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VOICES: David Thurber, Counsel and Business Advisor, Alliance Insurance Group

This article is sponsored by Alliance Insurance Group. In this Voices interview, Senior Housing News sits down with Alliance counsel and business advisor David Thurber to learn about what he’s seeing with respect to COVID-related litigation claims and how senior living operators can protect themselves against them. Thurber also shares insight into documentation, accounts receivable, admissions due diligence, and other pressing issues in the COVID-19 operating environment.

Senior Housing News: You are counsel and business advisor with Alliance Insurance Group. What career experiences do you most draw from in your current position?

David Thurber: My background is in law and litigation. For the past 40 years, I’ve been involved in private practice as a trial counsel and general counsel to various companies, including an insurance company. I’ve combined my background in human resources and risk management litigation to support businesses in senior care and to deal with the kinds of issues that the industry deals with every day.

Much of your role with Alliance today involves defending senior living operators against COVID litigation claims. What are the common types of claims that you are seeing, and how do you characterize this as a growing trend?

Thurber: While it is still a small dive in the litigation waterfront for senior care facilities, it is a growing trend, in my opinion. The claims generally are negligence claims, but they focus on the clinical side regarding our failure to adequately implement known COVID intervention protocols in accordance with state and local health guides as well as Centers for Disease Control and Prevention (CDC) guidelines.

Failure to follow your own infectious disease protocols, failure to follow your emergency preparedness protocols, failure to recognize the first instance of COVID among residents — those are the kinds of negligence claims that are being made.

In addition to that, plaintiffs are focusing their claims on staffing protocols. Are we forcing employees to work when we know through our screening process that they have a positive COVID condition, or that they’ve been exposed to a COVID environment? Have we failed at resident screening or providing adequate PPE for our employees?

Another commonly raised issue is around failure to provide adequate managerial and clinical oversight. Early on, people alleged that we did not properly clean the facilities. The CDC came out with all kinds of cleaning protocols and air quality measures, and those things are still part of the allegations. The defense of these claims focuses on causation. It’s a big deal proving that any one of the issues I just mentioned caused an individual to have COVID. I think that is why there’s been a slow trend in these claims.

These claims are not covered by insurance, and the defendants are faced with a dire situation to defend these claims and find a way out of them when they don’t have an insurance policy backing them up.

What are the top methods operators can use to fight these suits, and where do the challenges with insurance enter this scenario?

Thurber: We’re never going to be able to prevent the plaintiff’s bar from filing lawsuits. What we can do — and what our clients have done successfully — is to have evidence of a documented timeline accounting for the things the client has done to pre-emptively manage through the COVID environment.

Have they scrupulously involved themselves in the guidelines that the CDC and local health officials have promulgated? Have they documented those specific kinds of interventions that they’ve undertaken? Do they scrupulously adhere to their employee-screening and visitor-screening program? Do they document that carefully and document what they do, when or if an employee is found to be positive with COVID or thinks they’ve been exposed to COVID?

We need to have evidence that shows how we respond to COVID cases and document that. Documenting communications with families, residents and authorities has to be stepped up tenfold.

This will help diffuse some of these lawsuits, and, better yet, you’re not only fighting off professional liability litigation, but you’re also building a great defense for the Occupational Safety and Health Administration (OSHA) when they come knocking, as well as state regulatory authorities on complaints that might be filed.

A big problem that our industry faces right now is that the insurance companies have tried to avoid defending or responding on an indemnity basis to these claims. They state that these kinds of infectious disease claims are excluded from their policies, and therefore there’s no coverage.

An operator must be able to successfully tell its story to underwriters. What are two or three small steps that operators can take to improve this storytelling?

Thurber: At Alliance, a big focus now is telling our clients’ and our prospects’ stories. Underwriters are typically looking in the rearview mirror when performing client work, and we want them to look at the front window, if you will, in terms of what the client’s doing now and what they’ve been doing recently to improve their environment.

The essence of storytelling is intended to separate your client from the rest of the 100 insurance applications sitting on that underwriter’s desk. How well does our story jump out, and how convincing is it in the process? What are the specific interventions that we’ve undertaken to make an impact on our loss record and our risk management profile?

Who are the individuals, what are their skill sets and how are they impacting our outcomes? What have we started to do that will enhance our risk management profile program and enhance the safety of our residents in that process? Being convincing with documentation is key.

If your loss record has wound care as a profile of the kind of claims that you’re dealing with, then does your training focus on wound training? Who’s delivering that? How often is it being delivered? That kind of thing is critically important.

