Placing our loved ones in nursing homes

Episode 10
Categories: Neglect & Abuse

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 Law LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.

Schenk: Hello out there and thanks for joining us again for the Nursing Home Abuse Podcast. My name is Rob Schenk.

Smith: And I’m Will Smith.

Schenk: And we are trial lawyers and we practice in the areas of nursing home neglect and nursing home abuse in the state of Georgia. We are coming to you from our offices in Atlanta, Georgia in The Dungeon/library, the library, full of leather-bound books…

Smith: And smells of mahogany.

Schenk: Rich mahogany. If that confuses you, then perhaps you should watch our video podcast on our YouTube channel, or if you only want to listen to us and not see us, we want to be heard and not seen, I guess that’d be the opposite of the normal saying as the people do…

Smith: Well you definitely need to be heard rather than seen.

Schenk: I feel like right now we should be neither heard or seen. We’ll trudge through this. So anyways, you can listen to the audio portion of this podcast at your leisure on iTunes or on Stitcher. And with that extremely graceful introduction, we will move right into the content of this episode, which is a majority going to be focused on the difference between an assisted living facility and a nursing and why and when to make that selection.

Smith: And the choice to put them in either one, it’s a difficult decision.

Schenk: Always.

Smith: I can tell you from personal experience that my father worked in nursing homes for 25-30 years, and unfortunately or fortunately depending on the context, he passed in 2014, but he was rapidly declining in health, and I cannot imagine having put him in a nursing home.

I was reading a New York Times article recently and this professor of health policy management, Dr. Hawes, is one of the nation’s leading experts on long-term care, and he says, “I’ve been in this business for 35 years,” but the reason I’m bringing him up is he goes onto talk about how he felt like a knife had been stuck into his heart the day that his mother tried to get him to make the promise – the promise – which is whatever happens, don’t put me in a nursing home.

I know my father made me make that promise as well, and my mother, having experienced the trials and tribulations of what my father went through working in the nursing home has also made me make that promise. So it is a very difficult decision for people to make to put their loved one in a nursing home, but I think it’s also a decision that’s extremely important.

And the reason that I say that is because if your loved one goes into a nursing home, and let me just give you some basic definitions here – when I talk about a nursing home, under Georgia law, a nursing home is a facility which admits patients, which we call residents, on medical referral only and for whom arrangements have been made for continuous medical supervision. It maintains the services and facilities for skilled nursing care, rehabilitative nursing care, and has an agreement with a physician and dentist who will be available for any medical or dental emergency and for who will be responsible for the general, medical and dental supervision of the home.

So what that means is if you’re thinking about putting a loved one in a nursing home, it’s because they need around the clock medical attention. You simply cannot provide that as a family member.

Schenk: In many cases.

Smith: In many cases, you can’t. And there’s another statistic about… And this is important. A lot of individuals will just stay with a caregiver and they think, “We’ll they’re at home. They’re happier at home. I’d rather… They don’t have much longer to go on this earth, so I’d rather them be happier at home.”

But there was a study done and I was looking at’s article, and it was about older individuals with dementia who live in communities, and nearly all the patients, this is a phenomenal statistic, nearly all the individuals that they surveyed and investigated, 99 percent of them had unmet needs related to care and medicine. This included 90 percent with unmet needs for personal and home safety, in other words, they lived in a house that had fall risk. Sixty percent had unmet needs for medical care. And they found a high incident, higher incident, the nursing home, of depression among the residents. And not to mention, it’s also impossibly difficult on the caregivers. If it requires a full-time staff, 24/7, to take care of your loved one, you can only imagine that you will be woefully understaffed and unsatisfactorily taking care of your loved one.

So I guess the reason that I bring that up is it’s a difficult decision to make. I understand that. I honestly, to be quite frank, don’t know what I would have done had I needed to put my dad in a nursing home. This is a man that worked in nursing homes for 30 years. I think he would have probably taken my mom and Thelma and Louise’d their way out of this world if I had said, “Dad, you’ve got to go to a nursing home.”

