SENIOR CITIZENS SQUEEZED BY NURSING HOME PROFITABILITY AND CALIFORNIA LAW REQUIRING MORE CARE FOR ELDERLY

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There’s no question it takes a special kind of person to provide compassionate care for the elderly. Bathing, feeding, medicating, attending to other daily needs of patients is a lot to ask for from the me now generation. Care giving for the elderly takes a lot of energy and thoughtful attention. There is tremendous value for this kind of work for the elderly in today’s society. But it doesn’t pay very well, which begs the question: Where does the position of caregiver for the elderly fit in the overall structure of today’s generation of aging baby boomers and broken millennials?

We’re not spending a lot to pay for difficult work like nursing care, that much has been established beyond doubt. Stressful work and low wages is a difficult combination to overcome during a questionably down-turning economy, but that, according to one group, is what we’re facing in our fight to protect the rights of our growing geriatric population.

They say our elderly citizens who require nursing care need qualified caretakers. Yet, it takes money to find someone who knows how to care for seniors and to be able to pay them, and the entire industry is scrambling for the almighty dollar that it takes to do so.

Latest available state data indicates CNAs are undervalued in the industry. Certified nursing assistants in California made an average of $13.96 per hour in 2016. That’s just a few dollars above the minimum wage and less than what some retailers pay sales clerks, who don’t need to spend the money or time getting licensed to work.

In a July 13, 2018 article for the Los Angeles Times, Ethan Millman describes how elderly healthcare matters in California have become hostage to this nursing home drama which is attributed to new state legislation that went into effect in July that puts even more “pressure on the state’s 1,000-plus nursing homes”, Millman writes, “which some in the industry say could be forced to turn away or even discharge patients as a result.”

ARE YOU KIDDING ME? OR IS THIS A BLUFF BY THOSE WHO RUN PRIVATE NURSING HOMES?

The new law tightened staffing requirements for direct caregivers and added new ones specifically for certified nursing assistants. Millman cites the new legislation as being championed by organized labor and patient advocates.

Under that scenario, we’d have the union representing nursing assistants, which pushed for the law, acknowledging that nursing homes face a challenge, but saying there is an overriding health-and-safety issue behind the new legislation. “There must be enough direct care staff to meet the quality care needs of nursing home residents and ensure a healthy workload for every caregiver,” Millman quotes an unnamed SEIU representative as saying.

The problem with this angle of course is that it places undue emphasis on the value of a CNA in this particular equation. The beginning of the statement is true — “There must be enough direct care staff to meet the quality care needs of nursing home residents,” period. Nobody of sane mind could conclude otherwise. We need better care for our seniors, and we must figure out how to pay for it. Whether every caregiver has a healthy workload or not is up to the caregiver’s skill set versus the demand for such a skill set in the everyday industry marketplace, and it’s a problem for the CNAs union to deal with, not state health care legislators. This aspect has nothing to do with the well being of the nursing home resident, whose need for quality care giving is being debased in the debate.

QUALITY OF CARE EQUALS QUALITY OF LIFE

As the new legislation reads, effective July 1, 2018, California Health and Safety Code section 1276.65 requires skilled nursing facilities, “except those skilled nursing facilities that are a distinct part of a general acute care facility or a state-owned hospital or developmental center,” to provide 3.5 hours of direct patient care each day, which is up from 3.2 hours. That’s 3.5 hours per day that the nursing facility caregiver has to directly care for a patient.

But what stresses out nursing home operators the most, and what seems to be the central theme of Millman’s writing, is California law’s first-ever requirement that “skilled nursing facilities shall have a minimum of 2.4 hours per patient day for certified nurse assistants.”

That means 2.4 hours of the 3.5 direct care hours per patient day must be filled by CNAs. And so the L.A. Times article is framed front and center around the nursing home gripe. Certified nursing assistants cost money. They have to be trained. Profits are shrinking. The big bad wolf is blowing down our door. What the article doesn’t tell us is that monies not spent toward better patient care get deposited into shareholders’ bank accounts, and that’s really the rub of this whole picture.

PRICE INFLATION HAS NOT HIT THE NURSING INDUSTRY

The Los Angeles Times article has framed this issue as a battle between the government enacting the law to provide more skilled health care to nursing home patients versus the burden it places on nursing homes to provide CNAs to fill the required hours.

The article portrays the nursing home industry as being in a quandary with the new legislation because, industry consensus says, it is difficult to get qualified CNAs to begin with, and now the requirement of 2.4 hours by a CNA is too tremendous a burden on the industry, especially in less populated rural counties. They say half of California’s counties are designated by the Public Health Department as having a CNA worker shortage.

