Since the rise of the Covid-19 pandemic in the spring of 2020, senior living providers have understandably been focused on risks related to the coronavirus. But, existing issues have not gone away, and providers are well-advised to make sure they are acing “risk management 101” in this new and challenging operating environment.
That’s a key message shared by Willis Towers Watson Senior Claim Consultant Tara Clayton, who sat down with Senior Housing News for the latest episode of the Transform podcast.
Arbitration agreements, reducing the incidence of resident falls, managing resident and family expectations through strong communication, resolving claims quickly, and updates on limited liability protection related to Covid-19 were among the topics that Clayton addressed. She has a deep familiarity with the specific issues facing senior living providers, having served as in-house counsel for two national operators before joining Willis Towers Watson in May 2019.
How much has the Covid-19 pandemic changed the risk management picture?
We all know the pandemic has brought a host of novel and what I would call unprecedented challenges. I do think it’s really just added to the prior risk management picture that was in place. I say that because, to your point, I think it’s important to know that “risk management 101” topics and areas that we all focused on before the pandemic started are still in place, and will obviously continue to be there as we hopefully get through this pandemic and on the other side.
I think one of those “101” topics is arbitration agreements?
I think agreements are definitely one of those tools that were at play prior to the pandemic and absolutely are still at play.
As far as the current landscape with arbitration agreements, there’s strong federal support, through Supreme Court cases, promoting the use of the Federal Arbitration Act. But then at the state level, it really is kind of a jurisdictional, state-by-state analysis. Some state courts take a more slanted or biased view of arbitration agreements as it relates to the senior living/aging services space. That being said, I still think it is absolutely a tool that needs to be used and utilized in any effective risk management program.
Some key things to note. One is making sure you have a process to retain the arbitration agreements. One thing I’ve seen in some claims over the years: The suit comes in, and it’s a community we know is utilizing an arbitration agreement, but we can’t find any evidence that an arbitration agreement was actually executed or even presented. So, we don’t know if it was presented and declined, or it just was never presented. Or, we have staff say, we know an arbitration agreement was signed, but we can’t find it, or we can only find the first page and not the signature page. So, in order to be to effectively use that tool, making sure we’ve got a system in place to retain those agreements.
The other bullet regarding arbitration agreement use is making sure who is executing those arbitration agreements. That’s going to vary state by state as to whether the person signing has the authority to do so; don’t have the assumption that being someone’s spouse gives them the authority to sign this type of legal document. Really understand the laws of your specific locations where you operate.
In terms of retaining the agreements, is this simply a matter of better record keeping?
More and more, we’re moving toward an electronic health record. I’ve seen a greater capacity at keeping the arbitration agreement with the business file and the rest of the medical record together in one spot. But historically, and especially in those communities still relying heavily on paper records, the arbitration agreement could be placed in its own separate file … and as residents discharge or leave the facility or community, sometimes those files don’t make it together with the medical record, and who knows where they can end up, in a storage place. And we know a lot of these lawsuits, they don’t happen within a few weeks of the resident incident. It’s often several months if not a year or more after a resident has left the community that it’s filed. So we have some challenges, sometimes, in locating all of those relevant documents.
Falls a major source of assisted living insurance claims every year. Thoughts on how providers can be addressing fall risk and fall incidence?
We’re still seeing falls as that leading claim driver in the senior living space. Most reports that I’ve seen, falls are right there at about 50% of the claims we see coming in.
To me, one of the big pieces of an effective fall management program is setting realistic expectations with the family. In my experience previously as a litigator, taking numerous depositions of family members, I really did get a sense that we have a lot of people in the public who have a feeling that, my mother’s fallen at home, but now that she’s been admitted to this community, she’s going to stop falling like that.
It’s really important to help set that realistic expectation with family members. We can’t stop all falls. Not all falls are preventable. But here are the ways that we effectively help mitigate and try to lessen injuries from those falls, when they happen. And here’s how we respond. If your mother does fall, here’s the response plan.
Having a fall management program would include having strong assessments, and those assessments are done throughout the residency. There are varying state requirements as to how frequent, but at a minimum, on admission, any type of change in condition, after a fall, any time a resident is readmitted, and then various times throughout the residency, just staying on top of any changes the resident is exhibiting that would alter their fall risk.
And then, [have] a proper post-fall investigation process. So, when residents experience a fall, having a robust investigation and quality program in place. Review the root cause and what’s going on with that specific resident to understand what interventions make sense and are tailored to address that specific fall risk, rather than just using a checklist of those normal, common interventions that are utilized.
Are there other clinically-focused programs that providers should have in place, or that insurers will want to know about?
Absolutely. We were in a hard insurance market even before Covid. What we were seeing and continue to see is increased questions from insurers regarding all of the different types of risk management programs that a senior living provider would have in place.
