June 2019 Update
A new section has been added on ethical considerations for the attorney whose client has diminished capacity. See §1.7.
In 2016 the Centers for Medicare and Medicaid Services (CMS) adopted a broad set of amendments to federal nursing home regulations (42 CFR 483.1–483.95) required for all facilities participating in the Medicare or Medicaid (Medi-Cal) programs. Phase 1 went into effect in 2016 but enforcement of certain Phase 2 rules was suspended for 18 months by CMS on November 24, 2017, and new rules were proposed in February 2019. See §2.24.
The courts continue to test the limits of mandatory arbitration for wrongful death claims involving allegations of elder abuse based on professional negligence as well as elder abuse. In Avila v Southern Cal. Specialty Care, Inc. (2018) 20 CA5th 835, the court held that a long-term acute care hospital’s arbitration agreement did not bind a decedent’s heirs when the primary basis for their claim was under the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) (Welf & I C §15657), even though they could have also pleaded a malpractice claim. In Williams v Atria Las Posas (2018) 24 CA5th 1048, the court of appeal held that a spouse suing for loss of consortium was not bound by a residential care facility’s arbitration agreement. See §§2.21, 3.64.
Nursing home arbitration agreements were prohibited by 42 CFR 483.70(n)(1) but this rule was suspended and enforcement of it was enjoined by American Health Care Ass’n v Burwell (ND Miss 2016) 217 F Supp 3d 921. The rule is likely to be rescinded and replaced. See §§2.21, 2.24.
In Cochrum v Costa Victoria Healthcare, LLC (2018) 25 CA5th 1034, the court of appeal held that an unlicensed management company was not protected by MICRA when found negligent under a theory of vicarious liability for the actions of a nursing home administrator, even though the nursing facility itself was licensed. See §3.43.
The regulations governing licensed nursing facilities were updated to conform to the statutory minimum staffing standard (see Welf & I C §14110.7; 22) of 3.5 hours of care per patient per day. 22 Cal Code Regs §72329.2. See §§2.27, 3.88.
In Cochrum v Costa Victoria Healthcare, LLC (2018) 25 CA5th 1034, the court of appeal held that failure to follow a care plan is not enough of a denial of care to amount to elder abuse. See §2.70B.
In Ramos v Superior Court (2018) 28 CA5th 1042, an arbitration case that arose in the context of a law firm’s partnership agreement, the court of appeal held that Armendariz was not overruled by AT&T v Concepcion and was therefore applicable outside the employment context. The court went on to find an arbitration clause unconscionable under Armendariz because it required plaintiff to pay fees and limited relief available. See §3.65.
As of June 1, 2018, skilled nursing facilities (SNFs) no longer self-report their staffing levels to the Centers for Medicare & Medicaid Services (CMS) on the CMS-671 Form. Instead CMS now uses electronically reported payroll data, known as Payroll Based Journal or PBJ, and the PBJ data for the period a resident was at the SNF has therefore become a critical category of discovery for elder law advocates. See §3.88.
Effective October 1, 2018, new regulations were issued to implement Health & S C §§1569.261–1569.269, California’s statutory “bill of rights” governing residential care facilities for the elderly (RCFEs). 22 Cal Code Regs §87468.1 lists “Personal Rights of Residents in All Facilities” and §87468.2 lists “Additional Personal Rights of Residents in Privately Operated Facilities,” with the rights in privately operated facilities being more expansive than the rights afforded residents of publicly operated facilities. Updates were made throughout chap 4 to reflect these changes.
The California Advocates for Nursing Home Reform (CANHR) reported in November 2018 that complaints about residential care facilities filed with the state have risen 45 percent since 2012. See §4.1.
The Assisted Living Waiver (ALW) program, which authorizes certain Medi-Cal and Medicaid coverage of care in residential care facilities, even though RCFEs do not provide “medical care,” was extended by California Department of Health Care Services in select counties through February 28, 2024. See §4.33.
