Managing Risk in Senior Living Communities

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Managing Risk in Senior Living Communities Joel Goldman | Attorney, Partner, Hanson Bridgett JoAnne Carlin | V.P. Clinical Risk Services, Willis Towers Watson


JoAnne Carlin, MSN, RN, NHA, CPHRM Vice President of Clinical Risk Services, Willis Towers Watson Leads the clinical risk services for the Senior Living Practice at Willis Towers Watson. Held positions as corporate nurse leader in a national senior living company for over a decade and several leadership positons in health systems for over 30 years.

Joel Goldman, Partner, Hanson Bridgett Law Firm A noted presenter at numerous conferences and seminars throughout the United States for senior care industry associations, legal organizations and university academic programs. His expertise and experience in senior living regulations coupled with his practical approach to issues make him a popular presenter at inhouse training programs for multi-facility providers.


Covering Your Assets - Overview Goal: Interactive and practical presentation that addresses prevalent and serious risks and legal concerns in senior living communities.

Objectives: 1. 2. 3.


Describe three areas of risk with legal implications in Assisted Living communities. Discuss the concept of “realistic expectations� and the impact it has on risk management. Identify the various constituencies that can help or hurt a community in managing risk.

Risk Vulnerability in Assisted Living - You Tell Us


Risk Vulnerability in Assisted Living - You Tell Us Regulatory Compliance • Federal Laws : Fair Housing, ADA • State Licensing: Retention

Resident Care • Resident Events: Falls, Alleged Abuse, Elopement, Medical Management • Resident Injuries

Processes and Practices • • • • •


Admission and Discharge Reasonable Accommodations Services and Expectations Documentation Communication

Federal Laws – Anti Discrimination Statutes Fair Housing Act of 1968 and Amendment Act of 1988 • Prohibits discrimination in the sale or rental of dwellings on the basis of – race, color, sex, religion or national origin – familial status and handicap • Exception for housing for older persons – HUD for elderly persons – Solely occupied by persons 62 or older – At least one person per unit must be 55 or older

Americans with Disabilities Act – 1990 Prohibits discrimination on the basis of physical or mental disability in public accommodations operated by private entities. • Covered Disabilities – 2008 ADA Amendments Act expanded the scope of the major life activities and bodily functions covered by the law • Businesses Subject to the Act – A place of public accommodation – A senior center or other social service center – Long term care is expressly covered by ADA regulatory guidelines


Federal Anti-Discrimination Statutes - Application to Senior Living Handicap / Disabilities- All of our residents • Any physical or mental impairment that substantially limits one or more major life activities – A record of having such an impairment – Be regarded as having such an impairment – Examples: heart disease, arthritis, Alzheimer’s, depression, alcoholism, drug addiction, if not currently using drugs

• Includes Continuing Care Retirement Communities

Prohibited Inquires - Cannot inquire if the applicant has a disability • Except for a particular type of disability that is required for tenancy – memory care • Can inquire about applicant’s ability to meet the requirements of tenancy - regulations

Reasonable Accommodation - Access to Facilities and Services • Physical modification of the premises • Rules, policies, practices or services


Let’s Discuss – Prospect Scenario Mrs. A. is looking to move into a senior living community that offers meals, housekeeping and laundry services. Other services and amenities at the community are activities, transportation and a fitness center. She comes to the sales office in a wheelchair with a private duty aide who helps her every day. What questions can you ask Mrs. A. about her condition and health status? Does it matter the type of community it is? What reasonable accommodations does Mrs. A. seem to need?


Actions to Take to Avoid Disability Discrimination Admission – Policies – Transfers Train Marketing Staff and Managers • Most common sources of discrimination liability – – – –

When a new prospect seeks application for residency Marketing staff are at risk for making statements, asking questions or making recommendations When an existing resident is restricted from using all the facilities and services When a resident is asked to move to another level of care within the building or to move out

Establish a Review Team • • • • •


A consistent team of people who know the company’s policies- trained by legal counsel Executive Director, Resident Services. housekeeping, dining managers, Directors of Nursing, health services Understand the type of senior living community you are and what you are not allowed to ask Review the application process and forms based on the federal and state laws Adapt to each situation based on the individual circumstances

Reasonable Accommodations – What’s Reasonable? • •


Burden is on the resident to request the specific accommodation Operator is responsible for determining whether the request is reasonable and implementing it The resident must prove that the accommodation is necessary to afford him / her an equal opportunity to use and enjoy the dwelling • Verify that the person meets the Act’s definition • Describe the need for the modification • Tenant must pay for the physical modification but not for a policy or rule change

Let’s Discuss – Reasonable Accommodation Scenario Mrs. A. would like to go to exercise classes in the fitness center but the ramp to get into the fitness center is too steep for her to propel in her wheelchair? Do you need to make reasonable accommodations for her to use the fitness center? If so, what could it / they be? If not, why not?


