New Report Reveals Defects in California’s Ombudsman Program

A report prepared for the California Senate Rules Committee and released November 3, 2009 reveals disturbing problems in California’s Ombudsmen Program, which is tasked with being Californians’ eyes and ears in nursing homes throughout the state. The report, titled California’s Elder Abuse Investigators: Ombudsmen Shackled by Conflicting Laws and Duties, was requested by the Senate Committee on Aging and Long-Term Care and can be read in its entirety here.

According to the report, many cases of nursing home abuse and neglect are likely going unnoticed in California. About a year ago, the ombudsman program budget was cut by nearly half. Additionally, the report finds that ombudsmen have their hands tied in many cases and find themselves unable to report abuse and neglect that they know is occurring.

Conflicting Duties

California’s ombudsmen were originally intended to be a watchdog presence in nursing homes, advocating for elderly people and making regular unannounced visits to nursing homes throughout the state. But their role has changed. They have become responsible for handling investigations of abuse and neglect inside nursing homes, and this aspect of their work conflicts with their original role, which involved collaborating with nursing homes and acting as a liaison between residents and management. Additionally, investigations are complex and time-consuming, so most ombudsmen no longer have time to make regular nursing home visits, establish any sort of regular presence, or provide advocacy services.

Budget Cuts

Time has been made even more precious by last year’s major state budget cut, which left the ombudsman program with about half of the budget it previously had. As a result, ombudsmen now do not have sufficient time to handle investigations for all the allegations of abuse they learn about. The report found that, since the budget cut, ombudsmen are forwarding 44 percent fewer complaints to outside agencies for enforcement.

The report also revealed that in many areas, as a result of the lack of funding, volunteers are being relied upon to handle investigations of abuse and neglect. Serious questions remain as to whether relying on volunteers to handle a complex law enforcement related task is ethical or beneficial.

Confidentiality Laws

Beyond the conflicting duties and lack of funding, the report finds that ombudsmen have their hands tied when they try to pursue alleged abuse in many cases. Ombudsmen must forward legitimate complaints to outside agencies that can prosecute crimes and enforce laws that protect the elderly. But federal law prohibits them from forwarding a complaint without a release of identity from the person who made the complaint. Of course, many individuals making complaints refuse to release their names because they fear retaliation. The report found that three quarters of people who made complaints refused to release their identities.

Additionally, California is currently reviewing its interpretation of federal law as requiring that witnesses and alleged abuse perpetrators consent to allowing the ombudsmen forward a complaint to an outside agency.

Experienced elder care lawyers

If you believe that you or a loved one has been a victim of elder abuse or neglect, contact The Law Offices of James R. Gillen for a confidential consultation.

State and Federal Nursing Home Bills Seek to Protect Residents' Rights

California Nursing Home Bill

The California State Legislature approved California Assembly Bill 215 on September 10, 2009. AB 215, which was introduced by Assembly Members Mike Feuer and Cameron Smyth, requires long-term health care facilities that accept Medicare and Medicaid to post the federal Centers for Medicare and Medicaid (CMS) star rating in a visible and public location.

The significance of this bill is that it would enable families who are seeking a nursing home for their loved ones to have greater information about nursing facilities. Posting these federal ratings in prominent locations also increase the chances of families being able to make informed decisions about which nursing home to select.

CMS has a five-star quality rating system to assist consumers, families, and caregivers in deciding on the appropriate nursing home facility. A nursing home with five stars is considered to be of above-average quality, while a nursing home with one star is considered to be of below-average quality. There is one overall rating for each nursing home and separate ratings for each of the following:

• Health Inspections: This rating consists of information from the last three years of onsite inspections, where inspectors determine whether the nursing home has met Medicare's minimum quality requirements.
• Staffing: This rating contains information regarding the number of hours of care on average that is provided to each nursing home resident each day by nursing staff.
• Quality Measures: The quality measures rating has information on how well the nursing homes are caring for their residents' physical and medical needs.

Other sources of information that individuals have for information on the quality of care at nursing homes include California Nursing Home Search, Medicare, and California Advocates for Nursing Home Reform.

