Are California SNFs Prepared For Variants To The Extent Possible – See France’s Situation

Below is a link that I saw this morning, from Reuters discussing France’s increasing difficulties with the UK COVID variant. This and other variants are already in California (pursuant to news reports).

This falls under the categories of risk management, health and safety, compliance, and governance, and potentially litigation and liability, internal controls and processes, internal investigations, and mediation/mediator and dispute or conflict resolution.

It is appropriate to ask and determine: are and how are California SNFs prepared for the variants to the extent possible? And this is and will remain an ongoing issue that will develop and and change over time, and is always present under infectious controls. These are issues not just for individual SNFs to deal with, but also for government executives and legislators, regulatory agencies, SNF and health care professionals and organizations, nursing home residents, resident family members and family councils, and other people and stakeholders.

Here’s the link: https://mobile.reuters.com/article/amp/idUSKBN2AE0EX?__twitter_impression=true&s=09

Best to you, Dave Tate, Esq.

With All Eyes on COVID-19, Drug-Resistant Infections Crept In – Important for Nursing Homes and Elder Care

I am forwarding a Yahoo news article link (see below) – I take no credit or responsibility for the article. For nursing homes this falls in the categories of resident safety, care and infection risk management processes, liability exposure, board and committee oversight, and persons-in-charge responsibilities (CEO/President, Medical Director, Director of Nursing, etc.). Good for family councils to know, ask about, and follow up on. It’s not just COVID and the new and increasing variants.

https://news.yahoo.com/eyes-covid-19-drug-resistant-194626483.html

Best to you. David Tate, Esq.

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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 & Governance: 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

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

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

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?

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

Deaths From Opioids Now Exceed Vehicle Deaths (Forwarding) – But Where Are The Numbers For Seniors And People In Care Facilities?

The following is a link to a short article discussing deaths from opioids now exceeding vehicle deaths. You have already been hearing a lot about opioids and deaths and addictions. Click Here

My issue with the discussion is that information and numbers aren’t given for seniors and people in care facilities. More is needed.

Best to you, David Tate, Esq. (and inactive California CPA)

Blogs: California trust, estate, and elder abuse litigation and contentious administrations http://californiaestatetrust.com; D&O, audit committee, governance and risk management http://auditcommitteeupdate.com

If you have found value in 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 above), and connect with me on LinkedIn or Twitter.

From CANHR – California’s Broken Long Term Care System (November 2018); Care Requirements; Applied to ERM and Risk Management

I am forwarding a paper prepared by California Advocates for Nursing Home Reform (CANHR). The paper is only 11 pages, but it is packed with point by point information. Here is the link to the paper: http://www.canhr.org/reports/2018/White_Paper/White_Paper_LTC_In_California.pdf

I have represented clients in serious injury and wrongful death cases against nursing homes, including, for example, unlawful restraints, beatings, improper staffing, and grossly negligent drops resulting in death. I must say, however, that I was surprised by the chilling information presented by CANHR. I also note that an increase in funding is requested to help remedy the situation – but as far as I am aware this is not a priority in the governor’s proposed new California budget.  

CANHR’s paper covers the following topics:

California’s Broken Long Term Care System:
• Nursing Homes
• Residential Care
• Home and Community Based Services
• Elder Abuse
What’s Wrong & What Needs to Be Done

Nursing homes are heavily regulated. Below, at the bottom on this post, I have copied and pasted two federal laws regulating nursing home quality of life and quality of care requirements. For example, a nursing home is required to provide care and services to enable each resident to attain his or her highest physical, mental, and psychosocial well-being. I ask that you read through to the bottom of this blog post including the two statutes that are included.

So . . . after reading CANHR’s paper and the recommendations provided, it would be appropriate to ask what, if anything, the governor, legislature, regulators, and nursing home owners, operators, executive officers, boards of directors, and others including the nursing director and medical director, are going to do to fix the problems?  I also refer you to my other blog discussing executive officer, director, audit committee, risk management, governance and other topics, http://auditcommitteeupdate.com. These types of issues involve and require (1) from a personal perspective – a feeling of personal humanity and care for people who truly are dependent on others, and (2) from the business perspective – enterprise risk management (COSO ERM 2017) and internal controls (COSO Internal Control 2013), and personal risk management for each and every resident of the nursing home.

