This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Will Smith of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.
Schenk: Hello out there and welcome once again to the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we are trial lawyers and we are your humble hosts of this episode of the podcast. Maybe you’ve heard of a movie called “Frozen.”
Smith: If you have children, you definitely have.
Schenk: Yeah. Or maybe you go to the movies because it looked good, a good animated film. Or maybe you know about Stockholm syndrome.
Smith: Oh my God, where is this going?
Schenk: I don’t know.
Smith: We’re talking about the origin of the word “ombudsman.”
Schenk: That’s where I was going.
Smith: That just now occurred to me, or smorgasbord – did you saying anything about smorgasbord?
Schenk: I was going to say “Swedish Fish,” but I feel like putting “Swedish” in it would have ruined it.
Smith: Okay, so this episode, one of the things we’re going to talk about is ombudsman, which comes from a Swedish term that means “legal representative.” Anyways, so who are ombudsmen and what do they do?
Schenk: So ombudsmen operate in all 50 states and in Washington, D.C., Puerto Rico and Guam. Principally they respond to complaints made by family members or loved ones in nursing homes and long-term care facilities, assisted-living facilities. In 2015, according to the Administration on Aging, they fielded 200,000 complaints. Of those, almost 117,000 were reported by the Administration on Aging to have been resolved in a way that satisfied the person that made the complaint, and 30,000 were partially resolved. At the top of the list of the issues resolved by the ombudsmen in 2015 were problems concerning care, resident rights, physical environment, admissions and discharges, and abuse and neglect.
Generally ombudsmen are volunteers. By and large, they’re volunteers, and by state law and federal law, generally the ombudsman has permission to enter the nursing home, assisted-living facility or wherever anytime unannounced and talk to residents wherever they want. There is a certain amount of training that an ombudsman has to go through, which a lot of it is conflict resolution. A lot of it is going to be education on long-term care facility administration and basic rights under the law.
Smith: Resident’s Bill of Rights.
Schenk: Right. And in addition to investigating and trying to resolve complaints, ombudsmen also, depending on what state you’re in, help families choose nursing homes, although they don’t make recommendations. So if you’re wondering should I place my loved one in Nursing Home X or Nursing Home Y, you can likely call your local ombudsman to say, “Hey, which one presents challenges? What are the pros and cons?”
Smith: Or you know, “Is there one within a reasonable driving distance of the family? Is there one that can accept her insurance? Is there one that will accept her as a resident?” because a nursing home does not have to accept anyone as a resident.
So here’s why ombudsmen are important. We get calls every single week about nursing home complaints. We address a very anrrow scope of those complaints, and this is what people need to understand, is that we are personal injury attorneys at the very core. We sue long-term care facilities, even short-term care facilities, for professional malpractice. And that malpractice has caused a very significant injury to our potential client. So the nursing home resident or the patient at a hospital has passed away, they have suffered a traumatic injury or a bedsore or an infection. So the complaints that we’re dealing with are of an extreme nature. But Georgia, being one of the worst offenders of nursing home care in the country, there are unlimited complaints out there about nursing homes, anything from “I don’t think they’re giving my mom the food she wants,” or “She’s got bedsores, maybe a stage one,” or “They’re not brushing her hair in the way that I like,” or “I can’t find certain items that I brought up there for her and I think somebody might be stealing them” all the way to the things we do where “My mother has passed away because of what they did.” So people will often call us on these, and when I say they’re minor complaints, I don’t mean that from a judgment point of view, I mean compared to the death of a nursing home…
Schenk: To a catastrophic injury.
Smith: To catastrophic injury, they are minor. And I will tell them that is not what we do, but that doesn’t mean that you don’t have a remedy. So there are several different remedies you can have in the state of Georgia. You can hire, if it’s catastrophic enough, you can hire attorneys like us. Or if it’s something that’s not quite as catastrophic, you can complain to the Department of Community Health. Now the Department of Community Health in Georgia, Georgia again being one of the worst offenders in the country, is extremely backlogged. And anybody who may be listening or watching this podcast who has filed a complaint with DCH probably understands that now because it will take them forever and a day to actually go to the nursing home and address it.
However, ombudsmen theoretically – not really quite sure how practical this is, hopefully it is pretty practical – are able to respond a lot quicker, and they can address concerns that range from “My mom doesn’t like Diet Coke and they keep giving ber Diet Coke” all the way up to “I think that they’re stealing money from my mom’s room.” So an ombudsman can be an amazing resource for families out there who have complaints about nursing homes that don’t rise to the level of catastrophic injury.
