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 to episode 44 of the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we are trial attorneys focusing in the areas of nursing home abuse and neglect in the state of Georgia, and we are your co-hosts for this fantastic, fantastic episode. A lot of things in the hopper. Is that right? What’s a hopper? Is that like a crock-pot? Is that right? Did I say that right? We’ve got something ready in the hopper, ready to go?
Smith: I have no idea what you’re talking about.
Schenk: I think that I might be mishearing something.
Smith: Yeah, I think you’ve completely made something – you’ve fabricated a colloquialism that doesn’t exist.
Schenk: But made it my own now.
Smith: Yeah, sure. I can see that.
Schenk: That’s actually a story about Steven Tyler from Aerosmith used to do that, like he would hear lyrics from Rolling Stones and think that they were saying one thing, and when he realized they weren’t, he just did that. And I think that “Love in an Elevator” was one of those.
Smith: I feel like that’s one of those urban legends that isn’t true.
Schenk: Yeah, I might have also made that up.
Smith: Like Marilyn Manson was…
Schenk: Was on Wonder Years?
Smith: Yeah, like Marilyn Manson was on Wonder Years.
Schenk: Yeah, so the reason why we have an extra special episode in the tank is because Will is back from his jaunt in our nation’s capital for a convention that I will let him tell us about. Boy, his arms are tired because he’s back from Washington, D.C.
Smith: Because I just flew in. Well I just flew in yesterday morning. It was a very long conference and I love, love D.C. I love to go to the museums, the restaurants. It was an amazing conference and I’ll get into that in just a second. But on the last day there, after we had a meeting at Capitol Hill with some congressional representatives, I went to the airport and my mobile ticket, because now you don’t need a paper ticket, they send it to your phone – my mobile ticket had the wrong gate number, and I’m sitting there at the gate and it’s getting closer to boarding time and nothing’s going on. And by the time I realized, “Hey, I don’t think this is the right gate,” it’s too late for me to get over to the right gate because the Reagan International Airport, DCA, it’s not like Hartsfield where it’s an enormous airport.
Schenk: Miles of gates.
Smith: But they’re connected. In this one, you have to literally go to the tarmac, get on a shuttle bus that takes you over to the other terminal.
Schenk: Yeah, that’s like LaGuardia.
Smith: Which might as well take four, five days to do. It’s like the Oregon Trail. So by the time I’d got there, I’d missed the last flight and I had to spend the night again. So I got three hours of sleep.
Schenk: You were very upset about that.
Smith: Oh yeah, and I missed three hours of sleep, got back just in time to go to a guardianship CLE.
Schenk: What’s a CLE for the people that don’t know?
Smith: Continuing learning education?
Schenk: Continuing legal education.
Smith: Legal education.
Schenk: You can also learn your education, but that’s fine.
Smith: Attorneys, like doctors and other licensed professionals, are required to update their knowledge to keep getting informed on current events within their practice area every year to the tune of 12 hours, we are. So this was one of those programs, and as a good segue, small world, I actually saw Melanie McNeil, who is the Georgia state – the head of the Georgia long-term care ombudsmen program at the guardianship CLE, and I had just seen her in D.C. as well.
Schenk: Oh that’s cool, following you around.
Smith: Yeah, well I think she thought I was following her around.
Schenk: Oh, the other way around. Okay Will, so let’s do this because nobody knows us. What’s the name of the conference?
Smith: So this is the Consumer Voice Annual Conference – and Consumer Voice, and I’m going to be reading this just so I get it right on their behalf, was founded by Elma Holder in 1975, and it was originally called up until recently, and this will give you an idea of what it is that they do, it was called the National Citizens Coalition for Nursing Home Reform. And it’s goal was and is to improve the quality care of long-term care consumers. It is a source for long-term care education, advocacy and policy analysis at both the state and federal level. The organization’s ongoing work addresses issues such as inadequate staffing in nursing homes, maintenance of residents’ rights and empowerment of residents and support for family members and development of family councils among other important issues. So essentially, you hear all the time the phrase “special interest groups” and how Washington is…
Schenk: Filled with them.
