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.
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)
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)
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.
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.
- 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
|Civil Monetary Recoveries||$6,145||$0||$0||$0||$0|
Below is a link to the San Mateo County, California, Ombudsman Services annual report for 2014-2015. The report shows amazingly substantial services for the year, including for example, 4,497 facility visits, and 1,624 investigations. As you might know, Ombudsman Services of San Mateo County, Inc. is committed to working with residents, families, facilities and stakeholders to create a community dedicated to protecting the rights of all residents living in long term care in San Mateo County. They challenge long-term care facilities to deliver the highest standards of individualized care for their residents, and advocate for the health, safety, and dignity of these residents and broader changes in the system.
The following is a link to the annual report – please take a look at this worthwhile organization that does good work on behalf of and protecting the rights of residents living in long term care facilities in San Mateo County, CLICK HERE
And please do pass this information and blog post to other people who would be interested in these very important services. Thank you.
Dave Tate, Esq., San Francisco and throughout California, civil, trust, estate, conservatorship and elder abuse litigation, and contentious administrations. My two blogs: http://californiaestatetrust.com and http://directorofficernews.com
The following is a link to a short discussion about possible legislation in Massachusetts to assist with in-home care services and costs, CLICK HERE.
Dave Tate, Esq. (San Francisco / California)
I found this article today – discussing that the “system” for financing, i.e., paying for, long-term care is crumbling. Click Here For Article.
I just have to say, that isn’t news. Long-term care is unbelievably expensive. Husbands/fathers, wifes/mothers, and their children have been paying huge costs for long-term care for years. It’s expensive in an outside facility, and at-home care is expensive. And then sometimes there are issues relating to the level or manner of care provided.
I’m not an expert on the financial aspects of the long-term financing programs. But I can hope that at the governmental level we have some legislators who understand it and who have developed a strategy for the long-term sustainability and improvement. But I never hear anything that sounds comforting or impressive.
Dave Tate, Esq. (San Francisco)
Link to long-term insurance article, Click Here. Enjoy.
Dave Tate, Esq. (San Francisco)