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"Minimizing Provider Liability..." Chat Transcript
Below is an edited transcript of the January 14, 2003 Quality Mall Chat session on "Minimizing Provider Liability While Supporting Individual Choice".
The discussion was led by Michael Komoll, National Counsel Human Services Program, Irwin Siegel Agency, Inc.
and John Rose, Vice President of Risk Management, Irwin Siegel Agency, Inc.
The transcript has been edited for readability.
You can view/post additional questions or comments on this topic on our Discussion Board.
<Moderator> Good afternoon and welcome to the Quality Mall chat session
on "Minimizing Provider Liability While Supporting Individual Choice". Our format
today will be a moderated discussion between John Rose and Michael Komoll. Questions
and comments from audience members will be screened by the moderator and Angela
Amado, (Quality Mall staff members at the Institute on Community Integration,
University of Minnesota) and posted for a response from John and Michael as time
and subject matter allow.
<Moderator> Because this is a moderated chat session, you will only see the names of the special guests (John and Michael) and the moderators listed on the right hand side of your screen.
<Moderator> Unfortunately, John Rose has been held up by a late arriving flight, so, until he joins us, Michael will be flying solo. Michael, thanks for joining us. Would you care to share any opening thoughts on our topic to help frame our discussion today?
<Michael Komoll> Let me get the legal mumbo jumbo out of the way.
I hope we have a great exchange of ideas. However, nothing said should be construed
as formal legal advice on a particular case, or addressing a particular problem.
If you would like to discuss something in a more concrete fashion, please give
me a call. Also, the opinions I am expressing are mine alone. My opinions are
not always the official policy of CNA Insurance. (although I think they should
be).
<Michael Komoll> I'm very pleased that we are discussing these topics, and that I have been asked to participate. Liability issues can be a real brake on the values of client choice and independence. Everyone fears being brought into a lawsuit, and testifying in court. However, there are things to do to stay out of the courtroom, or achieve success if it cannot be avoided. Changing the perceptions among the Judiciary and the public is perhaps our greatest challenge. I'm sure we'll get into many of these strategies.
<Michael Komoll> My first message is to take responsibility for your litigation. You should be talking to your lawyers, and making sure that they understand you, and your mission. You should also demand that they make you comfortable with the legal process. Do not let a case linger for a year before you get involved!!
<Angela Amado> Okay, great. Are there examples of recent court cases on these issues, and lessons that can be learned from these cases?
<Michael Komoll> I am amazed at the number of cases I see involving
Sexual abuse, or consent issues. Fully one half of my file load consists of these
kinds of files. My number one observation is that people need to do assessments
regarding consent, and communicate well with families. The cases I see involve
client on client incidents as well as employee/client cases. Quite often no assessments
are to be seen regarding ability to offer informed consent, or even the service
a consumer may have received on these issues.
<Angela Amado> We had received several questions about this -- how
responsibility can be shared, and how to work with guardians -- here's an example
of a question: "How do we get others to share in the liability issues/questions.
Parents, family members, County staff, State Licensors, Advocates are quick to
point fingers at the provider, even though the Provider may be implementing the
plan for the individual. When something bad happens, then the plan is forgotten
and the Provider is to blame. How do we SHARE responsibility?"
<Michael Komoll> This question is near and dear to John Rose' heart.
The most obvious target for shared liability is the state or local government.
However, most states immunize themselves from liability, or make it very very
difficult to sue. However, there are a few things you can do.
* If they point, point back. Defense counsel should consider demonstrating the
provider is a small part of the decision making process. A BIG chart should identify
all those involved, and what their input was. One benefit to NOT having them in
a trial is the "empty chair" defense. They will not be present to rebut your contentions.
* Another strategy- Lead a jury through the whole assessment and planning process.
Show who participated, when, and what they had to say.
* Find friends. You are correct that most often people point fingers. However,
in almost every case, it is possible to find friends in the parties you mention.
Find them, and have them testify. It can be most powerful coming from an independent
witness. If you are involved in litigation, make sure your defense lawyer knows
how many are involved in the decision process. That should be your duty. Work
with your lawyer to prove how many people signed off on the risk, and now do not
want to accept their responsibility.
<Angela Amado> Do the amount of assessment done, and support about informed consent -- make a difference in the final outcome of cases?
<Michael Komoll> The amount of assessment
done makes all the difference. A big problem is when nothing
is done, or at least put to paper. If your thoughts are
reasonable, and you record them, we can almost always
defend.
<Lynne Megan>Thanks all, the first question
was mine. Very good answer. Much appreciated Mike. John
Rose will know my question - we've talked about it a lot.
