PLEASE HELP! Does our family have any legal recourse against an assisted living facility...

[NurseJackie]

Last edited Sat Nov 16, 2019, 05:07 PM - Edit history (1)

Does our family have any legal recourse against an assisted living facility for the lies and misrepresentations made by the "marketing department"?

I wasn't personally involved with the original decision to choose that facility for my sister, however, her children have kept me informed throughout, and I've been an advisor on the sidelines and offered guidance when asked (I'm also emotionally involved... obviously.) --- I've now been asked for my advice/opinion again, but this time I have no idea what to say.

Our family was told by the assisted living marketing department that live-streaming "Granny Cams" were allowed... no restrictions... no problems, as long as there's a sign that indicates surveillance in progress. For my niece and nephews, the ability to install Granny-Cams was an absolute requirement. (During their search for a suitable and affordable facility, those with restrictive camera policies were stricken from consideration.)

Two weeks after moving in, my sister's children were told that they need to remove the cameras due to the facility's "NO GRANNY CAM" policy. WTF?!! --- Our family was then told that the marketing department was mistaken and misinformed about a "new" policy (that had actually been in effect for over a year). And they're "sorry for the trouble it's caused".

My niece and nephews are furious and despondent. They want to move my sister to another facility... one that does permit granny-cams... but that is such a hassle, disruption and expense. (I think maybe the marketing department may be operating with the belief that once a family has their loved one all moved-in, the family will accept almost ANYTHING to avoid having to go through the hassle and expense of moving again.)

MY QUESTION TO YOU (and any DUers with legal minds) Does our family have any sound legal recourse against the facility?

--- The facility admits "miscommunication" and "misunderstanding" and is "sorry for the inconvenience" but my sister's children feel that they signed a contract and paid a deposit under false pretenses. Does this admission and apology strengthen any case we may have against them?

--- Legally, if we made an accusation of "false pretenses" does that require proof of malice? Or is "miscommunication" and an ill-informed sales staff enough to qualify as "false pretenses" when getting her children to pay a deposit and sign their lease?

--- Could my sister's children file a civil suit to force the facility to write an exception to their "no camera" policy (based on the lies of the marketing department)?

--- If they choose to move my sister to another facility, could her children file a civil suit to force the facility to refund the move-in deposit and to pay for moving expenses?

Basically: does our family have any legal recourse against this type of abuse, deception and/or incompetence? Or are we at the mercy of the assisted living facility?

I don't know what advice to give. Do you have any thoughts that I could share with them?

EDIT/UPDATE: THANK YOU everyone for your suggestions, tips and contributions... also thank you for you concern and warm wishes. In all likelihood this will not end as we hope that it will. BUT, WITH YOUR HELP, our family will have at least given it our best shot.

[beachbumbob]

1. every goes back to what is able to be proved/ Is there any written documentation? If so, then

perhaps a well versed letter from family attorney to the management could be suffice.

[The Velveteen Ocelot]

2. Some states have specific regulations governing nursing homes.

A few states (Illinois, Louisiana, New Mexico, Oklahoma, Utah, Texas, and Washington) have passed laws that permit cameras, so if you are in one of those states the facility probably can't remove them. You should check with a lawyer in the state where the home is located to find out about this and to resolve the other issues.

[NurseJackie]

7. Apparently Virginia law "allows" cameras in assisted living facilities...

Apparently Virginia law "allows" cameras in assisted living facilities, but nothing in the law prohibits facilities from having policies that prohibit them. Virginia law cannot compel a facility to allow cameras if the family wants them.

This happened about a week ago, and we're still in shock. I've been reading about one state (Oklahoma, I think) that has a state law which protects families by prohibiting a facility from having a "no camera" policy.

Sadly, moving her from Virginia to Oklahoma (or a camera-friendly state) isn't a realistic option.

Thanks for your comments.

[Raven123]

3. Seems to me they admitted the mistake, and you would have recourse but..

1) legal fees might make it a difficult fight for you
2) is there a written policy anywhere and if so, did anyone give it to your family? I had a relative in assisted living and the contract was multiple pages in length. I would expect it be included.
3) was there a witness to their admission of the error. Would help your case.

[jberryhill]

11. "the contract was multiple pages in length"

And it almost certainly included an integration clause (the clause in a contract that says "this is the entire agreement, no matter what anyone said during negotiations" ).

[NurseJackie]

14. That's a likely possibility.

In our family's "hour of need" an assisted living corporation has taken advantage. I'm sure they're prepared and have airtight contracts like that.

We're all very angry and we feel so helpless... confused... dismayed.

Thanks for your feedback.

[jberryhill]

17. As Dustlawyer notes...

There could be a relevant state law concerning trade practices which alters or can overcome the presumption established by an integration clause.

I can see why such cameras would be a problem, though, since other residents of the facility may come into view of such cameras without their informed consent, which could cause a variety of problems for the facility if they knowingly allow the cameras in there.

