MINNEAPOLIS — Setting realistic expectations with residents and families, establishing policies and procedures, and training staff members can help senior living providers lessen the chance of being sued, legal experts said Wednesday during a session at Argentum’s 2022 Senior Living Executive Conference.
Panelists addressed top issues in senior living from a risk management / medical malpractice perspective. Using case studies, they highlighted solutions, best practice strategies and improvements that operators can make.
A frequent issue in claims against assisted living communities is foreseeability, according to Marsh Senior Vice President Tara Clayton, J.D. Having knowledge about a known issue but not taking steps to address it, instead performing workarounds, or not telling senior administrators about issues that need to be resolved can lead to lawsuits.
“We knew there was a problem and we didn’t respond,” Clayton said. “Frequently in these claims, it’s not that we didn’t have a policy that didn’t speak to what was going on, but it wasn’t being followed.”
Silverado Senior Vice President, Chief People Officer and General Counsel Melissa Solomon, J.D., recommended that operators review existing policies to determine whether they are current, whether they are understandable and accessible to staff members and whether training is adequate.
“You have to put your energy into auditing — going back and making sure folks know what would you do if XYZ,” she said.
Clayton said that she often sees the opposite, too — communities that are policy-heavy — something she cautioned against.
“Think about, does this truly require a policy, or is there another way to train and communicate information?” Clayton said. Having extensive policies, she added, can help a plaintiff’s attorney build a story. “If they can show all these policies you weren’t complying with, it falls into a narrative of neglect.”
Assisted living communities have used staffing agencies at unprecedented levels during the COVID-19 pandemic. Doing so, however, can expose operators to claims if training and consistency are missing, Clayton said.
Having a standing relationship with a specific agency and reviewing their training materials can be a best practice for operators, as can investing in training, Solomon said. An agency also can commit to sending the same employees to a community to provide consistency.
When it comes to “must” practices, Solomon said that deploying a resident identification system to alert agency staff members to medication, dietary needs or do-not-resuscitate orders can mitigate risk related to errors in care. Other “must” practices can include maintaining resident records, documenting who is in a community providing services, and identifying a “lifeline” employee on each shift as a “go-to” resource for agency staff members.
Mutual indemnification clauses also are important because they spread responsibility between the community and the agency, panelists said.
“It’s important to have an indemnification clause to bring in other liability parties,” Clayton said. “But unless there is an egregious or intentional act on the part of agency staff, most responsibility falls to the community due to best and must practices. Don’t rely on indemnification clauses to be your sole protection if the agency doesn’t provide a level of care and services.”
In one case example, a resident had a change in condition, but the community delayed appropriate assessment and transfer due to a family request. Because senior living communities are built around concepts of independence, choice and service, caregivers may comply with family requests that go against established processes and clinical judgment, Clayton said.
When communities are perceived to have dropped the ball, it infuriates juries, Clayton said, and it can lead to significant settlement amounts.
Setting reasonable expectations with families — especially related to high-needs residents whose conditions are clinically complex and represent disease trajectories that will see them decline — is important, Solomon said.
She suggested having conversations about expectations in person, ideally before move-in. And have signed disclosures related to falls, restraints and symptomatic behaviors; shared risk agreements; and informed consents.
“Talk about the residential model versus the skilled clinical model,” Solomon said, adding that many consumers are unaware of the difference between assisted living and nursing homes. “You might have some clinical processes and capabilities, but at the end of the day, we are a residential model.”
Setting expectations and educating families about the risks that come with choice provides a clear understanding that protects the community, panelists said.
In another case study, the panelists discussed a community’s failure to have or follow escalation policies. Technology is great when it works, they said, but alarm systems can fail, equipment can break down, and staff members can become complacent until an incident involves an injury or death.
Solomon recommended having specific escalation policies for different types of incidents — such as falls and elopements — and providing a checklist of whom to notify, how to notify and timeframe expectations.
“Increasing incidents are alarms. They’re telling us we’re marching toward something potentially happening,” Solomon said. “Failure to take it seriously or update care plans or bring folks in to see what you should be doing differently is what plaintiffs’ attorneys will focus on.”
$100,000 for Ukraine, new board members and officers
Also Wednesday, Argentum President and CEO James Balda announced that Senior Living Cares, a joint campaign by Argentum, the American Seniors Housing Association, the National Investment Center for Seniors Housing & Care and Health Dimensions Group, working with CARE, had raised $100,000 to help older adults in Ukraine with their food, shelter and supply needs. (Editor’s note, 5/26/22: Argentum subsequently reported that the amount was more than $150,000.)
Additionally, LCS President and CEO Joel Nelson was announced as the successor to Sharps Compliance President and CEO Pat Mulloy as chairman of the Argentum Board of Directors. Nelson most recently was board vice chairman and co-chair of the public policy committee.
Argentum also named two new vice chairs: Harbor Retirement Associates President and CEO Sarabeth Hanson and The Arbor Company President Judd Harper.
Board officers named were Belmont Village Senior Living President Mercedes Kerr as secretary, Merrill Gardens President Tana Gall as treasurer, New Perspective President Chris Hyatt and Katie Potter as policy chairs, and Mulloy as immediate past chair.
New to the board are ProMedica Senior Care President Angela Brandt, Brightview Senior Living President Doug Dollenberg, Solera Senior Living founder and CEO Adam Kaplan, Sagora Senior Living CEO Bryan McCaleb, Atria Senior Living CEO John Moore, and Retirement Unlimited Inc. President Doris-Ellie Sullivan.
The conference ended Wednesday. Next year’s meeting is set for May 8 to 10 in New Orleans.
Previous coverage of the 2022 Argentum meeting appears below under Related Articles.