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Governor Schwarzenegger has vetoed SB 303, a proposed law that would require doctors to inform residents about the dangers of psychotropic medications, and require nursing homes residents to give consent before such drugs can be given.

According to the California Advocates for Nursing Home Reform (CANHR), the use of psychoactive drugs has become an epidemic in California. According to one study, nearly 60% of all California nursing home patients are administered psychoactive narcotics, a huge increase from only a decade earlier.

Governor Schwarzenegger admitted that misuse of antipsychotic drugs is a serious problem in nursing homes when he vetoed the legislation, and even cited a study that found more than have of all residents on psychoactive drugs are in violation of federal guidelines.

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Most plaintiff attorneys who represent elderly injury victims have a nightmare story in dealing with the Medicare Secondary Payer Act. The Act requires any Medicare beneficiary who is injured by a third-party, and then collects money from that third-party, to reimburse Medicare for the money it paid to treat the injured party. Understandable, right? But for most of the injury victims (and their attorneys) the error-prone and painfully slow service provided by the Medicare contractor can cause even the most calm and unexcitable person to pull their hair out.

Mother Jones is out with an article that thoroughly explains this frustrating process (Medicare’s Repo Man). The article explains how, in 2006, the various Medicare collection agencies were consolidated into one massive agency, then, under a law that permitted granting no-bid contracts to Native American corporations, awarded the collection contract to the Chickasaw Nation Industries. In the effort to step up collection efforts, however, the confusion and inefficiencies have just gotten worse.

Part of the problem is that for many years, Medicare had no systematic way of learning when someone got a settlement or judgment, making its collection efforts hit or miss. For a while, the agency tried to lean on plaintiff lawyers, threatening to sue them if they turned over settlement or insurance money to their clients before paying any Medicare liens. In many cases, though, courts sided with the lawyers who argued that Medicare was exceeding its authority. The issue was headed to the Supreme Court, but in 2003, Congress passed the Medicare drug benefit and included a small provision that officially put the onus on lawyers to make sure Medicare got its money.

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The Fallbrook Hospital District Skilled Nursing Facility was fined $90,000 by the California Department of Health in a case involving the fall and subsequent death of a resident. The citation was the most severe of its kind arising from inadequate care leading to the death of the resident. Although the resident was known to have a high risk for falling, the Fallbrook nursing home failed to take adequate measures to prevent the fall. The resident fell, broke his leg, and died four days later as a result of complications from the surgery to repair his leg.

The Walton Law Firm successfully prosecutes cases involving injuries caused by falls in the custodial care setting. If you have questions about falls, please submit your confidential question online, or call Walton Law Firm for a free consultation. We can be reached toll free at (866) 607-1325 or locally at (760) 607-1325

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At the end of last week, a Medicare rate adjustment that cuts $16 billion in nursing home funding went into effect. That cut, combined with state cuts, is creating conditions that are likely to put nursing homes in a state of crisis. In fact, the president of the American Health Care Association is predicting the nursing facilities will close their doors.

Already numerous nursing homes have closed their doors because of money problems, and many others have reduced staffing, creating conditions for substandard care. The crisis could not come a worse time, as baby boomers steamroll toward retirement and the need for skilled nursing care. Just last year U.S. nursing homes housed 1.85 million people, about 100,000 more than the previous year.

In Griswold, Conn., the community’s only nursing home shut down earlier this year because of rising costs and an inability to pay for $4.9 million in needed renovations for the 90-bed facility.”A 92-year-old woman was screaming and crying as she was loaded into the ambulance, saying ‘This is my home,'” Griswold First Selectman Philip Anthony said. His 88-year-old mother was a resident of the same home at the time.

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California should take heed. Illinois has been housing mentally ill felons with the elderly in state nursing homes and the results have not been pretty. An elderly woman was raped by an ex-convict, a frail man had his throat slashed, and in one home a wheelchair-bound man died of massive head injuries that a doctor said it looked like he was hit with a baseball bat.

According to one report, mentally ill patients make up over 15% of Illinois’ nursing home patient population, and among them are approximately 3,000 ex-felons with histories of serious crimes. Nursing home owners downplay that numbers of violent attacks, arguing they are miniscule in context to the whole, but there is a growing concern. The states largest nursing home owner’s association has advocated an end to the practice, asking state officials to create separate facilities for those residents who may pose a danger to others.

