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  4.  » FAQ – Elder Abuse & Nursing Home Neglect

Answers To Your Elder Abuse And Nursing Home Neglect Questions

1. What Is Elder Abuse?

Elder abuse refers to any intentional, reckless or negligent acts by a caregiver or any other person who causes harm or a serious risk of harm to a vulnerable adult or who deprives the vulnerable adult of the necessities of life. Abuse may be:

  • Medical neglect — Withholding or delaying needed medical care.
  • Physical abuse — Inflicting, or threatening to inflict, physical injury or pain on a vulnerable elder or depriving them of basic needs. Includes hitting, striking, pinching, pushing, grabbing, rough treatment and excessive, inappropriate or unauthorized use of physical restraints or drugs used to control your behavior.
  • Psychological abuse — Inflicting mental suffering, anguish or distress on you through verbal or nonverbal acts. Includes belittling, causing fear or shame, blaming you for your condition or behavior, threatening to evict you or punish you.
  • Sexual abuse — Nonconsensual sexual contact with you of any kind. Also includes sexual coercion and sexual harassment.
  • Exploitation — Illegal taking, misuse, or concealment of your funds, property or assets of a vulnerable elder. Also includes overcharging you for services you did not request or receive.
  • Neglect — Failing to provide the care the vulnerable adult needs. Ignoring your needs or treating you with indifference, or not providing you with medical care, food, clothing, shelter, or health and safety protection.
  • Isolation — The involuntary seclusion of a vulnerable adult. Includes preventing you from going out of the facility or from meeting with visitors or having telephone calls or mail.

2. Does Elder Abuse Include Abuse Of Vulnerable Adults Other Than Elders?

Yes. In California, the elder abuse laws protect both “elders” and “dependent adults.”

An elder is a person 65 years of age or older residing in California.

A dependent adult is any person between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age.

Dependent adults also include any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility such as an acute care hospital, psychiatric hospital, skilled nursing facility or chemical dependency recovery hospital.

3. How Much Of A Problem Is Elder Abuse?

It is estimated that one in seven seniors nationwide experiences some form of elder abuse, and elders living in nursing homes or other long-term care facilities are much more likely to be abused.

Abused seniors are three times more likely to die within the next decade than other seniors of the same age.

The United States Census Bureau projects that California’s elderly population will nearly double within the next 20 years — from 3.7 million to more than 6.4 million.

The United States General Accounting Office claims that more than 43 percent of all Americans over the age of 65 will reside in a nursing home sometime in their lives.

In 1998, the United States General Accounting Office reported that one in three California nursing homes was cited for serious or potentially life-threatening care problems.

In 1999, the U.S. Congress Committee on Government Reform (USCCGR) reported that of the 439 nursing homes in Los Angeles County, only one was in total compliance with federal standards of care.

In 2000, the USCCGR reported that only 18 of the 288 nursing homes in the San Francisco Bay Area were in full or substantial compliance with federal standards of care.

In 2001, the USCCGR reported that all 27 of the nursing homes in the 22nd Congressional District (Santa Barbara) violated federal health and safety standards.

There is an urgent need to address and remedy the poor quality of care in many of California’s skilled nursing facilities.

4. What Is Nursing Home Abuse?

Nursing home abuse refers to elder abuse or neglect committed in an institutional setting such as a skilled nursing facility, rest home, convalescent home or residential care facility, or long-term care home.

5. What Makes An Elder Or Dependent Adult Vulnerable To Abuse In A Nursing Home?

Elderly and disabled residents of nursing homes are especially vulnerable to abuse and neglect.

People enter nursing homes because they have special care needs, by reason of their age or medical condition, that they are not able to manage at home. Very often the very circumstances that prompt the elder’s admission to the nursing home are also what make them especially vulnerable to abuse and neglect. Sometimes, because of a mental condition such as Alzheimer’s or dementia, they may not even be able to recognize their loved ones, let alone recognize and report their abusers. They may have physical limitations that prevent them from caring for themselves, and they become totally dependent on the nursing home staff to provide for their every need. Their families cannot be there around the clock, and they necessarily have to trust the nursing home to provide the care that their loved one needs.

Nursing homes, on the other hand, have financial incentives to underpay and overwork their staff. The less money the nursing home spends on overhead, such as salaries and training of staff, the more profit the nursing home makes. Many nursing homes are operated with budgetary and fiscal controls set to maximize their own profits at the expense of their highly vulnerable elderly and disabled residents.

