California Elder Law Attorney Blog

Recently, the Seattle Times newspaper began a series of reports, entitled "Seniors for Sale," by reporter Michael Berens, on abuse and neglect of elderly residents in adult family homes in Washington. Some find it shocking that the owners of these facilities need only 48 hours of training - and some manage to bypass it - while their staff members get 35 hours.

Washington voters in 2008 overwhelmingly approved increasing training for long-term care workers to 75 hours, and requiring criminal background checks, but the state has put off implementing Initiative 1029 because of budget problems. Nancy Dapper, executive director of the Alzheimer's Association of Western and Central Washington, says she's not surprised by the sad cases detailed in the articles.

"If you don't invest in the system, and have the right training for workers and the right regulatory environment and enforcement by the state, the stories are what happens every day."

Dapper says at least half the people in long-term care have some form of dementia and multiple medical problems that make specialized training important. She is concerned that frail seniors are too quickly overlooked when state dollars are tight.

"This affects everybody. So, if you've got a mom, a dad, a grandma, I'm telling you, you're going to want to know that you have a state system that has the right level of regulation and the right level of enforcement. And I think you're willing to pay it, when it's your own relative."

Dapper believes the state has the right idea for its long-term care system by keeping people in home settings as much as possible as they age, but only if training and follow-up is sufficient to keep them safe.

Continue reading "Washington Voters Overwhelming Approve Increasing Training for Long Term Care Workers" »

Roughly 120 assisted living advocates convened in Washington D.C. recently as part of the Assisted Living Federation of America's annual federal "fly-in" day.

The initiative is part of ALFA's continuing effort to educate policy makers on the importance of assisted living as a long-term care option, and the differences between assisted and skilled nursing care. Advocates held more than 470 meetings with senators, congressmen and staffers, according to a statement from ALFA. The number of participants in this year's event was twice that of last year, organizers said.

The skilled nursing community shares many of the issues ALFA advocated for Tuesday. They include opposition to the Fairness in Nursing Home Arbitration Act and the Employee Free Choice Act, as well as support for a national Silver Alert system to help locate wandering dementia residents.

Continue reading "Assisted Living and Skilled Nursing Care Advocates Educate Public" »

