What happens to the elderly residents of a residential care facility when the facility decides to close? Do existing laws provide adequate legal protection to elders in those situations? Look at what's happening in Oakland, California to 105-year-old Josephine Dukes, as reported by the Oakland Tribune.

Mrs. Dukes surely thought that the Matilda Brown Home would be her home for the rest of her life when she arrived there four years ago. After all, the Matilda Brown Home, in the Temescal district of Oakland, has been operating as an assisted-living facility for low-income women since 1928.

Mrs. Dukes is remarkedly healthy, mentally intact, and still walks with the use of a cane. But, life has thrown her some curve balls the last few years.

Josephine Dukes was born in 1902 in Mississippi, where she says the doctor told her mother that she was “too small and weak to survive.” That's a good one! She graduated from college and was a teacher for many years. She and her husband moved to California during World War II, where she and her husband had an income tax business and owned rental properties. “She was very active in the West Oakland community helping other people” according to her legal guardian, Tommie Lindsie.

In the 1990s, her home and rental properties were sold after her husband passed away. She should have been sitting pretty, but she was the victim of financial elder abuse. She lost most of her life savings when she loaned a “friend” money to pay off a lien in the 1990s. But, as she says, “I was a victim of a rip-off scheme.”

So, at 97 years of age, she went back to work, working 20 hours a week at the Housing Authority telephoning other seniors to check on their well being. She retired from that job at age 100. She now relies only on her late husband’s Army pension of $700 a month.

Mrs. Dukes and 16 other residents of the Matilda Brown Home were notified on March 10, 2007 that the home will be closing its doors June 15, 2007. The nonprofit Ladies Home Society, which runs the home, says that dwindling finances and escalating expenses are forcing the closure. They are expecting Mrs. Dukes’ legal guardian, Tommy Lindsey, to find her a place to live, but with her limited finances, it is not easy, and certainly not with just 90 days notice.

Says Tommy Lindsey, “This [closure notice] all came about so fast. Here we thought she was settled for life. They’ve given us an organization we can contact, and I’m trying to get the paperwork together. But, gosh, Mrs. Dukes being 105 and having to be moved back and forth like a vagabond - this shouldn’t happen.”

Yes, why the big rush when evidently the home has had financial problems going back to 2002? The head of the Ladies Home Society told the Tribune reporter, “There’s obviously the question of whether three months notice was enough . . . If it had been five or six months, we would have lost our best employees, and would have been operating at a greater and greater loss as residents moved out. We thought three months would give everybody ample time to find another place.”

Does this sound like they decided that if someone’s ox needed to be gored, it would be the elderly residents', such as Josephine Dukes, and NOT the nonprofit corporation's? I hate to criticize a nonprofit with such a great history of community service (they even provided a subsidy of $2,000 a month to Mrs. Dukes so that she could live there on her monthly pension), but that's what it sounds like to me. Given that the residents are low income, the nonprofit knows that it will not be easy for them to relocate.

Imagine what happens to residents of assisted living facilities run by FOR-PROFIT CORPORATIONS that are closing. Very often the residents get a few weeks notice.

Mrs. Dukes’ situation may be the kick in the pants the California legislature needs in order to pass laws guaranteeing elders legal protections when assisted living facilities close. Assembly Bill 949 (Paul Krekorian) is coming before the California Assembly Human Services Committee on April 24, 2007. The proposed legislation would require residential care facilities for the elderly to prepare an evaluation of the relocation needs of each resident PRIOR to giving the residents 90 days notice of closure of the facility. The evaluation would have to include "a listing of other facilities that are available and adequate to meet the resident’s needs" per the text of the bill. The closing facility would have to pay a relocation fee of $2,500 to each resident, to help defray moving costs. The closing facility will be subject to daily fines if they don’t follow the relocation requirements.

To read the text of AB 949, click here.

If anything, the question is whether the proposed law goes far enough, and whether 90 days notice is enough. 90 days notice isn’t enough unless the closing facility has for each resident that will be displaced the names of comparable facilities that are ready, willing, and able to take on each resident, and which the resident can afford. A list of places that “in principle” are available is meaningless.

Send your thoughts about AB 949 to Jim Beall, Chair Assembly Human Services Committee, State Capitol, Room 4206, Sacramento CA 95814, fax (916) 319-2189, and copy California Advocates for Nursing Home Reform (CANHR), the advocacy group that spearheaded the legislation, at fax (415) 777-2904.

In response to the Tribune’s April 14 article, community members immediately offered Mrs. Dukes spare rooms in their homes, and a neighborhood group Friends of Matilda Brown has been formed to try to stop the home from closing altogether.

Thanks to Angela Hill of the Oakland Tribune, for her excellent coverage, which has brought Mrs. Dukes' situation to light. To read her articles, click here and click here.


Felicia Curran
www.ElderAdvocacyLaw.com

The blog's March 27th entry related to the New York Times article, “Aging, Frail, and Fighting Insurers to Pay Up,” describing the despicable practices that some long-term care insurance companies use to avoid paying for long-term care for their elderly policyholders. Remember Mary Derks, pictured here with her daughter? Well, put your hands together for Senator Barack Obama, who, after reading the Times article, wrote a letter to the head of the Government Accountability Office calling for an investigation into long-term care insurance. This is the text of his letter:

"April 5, 2007

The Honorable David M. Walker
Comptroller General
U.S. Government Accountability Office
441 G Street, NW
Washington, DC 20548

Dear Mr. Walker:

A March 26, 2007 article in the New York Times investigated the
practices of several long-term care insurers and reported a number of
troubling findings about practices that "make it difficult - if not
impossible - for policyholders to get paid." According to the article,
nearly 1 in every 4 long-term care claims in California was denied in
2005.

