Risk Management How to Protect Your Community
Introduction • Assisted living and residential care has become an increasingly litigious environment. • Outcomes from recent lawsuits have given a wake-up call to the industry about the importance of maintaining quality risk management programs. • This course will explore the fundamental components of risk management that should be in place in your community.
Introduction We will focus on practical strategies to address causes of lawsuits, responding to incidents, falls, documentation, compliance with CCL requirements, and insurance requirements. The session will wrap up with a deep-dive into three case studies adapted from actual lawsuits against providers in California.
Course objectives By the end of the course, you will be able to: • Describe how recent judgments against assisted living and residential care providers have ramifications for the entire industry. • Identify the most common causes of lawsuits in assisted living and residential care. • Implement five critical steps that should be included in every incident response. • Describe the key principals to include in a falls program.
Course Objectives • Describe the records that must be maintained in any RCFE or ARF. • Implement ten steps for better documentation. • Describe the type of insurance coverage assisted living and residential care providers should have/consider. • Apply critical thinking to real-world case studies to identify ways to improve risk management and prevent the same types of outcomes in his/her community.
Recent Lawsuits in the News… Emeritus – $23 million A California jury has awarded $23 million in punitive damages against Emeritus Corp., a nationwide chain of assisted living communities, following a wrongful death lawsuit brought by the family of woman who died in one of the company’s communities. See more at: http://www.aboutlawsuits.com/emeritus-nursing-home-lawsuit-punitive-damage-award-42915/#sthash.dfmS2Cgk.pdf
Recent Lawsuits in the News… Mariner Health Care Inc – $400,000 Despite the assisted living community’s arguments, a jury found negligence for failing to properly treat pressure ulcers and awarded the family $80,000 for past mental anguish, $20,00 for past medical expenses and $300,000 for past disfigurement and impairment damages. http://www.nursinghomesabuseblog.com/litigation/settlement-reached-with-hospital-assistedliving-facility-in-case-involving-amputation-of-womans-legs/
Recent Lawsuits in the News… Santa Clara Special Care Community LLC - $3 million A north Eugene assisted living community, cited by state officials earlier this year for failing to protect a woman with Alzheimer’s disease from being sexually abused by another resident, now faces a $3 million lawsuit filed by the victim’s family. http://www.opb.org/news/article/assisted-living-center-hit-with-lawsuit/
CNA Closed Claims CNA HealthPro Ins. released their Reducing Risk in a Changing Industry study, which revealed: • The severity of closed claims has increased at an average rate of 7.6 percent per year. • Assisted living facilities have the highest average severity within the for-profit business segment, followed by skilled nursing facilities. • The most frequent allegation is resident fall, which comprises approximately 44% of not-for-profit and 38% of for-profit open and closed claims. • Injuries with high severity include amputation, sexual assault, death, head injury, loss of organ and pressure ulcer.
Why Do Residents and Families Sue? • To recover damages • To punish or to get even with the provider • Usually when there is poor communication between provider and family/resident • Need for an explanation as to how and why this occurred • How to prevent a similar event from occurring in the future
What Happens When You Are Sued? They go fishing: • Attorneys can submit questions to both the plaintiff and the defendant, called “interrogatories” • Must be answered truthfully under oath • Also, “requests for admission”, which require the both parties to say which allegations they affirm and which they deny
What Happens When You Are Sued? Request for Production of Documents: • Demands for production of documents by the parties involved • Resident records • Employee records • Health/medical records • Licensing reports
What Happens When You Are Sued? Depositions: • The parties may be required to appear in the opposing attorney's office to answer questions under oath in front of a court reporter. • Depositions can also be taken from third parties, such as disgruntled former employees.
Types of Incidents Falls: • Those 75 yrs and older who fall are four to five times more likely than those 65 to 74 yrs to be admitted to a long-term care facility for a year or longer • Rates of fall-related fractures among older women are more than twice those for men • Over 95% of hip fractures are caused by fall • Men are more likely than women to die from a fall • Many people who fall, even without an injury, develop a fear of falling. This fear may cause them to limit their activities, which leads to reduced mobility and loss of physical fitness, and in turn increases their risk of falling again and a change of condition.
