High Court Holds ‘Bed Tax’ Constitutional

We previously covered the Illinois Supreme Court’s consideration of what has been termed the “bed tax.” This tax is an assessment of a $1.50 fee for each bed in a nursing home or long-term care facility in the state of Illinois. The fee is charged per bed per quarter, which for those who can already figure out with basic arithmetic, amounts to $6.00 a year per bed. The money collected from this tax is put directly into a Long-Term Care Provider Fund, which was established by statute, and is used to help fund long-term care and other health initiatives for the state.

This is, in general, a common use for taxes by states and even the federal government in the sense that the money is used for services and costs related to the industry or subject area of the tax in the first place. In spite of this as a function of the state’s taxing power, such taxes must also pass constitutional muster – be it federal or state – and nursing homes have vehemently challenged this tax as unconstitutional, which has resulted in a case path up to the state’s highest court. The state, on the other side, has argued that the tax is applied to all nursing homes across the state, and that it is hardly arbitrary, but instead goes to the long-term care fund which helps nursing homes and other health care programs and initiatives, including Medicaid.

Investment Firm Takes Over Family-Run Nursing Home

When someone thinks of a “mom and pop,” they might think of a small town shop, solely owned and operated by a couple or by a family. The term evokes something not necessarily simpler, but more approachable, possibly family-oriented, and something that may count its role in the community as part of its identity. However, with an ever-growing corporate America, as well as globalization, mom-and-pop outfits are less common, especially in the more populated areas, and bigger companies swoop in and take over ownership, control and operation of stores, restaurants, and the like.

Unfortunately, nursing homes and long-term care facilities do not avoid this trend either. As time goes by and the demand for nursing health care increases with a baby boomer population that grows older and requires more support and care, there is more money to be made. Throw in the involvement of not just private insurance but of government programs like Medicare and Medicaid for the elderly, the poor and the infirmed, and there are even greater dollar signs on the horizon for nursing home owners and administrators.

Nursing Home Cameras and Elder Abuse Prevention

video_surveillance_lawsMany Californians have loved ones in nursing homes or assisted-living facilities. While we want to put our trust in these facilities and to believe that they are treating our elderly parents and relatives properly, many of us worry about the risks of nursing home abuse and neglect. According to a recent article from NBC San Diego, local families want to install cameras in patient bedrooms, “but they are facing a roadblock from the state.”

Documenting Elder Neglect in Southern California

Why wouldn’t the state want to use video cameras in patient rooms to monitor for elder abuse or neglect? According to Joe Balbas, the co-owner of Vista Gardens, “elderly patients in nursing facilities should have the option of having security cameras in their room[s].” Vista Gardens is a residential facility for patients with Alzheimer’s and other forms of dementia. Balbas believes that installing cameras in rooms—at the request of patients and their families—could help to prevent serious injuries.

What’s the holdup, then? Under current California law, nursing homes and other assisted-living facilities can only use cameras to “monitor residents in common areas, such as hallways or dining facilities.” Vista Gardens already uses cameras in these areas of the facility, but residents’ families don’t believe they’re sufficient. Balbas thinks that the California Department of Social Services is preventing lawmakers from “giving the green light” to in-room cameras. As Balbas explains, “although [the Department of Social Services] is supposedly going to be working with us, it’s been promises that eventually we will get to it. I know they are busy. We are all busy. This is an important issue.”

But, there’s not time to wait. Does the Department of Social Services simply have a backlog of issues with which it must contend and the issue of in-room cameras is in line for attention, or do some administrators have other concerns? According to Michael Weston, the Deputy Director of Public Affairs at the Department of Social Services, “the client’s right to privacy is a concern for the department.” As Weston pointed out, “we view these as people’s homes, and we want people to have rights in their own home and balancing that between a business and a residence.”

The department has developed certain guidelines that “would allow video cameras in private rooms under specific conditions.” However, these guidelines remain in the proposal stage. Some former employees at the department believe in-room cameras should be optional, particularly when families have concerns about elder abuse and neglect.

