Using the Long-Term Care Ombudsman for Reporting Problems at a Nursing Home

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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 Schenk Firm 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 60 of the Nursing Home Abuse Podcast. My name is Rob Schenk.

Smith: And I’m Schenk Firm.

Schenk: And we are Georgia trial lawyers focusing in the areas of nursing home abuse and neglect and we are your co-hosts of this episode. As this episode goes to air, it is March 19, 2018. Will, I want you to picture this. It is 1983 and my mother – I don’t know if it was a family or what the circumstances were surrounding this – but I was taken to go see a musical. It may be my first theatre experience like actual theater theatre, like live theatre, because I’d already seen “Return of the Jedi” at that point I’m pretty sure in the actual real theater, but it was a production of – my first musical – it was a production of “Oklahoma.”

Smith: Oh, okay.

Schenk: Yeah.

Smith: I wondered where this was going.

Schenk: Yeah.

Smith: I should have guessed that.

Schenk: It scarred me so bad in terms, because I’m like I don’t know what to expect, like I don’t understand the concept of a musical, okay?

Smith: And this is Oklahoma where the wind comes sweeping down the plain?

Schenk: Yeah, Oklahoma, okay!

Smith: Yeah.

Schenk: Right? First of all, people singing in front of me, it makes me anxious. And also as a kid, like I don’t want to sit still for two hours. So I hated the experience so badly that I just – I couldn’t do any musicals for the rest of my life, like “Phantom of the Opera,” “Les Mis,” whatever it is, I can’t do it because of the play, the musical, “Oklahoma.” In fact, I won’t even go to the state.

Smith: Well that’s a shame because it actually is a wonderful state.

Schenk: Well if you say so.

Smith: Yeah, it is. I’ve been there. Oklahoma’s an absolutely beautiful state. It’s actually one of my favorite. It’s so different from Georgia. It’s interesting to see landscape that is like there that is wide open, that is beautiful.

So on today’s show, we actually have the head of the state long-term care ombudsman for Oklahoma, Bill Whited. He’s responsible for the daily operations of the Oklahoma Long-term Care Ombudsman Program and Systems and Legislative Advocacy, which we know is a big deal, for long-term care residents. He oversees 24 paid ombudsmen and about 100 volunteers that cover the entire state of Oklahoma, which is cut up into about 70 counties. So we’re very honored to have him on the show again.

Schenk: And before we put him on the line, I just want to make it very clear that I don’t hate Oklahoma as a state. I was just kidding about that. However, I do hate the play, “Oklahoma.”

Smith: I like them both so I don’t know what to tell you.

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

Bill: Thank you very much and I’m happy to be here.

Schenk: Bill, do you have a percentage of the complaints that come across your desk that you find egregious and turn over to either law enforcement or state agencies for investigation, further investigation, and then a percentage of complaints that come across your desk that you would consider non-issues that in your mind, it’s nothing? And of those percentages, what are some commonalities in those categories? What are some themes, if any, that you find in both those categories?

Bill: Okay, most often we are able to fully resolve or partly resolve most cases without action or referral to another enforcement entity. Less than 5 percent of our cases ultimately end up being referred on for enforcement. And many of those types of cases that are referred on for enforcement, a lot of them are discharge issues, abuse, neglect or exploitation issues, so some of the things I would deem as being more serious.

Now as far as non-issues, I’m going to tell you that our approach here in Oklahoma is that if it’s an issue for the resident, then it’s an issue for us.

Smith: Right.

Bill: And that’s how we approach things because while we may look at something and say, “Well you know, that may not personally for me be something that’s really that important,” but for that resident, it may be extremely important. And let’s face it. When you go into a long-term care facility, you’re giving up a large degree of independence. Most residents here in the state of Oklahoma are on Medicaid, so they’re in a semi-private room. They have a roommate that they may or may not know. The amount of space they have to reside in is limited so, of course they can’t bring everything they own to the long-term care facility, so they’re giving up personal belongings. They’re giving up a lot of their physical independence many times because of their medical conditions. While they still have the right to engage in their life the way they choose to live it, the reality is when a person enters a long-term care facility that they have given up a lot. And to empower that resident to be in control of whatever concern or issue they may have is extremely important. Give that resident the ability to say how they want to live, and that way, it’s a person-centered approach to their care.

