Articles Posted in New Laws

According to a recent report from The New York Times, taking nursing home abuse claims to court has just become easier for residents and their families. The Centers for Medicare and Medicaid, an agency within the U.S. Health and Human Services Department, issued new rules regarding a longstanding practice wherein nursing homes stipulated in their resident contracts that any disputes or claims of abuse would be resolved in arbitration. The Federal government’s new rules now allow for nursing home residents to take their claims to court, making it far easier to seek meaningful justice.

The U.S. nursing home industry is a massive and lucrative one, particularly in Southern California. Additionally, a vast number of nursing home residents rely on government programs such as Medicaid and Medicare to subsidize their care. As such, those nursing homes receiving their own share of Federal Aid to support their programming can no longer contractually bind complainants into private arbitration to resolve their claims. This new rule will go into effect as soon as November 2016, paving a new and more feasible avenue for Southern California nursing home abuse victims to take their claims to court. It’s important to note, however, that the rule will apply only to those moving into federally aided nursing homes after the November 2016 start date.

As projections for nursing home resident growth climb—particularly in high-populated metropolitan areas, such as, San Diego— it’s especially important that governmental change to nursing home policies are introduced. Some sources report that nearly a third of all licensed nursing homes in the U.S. have been cited for federal safety standard violations. Now that new rules have been introduced regarding elder abuse lawsuits and complaints, victims finally have fair recourse under the law.

ISE_webbanner_768x180It is an unfortunate fact that elder abuse is a common and growing problem in San Diego and throughout the United States. Abuse of the elderly can take many forms, ranging from neglect and abandonment to physical, verbal, financial, and even sexual abuse. Fortunately, professionals in health care are constantly working towards new breakthroughs in treatment and the prevention of abuse in the elderly population. It’s true that new research and techniques are changing the face of convalescent care every day.

As the population of elders in San Diego continues to grow, it’s also encouraging to see the elder abuse epidemic be drawn out of the shadows and into the light, so we can all learn to recognize symptoms of elder abuse, and report any suspicions. One such example of shining a light on elder abuse prevention will be coming to Southern California next month.

On September 15, 2016 the 2-day USC Judith D. Tamkin International Symposium on Elder Abuse will welcome “researchers, academics, physicians, nurses, and psychologists” to participate in a weekend committed to “Closing the Research Gaps and Moving the Field of Elder Abuse Forward.”

elder-abuse-surveillanceRecently, the Centers for Disease Control and Prevention (CDC) and the National Center for Injury Prevention and Control (NCIPC) jointly introduced a publication regarding Elder Abuse. The publication states, “[it] is intended to serve as a starting point for advancing surveillance, research, and practice aimed at preventing” Elder Abuse.

What This Means

The report, titled Elder Abuse Surveillance: Uniform Definitions and Recommended Core Data Elements, does several things for defining Elder Abuse, including:

A recent study that appeared in the latest edition of the Public Policy & Aging Report (PP&AR)—a publication of the National Academy on an Aging Society—has concluded that major financial institutions, like banks and insurance companies, can do much more to help prevent senior financial abuse.

In its coverage of the new study, reports that both the financial abuse of seniors, as well as cognitive decline in the elderly, cause a negative and serious impact on the economy. Inaction on the part of banks and insurance companies, the study concludes, poses a serious threat to the health of the U.S. financial sector. According to Editor-in-Chief of PP&AR Robert Hudson, the problems of senior financial abuse and age-related impairment are “assuming remarkably large personal, monetary, and social dimensions. Elder abuse involves millions of individuals and billions of dollars. It damages health, harms wellbeing, and arguably costs lives.”

A different set of findings, authored by The MetLife Study of Elder Financial Abuse, estimates the monetary loses that result from senior abuse—as documented in 2010 alone—could amount to a staggering figure of at least $2.9 billion dollars. “Ironically, the age group that has amassed the most wealth over the longest period of accumulation is simultaneously at the greatest risk of financial self-impoverishment and exploitation by others,” Daniel Marson of PP&AR commented.

