California Governor Arnold Schwarzenegger signed several bills designed to protect the elderly into law this week. The new laws provide a plan for the elderly in the event of a disaster and offer greater protection for the elderly from financial elder abuse. The following is a brief synopsis of these new laws:
Two bills targeting nursing home and residential care facilities were signed this week:AB 2370 is aimed at preventing nursing homes from hiking their rates without notice. The law requires residential care facilities to annually post information regarding recent rate increases, requires the disclosure of rate increase information to new residents, and, upon request, to requires the disclosure of rate increase information to prospective residents.
AB 749 is designed to protect the elderly in the event of a disaster or major power outage. The law 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 following bills are designed to offer greater protection from physical abuse to the elderly and their families:
AB 2100 is designed to encourage people to come forward with suspicions of elder abuse. The law 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.
AB 225 applies to restraining orders issued in elder abuse cases. The law extends the protection of a restraining order to include named family members, household members and conservators of the elder abuse victim.
The following three bills are aimed at those who run scams targeting the elderly or are engaged in financial elder abuse:
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 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.
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.
Thanks for reading my blog. If you suspect that a loved one has been the victim of physical, financial or sexual elder abuse, contact me for assistance.
Monday, September 29, 2008
Tuesday, September 2, 2008
Class Action Lawsuits Against Nursing Homes
This week a class action lawsuit against the corporate owner of a group of nursing homes in Southern California was settled for $2 million. The lawsuit was filed on behalf of residents who were promised a high level of care by the nursing home operator. The lawsuit alleged that while the residents were promised quality care, the nursing homes were understaffed and the owners knew they could not provide the promised level of care given their level of staffing. The residents sued, alleging the owner’s conduct constituted fraud. During the course of the lawsuit, it was discovered that one of the nursing homes in question had 77 health and safety violations within the past four years.
A similar class action lawsuit has recently been filed in the state of Washington against the corporate owner of 15 nursing homes in Washington, accusing the owner of luring residents in with false advertising and charging for services that were never provided. The lawsuit also alleges that the nursing homes were understaffed and that the quality of care suffered as a result of understaffing.
A nursing home class action lawsuit is a lawsuit brought by an individual resident or a group of residents, on behalf of a much larger group with the same or similar problem or complaint. A class action lawsuit is typically brought where others have been injured in the same manner and it is too expensive or impractical to bring an individual lawsuit. Nursing home class action lawsuits serve an important function in that they provide oversight and force nursing home owners to improve the quality of the care they provide.
Nursing homes are in the business to earn a profit, and in striving to maximize their profits, many nursing homes fail to maintain an appropriate level of staffing and are seriously understaffed. There is a direct correlation between the quality of care and the level of staffing; if a facility doesn’t have enough staff, the incidences of elder abuse and neglect are significantly higher. When you are considering a nursing home facility, be sure to ask about the staff to resident ratio.
If you or a loved one have been the victim of abuse, negligence or neglect by a nursing home, contact an attorney to find out your legal rights and options. If you have a question or comment, feel free to respond to this posting, but keep in mind your response will not be confidential. You can also call or e-mail me to discuss your matter confidentially. Thanks for reading.
A similar class action lawsuit has recently been filed in the state of Washington against the corporate owner of 15 nursing homes in Washington, accusing the owner of luring residents in with false advertising and charging for services that were never provided. The lawsuit also alleges that the nursing homes were understaffed and that the quality of care suffered as a result of understaffing.
A nursing home class action lawsuit is a lawsuit brought by an individual resident or a group of residents, on behalf of a much larger group with the same or similar problem or complaint. A class action lawsuit is typically brought where others have been injured in the same manner and it is too expensive or impractical to bring an individual lawsuit. Nursing home class action lawsuits serve an important function in that they provide oversight and force nursing home owners to improve the quality of the care they provide.
Nursing homes are in the business to earn a profit, and in striving to maximize their profits, many nursing homes fail to maintain an appropriate level of staffing and are seriously understaffed. There is a direct correlation between the quality of care and the level of staffing; if a facility doesn’t have enough staff, the incidences of elder abuse and neglect are significantly higher. When you are considering a nursing home facility, be sure to ask about the staff to resident ratio.