Federal Nursing Home Bill

A federal bill that is being considered by Congress is the Fairness in Nursing Home Arbitration Act of 2009, which was reintroduced by Representative Linda Sanchez and Senators Mel Martinez and Herb Kohl. This bill would invalidate mandatory arbitration agreements that nursing homes and assisted living facilities usually have residents sign upon admission. These arbitration clauses, however, are usually buried amidst several pages of admission papers, which make it difficult for residents to see and understand. Further, these arbitration clauses leave residents no other choice but to agree to the arbitration clause or seek another facility.

Arbitration is distinct from trials in that it is an out-of-court method of resolving disputes. It is a form of alternative dispute resolution, where an impartial third party, an "arbitrator," hears the evidence brought by the parties. After hearing the evidence, the arbitrator makes a decision that can be binding or non-binding, depending on the type of arbitration the parties agree upon. This bill would not prohibit the use of arbitration to resolve disputes by nursing homes, but it would enable residents and their representative to voluntarily select arbitration as an option, and not as a mandate.

Laws concerning nursing homes and nursing home residents' rights are constantly changing both on a state and federal level. It is important to have an experienced and knowledgeable lawyer represent you or your family member if you suspect nursing home abuse or neglect.

For an experienced and skilled lawyer who can safeguard your rights, contact The Law Offices of James R. Gillen for a confidential consultation.

Bill Set to Require Nursing Homes to Post Quality Ratings

A bill introduced into the legislature this year could lead to quality improvements at the state's nursing homes and other long-term care facilities. At the very least, consumers would have another tool to assist them in the nursing home decision-making process.

Assembly Bill 215, by Feuer and Smyth, would require long-term health care facilities to post the overall facility rating given by the federal Centers for Medicare and Medicaid Services (CMS). If enacted, the CMS rating must be posted in an area accessible and visible to members of the public, employee break rooms, and dining halls, activity halls or other communal areas for the residents.

CMS initiated its five-star rating for nursing homes in December 2008. A five star rating equates to above average quality compared to other nursing homes in the state, while a one-star rating means the facility is operating below average yet still meeting Medicare's minimum requirements. Factors considered in determining the star rating are:

• The results of health inspections
• Quality measures, such severe pain and mobility of residents
• Staffing levels of nurses and nursing assistants

The main purpose of this bill is to provide information on facility quality to consumers making the initial decision to place a loved one into a nursing home. If enacted, this bill could also have the effect of urging nursing homes to improve in order to achieve a higher star rating, since the rating will be prominent and reported to the state regularly.

Not surprisingly, the nursing home and hospital lobbies are opposed to this bill, arguing that the CMS rating is arbitrary, inaccurate and erroneous. Even if AB 215 does not pass, nursing home residents and families still have many other resources for information on nursing home quality, including the Health Facility Consumer Information System of the Department of Public Health, California Advocates for Nursing Home Reform, the California Health Care Foundation's California Nursing Home Search, and Healthgrades.com.

Originally introduced on February 3, 2009, AB 215 passed the Assembly Health and Appropriations committees and moved to the Senate, where it passed out of the Senate Health committee and was referred to Senate Appropriations. While not an appropriations measure, the bill will have a fiscal impact due to posting and reporting costs and a provision that subjects failure to post to a penalty, with the fines going into the Health Facilities Citation Penalties Account. The last action on this bill was on June 30, when it was placed for its third reading in the Senate.

Selection of a nursing home for a family member is an emotional decision with critical consequences for the patient and loved ones. Unfortunately, hardly any nursing homes in the state are in full compliance with federal standards of care, with one-third having been cited for serious or potentially life-threatening problems. If you believe that you or a loved one has suffered abuse or neglect in a nursing home, contact The Law Offices of James R. Gillen for a confidential consultation.

AB 392 Restores Partial Funding to Long-Term Care Ombudsman Program

According to the California Chronicle, California Assembly Bill (AB) 392 was signed by Governor Schwarzenegger on August 6, 2009 and took effect immediately. AB 392 restores a portion--$1.6 million--of the $3.8 million to the Long-Term Care Ombudsman Program that was cut by the Governor in 2008.

Role of Long-Term Care Ombudsman Program
California's Long-Term Care Ombudsman Program, which operates under the California Department of Aging, is responsible for investigating and resolving complaints that are made by or on behalf of residents of long-term care facilities. Long-term care facilities include nursing homes, residential care facilities for the elderly, and assisted living facilities. Additionally, the Ombudsman Program advocates for resident rights in the long-term care system and its laws and policies.

