In 1990, a traveling salesman knocked on Mary Derks’ door in Conrad, Montana, and sold her a long-term care insurance policy. She was 65 years old, and at the time it seemed like a good way for her to avoid becoming a burden on her family, in case she were ever to become too frail to continue living in her own home. “She was terrified that she would bankrupt us or get sent to a public nursing home” her son-in-law said, as quoted in the New York Times. So Mary bought a policy from an insurance company which promised to pay the bill at an assisted living facility for her if and when her doctor made an order for that placement. Every month, Mary scrimped together $100 out of her grocery money to pay the premiums, trusting that the insurance company would pay up when the time came for her move.

Little did she know that she, along with thousands of other elderly policy holders, are the insurance industry's newest gold mines. Long term care policies, which cover the costs of assisted living facilities, nursing homes, and at-home care, are the insurance industry’s newest cash cows. Insurance companies are banking on their elderly policy holders passing away before a claim can be made, and they have no compunctions about delaying paying a claim in order to run out the clock.

Look what happened to Mrs. Derks. In 2002, at her physician’s behest, she moved to an assisted living facility near her daughter. When her daughter submitted the $1,900 monthly bills to Conseco Insurance Company, the long term care insurer, she was initially told there would be no problem. Then she was told that her mother was not “infirm” enough to qualify for assisted living. Mary was 82 years old, took 39 different pills a day, and had been hospitalized 24 times over the past four years. Mary had set multiple fires in her own home by forgetting to turn off the stove, and had even lain unconscious in her living room for a day and a half before moving to assisted living. Yet, the insurance company said she didn't really need assisted living.

Mary’s daughter made nearly 100 calls to Conseco, trying to get them to pay up before hiring a lawyer and filing suit last October 2006. “We did everything they asked and they just treated us like dirt,” says her daughter, Jacqueline.

The Times article describes how Conseco and other long term care insurance companies turn their claims processing centers into profit centers by using business practices that make it difficult or nearly impossible for their elderly policyholders to get paid. Insurance company allegedly send the wrong types of forms to their elderly policy holders, and then deny the claim based on the incorrect form that they themselves requested the elder to complete. They require irrelevant documentation. They prohibit their own employees from contacting each other by phone to discuss the claim, preventing the quick exchange of information about the claim. They continue to write the elder at their old home address, knowing that the elder has moved to assisted living, and then deny the claim because the elder did not respond to letters they never received. And other horrendous practices.

The Times describes how state “watch dog” agencies which are supposed to protect elderly consumers like Mary Derks seldom respond to requests for their help.

“How many other people are out there who don’t have a family to fight for them and have just given up?” asks Mary’s daughter.

In California, Mary could sue the insurance company under the California Elder Abuse and Dependent Adult Civil Protection Act. Conseco’s victimization of Mary Derks and other senior citizens is just another form of elder abuse.

The Times ( click here to read the article ) describes Conseco Senior Health Insurance Company, Bankers Life and Casualty, and Penn Treaty as having an inordinately high number of complaints. Nationwide, Conseco has more than 1 complaint per 383 policyholders. To get a hold on what that number means, consider that Genworth Financial, the largest long-term care insurer, has only one complaint for every 12,434 policies.

Before you buy a long term care policy, check out the insurance company’s track record with the state Insurance Commissioner. The California Department of Insurance has a website, www.insurance.ca.gov, with detailed Company Comparison and Performance Data. The website uses a measure called an “Index.” The index measures the insurer's share of “justified complaints,” that is, complaints made against the company that are substantiated, against the amount of business the company writes in California, per calendar year. For example, an index of 1.00 means the insurer’s share of all complaints received is equal to its share of all the business written in California. An index of 2.00 means that the insurer’s share of complaints is twice as large as its share of business written in California. An index of 0.50 means that the insurer’s share of complaints is half as large as its share of business.

For 2005, Conseco's justified complaint index is 26.94, meaning that their share of complaints is a whopping 26 times their market share! Click here to go to the Insurance Commissioner’s page on Conseco. You can bet that the traveling salesman didn't give Mary THOSE figures.


Felicia Curran
www.ElderAdvocacyLaw.com

In the last blog entry, I urged you to write the California Department of Social Services, the agency that licenses residential care and assisted living facilities for the elderly, and demand that they post meaningful information about the facilities they license on their website. With respect to skilled nursing facilities or long-term health care facilities, at least there is a state law in effect that requires the California Department of Public Health (DPH) to post this information about those types of facilities. The problem is that DPH has flaunted the law and has not posted information about citations, deficiencies, and survey results on its website.