Key terms
Overall rating One (worst) to five (best) stars, determined by the federal Centers for Medicare and Medicaid Services based on data in three elements: health inspections, nurse staffing, and measures of quality of care.
Total stars One (worst) to 15 (best). CMS gives homes one to five stars in each of the three elements above. The total of all three elements is part of the U.S. News rankings process. The rest involves star ratings in the individual categories.
Health inspections Conducted by state inspectors at least every 15 months to determine compliance with Medicare and Medicaid standards for food safety, hiring practices, and other aspects of running a nursing home. Homes get one to five stars based on the three most recent regular inspections plus any complaint-related inspections in the past three years.
Nurse staffing Homes get one to five stars based on average time per patient spent by registered nurses, licensed practical nurses, licensed vocational nurses, and certified nursing assistants. Calculation reflects hours worked during two-week period before most-recent regular health inspection divided by number of residents, adjusted by residents' needs and health status.
Quality measures Homes get one to five stars depending on the most recent three quarters of data reported by homes on percentages of residents who received certain care, such as flu vaccinations, and who had care-related problems such as pain, bedsores, or urinary tract infections. Nineteen measures are displayed. Star ratings were determined by 10 with especially high reliability.
Individual nursing home details
Medicare/Medicaid participation Most nursing homes accept Medicare, which pays all or part of the cost of a stay following hospitalization of at least three days; coverage is limited to 100 days per hospitalization. Medicaid covers a stay of any length for individuals who meet income requirements and are ineligible for or have exhausted their Medicare benefits.
Number of beds How many beds are certified for Medicare and/or Medicaid residents. Private-pay beds are not included.
Ownership Nursing homes can be owned by for-profit corporations, nonprofit groups, religious bodies, and other types of organizations.
Initial certification Date home was certified as meeting Medicare or Medicaid requirements. Date when state licensed home to operate is different.
Continuing-care retirement community Provides spectrum of care that changes over time according to resident's needs, from independent apartment living to assisted living to full-time nursing-home care. Generally costly, with a large upfront payment in addition to monthly fees.
Part of a chain Two or more homes under one owner or operator.
Special-Focus Facility (SFF) A nursing home with a persistently bad or erratic history of care. It will be monitored and reinspected until it either has improved enough to be taken off the SFF list or it loses its Medicare or Medicaid certification.
Health inspection details
Health inspections Conducted by state inspectors at least every 15 months to determine compliance with Medicare and Medicaid standards for food safety, hiring practices, and other aspects of running a nursing home. Homes get one to five stars based on the three most recent regular inspections plus any complaint-related inspections in the past three years.
Health deficiencies Specific health or safety requirements the nursing home failed to meet in an inspection.
Complaint investigations Conducted based on complaint from family, friends, or others to state survey agency.
Inspection date When regular or complaint-related inspection was conducted.
Severity of health deficiency Indicates degree of seriousness. 1=did not harm but posed a threat of minor harm; 2=did not harm but posed a threat of more than minor harm; 3=caused harm but did not immediately put residents in jeopardy; 4=immediately threatened health or safety.
Scope of health deficiency Relative number of residents who were or could have been affected. 1=few or none; 2=some; 3=many.
Nurse staffing details
Nurse staffing Homes get one to five stars based on average time per patient spent by registered nurses, licensed practical nurses, licensed vocational nurses, and certified nursing assistants. Calculation reflects hours worked during two-week period before most-recent regular health inspection divided by number of residents, adjusted by residents' needs and health status.
Hours per resident (all nurses) Average care time per resident per day spent by registered nurses, licensed practical nurses, and licensed vocational nurses, reflecting hours worked during two weeks before most-recent regular health inspection. Adjusted by residents' health status and condition.
Hours per resident (RNs only) Average care time per resident per day spent by registered nurses, reflecting hours worked during two weeks before most-recent regular health inspection. Adjusted by residents' health status and condition.
Hours per resident (LPNs, LVNs) Average care time per resident per day spent by licensed practical nurses and licensed vocational nurses, reflecting hours worked during two weeks before most-recent regular health inspection. Adjusted by residents' health status and condition.
Hours per resident (CNAs) Average care time per resident per day spent by certified nurse assistants, reflecting hours worked during two weeks before most-recent regular health inspection. Adjusted by residents' health status and condition.
Quality measure details
Quality measures Homes get one to five stars depending on the most recent three quarters of data reported by homes on percentages of residents who received certain care, such as flu vaccinations, and who had care-related problems such as pain, bedsores, and urinary tract infections. Ten of the 19 displayed measures determined the star rating. Indicates adequacy of care such as percentages of residents with pain, bedsores, or urinary tract infections. From data nursing homes are required to collect and report for each resident. The star rating is based on 10 of the 19 measures shown.
Long-stay measures Apply to residents who are in a home for longer than a few days or weeks.
Short-stay measures Apply to residents who are in a home for a brief period to recuperate or to receive rehabilitative services.
Fire safety details
Fire safety Medicare- and Medicaid-certified nursing homes must meet safety standards set by the National Fire Protection Agency.
Fire safety deficiencies Ways in which nursing home failed one or more NFPA standards in the most recent inspection.
Severity of fire deficiency Indicates seriousness of failure. 1=did not harm but posed a threat of minor harm; 2=did not harm but posed a threat of more than minor harm; 3=caused harm but did not immediately put residents in jeopardy; 4=immediately jeopardized health or safety.
Scope of fire deficiency Relative number of residents who were or could have been affected. 1=few or none; 2=some; 3=many.

Continue reading "Key Elements Used In Determining the Quality of Care in Nursing Homes: What to Look For" »

On a given day, 1.5 million people are living in the nation's 16,000-plus nursing homes, and in a typical year more than 3.2 million Americans will spend at least some time in one. That's a lot of families who need to find good care, which is why U.S. News ranks and displays data about nearly every one and updates the information every quarter. The Honor Roll lists the 11 homes that have received perfect ratings for four consecutive quarter says California Nursing Home Abuse and Neglect Attorney Steven C. Peck.

The U.S. News rankings rely on Nursing Home Compare, a program run by the federal Centers for Medicare and Medicaid Services. CMS analyzes information on all homes enrolled in Medicare or Medicaid other than about 150 too new to provide data and gives them ratings of one to five stars overall. The homes also receive ratings of one to five stars in each of three areas: health inspections, nurse staffing, and measures of care advises California Elder Law Lawyer Peck.

At Nursing Home Compare, you can search for a specific home or for all homes in a particular state or within a certain distance of your city or ZIP code. But you can't assume that all five-star homes, or those with three or four stars, are of the same quality. There are so many homes in each rating--1,855 in the five-star and 3,661 in the four-star categories alone--that the range of performance is bound to be very wide. Nor can search terms be combined if, say, you want only five-star homes within 50 miles of a specific city indicates California attorney Steven C. Peck.

America's Best Nursing Homes addresses these and other issues. Homes are presented in tiers within each star category, based on their total stars in all three of the major areas. The topmost tier, for example, consists only of five-star homes that got 15 stars. The next tier down is five-star homes with 14 total stars, and so on. Within each tier, homes are listed alphabetically. If you're hunting for a home by state, region, city, or ZIP code and turn up too many to be readily managed, search terms can be combined in order to narrow the results to homes that have a religious affiliation, for example, or that accept Medicare residents. Or you can launch a multipronged search, perhaps for religiously affiliated five-star Medicare homes within 50 miles of a particular city.

All of the homes in the 50 states and the District of Columbia that are included in Nursing Home Compare are in the Best Nursing Home rankings; CMS cannot evaluate a small number that take only private-pay residents. Here are more details about the measures that go into the CMS ratings.

