What do the Georgia Long Term Care Ombudsman do?

Episode 73
Categories: Legal Procedure, Resources

Schenk: This is the Nursing Home Abuse Podcast episode 73: What does the Georgia Long-Term Care Ombudsman Program do?

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 to the show everybody. My name is Rob Schenk, and usually with me is Will Smith, my co-host and law partner, but he is on vacation this week. He is I think in the south of France getting a suntan and eating macaroons and that type of thing. He will be back next week and hopefully you can bear with me as I lead us through this episode by my lonesome.

Very interesting topic this week. We are going to be discussing what the Georgia Long-Term Care Ombudsmen do, what that office does. And to help us guide ourselves through that topic, we have as a guest Melanie McNeil. Melanie McNeil is the Georgia state long-term care ombudsman. Long-term care ombudsmen are advocates for residents who live in skilled nursing facilities, personal care homes, assisted living communities, community living arrangements and intermediate care facilities for individuals with intellectual disabilities.

Prior to taking on the role of the state long-term care ombudsman, she was the manager of Medicaid in special populations for Kaiser Permanente in Georgia. Melanie came to Kaiser Permanente from the National Association of State Units on Aging in Washington, D.C. where she was the director of public policy.

Before moving to Washington, she spent 10 years with the Georgia Council on Aging, advocating on behalf of older adults with executive and legislative branches in Georgia. She was a participant in the 2015 White House Conference on Aging. She was elected to the Georgia Gerontology Society Board for 2015. She was appointed to the Georgia Commission on Family Violence in 2015 and then appointed to the Georgia Older Adult Cabinet in 2017 among other accolades and positions.

She’s a honors graduate of Western Illinois University and a cum laude graduate of Georgia State University College of Law. And Melanie is admitted to practice law in both Georgia and Colorado and we welcome her to the show. Welcome, Melanie. Thanks for coming on.

Melanie: Well thank you for having me. I’m so happy to have some time to provide some helpful information.

Schenk: We are too. We are too. So I just let the audience know a little bit about your background and what your current position is, but for people who have a loved one in a nursing home who are possibly having issues of any sort, whether it be unexplained injuries or whether they’re not getting their proper care, proper medications, any type of grievance, for those people out there, can you walk us through what an ombudsman is and what the long-term care ombudsman program does for those residents and those families that have loved ones in nursing homes.

Melanie: Sure, thanks for the question. So the long-term care ombudsman program is a program that’s authorized in the federal law, the Old Americans Act, and also state law. And our mission is to be available to long-term care residents, so people who live in facilities, to resolve complaints for them, but also to be mindful of how the environment is, what’s happening in the facility.

We advocate for individual residents. We also advocate for residents as a whole. So if we go into a facility and we see there’s a problem that would affect all residents, we can go ahead and talk with the facility about making a change. So if the air conditioning is out, the temperature is too hot, if there are, like the facilities I visited had a leak in the roof with water coming in on the floor, that’s a problem I can see but that would be a problem for everybody in the facility, and so holding a facility accountable to correcting those problems.

But individual residents also have specific problems for them, and so we’re there to help advocate for whatever the resident wants as it relates to their rights as a resident in a long-term care facility, the quality of their life and quality of care. Some of the things we don’t get into – if a family has a concern about how a medical procedure is done for a loved one, like how a wound care is being done, we’re not clinicians, so we do not get into that part. We would probably refer the family to the healthcare facility regulation folks. They have more of that background. Their surveyors are frequently nurses and can look at the clinical stuff.

But if a family came to us and said, “We don’t think our loved one is getting wound care,” we might say, “Well, we have to talk to the resident first because we are resident directed, but if we have the permission of the resident to address that issue, we might then suggest there be a care planning meeting so that everyone can talk about what is the care that’s being given and why is it being done the way it is and if there are issues with that, then how can we make that better?”

Schenk: Fantastic. So Melanie, let’s just take the example you gave about a broken air conditioning where you walk in and it’s really hot. How would a family go about contacting you in the first place to get you on board with that? What are the first steps they can do?