So, a falls management program. And then also, what type of infection control plans and programs do you have in place? Covid absolutely has heightened those questions and what a community is expected to have in place regarding a robust infection control plan. We’re now on notice that these pandemics can happen and how we need to respond, so how are we prepared to address that going forward? What kind of training are we doing with the staff? What kind of audit checks are we doing?
The other thing I’m seeing the insurers ask more about is communication protocols. That started in response to Covid. What protocols, what processes, what methods of communication are you the provider using to communicate — at that time — Covid infections, and what the community is doing in response for families and residents. Now we’re starting to see it be a broader interest in just communication in general. That ties in to setting realistic expectations. Communications really are a part of that. How are you communicating to the families and residents throughout the residency?
Any other thoughts on what good communication consists of?
When a resident is admitted, you’ve got to establish that relationship and really start to build trust with the resident and the responsible party or family member. You do that through communication. Setting realistic expectations, but also doing what you can to make sure that the family member or the resident understand that they are 100% part of the care team. So, keeping them educated on, if the resident is starting to experience a decline, why is that decline happening? If we’re seeing falls, is there a connection to the resident’s overall picture that we can work with the physician to educate the family on?
There’s a fair number of suits that I’ve seen that a lot of the issue comes from families not feeling like the information was communicated to them, and they really filed suit because they felt that was the only way they were going to get answers.
When I was in-house, I would always share with communities the importance of communicating the good information, as well. I remember one daughter who was very upset, and during the course of the deposition, she said, “You know, anytime I saw on the caller ID this particular facility’s name pop up, I would just immediately be upset because I knew they were calling to tell me that my mom has fallen.” And, it kind of hit me, we don’t want our families to have that kind of reaction, right?
So, call them when good things happen, too. If Mrs. Smith won bingo that week, calling to let the family know how excited she was and the special prize she got.
You’ve mentioned in the past how important early resolution is as a claims strategy. How can providers achieve this?
To effectively attempt early resolution, you need to know the incident happened. So, I think the first thing you need to have in place is a robust incident reporting system to make sure that one, there’s documentation, but two, that there’s a proper escalation, depending on the type of incident or the seriousness of the incident. So that those in the positions that would be involved in the early resolution discussions, like the executive director or possibly someone at the regional level or even an in-house legal department — depending, again, on the incident — make sure that you’ve got that incident workflow in place and staff are trained.
And from there, having that good post-incident investigation that I talked about earlier. You need to be able to investigate, really understand what happened, so you can sit down with a family member and address concerns they have and have a discussion if there’s a way to resolve it, if there’s even something to be resolved. You may realize during the investigation that there’s no negligence or nothing wrong on the part of the facility. And, you can point to all the correct things that were done, to the family member. If they choose not to listen, at least you’ve provided that information, you have the documentation that you sat down to talk to the family member.
Juries love to hear that you did make attempts to at least talk to the family. I think that helps drive down the emotions that juries have, as well.
Let’s turn to Covid-19. Can you update us on efforts to create liability protections for senior living providers?
At this point, I would say roughly a little more than half of states have enacted some type of limited liability protections, as it relates to the pandemic. The scope of what is covered under those executive orders or legislation, and/or who was covered, really does vary state to state. But we have seen quite a number of states at this point responding in that fashion, to try to help respond to the threat of suits that we’ve seen through advertisements, as well as some actual filings at this point.
On the federal side, currently there is in existence the PREP Act — the Public Readiness Emergency Protection Act — that was enacted back in 2005. At that point, President Bush was kind of nervous about what our nation’s response would be able to be, should we have another terrorist attack or even a natural disaster or pandemic, such as we’re in right now.
We’re still in early stages, but I’ve seen a lot of claims are, on the defense side, attempting to invoke PREP Act immunity and the exclusive remedy that’s set forth in the PREP Act. What I’m seeing is a lot of arguments, and new arguments coming out continually as we learn more and more about the intent and purpose of the legislative history behind the PREP Act, as well as getting information such as the letter from the Department of Health and Human Services showing that a senior living community can in fact fall under a covered person or program planner under the PREP Act, in certain situations.
As more information like that comes out, I think it strengthens those arguments. But, we’re very early in the process. We’ve had a few that have been remanded for jurisdictional reasons. So, no real clarity yet on the PREP Act, and how it will be applied for these Covid cases.
The only thing I would flag is for providers to be thinking through, does it make sense to work with their local counsel where they operate, and looking at utilizing a waiver or even an attestation or disclosure type document, as it relates to Covid. It’s really going to depend on the jurisdiction as to what type of document would make sense for your risk management tool. That discussion varies depending on whether we are talking about residents, are we talking about visitors, are we talking about vendors coming into the building. But, I think that there are some that can be used in your toolkit from a risk management perspective … as we learn more and more about how the virus is transmitted and we’re trying to protect our residents and staff inside the community.
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