On Friday, I wrote about expanding litigation due to increasing resident care needs found in senior living, assisted and independent living. Specifically, the issue is primarily around “acuity creep” or residents aging in-place, in environments that may not have the staff and infrastructure to meet their advancing care needs. Friday’s post is here: https://rhislop3.com/2023/12/01/friday-feature-senior-living-litigation-watch-risks-at-ccrcs-independent-living/
I’ve written before about the expanding risks for litigation (and compliance) in assisted living facilities when they seek to improve census and census opportunities by taking on higher acuity residents or maintaining residents when acuity increases. The market for these services is wide as residents and families may wish to avoid skilled care settings however, organizations that take advantage of this opportunity need to do so, fully prepared for the care needs of higher acuity residents. https://rhislop3.com/2023/05/23/home-health-and-assisted-living-compliance-and-litigation-tips-to-note/
When it comes to addressing advancing acuity beyond programming, an assisted living facility has guardrails that CCRCs and ILs (Independent Living) don’t under the Fair Housing Act. An assisted living facility will have state licensure standards that provide for fallback positions on admission criteria and discharge criteria. Essentially, other than certain types of prohibited discriminatory acts, an assisted living facility can choose who it admits and within state guidelines, when to discharge if care needs exceed the facility’s ability to accommodate the resident.
For IL and CCRC providers, the provisions under the Fair Housing Act muddy the water, significantly. It is in this “murky” water where possible litigation risks lie.
- Resident refuses additional care or transitions yet, remains in an IL setting that is not appropriate to meet his/her needs. Resident has an accident or event that leads to injury or death and resident or family, seek litigation as a redress to the event, even though, additional care was warranted.
- Were the circumstances predicated on the Fair Housing Act whereby, a forced move or transition because of disability (increased care needs) is prohibited?
- Did the organization properly address and document the increased care needs?
- Was the resident given the option to acquire additional services to meet his/her additional care needs? Fair Housing Act provisions center on the “resident” acquiring and paying for the additional care, not necessarily a requirement of the facility.
CCRCs have different challenges though, the litigation risk elements remain. Even in light of the Fair Housing Act and its provisions, CCRCs have some room to maneuver in terms of limiting intake (admission) risk and ongoing risks associated with advancing acuity/care needs. The context, however, is really for CCRCs that enter into Life Care contracts with their residents (a contract that provides for continuing care services for the rest of the resident’s life, at fixed or reduced prices, regardless of the condition of the resident and/or his/her ability to pay). To note, there are many Life Care models but essentially, a continuing care contract and salient terms for ongoing care is the tool that provides maneuverability around the Fair Housing Act.
- On admission, to qualify actuarially for continuing care and the Life Care contract, CCRCs can narrowly review a resident’s health status and history, consistent with the level of care at entry (typically, Independent Living), provided such level is defined (ability to live independently). Here, I suggest clear criteria defined by a functional score if possible and some underwriting criteria, similar to that of an insured contract (though nowhere near as detailed).
- When care needs change, temporarily or permanently, language within the contract should specify the CCRCs right to move residents to appropriate care levels, based on criteria. Again, I like a “qualified standard” such as a review by organization Medical Director, a transition team recommendation, etc. (in non-urgent situations). I also like the clear qualification around incapacity to meet the independent living standard (functional level).
A great presentation/PowerPoint from Atty. Jason Lundy at IceMiller, done at a LeadingAge Illinois conference this year, covers the above subject matter in detail, and it is available here: Residency-Transistion-Challenges
Reducing the litigation risk under the Fair Housing Act and in general when residents need more care and transition of some form or another (moving, adding services such as home health) requires a multi-step approach. My recommended framework is below.
- Have policies and procedures regarding care transitions (moving, accessing, etc.) in writing and clear. Make sure the same are consistent with Federal and State law. Make the same available to residents and families on admission and then, accessible on-line and where applicable, posted.
- Remember, to avoid hassles and arguments, avoid the once and done pitfall (on admission, in a packet, never discussed again). Admissions have ton going on so residents will glance over the “future stuff” and focus on the here and now.
- Stay in-touch with residents as they stay in your IL environments via health and wellness programming. Simple programs of education, screenings, group exercise, activities, keep resident functional status in-sight.
- Do an annual safety inspection of every unit to see how the unit is being maintained and how the resident is living.
- Update emergency information at the inspection.
- As residents are noticeable changing, engage family and significant others to the extent permitted. Keep an open, honest dialogue. No surprises!
- Have a Transition Team in-place comprised of multiple disciplines (nursing, social services, chaplaincy (if available), activities, etc.). Use a team approach to review resident status, at least twice annually or more for residents at-risk.
- Develop a risk-based format for each resident that has some score or status and is available to staff that interact with the resident (e.g., red=high transition risk, yellow=moderate/changing, green=all good). When all staff such as maintenance, housekeeping, food service all know resident status, they can work collectively to support and assist with transition needs.
- Consistency and communication are key. It is important to be consistent in approach with ALL residents. Favoritism will create havoc as residents talk among themselves. Communicaiton must be frequent and honest. No false promises, no sugar coating.
- Residents know their status and know their limitations. Prep them for changes, move slow via trial periods or other types of engagement.
- Residents don’t mind being engaged with the facility and their health. If you work with them routinely, they will not push back, significantly.
One last resource is a great piece on the Fair Housing Act as applicable to senior living, including examples of cases testing various Fair Housing Act provisions. It is available here: Fair_Housing_Act_for_Residents