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.

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.

New Law to Help Elders against Theft and Abuse in Nursing Homes

Theft in nursing homes is more common than one might think. In the past year, the California Department of Public Health received over 250 reports of theft or loss of resident property. Unfortunately, many other items, most notably heirloom jewelry, cash, checkbooks, and other valuables are lost or stolen, and these thefts rarely get reported to the authorities. Neither the state nor any counties keep statistics on stolen items in nursing homes.

Additionally, because of the age and poor health of many nursing home residents, they are unaware that their valuables are missing until a relative visits and notices. Patients with Alzheimer’s disease do not even notice that rings are missing from their hands. Adding to the problem is that as many as 60 percent of nursing home residents have no family or friends to visit them to make sure their belongings are not being stolen. Also, nursing homes prefer to address reports of theft internally without reporting them to the authorities because if it leaks that their staff is stealing from residents, their business could suffer. These thefts can also affect private caretakers; it is even legal for felons to get jobs taking care of elders.

However, on January 1, 2009, a new California law will take effect with the hopes that it will encourage people to report such thefts. The state law will require local ombudsmen and police to report cases of known or suspected theft and abuse immediately to the District Attorney’s office. However, the law does not require nursing homes themselves to report the thefts.

Whether this law will be effective is unclear. As discussed in my previous blog entry, the state’s ombudsman program has been cut drastically in the 2008-2009 California budget. This may mean that the ombudsman offices will not have the resources or staff they need to carefully address complaints resulting from the new reporting law.

Elders’ families can do several things to try to prevent their valuables from being stolen:

• Store valuables for elders at your home or in your safe deposit box
• Visit often and watch your relatives’ possessions closely
• Limit how much cash the elder has at any time
• If you notice your relative is missing something, report it to the nursing home immediately; if the property is not found within 24 hours, report it to the police.

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.

Budget Cuts May Endanger California Ombudsman Program

California Nursing Home Ombudsman Program
California’s long-term care ombudsman program investigates and settles complaints regarding elder care abuse in nursing homes and other long-term care facilities. Thirty-five county and nonprofit agencies throughout the state carry out the ombudsman work. State-certified volunteers do much of the work by visiting nursing homes and attempting to resolve the thousands of complaints.

The California ombudsman program began in 1978 with a federal law that requires each state to have such a program. The ombudsman program is especially necessary, considering that nursing home and elder care abuse is on the rise and the fact that as many as 60 percent of elderly in nursing homes and other long-term care facilities have no family or friends to visit them and make sure they are being treated well. The program is so widely-used that between July 1, 2007 and June 30, 2008, the Riverside County office alone received almost 2,400 complaints about suspected nursing home abuse or neglect.

2008-2009 California Budget Cut Impacts Ombudsman Program
When the 2008-2009 California budget was signed on September 23, 2008, many people in the elder care industry were shocked to see that $3.8 million – or about half its annual budget – was cut from the ombudsman program. This will ensure that at least one of the offices will close and will put many, if not most, others in grave danger of closure or severely stress the resources of the remaining offices. Even the California Association of Health Facilities, the professional organization for nursing home and residential care facilities owners, was surprised by this budget cut.

Only days before this cut was passed, a September 18, 2008 report by the Inspector General of the Department of Health and Human Services singled out California as being one of the worst nursing home offenders in the country. No less than 99 percent of California’s nursing homes were found to be violating federal standards in some way.

Moreover, the cut only affects the ombudsman program, whose sole purpose is to assist nursing home and long-term care patients and their families where there have been incidents of neglect or abuse. Other nursing home funding, such as that through the Medi-Cal program, actually increased under this budget cut. However, funding from Medi-Cal is not required to be spent on staffing or patient care and is therefore unlikely to go toward ensuring patients are treated properly.

Possible Effects of the Budget Cut on Nursing Home Residents
In addition to the potential closing of at least one, and possibly more, of the regional ombudsman program offices, the greatest concern is what will happen to already vulnerable nursing home patients around the state. California Advocates for Nursing Home Reform (CANHR) , the statewide advocacy group for nursing home patients, believes this budget cut could result in an increase in the number of unreported and unresolved nursing home incidents.