The following are the broad components and principles in the COSO 2017 enterprise risk management framework:

And the following is an overview of a risk management process that you can use:

Best to you, David Tate, Esq. (and inactive California CPA)

Blogs: California trust, estate, and elder abuse litigation and contentious administrations http://californiaestatetrust.com; D&O, audit committee, governance and risk management http://auditcommitteeupdate.com

If you have found value in 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 above), and connect with me on LinkedIn or Twitter.

david-tate-picture-large-cropped

The following are the two federal regulations to which I referred above:

42 CFR §483.24 Quality of life

Quality of life is a fundamental principle that applies to all care and services provided to facility residents. Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, consistent with the resident’s comprehensive assessment and plan of care.

(a) Based on the comprehensive assessment of a resident and consistent with the resident’s needs and choices, the facility must provide the necessary care and services to ensure that a resident’s abilities in activities of daily living do not diminish unless circumstances of the individual’s clinical condition demonstrate that such diminution was unavoidable. This includes the facility ensuring that:

(1) A resident is given the appropriate treatment and services to maintain or improve his or her ability to carry out the activities of daily living, including those specified in paragraph (b) of this section,

(2) A resident who is unable to carry out activities of daily living receives the necessary services to maintain good nutrition, grooming, and personal and oral hygiene, and

(3) Personnel provide basic life support, including CPR, to a resident requiring such emergency care prior to the arrival ofemergency medical personnel and subject to related physician orders and the resident’s advance directives.

(b)Activities of daily living. The facility must provide care and services in accordance with paragraph (a) of this section for the following activities of daily living:

(1) Hygiene – bathing, dressing, grooming, and oral care,

(2) Mobility – transfer and ambulation, including walking,

(3) Elimination – toileting,

(4) Dining – eating, including meals and snacks,

(5) Communication, including

(i) Speech,

(ii) Language,

(iii) Other functional communication systems.

(c)Activities.

(1) The facility must provide, based on the comprehensive assessment and care plan and the preferences of each resident, an ongoing program to support residents in their choice of activities, both facility-sponsored group and individual activities and independent activities, designed to meet the interests of and support the physical, mental, and psychosocial well-being of each resident, encouraging both independence and interaction in the community.

(2) The activities program must be directed by a qualified professional who is a qualified therapeutic recreation specialist or an activities professional who –

(i) Is licensed or registered, if applicable, by the State in which practicing; and

(ii) Is:

(A) Eligible for certification as a therapeutic recreation specialist or as an activities professional by a recognized accrediting body on or after October 1, 1990; or

(B) Has 2 years of experience in a social or recreational program within the last 5 years, one of which was full-time in a therapeutic activities program; or

(C) Is a qualified occupational therapist or occupational therapy assistant; or

(D) Has completed a training course approved by the State.

42 CFR §483.25 Quality of care

Quality of care is a fundamental principle that applies to all treatment and care provided to facility residents. Based on the comprehensive assessment of a resident, the facility must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices, including but not limited to the following:

(a)Vision and hearing. To ensure that residents receive proper treatment and assistive devices to maintain vision and hearing abilities, the facility must, if necessary, assist the resident –

(1) In making appointments, and

(2) By arranging for transportation to and from the office of a practitioner specializing in the treatment of vision or hearing impairment or the office of a professional specializing in the provision of vision or hearing assistive devices.

(b)Skin integrity –

(1)Pressure ulcers. Based on the comprehensive assessment of a resident, the facility must ensure that –

(i) A resident receives care, consistent with professional standards of practice, to prevent pressure ulcers and does not develop pressure ulcers unless the individual’s clinical condition demonstrates that they were unavoidable; and

(ii) A resident with pressure ulcers receives necessary treatment and services, consistent with professional standards of practice, to promote healing, prevent infection and prevent new ulcers from developing.

(2)Foot care. To ensure that residents receive proper treatment and care to maintain mobility and good foot health, the facility must –

(i) Provide foot care and treatment, in accordance with professional standards of practice, including to prevent complications from the resident’s medical condition(s) and

(ii) If necessary, assist the resident in making appointments with a qualified person, and arranging for transportation to and from such appointments.

(c)Mobility.

