Posted April 22, 2016 12:46 PM
Updated April 27, 2016 9:56 AM
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New Illinois nursing home law double-edged sword regarding privacy

Health Law

By Randall R. Fearnow and Jaya F. White
Randall R. Fearnow is a partner practicing in the health law group at Quarles & Brady LLP where he chairs the firm’s long-term care and Chicago health law groups. Jaya F. White is a Quarles & Brady associate practicing in the health law group in the area of long-term care.
 

Illinois is the latest state to put a law on the books permitting electronic monitoring in nursing homes — “granny cams” as they are affectionately referred to in the long-term care industry.

It joins a handful of states, with Texas being the pioneer in this effort 15 years ago. The Authorized Electronic Monitoring in Long-Term Care Facilities statute (210 ILCS 32/) allows such devices to be used in nursing home residents’ rooms.

This law, effective Jan. 1, is reportedly in response to numerous calls received by the Illinois Department of Health relating to concerns of alleged resident neglect or abuse.

While permitting these cameras, the Illinois law has several limitations. For example, unlike the hidden cameras that make headline news these days, the cameras in nursing homes must be installed in a “conspicuously visible location” in a resident’s room. Signs must be posted outside the resident’s room in addition to building entrances notifying people of the electronic monitoring.

Moreover, an eight-page consent form prepared by the department must be signed by a resident or the resident’s representative and a roommate to initiate the electronic monitoring.

As part of the consent, either the resident or roommate may request certain restrictions. Examples of restrictions listed in the consent form include prohibiting audio, turning off the camera during specific times such as dressing, bathing or the provision of health-care services or during visits with a spiritual or other adviser.

Further, the law requires that the resident pay for the monitoring, installation, maintenance and any related Internet access charges.

Do the perceived resident safety benefits outweigh any concerns related to resident rights or the privacy and security of health information? Not even close.

Pursuant to the nursing home resident rights regulations, residents have the right to privacy with regard to accommodations, medical treatment, written and telephonic communications, visits and meetings of family and of resident groups. Residents also have the right to the confidentiality of personal and clinical records (42 U.S.C.A. Sections 1395i-3(c)(1)(A)(iii) and (iv); 42 C.F.R. Section 483.10(e)).

The resident right to privacy is further discussed in a state manual:

“Facility staff must examine and treat residents in a manner that maintains the privacy of their bodies. A resident must be granted privacy when going to the bathroom and in other activities of personal hygiene.

“If an individual requires assistance, authorized staff should respect the individual’s need for privacy. Only authorized staff directly involved in treatment should be present when treatments are given. People not involved in the care of the individual should not be present without the individual’s consent while he/she is being examined or treated.

“Staff should pull privacy curtains, close doors or otherwise remove residents from public view and provide clothing or draping to prevent unnecessary exposure of body parts during the provision of personal care and services.” See State Operations Manual, appendix PP — Guidance to Surveyors for Long-Term Care Facilities.

As health-care regulatory attorneys, we cannot ignore the numerous potential issues related to the protection of the residents’ rights to privacy and facility compliance with the federal and state health-care privacy and security regulations.

For example, how will facilities make sure that only authorized persons have access to view the provision of health services? How can a facility control who is on the other side of the camera to ensure that the facility protects its residents’ rights to privacy? What types of safeguards can a facility put in place to ensure the security of protected health information?

These matters seem even more complicated by the fact that the resident is the one who purchases and owns the monitoring equipment and the recorded video content.

What about resident consent? The law states: “If the resident has not affirmatively objected to the authorized electronic monitoring … ” then any of a list of individuals may consent on the resident’s behalf.

Therefore, if an objection is not explicit, potentially somebody who does not have the resident’s best interests may consent to this monitoring on a resident’s behalf.

This person may not even have the proper authorization to act on the resident’s behalf for health-care privacy purposes.

Furthermore, long-term care facilities are subject to routine surveys by public health department, and the inability to satisfy basic resident rights may result in severe sanctions on a facility, whether or not it has a signed consent form in a resident file.

This article was originally published in the March 30, 2016, edition of the Daily Law Bulletin.

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