If you or a loved one have been the victim of abuse, negligence or neglect by a nursing home, contact an attorney to find out your legal rights and options. If you have a question or comment, feel free to respond to this posting, but keep in mind your response will not be confidential. You can also call or e-mail me to discuss your matter confidentially. Thanks for reading.
Sunday, July 27, 2008
Fairness in Nursing Home Arbitration Act
Earlier this week the House Judiciary Subcommittee on Commercial Law and Administrative law approved the federal Fairness in Nursing Home Arbitration Act, which would preclude nursing homes from forcing patients to sign an arbitration agreement prior to a dispute. Consumer advocates including the AARP and the Alzheimer’s Association supported 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.
Arbitration is an alternative method of dispute resolution that does not require going to court. Instead of a court proceeding, an arbitrator is appointed to hear both sides of the dispute and issue a ruling. The arbitrator considers both federal and state law when resolving the 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, and shields the nursing home owner from the consequences of allowing abuse or neglect to occur.
The Fairness in Nursing Home Arbitration Act (the “Act”) was designed to prevent patients from signing away their right to have a dispute heard in court. The Act recognizes that entering a nursing home can be a stressful event, and often occurs after a patient has experienced a serious or long illness. The patient may also be under medication that impairs their judgment or ability to understand the admission documents. In the State of California, nursing homes are not permitted by law to include an arbitration clause in their contracts for admission of a patient. However, most nursing homes do have an optional arbitration clause provision that they attach to the admission contract as an attachment or addendum. Many patients sign this attachment without fully understanding their rights or that they have waived their right to a trial before a judge or jury.
The Act invalidates any pre-dispute arbitration agreement between a nursing home and resident. Some members of the committee attempted to modify the bill, by trying to ensure that the bill would not be retroactive, or by attempting to exclude nursing home physicians. These modifications were rejected. The committee’s approval of the Act makes it one step closer to becoming law. I will keep you posted on further developments.
If you or a family member is entering a nursing home, read all of the admission documents carefully. If you don’t understand something, don’t sign it until you’ve consulted an attorney. Remember, under California law, they can’t make you sign an arbitration clause as a condition to admission.
Thanks for reading. 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.
Arbitration is an alternative method of dispute resolution that does not require going to court. Instead of a court proceeding, an arbitrator is appointed to hear both sides of the dispute and issue a ruling. The arbitrator considers both federal and state law when resolving the 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, and shields the nursing home owner from the consequences of allowing abuse or neglect to occur.
The Fairness in Nursing Home Arbitration Act (the “Act”) was designed to prevent patients from signing away their right to have a dispute heard in court. The Act recognizes that entering a nursing home can be a stressful event, and often occurs after a patient has experienced a serious or long illness. The patient may also be under medication that impairs their judgment or ability to understand the admission documents. In the State of California, nursing homes are not permitted by law to include an arbitration clause in their contracts for admission of a patient. However, most nursing homes do have an optional arbitration clause provision that they attach to the admission contract as an attachment or addendum. Many patients sign this attachment without fully understanding their rights or that they have waived their right to a trial before a judge or jury.
The Act invalidates any pre-dispute arbitration agreement between a nursing home and resident. Some members of the committee attempted to modify the bill, by trying to ensure that the bill would not be retroactive, or by attempting to exclude nursing home physicians. These modifications were rejected. The committee’s approval of the Act makes it one step closer to becoming law. I will keep you posted on further developments.
If you or a family member is entering a nursing home, read all of the admission documents carefully. If you don’t understand something, don’t sign it until you’ve consulted an attorney. Remember, under California law, they can’t make you sign an arbitration clause as a condition to admission.
Thanks for reading. 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.
Tuesday, June 24, 2008
New Rating System for Nursing Homes
The Centers for Medicare and Medicaid Services (CMS) announced this week the implementation of a new rating system for nursing homes. Nursing homes will soon be rated 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 new system is designed to assist families in determining the best facilities in their area. The new system will appear on Medicare’s “Nursing Home Compare” Web site, hopefully before the end of 2008.
Nursing Home Compare 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. Some have criticized the current Web site as being difficult to navigate.
The new system is designed to make it easier for consumers to evaluate a home and distinguish one facility’s performance from another. Proponents of the new system believe it will hold nursing homes accountable and force underperforming facilities to improve their standard of care.