Staff members may be afraid that they will lose their jobs if they complain about working conditions. The nursing home may falsify records making it difficult to prove that they did anything wrong.

6. In What Other Types Of Facilities Can Elder Abuse Occur?

Elder abuse can occur in any institutional setting such as an assisted living facility, a rest home, a residential care facility or even a hospital. Any time an elder or dependent adult is living away from their family, in a facility that is supposed to take care of all their needs, there is the potential for neglect or even abuse.

7. How Do Insufficient Operating Budgets At A Nursing Home Lead To Neglect And Injury?

The less staff there are at a nursing home, the higher the probability of injury to elderly residents such as pressure ulcers, falls or malnutrition. Nursing homes that are short-staffed often leave elderly adults lying in bed unattended, which can lead to pressure ulcers. Elderly adults are more likely to suffer from falls because no one is around to assist them getting in and out of bed or up from a chair. Elderly adults are more likely to be malnourished because no one takes the time to assist them with eating or monitor their consumption of food.

Nursing homes that underpay their staff have high turnover and attrition rates, resulting in lack of continuity of care for the elderly residents. Such nursing homes often do not pay enough to attract qualified staff members to begin with.

Overworked staff may not notice a change in the vulnerable adult’s condition, and consequently may not call the doctor in time to get the resident needed medical help.

8. What Laws In California Protect Elders And Dependent Adults From Abuse And Neglect?

One of the most important laws protecting elders and dependent adults is the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA). It is designed to deter neglect and abuse of vulnerable adults. It does so by providing money damages for victims of neglect and abuse payable by the perpetrators. The Act targets institutional caregivers such as nursing homes, rest homes, hospitals, skilled nursing facilities and residential care facilities as well as health care providers such as physicians and home health care providers.

Because many acts of neglect and abuse take place when the corporations in charge of care facilities are trying to cut corners and fatten their profit margins, the Act is designed to make it too expensive for corporations to risk neglecting their patients and residents, because of the risk they run of having to defend a lawsuit seeking monetary damages under the Act.

9. Who Can Bring A Lawsuit Under The Elder Abuse And Dependent Adult Civil Protection Act?

Living elders and dependent adults have rights to monetary compensation for their injuries that can be enforced under the EADACPA.

If the elder or dependent adult is deceased, their estate, heirs, next of kin or other interested family members may have rights to monetary compensation for injuries their loved one suffered prior to death under the EADACPA, and for punitive damages for abuse or neglect committed with oppression, fraud or malice.

If the neglect or abuse caused the death of the elder or dependent adult, the family may have the right to compensation for wrongful death of their loved one.

10. What Other Laws Protect Elders And Dependent Adults In Nursing Homes And Rest Homes?

Each state is required to have a Long Term Care Ombudsman Program. In California, the Ombudsman Program is governed by California Welfare & Institutions Code § 9700 et seq. California has 35 local Ombudsman programs that operate in various locales. You can find the office of your local Ombudsman by calling 1-833-261-8704.

The Ombudsman’s offices investigate and try to resolve complaints of elders and dependent adults living in nursing homes and other long-term care facilities. The nursing homes and care homes are required to give the Ombudsmen access to the facility. The Ombudsmen can then interview staff and have access to facility records related to the resident making the complaint. If the Ombudsman cannot resolve the complaint, they will usually refer it to one of the state agencies that licenses the facility. The licensing agency has authority to order the nursing homes’ compliance with rules and regulations that protect nursing home and rest home residents, to fine the facility and suspend the facility’s license.

The state agency that is involved licensing nursing homes, aka skilled nursing facilities, rehabilitation facilities and home health agencies is the California Department of Health Services (“DHS”), Licensing and Certification Program. DHS enforces the statutes and regulations that apply to skilled nursing facilities, found at California Health & Safety Code §§ 1250-1339.70 and Title 22 of the California Code of Regulations §§ 72001-72713.

If a nursing home receives Medicare or Medi-Cal funding, it must also comply with the federal Nursing Home Reform Law contained in OBRA (Omnibus Budget Reconciliation Act of 1987), found at Title 42 of the United States Code §§ 1395i-3, and the coordinate regulations, found at Title 42 of the Code of Federal Regulations §§ 483.1-483.480.

