Legalities of Using Electronic Signatures in Senior Living

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Neil Krauss
CPO | Founder

At Senior Sign, we're often asked about the legalities of electronic signature (eSign) as it pertains to post-acute senior care. I am by no means a licensed attorney and I don't play one on the internet. However, after thoroughly reviewing the ESIGN Act on multiple occasions and having worked with a handful of attorneys as I designed and built each version of Senior Sign (move-in and admission software), I have learned a few vital bits of information that are crucial for you to understand if you're looking to implement an eSign solution for move-in. The ESIGN Act is relatively short (only 14 pages), and outlines specific rights each signer has under the law. The following items will help you better understand what makes an electronic signature valid or not:

1. The Option to Use Paper

The ESIGN Act is clear that no person can be forced to sign a document electronically. Your residents and family members must always have the right to have the document or contract provided to them on paper or by other means falling under the language of "non-electronic form." We have had requests to remove the print functionality from the Senior Sign interface so as to prevent community managers from reverting to paper documents. We have reluctantly complied in instances where the customer and end users (managers) have been well-informed of the provision to provide paper contracts when requested. It's also important to note that our legal consent provides simple language surrounding a resident's rights as they pertain to electronic signatures.

2. Record Retention and Availability

Another request we have received on occasion is for us to purge our system of all resident or patient documents at regular intervals. Where HIPAA requires we store all medical documentation containing PHI (personal health information) a minimum of seven years, the ESIGN Act additionally requires that all parties who have electronically signed a contract maintain access to that contract. Any document signed through Senior Sign remains stored in our software for both parties to access. The reason this is so important is because contracting parties also have the right to revoke an electronic signature at any time, a process that we had to account for when designing and building Senior Sign.

3. In-Line Signatures

Some of our competitors working with post-acute care providers like yourself, offer a single signature field for residents. This means that residents select "Click to Sign," usually within a web form, and that signature is automatically added to all signature fields across a multi-page packet of documents. As a product designer, I can appreciate the efficiency and reasons for building a system this way. However, my feeling is that this method will have a difficult time holding up in a courtroom. The ESIGN Act states as part of its definitions that "The term 'electronic signature' means an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record." At Senior Sign, we have taken this to mean that when a resident's signature is attached to your Arbitration Agreement, the resident was viewing that agreement and then opted to sign it at that moment. I know that when a resident completes a single electronic signature field they never meant to sign all pages and agreements within their move-in packet. They wish to read, weigh and consider all documents before signing them each individually.

4. Audit Trails

I have yet to find an electronic signature software that doesn't provide an audit trail for each signed document. From our research, it is perfectly acceptable to track, log, and append to an electronically signed document basic user information proving all users intended to sign electronically. Our audit trail tracks action surrounding consent to sign, who was logged in (account email), date and time, along with the signer's IP address (unique computer signature).

5. Notarization and Acknowledgement

We have heard time and again that a document requiring notarization must be a wet signature. This is false. The ESIGN Act states that any statute, regulation or other rule of law requiring a document to be notarized, acknowledged, verified, or made under oath can be satisfied by electronic signature. However, there is an added caveat that any and all information the law requires be included, is attached or logically associated with the signature or record.

6. Notable Exceptions

The ESIGN Act also accounts for some notable exceptions to electronic signatures in which a paper notification must be given or a wet signature must be obtained. The following list is not meant to be exhaustive, but was rather selected based on use cases you may encounter while working in the senior living or skilled nursing industry.

  • creation of wills or trusts
  • divorce, adoption or matters of family law
  • court orders or proceedings
  • utility service cancellations
  • foreclosure, eviction, or repossession of a primary residence
  • cancellation or termination of health insurance
  • hazardous materials (some controlled substances require a wet signature from a physician in order to prescribe and fill)

There are additional articles floating across the web from major providers like Docusign and Adobe Sign that outline the basic provisions of an electronic signature. Rather than recreate that same list, we have tried to pull back the curtain on electronic signatures from a senior caregivers perspective.

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