancy 21 Oct 1841.
Joel died in Lafayette County 13 Nov 1867.
While we have as yet no known member descended from Hardy Vickers Wooten, two of our Associates are descendants of his cousin-playmate Joel. One is Col. Edward D. Wooten of Sarasota Florida, who is grandson of Joel’s son Hiram Roberts Wooten and Emma Waldrip. The other, whose finding of Hardy’s Diary made this article possible, is Judge Sam Taylor of Montgomery Alabama, who is great grandson of Joel’s daughter Nancy Hurlie Wooten and her husband Thomas Benton Waldrip of Lafayette County Mississippi.
According to family records gathered by Judge Taylor, three other children of Joel married and had issue: Emily Jane who married Frank Hays, William Augustus Joel who married Georgianna Waldrip and Martha Ellen who married Martin Stewart.
There must consequently be many more descendants of Joel living today. We should be glad to hear from them.
Thought you might find the Vickers information included in the attached article of interest (it's saved in Microsoft Word, but you should be able to open it in any wordprocessing program). I descend from Martha (Patsy) Wooten, sister of Hardy Vickers Wooten. The organization which published this article no longer exists and the publications are only available at certain state libraries and archives. I haven't been able to travel to Montgomery and view this Diary in person. Maybe one day, I will be able to do so. Thank you for your work on the Vickers lines. Hopefully this information will help others in their search.
The organization has since disbanded and the editor of the publication, Richard C. Wooten (who was also a genealogist) has died. Please let me know when you do your next update on the Vickers page. It is a really nice presentation of research. Keep up the good work.
I can't thank you enough for the diary information you sent to me! This source was completely unknown to me, and advances my own knowledge of my Vickers line by leaps and bounds. I am 99.99% sure my James Vickers b. 1799-1800 was born in Burke Co. and is definitely tied in to the Vickers of Burke Co., Ga, but have not been able to document his daddy which seems likely to be James Vickers, bro. of Hardy and Nathan. As you know, it is difficult to research early Burke Co., as a result of the (oh too typical) burning of the courthouse records.
Jonathan, Mary, Celia, Elizabeth, Winney, Jerusha, Rachael, & Nancy."
is the first to my knowledge and research to document the brothers and sisters of Hardy and Nathan Vickers (i.e. children of John Vickers). This information will most likely make it possible for many Vickers descendants to document their lines. The Burke Co., GA connection has been the most difficult to piece together. I have been running into brick walls on my line for about 20 years because of the scarcity of Burke Co. records. This may represent a breakthrough we've been waiting for! THANK-YOU!!!
1. Harriett Jones, born July 1810, married Willis B. May, in 1832.
2. James Vickers Jones, born April 1812, married Mary Elizabeth Hurt, of Atlanta, on September 28, 1843.
3. Melvina Jones, born March 1814, married Dr. Thomas Parsons on August 1, 1838.
4. Joseph Jones, no record.
5. Sarah Ann Jones, born in 1820 and died young.
6. Henry Wilkes Jones, born September 1824, married Martha Ann Aikens on May 2, 1848.
7. William Beeman Jones, born February 27, 1827, married Sidney Ann Elizabeth Sapp on April 5, 1849. (Most of the information in this article is from the records of C.D. Hollingsworth, Sr.).
The info on the Wooten family is really interesting and helps to tie so many things together with the Vickers family.
Of the above children, it is likely that Abram, Jacob, John, Joshua, Patience, Joseph, Elizabeth, and Stephen are the ones who came to GA following their father's death in 1784/1785. Some, it seems, lingered a little longer in SC on their way down to GA, but all appeared to have made it to GA. Benjamin appeared to have gotten himself murdered in GA about 1786. One of George's daughters married a Samuel Harrell and moved to the Charleston Dist. of SC. They were living there in 1798. John is the one in Burke Co., GA that died about 1816, and the father of Hardy and Nathan, among others. The Stokes and Whites are close neigbors of the Burke Co. Vickers, and Jacob and Joseph appear on and off early in this migration pattern. I have no doubt that Hatcher is the son of one of these brothers, named after his uncle William Hatcher. At one point I was thinking Joshua was Hatcher's daddy but I have since gotten a copy of his will, which shows he isn't.
I wonder if perhaps a generation got "squashed" as Grandfather John was actually born in Edgecombe Co., NC and "his" father John being born in Isle of Wight, VA and moving to Edgecombe Co., NC as a youth. The migration pattern matches exactly the Wooten line in date and location!
(F515022-0048-1553752) She married Lawrence Armstrong Folsom 1796 in Burke.
(8417107-33-1395803) Lawrence Armstrong Folsom was born about 1775 in Burke Co., GA. His parents, William Folsom and Sally Armstrong were married 1774 in Burke Co., GA.
Cynthia Folsom, b. 1808 in Burke Co or Nov. 8 1815 Pulaski Co. or 1818 in Lowndes Co.
Well, I am definitely excited about this info that ties together the brothers and sisters! Thank-you so much! If you don't mind I would like to post the info on my next update of the Vickers Family Resource Page. I will put your name and email address as a reference for the file, unless you would rather I not. Let me know.

