North Carolina's First Elder Law Firm

Before Nursing Home Placement: Who to Ask

Advocates and families look to many local agencies, organizations, and professionals serving older and disabled clients for information and recommendations about nursing homes. State agencies:

Division of Aging

Division of Facility Services

Division of Social Services

Federal agencies:

CMS-Medicare

CMS-Medicaid

National organizations serving those with chronic illnesses primarily affecting the elderly:

Alzheimer's Association

Arthritis Foundation

National Parkinson Foundation

American Diabetes Association

National Multiple Sclerosis Society

Visit our website at www.nc-law.com.

Nursing home ratings

Did you know there are nursing home ratings sites and locators? Check these out:

• www.consumerreports.org/health/doctors-hospitals/nursing-home-guide/0608_nursing-home-guide.htm
• medicare.gov/NHCompare/home.asp
• naela.org/snapforseniors.aspx
• seniordecision.com
• ucomparehealthcare.com
• healthgrades.com
• memberofthefamily.net
• nursing-homes-ratings.com
• carepathways.com
• myhealthcaresource.com
• content.gannettonline.com/gns/nursinghomes
• nursing-guide.net/s/nursing_home_rating

Visit us on the web at www.nc-law.com.

HELPING SENIORS GET ON LINE

A colleague recently offered this report from her newspaper, The Detroit Tribune News. As of the year 2000, fewer than 20% of Americans older than 64 were online. Today the number has jumped to almost 40%. And the numbers keep rising. For those of you with senior members of your family, share the following tips: • Keep the computer simple. • Use a PC since these are most used in classes and libraries. • Search out senior centers and other community resources for lessons. • Remove unneeded icons. • Use a larger keyboard. • Set up an email address book.

Visit us on the web at www.nc-law.com.

What do you know about nursing homes? Take the Nursing Home Quiz below.

True or False?

1. A nursing home resident's family can visit at any time.
2. Once a resident fails to make progress in therapy, Medicare cannot pay for nursing home care.
3. If a nursing home resident is hospitalized, the nursing home must readmit him at the end of his hospitalization.

Answers:

1. True. Federal nursing home law exempts family members from visiting hour restrictions.
2. False. A lack of progress does not necessarily mean that Medicare Part A payment should end; however, residents frequently are told that a day or two without progress means that therapy and Medicare Part A payment must be terminated.
3. True, but only if the resident is Medicaid-eligible. Yet many nursing homes ignore the readmission rights of Medicaid-eligible residents.

For more information like this, visit www.nsclc.org (National Senior Citizens Law Center).

TIPS TO MAKE MEALS MORE ENJOYABLE FOR ALZHEIMER’S AND DEMENTIA VICTIMS.

You should see the numerous tips to help make mealtimes more comfortable for victims of dementia and their caregivers. They were published by the National Institute of Aging. Here are a few of those tips:
1. Maintain familiar routines and rituals, but be flexible and adapt to the person's changing needs. 2. Minimize distractions during mealtimes. For example, turn off the television or radio, and eliminate unneeded items from the table. 3. Offer appealing foods that have familiar flavors, varied textures, and different colors, and give the person opportunities to make choices. 4. Make nutritious finger foods and nutrient-rich homemade shakes or shake products (unless the person is lactose intolerant) available throughout the day. 5. In the earlier stages of dementia, be aware of the possibility of overeating. If this occurs, provide a balanced diet, limit snacks, and offer engaging activities as alternatives to eating. The rest of the tips can be found on the NIA’s website http://www.nia.nih.gov/Alzheimers/ResearchInformation/Newsletter Alzheimer’s Disease Education and Referral Center ADERC 14 Connections 2006.

FOLLOW THE RULES, WE MUST

Frequently clients will call us with what they believe to be a perfectly routine request that we prepare documents for someone they are assisting. The request may come from a spouse, child or trusted friend who recognizes the need for an updated general durable financial power of attorney or for a health care power of attorney or for a will to be prepared for and executed by a person to whom they are lovingly giving care and services. They have discussed the issue with the person whose needs they are trying to serve and report to us that what we are being asked to do is exactly what that person wants done. I very often offer to come by and pick up the documents when ready, deliver them to the person to have them notarized in order to avoid inconvenience for all concerned. Sometimes the person they are assisting is too ill or frail to get out, and they are certainly reluctant to suggest that we make a house call. So they are quite surprised to learn that we cannot accommodate their request, that we simply furnish to them the papers that need to be signed.

