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There's a growing trend in senior living environments where independent living residents are seeking to maintain their independence at a much older age than in the past.
They often accomplish this independence through home health agencies and companion care services without placing the burden on family members. Senior housing providers
accept this growing trend and often seek additional income sources by taking advantage of opportunities that arise. What impact does this have on a community's potential liability?
Depending on certain facts and jurisdictions there are several things to consider when reviewing a senior living community's ancillary services, and how they are delivered.
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Providing Services for Seniors
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If you were to conduct a quick search on the internet for senior housing options, you would see many independent living communities mention home health care-type services provided,
"by in-house staff or an outside agency." It is common practice for seniors to pay for home health and companion services. The community should be asked about their involvement,
if any, in assisting customers with their home health needs and selection of services. This is necessary to avoid "imposed" vicarious liability when an agency relationship is established.
In most cases, to avoid liability, the community should do no more than provide a list of available services in the area without making any recommendation for one provider over another.
If an independent living residence is part of a community that offers assisted living, it may seem logical for the caregivers to provide some assistance to the residents residing
in independent units.
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Some assisted living businesses form a separate LLC for the purpose of providing services while attempting to limit their exposures. They may set up a home health
company to perform clinical visits including medications, or they may set up personal care attendants to provide assistance with activities of daily living. The employees providing the
services need to be employed by the separate LLC; otherwise, this veil of protection will likely be pierced in the event of a bad outcome, especially if the employees are also working in
the assisted living units. If the LLC is providing services at the community, they should have their own liability policy and the community should be named as an additional insured.
If a community is keeping a chart and/or medication records for independent living residents, it can be argued the residents are no longer independent. Providing such services may
trigger regulatory authority and licensing requirements.
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Licensing Status of
Independent Living Facilities
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Typically, assisted living units are generally configured so caregivers can supervise and respond to a reasonable number of residents. Independent living seniors are looking for more autonomy.
Therefore, the independent living units are generally spread out, include kitchenettes and may have an external door and/or balcony. Regardless of their unit's non-licensed status, there exists
a need to consider the increased risk as the physical and cognitive needs of the residents change. An effort should be made to determine how staffs plan to respond to the resident's needs without
increasing loss exposures.
Many independent units were not built with call cords nor are they hard wired for door alarms. Furthermore, if there is a call system, or if pendants are used, there is a "duty" being created to
respond timely to the needs of the resident. This will be used by the plaintiff's attorneys to solve one of the most difficult burdens of proof against independent living communities. Similarly,
other amenities and services for independent living residents may create a duty owed by the community that opens the door to liability in the event of a claim.
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Additional Considerations Due to the
Fair Housing Act
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There is litigation pending against a CCRC trying to compel a resident to move from her independent apartment to an assisted living apartment. The resident is claiming Fair Housing Act discrimination
based on her disability. The community contends the plaintiff is asking them to alter their housing program which is NOT required by the Fair Housing Act.
In un-licensed senior housing such as independent living apartments, a community cannot take someone's disability into account when determining if a resident is appropriate. In other words, they are subject to
the same rules as any residential landlord. They can, however, look at the resident's ability to meet "requirements of tenancy" such as,
"providing for his or her health care and personal care needs...as long as he
or she is a resident." (American Seniors Housing Association) The key is if their health care and personal needs are "provided for", it may be difficult to move them to a higher level of care even if it becomes
obvious the higher care is needed.
The balancing act between a resident's independence and the Fair Housing Act cannot be easily ignored. One solution to solving the senior housing client's needs is to ask the appropriate questions to
identify the exposures faced by the risk. Knowing what services independent living residents receive, how they are secured, and who provides them are keys to accurately identifying exposures faced by
the organization. The need to improve resident admission agreements can easily be identified and a risk management review can be offered as a value added service to the insurance product.
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“Duty Owed” and Litigation
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Independent living communities have a duty to, "make premises reasonably safe in condition and to comply with building codes...etc." As a community becomes more involved in home health
type services for independent living residents, they blur the line between duties owed in an independent living apartment setting and those duties owed in an assisted living environment.
Providers must be cautious in their delivery of ancillary services so as to not invite lawsuits by establishing a "duty owed" beyond basic obligations of safe premises.
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Thomco's Risk Management Services
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Bill Coons, Loss Control Director |
Want to know more about Thomco's Risk Management Services for the Senior Living Industry? Please Contact:
Bill Coons
BillC@thomcoins.com
1-888-546-4042
Or, Visit our Senior Living Risk Management Resource page.
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Need a Quote or Have Questions about the Senior Living Program?
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Visit us at
www.Thomcoins.com to see a complete list of our industry specific insurance programs. |
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