In June 2015, the Alameda County Courthouse ruled on a case involving Health and Safety Code §1418.8. As of January 2016, a final judgment was ordered calling the outdated health code “unconstitutional.”

The Advocates

The case, brought by statewide, non-profit advocates CANHR (California Advocates for Nursing Home Reform), is a critical first step toward nursing home reform. CANHR, through advocacy, education, and legislation (and litigation when necessary) fights to “create a unified voice for long term care reform and humane alternatives to institutionalization.”

NBC-7 San Diego recently reported a story exposing that:
“At 85 years old, Lynn Murphy’s health was failing, her memory fading fast. So, in October 2013, her daughter Kathe Murphy put her mother into the Oakmont of Roseville retirement community, near Sacramento.

While Lynn was in Oakmont’s memory care unit, Kathe said the staff wasn’t doing their job. She took photos of her mother’s dirty clothes, room and bathroom. She said the staff was supposed to be doing Lynn’s laundry and cleaning her living quarters. Kathe said her mother wasn’t being properly taken care of.

These were issues that Kathe said she knows about first-hand since she worked as a paralegal for 20 years for the Department of Social Services’ licensing division — the same state agency responsible for regulating and licensing elder care facilities in California.

“I said this is elder abuse. Nobody’s done anything,” Kathe said.

She took her mom out of the facility in April 2014 after she said her mom was put in bed and not checked on for almost 24 hours. Her mother died 3 weeks later.”

The tragedy has brought to light the question of whether or not installing cameras in nursing home residents’ rooms would help to prevent elder abuse and neglect. While many advocate for the installation of cameras, others declare that the installation of cameras would constitute a breach of privacy.

Current laws allow for video surveillance in common areas of a residential care facility. Yet the California Department of Social Services does not allow for cameras in resident’s rooms, citing privacy concerns.

According to the NBC-7 Story:

“The Department of Social Services Deputy Director of Public Affairs Michael Weston said the client’s right to privacy is a concern for the department.

“We view these as people’s homes, and we want people to have rights in their own home and balancing that between a business and a residence,” Weston said. “We want to be careful about.”

Weston said the department has developed proposed guidelines which would allow video cameras in private rooms under specific conditions. He said those guidelines are still being reviewed and expects to release them this spring.”

Click here to read the full story from NBC-7 San Diego.

Under California law, elder abuse is both a criminal and civil offense. Criminal elder abuse describes the willful infliction of physical or emotional suffering on an elder. Civil elder abuse typically includes any physical or financial abuse, neglect, or abandonment resulting in physical or mental harm.

If you believe that someone you know has been abused while residing in a California Nursing Home, contact an award winning elder abuse attorney today.
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Under a new bill proposed by Assemblyman Kevin McCarty, D-Sacramento, the state of California would be required to establish tighter “suitability requirements” for nursing home owners, with the goal of preventing those who have a history of poor performance from acquiring additional nursing homes.

Furthermore, under Assembly Bill 927, the Department of Public Health would also be required to make it easier for the public to ascertain who exactly owns particular nursing homes throughout the state. The California Advocates for Nursing Home Reform has called for greater transparency for years, so those contemplating placing a loved one in a California nursing home are able to easily determine who owns the nursing home they are considering.

According to a multi-part series on California nursing homes as reported by the Sacramento Bee:

“California has more nursing homes than any other state, and one of the country’s highest percentages of facilities owned by for-profit interests. Yet, as more private investment groups acquire skilled-nursing facilities, and ownership structures grow ever more layered and complex, the department has not kept pace with industry changes to help consumers evaluate chains – or even to identify the principals behind them.”