That may all change if Senate Bill 535 introduced by Senator Sheila Kuehl becomes law. This legislation, supported by California Advocates for Nursing Home Reform (CANHR) will be heard by the Senate Health Committee on March 28.

According to CANHR, SB 535 sets a new deadline for the DPH to establish a web site by March 1, 2008. The bill requires the web site to provide up-to-date information to the public regarding long-term health care facilities in their communities. The bill also requires DPH to post specific facility information, including:

• Whether the facility is for-profit or non-profit
• The number of licensed beds
• Whether the facility has filed a notice of intent to withdraw from the Medi-Cal program
• Information regarding all substantiated and unsubstantiated complaints, state and federal deficiencies issued to the facility, and descriptions of all state citations, including the nature and class of the citation and the amount of assessed penalties
• Information describing state and federal enforcement actions taken against a facility including license suspensions and revocations, denial of payments, temporary
assignment of management and receiverships

On March 28, 2007 (i.e. in less than three days), SB 535 will be heard in the Senate Health Committee, which is chaired by Senator Kuehl. CANHR is asking that you phone or mail or fax Senator Kuehl and ask her and the Senate Health Committee to vote “yes” on SB 535. Their sample suggested letter is:

“Dear Senator Kuehl:

I am writing in support of your bill, SB 535. It will greatly benefit consumers by requiring the Department of Public Health to establish a web site that contains up-to-date, accurate information on nursing homes in their communities. Consumers need this key information in order to make informed decisions about where to place their loved ones.

Thank you for introducing this important bill. I urge you and the members of the Senate Health Committee to vote “Yes” on SB 535.”

Senator Kuehl's phone number is (916) 651-4023. Since time is short, this may be your best option. Her fax is (916) 324-4823. Her email is senator.kuehl@sen.ca.gov.

Because her office gets hundreds of emails a day, they request that you phone or fax them to make sure your correspondence arrives on time.

For more information, visit the CANHR website at www.canhr.org.


Felicia Curran
www.ElderAdvocacyLaw.com

A colleague in our firm recently asked me if I could tell her how she could check the track record of a residential care facility that her father has moved to. The short answer is, “Realistically, you can't.”

California Residential care facilities for the elderly (RCFEs) are licensed by the California Department of Social Services Community Care Licensing Division, Senior Care Program Offices (“DSS” for short). As part of its oversight responsibilities, DSS investigates complaints made on behalf of residents, conducts surprise inspections, generates reports, and issues citations and fines to facilities who are caught violating the licensing regulations. DSS investigates so infrequently, and sometimes so ineffectively, that many bad facilities dodge the bullet and have a clean licensing file. So if DSS has actually cited or fined a facility, or found the facility to be in violation of regulations relating to resident’s rights or resident’s care, that is something you should know about before your loved one goes to live there. Department of Social Services does not post any of this vital information on the web. The only information they post is name, license number, and number of beds. To see their website,

click here

This is a typical entry from the DSS website, for a RCFE in Albany:

Facility No: 015600285 Capacity: 0013
License Status: Licensed
RN3 LOVING CARE HOME
906 CORNELL AVENUE
ALBANY , CA 94706
(510) 526-2533
Contact: CHENG, FANGJUAN
DO: CENTRAL COAST SC/RES (14)
DO Phone: (650) 266-8800

I have no personal information about the RN3 Loving Care Home, and the point is that neither will you, just by looking at the DSS website. But you should. The only way to access the DSS information now is to go to one of the 5 DSS Senior Care Program Offices around the State (Rohnert Park, San Bruno, Woodland Hills, San Diego, and Sacramento). That’s not reasonable access to this vital public information.

Posting of citations, fines, and evaluation reports for each facility would alert unsuspecting family members about that facility, and could actually force a change for the better in how these facilities care for their residents. The New York Times recently had an article about a new website put up by the U.S. Department of Health and Human Services

www.hospitalcompare.hhs.gov.

The website says that it “provides information on how well the hospitals in cities across the country care for all their adult patients with certain medical conditions, on a comparative basis.” The New York Times article described how in the year preceding the launching of this website, several prominent hospitals actually improved their performance in key aspects of their patient care for the reason that the hospitals knew that their ”score cards” would soon be on the web for all to see. The hospitals were candid in admitting that the prospective posting of the data on the website actually spurred them to improve performance.