The nursing home industry, through the Los Angeles Times article, sets up the CNAs as the tipping point of much broader issues. These are the men and women who work the front lines in home nursing, dealing hands-on with our wheelchair-bound seniors, those we pay privately and with tax dollars to give compassionate care to our elderly parents, friends, and relatives, yet price inflation has not hit those employed by the nursing home industry the way it has the rest of the economy, and we’re not getting our money’s worth. And who’s going to pay for it most?

QUALIFIED CNAS ARE SCARCE

When one studies what’s plaguing the home health care industry the areas for concern become obvious. Low wages and a high-stress working environment are not an attractive combination to offer a hungry, caring job seeker. When you add the prospective CNAs being required to take 100 hours of clinical training and 60 hours of classroom instruction, people are going to be looking for other types of employment.

They’re not going to take the time and expense to receive training through what amounts to be about 700 state-wide programs, many that are offered at community colleges, adult education programs, and for-profit schools, with most charging several hundred dollars to complete. Most people don’t have several hundred dollars or the time and inclination to make the effort to become a CNA. They can’t afford to.

Then you add the fact that nursing homes have just plain eliminated free in-house training to recruit workers basically because profits are down. No one has the money to pay anybody for anything. The nursing home industry cites tighter budgets. Those who want to become CNAs don’t have the money to go through the education and training to become CNAs. And senior citizens, their families, and the government don’t have enough money to be able to afford nursing home health care for seniors to enable them to spend the last months, weeks, or days of their lives in a compassionate and dignified manner.

THE NURSING HOME INDUSTRY CITES TIGHTER BUDGETS, BUT NEEDS TO LOOSEN PURSE STRINGS

This is the crux of the issue centering the problems cited by Millman. Nursing homes are owned by corporations owned by their shareholders. The list of corporations owning care facilities across America is short and those that do are locked in a dog-eat-dog battle to the death with each other and converging industries to suck in what dwindling profit margins there are left. Mergers and acquisitions are rampant in all areas of health care.

Who has time or resources for patients? The nursing home industry is making across the board cuts in staffing, training, and compassionate care for their senior residents. This is happening across the country as evidence mounts that those who own nursing homes should be loosening their purse strings and offering training and better care at their rural facilities, because their senior residents are suffering at an alarming rate as a direct result of their industry-wide, self-imposed budget cuts.

UNCLE SAM NEEDS TO LOOSEN HIS PURSESTRINGS AND COVER THE COSTS OF HEALTHY HEALTH CARE

Nursing homes come in all shapes and sizes. Some are more upscale and receive private pay for income, with much of the rest coming from Medicare.

In California, the majority of nursing homes draw more than half their revenue from Medi-Cal, the state program that provides health services to low-income residents, which the industry complains doesn’t cover the cost of care.

This only exacerbates the shameful problem that pay isn’t high enough across the industry to provide for adequate and dignified care giving for our ailing senior citizens. Both private nursing home providers and government health agencies must be willing to budget more money into healthy health and nursing care for seniors. Private care facilities, many of which are run through giant real estate trusts or conglomerates, must find a way to operate their holdings to actually benefit those who seek their services. A new model in the way of doing business industry wide is mandatory, or they are simply going to go out of business. Nobody can afford their poor service.

CONCLUSION: CALIFORNIA SENIORS ARE TAKING A BRUTAL HIT

The proof is in the pudding. Just ask the California state auditor who singled out the California Department of Public Health for scathing criticism regarding skilled nursing facilities and their lack of performance of necessary “inspections or issued timely citations for substandard care.” They cite absent effective oversight and substandard quality of care, a deadly combination. This apparently means the reason the nursing home industry continues to fail our seniors is because the government isn’t doing its job by monitoring them adequately.

The California governmental agency responsible for nursing home operators rightfully took a hit for having allowed poor care to proliferate at nursing homes around the state, with the number of incidents that could cause serious injury having increased significantly in recent years. The California state audit concludes that the California Department of Public Health’s failures in oversight increase the risk that nursing facilities may not provide adequate care to some of the state’s most vulnerable residents. Safety and accountability problems at nursing homes across the United States are rampant, says the California State Auditor.