But I have to tell clients this all the time – “Look, at the end of the day, if you can’t take care of your loved one, if they require a medical referral, if they require continuous treatment, then it’s not your fault. You’re not doing anything wrong.” So that promise that I was mentioning and that professor had mentioned, look, you can’t promise them that. You can only promise to do what’s best for them. And at the end of the day, you may have to make that decision.

Schenk: So what is another option aside from you’ve been given the promise – what’s a way to provide an intermediary level of care to your father, to your loved one, whatever the circumstance is, that is not placing them in a nursing home, which as we explained, is a clinical setting that automatically is depressing just to think about? The answer would be considering assisted living facilities.

Smith: Right. Under Georgia law, an assisted living community or communities means a personal care home serving 25 residents or more that is licensed by the Department to provide assisted living care.

Notice how sparse that definition is compared to the definition for a nursing. Essentially the one defining element is that it’s got 25 or more people and they provide assisted living.

Schenk: So a quick run down is going to be who is an appropriate candidate for assisted living and who’s an appropriate candidate for nursing home care. So an assisted living facility, just from a broad standpoint, is generally appropriate for people who require, our seniors who require only some personal care. They’re generally able to walk on their own or are ambulatory.

Smith: Sorry.

Schenk: What did you do? Hit the microphone again?

Smith: No I hit…

Schenk: Hit the water.

Smith: Hit the coffee.

Schenk: Okay. Will is one to karate chop the microphone as if it was an attacker. I don’t know why he does that. It’s difficult to edit that noise out.

Smith: It’s a huge microphone.

Schenk: Anyways… So, yes. Anyways. So the individual is a good candidate for assisted living if they require only a little personal care, if they can walk or at least get around, for example, a walker, if they’re receptive to assistance – and that doesn’t necessarily mean that they don’t have to have full mental capacity. There are assisted living facilities for individuals with slight cognitive incapacities.

Smith: Yeah, you still got the same types of staff that we were talking about earlier with you have CNAs, you have nurses, and they are still attended to by their physicians. So you still have a geriatric healthcare team or a healthcare team that is involved in geriatrics.

The one difference is that you don’t have a lot of individuals who are bedridden, if you have any. You don’t have individuals who are on feeding tubes. You don’t have individuals who have severe dementia. You don’t have individuals that require extensive medical rehabilitation.

Schenk: Yeah, and this article is actually a very good analogy, but in this New York Times article that we’ve been talking about, the expert says that the ideal candidate for assisted living was the fictional character Ms. Daisy.

Smith: Yeah, Driving Ms. Daisy. Jessica Tandy.

Schenk: That’s besides Thelma and Louise, Driving Ms. Daisy is Will’s number two favorite film.

Smith: Number two.

Schenk: Anyways, so the ideal candidate for assisted living was Ms. Daisy, the character in the film starring Jessica Tandy. Ms. Daisy, lucid and opinionated, didn’t need extensive nursing or personal care, just transportation, light housekeeping and meals and the attention of the courtly Morgan Freeman. If that’s your mother, she may not need a nursing home.

Smith: And another thing you have to remember is assisted living facilities are not as heavily regulated as nursing homes. And Lisa Gwyther, who is a social worker who directs the Duke Family Support Program in North Carolina points this out, and she says, you know, “Assisted living facilities can ask you to leave, and they will. And you’ll probably have to if they do. While nursing homes can do that, you’ve got a lot more rights.” We had just talked about this is a previous podcast – all the rights that you have if they try to discharge you, all the rights that you have as a nursing home resident.

Well the same thing holds with assisted living facilities. You’ve still got rights, but they’re not quite as regulated on the same level as a nursing home, because a nursing home is essentially a hospital. You’ve got individuals that have got severe medical issues and mental issues. And it’s just a lot easier to get kicked out of an assisted living facility than it is a nursing home.

But if you can imagine, I think most people, when they think about what a nursing home is, they picture a bunch of older women sitting around playing bingo, older gentlemen walking around playing shuffleboard or they’re in rocking chairs and they’ve got a bunch of grandkids walking around. If that’s what you’re picturing in your head, then you are thinking of an assisted living facility. By and large, that’s what assisted living facilities are like. They’re very nice.