Schenk: And so just by way of example, so we were evaluating a case in which the resident was slightly ornery, did not like to have hair brushed, nails clipped, that kind of thing, and so those hygiene matters fell by the wayside, and when the family was finally contacted, the nails had fungus, overgrown, the hair was gross, that kind of thing, and so what the ombudsman did when they were notified by the family was came in and facilitated an actual sit-down conversation between the family and the nursing home to say, “These are the issues. The personal hygiene is becoming a problem. We’re not casting blame on the resident. We’re not casting blame on the nursing home, but what can we do?” And over the course of 30-40 minutes, they worked those issues out. And the reason why it could be worked out is because the ombudsman was there to facilitate and to get to the bottom of these issues because, again, generally an ombudsman can walk right in there like they own the place. That’s generally the power that they have and they wield it, so they can also arrange for conversations. Now I’m not saying that you might get – you the audience member might be able to get a meeting with the director of nursing or the administrator of the facility that your loved one is in, but definitely calling the ombudsman to get the ombudsman involved might be one step towards that.
Smith: And understand something, that ombudsmen are agents of the state of Georgia. So to find an ombudsman to make a complaint, to get help from an ombudsman, go to I believe it’s Aging.Georgia.gov, so it’s a government website. So that means that these ombudsmen, they’re not just civilians, so non-governmental employees that you can hire that can come in and try to mediate with the nursing home. They’re people who go in there who work for the state of Georgia, which is the source of the nursing home’s money. So if an ombudsman finds that a situation is irresolvable with the nursing home and it rises to a certain severity level, they can get DCH involved as well, and the nursing home could be looking at some fines, some administrative issues, and just getting on DCH’s radar in the first place, which at the end of the day, I’m not really sure, I’m a little pessimistic about anything that comes with enforcement against nursing homes, but it’s still a remedy.
Schenk: Yeah, and at least there’s a paper trail.
Smith: There’s a paper.
Schenk: Some of that could be used against them later on by a personal injury attorney.
Smith: Yeah. And simply, a lot of times, I’ll be honest with you, simply getting somebody involved is enough to resolve the issue, because the staff at the nursing homes – and I have said this time and time again – they are not evil. They are not the bad guys. In my perspective, the vast majority of the time, the bad guys are the owners and operators of these nursing homes and the administrators who are pocketing a lot of money and short-staffing these nursing homes and putting these RNs and LMPNs and CNAs in a horrible position. So typically if you’ve got an issue and an ombudsman gets involved or you even bring it up to the director of nursing or the different staff nurses, I think that the vast majority of the time, they’re going to address it and they’re going to help you resolve it, especially on these minor issues like, “Hey, my mom doesn’t like Diet Coke. Stop giving her Diet Coke.” They may just not know about it.
Schenk: Yeah, like I said at the top of the show, at least in 2015, of the 200,000 complaints filed I believe across the country, 117,000 of them were resolved. That’s a pretty good percentage, so there’s a high likelihood that if you get the ombudsman involved, whatever the issue is can likely be taken care of. There’s a good probability of it.
Smith: Yeah, absolutely. And then again in the same way that we don’t get involved in these minor versus catastrophic injuries that we deal with, you’re also not going to contact an ombudsman to resolve an issue where your loved one has passed away from an infection caused by a stage four bedsore. So ombudsman are best used for non-catastrophic issues. It doesn’t mean that we might not get an ombudsman involved, but if it rises to the level of death, get an attorney. If it’s something that isn’t catastrophic and isn’t threatening the life of your loved one, call the ombudsman or go to the ombudsman website – Aging.Georgia.gov.
So because we’re talking about remedies, let me just throw out there what I think is a very good idea for dealing with non-catastrophic situations. So again, situations that don’t threaten the life and health of your loved one – and I’m talking about somebody is stealing something from my mom, they’re not giving her the food she likes, I want her to have a perm and they won’t do that, or I got her a perm and they gave her a shower the next day, that type of day. Did you know you’re not supposed to take a shower immediately after a perm?
Schenk: Here’s something interesting about Will – the only reason why he knows that is because of the movie “Legally Blonde.”
Smith: Actually that’s not true. The reason that I know that is because as a CNA, I gave a resident a shower the day after her perm.
Schenk: Why would you do that?
Smith: I’m a man, and at the time, I didn’t know you couldn’t do that. And the resident kept telling me, “Hey, don’t give me a shower,” but understand something – this was a resident who had dementia. So she kept saying, “I don’t want a shower because when I run across the field tonight to go to that boy’s house, it’s cold and I’m going to get sick.” That’s what she was telling me. So clearly I can’t neglect somebody’s hygiene just because they’re living in a fantasy where it’s the 1950s and it’s a Nicholas Sparks situation – that’s the guy who wrote “The Notebook” by the way, and I know you know that.
Schenk: I didn’t that know. That’s amazing. Why would you know that information about “The Notebook?”