Governor Schwarzenegger’s office believes that California’s Department of Public Health inspectors, who are in charge of monitoring and inspecting nursing homes, will sufficiently attend to patients’ needs. However, considering the amount of complaints the ombudsman offices currently receive, and the fact that the budget cut has already forced many offices to cut their staff significantly, it remains to be seen whether the state inspectors will be able to adequately address the needs of nursing home patients.

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 elder abuse, contact me to schedule a confidential consultation and for immediate assistance.

Elder Abuse Occurs Even in Luxury Care Facilities

Overall, between 2005 and 2006, the California Office of the Attorney General reports that there were 108 criminal filings and 60 convictions for elder abuse, and 25 civil complaints filed and 22 civil judgments for elder abuse. For both criminal civil cases, $4,806,652 was awarded in between 2005 and 2006 in restitution and penalties.

The families of those in nursing homes must continually observe their loved ones to prevent abuse. The California Attorney General’s Crime and Violence Prevention Center provides some indicators for possible abuse:

• Physical indicators include unexplained bruises or welts, poor skin condition or poor skin hygiene, untreated medical conditions, the presence of cuts, pinch marks, skin tears, lacerations or puncture wounds, or the existence of bruises or welts in various stages of healing.


• Behavior indicators include confusion, withdrawal, fear, or anger.


• Social indicators interaction or activity within the family that is restricted or prohibited, or an elder not being given the opportunity to speak for him or herself or see others without the care-giver present.


• Financial indicators include a lack of amenities, such as TV, personal grooming items, or appropriate clothing.
  

More information on the warning signs for elder abuse can be found at http://www.safestate.org/, the California Attorney General’s Crime and Violence Prevention Center.

Elder abuse can occur even in luxury care facilities. When Elmore Kittower, an 80 year-old occupant of Silverado Senior Living in Calabasas, California, passed away, his death was not initially deemed suspicious. Mr. Kittower was paying $75,000 a year to reside at Silverado Senior Living. Shortly after his death, Mr. Kittower’s widow, Rita, was contacted by a woman that claimed to be a Silverado employee. The woman told Mrs. Kittower that her husband had been beaten and suffocated by another employee at the nursing home. This led to a Los Angeles County Sheriff’s Department investigation and a finding that the trauma to Mr. Kittower’s body was similar to that of an assault.

Since Mr. Kittower’s death, the investigation of possible elder abuse at Silverado expanded. Authorities examined the possible abuse of three other residents of the nursing home. In an autopsy on Mr. Kittower, it was revealed that he died due to a lung blood clot. The report also stated that “blunt force trauma” was a factor in his death. Mr. Kittower’s body also had multiple bruises and showed evidence of a partially healed rib fracture. Another resident alleged to have been harmed is the mother of Keith Stubbs. Stubbs learned from authorities that his mother’s chest was jumped on. Stubbs said he did not suspect that his mother had been abused. In retrospect, Stubbs noted that he started seeing bruises on his mother’s arms and neck, and that he recently noticed that his mother recoiled when she was touched by visiting loved ones, something she had not done previously. The other possible victims are Silverado residents, Richard McDonough and Robert Turner. Authorities have said that Turner was punched in the stomach.

A former Silverado caregiver, Cesar Ulloa, has been implicated in the investigation. Ulloa has been charged with four counts of elder abuse and one count of torture. Ulloa was arraigned this week in Los Angeles Superior Court. He entered a not guilty plea.

Silverado spokesman Mark Mostow said that the company screens its potential employees and conducts background checks. He also said that all employees undergo an elder-abuse reporting program conducted by the California Department of Justice. Mostow indicated that Ulloa, who Silverado fired last year, appeared to have a friendly and outgoing demeanor and that families of the residents of Silverado received him well.

The Silverado case illustrates that even expensive facilities are not immune from elderly abuse. If you have a loved one in a nursing home or care facility, visit frequently and be alert for signs of possible abuse.

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 elder abuse, contact me to schedule a confidential consultation and for immediate assistance.

