California Advocates for Nursing Home Reform (CANHR) has sounded the alarm on Governor Schwarzenegger’s line item veto of all state funding for the Ombudsman program, a state-wide watch dog agency that investigates complaints on behalf of 250,000 residents of California’s 1,300 nursing homes and more than 8,000 assisted living facilities.

As CANHR points out, “the cut came days after the federal government issued a report condemning conditions in nursing homes. In each of the past three years, over 91 percent of nursing homes surveyed nationwide were cited for deficiencies, according to a Sept. 18 report by Inspector General Daniel Levinson. In California, 99.1 percent of nursing homes had deficiencies in 2007 and California nursing homes had an average of 11.8 deficiencies, second in the nation to Wyoming, which had 12.3.”

To make matters worse, the cut is retroactive to July 1, so some of the Ombudsman offices may already have spent money that they are now being told they don’t have.

At the same time that Gov. Schwarzenegger is cutting funding on behalf of elder advocates, his new budget “authorized another lavish Medi-Cal rate increase for California's nursing homes, whose annual payments from Medi-Cal have increased by more than $1 billion since he took office. He sought and signed a multi-hundred-million dollar nursing home rate increase this year, and signed legislation calling for 5 percent rate increases in each of the two following years.”

To contact the governor and lodge a protest, click here.

To read the CANHR press release, click here.

Felicia Curran
www.elderadvocacyblog.com

The National Academies of Science presents author Dudley Clendinen, reading passages from his new book, A PLACE CALLED CANTERBURY: Tales of the New Old Age in America, on Tuesday, Oct. 14 at 6 p.m. at the National Academies’ Keck Center, 500 Fifth St., N.W. Washington D.C. The event is free; a photo ID is required for admittance.

DUDLEY CLENDINEN is a former national reporter and editorial writer for The New York Times. This description of A PLACE CALLED CANTERBURY APPEARS on the National Academies' website.

“In 1994, New York Times writer Dudley Clendinen’s mother followed the example of her generational compatriots: she sold her home and moved into an all-amenities-included geriatric apartment building: Canterbury Tower in Tampa Bay. Wealthy, poor, Christian, Jewish, widowed, married—all of Canterbury’s residents had come together, at the average age of 86, in search of a last place to live and die.

Clendinen’s curiosity about this final phase of human life in the 21st century led him to spend 400 days and nights living at Canterbury, during which he became intimately involved in the lives of its residents and staff. With A PLACE CALLED CANTERBURY: Tales of the New Old Age in America (Viking), Clendinen offers a beautifully written, hilarious and deeply moving look at old age in the new millennium.

The last challenge to the generation of the Great Depression and World War II is longevity—none of them expected to live so long, and their baby boomer children weren’t prepared to take so much responsibility for parents who seem to live forever, collecting ailments and shedding assets as they go. But places like Canterbury Tower, more adult camps than retirement homes, allow residents to live out their remaining time on their own terms.

Peopled by brave, daffy, memorable characters determined to grow old with dignity, A PLACE CALLED CANTERBURY is at once a delightful soap opera and a poignant chronicle of the last years of the Greatest Generation. It is an essential read for anyone with aging parents and anyone wondering what his or her own old age will look like.”

If the book is a good one – and this sounds like it – there’s nothing better than hearing the author talk about the book and read part of it. Check it out if you can.

For the National Academies' website, click here.

Felicia Curran
www.elderadvocacyblog.com

On September 29, California expanded the reach of the Elder Abuse and Dependent Adult Civil Protection Act by enacting important amendments in the area of elder and dependent adult financial abuse.

Sentate Bill 1140 (sponsored by Senator Darrell Steinberg [D-Sacramento]) broadens the definition of "financial abuse" to include using undue influence to obtain the elder's real property or other assets. "Undue influence" is defined as 1)making unfair use of a position of power or authority, (2) taking unfair advantage of another's weakness of mind, or (3) taking a grossly oppressive and unfair advantage of another's necessities or distress." (Cal. Civil Code Section 1575).

Without this amendment, the elderly plaintiff would have to prove that the perpetrator took the assets or property with an intent to defraud or in bad faith. (Cal. Welfare & Institutions Code Section 15610.30 (a) - (b).)

Under Senate Bill 1140, the elderly plaintiff may prove financial elder abuse by showing that the perpetrator "knew or should have known that their conduct was likely to be harmful to the elder or dependent adult." (Welf. & Inst. Code Sec. 15610.30 (b)). This new definition of financial abuse focuses on the harm done to the elder (which can be objectively determined) and not on the subjective state of mind of the perpetrator (which can be hard to prove, given that defendants rarely admit their misdeeds). So even if the defendant maintains that he or she had no intent to defraud or never meant to harm the elder or dependent adult, under the 1140 amendments, financial abuse will occur if the defendant knew or should have known that the financial transaction was likely to harm the elder or dependent adult.

The Elder Abuse law also provides that the losing defendant must pay the elder's attorney fees. Currently, when a corporate employer is the defendant, the elderly plaintiff has to prove financial abuse by the corporation's employees by clear and convincing evidence (a higher burden of proof than the normal preponderance of evidence standard used in most civil litigation). Senate Bill 1140 eliminates the requirement of clear and convincing evidence of financial abuse for attorney fee awards against employer defendants. This would cover financial abuse perpetrated by employees of corporations such as real estate firms, law firms, banks, or other financial institutions.