Health inspections. Because almost all nursing homes accept Medicare or Medicaid residents, they are regulated by the federal government as well as by the states in which they operate. State survey teams conduct health inspections on behalf of CMS about every 12 to 15 months. They also investigate health-related complaints from residents, their families, and other members of the public. "Health" is broadly defined, as is evident in the 180-some items on the checklist. Besides such matters as safety of food preparation and adequacy of infection control, the list covers such issues as medication management, residents' rights and quality of life, and proper skin care. A home's rating is based on the number of deficiencies, their seriousness, and their scope, meaning the relative number of residents who were or could have been affected. Deficiencies are counted that were identified during the three most recent health inspections and in investigations of public complaints in that time frame. State inspectors also check for compliance with fire safety rules, although their findings do not factor into the CMS ratings. Best Nursing Homes displays the full range of health and fire inspection results online.

Nurse staffing. Even the best nursing care is not enough if there are too few nurses to spend much time with residents, so CMS determines average nursing time per patient per day. Homes report the average number of registered nurses, licensed practical nurses, licensed vocational nurses, and certified nurse aides who were on the payroll (agency temps are not counted) during the two weeks prior to the most recent health inspection and their number of hours worked. The information is compared with the average number of residents during the same period and crunched to determine the average number of minutes of nursing time residents got per day. A home had to provide at least 33 minutes per patient to receive five stars in the latest ratings. The actual numbers appear in the rankings online.

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Continue reading "Nursing Home Data and Rankings Affect Nursing Home Residents" »

The elderly will outnumber children for the first time in 2045, ratcheting demand on nursing homes and increasing the burden on working-age people to support retirees, a United Nations report found.

The proportion of the world's population older than 60 years will reach 22 percent over the next four decades from 11 percent in 2009 and 8 percent in 1950, the UN's Department of Economic and Social Affairs said in the report, titled World Population Ageing 2009.

The ranks of the elderly are expanding 2.6 percent a year, three times faster than humanity as a whole, mostly because people are living longer and having fewer children. The trend will affect economic growth, savings, investment, consumption, labor markets, pensions and taxation, the UN found. It will also influence living arrangements, housing demand, migration trends and the need for health-care services.

"As children account for a declining proportion of the population, there may be a reduction in the number of schools just as the increasing share of the older population begins to require more long-term care facilities, says California Elder Law Attorney Steven C. Peck.

The number of people older than 60 surpassed 700 million worldwide last year and is projected to swell to 2 billion by 2050, or triple the level in 2000. In most countries, the population over 80 is growing faster than any other age group and will continue growing rapidly until at least 2050, indicating "a growing demand for long-term care," indicates California Financial Abuse attorney Steven C. Peck.

Today, the median age for the world is 28 years. The north central African nation of Niger has the youngest population with a median age of 15; Japan has the oldest, with a median age of 44, according to the report. Worldwide, the median age will likely increase by 10 years over the next four decades.

Contact Steven Peck's Premier Legal toll free to talk to an experienced California Elder Law and Neglect Layer toll free at 1.866.999.9085 and visit us on-line at www.premierlegal.org.

ACE (Advocates for Conserved Elders) Volunteer Recruitment - The next two-day training is Saturday, January 30, and Saturday, February 6, 2010 from 9 a.m. - 5 p.m. The training is free, breakfast snacks and lunch are served, and attorneys receive 13 hours of MCLE credit. For a more detailed ACE volunteer position description and an application, please contact Laraine Mestman at 310.394.9871 ext. 445 or at Lmestman@wiseandhealthyaging.org.

"ACE Volunteers help serve as an extra pair of "eyes and ears" for the court in its effort to reduce isolation, loneliness and elder abuse among nearly 9,200 conserved elders in Los Angeles County."

Last year, Jane completed her requirements to become an ACE Volunteer. She was assigned to Charlotte, a victim of elder financial abuse. Her conservator is the Public Guardian. When Jane first met Charlotte, she was introduced to a wheel-chair bound elder, who had no friends to visit her. She said, "Thank G_ I have someone to talk to!" as she indicated her deaf roommate in the next bed. When Jane asked Charlotte what TV programs she liked to watch, Charlotte said, "I can't turn on the TV. I don't have a remote." Within minutes, Jane was able to rectify the problem. When Charlotte first complained of being depressed, she told Jane that she didn't want to live anymore. Jane made the report back to the ACE project manager, who in turn notified the PG and the facility. Through Jane's intervention, Charlotte was able to get the help that she needed. Charlotte has also become a part of Jane's life. They share meals and Charlotte dresses up for Jane's appointments. When Jane travels, she sends Charlotte postcards of the places she visits.

