The Gary Galiher Law Hour — Episode 1: Nice to Get to Know You

Welcome to the very first episode of The Gary Galiher Law Hour! This podcast is for kama ‘aina who are looking for smart, helpful talk about the most important issues in Hawai‘i.

Gary and his firm have represented thousands of Hawai‘i workers and families during more than 35 years’ practice throughout the islands. Whether helping countless workers exposed to asbestos unknowingly in their jobs, filing suit against gas companies for unfair local pricing—the Galiher Law firm helps fight for consumer advocacy and play fair for the people of Hawai‘i, no kou pono: “on your behalf.”

Now Gary and his team are here to take the mystery out of what they do, and answer your legal questions. The podcast is an educational interview-style podcast that provides actionable tips explained through engaging stories. Unlike any other law podcast, this podcast will bring depth and an element of human interest and humor to popular legal topics found on the Galiher Law website.

This is our premiere episode, and as our host Mike Buck puts it, “a how you doin’ day and a nice to get to know you day.” In this episode, we introduce superstar attorney and our founding partner, Gary Galiher, and it’s no exaggeration to say he has a fascinating biography. After touching on Gary’s history in Hawai‘i, Gary and Mike discuss the tobacco settlement won on behalf of the taxpayers of Hawai‘i in the state’s lawsuit against big tobacco.

Dementia & Memory Care Units

Seniors with dementia are at the greatest risk of elder abuse. Approximately 5.1 million American elders over 65 suffer from some form of dementia. Close to half of all seniors over 85 have Alzheimer’s disease or another kind of dementia. These numbers are expected to increase in prevalence. One 2009 study revealed that close to 50% of people with dementia experience some kind of abuse. A 2010 study found that 47% of participants with dementia had been mistreated by their caregivers.

It has become a popular trend for assisted living facilities and other long term facilities to market “memory care units,” implying that they are specialized in dementia care. Unfortunately, some facilities fail to offer anything specialized or even different in the way they care for their dementia residents.

The Alzheimer’s Association supports the enactment of state legislation regarding the disclosure of claims made by facilities relative to their Alzheimer’s special care units. The term Special Care Units (“SCU”) is synonymous with and/or encompasses “Memory Care” and other terms specifically targeted towards patients with dementia. The Association drafted model legislation, and today at least 44 states have specific regulatory provisions for facilities serving people with Alzheimer’s disease, up from 36 states in 2002, and 28 in 2000. Hawaiʻi is one of only a handful of remaining states that have not enacted legislation such as this. The Alzheimer’s Association has published a number of invaluable materials including “Dementia Care Practice Recommendation for Assisted Living Residences and Nursing Homes [PDF].”

Senior Care Options in Hawai‘i

HAWAI‘I’S AGING POPULATION has more options than ever before when it comes to their care. There are several different types of senior care homes in Hawaiʻi, each offering their own unique level of care and capacity. It is critical to know what level of care and what type of services to expect before placing a loved one in any of these facilities.
Assisted living facilities (“ALF”) typically offer a level of care and attention that is somewhere between independent living and skilled nursing. These facilities are often private pay, although some may accept Medicaid. Many times consumers are misled to think that their loved one will receive 24-hour skilled nursing in these facilities, when in reality these facilities’ marketing materials rarely add up to the true services being rendered. Assisted living facilities are not appropriate for one who requires skilled nursing, and are “designed to respond to individual needs, to promote choice, responsibility, independence, privacy, dignity, and individuality.”

