Georgia nursing homes are required to follow both Federal and State regulations. Of the hundreds and hundreds of pages of regulations, many rules affect the day-to-day welfare of nursing home residents, from grievance filings to health assessment obligations. On this week’s episode, nursing home abuse attorneys Rob Schenk and Will Smith discuss five things to know about Georgia nursing home regulations.
Schenk: Welcome back. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we certainly hope your May is progressing fantastically. Fantastically? You were an English major – is that right? Fantastically?
Smith: Progressing… Yeah, because it’s an adverb.
Schenk: Yeah, but does that word exist?
Smith: I don’t know – fantastically. Fantastically delicious.
Schenk: No, they are magically delicious.
Smith: Oh, magically delicious. Oh, okay.
Schenk: So just as a reminder, May is Older Americans Month. This is the month where we raise awareness for and show appreciation for Americans who are 65 years and older.
Smith: And this is also May 25th.
Smith: Which means it’s the anniversary of Star Wars. Star Wars debuted in May 25th of 1972, I think. 1978? 1980? No, when was it?
Schenk: It was May 1977, but I’m not sure if it was the 25th.
Schenk: So let’s – Gene…
Smith: We’ll let Gene look that up.
Schenk: Gene will need to look that up. So we wanted to have this episode dedicated to…
Smith: Oh, look at that. Well that’s one – that’s “Return of the Jedi…”
Schenk: “Return of the Jedi.”
Smith: …is May 25th, 1973.
Schenk: Yeah. So you said “A New Hope.”
Schenk: Or you were trying to say “A New Hope.”
Smith: Yeah, so when did it…
Schenk: Back up here.
Smith: It just says 1977.
Schenk: Okay. It was 1977 in May. But you’re right – I just don’t know if it was the 25th. So this episode is starting off tremendously. And we are going to be talking about…
Smith: Ah, I’m sorry. May 25th, 1977.
Schenk: How did you know that? Like where did you hear in the ether on the way here this morning that gave you this info?
Smith: I’ve always known that.
Schenk: You’ve always known May 25th, 1977?
Smith: Yeah, I know a lot about Star Wars. I know the most about Star Wars than anybody.
Schenk: Of anybody sitting at this table, you know the most about Star Wars.
Smith: And DC and Marvel Universe.
Schenk: What does DC stand for?
Smith: It’s interesting that you should ask that. A lot of people get that incorrect and they’re not familiar with what it was originally based on.
Schenk: And what is that?
Smith: Right. Well I can tell you that the C is Comics, if that helps you out.
Schenk: All right.
Smith: And what do you think the D is?
Schenk: Oh, that was pretty good because I thought you were stalling for time to look it up, but that was just a regular stall. It is “Detective Comics.”
Smith: Detective Comics, that’s correct.
Smith: You got it.
Schenk: And one way or another, we’re getting to the topic of the show.
Smith: Right, right, right.
Schenk: So, which would be five things to know about Georgia nursing home regulations. And very quickly, because I think we’ve covered this a few times in previous episodes, but if a nursing home in Georgia accepts Medicare or Medicaid funding, then there are a set of regulations that they have to follow. So in other words, almost 99 percent of nursing homes in Georgia have to follow the regulations set forth by CMS. That’s the federal level. So the federal government sets certain standards on these nursing homes.
However, Georgia also has its own set of regulations that sometimes are more stringent on nursing homes. If you have a nursing home in Georgia, you have to follow the federal in Georgia, the regulations.
And so today, we’re going to be talking about five things you didn’t know about regulations in Georgia that are both from the federal and from the Georgia state regulations. So it’s the Department of Community Health in Georgia that’s responsible for healthcare planning, licensing, certification and oversight of healthcare facilities in Georgia, and you can find everything we’re talking about, if you’re a law nerd, at Chapter 111-8-56.
Smith: The Georgia regulations.
Schenk: Georgia regulations. The federal regulations exist where – without looking, Will, off the top of your head?
Smith: I don’t know what you mean by where.
Schenk: Where in the code? Where in the federal regulations?
Smith: Oh, CFR-483.10.
Schenk: 42-CFR-43, et. al. really, et. al.
Smith: I thought you meant like where does it reside?
Schenk: Library of Congress.
Smith: Like the Library of Congress?
Schenk: It’s at the front of the paw at the Sphinx is where you go to get that.
Smith: Yeah, 42-CFR-483.10.