About one of every 20 elders is a victim of neglect or physical, psychological or financial abuse, according to statistics from the California Attorney General's Crime and Violence Prevention Center. More than 132,000 elders in California are abused in nursing homes each year, and that estimate is probably very low because only one in 14 cases of elder abuse is reported to authorities.
There are more long-term care facilities in the City and County of Los Angeles than there are in any entire state other than California. To help prevent and reduce elder abuse here, WISE & Healthy Aging, a nonprofit social services agency dedicated to helping seniors, launched an innovative, volunteer-based project for seniors and dependent adults who are under court-ordered conservatorships and residing in residential care facilities and skilled nursing facilities in Los Angeles County.
The Advocates for Conserved Elders (ACE) project is supported primarily by a grant from the California Community Foundation (CCF). It was developed in partnership with the Los Angeles Superior Court (LASC), the largest probate court in the state and possibly the nation, which received 1,500 petitions for conservatorship in 2005. "Other counties have visitation programs, but nothing like the ACE program," said Ret. Superior Court Judge Aviva K. Bobb, former Presiding Judge of the Probate Division of the Los Angeles Superior Court. "It would be a natural evolution for this program to serve as a prototype for other communities throughout the country." Last year, the Los Angeles Superior Court nominated the ACE Program for the prestigious Ralph N. Kelps Award.
The court is required by the California Probate Code to conduct periodic reviews of the adequacy of care provided to conservatees and the appropriateness of financial management provided by conservators. Depending on the specifics of each case, these reviews must take place every year or every other year. The court employs probate investigators, attorneys and support staffs, but the growing number of seniors and the rising incidence of abuse complaints are increasing the burden on limited resources. Also, because many conservatees live in isolated situations, they may need more regular contact with someone they can relate to as a "friend." "Although they are often at heightened risk for abuse, many conserved seniors do not have access to a dedicated, consistent third-party advocate. We are delighted to be working with the Los Angeles Superior Court, through the ACE program, to train volunteers who will be available to take an interest in the total well-being of the conservatee, working to improve quality of life and reporting any care-related problems to the court," said Grace Cheng Braun, President and CEO of WISE & Healthy Aging. "The project builds upon the strengths of the Court Appointed Special Advocates program, a nationally recognized model for assisting children. The Los Angeles Superior Court has one of the largest, most experienced CASA programs in the nation."
ACE Volunteers must be over 21 years of age, attend a free two-day training, and commit to visiting conservatees two times a month, from anywhere to 15 minutes to an hour, for six months to a year. The volunteer goes through a security background clearance, a TB test, and gets their fingerprints taken at LASC. Under the ACE project arrangement, WISE & Healthy Aging, in conjunction with the Probate Court Investigators, will train the ACE volunteers. The court has established the criteria for identifying conservatees at greatest risk of elder abuse and isolation and providing appropriate names and addresses to project administrators.
ACE volunteers serve as regular visitors, providing a degree of social interaction for elderly conservatees. They establish an on-going relationship with the conservatees in order to diminish isolationism and loneliness. During their visits, if the volunteers hear of any complaints about the care received or observe anything that would lead them to suspect abuse or neglect, the volunteer immediately notifies the ACE project manager. In addition to regular monthly reports and meetings, the ACE project manager will liaison with the Los Angeles Superior Court Probate Investigators if there are concerns about neglect or abuse. There is immediate access to the court's Probate Investigations Office. And as required by state law, reporting will occur for any instances of abuse or neglect to the appropriate agencies, including local law enforcement, Adult Protective Services, or the Long-Term Ombudsman Program, as well as the Court and the Conservator. As the only organization authorized by the State Department of Aging to provide long-term care ombudsman services within the City and County of Los Angeles, WISE & Healthy Aging is in a unique position to fulfill this reporting role.

For more information about WISE & Healthy Aging services and programs, please call 310.394.9871.
( THIS BLOG WAS PRINTED WITH THE EXPRESS PERMISSION OF WISE & HEALTHY AGING BY STEVEN PECK A CALIFORNIA ELDER LAW ATTORNEY LOCATED IN VAN NUYS, CALIFORNIA)

State health officials on November 16, 2009 said that a Las Vegas adult group care home is being fined $109,600 for failing to give a resident proper medications. This is tantamount to Elder Abuse.

The Nevada State Health Division's Bureau of Health Care Quality and Compliance said it sanctioned the Loyalton of Las Vegas, 3025 E. Russell Road, four times since May after state officials found that a woman didn't get medicine prescribed by her physician. Failing to follow a physician's orders is considered Elder Abuse and Neglect.

The bureau found that the home's staff had not given the woman and another 10 of 20 residents their prescribed medications in May.

Inspections in June, July, September and October by state officials found that the home still wasn't administering medications properly and was failing to keep agreements signed with the state to do so, said Richard Whitley, the health division's administrator.

The penalties were figured by assessing $800 a day for false compliance between June 16, the day the state accepted the home's agreement to administer medicines, through Oct. 30, a total of 137 days

Continue reading "Las Vegas Nursing Home Fined $ 109,600 for Failing to Give Residents Proper Medications" »

As we reach for the dream of health care for all, we need to focus our reform energies on improving patient safety. Preventing medical errors will lower health-care costs, reduce doctors' insurance premiums and protect patients.

