When it comes to the law and regulations, there are way more than 50 shades of gray.

By Pam McDonald

50 Shades of What . . .

When it comes to the law and regulations, there are way more than 50 shades of gray. Title 22 of the Health and Safety Code, directing the operations of assisted living communities (RCFEs in California), is no exception.

Those gray “regs” allow for program flexibility and innovation, as well as individual “style” (company or community culture). But when there are questions of liability or criminality and practices blur, bend, or break the law, you’ve opened yourself up to microscopic scrutiny where evidence, intent, interpretation, and precedent all can be argued.

On the Ragged Edge . . .

Most of us in senior living have seen or heard of incidences hovering near or crossing the legal line. We know – at least in the back of our minds – of some pretty questionable choices and omissions that have been made by senior living staff or leaders.

For example, I learned that a community, which was a marketing client of mine, had experienced a substantial kitchen fire. But the staff never reported it to “Licensing” as required, or even to their own corporate office.

They handled it . . . with box lunches and ordering out. No one was hurt, no one complained, no one was the wiser. But these kinds of incidents don’t always have happy endings. Which brings us to the following case.

Over the Ragged Edge . . .

Today (Mar. 22), Mr. Christopher E. Skiff, the owner of The Manse on the Marsh assisted living community in San Luis Obispo, California, is scheduled to surrender to law enforcement to begin a jail sentence for felony elder abuse and involuntary manslaughter related to the death of a Manse resident on December 21, 2014.

Before I write another word, I want to make it absolutely clear that I am not a lawyer. I did not attend Mr. Skiff’s trial, nor have I read the court transcript. I don’t know Mr. Skiff and have never been to The Manse. I only know about this case from media coverage by mainstream news outlets in the San Luis Obispo area.

A number of significant “facts” were hotly contested during the trial. But to draw a clear picture of this slippery slope, I share the following information from news reports about the case:

  • On December 21, 2014, 65-year-old Manse resident, Mauricio Edgar Cardenas, was struck and killed by a car while on a walk about 10 miles from the community.

  • Mr. Cardenas had a diagnosis of either mild cognitive impairment or dementia when he was accepted as a resident of the Manse

  • The state Attorney General’s Office filed charges against Mr. Skiff and his assistant, Gary Lee Potts, in July 2016 for felony elder abuse and involuntary manslaughter.

  • If convicted, each man faced a maximum of eight years in state prison. Potts’ trial has yet to begin.

  • The Manse had been cited by Licensing in 2007 and in 2008 for accepting dementia residents without fully meeting licensing requirements, including having a dementia care plan in place. They re-submitted a plan in 2009 but later withdrew it.

  • A statement from The Manse that was included in trial testimony said Cardenas was “a jogger who was cleared by his physician to leave the property unassisted and he did so frequently without prior incident.”

  • It further stated that Licensing’s “review of what happened, along with relevant paperwork, exonerated us of any wrongdoing.”

  • A deputy with the AG’s Office who prosecuted the case argued that Skiff and Potts sought to increase profits by accepting Cardenas even though they knew they weren’t licensed to care for him. 

  • Skiff’s attorney disputed this, along with the claim that the community couldn’t take Cardenas with the mild cognitive impairment diagnosis. They argued that the DOJ got involved after receiving complaints from “disgruntled ex-employees”.

  • On December 11, 2018, Skiff was found guilty by the jury.

  • The judge sentenced him to a 5-year prison term, which was suspended pending completion of 5 years of formal probation. The judge ordered Skiff to county jail for 6 months.

The moral of the story to my state-the-obvious way of thinking is don’t break the law. But, Senior Housing Forum Publisher Steve Moran (who oftentimes serves as the Jiminy Cricket of our industry) thought there were more lessons to be learned, including the following:

  • If you’re going to be operating in gray areas, get the family onboard immediately and keep them in the loop about everything.

  • Go so far as to have them sign off on your plans and actions.

  • Document, document, document, crossing every T and dotting every I, knowing full well that the community’s records can be subpoenaed.  

  • If you have reason to believe that an employee is unhappy, start discussing this with him or her as soon as possible.

  • Don’t let bad feelings fester and especially don’t hide from those “difficult” discussions.

  • If you need help with sensitive conversations, get it – from your company’s HR personnel or a third party.

Depending on how well you handle a situation like this, you might turn a disgruntled employee into your biggest supporter.

Note from Steve Moran: It is personally painful, but right to publish this article. Chris is someone I know and consider to be a friend. I had a few very high level conversations with him about this case when it first became public and he felt that he was going to beat this.

I would only add, that we are dealing with tough, no-great-solutions issues every day and it is a lesson that we have to be very wise in every decision we make.