Would cameras capable of viewing other patients be allowed in any ordinary health care facility, for example?

[Rorey]

4. If it were my decision, and if I could afford it

I'd move her to another facility, and then I'd go after the lying one for the costs incurred. How can your family trust that this one will care for her properly when they willfully deceived everyone involved?

[NurseJackie]

10. Thank you... yes, that's an option that we've discussed: Move now, address the grievances later.

Thank you... yes, that's an option that we've discussed: Move now, address the grievances later.

My niece even suggested filing a civil suit against the individual sales-rep who fed them all the false information to begin with. (I think it's motivated more by wanting 'revenge' and to put that individual through some legal hassles. And even if damages were ordered to be paid, it's quite another thing to actually collect them.)

[Fla Dem]

15. Agree with this.

I would also pursue all expenses incurred with relocating your sister as well as any monies paid to the facility for the time your sister was there. Their facilities were selected under false pretenses and should not profit by the mistake they made.

[NurseJackie]

18. My nephew is now wondering "what are they hiding from" and ...

My nephew is now wondering "what are they hiding from?" and "what are they afraid of?"

We know that it's not illegal for cameras to be installed in Virginia assisted living facilities, so they're not afraid of violating state law.

We know that other assisted living facilities in Virginia have HIPAA disclaimer/consent forms and other release forms that protect the facility from any liability... so they need not fear that.

There's only one thing that remains... are they afraid of being held accountable for substandard care? For abuse? For neglect? For theft?

We ALL see this as a WARNING SIGN that they are trying to hide something from us.

Thanks for your comments!

[Fla Dem]

19. May not be hiding anything.

They may be a wonderful facility, but probably worried that a staff person could commit some act that would leave them vulnerable to a lawsuit. But you would think they'd want their patient's relatives to be as comfortable as possible.

[NurseJackie]

20. Yes... that would be my presumption too.

But you would think they'd want their patient's relatives to be as comfortable as possible.

Yes... that would be my presumption too.

My niece and nephews are not trying to "catch" someone doing something wrong... they use their Granny Cam feeds for virtual visits or quick check-ins throughout the day or overnight. They don't watch intently all day long looking for evidence of a crime or neglect. Instead, they find it comforting and reassuring to see that everything is RIGHT. It's a way for them to "be there" even though they can't be there all the time (we all live out of state).

[Rorey]

23. All I know is

I've had the experience of having both of my parents in a care facility for three weeks, and my favorite aunt in a facility for approximately a month. Either my brother or I were there everyday, so we saw what the care situation was during regular hours. Unfortunately the level of care wasn't always consistent with my aunt. I walked into her room one time when they obviously weren't aware that I was going to be showing up, and heard an aide speaking very harshly to her. I was livid, and it was very awkward. To this day, my heart rate goes up just thinking about it, and this happened nearly a decade ago. My brother and I made sure one of us was with our aunt every waking moment from that point forward until her death a few weeks later.

I'm curious about how the Granny Cam is set up. I would think that it would only be in her room, so your sister's family really wouldn't be able to witness a good part of her day. Still, there would be that level of assurance that she's okay during that time if they can check that Granny Cam periodically.

[NurseJackie]

24. I don't have daily access, but they've shown me how they can view it live on their laptops...

I don't have daily access, but they've shown me how they can view it live on their laptops. There are (were) two cameras in opposite corners of her one-room studio apartment with kitchenette. It's like a large hotel room. Full-size bed with a sitting area in front of the TV. --- Except for when my sister is in the bathroom or shower, either camera was able to view her.

Her pain and mobility issues (along with dementia) keep her in bed, or in a recliner watching TV or listening to music on her Alexa.

We are THRILLED that she can remember to ask Alexa to play music... she remembers a few favorite artists, or "play country music". She can also remember the commands to turn on/off the bedside lamp.

It's very troubling for them to have to be forced to give up that connection and reassurance.

OH!! I just remembered... Sis forgets to press her call button after she's fallen. She just lays there (or sits there) and waits for someone to discover that she's down. My niece was able to see that she had fallen off the front of her recliner---a failed attempt to stand up---and was able to alert the nurse's station.

So, in addition to providing comfort and connection to her kids, they are also able to PARTICIPATE (to some extent) in her care.

[Rorey]

25. Well, that explains everything

I'm guessing that their policy on Granny Cams suddenly got changed when they got nudged to do things for your sister, like pick her up when she fell.

Seriously, what a wonderful thing to be able to keep an eye on her remotely. It could be life saving. I'd have to seriously question the reasoning of the care facility that wouldn't allow such a valuable tool.

[NurseJackie]

29. You'd think they'd be grateful that her children were participating with her care...

I'd have to seriously question the reasoning of the care facility that wouldn't allow such a valuable tool.

I know! You'd think they'd be grateful that her children were participating with her care... even if it was digitally and virtually. Nobody was holding them accountable for the fact that my sister forgot (or refused) to use her call button. Nobody was blaming them for not checking in on my sister every five minutes.

