Code Blue - CPR in Unlicensed Senior Housing: What’s a Provider to Do?

Headlines regarding the recent death of the 87 year-old continuing care retirement community resident who died after an employee refused to provide CPR, citing the employer’s policy, have sparked a debate regarding the services senior housing providers make available to their residents. As a result of this incident, that occurred in Bakersfield, California, long term care providers across the country are reevaluating whether to implement or update their CPR policies in the senior living context.

The purpose of this client alert is to identify several issues senior housing providers should be aware of as they engage in this analysis:

• Operating beyond the scope of license. In many states, senior housing is not subject to licensure and the state does not consider the operator to be a healthcare provider. Such senior housing providers must be careful not to "behave" like a licensed provider and potentially risk being accused of providing unlicensed healthcare by the state. To what extent providing CPR in an emergency setting would expose an unlicensed senior housing provider to such allegations is a subject of debate, however, providers should be cognizant of this exposure to regulatory liability; especially when contemplating a policy that involves providing healthcare or collecting protected health information from its residents. The continuing care retirement context adds a certain level of complexity to this analysis, as one provider may offer multiple levels of care, in both licensed and unlicensed facilities, thus the location of an incident could be critical to the legal analysis.
   
• Exposing the provider to additional liability. In addition to the regulatory risks identified above, a senior housing provider that decides to adopt a policy instructing its staff to provide CPR must consider the following:
  • Will the policy apply to all staff members?
  • Will CPR training and certification be a job requirement?
  • How will residents be informed of the facility’s policy regarding CPR so they know what to expect?; and
  • If there are residents who do not want to be covered under the CPR policy, how will such information be made readily available to the senior housing provider, while maintaining compliance with applicable privacy laws? Short of requesting such residents wear a bracelet, keeping track of which residents have DNR orders would likely be operationally difficult to implement.
     
• Interplay with state laws regarding licensed professionals. State laws require licensed healthcare providers to behave in compliance with applicable statutes and regulations. These requirements can be broad, such as a requirement to conduct oneself professionally and honorably and not engage in conduct that is likely to injure the public. Specifically related to CPR, albeit in the context of a licensed vocational nurse’s role in pronouncement of death, Texas’s Board of Nursing has issued a position statement which states that initiating CPR in cases where no clear DNR order exists is imperative, regardless of practice setting. However, the position statement also notes that the Board of Nursing has no jurisdiction over facility policies and contemplates a setting in which the nurse is employed as a nurse. In crafting their CPR policy, senior housing providers should understand what the state requires of licensed professionals and how those requirements may hinge on the scope of employment and the facility in which the professionals are assigned to perform services.
   
• The role of Good Samaritan laws. Good Samaritan laws vary between states, but generally they are meant to afford protection from civil liability to individuals who assist others during emergencies. Providers should understand the extent to which such laws apply in their state to employees, volunteers, residents, guests, and the facilities.

As is clear from the debate that this incident has sparked, there is no consensus in the industry on administering CPR in the senior housing context. Housing providers considering a CPR policy should familiarize themselves with the issues and applicable laws. They must also ensure that their staff is trained to operate in a manner that is consistent with their policies and in compliance with applicable laws.