(1) The facility must ensure that a resident who enters the facility without limited range of motion does not experience reduction in range of motion unless the resident’s clinical condition demonstrates that a reduction in range of motion is unavoidable; and

(2) A resident with limited range of motion receives appropriate treatment and services to increase range of motion and/or to prevent further decrease in range of motion.

(3) A resident with limited mobility receives appropriate services, equipment, and assistance to maintain or improve mobility with the maximum practicable independence unless a reduction in mobility is demonstrably unavoidable.

(d)Accidents.The facility must ensure that –

(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

(e)Incontinence.

(1) The facility must ensure that a resident who is continent of bladder and bowel on admission receives services and assistance to maintain continence unless his or her clinical condition is or becomes such that continence is not possible to maintain.

(2) For a resident with urinary incontinence, based on the resident’s comprehensive assessment, the facility must ensure that –

(i) A resident who enters the facility without an indwelling catheter is not catheterized unless the resident’s clinical condition demonstrates that catheterization was necessary;

(ii) A resident who enters the facility with an indwelling catheter or subsequently receives one is assessed for removal of the catheter as soon as possible unless the resident’s clinical condition demonstrates that catheterization is necessary, and

(iii) A resident who is incontinent of bladder receives appropriate treatment and services to prevent urinary tract infections and to restore continence to the extent possible.

(3) For a resident with fecal incontinence, based on the resident’s comprehensive assessment, the facility must ensure that a resident who is incontinent of bowel receives appropriate treatment and services to restore as much normal bowel function as possible.

(f)Colostomy, urostomy, or ileostomy care. The facility must ensure that residents who require colostomy, urostomy, or ileostomy services, receive such care consistent with professional standards of practice, the comprehensive person-centered careplan, and the residents’ goals and preferences.

(g)Assisted nutrition and hydration. (Includes naso-gastric and gastrostomy tubes, both percutaneous endoscopic gastrostomy and percutaneous endoscopic jejunostomy, and enteral fluids). Based on a resident’s comprehensive assessment, the facility must ensure that a resident –

(1) Maintains acceptable parameters of nutritional status, such as usual body weight or desirable body weight range and electrolyte balance, unless the resident’s clinical condition demonstrates that this is not possible or resident preferences indicate otherwise;

(2) Is offered sufficient fluid intake to maintain proper hydration and health; and

(3) Is offered a therapeutic diet when there is a nutritional problem and the health care provider orders a therapeutic diet.

(4) A resident who has been able to eat enough alone or with assistance is not fed by enteral methods unless the resident’s clinical condition demonstrates that enteral feeding was clinically indicated and consented to by the resident; and

(5) A resident who is fed by enteral means receives the appropriate treatment and services to restore, if possible, oral eating skills and to prevent complications of enteral feeding including but not limited to aspiration pneumonia, diarrhea, vomiting, dehydration, metabolic abnormalities, and nasal-pharyngeal ulcers.

(h)Parenteral fluids. Parenteral fluids must be administered consistent with professional standards of practice and in accordance with physician orders, the comprehensive person-centered care plan, and the resident’s goals and preferences.

(i)Respiratory care, including tracheostomy care and tracheal suctioning. The facility must ensure that a resident who needs respiratory care, including tracheostomy care and tracheal suctioning, is provided such care, consistent with professional standards of practice, the comprehensive person-centered care plan, the residents’ goals and preferences, and § 483.65 of this subpart.

(j)Prostheses. The facility must ensure that a resident who has a prosthesis is provided care and assistance, consistent with professional standards of practice, the comprehensive person-centered care plan, and the residents’ goals and preferences, to wear and be able to use the prosthetic device.

(k)Pain management. The facility must ensure that pain management is provided to residents who require such services, consistent with professional standards of practice, the comprehensive person-centered care plan, and the residents’ goals and preferences.

(l) Dialysis. The facility must ensure that residents who require dialysis receive such services, consistent with professional standards of practice, the comprehensive person-centered care plan, and the residents’ goals and preferences.

(m)Trauma-informed care. The facility must ensure that residents who are trauma survivors receive culturally-competent, trauma-informed care in accordance with professional standards of practice and accounting for residents’ experiences and preferences in order to eliminate or mitigate triggers that may cause re-traumatization of the resident.

(n)Bed rails. The facility must attempt to use appropriate alternatives prior to installing a side or bed rail. If a bed or side rail is used, the facility must ensure correct installation, use, and maintenance of bed rails, including but not limited to the following elements.