Melanie: Well there are a couple of things. There’s a toll-free number that is statewide and it will direct the call to the local program. That number is 866-552-4464, and then you have to choose – I think it’s option 4, but if you listen to the message, it will say, “Press this number for the Long-Term Care Ombudsman Program,” and it will route that caller to folks that cover residents in that geographic area.

Folks can also call me directly. Families often get my number and they’ll call me and my number is 404-657-5327. I don’t actually go out to the facilities – well I visit one, but we have agencies that contract through our office who have ombudsman representatives. It’s their full-time work. This is all they do and they are assigned to residents of certain facilities, so they go out.

So if a family member calls me about a facility that’s down in Valdosta, I would refer them to the person who covers the facilities in Valdosta, and that ombudsman representative will actually go and investigate, find out is it really an issue? Is the air conditioner broken? If so, then they would call the administrator, maybe even a maintenance person at the facility and show them, again, with permission of the resident. They have to have the resident’s permission, but to say, “Well what are you doing to fix this? What’s the process?” And then we would follow back up. So if they say, “Well we need to get a part and it’ll take a couple of days,” we would follow back up in a couple of days and make sure that gets resolved.

And then, again, it’s all directed by the resident, so even if a family member calls with a problem, as long as the resident can tell us what they want, we have to do what the resident says. And this happens sometimes too – families will call and say, “My loved one in the facility, this is what’s happening,” whatever the issue might be. When we go and talk with the resident, the resident goes, “Oh, you know, my family members worry about that but I am not and I don’t want you doing anything about it.” And then we have to…

Schenk: Yeah, I hate to interject, Melanie, but that’s an excellent point. So let’s do an example where it’s an individual with mental cognition issues so that you would not be able to communicate with this resident. Now the family member is calling you. In order to get you involved, do they need a power of attorney? Do they need some sort of written authorization from that resident like a guardianship or something like that?

Melanie: I didn’t hear quite all of that. I have a little trouble hearing you.

Schenk: Sure.

Melanie: The last part?

Schenk: Sure.

Melanie: There we go.

Schenk: In order to communicate with your office for a loved one that’s in a nursing home that can’t communicate or lacks the ability to communicate, does that family member need written authorization in the form of a power of attorney or a guardianship paper in order for you to get involved, or just based on their allegations, you go in and investigate on behalf of the resident?

Melanie: Right. If the resident can’t tell us, then the law directs us to look at what would be to protect the health, safety and welfare of that resident. So if a family member were to call us with a concern about a resident and the resident can’t tell us what they want, we would then look at that. So if a family member says we have to do something that we don’t think would protect the health, safety and welfare, we probably wouldn’t.

Schenk: Right, that makes sense.

Melanie: We would explain to the family why we wouldn’t do what it is they want us to do. But usually when a family member calls about a resident who can’t tell us what they want, what they’re trying to do is protect the health, safety and welfare, and we can do that on behalf of the resident.

One of the other things that gets a little sticky with family is family sometimes wants us to do things that really are outside the scope of what we do. So one side of the family is unhappy with the other side of the family, and they want us to be involved in that family conflict. We don’t do that unless it affects the resident directly and the resident tells us, “Yes, I want you to do something.” This is what happens frequently – son calls and says, “I don’t want my sister visiting my mom anymore.” Well it’s up to the mom, who’s the resident, whether she wants to visit with the sister or not. And we would explain that to the caller, “It’s up to your mother or father,” or whoever the loved one is. “It’s up to your loved one to say with whom they want to visit, and if they want to visit with the sister, we’ll advocate that she can do that.”