Smith: I mean it’s pop information. It’s popular information.
Schenk: Man, that’s a really deep reference to know the person that wrote “The Notebook.”
Smith: No, it’s extremely superficial in the same way that I know who wrote “Harry Potter.”
Schenk: I feel like that’s a lot more well known.
Smith: No, no. You don’t want enough popular culture media. That’s the problem. Anyways, on administrative issues or non-catastrophic issues, here’s what I suggest you do. The very first thing is bring it up to the staff. Don’t jump ahead to an ombudsman. And if it sounds like I’m telling you to try and keep a good relationship with the staff so that your loved one can get the best care, I am. Is that fair? It’s irrelevant – it’s reality. So what I mean by that is don’t jump what I consider the chain of command. So the very first thing you do is go to the staff and say, “Hey guys, having an issue here. Mom hates turnip greens and you keep giving her turnip greens. Can you give her mashed potatoes instead?” Do that. If that doesn’t work, call your ombudsman. And then if somewhere down the road it gets even worse and your mother ends up passing away because of some negligence, then you get an attorney like us. But my main point is first try to talk to the staff, then contact your ombudsman.
Also ombudsmen are a resource that is extremely limited, so don’t call your ombudsman every time they give your mom Pepsi instead of Coke, you know what I mean? Try to address a lot of these issues yourself, but if you can’t, they’re a great resource.
Schenk: Yeah, following the chain of command is a good bit of advice, but as a general rule – and sometimes it’s not possible because you live in a different state, a different city, but you want to try to be present at a nursing home where your loved one is, knowing the names of your CNAs, knowing the names of the…
Smith: Oh absolutely, that goes without saying. That is the number one way to prevent negligence and just general discomfort with your loved one in a nursing home is by being present. A nursing home is not a place that you can send your loved one and then just wash your hands and go, “Well Grandma Bertha’s going to be taken care of. I guess that’s it. I’ll call her every holiday.” No, because there are limited resources at the nursing, and again, is this fair? It is not fair, but it is reality. There are limited resources, limited because the fat cats that own the place are hogging most of it for themselves, but they’re understaffed and it’s an extremely hard job, so people who do not have loved ones are usually the quickest to get neglected because there’s not somebody there. It’s the squeaky wheel gets the grease.
Schenk: That’s right.
Smith: So make sure you’re constantly involved in your loved one’s care. Make sure if you have issues, you address it with the staff, and failing those two things, contact your ombudsman.
Schenk: I would love to segue into something in the news as of late, and it affects Centers for Medicare and Medicaid Services and potentially the service your loved one is going to get at a nursing home. And this has to do with the “Two In, One Out” rule that President Trump promulgated via executive order in January this year. So if you don’t know about it, it goes like this. On January 30th, so I don’t think even a week after he was inaugurated, Trump signed Executive Order 13771 entitled “Reducing Regulation and Controlling Regulatory Cost,” the “Two In, One Out” rule. That order says that unless prohibited by law, whenever an executive department or agency like the Centers for Medicare and Medicaid Services publically proposes for notice of comment or publically promulgates a new regulation, it shall identify two existing regulations to be repealed. The heads of all agencies are directed, according to this order, that the total incremental cost of all new regulations, including repealed regulations to be finalized this year, shall be no greater than zero.
So in other words, if the head of the Department of Community Health and the head of Medicare/Medicaid Services wants to issue a new rule that’s needed, regardless of what it is – everybody needs to wear latex gloves – whatever the rule is, that head of the agency has to repeal two other regulations regardless of what it’s about if there’s a new rule.
Smith: I get that a lot of people hear that and think, “I don’t see why that’s a bad idea,” because there is a case – there’s a tremendous amount, I mean there’s almost 200,000 pages in the Code of Federal Regulations, and many of those are antiquated. Many laws that are on the books are no longer enforced. Georgia – every state has the same thing.
Schenk: Yeah, it’ll be like you can’t bring your horse to town on Sunday.
Smith: And it’s extremely complicated. It’s an extremely complicated bureaucracy. And so I’m certainly not taking up for that bureaucracy, not suggesting that there isn’t something that needs to be done, but what this administration is suggesting is a bad idea, namely because it would be like this. Let’s say you went to a financial advisor and you said, “Hey listen, I need to start saving money and I haven’t been saving money very well.” It’d be like them suggesting, “Well here we go. Every time you spend money on eating out, you have to sell two objects from your house.” That’s just not a smart thing to do. It’s completely arbitrary and it’s going to have a weird result.