“Our society somehow must rise to the challenge of ensuring that all of our elders are treated with care and dignity, for the test of a civilization is in the way that it treats its most helpless members.” —Ilana K. Waxman, Managing Partner at Galiher DeRobertis & Waxman

The most popular types of senior care homes in Hawaiʻi are:

  • Assisted Living Facilities
  • Adult Residential Care Homes
  • Expanded Adult Residential Care Homes
  • Community Care Foster Homes
  • Skilled Nursing Facilities
  • Current Regulations Provide Inadequate Protection

Assisted living facilities are very loosely regulated in Hawaiʻi per Hawaiʻi Administrative Rules Title 11 Chapter 90. There are currently 13 assisted living facilities licensed in Hawaiʻi, housing approximately 2,250 residents. The Plaza is the only assisted living facility with more than one location in Hawaiʻi. Several more are either under construction or in the planning phase, so there could very well be 20 assisted living facilities by the end of the decade.

Adult Residential Care Homes (“ARCH”) are very similar to assisted living facilities in terms of standard of care. These homes are for elders “who require at least minimal assistance in the activities of daily living, personal care services, protection, and health care services, but who do not need the professional health services provided in an intermediate, skilled nursing, or acute care facility.”

Senior Care a Gigantic Industry in Hawaiʻi

There are currently approximately 500 licensed ARCH’s in Hawaiʻi (included Expanded ARCH’s) housing approximately 3,500 residents. Type I ARCH’s can house up to five residents. Type II ARCH’s allow six or more residents, but have more stringent requires regarding type of resident. The main difference between an ARCH and an ALF is that an ARCH is typically much smaller and more of a residential (as opposed to commercial) experience. The qualifications needed to obtain an ARCH license in Hawaiʻi are stunningly minimal – one needs to simply be a certified nurse aide over the age of 21 and take a few courses at Kapiolani Community College: http://health.hawaii.gov/ohca/files/2013/06/Min-Qualif-for-ARCH.pdf

Expanded Adult Residential Care Homes have a higher standard of care than traditional ARCH’s in that they are appropriate for adults who require a nursing home level of care. The term “expanded” refers to the standard of care and types of residents the facility can take on. These, too, are broken down into Type I and Type II.

Knowing the Options Could Help Make Better Decisions About Senior Care

Community Care Foster Homes are extremely similar to Expanded ARCH’s and also offer nursing home level of care. The main difference is that under § 321-481 these facilities cannot house more than two adults at any time, and at least one of them must be a Medicaid recipient. There are currently approximately 400 community care foster homes in Hawaiʻi housing approximately 1,000 residents.
Skilled nursing facilities (“SNF”) offer the highest level of care a senior can receive in Hawaiʻi. Per Title 11 Chapter 94, SNF’s are for “patients whose primary need is for twenty-four hours of skilled nursing care on an extended basis and regular rehabilitation services.” There are approximately 49 SNF’s licensed in Hawaiʻi caring for approximately 4,300 residents.

Help Us Fight Forced Arbitration in Elder Care!

signing medical papers

Join us in our pledge to give our kūpuna back their rights. Visit this link and sign the petition to Stop Nursing Homes from Using Forced Arbitration to Deny Residents’ Rights.

Senior citizens across the country, including right here in Hawai‘i, are being robbed of their constitutional rights. Nursing homes are burying forced arbitration clauses in the fine print of their resident agreements. These clauses force elderly residents to sign away their right to go to court, even when they suffer physical or sexual abuse, neglect, or wrongful death.

Instead of presenting their cases in court, victims of elder abuse who have signed such agreements must resolve their disputes in secretive, private dispute systems that favor the corporate interests. For a more detailed view of the problems with forced arbitration, we recommend having a look at The Pop Tort’s excellent outline of the issues in their article titled “End Nursing Home Forced Arbitration Now!” We heartily agree with their statement that “the very last thing we should be doing is allowing policies that remove this industry’s financial incentive to maintain safe facilities,” and it troubles us to see that happening today through forced arbitration clauses.

Sadly, forced arbitration has become standard practice in the elder care industry, as it increasingly appears in all kinds of agreements for the sale of goods and services. Often, there is no alternative or way to remove these arbitration clauses from the agreements. Thus, it is fundamentally a question of consumer rights, and therefore a constitutional issue.