Elder/Dependent Adult Neglect/Abuse

• Why was the Elder/Dependent Adult Neglect/Abuse Act adopted?
• Who is protected under the Act?
• What is prohibited by the Act?
• What constitutes “neglect” of an elder or dependent adult?
• Who is legally responsible for committing acts of “neglect” under the Act?
• What are some of the more common forms and signs of “neglect”?
• What constitutes “physical abuse” of an elder or dependent adult?
• When can nursing homes administer anti-psychotic medication and/or physical restraints?
• What rights do nursing home patients have under the law?
• Steps you can take to ensure your loved one is not being neglected or abused in a care facility
• When should I call Berglund & Johnson?
• How can I obtain information about a particular care facility
  Recommended on-line sites that provide general information about care facilities and/or the care of elders or dependent adults

Why was the Elder/Dependent Adult Neglect/Abuse Act adopted?

It has long been recognized that elders and other dependent adults are particularly vulnerable to being neglected and abused by their care-givers. Many care facilities promise the families of elders and dependent adults that the staff will provide all the care and services needed by their loved one. Regrettably, in order to maximize business profits, many care facilities are understaffed and/or fail to provide a staff that is adequately qualified and/or trained to provide the care needed by elders and dependent adults entrusted to their care.

Because so many elders and dependent adults are systematically neglected and physically abused by their supposed care-givers, the California Legislature called on attorneys to take up the cause of these vulnerable groups by adopting the Elder/Dependent Adult Neglect/Abuse Act. The Act provides elders and dependent adults who are victims of “neglect” and “physical abuse” with added legal protection as well as enhanced legal remedies.

Who is protected under the Act?

The act protects all elders and dependent adults who reside in the State of California.

An “elder” is any person who is 65 years of age or older.

A “dependent adult” is any person, between the ages of 18 to 64 years, who has physical or mental limitations that restrict his/her ability to carry out normal activities or to protect his/her own rights.

What is prohibited by the Act?

The Elder/Dependent Adult Neglect/Abuse Act prohibits the neglect and/or physical abuse of an elder or dependent adult.

What constitutes “neglect” of an elder or dependent adult?

“Neglect” under the Act includes all of the following:

• Failing to assist in personal hygiene, or in the provision of food, clothing, or shelter;
• Failing to provide medical care for physical and mental health needs;
• Failing to protect the elder/dependent adult form health and safety hazards;
• Failing to prevent malnutrition or dehydration;
• Failing to exercise the degree of care that a reasonable person in a like position would exercise.

Who is legally responsible for committing acts of “neglect” under the Act?

Any person or entity that has care or custody of an elder or dependent adult can be held legally responsible for neglect. For example, all of the following entities and/or their employees can be held legally responsible for neglect

• Nursing homes
• Residential care facilities
• Assisted living centers
• Adult day care centers
• Companies providing transportation services to elders or dependent adults

What are some of the more common forms and signs of “neglect”?

Sometimes it is difficult to determine whether an elder or dependent adult is experiencing physical or mental decline due to unavoidable health problems or whether the decline is being caused by neglect.

Many times neglect occurs when care facilities are understaffed or the staff is simply not adequately qualified or supervised to provide the care needed by the residents entrusted to their care.

Some of the more common forms and signs of neglect include the following:

• Development of bedsores aka decubitus pressure ulcers (see http://en.wikipedia.org/wiki/Pressure_ulcer)
• Significant weight loss;
• Dehydration;
• Severe infection;
• Being kept in a bed or a wheelchair for long periods of time;
• Not being provided with needed care or rehabilitation therapy;
• Not having calls for assistance responded to in a timely manner;
• Use of catheters or diapers without efforts being made to retrain for bowel/bladder control;
• Over-medicating a resident so he/she is easier care for;
• Unreasonable use of any kind of restraint that keeps a resident in a bed or wheelchair so they won’t need as much care or supervision;
• Failing to keep a resident clean or well-groomed;
• Failing to properly supervise or secure residents to keep them from falling;
• Allowing residents with mental or physical disabilities to leave the facility without proper supervision;
• Not properly supervising residents while eating resulting in things like malnourishment, choking or getting pneumonia from aspirating food or liquid into their lungs;
• Failing to timely transport a resident to the emergency room;
• Failing to protect residents from safety hazards.

What constitutes “physical abuse” of an elder or dependent adult?