Smith: Filled with special interest groups, from the banking industry to the oil and gas, and the concern is that these special interest groups with a lot of money, the nursing home industry, the owners of nursing homes, the corporations that own these, are an enormous special interest group. So what we have here is a special interest group on behalf of nursing home residents who are trying to even out the scales here.
Now you can image this special interest group, Consumer Voice, is full of very, very passionate individuals that don’t have a lot of money. They don’t have anywhere near the buying power and the power of the purse that the nursing home industry have.
Schenk: It’s really extremely concerned citizens and ombudsmen I’m assuming. So who are the members then?
Smith: So, and this is the first time that our firm has been involved in Consumer Voice and going to this conference, and I’ve discovered by and large, and I’m going to say probably 99 percent of the people there, and there were probably about 200 people attending – it was a mid-sized conference – I’d say 99 percent of them were ombudsmen.
And just to recap on what ombudsmen are, ombudsmen are resident advocates. Their sole goal is to advocate any desire, any legal desire on behalf of a resident. So for example, if a resident says, and it really literally could be anything – they don’t fine nursing homes. They don’t cite them. They can report to CMS as necessary, but their sole goal is to be a voice for the resident. If it’s anything from the resident says, “I want to eat hamburgers every day,” whether or not that actually ends up happening is not up to the ombudsman. The ombudsman job is to go, “Okay Mrs. Johnson, I hear you and I will advocate that. Mrs. Johnson wants to eat hamburgers every day.” Now someone else may make that decision, whether it’s a judge or the state or CMS whether or not she’s allowed to do that, but the ombudsman’s sole goal is if that’s what you want, then I’m going to advocate it. And that’s an innocuous, a very innocuous example.
A lot of what they do is a resident may say, “Look,” – and this is something that I heard over and over again at the conference, that a nursing home is first and foremost a home. So this is this person’s home. So if Ms. Johnson doesn’t want to get up on first morning shift, it’s her home. She doesn’t have to. So an ombudsman would come in and try to negotiate and work with the nursing home and go, “Well she doesn’t want to get up until noon. The woman’s 80 years old. She can do whatever she wants to.” It doesn’t matter if it’s convenient for the staff or not. So they’ll work something out like that.
In our perspective, a lot of times what happens is people will call us up, and we’re nursing home neglect attorneys. We sue nursing homes for medical malpractice. A lot of times what’ll happen is when people will call us up with a complaint against a nursing home and it falls substantially below what remedy we could provide, we’ll tell them to call the local ombudsman because if you have a complaint about a nursing home, the best place to look is your local ombudsman.
Schenk: So the majority of the individuals at this conference are ombudsmen.
Smith: The majority are ombudsmen. Then you have somebody like me – actually I think that our firm was the only nursing home medical malpractice firm at the conference physically. And then you may have some policy researchers. The very first, actually the very first seminar that we attended was put on by these researchers who were looking into the correlation between the actual quality of care and consumer satisfaction with a nursing home. It was a lot of statistical analysis and kind of dry information, but it was somewhat interesting, because basically what they’re looking at is consumer satisfaction with a nursing home doesn’t always relate to the quality of care. For example, hospitals discovered that your experience – and I thought this is interesting, that your experience in the parking lot of the hospital before and after directly affected your perspective of your care in that hospital. So if you had a bad experience in that parking lot either before or after, you tend to be less satisfied with your care in the hospital, which is why they started moving staff parking further away from the hospital and visitor and patient parking closer.
Schenk: Yeah, that makes sense. It’s a customer experience.
Smith: Yeah. And the reason why this is important is they’re constantly looking at different ways of improving the CMS five-star rating system. So the question is should we start including in the matrix, in the rubric for analyzing this, should we start including customer satisfaction? And it’s not going to go in there yet because there are a lot of subjective concerns, subjective factors that don’t relate to quality of care, but it was really interesting.
And it also goes to show you a good bedside manner can really be effective. We have a client now that I won’t name the facility, we have a client now that was dropped on her knee after she had a total knee replacement. It busted her knee – she’s had four surgeries since then. Her initial complaint to the facility got her a typed letter, a boilerplate letter that said, “Hey Mrs. Whatever, we’re so sorry about your experience. We hope that you continue to stay with us and have a nice day,” something to that effect.
