Long term care provider education on managing care for the challenging resident

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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 COMP
ACTIONS 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

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

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

14. 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.