Assisted Living Executive

tested, and maintained. Ensure that staff is properly trained in the care of residents with dementia and recognition of wandering behavior.

Any assisted living community that offers dementia care should have an elopement policy and procedures in place and regularly conduct elopement drills to ensure staff completely understand how to respond in the event a resident elopes. These measures will not only help in preventing an elopement but also in defending against claims of negligence if a resident suffers injury or leaves the community unescorted.

Stay Within the Lines

Blurring the lines of distinction between an assisted living community and a skilled nursing facility is a risky move. However, as acuity levels rise among aging assisted living residents, it is becoming more common for these communities to offer more and more services that border on skilled nursing. One community touted its services as being “just like a nursing home,” implying that staff could provide some of the same medical procedures available in a skilled nursing facility.

That community, actually, did not provide medical care but depended on third-party home health-care agencies to provide services such as injections and catheter care. In the event of a resident’s injury or illness, a lawyer could latch onto the phrase “just like a nursing home” as a promise for services and care that were not rendered—making the assisted living community more culpable for any damages claimed by the resident or family members.

Another community promoted having a registered nurse on staff, promising residents and their families that residents would receive better care since the RN could recognize serious conditions and respond quickly. This verbal representation, however, was used against them in a claim that occurred when the RN was on vacation. The resident became ill and staff attending to the resident did not contact a doctor. The resident’s condition finally became so serious, she was transferred to a hospital where she died within a day. The plaintiff’s attorney argued successfully that the community’s claim of having an RN on staff who could provide increased care resulted in a greater duty to provide that care. The claim settled in excess of $500,000.

approved.” Assisted living communities should pay close attention to such wording. If a community is state-licensed, then it can include wording about that licensure. However, communities should steer clear of vague phrases like “state approved” or “meets state requirements” which can be interpreted differently by lawyers. This can hurt the credibility of an assisted living community and could place doubts in a jury’s mind about the true quality of care provided.

And lawyers aren’t the only ones who may be looking at your marketing brochures and Web sites. State consumer agencies are also taking notice. Several years ago, the Minnesota attorney general sued a large assisted living provider, claiming it was guilty of false advertising and consumer fraud. The lawsuit was based on claims by the company that it provided 24-hour care to residents and had specially trained caregivers for residents with dementia. The state found both claims to be false and imposed sanctions on the company.

Be aware that what you say verbally and in writing must be clear and concise without overstating or overpromising care and services provided by your community. Make sure admission agreements are clearly written and address such important elements as fees charged for services, the frequency of services provided, resident rights such as smoking or cooking, medication procedures, policies on devices such as electric scooters, and conditions under which a resident may be discharged. As a standard practice, review admission agreements and other documents with the resident and family members and obtain proper signatures.

An ounce of Prevention

Make sure that brochures and Web sites are in harmony with the community’s admission agreements. Brochures should not state that a person can “age in place” when the admission agreement has provisions for placing a resident elsewhere should certain health conditions develop. The two documents must be in agreement because both can be presented in a court of law. It is good practice to have all brochures, admission agreements, and other documents reviewed by general counsel for proper wording. If a community has brochures or other materials in Spanish or other languages, take particular care to ensure the translations are accurate. ❏

truth in Advertising

Another area of concern for assisted living communities involves advertising materials that include phrases like, “state

Bob higley, cIh, cSP, is the loss control senior living industry lead, risk management services, for the Fireman’s Fund Insurance company. reach him at robert.higley@ffic.com or 951/371-2006.