There used to be a legal doctrine with "superior" in the description. Might have been caveat superior. I'm not really sure though. (I'll wake up in the middle of the night and remember it.) It addressed responsibility by an employer for an employee.
Under that doctrine, the agency would be responsible.
Note, however, that some agencies include clauses that they're secifically not responsible in situations like this. I learned that when I was trying to find a private duty agency with a decent contract.
If private duty caregiving ever gets the attention of the legal community, that's an issue that should be addressed so that any assertion of it in the contract would be considered inconsistent with statutory or case law.
I don't know if they are liable or not but I want to encourage you to file a police report and have this person charged so that anyone who asks for a criminal background in the future check knows the kind of person they are.
FeedupUSA, first you need to be 100% sure the item was stolen and not misplaced or given to a relative/friend.
I remember back when I was cleaning out my parents house, my Mom has a really nice second engagement ring which I always thought was in her and Dad's bank safe deposit box as Mom rarely wore it. Well, it wasn't in the safe deposit box but my rings were there.
Heavens know where that ring went. My Dad had around the clock caregivers, but I couldn't point a finger at any of them, for who knows maybe my Mom gave the ring to a relative, or she had lost it.
Nothing else of value was ever missing, as Dad had a habit of leaving his wallet on his desk. He always had $25 in it, and any time I visited, I would check his wallet. Money was always there.
The caregivers my Dad had were bonded, so they were covered for such things like this. But like I said, you need 100% proof it was a caregiver.
And blending CW's and FF's advice, first get your documentation and proofs together, then file a police report. I haven't decided if you should give the Agency another chance first though. Something to think about.
Do you mind providing information on the stolen items? Under a certain value, it might be misdemeanor, or above that value, a felony charge.
You'll have to present a good case and justification for police to act, so be prepared to do that.
BTW, what background checks does the agency do? Was it represented that the caregivers had been checked at local, state and federal level for criminal activity?
This is a shame. Good answers above. Does this agency assert that their caregivers are bonded and insured? I think that’s usually the case, and if so maybe you can pursue the person on those factors - her insurance, or the money in the bond? Good luck.
Something to consider should you be on Medicaid, when filing a police report and disclosing the value of missing item. If it qualifies as an asset set forth by Medicaid and the value exceeds the asset value Medicaid sets forth it may possibly become an issue.
SamSpade, personal items (clothing, jewelry, furniture) do not count towards a Medicaid asset limit. Medicaid becomes interested if Mom suddenly becomes an "art collector," or purchases a valuable gemstone, in an attempt to convert cash to stuff, then say it's not countable, that's just "things" she owns.
This was my experience.....the owner of the caregiver agency told us during the contract signing that the employees were bonded and made us feel pretty comfortable about the issue. However, when the theft occurred, I was told the burden of proof was on me, which I could not provide. (Should have had cameras in mom's home.) So when we went to report this person to law enforcement, we found out that the caregiver was not a US citizen and had already hightailed it back to the Philippines. Horrible experience. Agency could not be held accountable at all.
CM, good points. One of the issues I had with some of the contracts I reviewed for private duty care was the disclaimer of liability, regardless of state law. I knew immediately I wouldn't be dealing with an agency that attempted to skirt liability for its employees.
Kwatt, I hadn't heard of that kind of scam before, but it certainly speaks volumes for the caliber (or rather lack thereof) for that agency. It wouldn't surprise me if they hired a noncitizen specifically for that purpose.
Of critical importance when selecting an organization that is "providing" home care is determining whether the organization is a "licensed home health care agency" or a "nurse registry". Most seeking such services do not understand the importance of the difference.
In the case of the former, the home health aide is an employee of the company and is (hopefully) insured and bonded through the agency. Still, the contract entered into rules.
In the case of the latter, the home health aide is an independent contractor and is responsible for their own liability insurance and bonding. Typically, a nurse registry is just that and does not provide any liability protection.
Thank you. The agency is lisense by the state. Wrote several letters. They refused to respond. Suing in small claims. They have had several names changes. There is a middle non for profit involved who recommended and monitor the agency also refuse to respond to my letters and phone calls.
Make sure that you have proof positive that the item(s) was/were stolen. An example, one time when visiting my late mother, some of my jewelry had gone MIA. I was convinced my niece, who was a child at the time, had taken it. I had to "eat crow" because later I found that I had put the jewelry in a hidden compartment in my own suitcase. (Insert embarrassment BIG TIME).
I agree with Ralph regarding the distinction between an employee and an independent contractor regarding who holds responsibility.
After a theft of a number of expensive items, while caregivers were in my father's home, I thereafter installed hidden video and audio surveillance and had the home health aids sign releases.
The releases stated that the aids understood that while at the home they would be under audio and video surveillance.
If they balked at signing the contract, it made me suspicious and I would not use them. I do this with all people who do work in my own home, too.
The people who are willing to sign the release sometimes state that they feel it would protect them as well, from false accusations.
I think the release and the surveillance system is a good solution.
Theft while a homeworker is in the house, such as a maid, a painter, or a health aid is very common. It is likely not your imagination. Proving it is the key, if you want to report the theft to the police.
That's a very interesting and well-explained point, thank you Mr Robbins.
Arising from it: what information about their type of service must agencies/registries make clear to potential customers? Have there been problems with advertisers blurring the distinction? Any mandatory key words or phrases consumers could look for?