The state agency that licenses residential care facilities for the elderly, group homes for the disabled and assisted living facilities is Department of Social Services (“DSS”), Community Care Licensing. The statutes and regulations that DSS enforces for the benefit of vulnerable adults living in residential care facilities for the elderly are found at California Health & Safety Code §§ 1569-1569.889 and Title 22 of the California Code of Regulations §§ 72001-72713.

11. To Whom Can I Complain About Neglect Or Mistreatment Of An Elder Or Dependent Adult?

To report elder abuse of any kind, you can call the California Attorney General’s Elder and Dependent Adult Abuse Reporting Hotline at 1-833-261-8704.

For abuse or neglect in a nursing home or other care home, you can file a complaint with the local Ombudsman’s office. Call 1-833-261-8704 to get the location of their local office.

You can file a complaint with the agency that licenses the care home. The Department of Health Services, Licensing and Certification Program, licenses nursing homes, skilled nursing facilities, group homes and home health agencies. Their telephone number is 1-833-261-8704.

The Department of Social Services, Community Care Licensing Division, Senior Care Program licenses residential care facilities for the elderly and assisted living facilities. Their telephone number in Sacramento is 916-657-2592.

For abuse or neglect anywhere other than a nursing home or long-term care facility, you can call Adult Protective Services. Each county is required to have Adult Protective Services Agency, which has a 24/7 hotline for reports of any adult abuse, including elder or dependent adult abuse. In Alameda County, the telephone number is 1-510-577-3500. For your local number call 1-833-261-8704.

If you are concerned about a parent or elderly family member who lives in a different community, you can contact the local law enforcement agency and request a well-being check.

You should also consult a lawyer. The threat of a lawsuit often gets more response from a nursing home than action by a licensing agency, because the licensing agency can only fine the nursing homes with comparatively small fines. Unscrupulous facilities often would rather pay the small fine or gamble that they won’t be caught by licensing than staff the nursing home appropriately. A lawsuit can be the most effective way to force the nursing home or rest home to staff the facility adequately.

12. What Other Rights Do Families Have For Elder Or Dependent Adult Abuse?

If the neglect or abuse caused the death of the elder or dependent adult, the heirs may have a cause of action for wrongful death of their loved one. If the family members witnessed the neglect or abuse, they may also have a cause of action for monetary compensation for the emotional distress that they themselves suffered from witnessing the perpetrators harm their loved one.

13. How Can I Find Out If A Nursing Home Is Understaffed?

Sometimes, you can tell with your own eyes that there are not enough staff in the facility. When you arrive at the facility, you may not be able to find anyone to answer your questions or respond to your requests. Staff members may also tell you that the facility is short-staffed.

Each nursing home in California is licensed by the California Department of Health Services, Licensing and Certification Program (“Licensing”). Their telephone number is 1-833-261-8704 and their website can be found here. Licensing has offices around the state, with locations listed on their website. The branch offices maintain records for each nursing home in that locale, which should include results of annual surveys showing whether the nursing home is understaffed. Licensing, however, has fallen behind in surveying nursing homes, and recent surveys of the facility are not always available. Available surveys should be accessible on the department’s website, but they are not. At the present, the only way to look at the Licensing file for a nursing home is to go to the branch office in charge of the nursing home.

Medicare has some online survey results of nursing homes on its Nursing Home Compare website. You can look up the website’s file on the nursing home. Medicare includes a section in each entry called, “Nursing Home Staffing.” It will you tell you how that nursing home compares to other nursing homes statewide and nationwide. Does the nursing home have less staff than the state average or more staff? Because most nursing homes are understaffed, this information is not always helpful, but it can give you some idea of how staffing is at that facility.

The Medicare website does not tell you whether there have been any citations issued by the State against the nursing home. Citations are issued for serious violations of nursing home regulations, and they are graded “AA”, “A” or “B”. California Advocates for Nursing Home Reform (CANHR) has a website that gives some information on citations. In some cases, the information is not up-to-date, because the licensing agency may not have visited the facility recently.

The California Department of Social Services, Community Care Licensing Division, Senior Care Program licenses residential care facilities for the elderly (RCFEs) and assisted living facilities. Their telephone number in Sacramento is 916-657-2592. Their website can be found here. They maintain results of their surveys of RCFEs at their branch offices. Such information is not presently available on the web.

For further answers to your questions, contact our Oakland office at 510-823-2331.

The State Bar of California
Consumer Attorneys of California