As resident acuity levels increase, assisted living providers must keep close tabs on the services they provide to steer clear of litigious situations.

Assisted living isn’t what it used to be—and that’s not a bad thing—but it does mean that providers must be more diligent about how they deliver their scope of services. Residents’ rising acuity levels, including increases in their co-morbidities, chronic diseases, and behavioral challenges, have caused the once universally accepted social model of residential care to evolve into a model that must provide higher levels of specialized clinical care. With this evolution comes an increased responsibility on the part of assisted living providers to meet the medical and clinical needs of their residents. However, it also exposes them to more legal risk if they are not strategic and detail-oriented about the services they provide and how they provide those services to residents.

Assisted living communities, of course, are regulated in every state. But whatever the regulations require, it’s clear that when armed with strategies to combat negative resident outcomes associated with common adverse clinical events, assisted living providers can take proactive, rather than a reactive, approaches to resident care—and this will help them minimize litigious situations. In that vein, there are two clinical issues assisted living communities must pay close attention to in particular—fall prevention and medication management.

Double-Duty Documentation

Whoever said, “nothing is certain but death and taxes,” didn’t get it quite right. The quote should be, “nothing is certain but death, taxes, and the fact the residents will fall.”

It is of course important to develop a system for preventing resident falls, but when it comes to staying out of litigious situations, it is equally as important to thoroughly document detailed assessments about why the resident fell or has fallen multiple times. Is the resident falling on the way to the bathroom during the night shift? Is the resident falling routinely at sunset? Is the resident falling near the kitchen in the afternoons? Does the resident appear to be over-medicated? This kind of analysis not only helps hone appropriate resident-focused care, it also serves as verification that the assisted living community took the appropriate steps to care for the resident and remedy any risky situations.

When it comes to medication management, a host of clinical issues center around administration errors, delegation and training, medication review (especially psychotropic medication), and a resident’s right to refuse medication. Community policies should be clear on medication management and the resident’s right to refuse. A physician’s order for every medication should be readily available and include all the required information regarding dosing and administration. Medication administration training should be thorough and in accordance with the state’s regulatory guidelines.

Providers also should consider random community-level audits of medication administration records. This will help expose medication documentation shortcomings, such as medication documentation errors or omissions and inaccurate or inappropriate documentation of medication administration holds or refusals.

Nurses in Charge

With more and more nurses being hired into assisted living companies as managers, clinicians, and supervisors, another emerging care issue is nurse delegation. These issues usually center around medication administration, but can also impact resident care where a particular treatment is delegated. Nurse delegation is generally a creature of state statute and regulation, but key to its successful implementation are an understanding by both the nurse and the delegated caregiver of what the delegated task is, an appropriate level of supervision and monitoring, and documentation of the delegated task.

Again, thorough and detailed documentation is critical to not only providing appropriate care, it also is important as it pertains to regulatory and legal issues. And here the old nurse’s adage rings true and that is, “if it’s not documented, it’s not done.” Detailed documentation preserves the record, serves as a communication tool, and can insulate against regulatory and civil legal liability.

In the current model of assisted living, identifying key clinical issues affecting residents and taking proactive approaches to those issues not only enhances the quality of care and quality of life for residents, it gives providers the ability to better meet the needs of those residents while reducing their potential regulatory and civil liability.

Robert J. Lightfoot II is an attorney and shareholder at the law firm of Murphy Desmond SC in Madison, Wisconsin. He is also a registered nurse. Reach him at rlightfoot@murphydesmond.com.

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