Understanding Elder Abuse and Elder Neglect: A Guide by our San Diego Elder Abuse Lawyers
Berman & Riedel, LLP, is largely considered one of the leading firms in California for handling civil claims for serious personal injury and wrongful death resulting from elder abuse and neglect. Our California nursing home abuse lawyers represent the legal interests of the elderly and/or their families where serious personal injury or wrongful death has resulted from acts of neglect, abuse, mistreatment, or from a lack of care rendered by staff at a Skilled Nursing Facility (SNF), Residential Care Facility for the Elderly (RCFE), or other care facility that serves the needs of elderly or dependent adults.
Because our California elder abuse attorneys have developed a reputation within the state for handling these complex cases with unparalleled success, the lawyers at our firm often receive calls from individuals wondering: (1) how to determine where to place their elderly parent, (2) how to find out if a facility has even been cited for providing substandard care in the past, (3) how to determine if their loved one is currently being subjected to abuse, neglect, or other acts of mistreatment from staff at their current facility, and/or (4) how to report suspected acts of abuse or neglect of an elder. Of course, our San Diego nursing home abuse attorneys are always willing and able to help.
Many people, and even attorneys who do not commonly handle these types of claims, are unaware of the critical differences between the types of facilities that provide care in California, the laws that apply to these different types of facilities, and the basic rights that are afforded to residents of the different types of facilities that exist in California. In addition, many people are unaware that they can report suspected acts of abuse and neglect to the state agencies that license these facilities, and request that an investigation be conducted to determine if any such abuse or neglect has occurred. By law, an investigation must be initiated within 10 days of receipt of the complaint, and the identity of the reporting party is held to be strictly confidential. Generally, the official results of the complaint investigation are disclosed to the person who makes the complaint, oftentimes in writing.
As a means to help clarify some of the important distinctions that surround this complex area of the law, our legal professionals feel that it is important to first understand the significant differences between Skilled Nursing Facilities (SNF) and Residential Care Facilities for the Elderly (RCFE) that operate in the State of California, as well as the basic standards of care afforded to patients and residents in each of these facilities. It is also important to recognize when a loved one is being abused or neglected, and how you can report the suspected abuse or neglect and request that a formal investigation be conducted if such abuse or neglect is suspected.
Skilled Nursing Facilities (SNF)
The highest level of care, and consequently the most regulated, is provided by Skilled Nursing Facilities (SNFs). SNFs are licensed by the California Department of Public Health Services. A patient at a SNF typically requires constant medical attention and supervision which a family member or RCFE cannot provide. The medical condition may be chronic, such as late-stage Alzheimer’s Disease, or acute, such as recovery and rehabilitation from a major surgical procedure.
Pursuant to the California Health and Safety Code and the California Code of Regulations, SNFs must have sufficient nursing and staff to meet the needs of each resident in the facility at all times. Additionally, California requires SNFs to provide a minimum of 3.2 hours of individual nursing care per resident per day.
The majority of SNFs are certified for Medi-Cal. Medi-Cal pays for health care services which are “medically necessary.” Nursing home care at a SNF is covered if there is prior authorization from the physician or health care provider. However, some SNFs are private-pay only. Those facilities often have the authority to evict a patient who decides to change from private-pay to Medi-Cal, because Medi-Cal generally pays less than the private-pay rate.
At a SNF, each patient’s care must be supervised by a physician selected by the patient and/or his or her representative. Physicians generally must see and evaluate residents at least every 30 days. SNFs are required to carry out a physician’s orders and arrange all necessary diagnostic and therapeutic services recommended by the patient’s physician and other personal health care professionals (dentist, psychologist, etc.). If the necessary healthcare services are not available at the SNF or able to be brought into the facility, the SNF must assist the resident in arranging transportation to and from the service location.
In addition to the aforementioned requirements, each patient is entitled to have a comprehensive and individualized care plan which specifically identifies the care needs for that patient and how they will be met. It is critical for the family of the patient to meet with the facility’s administrator to provide the information necessary to prepare the most effective care plan for that individual. If a member of your family has not been given the treatment they rightly deserve, contact a San Diego skilled nursing home lawyer at our firm and share the details of your story with us.