Taking away patients' rights does not improve the quality of our health-care system or produce cost savings. The myth that "reforming" our medical-malpractice system will somehow save money is particularly dangerous, as it asks us to give up a fundamental right in exchange for affordable and accessible health care. This so-called bargain would not benefit anyone except the insurance industry.

Instead, let's look at the real facts of medical malpractice and its cost implications and not take away the rights of innocent victims of medical malpractice and their families.

The true crisis in medical malpractice is negligent medical care. The Institute for Medicine estimates that more than 98,000 deaths a year are caused by preventable medical errors, making this our nation's sixth-leading cause of death. The cost to the system of these deaths alone is estimated at more than $29 billion dollars annually -- twice the cost of the malpractice system as a whole.

Yet despite the numerous injuries and deaths from preventable medical injury, most injured people do not file lawsuits, according to the Harvard School of Public Health. Public Citizen found that malpractice litigation costs amount to less than 0.6 percent of overall health-care spending, and malpractice payouts are at an all-time low. In Washington state, medical-malpractice cases made up just 0.3 percent of all civil cases filed between 2002 and 2008, according to data from the Washington State Administrative Office of the Courts. As national expert and author Tom Baker said, "We have an epidemic of medical malpractice, not of malpractice lawsuits."

State of Washington Registered Nurse and Lawyer Patricia Greenstreet believes that the so-called malpractice "reforms" offered by the insurance industry will not only increase the costs for injured families; they will result in breaking many families financially. When that happens, taxpayers pick up the continuing costs of these often-catastrophic injuries, the insurer gets a free ride, and the costs don't go away. This is no bargain or trade-off. It's robbery.

Another persistent myth is the wrong idea of "defensive medicine" and the costs that it purports to add to the health-care system. The idea that extra tests are ordered only to protect from fictitious lawsuits, and not because of our fee-for-service health-care system that rewards ordering extra tests and procedures, is defied by research and common sense. Insurance companies and Medicare will not pay for unnecessary costs, treatments and procedures.

No empirical evidence demonstrates that defensive medicine exists. On the contrary, a 2004 report by the nonpartisan Congressional Budget Office noted, "some so-called defensive medicine may be motivated less by liability concerns than by the income it generates for physicians or by the positive (albeit small) benefits to patients."

The best way to save money in the health-care system is to prevent injuries from preventable errors in the first place.

Public and private organizations like the Centers for Medicare & Medicaid Services and HealthGrades are offering cutting-edge solutions for the prevention of the costs -- and human misery -- caused by these errors. Let's follow the example set by anesthesiologists, who looked at their own practices to increase patient safety by developing new guidelines to reduce errors. The safety changes they implemented make them among the safest practitioners in the U.S., with malpractice insurance rates that have fallen.

It is by curing the epidemic of preventable medical errors that we can achieve reduced costs for patients and families, but also for the whole system. Let's focus on what has been proven to reduce costs and improve lives -- eliminating preventable errors -- rather than giving up fundamental rights as a bargaining chip.

Continue reading "Prevention of Medical Errors The Real Culprit For Innocent Victims" »

In-Home Supportive Services care will be reduced or axed for 130,000 Californians starting Nov. 1, the state Department of Social Services announced Friday.

The program pays caregivers with a combination of federal, state and county money, as well as recipients' out-of-pocket contributions.

Hours are assigned to caregivers in the homes of blind and disabled children, or low-income seniors over 65 with varying degrees of frailty.

The Social Services Department was required to cut $82.1 million in in-home care this year due to state budget cuts.

About 97,000 recipients ranked as relatively capable will lose certain services, including housekeeping, meal preparation, shopping and errand assistance. Another 36,000 will lose all services.

Social workers contend in-home aid helps keep recipients from having to enter nursing homes, which can cost the public more.

Contact Steven Peck's Premier Legal toll free at 1.866.999.9085 to talk to an experienced California Elder Law attorney and visit us on-line at www.premierlegal.org.

Lawmakers and consumers testified on September 14, 2009 before a House subcommittee, calling for new, tough laws restricting the ability of companies to force customers into mandatory binding arbitration when disputes arise. The law could help protect consumer access to the courts in cases against nursing homes, banks, cable companies and other corporations.

Congress is currently considering two different pieces of legislation that would restrict forced arbitration clauses contained in many agreements consumers must sign to do business with companies in many industries critical to Americans' day-to-day life.

Representative Henry C. Johnson of Georgia has introduced the Arbitration Fairness Act, which would prevent all pre-dispute arbitration clauses that could be considered "forced" due to economic and social needs of the individual, and Rep. Linda Sanchez of California has introduced the Fairness in Nursing Home Arbitration Act of 2009, which would nullify all such clauses contained in admission agreements that prevent residents or family members from filing a nursing home negligence lawsuit or other claim in open court.