And sometimes people think if they’re agents under a power of attorney or either if they’re guardians that they can restrict who the resident sees. That is not the case unless the agency, that power of attorney, that written power of attorney, says, “I, as the principle, the resident in the facility, direct my agent to restrict my visitors or to keep so-and-so out.” It has to be specifically written as it would in a guardianship order. A guardianship order usually does not include the power for the guardian to restrict the visitor. Visitors have, under the federal law through Medicare and Medicaid, so most facilities are participating in Medicare and Medicaid and their regulation applies, the resident is the one who has the right to say, “I want to visit with whomever I wish to visit.” And so we would be advocating whatever it is the resident wants.

One other thing I’d like to mention too is even if a family member is the complaining party, again, if the resident can tell us, it’s the resident who directs what happens, and it’s the resident who can say, “I don’t want you reporting back to my family member about this. I want you to take care of this, or I don’t, either way, but I don’t want you communicating my wishes to my family member.” That happens sometimes and so then we would respond back to the complainant and say, “We took some action on your complaint, but we are not at liberty to tell you what happened,” because again, we’re directed by the resident.

Schenk: I see. That makes sense. So if the resident, as long as the resident directs you and authorizes you to speak to the family member or even the attorney, you can, is that correct?

Melanie: Yes. Oh, yes. And most of the time, residents do want us to, but you know, especially when there’s family conflict, sometimes the resident just doesn’t want us, just doesn’t want to get in the middle of all that family conflict and doesn’t want us to be involved in that either, which we wouldn’t. Again, we’re directed by the resident.

Schenk: Oh sure.

Melanie: One thing I will say as it relates to attorneys, we have to talk to the resident, just as attorneys have to talk to their clients privately, we have to talk to the residents privately too. So we’ve had this come up once. An attorney called to say, “I want you ombudsmen to be on this conversation with the resident.” And we had to say, “Well we can’t do that until we’ve had a chance to talk to the resident by him or herself to make sure we’re really authorized to talk to the attorney.” And then of course if the resident gives us permission, we would.

Schenk: That’s actually – that kind of circles me back to a point I want to get you to elaborate on. With regard to permission, when it’s granted, that kind of thing, so let’s go through it. So you provided the phone number. You gave the two numbers – you gave basically the main office and then your office. So let’s say a resident or a loved one that’s concerned about a resident in a nursing home calls that number. Literally what’s the next thing? Do they get a live person? Is it an automated line? Do they have to fill out a questionnaire? Take us logistically through what’s the catalyst for the individual ombudsman to go out.

Melanie: Sure. So what happens is all of us have voicemail so someone might have to leave a message, especially our ombudsman representative may be out in the field. But all that to say someone will call them back or I’m frequently in my office and I get the calls directly, so then I would ask the nature of the issue. What exactly is the problem? And ombudsman representatives would do the same thing. What’s the nature of the problem? Who is the resident involved? What facility is it? What room is the resident in? So that we can go – when we go and make a visit to a facility, we go unannounced, unless we’re there at the request of a resident or a care planning meeting, for example, something that has to be set up ahead of time.

We would generally go unannounced. And when there’s a complaint, we wouldn’t just go to the room of the resident about whom the complaint was made, because then, we sort of point out to the facility, “Uh-oh, there’s a problem.” So our folks would go and visit with other residents at the same time. We’re trying to preserve that confidentiality for the resident until we’ve had a chance to speak to the resident and find out what’s going on.

Again, if the resident can tell us, can respond to us, “Yes, I want your help with this,” at that point, we would then talk with the resident about, well okay, depending on the nature of it, if it’s a food complaint, we might be talking to the dietary folks. If it’s a care plan complaint, we might be talking with the director of nursing. But we would talk with the resident about what we think might be a way to go to address the issue. And we would again ask permission, “Do we have your permission? Here’s what we think we should do. We should go talk to the director of nursing. Is it okay with you if we go talk to the director of nursing about this? Is it okay if we then share with your family members about what we find out?” And we would document then, “Yes, the resident gave us permission.”

