The California State Auditor issued a report today criticizing the California Department of Health Services for its handling of complaint investigations of nursing homes. Department of Health Services (“DHS”) is the state agency that investigates complaints of neglect and abuse on behalf of nursing home residents.

The State Auditor criticizing Department of Health Services is like Claude Rains, as Inspector Renault in the movie Casablanca, saying that “I am shocked, shocked to find out that there is illegal gambling” going on at Rick’s Casino. The problems with Department of Health Services are of long standing, and have been long ignored as well.

California law requires DHS to investigate complaints involving death, injury, abuse or unsanitary conditions within 24 hours to 10 days, depending on the severity of the complaint. (See Health & Safety Code § 1420(a)(1)). The DHS operating manual says that investigations should be completed within 45 days from the date a complaint is received. The 71-page audit, which looked at about 17,000 complaints lodged over a 21-month period ending April 2006, found that DHS failed to start an investigation within the required time limits in 51% of the cases, and that it failed to complete investigations as required by the DHS operating manual in 60% of the cases.

The audit also found instances in which the agency investigators did not take safety violations seriously enough, by issuing low-level citations, with paltry fines, to nursing homes for serious violations of safety regulations.

The audit also found that DHS has not established a website with licensing and citation information about each nursing home in the state, which was mandated by the legislature FIVE YEARS AGO.

The State Auditor’s office is just the latest in a series of reports that have criticized the Department of Health Services. State lawmakers ordered the audit after a report last year from the State Legislative Analyst’s Office found that DHS inspectors failed to detect problems during nursing-home inspections, failed to follow up on problems, ignored state standards and performed predictable inspections. Last year, the federal Government Accountability Office also issued a report saying that California’s inspectors often overlooked or downplayed serious safety violations.

The delay in DHS investigations has a profound impact on nursing home residents. The total number of complaints against nursing homes increased from about 8,000 in 2000 to 12,000 in 2005. Yet, at the same time, the portion of complaints that were substantiated by DHS investigators fell dramatically, from 41 percent to 16 percent. That is, in the period surveyed, DHS investigators found that they could not prove that the nursing home had done anything wrong in 84% of the cases. Yet, we know that nursing home care is, if anything, getting WORSE not better. The audit attributes the change in substantiated complaints to the agency’s slow response time, which makes it difficult for DHS investigators to determine what actually happened when they finally investigate.

Hats off to the Auditor for calling DHS on the carpet. The ball is now in Governor Schwarznegger’s and the Legislature’s court.

To read the State Auditor’s Report on Department of Health Services, click here.


Felicia Curran
www.ElderAdvocacyLaw.com

An elder named Mary Schneider died in San Francisco in May 2006. Two of her care givers went on trial this month on charges of criminally neglecting her, but the most shocking aspect of the case related to someone who wasn’t on trial, but should have been, the San Francisco Adult Protective Agency. That’s the public agency responsible for investigating complaints of elder abuse for elders who are not living in a long-term care facility. Mrs. Schneider, a 91 year old bedridden resident of a retirement hotel in San Francisco, “died in agony and neglect, suffering horrific bedsores” after APS failed to investigate her care, according to the San Francisco Chronicle.

Mary Schneider lived in one of San Francisco's most exclusive retirement hotels, and her son hired around-the-clock private care givers for her, but that still did not protect her from neglect. Her son, who was evidently unable to care for her due to his own medical condition of colon cancer, clearly thought his mother was in good hands with the care givers he had hired. But Adult Protective Services received a call alerting them that Mary was a suffering from bed sores, and weight loss, caused by possible neglect.

Adult Protective Services responded by sending social worker Andrea Glass to check in on Mary. Glass surveyed the room, and to all appearances Mary appeared to have "nice hair, nice nails, and a nice room." When Glass asked the care giver about the bed sores, the care giver responded, “I would never do anything like that.” The care giver’s denial was good enough for Andrea Glass, and off she went without looking at Mary’s body or following up with her doctor.

