Nursing Home Abuse Occurs Even in Highly-Rated Facilities

A recent incident of nursing home abuse in California highlights how important is it for family members of nursing home patients to pay careful attention to their loved one's health. In particular, noting any unexplained bruising, change in medical condition, or change in mood is crucial to discovering any abuse or neglect that might be occurring.

A recent trial verdict awarded $7.75 million in compensatory and punitive damages to a family of Maria Arellano, a 71-year-old nursing home patient who had been severely abused by a nursing home employee. The facility where the victim resided, the Fillmore Convalescence Center, had been awarded a five-star rating from Medicare's Nursing Home Comparison. The fact that the facility received the highest possible rating demonstrates that nursing home abuse can occur in any facility, and family members must always be vigilant in looking for the often subtle signs that abuse is occurring.

Ms. Arellano had previously suffered a stroke that left her unable to verbally communicate. Her family members noticed she had bruises that could not be explained. After nothing was done in response to the family members' report to the facility management, they decided to place a hidden camera next to Ms. Arellano's bed. This revealed egregious abusive behavior, including pulling her by the hair, slapping her, bending her fingers, neck, and wrists, and treating her violently in general. Based on what was shown in the hidden camera video, the family filed a lawsuit and won the large verdict. The nursing home employee also pled no contest to criminal battery charges and is no longer working in the nursing home industry.

While one abusive employee does not necessarily mean that an entire facility is abusive towards its residents, it highlights a very important problem in discovering elder abuse: many victims are incapable of reporting the abuse themselves. This means that it is often up to the resident's family members to visit frequently and monitor their loved ones' health, and we encourage you to frequently check on your loved one and look for anything that might be amiss. If you have noticed a change in your loved one's physical or emotional condition and believe that your loved one might be a victim of elder abuse or neglect, we are here to help. Contact The Casiano Law Firm for a confidential consultation.

Report Finds California’s Long-Term Care Ombudsmen Are Unable to Stop Abuse

According to a new report, many cases of nursing home abuse and neglect are likely going unnoticed in California. The report attributes the problem to recent budget cuts as well as conflicting ombudsman duties and conflicting confidentiality laws.

On November 3, 2009, the California Senate Office of Oversight and Outcomes released the report revealing serious defects in California’s Long-Term Care Ombudsman program. California’s Elder Abuse Investigators: Ombudsmen Shackled by Conflicting Laws and Duties can be viewed here.

California’s ombudsmen were originally charged with advocating for the elderly in nursing homes and generally providing a watchdog presence. Today, their primary task is investigating claims of abuse and neglect within nursing homes. Where they used to collaborate with nursing homes and act as a liaison between management and residents, now they are placed in an adversarial role, which grants them less access to the inner-workings of the nursing homes they cover and makes them less effective advocates. 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.

Unfortunately, ombudsmen also receive more complaints than they are able to investigate. Since last year’s massive state budget cut, the ombudsman program has been left with about half of the budget it previously had. It appears that individual ombudsmen are adjusting to the loss of resources by allowing some allegations of abuse to go uninvestigated. According to the report, ombudsmen forwarded 44 percent fewer complaints to outside agencies for enforcement since the budget was cut.

The report also states that, in many cases, ombudsmen have their hands tied when they try to pursue cases of alleged abuse. Typically, when ombudsmen investigate complaints and find one they believe to be well-founded, they are instructed to forward it to the appropriate outside agency for further investigation, protection, and potential prosecution. But many of these legitimate complaints are not being forwarded. A federal law prohibits ombudsmen from forwarding a complaint without a release of identity from the person who made the complaint. But many of the elderly making complaints refuse to release their names for fear of retaliation within their nursing home. In fact, according to the report, three quarters of people who made complaints refused to release their identities.

Elderly individuals who are subjected to abuse or neglect should not have to keep quiet in order to avoid further harm in the nursing homes where they live. If you or a loved one has been mistreated in a nursing home, contact The Casiano Law Firm for a confidential consultation.

San Diego County Nursing Home Fined for Resident's Death

Fallbrook Hospital District Skilled Nursing Facility, located in San Diego County, has received the most severe penalty under California law that long-term nursing facilities can receive. An investigation by the California Department of Public Health (CDPH) revealed that inadequate care had led to the death of a male nursing home resident last summer.

Fallbrook received an "AA" citation and was fined $90,000 by the CDPH. The CDPH is responsible for issuing citations and fines when nursing homes are found to be providing inadequate or negligent care of their residents. The CDPH has three different categories for citations and fines, with the "AA" citation being the harshest penalty. The categories are as follows:

- Class AA: $25,000 to $100,000 fine

- Class A: $2,000 to $20,000 fine

- Class B: $100 to $1,000 fine

According to CDPH's site, an "AA" citation is defined as "a violation that has been 'determined to have been a direct proximate cause of death of a patient or resident of a long term care facility.'" To enforce an AA citation, the CDPH must prove (1) the violation was a direct proximate cause of death and (2) the death resulted from an occurrence that the regulation was designed to prevent.

