Episode 78

Meet an AARP Foundation Legal Advocate

 

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Schenk: This is episode 78 of the Nursing Home Abuse Podcast: Meet an AARP Foundation legal advocate, questions and answers.

The Nursing Home Abuse Podcast is dedicated to providing news and information to families whose loved ones have been injured in a nursing home. Here are your hosts, Georgia attorneys Rob Schenk and Will Smith.

Schenk: Welcome, welcome. My name is Rob Schenk.

Smith: And I’m Will Smith.

Schenk: Very informative episode for you today. We’re going to be talking about the organization known as AARP, but more specifically AARP’s legal division, getting out there in the courts. And to take us through that, we have a special guest, a fellow attorney. She’s a senior attorney for the AARP Foundation, the legal department. Her name is Iris Gonzalez. Will, can you tell us a little more about her?

Smith: Sure. So I originally met Iris Gonzalez at the Consumer Voice Conference last year in 2017. She’s actually the president of the governing board of Consumer Voice, and we’ve had people from Consumer Voice on before, and explain that it is the national advocacy group for individuals in long-term care facilities. AARP, which is Ms. Gonzalez’s 9 to 5 job is the American Association of Retired Persons, which has a very similar mission and there’s a lot of synergy there between Consumer Voice and AARP.

Iris is a senior attorney at AARP Foundation Litigation where she works on impact litigation and legal advocacy to protect the rights of vulnerable 50+ citizens, those that are senior citizens in matters that affect their health. The AARP Foundation Litigation works to ensure that senior citizens have a voice in the courts. Her legal advocacy includes ensuring the availability of quality home and community-based long-term care services, ensuring quality in the institutional long-term care settings, which is very important – she’s going to talk about, and fighting to end the inappropriate use of psychotropic drugs on older people with dementia, and enforcing the substantive and procedural rights of those receiving long-term care and those receiving state or federally funded healthcare benefits.

Before she joined AARP though, Ms. Gonzalez was a complex commercial litigator at two international law firms. During her 10 years in private practice, she engaged in significant pro bono representations, including representing a plaintiff class action seeking integrated home and community based mental health services. She served on the board of directors for the American Constitutional Society of Law and Policy and the Hispanic Bar Association of D.C.

We are very excited to have her on the show today because in the legal world of protecting the rights of senior citizens, she is a heavy hitter.

Schenk: All right, Iris, welcome to the podcast.

Iris: Thank you for having me.

Schenk: All right.

Smith: So Iris, I met you briefly at the Consumer Voice Convention last – what was it? November or October?

Iris: Yes, November.

Smith: Right, so I know that you’re involved in that, but you’re also largely involved in AARP, correct?

Iris: That’s right. I’m a senior attorney in AARP Foundation.

Smith: Sure.

Iris: The Foundation, we work to ensure that we can end senior poverty basically is our vision and we do that by helping vulnerable older adults build economic opportunity and social connectiveness. AARP Charitable Affiliates – we serve AARP members and non-members alike. So both are served by vigorous legal advocacy. The Foundation sparks bold, innovative solutions that foster resilience and strengthen communities and ultimately and hopefully restore hope to the vulnerable older adults.

Smith: So what are some – that’s a very good 40,000-foot view of what they do. What are some specifics – and you don’t have to use people’s names, but like what are specific things that AARP does to help the senior population?

Iris: Okay, well I can talk about AARP Foundation and our litigation efforts. I mean there are a lot of programs on the programmatic side of the Foundation’s side that the Foundation has – AARP Foundation Tax Aid, AARP Foundation Back to Work 50+. There are a number of programs to help people build economic opportunity and resilience around securing the essentials.

We, in the litigation group in the Foundation, try to support that work, the gains made, or make sure that we don’t roll back those gains through the litigation.

Schenk: Right, so that’s kind of our next question is what type of cases does AARP litigate? So that’s question one. And the second question is how do you select which cases to take on?

