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Uploaded: Friday, February 27, 2009, 8:51 PM
Updated: Monday, March 2, 2009, 8:33 AM

Herriot files appeal in Channing House case
90-year-old woman fights forced-move to assisted living

by Sue Dremann
Palo Alto Online Staff

Posted by Sam Anderson, a resident of the Duveneck/St. Francis neighborhood, on Feb 27, 2009 at 11:00 am

Those of us in the first graduating class from Cubberley High School in 1958 will recall vividly Mrs. Herriot's skill as a mathematics teacher. I can literally see her writing on the board, returning exams, introducing George Polya for a guest lecture, and guiding our math class to the new (in 1958) computer facility at Stanford.

She certainly continues to have the respect of those students who benefited from her insruction and guidance.

Posted by YouShouldKnow, a resident of the Old Palo Alto neighborhood, on Feb 27, 2009 at 12:20 pm

This story makes me sick. It's disgusting! We really crap on our elderly in this Country. If she is paying for her own care then Channing House should leave this woman alone! They have the lawyers and money to fight this, then they have the lawyers to draft exemptions and waivers of liability from the independent contractors. That was the supposed issue as stated in a previous article, fear of workmans comp. claims, liability suits etc.

It's all about greed, as usual. They want to sell her unit, reap a profit.

She has the right to spend her last years in comfort if she can pay for it. Putting her in with another person, forcing her to live with a stranger is an indignity that is beyond comprehension!

[Portion removed by Palo Alto Online staff.]

Posted by Carole, a resident of the Duveneck/St. Francis neighborhood, on Feb 27, 2009 at 12:36 pm

As a retired Clinical Social Worker I have been amazed at the large # of people who, otherwise very intelligent & often well-educated, don't want to understand what they're signing before moving into institutions, long-term care policies & especially changing from Medicare to an HMO. Then they insist on their "rights" which they have willingly given up.It beomes extremely sad when they become old & feeble & lack the energy to fight. Some institutions have changed their contracts in the past 10 years or less.However, anyone who has been in an institution 10 or more years should really read their contract because some of the facilities in the Bay Area must keep their residents in independent living as long as the resident can pay privately for attendant care without depending upon the staff of the institution. I won't mention the name of the facility here, but I have been involved with several families who did manage to keep their loved one by hiring private care and the institution was forced to keep them despite scaring the resident.

Our care, or lack thereof, for the elderly in USA, especially mid or low income is shameful. Also stupid. If we live long enough, we'll all experience this.

Posted by Carol Gilbert, a resident of the University South neighborhood, on Feb 27, 2009 at 1:38 pm

My heart goes out to Sally Herriot. Moving her out of her unit with private care to shared space with less personal care is cruel and unnecessary. And, if she is suffering from some dementia, will have even more of a detrimental impact on her.

Let this case be a caution to anyone planning on entering a CC&R or "care" type facility that you or your lawyer must read and interpret what you are signing.

Posted by jb, a resident of the Leland Manor/Garland Drive neighborhood, on Feb 27, 2009 at 2:57 pm

Even with careful reading of contracts, too few of us really understand what old age is all about. How many of us have lived where a grandparent aged and died in place? What happens as we age and in what order is sometimes a real surprise. With company and a life to live in a place suitable for living it, many of us will be alert and engaged long beyond what our bodies can keep step with. If the infirm body dictates that we "put the person to bed," we are actively culpable for the swift decline that will follow. Putting to bed will not help the person live longer. (Is that a realistic goal?)

Old people are not any more willing to quit and die than young people are. They are just "put to bed" and that hastens the whole process. It can feel like the ultimate betrayal visited on the elder by the family or institution that decides liability has become too great. (What is the "liability" for the arrival of a natural and expected death?)

This betrayal is the result of the institution reading the situation differently from what the elder would like. It has nothing to do with not reading contracts well. And in the end, why is it better to die of a stroke in a hospital bed, confined and bored, than to be struck by that stroke while reading or watching TV or visiting with family in a familiar home? Same stroke, same death, just as permanent.

Posted by rem, a resident of the South of Midtown neighborhood, on Feb 27, 2009 at 3:08 pm

Yep, GREED, said the judge - "Allowing private aides to provide all of the assistance at Channing House would fundamentally dismantle the nature of a continuing-care residential facility's business" - key word here is "business". It has nothing to do with liability. The judge ever states in the next sentence that CHANNING is not liable - "Federal disability law does not impose liability on a provider for failing to provide an accommodation that fundamentally would alter the nature of its business, he added." Key word here AGAIN is BUSINESS aka GREED, GREED, GREED

I recommend that Judge Fogel overrule himself... It has been done before.

