Most, if not all of the patients in the skilled nursing facility at the Gardens do not receive a copy of their rights as mandated by both federal and state law.
For my friend Helen, knowing about her rights would have made all the difference for her. These include being informed of her treatment plan – including her medications, participating in decisions about her care, her bedtime, how many showers she could have a week. You know, basic details.
I filed a follow-up written complaint, to LACDPH about Helen not receiving a copy of her rights – the law also required that she sign and date a form attesting that she had received her copies.
LACDPH and California Public Health Department [CPHD]:
X_ L&C was not able to validate the complaint allegation through direct observation, interviews, and/or review of documents. In addition, no other unrelated violations of regulations were observed.
A review of documents? What documents? Even after this complaint was determined “unsubstantiated” I reviewed an updated Gardens’ document which continured to exclude the required state and federal rights. As Helen’s patient advocate at the Gardens, I requested a copy of her patient rights and a signature attesting to her receipt of them. If they had given them to her, then where were they? I was told the documents were filed in her medical file – thus were confidential. The administrator contacted her adult children – asking them to approve my access to her medical file. This request included the daughter-in-law who had frightened Helen by contacting Helen’s doctor – without Helen’s knowledge, to tell him Helen wanted to be euthanized.
Helen told her doctor she hadn’t said any such thing. But she was scared and agitated because when she told her daughter-in-law that she would make her own decisions, the woman firmly reminded her “we have power of attorney.” Helen feared her daughter-in-law could kill her.
I had answered Helen’s questions and let her know that no one, not even someone with power of attorney, could invoke “Death with Dignity” on her behalf. It wasn’t legal. I also explained to her that her son and daughter could not delegate their power of attorney to the daughter-in-law – information that decreased Helen’s anxiety.
Her daughter-in-law called me and yelled: “You’re all up in my business,” referring to Helen’s care. Helen had told her that she could not make decisions on her behalf. When the Administrator contacted the family about giving me access to Helen’s “medical records,” her adult children said no and stated that I was agitating her.
Well, yes, Helen was agitated when telling her daughter-in-law she could not make decisions for her. But agitation was with her daughter-in-law, not me.
I informed the nursing administrator that I had a photo of Helen sleeping in her wheelchair. Instead of following up with me to express concern and gather more information from me, I received an email from her stating that the family had made the decision that I could no longer visit Helen. I also received a letter from the Gardens’ attorney telling me that my “behavior was unacceptable,” and that I had violated Helen’s privacy with the picture of Helen sleeping in her wheelchair. He closed his letter with:
“…..(The Gardens) would be happy to work with you cooperatively regarding concerns you may have about life at our Community…”
What? I had contacted them regarding a serious mistreatment/abuse of Helen and this was the attorney’s response?
Work with me cooperatively? Yeah, right. I had learned by now that the Gardens approach was adversarial not cooperative – while claiming to others that they were being cooperative. This was a big part of the problem! It takes two sides to cooperate, and only party to be adversarial. Do they even read this stuff that they write?
In the same email, the attorney referenced my taking a video of the skilled nursing dining room Christmas decorations and also of the independent living main dining room decorations.
The former looked like a cheap motel chain’s tacky decor in the reception area. Meanwhile, the main dining room was filled with tall, lighted deer, lavish greenery with red, blue, green, and gold ornaments and lights and a 10-foot beautifully decorated Christmas tree that was reminiscent of a 5-star hotel.
Helen, being the interior decorator she was, wanted to help decorate the small nursing facility dining room so “it would pop” – feel alive and welcoming. But she then changed her mind and did not participate in the decorating process. The attorney accused me of taking videos of residents without their permission. Of course, I hadn’t done any such thing. I’d been careful to focus only on the decorations and did not include residents. But this was the Gardens’ tactic for shifting focus away from their abusive care and harassing me by making me out to be the abuser. This is par for the course in many skilled nursing facilities.
Nevertheless, I was no longer allowed to visit Helen. Now I had restricted entry. That meant I was only permitted visits with other friends to whom the family had given permission and by appointment only, with a staff escort. Of course it was the skilled nursing staff who had spoken with the family about me first. Thanks to my repeated experience of the Gardens’ tactic for shifting focus away from their abusive care and making me out to be the abuser, I didn’t expect to be approved by the family. They always placed great emphasis on their narratives, ending with an invitation to work cooperatively with them, so that it was always someone else’s fault.
