Episode 59

A Closer Look at the Role of the Long-Term Care Ombudsman

 

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The content for this podcast is provided for general informational and entertainment purposes only and is not intended as legal advice. The content of this podcast does not establish an attorney-client relationship between the hosts or the guest and the general audience. If you need specific legal advice for your legal matter, please contact an attorney in your area.

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 the Nursing Home Abuse Podcast. My name is Rob Schenk.

Smith: And I am William Smith.

Schenk: And we are trial lawyers practicing in the areas of nursing home abuse and neglect in the state of Georgia and we are your co-hosts, and that was Will. I captured Will in the middle of a yawn because he is getting used to the Daylight Savings Time, which went into effect yesterday, because as this goes to air, it is March 12, 2018.

Smith: Three days away from what?

Schenk: Wait. Wait, don’t tell me. I don’t know.

Smith: The Ides of March.

Schenk: That’s right.

Smith: Beware the Ides of March.

Schenk: I always forget that Will is like the firm’s literature buff, like he read Shakespeare when he was 4. He was the only kid walking around with Vision Street Wear saying, “Hey, beware the Ides of March. Full fathom five.”

Smith: Where am I walking around though? Because you understand…

Schenk: In the mountains.

Smith: I live in the middle of nowhere. I have no neighbors. It’s a dirt road.

Schenk: So all you had were books.

Smith: And the outdoors. And snakes.

Schenk: And snakes.

Smith: And we know from previous episodes that I was an expert of herpetology as a child.

Schenk: Whenever we’re able to accept phone calls during the podcast, I’m going to have your mom call in to verify whether or not you in fact were an expert on snakes.

Smith: We’ll just have her come on and I’ll say, “Mom, who knows the most about snakes?” and don’t give her any cue, and she’ll say, “Well you do, honey.” And that will prove my point.

Schenk: If only it were that easy in trial.

Smith: Yeah.

Schenk: At any rate, we have a very informative episode for you today. We actually have another guest. Will, who’s set up on the line?

Smith: We have William “Bill” Whited who is the state’s long-term care ombudsman for the state of Oklahoma, and he’s responsible for the daily operations of the Oklahoma long-term care ombudsman program and systems and legislative advocacy for long-term care residents. He oversees an office of 24 paid ombudsmen and about 100 volunteer in 77 counties throughout Oklahoma.

He earned his bachelor’s degree in sociology from the University of Central Oklahoma and is a certified disaster preparedness specialist. He has more than two decades of experience in the development and delivery of aging mental health, juvenile justice and human service programs in Oklahoma. His background includes 20-plus years of service investigating adult abuse and providing advocacy to residents in long-term care settings.

He currently serves as a member of the Oklahoma Long-Term Care Facilities Advisory Board, the Focus on Excellence Advisory Board and the Alliance on Aging Board of Directors. He previously served as the chairman of the Oklahoma County Coalition Against Financial Exploitation of the Elderly and is a member of the board of directors for Oklahoma Court-Appointed Advocates for Vulnerable Adults.

This guy has been doing this for a long time, really privileged to have him on the show because he’s given us some insight in states other than our own. Now if there’s anyone who wants to reach him, and this is for the state of Oklahoma, so if you’re in the state of Oklahoma and you happen to be listening to this podcast and you have a complaint or you want to reach an ombudsman, their office number is 405-521-6734, 405-521-6734 for all complaints or issues you may have in the state of Oklahoma or if you’ve got a question about the ombudsman program in the state of Oklahoma.

Schenk: Hey Bill, welcome to the show. Thank you for joining us.

Bill: Thank you for inviting me. I’m happy to be here.

Schenk: Fantastic. Well look, Bill, you’re a veteran. You’ve got some knowledge our audience seems, at least from my angle, the audience is always wanting to know is what is an ombudsman.

