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 at the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we are trial lawyers practicing in the areas of nursing home abuse and neglect in the state of Georgia. We are coming to you as always from our offices in Atlanta, Georgia in the library/Dungeon.
This podcast is available to you, if you’re new, it’s available to you audio version-wise on iTunes or on Stitcher, or you can feel free to watch the episodes on our websites at NursingHomeAbusePodcast.com or on our YouTube channel.
A lot of stuff to talk about today, a lot of interesting nursing home laws, cases, issues to sort through. So we’re going to go right into the content. Will?
Smith: So today, we’re going to talk about what rights you have as a resident in a long-term care facility. And these rights, they come from federal regulations and they come from state regulations, and they’re largely overlapping. They’re essentially the same rights that you have, but as a resident in a long-term care facility, you’re not just a patient, and that’s why we call them residents. You’re not a patient in a hospital. You’re not going in for a quick treatment or a surgery and then expected to leave.
For all intents and purposes, this is your final residency. This is where you’re going to spend the rest of your life, however long that may be, and you have certain rights that go along with that. To jump into what these rights are, and this comes from… This is under Georgia law OCGA 31-2-4 among others.
Schenk: And depending on your state, there could be similar rules and regulations.
Smith: And by and large, the rights that you find under state law are the laws that you find under federal regulations, and among the several states, they’re all the same. They’re basic rights that you would expect anyone to have being a human, being a citizen and living in a place.
And among these rights are the right to adequate and appropriate care without discrimination on the basis of age, gender, race, disability, religion, sexual orientation, national origin, marital status or source of payment for services. So it’s essentially the same type of protected classes that you find under the Civil Rights Act, but expanded a little bit to include sexual orientation and source of payment for service. And what that means is whether your family is paying for your care there or you’re getting money from the federal government or the state government, it doesn’t matter. Everyone is treated equally as regards to care.
The right to exercise constitutional rights, including but not limited to the right to vote – so they have to take appropriate measures…
Schenk: They being the nursing home.
Smith: They being the nursing home – to ensure that you have access to absentee ballots. Some nursing homes will actually charter a bus to take residents, but they have to make sure your access to voting, among other constitutional rights, is not restricted.
The right to practice your religious beliefs – some nursing homes will have religious services on the appropriate day depending on what religion you are, but by and large, whatever your religion is, you have the right to practice it. Again, this is your home. This is not just a place where you go to have a surgery or some sort of medical procedure done.
Schenk: And in some instances, unlike your home where you’re growing up, you don’t have full privacy, but in a nursing home, you are guaranteed the right to your privacy. So for example, you can have and request that your loved one’s door be closed, that the curtains be drawn, and we’ll be getting into this not in this episode, but in another episode, about privacy in terms of having pictures taken of you or your loved one while a resident in a nursing home, so your loved one has the right to their own dignity and their own privacy in terms of their exposure to the public, their exposure to the people that actually work that, which I think that is an important right to have.
Smith: Now the reason that I wanted to really do a podcast on this issue as far as residents’ rights is because it’s difficult in the nursing home setting to balance whatever those rights may be with whatever the doctor feels is adequate for their healthcare. So there are times under Georgia law where a lot of these rights may be suspended.
Now typically convenience of the facility doesn’t justify the suspension of individual rights. Under Georgia law, it doesn’t matter how inconvenient it is that this resident is exercising one of the multitude of rights that they have. We only read you a very brief, partial list of what there is. However, there are some rights, which can be suspended. For example the right to get up and go to bed when they want, the right to use tobacco and alcoholic beverages, the right to access medical records and explanation of those records, the right to enter and leave as you desire.
However, that can only be done, the suspension of those specific rights can only be done by order of the physician. So for example, the right to use tobacco and alcohol – if this individual is not cognizant, if they have dementia and the physician has examined them and said, “Look, the use of alcohol is going to counter-indicate with these medicines. They don’t need to use this,” and that poses an immediate risk to the resident, then the family or the personal representative of the resident is given notification, and then and only then can you do it for a temporary period.
