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FACING CHALLENGING RESIDENTS

Laura Sitar, Esq. Darryl Ross, Esq.

Wroten & Associates, lsitar@wrotenlaw.com

dross@wrotenlaw.com

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FACILITY POLICIES AND PROCEDURES

Necessary to establish consistent standards, rules, and regulations.

Policies and procedures are not the law. They are guidelines to help your facility approach situations

consistently however, they are not a substitute for your professional judgment in a specific situation.

Existence of policies can and will be used against your facility.

Disclaimer: Policies and procedures are not intended to be a substitute for

independent judgment which must be applied in determining the appropriate and necessary action or care to be provided.

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SCREEN PROSPECTIVE RESIDENTS

Investigate potential residents before admitting them to your facility: Talk to Discharge Planner Talk to the resident’s family about any criminal background and related

issues and concerns Contact other facilities Background check:

Criminal History Sex offender registries Public Record search Google search

Questionnaire Include questions about criminal background and sex offender status on

Prospective Resident Questionnaire.

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ARE YOU INVITING PROBLEMS?

Assess Resident: Level of functioning Level of support and intervention needed Current physical or psychological symptoms requiring monitoring,

support or other intervention by the assisted living program Presence of disruptive behaviors, or behaviors which present a risk

to the health and safety of the resident or others Social factors, including family and personal relationships, spiritual

status and needs, and ability to participate in group activities

Refuse to admit

Tailor terms of admission agreement: Month to month Behavior contract

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DUTY TO PROTECT EMPLOYEES

Liability for harassment under Title VII of the Civil Rights Act and similar state law claims

Liability for common law claims such as assault/battery

Liability for workers compensation claims

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STATUTORY REQUIREMENTS

Title VII of the of Civil Rights Act of 1964

An Employer is liable for the harassment committed by a nonemployee if the employer: Knew or should have known of the conduct; and Ratifies or acquiesces in the harassment by not taking immediate or

corrective action

Harassment may be sexual, racial, ethnic or based on any

category protected by state or federal law.

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COMMON LAW WORKER’S COMPACTIONS CLAIMS

Assault and Battery Negligence in admitting

resident Negligence in supervision

of resident Negligent or Intentional

Infliction of Emotional Distress

Physical Injury Emotional Distress

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INCIDENT RATES FOR NON-FATAL ASSAULTS AND VIOLENT ACTS AGAINST EMPLOYEES

0

5

10

15

20

25

30

Private Sector

Health Services Overall

Social Services

Nursing & Personal Care

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BEHAVIOR CONTRACTS

Adjust to fit specific resident needs

Examples for sex offenders: Prohibit female staff from working with resident

Or require male nurse to be present as well Have staff alert administration if a child (under age 18) enters resident’s room Refrain from any inappropriate contact with other residents

Examples for other criminal background: For violence-prone residents, restriction on physical contact with staff or other residents. Respecting the property of other residents and the facility

Consequences for violation of contract

Probation Termination of services

Value Protects residents Protects employees Protects facility if and when a claim or litigation arises

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SEXUALLY AGGRESSIVE RESIDENTS

Complete risk assessment for potential injury to resident, staff, or other residents.

Assessment team must document whether the resident demonstrates abnormal sexual behavior towards him/herself or towards others and whether the actions involve verbal or physical activities.

Residents at high risk for harming others, e.g., sexual behavior with physical aggression or harm, should be transferred to an inpatient geriatric psychiatry unit for stabilization.

Individuals who demonstrate bothersome but non-harmful behaviors can be assessed on the unit.

The treatment team must determine whether the behavior is true, sexually driven activity or pseudo-sexual behavior masquerading as sexual aggression

12 SOURCE: Managing Behavioral Symptoms Of Residents With Dementia In The Long-Term Care Setting

13 SOURCE: Managing Behavioral Symptoms Of Residents With Dementia In The Long-Term Care Setting

14 SOURCE: Managing Behavioral Symptoms Of Residents With Dementia In The Long-Term Care Setting

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COST TO FACILITY

Failure to recognize the challenging resident may: Create morale problems for residents, families and

employees. Result in unwanted turnover Impact quality of care Impact the bottom line

Increased training costs Reputation

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WHAT'S AN EMPLOYER TO DO?

Establish a strong a policy prohibiting harassment “No applicant, employee or contractor of the company is

expected to tolerate any conduct prohibited by this harassment policy from anyone at work, or engaged in the company business, including co-workers, supervisors, vendors, residents

or resident’s families.”

Establish a formal employee complaint procedure and

regularly encourage employees to use it

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INVESTIGATE AND RESPOND

Must have evidence that all alleged violations are thoroughly investigated.

Must prevent further potential abuse while the investigation is in progress.

Reports: Must be legible. Sentences must be complete. Include dates. Incorporate direct "quotations" and non-verbal responses from the

resident, family, visitor or employee. Document the actions taken. Document the individuals notified about concerns and issues and their

response. Document all telephone calls and be specific.

Plan of Action

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INVESTIGATE AND RESPOND Document the refusal for interventions, assistance or insubordination.

Chart often enough to tell the story.

When continuing a note over 2 pages, sign the bottom of the first page and at the top of the next page write the date, time and "continued from previous page." Make certain all pages have the resident's name.

Train employees how to avoid problems with challenging residents and how to handle problems if they occur.

Adherence to policies must be: Timely Accurate Complete

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WHEN REMEDIAL ACTION FAILS…SHOULD YOU EVICT?

3 Day Notice Failure to adhere to terms of Behavior Contract HUD facility discovers individual is a sex offender Facility cannot provide care to meet resident’s needs Resident is engaging in behavior which is a threat to the mental and/or physical

health or safety of himself or others in the facility Must obtaining licensing agencies must obtain prior written approval Start documenting bad behavior and attempt to conform

30 Day Notice Failure to comply with local or state law – after written notice is given Failure of resident to comply with published facility policies

Much easier to deny admission

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GRIEVANCE PROCEDURE

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“The safety of individual in the facility is endangered by your presence”

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ATTORNEY INVESTIGATIONS

Privileged

Preserves testimony of witnesses

Assures proper documents are collected and safeguarded.

Assist with media inquiries.

Provides reassurance to staff

Identify areas where in-servicing would be beneficial

Evaluate liability exposure

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SUMMARY

Review existing policies: Develop new resident and employee policies as needed Consider use of behavior contracts for residents Consider in-service training for employees related to challenging residents.

Make sure new policies are written in clear and understandable language.

Explain to staff why new policies being implemented.

Follow protocol identified in policy.

Document communications with employees, residents and families.

Document actions taken - Tiered response – warning through transfer

Consider having counsel investigate to protect and preserve information and documents.