The Gary Galiher Law Hour — Episode 18: Stopping Elder Abuse w/ Anthony Carr

Elderly people are the targets of many forms of abuse. While it will sometimes be obvious, it goes undiscovered far too often. The elderly are frequently unable—too afraid or too frail—to report abuse themselves. Thus, different types of abuse, neglect and exploitation may only be discovered by somebody who knows what to look for, or what questions to ask.

“Being a civil litigation firm, primarily, the cases we’re able to take on and represent are usually pretty catastrophic: wrongful death and really tragic cases,” says Attorney Anthony Carr. “But there are many other issues touching upon elder care and elder abuse that unfortunately we’re not always able to take on in litigation, but we’re certainly invested in.”

These problems become widespread in part through gaps in the regulation of care facilities. Different sets of regulations apply to different types of facilities.

For example, a smaller type of facility known as a community care foster home (CCFH) is basically a mini-nursing home limited to three residents, that provides a “nursing level of care.” At a larger type of home, there would have to be a licensed medical doctor, there would be registered nurses. To operate a CCFH, however, only requires a registered certified nursing assistant. No nurse or medical doctor are required on staff.

While the nursing assistant qualification has its merits, not having more qualified medical professionals on staff subjects the residents to a lower standard of care. This problem goes on unabated in part because very few people are aware of it or problems like it.

When something gives cause for concern at a care home, Anthony has some advice: “It’s a two-part process, because a lot of the people involved in an individual’s care probably knows this person pretty well, maybe knows the immediate family. You’ll know when something out of the ordinary happens.” That’s the first part. Then, “when you notice that, investigate it, ask them questions, satisfy your curiosity.”

Placing an elderly loved one in an assisted living facility often happens in a hurry due to a medical emergencies suddenly increasing their need for care. This often limits their family’s choice because it forces a quick decision on where they will go.

Facilities are well aware of this common dilemma, and they are known to take advantage of it by focusing on the surface-level appearance of their homes, working up slick sales pitches and making big promises instead of delivering the best possible care for their residents.

Knowing the right questions to ask at the beginning can give vital information to a family going through the stressful process of finding a good, safe place for kūpuna. Our article on the 10 Questions to Ask Any Senior Care Home is helpful there.

We’ve scratched the surface, but there’s so much more to learn in this episode. Tune in!

Nursing Homes Now Forbidden From Forcing Residents Into Arbitration

After a decade of intense advocacy by the American Association for Justice, the Centers for Medicare & Medicaid Services issued a final rule prohibiting all federally funded nursing homes from using forced arbitration agreements against their residents. Because of the new rule, many senior citizens in Hawaiʻi and across the US will no longer be robbed of their constitutional right to go to court.

AAJ mounted an extensive lobbying, coalition building and communications campaign last year when the rule was first proposed. As a direct result of this campaign the rule was dramatically improved from its original version, which would have made legal outcomes worse for many nursing home residents by allowing nursing homes to continue to use pre-dispute arbitration agreements under certain conditions.

Nursing homes have been burying forced arbitration clauses in the fine print of their resident agreements. These clauses force residents to sign away their right to go to court, even when they become victims of abuse, neglect, or wrongful death. Instead of presenting their cases in court, victims of elder abuse who sign such agreements have to resolve their disputes in secretive, private dispute systems that favor the corporate interests.

While we would like to see the changes taken further to protect people in all care facilities from forced arbitration agreements, we are happy to see this big step in the right direction. Elderly people now have another line of legal defense in an industry rife with abuse and negligence.

Check Us Out at the Good Life Expo!


Our firm will be participating in the 32nd Annual Hawai‘i Seniors’ Fair~The Good Life Expo, Friday, September 23, through Sunday, September 25. We’ll be there at the Neal Blaisdell Center for all three days, from 8:30 am – 4:30 pm. Admission is free to the public.

We are giving away copies of our Stop Elder Abuse in Hawai‘i guidebook, and promoting the good cause of harm reduction for elderly people throughout the islands. The issues of elder neglect, abuse, and exploitation concern us greatly, and we have written about them extensively here on the site. If you’re interested, we invite you to peruse our Elder Care Knowledge Center for a variety of news articles and publications on the topic.

There will be hundreds of organizations presenting information and offering products and services for local seniors. Have a look at the list below to see who’s going to be there. (You can click it to view a larger version.) And please do drop by our table and visit us if you find yourself there. We would love to see you!