So they do have rights, but given that a lot of these residents have multiple medical and mental issues, there are some circumstances where some rights can be suspended given that a physician examines them, they’re notified and the family, and then and only then, it must be temporary and it must be reexamined ever so often before it’s done again.
But of course, there are some rights that will never be suspended – the right to practice whatever religion you want, the right to manage your own financial affairs and the right to medical and dental treatment. And also, this is keeping in line with something else that we’ve talked about in the past, you also have the right to refuse dental treatment.
Schenk: Among other types.
Smith: Among other types of treatments. And what’s important though is when a resident chooses to exercise the right to refuse something that could be harmful to them, the nursing home needs to let the family know. So they need to let you know that Grandpa Joe has decided that he’s going to drink wine and no longer wants to have his teeth brushed. They’ve got to let you know that. Otherwise you don’t know how to approach it. You don’t know what’s going on.
Schenk: You might be able to intervene with Grandpa Joe.
Smith: Right. Absolutely. Absolutely. But the bottom line is residents have a list of rights that are extended to them as members of their community, as residents of a facility in which they live for the rest of their lives.
And the enforcer of those rights, the people that you would turn to outside of the nursing home are called ombudsmen. Ombudsmen. And Georgia has a Council of Community Ombudsmen, and you can go to their website – the easiest way to remember it is it’s GeorgiaCOCO – GeorgiaCOCO.org.
Schenk: My niece is named Coco. Actually she’s named Chloe but we call her Coco.
Smith: It’s very interesting that you bring that up.
Schenk: Yes. And if you’re outside of Georgia, there’s going to be another body, an ombudsman program in your state as well. If you’re not in Georgia, just go do a quick Google search and you’ll find your own.
Smith: Yeah, and essentially what you do is if you think there is some violation of residents’ rights that doesn’t rise to the level of negligence – we’ll get calls a lot of times that’ll say, “You know, my mom’s in a nursing home and I don’t think they’re really respecting her privacy,” or “They won’t let her… She’s interested in another resident romantically and we’re not sure how to approach that,” these aren’t legal issues. They don’t really rise to the level of what we do.
Schenk: Right, they may be legal issues, but in terms of whether or not you might want to bring a civil case, if there’s no injuries, you probably could but it’s not going to be worth it in the long haul. However, these are things that you can report.
Smith: Yeah, and so what ombudsmen do is if you’ve got an issue, you contact the Georgia Long-Term Care Ombudsman and you tell them, “Hey look, my mom is a Muslim and she wants to practice her faith by praying five times a day, and this nursing home won’t let her do that or they’re restricting her access,” or “My grandfather wanted to vote and they wouldn’t let him do it because they were short staffed.”
So that’s when you contact the ombudsman. They’re going to come down there. They’re going to investigate. They’re going to make a finding and they’re going to try to resolve the issue by working and mediating with the nursing home.
Schenk: And in law school, a lot of times you learn from studying individual cases, and there’s an individual case, and I can’t quite remember the name of it, but it had to do with your rights as a student to free speech. And a Supreme Court justice in that opinion said, “You don’t shed your constitutional rights at the schoolhouse door.” And that’s a parallel to our seniors and our loved ones in these nursing home facilities. By the Constitution, by the laws in the state that you’re in, and particularly in Georgia, by the laws of the state of Georgia, there are a set of rights – we’ve mentioned only a couple of them – that you do not lose simply for the fact that you’ve been admitted as a resident in a nursing home.
Smith: And it’s a shame, but all too often, a lot of these residents don’t know what their rights are. And the residents’ rights, one of the requirements under federal regulation and state regulation is that they be notified what their rights are, that there be something posted, which says these are your rights. You have all of these rights.
Schenk: I think I need a laptop. I want to know what that case was. That’s not Tinker. That was another one. What case is that, where you don’t shed your rights at the schoolhouse door?