Schenk: Yes – 43, really, for more than 10, there’s 20 and so forth.
Schenk: So the first one I want to draw your attention to in terms of what to know about Georgia nursing home regulations – number one is that there is basically a bill of rights codified in both the federal regulations and the Georgia regulations. Just because you’re a resident of a nursing home doesn’t mean that you…
Smith: That you give up your rights.
Schenk: That you give up your rights.
Smith: This came out of the 1987 Social Security Act from the OBRA – you may hear it called OBRA or the Omnibus Reconciliation Act, which contained a multitude of laws that addressed a multitude of diverse issues, one of which was new laws related to the Social Security Act, which directly affected nursing homes. One of those was the establishment in 1987 of nursing home rights, residents’ rights.
Schenk: Right. So under the federal regulations, the resident has a right to a dignified existence, self-determination and communication with and access to persons or services inside and outside the facility, including those specified in this section, which includes that the resident has a right to a representative, so in other words, they can nominate a son, a daughter, a granddaughter or a grandson, that the – what am I looking for?
Smith: To participate in care?
Schenk: To participate in the planning and implementing of the care. They have a right to be a part of the planning process.
Smith: They have a right to dignity and privacy.
Schenk: Right, the choice of attending physician.
Smith: They have a right to have visitors.
Schenk: The right to self-determination, meaning the resident has the right to and the facility must promote and facilitate resident self-determination through the resident choice, including the right to choose activities, schedules including sleeping and waking times, healthcare and providers of healthcare services consistent with his or her interests, assessments and plan of care applicable provisions. The resident has the right to make choices about how aspects of his or her life in the facility are significant to the resident.
Smith: And these are not additional rights that only nursing home residents have. The whole purpose of establishing a resident’s rights is all of these are meant typically for all of us in our own U.S. Constitution and in our state constitutions. You have the right to associate with whomever you want to. You have the right to be secure in your persons and property. You have a right to, under the Supreme Court case of Griswold, you have a right to privacy, which has led to numerous other litigation in the Supreme Court, but you have the right to privacy. You have the right to your own body. You have a right to make decisions for yourself.
The reason why this was so important at this time is that if you’ve ever noticed when you’re at a hospital, doctors and nurses have an air of authority about them, so that when you’re in a hospital for a short term and they say, “Well listen, you really shouldn’t be eating any sugar right now,” you listen to what they say and you do that and it’s really not that big of a deal. It’s probably good to take their advice.
The problem in the long-term care setting is that you are a human being with all the rights and privileges that are given to citizens, and you’re in that authoritative environment for the rest of your life. So the road to Hell is paved with good intentions, and while it may work for the nursing home and it may be for your benefit in their minds that they say, “Hey, you’re going to – from now on, we’re getting everybody up at 6:30 and you’re going to bed at this time,” well the reality is this is your life. You’re called a resident because you live there. If you don’t want to get up at 6:30, you don’t have to. If you don’t want to go to bed at 9, you don’t have to. If you don’t want to eat mashed potatoes, you don’t have to.
And so it was really the beginning of a reserve trend towards paying more attention to those who were in these long-term care settings and giving them more power to overcome that implied and, in many cases, real authority of the healthcare landscape.
Schenk: Right, the right to worship the way you want, religious activities, the right to vote, everything. One of the things I want to highlight with the residents’ rights here and before moving onto the next thing is that you have the right to access your personal and medical records. So the regulations specifically set out that the facility – and this is under the federal regs – the facility must provide the resident with access to personal and medical records pertaining to him or herself upon an oral or written request in the form and format requested by the individual. If it is readily producible and such in such form and format, including electronic format, or if not, in a readable hard copy, form or such other form or format as agreed to by the facility within 24 hours. The facility must allow the resident to obtain a copy of the records or any portions thereof upon request in two working days advance notice of the facility.
So in other words, if you let them know that you want to see the records, it’s two days tops to look at it. So that’s really important because sometimes, you want to see, if you want to go in, if you’re the representative of your loved one that’s in the nursing home, you can go in and say, “Hey, I want to see the record. Print it out for me or put it on the disc,” and they’ve got two days – generally they’ve got two days to comply with that.
The next thing is grievances and technically grievances are within the residents’ rights portion of the regulations, but I want to highlight this one in particular as the number two thing to know about Georgia nursing home regulations, and that is that the resident has the right to voice grievances to the facility or other agency, in the state of Georgia, it’s the Department of Community health, that hears grievances without fear of discrimination or reprisal from that nursing home. Such grievances include those with respect to care and treatment, which has been furnished, as well as that which has not been furnished, and which includes the behavior of the staff and of other residents.
