California’s Expanding Financial Elder Abuse Laws

Over the past five years, California’s lawmakers have been increasing protections for elders, defined as California residents age 65 or over, including protections to address the growing problem of financial institution involvement in financial elder abuse.

Lawmakers enacted amendments to California’s elder abuse laws in the Financial Elder Abuse Reporting Act of 2005, which went into effect nearly three years ago. As of January 1, 2007, financial institutions, including banks and credit unions, as well as their employees, are required to report suspected incidents of financial elder abuse. The amendments also added civil fines ranging from $1,000 to $5,000 which may be levied against financial institutions if their employees fail to report abuse as required under the Act.

In 2008, lawmakers expanded elders’ rights again with the enactment of a California Senate Bill that expanded the definition of financial elder abuse to include situations where “undue influence” is used to misappropriate an elder’s property. The bill also expanded elders’ rights by making it easier for elders to prove that the misconduct meets the law's requirements that the taking be for a “wrongful use.”

California’s Current Definition of “Financial Elder Abuse”

As it is now defined, financial elder abuse in California occurs when: “a person takes, secretes, appropriates or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both” or does so by the use of “undue influence,” including through the use of “an agreement, donative transfer, or testamentary bequest.” Assisting a person in committing prohibited conduct is also a violation of the law. (California Welfare & Institutions Code § 15610.30(a)-(c).)

If You Suspect Financial Abuse, We Can Help You

Financial elder abuse can take many forms, including overpaying for services such as home repairs, outright gifts of cash, telemarketing scams, or convincing an elder to invest in inappropriate or highly risky investments, such as annuities which yield little return to the elder, but pay high commission to the sales agent. If you suspect that you or a loved one has been a victim of financial elder abuse, contact The Casiano Law Firm for a confidential consultation.

Nursing Home Fined $80,000 in Patient’s Death

Homewood Care Center in San Jose was fined $80,000 and given a “AA citation”, the most severe penalty under California law, after a state investigation determined that a nurse’s failure to administer the Heimlich maneuver on a choking patient resulted in the patient’s death. According to a report by the Department of Health and Human Services, the patient was admitted to the care facility with a diagnosis of Alzheimer’s disease and dysphagia, or difficulty swallowing. The man was assessed as a high risk for aspiration (the entry of secretions into the trachea and lungs) due to difficulty of swallowing. The report also indicated that the man had a no-CPR order, meaning he did not want any cardiopulmonary resuscitation, however investigators concluded that a no-CPR order does not preclude abdominal thrusts, such as those performed during the Heimlich maneuver.

Patient Choked While Being Fed Dinner
On August 24, 2009, at 5:30 p.m., a certified nurse assistant was feeding the man a dinner of pureed food when he suddenly began coughing violently. Although staff members thought the man was choking on food, they did not attempt to perform abdominal thrusts to clear his airway. Investigators found the facility did not promptly call 911. Although staff members claimed they called 911 at 5:30 p.m., records indicated the call was placed at 5:49 p.m., a delay of 19 minutes. A police report indicated the man was dead when paramedics arrived.

Aftermath of this Tragedy
Following the death of the patient, a registered nurse who failed to implement emergency procedures was fired, and the director of nursing at the time of the incident was relieved of his duties.

When the state health department issues a citation or finds a deficiency, the care center must submit a plan of correction. After the plan is accepted and the health department completes a surprise inspection, the agency issues a fine or citation. Homewood submitted a plan of correction, which was accepted on March 11, 2010.

Nursing Home Owner’s Troubled History
Until January of this year, Homewood was owned by Jack Easterday, who is currently in prison for withholding $9.6 million in payroll taxes from employees’ checks and willfully failing to pay employment taxes. Easterday was the sole shareholder of Westline Medical Management, which owns Homewood and seven other nursing homes in California. Easterday resigned as a corporate officer of Westline in January and transferred his shares to an administrator. Easterday and Westline have a history of providing poor nursing home care. In 2007, two other facilities owned by Westline were each fined $100,000, the highest fine possible, for their role in the death of two patients.

