As a way of illustrating how unrealistic expectations can be set in the senior living community, Joel Goldman, a partner with the Hanson Bridgett law firm in Walnut Creek, California, shares a hypothetical dialogue that occurs all too frequently in some form between providers and adult children concerned about a parent.
Provider: “Why are you thinking of moving your mom to our community?”
Adult child: “Well, my mom’s had a couple of falls at home, and we’re really worried about it.”
Provider: “Let me tell you about our fall prevention program.”
Goldman said when he gives presentations to senior living executives and shares that sample conversation, he inevitably hears groans from the audience. The reason is a single but loaded word: prevention.
“The use of the word prevention is creating a false expectation,” Goldman said. “We cannot prevent falls. And if we are leading the consumer to think that we can, we’re creating a completely unrealistic expectation. And when you create unrealistic expectations, there are going to be consequences. People are going to be disappointed. And they’re going to come after you – whether it’s regulatory complaints, complaints to the executive director or going out and hiring a personal injury attorney, there are going to be ramifications.”
Goldman said the No. 1 reason that assisted living providers are sued today is due to residents getting injured in a fall. In addition, he believes falls also are the most common reason that providers are cited for licensing deficiencies.
“I’ve found that there’s a tendency for regulators to sort of reverse engineer when there’s a fall with injury,” said Goldman, a founding member of the California Assisted Living Association and a member of its board of directors since its inception in 1994. “They start with the presumption that the provider must have done something wrong, and then they’ll go back and look to see where they can find fault instead of asking, ‘Did this fall occur because of the negligence of the licensee?’ It’s more, ‘Well, the resident fell and got hurt. There must have been some fault by the licensee.’”
However, falls cannot be eliminated even by the most conscientious, diligent and sophisticated providers, Goldman said. Against that backdrop, he said, it is beyond time to create realistic expectations in senior living with respect to care in general and to falls in particular.
“It’s such a prevalent issue,” Goldman said. “And such a very important one.”
‘Just the facts, ma’am’
The key is making it clear to potential residents and their families that falls realistically could occur. In the community, the resident will be participating in activities and getting exercise and moving about – falls simply cannot be “prevented.” Instead of pointing to a “fall prevention program,” providers can detail a “fall reduction program” that specifies efforts to limit falls while still explaining that falls can occur no matter how effective the program is, Goldman said.
Even within the context of being realistic about falls, Goldman emphasized that providers should ensure they are clear about the specifics of their reduction and response efforts. For instance, some providers might tout their emergency call system and that personnel are available 24 hours a day. However, they must be careful not to lead residents and their families to believe that those features are more extensive and sophisticated than they are. A pull cord or push button could be out of reach of a fallen resident and the response from staff might be fast but not as close to instantaneous that a resident or family member is led to believe.
Goldman said the top reason that people move into assisted living is because they are concerned – or their loved one is concerned – about their safety and security. That can lead providers down a dangerous path. Goldman once reviewed a resident handbook that was incorporated into a provider’s admission agreement that stated, “We provide an environment that ensures your safety, security, and peace of mind.” No lawyer who represents assisted living communities ever wants to see the word “ensure,” especially in language that is part of an admission agreement, Goldman said.
“You have this tension with providers because on the one hand they want to talk about safety, security and peace of mind, because that’s what they’re selling and that’s the big motivation for people moving in. And conversely, the lawyers don’t want you to go near there,” Goldman said.
With that in mind, Goldman frequently evokes a catch phrase from the old “Dragnet” TV show: “Just the facts, ma’am.” That means rather than broadly promising “safety, security and peace of mind,” Goldman urges providers to focus on the specific offerings focused on those characteristics, such as the availability of nursing staff or the presence of specific security measures. Or, in the case of falls, reduction measures such as exercise programs and a pharmacist reviewing medications to identify potential adverse drug interactions.
“Those are the kinds of statements that are true and factual that the marketing folks should be focusing on and not speaking in generalities, such as, ‘Oh, your mom will be safe here,” Goldman said.
