The National Consumer Voice for Quality Long-Term Care (“Consumer Voice”) is the nation’s leading advocacy group representing consumers in issues related to nursing homes, helping to ensure that residents are empowered to advocate for themselves. From October 22nd through October 24th, Consumer Voice held its annual conference in Alexandria, Virginia. In today’s episode, attorneys Rob Schenk and Will Smith discuss their attendance at the conference what was learned.
Schenk: Hello out there and welcome back. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we are coming to you live this week from the annual Consumer Voice conference being held in Alexandria, Virginia. We are actually coming to you from one of our hotel rooms. We got so much information over the course of this day or two that we wanted to go ahead and get everything recorded so that we didn’t forget. But it’s been great. It’s been several sessions. Will actually spoke at a session.
Smith: Yeah, we just got finished with a presentation. This is my second year in a row attending the conference. It’s my first year giving a presentation. I think it went well. We met a lot of interesting people and it’s always fun to come to this, because you know, having been in this arena of elder advocacy, whether as a CNA or an attorney for 16 or 17 years now, I have a lot in common with these people and I think they’re the salt of the earth. So it’s always a good time to meet them, hear what they have to say, find out what’s going on in their state and exchange ideas.
Schenk: Connect with people who have actually been on the podcast. We’ve seen Richard Mollot.
Smith: Richard Mollot, Melanie McNeill of course who is the head of the Georgia Long Term Care program.
Schenk: We went a long way to see Melanie from Georgia.
Smith: Robin Grant.
Schenk: We saw Iris Gonzalez, a whole slew of guests that we’ve poached from the Consumer Voice conference. Very happy to see them, hang out, eat lunch and learn and educate ourselves. We’re attorneys and we are in one realm of this industry, but it’s always good to see how another component of the industry works, seeing the CMS regulations, seeing the law change from the eyes of advocates, ombudsmen, the elder advocates. It’s very fun and it’s very educational.
Smith: And it’s interesting to find out things about your own state that you didn’t know. I was actually on my way to morning session and a woman stopped me and said, “Hey, you’re from Georgia,” and she started telling me that Georgia is actually one of the best in the nation in incorporating music into treatment for Alzheimer’s and dementia. And I had no idea. I told her I didn’t realize it. I am so accustomed to dealing with the negative of long-term care in Georgia that I’m not familiar with the positive things that we’ve done, so apparently we are good at incorporating music.
Schenk: That’s exactly right.
Schenk: That’s just one of many, many golden nuggets that Will and I learned over the course of the conference. I think what would be beneficial for the listener out there is to maybe, Will, you can go through a couple of sessions, just to give some quick golden nuggets we learned at the conference.
The conference actually started off with a panel discussion on a topic that we actually don’t address very much on the Nursing Home, but the regulations and the future of regulations of assisted living facilities. So here’s something that I actually learned that was interesting in that there really, from a federal level, is no standard definition of what an assisted living facility is, for the most part. And that’s one of the struggles that one of the panelists who works for the Government Accountability Office said is that we had to start from zero in terms of how do we even rate these things if we don’t even know what to call them.
One panelist from Ohio told us they’re called resident care facility, or if they’re smaller resident care facilities too. So I think that was one of the first things that struck me on this panel is about the future of regulating this industry is what the heck one is.
Smith: And it seemed to me that what they were describing, the common attribute of it was that it was some place that housed senior citizens who were not quite in need of the same medical care that you would in a nursing home. However, that also seemed to be one of the problems is that there were a couple of places that did require as much care as a nursing home, but they still called themselves…
Schenk: An assisted living facility.
Smith: An assisted living facility.
Schenk: What was pointed out by the panelists was that you’re crying that you don’t have enough, why are you taking residents that require more care than you’re able to provide?
Schenk: But what I thought was really interesting in this panel was one of the panelists, Ann Holclaw, who was with the Government Accountability Office…
Smith: The GAO.
Schenk: The GAO. And she was talking about this long-term study on veterans in assisted living facilities, and she says it’s rough for a lot of them. And what they found out is really they need to be regulated because there are no regulations right now, and there needs to be uniformity of actually how they’re regulated. That was a big takeaway was they need oversight from just a general standpoint.
