What is a Negotiate Risk Agreement?
A negotiated risk agreement is essentially an understanding between the facility and the resident on a specific area of risk. It is implemented in situations where an individual resident wants to engage in specific behaviors that are identified as creating a high risk level, for example smoking, or hanging a mirror on a wall. The agreement lists specific actions that the resident agrees to take to help mitigate that risk. For example, a mirror may be hung, but with a signed agreement that it is not to be swung, like a mirror would, but installed flat on the wall. Or a smoking agreement would detail how the resident is to smoke, where they are to smoke (by a back entrance?), what is to be done before and after smoking (move flower pots, take a shower, change clothes, etc.). The idea is to set out a series of actions that are as specific as possible so that the risk is mitigated to the extent possible, but yet acknowledged as a risk that the facility has agreed to let the resident take.
While this agreement outlines the resident’s responsibilities and obligations, the facility also has responsibilities and obligations under the agreement. First, the facility must ensure that the specific request is appropriate for the resident , but also for the facility as well and that it is in fact feasible for the facility to allow the resident to take on the risk. Then, it must have its staff adequately trained and in place to monitor the risks that the resident has chosen to take on as well as to monitor the effectiveness of those actions that the resident has agreed to and implemented to mitigate the risk (if that was part of the agreement). Monitoring may include checking in with the resident, checking in with other residents and staff members about the resident’s actions and behaviors, and of course your own observations.
The facility will also have to monitor for adverse consequences. For example, if you allow a resident to smoke on your property, it is important to immediately monitor for any damage that may be occurring to the other areas in or on the property. If chairs are being burned, then maybe the resident needs to get a special chair. If the bushes are getting burned then the resident can be required to pay to have new bushes planted every year. The more you can put responsibilities on the resident, the more successful the policy will be. However, it must be feasible for the resident to comply with the agreement.
Essential Elements of a Negotiated Risk Agreement
A negotiated risk agreement is a mutual contract between a resident and facility about the identification and management of risks associated with a desire to engage in high-risk activities or care. Following the assessment, and prior to offering or providing one or more of the above, the facility should address with the resident the potential risks and issues involved in engaging in the activity.
If a resident chooses to engage in an activity that has been clearly and adequately explained to him or her, then the risks of the activity may be negotiated and agreed upon between the resident and the facility.
An example of a negotiated risk might occur if a resident, who is generally independent, wishes to do an exterior-doors-locked-in solution to leave the facility without staff knowledge or permission. The resident and the facility might agree that the resident will not leave the locked doors for more than a certain period, thus reducing the risk of discovery by other residents or staff.
It is important to remember that "home-like environment" does not mean "homelike environment." While the long-term care facility may be a safe and home-like environment, it is still a regulated healthcare facility subject to federal and state regulations. Privileges and responsibility are not synonymous, and the converse also is true.
The guidelines do not prohibit facilities from offering negotiated risk agreements; rather, such agreements give facilities the opportunity to explore and explain the risks of certain activities to residents and, if the residents decide to take those risks, to have a formal and specific understanding between the resident and the facility.
If the resident and the facility do not have or agree on a negotiated risk, the resident cannot require the facility or its staff to assist the resident in doing the activity, even if the resident calls for assistance.
All members of the health care team must be aware of negotiated risk agreements and ensure that staff members understand their roles and responsibilities. When the resident participates in a high-risk behavior that has been mutually agreed upon between the resident and the facility, the staff should provide only the support and assistance necessary to promote safety.
Negotiated risk should undergo frequent evaluation to see if the resident is maintaining his or her capabilities as expected. The purpose of the evaluation is twofold: (1) to verify that the guidelines for a specific negotiated risk are being followed, and (2) to determine if the negotiated risk agreement needs to be revised because the resident may be at greater risk.
The negotiated risk agreement guidelines are designed to give facilities flexibility in developing creative solutions to help residents maintain and develop independence.
The outcome of a negotiated risk agreement should be that residents can make decisions regarding issues that affect them with full knowledge of the associated risks and possible consequences of their decisions, and without endangering themselves or others.
Advantages and Pitfalls of Negotiated Risk Agreements
When used properly, negotiated risk agreements can provide benefits to both residents and caregivers. When a prospective resident with dementia identifies the risks associated with the condition and informs the caregiver about these risks, the caregiver may be better equipped to address the situation prior to admission. In addition, having the resident identify his or her likely behavior and responses to potential situations might set those expectations among staff even before the resident arrives. Such arrangements offer the resident and family members an opportunity to help develop the resident’s care plan in advance, rather than relying on staff evaluations alone. Moreover, the process of discussing the resident’s personal experiences and preferences may help caregivers better understand the resident’s personality, needs, and goals.
