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Applicable to ICF-MR’s
Posted March 25, 2003
The recent Texas Supreme Court Case, Texas Home Management, Inc. vs. Peavy has, again, proven the axiom, bad facts make bad law. In October 2002 the Texas Supreme Court held that an ICFMR might be liable for a murder committed by a resident, while he was on an unsupervised home visit. A facility owned and managed by Texas Home Management, Inc. (“THM”) allowed a consumer with violent tendencies, named Dixon, to go home to visit his mother While in his mother’s care, he committed a carjacking, killing the victim in the process.
After their daughter’s tragic death, the Peavys sued THM, alleging that THM was grossly negligent in breaching its duty to supervise and control Dixon. THM argued that it had no duty to prevent the murder Dixon committed since he was visiting his mother at the time of the crime. The trial court agreed but the Court of Appeals decided “a special relationship existed between THM and Dixon sufficient to impose a duty on THM to control Dixon’s behavior.” The finding that THM had a duty to control Dixon’s behavior meant that THM could be liable for the murder .
Question: Can an ICFMR be held liable for a crime committed by a resident during an unsupervised home visit?
Answer: Yes. In October 2002 the Texas Supreme Court held that an ICFMR might be liable for a murder committed by a resident during an unsupervised home visit.
Dixon committed in spite of federal and state regulations that encourage residents’ frequent and informal leaves from a facility for visits, trips and vacations[1]. The Court held that THM should have stopped Dixon’s visits in light of the foreseeable threat that Dixon posed to third parties.
When does a duty exist?
Whether a duty exists is a question of law for the court. The court balances a number of factors:(1) the risk and foreseeability of injury (2) the relationship between the parties and (3) public policy considerations.
How should Texas ICF-MRs approach unsupervised visits in light of this decision?
The Court held that THM had a duty to use reasonable care in determining whether Dixon should be allowed go on unsupervised home visits. THM, according to the court, did not exercise reasonable care and as a result was held liable for Dixon’s criminal activity. Texas ICF-MRs must continuously evaluate whether or not they are using “reasonable care.” In determining what “reasonable care” is it is helpful to look at the facts the court considered in THM .v. Peavy:
- Dixon was verbally and physically abusive to Lakewood House staff, other residents of the facility, and other students at his school.
- Dixon was involved in nineteen assaults, seven other instances of criminal conduct, and nine incidents of verbal threats while he resided at Lakewood House.
- Evidence also indicated that Dixon’s behavior was more manageable in a structured environment. On brief visits to Houston, Dixon burglarized an apartment and threatened its occupant, trespassed on private property, committed assault with a hand gun, and stole two cars.
The Court held that, based on this behavior, THM should have foreseen the danger inherent in Dixon’s unsupervised trips. Consequently THM failed to exercise its duty of reasonable care by allowing Dixon to continue to visit his mother in Houston unsupervised by facility personnel. The Court chose to ignore any explanation of how an ICF-MR would do this and still comply with the State Regulations.
In the event that an ICFMR has a consumer whose behavior is as anti-social and violent as Dixon’s was, it is clear that that consumer should not be allowed to go on unsupervised visits. The challenge is evaluating the foreseeable risk/danger presented by consumers whose behavior is not as extreme as Dixon’s. Hence, bad facts make bad laws. This decision establishes a compelling precedent for plaintiffs’ lawyers, let’s hope that the courts choose to limit – not expand its application.
Therefore, when dealing with consumers with these sorts of issues, be very vigilant regarding the following:
- Be proactive in assessing whether the placement in your facility is appropriate,
- If placement is not appropriate, document this in detail and extensively and begin discharge procedures,
- If a court is involved in the placement, make recommendations to the court regarding the advisability of allowing unsupervised visits. In Peavy, it is probable that the Judge could have issued an order restricting the consumer from unsupervised visits.
- Document your reasons and efforts to prevent unsupervised visits.
- For consumers whose behavior is not as extreme, and for whom unsupervised home visits are appropriate, keep the behavior management programs current and up to date and document religiously. Educate family members regarding appropriate interventions.
Above all, be reasonable in your approach. Do not ignore common sense when applying the regulations. Do not ignore potentially dangerous situations simply because you believe that the regulations give you no options.
[1] 42 C.F.R. § 483.420(c)(5) (“The facility must promote frequent and informal leaves from the facility for visits, trips, or vacations.”); 16 Tex. Reg. 3525, 3527 (1991) (formerly 40 TEX. ADMIN. CODE § 27.201(c)(6))(“No participating facility may engage in any of the following restrictive practices … prohibiting an individual from leaving the facility at will except as provided by state law.”).
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
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Email: Info@Garloward.com