Nearly 9 million long-term care policies had been sold as of 2002, the
most recent year for which data were available, with about 80 percent
purchased through the individual market and the remaining 20 percent
purchased through the group market. These products provide elderly
Americans with coverage for care in their homes, assisted living
facilities, and nursing homes. This range of services is critical for
the health and financial well-being of seniors, 70 percent of whom
will require long-term care at some point in their lives.

Long-term care is a problem of national significance. As the baby
boomers age, policymakers are struggling to design a long-term care
system that meets the needs of Americans with disabilities. While
progress has been made, the long-term care system is heavily biased
towards institutional care, and the quality of care is often poor.
Moreover, nursing home and home care are very expensive, and Medicare
coverage for both is limited. As a result, catastrophic out-of-pocket
expenses for nursing home and home care by American's older people are
routine, forcing many to rely on Medicaid to finance the care they
need.

The federal government has taken steps to promote the use of long-term
care insurance. The Long-Term Care Partnership Program, a
public-private partnership between states and private insurance
companies, is one such example. The Federal Long-Term Care Insurance
Program, sponsored by the Office of Personnel Management for federal
employees, is a second example. In addition, the Health Insurance
Portability and Accountability Act has profoundly shaped the long-term
care market by establishing standards regarding the characteristics of
policies whose premiums can count towards the tax deduction available
for health care costs that exceed 7.5 percent of income.

I have a number of serious concerns about the long-term care insurance
market and its ability to fulfill its promises to its policyholders.
First, I am concerned about the possible arbitrary denial of insurance
benefits to seniors at their time of need. Second, I am concerned that
some insurers may be enticing individuals to buy policies by offering
low premiums, and then sharply increasing premiums if lapse rates are
not as high as assumed in the premium calculations. Third, a
substantial percentage of policies do not offer inflation adjustments,
resulting in a significant erosion of purchasing power in later years.
Even worse, some companies offer "inflation coverage," which allows
policyholders to purchase additional coverage at a later date, but at
the price charged to older purchasers. Premiums increase dramatically by
age, and individuals who elect to buy coverage later may not realize
that such coverage will be extremely expensive, which may be
financially infeasible.

Given the role of the federal government in long-term care financing,
I request that GAO investigate these allegations and the adequacy of
state and federal regulation. Specifically, I request that GAO review
the practices of these insurers in order to assess the following:

-- Rate of denial of claims, and as feasible, the extent to which
denials were justifiable;

-- Types of policies purchased, including the percentage of policies
that do adjust and do not adjust for inflation and those that allow
for purchase of additional coverage at a later date;

-- Estimated loss of purchasing power for those individuals that have
policies without inflation adjustment provisions;

-- Frequency and amount of premium increases in already purchased
policies, average lapse rates of policyholders, and the correlation
between premium increases and lapse rates;

-- Extent to which long-term care policies are marketed to individuals
that would likely qualify for Medicaid or may not have substantial
assets to protect; and

-- What, if any, additional federal regulation is needed.

Thank you.
Sincerely,
Barack Obama
United States Senator”

To read the New York Times article, click here.

Future editions of Elder Advocacy Blog will track both the talk and the walk of the 2008 Presidential Candidates on issues of elder medical care and nursing home abuse and elder abuse prevention. We need to make elder advocacy part of the national debate in electing a new president.


Felicia Curran
www.ElderAdvocacyLaw.com

The New York Times ran an article this past week about how to tell if you’re having a heart attack. The article described how the popular image of a heart attack is all wrong.

"It's the Hollywood heart attack," said Dr. Eric Peterson, a cardiologist and heart disease researcher at Duke University. "That's the man clutching his chest, grimacing in pain and going down," Dr. Peterson said. "That's what people imagine a heart attack is like. What they don't imagine is that it's not so much pain as pressure, a feeling of heaviness, shortness of breath."

Dr. Elliott Antman, director of the coronary care unit at Brigham and Women's Hospital tells his patients, "Be alert to the possibility that you may be short of breath. Every day you walk down your driveway to go to your mailbox. If you discover one day that you can only walk halfway there, you are so fatigued that you can't walk another foot, I want to hear about that. You might be having a heart attack."

You may also have "discomfort in the chest that may, or may not, radiate into the arms or neck, the back, the jaw, or the stomach. Many also have nausea or shortness of breath. Or they break out in a cold sweat, or have a feeling of anxiety or impending doom, or have blue lips or hands or feet, or feel a sudden exhaustion."

Signs and symptoms in elders are often are less distinctive, especially in older women. "Their only sign may be a sudden feeling of exhaustion just walking across a room. Some say they broke out in a sweat. Afterward, they may recall a feeling of pressure in their chest or pain radiating from their chest but at the time, they say, they paid little attention."

Patients with diabetes "might have no obvious symptoms at all other than sudden, extreme fatigue."

Get into a hospital or call 911 if you are having these symptoms. Medical research shows that people have only about an hour to get their arteries open during a heart attack if they are to avoid permanent heart damage. During this "golden hour" you have a chance to save most of the heart muscle when an artery is blocked."

To read the complete New York Times article, click here.


Felicia Curran
www.ElderAdvocacyLaw.com

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