Smith: So it’s basically the case that assisted living facilities, whatever these may actually be, are in some ways in the same place that nursing homes were before the 1987 Nursing Home Reform Act. So it’s just a free-for-all, wild, wild West, “One Flew Over the Cuckoo’s Nest,” who knows what’s going on?
Schenk: And so some of the stats that she provided, one is that 48 states, through Medicaid, 48 states are provided funding for assisted living facilities, which equates to $10 billion for 330,000 residents whose ranges of services vary from state to state.
Schenk: But again, like I said, the point she was trying to stress was that there’s no uniformity in the surveys of these places and there really is no regulation for the survey. So one of the stats that she provided was that 23 states do not at all investigate critical incidents, and then 26 states could – one of the stats that she provided was that 23 states did not investigate critical incidents. And again, some of the states did not have a proper definition or didn’t have a good understanding of what a critical incident was.
Smith: And see, you’ve got to think of it that a nursing home, when a critical incident, let’s say according to the regulations is a violation of one of the F-tags, could cause immediate jeopardy, it’s something that’s very serious, like a failure to correctly pass out the right medicine. The state surveyors know exactly what they’re going to do there. Here, they’re not even sure what the remedy is. They’re not sure what the definitions are. And they don’t even report it. So you can have somebody in an assisted living facility making a serious mistake like passing out the wrong medicine or having the medicine set up in a way where it’s likely to get improperly passed out, and they’re not even reporting that. They don’t know what they’re doing. So it’s, like I said, again, it’s kind of like the Wild West with these places.
Schenk: That’s right, so at the end of the day, the GAO provided this information to Congress at the end of the day with three recommendations: one is that the industry needs guidance. They need standards and they need to have states able to provide the accurate data for those standards to enforce it correctly.
Smith: Which, you know, Congress still hasn’t acted on yet. And I know that they just recently provided this – how long ago was this? A year?
Smith: A year or so?
Schenk: A year or so.
Smith: It doesn’t matter if it was five years ago. It’s still, like we were talking to somebody in our presentation – do you think Congress is going to start looking out for the elderly any time soon? I’m always skeptical. I don’t know why it is. It’s not a partisan issue. Democrats and Republicans both really fail the elderly somehow, and that’s just a shame.
Schenk: That’s right. And that seemed to be the theme of the day in some of these discussions.
Schenk: So that was one of the first presentations that we were…
Smith: That was right after the welcome ceremony. Everyone was in the main ballroom.
Schenk: That’s right. And so a little bit later on in the day, we had an update on CMS regulations and the federal regulations regarding nursing homes. And Robin Grant, again, did a very good job of explaining what was going on.
Smith: Always. Always great to hear from her.
Schenk: Exactly. So it looks like…
Smith: Yeah, go ahead. We’re going to talk about the other presentations we went to? You saw one that was presented by an attorney.
Schenk: Yeah. So it was basically 20 years – the title of the presentation was “20 Years: Lessons Learned by a Nursing Home Abuse Attorney.” It was done by Joe Muso, an attorney nearby…
Smith: Alexandria, Virginia.
Schenk: …who’s been doing nursing home abuse litigation for the past 20 years, and it was fantastic. And as a matter of fact, spoiler alert, that presentation was actually recorded, and he graciously allowed us…
Smith: Gracious allowed us.
Schenk: …to put that on the podcast. So I think in terms of the lineup of the podcast, I think we’re going to roll that out – I think that’ll be in January. I think that’s the second week of January. We’re going to have that published. But he talks all about what families of loved ones and residents – I’m sorry, families of residents that was in nursing homes, what they can do to help prevent abuse and neglect, but he did a fantastic job.
Smith: Excellent job.
Schenk: Great job. I learned so much. So I won’t go into anything of what I learned in that presentation, because I want you guys to learn it first in January. But Will, where did you go when I was in there?
