Negotiated risk agreements between an assisted living community and a resident (or his or her power of attorney) can help the operator in the event of a lawsuit, according to nationwide law firm Baker, Donelson, Bearman, Caldwell & Berkowitz.
Such agreement are drafted to be specific to each resident’s specific safety or health risk, such as for falls.
“Communities may have standard NRAs with blanks to be filled in. However, an NRA should not be general or overly broad,” Baker Donelson shareholder attorneys Catherine Wrenn and Alissa Fleming wrote in an article. “To the greatest extent possible, NRAs should be particular and detailed about that resident’s personal risk. For example, if the resident has a known tendency to not use a needed assistive device while walking, the NRA should address that specific risk as opposed to only generally addressing the associated risk.”
Some residents have multiple risk factors. The attorneys recommended completing a separate agreement for each issue — and updating agreements as a resident’s needs change.
The authors noted that NRAs are consistent with allowing individuals autonomy and the right to assume risks.
“Allowing residents to acknowledge and accept an identified risk of residency aligns with these mandates. NRAs allow residents (and their families) to make informed, knowledgeable decisions about continued residency in the face of an identified risk,” they wrote.
Negotiated risk agreements can help mitigate litigation should it occur, according to the authors, “as they can serve as a basis for arguing that the resident (or his family) assumed the risk of being injured from a fall at the community and aid in establishing possible comparative/contributory negligence defenses.”
NRAs also can prove that the family waived alleged liability against the assisted living community for known risks. “Whether courts will enforce such waivers or limitations of liability remains to be determined, but NRAs may serve as a basis for advancing these defenses,” Wrenn and Fleming wrote.
A family cannot use NRAs to force a community to keep a resident if the community no longer is able to take care of the resident’s needs.
“Applicable state statutes and regulations identify circumstances when a community can no longer meet the needs of a resident, who should be discharged to a different care setting. NRAs cannot circumvent those statutory and regulatory requirements,” the attorneys wrote.
Some states have laws or regulations specific to negotiated risk agreements, so it is best practice to check with an attorney before drafting an NRA, they advised.