Smith: Yeah, because we have been doing this for a long time and I even worked in nursing homes as a CNA for 10 years before I became a lawyer, so I kind of had an idea of what they were, but I’ll be honest with you, I didn’t really learn everything about what you guys do until I went to that conference and met our ombudsman, who’s Melanie McNeil, who’s just an absolute passionate advocate. We love Melanie. And it was just fascinating to learn about you guys. So can you tell us a little bit about what ombudsmen do?

Bill: You bet ya, and first, let me say that ombudsman is a little bit of a strange word, so the history of ombudsman is it’s a word of Swedish origin, and back in the transition around the Swedish government from a monarchy to a democracy, they created an ombudsman position, which basically means “citizen advocate.” It’s kind of a go-between between the government and the citizenry.

Now that’s how Sweden used it and back during the early days in the development of the program, C. Arthur Flemming was the individual who came up with the concept to employ an ombudsman in the long-term care arena. So basically what developed here in the United States is we created ombudsmen that will act as a resident advocate but is independent from the facility and is able to look into concerns or complaints that the residents may have.

And then we take it a step further as well, not only providing that face-to-face bedside advocacy to the residents but also monitoring systems to make sure that they’re functioning appropriately to meet the needs of the long-term care residents, and part of that includes legislative advocacy, so we work directly with legislators as well to make sure that laws are being passed that are helpful to residents of long-term care facilities and the overall aging population and not harmful.

Smith: So tell us about a typical situation where a long-term care resident is going to call and ask for help for you guys.

Bill: Okay. We investigate many, many different types of complaints. We have 128 different complaint codes, and keep in mind, an ombudsman is not an enforcement entity, so we’re not out there investigating complaints in the aspect of trying to write a fine or deficiency or something of that nature to the facility. We’re investigating problems that residents may have. So those problems could be anywhere from something as serious as abuse, neglect or exploitation to something as frequent and needed as concerns about food, whether the food is good, whether it’s cold, whether it’s too hot, whether it’s nutritious enough, and also things like community engagement, things of that nature. And we’re out there to investigate basically any type of problem that a resident is having and trying to reach some kind of resolution that is agreeable to that resident to that problem, and hopefully ultimately fix it not only in the short term but also in the long-term.

Smith: I got you. So it’s my understanding that they can call you really about any issue that they’re having. I would imagine you guys get a lot of calls on a daily and weekly basis. Is that true?

Bill: Oh, absolutely true. Now keep in mind, I’m speaking specifically from the state of Oklahoma, so the information I’m going to share with you is some of what we have here in Oklahoma, but every state in the nation has an ombudsman program. And here in Oklahoma, we utilize a core of 24 paid long-term care ombudsmen and then we have about 100 volunteer ombudsmen throughout the state. And with that core staff and we have our volunteers, last year we investigated a little over 6,000 complaints.

Schenk: Wow.

Bill: So we have a very large job to do and it keeps us very busy. And so we can’t do that with just the 24 paid staff members that we have, so that’s why we utilize volunteers. And pretty much so every state in the nation has some kind of volunteer program for the ombudsmen that assist residents with reaching resolutions to any problems they may have.

Smith: How many – do you know off the top of your head how many nursing homes are around, how many nursing homes are in Oklahoma?

Bill: Yeah, it’s a little over 300 nursing homes.

Smith: Okay.

Bill: If you look at it state-wide for all kinds of long-term care facilities, we’re about 618. Keep in mind here in Oklahoma, the areas that we go into are nursing homes and then a subset of nursing homes called ICFIIDs or intermediate care facilities for individuals with intellectual disabilities. And then we also go into assisted living facilites and residential care facilities. So other ombudsmen in other states, you can go into home health settings and some other settings, so it does vary a little bit from state to state, but in our state in Oklahoma, we’re specific to the assisted living residential care and nursing home settings.

Smith: Well it kind of blows my mind to think that 24 paid ombudsmen and then 100 volunteers, 124 people are able to travel the entire state and assist all these individuals making complaints. I mean is it just round the clock constant?

