What is wandering?

Wandering is an aimless action that elderly people with dementia can sometimes engage in. Someone who is wandering is not specifically looking for an exit, but rather to move around. If they do exit a skilled nursing or assisted living facility, it is because they chanced upon an exit and walked out, or were aided by someone misinformed but with good intentions. 

Wandering is common in nursing homes: “Thirty six percent of community dwellers and sixty five percent of nursing home residents wander” (Smith, M., Schultz, S., Great Escapes: The wandering dilemma. The University of Iowa Geriatric Education, Iowa city, IA, www.mediciantuiowa.edu/igec/). Wandering may eventually lead to elopement, so the wanderer should be treated as a risk for elopement unless there is evidence that this is not a risk. 

What is Elder Abuse Awareness Day?

In 2006, the annual date of June 15 was designated as “World Elder Abuse Awareness Day” by the International Network for Prevention of Elder Abuse (INPEA) and the World Health Organization (WHO) of the United Nations.  The Day serves as a call-to-action for families, advocates, lawyers, and other organizations to promote a better understanding of elder abuse and neglect by increasing the awareness of the cultural, social, economic and demographic processes affecting elder abuse and neglect.

Studies have illustrated that about one in ten individuals aged 60 and older in the United States have experienced some form elder abuse, and nearly 5 million elderly individuals experience abuse each year.  However, despite its prevalence, elder abuse is a “silent” problem. Some data suggests that only 1 in 24 cases of elder abuse is reported.

If your loved one resides in a nursing home or assisted living facility, it is important to be on the lookout for signs of abuse and neglect.  Sadly, instances of abuse and neglect are not uncommon, and many elderly residents, especially those who suffer from cognitive issues such as dementia, are often unable to protect or speak up for themselves.  Unusual depression, confusion, isolation, and withdrawal, as well as unexplained bruises and injuries, and poorly-kept hygiene, are all major signs that an elderly resident may be the victim of neglect.

If you believe your loved one has actually experienced such abuse or neglect, it is also important to speak with a knowledgeable elder abuse attorney as soon as possible.  Some facilities have gone to great lengths to attempt to conceal any and all evidence of abuse, therefore it is in your best interests to contact an attorney to help you navigate your legal options sooner rather than later.

Here are five significant reasons why you may consider hiring a skilled elder abuse attorney to help you with a potential case:

What is Gabapentin?

Gabapentin is used to treat chronic neuropathic pain, but it may cause dizziness, drowsiness, and confusion in some older adults.  Making the decision on whether the benefit of gabapentin outweighs the side effects, which could lead to increased falls, may seem daunting.  Gabapentin is one of the most common drugs used for neuropathic pain and psychiatric disorders, including bipolar disorder.  Gabapentin is used in 82.6% of people who need anticonvulsants.  Dosing for gabapentin has a wide variety.  The average dose is 975 mg/day, ranging from 100 to 4800 mg/day.  Older adults should be started on a low dose of gabapentin, and then titrated to the optimum mg/day per each individual resident.

The Study

Abuse and neglect in long-term care facilities for the elderly is usually difficult to notice.  Studies from the National Institute on Aging (NIA) indicate that as many as 1 in 10 elders experience some form of abuse each year, and figures from the World Health Organization (WHO) show that on average just 1 out of 24 cases of abuse are reported each year.

Some elders can also be at a greater risk of elder abuse based on a number of factors.  These include mental capacity, age, gender, and whether the elder resides in a community setting.  Multiple studies have corroborated that older adults with diminished psychosocial capacities, such as a diagnosis of a cognitive condition such as dementia or Alzheimer’s disease, increases the risk that the elder will be a victim of abuse, as these elders are likely unable to report the abuse or protect themselves.  The WHO and the Department of Health and Human Services additionally report that elders that are isolated, as well as elderly women, are also at a greater risk of abuse.

Although not all injuries that occur in nursing homes and assisted living facilities amount to abuse or neglect, it is important to be on the lookout for red flags and warning signs to abuse to better protect your loved ones during their residency.

On February 28, 2022, the White House announced new reform measures to better the quality of care and the safety of skilled nursing facility residents, as well as to “crack down on bad actors” operating nursing homes.   In his State of the Union address, President Biden called on the Centers for Medicare & Medicaid Services (CMS) to set and maintain higher standards for “sufficient staffing” of nursing homes.  CMS is now conducting research to determine the minimum level and type of staffing requirements needed and plans to propose rule changes to existing regulations within the year.  The effect of these policy changes is that skilled nursing facilities may face having federal funding pulled should they refuse to comply with these minimum safety standards.

