California Elder Abuse Lawyer Blog

An existing government website has recently expanded to include the patient safety ratings of thousands of U.S. hospitals. This site, Medicare's Hospital Compare features data on surgical complications, infections and potentially avoidable deaths. Sound intriguing? Useful? Consumer-friendly? This is the first step towards government based reductions of Medicare reimbursement of hospitals that don't 'make the grade.' But hold the line and consider the following....

While some information provided on the Medicare website has some usefulness to the average patient; let us examine what this might mean for an individual who suffers from multiple medical co-morbidities and presents a high surgical risk. Such patients are becoming increasingly common today with an aging population that has survived, because of modern medicine, many of the ailments that prior generations succumbed to.

Continue reading "Is Your Hospital Safe? Not so fast, consumers..." »

The Ombudsman in California have authority to receive and investigate serious allegations of neglect and abuse, but cannot share their information without written consent from the victim, even with law enforcement agencies. In fact, facilities are required to send reports of suspected abuse to the ombudsman program, who then has the power to investigate. This puts the ombudsman in the untenable position of knowing about abuse but not being able to report it to any agency who can do something about it.

The primary motive for such strict confidentiality is to ensure that the resident is protected from retaliation by the nursing home if they complain. But the ombudsman reports that three-quarters of residents who complain refuse to release their identities.

That means that the vital services of the unpaid volunteers of the Long Term Care Ombudsman program are handcuffed and that the extent of criminal abuse and neglect in long term care facilities is essentially obscured and under-prosecuted.

Continue reading "California Elder Abuse Report Finds Confidentiality Shackles Ombudsman " »

I previously blogged about the importance of SB 558. California Senate Bill 558 (Sponsor: Simitian) changes the burden of proof from clear and convincing to a preponderance of evidence in elder abuse cases. The nursing home industry lobbied heavily against this bill, and it narrowly passed with the minimum of 21 votes on the Senate Floor on June 1, 2011. It moves next to the Assembly Judiciary Committee. If you wish to express support for the bill, you can do so by writing to members of the Assembly Judiciary Committee.

If a litigant received medical care paid for by Medicare and related to the injury claimed in a lawsuit, the litigant is required to pay Medicare back for those services if they prevail by settlement or jury award. So, the typical nursing home patient suing under the Elder Abuse Act for Neglect likely received medical care for injury related services. Consider, for example, the elderly victim who fell and was transferred to the hospital for hip surgery. Or the elderly nursing home resident who develops severe, infected bedsores and requires surgical debridement and IV antibiotics.

When a lawsuit is initiated under these circumstances, Medicare should be notified. However, the reporting requirements for claims involving liability insurance and the Medicare secondary payer system are murky, confusing, contradictory, poorly understood, and fraught with all the qualities of an ever-moving target.

Recently, The Department of Health and Human Services, Center for Medicare and Medicaid Services and Medicare Secondary Payer Recovery Contractor (MSPRC) mandated that defendants must report lawsuits, not just the plaintiff litigants and/or their counsel. However, MSPRC just announced a one-year moratorium on these reporting requirements. These requirements, due to have been implemented next month have been delayed until October 11, 2011. This moratorium means that defendants will not be required to report settlements that occurred prior to October 11, 2010. If one checks the MSPRC web site, no information is available as of today's date concerning this change.

Continue reading "California Nursing Home Settlements Subject To One-Year Moratorium on Medicare Secondary Payer Reporting Requirements" »

An 82 year old male who, during a rehabilitative stay following treatment for back spasms, suffered two falls in the middle of the night, one on October 1 and a second fall on October 2. The second fall resulted in a brain injury. He suffered bleeding in the brain which caused pressure, which had to be relieved by surgically boring holes in his skull. He was hospitalized for nearly 6 weeks and spent another 6 weeks recuperating from treatment and complications from the falls at another nursing home, before he was able to return home. He required a feeding tube, had wore diapers, he had to regain strength to walk and care for his own needs.

Nursing homes charged with a responsibility to assess a residents "risk" for falling and then to take reasonable steps to both (1) minimize the risk of falling and (2) minimize injury in the event of a fall. In this case, the patient was undoubtedly a high fall risk, given his back spasms and the use of pain medications. However, the facility failed to assess him as "high" risk. Accordingly, the resident was not provided with a fall-related care plan (a set of documented actions nursing will implement to resolve problems identified by assessment and re-assessment) indicating what safeguards the nursing staff should take to prevent falls and/or to prevent or minimize injury from falls.

In this case, the resident tried to get up to go to the bathroom in the middle of the night when he suffered his first fall. This put the facility on notice that the patient would attempt to get up unassisted. Once on notice, the facility needed to take steps to keep him safe. Such steps might include lowering the bed to the floor, pushing it up against a wall so there is only one side to get in and out of the bed, putting a pad on the floor next to the bed to cushion a patient if they fall, padding the corners of the furniture and other hazards, using siderails while the patient is in the bed to make it difficult to get up unassisted, using pressure pads in the bed that alarm and alert nursing staff when the patient shifts weight in an effort to get out of bed, implementing a frequent toileting schedule (offering assistance to the bathroom or a bedpan every hour or two in the nighttime), use of a bedside commode (so the resident doesn't have to walk very far to the bathroom, particularly in the night). These are just examples of the types of interventions that keep nursing home residents safe. Acceptance of the axiom that "old people fall" is not the norm.