Bill: It is very busy, there’s no doubt about that. The complaints come in quite frequently and regularly of course. And I’ll give you an example. Here in Oklahoma, one of our highest complaint areas is in relation to involuntary discharges from the facility. And I was looking at that information just as recently as yesterday and we average one complaint per day on involuntary discharges here in the state of Oklahoma, and we have seen that as a trend throughout the country, it’s not just Oklahoma that has a large number of involuntary discharges. Typically across the country, that’s one of the number one complaints that ombudsmen will see.

Smith: Who are these – for Oklahoma’s purposes, who are these volunteers? Where do they come from? What’s kind of their experience level?

Bill: We recruit volunteers from many different walks of life. Keep in mind all ombudsmen here in Oklahoma are required to go through a national fingerprint background check and they’re also required to be free from conflicts of interest. For example, they wouldn’t be allowed to work for a long-term care facility and be an ombudsman. They would be a conflict of interest.

So we reach out to different civic organizations and we recruit volunteers. And when a person has expressed interest in becoming a volunteer for the state of Oklahoma, we provide them with a free two-day training, and after they go through that training, we will get them – after they pass that background check and everything – assigned to a specific long-term care facility in the community which they reside. We want the ombudsman to be a member of the community that they’re serving in. That way they have a buy-in and the residents many times know that individual, the staff members many times know the ombudsman prior to them even becoming an ombudsman. And it helps build that rapport and overcome any problems and dialogue if you are part of that community and people know who you are.

So that’s how we approach it here in Oklahoma. Try to reach out to those individuals in the community who want to give back and are willing to go in and help residents investigate problems and concerns they may have and try to come up with some kind of resolution that will overcome those issues.

Smith: And so here in Georgia, Melanie McNeil is our state ombudsman, and she’s located in Atlanta, Georgia, and she oversees all of 150-something counties in Georgia. I don’t know why we have so many counties, but 150-something counties – so I guess you guys are set up the same way. Where are you located in Oklahoma?

Bill: Here in Oklahoma, I’m located in Oklahoma City, and we have 77 counties in the state of Oklahoma that we cover, and I have satellite offices – I contract with the area Agencies on Aging in the state – we have 11 in Oklahoma. And the area Agencies on Aging house our ombudsmen supervisors throughout the state, so we have staff physically located in geographical areas throughout the state of Oklahoma, but my office, the state of Oklahoma office, is located in Oklahoma City.

Smith: I got you. And so I don’t know if you attended the conference – did you go to the conference back in November? Were you able to make it?

Bill: No. Are you talking about the Consumer Voice conference?

Smith: The Consumer Voice conference, yes sir.

Bill: Yeah, I was not able to make the Consumer Voice conference. I am planning on making it to the state ombudsman conference in the spring in April in Denver.

Smith: Well it was eye-opening for me. It was the first time I’d ever been and there were a couple really hot-button issues that they were talking about. One of those, and Rob touched on it briefly, is the implementation of these new regulations, phase two, which was to go into effect last November. What’s your perspective on this because it’s our understanding that phase one of the new CMS regulations was going into effect November of 2016, then phase two was going to be November of 2017. Phase three is supposed to be in November of 2019. But the current administration has got a moratorium on this for about 18 months.

Schenk: The ability to enforce it basically.

Smith: Yeah, the ability to enforce it. You guys don’t really have anything to do with the regulations so much – that’s more of a state survey team, is it?

Bill: That is correct. The state survey team is the entity who investigates and enforces the regulations. Now as far as the ombudsman is concerned, we view the regulations and laws and tools of advocacy. So if we’re going into a long-term care facility and we see that facility has been doing something that is against the regulations or against the law, then we can point that out to them and help them correct those issues that they may be implementing something incorrectly with and fix that problem before it ever reaches a state of enforcement.

And so while our primary goal is advocacy for the residents to make sure the residents are cared for appropriately and have the best quality of life and quality of care they possibly can, a subset of what we do is try to solve problems and actually benefit the facilities in the long run by fixing a problem before it becomes a regulatory issue. So if we see that a facility is, for example, discharging somebody inappropriately, we can address that with the facility, overcome that discharge for the resident, help that resident remain in the facility and then educate that facility on what it was that they didn’t do correct and hopefully have them fix that issue before it ever reaches the point of enforcement with a regulatory agency.