Keep the Money Follows the Person Program Alive!


The Money Follows the Person Grant program has helped more than 50,000 people move out of assisted living and nursing home institutions, back into their communities of choice. The program gives people the right to decide where they live and receive home and community services and supports.

Nearly half of the people who gained this new freedom were seniors. The rest were struggling with physical or developmental/intellectual disabilities, or mental illnesses—people most in need of the kind of support the MFP program provides.

Moving out of institutional care not only gives participants a renewed sense of independence and belonging: it saves the state and federal government (and, therefore, the taxpayer) money, because providing services costs less in the community and outside of dedicated care facilities.

That’s why we all win with the MFP program, and why it has broad bi-partisan support. Yet, without action in Congress to renew, it will be discontinued at the end of September, 2016.

If you would like to help, click the banner above and tell your members of Congress to continue the MFP Program. It takes about a minute.

How to Prevent Wrong Mental Illness Diagnoses in Assisted Living

Antipsychotic drugs are harmful if you do not need them. They make life more difficult for people with dementia who take these drugs unnecessarily. Side effects include increased anxiety, restlessness, loss of hunger or thirst, excessive sleeping and even death.

It is important to ask about the drugs taken by you (or by a loved one) in assisted living. Ask: Were you diagnosed with schizophrenia after moving into your care facility? Were you told you need drugs to treat symptoms of schizophrenia or another serious persistent mental illness?

Dementia is not a chronic mental illness like schizophrenia.

If you or someone you know has dementia and were told you (or they) have schizophrenia, it may have been the wrong diagnosis. If you think this is the case, your Long-Term Care Ombudsman can help you understand your rights and talk to your nursing staff.

Questions to ask include:
  1. Why was I given this diagnosis?
  2. What are my symptoms?
  3. Who made this decision?
  4. Am I on an antipsychotic drug?
  5. Are there other treatments that don’t involve drugs?
  6. What are the risks with the drugs you want me to take?
  7. Who will monitor my symptoms?

A correct first-time diagnosis of schizophrenia is extremely rare for people of old age. Its symptoms can appear to be similar to those of dementia, but the two illnesses are very different.

A psychiatrist is the best professional to diagnose schizophrenia. People have the right to ask for a psychiatrist to evaluate them.

Doctors recommend drug-free approaches as the current best treatments for dementia. If you have the wrong diagnosis, you could be given harmful drugs you don’t need.

Sources: National Inst. of Mental Health, Center for Medicare Advocacy, National Consumer Voice for Quality Long-Term Care, Centers for Medicare & Medicaid Services.

State Government Sued Over Care Home Inspections

Above: The State Department of Health’s Maui District Health Office

We’ve written previously about the need for improved care home inspections and the challenges in choosing a care facility for elderly individuals.

This week brought new local developments around these issues, when news broke that the Kokua Council, one of Hawai‘i’s oldest advocacy groups for seniors, filed suit against the state government for failing to post reports of care home inspections.

A state law passed in 2013 requires the Hawai‘i Department of Health to post these reports on the Web, covering more than 1,700 facilities statewide.

The DOH has failed to meet the mandate, having only sporadically posted since the start date came and went last year. According to the Civil Beat, “the department’s request for $22,466 to hire a clerical worker to post inspection reports online was nixed from the $13 billion overall state budget.”

Another article mentions that $148,000 was initially budgeted for two clerical positions to help get the information online, “but no one was hired in the first two years, and the appropriation was not renewed in the next biennium budget.

In their complaint, the Kokua Council is seeking to compel the State government and the DOH to comply with the law.

Care home inspection reports, according to the complaint, are “the only access to impartial information regarding the quality of a long term care facility most families will have access to.” As such, they would—if they were available—provide vital information to the many local families faced with the critical decision of placing or a loved one in a care facility.

Often, the family has mere hours to make this decision, like when transferring the person from a critical care facility to a more long-term place of care.

Another issue that Kokua seeks to litigate is the DOH’s redactions from the reports, which Kokua alleges far exceed the personal health information that must be stricken from public view.

As practitioners in the legal area of elder abuse, this is an issue close to our hearts. We would like to see the state do its duty and give Hawai‘i families access to the information they need to make a hard decision. It is public information, after all.

For its part, the state must respond to the complaint in no more than twenty days.