(1) Assess the resident for risk of entrapment from bed rails prior to installation.

(2) Review the risks and benefits of bed rails with the resident or resident representative and obtain informed consent prior to installation.

(3) Ensure that the bed’s dimensions are appropriate for the resident’s size and weight.

(4) Follow the manufacturers’ recommendations and specifications for installing and maintaining bed rails.

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Dr. Kerry Burnight on Live Long and Master Aging – Loneliness, Aging, Technology and GrandPad

Below I have provided a link to a podcast with Dr. Kerry Burnight on Live Long and Master Aging, in which Dr. Burnight, a gerontologist, discusses many aspects of aging, including, for example, the value of older people, and how technology can help with aging loneliness. Dr. Burnight also discusses a product that she is involved with, the GrandPad and how they worked to make the product specifically useful for older users. The podcast is somewhat long; however, you will find that there are useful comments and information throughout. Here is the link to the podcast http://www.llamapodcast.com/kerry-burnight/

As I was listening to the podcast I started thinking about the usefulness of the GrandPad in terms of risk management or enterprise risk management (ERM), and legal duties, responsibilities and rights, in the context of nursing homes for example. Is a product like the GrandPad something that nursing homes should (or must?) provide or make available to their residents, to make it easier for a resident to safely stay in touch with family and friends, for socialization, for mental stimulation and to help prevent decline in mental capabilities, and for personal daily living enjoyment?  

Best to you, David Tate, Esq.

And here is a snapshot of the Live Long and Master Aging website page:

Snapshot of Kerry Burnight on Long Live and Master Aging

David Tate, Esq. (and inactive California CPA), Royse Law Firm, Menlo Park, California office, with offices in northern and southern California.  My blogs: trust, estate, elder abuse and conservatorship litigation http://californiaestatetrust.com, D&O, boards, audit committees, governance, etc. http://auditcommitteeupdate.com, workplace http://workplacelawreport.com

OVERVIEW OF A RISK MANAGEMENT PROCESS THAT YOU CAN USE 03162018

Audit Committee 5 Lines of Success, Diligence, and Defense - David Tate, Esq, 05052018

COSO Enterprise Risk Management Framework ERM Components and Principles

David Tate, Esq., Overview of My Practice Areas (Royse Law Firm, Menlo Park, California office, with offices in northern and southern California. http://rroyselaw.com)

  • Civil Litigation: business, commercial, real estate, D&O, board and committee, founder, owner, investor, creditor, shareholder, M&A, and other disputes and litigation
  • Probate Court Litigation: trust, estate, elder abuse, and conservatorship disputes and litigation
  • Administration: trust and estate administration and contentious administrations representing fiduciaries and beneficiaries
  • Workplace (including discrimination) litigation and consulting
  • Board, director, committee and audit committee, and executive officer responsibilities and rights

Royse Law Firm – Overview of Firm Practice Areas – San Francisco Bay Area and Los Angeles Basin

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation as this is my primary area of practice)
  •             Business & Commercial
  •             IP – Patent, Trademark, Copyright, Trade Secret, NDA
  •             Accountings, Fraud, Lost Income/Royalties, Etc.
  •             Internet Privacy, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, D&O, Board/Committee, Shareholder
  •             Lender/Debtor
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, and Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions, Including AgTech and HealthTech, Etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

Disclaimer. This post is not a solicitation for legal or other services inside or outside of California, and also does not provide legal or other professional advice to you or to anyone else, or about a specific situation – remember that laws are always changing – and also remember and be aware that you need to consult with an appropriate lawyer or other professional about your situation. This post also is not intended to and does not apply to any particular situation or person, nor does it provide and is not intended to provide any opinion or any other comments that in any manner state, suggest or imply that anyone or any entity has done anything unlawful, wrong or wrongful – instead, each situation must be fully evaluated with all of the evidence, whereas this post only includes summary comments about information that may or may not be accurate and that most likely will change over time.

Another disturbing nursing home story, in addition the Florida IRMA SNF deaths – need for ERM, leadership, transparency, reporting, and follow-up

I have also posted this discussion at http://lawriskgov.com

Below, at the bottom of this blog, I have pasted a video at a nursing home that I came across on Yahoo. First some disclaimers – by now we should all be aware that watching snippets or portions of a video does not tell the whole story, knowing the whole story could present a different situation, we don’t know all that was said or that occurred, and, of course, I have no personal knowledge of these events, but am simply passing this along.

