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Assisted living trade association opposes AB 2171 to curb elder abuse

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On Tuesday, June 24, 2014, California’s Senate Judiciary Committee will vote on AB 2171 for a Resident’s Bill of Rights in assisted living. Elder advocates strongly support the Bill of Rights to clarify that residents have the right to visitation, phone calls, and mail.

Senate Judiciary Committee

Assisted living facilities and their trade association strongly oppose the Bill of Rights.

The California Assisted Living Association (CALA) is the only association solely representing Assisted Living providers throughout the state.

CALA represents over 460 Assisted Living communities and more than 100 associated businesses.

CALA’s website ignores that rights of residents are often violated by their member facilities. This Examiner covered stories of residents imprisoned and unlawfully isolated for years in assisted living facilities. Those residents may be subject to many other forms of abuse while denied contact with loved ones.

  • In San Bernardino County, Jean Swope was imprisoned and isolated for over a year.
  • In Santa Clara County, Gisela Riordan was imprisoned and isolated for over two years.
  • In Monterey County, Margarita Zelada has been imprisoned and isolated since March 2013.

CALA refers to efforts to secure the rights of elders as “frivolous lawsuits.” The trade association represents a very lucrative industry that is vehemently opposed to the Bill of Rights and the accountability it could provide.

AB 2171 is a bill that only serves to promote frivolous lawsuits and pad the pockets of lawyers. This bill barely passed the Assembly Floor with 42 votes (20 “no” and 17 “not voting” or “abstained”) and will soon be heard in the Senate. This trial lawyer bill is also supported by labor. CALA and a growing coalition of opponents are working aggressively to defeat this blatant attempt to set Assisted Living up as a lawsuit generator. Thank you to all CALA members who contacted their Assemblymember urging a “NO” vote! Your help will be needed again as the bill moves through the Senate.

The Coalition for Elder & Dependent Adult Rights (CEDAR) responded with the following letter of support for AB 2171.

RE: Please support Assembly Bill 2171

Opponents of AB 2172 raise the specter of unbridled litigation if residents’ rights are secured. Precisely the opposite will occur. A mechanism for families to obtain injunctive relief will prevent litigation. Elders and their families only resort to litigation when there is no alternative.

In the current situation, an abused resident and the resident’s family have no mechanism to stop ongoing abuse. Community Care Licensing (CCL), the Long-Term Care Ombudsman, and law enforcement are unable or unwilling to protect RCFE residents.

Civil courts hold the bizarre position that families have no standing to protect a loved one while the victim is alive. Courts interpret CAL. WIC. CODE § 15657.3(d) to indicate that standing to sue attaches only after the death of the elder. Those courts leave families impotent to intervene in abuse of their loved ones.

My mother was a victim of heinous abuse in a San Bernardino County RCFE. Family was in court dozens of times, incurring more than $400K in legal fees while the abuse continued. The court told us “It’s not time yet.” Abuse continued until my mom died.

Had there been a mechanism to obtain injunctive relief in 2010 – 2013, the abuse could have been stopped. My mom could have been protected. The court would not have been burdened with the many motions we brought during my mom’s life. The court would not now be burdened with multiple parties litigating a complex elder abuse case.

Our situation is not unique. Other families throughout California share the same experiences. Efforts to protect abused loved ones are met with the court’s instruction to wait for the victim to die. A legal system that gives more protection to decedents than to living victims is absurd and bizarre. But that is the very situation that family after family now faces in California.

Coalition for Elder & Dependent Adult Rights (CEDAR) is a collaboration of advocates with firsthand experience of horrific abuse in RCFEs. Each of us watched a loved one victimized for an extended period of time. Each of us found that Community Care Licensing (CCL), the Long-term Care Ombudsman, law enforcement, and civil courts offered no remedies for abuse of our loved ones.

San Bernardino County

My mom was abducted from her home, imprisoned, and forcibly isolated at Wildwood Canyon Villa in Yucaipa for over a year. CCL substantiated that the RCFE violated my mom’s:

· Right to leave the facility,

· Right to have visitors,

· Rights to have phone calls,

· Right to send and receive mail,

· Right to have a bed, rather than a mattress on the floor.

However, CCL did not assess any penalties. CCL did not require any corrections.

Investigating Deputy Grant Ward ordered me not to call my mom. He threatened that he would arrest me if I tried to visit. He threatened that he would charge me with a crime if I reported his misconduct. Sergeant Paul Morrison wrote, “Linda Kincaid and her associates are considered trespassing if they are located anywhere on the property of the facility. Any further telephone calls may be considered as annoying and threatening.”

The Long-Term Care Ombudsman refused to investigate family’s reports of false imprisonment and isolation. Three years later, Ombudsman Roberta Wertenberg testified that County Counsel instructed her not to investigate our complaints.