Schenk: Bill, from a logistical standpoint, how does that education work? Do you personally go down there and sit everybody down at a table? Are you doing a presentation? Are you yelling at them? Walk us through how that works.

Bill: Well most often that education happens one on one with the ombudsman supervisors. Each ombudsman supervisor has an assigned district of facilities throughout Oklahoma and if we see those types of issues, then that supervisor is going to work with that facility administrator, social services person, in whatever the case may be, one-on-one, and try to provide them with that education there in the long-term care facility.

Now we also work directly with different entities throughout the state, one of them being Oklahoma State Department of Health Survey and Regulatory Agency, and we will provide information to them about trends that we are seeing, things of that nature, and then they utilize what we call provider trainings where they will bring in facilities from all over the state of Oklahoma to come learn about different laws, regulations, practices and things of that nature.

Schenk: I see.

Smith: Got you. Well another thing I was kind of curious about is I know that you were saying you guys, you’re not really the enforcement mechanism. So what kind of leverage do you use on these nursing homes to say, “Listen guys, you have to do what we’re asking you to or you need to work with us here?” What’s kind of the “or else” that you kind of bring to the table with them?

Bill: Well the “or else’ that is brought to the table with that is we are relatively well connected. We know the different players that govern long-term care facilities. We will reach out to those different enforcement agencies if we need to if those facilities just refuse to come into compliance with the law and regulation that we’ve identified them not following correctly. So ultimately if something happens, we may reach out to our enforcement agency. If there are situations of fraud or abuse identified, we may work directly with our attorney general’s Medicaid Fraud Control unit, make referrals to those entities. We may work with HHSORG and make referrals to them.

And it’s not just about the long-term facilities. Understand the ombudsmen have a responsibility to monitor the system as a whole. So we see the survey agency isn’t doing something appropriately or we feel they’re not following the letter of the law, we can reach out to CMS, for example, or to the Office of Inspector General of Health and Human Services and we can make reports on that to effectuate change at the systems level.

Schenk: Is it common, Bill, in your experience to, I guess the word would be mediate the dispute? So for example, you’re sitting in the room with the director as well as the aggrieved family member or resident trying to come to a resolution?

Bill: Yes. Mediation is part of the ombudsman’s responsibility, and keep in mind, the ombudsman mediation that we do, this isn’t like a court-ordered mediation or something like that.

Schenk: Right.

Bill: But we do follow the basic principles of mediation. Both parties have to be willing to participate in that and the idea is to give each party an opportunity to say their spiel, let their thoughts and their processes of what they feel be known and then try to bring everybody together to reach some kind of amenable resolution.

Now mediation doesn’t happen in every single case. Many times, a problem can be taken care of without mediation ever needed – it’s identified, we bring it to the attention of the parties that it needs to be brought to the attention of, and then that problem can be fixed.

Now one of the things that everybody needs to understand about an ombudsman is we are resident-directed. So an ombudsman can only do what a resident allows an ombudsman to do. So if we go out and we get a complaint, for example, from a family member and we go out and we see our residents and we sit down and talk with them and the resident says, “You know? Yeah, my daughter has a problem with that but I really don’t know. Everything’s okay. I don’t want you to do anything about it,” well at that point in time, we’re not going to take any action because it’s the resident that we serve, and the resident is the one who has the authority to give us consent and permission.

Now there are some residents who don’t have that mental capacity to give us that consent and permission, and in that situation, we look to legal representatives to give us some guidance and direction, unless that legal representative is part of the problem, and then we have some authorities under federal rule and federal law to take steps in those situations to address that the guardian is not acting appropriately or not acting in the best interest of the resident.

Smith: And do you find – do you get a lot of family members complaining and contacting you in cases where the resident doesn’t actually you’re your intervention at all?