I know my sister's dementia is getting worse and she forgets to use her rollator, and she forgets to call for help. So when I first heard the story of how my niece was able to alert the nurse's station, I thought it was the neatest thing ever!

They aren't monitoring her every move 24/7 but between the three of them, they check on her periodically throughout the day and night just to confirm that she's okay and that everything is as it should be. I'm just appalled that they're being treated this way.

[badhair77]

5. I don't have any answers not already expressed but your post

is a learning experience for me. These issues are to be considered when we get to assisted living stage in our household.

[NurseJackie]

16. I wasn't present for the presentations and promises...

I wasn't present for the presentations and promises... but I'm now getting the feeling that the corporation behind this assisted living facility is much like a Used Car Dealership. Friendly sales staff, making any promise or representation to get a deposit and signature... then screwing the family over.

The onset of my sister's physical limitations and her dementia have been gradual, but the need for assisted living and constant supervision (especially with her meds) came on rather suddenly. A decision needed to be made quickly, and this facility was ready to take advantage of that fact.

It's unforgivable.

[Phoenix61]

6. Sounds like a bait and switch.

As previous post said, it’s all in what is in writing. I would definitely want to move her.

[jberryhill]

8. Do you have a copy of the written agreement admitting her?

If so, then you want to look for a clause like this:

https://en.wikipedia.org/wiki/Integration_clause

[NurseJackie]

12. Thank you!

That's very helpful. I'll pass along that information and we'll add it to the things that we discuss and consider.

[Dustlawyer]

9. A lot depends on your states laws.

You MAY find an attorney who will take the case on a contingent fee contract which means they only get paid if they recover for you, then they take a percentage.

In Texas we have the Texas Deceptive Trade Practices Act which would cover this situation. Your state may have something similar. Many times just having a claim or threat of a claim against them will get them to relent.

[NurseJackie]

21. Thanks for the tip. We'll add that in the mix and do some investigating...

Thanks for the tip. We'll add that in the mix and do some investigating to see if Virginia has anything equivalent.

[Anon-C]

13. What if you maintain or reinstall the grannycams and resume streaming?

Will they refuse care or services, will they move to evict your her?

[Major Nikon]

22. I'd be more interested in the reason why they changed the policy

Employee caught doing something inappropriate or illegal?

Granny sex cam?

[discntnt_irny_srcsm]

26. Is this a single standalone private facility or one owned by a large corp?

Private ones may be negotiable if you talk to the right people, maybe the CEO, owner or director.
You can try public relations with a large corp.
Just because there's an existing policy doesn't mean that policy can't change.

Hidden cameras are available in clocks, chargers and light bulbs. If you have one at all, I recommend having at least 2 and make one a hidden unit. Maybe I don't trust people.

Since converting from Republican to Democrat I'm kind of in the suspicion business.

[NurseJackie]

27. I do not know if it's a private facility... but I doubt it.

We had considered trying to publicly shame them by approaching the local news to see if they'd be interested in doing a story about "Local Assisted Facility Has Bait-and-Switch Practices... tune it at 11 for more"

Over the past week, I've gotten my tech-y son involved and he was able to find some affordable hidden camera wifi devices (disguised as ordinary items) and that may ultimately be what my niece and nephews end up doing.

My fear is that the admins and other folks at the assisted living facility probably scour Amazon to familiarize themselves with the latest and greatest hidden-camera tech. It wouldn't surprise me if they have a "mugshot" notebook (with photos of specific clocks/picture frames/books/etc) that the staff must familiarize themselves with... or that they can use as a reference if they think they spot something suspicious.

Until they can afford to move my sister, it's likely going to end up being an adversarial relationship built on a foundation of distrust and resentment. It will be a game of cat-and-mouse and trying to find the best wifi cameras that can be easily hidden or that can operate in plain sight without arousing suspicion.

If you have one at all, I recommend having at least 2 and make one a hidden unit.

Yes... the idea of adding MULTIPLE cameras is a good one (in the event that one or two are found.)

Thanks very much for your comments.

[discntnt_irny_srcsm]

28. I consider it emotionally and absolutely legally criminal for...

...those charged with life care for those not able to care for themselves and those who may just need a bit of help to be abusive. Anything other than clear information and absolute candor is awful.

One of the reasons we have a military and a national guard is to defend and fight for those who can do neither for themselves. At least that's the way it was suppose to be. That's why the military and the guard are held to higher standards than civilians. It should be that way also (higher standard) for trusted care workers and facilities.

As far as the hidden cameras, switch them around. You may also want to get a sweeper to detect any bugs or cameras the facility has in place.

[NurseJackie]

30. THANK YOU everyone for your suggestions, tips and contributions...

THANK YOU everyone for your suggestions, tips and contributions... also thank you for you concern and warm wishes. In all likelihood this will not end as we hope that it will. BUT, WITH YOUR HELP, our family will have at least given it our best shot.