New Elder Abuse Laws Signed by Governor Schwarzenegger

California Governor Arnold Schwarzenegger signed into law this week several bills aimed at curbing elder abuse and providing greater protection for the elderly in the State of California. Here is a brief summary of the new laws:

AB 2100 requires ombudspersons at long-term care facilities to report cases of alleged or suspected physical abuse, including sexual abuse, and financial abuse to the local district attorney’s office. The purpose of this bill is to encourage the reporting of suspected cases of abuse.

SB 1140 extends the statute of limitations for a claim for damages due to financial elder abuse to four years from the plaintiff discovers, or should have discovered, the abuse. Presently, the statute of limitations on such a claim is three years. In addition, the definition of financial abuse of an elder is expanded to include the action of taking, appropriating, obtaining or retaining, real or personal property by undue influence.

SB 1136 makes it a misdemeanor to charge an “unconscionable fee” to qualify a person for a public social service benefit, including Medi-Cal.

AB 225 extends the protection of a restraining order to include named family members, household members and conservators of the elder abuse victim.

AB 2149 regulates the use of “expertise” designations and requires advisors to take training courses before holding themselves out as having specialized knowledge regarding the financial needs of seniors. The bill is designed to prevent the elderly from falling prey to unscrupulous financial advisors who claim to be experts on financial planning for the elderly.

Also signed into law were two bills targeting nursing home and residential care facilities. AB 2370 requires residential care facilities to post information regarding recent rate increases on an annual basis, and also requires the disclosure of rate increase information to new residents, and, upon request, to prospective residents. AB 749 requires residential care facilities to have a comprehensive emergency plan by March 1, 2009 that provides that the facility will be self-reliant if necessary for at least 72 hours. The plan must be available to residents and emergency personnel.

The new laws are designed to protect the elderly in the event of a disaster and protect them from financial elder abuse.

Thanks for reading my blog. If you suspect that a loved one has been the victim of elder abuse, contact me to schedule a confidential consultation and for immediate assistance.

Too Many Patients, Not Enough Staff

A $2 million settlement on a class-action lawsuit filed against the corporate owner of nursing homes in Southern California was announced this week. The lawsuit was filed on behalf of residents at one of the facilities owned by Brea-based Sun Mar Healthcare, Inc., which owns 17 nursing homes. The lawsuit alleged that Sun Mar defrauded residents and violated health and safety codes. Sun Mar officials allegedly promised residents a level of care they knew they couldn’t provide, given their level of staffing. A spokesman from the California Advocates for Nursing Home Reform stated that nursing homes are not precluded from taking on more patients than they can adequately provide for, a practice the organization deems tantamount to fraud.

Inspection and investigation records obtained during the course of the lawsuit indicated that one of Sun Mar’s homes had 77 health and safety violations from 2004-2008. Nursing home advocates strongly recommend that you thoroughly research a home’s history of health and safety violations with the California Department of Public Health. They also suggest that you ask about the staff to resident ratio. Spend some time observing the staff interaction with residents. Does it appear that call bells and resident requests are responded to in a timely manner? Does there appear to be adequate staffing for the number of residents?

Other observations you should make regarding the staff during your visit include the following:

• Do staff members treat the residents with dignity and respect?
• Do staff members speak directly to the residents, or do they treat them as if they were not present?
• Do staff members respect the privacy of residents? Do they knock before entering?
  Do the nurses and administrators know the residents?
• Is everyone friendly and receptive to questions?
• What languages does the staff speak in addition to English?
• Does the facility conduct background checks on staff prior to hiring?
• Are there therapists on staff or does the facility contract out for therapists?
• Is there a social worker on staff? Full or part-time?
• Are there permanent full-time nurses and nurse assistants (CAN’s) on staff? Or registry nurses and aides?

Keep in mind these are simply some of the observations you will want to note during your visit. Inadequate staffing has a direct impact on the quality of care received. Nursing homes promise to provide a high standard of care, but often fail to do so. Understaffed facilities have higher incidences of pressure sores, falls and other injuries.