Anyways, so you’ve got researchers there. You’ve got the vast majority are ombudsmen, and you have other individuals who work on Capitol Hill or work in their respective states.
Schenk: And that’s what I was going to say – so like is it like, is one of the goals of the organization particularly meeting in Washington, D.C., is do they draft legislation? Do they suggest legislation?
Smith: They do. They try to influence legislation. So there were a couple major topics here, and I’ll get into all of those, but one of the major topics has to do with CMS regulations. So in 2016 in October, CMS rolled out new regulations that are going to hit nursing homes in three different phases. The first phase was November 28 of 2016. The second phase is November 28 of this year, 2017. And the third phase is November 28, 2018. And we all know what happened in November of 2016, that CMS underwent an administration change.
Schenk: New boss.
Smith: New boss. So the current administration is less nursing home resident friendly and more nursing home industry friendly.
Schenk: To put it lightly.
Smith: To put it lightly and not to try to get too political. But that is exactly what’s going on. So the big concern at this conference among the other issues that I’ll get into, the big concern at this conference has to do with CMS – what’s the word I’m looking for? – capitulating to the nursing home industry in delaying or eliminating these phases. And these phases – and I’m going to go ahead and get into this.
So this conference marked the 30th anniversary of the passage of the Nursing Home Reform Act, which was part of an Omnibus Budget Reconciliation Act of 1987. So just a little information here on Omnibus Budget Reconciliation Acts – there have been several throughout the years – throughout the ‘80s under Reagan. There were several under George Bush. Then there were several under Bill Clinton. And all an omnibus act is – omnibus comes from Latin – it means “for all” and it had to do with the passenger carriages that can carry a lot of people. Omnibus acts in law are a single legislative document that contains many laws and amendments. So the Omnibus Reconciliation Act of 1987 wasn’t just about nursing home reform law. It had to do with a lot of different things.
One of the things though that is most important is that it introduced the Nursing Home Reform Act of 1987, which this conference marked the 30th anniversary, which drastically changed the landscape of nursing home regulation. I had the opportunity to talk to one ombudsman who was a former nursing home administrator, and she told me that she was a nursing home administrator prior to this act in ’87, and she said it was the Wild West. She was telling me, “If you think it’s bad now, you should have seen it in the early ‘80s and even in the ‘70s. It was ‘One Flew Over the Cuckoo’s Nest.’” I mean what regulation there was, was not enforced. It was really just a nightmare facility where people were dropped off. If you’ve not seen “One Flew Over the Cuckoo’s Nest,” it’s about Jack Nicholson getting put in this essentially mental institution, insane asylum.
Schenk: Yeah, we had to read that in 10th grade.
Smith: Yeah, 10th grade – 10th grade.
Smith: Your emphasis on syllables is so strange.
Schenk: Okay, yeah. You threw me off there. Okay.
Smith: So yeah. So this drastically changed the landscape of nursing home regulation. I mean it was a huge win for resident empowerment and resident rights for the first time in the nation’s history, this nation’s history.
Schenk: You’re getting excited.
Smith: Too excited. I am excited and this is a really exciting conference, and I’ll get into the most exciting part in just a second here. For the first time in this nation’s history, this marked – it was a milestone that for the first time, you had to follow certain rules and regulations in order to take care of residents and to get money from the federal and state government. And if you didn’t, you are going to get fined and you are going to get fined a lot of money. And it wasn’t just, “Hey, don’t do this anymore.” Your business could be shut down. So this is when we start getting resident rights. This is when we start getting standards of care. Things really turn around.
So this is the 30th anniversary. We got into the history of the Nursing Home Reform Act, but mainly we talked about the revised federal regulations. So the purpose of the new revisions were to put – and I’m going to be reading these off just so I get them all – more focused on person-centered care and addressing residents’ individual needs and preferences.
For example, I gave the story of a woman that wanted to get up at certain time that were not consistent with staffing schedules. That actually comes from a story that we heard at the conference from a nursing home resident, and I should say that that 1 percent that were not ombudsmen also included about four or five actual nursing home residents. And one such lady was actually probably around our age and unfortunately had cerebral palsy and had been in a nursing home for the vast majority of her adult life, but she gave a really moving story. She’s like, “I am an adult. I am a human being. I don’t want to get up at 7 o’clock in the morning. I don’t need to and I don’t want to. These are the times I want to get up.” And so that’s one of the things that state regulators – the word I’m looking for is – should be doing. And the reason why I say should is these regulations are subject to debate. They haven’t gone in yet.