Iris: Right. So we protect the rights of older adults in the nation’s courts all over the country, federal and state cases. We advocate to help older people stay connected to their communities and to tear down barriers to economic and social stability. So we cover a broad range of issues from fair housing and age discrimination to consumer fraud, employment benefits, pension rights, long-term care rights, civil rights and more.

Our primary mission is to ensure older adults have a voice and proper representation in the legal system, so we participate in both litigation cases directly representing clients and individuals, individual and class action cases, and also by filing amicus or friend of the court briefs.

Right now we have about 20 active cases in litigation and we file lots of amicus briefs, but direct litigation cases, we have about 20 that are active right now, and those are in the areas of employment discrimination and benefits, housing and livable communities like fair housing claims, health and long-term care and consumer protection.

Schenk: That’s terrific. Can you kind of expound on what cases fall in the long-term advocacy that you’re doing? Of the 20, you mentioned long-term care. I wonder what those are about.

Iris: Okay. So I can talk to you about the active cases that we have right now.

Schenk: Sure.

Iris: We have been litigating for the past seven years or so on the issue of the inappropriate use of antipsychotic drugs on people with dementia in nursing facilities. So the first case that we had on this issue that we’re trying to really prevent and deter this practice, it was in California and it was a small class action. The class action was built around one nursing facility that had one medical director who wrote all the prescriptions and admitted in depositions that he never asked for consent. With people with dementia, the consent may need to be obtained from someone who is a power of attorney or a healthcare proxy or some other legal representative, but the doctor in that case admitted he never even sought consent because he just didn’t think it was possible, and prescribed people with dementia antipsychotic drugs that were very harmful to them. And to our lead plaintiff in our case, our representative plaintiff, she ultimately died. She died within months of being put on the antipsychotic drug. And she only went to this nursing facility for temporary rehab after she broke her hip.

Schenk: Iris, I’m sorry to interrupt. Let me jump in there. So for our listeners, why would the doctor prescribe psychotropic drugs?

Smith: Or the nursing home use them?

Schenk: Or the nursing home use them? What advantage does the nursing home gain from that?

Iris: Well they prescribe these drugs to control behaviors that they determine are challenging for them. But what’s important is that these behaviors can – one, they’re sort of normal symptoms or part of the progression of dementia-related illnesses because cognitively, the person is declining and is unable to communicate or express his or her needs through words. So a lot of times, people have unmet needs. They’re in pain. They’re thirsty. They’re hungry. Something bothers them and they don’t know how to communicate it or they can’t communicate it because of the cognitive effects of the disease. They can’t communicate it except by yelling or lashing out angrily when something is done that hurts them. And so then the nursing home staff is accustomed to saying, “Well let’s give them this antipsychotic medication to calm them down,” and basically that just makes the person very lethargic and makes them sort of into a vegetable. They sit, they don’t do anything, they don’t engage in activities, they lose their thirst, their appetite. They’re more likely to fall and hurt themselves.

So really it’s because they don’t want to appropriately deal with these – I’m going to put it in quotes – “behaviors,” and when I say behaviors, I mean communication. They don’t want to delve deeper to find out why is this person screaming, what do they need, and really try to deal with that because that takes time. It takes more staff time and it takes better trained staff and there’s really a problem of understaffing in nursing facilities and other long-term care facilities, and the use of antipsychotic drugs is part of that problem. They chemically restrain people so they don’t have to provide the services that they should be providing.

Schenk: So in your discovery in that case, in your research in litigating this case and perhaps just being a legal advocate in AARP, do you have an understanding as to how widespread this problem is in using these drugs to sedate residents basically legally?

Iris: I have to say that there is debate about the frequency of use of antipsychotic drugs, and the reason for it is because CMS created the National Partnership to Improve Dementia Care back in 2014 I believe to track the use of antipsychotic drugs, the off-label use. And what I mean by off-label is to use to treat conditions that were not approved by the FDA. So for antipsychotic drugs, the FDA specifically warned that they are dangerous and increase the risk of death if they’re used for people over 65 years old with dementia. So this was called a black box warning and it’s called that because they put a black box around it to make it stand out because it’s very important. So the FDA specifically states in this label that this is not approved to treat dementia-related psychoses.

