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Litigation Against Residental Care Facilities
Residential Care Facilities for the Elderly—The New Frontier in LitigationBy Kathryn Stebner, Esq.
Litigation against Residential Care Facilities for the Elderly (RCFEs) requires some knowledge of what these facilities are and what they are not. In my opinion, these cases are more like criminal cases. Knowledge of medicine will be useful in order to deal with the inevitable causation defense. These cases usually depend more on percipient testimony about the custodial care provided and involve only very basis medical issues regarding causation. Most important to remember is that these cases reflect how we choose to treat our elders.
Residential Care Facilities for the Elderly are Not Health Care Providers
Residential Care Facilities for the Elderly are one intermediate step prior to being placed in a Skilled Nursing Facility. Health and Safety Code §1569.1 states that RCFEs are to provide a humane approach to meeting the needs of older persons (60 or older). The Residential Facilities for the Elder Act was first passed in 1985. Reform legislation was then passed in 1989. Health and Safety Code §§1569 through 1569.699 now govern all RCFEs. Regulations are set forth in 22 Cal. Code Regs §§ 87100-87730. There is little applicable federal law.
The most important thing to know about RCFEs is that they are not health care providers. As such, the courts have held that such facilities are not subject to Medical Injury Compensation Reform Act of 1975 (MICRA). (Kotler v Alma Lodge (1999) 63 Cal.App.4th 1381, 1391). Remember here that your fee agreement should not be one that sets forth fees pursuant to MICRA.
Notable also is that RCFEs are not Skilled Nursing Facilities. Therefore, the regulations set forth in Title 22 that govern Skilled Nursing Facilities do not apply. In addition, Health and Safety Code §1430 (commonly known as the Patient’s Rights Statute) also does not apply. But Welfare and Institutions Code §§15600-15675 (known as the Elder and Dependent Adult Abuse Act) does apply. Therefore, if recklessness or malice is shown pursuant to the statute, recovery of damages for the pain and suffering of the deceased survives death and attorney fees are recoverable. And because an RCFE is not a health care provider, you need not bring a motion to amend a complaint for punitive damages pursuant to CCP §425.13.
Resident Acuity Levels in RCFE are Set by Regulation
A person who enters an RCFE should be able to walk unless the facility obtains a waiver for non-ambulatory residents with the State. A bedridden resident is one who requires assistance in turning and repositioning and/or is unable to transfer to and from bed (Health & Saf. Code §1569.72). Under the law, an RCFE cannot admit anyone who needs care that should be given in a Skilled Nursing Facility (33 Cal. Code Regulations §87582). There is also a list of prohibited conditions set forth in the regulations (22 Cal. Code Regulations §87701).
This is a major area of inquiry in most cases. For example, if a person develops a decubitus ulcer while at the RCFE, it could be the result of the person’s inability to turn him/herself, thereby evidencing an illegal admission to the facility.
Regulations state that a facility may accept a "healing wound," if there is care performed by a skilled medical professional and the admission is approved by the State. The wound can be a stage I or II if the wound is an ulcer. The State is also supposed to evaluate the cause of the ulcer (22 Cal. Code Regulations §87713). Obviously, in the case of ulcers, these steps are often not taken and can subject the facility to liability if the patient’s condition worsens.
RCFE Licensing and Administration Is Different Than Skilled Nursing Facilities
In general, a facility must obtain an RCFE license (Health & Saf. Cide §87105). There is an exemption for facilities not providing care or supervision. This is an obvious area of inquiry. Operation of an RCFE without the proper licensure is a violation of Business and Professions Code §17200.
"Community Care Licensing" is the State agency within the Department of Health Services that has supervision powers of the facility. This is a different department than the office that oversees Skilled Nursing Facilities. Be sure to make this distinction when your client files a "complaint" with the agency and when ordering records on the facility. Community Care Licensing is an agency that has limited resources. You cannot rely on the State agency to do a thorough investigation or to make the proper findings. Many times files will be misplaced and it can take up to a year to complete the investigation. Having said this, I still believe that the client must file the complaint with the agency. What investigation is done will be at no cost to your client and it makes a poor impression in the deposition if your client has not made this complaint.