In July 2018 the California Department of Social Services issued a Provider Information Notice (PIN) advising that residents of RCFEs have the right to privacy and confidentiality in all aspects of care and services, and that posting residents’ images on social media without their consent may constitute an invasion of privacy and elder abuse. See §4.35.
The Community Care Licensing Division (CCLD) Evaluator Manual was updated to incorporate new content regarding the use of medical marijuana in RCFEs. See §4.49.
In Kerley v Weber (2018) 27 CA5th 1187, the court of appeal held that Prob C §859, which authorizes double damages in an action brought by a conservator against a person who has take property through financial elder abuse, does not require a showing of bad faith. See §6.16.
In Cochrum v Costa Victoria Healthcare, LLC (2018) 25 CA5th 1034, the court of appeal held that, although understaffing can amount to recklessness under the right circumstances (citing Fenimore v Regents of Univ. of Cal. (2016) 245 CA4th 1339), the plaintiff had not shown substantial evidence that the understaffing had been “sufficiently egregious” to amount to recklessness. See §6A.6.
The California Supreme Court has granted review in Barefoot v Jennings (review granted Dec. 12, 2018, S251574; superseded opinion at 27 CA5th 1) to consider whether a former beneficiary of a trust has standing to challenge the validity of trust amendments that disinherited the beneficiary. The court of appeal held the former beneficiary had no standing because she was not a beneficiary of the challenged amendments, only of the prior, superseded amendments. See §7.1E.
In Orange Catholic Found. v Arvizu (2018) 28 CA5th 283, the court of appeal held that under Prob C §16440(b), if a trustee has acted reasonably and in good faith under the circumstances as known to the trustee, the court has wide latitude to excuse the trustee in whole or in part from liability if it would be equitable to do so. See §7.1B.
In Darrin v Miller (2019) 32 CA5th 450, the court of appeal held that standing to seek an elder abuse restraining order based on “other treatment with resulting physical harm or pain or mental suffering” (see Welf & I C §15610.07(a)(1)) does not require a special relationship, such as a caretaking or custodial relationship, between the elder and the alleged abuser. See §8.17.
In Gordon B. v Gomez (2018) 22 CA5th 92, the court of appeal relied on cases governing renewal of a restraining order under the Domestic Violence Protection Act (DVPA) to address the showing required to renew an elder abuse restraining order under Welf & I C §15657.03(i)(1). The court held that a protected party seeking to renew an elder abuse restraining order is not required to present evidence of further abuse that violated the original restraining order. See §8.48B.
In Melissa G. v Raymond M. (2018) 27 CA5th 360, the court of appeal held that, when parties seek a mutual domestic violence restraining order, Fam C §6305 requires the trial court to make express factual findings that both parties acted as a primary aggressor, whether the allegations of abuse in the two requests arise from the same or separate incidents. See §8.67.
New Cal Rules of Ct 5.382 sets out the procedure for making a minor’s information confidential in domestic violence protective order proceedings under Fam C §6301.5. The Judicial Council has also published new forms for this purpose. See §8.70.
In Marriage of Davila and Mejia (2018) 29 CA5th 220, the court of appeal held that a person petitioning for a domestic violence restraining order may testify at the hearing about specific incidents of abuse that were not described in the request for the restraining order, so long as the respondent was placed on notice of the general allegations of the abuse. See §8.81.
Family Code §6380(j) was enacted to address the practice, common in many courts, of parties stipulating to, and courts issuing, “non-CLETS restraining orders,” i.e., domestic violence protective orders that are not entered into the California Law Enforcement Telecommunications System (CLETS). The statute now clarifies, as a statement of existing law, that courts may not issue non-CLETS restraining orders under the Domestic Violence Prevention Act (DVPA). This prohibition also applies to restraining orders issued under Welf & I C §15657.03 (elder abuse) or CCP §527.6 (civil harassment). See §8.84B.
In Rybolt v Riley (2018) 20 CA5th 864, the court of appeal held that a showing of fear of physical abuse is not necessary to renew a domestic violence restraining order. See §8.86A.