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 47 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 episode. As this episode goes to air, it is December 4, 2017. The holidays are upon us. I think as early as June, I was seeing Christmas things at like the Publix and the Krogers.
Schenk: So now we’re full blown in it. We’ve got about three weeks before Christmas.
Smith: This is my favorite time of year just because everything starts to shut down. Courts shut down and it’s just – it feels like a long, extended vacation.
Schenk: Yeah, you just write off December. It’s like, “Hey, let’s schedule some depositions for the 12th and 13th.” It’s like, “What? What are you talking about?”
Smith: Courts don’t want to have calendars. They certainly don’t want to have trials. You’ll get that one sadistic judge every once in a while who’s willing to have…
Schenk: I got countered for trial on the 21st of December two years ago.
Smith: Did you end up going?
Schenk: No, we settled before, but I think it had probably something to do with the fact that…
Smith: Yeah. That’s a good way to reach a settlement.
Schenk: To have your attorneys come in on the 21st of December. Yeah, so no.
Smith: So this is your favorite time of year?
Schenk: My favorite time of year is the dead of summer, maybe a little bit of spring.
Smith: I like spring, fall and December. Those are the only things about the calendar.
Schenk: About anything.
Smith: About anything.
Schenk: About anything.
Smith: Yeah, I don’t like January through March and I don’t like – well June is my birthday, but July and August are too hot.
Schenk: Will is kind of like crotchety old man.
Smith: Yeah, a more neurotic Goldilocks.
Schenk: Anyways, well happy holidays to everybody.
Smith: Happy holidays.
Schenk: Seasons greetings.
Smith: Seasons greetings.
Schenk: What do we have on the agenda? What’s in the “hopper?”
Smith: We’re going to have to find out if that’s actually a term or not.
Schenk: Which we have never done yet.
Smith: Yeah, we’ve made it up. So I want to continue my coverage of the conference that I went to. I had touched on in the last episode, at least briefly touched on the 30th anniversary of the Nursing Home Reform Act, the new regulations that go out for CMS October of 2016 and then November of this year and then November of next year. And there were two other main topics that we discussed that I thought were really important. One of those was sexual abuse and the other one was the use of anti-psychotics medicine and psychotropic medicine in nursing homes.
So first for sexual abuse, to put this in perspective, there are 1.5 million people in nursing homes throughout the U.S. And out of that, and this may first may seem like a small number, there are just under 2,000 yearly reported incidents of sexual abuse. That doesn’t seem like a lot out of 1.5 million.
What you have to remember though, and there was actually a very, very good investigation by CNN recently on the amount of sexual abuse in nursing homes, what you have to remember is the number of unreported cases is staggering. It is absolutely staggering. We really have no way of knowing what the total number is, but I can tell you it is vastly more than 2,000.
The problem is you have individuals who, like many sexual abuse victims, don’t wish to immediately come forward, and we’ve seen that in the media in the last couple of months that people have been coming forward on a lot of very high-power celebrities years and years and years and years after the fact because people, they’re embarrassed, they feel guilty or they feel threatened. They don’t want to come forward on these issues.
And in nursing homes, you’re also dealing with individuals who have cognitive issues, so you may have somebody who has Alzheimer’s or dementia or various other ailments, everything from Creutzfeldt-Jakob disease, which I took care of a lady who has that – it’s Mad Cow disease essentially. It’s a very heartbreaking condition that affects your mental faculties. But they have various issues and they may not remember. They may not be able to communicate what’s going on.
But it is a big issue and it is happening way too often, and I highly suggest if you get a chance to check out the CNN investigative report on sexual abuse in nursing homes. And essentially what we’re looking at is it is – and we’ve talked about this before – it is being perpetrated by other residents, by family members and by the staff as well. And something interesting that I had never really thought about, but I heard somebody talking about at the conference I went to is that sexual abuse can be everything from unwanted sexual touching or rape all the way to staff discussing amongst themselves sexual issues in front of the residents. I’m sure that I’ve had seen that before as a CNA.
Schenk: So give me an example of that. Is that like telling a dirty story?
Smith: So for example – it could be telling a dirty story or even talking about their weekend. I mean let’s say two CNAs are taking care of Mr. Johnson who may be able to speak or may not be able to speak, and they’re giving him a bed bath or they’re working in his room, and they’re talking about a date they had over the weekend and what happened and they’re being explicit. That is sexual abuse because you have a captive audience and you are forcing them to listen to sexually explicit material that they may not want to listen to.