Residential Care Facilities for the Elderly (RCFE)
In contrast to SNFs, RCFEs provide a lower, non-medical level of care to their residents. Unlike SNFs, RCFEs are not required to have nurses, certified nursing assistants, or physicians on staff. Instead, residents of RCFEs are provided with “custodial care” because residents are relatively healthy. This level of care and supervision is for people who are unable to care for themselves, but who do not need 24-hour nursing care. Residents are provided room, board, housekeeping, supervision, and personal care assistance with basic activities such as personal hygiene, dressing, eating and mobility. RCFEs can also provide residents with everything from transportation to/from doctors’ appointments, to on- and off-site social activities.
Residents of RCFEs generally have the ability to express more independence than patients at an SNF. RCFE residents develop their own care plan and services, and they are permitted to choose their own doctor, pharmacist and other health care providers. They make decisions for themselves regarding management and control of personal finances, and participation in religious, social, community and other activities. Residents are also generally permitted to leave the facility and return without unreasonable restriction.
RCFEs are regulated by the State through the Department of Social Services’ Community Care Licensing Division (“CCL”), and are regulated pursuant to California’s Health and Safety Code and the California Code of Regulations. (It is very important to note that facilities which provide only housing, housekeeping and meals, e.g., senior housing complexes, retirement villages or retirement hotels, are not required to be licensed as RCFEs as their residents are able to live completely independently.) An RCFE can accept residents with medical care needs, depending on 1) the type and severity of the medical condition, and 2) whether the facility can obtain permission from the licensing agency. Some medical conditions, however, are strictly prohibited in a RCFE, such as tube feeding and treatment of open bedsores.
Another significant difference between RCFEs and SNFs is payment for services. Most RCFE services are paid for privately, because Medi-Cal/Medicare does not pay for residential care in the State of California and there is very limited public funding through Supplemental Security Income (SSI) for this level of care. Long-term insurance only covers a very small percentage of people. Unfortunately for most residents, their own and/or their families’ personal assets must be depleted in order to receive this level of care. There is some good news, however, regarding financing an RCFE patient’s care:
- Facilities cannot require disclosure of the sources for fee payment (e.g., bank account statements, retirement fund accounts, etc.)
- Facilities cannot charge security or damage deposits
- Facilities must provide a 60-day written notice for rate increases
Things to Consider When Choosing a Facility
The decisions you make regarding the type of facility you choose for your loved one will affect the type and quality of care he or she receives. It is important to make a list of your loved one’s top priorities and needs in order to choose the best long-term care facility. Here are some important things that our San Diego nursing home abuse attorneys recommend you consider:
- The level of care needed, whether medical assistance is necessary or whether your loved one simply needs custodial care.
- Location of the facility, as convenience of location will likely dictate how often you and others will be able to visit and monitor your loved one’s general condition and treatment.
- Quality of care, which can partially be discovered through complaints to the state licensing facilities and citations issued for violations of state licensing laws.
- Make a personal visit to the facility, conduct your own investigation by talking to administration, staff and residents and viewing the patient/resident rooms and common areas in person.
For more information regarding SNFs and RCFEs, you may contact the following entities directly:
- For SNFs: California Department of Health Services, http://www.cdph.ca.gov
- For RCFEs: California Department of Social Services, www.dss.cahwnet.gov
- California Advocates for Nursing Home Reform, www.canhr.org
- San Diego Elder Law & Advocacy, www.seniorlaw-sd.org
- U.S. Department of Health and Human Services, www.hhs.gov
Recognizing Elder Abuse and Neglect
In 1991, California’s Legislature passed the revised Elder and Dependant Adult Civil Protection Act (the Act) with changes aimed at protecting elders (defined as persons 65 years of age and older) and dependant adults (ages of 18 and 65 years of age and confined to care facilities) who, because of a mental or physical deficiency, are under the care or guardianship of another. The Act as revised defines elder abuse as “physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering, or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.”
Physical abuse can include injury through intentional or negligent acts, including the infliction of pain, sexual assault or molestation, and the use of physical or chemical restraints not authorized by a doctor or for punishment. Physical abuse can also be a result of a caretaker’s failure to provide food, clothing, shelter, assistance with personal hygiene, or to protect a personal from health and safety hazards.
The signs of physical abuse can be bruises and hematomas, scratches, cuts, bed sores, marks caused by restraints, fractures and broken bones. It is important to note that physical abuse can result from not only affirmative acts, but from neglect as well, which can be signified by unexplained weight loss, malnutrition or dehydration.