Posted by another neighbor, a resident of another community, on Feb 27, 2009 at 4:19 pm

She was very happy to have her husband cared for in the health center for nearly two years.

Posted by anonymous, a resident of the Duveneck/St. Francis neighborhood, on Feb 27, 2009 at 4:37 pm

If these places, the Forum, Sequoias, Hyatt PA, Channing House, are so "bad" then why are there always waiting lists (or so I'm told)?

Posted by Celia Giovacchini, a resident of the Fairmeadow neighborhood, on Feb 27, 2009 at 4:53 pm

We should all be so lucky, to wind up in a place like the Channing House health center. I doubt that the people complaining about Channing House's work have ever had to deal with caring for an aging relative, or maybe they just didn't see all that's involved. It's so easy to stereotype and criticize.

Posted by YSK, a resident of the Old Palo Alto neighborhood, on Feb 27, 2009 at 7:00 pm

Uh yeah Celia, I have. Which is precisely why I am outraged.

Posted by G, a resident of Another Palo Alto neighborhood, on Feb 27, 2009 at 11:15 pm

I have parent in Channing House and know the Herriot's.

Channing House was not designed to allow its residents to have personalized, round-the-clock care in their separate units. Had it been so designed the fees would be considerably more. The residents understand that when they can no longer take care of themselves in their unit, then they need to be transferred. This is not a surprise to them - this is the level of care they signed up for. I am disappointed that the Herriot family believe they are entitled to something more than every other resident in Channing House and that she is entitled to something more than what the family signed up for.

I am personally disappointed by the Herriot's lawsuit as the courts will continue to rule against the Herriot's. The sole outcome of this lawsuit will be increased fees for current/future residents to fund the defense. As with most lawsuits, there will be no winners except the lawyers...I am truly disappointed.

Posted by Anonymous, a resident of the College Terrace neighborhood, on Feb 27, 2009 at 11:28 pm

Have you ever cared for a person who has dementia and needs round the clock help with toilet, bath, getting out of bed, and other functions? If they fall or have a stroke while their aide is not there they can suffer for hours and die. If their dementia gives them nightmares or terrors during the night, which is common, and there is nobody there, they also suffer terribly each night. Under California law, Channing House is obligated to move persons who require 24-hour care or care with "activities of daily living" out of independent-living units and into assisted care. I know this is a really sad situation for this wonderful woman, but let's not make the mistake of turning Channing House into the villain. It is one of the best places one can go to retire and get gradually more and more assistance with life functions. Believe me, I've seen the other places, there's a good reason people wait for years to get into Channing House.

Posted by YSK, a resident of the Old Palo Alto neighborhood, on Feb 27, 2009 at 11:58 pm

The article says the Herriot family is PAYING for and PROVIDING for her one on one care separately. The original article claimed Channing House had liability fears concerning independent contractors which is reasonable. THAT'S what lawyers can be used for.

That's different than expecting Channing House to provide the care and stand for the expense.

Posted by TwoSides, a resident of the South of Midtown neighborhood, on Feb 28, 2009 at 12:06 am

One day, many of us reading this commentary will be in Ms. Herriots position. Just remember, the court battles of today will be the cases of our tomorrow.

Posted by Sotheby Crenchaw, a resident of the Midtown neighborhood, on Feb 28, 2009 at 12:29 pm

Channing House is a nonprofit business

Wikipedia defines a nonprofit as follows:

"Whereas for-profit corporations exist to earn and distribute taxable business earnings to shareholders, the nonprofit corporation exists solely to provide programs and services that are of public benefit. Often these programs and services are not otherwise provided by local, state, or federal entities. While they are able to earn a profit, more accurately called a surplus, such earnings must be retained by the organization for its future provision of programs and services. Earnings may not benefit individuals or stake-holders..."

Please allow this factual information colour any further comments.

Posted by Anon., a resident of the Barron Park neighborhood, on Feb 28, 2009 at 1:07 pm

Sotheby makes a good point. It is so terribly hard to become old and dependent on help. It is also very difficult to run a non-profit corporation that helps us take care of our elderly folks in a fair, safe, law-abiding manner. Let's hope we have all have the support of our families and friends when we need it.

Posted by Ann, a resident of the Barron Park neighborhood, on Feb 28, 2009 at 3:41 pm

This situation is a great example for everyone who plans to get old. At some point in your life you will have someone caring for you -- either due to dementia or physical problems. You are responsible for setting up your care. That means you need to go around to all the "Channing House" type residences to see what they have to offer before you need them. You have to set it up or someone else will. The critical part of the package is the assisted living and skilled nursing care areas. What is the nursing to patient ratio? Is there a lot of turn over. Is the staff concerned with the patients. Is there a good quality of life? This is really important. It is at the end stages where you want someone who cares.

