Caregiving

NURSING HOME RESIDENTS’ BILL OF RIGHTS

Published on: December 14, 2015 | by Ettinger Law Firm

THE BASICS – FEDERAL LAW

In 1965 federal law enabled the federal government to license nursing homes, under two categories; skilled nursing homes and intermediate care facilities that required less medical care and more personal care. In 1980 Congress enacted the Civil Rights of Institutionalized Persons Act which covered any state facility or institution that provides nursing, intermediate or long term care that is residential in nature or which has custody over the residents. Soon after Congress investigated larger issues involving the quality of life and services provided, or the lack thereof, provided in short, intermediate and long term care facilities. Part of that investigation included a request for a comprehensive study on the matter. By 1986 the Institute of Medicine published an exhaustive investigation of nursing homes in the United States. By 1987, Congress enacted the Nursing Home Reform Act. The animating factor of the Act was to insure that all nursing home residents receive care to help them achieve their best level of mental, emotional and physical care.

PROTECTIONS IN PLACE

CAMERAS IN THE NURSING HOME

Published on: December 11, 2015 | by Ettinger Law Firm

MANY ISSUES TO ADDRESS – PRIVACY AND LEGAL CONSIDERATIONS

The issue of video cameras in nursing homes has exploded over the last several years. With the large scale saturation of such user friendly technologies as Skype, Facetime and similar video technologies it should not come as a surprise that these issues are cropping up in nursing homes. Video cameras can be a major liability for nursing homes, including even criminal liability. It seems almost weekly that someone is arrested or charged due to evidence gleaned from video cameras located in nursing home residents’ rooms or other areas. While management may decide to utilize video monitoring equipment in public areas, there are many problems with residents using the same or similar video technology even in their own rooms.

Certainly there are common areas that are not public in nature that are a definite problem area for video imaging. The distinction lies in the public versus private designation. You do not have an expectation of privacy in public. There is an expectation of privacy in a residential unit. With a video camera a resident may be able to, unwittingly, record another resident without his or her permission, in a private area of the nursing home. Such a broadcast, depending on the audience, could be grounds for an invasion of privacy lawsuit. In addition, it could be a violation of the Health Insurance Portability and Accountability Act, usually known as HIPAA, the federal law that requires the confidentiality of medical records. In addition, if there is an audio recording function, recording a third party’s conversations may also violate state criminal wiretapping laws. New York is in the majority of states that require the consent of at least one of the interlocutors for any interception to be deemed legal.

PROTECTING SENIORS – UNDERSTANDING ELDER ABUSE

Published on: November 19, 2015 | by Ettinger Law Firm

NEW YORK LAW ON ELDER ABUSE

New York, much like every other state in the country, has a system in place to deal with elder abuse. It is both preventative and remedial in nature. Many people are more familiar with analogous child abuse protection laws. Unlike child abuse protection laws, New York does not have a mandatory reporting law and does not maintain a central registry on data on elder abuse. In fact, New York is one of only four states that does not mandate reporting of elder abuse. Unique amongst the states, New York has no law at all dealing with reporting. It should be noted, however, that as of writing of the present, Assembly Bill A3743 for the 2015-2016 legislative session is pending which would create a mandatory reporting law and a central registry.

PREVALENCE OF ELDER ABUSE

FILIAL SUPPORT LAWS

Published on: November 16, 2015 | by Ettinger Law Firm

LAWS THROUGHOUT THE STATES

More than half the states have filial support laws on their books. Most states that still have filial support laws as part of its statutory code rarely enforce them. The last time that Georgia successfully enforced its filial support law was 1936. Filial support laws are now coming back into focus, as judged by the relatively recent case of John Pittas in Pennsylvania. Pennsylvania more than most states has a more regular history of enforcement of its filial support statute, as judged from the several cases from 1994 and 2003. Louisiana recently enacted a filial responsibility act on June 29, 2015. North Dakota enforced its filial support law in 2013 when Four Season’s Healthcare Center sought payment from Elden Linderkamp, although the outcome of that case placed much weight on an allegedly fraudulent transfer of the parents land. These cases are the outliers, however.

ENFORCEMENT IN NEW YORK

WHAT IS LOST AFTER DIAGNOSIS OF DEMENTIA

Published on: November 7, 2015 | by Ettinger Law Firm

LEGAL RIGHTS

The highly charged trial of former Iowa legislature Henry V. Rayhons is now over. Five months ago, jurors voted to acquit the Defendant of third degree sexual assault. One of the voting jurors was a local reporter who wrote a revealing and no doubt personally difficult article. The article and ultimate outcome of the case should give pause to anyone who thinks that our system of justice is broken. By all accounts, the jurors all made their decision based on the evidence and took their job seriously and with the utmost integrity. The larger question that the case spawns, which can now be discussed given that some time has elapsed, is the issue of what rights do dementia patients retain? More particularly, can a dementia patient consent to intimate contact with loved ones? For example, can a husband of over 50 years, in the privacy of his wife’s room embrace her in an intimate and loving fashion? What if the grandchild gives the same loving embrace? Can the spouse sleep in the same bed without concern for legal liability? Leaving the issue of intercourse aside, sexual expression is perhaps one of the most profound and important rights.