So then the way that CMS tracks inappropriate uses – has the antipsychotic been given to someone who doesn’t have one of the illnesses for which it is approved – for example, schizophrenia? So they’ve been tracking that, and as of today, it is estimated that one in six nursing home residents are being given antipsychotic drugs inappropriately, meaning without a diagnosis of schizophrenia or other serious illness for which the drugs are approved, but we believe the number is higher. And we think the number is higher because there is evidence that nursing facilities, administrators, doctors, etc., are starting to include a diagnosis of schizophrenia, for example, in a person’s file in order to justify giving the antipsychotic drug. But in all these instances, it’s the first time that someone has been diagnosed with schizophrenia, and schizophrenia’s onset is in early adulthood. So it’s highly unlikely that someone over 65 years old developed schizophrenia for the first time after 65.

Smith: Right. So the nursing home is just trying to make it easier to take care of this person to the detriment of this person’s rights.

Schenk: And dignity.

Smith: Yeah.

Iris: Yeah, I would say “making it easier to take care of the person” is too generous because giving them the drug doesn’t take care of them. It doesn’t have any medical benefit for the person whatsoever.

Schenk: Got you. Iris, so with regard to this case or this particular class action, how did your office select this client and select this case?

Iris: So we established and have long-standing relationships with advocates all over the country, and so what happens is when folks sort of notice there’s a problem that needs addressing, they’ll reach out to us. So we had some friends in California who reached out to us. They’re an advocacy organization and our client went to them, so our client was the daughter of this lady who passed away, went to them and they reached out to us because they knew that we really cared about the issue and wanted to something about it.

Subsequent to that case, that case settled and we were able to get a two-year period of time where that facility was monitored by a court monitor and they had an injunction detailing how they had to go about getting informed consent and detailing penalties if they failed to do it. We also got monetary relief for the class of plaintiffs or the class of residents who were affected.

So as a result of that case, we saw a decline, not only in the use of antipsychotic drugs in that facility, but we also saw a decline in that county because other facilities were taking note of what had happened to that one.

The AARP Bulletin wrote an article about that case and about the issue generally in July of 2014, and after the article was published, we got hundreds of calls from people all over the country, AARP members who said, “This happened to my mom, this happened to my dad or loved one,” and so based on some of those calls, we were able to develop a couple more cases. So we brought individual cases, one in Delaware, one in Tennessee. Both of those have been settled and concluded successfully, but we are still looking for cases to bring in other states because we really want to make a statement that this practice is unacceptable and this culture of drugging people in nursing homes to silence them instead of really listening to them and responding to their needs is just not acceptable and has to change.

Schenk: We agree wholeheartedly.

Iris: So that’s how sort of organically people started calling us and telling us about this issue.

Schenk: So when you take a case or when the AARP takes a case like this, Iris, is the goal similar to the result in the example that you provided in California where there was an injunction provided or does the AARP seek compensatory damages on behalf of these clients?

Iris: We do both. So in some states, we have the ability to get injunctive relief and file, for example, class action. Where we can develop a case that’ll impact a broad number of people, that’s what we prefer to do and we’ll try to look for that. In some states, the law and the circumstances, it’s not permissive to do that, but we proceed with the individual case anyways because we want to make a statement to deter that practice, and we also want to change the law, make good laws in this area. We believe our cases are the only cases that have litigated this issue. So we want to really build a repository of good law on the inappropriate use of antipsychotic drugs as a chemical restraint and that’s illegal for various reasons.

Schenk: Sure. Can you tell us, in terms of – I know your division is doing the straight up litigation, particularly with these cases, but you mentioned you filed a ton of amicus briefs. Can you tell us in which cases do you seek those out? What kind of cases are these that you’re filing these? And actually for the listener, we’re all lawyers here, but what is an amicus brief?