While the population of U.S. residents is aging, those who can afford to do so are opting from home health or assisted living care over traditional nursing home or convalescent hospitals.

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A report being released today by the Government Accountability Office finds that the federal program designed to identify and scrutinize the country’s worse nursing homes is missing many of the poor performers. The Centers for Medical and Medicaid Services has identified about 136 nursing homes nationwide that are considered “special focus facilities” for their history of problems related to patient care, but many more questionable facilities are not making the list.

Herb Kohl, the chairman of the Senate Aging Committee wants more information about all of the poorest performing facilities on the government website Nursing Home Compare. The current report does not identify the homes.

“If far more than 136 nursing homes boast the bleakest conditions, then perhaps we should consider expanding” the program, said Kohl.

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In the 10 years since I took my first case against a nursing home for elder abuse, I have seen a growing number of homes going without liability insurance. While the uninsured problem used to be confined to the small mom-and-pop assisted living facilities with 6 to 12 beds, now I am seeing in large, institutional-type skilled nursing facilities. On Friday, the Oakland Tribune did an excellent article on this problem.

The article profiles the story of 39-year-old Grover Brown, a multiple sclerosis and Parkinson’s patient with paraplegia. Brown was a resident of High Street Care Center in East Oakland. High Street is owned by Trinity Health Systems, whose president, Randal Kleis, has operated about a dozen facilities all over California under several corporate names.

While in the care of High Street, Brown developed a pressure ulcer on his coccyx, which, due to neglect, worsened to the point that doctors were required to remove his tailbone to curtail the deep infection. Brown and his family hired an elder abuse attorney, who sued High Street for abuse and neglect under California’s elder abuse laws, which also protect “dependent adults” like Brown.

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Tri-City Hospital in Oceanside was fined $25,000 by the California Department of Public Health for “failure to ensure the health and safety of a patient” who fell out of bed and fractured her hip. The hospital has modified its policies as a result.

According to reports, a 91-year-old woman who was admitted to Tri-City on December 7, 2008 because of a stroke, and paralysis on her right side, fell out of bed two days later and fractured her hip. She was taken to surgery for repair of the hip, and died the following day in the ICU.

The state investigation revealed that upon admission to the hospital the woman was rated as a high risk for falls; a rating that would require a series of interventions such as bed alarms, padding on the floor around the bed, etc. The investigation revealed that “there was no evidence in the medical record to support that these interventions were in place at the time (the patient) fell.

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After 15 years of bouncing from nursing home to nursing home, and living with the indignities, the mother of a quadriplegic and brain injured daughter had had enough. On Sunday, September 13, Diana Harden wrote a note to a television news station exposing the problems she encountered trying to care for her daughter, then went to the nursing and shot her daughter to death, before turning the gun on herself.

In her letter to ABC news in the San Francisco Bay area, Harden spoke of the years of abuse and neglect her daughter endured in her nursing home. Yvette Harden, suffered a major brain injury and quadriplegia in a car accident 15 years earlier, and spent the last six years at the Oakland Springs Care Center. Oakland Springs is a nursing facility that had 54 complaints lodged against it in 2008 (which is an astonishing amount), and hundreds of deficiencies.

The letter attempts to explain, “the deaths of my daughter and myself.” In it, Harden says that that nurses called her daughter a “big fat pig,” and that they would “wash her like a car” in the shower. To punish the daughter, Harden claims, the water would be turned cold until she screamed. As a result, Harden wrote that her daughter has been “begging” her to end her life for over two years. The stress was too much.

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There is a growing movement to ban the common practice of requiring nursing home residents to waive their right to file a lawsuit in claims of negligence, abuse, or neglect in favor of arbitration. Last week, several consumer advocates testified before congress and criticized the practice of “forced arbitration.”

Public Citizen released a report alleging that the practice of forced arbitration, essentially requiring a consumer to sign an arbitration agreement as a condition of being provided the service, has become pervasive. The report, “Forced Arbitration: Unfair and Everywhere” found that many industries, including nursing homes, banks, contractors, cable companies and auto sales, will require consumes to waive their right to file a lawsuit before the services will be provided.

For years, attorneys and consumer advocates have questioned the impartiality of arbitration, which usually has a lawyer or retired judge, or a panel of them, sitting as the trier of fact. The Public Citizen report reveals that arbitrators for the National Arbitration Forum (NAF), the largest arbitration firm in the country (but one of many), ruled against consumers 94 percent of the time.

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