- What is Elder Abuse and Neglect?
- What is the Difference Between a Nursing Home and an Assisted Living Facility?
- How Do I Choose a Nursing Home or Assisted Living Facility?
- Should I Sign an Arbitration Agreement?
- How Do I Access Nursing Home Medical Records?
- What are Patient Transfer and Discharge Rights?
- What are the Causes of Elder Abuse and Neglect in Nursing Homes and Assisted Living Facilities?
- What are the Warning Signs of Elder Abuse?
- What Can I Do if I Suspect Elder Abuse?
- How Do I Choose an Attorney to Represent me in an Elder Abuse or Neglect Lawsuit?
The World Health Organization defines elder abuse and neglect as "an act or lack of appropriate action occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person." This can occur as physical, emotional, or sexual abuse, neglect, abandonment, or financial exploitation. In California, the Elder Abuse and Dependent Adult Civil Protection Act, as codified in Welfare and Institutions Code sections 15600 et seq., describes elder abuse and neglect as "physical abuse, neglect, financial abuse, abandonment, isolation, abduction, and other treatment resulting in physical harm, pain, or mental suffering." According to the U.S. Department of Justice, millions of elderly individuals aged 65 or older are subjected to abuse and neglect per year.
The main difference between a nursing home and an assisted living facility is the type of services provided by each facility. Nursing homes provide 24-hour skilled nursing care. Nursing home patients typically have more complex health problems that require the services of medical professionals, such as nurses or therapists.
Assisted living facilities, on the other hand, generally only provide custodial care. Residents of assisted living facilities normally do not have complex medical conditions but require regular supervision, such as persons with cognitive issues like dementia, or those who have mobility problems and need help with activities of daily living. The elder abuse attorneys at the Law Offices of Ben Yeroushalmi in Los Angeles exclusively represent the victims of abuse and neglect in both nursing homes and assisted living facilities.
Although selecting a nursing home or assisted living facility is a difficult and stressful decision, there are some guidelines which can help.
- Financial Assistance through Medicare and Medi-Cal (nursing homes only): Nursing home care is very costly, and if you need financial assistance, Medicare or Medi-Cal may be able to help. You can choose a nursing home that is certified by these programs if a patient qualifies. Medicare can cover up to 100 days of a nursing home stay following a hospital admission of at least 3 days. Medi-Cal may also be able to help if a patient is eligible under its financial requirements. Visit the Medicare and Medi-Cal websites for more information.
- Location: It may be helpful to choose a nursing home or assisted living facility that is in close proximity and convenient to the person or persons who can most often visit. Studies have shown that nursing home patients and assisted living facility residents who have regular visitors are happier, healthier, and can recover faster. Friends and family members who are able to regularly visit are also able to monitor their loved one's condition, participate in the planning of their care, and also quickly respond in the case of an emergency.
- Special Accommodations: It is important to select a nursing home or assisted living facility that is able to care for and accommodate a patient's or resident's particular needs. For example, an elder with dementia may need extra monitoring that may only be provided by a facility with a dementia department. Some elderly individuals may also need respiratory care, such as a ventilator, which may only be available at certain facilities.
- Department of Public Health Inspections: The California Department of Public Health (CDPH) performs regular inspections and investigates when a complaint is lodged against a nursing facility. You want to choose a facility with few to no complaints, deficiencies, or citations.
- Nursing Home Ratings (nursing homes only): CalQualityCare and Medicare's Nursing Home Compare may be helpful in narrowing choices in nursing home facilities. These resources rate the quality of health care of nursing homes in California, including patient experience and safety.
- References and Internet Reviews: Friends and family members may provide useful information about nursing homes and assisted living facilities based on their personal experiences. You may also want to contact local religious, senior, and support groups, ombudsman programs, hospital discharge planners, and doctors. Many nursing homes and assisted living facilities are also reviewed on internet review sites, such as Yelp.
- Personal Visits: Lastly, you may want to personally visit a nursing home or assisted living facility yourself. Make sure you walk through the entire facility and not just the lobby. Be aware of how patients and residents are being treated and how they appear. The most important issue that you should watch for is the number and quality of staff in the facility. Many nursing homes and assisted living facilities are understaffed, both in terms of number and training, and they cannot effectively care for the elderly individuals that they admit. Visit at different times of day, including during meal times and night shifts, to get a better idea of whether there is enough trained staff to provide proper care. Avoid facilities where it is apparent the staff is overwhelmed with the number of patients or residents.
Nursing homes and assisted living facilities may present an arbitration agreement to sign upon or soon after admission. Refrain from signing these agreements. Agreeing to arbitrate any potential claims against a facility is effectively agreeing to possibly abandon your constitutional right be heard in court in front of a judge and a jury of your peers. Arbitration agreements are drafted by the facility's lawyers with language that favors the facilities. Arbitration is more expensive, takes longer, and is more unfair than a court trial. It is important to know that it is illegal for a nursing home or care facility to require you to sign an arbitration agreement in order to be admitted to or continue to stay in a facility. (Title 22 California Code of Regulations §73518.) An experienced elder abuse attorney in Los Angeles may be able to fight the imposition of arbitration, however, even where an arbitration agreement has been signed.