If you’re using an outside wound care expert, don’t just say that, but who is it? What is their expertise? How often do they come? What are they doing with your staff in terms of the trickle-down training? How are they educating your team to handle COVID issues?

The other big issue is on the admission front. How are you doing your due diligence in the admissions process? Be able to describe that and talk about that. We get a lot of potential residents from hospitals. In many cases, we inherit specific problems as a result of not doing our due diligence.

You’ve noted an increase in regulatory pressures upon senior living operators. What are the common types that you’re seeing and what can operators do to prepare?

Thurber: In response to regulatory pressure from the state health authorities, OSHA and, frankly, the Department of Labor, documented timelines are critical. If the client has done what we’ve been talking about in terms of keeping a track record and timeline, they’ll have a leg up on defending the administrative inquiries and investigations by regulatory authorities, including OSHA.

We’ve had several clients who have complimented us because we encouraged this sort of timeline analysis process early on. When these agencies come calling, you have the evidence and the document right in front of you. Oftentimes, that’s sufficient and they go away because you’ve been able to document what you’ve done, when you’ve done it, who’s done it and what the results have been. The other piece of the puzzle here is showing evidence around training, employee screening, admissions and COVID response.

You recently commented that some operators were facing a lack of transparency from hospitals around wound care as hospitals attempted to discharge patients back into independent and assisted living facilities. Your advice was to not take those residents back until the facilities had done their due diligence, even though taking them back is tempting for occupancy reasons. What do you tend to hear from clients when you give them that advice and what do they risk by not holding the line?

Thurber: I think it’s a growing problem. The care companies are in a dynamic tension because they need occupancy, but they don’t want to upset the hospitals by being more demanding of hospital protocols, around discharging residents to the facilities. If they begin to challenge the hospitals on the quality of the discharge information, the hospitals will send their patients to another facility.

At the end of the day, bringing a resident into the facility without sufficient discharge information will likely cost you a lot more money in a lawsuit downstream.

Ultimately, senior living executives need to find a diplomatic way to push back on hospitals, ask questions and have sufficient assessment staff when some of these discharges seemingly occur.

You have also said you’ve heard from clients that accounts receivable is ballooning to unsustainable levels. What can operators do on the front end to improve their financial stability, and what can they do with the collection agencies to improve that process on the back end?

Thurber: It is a growing issue. It doesn’t take much time for a skilled nursing resident to accrue a $10,000, $15,000 or even a $20,000 bill. Too often, we take a sophomoric attitude toward delinquent rent. In our business, that includes food and services. We can’t sustain providing free services, especially when those numbers begin to climb like that.

In my environment, I’ve dealt with several clients with rising accounts receivable due to these issues. On the front end, I think it’s a matter of making sure that your admission agreement has strong language regarding delinquencies. Advising the prospects that you’ll provide the delinquency to a “collection and reporting service” is a key part of the conversation.

You can also provide performance indicators for your staff, to make accounts receivable a priority. Make it a condition of employment or a condition of performance, because what gets measured gets done. Paying attention to accounts receivable operationally on the front end is hugely important.

On the back end, having a good collection service, or a network of good collection and eviction lawyers in the jurisdictions where you operate, is important. Not all collection agencies are the same. You need one that understands the importance of your bill, and more importantly, one that has a back network of affiliate lawyers who are prepared to act upon the delinquency.

No one knew fully what to expect in 2021. What has been the biggest surprise in the senior housing industry so far, and what impact do you think that surprise will have on the industry for the remainder of the year?

Thurber: Operators have been very diligent, methodical and deliberate in responding to COVID protocols. It’s not taken on a laissez-faire basis; they’re doing a good job. I say that because I’ve been in some of the buildings and I’ve witnessed and experienced the process.

I think the second positive is the enhanced attention to infectious disease protocols, policies and procedures. I hope those will stay. Before COVID hit, if you asked somebody what their infectious disease program was, they might not have had a clear answer.

When you ask that question today, most operators have a crystal clear answer. It’s well-documented as a central piece of their day-to-day operations, and that also reduces other kinds of claims that come in. I hope that stays.

Editor’s note: This interview has been edited for length and clarity.

Alliance Insurance Group is an elite team of risk management professionals representing over 50 carrier experts and more than $84 million in premiums. Alliance Insurance excels in insurance for senior care communities, including assisted living, skilled nursing, continuous care, memory care, and at-home facilities. To learn more, visit allianceinsgrp.com.

The Voices Series is a sponsored content program featuring leading executives discussing trends, topics and more — shaping their industry in a question-and-answer format. For more information on Voices, please contact sales@agingmedia.com.

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