matches: V. V. V. V. V. V. V. V. V. V. V. V.


This post was written by Jeff O’Brien for Simply Residential Property Management Magazine.
People who work in the areas of renting, selling, lending or insuring homes are subject to federal, state and sometimes local fair housing and other anti-discrimination laws. Recently, the U.S. Department of Housing and Urban Development (“HUD”) released guidance indicating that landlords who turn down tenants based upon their criminal records may violate the Fair Housing Act. This article focuses on residential landlords’ fair housing responsibilities and tenants’ rights under the Fair Housing Act, particularly in regards to the statute’s prohibitions against discrimination.
or handicap. 42 U.S.C. § 3604(a), (f). (The words “disability” and “handicap” are used interchangeably.) “Familial status” refers to households with a child or children under 18 or a person who is pregnant or in the process of securing legal custody of a child under 18.
The Act broadly prohibits the refusal to sell, rent, or negotiate for sale or rental, or acts that “otherwise make unavailable or deny” dwellings. It also specifically prohibits making statements indicating preferences (§ 3604(c)) or discriminating in terms, conditions, privileges, services or facilities (§ 3604(b)). It applies to “dwellings,” including vacant land offered for sale or lease for dwellings. The Act has been held to apply to mobile home parks, homeless shelters, and summer homes. See United States v. Columbus Country Club, 915 F.2d 877 (3d Cir. 1990), cert. denied, 501 U.S. 1205 (1991); accord, Hovsons, Inc. v. Township of Brick, 89 F.3d 1096 (3d Cir. 1996) (nursing home). The U.S. Supreme Court has held unanimously that the language of the Act is “broad and inclusive,” implementing a “policy that Congress considered to be of the highest priority,” requiring “a generous construction” of the statute. Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209, 211, 212 (1972).
It is important to note that intent is not required to establish liability under the Act. Prima facie liability can be established by a showing of disparate effect. The courts of appeals have adopted different standards for determining disparate effect. The Eighth Circuit (which includes the U.S. District Court for the District of Minnesota) set forth its test to establish a prima facie FHA disparate impact claim in the case of Oti Kaga, Inc. v. South Dakota Housing Dev. Auth, 342 F.3d 871 (8th Cir. 2003). Under the Oti Kaga test, the plaintiff must demonstrate that the objected-to-action results in, or can be predicted to result in, a disparate impact upon a protected class compared to a relevant population as a whole. Oti Kaga, 342 F.3d at 883; see also Charleston Housing Auth. v. U.S. Department of Agriculture, 419 F.3d 729, 740-41 (8th Cir. 2005). Under the second step of the disparate impact burden shifting analysis, the defendant must demonstrate that the proposed action has a “manifest relationship” to the legitimate non-discriminatory policy objectives and “is justifiable on the ground it is necessary to” the attainment of these objectives. Oti Kaga, 342 F.3d at 883; Charleston Housing Auth., 419 F.3d at 741.
The courts recognize two kinds of discriminatory effect: greater adverse impact on one group than another or harm to the community by the perpetuation of segregation. (Arlington Heights II, 558 F.2d at 1290) Greater adverse impact need not mean that more minorities have been affected; if a larger percentage of minorities has been affected, the standard is satisfied.
In some situations there is direct evidence of intentional discrimination. Where there is no direct evidence, a prima facie case may be established by indirect evidence. Some ways of proving intent by indirect evidence are set out by the Supreme Court in Arlington Heights I (Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977)). Another, formulaic way to establish a prima facie case is by showing that: (1) the claimant is a member of a protected class; (2) the claimant applied for and was qualified to rent or buy the property at issue; (3) the claimant was rejected; and (4) the housing opportunity remained available.
After the prima facie case of intentional discrimination has been established, the defendant must produce a legitimate, nondiscriminatory reason for its action. If the defendant does so, the burden of production and persuasion shifts to the plaintiff to show that the proffered reason is pretextual.
42 U.S.C. § 3613 authorizes a court to award actual and punitive damages, equitable relief, and, to a prevailing party, a reasonable attorney’s fee and costs. In an administrative proceeding, HUD or the state agency may award actual damages, a civil penalty, and injunctive or other equitable relief. 42 U.S.C.§ 3612(g). HUD is authorized to award damages for emotional distress as well as other forms of loss.
history based restrictions on access to housing are likely disproportionately to burden African Americans under the “disparate impact” analysis.
HUD’s recently released guidance should give landlords pause as to their exposure to discrimination claims under the Fair Housing Act. In close cases, consultation with an attorney knowledgeable about the Act is a must.
Jeffrey C. O’Brien is an attorney with the Minneapolis-based law firm of Lommen Abdo, P.A. voice of the “Legal Minute on Minnesota Home Talk, heard Saturdays on 1500 ESPN, and a Minnesota State Bar Association Board Certified Real Property Specialist. He can be reached at (612) 336-9317 or via email at jobrien@lommen.com.
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