Newsletter July 2009

We hope you found our last newsletter of interest. I followed up with the daughter who had trouble enforcing the health care directive in the assisted living facility. She had finally stopped the facility from giving her mom the medication, but only by standing beside her mom when the medication was being offered, and asking her mom (with dementia)to refuse!. She was working with the ombudsman, at our suggestion. It was still a problem. In my opinion, the facility was out of line in refusing to honor the health care directive.

For this month, I wanted to share with you the result of arecent court case about resident’s rights. This involved a 90 year old in a dispute at her facility. How did this get to be a lawsuit?

Carolyn L. Rosenblatt, R.N., B.S.N. Attorney at Law

A recent court case in California may make you think twice before signing that contract at the assisted living community which also provides a unit with higher levels of care. A federal court
recently ruled that a continuing care retirement community (CCRC) can force a resident to move from an independent apartment to another level of care.

Sally Herriot, age 90 lives at a Palo Alto facility which provides independent living, assisted living, and skilled nursing. She lived independently in a spacious apartment with her husband.
After he died, she continued living in the same apartment until returning from a hospital stay. At that time, the facility decided that she had to move to skilled care. Ms. Herriot, her doctor, and her family all objected to this. She had around the clock private aides to help with her needs and she wanted to stay in her larger, more comfortable apartment where she was accustomed to living.

She ended up getting an attorney a filing a lawsuit against the facility. She argued that she was being discriminated against based on her disabilities, because the facility refused to accommodate her having her own aides take care of her. The court ruled that the facility had a legal duty to provide nursing care, and that they could not delegate away the duty to Ms. Herriot’s aides. Ms. Herriot was forced to go where the facility decided she had to be. The case is Herriot v. House (U.S. Dist. Ct., N.D. Cal., No.C 06-6323JF (RS), Jan. 29, 2009).

What does this mean to residents of this kind of continuing care facility? It means that the individual does not have the right to choose to stay in independent or assisted living if the facility decides otherwise. It does not matter what the resident’s doctor thinks. It does not matter if the resident can afford to pay for her own, personal aides. It is totally within the rights of the facility to put the resident where the facility chooses to put her. The irony of this story is that the facility chose to move Mrs. Herriot because they didn’t want her to get hurt in her own apartment. They might have been afraid of getting sued.

Could this mess have been avoided? Perhaps. We do not know if anyone ever tried to mediate the dispute, but we suggest that when things escalate in a disagreement, that mediation should always be suggested. Learn more about mediating of elder disputes at eldermediationblog.com or www.agingparents.com/blog

That’s it for now. If you have any further questions, comments, or feedback, I would like to hear from you. Just hit reply and send me an email.

Thanks for reading,
Dr. Mikol Davis
Carolyn L. Rosenblatt, R.N, B.S.N, Attorney at Law
AgingParents.com

To learn more about how to advocate for aging loved ones, see The Boomer’s Guide to Aging Parents, Vol. 3 How to Understand the Pros and Cons of Assisted Living –> HERE <–

“The Boomer’s Guide to Aging Parents is written from a legal and a relational perspective. In contrast to other books on caring for elderly parents, it provides legal and technical details of situations encountered by caring for parents”. -Lisa C. DeLuca, Suite101.com

“I am always blown away with the way you can cut things to the chase and see what is really going on. It is very hard for me to focus and not get caught up in all the details and miss seeing the clear picture.” –Mary C. (Recent Client)

“My 80 year old mother has early stage Alzheimer’s Disease, yet STILL has very clear ideas of her own! What a pleasure to work with caring professionals willing to make the effort to really listen to her, to her concerns and wishes – as well as advising me in my role as caretaker, healthcare proxy and power of attorney. With the huge workload and responsibilities of care-taking, (plus pressures from both immediate and extended family,) I can’t imagine how we’d manage without the ongoing support and guidance my mother and I receive from Ms. Rosenblatt and Dr. Davis. Thank you, both.” –Suzanne C. (Recent Client)

“I talked to seven different lawyers in trying to figure out what kind of help to get for my father. No one seemed to be able to really tell me what I needed. Carolyn, you were the most practical
of anyone. You were amazingly helpful.” –Jane H., MD

To learn more about how to advocate for aging loved ones, see The Boomer’s Guide to Aging Parents, Vol. 3 How to Understand the Pros and Cons of Assisted Living –> HERE <–

AgingParents.com is a consulting, educational and dispute resolution service. We focus on the families of aging parents and other relatives, to assist them with the effort to keep their loved ones safe, to address the concerns of caregivers, and to enhance the quality of life for elders.

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