Federal inspection reports show that infection control is routinely ignored in nursing homes across America. To exacerbate matters, the Trump Administration has scaled back the use of penalties to punish nursing homes that put residents at risk of injury. This compounds the issue cited by the audit where in a vast majority of cases government investigators found problems that could severely harm patients, the public health department failed to cite or fine the facility involved. Who’s watching out for the seniors?

It is disturbingly clear that the public health department in California is not holding nursing homes accountable for what amounts to be crimes against the elderly. Neglect can be criminal. The government needs to regulate this industry. It also needs to make sure there are enough beds in nursing homes that can be attended to for 2.4 hours per patient day by a registered CNA, and 3.5 total hours of direct skilled attention each and every day. Government health agencies and the nursing and home care industry are going to have to be brought together in the most unlikely of marriages, or a large segment of our growing numbers of senior citizens is going to dwindle and suffer at a much greater rate than is necessary.

 

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5 NEW LAWS AFFECTING FAMILY LAW IN CALIFORNIA

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The law is always changing.  It is an ever-growing morass of legalese and judicial compromise, morphing and oozing and touching every single person in its path.  Politicians love making new laws that deeply impact the lives of families on an everyday basis.  And California always seems to be in the lead in this way, always looking for new ways or angles that might legally favor one special interest over another.

Unfortunately, family law poses no exception to the rule of new legislation.  Several important new laws have been enacted in California over the past year that affect the players in the family law arena in major ways.

Five (5) of the more significant pieces of legislative development are:

1)      (AB 1349)  Legislation that amends Family Code §§7573, 7576, 7612, and 7613 to revise certain provisions regarding the effect of a voluntary declaration of paternity, particularly if a conflicting parentage presumption exists; the bill also permits a sperm donor to be treated as the natural father of a child under specified circumstances;

2)      (AB 458)  Legislation amending Probate Code §1514 and adding Probate Code §§2204-2205 to clarify a parent’s ability to petition for guardianship of his or her child, and establishes requirements for transferring a proceeding to another court in circumstances in which a proceeding that concerns custody or visitation of a minor is pending in one or more counties when a guardianship petition is filed;

3)      (SB 651)  Legislation amending Family Code §§ 297 and 2320, and adding Family Code §§ 297.1 and 298.7 to remove the requirement that domestic partners have a common residence to register; permits establishment of a confidential domestic partnership; and permits same-sex spouses who married in California to petition for dissolution in California without the parties meeting regular residency requirements if neither spouse resides in a jurisdiction that will dissolve the marriage;

4)      (AB 1067)  Legislation amending Code of Civil Procedure §1008 to provide that an order denying a motion for reconsideration is not separately appealable, but if the order that was the subject of the reconsideration motion is appealable, the denial of that motion is reviewable as part of an appeal from that order;

5)      (AB 454)  Legislation amending Code of Civil Procedure §§527.6, 527.8, and 527.85, Family Code §6345, and Welfare & Institutions Code §§213.5 and 15657.03 to require specified notice to a protected party of a proceeding to modify or terminate a protective order before its expiration when that proceeding is brought by someone other than the protected party.

FAMILY LAW COURTS CLOSING ALL OVER CALIFORNIA

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Completing a divorce has never been tougher in California.  It’s not because the laws have changed, or other legal obstacles or impediments have sprung up to discourage married couples from parting their ways.  It’s simply about money and the fact California, like every other state in our union, is experiencing a budget crisis.

The latest casualty to divorce court is the Los Angeles Superior Court which announced last week that it will reduce its staff by nearly 350 workers, close 56 courtrooms, and reduce its use of court reporters.  It is the most significant reduction of services in the history of the Los Angeles court system.

One of the major problems is that while courts are reducing their staffs, case filings continue to increase.  This will create incredible pressures on the courts, family law and otherwise, to keep up with their workload

The judicial branch’s budget, which represents nearly three (3) percent of California’s budget, has seen nearly a thirty (30) percent overall reduction since 2008.  The $350 billion budget reduction, passed by the California Legislature and approved by Gov. Jerry Brown last year, is the deepest reduction in state court history.

In Los Angeles, of the fifty-six (56) courtrooms that will be closed, three deal with family law.  As is the case here in Ventura, the caseloads of those courtrooms will be distributed among the remaining courtrooms.  Self-help and family law assistance services also have been reduced or closed in courts throughout the state, which can only be bad news for those trying to move forward in their lives through divorce court.

DURATION OF DUTY OF CHILD SUPPORT IN CALIFORNIA

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Another issue that troubles many parents when they get caught up in a child support battle is how long their duty to support lasts.  California Family Code § 3901covers the duration of duty for support.

