Challenging Resident


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

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  • 2 types of residents: Those who have time to look at facilities and plan ahead, and those being released into a facility with as little as a few hours to plan.
    Amazing how much info is publicly available
    Either way, steps can be taken to determine a sex offender status or criminal background and to be sure resident’s needs can be met
  • Ask family to fill out when they are evaluating the facility.
    Ask discharge planner to have prospective resident fill out while still a resident in the hospital.
    Give to family at time they take the tour
  • Comparison of violence against employees in the various employment categories.
    In Health Care Categories: acts of violence primarily committed by residents against employees
  • Additional measure for registered sex offender residents or residents with criminal backgrounds
    Admission conditional on acceptance of behavior restrictions
  • For eviction for failure to comply with policies, facility must put policies in writing and include policies in admission agreement
    (a) The licensee may, upon thirty (30) days written notice to the resident, evict the resident for one or more of the following reasons:
    (2) Failure of the resident to comply with state or local law after receiving written notice of the alleged violation.
    (3) Failure of the resident to comply with general policies of the facility. Said general policies must be in writing, must be for the purpose of making it possible for residents to live together and must be made part of the admission agreement.
    (4) If, after admission, it is determined that the resident has a need not previously identified and a reappraisal has been conducted pursuant to Section 87463, and the licensee and the person who performs the reappraisal believe that the facility is not appropriate for the resident.
    (b) The licensee may, upon obtaining prior written approval from the licensing agency, evict the resident upon three (3) days written notice to quit. The licensing agency may grant approval for the eviction upon a finding of good cause. Good cause exists if the resident is engaging in behavior which is a threat to the mental and/or physical health or safety of himself or to the mental and/or physical health or safety of others in the facility.
    (c) The licensee shall, in addition to either serving thirty (30) days notice or seeking approval from the Department and service three (3) days notice on the resident, notify or mail a copy of the notice to quit to the resident's responsible person.
    (d) The licensee shall set forth in the notice to quit the reasons relied upon for the eviction with specific facts to permit determination of the date, place, witnesses, and circumstances concerning those reasons.
    (f) A written report of any eviction shall be sent to the licensing agency within five (5) days.
  • The resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility (42 C.F.R. §483.12(a)(2)(ii));
    It is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility (42 C.F.R. §483.12(a)(2)(i));
    The health of individuals would otherwise be endangered (42 C.F.R. §483.12(a)(2)(iv));
    The safety of individuals is endangered (42 C.F.R. §483.12(a)(2)(iii));
    The resident has failed, after reasonable and appropriate notice, to pay (42 C.F.R. §483.12(a)(2)(v));
    The facility ceases to operate (42 C.F.R. §483.12(a)(2)(vi)).
  • Challenging Resident

    1. 1. 1 FACING CHALLENGING RESIDENTS Laura Sitar, Esq. Darryl Ross, Esq. Wroten & Associates,
    2. 2. 2 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.
    3. 3. 3 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.
    4. 4. 4
    5. 5. 5 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
    6. 6. 6 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
    7. 7. 7 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.
    8. 8. 8 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
    9. 9. 9 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
    10. 10. 10 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
    11. 11. 11 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. 12. 12 SOURCE: Managing Behavioral Symptoms Of Residents With Dementia In The Long-Term Care Setting
    13. 13. 13SOURCE: Managing Behavioral Symptoms Of Residents With Dementia In The Long-Term Care Setting
    14. 14. 14 SOURCE: Managing Behavioral Symptoms Of Residents With Dementia In The Long-Term Care Setting
    15. 15. 15 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
    16. 16. 16 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
    17. 17. 17 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
    18. 18. 18 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
    19. 19. 19 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
    21. 21. 21 “The safety of individual in the facility is endangered by your presence”
    22. 22. 22 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
    23. 23. 23 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.