“Cameras Don’t Lie:” Objective Evidence of Abuse

Why are California families pushing for in-room cameras? Let’s take a look at one specific case, reported in the NBC San Diego report. In October of 2013, Kathe Murphy, a retired paralegal for the Department of Social Services, put her mother in a retirement community that provided care. However, Murphy soon realized that her mother was suffering from elder neglect.

To be sure, Murphy documented “her mother’s dirty clothes, room, and bathroom” with photographs. She insisted the the facility wasn’t taking proper care of her mother, and that the facility was neglecting its duties. By spring of 2014, Murphy learned that her mother had been “put in bed and not checked on for almost 24 hours.” As a result, Murphy found her “laying there with a dirty diaper with sores on her back for almost 12 hours.” Murphy’s mother died just three weeks later.

If Murphy had been allowed to have an in-room camera in her mother’s room, she might have learned about the neglect much earlier. Indeed, the camera might have been a valuable tool in preventing her mother’s injuries.

Do you have concerns about your elderly loved one’s safety? If you suspect that someone you love has been the victim of nursing home abuse, you should contact an experienced San Diego elder law attorney as soon as possible.

See Related Blog Posts:

New Jobs in Department of Public Health Aim at Preventing Elder Neglect

California Facilities Fined for Resident Deaths

CILA Resident Dies Due to Alleged Carelessness– Levin & Perconti Help Family File Lawsuit

The Anixter Center is one of the biggest providers for the disabled in the Chicagoland area, and has held a state operating license as a group home. In a recent unfortunate incident, on the first day of November 2014, an Anixter resident choked on food and died while on a group trip outside the home when the group stopped for fast food. It has been alleged that his caregivers did not provide the mandated one-on-one supervision to the patient during mealtime.

The Tragic Case

Resident’s Restraint and Abuse Raises Important Nursing Home Safety Issues

In Scranton, Lackawanna County, Pennsylvania, a former nursing home aide will go to trial over accusations that several months ago the staffer, who was a certified nursing assistant, assaulted one of the Gardens of Green Ridge nursing home residents. The allegations include that the young nursing assistant physically restrained the 76-year old female resident by holding the resident’s room door closed to keep her trapped inside the room. In addition to this particular restraint, the nursing home aide has also been accused of physically assaulting the patient by dragging her around by her wrists and arms, which resulted in bruising in those areas as well as on her shoulders.

It has been stated that the nursing home has cameras that have captured the alleged abuse and physical restraint, and that witnesses testified that they heard the resident hit the aide, and that the resident yelled at the aide to not touch her. However, the accused’s defense attorney indicated that the aide was simply following orders from a superior to keep the patient in line because she was agitated. Notably, the patient suffered from dementia. As the trial approaches, the one good piece of news is that the patient has been moved to a different nursing home, and is reportedly doing all right.

New York Nursing Homes Acquire Guardianship to Get Paid

The legal concept of a “legal guardianship” confers upon others, typically a loved one of the person needing the guardianship, the responsibility to make the right decisions on behalf of someone incapable of doing so on their own – typically a child but also an infirmed adult. These can be touchy and risky subjects, and often residents of nursing homes will need to assign a power of attorney or legal guardianship to a loved one who may suffer from increasing dementia or Alzheimer’s, or old age just simply leaves them unable to make these important decisions.

A Dangerous New Trend

In recent news in the state of New York, there is a disconcerting trend among nursing homes in the state that are taking advantage of legal guardianship powers in order to ensure patients make good on their bill payments. Legal guardianship in New York, as in other jurisdictions, is typically meant for someone who cannot manage their money or is incapacitated and cannot care for themselves or make important health decisions. In one case documented in the New York Times, a New York nursing home filed a guardianship petition in order to take over legal guardianship for a patient. Such power would include the ability to make important decisions, as well as to control that patient’s money.

