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New Developments

• State Nursing Home Transparency Website Not so Transparent about Sexual Abuse
  KPBS recently reported that details of sexual abuse complaints are obscured or missing from California's nursing home transparency website, Cal Health Find. KPBS found that some sexual abuse complaints are substantiated, meaning the allegations are deemed likely to be true, but no fines are issued to the nursing homes where the abuse took place. Additionally, information posted on the State website fails to differentiate between sexual abuse committed by residents versus sexual abuse committed by staff. Overall, the story highlights the extent to which sexual abuse occurs in nursing homes and the State's lack of interest in stopping it or informing the public about it.
  (posted November 1, 2022)
• Elder Abuse Center Releases Excellent Guide to Conservatorship Alternatives
  The National Center on Elder Abuse has released a guide called "Decision-Making Options that Are Less Restrictive than Guardianship" which evaluates 13 alternatives to court-imposed conservatorships to manage the financial and personal decisions for people who may lack decisionmaking capacity. The guide should serve as a checklist for any person considering a conservatorship to ensure that a conservatorship is really needed. Conservatorships are time-consuming, expensive, and very restrictive. If alternatives are available, they should, by all means, be used.
  (posted October 28, 2022)
• Voting Right For Nursing Facility and Assisted Living Residents
  There’s a big election coming up in November. If you live in an assisted living or nursing facility, you should be aware that you do not lose your right to vote just because you move into long-term care. However, you might face a number of practical barriers to exercising your right to vote. CLICK HERE for guidance for residents planning to exercise their right to vote this November.
  (posted October 28, 2022)
• Proposed Settlement Would Allow Laguna Honda Residents to Stay at Facility
  An October 12, 2022 statement from the City and County of San Francisco, the Centers for Medicare & Medicaid Services (CMS), and the California Department of Public Health (CDPH) announced a proposed settlement that would allow Laguna Honda to continue to receive Medicare and Medi-Cal payments while addressing needed quality improvements. According to the statement, CMS will extend Medicare and Medi-Cal payment for services at Laguna Honda through November 13, 2023 and extend the pause of resident transfers until at least February 2, 2023. The announcement is good news for facility residents because the settlement could head off closure of Laguna Honda and prevent dangerous transfers of residents. At least nine Laguna Honda residents have died since May following transfers to shelters and other facilities after CMS ordered Laguna Honda to plan for closure and to transfer residents. David Chiu, the San Francisco City Attorney, told the San Francisco Chronicle that the settlement includes a new dispute resolution process to avoid the kind of crisis that Laguna Honda and regulators landed in this year.
  (posted October 19, 2022)
• Journal Statement Makes Assisted Living Recommendations
  A new consensus statement from the JAMA (Journal of the American Medical Association) Network Open summarizes 43 recommendations to improve medical and mental health care in assisted living facilities. 183 recommendations were considered and 43 were ultimately judged to be both important and feasible. Among the most strongly recommended items were staff training on person-centered care and informing responsible parties of a resident's change in condition. The statement demonstrates that assisted living facilities provide a great deal of medical and mental health care services but there is significant room for improved quantity and quality of those services.
  (posted October 3, 2022)
• State Ends COVID Testing Requirement for Unvaccinated Visitors to Hospitals and Long Term Care Facilities.
  On September 15, the Director of the California Department of Public Health issued an order rescinding the COVID testing requirement for unvaccinated visitors in hospitals, nursing homes, and intermediate care and assisted living facilities. Citing current vaccination and booster rates for Californians, the Department ended its required testing program for all visitors that was started during the Omicron wave of COVID infections on December 31, 2021 and then limited to unvaccinated visitors on February 8, 2022. The order means that visitation rights are almost entirely restored to their pre-pandemic norms. Visitors are still required to wear masks, follow infection prevention practices while visiting, and comply with any local public health orders, but residents should have complete access to visitors as protected by law and regulations.
  (posted September 19, 2022)
• ABC10 Exposes Major Problems in Limited Conservatorship System
  ABC10 in Sacramento has released a second season of reporting on California's problematic conservatorship system. After a riveting first season focused on general conservatorships, investigative reporter Andie Judson takes a deep dive into "limited" conservatorships, which are meant to be less restrictive conservatorships for adults with intellectual and developmental disabilities. At the heart of each of the five episodes, is the story of a different family that was ripped apart by a conservatorship system that is too quick to move persons with disabilities from their homes and into poorly supervised, poorly managed group homes. Families are upended, conservatees' wishes are ignored, and the state's Department of Developmental Services is non-responsive. The season ends on a positive note, with AB 1663, a bill co-sponsored by CANHR, possibly joining last year's AB 1994 to provide much-needed conservatorship reform.
  (posted September 19, 2022)
• Waiving Patients’ Legal Rights is NOT a Health Care Decision: Logan v. Country Oaks
  A new Second Appellate District opinion has found that health care agents designated under an Advance Health Care Directive do not have the authority to bind principals to binding arbitration agreements.  In making this finding, the Court expressly overturned the Garrison v. Superior Court decision, which ruled that health care agents could bind principals to arbitration agreements.
  
