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.

California Nursing Homes’ Use of Restraints Highest in United States

Federal Nursing Home Reform Act of 1987
The Federal Nursing Home Reform Act of 1987 mandates that nursing homes receiving Medicare or Medicaid must adhere to the Nursing Home Patients Bill of Rights (NHPBR). One of the rights enumerated in the NHPBR is the right to be free from unreasonable restraints. 42 CFR 483.13, subsection (a) of the Federal Code states that nursing home 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.” To view the entire statute, click the following link: http://a257.g.akamaitech.net/7/257/2422/16nov20071500/edocket.access.gpo.gov/cfr_2007/octqtr/42cfr483.13.htm

Nursing Home Restraints Since 1987
Since the passing of the Federal Nursing Home Reform Act of 1987, overall use of restraints in nursing homes has declined. From the period from 2002 through 2006, their use has decreased almost 40%. The Federal Agency for Healthcare Research and Quality reported that in 2002, 9.7% of nursing home patients across the United States were repeatedly restrained compared to 5.9% in 2006. Some states did not fare very well; California nursing homes were among the worst offenders. The same study found that 13.4% of patients in California nursing homes were repeatedly restrained. To read the entire study, please click the following link: http://www.ahrq.gov/news/press/pr2008/snapshot07pr.htm

Of course, not all nursing homes in California have such a dismal record. Some are better than others. However, you may not have much to determine which nursing home is best for you or a loved one since you may have as little as 24 hours after a stay in the hospital to choose the right home. To help find the right place, the AARP has published a list of ten essential tips when choosing a nursing home. To view the list, click the following link: http://www.aarpmagazine.org/health/embedded_sb.html

Even if you do your due diligence when selecting a home, your loved one may still be exposed to potential risk of restraint related injury. It is important that you make regular visits to make sure things are going well.

Restraint Injuries
Sometimes a nursing home will restrain a resident to prevent a fall and to prevent injury to the resident. Bed rails are often used to keep residents from rolling out of bed and other restraints may be used to keep the resident seated in a chair. Many times these restraints are used out of laziness and often result in injury to the resident. Nursing homes have been known to use belt restraints, vest restraints, mittens, and wrist restraints.

Bed rails and other mechanical restraints such as straps and tie-downs are designed to limit mobility. If used incorrectly or when not warranted, they can be the cause strangulation and death. Misused mechanical restraints can also cause bed sores (pressure ulcers), incontinence, and confusion. A restrained resident might also suffer from loss of strength, emotional distress and depression.

Nursing home restraints should only be used if a doctor determines that they are necessary. They should not be used to cut costs at the nursing home. If loved one has been unreasonably restrained and has suffered injuries, you should contact a lawyer immediately to protect his or her rights.

Assisted Living Facilities vs. Skilled Nursing Homes

The term “assisted living” became popular in the 1980’s and is used within the retirement industry to refer to programs available in many retirement residences, senior apartment facilities and residential care facilities in California. Many retirement residences recognized a growing need for personal care programs. These types of programs allow residents to remain independent in their apartment. The cost of living in an assisted living facility is about $3200 a month on average, as compared to approximately $5,000 a month for a semi-private room in a nursing home.

Residents in assisted living facilities require less care than residents of nursing homes. Typically, a residence in an assisted living facility will require some assistance with one or more of the following: help with bathing or dressing, assistance with taking medication, assistance with toileting or incontinence, and special dietary requirements. Assisted living facilities are not permitted to provide skilled nursing services, such as diabetic insulin injections or colostomy care, although they may contract with an outside provider for these services.

Assisted living facilities are licensed by the Community Care Division of the California Department of Social Services http://ccld.ca.gov/. Nursing homes are licensed by the California Department of Health Services http://www.dhcs.ca.gov/Pages/default.aspx and are given a higher level of scrutiny by the licensing authority since they are considered a health care facility.

As the population ages, the popularity of assisted living facilities has grown. Claims against assisted living facilities are also increasing. Some assisted living facilities have been accused of holding on to residents in declining health that should have been referred to nursing home facilities or a hospital. Unfortunately, one challenge that plaintiffs face is collecting on a judgment; assisted living facilities are often uninsured.

Thanks for reading. Feel free to leave a comment or reply to this posting, but keep in mind that your response will not be confidential. If you have a question or need assistance regarding a possible claim involving an assisted living facility or nursing home, contact me for help and immediate assistance.

