When Arnold Schwarzenegger played Los Angeles narcotics detective John Kimble in Kindergarten Cop, he was said to be “the toughest undercover cop in LA. If you're bad, he'll know it. If you're hiding something, he'll find out. If you cheat, he can tell.”

Some of Arnold’s funniest lines in the movie were when Arnold, as Detective Kimble, took charge and demanded action. Remember such lines as:

“You lack discipline!”

“Well I've got news for you! You are mine now! You belong to me!”

“Who is your daddy, and what does he do?“

"You tell him you didn't do your homework"

“I'm going to ask you a bunch of questions, and I want them answered immediately.”

“Stop whining!”

Arnold is now governor of our state. Unlike Detective John Kimble, Governor Schwarzenegger seems ready to accept excuses for inept and incompetent performance by government agencies that operate under his command. There is a bill sitting on Arnold’s desk, Assembly Bill 399 (Feuer), passed by the California legislature, that only requires the governor’s signature to become law. The bill would require the California Department of Health Services to complete investigations of complaints against nursing homes within 40 business days. The governor’s spokesperson says that he “hasn’t yet taken a position on whether he will sign the bill.”

What is he waiting for? All I can say is it’s time for the Governor to sign that bill and to tell the Department of Health Services to “stop whining.”

The Los Angeles Times did an article describing the types of delays that have prompted the bill.

In July 2006, 81-year-old Octavio “Nito” Jimenez (pictured here) was rushed from an Oxnard nursing home, Maywood Acres, by ambulance to an acute care hospital, where doctors found advanced, infected wounds on his heel and buttocks. The nursing home had told Octavio’s family only that he had “a little sore” on his foot.

His granddaughter Josie Valdez (pictured here) asked the county Ombudsman to investigate. The Ombudsman referred the matter to the state Department of Health Services, stating, “the family is very concerned that they will lose their father from neglect.”

Unfortunately, they were right. A few days later, Octavio passed away from an apparent heart attack. In the 15 months since the complaint was filed, the Department of Health Services still hasn’t investigated the complaint. “To this day, nobody has been able to tell me what the findings were.” Josie Valdez is quoted as saying. “It hurts families and it hurts the person unable to care for themselves.”

The Department of Health Services has proved time and time again that they will not complete investigations on their own accord. They need the fixed deadines provided by 399 to force them to complete investigations on time.

Consider these other delays documented by The Los Angeles Times:

“* One year to investigate and impose a $100,000 fine against Westgate Gardens Care Center after an unattended 77-year-old resident choked on a grape and later died. Instructions in the resident's records indicated she was not to be served whole fruits or left alone when she ate.

* Eleven months to investigate and fine Beverly Healthcare Center in Stockton $80,000 after its air conditioner failed during a heat wave in July 2006. One resident died from hyperthermia caused by the high temperatures, and another resident was taken to the hospital with the same condition, the state said. The home has since changed its name to Golden Living Center-Stockton.

* Fourteen months to cite Manorcare Health Services in Hemet after an 83-year-old dementia patient fell out of his wheelchair, suffered a brain hemorrhage and died. He was supposed to be placed in chair with a lap cushion to prevent falls. The home was fined $75,000.

As Assemblyman Feuer says, the bill is needed to quickly flag problems at nursing homes and ensure they are corrected.”

"A timely investigation with timely results can make the difference literally between life and death sometimes," Feuer said. "Forty days is plenty of time to conduct a meaningful, finely grained, detailed investigation."

Arnold, residents of nursing homes need your help. Tell Department of Health Services, “Don’t procrastinate,” “I own you. You are mine now.” Give them some deadlines.

Let the Governator know what you think - send him an email – click here.

Felicia Curran
www.ElderAdvocacyLaw.com

The New York Times has a new article "At Many Nursing Homes, More Profit and Less Nursing." The article describes how consortiums of private investors such as Warburg Pincus and the Carlyle group are buying up nursing homes, and in the process, harming the residents of the nursing homes they acquire.

These private investment companies are even more profit-driven than the large publicly traded corporations that sold them the nursing homes. The Times’ analysis of records collected by the Centers for Medicare and Medicaid Services shows that “at 60 percent of homes bought by large private equity groups from 2000 to 2006, managers have cut the number of clinical registered nurses, sometimes far below levels required by law. . . . During that period, staffing at many of the nation’s other homes has fallen much less or grown.”