Smith: So I went to listen to Lindsay Heckler, who is an attorney for the Center for Elder Law and Justice in New York. This is a state thing. New York is doing it. New York has set up this organization, this Center for Elder Law and Justice, to start tackling a lot of these issues that require litigation against nursing homes. So you’ve got your state ombudsman who can go in there and say, “Hey, you shouldn’t be doing this,” or “This is wrong,” or “I’m going to go call the state and they’re going to come down here and maybe assess a civil monetary penalty.”
And then you’ve got a state like New York that wants to increase the advocacy that we’re doing, because ombudsmen can only do so much. So they have this Center for Elder Law and Justice that actually does litigation advocacy against these nursing homes. They may seek an injunction against nursing homes in the state for doing a particular thing they think is harmful for residents. They may seek an order requiring the nursing homes in New York or a particular one to do something. So it’s very interesting how different states are tackling this issue, and as a matter of fact, probably going to have or try to have Lindsay on in the future and talk about that.
Schenk: Can we get Gene?
Smith: Gene? Let’s get a hold of Lindsay.
Schenk: Let’s get Lindsay.
Schenk: Yeah, Lindsay Heckler, Gene.
Smith: I didn’t get to make a joke to her about nobody heckle her during her presentation. Heckler.
Schenk: No, I get it. But that’s super, super obvious.
Smith: Well I still like a good…
Schenk: I’m glad that you didn’t…
Smith: I like a good dad joke. So anyways, it’s interesting. That’s one of the interesting things of coming to this conference because states are, for the most part, autonomous, and there’s 52 different entities. So there are 50 states. There’s the District of Columbia. And then there’s Puerto Rico. But it’s always interesting to have these different states and entities tackle issues of long-term care advocacy. So that was very interesting. And then I got to see a little bit of Joe’s and it was very passionate, very good.
Schenk: Yeah. And like I said, during lunchtime, there was a presentation by Robin Grant and David Wright from CMS regarding what’s going on in Congress regarding nursing home care.
Schenk: And a couple of things I want to take away from what Robin had said. Number one is that currently, there is a rule under the Department of Labor, a regulation under the Department of Labor, that individual staff members in nursing homes under the age of 18 cannot use power lifts on residents without supervision. And so there’s now a proposed rule that’s going to allow individuals under 18 that work at nursing homes to use these lifts without supervision, even though there was just a recent study that said by and large, people this age cannot use these things appropriately. And I thought that was amazing how the government can turn on a dime with regards to rolling back these safety regulations. And this is dealing with the safety of the worker.
Smith: Yeah. It’s an OSHA issue.
Schenk: Yeah, which I thought that’s just amazing. So he wanted to let everybody know that comments on the proposed rule change are going to be due on November 26th, and so if you’re listening to this…
Smith: Go to the Consumer Voice website and they’ll always have access to where you can go post comments. For example, last year, we all posted comments on the delay of the implementation of the new rules that were supposed to come out in 2016, 2018 and then 2019. They didn’t and so we all got to post comments there.
Schenk: And then one of the other roadblocks that Robin mentioned was that currently, and this is actually one of the new regulations based on what happened in Hollywood, Florida, in 2016 or 2017 – 2017.
Smith: It was 2017 because at the last Consumer conference that I went to, we actually got to hear and visit with…
Schenk: Debbie Wasserman.
Smith: Debbie Wasserman Schultz to talk about it.
Schenk: As a result of the tragedy that happened in Hollywood, Florida, the regulations have changed that they needed, every nursing home needed to have an emergency preparedness that included, includes a plan, policies and procedures in place in case of something catastrophic like that.
Smith: Like backup generators. When a hurricane hits, they need to have backup generators and they need to have a contingency plan for when the power goes out.
Schenk: Yeah, and then training under those circumstances. And the current rule as it stands, that needs to be reviewed every year. Now the proposed rule is to make that, as far as the planning goes and the training, every two years. And the comments for that are due on November 19th, and I’ll, if possible, Gene can hopefully put this up on the screen, but hopefully I’ll have a link to where we can go, because again, Consumer Voice has provided model language for citizens to weigh in on those with those comments, weigh in on those proposed regulations. So that’s two things that just struck me like we’re always fighting to keep from going backwards with these regulations.