Smith: Just out of curiosity, Georgia – and I don’t know what the statistics, I don’t know what the ranking is for Oklahoma, but I can tell you right now that Georgia is one of the worst offenders for nursing home neglect and abuse in the country. It’s Georgia, Texas and then I always forget the third one, but a lot of that has to do with just understaffing here in Georgia. Do you see that ever being a problem in Oklahoma? Is understaffing, underpaid staff an issue?

Bill: Understaffing, I believe, contributes to a large majority of the complaint that we receive, and if you have enough boots on the ground, then you’re able to overcome a lot of issues the residents have. Here in the state of Oklahoma, we do have staffing ratios in our Nursing Home Care Act, and it was supposed to be progressive in nature. They passed the act in the year 2000, and in 2003, they increased to our current levels, which is one staff member for eight residents on the morning shift, one to 10 on the afternoon shift and one to 17 on the evening shift or a greater fraction – that’s what the law said. Now that was supposed to increase again, but that was tied to the availability of funding, and Oklahoma has been in a budget crisis for many, many years now, and staffing ratios have never been increased.

Now part of what our law does say is even if you meet the minimum staffing ratios, you are supposed to staff at a level that meets the needs of the residents. So if the residents’ needs can’t be met with that minimum, they’re supposed to staff higher, which then you get into the argument of are they really meeting the person’s needs and should they be required to staff higher, and ultimately that’s up to the enforcement agency to make the determination, so sometimes staffing issues are one of those things that do get referred to enforcement agencies, because an ombudsman may not feel like the residents’ needs are being met and the facility says, “Oh, but we’re meeting the minimum staffing ratios.”

Smith: Right, like for example, in the morning shift, if you’ve got one staff for eight residents and those eight residents are all ambulatory and they all have no cognitive issues, it’s different than if those eight residents are all total assist.

Bill: Exactly.

Smith: You clearly cannot possibly get to eight people and feed them all at the same time. Do you guys feel like – and I kind of get this sense from talking to some other ombudsmen and some articles that we’re looking at – it sounds like you guys are constantly fighting for funding, fighting the legislature for staffing. Is that a problem in Oklahoma as well, the ombudsman program itself?

Bill: Yeah, absolutely. Funding is one of the primary barriers that we have here in Oklahoma. That was the primary barrier that I identified last year on my annual report was fiscal in nature. And we are an Older Americans Act program, and every state and territory in the nation was required to have an ombudsman program starting in 1979. And here in Oklahoma, we’ve been fairly fortunate compared to some states, I mean a lot of states don’t have anywhere near 24 ombudsmen staff members to provide the supervision and investigations that we do here in Oklahoma. But the federal government only funds a portion of our program, so the Older Americans Act does not fund us in full. We have some other funding sources here in Oklahoma, one of which being state dollars, another being that we have what’s called the Quality of Care Fee, where nursing homes pay a per bed, per day tax to the state, and then that money is used to go directly back into long-term care services, so that fund pays for 10 of our ombudsmen supervisors throughout the state.

But ultimately, we have had with the budget crunches we’ve had here in Oklahoma, some of which have been as a result of reduced federal funding, which has been a result of our state dollars being limited. We’ve had staff in the past go to part-time status for temporary timeframe. I’ve lost one staff member at the local level. I’ve lost a couple staff members at the state office level here and it makes things difficult because the funding absolutely needs to be increased, and currently, there’s what’s called a maintenance of effort standard that’s required under the Older Americans Act or minimum funding standard, and it’s based on the federal fiscal year 2000. So it’s now 18 years old and it’s saying you have to use the same amount of Title III dollars to fund the ombudsman program that you used in the federal fiscal year 2000. And let’s face it – costs have substantially increased since 2000, so now anything that’s in excess of that maintenance of effort, the state has to either figure out how to come up with out of its own state dollars or some other funding.