Thanks for reading. If you have a question or comment, feel free to reply to this posting, or send me an e-mail. If you suspect a loved one has been harmed by negligence, neglect or abuse in a nursing home, contact me for immediate assistance.

Recent Developments in Elder Law

In my last blog entry I promised to keep readers apprised of any developments with the Fairness in Nursing Home Arbitration Act (the “Act”), which was approved by the House Judiciary Subcommittee on Commercial Law and Administrative Law earlier this week. The Act which would preclude nursing homes from forcing patients to sign an arbitration agreement prior to a dispute. The Act doesn’t preclude binding arbitration as an option in the event of a dispute, but instead requires the decision to be made by both parties after a dispute occurs. A resident cannot be forced to sign an arbitration agreement as a condition to admission to a nursing home or assisted living facility.

Republican members of the committee attempted to modify the bill, by trying to prevent the bill from being retroactive, or by attempting to exclude nursing home physicians. These modifications were rejected by voice voting. The committee’s approval of the Act makes it one step closer to becoming law. I’ll continue to keep you posted on further developments.

In other recent developments in the law regarding elders and nursing homes, the Centers for Medicare and Medicaid Services (CMS) announced last month the implementation of a new rating system for nursing homes. The new system will rate nursing homes on a 5-star scale, similar to the way hotels and restaurants are currently rated by critics, with one star being the lowest rating and five stars the highest possible rating. The purpose of the new system is designed to assist families in determining the best facilities in their area. CMS plans to implement the new system before the end of 2008; the new system will appear on Medicare’s “Nursing Home Compare” Web site.

The new system is a welcome improvement to the “Nursing Home Compare” Web site, which many have criticized as being too difficult to navigate. The Nursing Home Compare Web site has basic staffing information, general findings of inspection reports for the past three years, and a list of quality indicators. Quality indicators include the percentage of residents subject to some form of restraint; percentage of residents with pressure sores; and percentage of residents who have lost too much weight, among other factors. I will keep you updated on the implementation of the new “Nursing Home Compare” site.

Regardless of how a nursing home is rated, you should not allow a rating system to substitute for your own observations and best judgment. It is crucial to personally check out a nursing facility prior to making a decision on whether or not to entrust them with a loved one. Sadly, every day there is a story of nursing home abuse or neglect in the media. This week it was announced that a lawsuit has been filed against a Detroit-area assisted living facility over the death of Vunies High, sister of boxing legend Joe Louis. High died of hypothermia after wandering outside the facility in freezing weather. She was found with her face frozen to ice on the ground.

Thanks for reading my blog. If you have a question or comment, please feel free to post it here. If you have a question or need assistance with a potential claim against a nursing home or assisted living facility, contact me for a confidential consultation and immediate assistance.

Beware of Nursing Home Arbitration Agreements

Deciding on a nursing home facility can be a stressful event. Many patients enter a nursing home following an illness, and may be under duress or under medication at the time of their admission. Most patients fail to scrutinize the lengthy documents they must sign prior to admission, and inadvertently sign away their right to a trial before a jury if something goes wrong. Most nursing homes in California have an arbitration agreement as an attachment to their contracts with a patient. By law, the nursing home is not allowed to include an arbitration agreement in the admission contract or require that a patient sign such an agreement as a condition to entry. However, most patients sign the arbitration attachment without realizing the potential repercussions of their action.

Arbitration is an alternative method of resolving a dispute without going to court. Arbitrators consider federal and state law when resolving a dispute. Advocates of arbitration say it provides a faster resolution and is less expensive for both the nursing home and the resident. Critics of arbitration note that arbitrators are less likely to rule for the plaintiff, and if they do, the awards are generally smaller. Critics also note that since arbitration is confidential, it leads to less accountability on the part of the nursing home.

The federal Fairness in Nursing Home Arbitration Act introduced earlier this year would make arbitration agreements for nursing home patients unenforceable. Consumer advocates including the AARP and the Alzheimer’s Association support the Act. The Act doesn’t preclude binding arbitration as an option in the event of a dispute, but instead requires the decision to be made by both parties after a dispute occurs.

