Handling elder abuse and neglect cases.

The author points the way for navigating the emerging area of assisted living and home health care services litigation.

The new client sitting in your office believes that his mother is being abused by an employee at the assisted living facility where she lives. A former client calls you, concerned that her aunt's home health care worker has not been providing the quality or frequency of care specified in the health care contract. A colleague who has referred a number of nursing home cases to you in the past asks your opinion on whether a client has a cause of action for elder neglect against a local adult daycare facility. Concern over the treatment and care of patients in settings other than nursing homes is on the upswing.

For years, nursing home litigation has been a growing practice area for trial attorneys. In 1995, almost 1.8 million Americans lived in 16,700 nursing homes.(1) Today, the need for health care services for the elderly is greater than ever, but the number and occupancy rate of nursing homes are on the decline. This is because health care services for the elderly are increasingly provided in assisted care facilities or in patients' homes.

In 1998, there were 28,131 licensed assisted living or board-and-care facilities serving more than 600,000 Americans.(2) The number of Americans in assisted living facilities is expected to grow to 1.5 million by next year.(3) Significantly, most elderly people still live in their own homes, and, in 1997, almost 12 million used home health care services.(4) Projections for the year 2020 indicate that the number of elderly Americans needing long-term health care will double.

Several factors contribute to consumer preference for health care services provided in settings other than nursing homes. These factors include the expense and institutional character of nursing homes and the demand by the elderly for autonomy and the option to "age in place." An older person may need assistance with daily personal care (and may want company), but he or she may not need around-the-clock medical supervision. Because people are healthier and living longer and because improved health care products and services are available, there are alternatives to health care services previously provided only by nursing homes.(5)

The problems that generally exist in health care settings like hospitals and nursing homes, however, do not disappear when health care is provided in assisted care facilities or patients' homes. In fact, the assisted living and home health care industries are loosely regulated, and no universal guidelines defining "abuse" and "neglect" are in place. As a result, assisted living and home health care abuse and neglect cases create challenges for plaintiff attorneys reminiscent of the early days of nursing home litigation.

Experts have described housing and health care options for the elderly as a continuum.(6) The family home, with no care or supervision other than that selected by the elderly resident, is at one end of the continuum. The nursing home, which provides 24-hour supervision and skilled medical care, is at the other end. Assisted living facilities and home health care services fall somewhere in the middle.

No common or standard definition of "assisted living" exists. Rather, the term is used to describe a wide range of facilities (typically residential settings as opposed to institutional ones) that provide a variety of health care services.(7) Facilities that provide assisted living include

* adult foster care, where a small number of residents live together in a house and share rooms, group meals, and personal assistance;

* board-and-care homes, which generally provide a room (usually shared), group meals, personal assistance, and around-the-clock supervision;

* congregate-care facilities, which generally are apartments with a central dining room and other hospitality services;

* retirement communities with units similar to apartment buildings where independent living is the norm; and

* continuing-care retirement communities, where services are provided for a specified time period and residents move from independent to more supervised facilities and skilled nursing as their needs change.

The level of health care services provided ranges from physical supervision to personal care assistance (help with dressing, bathing, taking medications) to skilled nursing and advanced medical care.

Home health care organizations usually provide health care services in the elderly person's home. Some provide services to people who live in a facility. Like the services provided by assisted living facilities, home health care services range from assistance with daily living tasks to skilled nursing and advanced medical care.

Since no standard definitions for "assisted living" or "home health care" exist, the descriptions above are general. Trial lawyers will need to look to state law, industry standards, and the care contract to determine whether a potential defendant is an assisted living organization or home health care organization.

Medicare and Medicaid laws are the only federal regulations that govern the assisted living and home health care industries.(8) These laws specifically address the enforcement of quality standards for health care providers certified to receive reimbursement from Medicare or Medicaid.(9) Applicability of these laws to assisted living and home health care is limited, however.

Medicare insurance covers only health care services provided by a skilled nursing facility or skilled home health care workers. It does not cover custodial care (help with daily tasks or personal needs) or room and board. Personal care services provided under Medicaid, which is medical assistance for low-income people, are expanding, but room and board are not covered, and states are responsible for establishing provider standards and regulations.(10)

Just over half the states have enacted laws that monitor, control, and set standards for companies providing assisted living services. According to the National Academy for State Health Policy, only 27 states have licensing regulations for assisted living facilities, and i has draft regulations pending.(11)

Requirements regarding competency, skills, training, and background checks for administrators and staff of assisted living facilities vary widely, as do standards and monitoring requirements.