Sexual Abuse in Nursing Homes

A nightshift nurse at an Ohio nursing home has been charged with raping a blind and partially paralyzed patient and abusing at least 13 others. John Riems allegedly confided to authorities that he has abused almost 100 patients since the 1980’s, but could only provide specific information on about two dozen victims. Riems has worked at 13 different hospitals and nursing homes in Ohio.

Other nurses at the facility noted that Riems tended to spend a great deal of time behind closed doors with patients. He would sometimes spend up to an hour in a patient’s room, alone, with the door closed. When a colleague asked him why he was in a patient’s room for so long, he reportedly answered, “None of your business.”

Some nurses commented that patients appeared to be fearful of Riems, who was known to have an explosive temper. One colleague reported to supervisors that Riems was verbally abusive to patients and would swear and throw things when angry. Despite these warning signs, Riems was allowed to have unfettered, unsupervised access to patients.

Riems selected his victims carefully, choosing the most defenseless victims who were unable to communicate that the abuse was occurring. In addition to raping the blind and partially paralyzed man, police believe he has 14 victims, both male and female, at the nursing home where he worked from 2002 to the time of his arrest. Police have acknowledged that there are ten other “suspected” victims of Riem who reside at other facilities where Riems worked, although they declined to identify the location of these other suspected victims.

How can you protect your loved one from becoming the victim of sexual abuse in a nursing home? Here are some pointers:

1. Visit frequently and don’t announce when you are coming.
2. When you visit, observe the staff and see if your loved one appears to be apprehensive or fearful of any staff members.
3. Talk to the staff and let them know that you are actively involved in the care of your loved one.
4. Trust your instincts; if a staff member’s behavior strikes you as being odd, alert the appropriate supervisors.
5. Watch for physical signs of abuse, including:

• Bruising around breasts, thighs or genitals
• Bleeding from the vagina or anus
• Presence of a sexually transmitted disease
• Pain or discomfort in sitting
• Infection, irritation or itching in the genital area

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 is being physically or sexually abused in a nursing home, contact me for help and immediate assistance.

Identifying Financial Elder Abuse

It’s often been said that elder abuse is a pervasive problem without any boundaries; it transcends all economic and social lines. The recent case of Brooke Astor, the New York socialite and philanthropist, illustrates that elder abuse can occur even to the wealthiest members of society. Elder abuse can take many forms; there is physical abuse, neglect, and financial abuse. In the Astor case, there are allegations of both neglect and financial abuse by her only son, Anthony Marshall. Astor was reportedly living in squalor while her son allegedly sold her assets without her knowledge or consent.

Unfortunately, it is often those closest to an elderly person who engage in the abuse, especially where financial abuse is concerned. It is not uncommon for a caregiver or relative to take advantage of an elderly person’s lack of capacity. Seniors are often easy victims of scams, fraud, identity theft and other forms of financial abuse.

Tips On How to Protect Yourself from Financial Abuse

• Cancel credit cards you are not using
• Don’t allow friends or family members to use your credit cards or ATM card to purchase things for you. Whenever possible, give them cash or reimburse them with a check.
• Don’t keep your ATM pin number in your wallet. If you must write it down, keep it in a secure place.
• Balance your checkbook every month, and report any suspicious activity to Adult Protective Services at 1(877) 4-R-SENIORS or to your local police department.

When to Suspect Financial Abuse

• When you notice unusual activity on a bank account, including unexplained withdrawals
• When you see recent changes to estate planning documents, including changes to a Will or Trust, or creation of new Powers of Attorney
• When bills begin to pile up when the elderly person should have the ability to pay them
• When the elder lacks basic necessities, such as clothing and grooming items, when the elder should have the ability to pay for these items
• When a friend, family member or caretaker asks for a loan, but doesn’t sign a promissory note or other documentation evidencing the loan, or asks for the loan to be kept “secret” or “confidential”.

Financial abuse of an elder is often tied to neglect and/or physical abuse. The elder is often subjected to physical abuse or threats in order to intimidate the elder into complying with the abuser’s demands for money or assets. Once the elder becomes the victim of financial abuse, the elder’s needs are often neglected as the elder’s income and assets are diverted to the abuser. If you suspect that someone you love is the victim of elder abuse, contact me for immediate assistance.