The resident has the right to and the facility must make prompt efforts to resolve the grievances that the resident has. So not only do you have the right to make a grievance without fear of them spitting in your food or kicking you out, they have to take reasonable steps to solve the grievance.
Schenk: Going a little bit further though, the facility actually has to have a policy. That’s set forth in the regulations too. The facility must establish a grievance policy to ensure the prompt resolution of all grievances regarding the residents’ rights contained in this paragraph. Upon request, the provider must give a copy of the grievance policy to the resident.
So I think that’s really important. We had an episode previously – I believe that was Episode 147, so that was two weeks ago – we had an episode dedicated to where to go with nursing home abuse and neglect. We laid out that you can go to the long-term care ombudsman, Department of Community Health, the police department, but we highlighted generally you want to start with the nursing home itself, depending on the severity of the issue, because every nursing home must have a grievance policy in place.
Smith: And if everything works like it should, this is the quickest way to get anything fixed.
Schenk: That’s right. So another thing, the number three thing to know about nursing home regulations is that the facility may not employ persons with convictions for abuse or exploitation of elders. And furthermore, when a nursing home is receiving applications for employment, and actually when the nursing home owner is applying for a license, what has to happen, Will?
Smith: They do a background check of anybody, including the owners or even some investors that have direct access to the residents. So they’re expanding the list and they’re expanding how they vet that list as well.
Schenk: And that was a law that came into effect with regard to the fingerprinting and running the fingerprint through the databases. That actually was voted into law two years ago, came into effect last year and then was enforceable as of January of this year. So it’s been a long process. But in other words, a nursing home cannot employ abusers, which I feel like it goes without saying, but at some point, we have to legislate that.
All right, moving on. Number four of the five things about Georgia nursing home regulations you should know is that every nursing home must undertake a comprehensive assessment of the resident at admission, within 14 days of admission – I’m sorry, let me back up. At admission, there must be a comprehensive assessment, and then a comprehensive assessment must be made within 14 days of any significant change, and then if no significant change, then once every 12 months. And a comprehensive assessment is basically a head-to-toe evaluation of the health of that resident from cognitive capacity to what help they need with the activities of daily living to what medications they’re on, everything in between there. So a nurse has to go through and do that. They sign off on it and that’s going to dictate the care plan. So that’s actually in the federal regulations – they’re required to do that. And again, they’re required to do that at admission. They’re required to do a comprehensive assessment after any type of significant change in capacity.
Smith: Within 14 days.
Schenk: Yeah, of that change, then every 12 – basically annually so they’re not slipping through the cracks.
Smith: Well quarterly, yeah.
Schenk: Well quarterly is not a comprehensive assessment. That’s just a regular assessment. So is that all we have to say about assessments? I really feel like we’re going hard on this episode, like I feel like I’m shouting at people? I think it’s because of the coffee we just drank.
Smith: Well you know, one of the things you have to remember is that the vast majority of nursing home residents in long-term care settings receive Medicaid, and Medicaid is what pays for most of their stay. Medicare only pays for like 100 days and then it would only pay for the treatment they would normally get. It doesn’t pay for room and board. And the reason that I bring that up is that’s the tradeoff they get with the federal government, and that’s why these assessments are so important is that if you want to get paid what you’re supposed to get paid for taking care of somebody who needs a lot of assistance, then you need to do a proper comprehensive assessment. That’s why it’s extremely important that they do that correctly and they do it every time there’s a significant change, because a person could go from being ambulatory and taking care of themselves and having low acuity, meaning that they require little assistance, to having a stroke and being completely bed-bound and needing at least two people to transfer. And that’s a huge change in their acuities, and it should be a change in how they are assessed, because ultimately it would be a change in how the nursing home has compensated for them.
Schenk: And I had a great conversation about that concept with attorney Bill Rivera on a previous episode, and we talked about unlawful evictions from nursing homes that has become a large problem. What happens is the nursing home will accept these rehab residents for the short-term rehab.
Smith: To get that 100 days of Medicare.
Schenk: To get that Medicare, because Medicare reimburses at a higher rate than Medicaid.
Schenk: And then after the 100 days, they dump them for contrived reasons. And so the AARP Litigation Foundation are fighting nursing homes across the country.
