General Legal

 

Unpaid Cook and Janitor Care for Assisted Living Residents After State Abandoned Them

A feel good story for the holiday season…and a huge thanks to a couple of regular guys that became heroes.

After what I consider the total and complete incompetence of the California Department of Social Services, click here to read an article about how two employees of a care facility that was forced to be closed by the Department saved sixteen seriously disabled seniors from certain harm and neglect. These residents were supposed to be relocated after the ordered closure but due to an error by the Department were in essence left behind to fend for themselves.

Huff Post AL Article

Two employees (one a janitor and the other a cook) refused to abandon the residents, even though all other staff left, being concerned for the residents’ safety. They bathed the residents, doled out medications, fed them and made sure they were safe. The duo worked 24 hours a day and rotated shifts over a weekend. They were not paid for any of this work. After no help came and one resident’s condition deteriorated they called 911 and the authorities took action.

SB 1124 (Hernandez) Vetoed by the Governor

 

There was a pile of bills on Governor Brown’s desk this last week and many were signed that affected residential care facilities for the elderly.  However, one bill was being watched very carefully and it was unfortunately vetoed by the Governor.

SB 1124 (Hernandez) was a bill that would have offered relief for many Medi-Cal beneficiaries who worry about losing their family homes. While the short term savings – $15 million according to the Governor’s budget folks – amount to less than .05% of the overall Medi-Cal budget, the long term consequences of this veto include the destabilization of low income communities, who are the primary targets of Medi-Cal recovery. Forcing the children of Medi-Cal beneficiaries to sell the family home or to sign “voluntary liens” at annual 7% interest rates is simply bad public policy.

A Follow Up to Asset Protection of IRAs and Retirement Accounts

 

In August, I related that the US Supreme Court unanimously ruled in the case of Clark, et ux v. Rameker, Trustee, et al, that funds held in inherited IRAs are NOT “retirement funds” within the meaning of §522(b)(3)(C) and therefore are not protected in bankruptcy.  I thought that an additional comment was important to bring home the devastating effect this decision can have on a child, or other heir, that has or could have a judgment against him/her in the future.

Lets assume that a child has an inherited IRA.  In other words, the parent has passed away and the IRA is payable to the child.  Generally the child would have to withdraw the funds over a five-year period but often there are special provisions are added to trust documents to allow a “stretching” of the IRA over the life expectancy of the child.  The prior law protected the IRA funds from judgment creditors.

However, now the child’s interest in the IRA is attachable by the judgment creditor.  That means that the judgment creditor can take the assets of the IRA in satisfaction of the judgment.  However, withdrawal of IRA funds carries with it a tax consequence.  This is income to the child.  So not only is the IRA lost to the creditor, but the child has to pay income tax on the money that was attached!  And the money wasn’t even his to begin with…it was the parent’s IRA!

A standalone IRA trust has become a very popular estate planning tool to prevent this disastrous result.  Please contact me for further information if you have an interest in protecting your IRA from your children’s creditors.

The RCFE Reform Act of 2014

 

This year has been quite active with regulations affecting Residential Care Facilities for the Elderly.  The following is a list of California Bills that passed, failed, or are still pending (reprinted with permission of California Advocates for Nursing Home Reform):

AB 1523 (Atkins): RCFE Liability Insurance – Signed into law (Text of bill)
Effective July 1, 2015, each Residential Care Facility for the Elderly, as a condition of licensure, will be required to obtain and maintain liability insurance. Each facility must to maintain liability insurance in the amount of one million dollars per occurrence and three million in the annual aggregate to cover injury to resident or guests caused by the negligent.

AB 1554 (Skinner): Responding to Consumer Complaints – DEAD (Text of bill)
This bill would require the Department to start and complete complaint investigations in a timely manner, give complainants written notice of findings and provide complainants an opportunity to appeal.  StatusFailed in Senate Appropriations. Why?  Because the budget analysis included “estimated” and “unknown” ongoing costs of $250,000 to $500,000 to provide consumers with a reliable complaint investigation system.  What the analysis failed to take into consideration was the substantial ongoing costs of not responding to complaints in a timely manner: the costs related to serious bodily injury and abuse and neglect that sends residents to acute care hospitals and premature deaths.

AB 1571 (Eggman): Consumer Information System – DEAD (Text of bill)
This bill would require the Department of Social Services/Community Care Licensing to establish an on-line RCFE consumer information system to include specified updated and accurate information on every licensed RCFE in California This bill would also require complete disclosure of ownership and prior ownership of any type of facility, including nursing facilities, and would have established a rating system by 2019.  Failed in Senate Appropriations, Why?  Because the Administration did not want to spend the funds necessary to allow consumers to make informed choices about placement in RCFEs.

