Power Players: Advocate For Elders

Speaking Out: Hap Smith


If the phrase “aging in place” doesn’t mean anything to you, just wait. As the population grows older and Baby Boomers begin handling their parents’ affairs, the ability to live in one’s own home and community safely and independently becomes increasingly important. 

Hap Smith, a Marietta attorney at the firm Smith, Tumlin, McCurley & Patrick, P.C., and his family believed they had found the perfect place for their mother to live out her days. Despite a diagnosis of Alzheimer’s disease, Lucia Rogers Smith lived happily in the Mem-ory Care Unit at DayBreak Village, an assisted living facility in Kennesaw.

As the disease progressed, she was no longer able to walk and needed to use a wheelchair. It was early January of this year, by order of Georgia’s Department of Community Health (DCH), when DayBreak was forced to discharge Mrs. Smith from their care – because she was non-ambulatory. Several other families, all private-pay patients, received similar letters. Their responses were identical – dismay, shock and refusal.

“Where your loved ones live is incredibly impor-tant,” Smith says. “To say that they must leave just because they can’t walk out the door unassisted doesn’t make sense.”

The families banded together to apply for waiv-ers allowing the women to remain at DayBreak rather than moving to a skilled nursing home where they believed the women would not receive the same level of care. Smith took on the case for the families, pro bono, drafting a letter of refusal to comply based on his belief that Georgia law inadvertently disregarded federal protections granted in the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA).

The refusal letter was mailed on Jan. 13; less than 10 days later, Mrs. Smith died, but her son remained on the case. 

“This issue is everywhere,” says Smith. “It’s affecting so many people. Alzheimer’s and other diseases rob you of the ability to walk toward the end of your life. Unless the law changes, you’re virtually condemned to have to move somewhere else and not allowed to age in place in the environment you or your loved ones selected.”

In 2011, the Georgia legislature passed Senate Bill 178 establishing a new licensing category for long-term healthcare providers, one allowing more patients to age in place. The bill, which had the support of AARP and the Georgia Health Care Association, was signed into law by Gov. Nathan Deal.

“They took a good step a year ago in setting up the new law, but there’s language in there that didn’t really solve the problem that my clients are facing,” says Smith.

“The law says that if you have a non-ambulatory person in your facility, you have to hire one staff member to sit with that one person all day/night long. A business can’t afford to [increase staffing] unless they pass the cost on to the consumer, and it becomes ridiculously expensive. It would be cost prohibitive for any family.”

The state’s argument hinges on the question of safety, especially with regard to a fire emergency. The families contend that their mothers are safer where they are for a variety of reasons, not the least of which is the lower ratio of caregiver to patient than found in nursing homes.

 “If [DayBreak] says, ‘Your mother has greater needs than we can handle,’ we understand that and all agree that we’ll move to a skilled care nursing home,” Smith says.

 As it stands now, the appeal will be heard by the DCH. The families are hoping for waivers that will allow their mothers to remain at DayBreak. But ultimately, Smith says the state needs an aging-in-place statute. “My clients are on borrowed time,” he says. “But there will be others coming behind them.”

The DayBreak case has given Smith a renewed purpose. “I’ve been practicing law for 36 years, and as I’m winding down toward retirement, this is something that has sparked my interest so much that I could well see [elder advocacy] as an area I would move toward in my final chapter of practicing law.”

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