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August 24, 2021 13 minutes to read ∙ 3000 words

COVID’s Cruel Impacts: Ombuds Must Get Creative to Resolve Conflicts in Long-Term Care Facilities

By Frederick Hertz

Reprinted with permission from Dispute Resolution Magazine, Volume 27, Number 2, May 2021, at 19–24. © 2021 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

As has been so painfully and poignantly documented, long-term care facilities have been “ground zero” for COVID illnesses and deaths in the past year, accounting for nearly 40 percent of pandemic-related deaths nationwide – and in some states, more than 50 percent. This bleak reality appears to be not just the consequence of the age and underlying health conditions of the residents of these facilities, which include assisted-living residences as well as nursing homes, or the general rate of infection in each geographic region. In many locations, buildings’ physical conditions are inadequate, resulting in low-quality air circulation, the spread of infections, and compromised health conditions. Insufficient staffing levels and the vulnerability of the staff members, many of whom may be exposed to COVID in their homes and low-income communities and in the many places they work, add to the risk of contagion and, as a result, high morbidity rates. The highest rates of infection have occurred in places with substandard staffing levels – interestingly, perhaps, most often in for-profit facilities.

According to numerous long-term care ombuds program directors across the country, the high rates of infection and death are a direct consequence of how these facilities are managed. And not surprisingly, these long-term institutions are the places where COVID has posed the most challenging conflicts for residents, their families, and the staffs and directors. Health-related standards are often inconsistent from facility to facility and state to state, complicating staff members’ responses to family members who are eager to see their loved ones. With many staff members fearing infection or loss of employment and government agencies struggling to implement effective rules for limiting COVID spread in these vulnerable congregate facilities, the number and intensity of conflicts is no surprise. 

COVID has precipitated both a long-term crisis and many short-term challenges.  The next few years will probably see a large number of major tort cases filed on behalf of residents who died in nursing homes, allegedly due to negligence on the part of the facility staff, resembling the painful stories described by health and law journalist Harris Meyer in a recent ABA Journal article called “A Question of Neglect.” But according to those who are dealing most immediately with the fallout of the quarantine, a plethora of less dramatic – but equally challenging – conflicts have arisen throughout the pandemic months, most frequently in several areas:  

  • Isolation and visitation: In the pre-COVID era, many residents of assisted-living facilities enjoyed regular excursions for shopping, visiting museums and other cultural institutions, socializing with family, and attending religious gatherings. Family and friends and people offering entertainment and activities could and did visit regularly. All this became off-limits in the past year. Not surprisingly, the chief complaints by residents of nursing homes and assisted-living facilities and their families during COVID have stemmed from the isolation caused by rules imposed to reduce resident exposure to COVID. Demands for in-person visits come not just from the residents, spouses, and their children and extended family members; quarantine rules also generally prohibit appearances by volunteers, program presenters, religious counselors, and paid non-staff companions and caregivers. Compassionate care visits are mostly limited to end-of-life or other extreme psychological conditions, and plain old loneliness doesn’t justify a family visit. Even for those in assisted-living facilities, COVID rules generally prohibit outside activities except for essential services – most often limited to medical appointments. According to these advocates, the restrictions have caused serious psychological damage and, in some cases, dangerous medical problems. Interpreting and enforcing COVID-related rules have precipitated heated conflicts among residents, their family members and other advocates, and facility staff.
  • Transfer and discharge: Many states and facilities require the isolation of infected residents or limit the number of residents who can remain in the facilities if they are seriously ill, so the high rates of infection and illness have prompted a spike in mandatory transfers of residents, either to segregated facilities, hospitals for care, or back home (when family members fear that their family member will get infected). Relocating to another room, another facility, or a private residence is often traumatic for residents, especially those with cognitive decline or other disabilities – and sometimes puts financial stress on residents’ extended families. Even when well intentioned, the segregation of COVID-infected residents can be devastating for those involved. Who decides when someone must be moved, how such decisions are made, and what rules might be violated in the process frequently result in tough-to-resolve disputes.

Cheryl Hennen, long term care ombuds director for the state of Minnesota, sums it up succinctly. “The largest concerns are facility management of infection control, access to visits, and restrictions on residents’ ability to come and go as they please,” she says, “and not meeting their basic care needs as a result of low staffing, improper medication administration, and workers leaving the field out of COVID-related fears.”  

How long-term care ombuds programs came about

Faced with a rapid increase in the number of elderly residents in long-term care facilities more than 50 years ago, advocates for the residents and government regulators searched for a comprehensive approach to improving the lives of these residents. In a series of congressional and state-initiated enactments over a decades-long initiative, a nationwide system of ombudsmen was created, funded by federal and state grants and imposing compliance obligations on the regulated institutions. Sometimes relying on government employees and sometimes using a system of agency contracts issued to local nonprofit organizations, ombuds programs for long-term care facilities have been established throughout the United States. Ombuds paid staff (and, in many instances, a large group of trained volunteers as well) are tasked as advocates for the residents. They don’t serve as neutral mediators and lack any direct regulatory enforcement powers, but they are available to receive complaints (mostly from residents but sometimes from family members or other concerned professionals) and are authorized to meet with the facility’s staff and directors in an informal conflict-resolution process. 

