‘Negotiated Risk’ Report on Assisted Living Agreements Leaves Unanswered Questions
A new federally-commissioned report on “negotiated risk” perhaps raises more questions than it answers.The report, Robert Jenkins et al., A Study of Negotiated Risk Agreements in Assisted Living (2006), leaves a very fundamental question unanswered – what is “negotiated risk,” anyway?
“Negotiated risk” is a nebulous concept. See Eric Carlson, In the Sheep’s Clothing of Resident’s Rights: Behind the Rhetoric of “Negotiated Risk” in Assisted Living (2003). Proponents of negotiated risk agreements characterize them as a means to enhance the autonomy of assisted living residents. The new report begins with an anecdote right out of proponents’ playbook, drawing an analogy between the autonomy supposedly fostered by negotiated risk, and the folk-hero status of 83-year-old Harry Truman, who
refused to leave his home on the side of Mount St. Helens despite predictions that the volcano was about to erupt. He was described at the time as a “crotchety” but “rugged individual” who stood “true to himself.” Truman’s act of independence resulted in his death (and that of his 16 cats) and the creation of a song, a memoir, a hiking trail, and a memorial at the entrance to the nearby town of Castle Rock, Washington.
What does Mr. Truman’s iconoclastic death have to do with assisted living? The report explains:
Truman’s instant status as a folk hero demonstrates the value Americans place on independence, autonomy, choice, and home, even when the individual making the choices is very old and taking great risks. However, if Truman had resided in a licensed long-term care (LTC) setting, as many 83-year-olds do, he would likely have found his ability to make choices and assume risks greatly restricted based on concerns about his safety. It is a certainty that he would not have been allowed to stay by Mount St. Helens or have 16 cats.
This is the type of analogy and argument that incenses skeptics of negotiated risk agreements. The problem with negotiated risk is that it was not proposed originally, and is rarely if ever used, to support autonomous, freedom loving types like Mr.Truman. The concept was put forward to immunize assisted living facilities from legal liability. From the beginning, negotiated risk agreements have been used as a means of allowing an assisted living facility to retain residents for whom the facility cannot provide adequate care, by having the facility’s residents waive any claims they may have against the facility with respect to that lack of care.
When that concept proved distasteful to most observers, proponents of negotiated risk began switching their analogies to situations in which a Truman-like resident is refusing assistance that is readily available to him. When required to actually refer to the assisted living context, proponents of negotiated risk now claim that it grants a resident the freedom, for example, to wear high heeled shoes even if she is unsteady on her feet, or to eat candy even if she is diabetic. Proponents’ arguments confuse two very different situations – when a resident is refusing available assistance, and when a facility is unable to provide necessary assistance.
In response to scenarios of high heels and diabetes, negotiated risk opponents point out that such issues of resident choice are commonly addressed in nursing facilities and other long-term care facilities without any need for a legal agreement of any sort. Such resident choices are routinely addressed in care planning conferences – a facility can express its preferences and register its concerns, but ultimately the choice rests with the resident. Opponents of negotiated risk suspect justifiably that the concept of negotiated risk agreements is being kept alive in order to justify waivers of liability.
To its credit, the new report acknowledges importance of the waiver-of-liability issue, and notes that “few proponents or opponents believe that [negotiated risk agreements] can effectively limit legal liability, whether or not they include a specific liability waiver.” Id. at vi. The reports’ authors found relatively few instances in which a negotiated risk agreement actually had been used in a real-world situation, and observed that these agreements generally did not claim to waive liability.
The report is a useful compendium of information
regarding negotiated risk, particularly regarding those states in which
negotiated risk or a comparable term is mentioned in state law. The report’s conclusions are interesting for
their lack of conclusiveness, reflecting the confusion surrounding negotiated
risk. The report concludes that
negotiated risk agreements can be useful in certain circumstances, but notes
that negotiated risk procedures are not well understood, and vary widely from
state to state, facility to facility, and even from staff member to staff
member within the same facility. The
report notes that some of the topics addressed in negotiated risk agreements
could have been addressed adequately during a service planning process.