Most states license organizations that provide home health care services, but requirements under these laws also vary widely. Often, a state's definition of "home health care" determines whether and how the organization will be regulated. Some states have laws that mirror Medicare regulations and define a home health care organization as a company that provides skilled nursing and therapeutic services in the home. These regulations dictate that the organization employ only adequately skilled staff.

For example, Oregon heavily regulates what kind of paraprofessional may provide certain types of care, and it imposes staff training requirements and prohibits delegation of certain duties.(12)

Other state regulations are less strict. Illinois, for example, licenses "home medical equipment and services," which refers to the delivery, installation, maintenance, replacement, and instruction on the use of medical equipment for sick or disabled people.

This regulation lets people receive care in their own homes.(13) A provider of home medical equipment and services is required to establish and provide records of continuing care for its personnel. In any event, an organization that does not meet the state's statutory definition of a home health care organization will not be subject to any regulation.(14)

Statutory requirements regarding the training, skill, competency, and background of administration and staff, as well as standards and monitoring requirements for assisted living and home health care organizations, are important because they can help define a standard of care.

Defining the law

Few cases involving neglect and abuse claims against assisted living or home health care organizations have been reported. The cases that have been litigated generally favor plaintiffs.

In common law negligence actions in both assisted living and home health care cases, plaintiff attorneys are discovering that introduction at trial of state licensing and elder abuse laws can provide strong evidence of the standard of care or evidence of per se negligence. Consider the following examples:

* Lauth v. Olsten Home Healthcare, Inc., concerned the negligent care of 78-year-old Helen Lauth by a home health care organization. Lauth's guardian contracted with Olsten to provide home health care to Lauth while she was living at a congregate-care facility.

While under Olsten's care, Lauth developed decubitus ulcers and permanent contractures of her feet and legs, lost 30 pounds, and suffered continuous urinary tract infections and fevers.

The lawsuit against Olsten, the congregate-ore facility, and Lauth's physicians alleged that Olsten was negligent because it failed to report Lauth's health problems to her doctors, treat her medical conditions, keep care records, inform her family about her health and treatment, and follow care and treatment instructions specified by her physician.(15)

The claim against the congregate-care home (brought under Florida's Bill of Rights of Adult Congregate Living Facility Residents) was settled.(16) In the negligence action against Olsten, the jury found for the plaintiff.(17) The claim against the physicians was settled.

* Roach v. Kelly Health Care, Inc., illustrates the importance of state home health care regulations in litigation. Employees of Kelly Health Care, a home health care organization, were living with Edna Tuson, an 87-year-old widow with dementia. Tuson developed a severe bedsore that required she be turned every two hours. An aide who left Tuson alone for five hours returned to find her on the floor. She had sustained severe burns from lying with her face against a baseboard heater. Tuson's representative sued for negligence.(18)

In 1983, when Tuson began using Kelly's services, Oregon had rules in effect concerning home health care agencies. Those rules required that the agencies be licensed if "home health aides" provided "home health aide services." Like many state regulations, the Oregon rules provided that violations could result in suspension or revocation of an agency's license.(19)

Kelly used certified nursing assistants --workers with only half the training of home health aides and no training with respect to home care or home safety--a violation of the Oregon regulations.

The court of appeals reversed a directed verdict for Kelly on the plaintiff's negligence per se claim, finding that Oregon's regulations regarding home health care agencies established the standard of care in a common law negligence action. The court ruled that a violation of those regulations was negligence per se.

Elder abuse statutes may also provide evidence of a breach of duty or a separate cause of action. In 1997, the Arizona Supreme Court, in an en banc decision, held that the state's elder abuse statute expressly provided elder abuse victims and their representatives with a cause of action for pain and suffering damages against an assisted living facility licensed under the statute.(20)

Moreover, the state high court ruled that the statutory cause of action by the husband of a woman who died while the suit was pending survived her death.

