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New Challenges, New Thinking
Do 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@rmcontinuum.com
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New Challenges - New Thinking
AASC
Gwen Zander
Insurance Agent & Consultant for the Long Term Care
Continuum
• Licensed Risk Management Agent/Consultant/Counselor
• Specialist in retirement housing / healthcare facilities and home &
community based services since 1984
• Certified Aging Services Professional (CASP / formerly RHP)
• Recognized professional in the field
– Recipient of the “Associate Member Services Award” presented by the Georgia
Association AAHSA and one from Gulf States AHSA as well
– Recipient of the GAHSA Distinguished Service Award
• Featured Speaker at AAHSA Affiliate State Conventions in Alabama,
Georgia, Louisiana, Ohio, South Carolina, Tennessee, and Virginia
• Featured Speaker at AAHSA National and American Association of Service
Coordinators National (AASC) conferences and cross-country trainer for
AASC
• Active member of:
– American Association of Homes and Services for the Aging (AAHSA)
– Georgia Association of Homes and Services for the Aging (GAHSA)
– Gulf States Association of Homes and Services for the Aging (GSAHSA)
– South Carolina Association of Non-Profit Homes for the Aging (SCANPHA)
– Louisiana Assisted Living Association (LALA)
2
New Challenges - New Thinking
AASC
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
Don’t get hung up or • Olmstead decision by Supreme
stressed out! Court
• Denial of aging issues-
education of residents, family
and other staff
3
New Challenges - New Thinking
AASC
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
4
New Challenges - New Thinking
AASC
Why Risk Management?
“...The rise in insurance premiums to owners, the
increased risk of housing frail people, the pressure to
bring services into apartment communities while
limiting exposure to state assisted living licensing
laws, are a few additional reasons to have a service
coordinator...” A Service Coordinator should be well
trained, follow protocols and good social work
practices, and bring quality assurance standards.
Jan Monks excerpt from a letter to HUD
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New Challenges - New Thinking
AASC
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
• What’s at risk? People, property, income, goodwill
6
New Challenges - New Thinking
AASC
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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New Challenges - New Thinking
AASC
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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New Challenges - New Thinking
AASC
WHAT KEEPS YOU AWAKE AT NIGHT?
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New Challenges - New Thinking
AASC
Potential Liability For Housing
• Emergency pull cords
• “I’m OK” door • Lack of protocols for
program monitoring service
• Insufficient providers
background checks of • Staff protocols for
residents, staff and handling confidential
service providers resident information
• Limiting service (i.e. health-related,
provider information private conversations,
offered / referred to resident files)
residents
10
New Challenges - New Thinking
AASC
Potential Liability For Housing (cont.)
• Contradictory job • Accepting gifts from
descriptions residents
• Insufficient employee and • Lack of staff (all)
volunteer background training in Fair Housing
checks and other Federal rules
• Providing direct services dealing with
• Charging for services discrimination
including facility van • Ignoring potential
(if take other than resident safety issues
residents / aides)
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New Challenges - New Thinking
AASC
Potential Liability For Housing (cont.)
• Staff unfamiliar with • Insufficient sexual
“reasonable harassment protocols
accommodation” • Limited or insufficient
• Confusion of Mgr/SC role documentation of
identity resident and mobility
• Insufficient Fair Housing issues (i.e. falls
signage prevention)
• Lack of training • Lack of disclaimers on
appropriate to job public documents
responsibilities • Making promises you
can’t keep....
