California Elder Abuse Lawyer Blog

As part of the larger health care reform in our country, President Obama signed into law on March 23, 2010 the Patient Protection and Affordable Care Act (PPACA) which contains provisions for Nursing Home Transparency and Improvement. In a series of posts, I will discuss some of the provisions which affect nursing home care.

This is part 2 in a 5 part series

Part 2 - Quality Assurance and Compliance Programs

The PPACA [at Title VI, Subt. B, 6102(b)92)(B) ] requires nursing homes to establish policies and procedures to prevent and detect civil, administrative and criminal violations as well as promote quality of care. This provision first requires the Department of Health and Human Services to establish standards for quality assurance and performance standards by December 31, 2011. Then, within 1 year of those regulations, nursing homes must submit a plan for meeting those standards. These standards will provide yet another set of "safety rules" that nursing homes are required to adhere to. Of course, a failure to meet those standards can give rise tort liability.

What effect will this have? It's hard to say.

Nursing home operators are already required to provide training to staff to recognize and report elder abuse. Unfortunately, the typical training regarding elder abuse relates to physical assaults (slapping, hitting, rough handling, and worse). But more typically, "elder abuse" comes in the form of neglect.

If a resident in a nursing home is at particular risk for harm or injury (say at risk for falling or at risk for bedsores), and the nursing home either fails to assess that risk or fails to takes steps to minimize the harm flowing from the risk), either because they are understaffed and don't have time or because implementing those prevention measures would be too costly or too time consuming, that qualifies as "neglect" under the California Elder Abuse Act and should give risk to liability. It also violates a resident's rights to have their needs identified, assessed, re-assessed. As well, a resident's individualized care needs must be identified so that care for those needs can be planned, implemented and periodically re-evaluated.

Continue reading "California Nursing Home Information Will be More Transparent Under New Law (Part 2 of 5)" »

As part of the larger health care reform in our country, President Obama signed into law on March 23, 2010 the Patient Protection and Affordable Care Act (PPACA) which contains provisions for Nursing Home Transparency and Improvement. In a series of posts, I will discuss some of the provisions which affect nursing home care.

This is part 1 in a 5 part series.

Part 1 - Disclosure of Managers

One of the transparency provisions requires nursing home facilities to disclose owners, managers and organizational structure of facilities, including members of the governing body, and identity of each "managing" employee, as well as other "disclosable parties" to the Secretary of the Department of Health and Human Services and the HHS Inspector General in the state in which the facility is located.

Implementation of this provision could prove helpful because, under California law, one way to obtain the enhanced remedies under the Elder Abuse Act against a corporate nursing home operator is to prove bad conduct by an officer, director or "managing agent" of the company. There is wide debate over what constitutes a "managing agent". Does a floor nurse who provides supervision on the night shift qualify or does only the clinical nurse who writes and trains on policies and procedures qualify? California Law requires a managing agent to be in a position to effect policy of the facility. "Managing employee" means an individual who manages, advises, or supervises any element of the practices, finances or operations of a facility. It seems that anyone disclosed as a managing employee would qualify as a managing agent under California law.

Continue reading "California Nursing Home Information Will be More Transparent Under New Law (Part 1 of 5)" »

This month, in a case that illustrates the strong correlation between the level and quality of care a nursing home patient receives and the direct care staff available at a facility, Judge Roland Candee, a Sacramento Superior Court upheld a jury verdict of $29 million against Horizon, a company that owns 33 nursing homes in California. In a classic 'stinging rebuke' of the defendants' request for a new trial or reduction of damages, the Judge said the evidence was "overwhelming" and "devastatingly powerful" to support the jury's verdict.

The case involved the death of an elderly patient who fell at the facility, fracturing a hip that went undetected for days, and required hospitalization and surgery. Upon return to the nursing home she developed a pressure sore that became infected which proved fatal.

All California nursing homes are required to provide 3.2 hours per day of direct patient care. In 2000 this minimum level of staffing came about in response to growing concerns over the quality of care and low number of qualified 'at the bedside' caregivers. Despite this mandate, facilities too often succumb to corporate greed, ignore these laws and regulations, and fail to provide the legally mandated minimum care to their infirm, and dependent patients. Worse still is that most facilities claim that they do provide the required level of care and staffing and then bill whatever payor source - the government, the State, private insurance and even the patients and families themselves as if they had been providing the care not only promised but mandated.

Judge Candee wrote that the trial was a "classic demonstration of how well the jury system works." Encouragingly, the jury awarded $28 million in punitive damages after being presented with evidence of the corporation's net worth of approximately $200 million. This figure stood in sharp contrast to the facility's money-saving and illegal understaffing practices. Damning testimony was also offered by a former employee who opined that he would not place his own family member in the nursing home. Judge Candee apparently agreed and in rejecting arguments for a new trial said, "This was not a close-call case and does not deserve to be re-tried." This Judge and this jury got it right... they expressed in no uncertain terms their intolerance for the acts of those who practice 'profits over patients.'

Nursing home residents have an advocate they may not even know about. California has a Long Term Care Ombudsman Program charged with the responsibility of advocating for the rights of all residents of long term care facilities. There are over 1000 nursing homes in California, so this is no small task. The program is community-supported and staffed largely by volunteers who visit nursing homes, interact with residents, and act as liaisons between residents, family and staff.