Smith: But I think they ultimately decided that the school could, for a specific reason…
Schenk: Oh I’m sure, but that was the memorable line from that case. It might have been a dissent there.
Smith: Might have been a dissent, yeah. Anyways, and another thing I want to talk about and it has to do with resident rights. It’s controlling the residents too is very difficult to do, and you’ve got to think that, you know, you put all of these adults into a facility. Just like they don’t shed their rights, they don’t shed their humanity and what makes them human at the door.
So you’ve got individuals who still are sexual beings, are people who want to drink alcohol, are people who want to smoke cigarettes, are people who still want to continue to live the life that they did before they came in there, and they’ve got these rights to do that. So how do we balance those two worlds? And it can be kind of difficult.
The first thing I would talk about is drinking. And this is something, you know, to be honest, I didn’t see that often working in a nursing home. There were individuals, there were residents who had alcohol at the nurse’s station, and anytime they wanted their alcoholic beverage, whether it was wine or beer, we would pour them a glass and bring it to them. By and large, it didn’t happen that happen, but it does happen a lot in other places.
There’s a New York Times article reading, and this is, to be honest with you, this is not my experience, but they’re talking about assisted-living homes that nearly 70 percent of assisted-living residents drink alcohol, more than a third of them drink daily and about 12 percent had abused alcohol in the past three months.
Now understand this is an assisted-living facility and we’ve spoken of the differences between the two. Assisted-living residents are individuals that may not require immediate medical attention. They may not require assistance, but for one reason or the other, they’ve decided to live within a community of other older people who convenience. It’s not necessarily that they have to have round-the-clock medical attention.
But it does happen in nursing homes, and part of the problem with alcohol in a nursing home is first and foremost, it can have an adverse effect on the medication that they’re taking.
Schenk: That’s probably one of the number one reasons it would be prohibited from the doctor. The alcohol conflicts, as a depressant, can conflict with any or all of the medications prescribed.
Smith: Absolutely. And when we talk about prohibited from the doctor, understand that all that means is it doesn’t mean that your mother or father or loved one can’t have the alcohol. It may mean you need to sign a waiver that says you’re doing this AMA, which is against medical advice. At the end of the day, they’re adults. They’re in charge, for the most part, they’re in charge of their own actions, assuming there’s no dementia or Alzheimer’s or other mental incapacities, and even if a doctor says, “Well Mr. Johnson, I don’t want you to drink alcohol or I don’t want you to smoke cigarettes,” it doesn’t matter. You have to let them do it.
But that doesn’t always end up being the case. What I have noticed is that the elderly are treated as though they’re children too often by not only the staff but also the family. And I can’t tell you how many times I’ve seen staff say, “Well no, I’m not going to take her out to smoke. She doesn’t need to smoke. That’s bad for her. She’s on oxygen. She’s got cancer,” and the family would come in and say, “I can’t believe you let my mom smoke. I don’t want her to smoke anymore.”
That kind of stuff really irritates me as a person and especially as an attorney because, look, you’ve got an 89-year-old woman who says, “I don’t know how much time I’ve got left on this earth, but I’m of sound mind and I want to go outside and I want to smoke a cigarette” or “I want to drink a glass of wine.” Let them do that. As long as they’re capable of making that decision, let them do it, because I guess my perspective is what are you concerned about? That they’re not going to make it to 150?
Anyways, that’s my soapbox for a second, but I really do believe that it’s important for those individuals to exercise their rights, including the right to do things that may be bad for them, and even though a lot of times it makes families upset.
And speaking about what makes families upset, is nothing is more incendiary and a problem than sex among the residents. It happens and it happens frequently. There are certainly scenarios in which a husband may come to visit the wife and that happens or a husband and wife live together in the nursing home and then it happens.