However, negotiated risk agreements can present challenges for both caregivers and residents. For the caregiver, a key challenge can be shifting from a model of dictating rules to requiring the resident to take responsibility for his or her own choices and actions. With this shift, caregivers must make it clear to residents that if they choose to engage in activities or actions that have been identified as high risk, they will not necessarily move into the nursing home setting where the caregiver will take responsibility for the resident’s safety. Other challenges can include caregiver liability beyond the informed consent of the resident and having caregivers insert themselves into the resident’s decision-making process. These potential issues can be lessened by providing residents with multiple ways to identify risks and responses, involving residents in drafting agreements, and confirming that the resident’s signature is an informed one.
While it is important to recognize the circumstances in which negotiated risk agreements should not be used, and to carefully assess their appropriateness for certain individuals or groups, negotiating risk offers exciting new possibilities for improving the safety of residents and bringing caregivers and residents closer together.
Legal Implications of Negotiated Risk Agreements
While the informal nature of a negotiated risk agreement may seem at odds with legal formalities, the fact is that the agreement may create expectations on the part of the provider that risk has been given up. It may introduce liability issues when harm befalls a resident where the harm was occasioned by the decision to allow the resident to take a risk. And it requires the provider to be candid with a resident who may not appreciate the potential harm or to obtain a legally sufficient consent from a resident who is impulsive, confused or lacks capacity to appreciate the harm or the consequences of entering into an agreement.
State regulations regarding care planning have generally not caught up with the widespread use of negotiated risk agreements. Regulators have expressed concern that some protected populations, and those who are not mentally competent (e.g., those with dementia), may be coerced into signing a negotiated risk agreement, regardless of the context in which it’s used. They are concerned that the process is less meaningful and objective than a written plan of care. Some are concerned that the document is usually signed before a resident’s care plan is written or updated, thereby being ineffective since the risk agreement does not accurately set forth the resident’s actual care needs. Further, they argue that the resident’s signature is of little evidentiary value, and a negotiated risk agreement is not signed by any staff members, is often not dated, and may contain no original signatures. Finally, a negotiated risk agreement may be interpreted as elevating the resident’s autonomy over the resident’s health and safety. A decrease in regulatory citations related to failure to update care plans and a new interpretation of existing criteria indicate a trend toward increased examination of negotiated risk agreements. In May 2017, the Centers for Medicare & Medicaid Services (CMS) modified the interpretive guidance for ยง483.21(a)(5)(i) (Care Planning). CMS directed surveyors to address whether a home has a process to incorporate negotiated risk into the care planning process to the extent that the right to refuse treatment is upheld.
In 2015, regulators in Illinois required every provider to submit data regarding negotiated risk agreements. This led to a statewide initiative that developed a guidance document setting requirements for negotiated risk agreements. It addresses documentation errors related to the signed agreement, use of individualized assessments and providers’ monitoring responsibilities, as well as issues with having a process for negotiated risk on campus when only one agreement addresses certain high-risk situations (e . g., wandering, smoking, eating in room, driving).
CMS’s draft "Guidance to Surveyors" contains a new interpretative guideline for F-Tag 658, which could find its way into the eventual regulations pertaining to the new F-Tags. These interpretive guidelines, if adopted, will require homes to demonstrate that they have assessments, policies, and procedures in place to evaluate the risks of refusing care and the right to develop and follow a plan of care that is tailored to meet the resident’s needs and to communicate to residents how they can achieve their desired levels of independence and autonomy, consistent with the right to make a choice and be free from coercion.
Regulations in more than half the states have been updated to require homes to include a negotiated risk agreement or similar document within a care plan. In some cases, access to these documents is mandatory under state open records laws. For example, New Jersey’s new statute (effective June 1, 2015) gives residents the right to review, inspect and copy the resident’s care plan and "Any documents relating to the resident’s rights of informed consent," including negotiated risk agreements. In treating residents with dementia in New Jersey, homes must include within each resident’s care plan a "particularized statement of the care and services that the individual resident requests to decline." The statute requires the resident’s signature on the documents, and requires the home to regularly review the provisions of any such plan to ensure that the resident’s independence is protected and the home properly provides the necessary interventions to minimize the risk of harm to the resident. The statute also provides for facility liability for its own negligence when a resident incurs injury.