In Ventura County, residents who need assistance to improve their quality of life or to trouble shoot a problem may contact the Ventura County Ombudsman Program. Dedicated staff and volunteers have a goal of visiting local skilled nursing facilities once per week and residential care facilities for the elderly (aka assisted living or board and care facilities) once per month.

According to a recent news article on nursing home abuse in Ventura County, in the 10 months ending in May 2010 the Ventura County Ombudsman filed 194 complaints with state agencies for possible violations against 9 county nursing homes which include Maywood Acres Healthcare, Fillmore Convalescent Center, Thousand Oaks Health Care Center, Twin Pines Health Care, Simi Valley Care Center, Camarillo Healthcare Center, Victoria Care Center, Shoreline Care Center, and Country Villa Oxnard Manor Healthcare Center. In 2004, the ombudmsen filed only 10 complaints against these facilities.

Continue reading "Ventura County Ombudsman Program Submit More Complaints of Nursing Home Abuse " »

A nursing home operator can no longer hide behind the perceived "nominal" threat embodied in California law relating to Violations of Residents Rights. Today, in an unprecedented verdict, a Humboldt County jury found in favor of nursing home residents and against Skilled Healthcare Group, Inc. and its subsidiary, Skilled Healthcare, LLC relating to its pattern of chronic understaffing in 22 California nursing homes.

After more than 100 days of trial and 2 weeks of deliberations, the jury determined that Skilled Healthcare will be subject to the maximum penalty allowed under Health & Safety Code Section 1430(b) - $500 per patient per day for each and every day each of the 22 facilities failed to meet the state's minimum staffing regulation of 3.2 nursing hours per patient day. The award will be in excess of $600,000,000. The statute also permits recovery of attorneys fees and costs, which will be substantial.

The plaintiffs were represented jointly by three law firms, whose lawyers are to be credited for their skill and tireless advocacy on this important issue: Michael Thamer, Christopher Healey, W. Timothy Needham, and Michael Crowley.

Nursing homes until now have not felt the intended deterrent effect of Health & Safety Code Section 1430(b), in part because its damages provision is open to interpretation. The statute provides that a nursing home operator "shall be liable for up to five hundred dollars ($500)" but is silent on whether the $500 is per incident, per patient, per day, or a single monetary cap for any violation, whether ongoing or isolated, whether affecting one patient, or many.

This verdict answers the question: per incident, per day and per patient penalties are appropriate. Nursing home operators who formally perceived the risk of non-compliance with the law as a $500 penalty, only if they get caught, and then only if an experienced elder abuse lawyer was willing to challenge them by way of a lawsuit, may actually hesitate to prioritize profits over resident care. Just maybe.

Since the California Legislature enacted the Medi-Cal Long Term Care Reimbursement Act (AB 1629) in 2004, two major reports have evaluated its impact on the quality of care in nursing homes. The first study was put out in April 1, 2008 by the UCSF Department of Social and Behavioral Sciences.

According to these authors, the aim of the Act was to both improve access to homes for Medi-Cal recipients, and to assure high quality of care in nursing homes by increasing staffing and fostering compliance with state and federal regulations. Unfortunately, the study indicated that the new reimbursement rate system, which became facility-specific and cost based (rather than a flat rate across the state) did not result in any substantial improvement in quality as measured by complaints, deficiencies, staffing levels, turnover rates, and wage levels between 2004 and 2006. Average staffing levels improved slightly, but remained well below the threshold of minimum staffing levels recommended by experts. 16 % of state nursing homes failed to meet the minimum staffing levels required by state law.

More recently, in April 2010, California Watch published the results of its investigation into the effects of the Act. It revealed that despite an influx of $880 million in additional funding to California nursing homes since 2004, 232 homes cut staff, paid lower wages, or let staffing levels slip below the state-mandated minimum.

So where did the money go? Nursing homes enjoyed the benefits of increased revenues without any accountability to provide improved care or spend more money on staffing. Nursing homes received the increased funding even if they failed to meet the state minimum staffing levels. When revenue increases, but expenditures remain the same, the net effect can be seen in the bottom line. Nursing homes, particularly large nursing home chains, saw an increase in profits.

The Ventura County Star reports that local county nursing homes have seen an increase in profits since the legislature enacted reforms to how nursing homes are reimbursed by Medi-Cal. Referring to the California Watch study, the Thousand Oaks Health Care appears to have benefitted the most in the County from this reform, received approximately $1.13 million more in revenue in 2008 than in 2004. In total, nine local nursing homes including Maywood Acres Healthcare, Fillmore Convalescent Center, Thousand Oaks Health Care Center, Twin Pines Health Care, Simi Valley Care Center, Camarillo Healthcare Center, Victoria Care Center, Shoreline Care Center, and Country Villa Oxnard Manor Healthcare Center received a combined total of almost $5 million in new funding.

While the aim of the Act (to increase access to nursing home care for Medi-Cal recipients and improve quality of care) is worthy, the Act is flawed because of its lack of accountability. It carries with it no penalties or forfeiture of funding for failing to comply with state and federal regulations, including minimum staffing levels. Adequate numbers of staff, as well as well-trained staff, are the biggest factors affecting patient outcomes in a nursing homes setting. A UCSF Study shows that residents face substantial harm and jeopardy in homes without adequate nurse staffing levels. A minimum of 4.1 hours of direct care per resident per day is recommended by experts, but California law only requires a minimum staffing level of 3.2 nursing hours per patient day. AARP and nursing home advocates have referred to the new law as a "blank check", guaranteeing increased profits without mandating staffing or training improvements.