New Challenges, New Thinking Do Not Let Liability Issues Stop You From Serving Others

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New Challenges, New ThinkingDo Not Let
Liability Issues Stop You From Serving Others
AASC National Convention
Sessions M-9 M-19 September
20,2009 Chicago, Illinois

• Presented By
• Gwen Zander, Certified Aging Services
  Professional (CASP)
• Insurance Agent Consultant
• Risk Management Continuum, Inc.
• 4355 J Cobb Parkway, 330 Atlanta, GA 30339
  
• 1-877-376-2762 gzander_at_rmcontinuum.com

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New Challenges

• Risk management issues
• Cyber Crime / Privacy Issues current, former
  potential resident and/or employee information
• Housing and / or HUD
• miscellaneous professional exposures
• risk management guidelines
• Olmstead decision by Supreme Court
• Denial of aging issues-education of residents,
  family and other staff

Dont get hung up or stressed out!
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Benefits Of Service-Enriched Housing

• Reduces crime, drug, and gang activity
• Increases resident retention
• Decreases apartment turnover costs
• Reduces evictions and legal fees
• Improves maintenance, protects investment
• Increases property value
• Increases staff retention and morale

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What Is Risk Management?

• Dealing with the possibility that some future
  event will cause harm
• Not just about buying insurance or avoiding
  lawsuits
• May impair ability to recruit volunteers, raise
  funds, maintain public credibility trust
  (American Red Cross 9/11 funds)
• Provides strategies, techniques, and an approach
  to recognize and confront any threat faced by an
  organization in fulfilling its stated purpose
  while limiting or reducing liability
• Whats at risk? People, property, income,
  goodwill

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Housing And / Or HUD Miscellaneous Professional
Exposures?

• Not Traditional Habitation Only
• Miscellaneous Professional Liability
• Has Always Been There From Insurance Perspective
• Emergency Pull Cords
• Annunciation Panels
• Service Coordinators
• Independent Contractors
• Live-In Aides
• Your Management Firms

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Education Is Key To Minimizing Risks For Elderly
Residents

• 1 in 3 USA 65 living alone, per U.S. Census
  Bureau.
• Low-income housing sites must be prepared to
  provide resources and services to meet the
  specific needs of their elderly residents.
• Accidents in the home are a major source of
  injuries Slips and falls are the most common
  accident-related hazards, says affordable housing
  risk management

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Potential Liability For Housing

• Emergency pull cords
• Im OK door program
• Insufficient background checks of residents,
  staff and service providers
• Limiting service provider information offered /
  referred to residents

• Lack of protocols for monitoring service
  providers
• Staff protocols for handling confidential
  resident information (i.e. health-related,
  private conversations, resident files)

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Potential Liability For Housing (cont.)

• Contradictory job descriptions
• Insufficient employee and volunteer background
  checks
• Providing direct services
• Charging for services including facility van
• (if take other than residents / aides)

• Accepting gifts from residents
• Lack of staff (all) training in Fair Housing and
  other Federal rules dealing with discrimination
• Ignoring potential resident safety issues

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Potential Liability For Housing (cont.)

• Staff unfamiliar with reasonable accommodation
• Confusion of Mgr/SC role identity
• Insufficient Fair Housing signage
• Lack of training appropriate to job
  responsibilities

• Insufficient sexual harassment protocols
• Limited or insufficient documentation of resident
  and mobility issues (i.e. falls prevention)
• Lack of disclaimers on public documents
• Making promises you cant keep....

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Tips For Improving Property Security

• NO Safe Secure or 24-hr Security
• Regularly inspect - burned out bulbs, broken
  locks, forced openings in fences
• Control access to building site
• Know crime levels surrounding neighborhoods
• Advise residents if could affect them (lawsuit if
  you dont foreseeable criminal acts of third
  parties)
• Establish a neighborhood watch program for your
  site
• Document all actions taken
• Security staff - pre-employment criminal
  background checks verify properly trained in
  their positions

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Consumer Expectations Senior Continuum
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Fair Housing Marketing Materials

• Misleading advertising, even unintentional, FTC
  Act
• -protect consumers against unfair business
  practices. 
• Based on defective services isnt necessarily
  tied to specific incident/injury but general
  business practices
• Breach of contract issues-
• Reliance on information provided and failure to
  provide services at level indicated, resulting in
  damages, economic or otherwise.
• General liability policies - false misleading
  willful and wanton misconduct excluded