Smith: And what blows my mind, just the logistics of this is you’re talking about how some states aren’t fortunate enough to have 24 paid volunteers, and that doesn’t seem like – I mean 24 paid ombudsmen. That doesn’t seem anywhere near enough for 77 counties because I know you guys are getting calls. I know how much these places neglect the residents or ignore the residents and I know how much the families complain. I don’t see how you can do it with 24 paid people.

Bill: Yeah, it’s tough. I’ll be quite honest with you. I would love to see that number doubled, and that way, we can be out there more frequently. One of the things we’ve had to do here in Oklahoma as a cost-cutting measure is that not only do we investigate complaints, we do what we call regular routine visits. And our policy here in Oklahoma is that we will go out there four times per year on a regular routine visit. We’re not necessarily going to investigate a complaint. We’re just going to see how things are going, talk to residents and build rapport and be present and known. So here in Oklahoma, due to the budget cuts that we’ve had, we’ve rolled things back and we’re only doing three routine visits a year now.

And we’ve cut back on our trainings. Typically by our administrative code, we’re supposed to have four ombudsmen trainings per year and we’ve had to cut it back to two because we don’t have the money to even pay for the ongoing training at this point in time.

Smith: What kind of training is that? Is it – I would imagine you guys have to know the rules and regulations.

Bill: Yes, and a large part of it is focusing on rules and regulations. Of course, the ombudsman program recently has new rules that we must follow. There’s a new code of federal regulations that governs the ombudsman program. That took effect back in July of 2016 and that was the first set of federal regulations that the ombudsman program has ever had. Although we came into existence in 1979, our federal regulations didn’t get thrown into effect until 2016.

Schenk: Right.

Bill: So a big part of that is bringing our staff in, training them about the rules and regulations. We bring in guest speakers to talk about different programs and services to help educate the ombudsman about what’s available that might be able to help residents to overcome any problems that they may have, and then also just overviews of the systems that are in place. That way the education the ombudsmen receive is very well rounded and can take them in whatever direction that they may need to go on any given circumstance.

Smith: And so I guess I know for a fact there’s Consumer Voice as one of the interest groups that’s advocating on your behalf. Who else is out there because I know the nursing home industry has a huge, rich, wealthy special interest lobby. What about ombudsmen?

Bill: Well here in Oklahoma, we do have some grassroots organizations that truly help us out. We have what we call the Oklahoma Aging Partnership, and it consists of our Oklahoma State Council on Aging, our Alliance on Aging and our Oklahoma Silver Haired Legislature. Oklahoma’s one of the few states in the nation, and I don’t know if there really are any other that have two legislative bodies. We have what’s called Silver Haired Legislature, which isn’t legislature in the aspect that they’re writing laws and things like a regular legislature does, but they pursue different bills that will effectuate positive changes for aging populations here in Oklahoma.

So I work closely with all three of those entities and meet with them regularly, especially during the legislative session, and we monitor legislation and try effectuate change at that level. So we’ve got some grass root groups who work closely with us. We work closely with entities like AARP and reach out to them if there are issues we feel they need to help us with or we can help them with.

Schenk: Bill, can you tell us more about the Silver Haired Legislature? Do they run for office?

Smith: Yeah, we don’t have that. That’s really interesting.

Bill: Yes, they do actually run for office and they – how it kind of works, and I’m not an expert in the SHL to be quite honest with you…

Smith: Sure.

Bill: How it works is each area of the state appoints representatives to the Silver Haired Legislature, and they’re appointed members to the SHL, they elect officers just like our legislature does. There’s a speaker and all of those different types of positions that they have and they come together and they meet regularly and they try to come up with some ideas for bills to effectuate change that’s positive for the aging population.

Here in Oklahoma this year, one of the Silver Haired Legislature’s efforts was to increase the number of paid ombudsmen that are paid for out of the quality of care fee that I mentioned earlier from 10 positions to 15 positions. So our legislature is supposed to convene the first Monday in February and it will run through the end of May, so where that ends up, I don’t know at this time, but we’re hoping to get that through. We’ve got to find an author to be able to slip that into a shell bill or something for us.

Schenk: Do you have an understanding of how long that’s been around, the Silver Haired Legislature?