A report released on Monday by Public Citizen found that 75% of eight major industries require customers to sign pre-dispute arbitration agreements, including banks, cable/internet providers, home builders, and car dealerships. These agreements require customers to sign away their ability to go to court if they have been wronged, and most companies refuse to give customers information about their arbitration requirements until they are ready to agree to sign a contract.

Defenders of the practice object to calling the agreements mandatory, since consumers are not forced to sign the contract, and other clauses in contracts that people may not be familiar with are not considered to be mandatory. Stephen J. Ware, a professor of law at the University of Kansas, testified against passage of the bills, saying that pre-dispute arbitration prevents load on the court system, and that there are pre-existing laws which allow courts to nullify arbitration agreements which are unfairly utilized.

Critics of the practice say that when such agreements become ubiquitous in key industries, especially ones where people have little choice but to participate, then such agreements become de facto mandatory requirements.

"Checking a parent or other relative into a nursing home or other long-term care facility is a perfect example of a time when one party really has no real power or choice in the matter," Sanchez said in her testimony before the House Subcommittee on Commercial and Administrative Law. "For desperate families who are unable to provide adequate care at home, the need for an immediate placement for their loved ones makes the 'take-it-or-leave-it' choice no choice at all."

Contact Steven Peck's Premier Legal toll free at 1.866.999.9085 to talk to an experienced california elder law attorney and visit us on-line at www.premierlegal.org

August 31, 2009 was D-Day for Barbara Porter, director of the Inland Empire Adult Day Health Care Center (ADHC) in Corona, Calif. That is when, due to recent state budget cuts, MediCal (the Medicaid program in California), will slash its funding level for users of ADHCs from five-days a-week to three.

"Our families are scrambling," said Porter. "I know of at least 10 elderly participants who will be put into nursing homes immediately because there is no one to care for them those two days they can't come here."

The Inland Empire ADHC is one of 340 adult day programs in California. An ADHC is a licensed MediCal-certified health facility that treats the health and other needs of older adults with multiple chronic conditions, such as Alzheimer's or Parkinson's disease. The centers provide an organized day program of therapeutic, social and health services, and offer a respite for families caring for loved ones who can't be left alone.

Because two days of the workweek have been cut, the options left for families are not easy. For most family caregivers, reducing their hours or quitting their job to provide care is not an option during these tough economic times. So many will either pay the ADHC out-of-pocket rate, hire a "sitter," put relatives in a nursing home, or risk leaving them home alone.

"Some of our participants require 24-hour care," said Porter. "Leaving them alone would be considered abuse."

The elders who come to the Inland Empire ADHC fall into two groups--those who have been developmentally disabled for most of their lives, and others struggling with the ravages of aging, such as dementia and other chronic illnesses.

"People come to us when Grandpa forgets and leaves the stove on, or when Grandma has a stroke and needs daytime care," said Porter. About 100 participants come to her center regularly.

Years ago, developmentally disabled adults seldom reached old age, however because of advances in treatments over the years, life expectancy is growing longer.

"Some of these people are over 60 and being cared for by aging siblings because the parents have passed on," Porter observed.

"Because people are living longer, it is not uncommon for us to see frail elderly children caring for sick elderly parents, or vice-versa."

"Our Son is Helpless"

Family caregivers, such as 63-year-old Corona resident Sandy Davis, depend on ADHCs to give them a break from the constant demands of caring for a severely disabled loved one.

Sandy's son Desmond, 36, suffers from a complex mental illness called schizoaffective disorder, which includes paranoid bipolar disorder and major depression.

To control the condition, Desmond takes a host of medications. However, prolonged use has caused medically induced Parkinson's disease.

"There have been times when Desmond has been hospitalized over 20 times in a single year," said Davis. "My husband and I assist him in taking his medication, eating, dressing and bathing. Our son is helpless."

Davis feels "blessed" to have a daughter and grandchildren who can help with Desmond's future care. For now, though, Inland Empire ADHC has given the family a respite from 24-hour caregiving and provided Desmond a chance to exercise and interact with others in a safe, medically controlled environment.

Davis is still employed, so her retired husband will have to pick up the slack during the additional two days. "I know Desmond will be disappointed," she says. "He loves the time he spends with friends at the day center." Family caregivers and advocates for elders are searching for alternative ways to counter the missing two days of service.

While some residents of more affluent coastal cities can afford to pay as much as $200 daily in out-of-pocket costs for adult day health care, many family caregivers in the Inland area cannot afford the $80-a-day rate the Inland Empire ADHC charges.

MediCal covers $76.50 per day for ADHC services, and $170 to $200 per day for nursing home care--so it will cost the state more if caregivers resort to putting their loved ones in nursing homes.

In addition, not all nursing homes accept MediCal. Some only allot a small number of beds to the low-income MediCal patients. Recently, in an impromptu survey of nursing homes within a 50-mile radius of the Inland Empire ADHC, Porter found only one MediCal bed available.