Sure enough, a very dear friend of mine, Myrlie, moved to skilled nursing. One day, when she was sitting outside on the patio with her son, she saw me, smiled and her eyes lit up like Christmas lights. Her son was excited to see this. She was in her mid-nineties and he hadn’t seen her like this in a long while. After I briefly had explained the situation, he vowed to have me approved to visit her. But I never heard from him again and he didn’t respond to my text messages. I felt sickened and sad for Myrlie. These people’s behavior in isolating their most vulnerable residents was another example of unconscionable abuse!
Requiring me to schedule any visits, as if I was a prospective future resident, appeared to be one way to make sure the corridors were presentable with any residents sleeping in their wheelchairs moved behind closed doors, hidden from the public!
Ironically, in another case, the Gardens had been cited and fined ~$10,000 for an injury to a 91 year old resident caused by their staff. The elderly woman had fallen while she was being moved by staff and had sustained a serious injury that required surgery. The Gardens appealed this citation – for three years! They vigorously defended themselves, by claiming that the elderly resident had refused care and therefore she was to blame. At minimum they were not responsible for her injury.
The Administrative Law Judge denied the appeal, finding among other things:
“Petitioner’s witnesses, again in identical statements, cite only two alternatives for the involved CNA; either assist the resident alone or leave her and go for help. P. Ex. 45 at 11; P. Ex. 46 at 10. This ignores a third option, which was apparently utilized by the CNA on October 21, 2018; that of using the emergency alarm to summon help. CMS Ex. 1 at 14; CMS Ex. 5. Unfortunately, this was not done until after the fall. Id. The CNA, on October 19, 2018, was also apparently able to summon assistance without reportedly leaving the resident. CMS Ex 5 at 26.”
The Judge also stated:
“There is also no corroboration of the statements that there were only two options: helping the resident or leaving the resident. There were only two people who knew exactly what transpired in that room on October 21, 2018 – the resident, who was described as an inaccurate or poor historian, and CNA 1. P. Ex. 21 at 1; P. Ex. 46 at 15; P. Ex. 45 at 16. Petitioner elected not to produce the CNA as a witness. As a result, I am unable to determine how long the interaction with R43 took place, what exactly was said to R43 regarding the benefits of a two-person transfer, as was done on October 19.
The Gardens had attempted to place blame on the elderly resident as she “exercised her right to refuse care.”
The Judge responded:
“…. refusal of treatment by a resident is not a free pass for the facility to avoid providing the care specified in the care plan.”
It’s also interesting that state law requires that potential residents must be allowed access to the skilled nursing area of the retirement community. But if they actually sign a contract, pay a hefty six figure non-refundable upfront move-in fee, and become a resident of the community – which includes guaranteed care in the nursing facility if needed – the facility can restrict access of residents in independent living who are future residents of the nursing services!
In fact, one 80-year-old resident who spent two months in the Gardens skilled nursing facility following surgery before being discharged back to her independent living apartment, asked for a survey to complete so she could provide feedback about her care. She stated that the social worker replied: “Oh we don’t do that.”
I, along with a small group of residents, began forming a nursing facility “Family Council.” According to the California Advocates for Nursing Home Reform “…by presenting a united voice with mutual concerns, family council members don’t feel isolated and threatened, and they can address the problems of all residents, rather than a few. Family councils, set by federal and state law, help prevent problems and guide members on how to assert their rights and seek action on legitimate complaints.
Federal and State law states:
“Family Council” is defined by law as a meeting of family members, friends, or representatives of two or more residents to confer in private without facility staff. HSC §1418.4(c).
Staff or visitors may attend family council meetings only at the group’s invitation. HSC §1418.4(e).
California’s family council law is found at Section 1418.4 of the California Health and Safety Code. Federal law and regulations establish similar rights and authority for family councils at Title 42, United States Code, Section 13965(c)(1)(A)(vii) and at Title 42 Code of Federal Regulations, Section 483.10(f)(5)-(7).
Our group sent an email to the CEO who, four days later, expressed her appreciation for our efforts and approved our Family Council.
