The presence of third-party workers creates special risks for assisted living providers, including potential regulatory and civil liability. They also pose numerous practical problems. For example, can a provider be held liable in a lawsuit if third-party care is inadequate? Can the community be cited on a survey for inadequate supervision of private-duty personnel? An attorney with expertise in long-term care weighs in.
Examining State Law
The first issue in developing appropriate policies and
procedures is to understand applicable state laws. Do residents have
the right to hire outside caregivers? And if so, what is the extent of
that right?
Some states prohibit providers from imposing any requirements
or limitations regarding residents’ use of private-duty aides or the
aides’ conduct. Others allow residents to employ outside personnel only
if the service is not offered by the assisted living provider (for
example, a “companion”). State laws regarding the scope of the
provider’s responsibility also vary greatly. Some state licensing
agencies insist that the provider is responsible for all care given in
the building, even when the caregiver has been employed directly by the
resident. Both the scope of residents’ rights and the extent of the
provider’s responsibility are often developed through state licensing
agency interpretation. Therefore, in addition to reading the
regulations, consulting with state officials is a good idea.
In states where residents do not have the explicit right to
use private-duty caregivers and the licensing agency’s view is that the
community is responsible for all care given in the building, it is
probably prudent simply to prohibit use of such caregivers. In most
states, however, providers will need to find a way to honor the
resident’s right to employ private-duty caregivers and to reject any
implication that the provider is responsible for the quality of care,
while enforcing reasonable rules regarding behavior. Well-defined
policies and good communication with residents and families are
essential.
Establishing Policies
In developing policies, it is important to think through the
implications of any level of oversight that may be promised or
required. For example, if the provider states that private-duty
caregivers will participate in an orientation session prior to
beginning work, then that orientation must be clearly defined.
Similarly, if private-duty caregivers are monitored or supervised, what
is the extent of that system? If the provider is to be notified when
the caregiver doesn’t show up, what is the extent of the provider’s
responsibility for providing care during that absence?
Some of the issues that should be addressed in such policies
include:
- Procedures for signing in and out of the
community, using name tags, wearing appropriate clothing, smoking
prohibitions or limitations, and parking. - Fire
safety and other emergency training, including calls to 911 and when to
call for staff assistance. - Limitations on the
caregiver’s ability to “roam the hallways,” use of common areas or
staff dining rooms or lounges, and access to laundry facilities. - Responsibility for criminal background checks;
review of sex offender Web sites and background checks,
CNA registry checks, health screenings, and immigration/citizenship
status verification. - The community’s policy if
the caregiver is absent— who should be notified and how a replacement
can be obtained. - The circumstances under which
the caregiver will be asked to leave the community temporarily or
permanently (for example, suspected or actual abuse, theft, etc.). - Whether the provider will verify the caregiver’s
qualifications to perform duties and/or provide training.
Policies and procedures should clearly state the extent to
which the provider does or does not assume responsibility. Unless state
law makes the provider responsible to some extent for care provided,
the community will want to state unequivocally that it does not assume
such responsibility and that its rules are designed solely to assure
the safety and well-being of all residents.
Specifying Responsibilities
Good communication with residents and families is
essential—clear expectations are the best defense. Residents and
families need to understand that, unless the caregiver is employed by
and hired through an agency, the resident or family is responsible for
paying FICA, workers’ and unemployment compensation, withholding taxes,
and similar items.
If the community does not conduct background, registry,
immigration, or similar checks, the resident and family need to know
that these items are their responsibility. They also need to understand
different levels of training and that a “companion” probably has not
been trained to assist with ambulation, bathing, or other ADLs. The
residency agreement should make clear that the resident is responsible
for any property damage caused by the private-duty caregiver, and a
reminder about obtaining liability insurance is appropriate. Some
providers require that residents sign a separate indemnification
agreement.
A letter to residents and families who retain private-duty
caregivers that notes their responsibilities, together with a copy or
summary of the provider’s policies, is advisable. The provider also
should develop rules or a code of conduct for private-duty personnel
and require caregivers to sign it before beginning work.
Specifically delineating the extent to which the provider does
or does not assume responsibility, plus clear communication about rules
and expectations with residents, families, and private-duty caregivers,
will help providers limit their potential liability.
Martha
Everett Meng is a partner with Murtha Cullina LLP. Meng, who
specializes in representing long-term care providers, is based in New
Haven, CT.