CMS is currently holding a period of public comment to determine the best method of translating inspection reports and quality indicators into star ratings and to allow the public to suggest other information that should be included in the ratings. Many hope that the ratings will take into consideration resident satisfaction surveys, which most homes already conduct on an annual basis. Advocates of including these survey results in the ratings state that it is important to give the families of the residents some input in the facility’s rating. The first ratings are expected to be completed by December. Ratings will be updated quarterly.
Regardless of the new rating system, it is important to personally check out a nursing facility. A rating system should not be a substitute for your own observations and best judgment. If you have a comment, feel free to post it here, but keep in mind your posting will not be confidential. If you have a question or need assistance with a matter involving a nursing home or assisted living facility, call my office for immediate assistance. Thanks for reading my blog.
Nursing Home Compare 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. Some have criticized the current Web site as being difficult to navigate.
The new system is designed to make it easier for consumers to evaluate a home and distinguish one facility’s performance from another. Proponents of the new system believe it will hold nursing homes accountable and force underperforming facilities to improve their standard of care.
CMS is currently holding a period of public comment to determine the best method of translating inspection reports and quality indicators into star ratings and to allow the public to suggest other information that should be included in the ratings. Many hope that the ratings will take into consideration resident satisfaction surveys, which most homes already conduct on an annual basis. Advocates of including these survey results in the ratings state that it is important to give the families of the residents some input in the facility’s rating. The first ratings are expected to be completed by December. Ratings will be updated quarterly.
Regardless of the new rating system, it is important to personally check out a nursing facility. A rating system should not be a substitute for your own observations and best judgment. If you have a comment, feel free to post it here, but keep in mind your posting will not be confidential. If you have a question or need assistance with a matter involving a nursing home or assisted living facility, call my office for immediate assistance. Thanks for reading my blog.
Friday, May 23, 2008
Use of Restraints in California Nursing Home Highest in United States
Federal Nursing Home Reform Act of 1987
Nursing homes that receive Medicare or Medicaid must comply with the Nursing Home Patients Bill of Rights as provided by the Federal Nursing Home Act of 1987. Among these rights is the right to be free from unreasonable restraints. The Federal Code, under 42 CFR 483.13, subsection (a), 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.”
Nursing Home Restraints Since 1987
The use of restraints in nursing homes has declined overall since the passing of the Federal Nursing Home Reform Act of 1987. Their use decreased almost 40% during the period between 2002 through 2006. According to the Federal Agency for Healthcare Research and Quality, only 5.9% of United States nursing home residents were restrained in 2006 compared to 9.7% in 2002. Some states did better than others. Nursing homes in California were among the worst offenders with 13.4% of residents being repeatedly restrained. Fortunately, not all nursing home in California restrain residents at this rate. Most comply with the Federal Law. However, you may not have much time to find a nursing home for a loved one. You may have as little as 24 hours after a hospital stay to find a good facility. The AARP Magazine has compiled a list of ten essential tips one should follow when choosing a nursing home. To view the list, click the following link: http://www.aarpmagazine.org/health/embedded_sb.html
Potential risk of restraint related injury exists even if you are careful when selecting a home. Be sure to visit your loved one and inspect the facility regularly to make sure things are going well and that your loved one's risks are minimized.
Restraint Injuries
Residents of nursing homes are restrained for different reasons. For example, a resident may be restrained to prevent a fall or to prevent injury. Sometimes residents are restrained to keep them from rolling out of bed or to keep them seated in a chair. Often facilities will use restraints because of staffing shortages, staff inexperience, or just plain laziness. Restraints that have been used by different facilities include belt restraints, vest restraints, mittens, and wrist restraints.
Mechanical restraints such as straps, tie-downs, and bed rails are designed to limit mobility. If they are not used correctly, they can cause strangulation and death. Pressure ulcers (bedsores), incontinence, and confusion can also be caused by the misuse of these restraints. Long term use of mechanical restraints has been known to cause emotional distress, loss of strength, and depression. Nursing homes should never use restraints as a cost-cutting measure. They are not a substitute for the proper number of trained staff. Restraints should only be used if a doctor determines that they are necessary.
If loved one has been unreasonably restrained and has suffered injuries, you should contact a lawyer to protect his or her rights. If you have a question or comment, feel free to respond to this posting, but keep in mind your response will not be confidential. You can also call or e-mail me to discuss your matter confidentially. Thanks for reading.
