Ohio has two statutes that concern suspected abuse or neglect at nursing homes and residential care facilities: R.C. 3721.22(A) requires reporting of suspected abuse or neglect to the Director of Health and R.C. 3721.24 provides whistleblower protection to any person who, in good faith, makes a report of suspected abuse or neglect of a resident and prohibits retaliation for such conduct.
In Hulsmeyer v. Hospice of Southwest Ohio, Inc., 142 Ohio St.3d 236 (2014), the Supreme Court of Ohio held that to be eligible to claim retaliation for reporting, or showing an intent to report, suspected abuse or neglect of a resident of a long-term care or residential care facility, an employee or other person who performs work or services for the facility is not required to make that report, or show the intent to make such a report, to the director of the state health department.
This particular hospice provider rendered palliative care to patients who were terminally ill where they reside, in this case in a residential care facility. In the Hulsmeyer case the hospice provider hired Patricia Hulsmeyer as a registered-nurse care manager and later promoted her to team manager. As team manager, she oversaw the care of hospice patients and monitored the work of other hospice nurses and aides.
In October 2011, a hospice nurse indicated to Hulsmeyer that she saw bruising on a patient and suspected abuse, and forwarded photos to Hulsmeyer’s cell phone. Hulsmeyer called the residential care facility operator and reported the suspected abuse or neglect to the director of nursing. She also reported the suspected abuse to the patient’s daughter. Hulsmeyer alleged that she reported the abuse to the chief clinical officer of the hospice provider, something that the chief clinical officer denied.
On November 30, 2011, the hospice provider terminated Hulsmeyer under a policy that “all suspected abuse, neglect, or exploitation of children will be immediately reported to CEO/designee.” The hospice provider based Hulsmeyer’s termination on three incidents: (1) Hulsmeyer permitted photos of the patient to be taken without authorization; (2) Hulsmeyer notified the residential care facility operator and the patient’s daughter of the suspected abuse or neglect without first notifying the hospice provider; and (3) Hulsmeyer improperly shared the patient’s photos at a patient-care conference to discuss the patient’s care.
Hulsmeyer filed a complaint against the hospice provider, alleging retaliatory discharge for terminating her for reporting suspecting abuse or neglect. The hospice provider filed a motion to dismiss, alleging that a retaliatory discharge claim fails unless the employee reported the suspected abuse or neglect to the Ohio Department of Health, which Hulsmeyer admittedly did not. The trial court agreed and granted the motion to dismiss Hulsmeyer’s retaliatory discharge claim.
The court of appeals reversed and held the plain language of R.C. 3721.24(A), the statute that provides so-called "whistleblower protection" when reporting suspected abuse or neglect of a resident, does not require the employee to report suspected abuse or neglect to the Ohio Director of Health in order to protect the employee for retaliation.
On appeal, the Supreme Court of Ohio considered the statutory intent of the General Assembly, but ultimately found that R.C. 3721.24 was not ambiguous. In a 6-1 decision, the court noted that while reporting to the Director of Health is a requirement of R.C. 3721.22(A) (which requires reporting of suspected abuse or neglect), it is absent from R.C. 3721.24 (the whistleblower protection statute). Therefore, the general assembly did not intend to require reporting to the Director of Health a requirement for a retaliatory discharge claim. Rather, the purpose was to protect persons from retaliatory discharge for reporting suspected abuse or neglect.
Therefore, to be eligible to claim retaliation for reporting, or showing an intent to report, suspected abuse or neglect of a resident of a long-term care or residential care facility, an employee or other person who performs work or services for the facility is not required to make that report, or show the intent to make such a report, to the director of the state health department. Nevertheless, it remains a statutory duty that a licensed health professional who knows or suspects that a resident has been abused or neglected, or that a resident's property has been misappropriated, by any individual used by a long-term care facility or residential care facility to provide services to residents, must report that knowledge or suspicion to the director of health.
The Supreme Court of Ohio did not rule on the specific merits of Hulsmeyer’s retaliatory discharge claim. However, employers should be aware of the expanded retaliation protection, regardless of whether the person reporting suspected abuse reports it directly to the Ohio Director of Health.
If you would like a copy of the Hulsmeyer decision, or have any question with respect to employment practices or long term care, please feel free to contact one of our Employment Practices Liability or Long Term Care Liability Practice Group Members.
This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.
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