Under the North Carolina Code of Professional Responsibility governing the activities of North Carolina licensed attorneys, it would be improper for us to furnish those documents. Our ethics opinions require that when we draft documents for a client we must have direct contact with that person for a number of reasons. First, we need to review the document with the person for whom it has been prepared. Second, we must be satisfied that the person signing has the legal capacity to sign documents; and finally, we make inquiry to satisfy ourselves that the documents have not been procured by undue influence. In other words, we want to be sure that what someone is signing is what they want to do and not what someone else is insisting that they must do. So, when we insist on having contact with the person whose papers we have prepared, it is not because we are trying to make it harder than it seems it should be. Instead, it is because we are following the rules mandated for ethical behavior in our profession.

A Call to Action

A Call To Action

Unfortunately, North Carolina still resides in the 19th century in its assessment of liability when people suffer injuries due to the negligence of others. Legal responsibility for damages arising out of an accident in North Carolina is based upon an assessment of fault. The legal term is negligence. Negligence is the failure to use due care to avoid injury to others either by things that we do or things that we fail to do. In North Carolina a complete defense to a claim of negligence is that the person injured was contributorily negligent. Thus our rule of law is that if the driver of a vehicle is 95% at fault in an accident and the injured pedestrian was 5% at fault, there will be no recovery by the victim regardless of how devastating the injury may have been, up to and including death.

Forty-six of the 50 states have abandoned the rule of contributory negligence in favor of a more equitable system of assessing liability known as comparative negligence. Only North Carolina, Alabama, Maryland, Virginia and the District of Columbia still adhere to the contributory negligence rule that unless your injury is 100% the responsibility of the other party, you are without legal remedy. In comparative negligence states, when a jury apportions responsibility 70% to the one who caused the accident and 30% to the victim, then when damages are assessed for the victim’s hospital bills, loss of earnings, permanent disability, disfigurement, pain and suffering, etc., the victim receives 70% of the damage award. Thus in a comparative negligence state, the victim would receive only $35,000 of a $50,000 damages judgment. However, in North Carolina upon a finding of any percentage of contributory negligence by the party injured, the jurors would not ever reach the damages issue and the injured person would receive no recovery for their losses.

Efforts have been made from time to time to change the law in North Carolina through the General Assembly. Such efforts have lobbied for by victims advocacy groups, but have been successfully resisted by the liability insurance companies and business interests. During this session of the General Assembly, it is expected that legislators will again consider the Uniform Apportionment of Tort Responsibility Act. Legislators are responsive to constituent concerns. If you feel that North Carolina needs to come into the 21st century and join the over-whelming majority of jurisdictions which have found comparative negligence to be more just, equitable and fair, please write your legislators and encourage their support of this legislation.

Can You Be Forced to Move from Your CCRC Private Apartment to Assisted Living? Read On

A federal court has ruled that a continuing care retirement community (CCRC) can force one of its residents to move from her private apartment to an assisted living unit.

Sally Herriot, 90, is a resident of Channing House, a CCRC in Palo Alto, California, that provides three levels of care -- independent living, assisted living and skilled nursing. Since moving to the facility with her now-deceased husband in 1991, Ms. Herriot has lived in a spacious independent living apartment. After Ms. Herriott returned from a hospital stay in 2006, Channing House determined that it was necessary to transfer her from her apartment to a much smaller, hospital-like assisted-living unit where she could be served by a trained nursing staff. Ms. Herriot, her family and her physician objected to the transfer, arguing that she is able to remain in her apartment with the help of round-the-clock private aides she had hired. Channing House rejected this arrangement.

Ms. Herriot subsequently filed suit in federal court, alleging that Channing House had discriminated against her based on her disabilities by refusing to accept her accommodation of hiring private aides. (See "Retirement Home Resident Fights Move to Increased Level of Care," ElderLawAnswers, 3/3/2007.)