With the population of adults over the age of 60 likely to rise dramatically to 6.5 million by 2010 and up to 9 million in 2020, the Ombudsman Program plays a critical role in protecting the safety of nursing home residents. Local Ombudsman programs make unannounced, monitored visits to long-term care facilities and respond to reports of allegations of nursing home abuse and neglect. Without Ombudsman programs, these long-term care facilities would only be reviewed only once each year by governmental inspectors.

AB 392
Back in May 2009, AB 392 was under consideration by the California State Legislature. The bill was proposed by Assembly Members Mike Feuer and Dave Jones after the Governor vetoed $3.9 million in funding for local Ombudsman programs, which was approximately half of the Ombudsman Programs' funding. The cuts led to staff lay offs and a reduction of services, such as monitoring facilities and responding to complaints.

The funding for AB 392 will come from penalties that long-term care facilities have paid from failing to comply with federal laws that protect long-term care facility residents. The new funding will be available for use by Ombudsman programs for the rest of the 2009-2010 fiscal year.

Types of Nursing Home Abuse or Neglect
Abuse of the elderly can range in conduct from verbal abuse to violent, physical abuse. Elder abuse can take a variety of different forms, such as:

• Physical abuse, including hitting, inappropriate use of restraints, and inappropriate use of drugs on the elderly individual;
• Neglect or abandonment is one of the most common forms of elder abuse, where caregivers fail to provide proper care and supervision of elderly individuals;
• Verbal abuse, including yelling, threats, humiliation, or habitual blaming;
• Sexual abuse, including sexual contact with the elderly person without his or her consent; and
• Financial abuse, including misusing the elderly individual's checks, credit cards, or bank accounts.

Nursing home abuse or neglect is a very serious matter that necessitates immediate action and attention by family members and friends of the elderly individual. If you suspect that you or a loved one has been the victim of nursing home abuse or neglect, contact The Law Offices of James R. Gillen to schedule a confidential consultation.

Baby Boomers to Cause Explosion in Senior Services – Is Government Prepared?

The Civil Grand Jury for the County of Los Angeles recently completed its final report for 2008-09. The nearly 500-page report revealed the results of a year’s worth of investigations focused primarily on children and the elderly. Over 100 pages of the report revealed an approaching “senior tsunami,” referring to the tidal wave of people approaching their senior years, and the ability of elder abuse prevention programs and services to meet the needs.

Adult Protective Services (APS) in Los Angeles County receives around 2,000 new referrals each month. The eye-opening grand jury report found that APS suffers from a lack of coordination and oversight among the many agencies and programs under its authority. According to the Grand Jury, APS does not even know if its efforts are helping seniors, due to a combination of weak oversight of county agencies and lack of a good system to track data and analyze staff performance and program outcomes.

It may also be astonishing to learn that there are no specific legal requirements for APS social worker training. While APS does indeed have a training curriculum for its social workers, it has no way of knowing how many agencies are actually conducting the training or how many social workers have in fact completed the training that is available.

Another distressing finding is the lack of resources focused on prevention of abuse. Only a couple of county medical facilities currently have a preventive program in place for the population of seniors most at-risk. Most APS services in fact go toward cases where abuse has already occurred.

Finally, the report found that the county does not have any plan in place to seek additional funding or expand its services to meet the growing elder population, which is expected to more than double from 1 million seniors in 2000 to 2.2 million by 2030.

The senior population is growing at a time when state budgets are shrinking, placing an ever-increasing demand public funds. Proper management and oversight of nursing homes and other facilities will continue to pose a challenge to cash-strapped agencies, increasing the likelihood that abuse or neglect may occur and go unnoticed. If you suspect that you or a loved one has been the victim of nursing home abuse or neglect, contact The Law Offices of James R. Gillen to schedule a confidential consultation and for immediate assistance.

Pending California Bills Propose Funding for Senior Ombudsman Services

Two current bills under consideration by the legislature could increase the funding available for senior ombudsman services provided by the state. These bills follow the recent budget cuts from earlier this year that deeply affected the funding for these same services, as reported by the Times-Herald.