The holding was critical because the husband's common law cause of action for breach of contract and negligence for his wife's abuse and neglect did not survive her death. A New York appellate court reached a similar conclusion in Henry v. Isaac, a case against New Whitman Home, an assisted living facility.(21)

A survey of other negligence and abuse cases against assisted living facilities and home health care organizations reveals similar favorable results:

* A home health care company was found liable for injury to a patient under its care. The plaintiff fell and broke his leg even though the employee of the home health care company knew the man could not stand on his own.(22)

* A California jury returned a verdict against an assisted living facility for burns and other injuries a 95-year-old plaintiff suffered when an employee spilled hot coffee on her, causing her to stumble and fall.(23)

* An 89-year-old resident of an adult foster care home settled his negligence action that alleged an assisted living facility violated Oregon regulations. The lawsuit claimed the staff's negligence caused a fall, dehydration, pneumonia, hyponatremia, and urinary tract infections.(24)

* In 1997, a jury found in favor of an 82-year-old resident of an assisted living home who lay for nearly three days in the bathroom of her unit after a fall. Previously, the plaintiff had been independent and mentally active. After the fall, she was physically dependent and had decreased mental capabilities.(25)

Investigating claims

Establishing negligence in cases against assisted living or home health care organizations requires careful evaluation. Thorough investigation of potential claims is crucial.

First, clearly document the exact nature of a client's injuries. Elder abuse includes neglect evidenced by malnutrition, dehydration, and bedsores--injuries familiar to nursing home litigators.

Neglect also includes verbal, physical, emotional, and sexual abuse of older people, as well as intentional torts such as assault and false imprisonment.

If an elderly client lives alone, abuse will be more difficult to substantiate because it is unlikely that there were witnesses to the abusive behavior. Collect medical reports and depose the plaintiff and his or her family and friends promptly.

Second, investigate the defendants thoroughly. Determine their corporate or organizational structures and whether franchise or parent-subsidiary relationships exist. Find out when and where the facility or health care service was incorporated, organized, or registered. Today, even multinational hotel chains are in the assisted living business. Be sure to investigate each defendant's financial condition.

Third, investigate the limits of the defendants' insurance coverage. In Granite State Insurance Co. v. Bottoms, the elderly plaintiff suffered burns when she was left alone in a bathroom at the assisted living facility where she lived. The insurance company argued that the burns fell within an exclusion for injuries due to the rendering of professional health care.

The court found that the facility was not a "nursing home" and that the care provided was not medical care and, thus, did not fall within the exclusion. The operator of the home obtained a declaratory judgment that its insurer had a duty to defend and indemnify it against a claim for abuse.(26) Note that some states may have minimum insurance requirements for licensed facilities and agencies.

Fourth, determine whether the defendants were ever required to be licensed and if they complied with these requirements. Research prior citations or disciplinary actions against the defendants for staff hiring or supervision violations, as well as the result of any license suspension or revocation proceedings.

Fifth, find out what role the corporation or organization played in providing services. Determine whether corporate officers were charged with direct supervision. If the building was owned by a corporation, determine whether providing health care services was delegated to a separate entity.

Sixth, determine whether the person responsible for the abuse or neglect was an employee of the parent company or its subsidiary or whether he or she was an independent contractor. Even if no employment relationship exists, agency law may establish vicarious liability.

State law or regulations may require the defendant to hire educated, certified, or skilled employees; to provide specific training; or to screen applicants for a criminal background.

Elder abuse and neglect in assisted living and home health care cases can give rise to numerous causes of action, depending on the type of abuse or neglect, the defendant's identity, and state law. These may include breach of contract; negligence (vicarious liability, negligent hiring, and negligent training and supervision); intentional torts, such as assault or false imprisonment; intentional infliction of emotional distress; negligent infliction of emotional distress; and the violation of a state statute.

Standard of care

The most challenging step in handling assisted living and home health care cases is establishing a benchmark for the standard of care. Whether or not a state allows a private statutory right of action, proving violation of state statutes and rules may be the best strategy to follow for establishing the standard.

If the defendants were subject to state licensing requirements, familiarity with those regulations is critical. Who was required to be licensed? Were requisite licenses in place? Were skilled, certified, or otherwise qualified personnel providing the professional care?

In addition to state licensing statutes, defendants may have violated state elder abuse laws. Because state laws vary widely and change frequently, make sure your research is up to date.

Industry-based standards and requirements may also be used to establish a standard of care. For example, the defendant's accreditation or certification by a trade or professional organization may provide a source for a standard of care.