Having cared for a parent with dementia in her home for 6 years, I know what it is to provide care. The price was 12k a month just for the caregivers to provide 24/7 care. I tried to find a place that would care for my mother but I never could find one that would really meet her needs. Dementia patients need continuity of people caring for them and also location. Mrs. Harriot should be allowed to stay in her apartment until she no longer can physically move (like a stroke) and then it makes perfect sense to move her to skilled nursing. Caring for her will be easier for her and Channing House at that point. However I think that Channing House, if they don't want people doing this, then they better be very clear about it when they sign people up.

Yes, it is a business and it is about running a profitable one.

Posted by palo alto mom, a resident of the Embarcadero Oaks/Leland neighborhood, on Feb 28, 2009 at 4:03 pm

Ann, this is not about a profitable business, Channing House is a non-profit organization. They are charged with caring for a vulnerable part of our population, the elderly. Any money they make from Ms. Herriot's apartment sale will go into caring for her and other residents of Channing House. Any money spent on a prolonged lawsuit takes money away from Ms. Herriot and the other current and future residents.

State law in California does not allow Channing House to let its residents be cared for by privately paid assistants. They are responsible for the quality of her care and the quality of the people caring for their residents. Allowing Ms. Herriot, who I am sure is a wonderful person, to be cared for by a private company is against state law.

Posted by Dorothy Cubberley, a resident of the Community Center neighborhood, on Feb 28, 2009 at 9:19 pm

I am a resident of Channing House. I looked at many other lifetime care facilities and decided that this was best for me. I have lived here for three years; it is one of the best decisions that I have ever made. My children don't have to worry about me. They all live in other parts of the country, but I have a facility to go to if I get sick, break a bone or almost anything else that happens to an older person. I feel secure where I am. I have made very good friends here. We all feel the same way. We feel well taken care of and one resident who does not want to abide by her contract doesn't influence us one bit. I commend the judge for his decision.

Posted by YSK, a resident of the Old Palo Alto neighborhood, on Mar 1, 2009 at 1:49 am

This whole thing is so freaking depressing it's unbelieveable.

Posted by jade, a resident of another community, on Mar 1, 2009 at 1:41 pm

Hum, if you want your parents to age in place why did you send them to a retirement home in the first place? Because when it comes to elderly it is so much easier to others to take care of them. For those in this case, if they feel their mother should live in an independent setting, move her back with the family...but I guess that family has no time for Mrs. Herroit...who is winning now.

Posted by Kate, a resident of the Duveneck/St. Francis neighborhood, on Mar 1, 2009 at 3:30 pm

Sally would not be moved to an "apartment'. According to a news article, It is a hospital-like room which she would share with another resident, personal belongings limited, and a curtain to separate the two. And lights out at nine o'clock. I just tossed my Channing House brochure and application in the wastebasket.

Posted by Mr. Crenchaw, a resident of the Midtown neighborhood, on Mar 1, 2009 at 11:13 pm

Good, Kate, I'm sure they are happy to hear it!

Posted by narnia, a resident of the Midtown neighborhood, on Mar 2, 2009 at 11:14 am

Is it clear from the brochure and contract that continuous care involves not having any privacy at all and your life being run in a prison like schedule?

Posted by YouShouldKnow, a resident of the Old Palo Alto neighborhood, on Mar 2, 2009 at 11:51 am

Great description Narnia! Maybe some of the double occupancy units should be converted into tiny singlets.

When my dad was in the V.A. his 'roomate' was senile and yelled most of the day and night! Took two days of active advocacy (nonstop bitching by family) go ship one of 'em out...two roomates later was a guy whom apparently was trying to hoark up a hairball 24/7. My dad was very quiet and this was not conducive to healing!

When I had a major operation at a local hospital, they put in with me some 20 year old who overdosed. Her druggie friends came into the room day and ALL night! Thank God that only lasted 36 hours, but it was 36 hrs. of HELL.

I feel sorry for those sick individuals but still, being thrown in with strangers sucks!

Posted by Carole, a resident of the Duveneck/St. Francis neighborhood, on Mar 2, 2009 at 9:28 pm

I hope her attorney is looking into her contract. Does it state when she requires more care, she must be moved into a shared room? If not, the attorney should get her into another private room since this wasn't made clear to her upon signing. And CH would just have to create one.