  In Logan, the Court determined “the decision to waive a jury trial and instead engage in binding arbitration . . . is not a health care decision. Rather it is a decision about how disputes over health care decisions will be resolved.” The Court also found it important that both state and federal law require nursing homes to keep admission agreements (related to receiving health care) separate from arbitration agreements (not related to receiving health care) and prohibit arbitration agreements from being made a condition of receiving care.
  
  Much of the Logan court’s reasoning resembles arguments made by CANHR in the Winter 2019 edition of its Legal Network News (page 11, “Garrison and Hogan Are Wrong: Why Health Care Agents Cannot Bind Principals to Pre-Dispute Arbitration Agreements”). The Logan decision brings long-needed common sense to California’s long term care facility arbitration jurisprudence and aligns it with several other states. Litigation, trials, and legal dispute resolution are not health care.
  
  click to read more
  (posted August 29, 2022)
• CMS Approves Pause to Transfers of Laguna Honda Residents After Outrage Over Deaths
  On July 28, the Centers for Medicare & Medicaid Services (CMS) approved a desperately-needed pause to the transfer and discharges of Laguna Honda residents, whose home and lives were placed in jeopardy when CMS decertified the facility on April 14 and directed it to relocate its nearly 700 residents by September 13. Laguna Honda is the nation’s largest nursing home and is owned and operated by the City and County of San Francisco. The temporary pause in transfers followed the tragic deaths of at least nine transferred residents, growing public outrage that residents are being transferred to homeless shelters and dangerous nursing homes, a unanimous resolution by the San Francisco Board of Supervisors urging the federal government to suspend the relocation of residents, and public officials pleading for a stop to the “human rights atrocity.”  As of July 24, Laguna Honda reported it had transferred or discharged 57 residents and that 608 residents remained at the facility.
  (posted August 9, 2022)
• LA Times Editorial Touts #FreeBritney-Inspired AB 1663
  Sunday's LA Times included an editorial pushing for the passage of AB 1663, a bill co-sponsored by CANHR that would make significant reforms to California's conservatorship system.  The bill promotes alternatives to conservatorships, namely through supported decisionmaking, and enhances the rights of conservatees. More information about the bill and how to support it, can be found at 
  www.supportwithoutcourts.org.
  (posted August 9, 2022)
• Attorney General Reminds Law Enforcement Officials that Self-Help Evictions Are Illegal
  New guidance from the state Attorney General's office reminds law enforcement officers that evictions without a court order (self-help evictions) are illegal in California.  The guide states "it has long been the law in California that a tenant can be removed from a rental property only after there has been a court judgment and a writ of possession has been issued."
  
  In long term care facilities, residents are often subjected to self-help evictions.  The expiration of time on a discharge notice does not authorize a residential long term care provider to force a resident out.  Occasionally, long term care facility residents who are hospitalized or leave the facility for a short time are refused readmission (i.e., an illegal lock-out).  In some wrongful long term care facility eviction cases, the police are called and, rather than stop the illegal self-help eviction, they actually enable the eviction by threatening the resident with arrest for "trespassing" in their own home.  Hopefully, the Attorney General's guidance will end law enforcement's ignorance about what is legally required in eviction cases and help reduce illegal self-help evictions.
  
  click to read more
  (posted July 15, 2022)
• Conservatorship Abuses & Reforms Webinar Posted
  The Jerome Tobis Endowed Lecture Series recently posted a webinar called “Conservatorships in California: Abuses, Critiques, and Proposals for Reform" The webinar features four speakers covering both probate and LPS conservatorships, supported decisionmaking as an alternative to conservatorship, and current conservatorship reform efforts - including AB 1663, a bill co-sponsored by CANHR.
  (posted July 1, 2022)
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