Thursday, July 7, 2011

Can assisted living home employees sue for retaliatory discharge?

Does a statutory cause of action exist for retaliatory discharge against an assisted living facility?

El Paso Court of Appeals finds that private cause of action is available and affirms a judgment in excess of $134,000 plus post-judgment interest in favor of a former nursing home employee.


[ Employer - Nursing Home ] argues that the provisions of the Assisted Living Facility Licensing Act do not create a private cause of action for an aggrieved employee. TEX.HEALTH & SAFETY CODE ANN. § 247.068. This is a question of statutory construction, which we review de novo. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). Our primary objective in construing any statute is to determine the Legislature’s intent in enacting the particular provision, and to give that provision its intended effect. Ramirez, 109 S.W.3d at 745. We must interpret the statute according to the plain meaning of the language used, and must read the statute as a whole without giving effect to certain provisions at the expense of others. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). Each word, phrase, or expression must be read as if it were deliberately chosen, and we will presume that words excluded from a provision were excluded purposefully. Gables Realty Ltd. Partnership v. Travis Central Appraisal Dist., 81 S.W.3d 869, 873 (Tex.App.--Austin 2002, pet. denied).

Section 247.068 provides:

(a) A person licensed under this chapter may not retaliate against a person for filing a complaint, presenting a grievance, or providing in good faith information relating to personal care services provided by the license holder.

(b) This section does not prohibit a license holder from terminating an employee for a reason other than retaliation.
TEX.HEALTH & SAFETY CODE ANN. § 247.068 (West 2010). The question presented is whether this provision was intended to create a private cause of action upon which an aggrieved employee can personally sue an offending employer, or whether the Legislature intended only to provide the Department with the authority to penalize facilities for retaliatory actions. We begin our analysis with other subchapters of the Health and Safety Code. Legislation relating to the creation and administration of health facilities in Texas is compiled in Title IV of the Code.

Convalescent and Nursing Homes

Chapter 242 relates to convalescent and nursing homes. Section 242.133 provides in pertinent part:

§ 242.133. Retaliation Against Employees Prohibited
. . .
(b) An employee has a cause of action against an institution, or the owner or another employee of the institution, that suspends or terminates the employment of the person or otherwise disciplines or discriminates or retaliates against the employee for reporting to the employee’s supervisor, an administrator of the institution, a state regulatory agency, or a law enforcement agency a violation of law, including a violation of this chapter or a rule adopted under this chapter, or for initiating or cooperating in any investigation or proceeding of a governmental entity relating to care, services, or conditions at the institution.
(c) The petitioner may recover:

(1) the greater of $1,000 or actual damages, including damages for mental anguish even if an injury other than mental anguish is not shown and damages for lost wages if the petitioner’s employment was suspended or terminated;
(2) exemplary damages;
(3) court costs; and
(4) reasonable attorney’s fees.
(d) In addition to the amounts that may be recovered under Subsection (c), a person whose employment is suspended or terminated is entitled to appropriate injunctive relief, including, if applicable:
(1) reinstatement in the person’s former position; and
(2) reinstatement of lost fringe benefits or seniority rights.
TEX.HEALTH & SAFETY CODE ANN. § 242.133 (b)-(d). Subsection (e) provides the requisite statute of limitations. Subsection (f) places the burden of proof on the petitioner, but imposes a rebuttable presumption that the person’s employment was suspended or terminated for reporting abuse or neglect if the person is suspended or terminated within sixty days after the date the person reported in good faith. Subsection (g) then establishes three alternative venues. Clearly, the Legislature manifested its intention to provide a private cause of action for violations of Chapter 242.

Intermediate Care Facilities for the Mentally Retarded

Chapter 252 addresses intermediate care facilities for the mentally retarded. Section 252.132 speaks to retaliation against an employee and virtually mirrors the language of Chapter 242 with regard to a private cause of action, venue, statutes of limitation, and recoverable damages. TEX.HEALTH & SAFETY CODE ANN. § 252.132.

Mandatory Overtime for Nurses

Chapter 258 prohibits mandatory overtime for nurses. Section 258.005 further prohibits a hospital from suspending, terminating, disciplining, or discriminating against a nurse who refuses to work mandatory overtime. TEX.HEALTH & SAFETY CODE ANN. § 258.005 (West 2010). It contains no reference to administrative penalties or a private cause of action.

Restraints and Seclusion

Chapter 322 prohibits certain restraints against a resident of a facility. Section 322.054 provides that a facility may not discharge or otherwise retaliate against an employee because the employee files a complaint, presents a grievance, or otherwise provides in good faith information relating to the misuse of restraints or seclusion at the facility. TEX.HEALTH & SAFETY CODE ANN. § 322.054. Subsection (b) allows a licensing agency to (1) revoke, suspend, or refuse to renew the license, registration, or certification of a facility that violates this provision, or (2) place a facility in violation on probation. The statute provides no remedy other than administrative penalties.