Nursing homes that receive Medicare or Medicaid must comply with the Nursing Home Patients Bill of Rights as provided by the Federal Nursing Home Act of 1987. Among these rights is the right to be free from unreasonable restraints. The Federal Code, under 42 CFR 483.13, subsection (a), 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.”
Nursing Home Restraints Since 1987
The use of restraints in nursing homes has declined overall since the passing of the Federal Nursing Home Reform Act of 1987. Their use decreased almost 40% during the period between 2002 through 2006. According to the Federal Agency for Healthcare Research and Quality, only 5.9% of United States nursing home residents were restrained in 2006 compared to 9.7% in 2002. Some states did better than others. Nursing homes in California were among the worst offenders with 13.4% of residents being repeatedly restrained. Fortunately, not all nursing home in California restrain residents at this rate. Most comply with the Federal Law. However, you may not have much time to find a nursing home for a loved one. You may have as little as 24 hours after a hospital stay to find a good facility. The AARP Magazine has compiled a list of ten essential tips one should follow when choosing a nursing home. To view the list, click the following link: http://www.aarpmagazine.org/health/embedded_sb.html
Potential risk of restraint related injury exists even if you are careful when selecting a home. Be sure to visit your loved one and inspect the facility regularly to make sure things are going well and that your loved one's risks are minimized.
Restraint Injuries
Residents of nursing homes are restrained for different reasons. For example, a resident may be restrained to prevent a fall or to prevent injury. Sometimes residents are restrained to keep them from rolling out of bed or to keep them seated in a chair. Often facilities will use restraints because of staffing shortages, staff inexperience, or just plain laziness. Restraints that have been used by different facilities include belt restraints, vest restraints, mittens, and wrist restraints.
Mechanical restraints such as straps, tie-downs, and bed rails are designed to limit mobility. If they are not used correctly, they can cause strangulation and death. Pressure ulcers (bedsores), incontinence, and confusion can also be caused by the misuse of these restraints. Long term use of mechanical restraints has been known to cause emotional distress, loss of strength, and depression. Nursing homes should never use restraints as a cost-cutting measure. They are not a substitute for the proper number of trained staff. Restraints should only be used if a doctor determines that they are necessary.
If loved one has been unreasonably restrained and has suffered injuries, you should contact a lawyer to protect his or her rights. If you have a question or comment, feel free to respond to this posting, but keep in mind your response will not be confidential. You can also call or e-mail me to discuss your matter confidentially. Thanks for reading.
Monday, April 21, 2008
Medi-Cal Benefit Increase for Nursing Homes Fails to Improve Care
In 2004, California legislatures passed a law that provided California nursing homes with $590 million by raising Medi-Cal (California’s Medicaid program) payments. The purpose of this law was to give nursing homes more financial resources to help poor residents. From 2004 through 2006, a UC-San Francisco study found that nursing homes not only received the $590 million, but their total revenues rose by $1.1 billion.
The increase in funding and profits does not appear to have translated into better care. The same UCSF study reports the following statistics in 2006:
1. A 3.6% decrease in nursing home spending on direct patient care
2. A 6% increase in state and federal citations of nursing homes
3. A 38% increase in complaints of patient mistreatment
4. 16% of nursing homes still did not meet California’s minimum staffing levels
5. 88% of nursing homes did not comply with federal regulations
6. 22% of nursing homes had violations that harmed patients or jeopardized patient care
The study also found that nursing assistant wages increased an average of 71 cents per hour (or 6%), licensed nurses increased by 9% and administrators pay rose by 13%. Nursing homes also enjoyed a rise in net profits of 233% to $248,047.
Nursing Home Residents Bill of Rights
The California Health and Safety Code, Section 1771.7(b) provides that all residents in residential living units (such as nursing homes) shall have all of the following rights:
1. To live in an attractive, safe, and well maintained physical environment.
2. To live in an environment that enhances personal dignity, maintains independence, and encourages self-determination.
3. To participate in activities that meet individual physical, intellectual, social, and spiritual needs.
4. To expect effective channels of communication between residents and staff, and between residents and the administration or provider's governing body.
5. To receive a clear and complete written contract that establishes the mutual rights and obligations of the resident and the continuing care retirement community.