“The first thing owners do is lay off nurses and other staff that are essential to keeping patients safe,” says Professor Charlene Harrington, a professor of nursing at the University of California, San Francisco. Nursing home owners have made “a lot of money by cutting nurses, but it’s at the cost of human lives,” she says.

The typical nursing home acquired by a large investment company scored worse than the national averages on 12 out of 14 quality indicators that government regulators use to evaluate nursing homes. These privately owned homes also have far higher rates of citations and deficiencies than do homes owned by publicly held corporations.

One nursing home profiled by the Times is Habana Health Care Center in Florida (formerly owned by Arkansas-based Beverly Enterprises, Inc.). Within a year of being bought by a private investment group, the investors had cut the number of clinical registered nurses in half. They also slashed budgets for nursing supplies, resident activities and other services, and cut staffing and 48 other nursing homes. A former nursing manager of the home told the Times that “the [new] owners wouldn’t let us hire people. . . . We told the higher-ups we needed more staffing but they said we should make do.”

One of the victims was Mrs. Alice Garcia (pictured here with her grand-daughter). Within months of moving into Habana Health Care Center, she sustained repeated falls. The staff would also reportedly leave her seated in wet adult-diapers, and ignored her daughter’s repeated complaints that they were neglecting her care. Five months later, her daughter discovered “that her mother had a large bedsore on her back that was oozing pus.” The doctor at the hospital to which Alice was taken reportedly said she should have been given treatment for the pressure ulcer “much earlier.” Three weeks later, she passed away.

When her daughter (Vivian Hewitt, pictured here) sued the nursing home for neglecting Alice, her lawyer found out that the private investment group had set up layer upon layer of corporate structures that insulated the investors from legal liability for the injuries to their residents. These corporate shell games “unjustly protect investors who profit while care declines.” The corporation who is listed as the owner with the licensing agency does not have any assets, so even regulators cannot collect fines that are levied at the nursing home.

Although only 10 percent of nursing homes nation-wide are estimated to be owned by private investment groups, this is an alarming trend that demands action from our elected officials. Most of these nursing homes are paid with government funds, by Medicare or Medicaid, and the government needs to demand accountability. In fact, the government pays nursing homes an estimated $75 billion a year, under Medicare and Medicaid programs, according to the article. If a company receives government money for care provided at a nursing home, the company should be responsible for paying any fines levied by the government regulators and for any court judgments entered on behalf of neglected residents and their families.

What can you do? If you or your loved one lives in a nursing home, skilled nursing facility, or assisted living facility, find out from the licensing agency who the owner of record is. Compare that with the names of the corporations on the door, the names of the corporations that manage the facility, and own the building or land where the nursing home is located. Ask the nursing home employees the name of the company that writes their payroll check. If there are multiple corporations involved, that tells you that a shell game may be going on to insulate the owners from liability. Corporations who feel that they have nothing to lose are more likely to cut corners on care.

To read the Times article, click here.

Felicia Curran
www.ElderAdvocacyLaw.com

The California Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) will be amended effective January 1, 2008, to expand and clarify the list of who may bring a lawsuit for elder abuse, abandonment, or neglect after the death of the abused elder. Currently, the law provides that after the elder’s death, the right to bring a lawsuit under EADACPA transfers to the personal representative of the deceased’s estate, or if there is none, to the person or persons entitled to succeed to the decedent’s estate. See Welfare & Institutions Code Section 15657.3(d). Yet, what if there is a personal representative, but that person does not wish to pursue an elder abuse lawsuit, even though other family members do? Or, worse still, what if the deceased was a victim of abuse by the personal representative? Or the personal representative used undue influence over the elder to have him- or her-self appointed as personal representative? In such cases, the very person who would be a defendant in the elder abuse lawsuit has the power, as personal representative, to block the lawsuit from going forward.

A case in point is the Estate of Lowrie case. There, a son of the deceased elder, Laura Marie Lowrie, was appointed her first successor trustee. Laura Marie’s granddaughter was second successor trustee and beneficiary. After Laura Marie's death, her granddaughter filed an elder abuse lawsuit against the son, seeking findings that he had abused Laura Marie prior to her death. The court found that the son had financially and physically abused his mother, and awarded damages to the granddaughter. The son appealed, contending the granddaughter had no standing to bring an elder abuse lawsuit, because he was his mother’s personal representative, and thus, the only person empowered under EADACPA to bring a elder abuse lawsuit.