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New Challenges - New Thinking
AASC
Claims & Liability Issues
• Disgruntled resident, quit taking medications, became
paranoid
– Started threatening other residents
– Report to management ignored
– Paranoid resident shot 2 residents, seriously
wounding both
– Organization and individual named in lawsuit
– Insurance company paid $1.5 million
• Property management companies / owners of residential
sites sued more than twice as often as other businesses
according to a survey on Premises Security Liability
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New Challenges - New Thinking
AASC
Claims & Liability Issues
• Resident fell in tub; found 36 hours later
– Not activated “I'm okay” light
– Staff failed to see light not on
– Foot had to be amputated
– Insurance company paid $350,000
• Resident tripped / fell over vacuum cleaner cord
stretched across lobby floor
– Insurance company paid $200,000
• Referred transportation service van accident killed 2
residents
– No MVR done on driver, no valid driver’s license,
record of narcotics convictions
– Facility’s insurance company paid $325,000
14
New Challenges - New Thinking
AASC
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
don’t – “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
15
New Challenges - New Thinking
AASC
Complexes Compile Ban
Lists
From Newark Advocate 8/9/09 BY AMY HOLLON
Advocate Reporter
Apartment managers, police focus on improving quality of
life
- Began ban list – specific list of people no longer
permitted on the property
– Posted and shared with all the tenants
– Understand possible arrest for violators
– Send to all as an amendment to the lease can remove
anyone even if invited
• Communicate to individual that not wanted on
property
• Continuous list being posted 16
New Challenges - New Thinking
AASC
Consumer Expectations
Senior Continuum
17
New Challenges - New Thinking
AASC
Fair Housing & Marketing
Materials
• Misleading advertising, even unintentional, FTC Act
– -protect consumers against unfair business
practices.
– Based on “defective” services isn’t 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
18
New Challenges - New Thinking
AASC
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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New Challenges - New Thinking
AASC
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
property’s premises.
• Address in house rules by investigating local and
state statutes regarding the ownership of handguns
and other weapons.
20
New Challenges - New Thinking
AASC
Aggressive Behavior
21
New Challenges - New Thinking
AASC
HIPAA Regulations
• HIPAA claims probably not covered by the CGL
• HIPAA - civil and criminal penalties
• Avoid using email for private health information. If
must use some form of encryption or secure network
• “Inventory” common agencies utilized by residents
then obtain forms in advance
22
New Challenges - New Thinking
AASC
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.
23
New Challenges - New Thinking
AASC
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.
24
New Challenges - New Thinking
AASC
Medical Identity Theft
• What is Medical Identity Theft?
– Use of a person’s name or other part of their
identity (such as insurance information)
without the person’s 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 victim’s name
25
New Challenges - New Thinking
AASC
FROM AAHSA WEBINAR ON
RED FLAGS
26
New Challenges - New Thinking
AASC
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
27
New Challenges - New Thinking
AASC
Caregivers For Your
Residents
• 1999 survey by National Family Caregivers Association
showed 54 million Americans provided care for elderly,
disabled or chronically ill. That was 26.6% of adult
population. Now 35%
• Year 2050 estimates only 4 potential caregivers per
person needing care
• More independent contractors in your facility, means
more review of those you recommend
28
New Challenges - New Thinking
AASC
Olmstead Decision
• Supreme Court - individuals
allowed to live in the least
restrictive settings
• Residents can choose to age in
place bringing in services
• $1.75 billion over 5 years to
transition from nursing homes
to other least restrictive
settings
• More HCBS providers in bldg
• Means more due diligence in
review of outside vendors
29
New Challenges - New Thinking
AASC
Safety Of Residents And
Your Responsibility
• Safety and well-being of all residents
and campus
• NO “ 24 hour security” in marketing
literature, website, brochures, don’t
vocalize
• Swine Flu / bird flu / major public
health issues
• Independent contractor
– Yours and your resident’s
– Sign in and out
– ID badges
– Screening criteria
– Certificates of Insurance
30
New Challenges - New Thinking
AASC
Safety And Your
Responsibility (con’t)
– 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
31
New Challenges - New Thinking
AASC
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 they’ve 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.
32
New Challenges - New Thinking
AASC
Some Effective Ways To
Prevent Influenza In Your
Building
• Staff do not come to work while they are ill.
• Staff and LTC residents are vaccinated against
seasonal influenza.
• Visitors do not enter the facility while they are ill.
• All staff, visitors and residents practice good hand
hygiene and respiratory etiquette.