And same things happen with people who tell dirty jokes to residents or telling dirty jokes to other staff members. There was a scenario that one of the conference attendees was telling me where she was called in to – and this was an ombudsman – was called into a nursing home because one of the nursing home residents insisted on telling dirty jokes all the time, and one of the other residents, she couldn’t really speak for herself, but her family didn’t want her subjected to that because she was not the type of person who was interested in hearing that, and they didn’t want her around that. So that can be sexual abuse as well.
Another attendee told me of a situation where a family member would come in, and as are the vast majority of nursing home rooms, it’s not a private room. Most nursing homes, the rooms are two to a home. And we actually went to one in DeKalb County, and we’re not going to name it, that was actually four to a room. That’s too much.
Schenk: Oh yeah, that was last week.
Smith: Yeah, so but there’s another individual in there and this family member would come in there and when that resident that the family member was visiting would go to dialysis, they would watch pornography on the television, which is a very strange circumstance, but that is sexual abuse.
And then you have the story of – remember the Iowa former legislator – what was his name? Heybourne?
Schenk: The guy in the airport?
Smith: No, he was accused of rape of his wife who had Alzheimers.
Schenk: Right, that’s right. We actually talked about that on our podcast in our way earlier episode.
Smith: Yeah, I cannot remember his name. I think it was Heybourne – Ray Heybourne I want to say that it was. Anyways, I can’t remember his name but he was a former Iowa congressman and he was accused of raping his wife, ultimately acquitted. She was a nursing home resident and he was visiting her and would, per the allegations, there was sexual conduct that occurred between them.
But this is a huge issue apparently and that’s why I say the 1,000 and 1,500 yearly reports out of 1.5 million residents is not an indicator of how prevalent this is. Without question, I have seen it myself in every single nursing home that I’ve ever worked in. There have been allegations and many of them substantiated of sexual abuse. What I tend to see the most often is resident on resident sexual abuse.
Schenk: And that makes sense because I mean we’re all sexual beings. We don’t become non-human when we enter it, and there was a story from October of this year where former President George H.W. Bush was accused of groping from his wheelchair. He’s what – 93 years old? It was like, “Who’s your favorite magician? David Cop-a-feel,” and he would touch the girl on her butt.
Schenk: David Cop-a-feel.
Schenk: So he would do that and he’s been accused of doing that two or three times.
Schenk: But he’s in his 90s, you know what I mean?
Schenk: So it’s not far-fetched to think that these residents still have not necessarily needs but thoughts.
Smith: I also think that one of the issues between Stephen Hawking and his first wife was that there were allegations of infidelity well after he succumbed to the wheelchair.
Smith: I’m pretty sure because I remember being impressed just thinking – I mean individuals who are wheelchair – my mother’s in a wheelchair and almost a decade after she had been in a wheelchair, she gave birth to my two brothers. But I just remember being impressed by that.
But anyways, individuals who are elder still have sexual desires, sexual feelings. They’re still human beings. And so that was one of the major issues I guess at the conference. And the issue is we need to bring this to light because it is vastly underreported. I mean 2,000-something cases out of 1.5 million reported cases, it gets thrown to the wayside and people aren’t looking for this. So it’s a big issue that hopefully if CMS begins implementing these new regulations that include a definition of abuse and that focus more on sexual abuse, that hopefully this curtails a lot of this sexual abuse.
Schenk: Yeah, some of that will need to be adequate definitions of what sexual abuse is.
Smith: Yeah, like I said, I had never really considered the fact that sexual abuse can be two staff members talking about their weekend in front of residents or telling a dirty joke.
Schenk: Yeah, and that’s the thing, that we as a society, and again with regard to the recent allegations – Louis C.K., Harvey Weinstein, Kevin Spacey – we as a society need to get together in terms of obviously bring awareness to this issue but define what are we talking about?
Schenk: What is sexual assault versus sexual abuse – that kind of thing.