Also if her 16-hour/day caregivers put her to bed for the night & she doesn't ask for staff assistance, she is managing.

I wish I were on this jury to get at the facts. Are their loopholes in the contract? Was she negligent in not clearly reading it?

Posted by Mayfield Child, a resident of the Green Acres neighborhood, on Mar 3, 2009 at 12:59 am

I'm voting (if it would count any) that she stays where she is at- in safe, familiar surroundings.....that is soooooooooooooooooooo important in an elderly persons life. You take that situation away and confusion creeps in, along with escalated depression.

They die sooner. Let her be.

Posted by anon8544, a resident of Another Palo Alto neighborhood, on Mar 3, 2009 at 3:28 am

I know Fogel. He shouldn't be on the bench.

Posted by Ann, a resident of the Barron Park neighborhood, on Mar 3, 2009 at 3:23 pm

Well, I finally looked up the law everyone keeps talking about, and sure enough, there it is is California Department of Social Services manual section 87615 Prohibited Health Conditions a) "In addition to Section 87455 (c), persons who require health services or have a health condition including, but not limited to, those specified below, shall not be admitted or retained in a Residential Care Facility for the Elderly: (5) Residents who depend on others to perform all activities of daily living for them as set forth in Section 87459 Functional Capabilities." Even Mrs. Herriot's own Doctor testified she needs help with all her activities of daily living. So not only did she sign a contract saying she agreed to be transferred to the Health Center,and she apparently placed her husband there when he needed care, but it also seems to be the law. Hmmmm. tempest in a tea pot, anyone?

Posted by Mayfield Child, a resident of the Green Acres neighborhood, on Mar 4, 2009 at 12:44 pm

Ann: Since when is the Dept of Social Services getting involved now?? Ms. Herriot is independent financially and paying her own help with her own money...

Posted by the same neighbor as before, a resident of the Barron Park neighborhood, on Mar 5, 2009 at 4:49 pm

To: Mayfield Child...Retirement homes like Channing House, the Sequoia's, Pilgrim Haven, Classic Residence (Hyatt) etc etc etc. are all licensed by the state Department of Social Services, who review all the retirement homes every year to make sure they are complying with state law. This law is contained in Title 22, which our legislators designed and voters enacted to safeguard people who live in retirement homes. If retirement homes are not complying with the law, they are given citations and fines, and made to comply with the law.These laws are much more strict than if someone were living in their own home or apartment. If Mrs. Herriot wants to have her own 24 hour caregivers take care of her, she can legally do that in her own private home, or the home of her relatives, but not in a licensed retirement community. That is the entire issue that is before the courts now, Mrs. Herriot is challenging the California state law. In order to change the law, it is necessary to go back to the Legislature. In the mean time, retirement homes are obliged to follow all the laws, not just the ones they like.

Posted by J.Moore, a resident of another community, on Mar 10, 2009 at 12:08 am

She must have a ton of money, private caregivers run about 20/hour, plus her monthly fees. That is probably enough to rent a whole private room, I wonder if the Family would have any guilt if she fell and broke a hip, or left a stove or microwave on causing a catastrophic fire, which the judgment says Channing house would be responsible for?

Posted by SP, a resident of the Charleston Meadows neighborhood, on Mar 12, 2009 at 12:30 pm

It is amazing the comments and speculation this situation has presented. Ann of the Barron Park neighboorhood, thank you for educating the readers. I know the Herriot family, my family has visited Mrs. Herriot at Channing House many times, as recently as this summer. I have spoken with all of Mrs. Herriot's private caregivers, whom are NOT registered nurses. Two are just private citizen's with NO formal medical training, one is a CNA. The Herriot family pays these three private caregivers to be with Mrs. Herriot 24/7. Sometimes, a caregiver is with Mrs. Herriot for 16 hours straight - with sleep in between. These caregivers are good, honest people, and have been working for the Herriot's for many years and are devoted to Mrs. Herriot. However, when you speak with the caregivers, really speak with them, they will tell you they are usually "tired" by the end of their work shift. This issue is not about profit/Mrs. Herriot and Channing House. Mrs. Herriot is a wonderful human being and had a tremendous impact on a great number of people she met. This issue is between Mrs. Herriot's sons and Channing House. The family had a disagreement with Channing House and it escalated to this lawsuit. The family is very well to do and I suspect has the resources to continue to challenge the California State Law. I hope for Mrs. Herriot's sake, that the family will put aside their differences and allow this fine institution to do their job. If not, alternate arrangements to move her into her children's home would be a great benefit for the whole family to care and be with thier ageing mother.