Nursing home patients and their family members have the right to the patient's medical records, and nursing homes must produce these records within a specific time period. Upon request by a patient, a nursing home must provide copies of medical records within two business days. A patient's representative, such as a parent, guardian, conservator, power of attorney, or beneficiary, have the same rights to medical records as patients themselves. When possible, request these records in writing, so that there is documentational evidence of your request. Denying a patient or representative their medical records, or delaying the production of these records, is illegal. You may want to contact an experienced elder abuse attorney in Los Angeles for additional help.
The law provides safeguards against patient evictions from nursing homes. According to 42 CFR §483.15, a nursing home can only transfer or discharge a patient from a facility when:
- It is necessary for the patient's welfare and the resident's needs cannot be met;
- The health of the patient has improved where services are no longer needed;
- The health or safety of the facility staff or other patients would be endangered;
- The patient fails to pay; or
- The facility closes down.
Many nursing homes attempt to transfer or discharge patients that they see as "undesirable." This is known as "patient dumping." Nursing homes may also try to evict patients when they or their family have filed a complaint with the California Department of Public Health (CDPH). All of this is, however, illegal. Facilities are legally required to follow the procedures enumerated in federal and state regulations, despite whether a facility wants to keep or transfer/discharge any particular patient. In such event, you may wish to file a complaint or appeal with the CDPH which may result in the facility being cited and penalized. If you or your loved one has been harmed by an inappropriate transfer or discharge, then you may wish to contact an elder abuse lawyer for additional help.
Every nursing home and assisted living facility is different. The patients and residents living in these facilities also have their own particular and distinctive conditions. There are common issues, however, that are prevalent in many nursing homes and assisted living facilities throughout the country that contribute to elder abuse and neglect:
- Understaffing: Several recent studies illustrate that staffing has a direct relationship to the quality of care provided in facilities. However, nursing homes and assisted living facilities often fail to maintain adequate staffing throughout the day. Many elderly patients and residents typically require assistance in their activities of daily living, whether it be turning and repositioning themselves in bed, transferring from one location to another, taking medication, or using the bathroom. Despite this, many nursing homes and care facilities consciously understaff their facilities and pay egregiously low wages to save money.
- Undertraining: In addition to understaffing, nursing homes and care facilities often employ staff who are not trained to properly care for their patients and residents. Upon being hired, many employees are rushed into overwhelming work without any suitable experience or training. This directly leads to a lower quality of care for patients and residents.
- Violations of federal and state regulations: Nursing homes and assisted living facilities in the state are governed by federal and California regulations. These regulations govern the quality of care in these facilities, and also establish the standard of care that facilities should meet in caring for and treating their patients and residents. These laws include, for example, accommodating patient or resident needs, maintaining adequate staff, safeguarding against infections, providing individualized care plans for each patient or resident, and assisting patients or residents with their activities of daily living. Violations of such regulations is evidence that elder abuse or neglect has occurred.
While these warning signs are not substantive proof that elder abuse or neglect has occurred, they are matters to be wary of if your loved one is a patient or resident:
- Bruises or marks on the skin, abrasions, burns, or broken bones;
- Abrupt change in attentiveness or abnormal depression;
- Increased sedation or sleepiness;
- Pressure ulcers, bed sores, poor hygiene, or unusual weight loss; or
- Tense relationships with caregivers.
Be observant and remain alert. Elders who are subjected to abuse or neglect often suffer in silence. If you notice any of these warning signs, including changes in personality, behavior, or physical condition, you should question what is going on.
In the case of an emergency, contact Emergency Services via 911. Local law enforcement and paramedics will help you if an elder's health and safety is in imminent danger in an emergency.
In cases of non-emergency, talk with the elder's caregivers directly. California law requires doctors, nurses, and other caregivers to report any suspected elder abuse or neglect. They are known as "mandated reporters," and it is illegal for them to refuse to report suspected elder abuse or neglect. You may also want to contact Adult Protective Services, a Long-Term Care Ombudsman, or the California Department of Public Health for nursing homes and the California Department of Social Services for assisted living facilities.
If your loved one has suffered harm or death as a result of suspected elder abuse or neglect, you should contact an experienced Los Angeles elder abuse and neglect attorney for help.
It is extremely important to research the right lawyer who specializes in elder abuse and who will aggressively fight for you and your loved one's rights in the case that abuse or neglect has occurred. Elder abuse and neglect is a very complex area of law and requires intensive investigation by an experienced attorney. Be sure to also research the results an elder abuse lawyer has achieved for past clients. You should select a lawyer is exclusively dedicated to elder abuse and neglect to litigate your case.