Using Medicaid to Cover Services for Elderly Persons in Residential Care Settings: State Policy Maker and Stakeholder Views in Six States. Negotiated Risk Agreements


A number commented on the potential role of negotiated risk agreements to reduce the number of lawsuits; others felt they would not have any impact.

  • Managed risk agreements do not hold up in law and there is opposition to them from trial lawyers.

  • There is confusion amongst consumers about negotiated risk agreements.

  • I have a friend whose mother has mild dementia and lives in an ALF. The facility wants to restrict her movements to a particular area. She doesn't wander but the facility is one mile from a highway, and the ALF is afraid she'll wander and be hit by a car. I advised the friend that if he believed his mother's quality of life is more important than her safety, to instruct a lawyer to draft an agreement that the family will sign to release the ALF from liability if the resident gets run over. But, typically, he hasn't done anything about it. The families want freedom for the residents, but they don't want to sign any special agreements releasing the facility from liability.

  • The residents are willing to live with the risk, but in Florida there are lawyers that advertise to the residents of nursing homes and ALFs. The Florida Supreme Court has ruled that however unethical it may be, it is not illegal. They suspended a license for 30 days when one lawyer was aggressively soliciting on people's doorsteps. The court said it was against the code; they are not supposed to solicit.

  • There is the case of a nursing home resident who got killed crossing the road in a wheelchair. They had crossed the road a thousand times before, so whose fault was it?

  • Neglect from a wet floor is one thing, but dying is a natural occurrence unless it happens in a licensed facility. Then it's something that is not supposed to happen.

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