Elder Abuse and Assisted-Suicide Legislation

euthanasia-300x175Many Californians are in favor of legislation that would permit assisted suicide in certain situations, yet some elder advocates worry that such legislation won’t have sufficient safeguards to protect against elder abuse. According to a recent article in the Modesto Bee, the Death with Dignity bill, or assisted-suicide legislation, can have “many unintended consequences” that can negatively impact elderly Californians.

Pressure to Agree to Assisted Suicide

The article in the Modesto Bee provides the viewpoint of a former hospital social worker, whose “primary concern is for individuals who might feel pressured into ending their lives.” While assisted suicide may allow individuals with terminal illnesses to end their lives on their own terms, there’s a real concern that such legislation can be dangerous when it comes to “those who might not have a strong support system; access to health care, palliative care, and hospice; or the benefit of a loving, caring family.”

How might this legislation lead to elder abuse? One point to consider, perhaps, is that many perpetrators of elder abuse actually are family members. And, some social workers fear that those family members may try to pressure their elderly loved ones into ending their lives. To be sure, California has seen its share of family caregivers who “were abusive and stole money from their disabled and elderly relatives.”

In addition, there’s a serious concern that staff members at care facilities might not be able to provide the right support that terminal patients need in deciding whether or not to choose assisted suicide. What happens when financial pressures lead to a patient’s decision to end his or her life? What about emotional pressures?

Limitations to Elder Abuse Safeguards

In short, the proposed assisted-suicide legislation in California doesn’t protect elderly patients from outside pressures that can impact their ultimate decisions. But, why is this a particular concern for older adults? To be sure, “no assisted suicide ‘safeguard’ can ever protect against coercion.” Then, why should we be talking about certain safeguards for the elderly?

When it comes to the elderly, it’s important to remember that many patients may have already been subject to nursing home neglect or abuse, and thus they may be emotionally incapacitated. In addition, many older adults suffer from diseases like dementia that ultimately limit decisionmaking capacities. Who will advocate for seniors when it comes to assisted-suicide options?

Certain elder advocates aren’t just concerned about pressures from family members and other outsiders. Indeed, insurance companies may also exert pressure on these patients if the bill passes. For instance, in Oregon, where such legislation already exists, insurance providers have denied treatment coverage to extend the life of a terminal patients but have agreed to pay for the same patient’s assisted suicide. And, if assisted suicide looks more like a “treatment option” that comes with a lower price today, advocates worry that elderly Californians won’t have anyone to speak up for their rights when it comes to medical care.

A lack of oversight also could prove problematic, as the legislation has “no requirement for an outside witness to be present when the deadly drugs are taken.” As such, “there would be no one there to know whether or not a patient changes her mind or decides that she isn’t ready to die,” and no one to confirm whether or not a patient took the drugs on her own “or if someone else put the lethal dose in a feeding tube.”

The Death with Dignity bill has goals that are certainly worthy of consideration. At the same time, a number of medical organizations and advocates argue that we may need to think deeply about how assisted-suicide legislation in California could lead to unintended elder abuse incidents. Should the Death with Dignity bill include certain safeguards against elder abuse? And, would such safeguards be effective?

If you have concerns about nursing home abuse or neglect, don’t hesitate to contact an experienced San Diego elder abuse lawyer. An attorney at the Walton Law Firm can discuss your case with you today.

See Related Blog Posts:

California Facilities Fined for Resident Deaths

Staffing Shortages at Skilled Nursing Facilities

Family and Paid In-Home Care Continues to Rise

As we have covered before, there has been a growing trend toward administering care to the elderly and infirmed in their homes rather than in target=”_blank”nursing homes or long-term care facilities. The benefits seemingly outweigh the costs, and the pros significantly outweigh the cons, when it comes to using this type of care which has been colloquially termed “community-based care.” The advantages may even be somewhat intuitive, particularly with what we know about how some nursing homes provide such inadequate care, neglect their patients, and even abuse them, resulting in substantial injuries or even death, and requiring federal and/or state government involvement to investigate, sanction the offenders and evolve new rules governing facilities.