Bill: I would say it happens fairly frequently but it’s not what I would describe as rampant. We may get out there and sit down and talk with a resident and discover that, but the majority of our cases we get, residents identify that yeah, there is an issue or a problem that they have concerns with and we’ll try to help them fix that. They guide us with what their wishes are. And sometimes when we’re in there, they may say, “Yeah, there’s a problem, but I don’t want you to tell anybody right now because I’m fearful of retaliation. I’m afraid they’re going to ask me to leave.” And we try to set residents at ease and remind them that retaliation is actually against the law, but just because something’s against the law doesn’t mean it doesn’t happen and many times residents are fearful moving forward and it takes that ombudsman sitting down with that individual and build rapport, build trust, and ultimately once that rapport and trust is built, usually the residents feel more comfortable with addressing their concerns at that point in time.

Smith: I completely understand that and sympathize with it. Rob and I have actually have gone into nursing homes a couple of times and visited clients, not really in costume or anything, but we’re in like sweatpants and a sweatshirt because whenever we go in someplace two guys in suits, the residents get concerned there’s going to be some retaliation, that the staff’s going to be mean to them, and you’re absolutely right. It’s illegal for them to do that, but it’s also legal for them to do a lot of things that make either us or you necessary in the first place.

Bill: Correct.

Smith: It’s a sad situation. I was curious about this. One of the things that I saw family members complain about a lot, and I never really knew how to handle it as a CNA, but do you come across a lot of family members complaining about relationships in the nursing home, like, “Mom is now in a relationship with somebody that she met in the nursing home. We don’t want her to do that.” Do you see that often?

Bill: I see it often enough that it’s always on our radar. It’s not one of our top complaints, but we do have situations where Mom or Dad enters into the nursing home and they befriend somebody else and they may start engaging in a romantic relationship. And residents have a right to have relationships in the facility. Now there are some fine lines with that because the person who doesn’t have mental capacity may not be able to legally consent in some kind of intimate behavior, but many times it’s not even intimacy that the family’s worried about. It’s the fact that Mom’s sitting in the common area holding hands with this strange man that they don’t know that makes them uncomfortable, and every now and then we do get those types of complaints, and we take it on a case by case basis, and we always go out and we talk to the resident, find out what their wishes are, try to ascertain what degree of mental capacity they have. And if the resident wants to have that type of relationship, then we’re going to advocate for their right to engage in that relationship of their choice as long as they have the mental capacity to understand what they are doing.

Smith: Right, because at the end of the day, like you said, you guys are advocates for the residents, not necessarily their families or their loved ones, but it’s the resident – it’s resident-centered advocacy.

Bill: Absolutely. Absolutely, and it’s only when a resident can’t give us guidance or direction that we’re going to look to others, and typically we look to legal representatives, and then if there’s not, then somebody to act on their behalf – the regulations give authority to a custodian acting in their best interest.

Schenk: Bill, we very much appreciate you being on the podcast. You’ve been fantastic, a lot of valuable information. Our audience members, I know, will very much appreciate it. We very much appreciate your time.

Bill: Thank you guys. You have a great day.

Schenk: You too. Bye-bye. Awesome. This is what threw me for a loop is that I’ve only known a handful of people from the Midwest, and their accent was like a middle-of-the-road accent. If he would have said, “I’m from Arkansas,” I would have said, “Okay, that makes sense.”

Smith: Oh, I can totally see someone from Oklahoma talking like that.

Schenk: Anyways, well a lot of good information, and that’s going to actually conclude this episode of the Nursing Home Abuse Podcast. As always, you can watch the podcast on YouTube or on our website, NursingHomeAbusePodcast.com, or if you care to listen, you can download the audio on Stitcher, iTunes, Spotify or wherever you get your podcasts. We appreciate your attention, and with that, we will see you next time.

Smith: See you next time.

Thanks for tuning into the Nursing Home Abuse Podcast. Please be sure to subscribe to this podcast on iTunes or Stitcher and feel free to leave us some feedback. And for more information on the topics discussed on this episode, check out the show website – NursingHomeAbusePodcast.com. That’s NursingHomeAbusePodcast.com. See you next time.


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