Tag Archives: elder care

Focus on nursing homes and COVID-19: COVID-19 clinical trials in nursing homes, and California seizes control of two nursing homes

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Below I have provided links to two nursing home articles – the first article discusses conducting COVID-19 clinical trials in nursing homes, and the second article discusses California seizing control of two nursing homes due to COVID-19. I have also provided a few of my additional comments.

Click on the link below for the first article which discusses COVID-19 clinical trials being conducted in nursing homes, and some of the clinical-related difficulties that are presented when conducting trials in nursing homes. I will add one difficulty that is not discussed: the need to obtain voluntary, knowledgeable resident consent to being a clinical trial subject! One would have to ask, is the particular resident capable of giving informed consent to participate in the clinical trial? And/or, was informed consent obtained from the resident’s attorney in fact or other decision maker – and can that person provide informed consent without first obtaining instructions from a court? If neither of the two above consents were obtained, who provided consent – the nursing home and/or the medical director and/or the director of nursing? Frankly, each of these “consent” scenarios raises significant red flags that must be evaluated on a resident by resident basis. Here is the link to the article: https://skillednursingnews.com/2020/08/eli-lilly-launches-covid-19-clinical-trial-in-nursing-homes-with-symphony-as-partner/

Click on the following link for this second article which discusses California seizing control of two nursing homes due to COVID-19 and resident risk. https://patch.com/california/southsanfrancisco/s/h6jy2/how-ca-seized-control-2-troubled-nursing-homes-covid-19-loomed. Note that I have not provided this link because of the fact that California seized the two nursing homes – instead, I have included this article because of the discussion indicating or suggesting that state oversight of nursing homes and resident care and conditions is sadly lacking. Assisted living and nursing home facilities and businesses provide and are required to provide residences, and care and daily living need services to and for some of the most needy, dependent and vulnerable members of our society, and many people in those facilities don’t have family members or friends who are available to advocate for and take actions that are in the resident’s best interests. Inadequate oversight adds to the residents’ risks.

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes & Mediator: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas

Blogs:

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

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IT’S A GOOD TIME FOR NURSING HOME AND RESIDENTIAL CARE FACILITY FAMILY COUNCILS TO GET ACTIVE

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California nursing homes and residential care facilities must permit, and assist, family councils. You can refer to California Health and Safety Code §§1418.4 and §1569.158. An active family council can be effective in improving care at the facility.

With respect to nursing homes, in relevant part, §1418.4(g) states that “The facility shall consider the views and act upon the grievances and recommendations of a family council concerning proposed policy and operational decisions affecting resident care and life in the facility,” and §1418.4(h) states that “The facility shall respond in writing to written requests or concerns of the family council, within 10 working days.”

And with respect to residential care facilities, in relevant part, §1569.158(f) states “If a family council submits written concerns or recommendations, the facility shall respond in writing regarding any action or inaction taken in response to the concerns or recommendations within 14 calendar days.”

The above wording is very broad as to the types of issues, grievances, concerns and recommendations that a family council might consider and raise with the facility.

Thus, for example, obviously facilities should have already reviewed their policies and procedures to prevent, minimize and remedy illnesses at the facility. Click on the following link  https://wp.me/p1wbl8-vG for my blog post entitled “An illness spreads through a nursing home . . . some of the possible issues and legal issues to evaluate . . .”

1.  Is the risk management and compliance program well designed, and how does the facility know that?

2.  Is the risk management and compliance program being implemented effectively, and how does the facility know that?

3.  Does the risk management and compliance program work in practice, and how does the facility know that?

Obviously the above 3 points are major considerations for which the facility would need to effectively and extensively drill down into the details.

Best to you, Dave Tate, Esq. (San Francisco and California)

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediations and Services as a Mediator

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Status Of The California State Auditor’s Recommendations To Improve Oversight Of Substandard Nursing Home (SNF) Quality Of Care – Nothing Has Been Implemented? – And What About ESG And/Or GRC?

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On occasion I look at the website of the California State Auditor. The Auditor audits State of California agencies and State of California programs that pay or distribute money to other organizations or entities. The Auditor also provides status updates relating to its recommendations.

Quite a while ago (it looks like 2018) the Auditor made some recommendations to improve oversight of substandard nursing home (SNF) conditions. Nursing homes are highly regulated by both federal and California statutes and regulations, although those statutes and regulations proscribe only minimum levels of care and for only those areas for which the statutes and regulations have been enacted.

Some nursing homes meet, or sometimes exceed, the minimum requirements, whereas other nursing homes fail to meet some or all of the minimum requirements.

Based on my experience in nursing home cases (suing on behalf of residents and their families for improper care and elder abuse) and as a past board member of a county Long-Term Care Ombudsman Services program, and based on observations and comments by other people for many years, it has long been clear that residents are better cared for when the care and daily living conditions that they are provided, and that they are not provided, and detailed documentation of those matters, are and can be observable and obtained by family members, friends, family councils, Ombudsman Services, and other outside stakeholders and interested people.

Everyone would agree that nursing home residents individually and as a group are vulnerable and are dependent on other people for their health, care, and well-being. So I came across the below status update by the California State Auditor about recommendations (apparently made in 2018) for improved oversight of substandard nursing home conditions, and it is with great disappointment that apparently none of the recommendations have actually come to be.

I have provided below a link to the Auditor’s status update report, and snapshots of the report (please note that the length of the report really is too long for a good single snapshot so I have divided the report into the three snapshots that I have provided below (the snapshots are one after the other just as they appear in the Auditor’s report), and you can also click on the below link).

And I add, briefly, where do ESG (environmental, social, and governance) reporting and expectations come into play and requirement for nursing homes. I’m not seeing that it is required. Or a prior acronym that mostly isn’t used anymore but which would also be relevant for nursing home care and its oversight: GRC or governance, risk, and compliance. Nothing of the sort will become implemented or voluntarily standard for nursing homes and other providers of care and services to elders, dependent adults, and other people with disabilities unless there is interest and push by their family members, friends, stakeholders, and other people and organizations.

Best to you, Dave Tate, Esq.

Here is the link to the California State Auditor’s status report http://www.bsa.ca.gov/reports/recommendations/2017-109

And below are the best that I could do for snapshots of the report:

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com; Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com