Most resident issues do not begin as legal disputes. They begin as every day operational challenges. A resident refuses services. Family members disagree about care decisions and staff are uncertain who has authority to make those decisions. A resident’s needs begin to exceed what the community anticipated at admission or what the community can accommodate. A discussion about a move to a higher level of care becomes contentious.
These operational tension points are bound to arise. What matters is how the organization prepares, navigates and responds to these issues on a consistent basis. When expectations among the parties are unclear and staff do not have consistent procedures, these issues can evolve into complaints, regulatory scrutiny or even litigation. In communities where documentation and expectations are clear and have structured processes for addressing issues, legal risk declines.
In short, the process of engaging with residents—starting with the pre-admission process—can set a facility up for success or lead to issues down the line. After nearly a decade of helping facilities navigate certain resident issues, one thing stands out: a consistent and well defined process matters.
A. Start With the Residency Agreement
The residency agreement is both a legal and operational document. A good residency agreement should clearly describe services, payment obligations, assessments, changing care needs, resident rights, transfers and termination provisions, along with any other items that are required under state and federal law. Just as importantly, the agreement should also reflect operational reality.
Problems frequently arise when marketing materials, admissions conversations and organizational practices are inconsistent with the agreement itself. For example, a member of the admission team may promise or suggest to a family that a resident can “age in place” indefinitely, while the agreement permits transfer if the resident’s needs exceed the community’s capabilities. Or, even if the admissions team does not make unrealistic suggestions or promises, residents and their families navigating the transition to senior living may bring their own preconceived notions about what to expect.
A clear residency agreement that is discussed and explained during the admission process can help set a community up for success and better positioning down the line when it comes to resident expectations. Organizations should periodically review residency agreements through an operational lens, asking whether staff can actually explain, administer and consistently implement the provisions contained in the document.
B. Verify Appropriate Decision Makers
One of the most common operational challenges involves determining who has legal authority to act on behalf of a resident. For starters, does the resident have the capacity to sign their own residency agreement or make care decisions? Even this decision can often be tricky.
Terms such as “responsible party,” “resident representative” and “emergency contact” are frequently used interchangeably, even though they often have very different legal meanings. Likewise, the existence of a legal document appointing a decisionmaker does not automatically answer every authority question—for example, a financial power of attorney may not authorize health care decisions. A health care power of attorney may be limited or not yet effective. Similarly, a guardian’s authority may be constrained by court order.
Even where legal authority documents exist, family squabbles about who has the proper authority can increase tension and lead to inconsistency in resident care. Before relying on the direction of a family member or representative, communities should assess the resident’s decision-making capacity and identify the individual with legal authority to make any decision. Ensuring your operational staff are informed and equipped to identify who has what authority will help lead to consistency when disputes arise.
C. Keep the Documentation Factual
Documentation, rather than staff testimony and memories of events, is what will usually drive the outcome in a legal dispute. When documentation is inconsistent or unclear, witness statements that differ or embellish what is in the written record can be seen as unreliable, or even worse, fabricated.
Effective documentation creates a record in real time that explains the facts. Strong documentation typically includes: observable facts, the resident’s statements and preferences; assessments that were performed; alternatives or interventions offered; the resident’s response; and notifications and follow-up actions. Documentation becomes problematic when it is overly general (e.g., “resident was aggressive towards staff”) or when it states conclusions rather than objective facts (e.g., “resident was abused”).
D. A Change in Condition Should Trigger Reassessment and Consideration of Accommodations
Resident needs evolve. Changes in cognition, mobility, supervision requirements, medication management and behavioral health can create difficult operational challenges. Changing needs should trigger a structured process that includes addressing immediate safety concerns, reassessing the resident’s needs, engaging with relevant stakeholders and decisionmakers (resident, family, physician), considering accommodations and implementing interventions. This process helps distinguish between situations that are difficult to manage, situations that may be addressed through accommodations or additional supports and situations that genuinely exceed the community’s lawful or operational capabilities.
As a resident’s needs change, providers should consider whether accommodations, modifications to existing practices or additional supports could address the concern before concluding that a move is necessary. In many cases, the issue is not whether the resident has a disability, but whether there are reasonable ways to continue serving the resident safely within the current setting. Providers should document accommodations considered, interventions attempted and the outcomes of those efforts.
E. Movement to a Higher Level of Care or Discharge Should Not Be a Surprise
The most successful transitions occur in cases where residents and their families are prepared early for the eventual decline and increase in care needs. Education from the beginning of residency as to what to expect in moving through the continuum helps set expectations for an elderly resident whose care needs are likely to increase over time. Residents and families should receive clear information regarding available options, and providers should avoid creating the impression that transition decisions are arbitrary or predetermined. Education is key in mitigating disputes when residents refuse to transition to higher care.
Proceeding to involuntary discharge should be a last ditch effort and not regularly used. Indeed, improper discharges present significant regulatory and legal risk for providers. With early expectation level setting, a strong residency agreement and good documentation, involuntary terminations can be made more seamless and defensible.
Practical Takeaways
Not all resident conflicts can be avoided. However, operators can prepare with documents and processes so that when challenges arise, the organization can demonstrate a consistent and defensible response. That approach not only reduces legal risk but also supports better resident outcomes and more effective operations.
If you have questions about this topic or would like additional information, please contact:
- Ellie Tucker at (314) 228-7508 or etucker@hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
