Applies to ICF-MR’s and covered entities
Posted January 31, 2003
By Jerri Lynn Ward, J.D., Garlo Ward, P.C.
I was taking my daily walk in the neighborhood when I saw a familiar person standing on the sidewalk a block away. I walked up and saw that it was Lucas Pahl. Lucas is the QMRP for several ICF-MR’s in our little town and surrounding towns in the Hill Country.
Lucas is about my age. He can truthfully be described as tall, dark and extremely handsome. Of course, when he first came to the area, I was very happy. There are not very many single men in our town, let alone handsome ones, I saw a wonderful opportunity.
Sadly, it was not to be. Romantic compatibility between the two of us was an impossibility for several reasons. I went to college at Texas A&M University . Lucas went to the University of Texas . While Lucas was at U.T supporting World Peace by growing his hair long and dressing like a hobo; I was at Texas A&M dating men who sported crew cuts, WWII Cavalry uniforms and knee-high riding boots with spurs. While Lucas was spending his time in all night bull sessions discussing such weighty matters as Economic Justice, I was dating men who liked to drink lots of beer at the Dixie Chicken and then go over to the Jack in the Box in order to hide in the bushes behind the clown intercom so they could pretend they were the voice taking orders from the drive-thru customers.
Our first and only date was the clincher. Lucas, for some reason I’ve never fathomed, decided to take me to a Bikram Yoga class in Austin for our first date.
Bikram Yoga is where you go into a room that is heated to 110 degrees. While there, you proceed to twist your body into a series of very painful pretzel shapes as sweat rolls off your body. This lasts for ninety minutes.
I knew that I was in trouble within the first 30 seconds. By then, it felt like all the hairs in my nose had been singed off. My heart was already beating like a hummingbird’s wings. I knew that I was going to blow the date.
I somehow made it through the postures by taking frequent breaks where I would go into what I discovered was my favorite posture. The posture, which was named something that sounded like “Backassa”, involved lying on my back with my arms at my side while I tried to catch my breath without singing the hairs off the insides of my lungs.
We ended the class in the “Backassa” posture. As we lay there, the instructor went around the room spraying us with a fruity, flowery smelling substance. It was okay at first. Then the scent started transforming into a rotten flesh smell similar to one of those flesh eating plants. By then, I think I had gone into a fugue or coma like state because I couldn’t move to go wash the smell off of me. Lucas had to physically pick me up and half carry me to the car. Instead of going to dinner like we planned, he drove me straight back home. We decided to just be friends after that.
As I approached Lucas, I could tell he was agitated about something.
“Hi Lucas,” I called, “What’s up?”
“Suzanne Roberta, we are being sued!” He responded. “The company I work for is being sued by Mr. Huff. Sleazy Slovacek is his lawyer.”
“Why is Mr. Huff suing Happy Home?” I asked.
“It has to do with Darrell Zornick.” He replied.
Darrell is one of the consumers at Happy Home. He is seventeen years old and considered by the court system to be a juvenile delinquent. The reason for this can be traced to his almost obsessive love for animals. He is totally addicted to the Animal Planet channel. At some point, he must have seen some show on Animal Planet about the rescue of abused animals, because Darrell started sneaking into the yards of people who had dogs tied up for long periods of the day, and “rescuing” the dogs. Seeing a large teenage boy come into the yard caused a lot of concern for the dog owners and they, understandably, called the police. After a dozen or so of these calls, the police, feeling they had no choice, started referring charges to the District Attorney’s Juvenile Enforcement division.
Darrell’s mom is a widow with three other children, all younger than Darrell. Because she had to work, she was unable to stop Darrell from “rescuing” dogs. The judge decided that, in the interest of habilitation, Darrell should go live at the Happy Home on Oak Street so that he could have better supervision and other services that he needed.
