Understanding IICRC Standards and Limitations
You should make sure you understand the definitions of the trigger language that is used in the IICRC standards. Many people mistakenly think that “the standard of care” means following the best industry practices when, in fact, it means following the minimum practices that have been agreed upon as what a competent person in the industry would follow. When a practice or procedure is stated as one that “should” be done, that is to be considered the standard of care to be followed. If we cannot or do not follow a “should” practice or procedure, then we need to document why we could not follow it and what we did instead.
Limitations, Complexities, Complications, and Conflicts
In our IICRC standards, there is an entire chapter that discusses scenarios just like this question called Limitations, Complexities, Complications, and Conflicts. “Limitations are restrictions that are placed upon the remediator that limit the scope of work, remediation activities, or expected outcomes. Before beginning non-emergency work, known or anticipated limitations and their consequences should be understood, discussed, and approved in writing by remediators and the property owner or owner’s agent. Remediators should refuse to allow anyone other than the owner or the owner’s agent to impose limitations on the performance of a remediation project. If an attempt to impose a limitation is initiated by any other materially interested party, the owner or owner’s agent should be advised and provide approval before the limitation takes effect. Limitations should be defined in writing.”
WITH THAT SAID….it depends on what it is that the customer is asking the contractor to do or not to do based on what they want or don’t want to pay for. There may be some tasks that the customer may ask the contractor to deviate from that may not be a big issue for the overall end result and will not pose a liability risk, but there may be other requests that a contractor should probably think twice about. Let’s look at a common scenario:
Example Case Study: Mrs. Jones’ Category 3 Water Damage
Mrs. Jones has water damage in her finished basement, which is a result of a sewer backup that puts approximately two inches of raw sewage in the entire basement. She hired you as the contractor to mitigate the loss. We would likely all agree that this would be categorized as Category 3 water damage. That would mean anything porous that came into direct contact with the water should be removed and discarded. Mrs. Jones turns the claim into her insurance carrier and her adjuster notifies her that her policy is capped at $5,000.00 of coverage for a sewer backup. Your estimate is $15,000 and includes removing and discarding the affected carpet, pad, tack strip, the bottom four inches of all drywall and insulation, as well as packing out all contents. Mrs. Jones tells you that she does not want to pay more than the 5K that the insurance is paying out, so she is OK with you handling all the contents (because, as we all know, every homeowner thinks all of their contents are priceless!) and she is even fine with the removal of the drywall, but she only wants to have the carpet and pad cleaned and dried.
So, what do you do?
The most common response I hear from contractors is that they will have Mrs. Jones sign a waiver, and then they will complete the job exactly as she wants. So, let’s say that she signs your waiver, and you proceed to clean and dry the carpet, and you complete the rest of the loss according to the original scope you provided to her. After you leave the job, her two-year-old little boy is crawling on the carpet and becomes ill. Her son is hospitalized and diagnosed with meningitis from E. coli which is a known fecal contaminant and is suspected to be from the sewage backflow that occurred in her basement the week prior. Is the waiver that Mrs. Jones signed requesting you to deviate from the S500 and leave contaminated carpet and pad in place going to protect you from the liability of being sued? ABSOLUTELY NOT!