Schenk: The people that agree with Will primarily are the Natural Resources Defense Council, the Communications Workers of America and a public citizen who filed a lawsuit requesting an injunction to block this order. So Chris Shelton, the president of the Communications Workers of America, which is a union, said workers shouldn’t be required to trade off one set of job, health and safety protections in order to get protections from another equally dangerous condition. This order means that the Asbestos Workplace Standard, for example, could be discarded in order to adopt safeguards for nurses from infectious diseases in their workplaces.
Trump has vowed to repeal 75 percent of all federal regulations, a tall task considering there are more than 170,000 pages of rules in the Code of Federal Regulations. So the President’s “One In, Two Out” order is part of his larger plan to roll back not only controversial regulations from Obama’s administration but also outdated regulations.
And here’s what I wanted to say because this is interesting to me, and also this is going to date this article and date this podcast because it references what Sean Spicer says in defense of this regulation, which we all know, Sean Spicer is in a dungeon somewhere and now it’s what’s her name – she’s the daughter of Mike Huckabee. Huckabee Sanders? Sarah?
Smith: Sarah.
Schenk: Sarah Huckabee Sanders has now basically taken over the Spicey role. But Sean Spicer at a presser said, “The bottom line is that over-regulation has stemmed economic growth and job creation. Reviewing those to make sure they are meeting their intent and not siphoning job creation at the expense of whatever they were intended to do is something that should be welcomed by everybody,” which is one of those non-answers. It’s crazy.
Smith: Yeah, but it’s also one of those things like look, let’s say I accept your premise, which I’m really inclined to do, to be honest with you, that over-regulation and an increase bureaucracy have slowed business growth. Awesome. But if your solution is launching watermelons at a random wall, like your solution has to actually fix the problem. And one of the issues that I have with this solution is not only is it ridiculous because it’s a bad idea to force people to get rid of regulations that may be effective in the hopes of reducing overall regulation. It also sounds like it might be a completely toothless law, executive order, because it says in the beginning, “Unless otherwise prohibited by law,” which means that they don’t have to do it if there’s a law that says, “No, you have to have that regulation.” So that could be a way that you read it, which means this might just be lip service. So it’s almost like if it says, “Unless it’s not a good idea, this is what I want you to do.” So you never really have to do it because you can always say, “Well it’s not a good idea.” Or in the example that they’re giving here, do we have to get rid of asbestos protections in favor of something else? Well if it’s prohibited by law, maybe not. I’m certainly glad people are attacking this with an injunction, but I want people to understand this is probably just lip service because that very first sentence is a weasel phrase that makes the rest of this just completely inoperable.
Schenk: And we’ll find out, I mean like I think that we’ll keep going back to this and find out what the status is of this actual lawsuit is, whether or not they’re successful, but I don’t think they’re going to be. What’s interesting at least to me about this particular action is that these plaintiffs, the public citizens, the Natural Resources Defense Council, the Communications Workers, the people who have brought this lawsuit have sued individually the President and the heads of various agencies, which is required by the 11th Amendment, which we won’t get into very much, but a particular court case that narrows the scope of the 11th Amendment is you can’t sue a state for money damages in federal court – that’s going to get way too in-depth on stuff. But the reason I even bring that up is because – what’s the case I’m referring to, Will?
Smith: Is it Hans v. Louisiana?
Schenk: Yes, so Hans v. Louisiana says you can’t sue a state in federal court for money damages, but you can sue for injunctive remedies, meaning that you can request that the court tell somebody to do something or not do something. And the real reason why I bring that up is because it’s one of the most cited cases in all of I guess American common law, and that case makes me mad, because when I was in law school, the Internet connections weren’t as powerful as they are today. And so whenever you would go to read that case, it would take 10 minutes to load because of all the citations to it – I’m talking about it’s been cited 50,000 times. So if you forgot that’s the case and you clicked on it, your computer would shut down because it couldn’t load the case fast enough because of all the sites that came with it, the citations that came with it. That is actually the most exciting story I think I’ve ever told on this podcast.
Smith: If you had ever taken a class at Toastmasters, that needs to be your graduation speech for sure.
Schenk: Can you graduate from Toastmasters?
Smith: Well you can get a certificate or something like that.
Schenk: Well I will say this, that Toastmasters will generally award certificates for fabulous outros and fabulous endings to various speeches.
Smith: That’s not true, but I like the segue. And speaking of segues, now let’s…
Schenk: Let’s get on our segway and put our helmets on and drive to the end of this podcast. With that befuddled and ridiculous monologue by me, your humble host, we now draw to the end of this podcast. This has been the Nursing Home Abuse Podcast, which is available for download in two different forms. You can either download the audio on iTunes or Stitcher or where you get your podcast from, or you can watch this podcast on our YouTube channel or at our website, which is NursingHomeAbusePodcast.com – NursingHomeAbusePodcast.com, and with that, we will see you next time.
Smith: See you next time.
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