What does it take to get staff's attention at a bad rest home? The Associated Press reported last week that a lawsuit has been filed against an assisted living facility alleging that staffing was so inadequate “that a rat crawled into an Alzheimer’s patient’s mouth and died there before staff noticed.”

The lawsuit is filed on behalf of 90-year-old Alzheimer resident, Sigmund Bock, against Paragon Gardens Assisted Living and Memory Care Communities in Mission Viejo, California. The facility denied the allegations.

According to Steven Garcia, the lawyer representing Mr. Bock, records from the Paragon facility state that Mr. Bock was “playing with a rat in his room and eating candy with the rat.” Huh??

Paramedics called to the facility noted "possible ingestion of rat poison" in their report and an emergency room report says Mr. Bock was “found in room in care facility with dead rat in mouth.” Mr. Bock is now living in another assisted living facility where he is getting psychiatric treatment, presumably for his encounter with the rat.

Another lawsuit is pending against Paragon Gardens in connection with the disappearance of a 71 year old dementia patient, Troy Nelms, who wandered away from the facility and was never found. He is presumed dead. Department of Social Services has sued to revoke Paragon’s license, alleging that six clients were injured and one died after improper care there.

In other words, this assisted living facility has a horrible track record with the licensing authority, but it is likely that few of the residents or their families know about it.

The bizarre charting by the rest home staff member, "[resident] was eating candy with the rat" is a good example of how rest home staff are taught to make innocuous-sounding entries in the resident's chart, to attempt to normalize abnormal incidents and minimize the facility's responsibility for neglect.

Felicia Curran
www.ElderAdvocacyLaw.com

The California Department of Health Services announced on April 5th that it is monitoring the nursing facilities owned by Pleasant Care Corp., the state's second-largest nursing home corporation, after learning that Pleasant Care has filed for bankruptcy. "We are monitoring those facilities daily to ensure patients were being cared for," said DHS official Mike Bowman. "We had heard employees were told not to cash their checks. We had to make sure people were showing up to work and make sure there was no disruption in service.”

Pleasant Care Corporation, owns more than 30 facilities throughout California, including: Emmanuel Convalescent Hospital of Alameda, 508 Westline Drive, Alameda CA 94501, Emmanuel Convalescent Hospital of San Jose, 180 North Jackson Ave, San Jose, CA 95116, and Pleasant Care Rehabilitation & Nursing Center of Santa Cruz, 2990 Soquel Ave, Santa Cruz, CA 95062

Last year, Pleasant Care Corp. agreed to settle a lawsuit brought by former California Attorney General Bill Lockyer, prompted by numerous allegations of elder abuse and criminally negligent care, including more than 160 citations that the Department of Health Services issued against Pleasant Care facilities across the state over the last five years for regulatory violations. The settlement provided for a permanent court injunction over all 30 of Pleasant Care’s skilled nursing facilities in California, forcing them to dramatically improve the quality of care provided to residents occupying the company’s more than 4,300 skilled nursing facility beds, including:

• Mandatory Staff Training
• Abuse and Neglect Investigations
• Compliance Officer
• Independent Monitor
• Nurse to Patient Ratio
• Whistleblower Protections

The bankruptcy proceedings do not discharge the estimated 3 million dollars that Pleasant Care Corp. owes the State of California, but do affect pending lawsuits for elder neglect and abuse filed against Pleasant Care by residents and their families. After a nursing home files for bankruptcy, any lawsuits against the nursing home are put on hold, or stayed, for the period of the bankruptcy, unless the lawyer representing the nursing home resident obtains relief from the bankruptcy stay. If the nursing home has liability insurance, the lawsuit against the nursing home may proceed, provided that the parties who filed the lawsuit agree to limit their monetary damages to the amount of the available insurance, and to forego any action to “pierce the corporate veil” and sue the individual owners of the nursing home.

Nursing homes in California, however, are not required to carry liability insurance as a condition for being licensed. Indeed, letting their insurance go is one of the first cost-cutting measures that a nursing home may take when it gets into financial difficulties.

If the nursing home is operating without insurance, and declares bankruptcy, it may be able to walk away, scot-free, and effectively avoid paying you or your family compensation for any injuries it causes you. While you and your family are denied monetary compensation, the nursing home will be able to hide behind the bankruptcy laws and avoid its obligations to compensate your family for the harm it has done to you.

When evaluating a nursing home as a possible place for yourself or your family member, always ask the nursing home whether it carries liability insurance, how much, and ask to see proof of its insurance.

For more information about the Pleasant Care bankruptcy proceedings and the DHS action, Click here.


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

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