Physical abuse of an elder or dependent adult can be committed by any person, whether or not that person has care or custody of the elder or dependent adult. The most common forms of “physical abuse” include the following:

• Threatening with physical harm;
• Any kind of harmful touching without proper consent;
• Restraining a person in bed or a wheelchair for convenience;
• Administering anti-psychotic medication without proper consent;
• Using restraints to keep a person in bed or a wheelchair without proper consent;
• Deprivation of food or water for prolonged periods of time.

Unfortunately, many times elders and dependent adults are unable to effectively communicate that they are being physically abused. Consequently, family and friends must keep vigilant watch for tell-tale signs of abuse such as unexplained bruising, red marks, cuts or scrapes. Additionally, any time an elder or dependent adult becomes unexplainably fearful, withdrawn or demonstrates other behavior associated with emotional distress, family and friends should be concerned. Never be afraid to ask questions or demand explanation.

Many times physical abuse is committed when a resident is medicated for an improper purpose. Regrettably, because many care facilities are so understaffed, it is not uncommon for nurses to reduce their workload by requesting doctors to prescribe medication to control alleged anti-social behavior. Unfortunately, many times the behavior never occurred or the behavior is exaggerated. The plain truth is that the staff wants the resident sedated so the resident won’t require as much care or assistance. However, the law mandates that any mediation prescribed to control behavior is to be a last resort and mediation can never be given for purposes of staff convenience. Moreover, any time medication is used to control behavior, repeated attempts must be made to decrease the dosage to ensure the resident is not over-medicated.

It can be difficult to detect when an elder or dependent adult is being over-medicated but watch for the following signs:

• Unexplained or persistent sleepiness and drowsiness;
• A claim that medication is necessary to control behavior which either you, another family member or friend has never observed. Ask to be called the next time the behavior occurs so you can talk to your loved-one or go to the facility and personally evaluate the behavior.

When can a nursing home administer anti-psychotic medication and/or physical restraints?

It is not uncommon for nursing home patients to be over-medicated and/or unnecessarily restrained in a bed or wheelchair so they will not require as much staff assistance or supervision. In order to ensure that the rights of residents are not sacrificed for the convenience of staff, California law mandates that before any physical restraint (e.g lap buddy or Posey vest) or psychotherapeutic medication can be administered, the facility must confirm that a doctor has informed the patient or legal representative of all of the following:

• The reason for the proposed restraint/medication;
• The nature, frequency and duration of the proposed restraint/medication;
• What improvement or regression is expected with and without use of the proposed restraint/medication;
• The nature, degree, duration and risk of all known side-effects of the proposed restraint/medication;
• Any reasonable alternatives to the proposed restraint/medication and the reason a particular restraint/medication is being recommended.

Moreover, the patient or his/her representative must be informed that they have a right to accept or refuse the proposed restraint/medication and a right to revoke consent at any time.

The following is a list of some of the most commonly prescribed psychotherapeutic medications: Risperdal, Riseperdone, Haldol, Elavil, Effexor, Paxil, Remeron, Wellbutrin, Zoloft.

What rights do nursing home patients have under the law?

The law provides nursing home patients with certain rights. Additionally, the law imposes certain obligations on nursing homes which are owed to the residents entrusted to their care.

All nursing homes owe the following obligations to their residents:

• Nursing homes must employ an adequate number of qualified personnel to carry out the functions of the facility;
• Nursing homes must provide food of the quality and quantity to meet each resident’s needs;
• Nursing homes must take measures to prevent and/or reduce incontinence of their residents;
• Nursing homes must have an activity program to meet the individual needs and interests of each resident;
• Nursing homes must be kept clean, sanitary and in good repair.

All nursing home patients or their representatives have the following rights:

• To be free from abuse, mistreatment, and neglect;
• To be free from unnecessary physical restraints;
• To be free from being medicated for staff convenience;
• To show evidence of good personnel hygiene;
• To be given care to prevent the development or progression of pressure ulcers aka bedsores;
• To be informed of one’s total health status;
• To consent to or refuse any treatment or medication;
• To revoke consent at any time;
• To have their privacy respected;
• To receive medical, physical, psychological and social services;
• To participate in resident and family groups;
• To be treated with dignity and respect;
• To exercise self-determination;
• To communicate freely with family, friends and other residents;
• To participate in developing a care plan;
• To be informed about all significant changes in condition;
• To voice grievances without discrimination or reprisal;
• To receive information necessary to make a decision whether to accept or refuse treatment or medication.