Oftentimes it is the failure to care or to fulfill obligations for which the caregiver is responsible that leads to the physical abuse/neglect of elders. For example, a responsible nursing home facility will assess a patient’s fall risk upon admission, as falling is a leading cause of injury to elders. If a facility finds that a resident or patient is at a higher risk for falls, protocol and guidelines should be established to prevent such falls. If the facility fails to carry out the protocol and the resident/patient is injured from a fall, the facility is responsible for the injury. Our California nursing home abuse lawyers have handled numerous such fall cases in nursing homes throughout the state.
An elder who is being abused may not show physical signs of the abuse in areas of his/her body that are readily visible. Possible behavioral abuse indicators such as agitation, anger, anxiety, confusion, disorientation, withdrawal and depression may be cause for you to conduct a comprehensive exam of the resident or patient that would uncover physical abuse that was otherwise not noticeable. For example, if a resident or patient has suffered a closed-head injury, they may appear to be confused or disoriented but may not have a physical mark that is readily noticeable. If you notice any change in a loved one’s personality or behavior, you should immediately speak with the nurses and staff, as well as the resident/patient’s primary care physician.
Reporting Elder Abuse and Neglect and How Our San Diego Nursing Home Abuse Attorneys Can Help
Sometimes a concern you have about the care of an elder or dependant adult can be resolved by bringing it to the attention of the staff or administration of the nursing home facility. For example, if you notice that your family member is experiencing repeated falls, you should discuss the issue with the resident/patient’s primary care physician as well as the nursing home staff and administration in order to revise the care plan.
If you are concerned about the treatment of an elder or dependent adult and you feel that your concerns are not being adequately resolved through communications with the nursing home staff and/or administration, you may be able to resolve your concerns by contacting your local long term care ombudsman office. The ombudsman program helps residents of nursing homes resolve complaints with nursing homes as well as help you file a formal complaint with the California Department of Health Services. It is important to note that the ombudsman does not have any powers or direct authority over the nursing home. To locate your local ombudsman’s office log onto http://www.aging.ca.gov/programs/ombudsman_contacts.asp.
If your concerns are not resolved through the above means, our San Diego elder abuse lawyers recommend that you file a complaint with the California Department of Health Services. Any person or organization, not just residents or their family members, can file a complaint about a nursing home with the Licensing and Certification Division of the California Department of Health Services, which is the state agency that enforces nursing home laws and regulations through regular inspections and complaint investigations.
A complaint can be filed to report suspected abuse or neglect, violations of resident/patient rights, poor general care or attention to basic needs of a resident/patient, unsafe conditions, etc. A complaint can be made orally or in writing, though it is best for your own records to have some sort of written communication to refer to at a later time, if necessary. You should include in your report your name and contact information, the name of the resident/patient on whose behalf the complaint is being made, the name and location of the facility, the date(s) and time(s) of the incidents, as much detail as possible about your complaints, names of witnesses such as health care providers or other medical personnel who can provide information, the names of staff, if relevant, and any records that should be examined.
Under California law, the CDPH must begin an onsite investigation of your complaint with ten working days of receipt, or within 24 hours if the complaint involves a threat of imminent danger of death or serious bodily harm. As a complainant, you have several rights, including notification of the name of the assigned investigator within two working days of your complaint, the right to remain anonymous (but note that if you choose to remain anonymous it may be difficult to substantiate a complaint), and the right to a written response of CDPH findings within 10 days of the completion of its investigation.
If you are dissatisfied with the CDPH’s findings, you have the right to an informal conference, and if you are dissatisfied with the results of the informal conference you may appeal to the Deputy Director of the CDPH. You can find your complaint and appeal rights in the California Health & Safety Code, §§1419 and 1420 online at www.leginfo.ca.gov/calaw.html.
There are also several advocacy groups for elders and dependant adults who are able to guide you through the process of reporting abuse and neglect. One of the largest non-profit organizations devoted to the care and dignity of elders and dependant adults in our state is the California Advocates for Nursing Home Reform. Their website, www.canhr.org, contains many helpful recommendations, documents, resources and contact information for dealing with issues involving elder abuse and neglect.
Berman & Riedel, LLP, has one of the leading legal practices in California in handling claims for personal injuries and/or wrongful death against nursing homes, residential care facilities, and other assisted care facilities for the elderly. As a major part of the firm’s focus, our San Diego nursing home abuse attorneys have achieved some of the most substantial and publicized results against nursing homes and other care facilities since the Legislature’s 1991 revision of the Act. If you have questions or concerns about the treatment of a family member or loved one in a nursing home or other type of care facility for the elderly, please do not hesitate to contact an attorney at Berman & Riedel, LLP, by calling us at (858) 350-8855. Initial consultations are free of charge.