California long-term care facilities are subject to a number of regulations governing the type, number, and training of staff at facilities caring for elderly adults.  For example, under federal law, a skilled nursing facility “must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care.”  (42 C.F.R. § 483.30.)  Similarly, under California law, a skilled nursing facility “shall employ an adequate number of qualified personnel to carry out all of the functions of the facility” (Health & Safety Code § 1599.1(a).)

It is well established that understaffing in nursing homes and assisted living facilities directly lead to substandard care.  Understaffing contributes to and can cause avoidable illness, injury, and death, and is positively correlated with elder abuse and neglect.  However, there is often a conscious decision by managers, directors, and administrators to understaff their facilities, with explicit knowledge that understaffing will negatively impact the overall quality of care provided to residents.  (See, e.g., California Watch, Nursing Homes Received Millions while Cutting Staff, Wages (July 29, 2011).)

As Governor Gavin Newsom announced on May 4, 2020, California began to ease some of the restrictions in place starting Friday, May 8, 2020, introducing the state to the beginning of Phase 2 of California’s four-stage reopening plan. Reopening without the proper protective bulwarks can have dire ramifications. One crucial pillar of protection is the ability to file a law suit against industries who acted irresponsibly during the pandemic. Unfortunately, healthcare and insurance parties are lobbying against this, asking the Governor for blanket civil and criminal immunity for all healthcare providers, including nursing homes. On April 9, 2020, these groups asked to be pardoned from civil or even criminal liability for “any injury, death, or loss alleged to have resulted from any act, omission, or decision made related to providing or arranging services, including but not limited to acts, omission, or decisions undertaken because of lack of resources, absent proof by no less than clear and convincing evidence of willful misconduct as measured by a standard of care that incorporates all of the circumstances of the emergency.”

The Law Offices of Ben Yeroushalmi vehemently oppose this proposed executive order. Nursing homes with existing histories of understaffing and substandard care may use the pandemic and the blanket immunity as a free pass to continue operating under unsafe conditions, risking both their staff and elderly residents. We acknowledge and extend our gratitude to our frontline workers, doctors, nurses, nursing assistants, and those working behind the scenes to fight the spread of the coronavirus. And we stress that this is directed to the for-profit organizations, corporations, and the leaders who run these large chain businesses.

Blanket immunity creates leeway for large nursing home chains to get away with neglect and abuse toward their residents, elders who are often completely dependent on the their care, in a time when they are the most vulnerable. Nursing homes have been hard hit by the virus. Those which were already understaffed, undertrained, and unprepared for infections, face the exacerbated effects of  the virus, as low-paid and undertrained staff struggle to control the outbreaks. Yet it is not to the fault of these rank-and-file workers these facilities are not adequately staffed or prepared for COVID-19. Those who made the decisions to understaff their facilities unfortunately often did so before the pandemic, making them chillingly unprepared during the pandemic. At this time, these chains must equip their facilities with more staff and infection control training. Our elderly should still be cared for humanely, and the employees should be allowed to work in safe conditions. Removing the option of litigation means removing the consequential incentive to be held accountable for neglect and abuse that happens during the pandemic. It means depriving victims their civil right to have a judge and a jury of peers hear their case, to regain a degree of redress.

Life Care Center of Kirkland in Washington, the first long-term care facility in the United States with a wide-scale coronavirus outbreak, was recently charged with a $600,000 fine for deficiencies that enabled the virus’ spread. Additionally, due to the slew of deficiencies, they are at risk of losing their Medicare and Medicaid funding. Life Care Center—and its lack of infection control—is not the only facility of its kind. Facilities across the United States are at high risk of exposing one of the most vulnerable populations, the elderly and those who need 24/7 medical attention, to an onslaught of infections from COVID-19. At this critical juncture, where the actions of staff and infection procedures mean life or death for many, facilities and staff must respond swiftly with a stringent infection control plan.

Even with the best efforts in place, most long term care facilities are ill-prepared to admit and care for COVID-19 positive patients. Because nursing home and assisted living facility residents, due to their age, compromised immune systems and underlying health conditions, are already at risk of respiratory diseases such as influenza and pneumonia, they are particularly at risk of COVID-19 infection and possible death. Since facilities should already have infection prevention plans and strategies in place for existing infectious diseases, and because these strategies overlap with those recommended for COVID-19, these facilities should theoretically have been prepared to respond accordingly.