"I Can't Lose My Job"

The situation is especially grave for family caregivers in the Inland Empire, an area devastated with high unemployment and foreclosure rates. Porter reports, "Families are calling me crying because they don't know what they are going to do. Few can afford to pay because they are already dealing with housing and employment issues."

One family member in constant contact with Porter these days is "Louise," who asked not to be identified by her real name.

An office administrator for a nonprofit, Louise said her mother, 69, suffers from seizures and other repercussions from a stroke she had 17 years ago. She is completely disabled and requires constant care.

Louise is locked in a battle with her boss to restructure her workweek so she can care for her Mom on one of the two days she can't go to the center. "I want to work 10-hour days Monday through Thursday, so that I can stay home with my Mom on Friday's. My boss is not hearing it--she won't go for it because I manage the office and she needs me there all five days."

For the other eliminated day, Louise's grown daughter and high school-age son will care for their grandmother. "My daughter wants to move out of the house, but she can't because I need her help with Mom. She is able to cut some hours on her job to be here on Tuesday, until my son gets home from school. He can't participate in after school activities, because even when my Mom is at the center, they bring her home around 3 p.m., and he is the only one who can be home then."

All three women, Porter, Davis and Louise admit the situation could be much worse.

Gov. Schwarzenegger had initially recommended eliminating funding for ADHCs entirely, prompting family caregivers throughout the state to write impassioned letters to the State Budget Committee asking that the funding be saved.

The lost two days of MediCal funding for adults day health care resulted from a compromise between the governor and state Assembly Democrats.

In a conference call with ethnic media following the budget agreement, Assembly Speaker Karen Bass said her goal was "to prevent the proposed elimination of California's safety net" for families, children and seniors.

"The governor wanted to eliminate adult day care," said Speaker Bass. "We fought for it."

Still, California became the only state in the U.S. to cap ADHC at 3-days-per-week. In the short run the measure will save state an estimated $24 million. However, all agree that these savings will be lost if families are forced to place their loved ones in nursing homes.

Furthermore, experts warn that California is a long way from being out of the woods as property and income tax revenue continues to fall and social service needs rise. The hard-hit Inland Empire region is not expected to see economic recovery before 2011.

The current economic crisis has not only affected families using Inland Empire ADHC-- three of the center's staff members have lost homes to foreclosure this year.

Porter laments that times will get worse as families grapple with caregiving responsibilities, increased stress, and the strain if making ends meet.

"Caregiving burnout is high anyway and now it will only get worse," she said. "None of us knows where this is going to end," she said.
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Written patient care policies and procedures shall be established and implemented to ensure that patient related goals and facility objectives are achieved as is established by California Administrative Code Title 22 Section 72523.
(b) All policies and procedures required of these regulations shall be in writing, made available upon request to physicians and other involved health professionals, patients or their representatives, employees and the public shall be carried out as written. Policies and procedures shall be reviewed at least annually, revised as needed and approved in writing by the patient care policy committee.
(c) Each facility shall establish and implement policies and procedures, including but not limited to:
(1) Physician services policies and procedures which include:
(A) Orientation of new physicians to the facility and changes in physician services and/or policies.
(B) Patient evaluation visits by the attending physician and documentation of alternate schedules for such visits.
(2) Nursing services policies and procedures which include:
A) A current nursing procedure manual.
(B) Provision for the inventory and identification of patients' personal possessions, equipment and valuables.
(C) Screening of all patients for tuberculosis upon admission. These procedures shall be determined by the patient care policy committee. A tuberculosis screening procedure may not be required if there is satisfactory written evidence available that a tuberculosis screening procedure has been completed within 90 days of the date of admission to the facility. Subsequent tuberculosis screening procedures shall be determined by the attending physician.
(D) Notification of physician regarding sudden or marked adverse change in a patient's condition.
(E) Conditions under which restraints are used, the application of restraints, and the mechanism used for monitoring and controlling their use.
(3) Infection control policies and procedures.
(4) Dietary services policies and procedures which include:
(A) Provision for safe, nutritious food preparation and service.
(B) A provision for maintaining a current dietetic service procedure manual.
(5) Pharmaceutical services policies and procedures.
(6) Activity program policies and procedures.
(7) Housekeeping services policies and procedures which include provision for maintenance of a safe, clean environment for patients, employees and the public.
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If you or someone you love is injured or dies in a medical malpractice case, there are limits to how much money you can recover in court.

A recent challenge to the California state law that caps some damages was struck down in a state appeals court. But the issue may be headed to the state's high court next.

Holly Stinnett's husband, Stanley, died after a series of medical mistakes in a hospital.

"Never in my entire life did I ever see myself at 39 being a widow, never," Stinnett said.

She sued the doctor and the hospital, and the hospital settled just before trial.

A jury found the doctor negligent and awarded Stinnett $1.4 million in medical costs and lost wages and, $6 million for pain and suffering.