Two organizations that operate private accreditation programs are the Joint Commission on Accreditation of Healthcare Organizations and the Community Health Accreditation Program.(27) The Health Care Financing Administration allows health care providers to participate in Medicare or Medicaid or both if they are accredited by either of these programs.(28)

In addition, the Continuing Care Accreditation Commission (CCAC) accredits continuing-care retirement communities and other retirement communities that meet its standards in three areas: resident life, health, and wellness; financial resources and disclosure; and governance and administration.(29) Retirement Housing Professionals (RHP) is a certification program that provides education and training to professionals who work in assisted living facilities, continuing-care retirement communities, and senior housing. RHP sets standards in management, administration, and services.(30)

Similarly, the defendant's membership in a trade or professional organization may provide another source for standard of care. Members of the American Association of Homes and Services for the Aging (AAHSA) are not-for-profit organizations that provide health care, housing, and services to the elderly. AAHSA sponsors the CCAC and RHP certification programs. It also sponsors conferences and programs and publishes information on long-term care and retirement housing.(31)

Members of the Assisted Living Federation of America subscribe to a care philosophy, and the organization offers continuing education and training programs.(32) Another good resource is the National Aging Information Center.(33) Determine whether the defendants breached a duty defined by one of these or other professional associations.

The standard of care can also be established by reviewing the care contract between the plaintiff and the defendant. Some states require certain minimum provisions in agreements between parties. Defendants who violate their own contractual agreements not only provide a cause of action for breach of contract but also supply evidence of the standard of care and breach of that duty in a negligence action.

Review the contract for negotiated risk clauses in which your client may have agreed to absolve the facility or service provider of personal injury liability. If a clause is included in the contract, consider whether it is valid under general contract principles.

Experts who may be helpful in establishing a standard of care include industry-specific experts on issues such as injuries, health care practices, custodial-care practices, hiring practices, health care provider hiring criteria, and causation.

In Ward v. Trusted Health Resources, Inc., a jury in Massachusetts returned a verdict in favor of the plaintiffs in a wrongful death action. The case involved a severely handicapped man and his grandmother who were both brutally murdered by a six-time convicted felon hired as a home health care worker. The jury found that the health care agency was negligent for hiring the worker without conducting a background check.(34)

The plaintiffs' lawyer, Timothy Lynch of Boston, argued that Ward and his grandmother would still be alive if the health care agency had conducted a simple background check on the worker. The check would have revealed that the worker's job application listed phony employment and education information. The agency would also have discovered that the worker had six felony convictions on his record and had engaged in misconduct (including physically abusing an elderly client) while working for former employers who were listed as references.

The defense presented evidence that the standard of care in the home health care industry at the time of the murders was not to conduct criminal background checks. The plaintiffs' expert countered by showing that utility companies (among other businesses) have been conducting such checks since the early 1980s.

As illustrated by Ward, an expert on hiring criteria and background checks (including criminal background checks) in industries other than the assisted living and home health care industries is invaluable in cases where an employee's background is an issue.

Sophisticated defendants

Like those in the nursing home industry, defendants in the assisted living and home health care industries are sophisticated. Defendants are large corporations driven by profit margins. Some health care providers may be understaffed, and their employees may be overworked. Although legal action cannot undo a wrong, it can force a company--and, possibly, an industry--to learn that it is less expensive to take proper care of an elderly person than it is to incur the expense of litigation and the negative public image resulting from a plaintiff verdict.

Before statutory reform of the nursing home industry, trial attorneys successfully challenged the negligent care and abuse of nursing home residents. Those efforts can be expanded to the assisted living and home health care industries.

Successful litigation can establish standards of care in these industries and hold defendants accountable for elder abuse and neglect. By defining new standards, personal injury attorneys will broaden legal protection and improve the quality of care for the elderly.

Notes

(1.) Paul Emrath, Seniors' Housing: Supply and Demand, HOUSING ECON., Apr. 1999, at 8.

(2.) ROBERT L. MOLLICA, NATIONAL ACADEMY FOR STATE HEALTH POLICY, STATE ASSISTED LIVING POLICY: 1998, i (June 1998).

(3.) Growth of Assisted Living Facilities Is Booming: Analysis, NAT'L MORTGAGE NEWS, June 28, 1999, at 16.

