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.

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.