33
New Challenges - New Thinking
AASC
Additional Resources From
AAHSA
7 10 09 Webinar
State Plans:
http://www.pandemicflu.gov
/plan/stateplans.htm. Control Outbreaks:
http://www.cdc.gov/h1n1flu
Federal Plans: /guidelines_infection_
Pandemicflu.gov control.htm.
http://www.pandemicflu.gov
/plan/healthcare/longtermca
rechecklist.html
34
New Challenges - New Thinking
AASC
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
35
New Challenges - New Thinking
AASC
Hire A Service Coordinator
• Assists with ways share information about safety issues
– For residents and families (elderly or not)
– Party or celebration (Cinco de Mayo, mthly coffee
klatch)
– Monthly town hall meetings - continuous safety
education opportunities
– Get speakers from local community organizations -
discuss topics of concern
• Local police - scams that target the elderly
• AARP Defensive driving for the elderly
• Sharing and/or splitting medications
• Mental health awareness; drug & alcohol abuse
• Red Cross on swimming pool safety
36
New Challenges - New Thinking
AASC
Risk Management Guidelines
For
Service 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
•Renter’s insurance coverage
–Responsible for damage - property of others
–Responsible for guest, priv. duty contractors, etc
37
New Challenges - New Thinking
AASC
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 don’t 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
38
New Challenges - New Thinking
AASC
Additional Areas To Assist
in Risk Management
• Reduce falls - color difference between floors & walls
• Work with maintenance:
– Adequate internal & external lighting
– Prompt repair of physical plant & grounds
– Obstacle-free sidewalks, walkways, hallways,
– parking lots- ice, snow, debris, rocks, gravel,
potholes, cracks
– Pest control including bees, wasps, ant infestations
– Program elevator doors to allow adequate time to
safely enter & exit (wheelchairs, canes, walkers, etc)
39
New Challenges - New Thinking
AASC
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
40
New Challenges - New Thinking
AASC
Protocols
• Job descriptions / role • Brokering vs. providing
delineation services
• Confidentiality • Handling evictions
• Sharing info • Gifts from residents
• File maintenance • Use of volunteers
• Dealing with service • Proper documentation
providers • Staff training
41
New Challenges - New Thinking
AASC
Transportation
Services
• Held liable for negligence in selection of recommended
transportation services
– Establish & document vendor selection process
• Company’s 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
42
New Challenges - New Thinking
AASC
Your Organization’s 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
43
New Challenges - New Thinking
AASC
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 44
New Challenges - New Thinking
AASC
• Assistive animals NOT considered pets
– No security deposits; Can enforce state
& local health & safety laws
– Relationship between person’s disability and need for the
animal
• Do not refuse simply because it has:
– Not received special training; not certified or
licensed; doesn’t 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. 45
New Challenges - New Thinking
AASC
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; Doesn’t prevent lawsuits but enhances
communication & understanding between the parties
46
New Challenges - New Thinking
AASC
47
New Challenges - New Thinking
AASC
Examples Of Service
Providers That Need Their
Own Malpractice Coverage In
Addition To General Liability
• Home Health Agencies
• Doctor’s, Nurses & CNA’s
• 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
48
New Challenges - New Thinking issues)
AASC
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
49
New Challenges - New Thinking
AASC
Yes, You Can Be Sued...
But You Can Still Help
Others
• People can sue for anything -- the color of your hair,
eyes, favoritism, not planning accordingly, not
spending $ wisely, etc
• Most insurance policies cover defense costs even
for frivolous lawsuits
• Do your job well, follow protocols, procedures, and
risk management guidelines and you will be ok
• Remember, you are a much needed member of any
organization
50
New Challenges - New Thinking
AASC
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
Hang in there! and/or apartment staff
promise
– Supervision and quality
assurance
51
New Challenges - New Thinking
AASC
DON’T GET HUNG UP
OR STRESSED OUT!
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New Challenges - New Thinking
AASC