Bill: I think that was back in the ‘80s.

Schenk: The ‘80s. I wonder like why Oklahoma. I wonder if it had more of an aging population?

Smith: I don’t know. I’d say we don’t have that in Georgia. It’s always a shame to me that the aging population isn’t more represented like that. You would think that these are the people that everyone cares about, whether you’re Republican or Democrat, and that is not the case, like both political parties are just as guilty at neglecting them. But it sounds like Oklahoma has a really good idea here. I wish Georgia could adopt something like that.

Bill: In the past, Oklahoma actually funded the Silver Haired Legislature and they had a little bit of legislative appropriation to help them do their job. That is not the case anymore, so like you see in Georgia and mentioned, this is not a partisan issue at all. No matter what side of the aisle you’re on, there are many things done at the legislative level that have not necessarily been good for aging Oklahomans. And so we’re kind of a non-partisan approach, but the groups that I work with make it very clear that this isn’t about being a Republican or a Democrat and we have members on all sides of the aisle that I work with and sit down together and our number one goal, regardless of our political affiliation is to effectuate positive change for older Oklahomans.

Schenk: Do you see a common demographic among the Oklahoma ombudsmen? Are these people that generally this is a second career? Is it people that maybe they’ve started off part-time? Are they mostly college-educated? Is it all different kinds of people?

Bill: The demographics for volunteers especially vary widely. Now I can say that most of our volunteers are older individuals where they’ve either had to deal with a long-term care issue personally with a family member or it’s something that they’ve just had an interest in as they’ve gotten older. But we have volunteers of all ages. We have volunteers that are college students and we have volunteers that are retired and volunteers that still work full-time jobs.

We need a lot more volunteers, and volunteerism has changed over the years, and I don’t know if every state in the nation is seeing what we’re seeing here in Oklahoma, but our volunteer corps has dropped from 215 volunteers to approximately 105 volunteers right now. So there have been some shifts in demographics right now. Historically, most of our volunteers are what I would call the Greatest Generation, the World War II generation.

Smith: Yeah.

Bill: And as they’ve aged out and gotten older and stuff, now we’re seeing more baby boomers, Gen X-ers and millennials coming in, but how those different generations approach volunteerism is extremely different from one another. And so what worked for the Greatest Generation may not absolutely work for the baby boomer, the Gen X.

Schenk: Well Will considers the millennials as the greatest generation.

Smith: Absolutely not. Bill, that is absolutely not true.

Schenk: Will’s actually an advocate on behalf of millennials.

Smith: No, I am not.

Schenk: …to get them on the map.

Smith: No.

Bill: I have some wonderful millennials that are ombudsmen so I’m not going to bash on millennials.

Smith: Well I’m very surprised – and he’s joking – but I’m very surprised because I would imagine the qualities that make a good ombudsman are patience, you’ve got to be level-headed and it doesn’t sound like an easy job because you’ve got families, I know, that are just absolutely either rationally or irrationally upset. You’ve got very emotional residents and you’ve got nursing homes that for whatever reason just don’t care or don’t feel like they need to do something. So it’s not an easy job.

Bill: No it’s not.

Schenk: Yeah, well Bill, actually one more question – so you have a family that’s got a loved one that’s in a nursing home in Oklahoma. What would you say to them if they’ve got concerns that run the gamut from “We don’t think that she’s getting her medication on time” to “She doesn’t like the quality of food?” What does that person need to do in terms of…?

Bill: First and foremost I encourage everybody to be empowered to advocate for themselves or their loved ones. Don’t be afraid to speak up. If you have an issue, bring it up to the facility, but do so in a professional, courteous manner. Sometimes emotions run high, and if you get a family member or somebody in there screaming or yelling about a problem, then all that does is exacerbate the problem. So make sure to bring it up, definitely be self-empowered to be your own advocate or your family member’s advocate, and if that doesn’t work for you and you’re not able to get the problem fixed, definitely reach out to your ombudsman because ombudsmen are there to assist those residents.