Darrell still went home to his mom’s on most weekends so she could take him to church. Apparently during one of those visits, Darrell noticed a new dog in the neighborhood. Mr. Huff who lives on the next block had acquired a year old Rottweillor he named “Rumsfeld”. Poor Rumsfeld spent all day tied up on a 50 foot line in Mr. Huff’s unfenced yard, while Mr. Huff watched daytime TV. Mr. Huff is on disability because he weighs 350 pounds and stands 5’6 feet tall.
On that Sunday after church, Darrell snuck out of the house and went to Mr. Huff’s yard to rescue Rusmfeld. While Darrell was untying the end of Rumsfeld’s line from the dog house, Mr. Huff saw him through the window. Mr. Huff rushed out the back door and was standing between Darrell and the street. Darrell panicked and started running toward the street holding the end of Rumsfeld’s giant leash. Rumsfeld started running parallel with Darrell 50 feet away so that Mr. Huff was suddenly confronted with a long rope weighted down on either side coming toward him. He turned around and started running as best he could. Darrell and Rumsfeld kept running through the yard and past Mr. Huff. The rope hit Mr. Huff on the back of his legs causing his legs to go out from under him. He fell on his buttocks hard, breaking his tailbone and injuring his pride.
Instead of suing Darrell’s mother, who had no insurance, Mr. Huff’s attorney, Sleazy sued Happy Home on Oak Street for Mr. Huff’s personal injuries.
Problem: Can Mr. Huff sue the Happy Home on Oak Street when Darrell was under the supervision of his mother?
According to the Texas Supreme Court, they may be able to sue and not have the case thrown out before it is tried. In Texas Home Management Inc. v. Peavy, a consumer with violent tendencies was allowed to go home to visit his mother as the regulations require. While in his mother’s care, he committed a carjacking, killing the victim in the process. The provider filed a motion for summary judgment pointing out that it had no duty to prevent the consumer’s criminal activity—especially since he was visiting his mother at the time. The trial court agreed and granted the motion for summary judgment. That is where reality ended and the nightmare began.
The Court of Appeals in Houston decided that: “a special relationship existed between THM and Dixon sufficient to impose a duty on THM to control Dixon ‘s behavior.” And further, the court of appeals further concluded that fact questions had been raised about THM’s “duty to use reasonable care in determining whether Dixon was allowed to continue unsupervised home visits.”
The Texas Supreme Court agreed!! And this is in spite of the regulations that require you to let your consumers visit their family. Even with the regulations, the Texas Supreme Court decided that THM had not sufficiently proved that they had to let the consumer go visit his mother. Also, even though a criminal judge in the juvenile system had placed the consumer in the home for habilitation with TDHS’s concurrence, the court seems to think that the home should be held responsible for admitting someone they couldn’t control while he was not on the premises of the home. They seem to think that the provider should have convinced the judge and TDHS that this consumer should have gone to an penal institution in the first place.
Justice Hecht dissented, pointing out that this decision flies in the face of the State’s goal to habilitate consumers such as the one involved here. He points out that by putting such a duty on the provider; the outcome is that consumers like the one here will end up in the penal system rather than home like settings.
Since it appears that the Texas Supreme Court has taken leave of its senses, I believe that you are going to have to protect yourself using new techniques. You will need to develop a technique that will enable you to control the consumer at all times even when he or she is in public school or at his parent’s home.
I have one suggestion. I saw this thing in a book called New Age Religions and Cults. It’s called channeling. That’s where one person’s spirit enters and controls another person’s body. I found one of the practitioners of this religion in the book. She’s this interesting looking lady who somehow throws her spirit out so it can go do things while she sits around in a fairy outfit.
So if you have a consumer with behavior problems who might hurt someone while they are home with their parents, your QMRP might have to dress up like Tinkerbell and throw his or her spirit out so that it channels through the consumer and controls the consumer’s behavior while he is away from the home.
If that doesn’t work, maybe we should consult with the Raelians so that you can clone yourselves and therefore have extra people to follow all the consumers around all day every day.
If you are a follower of either of the above religions, please do not be offended. In fact, at the next PPAT seminar, we may need your help in learning how to throw our spirits around. So, if any of you owns a Tinkerbell outfit, please let me know.
To be continued . . .
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