Care Agency Liability Exposure and How to Mitigate It

2020 was a disruptive year, bringing many simmering social issues to a boil. With the Covid-19 pandemic as a catalyst, many topics sprang to the forefront, gracing newspaper covers and dominating the national and global conversation. As the pandemic progressed one of the major issues that needed to be addressed became abundantly clear – the population aging and the ability of states and communities to properly care for their older citizens. 

In order to address this issue, it is important to understand two clear trends that precede the pandemic, the first being that  the population is aging at a rate that we are not prepared for, and the second is that these older citizens prefer to age at home. The effect of these trends was present before the Covid-19 pandemic, but have been greatly exacerbated by it. 

 As there are fewer and fewer family caregivers able to take on the task of caring for an aging family member, homecare agencies are, and will continue to be the answer. We can see this clearly in the growth in Homecare Agencies this year. Synergy Homecare, one of the leading homecare providers has announced a 35% increase in new franchises in 2020 as compared to 2019. With quick growth and staffing challenges more acute than ever, homecare agency owners will find that while they will have no trouble finding new clients, ensuring they have sufficient staff to maintain quality of care they are accustomed to providing will be their greatest challenge. That is not only harmful for business, but also exposes an agency to great risk of liability. 

The liability risks associated with running a homecare agency are varied, and lawsuits brought against such institutions have ranged from allegations of abuse and negligence, privacy law and HIPPA violations, labor class action lawsuits, and claims of Medicaid and Medicare fraud. 

While these risks may seem daunting, providing aid to one of the most vulnerable populations is a rewarding and noble cause, and care agencies are needed now more than ever. That is why we have compiled a list of some potential liability risks, along with creative solutions that can help overcome the shortage in quality caregivers, enable you to meet growing demand, while upping quality of care – to safeguard your agency, and provide you with peace of mind. 

• Care plan discrepancy- Home care aides are often required to perform a variety of tasks when caring for their patients that go far beyond companionship. Aides can deal with wound care, medication dispensing, cognitive training, and a variety of other duties. Failure to follow a healthcare plan set out by the client’s primary physician, or a mistake on the part of one of the aides can expose a homecare agency to potential legal action. When commenting on a recent lawsuit that saw The Visiting Nurse Service of New York pay out a $75 million settlement, Bill Dombi, the president of the National Association for Homecare and Hospice said, “Home healthcare caregivers often face circumstances beyond their control when implementing the physician’s plan of care — such as lack of internet access or patient’s refusal to receive care on a given day — which impacts record keeping.”   While administering care will always be a challenge, there are many tools that can help stay on top of a prescribed care plan. Technological solutions such as ClearCare’s quality of care module improves outcomes and lowers hospitalizations in chronic patients by allowing aides to monitor and report a patient’s condition, all on one convenient platform. Aides use this tool to complete a list of questions about the patient’s state at the end of their shift, including mental, neurological, gastrointestinal, urinary and other indicators, and this is forwarded to the care manager for further assessment. This helps the aides stay on top of the patient’s condition, and allows information to be properly logged and stored, enabling all caretakers and relevant parties to access the patient’s information.
• Insufficient Licensing/Training of Staff – The Covid-19 pandemic has turned many markets into an “employee’s market”, and this is perhaps most true in the world of caregivers. Many agencies are hard-pressed to produce a caregiver for their clients, let alone worry about matching an aide to a patient’s specific needs and personality. The high turnover rate also makes it difficult for agencies to stay on top of licensing, and also causes them to lose out on experienced, well-trained caregivers. Even a great caregiver that has been paired with a patient for a long time can need extra training as the patient’s physical mobility deteriorates, and the caregiver’s tasks become more involved and physically tasking. If the patient’s physical condition is adversely affected, and proof of lack of training or an out of date license can be procured, the agency will likely be liable.

The best way to avoid these risks is to take a proactive approach to quality of care management. Written records of licensing and training of caregivers should be updated to technological solutions such as CareAcademy (which is also a great training platform for caregivers), or ClearCare. Yearly criminal record and background checks should be performed on all caregivers, beyond the initial checks performed at the time of hiring. 

Agencies can also utilize technological solutions such as Sensi A.I to perform automatic care assessment in the natural living environment – both for preparation of the initial care plan, as well as to adjust it as needed with any change in the senior’s needs. This can also be used to bolster the physical pop-ins that care managers perform in order to assess performance of caregivers , and can aid agencies in identifying trouble areas for caregivers by analyzing data through artificial intelligence ,and provide helpful insights when further training is needed. These solutions can help avoid situations that might otherwise be a cause for liability, and this prevention focused approach allows agency owners to spend their time expanding their business, and becoming market leaders, rather than spend their time putting out fires. 

• Failure to report abuse, fall or illness of the patient – In 2011, Ursula Nelson, a Holocaust survivor was beaten by her aide in her Queens apartment, and went on to sue Selfhelp Community Services for a million dollars. In Nelson’s case, there were several prior complaints that were not properly investigated, and were not reported to authorities. While Selfhelp Community Services were ultimately not convicted of negligent retention due to lack of evidence, this kind of suit can be highly damaging to an agency’s reputation. 

One does not have to turn to such extreme cases in order to understand the kind of risks of liability an agency takes on, and how failure to report abuse of physical changes in a patient can lead to severe consequences. 

In a homecare agency, patients are often seen solely by caregivers, with care managers finding the time to pop in for periodic visits. Agencies rely on reports provided by caregivers in order to ascertain a patient’s condition, and often falls or other illnesses and physical decline go unreported. Ultimately the agency is the one that bears the brunt of liability if these factors lead to unwanted decline of patients. 

In order to mitigate these risks, agencies need to find creative solutions that provide information beyond the reports of caregivers, as well as create an environment that encourages caregivers to report such changes. 

There are a variety of companies that have developed medical detection devices such as Medical Guardian, Lifefone and One Call alert. These devices provide information on the vitals of patient and fall detection. 

While these devices can help alert agency owners and care managers on specific incidents, in order to take a proactive approach and help prevent physical and mental decline of a patient, as well as  to detect changes in a caregiver/patient relationship, agency owners can use Sensi A.I., which serves as a 24/7 in-home virtual care agent, helping to detect, predict and prevent these occurrences, and analyzes these interactions to provide critical insights to agencies, in order to avoid instances of abuse and falls, . 

To Conclude

Caring for vulnerable populations is truly a calling, and with changing global demographics, homecare agencies will be needed now more than ever, in the post-Covid-19 world. Liability exposure can deter a potential agency owner from opening such a business, or derail years of good care and agency reputation that an experienced agency owner has built. The best defense against these risks is not a great legal team, but rather foresight and tools that prevent unwanted eventualities from occurring, and allow homecare agencies to do what they do best – provide attentive and competent care to our nation’s aging population..