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.

Murder and Financial Elder Abuse in Northern California Nursing Homes

Unfortunately, sometimes the very people who are responsible for the care of elders are the very same people who abuse them. Two alarming cases of elder abuse by caregivers made national headlines this past week. Both cases involved caregivers working in nursing homes in the San Francisco Bay Area; one case involved the deliberate murder of a patient, and the other involved financial elder abuse.

Daly City Nursing Home Assistant Murders Patient

A 37 year-old certified nursing home assistant, Maximo Hong Fajardo Jr., intentionally smothered 87 year-old Barbara McIver with a pillow in front of other patients and staff members. Fajardo had been a certified nursing home assistant for over ten years, but had been employed at the Convalescent Center Mission Street in Daly City, just south of San Francisco, for two weeks. After smothering McIver, Fajardo fled the nursing home and carjacked a car in an attempt to escape. He is currently being held on $10 million bail

Former Nursing Home Administrator Accused of Financial Abuse of Residents

In Berkeley, California, former assistant administrator of the Elmwood Nursing and Rehabilitation Center, Concepcion "Connie" Pinco Giron told her supervisor that Carnell Williams, a patient at the home, was being transferred to another facility. Giron then proceeded to move Williams into her own home, and began cashing Williams’ pension and social security checks. Giron is also accused of establishing bank accounts for five other patients and transferring funds from those accounts into her own bank account. Giron used the patients’ ATM cards and wrote checks to herself from their accounts.

Giron is currently being held in lieu of $365,000 bail and has been charged with multiple counts of elder abuse and theft from elder or dependent adults by a caretaker, kidnapping to commit another crime, and false imprisonment.

Unfortunately these are not isolated incidents. According to the San Francisco Examiner, one out of 20 elders in California will be the victim of neglect, psychological, physical or financial abuse this year. 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.

Financial Elder Abuse Is a Growing Concern for California’s Growing Elderly Population

As the “boomer” generation ages, experts predict that the problem of financial elder abuse will boom as well. Incidents of elder abuse in California and across the nation are already becoming an issue of serious concern among lawmakers.

The California Department of Aging reports that by 2050, there will be 14.6 million Californians over the age of 60 and that between 2010 and 2020, there will be a 128% increase in the number of Californians in that age group. The report also states that San Diego County can expect a 96% increase in the number of residents over the age of 60 between 2010 and 2030.

Recent Headlines Highlight Financial Elder Abuse Problem

California news headlines are replete with recent incidents of financial elder abuse committed by financial institutions. Here are just a couple of examples of the egregious behavior that has been in the news recently. On February 4, the San Francisco Chronicle reported that a Bank of America customer service representative has been charged with stealing $61,000 from a 96-year-old woman after convincing her to allow him access to her accounts as her personal banker. On January 10, 2010, Investment News reported that a Financial Industry Regulatory Authority (FINRA) arbitration panel awarded a 95-year-old man $1.6 million after finding a Beverly Hills investment firm and two of its brokers guilty of self-dealing. The brokers convinced the man to leverage his equity in his home to make overly risky investments. (FINRA is an independent regulatory agency, empowered by the federal government to oversee securities and brokerage firms and protect investors.)

$2.6 in Annual Losses

According to 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, financial elder abuse results in an annual loss of $2.6 billion. The study also found that that the people who commit the abuse are usually people in a position of trust, including family members and business professionals. Common types of financial elder abuse committed by business professionals included: false sales of and misrepresentations concerning stocks and other investments; and fraudulent banking practices including “account draining or siphoning.”

We Help Victims of Financial Elder Abuse

If you suspect that you or a loved one has been a victim of financial elder abuse, we can help you. Contact The Casiano Law Firm for a confidential consultation.

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.