According to California Healthcare Foundation's (CHF) site, Fallbrook is located in Fallbrook city in San Diego County. The facility accepts Medicare and Medi-Cal and it has a total of 93 beds. On CHF's site, Fallbrook received a below average rating for the number of hours staff devote to each resident per day. The facility also received a below average rating for the "complaints" category, and as for the "quality of care" category, CHF noted that eight percent of Fallbrook residents spend most of their time in bed, whereas the State's average was five percent.

In this particular instance, the director of CDPH, Mark Horton, stated that Fallbrook failed to initiate a plan to prevent the resident's risk of injury. The male resident was listed as having a high risk of falling. When the resident did fall, he broke his leg and he subsequently died of complications resulting from the surgery to his leg.

Federal Nursing Home Laws

Nursing homes that participate in Medicare and Medicaid programs must comply with federal rules regarding the type of care residents should receive. Under Title 42 CFR Section 483.20, nursing homes must conduct initial and periodic assessments of each resident's functional capacity. The assessment must include a review of the resident's cognitive patterns, communication, psychosocial well-being, physical functioning, and medications among other factors.

Title 42 CFR Section 483.25 also states that each resident must receive and the nursing facility must provide "the highest practicable physical, mental, and psycho-social well-being" for residents, in accordance with the assessment of the patient's needs and plan of care. It appears that in this situation, Fallbrook failed to take the necessary measures to ensure that the resident would be safe and not susceptible to injury.

When nursing home management and staff fail to abide by federal and state rules, the risk of serious injuries and deaths of nursing home residents are considerable. It is imperative that families, who are trying to find the right nursing facility for their loved ones, research and visit facilities before making their final decision.

Unfortunately though, incidents of nursing home abuse and neglect do occur. If you or someone you know has been the victim of nursing home abuse or negligence, contact the Casiano Law Firm for a confidential consultation to discuss your case.

Law Restores Partial Funding to Program Aimed at Fighting Nursing Home Abuse

Assembly Bill 392, signed into law on August 6, 2009, restores $1.6 million for local Long-Term Care Ombudsman programs. With this funding, local ombudsman programs should be able to reinstate some of the staff and services lost due to last year's budget cuts, providing critical monitoring of abuse and neglect in nursing homes and other long-term care facilities.

In 2008, about half of the Ombudsman budget, $3.8 million, was cut from the state budget in a gubernatorial veto. AB 392 restores less than half of that amount, which means the ombudsman programs will still operate with less staff and services than in the past, but hopefully with enough resources to address the most critical complaints.

Funding for the program will come from compliance penalties paid by nursing homes, so AB 392 should not have any direct impact on the state's General Fund.

The requirement for a long-term care ombudsman is actually a creature of federal law. Since 1978, the Older Americans Act has required every state to have an ombudsman program to receive and investigate complaints made by or on behalf of nursing home residents, and to advocate for changes and improvements in the long-term care system.

The author of AB 392, Assembly Member Mike Feuer (D-Los Angeles), was recently recognized as a 2009 True Friend of Seniors by the California Congress of Seniors for his work in securing passage of the bill.

Senior citizens are particularly vulnerable to abuse due to physical and mental incapacity. Nursing home residents are at even greater risk due to isolation from the public, friends, and family who might notice abuse or neglect or to whom the victims could complain. Local ombudsmen programs fulfill vital functions by conducting surprise visits to facilities and investigating complaints that come to their attention.

With the ombudsman program only partially restored, it is more critical than ever that residents have access to a voice to speak on their behalf. The Casiano Law Firm is dedicated to fighting nursing home abuse and serving the legal needs of seniors and their families. If you have personally experienced nursing home abuse or neglect or have a loved one in a facility and suspect abuse or neglect, contact me immediately for a confidential consultation.

California Budget Cuts May Lead to Devastating Results for the Elderly

On July 28, 2009, Governor Arnold Schwarzenegger used his line-item veto powers to impose approximately $500 million in additional cuts to the state's budget plan. Significant cuts were made that affect society's most vulnerable individuals--children, the disabled, and the elderly. Approximately $6.3 million in services to the elderly were cut.

Affected Services
The services that were affected by the cuts and impact the elderly specifically include:

• In-Home Supportive Services (IHSS): Enables the elderly and disabled, who are eligible, to remain in their own homes. California's IHSS program helps pay for various services, such as personal care services, meal preparation, and housecleaning services.
• California Department of Aging-Linkages Program: Assists elderly adults and disabled adults, who wish to remain in their own homes, obtain comprehensive care management.
• Medi-Cal: This is California's Medicaid program that provides health care to low-income elderly individuals and people with disabilities.

Other services that were impacted include aging and community programs and certain public health programs.

Potential Effects
The budget cuts severely impact home and community care programs that provide services to the elderly. These programs enable elderly people, who wish to remain at home, continue to receive services and care at their residence. Some expect that due to the cuts to these programs, there will be a sharp increase in nursing home admissions.

If there is a significant increase in nursing home admissions, there may be an increased incidence of nursing home abuse. If there is not enough staff to properly supervise and care for residents, this lack of supervision may lead to neglect and abandonment. Residents could also potentially injure themselves or others if there is inadequate supervision.