Elder Abuse Prevention and Prosecution Act Introduced in Congress

Above: Kim Klobuchar (D-MN), one of the four senators who introduced the Elder Abuse Prevention and Prosecution Act. Photo c/o Edward Kimmel, CC BY-SA 2.0

Last week, Senator Charles Grassley (R-IA) introduced the Elder Abuse Prevention and Prosecution Act (S. 3270). The legislation was prompted by a Senate Judiciary Committee hearing held last month. The Elder Justice Coalition offered its support of the bill.  National Coordinator of the Coalition Bob Blancato said “It goes after the problem with three solutions in mind: to ensure prosecution of those perpetrating scams, improve our data collection so we better know the extent of the problem, and provide for enhanced prevention programs and activities to avert future victimization.” Read the text of the bill here and read a section-by-section summary here.

In support of federal cases involving elder justice, the bill requires the designation of “at least one Assistant United States Attorney in every judicial district to prosecute (or assist with) elder abuse cases, conduct public outreach, and ensure the collection of the statistical data on elder abuse.” It establishes an advisory working group of U.S. Attorneys who will provide advice on the DOJ’s elder abuse policies, provides training by the Attorney General for FBI agents on the investigation and prosecution of elder abuse, and creates an Elder Justice Coordinator position at the Federal Trade Commission.

Because the epidemic of elder abuse has, for the most part, raged silently so far, we need more data to be able to know how to fight it. Toward this goal, the bill requires the Attorney General to coordinate with federal, state, and local law enforcement to define the best practices for data gathering, and to provide technical assistance to law enforcement on how to enact these practices. The Department of Justice will collect and summarize all this information publicly on its website, along with additional recommendations to further improve data collection. The bill also calls for increased penalties in cases of telemarketing and email fraud targeting the elderly.

Because this bill does not make any additional budget appropriations, it can do little for victim assistance besides calling for “developing a multi-pronged approach to elder abuse and exploitation” and asking the DOJ’s Office for Victims of Crime to report to Congress on elder abuse-related issues. Still, we are glad to see that issues of elder abuse and exploitation are staying on the Congress’s radar in 2016, and we are hopeful this bill will be enacted.

10 Resources for Persons with Disabilities

We’ve previously posted a roundup of Hawai‘i-based community resources on elder abuse, which can show you where to turn if you are concerned about the well-being of any older person or need to report a problem. In the spirit of that post, we are presenting a new collection of 10 free online resources, which run the gamut of health issues for older people.

We hope you’ll find them as useful and fascinating as we have. We’d also like to send a big thank you to Patricia Sarmiento from the Public Health Corps, who brought many of these resources to our attention.


1. How to Cope with Sudden Illness or Disability
Disabled World

The whole world is upside down and you are in the middle of it believing life will never be the same again with you just being miserable fighting your illness or disability. You might lose your friends because you will no longer be able to socialize as you used to. This is also the time to find out who your real friends are.



2. Top Tips for Getting Fit if You’re Disabled

Want to get fit but assume using a personal trainer would be out because of your disability? We talk to Dom Thorpe, a personal trainer specialising in helping people with all kinds of disabilities get fit. Read on to see how you can get fit too.



3. Learn About the Different Types of Service Dogs
Anything’s Pawsable

Did you know there are over a dozen different specializations for Service Dogs? Have a look at this article if you’re curious what all these types of Service Dogs are, and what they do.



4. Preparing for Disaster for People with Disabilities and other Special Needs [PDF]
The American Red Cross

For the millions of Americans who have physical, medical, sensory or cognitive disabilities, emergencies present a real challenge. The same challenge also applies to the elderly and other special needs populations. Protecting yourself and your family when disaster strikes requires planning ahead. This booklet will help you get started.



5. How to Stay Physically Active
Washington University Healthy Aging & Physical Disability Rehabilitation Research & Training Center

Exercise is a proven way to improve the health, physical functioning and well-being of older adults who have disabilities. This article has more information about the myriad benefits to regular exercise, as well as helpful advice about how to come up with an exercise plan, get started, and keep up with exercise.



6. Grants for Home Modification: 16 Resources for Homeowners with Disabilities

There are many grants available to disabled persons for home modifications to help better accommodate them. It’s heartening to see how many organizations are making it their mission to provide comfort and safety through these grants. Here is a collection of sixteen of those grants, with a good summary of background information about the American Disabilities and Fair Housing acts.