Smith: Yeah, no I absolutely agree with you. And while Rob was discussing that, I looked it up and it was Henry Rayhons. Yeah, he was 78. He was found not guilty of sexually abusing his wife. And I bring that one up just because it was an issue recently, not because I have a definite opinion on it. I mean sexual abuse is something we have to take into account and guard against, but at the same time, two people are married and they want to engage in sex, if it is consensual, it doesn’t really matter that one of them is a nursing home resident. It doesn’t matter what the staff’s perspective on that is as long as it is consensual. Now that was the issue in this case and they simply just didn’t find there was enough evidence that sex had occurred, so I don’t think they ever reached the issue of consent.
But the other issue that we talked about at the conference was the use of antipsychotics, and this is a major, major problem. Psychotropic medicines are medicines that affect the mind, so it could be something like Ativan, could be Xanax that affects the mind. It’s not something you take for kidney issues or high blood pressure. It is affecting your mentality. Antipsychotics are like Haldol. Haloperidol is a big one. You take it when somebody is psychotic and they’re having either delusions, they’re lashing out, they’re being extremely aggressive. They are, in a sense, a restraint. They’re a chemical restraint. And the issue is they are being far, far overused in nursing homes. So like physical restraints, antipsychotics, psychotropic drugs are not allowed merely for staff convenience.
Schenk: Okay, so for the listener, why would it be used?
Smith: So for example, so imagine if you will, you’ve got Mr. Johnson who is 78 years old, has Alzheimer’s and dementia, doesn’t know where he is, isn’t sure who he is, but he’s 6-foot-3 and he’s a pretty strong man and he’s constantly walking around, pushing things over, picking things up. Imagine if you will, and I don’t mean this in a condescending way – this is realistic – imagine a 6-foot-3 infant who is walking around, picking stuff up off of counters, going into rooms that he’s not supposed to. He takes up a lot of staff time because they’re constantly following him around and they can’t just tie him down somewhere.
So what will happen a lot of times because it seems less restrictive and it’s definitely less obvious a restraint, is that they will give him some sort of medication that kind of knocks him out, and it’s really unfortunate but you will go into many of these nursing homes and see residents who are just plastered. They are just as zoned out, completely off to see the wizard on some medication that they’ve been given. And so there’s nothing to deal with anymore. They’re sitting there in their Geri chair, which is the chair – it’s kind of like a medical Laz-E-Boy. They’re not moving around. They’re watching a Cheech and Chong movie in their head and they’re easy to deal with.
The problem is that’s a restraint, and the problem is that they’re being given those medications to make them easier to deal with, and that’s against their rights, their rights as a resident. It’s hard to deal with a 6-foot-3 infant that walks around going into people’s rooms, but that’s what you have to do sometimes.
Now that doesn’t mean you can’t use antipsychotics. So for example, let’s say that Mr. Johnson is violently lashing out and he’s going to hurt himself or other residents. Absolutely, there’s a reason why they make antipsychotics. And so if his doctor prescribes him something, he can do that. And the federal regulations 483.25 concern how you go about doing that, and it has to be necessary to treat a documented medical condition. So he’s got dementia and he’s extremely aggressive or he’s got a bipolar disorder or he’s schizophrenic and he’s a threat to himself, he’s a threat to other residents and he’s a threat to staff – not an inconvenience but a threat, then he can be put on these antipsychotic medicines with the understanding that it is intended that they slowly reduce the dosage with the goal of getting him off completely.
Now one of the ways that nursing homes tend to get around this is there is an allowance to this that he can be put on antipsychotics PRN, which is just in medical abbreviations means “as needed.” And what happens is they take as needed to mean whenever we want to put him on that so that we don’t have to deal with him.
Now under the PRN rule, it can only be for 14 days, but by and large, it is ignored, because I can tell you both as an attorney and a CNA, I have firsthand seen residents who were just zonked out completely on some sort of medication for months and months – the whole time that I knew the resident – were completely knocked out. And sometimes families are even complicit in this, and this is just a total violation of a resident’s rights.
So these two issues – sexual abuse, sexual exploitation and antipsychotics – were also big issues at this conference, and the new CMS regulations, should they ever take flight and become enforceable under this administration, are seeking to address the use of antipsychotics by adding to the regulations and seeking to address the issues of sexual abuse by increasing the definition of sexual abuse and by bringing more staff awareness to what constitutes sexual abuse.