Potential Legal Consequences
Could you be sued for negligence resulting in bodily injury? Possibly! I am certainly not a lawyer, but I have been involved in hundreds of litigation cases, and there will be deviations from our standards that carry a higher liability risk than others. In a court of law, you will be viewed as a trained and certified professional, and you SHOULD HAVE KNOWN what the risks would be by leaving contaminated materials in place that are generally not considered capable of being returned to a sanitary condition. Our industry is no different than many others in that we commonly use waivers and disclaimers incorrectly. We cannot give these documents to our customers to sign, giving us permission to cut corners or perform our jobs in a negligent or hazardous manner that places them at risk. What is the appropriate way to use these documents? Let’s look at another common scenario:
Proper Use of Waivers and Documentation
Mr. Smith has a water loss due to a ruptured supply line impacting the main floor of his home. He called and hired you as the contractor within two hours of discovering the water loss. We would most likely agree that this would be considered Category 1 water damage. When you arrive, Mr. Smith is very happy to see you and you are the HERO of the day! You extract the water, set up your drying equipment, and explain to Mr. Smith you will be back tomorrow to check on the equipment, take readings, and monitor the job. Again, as you leave, Mr. Smith is grateful for your service and is feeling much better knowing he is in good hands. The next day, you return to monitor the job, and Mr. Smith meets you at the door. He is no longer smiling or viewing you as the hero you were yesterday. He tells you that he wants your equipment out of his house because it’s too hot, it’s too loud, and his wife cannot hear her favorite episodes of Jeopardy. Every time she uses the microwave, the breaker pops, and they cannot sleep with all the noise from your equipment! Can you force him to leave your equipment in his home? NO! This is where you would have Mr. Smith sign a waiver stating that the “homeowner is requiring us to remove our equipment before allowing us to return affected materials to a dry standard, which can result in secondary damages, including MOLD!”…..Please sign right here, Mr. Smith.
Following the full scope of work for a project should always be something we strive for. If we are limited in our ability to do so, it’s up to our professional judgement whether or not we should take on the liability associated with the context of the situation. Even if we get all of our paperwork signed and everything documented, it does not mean that you still cannot be sued. You may win based on your own evidence, but that is still time and money you will have to spend justifying the scope of work you followed. You can be sued even if you do everything right, so remember you always need to put yourself in the best defensible position possible, and that starts with following our standards as closely as possible and documenting when we cannot. If a homeowner has one square foot of mold that they won’t let you remove, the liability is relatively small. In contrast, if you leave sewage contamination under a floating floor because the customer didn’t want to pay to remove the floor, run far away! This is where completing job-site risk assessments can be helpful, not only for your own technician’s safety but also for the safety of the occupants, before and after the scope of work is completed.
Knowing When to Decline a Job
There will be circumstances in which you may decide to decline taking certain jobs because the customer will not allow you to conduct the project consistent with the standard of care. There may be jobs in which they do not pose a substantial risk to deviate from certain tasks or procedures, but regardless, ensure those deviations are documented. There may be projects in which you provide partial service for a loss, and then the customer completes part of the project on their own to save costs.
A final recommendation is to ensure your contracts and waivers/disclaimers have the appropriate language, which can be provided by a contract and/or an environmental lawyer. Your training and certification is what sets you apart as a professional, but it also raises the bar for what is expected from you as a professional.
Attorneys and the IICRC Standards
There are other individuals who purchase and use our ANSI/IICRC standards, such as insurance professionals, IEPs, home inspectors, homeowners, and yes……..ATTORNEYS! Lawyers do not know how to mitigate water damage or remediate mold, but they know how to READ, and once they know our industry has an established and internationally recognized standard of care and certification training program, they start foaming at the mouth. They will know your standards better than you, and they will use them as a means to determine what you “SHOULD” have done.
Have a question for Rachel? Send it to rachel.adams@cleancareacademy.com, and you might see it answered in the next edition of Ask Rachel!
Rachel Adams
Rachel Adams, I.H., M.T. (ASCP), RPIH, MWR has been involved in the water damage and environmental health industries for more than 30 years. She holds a dual Bachelor of Science degree in Environmental Health Sciences and Medical Technology (Toxicology) from Purdue University and is certified by the American Society of Clinical Pathologists. Rachel also holds a Master Water Restorer designation from the IICRC through her training, dedication, and field experience. Rachel is the Director of Education for Clean Care Restoration Academy located in Panama City, Florida. She served on the Board of Directors for the Institute of Inspection, Cleaning, and Restoration Certification (IICRC) and was appointed to serve as the Technical Advisory Committee Chair for the development of the IICRC Applied Microbial Remediation Technician (AMRT) which she still serves today. She is an Associate member of the American Conference of Governmental Industrial Hygienists (ACGIH) and the American Industrial Hygiene Association (AIHA).
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