If the ombudsman representative is able to talk to the director of nursing that day about that issue, they would go ahead and do that and come back to the resident and report what the situation might be. So let’s say the issue is the resident doesn’t like getting up at 7 o’clock in the morning and they would like to get up at 8 o’clock in the morning. So the ombudsman would say, “Okay, I think we should talk to the director of nursing so she can talk to the aides about that. Do I have your permission?” “Yes.” Okay, so go talk to the director of nursing. Okay, they’re going to change the schedule. Come back and report to the resident. And then we would follow up. We would wait a few days and see did that actually happen? Is the resident satisfied? If not, if the resident says, “They’re still not doing it. They’re still getting me up at 7 o’clock,” then again, ask permission, “Is it okay if we go to the director of nursing? Maybe we need to talk to the administrator too.” As long as we have permission, we would do that again. You would follow up to make sure that is correctly, that resident is satisfied, and we would also ask permission, “So is it okay to report this back to your family member?” if it was a family member who made a complaint in the first place.

Some things take longer than others. It depends on how complicated the complaint is. And some complaints really should involve others. So if the complaint is about abuse, we are not mandated reporters, so if the resident does not give permission to report that, we wouldn’t. But what we would do, we might ask other residents, “How is the care here? How are things going? Do you have any concerns?” If someone else shared that abuse was going on with them and they allowed us to then report it, we could. We could report it to not only the facility, if that seemed the appropriate way to go, but also to the Healthcare Facility Regulation Division at the Department of Community Health, the regulators, and to law enforcement. And we would tell the facility, because their staff are mandated reporters, we would remind them, “You must report this because you’re mandated reporters.” So some investigations take longer than others and sometimes other people have to be involved.

Schenk: Let’s take the example then of the abuse. So when you go in, you investigate that, and let’s say for example you got to call DCH or you’ve got to get law enforcement involved. What’s the paper trail of the ombudsman program and how does the resident or the loved one of the resident obtain copies of that for a potential claim or just for their understanding of what the ombudsman accomplished or was unable to accomplish?

Melanie: Sure. Well in a case like that with abuse, again, we would be alerting the other folks to do the…

Schenk: Right, but I guess my question is when you go in and interview staff, the director of nursing, the basic investigations asking other people, how is that documented, if at all?

Melanie: Oh sure. So our ombudsman representatives would take notes of whatever happened and where we are training our folks and have forever to document the date, who did you talk to, what was the name? It’s not quite the same as law enforcement, so we’re not exactly Joe Friday.

Schenk: That’s a good reference.

Melanie: Yeah, but they would document their case. Now we cannot release – now our local ombudsman representative can never release their records because they actually belong to the state ombudsman. So if a family or attorney wanted the documentation of the ombudsman investigation, we would have to have permission of the resident first, if the resident can give us permission. So our records are confidential. It cannot be released to anyone without the resident’s consent, or if the resident has a guardian, for example, we have to have someone who has authority to release who’s standing in for the resident. So if the resident has died, for example, it would be the executor or the administrator. It has to be someone who’s got the authority to say, “Yes, it’s okay to release those records.” Or we can do it by court order, but if we don’t have permission of the resident or someone who’s authorized, an administrator or executor, we’d have to wait for a court order. And that’s not a subpoena. It’s actually a court order. Otherwise we can’t release the record.

Schenk: Got you.

Melanie: And we can’t even really tell someone who’s calling about a situation if we had a case until we have that authorization. A resident would either have to give us permission or again, the administrator, executor or guardian, if there’s a guardian while the person’s still alive, they would have to give us permission to even say if we had a case or not. And sometimes we are not made aware of a situation. A facility might know that there was an abuse allegation and they really are required to report it. They might not even tell us. We might not know. It might have gotten reported to law enforcement and Healthcare Facility Regulation and we wouldn’t even know about it unless the resident told us or the family called us. The facility isn’t required to tell us that stuff.

Schenk: Got you. And Melanie, just from a general standpoint, what would you say is the most common complaint that the ombudsman program follows up on, and what do you think the success rate is for the ombudsman coming in, particularly when you’re able to do a plan of care meeting, that kind of thing? How often, nine times out of 10, eight times out of 10, is the resident end up being, “I’m happy, thank you for doing what you do,” that kind of thing, versus, “I’m going to call DCH,” something like that?