Types of Incidents Changes in Condition: • Can occur quickly or slowly over a long period of time • May be difficult to detect in those with cognitive impairment • May be due to infection, metabolic changes, medications, cognitive diseases, physical impairments, or emotional upset, etc • Triggers a service plan change and a visit to the doctor
Types of Incidents Aggression: • Resident on resident • Resident on staff • Resident on visitor • If a cognitive deficit is present, it is usually an attempt to communicate a discomfort or unmet need • May trigger an eviction • Must be reported to the LPA/CCLD
Types of Incidents Wandering/Elopement: • Cognitively impaired residents • Monitoring whereabouts • Technology can help but is not a guarantee • Notify CCL, responsible party, etc. • Update service plan
Types of Incidents Sexual Inappropriateness: • Sexuality has no age limit • Often occurs with cognitive decline / dementia • Can be difficult to redirect when between two consenting adults • Cannot allow one person to sexually assault another; • Sexual advances towards staff must be addressed if resident is cognitively intact • If resident has dementia, staff must be trained to re-direct the inappropriate behavior; change of face
Every Response Must Include • Appropriate follow up care: doctor appointment, ER visit, Urgent Care, etc.; • Resident Monitoring: visual checks every 15 minutes, visual checks every 30 minutes…every hour… • Communication: notify family, primary care physician, licensing, Ombudsman, your insurance. Schedule a service plan meeting with the family to discuss the incident and what you are going to do from here.
Every Response Must Include • Documentation: Medical Emergency response protocols, updates to service plan, resident monitoring, elopement protocol, fall assessment and response, state reports, etc. • Root Cause Analysis: who, what, when, where, how and why? • Debrief your staff.
Falls Comprehensive Falls Program • Falls Risk Assessment • Staff Education / Training • Exercise Program • Vit D/Calcium Supplementation • Increased Sunlight Exposure • Environmental Audit • Observation • Footwear Interventions • Medication Review
Falls • Definition of a Fall:An unexpected event in which a resident comes to rest on the ground, floor or lower level.
Calculating Fall Rates Number of resident falls x 1000 Number of bed days
Falls Interventions: • Exercise program • Good nutrition and hydration • Appropriate footwear • Use of grab bars and night lights in bathrooms • Review of medications • Audit of environment for hazards • Eye exam • Encourage to call for assistance and/or use of DME
Falls A Team Approach: • Requires “buy in” of the residents to work, i.e., eye exams, appropriate footwear, use of DME, exercise, calling for assistance, reporting unwitnessed falls; • Ongoing and thorough training of caregiving staff to monitor for and report accurately all witnessed and suspected falls; • Activities that encourage, entice and enable the residents to remain active and speak to their specific interests; • Family involvement in reducing clutter and promoting the residents’ participation in activities.
Falls The Environment: • The location of falls remain the highest in the bedroom • The majority of falls occur between 6 am and 9 pm • Encourage the resident to recreate the bed to bathroom door orientation he/she is accustomed to • Reduce clutter on the floors, stairs and in doorways • Place often used items on lower shelves • Remove throw rugs and extension chords • Use of grab bars and even lighting
Falls Post Fall Follow-Up: • Receiving appropriate care • Call 911 • Communication • Investigation • Education
Falls Assessments • A fall assessment should be conducted post fall by an appropriately skilled professional to determine if an injury requiring medical intervention has occurred. • Ideally, a licensed nurse is in the community and can assess the resident. • If not, 911 can be called and a paramedic can perform the assessment. • Follow up with the primary care physician should occur as quickly as is feasible.
How Important is it? • The old adage, “If it wasn’t written, it didn’t happen” applies to assisted living as much as to any other care setting. • With the number of lawsuits being filed in California alone, we cannot afford to not document in both a resident chart as well as a staff file. • Who documents in which is going to be determined by your specific company and policy, however, do remember that once it is written, it cannot be altered. It is a permanent part of that record. • Your documentation is also your proof of the care and service provided to your residents.