The U.S. District Court for the Northern District of California now rules that Channing House has a duty to provide Ms. Herriot with medical care based on her level of need, and that it cannot delegate that duty to private help hired by Ms. Herriot. The court finds that Channing House would be violating its legal obligations by accepting Ms. Herriot's plan to allow her to remain in her apartment. Herriot v. House ( U.S. Distr. Ct.,  N.D.  Cal., No. C 06-6323 JF (RS), Jan. 29, 2009).

Hot Off the Press: Link Between Diabetes and Alzheimer's

New research indicates that diabetes increases the risk of getting Alzheimer's disease and may speed dementia once it strikes.  Doctors have long suspected diabetes damaged blood vessels that supply the brain. It now seems even more insidious, that the damage may start before someone is diagnosed with full-blown diabetes, back when the body is gradually losing its ability to regulate blood sugar.  In fact, the lines are blurring between what specialists call "vascular dementia" and scarier classic Alzheimer's disease. Whatever it's labeled, there's reason enough to safeguard your brain by fighting diabetes and heart-related risks.  "Right now we can't do much about the Alzheimer's disease pathology," those sticky plaques that clog patients' brains, says Dr. Yaakov Stern, an Alzheimer's specialist at Columbia University Medical Center. But, "if you could control these vascular conditions, you might slow the course of the disease."  The link has staggering societal implications: More than 5 million Americans have Alzheimer's, and cases already are projected to skyrocket in the next two decades as the population ages. The question is how much the simultaneous obesity-fueled epidemic of Type 2 diabetes may worsen that toll.  There are about 18 million Type 2 diabetics who are considered to have at least two to three times a non-diabetic's risk of developing Alzheimer's.  Still, Type 2 diabetes often leads to heart disease and other conditions that kill before Alzheimer's typically strikes, in the 70s.

Source:  AP (17 March 2009)
Full story:  http://www.google.com/hostednews/ap/article/ALeqM5i-IBRVPDi_0QTfYIGWwemqib4uEgD96VKLU80

AFTER NURSING HOME PLACEMENT: WHAT TO DO; HOW TO DO IT; WHEN TO DO IT; AND WHO TO DO IT TO

The placement of a family member into a nursing home changes everything. The relationships and the routines that revolve around the family are forever redirected, breaking the ties that that sustained the continuity of family as the family knew it. Hopefully, the family approached the inevitable with planning and investigation.

 

So, what do you do now that a loved one is in the nursing home – Above all – start with this:

 

The Journal - Keep a notebook or journal and maintain it on a consistent basis - 2-3 times a day, or a minimum of 3-4 times a month – every time there is contact with others, record in the journal, date, time, location, communication, names and detailed writing of the substance of the contact. Once you have begun with the journal,  here’s what to do, how to do it, when to do it and who to do it to:

 

What to Do.

 

1.     Immediately schedule a care-plan meeting.

2.     Ask to review all records received or maintained about the resident.

3.     Immediately visit with and offer assistance to the head nurse of the hall, unit or section in which the resident is located.

4.     Immediately find out the names of all direct care staff on all shifts.

5.     Get into the habit or regular visitation, coupling it with unannounced appearances without notice.

6.     Be kind, Helpful to and with direct care staff – give notes, letters of support, snacks, cookies, cakes and party whenever the occasion – make them feel like family.

7.     Meet and get to know other residents and their families in the facility

8.     Orchestrate visitations by extended family, friends, neighbors, pastoral care support from church 

9.     If possible, make sure the resident is taken out of the facility as often as possible.

 

How to Do It

 

10. In Person Contact

11. Internet Contact

12. Letter writing

13. Coordinate with all family members, friends, support group and extended network

 

When to Do It

 

Simply as often as possible, discipline and consistency is the best way to sustain the quality of life of your family member that is a nursing home resident.

 

Who to Do It to

 

Family should have no hesitation in contacting those responsible for the care provided to their loved one in a nursing home. Above all, along with consistency, always be tactful and appropriate with your language and dialogue.

 

Who NOT to Do It to – You may think that it will help to make calls and send emails and letters to the President of the United States, U. S. Senators, Representatives, the Secretaries of US HHS, and your state DHHS, state senators and representatives, the mayor and so many others. It rarely helps, and often diminishes your voice as an advocate for your loved one. On the other hand, TV, radio and newspaper press relish nursing home victim stories.