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Resident On Resident Aggression

• 88,000 residents ( 6.8 of all in aging care
  facilities) are physically aggressive every week
• 78 yr old resident early dementia pushed a 90 yr
  old to the floor - broken hip and death after
  surgery for that hip
• 62 yr old resident beat another resident with a
  towel bar
• Responsible for safety and well-being of all
• Implement policies procedures to identity
• document aggressive behavior
• Places resident or others in danger
• Interferes with staff/management functions
• Assumes socially unacceptable forms

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Resident On Resident Aggression

• Possible root causes
• Chronic illness and/or medicines to treat it
• History of violent acts
• Substance abuse
• Be aware of behavior changes and work with local
  authorities
• Check sex offenders website
• HUD no definitive rules regarding guns on a
  housing propertys premises.
• Address in house rules by investigating local and
  state statutes regarding the ownership of
  handguns and other weapons.

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Cyber/Privacy/Identity Theft Issues

• HUD / housing responsible for the safe keeping of
  records (paper or computer) of the private
  information
• Former, current and potential residents
  former, current, potential employees
• Breach of Privacy
• Hacking, theft, stolen files, laptops, pda,
  iphones
• Most states require
• Notify all individuals that could potentially be
  involved in writing
• Conceivably pay to monitor credit reports of
  individuals for at least 3 years.

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Identity Theft Background

• What is Identity Theft?
• The use of personal information in a way to
  defraud businesses and service providers and
  destroy the reputation and credit standing of
  victims.
• How prevalent is it?
• 8.3 million Americans were victims of identity
  theft in 2005.

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Medical Identity Theft

• What is Medical Identity Theft?
• Use of a persons name or other part of their
  identity (such as insurance information) without
  the persons consent or knowledge in order to
  obtain medical services or goods.
• Frequently results in erroneous entries being put
  into existing medical records and can involve the
  creation of fictitious medical records being
  created in the victims name

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Examples Of Possible Identity Theft That Your
Residents May Experience

• Receives a bill for a product or service denies
  receiving
• Receives a bill for another individual
• Receives a bill from a provider from whom did not
  receive services.
• Indicates he or she did not receive a statement
• Indicates he or she received a collection notice

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Safety Of Residents And Your Responsibility

• Safety and well-being of all residents and campus
• NO 24 hour security in marketing literature,
  website, brochures, dont vocalize
• Swine Flu / bird flu / major public health issues
• Independent contractor
• Yours and your residents
• Sign in and out
• ID badges
• Screening criteria
• Certificates of Insurance

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Safety And Your Responsibility (cont)

• Closed circuit TV surveillance
• Entry access control
• ID badges for residents staff
• Mandatory sign-in for guests Independent
  Contractors include temporary badge
• Buddy system on field trips
• Controlled access to power mechanical rooms
• Shutdown controls for ventilation system (AAHSA
  member near Ground Zero)
• Defibrillation Machines

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Pandemic Swine/Bird Flu Does Affect You

• How affect Work Comp / Group Health / Major
  Medical issues.  Educate staff
• EEOC suit - discrimination - sick, sick family
  and/or friends to whom theyve been exposed.
• Fair Housing How / when refuse entry to
  residents family, friends, IC or potential
  residents. Town hall meetings - residents and
  family members know the symptoms, the incubation
  period, where they can get help within the local
  community, etc.

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Additional Resources From AAHSA 7 10 09 Webinar

• State Plans
• http//www.pandemicflu.gov/plan/stateplans.htm.
• Federal Plans
• Pandemicflu.govhttp//www.pandemicflu.gov/plan/he
  althcare/longtermcarechecklist.html

• Control Outbreaks
• http//www.cdc.gov/h1n1flu/guidelines_infection_
• control.htm.