(4.) Home Health Care Market Is Growing, RES. ALERT, July 3, 1998, at 8.

(5.) See, e.g., Stephanie Edelstein,Assisted Living: Recent Developments and Issues for Older Consumers, 9 STAN. L. & POL'Y REV. 373, 373 (1998).

(6.) Id.

(7.) MOLLICA, supra note 2, at i, 1-5.

(8.) See generally Sandra H. Johnson, Quality-Control Regulation of Home Health Care, 26 HOUS. L. REV. 901,907 (1989); Charles P. Sabatino & Simi Litvak, Liability Issues Affecting Consumer-Directed Personal Assistance Services--Report and Recommendations, 4 ELDER L.J. 247, 322 (1996); Dorothy Siemon et al., Consumer Advocacy in Assisted Living, 30 CLEARINGHOUSE REV. 579 (1996).

(9.) See 42 U.S.C. [subsections] 395i-3 (a)-(h), [sections] 1396r (a)-(h) (1994).

(10.) MOLLICA, supra note 2, at 3, 57-58.

(11.) Telephone Interview with Robert L. Mollica, Deputy Director, National Academy for State Health Policy (Oct. 12, 1999).

(12.) See OR. REV. STAT. [subsections] 443.005-095 (1997).

(13.) See 225 ILL. COMP. STAT. 51/1 (1998).

(14.) Johnson, supra note 8, at 914-20, 933-43.

(15.) Lauth v. Olsten Home Healthcare, Inc., No. 94-3659-CA-01, 1995 WL 685875 (Fla., Sarasota County Cir. Ct. Mar. 16,1995).

(16.) FLA. STAT. ANN. [sections] 400.428 (West 1999). The statute was also at issue in Rice v. AIA Retirement Home, Inc., No. 94-15059 04, 1995 WL 681037 (Fla., Broward County Cir. Ct. July 19, 1995). The jury returned a verdict for the plaintiff in another case, Americare Retirement Facilities, Ltd. v. Linden, 664 So. 2d 1080 (Fla. Dist. Ct. App. 1995 (per curiam)). The jury found a violation of the Florida statute, and the appellate court affirmed.

(17.) Lauth, 1995 WL 685875.

(18.) Roach v. Kelly Health Care, Inc., 742 P.2d 1190 (Or. Ct. App. 1987).

(19.) See, e.g., Claflin v. Senior & Disabled Servs. Div., 811 P.2d 1377 (Or. Ct. App. 1991) (affirming agency refusal to renew license of adult foster care home in which residents were neglected, exploited, or abused).

(20.) In re Denton, 945 P.2d 1283, 1287-88 (Ariz. 1997) (en banc).

(21.) 632 N.Y.S.2d 169 (App. Div. 1995).

(22.) Estate of Tomlinson v. Underhill Personnel Serv., Inc., No. 88-11544, 1990 WL 457814 (Fla., Duval County Cir. Ct. Jan. 1990).

(23.) Dick v. Doe, No. NC021371, 1998 WL 467273 (Cal., L.A. County Super. Ct. Apr. 15, 1998).

(24.) Nuckols v. Rodriguez, No. CV95-059,1996 WL 377137 (Or., Yamhill County Cir. Ct. May 1996).

(25.) Eldred v. Leisure Care, Inc., No. 95-2-15157-4, 1997 WL 643006 (Wash., King County Super. Ct. Feb. 10, 1997). The plaintiffs settled after trial.

(26.) Granite State Ins. Co. v. Bottoms, 415 S.E.2d 131 (Va. 1992).

(27.) To find out more about the Joint Commission, go to http://www.jcaho.org on the Web. The Web site for the Community Health Accreditation Program is http://www.chapinc.cor.

(28.) See http://www.hcfa.gov.

(29.) Go to http://www.ccaconline.org.

(30.) Find out more at http://www.aahsa.org/ public/rhp.htm.

(31.) Visit the association's Web site at http:// www.aahsa.org.

(32.) Go to http://www.alfa.org.

(33.) The center's home page is at http://www.aoa.gov/naic.

(34.) Ward v. Trusted Health Resources, Inc., No. Ca-94-4297-H (Mass., Suffolk County Super. Ct. Feb. 27, 1999).

James G. Sokolove practices law in Boston.