Melanie: Right. Well historically, and in this past year, it’s held true, the number one complaint we get is about involuntary discharge from facility. And I’d just like to touch on that for a minute because…

Schenk: Sure, please.

Melanie: I think people think that long-term care is paid for by Medicare. It isn’t. And even when Medicaid helps to pay, it only helps to pay. So people think, “My dad’s in a nursing home. I’m getting his checks and now I can use his check to pay other stuff.” You can’t. Even when the loved one has Medicaid that’s helping to pay, most of their income has to go, again, to help pay for their care, and that’s frequently the reason why people get a discharge notice, an involuntary discharge notice, because of payment issues. Sometimes families don’t realize they have to help with the Medicaid application, and so just so your listeners know, that’s the number one complaint we get.

But behind that, and this holds true most years too, it’s dignity and respect and staff attitudes, and I’m sure you hear this from family members and residents, sometimes they feel as though they’re not treated with respect by the staff.

Schenk: Sure.

Melanie: The other is failure to respond to calls for assistance. That’s the third. And then food is often an issue, sometimes hygiene, personal hygiene. Those are like the top five, and they’re consistently in the top five.

Now 4 percent of the time, we are not able to resolve an issue to the satisfaction of the resident, and that’s our benchmark, the satisfaction of the resident. Sixty-seven percent of the time, we are able to resolve it to the satisfaction of the resident, and the other not quite 30 percent of the time, we have referred the case to another agency and so we don’t know what happened or the complaint was withdrawn, or by the time we got there, the complaint was already resolved so there wasn’t any action needed or appropriate.

But we do also ask the residents at the time we finish the case, “Were you satisfied? Would you use the ombudsman program again?” as a way to kind of gauge a little bit of customer satisfaction. Not the best way to do it – we just don’t know – we’ve tried some other ways to assess customer satisfaction and it’s just a hard thing to do.

Schenk: I can imagine. So what about – you’re speaking of time limits. Is there a certain about of time, a window of time that you have to investigate a complaint? How long would you spend trying to resolve a complaint? Literally until it’s resolved to the satisfaction of the resident or until you realize you can’t? Is it two years? Three days? When would you give up or walk away?

Melanie: Sure. Right. Well again, it sort of depends on the nature of the complaint. We ask our folks to try and resolve their complaints within 90 days, but that’s just a target, and the reason for that is that it’s top of mind. There’s an issue that’s out there, I need to take action, so it just doesn’t linger, so a resident doesn’t think, “Oh gosh, I talked to that ombudsman representative six months ago and I haven’t seen him again.” We want our ombudsman representative to be in the facility and working to resolve the complaint as timely as they can.

Some things can’t be resolved that quickly because other parties are involved, it might be an appeal of a discharge and a hearing can’t get scheduled and so it drags on. Sometimes it’s an issue that just can’t be resolved to the resident’s satisfaction. The resident doesn’t like the food. It doesn’t matter what the change – the resident just isn’t satisfied. You work on it and work on it – the complaint might be “They don’t spice it the way I like it. They don’t make it the way I’m used to it,” whatever the case may be. It’s a personal preference and we won’t be able to resolve it.

Sometimes families thing we’re in the building every day and so they will expect, “Go see my mom today. Will you go see her tomorrow? Will you see her next week?” We can’t. We don’t have the resources to do that and that’s not really how our program works, and so sometimes we won’t ever be able to resolve, especially an issue where the resident can’t tell us but the family member is concerned, and so they’re sort of calling. They’ll never let the issue go. To the extent that we can resolve the issue as best we can, we will, but there are some times that we can’t solve the problem. Sometimes families are concerned about a decline of the resident and we want to be sure that the resident is getting the care they need. Sometimes the care they need they are getting. They’re just declining. That’s just what happens.

