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

 

 

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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.

New Story – elder in board and care assisted living (RCFE) runs out of money, and doesn’t qualify for a nursing home under Medi-Cal

I heard about this recently – a new situation is arising. I’m just telling you about it. The elder is living in a residential care facility for the elderly, sometimes referred to as a RCFE, or assisted living or board and care. The elder is paying with private money. The assets and money run out. The elder doesn’t have family, or the family doesn’t have money, or the family won’t pay for the elder. Medi-Cal will not pay for a RCFE. In the past, in some situations, going to a nursing home was a last resort as Medi-Cal will pay for the cost of the nursing home. In the past the referral to a nursing home might merely have needed a doctor’s signature. Increasingly, Medi-Cal or its agents or representatives are starting to evaluate whether the elder’s physical, medical or mental conditions actually qualify the elder to be in the nursing home. In other words, if it is decided that the elder’s conditions are not sufficiently bad to qualify the elder to be in the nursing home, Medi-Cal will not pay for the costs of the nursing home, and the elder either will not be allowed initially into the home, or the nursing home and Medi-Cal will want to discharge and force the elder from the nursing home. But in those situations the elder has nowhere that she or he can afford with private pay.

Nursing home won’t implement a music program – it should be part of the care plan – by law

You might be aware that it has been found that music and musical activities can be helpful and therapeutic, including for the purpose of reducing or eliminating antipsychotic and other medications, for elders and seniors in geriatric care, palliative care, with Alzheimer’s and other dementia, and with depression.

And I have heard that grants and funding for these types of activities are available, but that for the most part nursing homes are not implementing these programs, possibly because to do so would require some additional nursing home time and staff resources.

The excuse for not implementing these programs entirely misses the point, breaches a nursing home’s care duties, and quite possibly also breaches duties and responsibilities pertaining to medications and dosages that might be reduced or eliminated if the musical activity and therapy was provided.

Providing music, if it will be helpful for the resident, is a care evaluation and care plan issue, that the nursing home must address and provide if it would be beneficial to the wellbeing and care of the elderly resident. It’s that simple.

I encourage people to work together to force nursing homes to provided these programs for residents for whom it would be beneficial.

Dave Tate, Esq. (San Francisco and California)

The Nursing Home Resident Care Plan – Indispensable Critical Importance

Below I have pasted 22 California Code of Regulations section 72311, which is one of the California laws that discusses the requirement that a nursing home develop, have, implement and update a care plan for each resident. The resident’s care in part flows from that care plan, which establishes processes and procedures for that resident. The care plan must be updated as often as necessary to reflect a change in the resident’s condition. Failure to satisfy care plan requirements is negligence, and might also constitute negligence per se, neglect, abandonment, gross negligence, elder abuse and/or intentional wrongdoing. It reminds me of a case that I handled – although the care plan called for 3 CNAs to move the resident, after the fall in injury, the CNAs testified that there were never 3 CNAs present or used because the staffing scheduled by the nursing home was inadequate.

Dave Tate, Esq. (San Francisco and California)

22 CCR § 72311
§ 72311. Nursing Service – General.

(a) Nursing service shall include, but not be limited to, the following:
(1) Planning of patient care, which shall include at least the following:
(A) Identification of care needs based upon an initial written and continuing assessment of the patient’s needs with input, as necessary, from health professionals involved in the care of the patient. Initial assessments shall commence at the time of admission of the patient and be completed within seven days after admission.
(B) Development of an individual, written patient care plan which indicates the care to be given, the objectives to be accomplished and the professional discipline responsible for each element of care. Objectives shall be measurable and time-limited.
(C) Reviewing, evaluating and updating of the patient care plan as necessary by the nursing staff and other professional personnel involved in the care of the patient at least quarterly, and more often if there is a change in the patient’s condition.
(2) Implementing of each patient’s care plan according to the methods indicated. Each patient’s care shall be based on this plan.
(3) Notifying the attending licensed healthcare practitioner acting within the scope of his or her professional licensure promptly of:
(A) The admission of a patient.
(B) Any sudden and/or marked adverse change in signs, symptoms or behavior exhibited by a patient.
(C) An unusual occurrence, as provided in Section 72541, involving a patient.
(D) A change in weight of five pounds or more within a 30-day period unless a different stipulation has been stated in writing by the patient’s licensed healthcare practitioner acting within the scope of his or her professional licensure.
(E) Any untoward response or reaction by a patient to a medication or treatment.
(F) Any error in the administration of a medication or treatment to a patient which is life threatening and presents a risk to the patient.
(G) The facility’s inability to obtain or administer, on a prompt and timely basis, drugs, equipment, supplies or services as prescribed under conditions which present a risk to the health, safety or security of the patient.
(b) All attempts to notify licensed healthcare practitioners acting within the scope of his or her professional licensure shall be noted in the patient’s health record including the time and method of communication and the name of the person acknowledging contact, if any. If the attending licensed healthcare practitioner acting within the scope of his or her professional licensure or his or her designee is not readily available, emergency medical care shall be provided as outlined in Section 72301(g).
(c) Licensed nursing personnel shall ensure that patients are served the diets as ordered by the attending licensed healthcare practitioner acting within the scope of his or her professional licensure.
* * * * *

Using Risk Management – Citations Against Nursing Homes – Criteria for Determining the Amount of the Civil Penalty – California Health and Safety Code Sections 1424 and 1424.5

California in part uses risk management principles to determine the amount of civil penalty to levy against a nursing home for a care violation. I would prefer, however, that in addition to the Section 1424 facts listed below, that the facts considered as criteria for determining the amount or increased amount of penalty also specifically include (1) the nursing home’s care policies, procedures and practices in place before the violation, and whether or not the nursing home was following those policies, procedures and practices, and (2) the nursing home’s timely payment of the penalty.