Senior ombudsman, who operate under the direction of the California Department of Aging, focus on investigating and resolving complaints made by, or on behalf of, individual residents in long-term care facilities. Nursing homes, residential care facilities, and assisted living facilities are all reviewed by ombudsmen. These individuals also pursue resident advocacy in the long-term care system through both legal and policy-oriented avenues. With the state population over 60 years old likely to reach 6.4 million by next year, senior ombudsman will continue to serve an important function in the years to come.

AB 392

AB 392 would restore $1.6 million to the Long-term Care Ombudsman Program to help make up for the $3.8 million the state legislature slashed from its budget this year.

AB 935

AB 935 would collect fines levied in senior home violations cases and direct those funds to local long-term care ombudsman programs. These additional funds would add to existing funding levels to allow the programs to prevent senior neglect and abuse.

Affect of the Existing Cuts

As a result of the budget cuts laid down by the state earlier this year, most senior ombudsman programs throughout the state had to face major staff reductions, while simultaneously being unable to recruit or train volunteers to bolster the programs. Since the cuts, ombudsman programs have had to use their limited resources to focus on enforcement issues, meanwhile neglecting advocacy, education and training on behalf of seniors. Even enforcement concerns have received reduced attention. Ombudsman programs have had to reduce visits to long-term care facilities considerably, changing regular visits from weekly to monthly, or monthly visits to yearly visits, in some cases.

Advocates for the senior ombudsman programs argue that the economic crisis that currently embroils the nation and California has increased the threat of elder abuse. Statistics are not available for senior abuse for the current year. For the previous two years, there were 93 criminal filings for senior abuse in 2007 and 74 filings in 2008, according to the California Attorney General. To maintain the state’s ability to track and research claims of elder abuse, advocates for the senior ombudsman program hope that the two bills being considered by the legislature receive approval.

Thank you for reading my blog. If you have a question or comment, feel free to respond to this posting, but keep in mind your response will not be confidential. If you or a loved one has been the victim of abuse, negligence, or neglect by a nursing home, contact an experienced elder law attorney to find out your legal rights and options. Contact the Law Offices of James R. Gillen to discuss your matter confidentially.

Rise in Patient-on-Patient Assaults in Nursing Homes

Recently, there have been alarming reports of nursing home assaults committed by criminal offenders and mentally ill residents in nursing homes. A non-profit nursing home resident's advocacy group located in Oklahoma, called A Perfect Cause, discovered that 1,600 registered sex offenders were residing in nursing homes. Additionally, the group found that there were more than 60 rapes, murders, and assaults committed by criminal offenders in nursing homes.

A Perfect Cause found that over the years nursing homes have become places where those with mental illnesses, drug addictions, and criminal offenders reside. For example, according to numbers provided by the Centers for Medicare and Medicaid Services, about 125,000 young and middle-aged adults with serious mental illnesses were living in U.S. nursing homes in 2008.

There has been a rise of patient-on-patient assaults in nursing homes. Specifically, according to the federal Administration on Aging, in 2000 the number of patient-on-patient assaults was 5,000, and rose to 5,515 in 2003. Furthermore, in 2003 the number of patient-on-patient sexual assaults increased by 51 percent to 1,302. Due to this increase in violence, families of patients who have been assaulted have initiated civil lawsuits.

Some experts believe the rise is attributed to improper supervision of elderly patients and patients with mental illnesses at nursing homes. Another reason for the rise is the intermixing of young, mentally ill patients with elderly, defenseless patients.

According to the Associated Press, more mentally ill patients are placed in nursing homes because of the closure of some state mental health institutions, and the availability of beds at nursing homes.

Violent Assaults at Nursing Facilities
The Associated Press described several incidents of assault occurring at nursing home facilities. One incident involved a 77-year-old man who died at a nursing home in South Toledo, Ohio, about 10 days after his roommate, who was 62-years-old, beat him with a bathroom towel bar. The roommate was later found to be incompetent to stand trial.

In 2003, a 23-year-old Connecticut woman, residing at a Hartford nursing home, was arrested for starting a fire that killed 16 patients at the nursing home. The woman had multiple sclerosis, and suffered from dementia and depression. She was later placed in a mental institution after she was found that she lacked the mental capacity to stand trial.