And that’s important. Staff training is extremely important in the reporting of sexual abuse, something that I forgot to mention, because staff don’t know the proper procedure for handling a sexual abuse complaint. So to go back to sexual abuse for a second, one of the things that we found out at the conference is that oftentimes, when there is a complaint of sexual abuse, staff inadvertently, without ill intent, destroy the evidence. So we had an ombudsman telling us a story of a woman, a nursing home resident, complaining of rape, and the staff sent her to the ER to have a rape kit done, but before they did that, they gave her a shower and cleaned her clothes and laundered her old clothes, so they effectively destroyed all of the evidence, or the vast majority of the evidence in the case.
So anyways, the purpose of these new regulations is to bring new awareness to these two very important issues, not only to the public, but also to the staff to help them maintain residents’ rights and residents’ quality of care. But that’s going to be basically it for the 40,000-foot view of the conference. We discussed…
Schenk: And again, just so the listener knows, this was a conference that Will attended the first week of November. We talked about it a couple of podcast episodes ago, Will’s adventures in Washington, D.C. with the 200-plus ombudsmen.
Smith: Yeah, it was great. And like I said, it culminated with us going and listening to Congresswoman Debbie Wasserman Schultz and Jan Schakowsky talk about nursing home issues. And it was various issues that we discussed, mainly circling over the proposed rules for CMS. And in upcoming episodes, we’re going to get into some of the details of these rules and the various three phases because those are very important and we’ll start talking about whether or not this administration is going to enforce these new regulations.
Schenk: Yeah, but on the horizon, as far as next week and the week after, we’re going to have a guest again. Paul Black will be with us next week.
Smith: Yeah, Paul. Paul and I went to law school together. He is an elder law attorney. They deal with Medicare, Medicaid issues, veteran benefits, eligibility…
Smith: Guardianships, estate planning, all of that stuff, so we’re looking forward to it.
Schenk: Yeah, it’s been a while since we’ve had a guest. It’s been a few weeks. Last guest we had was Scott Fields.
Smith: Scott Fields.
Schenk: Scott. Scotty Scott.
Smith: Then after Paul Black, we’re going to have former assistant district attorney Richard Armond. I actually went to law school with his wife, Kylene, who is still in the ADA’s office.
Schenk: In Gwinnett County, Georgia.
Smith: Gwinnett County. So anyways, we have the rest of this year, we’ve got…
Schenk: Lots of good, entertaining guest. Good episodes coming up. So that’s actually going to complete our episode for this week. As you know, you can download our podcast, listen to it on your way to work, exercising, at the house cooking dinner, wherever you listen to your podcast from via Stitcher, iTunes or any other app that you have that you can download podcasts on. Or you can watch us.
Smith: And possibly Spotify.
Schenk: And possibly Spotify. See, as we go to air, I’m not quite sure we’re going to be on Spotify yet, but I think…
Smith: It’s on the horizon.
Schenk: It’s on the horizon if it’s not already. So go check out Spotify. I can’t wait to add Spotify to the opening introduction of the show, like, “Check us out on Spotify,” because if you remember, it was just Pandora.
Smith: Yeah, I remember Pandora.
Schenk: And if you liked something, it was like, “Yeah, I really want to listen to Ray Charles,” and it would only play anything but Ray Charles because of the listening. So it’d be like, “I love Ray Charles,” but it starts playing like Liberace. And then Spotify came along and it was literally like, “I want to listen to this album,” and it would play it, but it would shuffle it. And I have Spotify Pro because I listen to music constantly, so I want to listen to one song over and over and over again. Anyways…
Smith: I can’t imagine why anyone would ever purchase music anymore. I mean the way musicians make their money now are off of concerts. You don’t make it off of…
Schenk: And I got into it – I don’t know if we – anyways, got into an argument with somebody about the fact that we’re going to regress, thankfully, back to where only people who are doing it for the love of music do it. Like when Woody Guthrie – who was the guy that would jump on trains, “This Land is Your Land?” Arlo Guthrie?
Smith: I don’t know. Sorry, can’t support you on this.
Schenk: He’s living off of the gratitude of the people, like, “Here’s a dinner for you. Play a couple songs for us.”
Smith: Yeah, that was the ‘60s though.
Schenk: I was talking about the ‘20s or ‘30s, where it’s like there is no music industry. It’s just dudes and ladies going around making music for the love of it. That’s what I like. So thank you, Spotify, for killing the music industry. Anyways, that completes this episode. You can also watch us on NursingHomeAbusePodcast.com or our YouTube channel, and with that, we will see you next time.
Smith: See you next time.
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