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

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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.

* * * * *

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

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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.

Ombudsman Services – San Mateo County – Annual Report 2014-2015 – 4,497 Care Facility Visits – 1,624 Investigations – And More Good Work

Ombudsman Services SMC Visits Investigations FY 2014-2015

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