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Mitigating the Risk of Personal Aides in Continuing Care Communities

by admin on September 28, 2021 No comments

continuing care community law personal aid liability risk managementMore and more seniors are finding safety and security in continuing care communities (CCCs) throughout the country.  And, while they want the increased safety and security, they do not want to lose their independence.  Aging in place and maintaining that independence often involves the use of various personal service providers (PSPs) who come onto the CCC campus and create new risks.  PSPs go by many names and perform many functions, including housekeeping, meal preparation, assistance with activities of daily living (bathing, grooming, eating), grocery shopping, dog walking, and driving the resident to various offsite appointments.

Each time an outside PSP is allowed admittance to the CCC property, risk is created.  That risk comes in many forms, including:

  • Injury to other residents
  • Injury to the resident that hired the PSP
  • Injury to the PSP caused by other residents
  • Slip, trip and fall (or other general liability claims) by the PSP against the CCC
  • Damage to property

What can a CCC do to mitigate the inherent risks?  A well-developed program of expectations and accountabilities is a great foundation in this situation.  Here are some simple steps that every CCC can take to reduce the risks when PSPs are serving its residents.

  1. Review existing resident move-in documents and resident agreements, evaluating if changes are required.
  2. Develop a policy and procedure, including a PSP Handbook.
  3. For each PSP, maintain a completed checklist including, at a minimum, the following:
    1. PSP Application.
    2. Confirmation of background screening.
    3. Copy of license, if applicable.
    4. Signed acknowledgment for receipt of handbook.
    5. PSP Resident Acknowledgment and Indemnification Agreement.

Initial steps.  First and foremost, the CCC’s relationship with its residents is governed by each resident’s agreement and any move-in documents that accompanied that agreement.  A careful review of those will determine whether the necessary changes can be made without a revision to the resident agreement. Assuming the resident agreement provides sufficient flexibility, the CCC can develop an appropriate policy and procedures.  The policy and any procedures associated with resident use of PSPs will lay a foundation for the remainder of the work to be completed when implementing a PSP risk mitigation program.

If your CCC does not already have a program of expectations and accountabilities for PSPs serving residents on its property, implementation of one may require a transition period, particularly if the CCC’s current move-in documents and resident contracts do not allow for implementation of such a program.  And, even where those documents allow such changes, residents with established PSP relationships will want to maintain those despite all of the additional requirements.  Effective communication, transparency and education of existing residents on the importance of various new requirements will be critical to assuring compliance and providing for the safety and security of your residents moving forward.

Communicating that program to new residents and PSPs is equally important.  Once the program is established, the CCC should provide written information to all new residents when they move in as to their obligations with respect to employing a PSP directly or through an agency, the relative pros and cons of each option, and the requirement to adhere to the CCC’s PSP policy and procedures.  To assure effective communication of expectations, the CCC should develop a PSP handbook provided to each resident and PSP.  The PSP should be required to acknowledge receipt and understanding of the CCC’s expectations.

“Credentialing” the PSP.  To mitigate risk and provide the safety and security your residents are seeking, a CCC can establish a simple credentialing process that requires all PSPs to complete a background check that meets certain requirements.  The CCC can offer the services of a third party to perform those background checks (at the resident’s expense) if the resident intends to contract directly with a PSP (i.e., no agency is involved) or require the agency employing the PSP to provide evidence of a satisfactory background check.  This should be completed prior to allowing a PSP to access the CCC property (and in the case of existing PSPs, as a condition of continued access).  Written confirmation that the background screening was completed and raised no red flags is essential to a successful program.

To assist residents further, the CCC can maintain a list of agencies from which the residents may choose their own PSP.  The CCC should explain in its move-in information provided to all residents the considerations when contracting/employing a PSP directly versus using an agency.  Tax implications, background checks, and insurance are only a few of the issues that should be addressed.  Most seniors are not aware of the need to withhold and pay taxes in such a situation.  They are not likely to be thinking about insurance coverage maintained by the PSP.

Other issues.  While the above provides a general framework for mitigating the risks of having PSPs on the CCC’s property, consideration of potential scenarios can inform and improve on those processes as they are developed.  Here are a few scenarios to consider:

  • What is your policy about pets on the premises? Typically resident pets are allowed.  But, what if the PSP wants to bring his/her own pet on the premises?  In the scenario where a PSP is walking her own dog on the property and the dog startles and intimidates a frail, elderly resident who then falls and breaks his hip, will your PSP program if properly implemented mitigate the risk?  In this case, the CCC should evaluate its pet policy.  While resident pets are allowed, the CCC may choose to prohibit a PSP from bringing his/her own pets on the property.  When the PSP acknowledges and agrees to the specific limitations of the access granted by the CCC, this should be one of the prohibited activities.  Additionally, the indemnification by the PSP should cover any liability created by the PSP’s actions.
  • Do you require PSPs to have insurance for injuries while on the premises? For injuries while performing work for the resident (think worker’s compensation)?  Requiring each PSP to have his/her own insurance and further requiring the PSP to indemnify the CCC in the event of injury may mitigate this risk.  Regardless of whether the PSP is employed directly by the resident or through an agency, require copies of certificates of insurance with the CCC listed as an additional insured.
  • Have all PSPs serving your residents completed a background screening? PSPs enjoy a unique position of trust with the residents they serve.  Seniors may be vulnerable to theft or other criminal conduct within their homes.  Moreover, PSPs have access throughout the community to other seniors on which they may prey if they are criminally inclined.  As a CCC, if you do nothing else, implement a mandatory background screening for all PSPs as a condition of access and entrance to the CCC property.

If you are interested in learning more about how to implement better controls around the PSPs on your campus and providing a safer and more secure community for your residents, please contact me.

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