It depends on their policies. I would report it to the agency. And make a police report if it was something substantial. You can also report to your state nursing board, -so no one else will be a victim of theft. It's a shame to go through this. I had experienced ID theft ×3.... problems with neighborhood, post office (people in neighborhood knew postal workers), bank (neighbors knew staff at bank). Filed several police reports. Let go many CNAs. It was more trouble than taking care of our mother. In spite of it all, appreciated the good CNAs. No regrets in caring for mom... just missing her so much going on 2 years.😟😍
Mr Robbins is absolutely correct (I don't say that very often regarding men...LOL)
My step-sister actually signed a contract with an in-home care as the agent for my Mom...NOT and as the responsible payer of said contract! I told her and the company that I wasn't paying penny for the care nor would I allow for my stepfather to be covered under Mom's benefits (he doesn't have this type of retirement coverage) because his daughter 1. Signed as agent 2. Responsible party for payment 3. Since the contract was signed in Mom's house, the 3 day rescission period had passed Step-sister was not happy and then HAD THE CONTRACT RE-DONE 2 WEEKS LATER WITH DADDY'S SIGNATURE.
I have guardianship/conservator as of Juky 2nd and guess what I'll be presenting to the guardian ad litem as well as other fraudulent transactions. Right now, the investment firm is running around like chickens with their heads cut off because they allowed her to have the address changed on the joint account to her brother's address by taking daddy into the office and verbally telling them to change it. It maybe joint, but I CONTROL EVERYTHING NOW BY COURT ORDER.
Anod I can hold the in-home care business accountable for fraud too!!
Under that doctrine, the agency would be responsible.
Note, however, that some agencies include clauses that they're secifically not responsible in situations like this. I learned that when I was trying to find a private duty agency with a decent contract.
If private duty caregiving ever gets the attention of the legal community, that's an issue that should be addressed so that any assertion of it in the contract would be considered inconsistent with statutory or case law.
I remember back when I was cleaning out my parents house, my Mom has a really nice second engagement ring which I always thought was in her and Dad's bank safe deposit box as Mom rarely wore it. Well, it wasn't in the safe deposit box but my rings were there.
Heavens know where that ring went. My Dad had around the clock caregivers, but I couldn't point a finger at any of them, for who knows maybe my Mom gave the ring to a relative, or she had lost it.
Nothing else of value was ever missing, as Dad had a habit of leaving his wallet on his desk. He always had $25 in it, and any time I visited, I would check his wallet. Money was always there.
The caregivers my Dad had were bonded, so they were covered for such things like this. But like I said, you need 100% proof it was a caregiver.
Victims know their own stuff and when things are missing or when they have been violated.
There's a good explanation by Cornell Law School:
https://www.law.cornell.edu/wex/respondeat_superior
And blending CW's and FF's advice, first get your documentation and proofs together, then file a police report. I haven't decided if you should give the Agency another chance first though. Something to think about.
Do you mind providing information on the stolen items? Under a certain value, it might be misdemeanor, or above that value, a felony charge.
You'll have to present a good case and justification for police to act, so be prepared to do that.
BTW, what background checks does the agency do? Was it represented that the caregivers had been checked at local, state and federal level for criminal activity?
And even if the agency's contract attempted to exclude liability in its contract, that could be challenged - exclusion clauses have to be reasonable.
What does the contract say about what steps the agency takes to check the backgrounds of the workers it supplies?
Have you had an opportunity to sort this out with the actual culprit, though?
In the case of the former, the home health aide is an employee of the company and is (hopefully) insured and bonded through the agency. Still, the contract entered into rules.
In the case of the latter, the home health aide is an independent contractor and is responsible for their own liability insurance and bonding. Typically, a nurse registry is just that and does not provide any liability protection.
Caveat emptor.
I agree with Ralph regarding the distinction between an employee and an independent contractor regarding who holds responsibility.
After a theft of a number of expensive items, while caregivers were in my father's home, I thereafter installed hidden video and audio surveillance and had the home health aids sign releases.
The releases stated that the aids understood that while at the home they would be under audio and video surveillance.
If they balked at signing the contract, it made me suspicious and I would not use them. I do this with all people who do work in my own home, too.
The people who are willing to sign the release sometimes state that they feel it would protect them as well, from false accusations.
I think the release and the surveillance system is a good solution.
Theft while a homeworker is in the house, such as a maid, a painter, or a health aid is very common. It is likely not your imagination. Proving it is the key, if you want to report the theft to the police.
Arising from it: what information about their type of service must agencies/registries make clear to potential customers? Have there been problems with advertisers blurring the distinction? Any mandatory key words or phrases consumers could look for?
Here we have a "testimonial" type inset on a web advertisement for a nurse registry....
""I enjoy working for W_________s Staffing Services!"
E***a H********
LVN (RN Student)
Oh ah? Works for them, does she?
Caveat emptor, indeed. Maybe think about investing in a magnifying glass for the small print while you're at it.
As you discovered, often difficult to discern. Usually disclosed somewhere, just have to look for it...or ask.
My step-sister actually signed a contract with an in-home care as the agent for my Mom...NOT and as the responsible payer of said contract!
I told her and the company that I wasn't paying penny for the care nor would I allow for my stepfather to be covered under Mom's benefits (he doesn't have this type of retirement coverage) because his daughter
1. Signed as agent
2. Responsible party for payment
3. Since the contract was signed in Mom's house, the 3 day rescission period had passed
Step-sister was not happy and then HAD THE CONTRACT RE-DONE 2 WEEKS LATER WITH DADDY'S SIGNATURE.
I have guardianship/conservator as of Juky 2nd and guess what I'll be presenting to the guardian ad litem as well as other fraudulent transactions. Right now, the investment firm is running around like chickens with their heads cut off because they allowed her to have the address changed on the joint account to her brother's address by taking daddy into the office and verbally telling them to change it.
It maybe joint, but I CONTROL EVERYTHING NOW BY COURT ORDER.
Anod I can hold the in-home care business accountable for fraud too!!