Nursing Home Bill of Rights
The Nursing Home Bill of Rights (NHPBR), which is a federal law regulating the kind of care nursing home patients should receive from nursing homes that receive Medicare or Medicaid, mandates that before a mentally ill patient can be placed in a nursing facility, he or she must be screened by a state mental health authority. The state mental health authority must evaluate the patient and determine if the patient needs the level of care that a nursing home provides.

After this determination is made, a decision must be made as to whether the patient needs specialized care, such as certain therapies and activities for the patient. If specialized care is required, then a team consisting of a doctor and mental health professionals must develop a plan of care.

To protect the health and safety of the other nursing home residents, nursing home administrators must follow the NHPBR regulations and implement them accordingly. If you suspect that your loved one has been injured because of the actions of another patient, and the nursing facility is not providing adequate care or supervision, contact me today for a consultation.

Use of Chemical Restraints in Nursing Homes

Recently, three residents died at a skilled nursing facility operated by the Kern Valley Healthcare District. The skilled nursing center has 74 beds and provides 24-hour nursing care. According to a criminal complaint filed by the California Attorney General’s Office against three high-level managers of the facility, the three residents who died, and about 20 other residents, were administered psychotropic drugs for staff convenience by the center’s one-time medical director, the former nursing director, and the former chief pharmacist.

All three individuals have been charged with elder abuse. It is alleged that the nursing director tried to drug almost all of the facility's patients, with the exception of the most compliant residents, and the medical director is alleged to have permitted the nursing director’s orders for medication. The chief pharmacist claimed that she complied with the medication requests because the nursing director had experience working at psychiatric hospitals.

In this case, the individuals used psychotropic drugs, such as Zyprexa, Depakote, and Risperdal, as a means of chemically restraining these nursing home victims. Chemical restraints are defined as the use of psychoactive drugs to treat behavioral symptoms, instead of offering proper care. The residents who were improperly given these drugs suffered multiple side effects, including severe weight loss, slurred speech, loss of cognition, tremors, and psychosis.

One of the residents who had died due to the improper administration of these drugs, was Fannie May Brinkley, who was in her nineties, most likely would have lived for another year or two. She died as a result of the anti-seizure drug Depakote she was forced to take, and neglect of the nursing staff.

The three individuals who administered these drugs are all facing criminal charges, including administering shots by force and without consent, and charges of assault with a deadly weapon. There are also strict federal laws that prohibit this type of behavior by nursing staff.

Federal Law Prohibiting Use of Chemical Restraints

The Nursing Home Patients Bill of Rights (NHPBR) is a federal law that delineates the kind of care nursing home patients, residing in nursing homes that receive Medicare or Medicaid, must abide by. The NHPBR states under 42 Code of Federal Regulations 483.13, subsection (a) that nursing center residents have “the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident's medical symptoms.”

The NHPBR has provisions that mandate facility caregivers to provide an environment that promotes the resident’s quality of life. It also has provisions requiring facilities to have sufficient nursing staff to maintain the highest possible physical and psychosocial well-being of each resident. Additionally, there is a provision regulating pharmacists. Under 42 CFR 483.60, pharmacists must record all drugs that are ordered and a licensed pharmacist must review the resident’s drug regimen at least once a month. If there are any discrepancies, the pharmacist has to report such discrepancies to the attending physician or director of nursing.

The improper use of both chemical and physical restraints against nursing home residents is both unethical and criminally prohibited. They should only be used when a doctor has deemed them as necessary for providing the resident proper care. If someone you know and care about has been improperly restrained and injury has resulted, contact an elder abuse lawyer immediately.

Resident Dies from Burn Injuries Suffered at a California Nursing Facility

On March 31, 2008, a 74 year-old female resident of the Lemon Grove Care and Rehabilitation Center near San Diego, California caught fire while smoking at the gazebo area of the facility. Ten days later, the woman died of second and third degree burns she suffered to her face, head, chest, hands, and arms.

According to an investigative report by the California Department of Public Health, the woman had been with two other residents that day, smoking in an area the center had designated for smoking. The report alleged that staff members were not supervising these residents. Sitting on her electric scooter, the woman had been trying to light her cigarette, while placing her jacket over her head to block the wind. As she did so, her jacket caught on fire.