RCFEs, like the hospitals listed on the www.hospitalcompare.hhs.gov website, would very likely do a better job for their elderly residents if they knew their track record would be there on the web for all to see. There is no excuse for hiding this information from California residents and their families.

Contact Ben Partington, Program Administrator at the DSS Sacramento Office, 744 P Street, MS 10-90 Sacrament, CA 95814, fax (916) 653-9335 and Governor Schwarzenegger (click here) and let them know what you think.


Felicia Curran
www.ElderAdvocacyLaw.com

The rule of law worked in the favor of elder and dependent adults this past week, when the California Court of Appeal handed nursing home residents a key victory in the published case of Flores v. Evergreen at San Diego, LLC No. D048002 (Cal. 4th App. Dist. March 13, 2007).

Nursing homes and residential care facilities often demand that incoming residents or their families sign admission contracts that waive the resident’s right to a jury trial arising from any future negligent acts of the nursing home. The phraseology in the contract may often be as bland as, “You agree to submit any dispute to binding arbitration” with no mention of the fundamental right to jury trial that is being waived.

Admission contracts are not the time or place to decide whether to give up your right to jury trial with respect to a possible future damage claim. You've got other things on your mind, and a lawsuit should be the last thing on your mind if your loved one is going to live there. You probably don't even realize that the pile of paperwork you are asked to sign contains a waiver of right to jury and a requirement of binding arbitration.

Elderly persons’ admissions to nursing homes are typically triggered by a decline in their condition or a catastrophic event that has thrown the family for a loop, making it impossible to care for the elder at home. The family is typically scrambling to find a place for the elder. The contract is typically presented on a take it or leave it basis, where someone says to you, "Sign here."

For these and other reasons, you are very vulnerable to the nursing home’s demands for waiver of fundamental rights at the point where you are signing an admission contract.

What if your spouse signs the admissions contract for you, and it provides for binding arbitration of future disputes? Does your spouse have the authority to waive your right to trial by signing the admissions contract for you? The California Court of Appeal answered that question this week in Flores v. Evergreen at San Diego LLC with a resounding "NO." Mr. Flores signed an admission contract for his wife at the time she was admitted to a skilled nursing facility. Mrs. Flores had dementia, which left her unable to sign on her own behalf. Mr. Flores did not have power of attorney for her. While at the facility, Mrs. Flores was injured, breaking her leg. The facility allegedly did not provide her medical attention for 24 hours after the fall.

When her family filed suit, the facility tried to kick the case out of court and into arbitration, relying upon the contract signed by Mr. Flores. The nursing home argued that because family members are authorized to make medical decisions on their loved one’s behalf and to enforce the loved one’s rights in the nursing home setting, the family in turn had authority to waive the loved one’s right to jury trial.

The Court of Appeal debunked that argument, ruling that Mr. Flores, who did not have a power of attorney for his wife, did not have authority to waive her right to jury trial at the nursing home's request.

Read the Court’s fascinating analysis (click here).

The laws governing nursing homes are supposed to help residents, not limit their rights. Hurray for the Court of Appeal for upholding nursing home residents' rights.


Felicia Curran
www.ElderAdvocacyLaw.com

In a recent blog entry regarding tax cheat Jack Easterday, I described how the Department of Health Services, the watchdog agency that licenses his nursing homes, failed to investigate his nursing homes until after a death had occurred. I also suggested that readers should contact Governor Schwarzenegger and ask him to hold Department of Health Services accountable. This is the response I received from the Governor’s office:

“Thank you for emailing the Governor's Office regarding your need for assistance with Health and Human Services.

Due to the sensitivity of your issue, the Governor's Office must receive a detailed letter in writing requesting our help. If you have not already done
so, please send a letter that provides all pertinent information, such as: return address, telephone number, case/claim number and additional material important for the review process, including your signature.

Please address your letter to the Governor and send your letter by fax to (916) 445-4633 or by mail to the following address:

Governor Arnold Schwarzenegger
State Capitol Building
Sacramento, CA 95814

Again, the Governor is deeply committed to Californians, such as yourself, and looks forward to providing any assistance possible.

Sincerely,
Office of Constituent Affairs”

I am going to send them off the letter, as they request, and will let you know what, if anything, the response is.


Felicia Curran
www.ElderAdvocacyLaw.com