MEDICAL AND ETHICAL PERSPECTIVE

LONG TERM COMMUNITY CARE REPORT CARD

Published on: November 4, 2015 | by Ettinger Law Firm

2015 REPORT ON LONG TERM COMMUNITY CARE FACILITY SAFETY AND INTEGRITY

On April 21, 2015, the Long Term Care Community Coalition issued a 30 page comprehensive report to document and report on the state of the long term care community. It was a report card of sorts, where the report notes “significant problems in resident care, quality of life and dignity are pervasive across the country.” Indeed, the report gives a failing grade for enforcement of the robust laws that provide promises of dignity and superior care. More specifically, the report notes that long term care facilities have “inadequate care staff” and provide subpar care, lacking in dignity “because there is nothing stopping them from doing otherwise.” There are too often little or no consequences when the facility fail to live up to the standards that they are contractually bound to, even when these shortcomings result in “significant suffering.”

The Coalition wrote an additional report focused on New York for various reasons. New York’s findings can be found here. The New York report is even more detailed, at least as judged from the fact that it is 18 pages longer than the national report.

SENIOR HOUSING PITFALLS

Published on: October 26, 2015 | by Ettinger Law Firm

CONTINUING CARE RETIREMENT COMMUNITIES

There are currently 1,900 continuing care retirement communities throughout the country, with approximately one half of a million residents. As you may already know, continuing care retirement communities are communities that offer seniors or older adults – depending on the community – independent living options with various medical and social care features. There is a recent trend to offer senior housing options in association with universities, which usually give the residents cutting edge medical care. The residents also benefit from being allowed to attend college lectures and have access to the universities exercise and recreational activities.

MAJOR FINANCIAL AND LIFE DECISION

Options for Long-Term Care

Published on: September 29, 2015 | by Ettinger Law Firm

In many ways, growing older is not easy. Neither is choosing the right long-term care solution. The range of options vary from complete in home care to skilled nursing facilities. The resources you have to pay for your care, will in part guide the choices you have for long-term care, including individual care, boarding homes, assisted living, nursing homes, among others. The following are some common options for long-term care needs.

Long-Term Care Facilities and Communities

Personal In-Home Care. In-home care can range from full time, live-in nursing professionals to periodic care provided by private services and not-for-profit organizations. Personal in-home care is highly desirable for many, but equally as expensive and often cost prohibitive. Because in-home care can be an effective solution for the health of an individual, some states have implemented options for staying home while receiving Medicaid benefits.

The Dementia Village – Elder Care in the 21st Century

Published on: March 3, 2014 | by Ettinger Law Firm

Last month we discussed the controversial decision by some adult children to send their aging parents out of the country for elder care. Specifically, a European trend was identified where children send parents with advanced cognitive ailments–like dementia and Alzheimer’s–to live in Asian countries while care is better and more affordable.

In theory, all moves that offer consistently quality care at a better price would be encouraged. But, the obvious downside is the lack of frequent visits between the senior and loved ones. For many, this distance is an obvious deal-breaker.

An Entire Town for Dementia

Senior Health Issue: Avoiding the Development of Bedsores

Published on: February 19, 2014 | by Ettinger Law Firm

Bedsores, also known as pressure ulcers, develop for many reasons and are a sign of nursing home abuse. A bedsore forms in an area of the body where there is too little fat between the skin and the bone to cushion against forces of pressure. The common causes of bedsores include sustaining shearing or friction injury to the skin, too much exposure to moisture, incontinence, not being repositioned frequently enough or the overgrowth of a pathogen or infection in a wound site. Diabetic residents also have a high likelihood of developing diabetic ulcers, which are pressure ulcers that occur on the lower extremities. Bedsores are largely avoidable when the appropriate preventive measures are taken. There are many things that can be done by nursing home residents and care providers alike to avoid the risk of developing a pressure ulcer.

Repositioning and Bracing Immobilized Residents

Immobilized residents, and residents who have limited mobility often rely on nursing staff to reposition their bodies multiple times a day. These residents are at a higher risk of developing bedsores because they have a higher likelihood of sustaining pressure to a localized area of the body for extended periods of time. Bedsores can develop within 12 hours if a person is not repositioned regularly. Nursing staff should be committed to a schedule for each immobilized resident that requires repositioning every 2-3 hours, and a visual inspection of the resident for signs of developing bedsores every 6-8 hours.