The Long Term Care ombudsman investigates and attempts to resolve complaints made on behalf of or by the residents of RCFEs. There is an office in every county or region in the state. They also handle issues involving Skilled Nursing Facilities. They mean well, but are understaffed and have very little power. They are usually volunteers working under professional supervision. They often are the "complaining party" to Community Care Licensing instead of your client.
Each RCFE must have an Administrator (22 Cal. Code Regulations §87563). Administrators are required to be at the facility "a sufficient number of hours to provide adequate management of the facility." No education is needed if the facility has less than 15 residents. If there are 16-49 residents, the Administrator must have fewer than 15 units of college education and one year in providing similar care or equivalent experience. If there are 50 or more residents, the Administrator must have two years of college education and three years experience providing similar care. Check to make sure that the Administrator of the facility is qualified. More often than not, you will find, however, that the Administrator has not been truthful with the State with respect to his or her qualifications. This can be used in a fraud cause of action or to impugn the Administrator’s credibility on all other issues.
A "sufficient" number of staff must be employed to meet residents’ needs. This number may vary depending on the care needs of the residents in the facility (22 Cal. Code Regulations §87580). You can use the language of the regulations as a standard of care. If the facility is caring for persons with dementia, the staffing should be adequate to provide supervision of the dementia residents as well as the needs of all the other residents. Therefore, it is important to gather all information as to the acuity of all the residents. (This is in contrast to specific hourly "nursing hours per patient" set as a floor in Skilled Nursing Facilities in California.) There are regulations that state that, for night supervision, there must be one qualified person on call if the facility has fewer than 16 residents. (22 Cal. Code Regulations §87581(a)(1)). If a facility houses 16 to 100 residents there must be a person on the premises and awake at all times (22 Cal. Code Regulations §87581(a)(1)). An additional person must be on call and able to respond within 10 minutes (22 Cal. Code Regulations §87581(a)(2)). Astonishingly, these minimal regulations seem to apply to facilities that have residents with dementia as well. Therefore, the smaller facilities will point to this regulation if something happens at night and there is no one around to respond. Again, total resident acuities are key.
Facilities must maintain complete resident records (22 Cal. Code Regulations §87570). This is often not done, and if it is, look for falsification of records when the State comes to investigate. Always obtain files several times at different intervals, and compare the different files.
Facilities must provide Pre-Admission Appraisals on each resident prior to admission (22 Cal. Code Regulations §87583). These are a means to determine who should and should not be in an RCFE. Most RCFEs are private pay. There is a great incentive to admit residents into the facility that may be too sick to be in an RCFE. An RCFE often will not educate the family on the limitations of an RCFE. Many families do not want their loved ones in "nursing homes" and will do anything to keep their loved ones in an RCFE.
Often, the medical assessment is dated after the resident is admitted, and therefore not considered in the admission process. The admitting doctor may be the same doctor who has admitted other residents to the facility and may have a referral arrangement. This is something you will want to inquire about. Find out how many residents the doctor has admitted and how many of the residents that doctor is following.
Facilities must provide regular observations of the resident’s physical and mental conditions to ensure that acceptance and retention limits are complied with (22 Cal. Code Regulations §87587). This is an area to watch out for. This is oftentimes not done.
Facilities must also maintain a current written plan of Incidental Medical Needs (22 Cal. Code Regulations §87575). Check to see if this has been complied with.
The Admission Agreement is essential to your case. It is a contract that sets forth all the promises describing what the facility will be doing. It can be the basis for a fraud claim (i.e., by showing that the facility never intended to provide that kind of care) and a claim for breach of contract. I suggest you go over the contract with a fine-tooth comb. You never know what goodies are in the contract. Be creative here!
Reapprasials are required when there is a change of condition (22 Cal. Code Regulations §§87587(a)(3)), yet these are almost never done.