Iris: So an amicus brief is a friends of the court brief. It is filed by someone or some organization that is not involved in the case directly but feels that there is something important that they should share with the court about the issue to help the court make its decision. And so we filed those friend of the court briefs frequently.

We select cases and issues that we think are important in terms of preserving or establishing the rights of older persons in the court, and on issues also that maybe at a first glance don’t directly and only impact older people, but will affect the ability of older people to have access to the courts.

So for example, on issues regarding arbitration or class action or how standing is interpreted or limitations on punitive damages or compensatory damages, those are issues that can affect everyone, not just older people, but we think that they’re important so that everyone has access to the courts to address violations of their rights.

Schenk: Does the AARP ever take on CMS directly for changes and regulations of long-term care facilities? Like for example, you said arbitration – was AARP involved at least from an amicus standpoint with regard to the changes recently with the arbitration agreements?

Iris: Yes. Yes. So AARP commented on the proposed rule that became the new conditions of participation for field and nursing facilities. And those comments, I mean there were a lot of different things we commented on, but they included whether arbitration clauses, pre-dispute arbitration clauses, should be permitted in nursing home admission agreements. And our position, AARP’s position was that they shouldn’t be included, that arbitration clauses should be negotiated separately from an admissions contract and should be negotiated when a dispute arises, right? So there’s a dispute, you can decide do you want to arbitrate it or do you want to deal with it in the court?

Smith: We 100 percent agree with you on that.

Iris: And you know there’s been a challenge to those rules and we were involved as an amici, as a friend of the court, to give the perspective of why it is important, especially in the context of a contract that people enter in which the person who’s contracting has much less power than the nursing facility. It’s usually there in a time of crisis. It usually gets to a nursing facility without a whole lot of time for planning and puts their entire life in the hands of the nursing facility and has no idea what possible disputes could come up.

Smith: Right.

Iris: Those are some of the factors that we think make these arbitration clauses wholly inappropriate for nursing facility admission agreements. So yeah, those are the kinds of issues we get involved with in terms of our amicus advocacy.

Schenk: And Iris, with regards to you, what made you jump from a cushy big law job into fighting for our seniors?

Iris: Well actually when I was in big law, I was very involved in pro bono work. I did a lot of pro bono work. I found it to be a passion of mine to advocate for people who were vulnerable or didn’t have the means to hire a pricey lawyer. And I worked, for five years while I was at my former firm, I worked on a case that was a de-institutionalization case. It was filed in the ‘70s, so I called it an Olmstead case before Olmstead. It was during the time from when people were being warehoused in mental health facilities and not being offered home and community services, and it was one of the leading cases that started the de-institutionalization movement.

I came in as class council. I was working for this firm when we were implementing and monitoring one of many consent decrees because the jurisdiction, in this case, D.C., had still not complied after 35 years of litigation. So I just developed a passion for doing this kind of work.

Schenk: Well we are certainly happy that you are. I mean we’re talking about our most vulnerable, one of our most vulnerable populations in the country and you’re doing great work with it with AARP. And let me ask this – two questions. Number one is if there’s a family out there that believes that their loved one is getting psycho…

Smith: Antipsychotics.

Schenk: …antipsychotics improperly, or maybe there’s another issue, how do they get in contact with AARP’s legal division or you in particular?

Iris: They can contact me by sending me an email, and my email address is igonzalez@aarp.org, and so that’s igonzalez@aarp.org. I’d love to hear from folks. And I also forgot to mention, we’ve had a couple other active cases in recent years dealing with long-term care. We’ve had a case in which we’ve challenged basically resident dumping where nursing facilities feel a particular resident isn’t as profitable as they’d like them to be when they’re no longer on the Medicare reimbursement rate, they just dump them to the homeless shelter, the street, hotels. So we’re very concerned about that practice.

