Where no harm actually occurs and the allegation is just a “technical” violation involving lack of compliance with a specific WAC, many providers assume that the ultimate penalty could be probation, a warning, a slap on the wrist, an action plan, or remedial education. A tempting and commonsense response to the Department is to say, “No harm, no foul.” However, the consequences for even “victimless” violations, such as lack of adequate supervision or lack of proper training and background for staff, can be extreme. The scary truth is that the Department does not have to allege that any actual harm has occurred to one of your residents in order to shut down your business.
There is a line of cases in Washington addressing the so-called “No harm, no foul” argument. As applied to Adult Family Homes, the relevant case is Bond v. DSHS, 111 Wn.App. 566 (2002). In some ways, the facts in the case could not be any more sympathetic for the provider, Bond. She received an emergency phone call from her son, who was experiencing chest pain. She had previously lost another son who died of a heart attack. She was understandably very upset and quickly arranged for someone else to care for the residents while she raced to help her son.

The alternative caregiver, Anita, was familiar with the residents but had never been their sole provider before. In the haste of the moment, Anita also failed to tell Bond that she would be caring for seven children at the same time, three of her own plus four others. The residents of the Adult Family Home (AFH) were five severely developmentally-delayed adults. Three of the residents were autistic. One had cerebral palsy and pica. The fifth was deaf and blind.

By coincidence, while Anita was at the AFH filling in for Bond, the state inspector made an unannounced visit, along with a fire deputy marshal. Not surprisingly, what they found was Anita scrambling to care for the five residents and seven children. The children were playing unattended. One of the resident’s regularly scheduled caregiving needs went unmet. Anita was busy trying to make lunch for everyone. She didn’t know many of the details and routines of the home, such as how to access the care plans, how to get into the basement, where the medical records for the residents were or where their medical contact information was. She also did not have the proper training and background to be a sole provider. Her plan in case of emergency was to call 911.

Fortunately, all of the residents and children made it through the day without incident. Bond herself returned after about six hours. Her son was fine; he had suffered a bee sting.

But the story doesn’t end there. The next day the state returned, removed all of the residents and issued a summary suspension, stop placement, and license revocation. Bond appealed all the way to the Court of Appeals, losing at every stage of the litigation.

Ultimately the court held that the appropriate legal approach in these circumstances is not a commonsense “no harm, no foul” rule but instead the statutory inquiry of whether or not the residents had been placed in “imminent danger.” Having focused on the possibility of harm, rather than requiring the actual occurrence of harm, the court did not hesitate to rule once again in favor of DSHS, writing, “Given the fragility of the clients’ medical situations, the threat is always great that something could happen to them…Any possible harm, with catastrophic results, could have occurred for which Anita would have been unsuited to assist.”

The court also noted that, “One of our government’s most sacred duties is to protect those unable to care for themselves.” Likely no one would argue against the importance of caring for vulnerable people or suggest that they must come to harm before the state can get involved – such an approach would mean doing nothing to protect the health or welfare of vulnerable people despite known risks. However, the language of the court also has to make providers wonder how grave the risk has to be in order for the state to take the extreme measure of shutting down their entire business. The court emphasized the “fragility” of these particular residents. But many, if not most, adult family home residents are “fragile.”

At minimum, the lesson is to be mindful of risks, to do everything you can to avoid or at least minimize them, and to be proactive and not wait for something bad to actually happen to one of your residents before you take corrective measures. Providers would also be prudent to review the WACs regularly to make sure that they are in compliance and develop a plan for unexpected emergencies.

By: Ragnar Bloom
Attorney

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