So these are the goals of the new regulations is it allows residents more power over their lives, better planning for resident care. This is going to be a major issue in the new regulations should they come around, and that has to do with a resident care plan and who is involved in the resident care plan.
So a resident care plan is essentially it starts as a meeting which should take place for all long-term care residents that involves the director of nursing, the nursing staff, the doctor and absolutely should involve the resident, although sometimes it doesn’t. Whether or not they’re cognizant or not, it should involve the resident. So the goal of that is to address the resident’s emotional needs, spiritual needs and medical needs and to try to provide the best all-around care possible. I mean this is where you make the decision, “This individual doesn’t want to get up until noon.” “This individual is Muslim and wants to pray five times a day. We need to make sure that happens.” “This individual doesn’t eat mashed potatoes.” “This individual is on Coumadin so we have to make sure that she’s extra protected from bruising or cuts or something like that.
So the new regulations are going to focus on improved care planning, improved staff training and improved staffing period. And one of the issues is currently so staff that have direct care of nursing home residents are certified nursing assistants (CNAs), licensed practical nurses (LPNs) and registered nurses (RNs). Licensed practical nurses are extremely valuable, very knowledgeable, and I am in no way disparaging them at all. My father was an LPN for several decades in nursing homes and he was an amazing nurse. But registered nurses, RNs, have more education and they have allegedly a higher degree of medical knowledge. Now I will tell you that in my knowledge, LPNs, being in the trenches, are usually the ones you want giving you shots and taking…
Schenk: Yeah, they’re doing the dirty work.
Smith: Yeah, because they know how to do things. But people feel comfortable having RNs available to make certain medical decisions. As it currently stands, RNs are not required around the clock. In Georgia, for example, they’re only required to be there eight hours a day, so the remaining time, as long as there are LPNs and CNAs, that’s fine. The new regulations are looking at increased requirements for staffing, including how long RNs are supposed to be available. Now they’re on call when they’re not there in case something comes up, but now they’re looking into perhaps they’re going to be there 24/7.
So improved protections against abuse and neglect and exploitation – and as a matter of fact, one of the changes that both sides are a little ambivalent on is because it’s really just an administrative change but it’s a little annoying when you change what people are accustomed to are changes in what are called the F-tags. And F-tags are just a nomenclature, just a description for the specific federal regulation that deals with a specific topic. So for example, there are a list of different F-tags, and I wonder – we could probably put this on our website.
Schenk: Yeah, we’re actually working with our website guy to figure out how to do it, not as an FAQ, basically as an annotated regulations.
Smith: Yeah, and F-tags, as they currently stand, everybody that works in regulation and nursing home inspections has them memorized, because you can say, “Oh well, the F-tag for sexual exploitation is here,” and it’s grouped by category. It could be exploitation, abuse, neglect, staffing, administrative.
Schenk: That’ll say the nursing home shall not or shall provide…
Smith: Yeah, and they’ll say, “This is a violation of this F-tag,” and it’ll group it by categories. So they’re changing that. But they’re just changing the number and the nomenclature so it’s a little frustrating. But the reason I bring this up, for the first time, and this is found in a new appendix in the current state operations manual of CMS, for the first time, there’s a definition of abuse and neglect, and it’s really interesting. And the current – I don’t think I wrote this down – but essentially, yeah, I looked at the definition of neglect, but essentially it’s a failure of a nursing home to provide any emotional and medical personal need to a resident that ends up in harm. I mean it’s a really broad definition. It’s much broader than what a legal standard of care definition is, so I’m not sure how that’s going to play out just yet. But it’s interesting that they’re doing this.