Unfortunately, the law governing lawsuits for physical, mental, or medical neglect or abuse of the elderly was not amended. In those types of cases, the elderly plaintiff must still prove the neglect/abuse by clear and convincing evidence before the defendant is required to pay the elder's attorney fees. This asymmetry in the law (between financial abuse and physical or medical neglect or abuse lawsuits)needs to be rectified. Elderly victims of neglect by nursing homes or other care givers should not be held to a higher burden of proof for attorney fees than elderly victims of financial abuse. The only thing standing in the way of this amendment is the strangle-hold that the nursing home industry lobby has on many of our elected officials.

Senate Bill 1140 also extends the statute of limitations for an elder or dependent adult to claim damages for financial abuse from three to four years from the date the plaintiff discovers, or should have discovered the abuse.

Don't forget: entirely different, and much shorter, statute of limitations govern neglect or physical/mental/medical elder abuse suits. For neglience suits against a licensed health care provider (such as a doctor or a nursing home), the elder or dependent adult must file within one year from the date the plaintiff discovers, or should have discovered, that their injuries were caused by neglect. All other types of physical/mental/medical neglect or abuse suits, against licensed health care providers, such as suits for reckless or wilful neglect or abuse are governed by a two year statute of limitations.
On the other hand, all type of neglience, neglect or abuse lawsuits against non-licensed health care providers (such as Residential Care Facilities for The Elderly) are governed by a 2 year statute of limitations (which runs from the date of discovery of the negligent cause of injury).

Senate Bill 1140 will not go into effect until January 1, 2009. For the text of the bill as enacted, click here.

Felicia Curran
www.elderadvocacyblog.com

On September 6, Barack Obama and John McCain told the AARP what they would do to fix Social Security.

What is the problem with Social Security?

According to the Wall Street Journal, the problem is that there are fewer workers to support each retiree than there used to be, with the result that, "without changes, by 2041 the program will have depleted reserves that are, on paper, set aside for benefits."

It's alarming that 8 years after Al Gore brought attention to this issue -- by promising in the 2000 presidential election to put Social Security in a "lock box" -- that nothing has been done under the Bush administration to solve the problem.

Senator McCain and Senator Obama have starkly different views on how to fix Social Security.

Senator McCain has said that he might balance the Social Security "books" by allowing workers to “privatize” their benefits. "There may be a role for private investment accounts for younger workers as long as they are not a substitute for insuring the solvency of the system and does not affect the system," Sen. McCain said. This is the same privatization plan that President Bush proposed in 2005, which certainly validates Barack Obama's claim that McCain is Bush all over again.

But, don't take my word for it. The Wall Street Journal describes McCain's plan as being the same as Bush's:

“Under [McCain’s plan], pushed hard by President Bush in 2005, workers could divert some of the taxes that normally would go to pay Social Security benefits into personal accounts invested in stocks and/or bonds. In trade, their guaranteed checks from the government would go down, increasing both the possibility of risk and reward for participants, depending on how the investments fare.”

The Wall Street Journal says, “This could help balance the books long term because government obligations would drop.” But, because less money would be coming into the system also, if workers put their money in private accounts, one has to wonder how this would be a solution, even on paper.

From listening to what Senator McCain told the AARP, the only thing McCain promised to do on Social Security was to create a “bipartisan commission to propose solutions to extend the solvency of the federal retirement program.”

Appointing a commision is a great way to kill some time, and for Senator McCain to give himself some political cover for any politically unpopular solution that needs to be implemented. So the McCain "plan" for Social Security is in reality no plan at all.

Senator Obama, on the other hand, tells us what he would do to fix Social Security.

“Privatizing Social Security was a bad idea when George Bush proposed it, and it's a bad idea today. It would take the one rock-solid, guaranteed part of your retirement income and gamble it on the stock market. If all your Social Security money had been privatized in Lehman Brothers, AIG & Company, this week, you’d be wiped out"Obama told the AARP. Senator Obama’s remarks are even more meaningful now that our financial systems are close to breaking down, and stock values have plummeted.

The payroll deduction for Social Security taxes is currently capped at $102,000 in annual income - meaning income over $102,000 is exempt from the social security tax. Senator Obama points out that this means that `` middle-class families pay this tax on every dime they make, while millionaires and billionaires only pay it on a very small percentage of their income.”

Senator Obama said that he would raise more money for Social Security by, in 10 years time, lifting the cap on Social Security payroll taxes on those making $250,000 a year or more.

"I'll work with members of Congress from both parties to ask people making more than $250,000 a year to contribute a little bit more to keep the system sound," Sen. Obama said. "It's a change that would start a decade or more from now, and it won't burden middle-class families. In fact, 99% of Americans will see absolutely no change in their taxes."

Decide for yourself - listen to Obama and McCain at the AARP by clicking on these links: Barack Obama at AARP and John McCain at AARP.

Felicia Curran
www.elderadvocacyblog.com