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TitleAddressing Liability Issues in Consumer-Directed Personal Assistance Services
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Addressing Liability Issues in Consumer-Directed
Personal Assistance Services (CDPAS)

________


The National Cash and Counseling Demonstration
and Selected Other Models


January 2004



Submitted to:
Boston College Graduate School of Social
Work (Subcontract No. 975-2)
140 Commonwealth Avenue
Chestnut Hill, MA 02467

Project Officers:
Kevin J. Mahoney, Ph.D
Pamela Doty, Ph.D – U.S. DHHS/OASPE

Funder:
U.S. Department of Health & Human Services
Office of the Assistant Secretary for Planning
and Evaluation (U.S. DHHS/OASPE)

Prepared by:
Charles P. Sabatino, J.D.
Sandra L. Hughes, J.D.
Commission on Law and Aging
American Bar Association
740 Fifteenth St., N.W.
Washington, D.C. 20005







This report was prepared under contract #HHS-100-02-0018 between the U.S. Department of
Health and Human Services (HHS), Office of Disability, Aging and Long-Term Care Policy
(DALTCP) and Boston College. For additional information, you may visit the DALTCP home
page at http://aspe.hhs.gov/daltcp/home.htm or contact the ASPE Project Officer, Pamela Doty, at
HHS/ASPE/DALTCP, Room 424E, H.H. Humphrey Building, 200 Independence Avenue, SW,
Washington, DC 20201. Her e-mail address is: [email protected]

The opinions and conclusions expressed are solely those of the authors and should not be
construed as representing the opinions or policy of Boston College or DHHS/ASPE or any
agency of the Federal Government.

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and following agreed upon procedures. Concerns about liability should not deter

agencies and individuals from serving as consultants.303

A. Negligent Designation of an Authorized Representative

The procedures for appointment of an authorized representative create potential

liability issues for both the states and consultants. In each of the three Cash and

Counseling states, the state has elected to adopt relatively informal criteria and

procedures for the selection of representatives. The procedures that are in place in

Arkansas and New Jersey suggest that these states view the appointment of a

representative as the consumer’s right and responsibility and the role of the consultant as

merely to explain and document the process. However, because the procedures in all

three states are so informal, the consultant may, in fact, play a significant role, at least in

some cases, which creates the risk that a consultant may be sued for negligence in

connection with the designation of, or the failure to designate, a representative.304 The

procedures in each of the three states can be briefly described as follows:

In Arkansas, “[t]he question of who to select as a representative was usually

settled informally,”305 and the final report on implementation of the Cash and

Counseling Demonstration concluded that “[t]here was no need in Arkansas for a

formal process to determine the need for a representative or identify one.”306

Although the state has not adopted formal criteria and procedures to determine

whether a representative is needed and, if so, who should serve in that capacity,


303 It is also possible, although not likely, that the law in the consultant’s state may extend governmental
immunity to government contractors in some circumstances, thus providing consultants with additional
protection against liability. See the discussion of this issue in Section III.C, supra.
304 This informality also exposes the state to potential liability for failure to comply with due process
standards, as we discuss later in Section V.B.
305 ARKANSAS IMPLEMENTATION REPORT, supra note 19, at 91.
306 Id. at 94.

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the state does use two forms in connection with the designation. The first form,

the “IndependentChoices Designation of Authorized Representative,” is signed by

both the consumer and the representative and authorizes the representative to “use

the IndependentChoices monthly allowance to purchase the services and items to

meet my personal care needs as listed on the Cash Expenditure Plan and… assure

that all items purchased and services received with the IndependentChoices

allowance are paid.”307 In addition, the representative must review a list of

“representative requirements” and then complete and sign the

“IndependentChoices Representative Screening Questionnaire.”308 [See copy at

APPENDIX D.] The representative is designated and the forms are usually

completed under the supervision of the consultant.309 These procedures all add

helpful clarity and deliberateness to the designation of a representative by a

consumer. In addition, as a safeguard, the contracts between the state and the two

agencies that provide consultant services require the agencies to engage in more

intensive monitoring when a representative has been designated.310


307 IndependentChoices Designation of Authorized Representative, Arkansas Division of Aging and Adult
Services (October 1998).
308 IndependentChoices Representative Screening Questionnaire, Arkansas Division of Aging and Adult
Services (October 1998). The “representative responsibilities,” which are listed in an attachment to the
questionnaire, include: “show a strong personal commitment to the participant; show knowledge about the
participant’s preferences; agree to visit the participant at least weekly; be willing and able to meet all
program requirements listed of the participant;” and “obtain the approval of other family members to
serve.”
309 ARKANSAS IMPLEMENTATION REPORT, supra note 19, at 92.
310 The contracts require the agencies to “[d]emonstrate that the Contractor [i.e., the consultant agency] and
any proposed subcontractor(s) will have a plan to ensure that representatives serving on behalf of
participants are acting in the best interest of the participant and will develop a separate monitoring plan for
each individual situation. Monitoring must be frequent enough to ensure the safety and well being of the
participant. Monitoring for participants using a representative shall be, at least initially, more stringent than
for participants who choose to self-manage.” Contract for fiscal year 2003 between the State of Arkansas
and the Phillips County Development Center, Attachment IV at 4-5; Contract for fiscal year 2003 between
the State of Arkansas and Aspen Management Group, LLC, Attachment IV at 4-5.

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APPENDICES




APPENDIX A:

Table of Cases cited in Section II: Potential Liability Arising
from the Relationship between Consumers and Workers


APPENDIX B:

Table of Other Cases that Dire ctly Address CDPAS Liability
Issues


APPENDIX C: FLORIDA

Consumer Directed Ca re Research Project
Consumer/Consultant Agreement


APPENDIX D: ARKANSAS

Independent Choices
Representative Screening Questionnaire
Designation of Authorized Representative Form


APPENDIX E: NEW JERSEY

Personal Preference Program
Representative Description
Procedures for Establishment of an Authorized

Representative
Representative Screening Questionnaire
Designation of Authorized Representative Form

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