AB 1572 (Eggman): Resident & Family Councils:  Signed into law (Text of bill)
This bill would amend current laws to enhance the rights of resident councils and family
councils in RCFEs.

AB 1899 (Brown): Forfeiture of License – On Governor’s Desk (Text of bill)
This bill would prohibit a person whose license has been revoked or forfeited for abandonment of the facility permanently ineligible for reinstatement of a license.

AB 2044 (Rodriguez):  RCFE Staffing Requirements – On Governor’s Desk (Text of bill)
This bill would require an administrator or facility manager or designated substitute to be on premises 24/7, and for sufficient staff to be on premises 24/7 to carry out required responsibilities.  This bill would require at least one staff member with CPR and first aid training to be on premises at all times.  This bill would also require staff to be trained on building and fire safety and responding to emergencies.

AB 2171 (Wieckowski): Statutory Residents’ Bill of Rights – On Governor’s Desk (Text of bill)
This bill as amended would create a statutory, comprehensive bill of rights for residents of RCFEs. The part of the bill allowing residents to file a lawsuit to obtain an injunction to fight violations of their rights was stripped from the bill in an amendment just prior to its final floor votes. This means the important rights codified in the bill will have to be enforced by DSS, which traditionally has done a poor job of enforcing resident rights.

AB 2236 (Stone & Mainschein): Increased Penalties – On Governor’s Desk (Text of bill)
This bill would have increased civil penalties against RCFEs for violations of laws and regulations from the current maximum of $150. Hijacked by the legislature and by the Executive Branch, the bill now includes an enormously complicated civil penalty system for all categories of facilities; imposes a $10,000 fine against RCFEs for physical abuse or serious bodily harm; imposes a $15,000 fine for deaths due to violations; and creates four (4!!!) levels of appeal for RCFE providers to appeal the fines.

While CANHR supports the increase in penalties for physical abuse, serious bodily injury and deaths for all RCFEs, we have serious reservations about a provider appeal system that is guaranteed to impair the assessment of civil penalties and the collections of such penalties even if they are assessed.  Legislators have committed to work with CANHR in the coming session to address these concerns with the appeal process.

SB 895 (Corbett): On Governor’s Desk (Text of bill)
RCFE Suspension/Revocation of Licenses (formerly SB 894) (Text of bill) and Inspections/Evaluations of RCFEs (formerly SB 895)
These bills have been substantially amended and combined into one bill which variously requires facilities to correct deficiencies within 10 days unless otherwise specified and requires the Department to post online instructions on how to obtain inspection reports offline, design an informational poster on reporting complaints and emergencies for display in RCFEs and notify the State Ombudsman Office when it plans to issue a temporary suspension or revocation of a facility license.

SB 911 (Block): Training and qualifications of RCFE staff – On Governor’s Desk (Text of bill)
This bill would increase the qualifications and training requirements for RCFE administrators from 40 hours to 80 hours and require facilities who accept and retain residents with restricted or prohibited health conditions to employ trained medical personnel as appropriate.

SB 1153 (Leno): Ban on Admissions  – On Governor’s Desk (Text of bill)
This bill would create new penalties for non-compliance, including authorizing the Department of Social Services to suspend the admission of new residents in facilities where there is a substantial probability of harm.

SB 1382 (Block):  Increase in RCFE Fees – On Governor’s Desk (Text of bill)
This bill increases the initial and annual licensing fees for RCFEs for every sized facility and makes legislative findings that it is imperative that DSS be given adequate resources to support its mandate to provide consumer protection.

Conundrums of Legalized Marijuana

 

Legalizing recreational use of marijuana is taking hold and I suspect that many more states will follow the trend of Colorado and Washington.  (I do find it interesting that the two teams that played in the last Super Bowl were Denver and Seattle!)  Alaska and Oregon have similar laws pending.  This legalization as well as the 21 states allowing marijuana for medical use may now create a real test of sanity in the legal system.

The myriad legal issues are yet unresolved and many have not even been proffered.  So I pose the following legal questions for consideration:

  • Is it lawful to terminate an employee who has tested positive for marijuana?
  • Can an employer refuse to hire someone who tested positive for marijuana?
  • If so, isn’t this regulation of the employee’s off-duty activities?
  • Is the employee then still subject to the control of the employer and thus entitled to overtime?
  • Should marijuana use be treated the same as alcohol use?
  • If someone has a prescription for marijuana must the employer make a reasonable accommodation for the employee under the ADA?
  • Can the employer consider how the impairment affects the employee’s work?
  • Must the employer accept the liability exposure if the employee is in a position to cause injury to others due to the legal impairment?
  • Can the employer take into account the public’s acceptance of an employee that is “high” who is serving the customer?
  • Can the employer refuse to allow the employee to take his/her medication during work hours?

As you can see from this very short list, addressing the legal issues of marijuana use will be exciting to say the least.