What does it take to get a Medicare-paid stay in a nursing home in the United States? The San Francisco Chronicle ("Son Didn't Use His Head In Trying To Put Father In Nursing Home") reported on Friday that a Bay Area man is in jail, charged with attempted murder for hitting his elderly father on the head with a hammer, in an ill-conceived attempt to get his father admitted to a nursing home. The elderly father was treated at the hospital for cuts to the head, and then released home.

"[The man] was under a belief, we don't know why, that you can't go straight into a nursing home without being in the hospital," said Steve Wagstaffe, San Mateo County's chief deputy district attorney. "He thought, 'I can overcome that problem. I'll put him in the hospital.'"

Although the son's conduct was criminal, there was a method to his madness. Nursing charge hundreds and hundreds of dollars a day, something out of the reach of the average person. Medicare, however, WILL pay for up to 100 days in a nursing home, but only if the patient comes to the nursing home from a three-day stay in a hospital. Medicare pays in full for Day 1 through 20; Day 21 through day 100 are subject to a $124 per day co-payment by the patient.

Thus, was the son trying to get a Medicare-paid stay for his father? Quite possibly.

If THAT is the son's excuse for hitting his father, what is our excuse as a nation for failing to provide free universal health coverage? This type of incident would not happen in Canada or in Europe, because in those countries anyone who needs health care --in a nursing home, hospital, or wherever -- can get it, free of charge.

Although you may not like Michael Moore, this is the point that he is very aptly making in his movie SICKO, which compares our healthcare system with Canada's and Europe's. His point is that health care should be recognized as a basic right - like access to the police or the fire department -- that everyone should have access to, regardless of their ability to pay.

The movie SICKO is being released on DVD on November 8. If you haven't seen it, you should. You won't look at health care in this country the same way after you see it, I promise you.

To view a trailer/preview of SICKO, double-click below on the picture:



Felicia Curran
www.boxerlaw.com
www.elderadvocacyblog.com
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California Advocates for Nursing Home Reform (CANHR), a nonprofit group that spearheaded the law Arnold just vetoed, has issued the following press release:

"FOR IMMEDIATE RELEASE
October 17, 2007

Governor Vetoes Bill to Protect Nursing Home Abuse Victims

San Francisco -- On Sunday night, just hours before it would become law, Governor Schwarzenegger vetoed AB 399, striking down an immensely popular bill to aid elder abuse victims in nursing homes by improving investigations of abuse and neglect. The bill would have required the California Department of Public Health to complete investigations within reasonable time limits and to notify complainants of findings.

Abuse and neglect have reached crisis proportions in California nursing homes. Complaints and facility reports of abuse and neglect have more than doubled in recent years and continue to grow at double-digit rates each year. More than 15,000 complaints and facility reports are expected to be investigated this year.

Introduced by Assembly Member Mike Feuer, AB 399 responds to the California Department of Public Health's longstanding failures to conduct timely and effective investigations of nursing home complaints. The failures are well documented in a series of government reports, including an April 2007 report by the California State Auditor. It shows the Department failed to timely complete more than 60 percent of 15,275 investigations conducted between July 2004 and April 2006, and that more than 500 complaints remained open for more than one year.

For nursing home residents, the broken investigation system is a matter of life and death. The slow investigations subject residents to continued mistreatment and also compromise the Department's ability to collect evidence. Most nursing homes face no consequences for abuse or neglect because the Department substantiates so few complaints (only one in six according to a 2007 study by the California Healthcare Foundation).

Even complaints involving deaths suffer extreme delays. This is especially true in cases involving AA citations, which involve a finding that neglect or abuse led to the death of a nursing home resident. Typical delays range from one to two years. See attached CANHR summary of recent AA citations.

"The veto is devastating to elder abuse victims in nursing homes," said Patricia McGinnis, CANHR's Executive Director. "It is shocking that the Governor won't commit to timely investigations of abuse and neglect."

Other than the Governor [picture here with President Bush], AB 399 faced no opposition. The California Legislature voted 117 - 1 in favor of it. AB 399 is supported by dozens of organizations, the nursing home industry, and citizens throughout California who see it as an historic opportunity to restore integrity to California's nursing home complaint investigation system.

For more information contact:
Pat McGinnis, Executive Director, CANHR (415) 974-5171
Michael Connors, Advocate (626) 796-6178
California Advocates for Nursing Home Reform (CANHR)
www.canhr.org"

The veto is just one of a series of vetoes of pro-family bills by Governor Schwarzenegger. For more information, read Julius Young's article in the California Progress Report:
"Schwarzenegger Vetoes Pro-Family Bills As Corporate Interests Trump Family Values"

Email the Governor and tell him what you think and that you vote - click here.

Felicia Curran
www.elderadvocacyblog.com
www.boxerlaw.com
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Please help me congratulate two lawyers in our firm, Jean Hyams and Darci Burrell, on their great victory yesterday in obtaining a $1.27 million jury verdict on behalf of their client, Oliver Hill, in Alameda County Superior Court. The jury found that the defendant Bay Area Rapid Transit District (BART) had repeatedly retaliated against the plaintiff, Mr. Hill, after he complained about racial harassment by a co-worker.

Courageous victims like Mr. Hill need to be congratulated also, on sticking their neck out and risking further retaliation by filing suit. In this case, the jury sent him and BART a message that what BART did is unacceptable. After many years of mistreatment by BART, it's a great vindication for him.

