Insurance - Better to Have it and not need it then to need it and not have it.
Posted by: Robert Markette
December 19, 2005

By definition, home health care and hospice providers treat their patients at home.  This requires your employees to travel from your office to the patient’s home.  Occasionally, the employee will have an accident.  If the employee was traveling to a patient’s home or between patient’s homes, in most jurisdictions they will be considered to be acting on your behalf.  This means that you can be sued for employer liability.  There are two common problems for employers in this case, failure to have appropriate coverage or waiver of the coverage due to a failure to notify the insurance company.  (The exact scope of employer liability can vary depending upon a number of factors.  This blog entry should not be taken as a discussion of the scope of those parameters or advice as to when your employees are acting within the scope of their duties.)

When an accident like this happens, it is good to know what your insurance policies cover and when you are required to report a potential claim.  Some providers have gotten to this point only to discover they do not have automobile coverage.  How thi happens is not clear, but it may be due to a misconception about general commercial liability coverage.  Usually, general commercial liability does not include automobile coverage.  Automobile coverage is a separate policy.  Automobile coverage generally comes in two forms – Owned automobile coverage and non-owned coverage.  In other words, if you agency owns vehicles, you can obtain coverage for them as vehicles owned by the agency.  On the other hand, if your employees drive their own vehicles, you can obtain coverage for that as well.  If you don’t have a separate automobile coverage policy, you may be covered under an umbrella liability policy. 

An umbrella policy is, in effect, exactly what it claims to be.  It is an additional policy that acts as an “umbrella” to cover claims beyond those covered by your insurance.  If you have neither an umbrella policy nor an automobile policy, you should call your insurance agent immediately.  If one of your employees is involved in an accident while working, you can almost guarantee you will be named.

Another common problem is failing to timely report a potential claim.  Most insurance policies require the insured to notify the insurance company within a specific period of time after the insured becomes aware of the claim.  Failure to provide proper notice will operate to bar coverage.  Generally, as soon as you become aware of an accident or other even that is covered under your policy, you should notify the insurance company.  It is a good idea to do this, even if you think the actual liability will be less than your deductible.  I say this, because many providers will make the determination that it is cheaper to pay the injured patient than to pay increased premiums down the road.  The provider than offers to pay the patients medical bills, but does not notify the insurance company. 

The provider may not hear anything more for months.  Then, a year or more later, the patient’s attorney sends a letter to the agency demanding payment of tens of thousands of dollars in hospital bills for various “soft tissue” and other injuries.  The agency, which had the appropriate coverage in place, is effectively uninsured, because they failed to properly notify their insurance carrier, but since the deadline for filing a lawsuit has not passed (the statute of limitations) the patient can still sue the agency to recover their damages.  Of course, by now the deadline for notifying the insurance company has passed and the agency will have to pay if the patient wins the lawsuit.  (In addition to paying an attorney to defend the claim.) You should never assume that the patient’s first medical bills in a case will be their last. If you do, you are not “in the clear” until the statute of limitations for filing a law suit has passed.

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Criminal Background Checks are not Foolproof. Originally Written on October 25, 2005.
Posted by: Robert Markette
December 12, 2005

I read an interesting article yesterday about a lawsuit in Wisconsin.  A home health agency recently settled a lawsuit by a former patient.  The patient was harmed when a home health aide stole patient’s pain medication and substituted another medication.  The agency settled, even though a criminal background check had not turned up any convictions. 

The real moral of this story is that a criminal background check is not always the best tool to evaluate the likelihood of future problems.  A potential employee may have a clean criminal history, but may still harbor addictive behaviors that can lead to future problems.  Most individuals who become criminals in order to feed a drug habit have the addiction before they start engaging in criminal activity.  This means employers need to be aware of signs of that an employee is abusing drugs or alcohol and be prepared to take action. 

You should also be careful what questions you ask a potential employee regarding drug and/or alcohol abuse.   An improperly worded question can be a violation of the Americans with Disabilities Act.

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