During the period of isolation, Wertenberg left a phone message, “What calls your mother is able to place are being overseen by a deputy out of the Yucaipa station.” Wertenberg wrote, “The Ombudsman Program does not have authority to authorize or enforce visitation.” Colleen Krygier, Director of the county Department of Aging and Adult Services added, “At this time, your on-going concerns regarding your mother’s care would be better addressed through the pending case in the San Bernardino County Court.” When family brought the situation to State Ombudsman Joe Rodrigues, he referred us back to Ms. Krygier.

Family attempted to follow Ms. Krygier’s instructions and secure my mom’s rights through San Bernardino County Court. My mom was imprisoned and abused for more than two years, family incurred $400K in legal fees, and the court held over twenty-five hearings. Then Judge Michael Welch ruled that family did not have standing until after my mom died. Judge Welch told family, It’s not time yet.

Family provided CCL with evidence obtained through extensive civil discovery. We filed ten well documented complaints of neglect, mental abuse, physical restraint, chemical restraint, denial of medical care, administration of medication without physician’s orders, administration of medication by unlicensed staff, and possible sexual abuse. More than a year later, CCL has not yet investigated eight of our ten documented complaints.

Numerous times during our ordeal Deputy District Attorney Tristan Svare told family, “There is nothing out of the ordinary.” Svare was correct. CEDAR sees similar cases across California.

Santa Clara County

Gisela Riordan was imprisoned and forcibly isolated at Villa Fontana in San Jose for over two years. The RCFE violated Gisela’s:

· Right to leave the facility,

· Right to have visitors,

· Rights to have phone calls,

· Right to send and receive mail.

CCL and the Long-term Care Ombudsman determined there was no violation of Gisela’s rights. Will Lightbourne, Director of California’s Department of Social Services wrote, “The above restrictions are well within the law and cannot be viewed as a violation of Ms. Riordan’s personal rights.”

San Jose Police Department has no protocol for investigating mental abuse. Response from Sergeant Richard Benetiz underscored the deficiencies in the Department’s Duty Manual. “Based on all the information I have gathered at this point, it does not appear to me that this situation is a criminal neglect matter that would require the involvement of the police department. Police Chief Chris Moore added, After reviewing the facts as stated in your complaint, it has been determined that the actions taken were consistent with Department policy”. To date, San Jose Police Department has not updated their Duty Manual to include procedures for false imprisonment, isolation, or mental abuse of elders. The Department treats those crimes as civil matters.

County Counsel informed the Board of Supervisors that false imprisonment and isolation of elders was lawful. Deputy District Attorney Cherie Bourlard wrote, “This is a civil issue. You would have to petition the probate court through civil avenues.”

Gisela remained imprisoned and isolated until ABC7 in San Francisco brought the story public (http://abclocal.go.com/kgo/story?id=8870462). Gisela’s situation is much improved due to the efforts of ABC7. However, DSS Director Lightbourne still holds the position that two years of false imprisonment and isolation did not violate Gisela’s rights.

Family and advocates cannot bring elder abuse litigation while Gisela lives. However, the statute of limitation tolls due to her lack of capacity. Standing to sue will attach with Gisela’s death.

San Joaquin County

Maria Jordanou was imprisoned and forcibly isolated at Sunny Place of Stockton for the last month of her life. The RCFE denied Maria’s:

· Right to leave the facility,

· Right to have visitors,

· Rights to have phone calls,

· Right to send and receive mail.

CCL determined the RCFE violated Maria’s right to visitation and was responsible for her wrongful death. CCL assessed the maximum civil penalty of $150 for the wrongful death. There was no penalty for false imprisonment and isolation. CCL did not refer the crimes for criminal prosecution.

This writer interviewed the director of the facility that was responsible for Maria’s death. The director stated that she did not appeal the $150 penalty because, “It was trivial.”

Maria’s family was emotionally and financially devastated by the abuse. They lacked the $500K necessary to bring elder abuse litigation after Maria’s death. Justice was not served.

Monterey County

Margarita Zelada is currently imprisoned and forcibly isolated at Senior Paradise in Del Rey Oaks. She has been held against her will behind locked doors since March 2013. The RCFE violates Margarita’s:

· Right to leave the facility,

· Right to have visitors,

· Rights to have phone calls,

· Right to send and receive mail.

Advocates filed complaints with CCL and the Long-Term Care Ombudsman in October 2013. We are unaware of any investigation or activity for the benefit of the victim.

Family and advocates cannot bring elder abuse litigation while Margarita lives. However, the statute of limitation tolls due to her lack of capacity. Standing to sue will attach with Margarita’s death.

Summary

Horrific abuse has occurred and continues to occur in RCFEs. CCL, the Long-term Care Ombudsman, and law enforcement are unwilling or unable to respond effectively. Civil courts provide no remedy for abuse during the life of the victim. Abuse continues with impunity until the victim dies. A family’s only recourse is to seek compensatory damages after the death of a loved one.

AB2171 will educate RCFEs, Community Care Licensing, Long-term Care Ombudsmen, and law enforcement on residents’ rights. With injunctive relief available and rights enforced by the responsible agencies, abuse and associated litigation will decrease. RCFE residents, their families, and tax payers will benefit from the passage of AB2171.

Please support AB 2171.

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