Smith: And comments matter.
Schenk: Comments do matter.
Smith: Comments – they got over 10,000 comments in 2015 about the proposed new regulations for ’16 and beyond. I mean it matters to them and it tells Congress, it tells CMS like, “Hey, this is something that people care about it. We should do this,” because they’re using taxpayer money. So make your voice heard.
Schenk: That’s right. And so Will, you also presented. Quickly, what did you talk about?
Smith: I talked about one of, actually, one of the proposed rules from 2016, which has to do with banning pre-dispute mandatory arbitration clauses. And it’s something that we deal with all the time because at the end of the day, we’re trial attorneys. And we can’t take a case to trial where it sees the light of day, because the greatest disinfectant for bad deeds is sunlight. And so on the cases that we take, we expose them to the public, we expose them to that sunlight by taking them to a jury trial. We can’t do that if there’s a binding arbitration agreement, and a lot of these arbitration agreements are signed without any explanation, and many times the family doesn’t even know what they’re signing.
You’ve got to think, you’re putting your mom in a nursing home. It’s not something you want to do. It’s an extremely emotional situation and they’ve got you signing all these different documents you don’t know what’s what. Most of the time, I’d say the overwhelming majority of the time, people don’t even realize that they’ve signed away their right to a jury trial.
Schenk: That’s right. And so if anybody is interested in either attending or they’re interested in listening to it again or if you haven’t been able to make it to the National Consumer Voice Conference this year, we’re actually going to have that on next week as an episode of the podcast, Will’s presentation on arbitration clauses and nursing homes.
But I think that from just a general standpoint, this is, again, this is my first year going to the Consumer Voice Conference, and I’ve had a great time. I’ve met a lot of great people and most especially, I’ve learned a lot of new things about nursing home regulations, nursing home advocacy, resident advocacy, the whole board, the whole thing. It’s been fantastic and I highly recommend if you’re an advocate for residents of nursing homes, assisted living facilities, then please check out the Consumer Voice. It’s fantastic.
And if you are an attendee to the Consumer Voice Conference and you’re actually listening to this podcast for the first time because of it, let me give you a really quick education. So this podcast can actually be watched or listened to. We are available on YouTube – there’s a YouTube channel dedicated to the Nursing Home Abuse Podcast. You can also go to NursingHomeAbusePodcast.com and watch all the episodes. I think we’re at – this was episode 92. So we’ve got 92 episodes.
Our podcast is dedicated to educating families of residents of nursing homes, so we deal with all types of subjects that fall within that rubric. We talk about the signs of sepsis. We talk about the five things you need to ask the resident’s nurse, the whole thing. But those are the topics we talk about.
But if you can’t watch us, you can also listen to the podcast. And the podcast is available – a new episode comes out every Monday morning. It’s available on Spotify, Stitcher, iTunes, Google Music, PodPuppies, wherever you go to get your…
Smith: PodHub. Whatever they are.
Schenk: We’re there. We would really encourage you to listen, share with your friends, review it, like it, hopefully like it, but that’s a resource for you. Again, we have a lot of individuals that are on board or are members…
Smith: And contact us and tell us your story if you’ve got something interesting. As far as we’re concerned, long-term care ombudsmen are just the backbone.
Schenk: The frontline.
Smith: The frontline. I mean you guys are the soldiers in this war. I mean it could not be done without you guys. So if you’ve got stories you want to tell, if you’ve got ideas, let us know.
Schenk: That’s right. So yeah, we want this podcast to be a resource for families who have loved ones in nursing homes, and we do that in part by the knowledge that you guys have.
Schenk: So if you have a topic or have a story that you want featured on the podcast, let us know. We’d be happy to hear it. We’d be happy to put it on. But like we said, we’re in the hotel room. We’re about to jump back into the…
Smith: The conference.
Schenk: …the conference and learn a little bit more, but we just wanted to stop and share this with you and we thank you for listening. And with that, we will see you next time.
Smith: See you next time.