If you or a loved one must enter a nursing home, read all of the admission forms and attachments carefully. If you don’t understand something, consult your attorney prior to signing. Don’t let the facility pressure you into signing something you don’t fully understand. In California, you cannot be forced into signing an arbitration agreement as a condition for admission to a nursing home. You could be signing away your ability to hold the nursing home accountable for improper care.

Thanks for reading my blog. I’ll post an update on the Fairness in Nursing Home Arbitration Act at a later date. If you have a question or need assistance with a possible claim against a nursing home or assisted care facility, contact me for help and immediate assistance.

California Department of Public Health Fines Nursing Homes

The California Department of Public Health (CDPH) issued citations and fines to several nursing homes in April 2008. Nursing homes licensed by California are subject to citations and fines for poor or negligent care. Citations and the fines issued by the CDPH are categorized by class, with Class AA being the most severe. The classes break down in the following manner:

• Class AA: $25,000 to $100,000 fine
• Class A: $2,000 to $20,000 fine
• Class B: $100 to $1,000 fine

The significance and severity of the violation determines the citation class and the amount of the imposed fine. Although several facilities were issued citations, the following three are examples of the most egregious.

Palm Terrace Healthcare and Rehabilitation Center
The Palm Terrace Healthcare and Rehabilitation Center in Laguna Hills was fined $75,000 for actions relating to the death of a resident. Despite observing the resident to be tired and lethargic, the staff allowed her to eat alone in her room. The resident choked on a piece of meat; she was hospitalized and died three days later. At the hospital, it was discovered that the patient had overdosed on morphine despite the lack of a prescription from her physician. The autopsy revealed that there were very high levels of morphine in her blood, and the coroner concluded that she had been dosed over a period of time prior to the choking. The coroner also concluded that there was a high probability that the morphine played a role in her choking. The police homicide office investigated the incident and could not determine who had administered the morphine to the patient. The CDPH determined that Palm Terrace failed to identify the patient’s care needs which resulted in the resident’s death and issued a Class AA citation.

The Springs at the Carlotta in Palm Desert
The Springs at the Carlotta in Palm Desert was fined $100,000 by the California Department of Public Health (CDPH). The Springs was also issued an “AA” citation. The CDPH concluded, after an investigation, that inadequate care led to the death of an 87-year-old resident in June of 2006. It concluded that the Springs failed to “identify the care needs” of the patient “based on an initial and continuing assessment.” This failure by the nursing home “presented an imminent danger” to the patient “and was the direct and proximate cause of death.” The resident had been admitted with a diagnosis of potential constipation (among other things). The facility was supposed to monitor and record the resident's bowel movements. The facility failed to properly monitor the bowel movements. After several days, the resident was vomiting and her abdomen was distended. She was transferred to a hospital where she died that same day of “Acute Peritonitis due to perforated colon due to severe constipation.”

Marysville Care Center
The Marysville Care Center in Yuba City was issued a Class AA citation and a $100,000 fine relating to the death of an 84 year old resident. She had been diagnosed with osteoarthritis, psychosis, and Alzheimer's disease and was totally dependent on the facility for her daily living needs. The CDPH reported that the facility failed to keep the resident “free from accident hazards” by not to putting down the side rails on the resident's bed. These side rails were to be used only when the resident was being turned. The report also indicated that the facility did not use a bed alarm that would notify staff if the resident attempted to get out of bed. The resident was found with her chin resting on the lower part of the bed rail with her feet on the floor. Her head was stuck between the bed rail and the bed. She was unable to free herself and choked to death.

Neglect and Elder Abuse
These three incidents of neglect are all examples of elder abuse. When visiting a loved one at a nursing home, be on the lookout for signs of neglect such as poor hygiene, dirty fingernails, signs of feces or smells of urine, unexplained weight loss, and bedsores. Facilities with staffing problems are especially prone to neglect. Staffing problems lead to high staff turnover and inadequately trained or inexperienced staff.

Thanks for reading. If you have a question or comment, feel free to reply to this posting, or send me an e-mail. If you suspect a nursing home's negligence or neglect has resulted in the injury or death of a loved one, contact me for help and immediate assistance.