Thanks again, Lynne Megan
<Stacie> From your experience what are some
key areas that an assessment should address?
<Mike Komoll> We already discussed consent issues. That is the big
one. However, another area I see involves medical issues. Too often DSP's appear
confused about what to do when a client gets sick, because special physical needs
have not been identified, and communicated. That is a big key.
<jaNeal Rockwell> We have a woman who had been taking a bath for 20 yrs. on her own. She and her team agreed to this, including guardians. Staff checked in on her every 5 minutes. One day she almost drowned and now we seem to have a problem.
<Mike Komoll> That is a common story, you
may, or may not be glad to hear. If you assessed the needs
of the consumer, communicated risks, and executed the
IPP properly in doing checks, it looks like you can defend.
What you can't do is stay out of litigation. People can
sue for anything. I am amazed at how quickly people can
drown, or aspirate. I encourage you to contact your local
attorney, and set out how you think you followed the plan
and did nothing wrong. You are being sued for doing what
the law requires: respecting choice.
<Lynne Megan> MN has Risk Management Plans - developed and authorized
by each person's team - problem ends up when something happens to occur that wasn't
on the PLAN!! Like the unsupervised bath - once okay - then something bad happens
- oops should not have done that!!
<Angela Amado> One of the questions we had received was something
you mentioned -- state responsibility. Here is the question:
"What should a provider/state agency's responsibility be to ensure the health
and welfare of an individual when an individual makes a choice that involves a
risk? How is quality assured by a State in a program that permits an individual
to make choices?"
<Michael Komoll> The state has it too easy. They often put providers
in a bind with challenging clients, and then point fingers when things go wrong.
I think the State Agency and Provider must act appropriately in assessing a consumer
for a particular type of service, or a particular agency. This is all very discretionary,
so it is important to confirm this thoughtful decision making process in writing.
Like a math test. Write down your reasoning, and take credit for your work. Once
the assessment and planning are completed, then the consumer's level of independence
in decision making should be a little clearer. Consumer's who have fewer decision
making skills, may still be able to effectively make choices, and have the dignity
that comes along with it, if they can do so in the context of an involved support
group. Others may not need it. Under almost any scenario, consumers of all levels
of functioning make decisions involving risk every day. The providers must make
sure they know the consumer, and support him/her appropriately. Of course, if
a provider is aware a consumer is making a choice that puts himself/herself at
imminent risk, then some type of intervention is appropriate, and possibly required
from a legal perspective
<Stacie> Could you define "imminent risk?"
<Michael Komoll> It's whatever a judge says
it is. Seriously, what I am referring to is a situation
in which you are aware of a particular danger likely to
befall a particular person at a specific time.
<Angela Amado> We had received several questions
about employer of record, support service brokerages,
and contracted support models -- can you provide a different
benefit set of benefits to employees who do Employer of
Record services? What suggestions are there for providers'
issues around liability in a contracted support model
-- where the support is provided by a contracted work
force that is not directly employed by the provider agency?
<Michael Komoll> This is a huge issue, and I'm very pleased it has
been raised. I recently had a case involving a service provider, who essentially
acted as a broker, referring DSP's to consumers across a very large state, and
even over the border. The provider's main business was operating a few community
homes, but the brokerage service was a component of their work. The problem was
that the provider did not, and could not initially inspect each home, tailor the
DSP to the consumer, or monitor how the relationship was going. The provider did
not have a mechanism to check up one single time to see how things were working
out. Despite all this, the provider was the employer of the DSP's. They were on
payroll, had taxes removed, etc.... The provider told me he didn't anticipate
liability. However, it seemed pretty clear a problem could arise in a situation
for which he assumed responsibility, but had no control. An unsafe practice was
going forward. Had he been on the site he would have known. Nevertheless, because
it involved an employee, his obligations were the same as if she lived next door.
The best way for him to minimize liability, was to make it clear he was a broker,
and assumed no control for service after the initial referral. As for the employees,
their liability most often comes into play when they act contrary to their training,
or beyond the scope of their duties. My thoughts are the best approach involves
solid initial training, and then good training regarding the particular consumers
they serve. (Quite often, I see cases arise because a DSP was not trained on a
particular dietary or behavioral need of a consumer.) Finally, also keep in mind
solid boundary training. If employees know the boundaries, and that they will
be dealt with if they violate them, it will go a long way to clearing up confusion,
and protecting them. Make sure your employees know what is expected of them. Of
course, document this yourself, and train them in sound documentation principles.