The dynamics in the approach taken by these advocates is distinct from what happens in the more conventional three-pronged framework of conflict resolution, with a legal advocate, responding management, and neutral mediator. The ombuds staff are paid by the government and many others volunteer their time, so the claimant incurs no fees and there is no individual client-advocate relationship. But perhaps most important, whether they are employed by the government or work for a private agency contracting with the government (which varies from state to state), these individuals are not neutral in their advocacy role. They see all the residents as their “clients,” even if the government is paying their fees, and they have well-established principles that the financial concerns of the facilities are supposed to be irrelevant to their advocacy. Interestingly, there is no formal adjudication process and no “neutral” decision-maker to break an impasse, as occurs with arbitration or litigation. Still, in most jurisdictions, ombuds staff can make referrals to lawyers, can contact regulators when disputes are not resolved, and can engage in the development of improved regulations going forward. But generally, they rely on “soft” negotiation strategies which they use to nurture their working relationships with local facility staff. It’s a matter of persuasion, not policing or legal adjudication.

Ombuds program directors have developed a nuanced set of strategies for maximizing their effectiveness over time – strategies they have called on repeatedly during the pandemic. They recognize the need to keep open the doors of communication with facility directors, both literally, allowing the facility visits authorized by statute, and figuratively, aiming to sustain positive working relationships with staff. Especially during COVID, they have had to stay alert to the genuine institutional concerns for limiting infection and illness. Thus, while they work to advocate for the needs of the residents, they also see themselves as educators for the facility directors. Nicole Howell, the regional ombuds director in the eastern counties of San Francisco’s Bay Area, summarizes her overall goal. “We want the directors to say to us ‘That’s right,’ not ‘You’re right.’ ” Michael Phillips, the statewide ombuds director in Florida, echoes that idea. “We don’t go into the facility to point a finger at guilt,” he says. “Rather, we try to persuade them that it’s much cheaper to work with us because they can avoid being fined. We want to develop strong working relations with the facilities.” 

 Fine-tuning their advocacy strategy is not simple, so having staff and volunteers targeting a limited geographic area makes a big difference. Effectiveness requires maintaining a focus on figuring out who best to negotiate with in each particular institution, sorting through the layers of staff (line staff, directors of nursing, corporate officers, and others), and setting up a methodology that recognizes the uncertain and changing rules, inadequate staff training, and palpable emotional anxieties in these challenging times. Ombuds staff have to figure out when to be creative, when to back off, and when to press for regulatory or enforcement action. All the while, the goal is to inspire appreciation for the ombuds advocates and volunteers by facility staff and to present themselves as problem-solvers working collaboratively to find solutions. 

“Knowledge is power,” says Salli Pung, Michigan’s state long-term care ombuds. “We have the facts, and we know the regulations – and so we can craft solution-specific remedies to particular challenges in ways that the inadequately trained facility staff may not be able to do.” Ombuds know whom to turn to in times of conflict, navigating through a series of conversations and meetings with various levels of management to work through a particular conflict. Ombuds are trained to be “armed with the facts and know the regulatory requirements, especially resident rights,” Pung says, so they can make demands with confidence that the resident’s positions are within the regulatory compliance framework. 

Pung’s ombuds program members are aware of the requirements and won’t ask someone to violate the regulations. Instead, they look for ways to meet residents’ needs within the framework of those regulations. They often start by talking with the social worker, and if necessary, will elevate the dispute to a care conference with family members attending. If that doesn’t resolve the matter, they can proceed to talk with the administrator – and then, if more leverage is needed, they can contact mid-level off-site corporate management (especially if they are told “this is corporate policy”) and can even elevate the complaint to the higher levels of company decision-makers when needed. Knowing how to “appeal” a negative response is a key skill.

COVID challenges require creative solutions

Ever since COVID made in-person meetings and hearings impossible, judges, lawyers, and mediators have been struggling to restructure how to convene parties and conflict-resolution professionals. Addressing those challenges is relatively easy compared to what long-term care ombuds staff have been facing. For the first few months of the pandemic – and for longer periods in some jurisdictions – in-person visits by staff and volunteers, crucial for the ombuds to know what is happening at any institution and to make sure residents know help is available, were suspended. Devices such as laptop computers, cell phones, and tablets can help with remote communication, but for many residents of long-term care facilities, getting and using these devices can be a big challenge. The constraints of hearing and vision impairments, cognitive decline, uneven Wi-Fi access, and the high price of electronic devices add to the difficulties.

Michael Phillips, who was recently appointed Florida’s ombuds director, describes the problem in vivid terms: “You can’t use your senses of sight and smell when you are talking to a resident over the phone,” he notes. Many of his agency’s own volunteers are older and medically vulnerable themselves, he says, which has led to a severe decline in the number of people available to help. But Phillips is not easily discouraged. He secured funding and purchased easy-to-use tablets that his ombuds workers now take to facilities, where the staff delivers them directly to residents, allowing the ombuds staff to video-chat from the parking lot with residents within minutes of arrival. 