That having been said, the video and information presented are disturbing.

At her deposition the supervising nurse testified that what occurred is different than what the video shows, and acknowledges or admits this, and she admits that the nurses or nursing assistants on scene acted wrongfully and should have been fired if the truth had been known.

If not for the video the truth would not have come to light.

An issue arose whether it was legal to install a secret video recording device in the resident’s room. It is my understanding that a nursing home resident is a resident, not a patient, and that the nursing home, and their particular room is their home.

The lawyer mentions that he cannot say anything about the settlement agreement with the nursing home. In California, except in limited circumstances, Code of Civil Procedure §2017.310 makes a confidential settlement agreement unlawful if the factual foundation presents a case of elder or dependent adult abuse.

California also has a criminal elder abuse statute at Penal Code §368. I’m not saying that the acts in the video were criminal – based on what is being shown, in a court of law more likely the acts would be considered medical malpractice in nature, but could still be civil elder abuse.

The nursing home would raise a whole host of defenses to liability, including, for example, possibly, that the plaintiffs or prosecution cannot show with evidence that the actions of the nursing home actually caused the resident’s death. But there also could be issues about burden of proof, and it is possible that the burden of showing no wrongful conduct could be shifted to the defendant nursing home.

We could go on and on with this. There is a lot more that I would like to know, including, for example, about the policies and procedures of the nursing home at the time of the incident, and about the investigation that the nursing home did at the time of the incident and whether that investigation, if any was done, was sufficient and performed appropriately and in good faith?

I would also like to know about the “new management” of the nursing home, and about current policies and procedures, and whether the events of this occurrence were presented to the public or kept secret by the state nursing home regulatory authorities.

These stories and what occurs later in time get buried by the now constant 24 hour news and social media cycle – do you remember the hurricane IRMA story about the 8 nursing home residents who died because the air conditioning went out, but then weren’t transferred by the nursing home to a safe facility (such as, for example, possibly the nearby hospital) – well . . . what has happened since that time in the investigation, and so that something like that will not occur again?

That’s all for now. I’m David Tate. I’m a California litigation attorney. I also handle governance and risk management. You need to consult with an attorney or appropriate professional about your situation. This blog post and/or video or audio is not an advertisement or solicitation for services inside or outside of California. Thanks for listening or reading.

Here is the link to the nursing home video,

https://www.yahoo.com/lifestyle/disturbing-video-shows-dying-wwii-vet-neglected-nursing-home-193149764.html

David Tate, Esq., Royse Law Firm, Menlo Park, California office, with offices in northern and southern California. http://rroyselaw.com

See also my blogs at http://lawriskgov.com and at http://auditcommitteeupdate.com

Royse Law Firm – Practice Area Overview – San Francisco Bay Area and Los Angeles Basin

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation because this is my primary area of practice)
  •             Business
  •             Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  •             Trade Secrets, NDA, Accounting Issues, Fraud, Lost Income, Royalties, Etc.
  •             Privacy, Internet, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, Board & Committee, Shareholder, D&O, Etc.
  •             Insurance Coverage and Bad Faith
  •             Lender/Debtor
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, and Contentious Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions Including AgTech, HealthTech, Etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

Audit Committee 5 Lines of Defense 10222017 David W. Tate, Esq. jpg

 

 

Why Are There Some San Mateo County Nursing Homes That Don’t Make Music Available For Therapy – What About In Your Area?

I have heard that it can be difficult, perhaps impossible, to get nursing homes to make music available for their residents. I can surmise why that is so. It’s because making music available, even for therapy treatment, is an additional task that nursing homes don’t want to undertake.

But you say: “It has been shown that music therapy offers a bright new dementia treatment for some nursing home residents with dementia.” And some foundations or third-party providers make the equipment available for free use. So what gives? Music therapy can make the elder resident’s days more pleasant, and could even reduce the need for medications.

If music was a drug, it would be given. But giving a drug doesn’t take as much time or staff effort. Sort of sounds like inadequate staffing, and failure to satisfy legal responsibilities to care for the resident and improve the resident’s life and condition.