They’re also a lot more expensive than nursing homes, but they’re very nice. So if your mother or father doesn’t have any major health issues where they need to be attended to by a doctor, they’re not falling all the time and they’re being, for the most part, you just don’t want them to be alone, then assisted living facility is probably what you’re thinking about.

Now you may have the question – can assisted living facilities commit negligence? Absolutely.

Schenk: And that’s going to be one of the principle differences from at least a legal standpoint is that the caregivers in a nursing home operate at a standard of care that is different than the standard of care for a provider in an assisted living facility.

So for example, a CNA or an RN or whoever it is in a nursing home that would be responsible for overseeing a patient, I’m sorry, a resident, that has a bedsore for example, they would be charged with essentially doing whatever it takes to treat and eliminate that bedsore, whereas in an assisted living facility, that caregiver would not be held to that same standard. The standards are less in an assisted living facility under the understanding that the individuals, the residents of the assisted living facility do not need that type of around-the-clock observation.

Smith: Yeah, because you’ve got to think that the only way, it is a condition precedent in order to get into a nursing home, you must have a medical referral. So in other words, let’s say you want to put your loved one in a nursing home, you first and foremost have to have a doctor look at them and go, “Yes, their care is so serious that I am willing to refer them to a nursing home.” If that’s not the case, then they’re going to a place like an assisted living facility where they’re not getting the same type of medical care, and so the standard is much different.

You don’t see a lot of bedsores in assisted living facilities, if at all. I mean it happens. Certainly individuals who are in wheelchairs and are not ambulatory are prone to get them anyway, and it could be that the staff is unaware of that and it could be that the staff is still not responsible for that. If your mother or father is cognizant and they know what they’re doing and they hide it from everybody that they have a bedsore, well unlike a nursing home, this is one of the few times where the facility may not be held responsible because they weren’t referred by a medical doctor. They’re there because they have a lower need for medical care.

But aside from that, what other options do you have? Well you have home care. And home care comes generally for two different reasons. The first one is that you can hire home health agencies, which are regulated by the state. Home health agencies will send CNAs or RNs or LPNs out to your house to provide PRN, which is just a medical term for as-needed, PRN medical care. For example, my mother is a paraplegic, and since my father has passed, she lives in the mountains, as Rob points out…

Schenk: On a consistent basis.

Smith: …On a consistent basis, and we don’t have neighbors other than the bears. And so we have hired this agency that sends out a CNA or a nurse every once in a while to check on my mother, to provide her certain medical assistance that she needs. And so that’s something that you could do. If you think that you would like for them to stay at home, which is something I highly suggest, if possible, you’re not going to make the decision between a nursing home or staying at home. If your loved one is in a position…

Schenk: Yeah, where they can stay at home, that’s generally going to be the option.

Smith: Absolutely. Yeah. If they’re in a position where they need to be in a nursing home, they need to be in a nursing home, unless you plan on having someone live and stay with them and provide them medical assistance, that’s fine, which you can do. You can absolutely do, but you have to think how expensive that is.

There’s an analysis group called Swiss Re and they’re largely dealing with healthcare industry statistics and insurance, and they point out that older people in the United States have a harder time paying for nursing home care than any other developed country. So we’ve already got a hard enough time paying for care in which we share the nursing home staff. You’ve got to imagine how expensive it is to have somebody actually live with you. I can tell you right now it’s expensive having somebody go out and visit my mother. But if you can do it, it’s worth it. And so that’s home healthcare. That’s home care.

Now another type of home care is called hospice. Hospice, it can happen in the home, you might also get hospice while you’re in the nursing home. And hospice is not maintenance and preventative care. Hospice is what’s called palliative care. And palliative care is just…

Schenk: …Providing comfort.

Smith: Providing comfort measures. So you’ve got an individual who the doctors have said, “Look, they’ve got a week, a day, I don’t know. They should probably be dead right now.” They are going to die at any minute, and not just like the rest of us existentially, but there’s something wrong with them. They’ve got stage four pancreatic cancer. They’ve got COPD.

Schenk: There’s some morbidity that probably within the next six months, they will have passed.

