Community Services and Long-Term Care: Issues of Negligence and Liability. I. INTRODUCTION


Changes in attitudes toward social services clients, availability of legal services for the poor and near poor, increased sophistication at all levels of society about human rights, legal doctrines such as charitable immunity, constitutional and other common law interpretations together with increasingly complex social, psychological and medical technologies directed at solving human problems have heightened social awareness about legal duties and obligations owed by health and welfare agencies. Sometimes this “awareness” is delineated by lawsuits.

Lawsuits, or even the threat of lawsuits, conjure up visions of bruising-courtroom confrontations, protracted litigation consuming inordinate amounts of time in preparation, gathering pretrial evidence, being interrogated in lengthy adversarial depositions, and the risk of monumental damage awards assessed against agencies and/or individuals.

Channeling agencies operating under the National Long Term Care Channeling Demonstration Program funded by the Department of Health and Human Services have complex assignments to assess the needs of older people requiring long term care, determine what services can best meet such needs, and arrange for the delivery of such services from a wide and disparate array of resources while continuing to “manage” the case to assure appropriateness of services. Responsibility for what happens to a client may be spread across several agencies, organizations and individuals, some of whom are agency employees, while others are volunteers from structured volunteer programs, neighbors, friends, employees or agents of the client.

Under such circumstances it was natural that channeling Site Directors expressed concern about the liability of channeling agencies, their employees-and others involved in the management and delivery of services to their clients.

The material that follows is intended to provide case managers, channeling agencies, social service agencies, volunteer bureaus and others with information about liability to which they, their employees, their agencies, volunteers, agents and others may be exposed. It is also intended to furnish guidelines and suggestions for avoiding liability, avoiding or minimizing risks of negligence, and in general demystifying the area of liability, negligence, and many aspects of legal relationships.

In general, the material here includes some overall discussion of legal concepts, rules, guidelines and definitions, and hypothetical situations, and questions and answers. The material is presented in looseleaf fashion in order to permit periodic additions, revisions and/or deletions based upon queries, comments and information received from agencies, organizations and individuals engaged in practice.

Please keep in mind that we have attempted to illustrate general legal principles. However, there may be considerable variation from state to state. Where such variation raises question, please don’t hesitate to contact Sheyna Wexelberg-Clouser, of the Channeling Staff at (215) 787-6970.

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