Molly Davies manages the elder abuse prevention and ombuds services for Los Angeles County, where 1,800 facilities house more than 75,000 residents. It’s a daunting job, and she has focused on training her staff to cultivate a nuanced approach to problem-solving: think about how each institution trains their staff; describe the needs of the resident with a comprehensive staff review; and try to uncover solutions by reflecting on how the COVID-related conflicts resemble prior situations. “Keep the focus on the resident’s rights,” she tells her staff, “but at the same time, focus on education and look to prior parallel situations to craft a resident-focused solution.”

The mechanism of the feedback between particular conflicts and rule-making processes can have a dramatic effect. At various facilities in Michigan, for example, ombuds staff took note of a particular rule for compassionate care visits to nursing homes, one in which a resident’s imminent death was mentioned as an example of when such a visit should be allowed. Unfortunately, when COVID hit, many facilities reacted by declaring that this was the only circumstance under which such visits could occur, forgetting about the other, less apocalyptic situations in which a family member’s visit might be useful, especially for residents suffering from advanced dementia. The ombuds directly contacted the regulatory agency’s staff to point out the problem. Within a few months the rules were amended, and most facilities opened up to a greater range of family visits – with appropriate precautions.   

One of the stickiest consequences of COVID has been the inability to conduct unannounced visits, at least in the early months of the pandemic. Each state has its own rules regarding access to facilities and residents, and each ombuds agency has to figure out how to make telephone calls (or video chats) that comply with privacy rules. Howell, the regional ombuds director in the eastern counties of San Francisco’s Bay Area, notes that in-person contact is always better since “being there changes the conversation.”  COVID, she says, is exacerbating the already existing challenges of under-staffing, infection control, and staff training as well as the problems of financial abuse and the physical and mental effects of aging – all of which are intensified by the understandable pressures from family members who have not been able to see those they love.

Nicole Howell of the Bay Area summarizes the challenges presented by the COVID pandemic in stark terms: “It’s about the culture of the place,” she says. “Facilities that have a history of cooperation and staff training and a focus on the needs of the residents even when coping with staff and regulatory limits – they are the places that have managed this crisis most effectively. And being curious is essential – to learn what is really going on in the facility.” Molly Davies of Los Angeles County talks about collaboration, now and for the future. “We’ve learned the importance of connection with our residents, with facility staff and volunteers and partners,” she says, “and we’re working collaboratively with community partners as advocates, deepening relationship with new partners such as local public health offices.”

Lessons from the COVID experience

What have advocates for long-term-care residents learned from their pandemic experiences? In many ways, the lessons are similar to those so many other conflict-resolution professionals have observed.

Dealing with uncertainty and crisis: Dramatic social and public health events precipitate new types of conflicts, requiring creativity and flexibility, both in designing and adapting the conflict-resolution process and developing substantive solutions.

Working with emotionally fraught participants: Very reasonable fears about contagion, illness, and death – especially for those who are highly vulnerable (and their families), create an atmosphere that challenges the effectiveness of ordinary approaches to conflict resolution, forcing a new and more sensitive approach.

Approaching problems with a sense of curiosity and flexibility: Claiming to have all the answers rarely works in resolving conflicts, but this is especially the case when dispute resolvers don’t yet know the source of the problem or what solutions might be best.

Learning to use technology to facilitate communication: Advocates of online mediation have been singing the praises of video mediations and remote or virtual mediation sessions for years, but only now, forced to work in the midst of a highly infectious pandemic, have we – and our clients –shifted into high gear to work remotely. Depending on the particular clients, however, this reliance can create serious challenges.

Advancing the residents’ concerns of residents through systematic change: Other than the work done by impact litigation centers (think the NAACP and the Sierra Club), most advocates and mediators focus only on the immediate crisis at hand. COVID-related conflicts have emerged so quickly and in so many locations that only systemwide changes can bring broad-based results. Most ombuds staff, especially the regional directors, can keep track of the complaints, take note of what is happening throughout their region, and feed this information to regulators and legislators in a strategic campaign to push for systematic change. In most states, the ombuds directors have a powerful “seat at the table” with the regulators. 

Understanding aging as a public health concern: Most administrators of long-term care facilities have not considered themselves public health “officers,” except when dealing with concerns about inadequacy of care, but COVID has forced managers of long-term-care facilities to engage closely with public health officers to address issues of contagion. Surely this kind of communication and collaboration will help everyone understand the challenges of aging – and how society can help our increasing population of elders.

These are lessons that everyone in the conflict-resolution field needs to learn and remember – long after the COVID pandemic finally fades.

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    Frederick Hertz


    Frederick Hertz is an attorney and mediator with an office in Oakland, California. A member of the Editorial Board of Dispute Resolution Magazine, he works as a mediator and arbitrator, with emphasis on the mediation of co-ownership and other disputes between married and unmarried couples, business partners, tenants-in-common, co-owners, family members, and domestic partners. He can be reached at [email protected].

    Originally published in Dispute Resolution Magazine, Volume 27, Number 2, May 2021, at 19–24; reprinted in GPSolo eReport, Volume 11, Number 1, August 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association Section of Dispute Resolution or Small Firm and General Practice Division.