California Health and Safety Code Section 1424 in part provides that citations issued against nursing homes shall be classified according to the nature of the violation and shall indicate the classification on the face of the citation.

(a) In determining the amount of the civil penalty, all relevant facts shall be considered, including, but not limited to, the following:

(1) The probability and severity of the risk that the violation presents to the patient’s or resident’s mental and physical condition (i.e., traditional risk management, the likelihood of the occurrence and the possible severity of an injury that could result from the breach or continuing breach).

(2) The patient’s or resident’s medical condition.

(3) The patient’s or resident’s mental condition and his or her history of mental disability or disorder.

(4) The good faith efforts exercised by the facility to prevent the violation from occurring.

(5) The licensee’s history of compliance with regulations (this criteria should get little or no weight – tell this criteria to a severely injured or dead elder or dependent adult and his or her family – the fact that a facility has a history of compliance, or that noncompliance has not been noticed in the past really isn’t relevant to the injured or deceased elder or dependent adult and isn’t a criteria in traditional tort law, so why is it relevant at all for the purpose of citation penalties levied?).

(b) Relevant facts considered by the department in determining the amount of the civil penalty shall be documented by the department on an attachment to the citation and available in the public record.

This requirement shall not preclude the department or a facility from introducing facts not listed on the citation to support or challenge the amount of the civil penalty in any proceeding set forth in section 1428.

California Attorney General Office Information On Elder and Nursing Home Abuse

The following information is provided by the California Attorney General Office, see, e.g., http://oag.ca.gov/bmfea/elder. The numbers all point to staggering statistics, and the following information is only for reported cases – as I have previously written, the information available indicates that cases of abuse very significantly outnumber the reported cases, perhaps by a 24 to 1 ratio.

Elder Abuse

      • The United States Census Bureau projected in 2000 that California’s elderly population will have doubled by 2025 to 6.4 million – a larger growth rate than any other state
      • The California Department of Finance projects that the number of California residents aged 65 and older–those who are most likely to need nursing homes or other long term care–will nearly double between 2010 and 2030.
      • About 110,000 Californians live in about 1,300 licensed nursing homes and about 150,000 live in about 7,500 licensed residential care facilities for the elderly. Another 150,000 or more Californians are estimated to live in unlicensed assisted living facilities that may or may not be able to care for them properly.
      • Many residents of both licensed and unlicensed facilities suffer from dementia and may be given dangerous antipsychotic drugs to sedate or restrain them improperly
      • In 2009 the California Senate Office of Oversight and Outcomes reported that 13% of all complaints to the California Office of the State Long Term Care Ombudsman involved abuse, gross neglect, or exploitation, over twice the national rate of 5%
    • The California State Department of Finance claims that the number of California residents age 85 and older – those who are most likely to need nursing homes — will nearly double by the year 2030, when the bulk of baby boomers will come of age.
    • In 2005, the Office of Statewide Health Planning and Development reported that one-fifth of California’s nursing facilities did not meet state-mandated requirements for staffing levels.
    • In 2006, Centers for Medicare and Medicaid Services reported that twice as many of California’s 115,000 plus residents are placed in physical restraints as are nationally.
    • From 2001 to 2005, the California Department of Health Care Services, found that two-thirds of all reported deficiencies caused or could have caused significant harm to one of more residents in nursing homes. More than half of all complaints in nursing homes are related to poor quality of care. Eighteen percent of substantiated complaints were related to mistreatment or abuse.

Together, these staggering statistics and projections illustrate the urgent need to address and remedy the poor quality of care in many of California’s skilled nursing facilities.

Facilities Enforcement Team

The Facilities Enforcement Team investigates and prosecutes corporate entities, such as skilled nursing homes, hospitals, and residential care facilities, for adopting policies or promoting practices that lead to neglect and/or poor quality of care. Institutional neglect or substandard care includes:

  • Failure to provide medical care for physical and mental health needs
  • Failure to attend to hygiene concerns
  • Failure to provide adequate staffing
  • Failure to prevent malnutrition and dehydration
  • Falsification of patient chartsThe primary goal of the Operation Guardians program is to help protect and improve the quality of care for California’s elder and dependent adult residents residing in California’s approximately 1300 skilled nursing facilities. The Operation Guardians team identifies instances of abuse or neglect for further investigation and possible criminal or civil prosecution by the Bureau of Medi-Cal Fraud and Elder Abuse.
  • Operation Guardians
Fraud: 10/11 11/12 12/13 13/14 14/15
Criminal Filings 75 60 63 59 94
Convictions 58 46 35 32 56
Acquittals 3 1 0 0 2
Criminal Restitution $504,403 $279,228 $542,962 $180,017 $378,765
Civil Monetary Recoveries $6,145 $0 $0 $0 $0