Ambulatory Surgical Centers

Chapter 243 relates to ambulatory surgical centers. While it outlines provisions for licensing and penalties, it contains no retaliatory prohibition. The same is true for Chapters 244 (Birthing Centers), 245 (Abortion Facilities), 246 (Continuing Care Facilities), 248 (Special Care Facilities), 249 (Maternity Homes), 251 (End Stage Renal Disease Facilities), and 254 (Freestanding Emergency Medical Care Facilities).


The Health and Safety Code thus contains two chapters that affirmatively create a private cause of action and provide specific details as to venue, damages, limitations, and burdens of proof. One chapter prohibits retaliation but provides no recourse except administrative penalties. One statute prohibits retaliation, but provides neither an administrative penalty nor a private cause of action. Eight chapters outline provisions for licensing and penalties, but contain no retaliatory prohibition. We turn now to Chapter 247.

Assisted Living Facilities

We have already restated the retaliatory provisions of this statute. Subchapter C provides for general enforcement. Various sections within this subchapter specify remedies, including:

§ 247.041 -- Denial, Suspension, or Revocation of License
§ 247.042 -- Emergency Suspension or Closing Order
§ 247.043 -- Investigation of Abuse, Exploitation, or Neglect
§ 247.044 -- Injunction
§ 247.045 -- Civil Penalties
§ 247.0451 -- Administrative Penalty
Subchapter D contains the retaliation provision, the Residents’ Bill of Rights (Section 247.064), and the Provider’s Bill of Rights (Section 247.065). Blanco suggests that these provisions, not found elsewhere in the Code, indicate an intent to create a private cause of action.

All assisted living facilities are required to post a copy of the Residents’ Bill of Rights in a prominent place in the facility. TEX.HEALTH & SAFETY CODE ANN. § 247.064(b). The Bill of Rights must inform the residents of their right to:

(1) manage the resident’s financial affairs;
(2) determine the resident’s dress, hair style, or other personal effects according to individual preference, except that the resident has the responsibility to maintain personal hygiene;
(3) retain and use personal property in the resident’s immediate living quarters and to have an individual locked cabinet in which to keep personal property;

(4) receive and send unopened mail;
(5) unaccompanied access to a telephone at a reasonable hour or in case of an emergency or personal crisis;
(6) privacy;

(7) unrestricted communication, including personal visitation with any person of the resident’s choice, at any reasonable hour, including family members and representatives of advocacy groups and community service organizations;

(8) make contacts with the community and to achieve the highest level of independence, autonomy, and interaction with the community of which the resident is capable;

(9) present grievances on behalf of the resident or others to the operator, state agencies, or other persons without threat of reprisal in any manner;

(10) a safe and decent living environment considerate and respectful care that recognizes the dignity and individuality of the resident;

(11) refuse to perform services for the facility, except as contracted for by the resident and operator;

(12) practice the religion of the resident’s choice;
(13) leave the facility temporarily or permanently, subject to contractual or financial obligations; and
(14) not be deprived of any constitutional, civil, or legal right solely by reason of residence in an assisted living facility.
[Emphasis added]. TEX.HEALTH & SAFETY CODE ANN. § 247.064(b). None of these provisions provides a right or remedy to an employee.

Similarly, Section 247.065 contains the “Providers’ Bill of Rights,” which specifies that a “provider of personal care services” has the right to:

(1) be shown consideration and respect that recognizes the dignity and individuality of the provider and assisted living facility;
(2) terminate a resident’s contract for just cause after a written 30-day notice;
(3) terminate a contract immediately, after notice to the department, if the provider finds that a resident creates a serious or immediate threat to the health, safety, or welfare of other residents of the assisted living facility;
(4) present grievances, file complaints, or provide information to state agencies or other persons without threat of reprisal or retaliation;
(5) refuse to perform services for the resident or the resident’s family other than those contracted for by the resident and the provider;
(6) contact with the community to achieve the highest level of independence, autonomy, interaction, and services to residents;
(7) access to patient information concerning a client referred to the facility, which must remain confidential as provided by law;
(8) refuse a person referred to the facility if the referral is inappropriate;
(9) maintain an environment free of weapons and drugs; and
(10) be made aware of a resident’s problems, including self-abuse, violent behavior, alcoholism, or drug abuse.
[Emphasis added]. TEX.HEALTH & SAFETY CODE ANN. § 247.065(b). Only paragraph (8) of the Residents’ Bill of Rights and paragraph (4) of the Provider’s Bill of Rights [the right to present grievances, file complaints, or provide information to state agencies or other persons without threat of reprisal or retaliation] have a potential bearing on our analysis. Because these provisions offer no remedy for the prohibited retaliation, we must still look to Subchapter C which addresses statutory enforcement.