Steps you can take to ensure your loved one is not neglected or abused in a care facility

• Although it may be embarrassing, look for pressure ulcers (red, yellow, purple, black areas or areas of broken skin) on hips, heels, toes, the back of the head and, most importantly, on the low back/buttocks area. Keep in mind that after a pressure ulcer progresses past a certain stage, the resident may not even complain of pain. A red flag should go up any time a resident who spends a lot of time in bed or a wheelchair complains of low back or buttocks pain. It may mean that a pressure ulcer has started to develop on their sacrum or buttocks area. For more information on bed sores aka pressure ulcers go to http://en.wikipedia.org/wiki/Pressure_ulcer.
• If you get an unsatisfactory response to any questions you ask, file a written grievance report (keep a copy) and demand to talk directly to the Administrator of the facility.
• Visit your loved ones on different days and times so the staff doesn’t provide care only when they think you are going to be there.
• If the facility doesn’t invite you to participate in care plan meetings, ask to be invited. If you can’t physically be at the meeting, attend via phone.
• If you have concerns that aren’t being sufficiently addressed by the staff or Administrator, demand to talk to the attending physician. If the physician does not respond, demand to talk to the Medical Director of the facility.

When should I call Berglund & Johnson?

Elders and dependent adults become victims of abuse and neglect when they are physically abused or suffer harm when their supposed care-givers fail to provide them with needed services or fail to protect them from safety hazards. Victims of elder or dependent adult neglect and physical abuse, as well as their families, can rely on Berglund & Johnson to help them in their time of need.

Call our offices any time you suspect a loved one has been a victim of neglect or physical abuse. We can help you determine if unlawful conduct has occurred and whether anyone may be held legally responsible for any harm suffered. We will also be happy to direct you to governmental agencies and victim consumer groups who can provide important information about particular facilities and, if appropriate, involve government officials who have the power to investigate suspected instances of neglect and physical abuse.

How can I obtain information about a particular care facility?

The California Department of Health Services and the California Department of Social Services survey and investigate care facilities that provide services to elders and dependent adults.

• California Department of Health Services (CDHS)
  The California Department of Health Services regularly surveys every nursing home and every acute care center (e.g. hospitals, transitional care centers). Additionally, the CDHS investigates all complaints involving threats of imminent death or serious injury within 24 hours. All other complaints are investigated within ten (10) working days.
  A summary of the results of all CDHS surveys and investigations of nursing homes is available at http://www.calnhs.org.The actual results of the CDHS investigations are available for public viewing at the CDHS office within the county where the facility is located.
  To determine the district office nearest you, call (916) 445-4171. The contact number for licensing and certification is (916) 552-8700.
• California Department of Social Services (CDSS)
  The California Department of Social Services (CDSS) investigates assisted living centers, residential care facilities, adult day care centers and other community based homes or centers. Results of CDSS investigations and surveys are available at the CDSS office within the specific county where the facility is located.
  Recommended on-line sites that provide general information about care facilities and/or the care of elders or dependent adults.
• The California Healthcare Foundation (http://www.calnhs.org/).
  CHF provides many on-line resources helpful in determining the type of facility that can provide the care and services needed by an elder or dependent adult. The site also contains a summary of the results of all annual state investigations conducted of every nursing home located in the State of California.
• The Bureau of Medi-Cal Fraud and Elder Abuse Medi-Cal Fraud and Elder Abuse (http://www.ag.ca.gov/bmfea/).
  This site contains information on how to file complaints of neglect or physical abuse with the Attorney General’s office and/or the Department of Health Services.
• The California Department of Aging (http://www.aging.ca.gov/).
  The CDA website provides an abundance of information about the needs and concerns of elders along with links to sites tailored to meet the needs of the elderly.
• The Office of the California State Long-Term Ombudsman Program (http://www.aging.ca.gov/programs/ombudsman.asp)
  The State Long-Term Care Ombudsman Program advocates for the rights of all long-term care facilities residents, including residents of nursing homes, residential care facilities and assisted living facilities. Residents or their family members can register a complaint with the local Long-Term Care Ombudsman by calling the CRISISline (1-800-231-4024).