Pros and Cons of Community-Based Care

Community-based or in-home care allows for a more personalized touch when it comes to treating patients of physical and/or mental infirmity, and for taking care of the elderly as they increasingly require closer attention. This contrasts with a paradigm in which many nursing homes look to maximize profit by cutting back on overhead and staff, which can divert or take away attention necessary for patients. In some homes, for example, patients may only get a matter of minutes per day of attention from a nurse or nursing aide, and can often be overlooked or ignored when they need help, or can be left without enough food and water thus leading to malnourishment and dehydration. Additionally, when staffing levels are low, facility staff become overwhelmed with the amount of patients, especially when some are irritable or violent, and often resort to easier but less desirable means to deal with those issues, such as locking the patients in their rooms.

Psychiatrist Settles Pleads Guilty and Settles Civil Claims

Background

A few months ago, an Illinois psychiatrist was suspended indefinitely from practicing because of his alleged abuse of an antipsychotic drug called clozapine. Dr. Michael J. Reinstein prescribed clozapine to more than half of his patients at nursing homes as well as mental health facilities. Clozapine is used to keep patients sedated when they become irritable or violent – many of them suffer from dementia or other ailments, and antipsychotic drugs such as clozapine are used to hold them down. Such drugs can be considered an unacceptable form of chemical restraint that advocates have fought against in recent years in favor of more humane methods that avoid drug dependency.

New Jobs in Department of Public Health Aim at Preventing Elder Neglect

Amidst news reports of elder abuse and neglect in assisted-living facilities, nursing homes, and residential care facilities for the elderly (RCFEs) across the state, the California Department of Public Health (CDPH) has been criticized for its failure to investigate. What did it fail to investigate, exactly? Elderly patients and their families argue that they reported nursing home abuse incidents to the CDPH, yet they contend that the department didn’t investigate those complaints in a timely manner and failed to properly fine the responsible facilities.

budgetcalculatorMore Funding for Elder Abuse Investigations

According to a recent press release from the California Advocates for Nursing Home Reform (CANHR), Governor Jerry Brown has proposed a budget for the coming fiscal year that would “add more than $30 million and about 260 positions for the Licensing & Certification Division of the California Department of Public Health.” Yet, the most surprising part of the new budget isn’t merely about licensing and certification. Rather, as the CANHR suggests, it’s about taking complaints about nursing home abuse investigations more seriously.

To be sure, the press release emphasizes that, usually, when we see such a huge increase in a budget, we assume that “there must have been a huge increase in its workload to justify such an enormous expansion of its workforce.” In the current case, however, “that is not so.”

Given that the CDPH was so behind with investigations—primarily a problem of staffing shortages, the department suggests—it might not come as a complete shock that the department is increasing its staff into order to better handle complaints. As the CANHR explains, the department “is requesting the new positions primarily because its prior methodology for assessing staffing needs failed to consider that inspectors were needed to investigate its vast backlog of complaints or to finish complaint investigations and write reports after onside visits were conducted.”

Requirements to Promptly Investigate Nursing Home Abuse and Neglect

Nearly a decade ago, a San Francisco Superior Court Judge ordered the CDPH to promptly investigate allegations of nursing home abuse and neglect, which the department claimed it couldn’t do despite a recent $20 million budget increase for hiring investigators. A backlog of elder abuse complaints existed ten years ago at the department, and money didn’t seem to correct the problem.

Will additional finding help the CDPH to handle its current backlog and to properly investigate complaints of elder abuse in a timely fashion? While the $30 million going toward new jobs in the department will certainly help with the workload, it looks as though it still will have problems with prompt investigations. As the CANHR points out, “even with all the new positions,” the department believes that “it will take approximately four years to complete the current pending investigation workload.” And, that estimate doesn’t include new cases that are likely to come in during 2015.

Do you have an elderly parent or loved one who has suffered injuries as a result of nursing home abuse or neglect? It’s very important to discuss your case with an experienced San Diego elder abuse lawyer as soon as possible. Contact the Walton Law Firm today.

See Related Blog Posts:

Staffing Shortages at Skilled Nursing Facilities

Latino Elders and Rates of Abuse