The Court of Appeal held that the granddaughter did have standing to sue as a plaintiff under EADACPA, and that the standing provisions of EADACPA must be read so as to “deter, not encourage elder abuse.” The Lowrie case is frequently used by lawyers representing families to provide a basis to pursue elder abuse cases on behalf of family members other than the deceased’s personal representative.

The amendments to EADACPA will codify the Lowrie court's holdings and provide more flexibility to family members who wish to pursue elder abuse lawsuits after the elder’s death. The text of the new statute, which takes effect January 1, 2008, is as follows:

“Section 15657.3 of the Welfare and Institutions Code is amended to read:

15657.3.
(a) The department of the superior court having
jurisdiction over probate conservatorships shall also have concurrent jurisdiction over civil actions and proceedings involving a claim for relief arising out of the abduction, as defined in Section 15610.06, or the abuse of an elderly or dependent adult, if a conservator has been appointed for plaintiff prior to the initiation of the action for abuse.

(b) The department of the superior court having jurisdiction over probate conservatorships shall not grant relief under this article if the court determines that the matter should be determined in a civil action, but shall instead transfer the matter to the general civil calendar of the superior court. The court need not abate any proceeding for relief pursuant to this article if the court determines that the civil action was filed for the purpose of delay.

(c) The death of the elder or dependent adult does not cause the court to lose jurisdiction of any claim for relief for abuse of an elder or dependent adult.

(d) (1) Subject to paragraph (2) and subdivision (e), after the death of the elder or dependent adult, the right to commence or maintain an action shall pass to the personal representative of the decedent. If there is no personal representative, the right to commence or maintain an action shall pass to any of the following, if the requirements of Section 377.32 of the Code of Civil Procedure are met:

(A) An intestate heir whose interest is affected by the action.
(B) The decedent's successor in interest, as defined in Section 377.11 of the Code of Civil Procedure.
(C) An interested person, as defined in Section 48 of the Probate Code, as limited in this subparagraph. As used in this subparagraph, "an interested person" does not include a creditor or a person who has a claim against the estate who is not an heir or beneficiary of the decedent's estate.

(d)(2) If the personal representative refuses to commence or maintain an action or if the personal representative's family or an affiliate, as those terms are defined in subdivision (C) of Section 1064 of the Probate Code, is alleged to have committed abuse of the
elder or dependent adult, the persons described in subparagraphs (A),(B), and (C) of paragraph (1) shall have standing to commence or maintain an action for elder abuse. Nothing in this paragraph shall require the court to resolve the merits of an elder abuse action for the purposes of finding that a plaintiff who meets the qualifications of subparagraphs (A), (B), and (C) of paragraph (1) has standing to commence or maintain such an action.

(e) If two or more persons who are either described in subparagraphs (A), (B), or (C) of paragraph (1) of subdivision (d), or a personal representative claim to have standing to commence or maintain an action for elder abuse, upon petition or motion, the court in which the action or proceeding is pending, may make any order concerning the parties that is appropriate to ensure the proper administration of justice in the case pursuant to Section 377.33 of the Code of Civil Procedure.

(f) This section does not affect the applicable statute of limitations for commencing an action for relief for abuse of an elderly or dependent adult.”

The amendment will provide the flexibility needed to give interested family members the ability to bring elder abuse lawsuits and hold wrongdoers accountable. Thanks to Senator Ellen Corbett and her legislative staff for sponsoring this important bill.

Felicia Curran
www.ElderAdvocacyLaw.com

Medicare has announced that it will no longer pay hospitals for the costs of treating injuries and illnesses resulting from errors made by the hospital, according to Robert Pear of the New York Times. “If a patient goes into the hospital with pneumonia, we don’t want them to leave with a broken arm,” said Herb B. Kuhn, acting deputy administrator of the Centers for Medicare and Medicaid Services.

“Under the new rules, to be published next week, Medicare will not pay hospitals for the costs of treating certain ‘conditions that could reasonably have been prevented.’”

Among the conditions that will be affected are falls, mediastinitis (an infection that can develop after heart surgery), urinary tract infections that result from improper use of catheters, pressure ulcers, and vascular infections that result from improper use of catheters.

In addition, Medicare says it will not pay for the treatment of “serious preventable events” like falls, leaving a sponge or other object in a patient during surgery and providing a patient with incompatible blood or blood products.”

And if you’re worried that the hospitals will bill the patient for charges that Medicare refuses to pay, the rules make that forbidden. “The hospital cannot bill the beneficiary for any charges associated with the hospital-acquired complication,” the final rules say.

