The advocacy group California Advocates for Nursing Home Reform (CANHR) has announced that California governor Arnold Schwarznegger has signed the following CANHR-sponsored bills into law:


"SB 781 (Leno): The RCFE Eviction Protection Act This law will add requirements to eviction notices that will require the facility to inform residents of their rights when faced with an eviction and will require the facility to provide a list of resources available to identify alternative housing and care options.

AB 392 (Feuer/Jones): Restoring Long Term Care Ombudsman Funding_

AB 392 appropriates $1.6 million from the federal citation penalty account to the local ombudsman programs on a one-time basis. It helps replace part of the $3.8 million in funds for these programs cut by Governor Schwarzenegger in 2008. Co-sponsored by numerous other groups. AB 392 was signed by the Governor on August 6, 2009 and took effect immediately.

AB 407 (Beall): CCRC Closure Protections This law will impose requirements on a Continuing Care Retirement Community (CCRC) provider faced with a permanent closure to ensure residents have adequate time to find new housing and to ensure that residents receive adequate compensation should they be required to move. Co-sponsor: California Continuing Care Residents Association (CALCRA).

AB 329 (Feuer): The Reverse Mortgage Elder Protection Act of 2009 This law will prohibit any person who participates in the origination of the mortgage from referring the borrower to anyone for the purchase of other financial products. The bill would require the lender to provide the prospective borrower with a list of not fewer than 10 nonprofit counseling and would require the borrower receive a suitability checklist specifying issues the borrower should discuss with a counselor before the loan application is approved.

AB 1169 (Ruskin): CCRCs. Co-sponsored with CALCRA, this law will increase transparency in financial reporting and establish limits on the transfer of CCRC funds.

AB 76 (Yamada): Life and Annuity Consumer Protection Fund
Will eliminate the sunset provision and extend the $1 fee imposed against insurers for sales of annuities and life insurance policies sold in California. Fees from the Fund are distributed to the Department of Insurance and to the District Attorney offices to provide protections for consumers of life insurance and annuity products.

AB 215 (Feuer/Smyth): Posting Nursing Home Ratings
This law would require nursing homes to post ratings issued by the federal Centers for Medicare and Medicaid Services (CMS) in a visible, public location.

AB 1457 (Davis): Nursing Home Admission Contracts - Ownership Disclosure
This law would require nursing home admission contracts to contain an attachment that discloses the name of the owner and the name and contact information of a single entity that is fully accountable for all aspects of patient care and operation at the facility and would also require written notice to residents and their representatives containing the name and contact information for a new owner when a change of ownership takes place."

Another great job by CANHR getting laws passed that protect the elderly.

CANHR says it will post a more detailed list of bills signed or vetoed on its website www.canhr.org by the end of the week.

Felicia Curran
www.ElderAdvocacyLaw.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.ElderAdvocacyLaw.com

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.ElderAdvocacyLaw.com

The California Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) will be amended effective January 1, 2008, to expand and clarify the list of who may bring a lawsuit for elder abuse, abandonment, or neglect after the death of the abused elder. Currently, the law provides that after the elder’s death, the right to bring a lawsuit under EADACPA transfers to the personal representative of the deceased’s estate, or if there is none, to the person or persons entitled to succeed to the decedent’s estate. See Welfare & Institutions Code Section 15657.3(d). Yet, what if there is a personal representative, but that person does not wish to pursue an elder abuse lawsuit, even though other family members do? Or, worse still, what if the deceased was a victim of abuse by the personal representative? Or the personal representative used undue influence over the elder to have him- or her-self appointed as personal representative? In such cases, the very person who would be a defendant in the elder abuse lawsuit has the power, as personal representative, to block the lawsuit from going forward.

A case in point is the Estate of Lowrie case. There, a son of the deceased elder, Laura Marie Lowrie, was appointed her first successor trustee. Laura Marie’s granddaughter was second successor trustee and beneficiary. After Laura Marie's death, her granddaughter filed an elder abuse lawsuit against the son, seeking findings that he had abused Laura Marie prior to her death. The court found that the son had financially and physically abused his mother, and awarded damages to the granddaughter. The son appealed, contending the granddaughter had no standing to bring an elder abuse lawsuit, because he was his mother’s personal representative, and thus, the only person empowered under EADACPA to bring a elder abuse lawsuit.

The Court of Appeal held that the granddaughter did have standing to sue as a plaintiff under EADACPA, and that the standing provisions of EADACPA must be read so as to “deter, not encourage elder abuse.” The Lowrie case is frequently used by lawyers representing families to provide a basis to pursue elder abuse cases on behalf of family members other than the deceased’s personal representative.

The amendments to EADACPA will codify the Lowrie court's holdings and provide more flexibility to family members who wish to pursue elder abuse lawsuits after the elder’s death. The text of the new statute, which takes effect January 1, 2008, is as follows:

“Section 15657.3 of the Welfare and Institutions Code is amended to read:

15657.3.
(a) The department of the superior court having
jurisdiction over probate conservatorships shall also have concurrent jurisdiction over civil actions and proceedings involving a claim for relief arising out of the abduction, as defined in Section 15610.06, or the abuse of an elderly or dependent adult, if a conservator has been appointed for plaintiff prior to the initiation of the action for abuse.

