Reprinted as received.
Releases, Liability, and COVID-19
August 17, 2020
As community programs and services reopen throughout the State following temporary closures or suspensions due to COVID-19, it has come to the Department’s attention that some MaineCare and OADS-funded Home and Community Based Service (HCBS) providers have presented participants and their guardians with documents for signature that require a waiver or release of liability or an acknowledgement of risk associated with services provided. The documents generally also indicate that the Provider will not allow the participant to participate or receive services without a signed release of liability or acknowledgement of risk.
The Department has consulted with the Office of the Attorney General and determined that requiring a signature on a document waiving or releasing liability (including “indemnify and hold harmless” language) or assuming or acknowledging risk is not permissible. These types of documents create an additional eligibility requirement for participation above and beyond the eligibility requirements established in federal and state Medicaid law. A MaineCare provider does not have authority to require MaineCare Members or their guardians to sign a liability release, waiver, or acknowledgement as a condition of receiving MaineCare services. Federal and state Medicaid law governs eligibility and covered service requirements. Providers may not impose additional eligibility requirements not set forth in federal or state Medicaid law or regulations.
Documents of this nature that have been presented to OADS or MaineCare funded HCBS program participants and guardians must be immediately rescinded by the Provider. OADS has informed HCBS providers who, as a condition of providing services, has requested or required a waiver member or guardian to sign a liability release, waiver or acknowledgement to immediately cease this practice, withdraw pending requests for same, provide to OADS copies of all such releases, waivers, or acknowledgements elicited by the provider, notify the affected members and their case managers and representatives that the provider is voiding such documents, and provide to them a copy of the document as voided in conformance with this guidance. Further, OADS informed HCBS providers that they must cease any enforcement activities regarding any such release, waiver, or acknowledgment, and immediately cease its use of any such form. Please note that Providers who continue to require participants and their guardians to sign such agreements may be subject to investigation and potential sanctions.
In addition, commensurate with OADS’ instructions to providers and advice of the Office of the Attorney General, Public Guardianship Representatives will not be signing documents on behalf of individuals subject to public guardianship if the document explicitly or implicitly requires a waiver or release of liability or an assumption or acknowledgement of risk.
OADS will continue to monitor participants’ access to services while providing support in the safe operation of facilities and programs to prevent the spread of COVID-19.
Questions on this topic may be directed to OADS@maine.gov with the subject line: Provider Releases.