Smith: Oh yeah. Iris Gonzalez was leading that charge a couple years ago.
Smith: But what was I thinking? It was a big story up in New York too, because they were, instead of helping this person apply for Medicaid and going through that process, which is more costly for the nursing home because there’s a chance they’re not going to get Medicaid and you can’t get blood from a stone, so if you try to get money from somebody who doesn’t have it, you’re out of luck, so what they would do is 100 days, get that quick Medicare cash, and then they would discharge some of these people to those – what are those inns? Those weekly motels? They would just put this person, who’s a nursing home resident, in a week-long motel stay and say, “See you. Good luck.”
Schenk: Sayonara. So if you’re interested in that conversation, go check that out. And then moving on here, number five thing to know about the Georgia nursing home regulations is that you have the right to competent care. And within that, it means that a doctor must visit a resident once every 30 days for the first 90 days after admission, and then after that, every 60 days. So a primary care physician or a physician must see that resident every 30 days for the first 90 and then every two months after that, and that’s under the federal and the state regulations.
With regard to registered nurse, a full-time director of nursing is required and who cannot also be the administrator. And they must devote time to administration of nursing services, and that’s a Georgia regulation, so you have to have a full-time director of nursing.
The Georgia nursing homes must have a registered nurse, licensed undergraduate or LPN on duty and in charge of all nursing activities every shift. That’s a Georgia regulation as well. A minimum of two hours of direct nursing care per patient in a 24-hour period must be provided to every single resident in a Georgia nursing home.
Smith: And see, here’s something about the regulations that I don’t like is I like the personal care home regulation on staffing because it’s very specific and I think it’s good. It’s a whole different situation. Personal care homes, you have to be ambulatory. We’ve already done a thing about that. They’re a whole different group of individuals that are being cared for, but they give a specific ratio of workers to people. So in a personal care home, you must have at least at night one to 15, in the day, one to 25.
The regulations here in Georgia are a little slippery for skilled nursing facilities. What I mean by that is they say, “You need at least two hours of direct nursing care,” and I would prefer if it said, “You need one CNA or undergrad LPN, but at least one nursing assistant or one nursing worker per every 10 residents” or something like that. And we’d have to adjust it with acuities…
Schenk: Yeah, I was going to say…
Smith: Because what we have right now is it’s hard to enforce because direct care – even direct care, even though it has definitions, it’s hard to keep track of it.
Schenk: And finally within the competent care portion of this is there must be a physician designated as chief of staff, and the nursing home must have a professional staff consisting of at least one physician, one dentist and one RN that kind of navigate the care.
Schenk: So those are five things to know about Georgia nursing home regulations – first, that you have a bill of rights of residents’ rights that have everything to do with dignity, privacy, the right to life. Second is that there are regulations governing the grievance process. You have the right to make a formal grievance against the nursing home. The third is you should be free from abusers. The nursing home, there are regulations that prevent them from hiring people that have a history of abuse or exploitation. The fourth is that a comprehensive assessment if mandatory under these regulations and they are required to take place at admission, and then every year or 14 days after a significant change.
Smith: That’s right.
Schenk: And then competent care – you’re guaranteed competent care under these regulations, which means that there must be a certain amount of physician hours, nursing hours and professional staff available to treat every resident. So those are the five things to know, in our opinion, about nursing homes – not necessarily the only thing to know because there are thousands of things to know.
Smith: Not an exhaustive list.
Schenk: It’s not an exhaustive list, just a list off the top of our heads this morning.
Schenk: But let’s see – we mentioned at the top of the show that it’s Older Americans Month, so go hug someone that’s over 65 years old, and tell them that Will Smith told you to.
Smith: Yeah. It’s over 65. It’s not just Americans who are older than you.
Schenk: Yeah. That’s a good way of looking at that.
Schenk: But at any rate, that’s actually going to conclude this episode of the Nursing Home Abuse Podcast. You can consume each and every episode either online or wherever you acquire your podcast from.
Smith: You can only get these podcasts from iTunes.
Schenk: iTunes is the only location.
Smith: Everything else has been destroyed at this point.
Schenk: Or if you go down to the majestic diner at Ponce de Leon Avenue and click A-17 on the jukebox, then the Nursing Home Abuse Podcast begins to play. But we thank you for your attention making it through this whole episode, and with that, we will see you next time.
Smith: See you next time.