Continue reading "Ventura County Nursing Home Fails to Protect Patient from Multiple Falls and Head Injury " »

The California Department of Public Health issued a Class AA citation and a $100,000 fine against Eskaton Care Center Manzanita in Carmichael, California. This is the highest fine the state can issue for a nursing home's failure to comply with the law. AA citations are issued when a resident death has occurred in such a way that it has been directly and officially attributed to the responsibility of the facility.

In this case, a 60 year old patient confined to a wheel chair needed help getting into and out of bed. Special lifts are designed to transfer residents who need this much help. When it was used to transfer the patient at Eskaton, it broke and the woman fell out of the lift, hit her head, and suffered a fatal head injury. The state found the facility failed to follow basic safety rules in maintaining equipment in its nursing home. According to maintenance records, the lift used at Eskaton was supposed to be inspected monthly to ensure it was working properly, but in this case it had not been checked in five years.

A spokesperson for the facility called this event a "tragedy". The lift broke when used as intended. But the accountability for the operation of the lift rests with the facility for failing to follow basic safety rules requiring regular inspection of the lift to ensure it was fit for use. The condition of the lift, as noted by the State, was such that it "posed an imminent danger of death or serious harm to patients." Had the nursing home operators been performing their regular monthly checks, such a tragedy could have been avoided.

Continue reading "California Nursing Home Fined by State For Failure to Maintain Equipment" »

Ventura County social workers developed an assessment tool aimed at ensuring elders get necessary medical care. A federal grant of $654,000 will fund the project, sending medical specialists into the homes of elders or disabled adults who neglect their own needs for shelter, nutrition and healthcare in the face of deteriorating conditions or chronic diseases.

Currently, Ventura County social workers make home visits to isolated seniors who may need assistance getting proper nutrition, making and getting to medical appointments, and even paying their bills. But social workers lack ability to render medical care or force the sick to seek medical attention. The program hopes to establish that when an elder is visited at home by a doctor, he or she will be able to take prompt medical intervention in the face of an impending crisis and avoid a catastrophic consequence of self neglect.

Elders and disabled adults are particularly vulnerable to self-neglect due to their age, frailty and medical conditions. They feel isolated and lack resources to get the care they need. Of course, when someone is unable to care for their needs at home, placement in a nursing home is one option. One of the benefits of this study might be that home support services enable an elder to avoid a nursing home. One obvious benefit to avoiding the nursing home (as long as the elder's needs can be safely met at home), is to avoid being set up for abuse and neglect in a facility. It is not uncommon for an elder's condition to deteriorate and go un-noticed in a nursing home, because the volume of patients is high and the number of staff low. Another obvious benefit is that the cost of caring for someone in a nursing home is very high, and often paid for by government assistance (Medi-Cal). If this program can help keep elders who are largely capable of providing for their own needs, but need some help and supervision from time to time, out of a nursing home and in their own homes, it would create a win-win situation.

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 3 in a 5 part series

Part 3 - Staffing

In California, nursing homes are required to provide a minimum of 3.2 Nursing Hours Per Patient Per Day (NHPPD). And nursing home operators are constantly making these calculations. By taking the total hours worked by direct caregivers (RNs, LVNs, CNAs providing hands on care) for a 24 hour period and dividing by the number of residents in the nursing home for that same 24 hour period (referred to as the census), the NHPPD can be calculated. However, these figures are not publicly available.

California nursing homes are required to post in a public place in each facility a similar calculation which is comprised of the number of direct care staff working each shift multiplied by 8 hours (on the assumption each person works an 8 hour shift) and divided by the census. This gives an approximation of the NHPPD, but does not take into account caregivers who work less than (or more than) the 8 hour shift, caregivers who call in sick, RNs who are not providing direct care but rather performing administrative functions, and it is often filled out by rote based upon a monthly or daily schedule. In short, it is not a reliable indicator of staffing. Further, nursing homes don't often keep these records over time so if litigation ensues and a request is made for staffing information, said request is often responded to by saying the facility does not routinely keep that type of information.

So, what does the Nursing Home Transparency and Improvement provision require as it relates to staffing? Nursing homes must submit direct care staffing information to HHS based on payroll data in a uniform format. The information must specify the "category of work" such as whether the employee worked as an RN, LVN, CNA, therapist, or other medical personnel. The provisions also require submission of resident census and information relating to employee turnover and tenure.

Continue reading "California Nursing Home Information Will be More Transparent Under New Law (Part 3 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 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)" »

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 " »

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.