We also brought a case to help a person with serious communication disabilities have a camera installed in her room, because we had concerns about abuse that she couldn’t communicate, and there was legislation – sadly our client died before we could get a resolution for her. That state has now passed legislation allowing for that. So we had an impact there.

We also really care about the issue about assisted living facilities marketing their services in a deceptive way, saying they’re going to assess people’s care needs and have plans tailored to their needs and charge them really high prices for doing it, and then charge them even higher prices as they reassess their needs and claim their needs are higher, but actually not providing the services and actually understaffing their facility. So we’re very interested in those issues and would like to hear from folks also if they’ve encountered those.

Schenk: One final question – what about for any law students that are listening that might want to volunteer their time with the legal department over there? Is that something that you can work with them?

Iris: Yes, that is a fantastic question. We hire summer interns every summer. We also hire interns from all over the country, so we encourage people from all over the country to apply. We also hire recently graduated law students as law fellows, typically for a year after, and we have a process for selecting them, and they usually start in the fall, and they can go to the AARP Careers page and they can see listings for summer clerkship as well as law fellowships.

Schenk: Fantastic.

Smith: Fantastic, Iris.

Schenk: Iris, thank you for that information. Thank you for the work that you do and for appearing on the podcast.

Smith: And we will probably see you, and the reason I bring this up is because Iris was also and is also still on the governing board of the Consumer Voice, which is something we’ve had in the past on the show, so hopefully we will see you at the convention in November again.

Iris: That’s right. I’m the president of the board and I really enjoyed working with this organization because there’s a lot of synergy between the types of issues they care about and advocate for and what I do as my 9 to 5 job.

Smith: Absolutely.

Schenk: There you go. Well Iris, thank you so much.

Iris: Thank you.

Schenk: All right, we’ll talk with you later. The AARP, I mean they do great work. Iris does great work. They’re not cats. They’re tigers.

Smith: I’m always extremely impressed with individuals that have spent so long to get a certain license, like an attorney or a doctor, that devote themselves to the nonprofit sector. It’s extremely valuable to those that they help and it’s extremely admirable because she’s spent at the very least seven years of her life just getting a law license to now serve the elder community and that’s very admirable.

Schenk: That’s right. And speaking of tigers…

Smith: Ah yes, wonder where that was going and that’s a good segue.

Schenk: On July 29th is International Tiger Day.

Smith: International tiger, not domestic tigers.

Schenk: Yeah, I don’t know what that – all I know is that’s written on this paper. Actually that leads me to something even though we’ve got to go here in a second, but this podcast is the final result of a lot of work behind the scenes, and I wanted to give a quick shout out to everybody who is involved in that.

Sara Demars is our person in charge of getting guests, making sure the guests know when we’re calling them, the information they need to know, getting the bios to them and stuff and putting it into an easy to understand piece of paper that goes in front of Will and I. So she makes the process so much easier and we thank her for that.

Then there is Dennis who takes the video and transcribes it. I don’t know how he does it so quickly, but he does it. He does an excellent job. So that’s actually something that we leave out every episode. We should start putting it in, but there are three ways to consume the episode. You can watch it, listen to it or read it, and you can read it because of what Dennis does.

Third is Cody, who is our guy with the eye, how you would say – he does the editing work and puts the graphics on the video.

And I guess last but not least is Gene, our producer.

Smith: Yes, invaluable Gene.

Schenk: Mean Gene.

Smith: Mean Gene.

Schenk: At any rate, we hope you enjoyed this episode. Please reach out to Iris if you’re any way a law student interested in doing that work. And with that, we will see you next time.

Smith: See you next time.

Thanks for tuning into the Nursing Home Abuse Podcast. Nothing said on this podcast either by the hosts or the guests should be construed as legal advice, nor is intended to create an attorney-client relation between the host or their guest and the listener. New episodes are available every Monday on Spotify, iTunes, Stitcher or your favorite podcast app, as well as on YouTube and our website, NursingHomeAbusePodcast.com. See you next time.


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