So you’ve got all of these new regulations, and with new requirements and with new regulations, you’re going to have industry pushback because the industry has to adopt these policies, change their current policies in implementing these new requirements or face serious fines. And we’ve talked about fines in the past. And these CMPs – civil monetary penalties – and the nursing home industry and the U.S. House of Representatives, the voice of the people, is siding with the nursing home industry, have requested that there’s a reevaluation of these requirements of participation, that the providers get more time to come into compliance, and even that these new rules and regulations be suspended or delayed. So not only is the nursing home industry asking for this, but 120 members of the U.S. House of Representatives, and I’m going to see if I can get a list of these individuals and post them online so you see who does not have your back, and I mean you, unless you are the owner of a nursing home.
One hundred and twenty members of the U.S. House of Representatives and also CMS are starting to go against these new regulations because CMS, like I said, is now under new administration. So the previous administration, you saw CMS putting out a rule that said that if you have a forced arbitration clause in your admission contract that you’re not going to get money. So if you’re getting money from the federal government for Medicaid or Medicare, you can’t have an arbitration clause.
Schenk: And then immediately…
Smith: Not only is that no longer the case, but now there’s a possibility that CMS is proposing a rule to not only allow arbitration, but allow it to be a requirement for admission.
Schenk: So the exact opposite of what the previous administration…
Smith: It’s bizarre CMS. It’s like if Captain Planet’s organization got taken over by – who’s the bad guy in Captain Planet?
Schenk: I don’t know. I was 25 years old when that show came on.
Smith: I watched it. But you see what I’m saying. Oh here’s something I know you’ll like – it’s like if Lex Luthor took over the Justice League.
Schenk: Right. So like if the Legion of Doom began to take control over the Hall of Justice.
Schenk: Yeah, I got it. Well I don’t want to cut you off there, but it sounded like a great conference and it sounded like a good time. I wish I could have been there. I also wish I could have been here for this episode.
Smith: I’ve got more to talk about. There are still other issues. How much time do we have?
Schenk: We have – I mean it’s been 30 minutes so I mean maybe we can save it for another episode?
Smith: Yeah. Yeah, so there were other issues there, the use of anti-psychotics, sexual exploitation, and I want to get into those. I do want to say real quick the last thing which was amazing was that we had two individuals from CMS come and discuss the proposed regulations and whether or not CMS was actually going to institute these. They spoke for an hour, and at the very end of it, Robin Grant, who is the head of advocacy for Consumer Voice, she was the moderator, she took the microphone and said, “Normally I’d allow 10 minutes of questions and discussion, but instead, I’m going to use my position and the fact that I’ve got this microphone to give you a message to take back to your bosses.” And she lit into these poor employees of CMS, and it was a standing ovation. She was reading them the riot act, and it was awesome. Like it was the high point of the conference because she let them have it. I remember my heart rate, because I have a FitBit on, went from like 70 to 120 when this happened.
Schenk: Right. And I think you said you did a Facebook Live from that, so I might, if we can do – Jean might be able to do that.
Smith: Yeah, can you do that?
Schenk: Jean, can we do that?
Smith: I have a live video. I have a live video on my Facebook and my Schenk Smith Facebook of her talking to the employees of CMS.
Schenk: It’s pretty funny.
Smith: Yeah, it’s awesome.
Schenk: In the sense that these two poor, poor bureaucrats are getting lit into. And it’s not like they’re in a friendly room, you know what I’m saying? There’s nowhere to go.
Smith: They’re the enemy. They would say jokes and try to warm up the crowd and everybody was like, “Uh huh, that’s great.”
Schenk: Anyways, well…
Smith: I mean so that’s – the next couple of episodes, we’re going to get into…
Smith: …What happens in these different phases and what happens with new regulations.
Schenk: Yeah, depends on what Jean wants us to talk about.
Smith: Jean, it’s up to you.
Schenk: But at any rate, we appreciate you sticking around for the entire episode. As you know, this is a video podcast, so you can consume it not only in an audio podcast format on Stitcher, iTunes and possibly Spotify – we’ll be talking about that soon, but you can also watch this podcast on our YouTube channel or at NursingHomeAbusePodcast.com. I can’t remember – is that the right website? Nursing Home Abuse Podcast? It is. NursingHomeAbusePodcast.com, right? Nursing Home Abuse Podcast.
Smith: I really hope this gets edited.
Schenk: It won’t. I want people to know what it’s like to be me. Anyways, until next time, guys. Thanks.
Smith: All right. Thank you.
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