Types of Records • Resident Records • Medication Records • Incident Reports • Staff Records • Volunteer Records
Resident Records • The licensee shall ensure that a separate, complete, and current record is maintained for each resident in the facility or in a central administrative location readily available to facility staff and to licensing agency staff. • Each record shall contain at least the following information: • (1) Resident's name and Social Security number • (2) Dates of admission and discharge • (3) Last known address • (4) Birthdate
Resident Records • (5) Religious preference, if any, and name and address of clergyman or religious advisor, if any • (6) Names, addresses, and telephone numbers of responsible persons to be notified in case of accident, death, or other emergency • (7) Name, address and telephone number of physician and dentist to be called in an emergency • (8) Reports of the medical assessment and of any special problems or precautions • (9) The documentation required for residents with an allowable health condition
Resident Records • (10) Ambulatory status • (11) Continuing record of any illness, injury, or medical or dental care, when it impacts the resident's ability to function or the services he needs • (12) Current centrally stored medications • (13) The admission agreement and pre-admission appraisal • (14) Records of resident's cash resources
Resident Records • (15) Documents and information required by the following: • (A) Section 87457, Pre-Admission Appraisal • (B) Section 87459, Functional Capabilities • (C) Section 87461, Mental Condition • (D) Section 87462, Social Factors • (E) Section 87463, Reappraisals • (F) Section 87505, Documentation and Support
Resident Records • The licensee shall be responsible for storing active and inactive records and for safeguarding the confidentiality of their contents. The licensee and all employees shall reveal or make available confidential information only upon the resident's written consent or that of his designated representative. • All resident records shall be available to the licensing agency to inspect, audit, and copy upon demand during normal business hours. Records may be removed if necessary for copying. Removal of records shall be subject to the following requirements:
CCL Removing Records • Original records or photographic reproductions shall be retained for a minimum of three (3) years following termination of service to the resident.
CCL Removing Records • Licensing representatives shall not remove the following current records for current residents unless the same information is otherwise readily available in another document or format: • (A) Religious preference, if any, and name and address of clergyman or religious advisor • (B) Name, address, and telephone number of responsible person(s) • (C) Name, address, and telephone number of the resident's physician and dentist • (D) Information relating to the resident's medical assessment and any special problems or precautions • (E) Documentation required for allowable health condition • (F) Information on ambulatory status • (G) Continuing record of any illness, injury, or medical or dental care • (H) Records of current medications • (I) Current emergency or health-related information
CCL Removing Records • Prior to removing any records, a licensing representative shall prepare a list of the records to be removed, sign and date the list upon removal of the records, and leave a copy of the list with the administrator or designee. • Licensing representatives shall return the records undamaged and in good order within three business days following the date the records were removed.
Medication Records • When requested by the prescribing physician or the Department, a record of dosages of medications which are centrally stored shall be maintained by the facility.
Prn Authorization • Resident can determine and clearly communicate his/her need for prescription and nonprescription medication on a PRN basis. • Resident cannot determine his/her own need for nonprescription PRN medication, but can clearly communicate his/her symptoms indicating a need for a nonprescription medication. • Resident cannot determine his/her need for prescription and/or nonprescription PRN medication and cannot communicate his/her symptoms indicating a need for nonprescription medication. (Must contact physician before each dose)
PRN Orders • For every prescription and nonprescription PRN medication there shall be a signed, dated written order from a physician, and a label on the medication. • Both shall contain at least all of the following: • (1) The specific symptoms which indicate the need for the use of the medication. • (2) The exact dosage. • (3) The minimum number of hours between doses. • (4) The maximum number of doses allowed in each 24-hour period.
PRN Records • A record of each dose is maintained in the resident's record • The record shall include: • Date and time the PRN medication was taken • Dosage taken • Resident's response
Medication Orders • For every prescription and nonprescription PRN medication for which the licensee provides assistance there shall be a signed, dated written order from a physician, on a prescription blank, maintained in the residents file, and a label on the medication. Both the physician's order and the label shall contain at least all of the following information. • (1) The specific symptoms which indicate the need for the use of the medication. • (2) The exact dosage. • (3) The minimum number of hours between doses. • (4) The maximum number of doses allowed in each 24-hour period.
Central Storage Records • The licensee shall be responsible for assuring that a record of centrally stored prescription medications for each resident is maintained for at least one year and includes: • (A) The name of the resident for whom prescribed. • (B) The name of the prescribing physician. • (C) The drug name, strength and quantity. • (D) The date filled. • (E) The prescription number and the name of the issuing pharmacy. • (F) Instructions, if any, regarding control and custody of the medication.
Medication Destruction Log • Title 22, Reg. 87465 Medication Destruction Log • (i) Prescription medications which are not taken with the resident upon termination of services, not returned to the issuing pharmacy, nor retained in the facility as ordered by the resident's physician and documented in the resident's record nor disposed of according to the hospice's established procedures or which are otherwise to be disposed of shall be destroyed in the facility by the facility administrator and one other adult who is not a resident. Both shall sign a record, to be retained for at least three years, which lists the following: • (1) Name of the resident. • (2) The prescription number and the name of the pharmacy. • (3) The drug name, strength and quantity destroyed. • (4) The date of destruction.