Mary herself was unable to speak on her own behalf and ask for Glass’s help.

In fact, Mary was suffering from extremely advanced bed sores, which apparently only were detected some 3 weeks later after her death. The care giver was criminally prosecuted, but the District Attorney, Elliot Beckelman, also reamed the Adult Protective Services investigator, telling the jury, “You know that’s outrageous, on a call for bedsores, not to look at the body. She was taken in by the visuals . . . That’s lazy.”

An investigation by the City of San Francisco found that APS had insufficient staff, inadequate training, and a failure to report suspected elder abuse, which Mayor Gavin Newsome has promised to rectify.

Adult Protective Services is not the only public agency that falls down on the job of protecting elders. The California Department of Health Services and Department of Social Services - the state agencies in charge of nursing homes and assisted living facilities – have investigators who often take the word of the nursing home or the rest home against the family or resident. Too often all it takes for the nursing home to get off the hook for neglect is for the nursing home administrator to simply deny it ever happened.

Can you or I get out of a traffic ticket simply by denying it ever happened? Can a bank robber walk away simply by telling the police officer he didn't do it? Why should it be any different for someone suspected of elder abuse?

The elder's family relies on the public agency to do their job -- often they don't, but no one realizes until it is too late. A lot of that has to do with the state investigators’ ridiculously heavy work load - that’s one less case that they have to follow-up on.

And, the nursing home, at the first hint of an investigation, hires teams of lawyers to inundate the state investigator with paperwork that is usually irrelevant to the charges. They would rather pay their lawyers than pay to correct staffing and budgeting shortages at the nursing home.

State investigators these days seldom take the time to interview care givers directly, and if they do, don’t ask tough questions that need to be asked.

To read the Chronicle article on Mary Schneider, click here.


Felicia Curran
www.ElderAdvocacyLaw.com

Read the amazing story of elder advocate Helen Karr, as reported in the San Mateo Times. As a hairdresser, Helen Karr found that her clients would tell her things they wouldn’t repeat to anyone else. Her elderly clients often told her stories revealing that strangers and family members were financially exploiting them. Determined to make a difference, on her 64th birthday, Karr enrolled in law school and earned a degree. Says Helen, “Once I passed the bar, I called my mentor in the DA's office and volunteered to help them set up the elder abuse department." Helen Karr now works as an elder abuse specialist in the San Francisco District Attorney's Office.

Besides her work as an elder abuse specialist in the San Francisco D.A.'s office, Karr is a legal research assistant to the State Bar of California's Office of Media and Information Services, where she works on a publication about seniors and the law. Karr also volunteers with San Mateo County's Seniors Against Investment Fraud (SAIF).

"This is a way to go to the people and talk about elder abuse. The only way we are going to stop this horrible crime is for people to understand that it is a crime," she said.

Helen Karr’s testimony before the California legislature led to a 2005 law that requires financial institutions to report financial abuse or unusual activity in a person's bank account. She is also responsible for convincing the legislature to designate May as Elder and Dependent Adult Abuse Month in California.

Helen is also promoting an Elder Abuse Awareness postage stamp.

Victims of financial elder abuse are not only robbed of their money. They are often in danger of losing their homes. Some lose everything, including their life savings. “The worst-case scenario involves a predator who becomes an elder person's "new best friend," Karr said. “The predator uses the elder's money for expensive purchases, including cruises. Eventually they so isolate their victim from family members they claim ‘no one else cares about you, but me.’”

Helen Karr is also a member of San Mateo County Ombudsman's board of directors, which exposes her to a different kind of elder abuse. "I thought this would be a good opportunity to be aware of the neglect happening in nursing homes," she said.

If you ever run dry on inspiration, just remember Helen Karr. At the age when most people are thinking of retiring, she reinvented herself, touching many elderly people’s lives in the process.

To read the San Mateo Times story, click here.


Felicia Curran
www.ElderAdvocacyLaw.com

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