In the new Wisconsin regulations regarding nursing homes, the right to "Self-Administration of Medications" must now include a process to allow residents to designate someone else to be responsible for enforcing the facility’s policy. If a resident self-administers medications or permits someone else to administer medications, the guidance directs the home to encourage the resident to initiate a negotiated risk agreement with the responsible person. It is clear from these developments that state regulations are catching up with negotiated risk agreements. Negotiated risk agreements require careful compliance with regulatory requirements.
Making Negotiated Risk Agreements Work
Reform has placed relationships and care and risk decision making at the centre of achieving aged care excellence. This article continues on from our 2019 engaged law commentary regarding the interplay between negotiated risk agreements (NRAs) and decision making in aged care.
What is an NRA and when are they used?
We briefly addressed these questions in our previous commentary. In summary, an NRA is a written agreement developed between a resident of an aged care facility and the nominated person responsible for managing the risk on behalf of the facility resident. The NRA is used for the purpose of implementing, assessing and, if necessary, revising or terminating outcomes for the resident that are specific to their preferences or lifestyle choices but involve an element of risk.
Best practice approaches to the use of NRAs in residential aged care settings
We recently attended a comprehensive seminar on decision-making by leading Australian aged care practitioners which highlighted best practice approaches to implementing NRAs in accordance with the aged care legislative framework, the My Aged Care framework and the My Aged Care Practice Guidelines – Risk Management. We encourage any aged care providers using NRAs in their facilities to review and consider their existing policies and procedures in the light of this new framework to ensure their compliance and, importantly, to protect the safety, interests and rights of residents and their families with valid safety, lifestyle and care considerations.
Advice for residents, families and aged care providers regarding implementing NRAs
In summary, for residents and families: For aged care providers: The above mentioned seminar also provided a useful checklist for best practice approaches to the use of NRAs in residential aged care settings, including: Importantly, it is for the resident to drive their own care decisions. The aged care aged provider is there to facilitate those decisions to the best of their ability within the framework of compliance with the aged care legislation and the relevant My Aged Care Practice Guidelines. The use of NRAs can be both effective and positive when implemented with the right approach. Above all, it is vital that they are considered by a team of key staff members, ideally including the care manager or coordinator, the person responsible for authorising the care plan, the nursing staff member who will be responsible for implementing the care, and a member of the allied health team (such as the physiotherapist), before being discussed with and finalised by the resident. It is also important for the facility to have a system in place for reviewing the use of NRAs by the residents and for adequately recording them and their implementation and review.
Case Studies and Practical Applications
Since the implementation of the new federal rules, negotiated risk agreements have become more common, both as a best practice on the continuum of care from home and community based services through post-acute care and in states that have regulatory requirements for negotiated risk agreements, such as Ohio and Wisconsin. To illustrate the wide variety of these agreements, a few very high-level examples are provided below.
In Angora Management v. State of Ohio (Case No. 2016-00145; Ohio Supreme Court), the Ohio Supreme Court provided an overview of what constitutes a valid negotiated risk agreement, but did not address the question of whether the agreement in question was valid. Under Ohio law, a "negotiated risk agreement" must be: (1) reviewed by the resident’s attending physician, who must also describe the intent and potential consequences of the risk; and (2) signed by the resident, or the resident’s staff or the resident’s surrogate decision maker, if a surrogate decision maker is appointed pursuant to the Ohio state health care power of attorney act. The scheduling of the case has resulted in a delay in developing any further guidance, as the appeal in the case was dismissed, only to have the case refiled in September 2017. Plaintiffs in the case were seeking money damages up to $2 million relating to an elderly resident who died after developing decubitus ulcers while under nursing home care .
In Ohio and other states with similar laws, the validity of a negotiated risk agreement will be subject to the opinion of the attending physician, but in practice, it is very common for the attending physician also to be a medical director at the nursing home with an ongoing financial stake in the operations of the facility. As a result, family members and advocacy groups can be understandably concerned about "the fox guarding the hen house."
In Wisconsin, by statute, the negotiated risk agreement must be signed by the resident or family member, the resident’s physician and a representative of the care facility or the local board of health. The facility must also provide a copy of the negotiated risk agreement to a resident and the resident’s family member prior to accepting the resident for admission, and periodically thereafter.
In Connecticut, the Department of Social Services has published Register Observer, which provides guidance on supported decision-making for a variety of groups, and includes a chapter on negotiating risks with individuals with disabilities that includes a section on the use of supported decision-making. The Department has stated that supported decision-making is being viewed as a valid alternative to the use of a guardianship and is a piece of the bigger puzzle of patient decision-making capacity.
In Texas, where there is no requirement to have a negotiated risk agreement, there are facilities with written agreements that outline rights and responsibilities with respect to the care of the resident.
