Overview of Long-Term Care Risks and Liability

Risk managers of continuing care organizations are required to manage organizational risk along the long-term care continuum. The long-term care continuum includes nursing homes and skilled nursing facilities (SNFs), assisted-living facilities, subacute care facilities, independent-living facilities, continuing care retirement communities (CCRCs), personal care and boarding homes, adult day care, transitional rehabilitation, and home care.

Long-term care settings generally are residents’ “homes.” Thus, healthcare for residents’ chronic and often multiple conditions must be delivered within this context. In addition, with the increase in residential care options, such as independent- and assisted-living, and residents’ wishes to age in place in such settings for as long as possible, residents with complex health conditions are often living in residential settings when they require skilled nursing care. Indeed, half or more residents of assisted-living facilities have some level of cognitive impairment (Alzheimer’s Association), which creates difficulties for organizations that do not have the staffing and resources to support such residents. Ethical issues in long-term care require close risk management attention—from end-of-life decision-making to balancing safety concerns against resident autonomy and independence. The turnover rate among caregivers in long-term care facilities is high, and ensuring staff competency is a significant challenge in long-term care. In addition, risk management in long-term care facilities often operates within an environment of unfavorable media attention and close public scrutiny.

This Risk Analysis helps long-term care risk managers identify their organizations’ loss exposures. Statutes, regulations, and accreditation standards applicable to long-term care settings are discussed. In addition, the Risk Analysis provides claims statistics in long-term care and examples of relevant case law. Risks specific to home care, CCRCs, and assisted-living facilities are covered in Home Care: An Overview and Home Care: Staff-Related Risks, Overview of CCRC Risks and Liability, and Assisted-Living Overview; therefore, those topics are not covered in detail in this Risk Analysis. In addition, risk management strategies for high-risk areas (e.g., pressure ulcers, hazardous wandering and elopement, healthcare-associated infections, falls, ergonomics and musculoskeletal disorders in employees, Workers’ Compensation) are presented elsewhere in Aging Services Risk Management.

The failure to comply with statutes and regulations is a significant area of risk exposure. The most pertinent federal statutes and regulations affecting daily operations in continuing care facilities are Centers for Medicare and Medicaid Services (CMS) regulations for long-term care facilities, Occupational Safety and Health Administration (OSHA) regulations, federal fraud and abuse statutes (e.g., False Claims Act FCA, antikickback statute, Stark law), antidiscrimination statutes (e.g., Americans with Disabilities Act ADA, Fair Housing Act FHA), and U.S. Food and Drug Administration (FDA) regulations.

The following section briefly describes the statutes and regulations most relevant to continuing care organizations. More detailed information on the following regulations...