Applies to all long term care facilities
Posted August 29, 2002
By Jerri Lynn Ward, J.D., Garlo Ward, P.C. with an interview with Woody Leverett, J.D.
If during the course of a survey, a surveyor witnesses or has reason to believe that residents are suffering abuse or neglect, a facility and/or its employees can be referred to the County District Attorney for criminal investigation.
If this situation should occur, it is important to understand your rights when dealing with police officers or other officials during the course of the investigation. We have talked with Woody Leverett, a criminal defense lawyer, to get answers to the questions which may arise when facing referral to a District Attorney.
Woody Leverett received his Juris Doctor from Texas Tech University in 1979. The bulk of Mr. Leverett’s practice is in criminal law and family law. He is a member of several organizations, including the State Bar of Texas, the American Bar Association, the Fifth Circuit Bar Association, the National Criminal Defense Lawyers Association, the Texas Criminal Defense Lawyers Association, the Midland County Bar Association, and the TransPecos Bar Association. He is a well-respected criminal defense attorney practicing in Midland, Texas.
Questions for Woody Leverett
Jerri: In situations where a long-term care facility has been referred to the County District Attorney by the Texas Department of Human Services, how should the facility deal with the criminal investigation?
Woody: The facility should immediately notify its lawyers of the criminal investigation, and schedule an appointment with a criminal defense lawyer at the earliest opportunity. The facility should not attempt to contact either DHS or the District Attorney’s office on its own.
Jerri: If an administrator is asked to come to the police department with facility records for an interview by a detective, what measures should be taken to protect the individual administrator and the facility?
Woody: The administrator should immediately notify his superiors of this requested interview by the police. Under no circumstances should the administrator agree to be interviewed by police, or turn over facility records without first obtaining the advice and consent of a criminal defense lawyer. The defense lawyer might very well advise his client to decline an interview, and decline to provide any facility records to the police, in the absence of a search warrant or a grand jury subpoena.
To avoid any possibility of a conflict of interest, the administrator, or the employee under suspicion, and the facility should each be represented by separate counsel.
Jerri: What kinds of charges can be brought in a situation involving injury to a resident if abuse or neglect is alleged?
Woody: Section 22.04 of the Texas Penal Code makes it a felony offense to cause harm to the elderly or disabled, either by act or omission. Under the statute, “elderly individual” means a person 65 years of age or older. “Disabled” means a person older than 14 years of age who by reason of age or physical or mental disease, defect, or injury is substantially unable to protect himself from harm, or to provide food, shelter, or medical care for himself.
Facility employees or caregivers who engage in sexual conduct with a patient who is non compos mentis may be prosecuted for the felony offense of sexual assault, under Section 22.011 of the Texas Penal Code.
Jerri: We know that such charges can be brought against individual employees. Can criminal charges be brought against the company that owns or runs the facility?
Woody: Yes, under certain circumstances. Under 7.21 of the Texas Penal Code, a corporation or association may be criminally responsible for the acts of its agents. A corporation or association will not be criminally responsible for a felony, unless the offense was authorized, requested, commanded, performed, or recklessly tolerated by (1) a majority of the governing board acting in behalf of the corporation or association, or (2) a “high managerial agent” acting in behalf of the corporation or association, and within the scope of his office or employment.”
Depending on the severity of the offense, a corporation or association convicted of a crime faces fines ranging from $2,000 to $50,000, or may be fined based on the damage caused, or monetary gain received, by the criminal conduct. In addition to assessing a fine, the court is required to notify the attorney general of the conviction.
Jerri: If a police officer asks to interrogate a nurse or other employee, what rights do they have? Should employers let the employees know what their rights are?
Woody: The employee always has the right to decline an interview by the police. As a general rule, the employee should always seek the advice of competent legal counsel before giving such an interview, unless the employee is absolutely certain that he or she is not the subject of a criminal investigation. Because the facility might be criminally liable for the acts or omissions of the employee, the facility should require employees to immediately notify the facility of any job-related police contact. Upon receiving such notice, the facility should immediately notify its lawyers.
Jerri: In the face of a search warrant for facility documents, how can facilities maintain resident confidentiality?
Woody: A lawfully issued search warrant or grand jury subpoena trumps any right to resident confidentiality. Whether such documents are admissible in a court of law is the decision of the presiding judge.
Jerri: What about Quality Assurance Documents, which are supposed to be protected from subpoena? Can a facility protect those when a search warrant is served?
Woody: To my knowledge, Quality Assurance documents are not exempted from a search warrant authorizing their seizure. However, to withstand judicial scrutiny a search warrant must describe the items to be seized with some particularity. A search warrant which authorizes the seizure of “all documents” would probably be excluded from evidence for being overly broad.
It is important that you seek legal counsel when faced with a criminal investigation or a search warrant, and any time you are unsure of your rights. Being aware of your options helps protect your facility and its employees from any unfair scrutiny, and ensures the best possible outcome.
All information in this article is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2004 by Garlo Ward, P.C., all rights reserved
Austin, Texas 78752-3714 USA
Telephone: 512-302-1103
Facsimilie: 512-302-3256
Email: Info@Garloward.com