Section 3901 (a) states:  “The duty of support imposed by Section 3900 continues as to an unmarried child who has attained the age of 18 years, is a full-time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first.”  In In re Marriage of Hubner, 94 Cal.App.4th 175, 114 Cal.Rptr.2d 646 (2001), the court determined that a child is not required to graduate high school as soon as possible or required to take only those courses necessary to graduate from high school in order to maintain eligibility for child support.

BOTH PARENTS DUTY TO SUPPORT THEIR CHILDREN

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When it comes to child support in California, there’s still a lot of confusion as to which parent is legally responsible for providing support to their minor children.  The answer is:  you both are.

California Family Code § 3900 covers the duty of parents to support their minor children.  It reads in pertinent part:  “…the father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the child’s circumstances.”

That means both parents bear the responsibility to take care of their kids.  Case law has gone so far as to rule that even though the child’s minor father was the victim of statutory rape, the father is still legally responsible for the child’s support.  County of San Luis Obispo v. Nathaniel J., 50 Cal.App.4th 842, 57 Cal.Rptr.2d 843 (1996.

And even though a man is not a child’s biological parent, he may be required to support the child under the doctrine of parentage by estoppel, which requires:  (1) that the child have accepted a putative father’s express or implied representation that he is the child’s father and (2) that the representation continue for a sufficient time to establish a parent-child relationship and frustrate the opportunity of discovering the child’s biological father.  Clevenger v. Clevenger, 189 Cal.App.2d 658, 11 Cal.Rptr.2d 861 (2003). Although all the parentage-by-estoppel cases have involved men, the doctrine would seem equally applicable to women.

TRACING HIDDEN ASSETS: BREACH OF DUTY

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There are times when a spouse or partner hides assets from the other.  This may be done intentionally or absentmindedly, by failing to fully disclose all assets, as required by California family law.  At other times, a party to a divorce might commingle their separate property assets, which makes it difficult to determine exactly what belongs to which party.

If one spouse intentionally hides assets from the other, a CPA or forensic accountant may be brought in to help trace these carefully hidden assets.  It can be a difficult process to separate true ownership when separate property, such as stock portfolios or real property, has been commingled.

Tracing is the term used for tracking the source of funds used for the acquisition of any asset.  In California, tracing rules have been established entirely by case law.  There is no California tracing statute.  The present law on tracing separate and community assets developed prior to the enactment of the current fiduciary duty statutes.

If a party can prove a breach of duty by the other, it may provide a good defense to a property claim based on tracing.  Due to the fiduciary duty requirements placed on spouses, courts may impose upon a party the additional burden of demonstrating that in tracing separate funds, he or she did not usurp a community opportunity.

There are three requirements to a successful tracing of separate contributions to assets presumed to be community property:

  • Proof that separate property funds were available at the time of the
    acquisition of the property;
  • Proof that the separate funds were used to make the contribution or
    acquisition;
  • Proof that the party claiming a separate interest used the separate funds with the intent of acquiring a separate property asset.

CALCULATING CHILD SUPPORT IN CALIFORNIA

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A marital dissolution can be one of the most traumatic experiences divorcing parties can face in life. The very foundation they had built over years of hard work and cooperation has now begun to crumble. Separation and anxiety have replaced togetherness. Property and support issues are now the center of discussion, replacing grocery lists and family outings as topics of integral familial importance.

When dealing with support issues, a newly single mother or father may be forced, for the first time, to deal with the issue of which parent will pay the other for the support of their child(ren). In California, child support is calculated using a formula that takes into account many relevant factors, including the parents’ incomes. In determining a parent’s available income for child support calculations, the court will utilize California Family Code § 4058, and its definition of gross income.

Gross income of each parent is defined as the income that includes, but is not limited to:

  • commissions
  • salaries
  • royalties
  • wages
  • bonuses
  • rents
  • dividends
  • pensions
  • interest
  • trust income
  • annuities
  • workers compensation benefits
  • unemployment insurance benefits
  • disability insurance benefits
  • social security benefits, and
  • spousal support actually received from a person not a party to the proceeding to establish a child support order.

According to forensic accounting expert, Brian M. Boone, there are other sources of income that every California court should consider for child support purposes as well. They include: income from the proprietorship of a business (such as gross receipts from the business reduced by expenditures required for the operation of the business); employee or self employment benefits (at the discretion of the court), and earning capacity (imputation of income that is arguably available that is not being currently realized, at the discretion of the court).

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