Esther's Law Protects Ohio Seniors in Nursing and Rehabilitation Institutions by Permitting Cameras and Monitoring

Residents of Ohio’s nursing homes are permitted to place electronic monitoring devices in their rooms. “Esther’s Law” went into effect on March 23, 2022, after passing unanimously through the Ohio House and Senate and being signed by Governor Mike DeWine on December 22, 2021. This bipartisan legislation demonstrates that ridding Ohio is committed to reducing elder abuse generally, and particularly in institutions charged with caring for Ohio's vulnerable elderly residents. 

The genesis of Esther’s Law (Ohio Revised Code § 3721.60, et seq.), was a shocking video depicting the abuse of the bill’s namesake, Esther Piskor, at the hands of her nursing home care providers. Esther’s son Steve Piskor suspected his mother was the victim of abuse in an Ohio nursing home. In September 2011, Steve placed a hidden camera in his mother’s room which caught and documented six weeks of abuse. Nurses and aides threw Esther around the room, sprayed her in the face with unknown substances, and yelled at and neglected her. Mr. Piskor has since worked to ensure Elder Abuse will be driven out of Ohio’s nursing homes.

The law allows a nursing home resident, the resident’s guardian, or the resident's agent under a power of attorney, to authorize the installation of an electronic monitoring device in the resident's room under the following conditions: (1) the resident or the resident’s representative completes and submits a form to the facility, if the facility prescribes a form for the device and (2) the resident pays for the cost of the device and its upkeep. A resident may withdraw authorization at any time.

If the resident has a roommate, the consent of the other resident is required before any monitoring device may be installed. The roommate may consent based on certain conditions, such as agreed upon angling of the device, or limitations as to the use of the device. Devices must be installed and used in accordance with the consent of all residents residing in the room.

Nursing home operators and their staff should also be aware that the law requires reasonable attempts to accommodate residents to be made where a resident wishes to install an electronic monitoring device, but a roommate refuses to consent. Reasonable accommodation expressly includes moving the resident to another room where installation would be permitted if available.

The scope of Esther’s Law is currently limited to “long-term care” facilities defined as nursing homes and skilled nursing facilities and currently does not extend to assisted-living accommodations that do not meet the “long-term care facility” classification.  State legislators have indicated, however, that the scope of Esther’s Law may expand to other types of facilities in the near future.

Steve Piskor and the State Senators sponsoring Esther’s Law state that the goal of the law is to prevent abuse in the first instance, and not to be a reactive tool after abuse has occurred. This goal is made clear and is served by the law permitting long-term care facilities to place notices outside of the resident’s room to notify others that electronic monitoring is taking place.  In other words, the law is not intended to encourage secretive monitoring merely to encourage or facilitate litigation.

The law also prohibits any denial of admission, discharge, discrimination, or retaliation based on a resident’s decision to exercise the right to install an electronic monitoring device.  

Obviously, seniors and family members should seriously consider the use of such devices.  Keep in mind that even inexpensive and relatively unreliable devices will result in the placing of a notice that a device is electronic monitoring is taking place. Many home residents and merchants purchase signs advising that security systems and electronic surveillance exists, even where no such systems or devices are employed; deterrence is the first goal of any security or safety system or plan. 

Increasing Blood Pressure Drugs Upon Hospital Discharge Poses Health Risks

Increasing blood pressure medications when older patients are discharged from the hospital may also increase falling, fainting or kidney injury risks, according to a new study reported by a recent article in McKnight's Long-term Care News. Investigators claim such dangers outweigh possible treatment benefits.

Researchers from University of California, San Francisco and San Francisco VA Health Care System studied more than 4,000 patients who were at least 65 years old and hospitalized for non-cardiac issues. Patients discharged with greater amounts of blood pressure drugs saw no fewer cardiovascular events and no improvement of blood pressure control after one year. At the same time, risk for readmission and serious adverse events surged for some patients within 30 days of discharge.

“Our findings suggest that making medication changes during this period is not beneficial,” said the study’s lead author, Timothy Anderson, M.D., MAS, MA, a primary care research fellow in UCSF’s Division of General Internal Medicine.  “Instead, deferring medication adjustments to outpatient doctors to consider once patients are recovered from their acute illness is likely to be a safer course,” he added. 

This blog rarely reports regarding hospital health outcomes, but this study impacts directly Aging in Place since it concerns prescriptions written at or near discharge from the hospital. Seniors and their families should be aware of the findings, and the concerns raised by these findings, and may want to independently verify the advisability of such prescriptions with a primary care physician upon discharge. 

Don't Let Institutions Plan for You: Medicaid-Eligible Nursing Home Resident Stuck With Costs of Private-Pay Room

An Illinois case illustrates why seniors, their families, and caregivers simply cannot entrust their best interests to institutions. An Illinois appeals court rules that Medicaid does not cover a Medicaid-eligible nursing home resident who was in a private-pay room ,and that the nursing home was not required to move her to a Medicaid-certified bed earlier than it did, meaning that the resident could be discharged from the nursing home for nonpayment. Slepicka v. State (Ill. Ct. App., 4th Dist., No. 12MR743, July 7, 2015).

Mary Slepicka entered a nursing home as a Medicare patient. When her Medicare nursing home coverage ran out in April 2011, she became a private-pay resident.  At the time Ms. Slepicka signed the private-pay contract, money from the sale of her house was her main asset. The nursing home did not place Ms. Slepicka in a Medicaid-certified bed until March 2012. After visiting a financial planner, Ms. Slepicka put the assets from the sale of her house in an annuity and applied for Medicaid. The state granted her benefits retroactive to June 2011.

The nursing home claimed it could not bill Medicaid for the days Ms. Slepicka was not in a Medicaid-certified bed, so it billed Ms. Slepicka. Ms. Slepicka did not pay the nursing home (the case description does  make clear whether Ms. Slipicka could pay, given the fact that she purchased and ostensibly irrevocably annuitized the proceeds from the sale of her home), and the nursing home served Ms. Slepicka with a notice of discharge. Ms. Slepicka appealed the discharge, arguing that she could not be charged for the days Medicaid covered. The nursing home argued it did not put Ms. Slepicka in a Medicaid-certified bed right away because it believed she had assets that she needed to spend down. The trial court granted the nursing home summary judgment, and Ms. Slepicka appealed.

The Illinois Court of Appeals affirmed, holding that Medicaid is not required to cover expenses incurred by private-pay residents even if the resident is eligible for Medicaid, and that the nursing home was not required to move Ms. Slepicka into a Medicaid-certified bed. According to the court, "just because a resident is financially eligible for Medicaid, it does not necessarily follow that Medicaid will cover every expense the resident incurs during the period of eligibility, regardless of where the resident incurs the expense." In addition, the court holds that the nursing home did not know that Ms. Slepicka would qualify for Medicaid as soon as she did, so it was not required to move her into a Medicaid-certified bed any sooner.

Sadly, the likely consequence of this case is that Ms. Slepicka's family will be forced to pay for the additional nursing home costs, and for the legal expenses of attempting to protecting her residency in the nursing home.  

One wonders whether underlying the court's decision is an effort by the court to move the State of Illinois to common law filial responsibility since the state does not have a filial responsibility statute.  Future cases may make clear the court's objective, if such an objective exists.    

For the full text of this decision, go here.