Long-Term Care in California; Fertile Ground for Increased Litigation

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An alarming trend of elder abuse cases is causing uproar in California’s courts. A recent case in Sacramento exemplified how understaffing at a skilled nursing facility (SNF) led to a resident’s death. After a civil lawsuit against the SNF was settled, the California attorney general prosecuted the SNF nurse and director of nursing for elder abuse.

In California, the most common longterm care facilities are SNFs, which number around 1,500 and residential care facilities for the elderly (RCFE), which number over 8,000. SNF residents require the most care, and comprise the largest number of elder abuse victims.

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Inadequate Staffing Levels Leading to Litigation As SNFs are brought under the management of large corporations, there is increasing pressure to lower overhead. The result of understaffed facilities is that medically-vulnerable, and often incompetent residents, receive substandard care and suffer severe bodily harm, falls, and even premature death.

California’s Health and Safety code Section 1276.5 requires SNFs to provide a minimum of 3.2 direct care nursing staff hours per resident per day. Where there are perceived allegations of staffing violations, private individuals have filed civil lawsuits. In recent years, California courts witnessed jury verdicts in the hundreds of millions.

This trend of elder abuse violations at SNFs may also be a springboard for further litigation under the False Claims Act (FCA). When combining headlinecapturing cases involving elder abuse with the likelihood for large financial recoveries, the stage is set for FCA cases stemming from substandard quality of care.

The federal FCA is one of the government’s primary tools to combat fraud in Medicaid and Medicare. It forbids any person who: (1) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; (2) knowingly makes, uses or causes to be made or used, false record or statement to get false or fraudulent claims paid or approved by the government; (3) conspires to defraud the government by getting a false or fraudulent claim paid or approved by the government; or (4) knowingly makes, uses or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the government. (31 U.S.C. Sec. 3729.)

A violation may subject the wrongdoer to penalties of $5,000-10,000 plus treble damages sustained by the government. Typically, the government initiates criminal proceedings then continues with civil prosecution. Under the FCA, private persons can file actions for the government. While the action is under seal for 60 days, the government can choose to intervene by litigation or settlement, or decline and allow the private lawsuit to proceed. If the government intervenes (preferred), the private person still receives 15-25 percent of recoveries. If the government declines (most common), the private person receives 25-30 percent of any recovery. (31 U.S.C. Sec. 3730 et seq.)

The California FCA is modeled after the federal FCA. Moreover, in California, it is illegal to retaliate against employees who inform the government or law enforcement where those employees had reasonable cause to believe the information revealed a violation or noncompliance with a statute or regulation. (Labor Code Sec. 1102.5.) California also has statutes that protect health care workers and patients by prohibiting health care facilities from retaliating against them for complaints about premise safety conditions or quality of care. (Health and Safety Code Sec. 1278.5.)

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Since Medicare and Medicaid (Medi-Cal in California) reimburse SNFs for care provided to residents, any substandard care may lead to charges of presenting false claims to the government. We’ve seen cases brought against SNFs alleging FCA violations for two decades. Often, defendants settle and submit to government monitoring of the care and a comprehensive compliance program.

Elder Abuse Litigation Elders (65 years and older, in California) are protected by several laws aimed at preventing elder abuse. Under California’s Elder Abuse and Dependent Adult Civil Protection Act, elder abuse is defined as physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment resulting in physical harm or mental suffering. It also includes the “deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (Welfare and Institutions Code Sec. 15610.07.)

Elders are also safeguarded by the California criminal law that affords this vulnerable population protection because they are often confused, on medication, or mentally or physically impaired. Consequently, they are unable to protect themselves, report criminal conduct, or testify in court. Therefore, the California Penal Code defines elder abuse as taking place when a person reasonably knows that an individual is an elder and willfully causes or allows another to cause an elder to suffer unjustifiable physical or mental pain. Endangering of an elder’s health is punishable by imprisonment or by $6,000 fine, or both. (Penal Code Sec. 368.) Stephen Danz

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