Goldman said his firm has language in its model assisted living admission agreement designed to be clear and fact-based regarding falls.
“It states, ‘We are licensed as a residential care facility for the elderly. As such, we are not permitted to use restraints on our residents, nor is the use of restraints consistent with our philosophy. We encourage residents to participate in physical activities to the extent of their capabilities. As a result, falls and other injuries will occur. If you’re not comfortable with this environment, we recommend that you consider a higher level of care,’” Goldman said.
After the fall …
Once a fall happens, providers need to emphasize communication, Goldman said.
“There needs to be communication with the resident and with the resident’s representative,” Goldman said. “As long as the resident has the mental capacity to participate in the discussion, the resident should be included. Too often, I see that component ignored – where we talk to the doctor, we talk to the adult child, but we don’t include the resident in those conversations. And even someone with a dementia diagnosis, depending on their level of functioning, should be included in those conversations.”
State reporting laws vary, but communication with the licensing agency might be required after a fall. In California, for instance, Goldman said a fall with injury requires submission of an incident report to the Department of Social Services. In addition, the provider should attempt a root cause analysis after every fall.
“Basically, why did the fall occur?” Goldman said. “Some cases we don’t know, but in many cases we do. And if we can figure out why the fall occurred, we can make adjustments to reduce the risk of falling.”
For instance, Goldman had a client who used root cause analysis to identify that its residents were falling while wearing slippers at night in their apartments. By simply changing footwear, they were able to achieve a significant reduction in the number of falls.
“Doing that root cause analysis can be really helpful,” Goldman said. “In California, our licensing agency really urges providers to do that root cause analysis. And then after each fall, there should be some adjustment in the residents’ care plan to try to mitigate the risk. In some cases, there may be no reason to change the care plan.”
Even when falls could not have been prevented, Goldman urged providers to make detailed notes about them for future reference. A resident knocked over by a rushing visitor turning a corner would be difficult to prevent, Goldman said, but if that resident fell again and the previous fall had no noted explanation for it then the licensing representatives would wonder if the provider missed a chance to make an adjustment the first time.
Paying lip service to fall reduction can be harmful to residents and create legal risks for providers, Goldman said. He tells of a resident in an assisted living facility who had approximately 20 separate falls but after each fall the provider only made the same identical notation that essentially said to implement the fall plan but never gave any specifics. When the resident suffered a fall that caused serious injury, the licensing agency reviewed the case, found a provider who was going through the motions, and was “livid,” ultimately filing a license revocation action based solely on that one resident’s history with the community, Goldman said.
Technology’s growing role and accompanying risks
Goldman said the senior living market has access to some useful technological innovations, though again providers should be realistic and cautious in how they employ them and present them to residents and their families. Bed alarms for residents with mobility issues, for instance, are unlikely to prevent many falls, though they might be able to help response times to falls, Goldman said.
“It may give family members an unrealistic expectation,” Goldman said. “They might think, ‘OK, that alarm’s going to go off, and someone’s going to reach to my mother’s room or my dad’s room and get them before they try to get out of bed on their own.’ And it often doesn’t happen like that as a practical matter.”
Goldman points to SafelyYou, which uses artificial intelligence to monitor video cameras in the rooms of memory care residents, as an example of the emerging technology that is helping in the fall reduction field. Reviewing video after falls can be invaluable to identify the cause of falls, as well as if there is potential for a head injury, particularly for memory care residents who might not be able to articulate what happened. Video also can identify times when a fall didn’t actually occur – for instance, a memory care resident may have decided to lie down on the floor.
Even as new technologies can help, “we have to be careful,” Goldman said. As with the rest of the language surrounding falls, care and clarity is crucial.
Technology solutions “are not a panacea, they’re not going to prevent all falls or anything close to that,” Goldman said. “I think it’s great for providers from a marketing perspective to brag about the innovations that they have, but at the same time they have to walk that tightrope between talking about all the good stuff you’re doing without creating the impression that falls are somehow miraculously going to stop happening. Because we know there are not.”