Now the family members, they may reach out and call us, they need to understand we are resident-directed and residents get to kind of tell us what to do, so if a resident’s perspective or wishes are different than that of the family, then they need to understand that an ombudsman is there for the resident, but they still have other avenues at their discourse. If an ombudsman can’t take some step that the family wants to take, they may need to pick up the phone and also call the regulatory agency. And if there’s a regulatory issue that’s going on, they can make those reports directly to the regulatory agency and that way somebody can get out there and investigate what’s going on with that.

Schenk: Very good, and the number that we read off the top of the show to Bill’s office at the State Long-Term Care Ombudsman in Oklahoma is 405-521-6734. Again that’s 405-521-6734. That’s for all of our listeners that happen to be in Oklahoma.

Smith: Oklahoma.

Schenk: Oklahoma, yeah.

Bill: That’s Oklahoma. And for Georgia, I spoke with Melanie not too long ago. She asked me to share with everybody how to contact the Georgia ombudsman as well, and you can reach out to the Georgia ombudsman at 866-552-4464, or you can find Georgia ombudsman information on the web at www.georgiaombudsman.org.

Schenk: Bill, we’ve got to make you a host. You fit right in, and I feel that’s a weird role reversal that we read the Oklahoma ombudsman information and you read the Georgia one.

Smith: It works.

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

Smith: Absolutely. And hopefully I get to see you at one of these Consumer Voice conferences coming up pretty soon.

Bill: Yeah, I hope to get to one one of these days. Maybe when Oklahoma gets out of our budget constraints I’ll be able to go to both the state ombudsman conference and the Consumer Voice.

Smith: Awesome. Good. Well thank you so much, Bill, for coming on.

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

Schenk: You too. Bye-bye. Lot of great things this episode.

Smith: Yeah.

Schenk: Again, to set the record straight, I don’t hate the state of Oklahoma. I do however hate the musical, “Oklahoma,” which is justified.

Smith: I guess. I don’t know.

Schenk: Will, along with growing up reading Shakespeare, eating fou-fou food and things like that, enjoys a good musical.

Smith: My favorite musical is what though?

Schenk: Hang on. Your favorite musical – I’ve probably already said it – it’s probably “Les Mis.”

Smith: It is “Les Mis.”

Schenk: I knew it. It definitely has some French – something happensin France pretty sure. Russell Crowe was in the movie.

Smith: So it’s about this man, Jean Valjean, who steals some bread to feed his sister and he’s imprisoned and he serves time in prison, he’s finally released. He prison guard is Inspector Javert who never trusts Valjean because “once a thief, always a thief.” He has no forgiveness in his heart in the very beginning anyways and it just follows Valjean as he steals some silver from this priest and the priest forgives him and Javert continues to follow him and he becomes the mayor of a small town, but Javert…

Schenk: Definitely is this a six-week musical?

Smith: Anyways, it’s also set at a time of a French Revolution, not the French Revolution, so there is a revolt and it’s the backdrop of this intersection of Javert, who’s this unrelenting, unforgiving system of justice, and Valjean, who’s a man caught between the revolution and this evil system of justice that has no forgiveness, and it’s just amazing.

Schenk: So what we’re going to have to do is Jean, if at all possible, you’re going to have to put some disclaimer at the beginning of the episode that if you’re driving while you’re listening to this episode, you will most certainly fall asleep and careen off the side of the road at Will’s recapsulation.

Smith: Anyways, I’ve seen it three times, including one time at the Palace Theater in London with the original cast that included Colin Wilkerson and Philip Quast – Quast was Javert and Wilkerson was Valjean.

Schenk: Well.

Smith: Palace Theater in London.

Schenk: For those of you who are listening on Spotify, I encourage you to click off of this podcast and go over to the Les Mis soundtrack and begin listening.

Smith: Yeah.

Schenk: Well with that, that’s going to conclude the episode of the Nursing Home Abuse Podcast. As always, you can watch the podcast, each and every episode. It comes out Mondays on YouTube or at our website, which is NursingHomeAbusePodcast.com, or you can download the audio on whatever platform you use, whether it’s Stitcher, iTunes, Spofity, whatever the case may be. And with that, we appreciate you and we will see you next time.

Smith: See you next time.

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