Protecting Rights or Waiving Them? Why 'Negotiated Risk' Should Be Removed from Assisted Living Law
Assisted living facilities claim that negotiated risk agreements give residents the freedom to act against facility advice. On the contrary, negotiated risk was proposed originally to waive a facility’s liability for inadequate care, and liability waiver remains a significant component of negotiated risk.
This Article offers the first detailed legal analysis of state negotiated risk laws. Due to negotiated risk’s dueling definitions – based either on the against-facility-advice scenario or the inadequate care scenario – state law is marked by ambiguity and inconsistency. Currently, fifteen states address negotiated risk in law, and an additional state has developed a standardized negotiated risk form. This Article places each of these states into one of eight categories, depending generally on the extent to which negotiated risk is used purportedly to resolve disputes, plan care, consent to inadequate care, or waive liability.
This Article recommends that negotiated risk be abandoned, and that all references to negotiated risk be eliminated from state law. Negotiated risk is in fact not necessary for a resident to act against facility advice. In nursing homes and other long-term care facilities, a resident undisputedly has the right to act against facility advice, with no need to negotiate an agreement with the facility. Also, any waiver of facility liability is unenforceable as a violation of public policy. In health care settings, courts uniformly refuse to enforce a consumers’ waiver of a provider’s liability. Finally, the term “negotiated risk” is too compromised to be of any further use. Negotiated risk has no settled definition, and state law definitions are generally vague enough to accommodate both the against-facility-advice scenario and the inadequate care scenario.
Elder Law | Health Law and Policy | Social Welfare Law | Torts
Date of this Version
Eric M. Carlson, "Protecting Rights or Waiving Them? Why 'Negotiated Risk' Should Be Removed from Assisted Living Law" (August 19, 2006). bepress Legal Series. bepress Legal Series.Working Paper 1585.