<Angela Amado> Okay, here's another area of questions -- increases in liability insurance, what the average amount of liability insurance, what sort of efforts are being made to slow down increases -- perhaps you have examples. Also, here's a question from California.
<Shea Cunningham> Many small DD service providers
in California have voiced that if their liability insurance
increases this year they will have to close. what is the
average annual cost of liability insurance for DD adult
day service providers? for community care facilities?
What has been the percentage increase in liability insurance
over the past few years?
<Michael Komoll> I can't really speak to the average amount of a premium. However, I am aware from speaking to people that rates are really increasing.
<Moderator> By the way, I see that John Rose has been able to join us. Welcome and feel free to jump in on any of these questions.
<Angela Amado> Michael, any way to slow down these increases?
<Michael Komoll> We are trying to stem the tide by controlling our costs. We have new systems to control legal bills. We also attempt to try cases in challenging venues to stop plaintiff's lawyers from circling overhead. This is important- sending messages.
<Shea Cunningham> Can significant cost savings be reaped by the state assuming liability insurance for private service providers for people with developmental disabilities?
<John Rose> Rates are based on the individual organization and what
they do and their loss histories. Its doubtful that states would assume that expense
directly.
<Angela Amado> Can you give an example of what "trying cases in challenging
venues" means, and "sending messages"?
<Mike Komoll>We need to send messages to plaintiffs lawyers that
we intend to fight. The nursing home industry has been decimated in certain areas.
Plaintiffs are looking for targets. Inflated settlements only make the problem
worse. It is important to let everyone know, right off the bat, we are not afraid
to go to trial.
<Moderator> Is it possible to purchase insurance from (or establish) a liability insurance pool?
<Mike Komoll> I am not aware of any Pools in this industry. A local
broker might know about other options. I represented a Hospital Risk Pool before
joining this program. The hospitals were large, and wealthy, and so could afford
to do it. I'm not aware of the possibilities for this industry.
<jaNeal Rockwell> Can a consumer purchase personal liability Ins. for themselves? If so does this interfere with State benefits?
<Mike Komoll> Consumers can purchase liability
insurance. I haven't seen that done before. If the funding
came from an SNT, and the beneficiaries were people other
than the consumer, it could probably be arranged in a
way to protect funding.
<Angela Amado> Another area of question is whether there are any
risk agreements or waiver forms available as sample documents or templates --
do you know if CMS has approved any, or does Siegel have any samples available,
or other samples available elsewhere?
<Mike Komoll> I am not aware of CMS approved risk agreements. This stuff is usually construed, and controlled in state court, so those laws probably control. I'd be happy to point you in the right direction. However, your best risk agreement is the IPP. If you set out the major risks clearly, and get everyone to sign off, you'll go a long way to protecting yourself.
<Stacie> Do you have any experience with
court cases where a DSP has been charged with abuse (founded)
when following the IPP?
<Mike Komoll> That is a great question. Usually
it does not arise so clearly. Normally, there are factual
disputes as to whether the IPP was followed. However,
I've seen many cases in which the IPP was probably deficient,
and the employees were blamed, along with the employer,
for carrying out an insufficient plan. Service beyond
the plan can be attacked. However, who can plan for everything?
In addition to specific risks, it is important to mention
general abilities and independence levels for those unforeseeable
situations that occur in real life. Then, we can rely
on that, even if a specific was not mentioned.
<Moderator> Michael, I think we're getting near the end of our scheduled
time. Why don't you take a couple of minutes to post any closing thoughts/comments.
<Moderator> In the meantime, sorry if we were unable post some of your questions/comments. Within a week or so, we will be posting a transcript of this discussion with a link to a bulletin board where you can continue to post questions/comments on this topic.
<Moderator> If you didn't have a chance to check out the background
document for this chat session, Great Expectations you can view/download an Adobe Acrobat version at:
Great Expectations: Providing Choice, Minimizing Risk & Ensuring Quality
<Angela Amado> Great Expectations also has some very, very helpful information if you have not been able to look at it before the chat.
<Angela Amado> If this was your first time on a chat, we REALLY appreciate your participation.
<Moderator> Thanks again to everyone for participating (especially if you are a first-timer in the chat format). Michael, special thanks for your time and some great answers and shared very helpful information. If you have any questions or comments about the chat, or ideas for future sessions, please send feedback to the Quality Mall web master, John Westerman, at weste050@umn.edu.
<Moderator> Michael has lost his connection,
but asked me to encourage people to contact him with any
questions at michael.komoll@cna.com
<Moderator> Goodbye everyone and thanks again.
You can view/post additional questions or comments on this topic on our Discussion Board.
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