Two Shocking Cases of Elder Abuse in Northern California

Two serious cases of elder abuse made headlines in the San Francisco Bay Area this past week. One involved the deliberate smothering of a patient by a caregiver in a South San Francisco nursing home, and the other involved financial elder abuse by a caregiver who stole money from patients. It is unfortunate that the very people who are charged with the care of elders are the same people who are abusing them. Elders are extremely vulnerable, and these incidences of abuse are not isolated occurrences. According to the Los Angeles Examiner, one out of 20 elders in California will be a victim of neglect or physical, financial, or psychological abuse this year.

Nursing Home Assistant Intentionally Smothers Patient

On March 22, Maximo Hong Fajardo Jr., a 37 year old certified nursing home assistant, intentionally smothered 87 year-old Barbara McIver with a pillow, in full view of other patients and staff. Ms. McIver was a patient at the Convalescent Center Mission Street in Daly City, south of San Francisco. Fajardo fled the care facility, carjacking a car and crashing it in his attempt to flee. He is currently held on $10 million bail.

Nursing Home Administrator Accused of Financial Elder Abuse

Across the San Francisco Bay in Berkeley, California, Concepcion "Connie" Pinco Giron, former assistant administrator of the Elmwood Nursing and Rehabilitation Center, is accused of telling her supervisors that a patient at the home, Carnell Williams, was being transferred to another care facility. In fact, Giron moved Williams into her own home, and proceeded to cash Williams’ pension and social security checks. Giron is also accused of opening bank accounts at Citibank for five other patients and transferring money from those accounts into her own account. She wrote checks to herself from the patients’ accounts and used their ATM cards.

Giron has been charged with kidnapping to commit another crime, false imprisonment, elder abuse, and six counts of theft from elder or dependent adults by a caretaker. She is currently being held in lieu of $365,000 bail.

Thanks 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 attorney to find out your legal rights and options. You can also contact me to discuss your matter confidentially.

Incidents of Financial Elder Abuse Are on the Rise as California’s Baby Boomer Generation Begins to Age

Financial elder abuse is a growing concern among California lawmakers, financial regulatory institutions, and elder abuse prevention groups. A study released last year by the MetLife Mature Market Institute, the National Committee for the Prevention of Elder Abuse, and the Center for Gerontology at Virginia Polytechnic Institute and State University, reported an annual loss of $2.6 billion due to incidents of financial elder abuse, which many experts believe are underreported.

California news articles are constantly reporting on incidents of financial elder abuse committed by caregivers and family members, as well as by financial institutions and their employees. Below are just a few recent examples:

• A February 4, 2010 San Francisco Chronicle article reported the theft of $61,000 from a 96-year-old woman by a Bank of America customer service representative who convinced the woman to designate him as her “personal banker,” allowing him to access her accounts.


• A January 14, 2010 Santa Maria Times article reported that the Santa Barbara County Sheriff’s Department arrested a caregiver who was suspected of stealing over $10,000 from an 88-year-old woman by cashing her unused checks.


• A January 10, 2010 Investment News article reported that $1.6 million was awarded to a 95-year-old man by a Financial Industry Regulatory Authority (FINRA) arbitration panel after it found that a Beverly Hills investment firm, along with two of its long-time brokers, convinced the man to make overly risky investments and engaged in self-dealing. (FINRA is an independent regulatory agency, empowered by the federal government to oversee securities and brokerage firms and protect investors.)
  

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

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.