Even if the elderly person chooses to remain in his or her home, now there is a much higher risk that without adequate resources, the elderly person may not receive appropriate care. With less financial assistance, elderly people may also hire less-than-qualified caregivers to assist them, which could potentially lead to physical, emotional, sexual, verbal, or financial abuse or neglect.

Example of a Program Impacted by the Budget Cut
The Los Angeles Times stated that about 27,000 low-income seniors rely on a program which provides them with brown-bag lunches. Farms and other food producers donate the food and about 900 volunteers participate in the program. Before the passage of the current budget, California contributed $541,000 to the program for administrative services. Administration officials have admitted though that if the cuts go into effect, the program may fall apart, leading to potentially malnourished elderly adults.

Although the full impact of the budget cuts remain to be seen, individuals should be mindful of the negative potential effects these cuts may have on the elderly population. If you have experienced elder abuse or suspect elder abuse or neglect, contact me for assistance today.

Increase in Demand for Senior Services May Lead to “Senior Tsunami”

As soldiers returned home from World War II and America entered into a new era of growth and prosperity, our country saw a spike in the birth rate, known as the baby boom. These “baby boomers” are no longer babies, but are now seniors in their sixties.

But it is not only the baby boomers who contribute to our country’s elder population. The growth rate of the elderly population greatly exceeded that of the population as a whole throughout the entire twentieth century, and this trend continues into the twenty-first century. The reason for this growth rate is most likely due to the incredible advancements made in science and health, which have contributed to much longer, healthier lives for people on average, compared to their nineteenth century counterparts or any era before.

While our elders are for the most part enjoying a higher quality of life in their later years than perhaps their ancestors did, they still need access to a variety of health services, which continues as they grow older.

Unfortunately, this growing segment is expanding in a time when financial pressures are placing severe constraints on public budgets. Unemployment is up and tax revenues are down, which means that public agencies have to fight over scarce resources. These agencies include the Department of Health Services (Medi-Cal) and numerous health care facilities, including hospitals, urgent care, home health and long-term care resources. Even private nursing homes are not immune. These facilities are regulated and overseen by public agencies, and as that system’s resources become overburdened, the quality of care in nursing homes can decline dramatically and incidents of abuse can go unreported and uncorrected.

A recent report in Los Angeles County referred to an upcoming “senior tsunami” and cited numerous instances where local government is falling short of meeting the needs of its senior citizens. Major areas identified included a lack of oversight of county agencies, a lack of a formal system for training and monitoring social workers, and a lack of resources focused on the prevention of elder abuse as opposed to only addressing abuse after it has occurred.

Now more than ever it is vital that you have someone on your side to protect your rights, someone who knows how the system works and can make sure that you and your loved ones are taken care of. Contact me today if you feel that your rights have been violated or need assistance navigating through the increasingly complex area of senior health care.

State Budget Amendment Could Affect Senior Care

In an effort to trim the California state budget, the state legislature is considering an amendment that would cut state reimbursement provided to senior health care centers in half. There are currently 12 centers that focus on senior health care in the state.

As reported by the North Bay Business Journal, this proposed legislation would reduce the payment per visit from approximately $161 in a prospective payment system to a flat, fee-for-service rate of $76.22. Some believe this proposal would save California about $2.5 million.

If this legislation were implemented, it would have the considerable drawback of causing as many as seven of the existing 12 senior health centers to close. These closures could force many elderly patients into more expensive facilities for care. Seniors in these communities might then face increased difficulty in receiving care and endure increased health problems as a result. In some communities affected by this proposed legislation, the only facility providing care for seniors could be forced to close, such as in Marin County in Northern California. In many cases, many individuals over 60 reside in a county. For example, in San Diego County, more than 400,000 individuals over 60 reside in the county, according to the California Department of Aging. As a result, these changes could affect an important portion of the San Diego population.

Senior health care centers offer unique services

There are approximately 650 adult day centers in the state, but only the 12 affected by this legislation because they each have a health center license. Centers with the license are required to offer more services to the individuals they serve. Because these centers offer more services, supporters of the centers argue that these health care centers are justified in receiving about twice as much reimbursement from California, compared to most adult day care centers. The licensed centers have attained certification because they have at least one medical director and a registered nurse on site, while also providing occupational therapy, podiatry, speech and physical therapy and other services.

Affect of the proposed legislation

This legislation would go into affect on July 1, 2009 if approved by the legislature.

An analysis by the California Primary Care Association calculated that if passed, the cuts might end up costing more than the amount saved. This is because if seven health care centers were to close, many of the patients currently under their care would be forced to pursue treatment at other nursing or medical facilities. If that were to occur, the state and federal government would be forced to pay about $7.4 million more for their care at these new locations. In comparison, under the current scheme, the annual cost to the government for the seven existing facilities totals about $6 million.

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. With all of the changes in resources available for elderly individuals, individuals must remain vigilant for abuse, negligence, or neglect by a nursing home or other elder care facility. Please contact Vincent M. Casiano, Esq. for a consultation if you believe you or a loved has suffered from abuse or negligence.