Smith: Yeah, this person is about to pass away. So what some families will do is hire hospice to take care of their loved one and leave them at home. And hospice gives them round-the-clock care, makes sure that they are comfortable, clean and warm and out of pain. I think that that’s a great thing to do because if you know that they’re going to pass, it’s a lot more personal and emotionally supportive if they do it in a comfortable place like their home.

But that being said, these are very difficult decisions. So in summation, you’ve got a couple of options. You have assisted living, which is any care facility with 25 or more that provides actual assistance in their day-to-day activities, or you have nursing homes, which are essentially long-term care hospitals, which require a medical referral, and those are for residents who basically require 24/7 medical attention.

There are at-home options. You can have individuals, depending on what your finances are, go out once every other day or once a week or even live with your loved one.

Schenk: Morgan Freeman.

Smith: Yeah, I highly suggest one of those things. What I don’t suggest though is you take on the responsibility of someone who requires a tremendous amount of medical attention into your own home.

Schenk: That’s right.

Smith: If we’re talking about understaffing being a huge problem in nursing homes already and that leading to negligence that leads to death, you can only imagine your home definitely doesn’t have adequate staffing to take care of somebody like that. And the strain emotionally and financially that it puts on the caregivers is just too phenomenal.

So at the end of the day, if you’ve got to put your loved one in an assisted living facility, if you’ve got to put them in the nursing home, don’t fret over that action. Fret more over which one you’re going to put them in, and you can listen to our other podcasts on choosing nursing homes that goes just in line with choosing an assisted living facility. All the same things apply.

You’re going to find by and large that assisted living facilities are much nicer places because they are much less of a hospital. I have said many times to people describing a nursing home, it is oftentimes a cross between a retirement a community, a hospital and an asylum. It just depends on the group of residents you have in there and what’s going on.

But you’ve got a lot of decisions and those are decisions that we have here in America. America has, according to the CDC, almost 16,000 nursing homes. We’ve got 15,506 as of 2014, which was two years ago, so you can imagine we have probably even more.

Schenk: And that’s because – here’s a statistic from, it looks like… Where is this from? – the odds that Americans turning 65 today will eventually need assistance with bathing, dressing and other personal activities are about 50-50. Again, the odds of somebody turning 65 today needing assistance with bathing, dressing or other daily activities is 50-50.

Smith: 50-50, I mean you’re tossing the coin in the air. That’s a huge deal.

Schenk: Right. There are a lot of decisions that will need to be made in the coming years in terms of where your loved ones are going to be placed.

Smith: Yeah. And out of those 16,000, I want to say the CDC statistic is about 2 million nursing home residents. So that’s a lot.

Schenk: There are almost as many nursing home residents in the United States as there are… Actually there are more nursing home residents in the United States than there are attorneys. There are only 1.4 million attorneys in the United States.

Smith: What’s the population of Atlanta?

Schenk: I can find that out. Let’s do that.

Smith: But it’s a booming industry. And we’ve talked about profit versus nonprofit before. Something else you should keep in mind is that out of those almost 16,000, about 65 – and this is all from the CDC that keeps track of them – about 65 percent are for-profit organizations. So just keep that in mind when you’re looking at the assisted living, the nursing home and all those different options.

Schenk: Atlanta, if you account for the entire Atlanta metropolitan area, it’s 5.5 million – ninth-largest metropolitan area in the United States.

Smith: Okay. So imagine that half the population of the metro area, which is an enormous, enormous area, because that includes the people who claim they live in Atlanta even though they’re actually in Alpharetta, not the people who live in Midtown and Virginia Highland and downtown. But if you include that entire perimeter area, imagine half of those being nursing home residents that we have in the 50 states. and Georgia has 159 counties and there’s at least one if not two nursing homes in every single county. So we’ve probably got 300 nursing homes in Georgia alone. And Georgia is notoriously one of the worst offenders of nursing home neglect in the state, so keep that in mind too.

Schenk: And you say Atlanta is the worst offender in the state of Georgia or Georgia’s the worst offender in the United States?