Where it becomes kind of an issue is when you have residents who are having sex with other residents other than their spouses. It happens and it happens frequently. More often than not, what you’ll see is you’ll see two individuals that get together and have sex and the family finds out and they’re absolutely livid about it. If this is the case for you and you go to find out that your dad has been sleeping with another individual at the nursing home, in all honesty, this is not the nursing home’s place. It’s their job to provide safety and security, so certainly if one of the individuals is not consenting, the nursing home needs to get involved, but at the end of the day, your dad is still a grownup and an adult, and if he wants to sleep with somebody that you may not want him to, it doesn’t matter. And it happens.
And I think honestly, it makes these people a lot happier. There’s a nursing home in New York where it’s Hebrew Home in New York, and this is from an article in the New York Times, they’ve actually set up a happy hour and even a senior prom and started a dating service called G-Date for “Grandparent Date” for the residents of the nursing home. So in a way, they’re encouraging romantic relationships among the residents in this nursing home, although out of the 870 residents, only 40 of them are actually in a relationship now. But I think that that’s important.
Schenk: People don’t stop being humans.
Smith: Yeah.
Schenk: In this article you’re looking at, it says, “Beverly Herzog, 88, widow, says she missed sharing her bed. Her husband Bernard used to lie on the bed with his arm outstretched and say, ‘Assume the position,’ and she would curl up beside him and spoon him.” I think you’re at a facility, you know that this is the last facility you’re going to live in and you’re in a cold bed. I think that’s only natural to want to be with someone else.
Smith: Yeah. So I guess in keeping with residents’ rights and remedies, any one of these situations, whether it’s smoking, whether it’s drinking, whether it’s some sort of sexual relationship, can become a problem for the facility itself. Now while the residents certainly have rights, the question then becomes well at what point does the facility have to say, “Look, we recognize that you have rights, but for one reason or the other, this is causing an issue in our community and we would like you to leave.”
Can a nursing home tell you to leave or discharge you? Yes, absolutely. You do not have the ultimate right under state or federal law to stay at a long-term care facility and do as you please. You simply don’t have that right. So if the exercise of your rights is causing problems within the facility, let’s say that your drinking is getting too much or they ask that you not smoke in certain areas and you continue to do that or let’s say that your grandfather is a Casanova and starts sleeping with a lot of the ladies in the nursing home and the families are complaining about it, well what are they going to do? They can’t move all of those families and maybe they’ve asked him to curtail his nightly activities and he’s not doing that, so what can they do? Well they can discharge him, but it has to be done in a specific manner.
Schenk: There has to be, you would say, due process in any decision to discharge.
Smith: Okay. The nursing home, under Georgia law, the nursing home can discharge a resident against their wishes if the transfer discharge is necessary for the resident’s welfare and a failure to do so is going to result in injury or illness to the residents or others, there’s be a nonpayment of charges, the resident no longer requires a level of care being provided and the resident’s needs cannot be met in the facility. As long as the discharge is not an emergency, the nursing home just has to provide written notice to the resident’s family and their physician 30 days prior.
Now out of those four categories that I gave you, the one that they’re likely to use if you’re drinking too much or if you’re doing things you’re not supposed to is number one, that it’s going to result in your injury or an injury to the other residents. So if you’re a threat to yourself or a threat to the community, they may say, “We can no longer afford this liability.” But what they have to do is give you a 30-day notice. And that notice has to include the reason for the transfer, the effective date, the location to where they’re being transferred and the fact that you have the right to appeal, the name and address of the local ombudsman, and one more, the mailing address of the agency responsible for any developmental or disability issues that you have, for example, if it’s a Down Syndrome individual, the local Down Syndrome ombudsman.
Schenk: And again, this is straight from the Georgia horse’s mouth, so your state that you’re in, depending on where you’re at listening to this, it will be different, but generally along the lines as we said, the rights that you have are going to be pretty similar to what we’ve indicated.
Smith: Yeah, absolutely. And I guess I wanted to close out with a really interesting situation that happened very recently involving an Iowa state legislator. So Henry Rayhons, a 78-year-old retired farmer and former state legislator, was charged with sexual abuse in 2014.
Schenk: Of his wife.
