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.