Smith: No, Georgia is one of the worst offenders. We’re at the very bottom of the list. The very bottom of the list or top if you’re looking at who’s the top offender is actually Texas. Texas is…

Schenk: …Home to Yosemite Sam.

Smith: Yosemite Sam. So sorry. But what about the rest of the world? This is something I thought was interesting and thought tied into what we’re talking about, which is the decision to put loved ones into a nursing home? What are we looking at with the rest of the world? What does the rest of the world do for the elderly?

And the first one that came up for me was looking at Japan, because Japan has the highest proportion of people 65 or plus in the world. In the world. So think about that. They have more elderly than anybody else does in the world.

Now one thing I think we’re all pretty much aware of is that the American diet doesn’t produce the most healthy elderly Americans. You can probably imagine that the vast majority of these 65 or older in Japan are healthier. But even though they’re healthier, they’re still a huge burden on the Japanese population, which is having a reduction in births. So what that means is they’re having an increase in elderly and a decrease in births.

Schenk: They’re disappearing.

Smith: So they’re slowly disappearing, but they’re also giving themselves a huge burden to take care of the elderly. So what are they doing? Well what they’ve decided to do, and this is from a Forbes article that I pulled up and was looking at, is that public pressure to take care of the elderly made the government come up with a mandatory long-term care insurance system, so basically a Japanese version of ObamaCare for the old was mandatory that everyone have long-term care insurance. In addition, the government subsidized services for families who decided to take care of their loved ones at home.

Schenk: So like tax breaks.

Smith: Tax breaks, which is something that incidentally Donald Trump has suggested and we’ll see if that happens, which is giving tax breaks to those who take care of the elderly in their homes, so not just any elderly, but if you’re taking care of Mom or Dad and maybe you can’t work as much or maybe you’re spending money on certain services, then you may see some sort of subsidy to help you do that, and that’s something that Japan did, which is helping them.

In addition, another thing that Japan did was companies are starting to help workers by giving them certain days off, certain paid time off to take care of it. So in other words, the government and the private industry, they’re all working with the citizens to help take care of the elderly, which can be a big issue.

Schenk: And based on the statistics in America that anybody 65 today is going to require some type of assistance in the future, we’re going to need to have a lot of movement towards what Japan has been doing.

Smith: And just to close this up about Japan, another reason I brought them up is an interesting thing that Japan is doing is that they have introduced something called ROBEAR, which is a robot bear.

Schenk: Or me in France.

Smith: Is that…?

Schenk: Robert.

Smith: Oh, Robert. Robert.

Schenk: Right, but in France.

Smith: Okay, I didn’t get the joke at first.

Schenk: Okay.

Smith: Anyways, ROBEAR is a shiny, white Japanese-made medical robot.

Schenk: That’s definitely not me in France.

Smith: It stands about four-feet tall, has long arms and looks like a bear, but a robotic one that just rolled out of a Disney movie. The government wants to design robots like this for nursing care. In this article, it says, “It’s very difficult. We’ve made many robots, but few of them are very useful, so that’s a problem. It’s not easy to design technology that understands when a fragile elderly person flinches or doesn’t want to be picked out of a hospital bed.”

Schenk: I’ve got to say, did you get this from I don’t understand. This is really a thing.

Smith: Oh yeah, this was in

Schenk: Wow.

Smith: The Japanese, of course, are about to use robots to help with the elderly.

Schenk: Whatever it takes.

Smith: It reminds me of that Saturday Night Live skit where Phil Hartman suggests that the elderly – no, it’s Sam… What’s his name? Anyways, it’s about robot insurance.

Schenk: Well one thing that you can ensure is that we’ve reached the end of this program of Nursing Home Abuse Podcast. You can as always download the audio version on Stitcher or on iTunes or you can watch these episodes on our website, which is – that is, or on our YouTube channel. New episodes are available for you every Monday, but you don’t have to see them if you do not want to on Monday. What I’m trying to say is you can download them anytime that you want to during the week. It does not necessarily have to be Monday, although new episodes are available every Monday. And before I mess anything else up and go any further, I will bid you adieu until next time.

Smith: Until 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 – That’s See you next time.