Claims and Oversight

Further, referencing the Marsh claims report, senior living claims have increased 2.4% on average and SNF claims are up 3.5%.  Providers are facing new litigation theories, including, but not limited to, independent living cases becoming similar to AL/SNF claims, consumer protection matters, breach of contract, class actions, and discrimination claims, including FHA claims and tester litigation.  A panel at DRI’s August seminar also noted that plaintiffs’ counsel increasingly involves the media in cases, including local news and social platforms, in an effort to “litigate in the media.”

The panel also reviewed the increase in regulatory oversight post pandemic.  It was noted that providers must be aware of regulatory compliance related to technology use (for example Alexa, fall detection tools) and statutory compliance in relation to privacy laws.  Technology vendors must be aware of and comply with the different state laws.  Residents or family must understand and consent to any data that is being collected and understand how the data will be used, who has access to such data, and retention policies.

Mitigation Strategies

Remedial measures are being instituted including Plan of Correction (POC), policies, practices, and training.  The panel discussed the use of arbitration agreements in minimizing claims, and the importance of training internal staff on the execution of arbitration and resident agreements.  Today’s seniors have different expectations and place a high value on customer service.  It is imperative that senior living providers clearly establish expectations with both the resident and the family.

Residents and families must understand the appropriateness and differences between independent living, assisted living, and skilled nursing communities.  Resident care needs must be assessed at admission and regularly thereafter to ensure appropriate services, and communications with the family must be clearly documented in this regard.  A big component of this assessment is identifying fall risks and interventions.  Residents and families must understand that not all falls are preventable, but mechanisms are in place to minimize risk.

Other mitigation strategies emphasized by the panel included staff training, proper processes, medical record documentation, and reporting.  If a case does go to trial, it is important that counsel educate jurors on the unique issues associated with senior communities and residents.

Partnering with Excelas

With the heavy focus on medical record documentation to support or refute a claim, experienced health information management, allied health, and nursing professionals can assist senior housing providers and their counsel with:

• requesting and organizing medical records and other relevant materials,
• evaluating the quality and completeness of the medical records,
• assessing and integrating relevant policies and procedures,
• preparing gap analyses, chronologies, and case summaries, and
• delivering the medical records and medical analyses in an interactive database to support decision-making.

Shifting medical record management functions allows claims specialists and counsel to focus on case strategy and resolution, including early case valuation.  Contact Excelas to discuss your needs and how our approach to medical record management and analysis can assist you in managing claims and litigation in senior housing.