(b) The department of the superior court having jurisdiction over probate conservatorships shall not grant relief under this article if the court determines that the matter should be determined in a civil action, but shall instead transfer the matter to the general civil calendar of the superior court. The court need not abate any proceeding for relief pursuant to this article if the court determines that the civil action was filed for the purpose of delay.

(c) The death of the elder or dependent adult does not cause the court to lose jurisdiction of any claim for relief for abuse of an elder or dependent adult.

(d) (1) Subject to paragraph (2) and subdivision (e), after the death of the elder or dependent adult, the right to commence or maintain an action shall pass to the personal representative of the decedent. If there is no personal representative, the right to commence or maintain an action shall pass to any of the following, if the requirements of Section 377.32 of the Code of Civil Procedure are met:

(A) An intestate heir whose interest is affected by the action.
(B) The decedent's successor in interest, as defined in Section 377.11 of the Code of Civil Procedure.
(C) An interested person, as defined in Section 48 of the Probate Code, as limited in this subparagraph. As used in this subparagraph, "an interested person" does not include a creditor or a person who has a claim against the estate who is not an heir or beneficiary of the decedent's estate.

(d)(2) If the personal representative refuses to commence or maintain an action or if the personal representative's family or an affiliate, as those terms are defined in subdivision (C) of Section 1064 of the Probate Code, is alleged to have committed abuse of the
elder or dependent adult, the persons described in subparagraphs (A),(B), and (C) of paragraph (1) shall have standing to commence or maintain an action for elder abuse. Nothing in this paragraph shall require the court to resolve the merits of an elder abuse action for the purposes of finding that a plaintiff who meets the qualifications of subparagraphs (A), (B), and (C) of paragraph (1) has standing to commence or maintain such an action.

(e) If two or more persons who are either described in subparagraphs (A), (B), or (C) of paragraph (1) of subdivision (d), or a personal representative claim to have standing to commence or maintain an action for elder abuse, upon petition or motion, the court in which the action or proceeding is pending, may make any order concerning the parties that is appropriate to ensure the proper administration of justice in the case pursuant to Section 377.33 of the Code of Civil Procedure.

(f) This section does not affect the applicable statute of limitations for commencing an action for relief for abuse of an elderly or dependent adult.”

The amendment will provide the flexibility needed to give interested family members the ability to bring elder abuse lawsuits and hold wrongdoers accountable. Thanks to Senator Ellen Corbett and her legislative staff for sponsoring this important bill.

Felicia Curran
www.ElderAdvocacyLaw.com

Kudos to California Advocates for Nursing Home Reform and Assemblymember Mike Feuer (D- Los Angeles). On March 27, 2007, the California Assembly Health Committee approved The Nursing Home Complaint Investigation Improvement Act (AB 399), authored by Assemblymember Feuer. The legislation would fight abuse and neglect by improving the quality and timeliness of nursing home complaint investigations by the Department of Health Services (DHS), the state agency that inspects and licenses nursing homes and other long-term health care facilities. Currently, state law requires DHS to begin investigations of complaints within ten days. But typically, after DHS starts an investigation many months go by before it finishes the investigation, makes a report, and requires the nursing home to correct any deficient care of elders in the nursing home. DHS’s delay leaves nursing home residents vulnerable to continuing neglect as the circumstances that prompted the complaint that is being investigated go uncorrected.

AB 399 would require Department of Health Services to complete investigations within 40 working days; send complainants a written summary of findings about their complaint; investigate facility-reported complaints of abuse and neglect within the same time frames as public complaints; and extend the number of days a complainant has to seek an informal conference from five business days to 15 days after receipt of the determination.

“Today’s vote is an important step toward restoring public confidence in California’s nursing home oversight system,” said Michael Connors of California Advocates for Nursing Home Reform (CANHR). “Timely DHS investigations will help ensure that nursing home residents are protected from further neglect and abuse once it’s been reported.”

AB 399 now moves on to the Assembly Appropriations Committee and then to the full Assembly. CANHR asks that you show your support by sending a brief letter to your Assembly member urging him or her to vote in favor of AB 399. CANHR's fact sheet includes a model support letter. You can find the name of your Assembly member and contact information at: www.leginfo.ca.gov/yourleg.html

The same type of law is urgently needed to protect elders living in residential care facilities for the elderly (R.C.F.E.s), such as assisted living and dementia care facilities. R.C.F.E.s are under another licensing agency, the Department of Social Services. DSS has NO time constraints for beginning or concluding an investigation, and it is very difficult to get DSS offices to respond to complaints and conclude an investigation. Contact Mike Feuer (Assemblymember.Feuer@assembly.ca.gov), the sponsor of AB399, and ask him to sponsor the same type of law for residential care facilities for the elderly.


Felicia Curran
www.ElderAdvocacyLaw.com