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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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