Lemon Grove Care and Rehabilitation Center
Lemon Grove is a skilled nursing facility with 158 beds, located in San Diego County. It provides a full range of nursing services, including physical, occupational, speech, and intravenous therapies. The facility helps patients recover from serious illnesses, such as stroke and pneumonia, and other major injuries. It provides these services for residents who need either long term or short-term care.

Before this recent tragedy, Lemon Grove had minor citations, one in 2005 and two in 2008. However, because the present incident resulted in a resident’s death, the California Department of Public Health issued an “AA” citation. In its report, the Department cited the center for violating 42 CFR 483.25(h)(2) of the Federal Code.

Quality of Care Nursing Residents Must Receive
Subsection 483.25 of the Federal Code designates the quality of care residents must receive to ensure residents have the highest practicable physical, mental, and psychosocial well-being. Specifically, 42 CFR 483.25, subsection (h) states, “The facility must ensure that (1) the resident environment remains as free of accident hazards as is possible; and (2) each resident receives adequate supervision and assistance devices to prevent accidents.”

“AA” Citation is the Most Severe Citation for Nursing Facilities
As a result of the “AA” citation, the center was fined $80,000 by the Department of Public Health. “AA” citations are the most serious violations a facility can receive under state law. They are issued when a resident has died at the facility and the facility’s conduct was the direct cause of the death. These citations can result in fines ranging from $25,000 to $100,000. If a facility receives two “AA” citations in less than two years, the Department of Public Health automatically starts the revocation process of a facility’s license.

In addition to “AA” citations, the Department can issue “A” citations when the facility’s violations create imminent danger or the likelihood of death or serious harm to patients. These fines range from $2,000 to $20,000. A lesser citation are “B” citations, which are issued for violations that have a direct connection to health, safety, or security, but do not meet the level of “A” or “AA” citations.

If you know of someone who is not being properly cared for at a nursing facility, it is important that you contact a nursing home abuse lawyer in California to protect his or her rights. If you have a question or comment, please respond to this posting, but please remember that your responses will not be confidential. You can also call or e-mail, if you would like to discuss the matter in confidence. Thank you for reading our blog.

Medicare Nursing Home Five Star Quality Rating System

The Centers for Medicare and Medicaid Services created a system for comparing nursing homes throughout the United States. The ratings are accessible through a Nursing Home Compare search tool on the Centers for Medicare and Medicaid Services website. The ratings are determined by three categories:

• Health Inspections
• Staffing
• Quality
  

These areas of data are then ranked with a star rating, which is then combined for the overall rating for a particular nursing home.

Health inspections involve an analysis of the major aspects of care offered by a nursing home. The rating is also based on visits by objective state surveyors, which are checked by federal surveyors. One limitation of this rating is that each state has a different inspection process and different licensing requirements, so a comparison of ratings between nursing homes from different states may not be accurate.

Staffing ratings look at the number of residents compared to the total staff and the number of nurses that are members of the staff. The data used to form this rating is self reported and only reflects nursing home staffing from a two week period of time during the year.

Quality measures how a nursing home rates on ten aspects of care, including how the facility helps residents dress and eat, efforts to prevent and treat skin ulcers, or steps taken to deal with the flu. The data used to form this rating is based on self reported information.

Overall, not-for-profit nursing homes received higher ratings than for-profit nursing homes, according to USA Today.

How to Use the Rating System
The rating system provides some preliminary information on a nursing home, but the ratings may not provide an entirely accurate picture of a particular facility. As a result, while going through the process of selecting a nursing home, it is highly recommended that you visit each nursing home that you are considering.

In many cases, selecting a nursing home in close proximity to family and friends has a large affect on a resident’s quality of life in the nursing home. The rating system may provide a starting point to determine which nursing homes in your area meet your basic criteria for a nursing home facility.

The Importance of Researching a Nursing Home
Complaints against California nursing homes to the California Department of Public Health rose from 5,742 in 2004 to 6,950 in 2008. This increase in complaints shows that nursing home residents and their loved ones are not entirely satisfied with the level of care provided by nursing homes state-wide. This increase in complaints indicates the importance of carefully selecting a nursing home, and the new rating system serves as a tool to help in this process.

Thanks for reading my blog. If you have a comment or question, please feel free to reply to this posting, or send me an e-mail. If you suspect that a loved one has been the victim of nursing home abuse or theft, contact me to schedule a confidential consultation and for immediate assistance.