Jean Hyams (pictured above) is a partner with our firm, Boxer & Gerson LLP, and practices in the employment law and elder abuse practice groups. She is a very tenacious and compassionate advocate for her clients. Many lawyers would have declined to take on Mr. Hill's case because he had no wage loss, and because the defendant is a public entity (hence no punitive damages award would be permitted). Jean and Darci are fearless, and jumped in to help him hold BART accountable for its condoning of racism and its retaliation against him when he complained. BART will think twice about discriminating and retaliating against its employees now that they have been found guilty in court.

The judge is expected to make an additional order that the defendant also pay Mr. Hill’s attorney fees.

In civil rights cases such as Mr. Hill's, and under the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), the law requires the losing defendant to pay the plaintiff/victim's attorney fees on top of whatever damage award is made for the plaintiff's injuries, so that the plaintiff will not have to pay his or her lawyers out of his or her own pocket. Shifting of the victim's attorney fees on to the losing defendant is intended by the legislature to further deter violation of these important laws and to make it easier for the victim to obtain legal representation.

To read more about their case, click here to read the article in the San Francisco Chronicle on the trial.

Felicia Curran
www.boxerlaw.com
www.elderadvocacyblog.com
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The New York Times reports that Stanford scientists believe that they have developed a blood test that can accurately diagnose Alzheimer’s disease years before symptoms of truly debilitating memory loss are apparent. Currently, Alzheimer's disease can only be diagnosed definitely after death through autopsy, and with clinical probability through a battery of memory and behavioral tests.

The test proceeds on the assumption that the brain of a person who is developing Alzheimer's sends out signals to the body's immune system, releasing certain proteins into the blood. The blood test looks for the presence of 18 proteins in the blood thought to carry that message. The test is reported to be 90 percent accurate in distinguishing the blood of people with actual Alzheimer’s from the blood of those without the disease, and to have an accuracy rate of 80 percent in predicting which patients with mild memory loss would go on to develop Alzheimer’s disease two to six years later.

The studies need to be replicated in another lab, and it is likely to be a few years before the test would be available to the average person at their doctor's office, but the test may be available next year on a research study basis.

It is also hoped that this will be the first step in finding a cure for the disease.

To read the Times article, click here.

Felicia Curran
www.boxerlaw.com
www.elderadvocacyblog.com
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If gay men and lesbian women face discrimination when they are young, active, and able to take care of themselves, what happens as they age, lose their independence, and need to enter nursing homes and assisted living facilities? Check out an article in yesterday’s New York Times ( "Aging and Gay, and Facing Prejudice and Uncertainty in the Twilight Years" by Jane Gross) to get a taste of what homophobia is like in the nursing home setting. The picture isn’t pretty.

The article quotes experts as saying that most gay elderly do not declare their identity when they enter the nursing home. Instead, for fear of prejudice and isolation, they retreat back to the invisibility that was necessary for most of their lives. They introduce their partner as “their brother” to nursing home staff and to other residents to avoid being shunned. They avoid having their openly gay friends come to visit, and they hide any memorabilia that may disclose that they are gay.

77-year-old lesbian Jalna Perry (pictured here), says that her guard was up all the time when she was in a nursing home or assisted living facility, for fear that she would be shunned by care givers and other residents.

Living in the nursing home's closet takes its toll. The article describes how gay elderly often fall into depression more quickly, and have a higher incidence of premature death than heterosexual elders.

On the other hand, stepping out of the closet may also cut short the gay elder’s life. When one openly gay man entered a nursing home on the East Coast, he was moved off the regular patient floor, in response to the homophobia of other residents and families, and housed with patients with severe disabilities or dementia. He hung himself in despair before the nursing home could be persuaded to treat him decently.

When Gloria Donadello (pictured here), entered a nursing home, her new roommate greeted her with the words, “Get that man out of my room.” That was enough for Gloria. She moved into an adult-assisted living center that specializes in gay and lesbian residents.

What if your community doesn’t have a care facility that promotes itself as friendly to gay seniors? Bruce Steiner, 76, pictured at the top, with his partner Jim Anthony, 71, said that his approach is to essentially to come as he is – “visit several nursing homes” and give “them the opportunity to encourage or discourage [you].”

At least part of the problem is that nursing homes and assisted living facilities don’t usually make an effort to ask about sexual orientation, or to prepare staff members and residents for the possibility that some residents may be gay. In California, we have made a start to address the issue of sensitivity to gay elders with the “Older Californians Equality and Protection Act,” passed in 2006. The law requires state aging agencies to provide sensitivity training and support for senior services for gay elders. For example, nursing home admissions staff may receive training in how to interview prospective residents in a way that respects each person's sexual orientation. Or nursing home residents may receive support to help familiarize themselves with issues relating to sexual orientation differences.

What can you do to help gay elders? For starters, don’t make assumptions that each elder you meet has the same sexual orientation as you do, and respect their differences. Correct your family and friends if they make homophobic remarks. Put yourself in the gay elder's shoes. And support laws in your community to prohibit discrimination in nursing homes and assisted living facilities based on sexual orientation sexual identity. In California, we have the Civil Rights Housing Act of 2006, which prohibits discrimination in housing based on sexual orientation and sexual identity, and we also prohibit state contractors from such discrimination, which covers nursing homes receiving state Medical funds.

The Times' website has a terrific multimedia file containing DVD interviews with the elders interviewed in the article. Listen and hear them describe their experiences in their own words. The website will also refer you to resources relating to gay elderly - click here. It's a great resource.

Felicia Curran
www.elderadvocacyblog.com
www.boxerlaw.com
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