Other Areas Where ADA Applies in Senior Living Communities Access to Facilities and Services Motorized Scooters • Do not steer applicants to care venues because they use a mobility device • Indoor use of motorized scooters cannot be prohibited outright but can have rules and restrictions because of concern for the safety of other residents • Do not: – routinely require a physician’s certificate of need – routinely request demonstration of competence to operate the scooter – restrict the scooter in certain common areas of the community – require liability insurance, fee or security deposit • Can charge for repairs to actual damage


Other Areas Where ADA Applies in Senior Living Communities Dining Rooms and Common Areas • Rationale for policies and rules should not be for aesthetics, decorum or preferences of other residents • May have staff valet park walkers and canes to prevent a trip hazard • Restrictions of motorized scooters during congested periods for the safety of other residents along with reasonable accommodations for scooter users has been upheld

Independent Living Dining • In communities where there are multiple levels of care with different dining rooms dedicated to those levels, a resident in a care level may want to eat in the independent dining room • Fire safety standards, staffing, physical plant, equipment , etc., varies based on regulatory requirements


Regulatory Compliance – State Regulations and Relationships Assisted Living Regulations • Relationship with the state agency that regulates and inspects the community • When in doubt ask questions of the agency • Membership in the state professional organization

Admission Policy and Process • Sales force should be scripted • Promises stated or implied • Don’t short circuit the process


Policies for Selection, Retention, Transfer and Eviction When establishing policies consider: 1.

Whether conditions for occupancy are necessary to meet requirements of tenancy and / or participation in the care program Questions about a person’s healthcare needs: Appropriate for licensed assisted living with personal care Not appropriate for unlicensed senior care apartment housing (IL) CCRC with financial risk for care may impose age and health criteria and ask questions that are not okay to ask in a fee-for-service community

2. Whether the community can make a reasonable accommodation so applicant can meet the requirements and enjoy full access to the facilities and services 3. Whether reasonable modifications to the premises can me made so the applicant can enjoy the housing and facilities


Let’s Discuss – Retention Scenario The Executive Director at Spring Flower Assisted Living is in her second month at the community. The community has had problems with low occupancy, turnover in the ED position and caregiver turnover. The Sales Director has told the ED that the only prospects coming through are those with multiple needs. The state has arrived this morning because of a complaint about high acuity of some of the residents. It appears that a few of the residents may be exceeding the retention standards based on the licensure in this state. What should the ED have done in her first few weeks to prevent a situation like this? How could she respond to the surveyor? What are the risks for the community?


Resident – Assessment of Needs Service Plan What can the community provide? Agreed to and signed • By the resident and / or the family, POA • Changes to the service plan need to be communicated

Documentation that the service plan was carried out • Documented consistently and resigned

Retention and Discharge Process • Process and frequency of resident evaluation • Events that trigger a review and possible discharge – Significant condition change that exceeds the communities capabilities – Suicide attempt – Behaviors that are not able to be managed – Other ???


Resident Incidents and Events Prevalent / Severity


Resident Incidents and Events Prevalent / Severity in Assisted Living • • • • • •

Falls Alleged Abuse Elopement Skin Medication Medical Management

Prevention from Injury • • • •


Realistic Expectations Service Plan Communicated Documented

Let’s Discuss – Resident Care Scenario Mr. B has been at the Hilldale Assisted Living community for the past four years. He is 74 years old and has Parkinson’s Disease. He is cognitively in tact and able to make his own decisions. He likes to go out with friends to restaurants and to play cards. He has limited ability to ambulate without an assistive device and recently has fallen multiple times. The investigation of the falls has shown that the falls occur when he isn’t using his walker or scooter for mobility. The Wellness Nurse has discussed with him the need to use an assistive device at all times for mobility or to ask one of the caregivers to accompany him but he refuses. What steps should the community take to protect them from liability for Mr. B injuring himself?


Negotiated Risk Agreements When is a negotiated risk agreement appropriate? Who is the conduct affecting? • • • • • • • •


Falls Elopement Smoking Non compliant diabetic Alcohol Scooter Driving Combative Behavior

Negotiated Risk Agreements – Communication Tool •

• •


Cannot be used if the resident is deemed inappropriate for Assisted Living Involve as many appropriate individuals as possible • Resident / Legally Responsible Party • Executive Director • Nurse • Physician / Psychologist • Regional Director • OT/ PT • Hospice / Social Worker • Ombudsmen Must be signed by the Resident / POA May have others sign it too

• • •

Include on the form or document • Purpose • Risks • Likely consequences • Benefits • Alternatives Updated the individualized service plan Place the agreement in the resident’s record Communicate to staff what their actions should be as a result of the agreement Review the agreement ongoing: per state guidelines, upon resident condition change and according to your ongoing assessment policy

Social Media an Emerging Risk x

New Concerns – Potential for Resident Abuse

The idea was to create a selfie app which allowed users to share images that were explicitly short-lived and selfdeleting. The temporary nature of the pictures would therefore encourage frivolity and emphasize a more natural flow of interaction.


Let’s Discuss – Employee Snap Chat Scenario A resident care associate told her Executive Director that another associate sent her a picture of a memory impaired resident in a disrespectful situation. The ED asked the associate to show her the picture that was sent to her. When she attempted to show the picture it was already gone since it was sent on Snapchat. What should the ED do with this information and lack of concrete evidence? What are the potential pitfalls with this situation from an employee management perspective? Should this be considered alleged abuse? Reported to the state? Should this situation be discussed with the family?

Communication is Key •


Who from the community

What is said – what is not said

Truth without admission of guilt, tone, inflection

When to communicate: something goes wrong or regularly

How - email, text messages, voice mail, phone, in person

Communication is Key Constituencies • • • • • • •


Resident Family Community Ombudsman Regulatory Agency Department of Health Emergency Medical Services

Thank You

Joel Goldman JoAnne Carlin


Argentum 1650 King Street, Suite 602 Alexandria, VA 22314

(703) 894-1805

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