Wonder what it is like to be an elderly resident of a nursing home and totally dependent on your care givers for help? A security videotape taken at a nursing home in Queens, New York, which forms the basis for a criminal elder abuse prosecution, can give you an idea. The nursing home care giver is shown to walk away as an elderly lady falls to the floor out of her wheelchair, after the care giver jerked the chair forward. In the process the lady breaks her hip. The care giver then walks away and leaves the elderly lady struggling on the floor. Click below to see the tape:




Why would a care giver walk away like that? As part of a cover up of her own involvement in the lady's fall. She hopes that someone else at the nursing home will "find her on the floor" and it will get reported as an "unwitnessed fall." The elderly victim herself will often be too impaired to speak for herself and tell what happened.

This scenario is repeated every day in nursing homes across the country, but this time it was caught on tape. Does the tape force this nursing home to take responsibility? You'd think, but instead the clip shows how the nursing home tries to use the "blame the victim" approach so typical in these cases. The nursing home lawyer (the guy in the suit) is quoted as saying that the elderly 85 year old lady -- who had dementia -- "caused her own fall." Is it also her fault that she can't get up from the floor or that she is old and frail?

Felicia Curran
www.ElderAdvocacyBlog.com
www.ElderAdvocacyLaw.com

If you have an elderly parent or grandparent you should take time now to familiarize yourself with the causes of aspiration and its signs and symptoms. When a patient aspirates, food, drink or even saliva that should be channeled from the mouth into the stomach instead gets channeled into the lungs, causing a pneumonia in the lungs. Aspiration is usually, but not always, a life threatening situation, compromising the person’s ability to breathe on their own.

When my Dad landed in the hospital in 2002, after having a fall at home and breaking his hip, I had heard of aspiration, but that was the furthest thing from my mind. After all, how could a broken bone lead to aspiration? My Dad was aging amazingly well – he was mentally and physically intact, sharp as a tact, with normal blood pressure and no health troubles other than a bad back. My main concern was that the hip surgery go well, which it did. Without a hitch in fact.

The night before he was to be discharged from the hospital, I visited him at night after work. We were looking forward to the next day, when he would be discharged to a rehab center for physical therapy, and after that, to go home. He had already eaten dinner when I arrived at 8 pm. He had told me that earlier that day he had become confused and thought that the furniture was flying around the hospital room, and realized that it must be the pain medication. I noticed that he was wheezing off and on -- something he had never done before. Dad said that the wheezing had started just before I arrived. I asked the nurse what that meant, and she said that he “might just have a little congestion.” I asked her to ask the doctor about it and get back to me. Other than the intermittent wheezing, Dad seemed fine, so I left at 11 pm without having heard back from the doctor.

The hospital called me at 2 a.m. and said that my Dad was transferred to the ICU. I rushed to the hospital and was told that he had aspiration pneumonia -– most likely caused by aspirating his dinner the night before. That’s what that wheezing meant. When I spoke to Dad’s doctor, he said that most likely the pain medication Dad was on for the hip fracture (the Oxycontin and Vicodin) interfered with his swallow mechanism, causing the food Dad ate at dinner to go down his windpipe instead of into his stomach.

My Dad never regained consciousness, and within 48 hours he was dead from complications of the aspiration.

There are many other unlikely causes of aspiration. For example, patients who became malnourished are at risk of aspirating. Safe swallowing depends on working swallowing muscles, and drastic weight loss diminishes the swallowing muscles’ ability to function properly. A malnourished elderly patient can be at risk for aspirating simply because their swallow muscle has atrophied due to malnutrition. Because malnutrition is so prevalent in nursing home residents (for many reasons, most of which are preventable), that's one reason why nursing home residents are vulnerable to aspirating in a nursing home.

The New York Times New Old Age Blog has just posted an article on swallowing disorders, When The Meal Won't Go Down. It is an excellent introduction to swallowing issues in the elderly and will refer you to other resources on the web, such as the American Speech-Language-Hearing Association website.

Felicia Curran
www.ElderAdvocacyLaw.com

Reporter Christina Jewett of California Watch has posted another article,"Why Is State Only Collecting One Third of Nursing Home Fines?" Jewett (pictured to the right) analyzed data from the State that shows that the California Department of Public Health -- the agency that licenses and has oversight over California nursing homes -- is letting nursing homes avoid or delay payment of fines imposed for breaking state law. Fines are the price the nursing home must pay for violating the law -- hence no fine, no penalty.

Jewett connects the trend in decreased collection of fines (In 2005 the state collected 60% of fines against nursing homes but by 2008 they only collected 30% of the fines) to a 2004 change in the law (AB 1629) which lets the nursing homes hire lawyers to fight the fines and bill the State for the cost of their legal fees. The nursing home can delay paying the fine by filing a legal challenge and if they lose, bill the State for the cost of their legal fees. The 2004 thus gave nursing homes an incentive to challenge and delay payment.

To locate and contact your State Senator and State Assemblyperson, and demand a change, click here.

To read Jewett's article, click here.


Felicia Curran
www.ElderAdvocacyLaw.com

File this under “If you’re not outraged, you’re not paying attention.”

Remember a law California passed in 2004, designed to provide California nursing homes with additional MediCal money? This law -- The Nursing Home Quality Care Act -- was passed to address nursing homes’ complaint that the homes are understaffed because they simply cannot afford to hire more staff or to pay more wages. Under this law, the state’s 1,100 nursing homes received an additional $880 million in funding during 2004-2008, to hire more staff and pay better wages. Reporter Christina Jewett (pictured at the right) of California Watch has done a study, Nursing Homes Received Millions While Cutting Staff, Wages to see whether the additional funding to nursing homes has resulted in better staffing and salary levels. Jewett reports that 232 of 645 nursing homes receiving the extra funding either cut staffing, reduced wages, or violated state law minimum staffing level laws. These same nursing homes had fatter profit margins than other California nursing homes.

Jewett was also able to show a further correlation – the nursing homes receiving the extra funds that made the steepest staffing cuts also had about 30% more “deficiencies” (violations of State Title 22 licensing regulations) than the average California nursing home.

One other interesting fact in the article, “Nursing homes are allowed to bill the state for legal fees spent fighting abuse and neglect citations and lawsuits. They can bill for legal fees spent fighting audit findings they disagree with.” In other words, your tax dollars are going to help nursing homes hire lawyers to defeat elder abuse lawsuits and to challenge state officials who find the nursing home to be breaking the law.

The California Watch articles are mandatory reading for anyone with a family member in a California nursing home or anyone with a lawsuit against a California nursing home. The California Watch website contains data for each of the 232 nursing homes on the list (organized by county and by facility name). Check to see if your nursing home is on the list -- if it is, it should be a red flag to you that the nursing home is compromising staffing or wages for the sake of corporate profits. If you are prosecuting a lawsuit against a nursing home who has fattened its profit margin while cutting its staff, the data will help you build your case that the nursing home was reckless, willful or malicious under the California Elder Abuse and Dependent Adult Civil Protection Act.

Felicia Curran
www.ElderAdvocacyLaw.com

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