We are going to be honest, and let you know that we were late in paying attention to this legislation that is being considered by lawmakers in Arizona. Well, we need to start paying attention. And the sooner the better. Policy advocates are paying attention to the headlines and we can expect more legislation to be proposed. We need to be involved in issues in assisted living, perceived or real, to ensure legislative actions are necessary and beneficial to fostering better care for our residents in a sustainable business environment. You can view the specifics of this bill by clicking https://legiscan.com/AZ/bill/SB1373/.
What is SB1373?
SB1373 is a senate bill that will declare a duty to care for residential care institutions and will require caregivers to perform CPR & provide first aid on residents that are experiencing cardiac arrest or have suffered an injury or fall.
Elements of the Bill as of 2/27/2021
Each health care institution that is licensed pursuant to this chapter and that provides residential care and the health care institution's respective employees, agents and assigns have an affirmative duty of care for their residents.
This defines that residential care institutions will have an affirmative duty of care. So what does this mean? In tort law, the first element that needs to be established for proving negligence is an existence of “duty of care”. This simply means a legal obligation to act. It’s the same requirement that makes your local supermarket put a wet floor sign near a spill and mop it up. This law simply makes it much easier to prove in civil litigation that the duty to care exists.
[RCI] Shall initiate immediate cardiopulmonary resuscitation before the arrival of emergency medical services, to a resident who experiences symptoms of cardiac arrest or cessation of respiration. The cardiopulmonary resuscitation shall be in accordance with that resident's advance directives and do-not-resuscitate order. Staff who are certified in cardiopulmonary resuscitation shall be available at the health care institution at all times.
This section states that there will always be staff present in the facility who are CPR trained (this is already required by statute) and that staff member(s) will provide CPR to residents who experience cardiac arrest and advanced directives state that they wish to be resuscitated. This element seems to be a problem for some opponents of this legislation although I’m not sure I understand why. Many of these same people market with “Caregiving Staff CPR Trained” on their website, but actually making it obligatory is an issue. There is a clear implication that this training requirement fulfills a practical need and will be provided to our residents. Why is it an issue that it’s legislatively mandated? Genuinely asking this question.
[RCI] Shall provide First aid before the arrival of emergency medical services to a resident who experiences emergency illness or injury and to a noninjured resident who has fallen and is unable to reasonably recover independently. The first aid shall be in accordance with the resident's advance directives and do-not-resuscitate order. Staff who are certified in first aid shall be available at the health care institution at all times.
This element is similar to the previous one but requires first aid for illness, injuries and falls. Again, we are required to obtain the training, and we market with it. Why the reluctance to accept a mandate to provide first aid to our residents?
[RCI] may not have, establish or implement policies that prevent employees from providing immediate cardiopulmonary resuscitation, first aid or emergency care to the health care institution's residents.
This is pretty straightforward. The proposed law requires these actions, so the residential care provider may not create policy that prohibits them.
A health care institution prescribed in subsection A of this section and any staff member who renders cardiopulmonary resuscitation or first aid as described in subsection B of this section is not liable for any civil damages as the result of any act or omission by the person rendering such care. This liability exclusion applies only if the cardiopulmonary resuscitation or first aid is rendered in good faith and consistent with cardiopulmonary resuscitation or first aid certification standards, as applicable. This liability exclusion does not apply to a person who acts with gross negligence while rendering care.
This is limited liability exclusion to mitigate lawsuits unless gross negligence has occurred.
From some of those that are opposing SB1373, there’s been a lot of discussion about HB2260 legislation and the impact it would have on assisted living providers. HB2260 was previously attempted legislation that started out much more broadly with certification requirements and assessments mandated in emergency situations. We shared concerns about HB2260 and feel, as initially proposed, that it was flawed and proposed undefined mandates that could have a significant negative impact. The bill was amended, but ultimately died in committee.
In our opinion, making the argument that because HB2260 was bad legislation, SB1363 is therefore bad legislation is weak opposing argument. It also is an argument that’s rooted in emotion and fear and not critical thought with professionalism. We need to be better than that.
What about criminal liability?
Another opposing argument is the notion that caregivers will be criminally liable when this statute is applied and enforced. Duty of care is for civil litigation. Any criminal actions against a caregiver would need to be covered by a criminal statute which either already exists or doesn’t, but is not changed by this statute either way.
Remember when McDonalds was sued for burning a lady with scalding hot coffee? McDonalds was sued as they had a duty to care and obligation to ensure coffee was served at a safe temperature. The worker in the drive-through was not charged.
We need to be careful to not create a false perception of what will happen should this legislation pass. Ginning up irrational fear in our industry’s caregiving workforce serves no purpose and may be self-fulfilling for the “this will be devastating to assisted living” hyperbole.
We would define our position on this bill as neutral. We feel the proponents have done a poor job of demonstrating or quantifying that this is a significant problem and that caregivers and/or facilities are chronically withholding CPR and first aid from residents. The data is conflated and sometimes ambiguous. We are suspicious when so much of the substantiating argument is anecdotal.
Having said that, we are not going to be the guys that are going to argue against caregivers / facilities providing CPR in accordance with advanced directives and administering first aid. The bill is simply sensible and what our residents expect and deserve.
We fully expect the proponents of this bill to engage for further legislation to implement fall recovery legislation and mandated AEDs. They have stated as such. More legislation will be proposed in the future. We can’t not engage because we think they are misinformed, self-serving, antagonistic, etc. They have an audience, they see what they perceive as legitimate issues in the their eyes, and they are able to get lawmakers and policy writers engaged. Their advocacy and the legislative process will continue. We can choose to participate or suffer the consequences without having been involved in the process at all.
Not doing anything is making a choice.
RightCare Foundation submitted opinions and data