6. To maintain and establish ties to the local community.
7. To organize and participate freely in the operation of resident associations.
The increase in funding was meant to help California nursing homes comply with California statutes such as Section 1771.7(b). It appears from the UCSF study that nursing homes have not really improved; while administrator salaries benefitted from the influx of funds, patient care actually became worse. It is important to keep a watchful eye on your loved ones who reside in nursing homes. Be especially on the look-out if the nursing home has difficulty keeping staff. With nursing assistant wage increases not even keeping up with inflation, a high turn-over is likely, leading to poorly trained employees and a high likelihood of neglected patients. If any of the rights listed above has been violated, it is important that you consult an elder law attorney as soon as possible.
Thanks for reading our blog. If you have a question or comment, feel free to respond to this posting, but keep in mind that any response will not be confidential. If you or a loved one is a victim of elder abuse and have questions on how to protect your rights, contact us for a free, confidential consultation.
Tuesday, April 1, 2008
Financial Elder Abuse-Mortgage Scams
Several people in Southern California were recently arrested for mortgage fraud. Many of their victims were elderly people who didn’t realize they were being scammed, and ultimately lost their homes. For many seniors, their primary asset is their home. Seniors are also a likely target for mortgage loan fraud or being defrauded out of title to their property; many seniors have homes which are fully paid for or have substantial equity in their homes.
Help is Available
If you receive a letter from a mortgage company informing you of a mortgage that you never applied for, or if you receive a notice from the County regarding the recording of a deed to your property, call the San Diego City Attorney’s Consumer Hotline at (619) 533-5600 Monday through Friday, 9-11am or 1-3pm.
Points to Consider
Some lenders have violated consumer protection laws by offering loans to seniors that do not fully disclose the costs associated with the loan. Lenders are required by law to disclose all loan costs and payment amounts. If you are considering refinancing your home, be aware of the following:
Don’t be pressured into signing anything until you have had the opportunity to review all the disclosures. Review all fees, payments and closing costs carefully before you sign.
Never sign anything without being fully aware of the consequences of what you’re signing. If in doubt, don’t sign. Have someone you trust review the documents with you.
Don’t give out personal information, such as your social security number, to a loan salesperson. You could be exposing yourself to identity theft.
Don’t take loans out on your house to loan someone else, such as a caretaker, money. If the person doesn’t repay you, you will be placing yourself in financial jeopardy.
Don’t transfer title to your house to someone else without consulting with your attorney first. There may be tax consequences to such a transfer that you didn’t contemplate. Don’t put a caregiver or someone else on title to your home; they may take out loans against your home, and if they fail to make the payments on the loans, you could lose your house in foreclosure.
If you feel you have been the victim of loan fraud, contact an attorney to find out your legal rights and options. If you have a question or comment, feel free to respond to this posting, but keep in mind your response will not be confidential. You can also call or e-mail me to discuss your matter confidentially. Thanks for reading.
Help is Available
If you receive a letter from a mortgage company informing you of a mortgage that you never applied for, or if you receive a notice from the County regarding the recording of a deed to your property, call the San Diego City Attorney’s Consumer Hotline at (619) 533-5600 Monday through Friday, 9-11am or 1-3pm.
Points to Consider
Some lenders have violated consumer protection laws by offering loans to seniors that do not fully disclose the costs associated with the loan. Lenders are required by law to disclose all loan costs and payment amounts. If you are considering refinancing your home, be aware of the following:
Don’t be pressured into signing anything until you have had the opportunity to review all the disclosures. Review all fees, payments and closing costs carefully before you sign.
Never sign anything without being fully aware of the consequences of what you’re signing. If in doubt, don’t sign. Have someone you trust review the documents with you.
Don’t give out personal information, such as your social security number, to a loan salesperson. You could be exposing yourself to identity theft.
Don’t take loans out on your house to loan someone else, such as a caretaker, money. If the person doesn’t repay you, you will be placing yourself in financial jeopardy.
Don’t transfer title to your house to someone else without consulting with your attorney first. There may be tax consequences to such a transfer that you didn’t contemplate. Don’t put a caregiver or someone else on title to your home; they may take out loans against your home, and if they fail to make the payments on the loans, you could lose your house in foreclosure.
If you feel you have been the victim of loan fraud, contact an attorney to find out your legal rights and options. If you have a question or comment, feel free to respond to this posting, but keep in mind your response will not be confidential. You can also call or e-mail me to discuss your matter confidentially. Thanks for reading.
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