Consumer advocates reportedly have been urging Medicare to adopt these rules for twenty years. The reason being that if hospitals know that they won’t get paid for making you sick, they will take precautions to prevent these illnesses and accidents.

The rules don't take effect until October 2008.

The Centers for Disease Control and Prevention estimates that “patients develop 1.7 million infections in hospitals each year, and it says those infections cause or contribute to the death of 99,000 people a year — about 270 a day.”

“Hundreds of thousands of people suffer needlessly from preventable hospital infections and medical errors every year,” said Lisa A. McGiffert of Consumer’s Union. “Medicare is using its clout to improve care and keep patients safe. It’s forcing hospitals to face this problem in a way they never have before.”

The change in the rules is coming too late for Margaret M. O’Neill(pictured here with her daughter Eileen O’Neill-Pardo). In 2004, Margaret died of an infection that developed during intestinal surgery at a Seattle hospital.

“The operation — to remove scar tissue — was successful, but the patient died,” Eileen said. “The hospital staff did not take steps to control the infection, which took over her body. My mother died less than a week after the operation.”



Studies have shown that well-established infection-control practices, "like covering doctors and patients from head to toe with sterile gowns and sheets while the catheters were inserted, can greatly reduce the incidence of hospital-acquired infections."

Medicare absolutely made the right call in putting pressure ulcers on the list of preventable conditions. Studies have repeatedly showed that hospital-acquired pressure ulcers can be virtually eliminated if correct precautions are taken by the hospital.

Presumably the rules also apply to nursing homes. If so, then Medicare will refuse to pay nursing homes for treatment of pressure ulcers that are acquired in the nursing home, or where the nursing home lets the existing pressure ulcers get worse. About time!

There are many unanswered questions, but one thing is for sure. Hospitals will begin to do things differently if they are not paid for their mistakes. The new Medicare rules will also provide patients and their lawyers with a formidable weapon to use in a neglect lawsuit against the hospital or nursing home. If Medicare deems that the expense of treating the illness or injury was preventable, that is powerful evidence that the hospital or nursing home was negligent in letting the illness or injury develop.

To read Robert Pear's article, click here.

Felicia Curran
www.ElderAdvocacyLaw.com

Remember Sen. John Edwards’ day following a nurse’s aide in a nursing home? (See Elder Advocacy Blog, April 28, 2007). Recently, both Senator Hillary Clinton and Senator Barack Obama have taken their turn.



Sen. Clinton spent a day at an hospital with an R.N. in Las Vegas. Senator Obama spent a day with a home health aide here in Oakland, California.



Now, I know that people have poked fun at these "walk-a- day-in-my-shoes" events. And sure, I laughed when Jon Stewart said he was waiting to see the video of Senator Joe Biden spending a day with the International Brotherhood of Horse Testicles Handlers. But the union representing health care workers is using the novelty of seeing a U.S. Senator sweeping with a dust pan to draw attention to the very important work done by the R.N.s, LVNs, home health aides and orderlies who are members of their unions. If this is what it takes to begin to get people's attention, so be it.

Although Barack seemed more relaxed and genuinely interested, Hillary as usual got straight to the point when she remarked how important nursing-patient ratios are. In Nevada, no state law mandates that hospitals limit the number of patients a nurse can handle per shift. So it important that the SEIU has negotiated nurse-patient staffing ratios for the nurses at the hospital Hillary visited. The nurse Hillary visited said that she still has too many patients to handle safely. In California, state law provides that hospitals most adjust their staffing levels to meet the actual needs of the patients they have admitted, and at a minimum the hospital must provide 3.2 licensed nursing hours per patient per day.

Even with a state law in effect, hospitals virtually never staff to meet the actual needs of the patients they admit, and more often than not don't have even the minimum number of nurses required under state law.

Barack visited the Oakland home of an 86-year-old home bound man who lives alone – sweeping the floor, making the bed and making him breakfast. Barack got it right when he said that the home health aide’s job description is “providing a life line to the outside world.” The man is in a wheelchair, and lives alone, but he's in his own home at least. The full-time home health aides enable him to stay in his own home and out of a rest home.

The home health aide gets health insurance, but even with union representation the home health aide gets no sick leave, no vacation benefits, and no overtime. She supports herself and 3 children on just $10 an hour.

Check out the videos, above, of the two Senators. Barack seemed to enjoy himself more, although he had the far messier job. But Hillary put in a full 12 hour day with the R.N., and then went over to the nurse's house for dinner.

Felicia Curran
www.ElderAdvocacyLaw.com