10 days after our authorized meeting, the VP of Health Services suddenly stated:
“Yes. We have a Caregiver Support Group (Family Council) (sic) meets on the 1st and 3rd Wednesday of each month at 1:30 p.m. via Zoom.”
But even with “Family Council “suddenly added to Caregiver Support Group name, the Gardens staff continue to advertise it as:
The Gardens had a Caregivers Support Group run by Gardens staff and simply added “Family Council” to its title – and withdrew their recognition, as well as their compliance with federal and state law in regard to the families forming the family council.
FROM THE INTERFAITH CHAPLAIN:
“Caregiving for a loved one can be both richly rewarding and deeply exhausting. We have a supportive group of caregivers who share their joys and their frustrations withy one another here at the Gardens (Caregivers Support/Family Council). We meet this Wednesday via ZOOM at 1:30 p.m. All are welcome!”
Note: caregivers “share their joys and frustrations.”
It is run by staff, is not confidential and does not have a bulletin board to post concerns and responses by the facility administrator. Therefore, it fails to comply with laws that dictate what constitutes a family council. While laudable and a valuable resource to residents and their families, it is an emotional support group, not a family council.
I received another email from the Gardens’ attorney, “the godfather of senior living operators,” accusing me:
“You have also tried to form your own family council, after being told that there already is a family council and that (the Gardens) has authorized only one family council existing, you were welcomed to participate in the existing family council, but you have not done so.”
What? I haven’t participated in the existing family council? What were they doing – stalking me? So much for confidentiality so participants would be safe and not harassed or retaliated against. The CEO had approved the Family Council we were forming, and it was only after the CEO’S approval, that the nursing home Administrator added “Family Council” to the Caregiver Support Group Title. The godfather’s spin had it backwards.
Sadly, one Caregiver Support Group participant, who was also interested in the Family Council, reported that she asked the interfaith chaplain if nursing staff could wear their name tags so patients and their visitors could read the names. I’ll see what I can do.” For two days staff wore their name tags so they could be seen. The third and subsequent days the staff returned to either not wearing their name tags or wore them turned around so their names didn’t show. That was the end of that!
A resident Board member whose husband had spent months in the nursing facility following a stroke and subsequently died, joined the newly forming Family Council to help. After our first meeting, she called to tell me she was being “triggered” by her memories of what her husband had suffered at the hands of staff. Her bedridden husband would press his call button, but no one would answer it – he just lay helplessly in bed.
It was so bad that she had spent mornings watching over his care and had hired a private duty nurse to care for her husband in the afternoons. She needed to drop out of the group that was forming – it was too upsetting.
The Gardens “Caregiver Support Group” does not meet the legal requirements for a family council.
FAMILY COUNCILS
https://canhr.org/family-councils/
At this point it was clear that the Gardens’ attorney “godfather of senior living operators,” could continue to harass and intimidate senior residents – all of whom should be protected from such psychological abuse. It was additionally clear that seeking assistance from the California Department of Public Health or Los Angeles County Department of Public Health would be futile. The Gardens would most likely show the new name for the Caregiver Support Group with “Family Council” now added to the title and voilà, it would be automatically “unsubstantiated.”
Why bother? It seemed that nursing facilities know how to game the system – with the complete collusion of their oversight agencies, who also game the system. At every step, every juncture, collusion seems to be the name of the game at these facilities.
To quote Tony Chicotel, attorney for California Association for Nursing Home Reform (CANHR) about LACDPH: “We are well aware that it is an agency that is no good at nursing home enforcement.”
I was shocked and decided to research the history of California’s oversight of Skilled Nursing Facilities.
Meanwhile, the Gardens, while touting the success of their nursing facility administrator in maintaining a continuous 5 Star rating for the nursing facility, promoted her to a newly created position – Chief Operating Officer.
Next week: Lax and problematic agency oversight, a known issue for over a decade – to the media, the legislature and Governor’s office, and Medicare.
In over 12 years, there have been NO substantive improvements – instead just new ways skilled nursing facilities and the Los Angeles Department of Public Health and California Department of Public Health to game the system. Instead of a backlog of consumer/family complaints about horrible care of their loved ones, Los Angeles County Department of Public Health simply conducts a grossly subpar investigation of those complaints and quickly stamps them unsubstantiated – misleading, if not outright lying, to the unsuspecting public.