However, Stinnett will likely collect much less because of a state law that limits damages for pain and suffering in medical malpractice suits at $250,000.

The California State Legislature passed the Medical Injury Compensation Reform Act -- or MICRA -- back in 1975.

The state legislature was supposed to keep doctors' insurance rates reasonable so they wouldn't leave California to practice somewhere else.

Dr. Paul Phinney, who works for the California Medical Association, said MICRA has held doctor insurance premiums down.

"MICRA stabilized that situation and provided a mechanism of compensating patients fairly, while still preserving access for patients to quality, affordable medical care," Phinney said.

Under MICRA, medical costs and lost wages -- called economic damages -- are unlimited.

"The more money that's pulled out of health care into the pockets of personal injury lawyers, the less money that's available to health care," Phinney said.

Pain and suffering -- or non-economic damages -- are limited to $250,000 dollars.

Chris Dolan with Consumer Attorneys of California says that's not justice.

"If you lose your husband, your wife, your child, your leg, that value is $250,000," Dolan said.

What's worse, Dolan says, economic damages don't apply to the elderly and children.

Those patients or their families can only collect up to $250,000.

"It was just a terrible thing to do to people who've been harmed and a great thing to do to the insurance companies' bottom line," Dolan said.

"You can't replace what I've lost, but for future people, for the people out there that do need that, to get started again, they need to change the law," Stinnett said.
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Governor Schwarzenegger has signed Assembly Bill 392 (Feuer), urgency legislation that will immediately restore $1.6 million for local Long-Term Care Ombudsman programs over the next year. The bill will help ensure protection from abuse and neglect for California´s vulnerable and elderly residents of nursing care and assisted living facilities.

"This legislation could make the difference between life and death for nursing home patients facing abuse or neglect. Now patients and their families who depend on the Ombudsman to monitor facilities and investigate key complaints can rest a little easier," said Assembly member Mike Feuer (D-Los Angeles).

The funds for the local programs will come from existing penalties paid by long-term care facilities that have failed to comply with federal laws for the protection of residents, meaning that AB 392 has no General Fund costs.

Last year, Governor Schwarzenegger vetoed $3.8 million in funding for local Ombudsman programs, representing about half their funding. As a result of the cuts, the programs have been forced to lay off staff and drastically reduce services, compromising their abilities to investigate complaints and monitor facilities.

Since these cuts have taken effect, residents have suffered the dire consequences of unchecked poor treatment. In late June 2009, a Northern California facility owner and one care giver were arrested on suspicion of criminal abuse and neglect of a resident whose untreated pressure sores were so severe that they resulted in fatal sepsis. After the arrest, the two suspects posted bail and continued to collect payment to provide care for the six other facility residents. With the funding restored for the next year, local Ombudsman programs will be able to respond to cases where similar reports of abuse are made.

"California´s senior citizens not only bear a disproportionate share of reductions in health and home care services, but they are particularly vulnerable to abuse," said Assemblymember Dave Jones (D-Sacramento), a joint author of the bill. "This is prevents the rollback of the oversight and protections provided by the Long-Term Care Senior Ombudsman program. I am pleased to join Assembly member Feuer in authoring AB 392 and speaking out to protect funding for this invaluable program."

Local Ombudsman programs conduct frequent unannounced monitor visits to facilities, and they provide timely response to reports of suspected abuse and neglect. They investigate thousands of abuse cases each year. Without the scrutiny of the Ombudsman programs, the facilities are reviewed just once a year (or less) by government agency inspectors. No other program duplicates this critical advocacy service.

California´s population of adults over 60 is projected to grow to 6.5 million by 2010 and up to 9 million by 2020. As Californians grow older, it will be especially necessary to make sure that the long term care facilities that serve this population are properly monitored and complaints investigated.

Steven Peck's Premier Legal is devoted to the representation of elders. Contact us toll free at 1-866-999-9085 to talk to an experienced elder law attorney.

In the United States, two-thirds of nursing homes are investor-owned, for-profit businesses. But are they better than not-for-profit homes? The results of an analysis published today suggest that not-for-profit homes, overall, may provide higher quality care.

The paper, published online in the British Medical Journal, examined 82 studies carried out in the United States and Canada between 1965 to 2003. Forty studies showed significantly better quality in not-for-profit homes and three showed the quality was better in for-profit homes. The remaining studies, however, had mixed results, which suggests wide variability among institutions.

Nursing homes, whether for-profit or not-for-profit, vary substantially in their management styles, motivations and organizational behavior, the authors note. Thus, they wrote, the report is not a blanket judgment of all institutions. "Some for-profit institutions may provide excellent quality care, whereas some not-for-profit institutions may provide inferior quality care."

However, in the big picture, the analysis found that nursing home residents in the United States would receive 500,000 more hours of nursing care per day if all not-for-profit institutions provided all nursing home care.

Given the costs of nursing home care and the fears families have about the well-being of their loved ones, more research describing the qualities of superior nursing homes might be in order.

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