7. The Ultimate Guide to Home Accommodations for Persons with Disabilities

Nearly 57 people in the US live with a disability. Ensuring the places they live provides support and helps them lead happy lives should be a top priority. This guide covers every area of the home with recommendations for how to make the home a fulfilling place where people with disabilities can thrive.



8. Depression and Disability: A Practical Guide [PDF]
The North Carolina Office on Disability & Health

Depression is a serious medical problem that is often misunderstood. Fortunately, effective treatments are available. As one of the most common “secondary conditions” among people with disabilities, recognizing depression and seeking treatment is very important. This free guidebook helps explain what depression is, why it occurs and how it can be treated.


9. Disability Etiquette
United Spinal Association

This booklet has tips to follow for anyone—with or without a disability—who wants to interact more effectively with people with disabilities.


10. Violence against Persons with Disabilities
Western Regional Coalition to End Violence

Disabled populations are especially likely to be victimized by physical violence, sexual violence, psychological or emotional abuse. Victims seldom report abuse or neglect. This article has information on the factors that make people susceptible to violence, how to recognize signs of abuse or neglect, and how to help someone victimized in these ways.

The Gary Galiher Law Hour — Episode 14: Protecting Elders in Long-Term Care w/ John McDermott

We’ve talked before about the importance of being an advocate for your loved one, due to the limited resources our state has to perform certain functions. We’re honored to have the state’s Long-Term Care Ombudsman, John McDermott, here with us to talk more about what his office does to prevent abuse. But what is an ombudsman?

In John’s words, an “ombudsman is really someone who is working behind the scenes so that you don’t get the runaround, so that if you have a complaint, this person can tell you where to go, or will go there to find out for you.” The Long-Term Care Ombudsman Program’s home page is online and at your service at the link.

Elder-care facilities have to follow certain best practices, and John’s office serves to intervene when they fail in these duties.

In a perfect world, this kind of watchdog would not be necessary. Attorney Anthony Carr, our guest host this episode, raises an excellent point:

We want to be objective, and we want to be transparent. At least in theory that’s true, but what are our priorities as a society? Well, it’s a priority to make sure that employees are going to do their duties as expected, it’s a priority to make sure that unsafe food is not given to consumers. But it is not a significant priority so far, as much as we might want to think it is and talk about it, to recognize the health and wellbeing of elderly folks as a priority we need to do something about and dedicate resources to, and not just talk about.

The perfect counter-example is John and his office, an incredible force for these values that society has yet to honestly embrace. They work hard to stem the tide of elder abuse, neglect, and exploitation, in spite of the broad lack of urgency regarding these issues. Their hearts are in it, and they do it for the right reasons.

Click play and learn about the current situation in Hawai‘i, as well as the efforts underway to make it a safer, more dignified place for people to spend their golden years. You can also read about John in the Civil Beat’s recent article, “Did Hawai‘i Lawmakers Do Enough To Protect The Elderly?

Fight Against Forced Arbitration Heats Up at the Capitol

Whether it’s to get a student loan, get hired, or place an elderly loved one in a care home, people often have no choice but to sign contracts with forced arbitration clauses that make sure a day in court never comes. Instead of court, disputes are settled in arbitration, and the arbitrators often consider the corporations to be their clients.

Today at the Capitol, a diverse group of representatives took to the House Floor to discuss forced arbitration and the harm it does to individuals across the country. For a full hour on the Floor—a rare level of focus for a single topic in this venue—the group discussed common abuses of arbitration law, pending legislation, increased public awareness, and a number of federal regulations aimed at curtailing forced arbitration.

According to Representative Hank Johnson of Georgia, a member of the House Judiciary Committee and the leader of the session, “buried in the fine print of everything from consumer contracts and employee handbooks to nursing home agreements, forced arbitration clauses insulate corporations from accountability by eliminating access to the courts for untold consumers and workers.”

Mr. Johnson introduced a bill this week to prevent civil rights cases from being subjected to mandatory arbitration. The bill includes discrimination cases. Women trying to fight gender discrimination at the workplace would benefit especially from the legislation’s passage, said Mr. Johnson, because arbitration clauses are devastating to their cause.

We at the firm hope this will be the beginning of the end for forced arbitration. If you agree, please show your support and sign this petition to Stop Nursing Homes from Using Forced Arbitration to Deny Residents’ Rights.