Blanco maintains that the language in Section 247.049, which is contained within Subchapter C, has no meaning unless a private cause of action was intended.

§ 247.049. Use of Regulatory Reports and Documents
(a) Except as otherwise provided by this section, a report or other document prepared by the department that relates to regulation of an assisted living facility is not admissible as evidence in a civil action to prove that the facility violated a standard prescribed under this chapter.
(b) Subsection (a) does not:
(1) bar the admission into evidence of department reports or other documents in an enforcement action in which the state or an agency or political subdivision of the state is a party, including:
(A) an action seeking injunctive relief under Section 247.044;
(B) an action seeking imposition of a civil penalty under Section 247.045;
(c) a contested case hearing involving denial, suspension, or revocation of a license issued under this chapter; and
(D) an action seeking imposition of an administrative penalty under this subchapter;

(2) bar the admission into evidence of department reports or other documents that are offered:
(A) to establish warning or notice to an assisted living facility of a relevant department determination; or

(B) under any rule or evidentiary predicate of the Texas Rules of Evidence,
(3) prohibit of limit the testimony of a department employee, in accordance with the Texas Rules of Evidence, as to observations, factual findings, conclusions, or determinations that an assisted living facility violated a standard prescribed under this chapter if the observations, factual findings, conclusions, or determinations were made in the discharge of the employee’s official duties for the department; or
(4) prohibit or limit the use of department reports or other documents in depositions or other forms of discovery conducted in connection with a civil action if use of the reports or other documents appears reasonably calculated to lead to the discovery of admissible evidence.

The question, then, is whether the enforcement subchapter contemplates a remedy that may be pursued when “the state or an agency or political subdivision of the state” is not a party. It does not. For that reason, Section 247.049(a) appears to be meaningless. This begs the question whether Subsection (a) authorizes a civil action by a resident or an employee against an assisted living facility for violations of Chapter 247. Emeritus has not directly responded to this question. It tells us, however, that the Legislature gave the Department the duty to impose “prompt and effective remedies for violations of this chapter and rules and standards adopted under this chapter.” See TEX.HEALTH & SAFETY CODE ANN. § 247.0011(b)(6). Its brief goes so far as to suggest that, “as a matter of law only the [Department] is authorized to redress complaints . . . .” But Section 247.049 bars admission of a Department report or document in all civil cases except those in which the state or an agency or political subdivision of the state is a party. So what are “all” of those “civil cases”? But for Section 247.049(a), we would wholeheartedly agree with Emeritus. Yet the Code Construction Act informs us that we should not construe a statute so as to render the law absurd or meaningless. As Justice Willett has recently articulated:

The meaning of a statute is a legal question, which we review de novo to ascertain and give effect to the Legislature’s intent. F.F.P. Operating Partners., L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007). Where text is clear, text is determinative of that intent. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006)(‘[W]hen possible, we discern [legislative intent] from the plain meaning of the words chosen.’); see also Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651-52 (Tex. 2006). This general rule applies unless enforcing the plain language of the statute as written would produce absurd results. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999). Therefore, our practice when construing a statute is to recognize that ‘the words [the Legislature] chooses should be the surest guide to legislative intent.’ Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999). Only when those words are ambiguous do we “resort to rules of construction or extrinsic aids.” In re Estate of Nash, 220 S.W.3d 914, 917 (Tex. 2007). [Emphasis added].

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)(Willett, J., concurring).

We thus conclude that a statute imposing evidentiary rules in civil cases in which the Department is not a party has no meaning whatsoever if only the Department can enforce the statute.

We overrule Issue One.

SOURCE: El Paso Court of Appeals - 08-09-00007-CV - 7/6/11


CASE DETAILS: Emeritus Corporation v. Lillian Blanco, No. 08-09-00007-CV (Before Justices McClure and Rivera, The Honorable Barajas (Visiting)(Opinion by Justice McClure affirming judgment of County Court at Law No 5 of El Paso County)  


El Paso Court of Appeals Recognizes Private Right of Action for Retaliation for Assisted Living Facility Employees - July 11, 2011 by Russell Cawyer 

SNIPPET: In an issue of first impression, the El Paso Court of Appeals has held that the Assisted Living Facility Licensing Act creates a private right of action for an employee who has filed a complaint, grievance of providing information in good faith relating to personal care services of the assisted living facility. [...]

This opinion appears to be in contrast to the longstanding rule in Texas that it is for the Legislature to create new causes of action and not for judicial bodies to do so. Given the lack of an express private right to file a lawsuit under the statute (when other provisions of the Health & Safety Code provide a remedy), I expect an appeal to the Texas Supreme Court with amicus briefs from the Assisted Living Facility interest and business groups that think a judicially created private cause of action in the absence of express statutory provision providing for such is unsupported by Texas jurisprudence.

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