While allowing companion services can help senior living providers to retain residents and enable them to age in place, a lack of industry regulation for personal aides can create a liability “gray area” in crisis situations.
In some senior living communities, residents employ their own personal care aides who may perform duties similar to a care aide employed by the community. If privately-employed care aides are present in cases where a senior living resident who is not their employer has a medical emergency, their resulting actions fall into a gray area of liability.
Providers must be proactive to clarify policies with third-party aides and employees alike, says Eugene Solomon, founder of Asset Guard Endorsement (A.G.E.), a company that provides personal renter’s insurance for seniors.
Clearly defined “rules for the road” would provide these caregivers with a roadmap of what they can or cannot do in the event of an emergency situation, he says, with open and upfront communication playing a pivotal role in this process.
Much of the outcry over the widely-publicized Glenwood Gardens incident, where an independent living resident of the continuum-of-care community collapsed in a dining room and ultimately passed away, was regarding whether or not CPR should have been performed. After calling 911, a staffer at the Brookdale Senior Living-operated community passed the phone to a self-identified nurse who was serving as the community’s resident services director at the time.
The nurse refused the 911 dispatcher’s repeated requests for either her (the Brookdale staffer) or anyone else present to perform CPR on the ailing resident, citing the company’s independent living protocol.
In these sorts of instances, a liability gray area could arise if the ailing resident has a DNR or some other such directive on file, but another resident’s personal care aide who may be on the scene has no way of knowing that.
Additionally, a third-party personal care aide who decides to intervene in an emergency situation on a resident who’s not their employer could ultimately do more harm than good, says Paul Gordon, a senior-focused law partner at Hanson Bridgett LLP.
CPR survival rates have been documented to only range between 0% and 5% for frail older adults, multiple studies have shown, according to recent research published in the Journal of Gerontological Nursing. Additionally, the same data finds that 50% of CPR procedures for older adults often result in injuries such as broken ribs, sternum fractures, or even brain damage from prolonged lack of oxygen.
Many people believe that Good Samaritan laws will protect them from liability for injury when delivering CPR in an emergency situation, says Gordon. However, these laws do not protect those who charge for their services.
In the case of a senior housing community employee providing CPR to a resident, Gordon adds, the employee will almost certainly not be protected because the service is provided in the course of employment rather than as a volunteer. For a third-party care aide not employed by the community, it’s less clear.
These sorts of situations make liability a “legitimate concern” for both independent and assisted living providers, says Gordon, given the high injury rate and low survival rate of CPR.
In independent living—where providers generally do not have legal obligation to furnish care of any kind—it’s a completely different situation than a community that is licensed to provide care services, he says.
“The difference is that in the case of a licensed care facility, a private caregiver can be an obstacle,” he says, as they might interfere with the community’s fulfillment of its licensing requirements.
Regardless of care setting, personal care aides who enter a senior living community are ultimately going to interact with other residents and community staff, according to Solomon.
A companion service aide could breach the senior living community’s protocol simply by purchasing a gift for a resident, according to one case observed by Solomon, where an aide bought a dog for a family’s parent without knowing if the dog had a tendency to bite people or was house-trained.
This sort of disconnect between the two parties, says Solomon, is becoming more and more prevalent, but technology could help. Creating a database that lists credentialed companion service aides could serve as a sort of pre-screening background check for providers before allowing them to operate within a senior living community.
“Companion services can be positive,” he says. “It’s just a matter of establishing protocol.”
Written by Jason Oliva