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


Respondents varied considerably in their views about these agreements. Some felt that such agreements can be useful for both providers and residents, enabling a less "paternalistic" approach to service delivery. Some felt they should not be mandated, while others that they should be required in all residential care settings.

  • I don't think negotiated risk agreements will stand up legally. Consumers pay us to use our professional judgment regarding their safety. We have to have risk agreements on certain things -- e.g. non-compliant diabetics. We do not use them for safety issues, e.g., people who can start a fire because they are unsafe with a stove.

  • We hear about individuals who are not given the opportunity to accept risk and are discharged long before they approach the 28 hours of care limit. The industry needs to grow into the modern concept of taking risks. Many RCAC operators come out of the nursing home industry, which is very paternalistic. Providers say we can't afford to take risks because of liability issues. But they can take steps to minimize risk. They need to treat RCACs as rental agreements not nursing homes. If a provider were sued for allowing a person to take risks, I would be on their side. The issue regarding competency to enter into negotiated risk agreements is a legitimate concern. I don't know why the RCAC industry isn't concerned about this.

  • I'm not as concerned about these agreements in CBRFs because they have a pretty standard package of services. Plus the ability to complain to the Ombudsman. You don't need them as much in CBRFs, because the consumer does not negotiate the services package, and many elderly residents are not competent to execute them. In RCACs, theoretically there is more negotiation about services, and a prohibition to admit incompetent people.

  • In a CBRF, a facility may not abrogate responsibility for providing medication monitoring. Now the state is telling us that RCACs cannot abrogate responsibility in this area as well, that you can't let go of certain responsibilities in a risk agreement.

One respondent felt strongly that the existence of such agreements were a sign of ageism in service delivery because they required older persons to negotiate the right to be autonomous rather than have it assumed.

  • I believe that until a person is adjudicated incompetent they should be able to do whatever they want -- eat what they want -- not exercise if they want, not socialize if they want.

Another noted that a major issue in risk agreements is the lack of an accepted method for determining the competency of individuals to enter into them. One respondent raised the issue of liability concerns and mentioned that liability insurance problems are starting in Wisconsin. Another noted that there has not yet been any litigation related to risk agreements, but there is a need for more individualized agreements, noting that there are too many "cookie cutter" agreements than is desirable.

View full report


"med4rcs.pdf" (pdf, 3.73Mb)

Note: Documents in PDF format require the Adobe Acrobat Reader®. If you experience problems with PDF documents, please download the latest version of the Reader®