So it really depends on the nature of the complaint. But we try to leave a case open long enough to where we can get to a resolution, so it may be that it’s open for longer than 90 days, but frequently the complaints we get are resolvable quicker than that, so we don’t have any hard and fast rule that an ombudsman can only spend 90 days on a case. It’s just sort of a target to try and resolve it in that time.

Schenk: Well speaking of that, Melanie, how does one get involved in the ombudsman program? Is there some sort of vocation program, a training program? Do you have to have a bachelor’s degree? Can you kind of walk us through if there’s somebody out there who wants to participate and be an ombudsman, what do they need to do?

Melanie: Sure. Well we contract with six agencies. We’ve divided the state into six areas. And so if a caller called our 866-552-4464, they would likely get routed to the program that’s in the same area code as their area code. And so that local program would talk with them about what’s their interest, do they want to make visits to nursing homes, do they want to make visits to personal care homes or assisted living communities, do they want to help with other tasks? Our ombudsman representatives are sometimes out in the community doing community education. Sometimes people like to participate in that. But it would be our local programs who then assess what it is that the person wants to do as a volunteer.

Frequently we get volunteers who have had a loved one in a facility and so they know the plight. Maybe their loved one isn’t in a facility any longer and they think, “Well gosh, I’d like to be someone who can go and visit and kind of see what’s going on and report back,” and that’s often what our volunteers do. They visit and they report back to the ombudsman staff to say, “Gosh, I observed that this facility had bad odors,” or “I saw that there were residents who didn’t seem to be engaged much, didn’t seem like there were many activities. Maybe that’s something you want to look into.”

Sometimes volunteers go and they just visit with residents who don’t really have anyone, and there’s a valuable, valuable service. There are so many residents in facilities who just, even if they have families, they don’t see them that often, and so having a volunteer go in and just talk to them for a few minutes, and I think our programs usually ask for a commitment, so they would ask a volunteer, “Would you do this for us for a year? Can you commit to do it for a year?” And of course, we want to be mindful of the volunteer and what their interest is, and so the volunteer might say, “I just want to visit at the nursing home that’s down the street from me.” Okay, and so we try to accommodate what the volunteer wants to do, but again, that’s such a valuable service to have someone who’s just in the building, who’s observing, who’s been reporting back what they see and any problems they encounter so that the ombudsman representative can then go and follow up if there are issues.

Schenk: Right. Well Melanie, I can’t believe it’s already been 30 minutes.

Melanie: Oh my goodness.

Schenk: We really appreciate you coming on the show. We’re definitely going to have you back on because we could talk about this all day and our listeners really love this information. So we definitely need to have you back at some point to talk more about the ombudsman program. I wish that Will was here. He’s on vacation in the south of France, I think. I’m kidding, I’m not quite sure, but he speaks very highly of you and you’ve been absolutely great and we’d love to have you back. And thank you so much.

Melanie: Happy to do it.

Schenk: Thank you so much for the work that you do, Melanie, and thank you for being on the show.

Melanie: My pleasure. Thank you so much.

Schenk: Awesome.

Melanie: Take care.

Schenk: Thanks, Melanie. Bye-bye. Melanie has a very pleasant voice. Will and I are big fans of the Georgia ombudsman program. These people are doing the Lord’s work in the state of Georgia. They do a lot of good things and we appreciate what they do.

But that’s going to conclude this episode of the Nursing Home Abuse Podcast. This is so strange doing this by myself. I hope Will is enjoying all the macaroons he’s eating. But at any rate, you can watch the Nursing Home Abuse Podcast on our website, which is NursingHomeAbusePodcast.com, or on our YouTube channel. Or if you so desire, you can listen to this podcast in its audio form wherever you get your podcasts, whether it’s Podcast Puppy, Stitcher, Podcast Universe or any other place I’ve just made up. Well actually, Spotify. Remember Spotify. It was a big deal for us to get on Spotify. But at any rate, that’s going to conclude the episode, and folks, we will 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.