The Sacramento Bee’s lengthy investigation into ownership of California nursing homes, also revealed disturbing statistics, including:

*One nursing home chain operating in California racked up abuse complaints last year at a pace seven times the statewide rate.
*A large competitor placed one in every 15 of its long-term residents in restraints.
*Still another corporate giant whose nursing homes dominate the Sacramento region experienced high nursing staff turnover at 90 percent of its facilities.

Read more about the Sacramento Bee’s investigation here:

All elders in California nursing homes have the right to quality care and attention. If those rights are denied, abuse must be reported. For tips on reporting suspected neglect and/or elder abuse in a California nursing home, the Justice Department has a helpful citizen’s guide that can be found at the following website:
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signing a bill.jpg Governor Jerry Brown made it clear that assisted living facilities in California will be held accountable for violations of state regulations, to the tune of a 100% increase in fines.
Until recently, fines for violations at assisted living facilities maxed out at a measly $150.00. The top fine will now be $15,000.00. This is just the latest step in a statewide effort to increase oversight of assisted living facilities. The Governor also signed 9 additional assisted living reform bills, which marks the single greatest overhaul of the elder care facility industry in almost 30 years.

This bill was co-authored by San Diego’s own Assemblyman Brian Maienschein, and extends to cover all community care facilities, not just nursing homes. So far, Governor Brown has signed 13 new bills designed to protect our elderly into law this year. The San Diego Union Tribune has a great article which explains the details of the new law. It can be read in its entirety here.

At Walton Law, APC, we are very pleased to see our politicians working harder to protect our seniors. We certainly hope that the increase in fines will prompt elder care facilities throughout the state to begin to honor the rights of patients and elders living within assisted living facilities and nursing homes throughout the state as they have promised the families of these loved one they would.
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We were thrilled to receive an email from Nancy Peverini, Legislative Director for the Consumer Attorneys of America, announcing the Consumer Attorneys of California (CAOC) is co-sponsoring a bill along with Assemblyman Bob Wieckowski (D-Fremont). The bill is designed to protect seniors and those with disabilities who reside in Residential Care Facilities for the Elderly (RCFE).

The new bill, AB 2171, has thus far garnered approval from the Assembly Committee on Aging and Long Term Care, establishes a statutory bill of rights and private right-of-action for residents of RCFEs. AB 2171 will serve to protect the dignity, safety and self-determination of California seniors and disabled adults who live in RCFEs.

Peverini wrote:
“The past year has brought many shocking revelations about the mistreatment of seniors in RCFEs. These reports and the broad press on the topic demonstrate that RCFE residents are increasingly exposed to serious harm and death due to poor state oversight and their extraordinary vulnerability, a problem made worse by a lack of recourse when they are mistreated.

AB 2171 will help protect California’s at-risk elders in RCFEs by establishing a robust statutory Bill of Rights that addresses their fundamental needs in areas such as visitation, privacy, confidentiality, personalized care, autonomy, adequate staffing and many more. The measure will also strengthen a resident’s right to make choices about his or her care, treatment, and daily life in the facility and to ensure that the resident’s choices are respected.

In addition to fundamental rights, RCFE residents desperately need a better way to enforce their rights. California’s RCFE regulators have repeatedly shown that they are often unable to protect residents from abuse and neglect. AB 2171 addresses this problem by establishing a private right of action, the only real way a resident can enforce her own rights, particularly during a time where the regulatory agency lacks the resources to be effective.

These rights are already in place for California’s nursing home residents. RCFEs, by comparison, lack even minimal government oversight and inspections, making this population extremely vulnerable to abuse and neglect. The private right of action in AB 2171 will provide a pathway for RCFE residents and their families to prevent and stop ongoing violations without costing California any money.”

This latest effort by lawmakers and my colleagues to expand the rights and protections of elders who reside in residential care facilities should be considered a victory for our elders. This should also serve as a warning to those wishing to harm, manipulate, or otherwise take advantage of California citizens over the age of 65. I’m very proud to be a member of CAOC, and proud to support this legislation.
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