In addition to existing infection control plans, the CDC provided guidelines to draft and implement a COVID-19 Preparedness Checklist for skilled nursing homes and other long-term care facilities.  Some recommended strategies are to monitor and restrict visitors, test and identify active cases, isolate any active cases, and handle, store, process, and treat all patients and their belongings with the appropriate protective gear. Yet, regardless of existing plans, if not properly implemented, the likelihood of community spread of the virus remains too high to risk. Existing understaffing combined with the lack of preparation means staff, who are already spread thin, lack the time and resources for proper infection control, often leading to dire consequences. In fact, of the 320 fatalities in Los Angeles, 29% of them were found to be residents of nursing homes. And according to the LA Times, 89% of the long-term facilities with COVID—19 had already been cited for infection control violations in the past.

The novel coronavirus, COVID-19, has left unprecedented marks on society, triggering stay-at-home orders, shelter-in-place orders, ceasing all in-office activities for non-essential businesses, implementing social distancing measures, to mention a few. The airborne respiratory disease is highly contagious and unfortunately, fatal to a percentage of its victims. And as novel as it is, from the limited research we have thus far, one thing is clear: The most vulnerable, with the highest risk of fatalities, are those 65 years and older, those with underlying health conditions, and those residing in long term care facilities. The unfortunate truth for those who live in skilled nursing facilities is that often times, they check off on all of these traits. Skilled nursing facilities are for seniors or dependent adults who have more complex medical conditions and need all-around, 24/7 skilled nursing care.

Despite clear knowledge that the elderly, residents in skilled nursing facilities, those with compromised immune systems and underlying medical conditions are disproportionately endangered by COVID-19, on March 30, 2020, the California Department of Public Health (CDPH) released an absurd All Facilities Letter (AFL)  mandating the admission of COVID-19 positive patients into skilled nursing facilities.

This AFL follows a series of AFLs warning facilities of what is to come, of the potential of an influx of COVID-19 cases, and of the necessary procedures and precautions facilities should implement to protect its residents. One of these AFLs, dated March 20, 2020 states all skilled nursing facilities in California must take precautionary measures to protect their elderly residents from COVID-19 by preventing the initial introduction of the virus in their facility. What is counterintuitive, contradictory, and outrageous of the mandated admission of confirmed COVID-19 patients, then, is this: they claim to want to protect those most at risk of COVID-19 then proceed by implementing the opposite. This CDPH directive directly and carelessly puts the most vulnerable populations in the frontlines of infection and potential death. The existing examples of nursing home COVID-19 outbreaks demonstrate the grim truth: most nursing homes are egregiously unprepared for infection control, let alone readily equipped to handle a wave of COVID-19 positive admissions.

In January 2019, Amtrak sneakily added a forced arbitration clause into their ticket purchasing process. When a customer now wants to ride the Amtrak train, he or she is forced to agree to forced arbitration. Forced arbitration in this context means if the customer has any legal claims against the company, whether in the past, present, or future, the customer can now only bring his grievances to an individual arbitrator rather than to a trial by jury in a court of law or through class action.

The dangers of such a clause are profound and many. First, the clause was so subtly added that it only came to the attention of consumer advocates and political leaders in November 2019. Appalled, these advocates are calling on Congress to take action on behalf of train riders who would no longer have the same protections as those who brought their cases to the court in the past did. Such an immoral clause means the typical protections provided by a court of law and a jury would no longer be available to potential victims of violations from Amtrak. Consumers can only complete the purchase of their ticket if they sign and agree to enter forced arbitration in any case of injury, loss, or violation.

In 2015, when an Amtrak train derailed in Philadelphia, killing 8 and injuring over 200, the victims and their relatives were able to pursue redress through a class action lawsuit. The settlement reached by the parties was $245 million dollars. Although no amount of money could ever compensate for the loss or injury of human life, the protections the plaintiffs had under a court of law were a jury, a trial, and a judge—none of which are available under forced arbitration. They were able to have their case seen by their own peers, not an individual arbitrator hired by the company they were claiming damages against. In forced arbitration, it is the individual arbitrator who ultimately decides the compensation of the parties. This course of action is significantly cheaper and favorable for Amtrak and will not result in the same vindication provided by a trial and court of law. In fact, often times, the arbitrators subtly write in language that are favorable to the companies hiring them.

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