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Insurance Confusion - Housing With Supportive
Services And Potential Liability Reduction

• No explanation to carriers that service
  coordinators can help reduce potential liability
• Potential fall/mobility issues
• Memory issues
• Education of residents and family members
• Accommodation issues
• Protocols for independent contractors

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Risk Management Guidelines ForService Enriched
Housing

• Reasonable accommodation
• Fire hazards newspapers recyclables
• Local fire dept familiar building evacuation
  procedures
• Pets, motorized wheelchair, scooter policies
• Parking Issues/Handicap reasonable
  accommodations
• Inappropriate services expected from on-site
  staff
• Buying medication, groceries, fixing broken
  items, banking
• Renters insurance coverage
• Responsible for damage - property of others
• Responsible for guest, priv. duty contractors, etc

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Malpractice Or Miscellaneous Malpractice Issues

• Professional, paraprofessional, or lower-risk
  professional services
• Who gets sued - you, your employer, and apartment
  facility
• Standard general (public) liability policies
  dont cover
• Some examples
• Counseling of any kind, whether or not you are
  licensed
• Information and referrals you provide based on
  your due diligence review of the referred
  organizations protocols.
• Sometimes Residents Rights and Fair Housing issues

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Ways To Reduce Risk Liability

• Written protocols followed by all staff
• Resident education on safety issues and the role
  of the SC
• Orientation of all new staff volunteers
• Periodic In-service training of all staff
• All communication with public follows Federal
  regs

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Protocols

• Job descriptions / role delineation
• Confidentiality
• Sharing info
• File maintenance
• Dealing with service providers

• Brokering vs. providing services
• Handling evictions
• Gifts from residents
• Use of volunteers
• Proper documentation
• Staff training

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Transportation Services

• Held liable for negligence in selection of
  recommended transportation services
• Establish document vendor selection process
• Companys driver training qualifications (how
  often do they pull MVRS?)
• Vehicle inspection maintenance procedures
• Business references
• Obtain certificate of insurance (COI) naming your
  organization as additional insured with respect
  to services they provide your residents
  warranting drivers qualified by training
  experience along with a hold harmless agreement

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Your Organizations Vehicle Use

• Do not charge a fee IF other than residents
  and/or helper for assistance going
• Viewed as public transportation ins. premium
  increases
• To offset costs maintenance voluntary
  contributions to resident council fund that then
  donates to facility
• Your vehicle used to help other organizations,
  same holds true. Organization can contract with
  yours
• Check MVRS on all drivers Routine driver
  training assisting population served

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Tenants Motorized Wheelchairs/Scooters, Pet
Policies / Companion Animals

• Denial violates Fair Housing (building layout or
  size of elevators may present problems)
• Can not mandate resident carry liability
  insurance but can set house rules and should
• Remind resident that house rules strongly
  recommend they (or with help from family or
  guardian) carry insurance
• Liability issues theirs, guests, Indep.
  contractor
• Protect their personal property and contents
• Protect their cars

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• Assistive animals NOT considered pets
• No security deposits Can enforce state
• local health safety laws
• Relationship between persons disability and need
  for the animal
• Do not refuse simply because it has
• Not received special training not certified or
  licensed doesnt wear special id collar or
  harness.(Kathi Coughlin Williams Fair Housing
  Institute www.fairhouse.net )
• HUD addresses reasonable vs. unreason.
  accommodation
• Recent HUD notice Office of Public Housing
  "strongly encourages PHA to implement non-smoking
  policies in some or all of their public housing
  units." encouraging development for communities
  that want to pursue smoke-free housing policies.

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Liability Shields Waivers, Informed Consent
Forms

• Waiver - valid only person signing knows waiving
  their rights and they receive something in
  exchange (courts usually invalidate,
  organization has unequal bargaining power)
• Informed consent relieves organization from
  liability for the inherent risks of the activity
  itself (example aerobics, karate, skydiving)
• Offer a legal and psychological deterrent to
  pursue legal action Doesnt prevent lawsuits but
  enhances communication understanding between
  the parties

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Examples Of Service Providers That Need Their Own
Malpractice Coverage In Addition To General
Liability

• Home Health Agencies
• Doctors, Nurses CNAs
• Nutritional Consultants
• Mental Health Counselor
• Social Workers
• Homemaker Services
• Therapists
• Legal or Accounting advice
• Someone handling Medicare/ Medicaid forms for
  others or balancing checkbooks (bonding issues)

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Special Risk Management Areas For SC

• Documentation and recognition of
• Early memory lapses
• Inability to handle routine homemaker chores -
  leads to damage to apartment, building or others
• Health mobility issues that might prevent falls
  a major source of lawsuits
• Need for reasonable accommodation
• Vision issues that might prevent driving or
  scooter accidents
• Detection of abuse between residents, their
  family, their independent contractors

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Summary

• Good protocols
• Documentation only the facts
• Release forms
• Due diligence on referred service providers
• Training and continuing education
• Know regulations
• Watch out for what you and/or apartment staff
  promise
• Supervision and quality assurance

Hang in there!