Smith: Yeah, a month after his wife died at the age of 78. The state prosecutors, the DA’s office and his wife’s daughters from a previous marriage, so that’s where the issue is right there – and this is often what happens, is it’s not the children of the two that are having sex that are complaining. It’s that somebody’s father is sleeping with somebody’s mother and they’re not happy with it. And this is the situation, even though I don’t know if he adopted him – he clearly didn’t have a very good relationship with them, but his wife’s daughters from a previous marriage found out, and she has Alzheimer’s – and remember Alzheimer’s is not dementia. Dementia is a condition, and just from a non-medical perspective, it’s where they don’t know where they are, they don’t know what’s going on, they don’t know who they are. It’s not just that they don’t remember, but that they’ve lost all sense of self.
Schenk: Perception and concepts, yeah.
Smith: And individual with Alzheimer’s among other cognitive difficulties, I think the one that we are all familiar with is they’re having memory issues. You can still have a conversation with them, they must just forget that they talked to you yesterday at the very basic level. This is not a medical description. It’s just an observational description from a non-medical person.
So she has Alzheimer’s and he was visiting her in the facility and would often get in bed with her and would pull the curtains around the bed. Now understand something – in a lot of nursing homes, if not all nursing homes, the vast majority of patients share a room with somebody else. You only have a select number of rooms that are completely private, where there’s only one bed, and those typically cost more money. So it’s usually the families who are paying out of their own pocket or they’re supplementing CMS payments to get them into a private care, there’s usually a waiting list, and so most residents share a room with somebody else.
So what was going on with Mr. Rayhons is that his wife was in there with a roommate and the roommate alleged to have heard them engaging in some sort of sexual activity, and presumably informed the daughters who then made allegations to the district attorney’s office that, “Look, this man who married my mother, she’s got Alzheimer’s, she can’t consent and he’s having sex with her.”
They took it to trial and the jury – and they didn’t really include in this Washington Post article that we’re getting this from, they didn’t really include the jury’s basis. They said the jury didn’t give a basis for why they found him not guilty. It’s quite possible that under the law, if you follow the letter of the law, having sexual contact with somebody who is not mentally capable of consenting is rape, is sexual abuse.
Schenk: Even if it is your spouse.
Smith: Even if it is your spouse, absolutely. So I think what happened here is I think the jury looked at this issue and they took into consideration all of the things we’ve been talking about during this podcast, that you don’t shed your humanity at the door, you don’t shed your rights at the door. And this is a husband and wife who had been married for decades. They just didn’t find this the kind of case where they wanted to hold this husband guilty as a rapist. This is his wife. Should he have done it with the nursing home staff culpable? Should they have stopped it?
It’s really a fine balance there because you have to allow these people to be humans while trying to protect them. Ultimately, the jury looked at the evidence, which actually was pretty scant. There was some evidence of ejaculation in the bed, but no evidence of actual intercourse, and that could be another huge reason why the jury found him not guilty.
But I guess to sum up this entire episode, you have rights as a resident. You are a human. You’re not just a patient and that’s why we call them residents. But at the same time, it is a fine balance between ensuring that they have those rights, that they get to be human, that they don’t lose their humanity, and making sure they’re not a threat to themselves and that they’re not a threat to other individuals.
Schenk: And just to clarify, the quote I was looking for is from the case of Tinker v. Des Moines where students were wearing black armbands in protest of the Vietnam War. It was found to be protected speech under the First Amendment. And the actual quote is, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Smith: But what can be argued is that we are…
Schenk: We have come to the gates designating the end of the episode. It’s my job to always make the spontaneous termination of the episode.
Smith: I’m so sorry.
Schenk: I want the viewer, the listener and also my co-host Will to understand that – always, I’m the one who does that.
Smith: I got you.
Schenk: So with that said, thank you Will. And just so you know, there are multiple ways to consume this episode. You can either download the audio portion on iTunes or Stitcher or you can watch us on our website, which is NursingHomeAbusePodcast.com or on our YouTube channel and I guess that’s about it, so we will see you next time.
Smith: See you next time.
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