Wednesday, November 11, 2015
I was reading a recent article in the New York Times on estimating longevity in the context of the Social Security Trust Fund. Your Kids Will Live Longer Than You Thought ran in the NY Times on November 10, 2015. The article discusses statistics and probabilities, explaining how life expectancies are calculated. Looking at the Social Security projections of life expectancy, the article notes that SSA is likely too conservative in their longevity projections.
The Technical Panel on Assumptions and Methods established by the Social Security Advisory Board, an independent government agency that advises Social Security’s trustees on matters including actuarial assumptions, says Social Security is systematically underestimating future declines in mortality rates, and therefore underestimating the likely life spans of young Americans.
So this is a good news-bad news scenario. Good news for those who get more years of life, bad news for Social Security. "[O]ne quirk of Social Security is that a piece of obvious good news (People will live longer than we thought!) is bad news from the narrow perspective of paying for retirement benefits (The government will have to pay benefits longer!)." So how to handle Social Security's too conservative projections? The Congressional Budget Office "tweaked" them by increasing them.
In the October 2015 issue of the Pennsylvania Bar Quarterly, attorney Owen Kelly reports on "The Pennsylvania Supreme Court Elder Law Task Force Report and Recommendations" as a "Blueprint for Justice." His overview provides:
Our Commonwealth is in the midst of a period of unprecedented growth in its elder population and this growth is projected to continue for the foreseeable future. The growing elder population will present profound challenges to the Commonwealth's courts, particularly with respect to guardianships, abuse and neglect, and access to justice. In April 2013, the Pennsylvania Supreme Court established the Elder Law Task Force to address the impact this growing segment of the population will have on the judicial system. In November 2014, the Task Force issued its report which contained a multitude of recommendations on a variety of issues related to elders' interactions with the court system. Since their creation on January 1, 2015, the two entities charged with overseeing implementation of the Task Force's recommendations -- the Office of Elder Justice in the Courts and the Advisory Council on Elder Justice in the Courts -- have been actively implementing many of the recommendations. Task Force recommendations implemented or in progress include: proposed new and revised guardianship forms; education and training initiatives; proposed changes to the Rules of Criminal Procedure; revising bar admission rules to allow retired or voluntarily inactive attorneys to provide pro bono services for elders; a study of a pilot Elder Court; and changes to the statewide electronic case management system to allow for better monitoring of guardianships.
As someone who was a member of the Task Force, I am glad see that concrete steps are underway to implement changes, especially with respect to better accountability for guardianships on a state-wide basis. Much work is ahead.
Monday, November 9, 2015
Professor Janet Dolgin from Hofstra University has a very good article in the October 2015 issue of ABA's The Health Lawyer on "Reimbursing Clinicians for Advance-Care Planning Consultations: The Saga of a Healthcare Reform Provision." The article offers facts, analysis, historical perspective and opinion about the need to approve payment to health care providers in order for them to be able to engage fully with clients and their families in careful conversations about advance care planning, including end-of-life decisions. The article is concise, but the downside for interested readers is the digital version of the article is currently behind a pay-wall for ABA Health Care Section members only.
To stimulate your interest in tracking down a hard copy, perhaps through your law colleagues or local law libraries, here are a few highlights. Professor Dolgin writes:
Advance care planning is part of good healthcare. Thus, paying clinicians to talk with patients about advance care planning makes sense: it enhances advance care planning and thereby serves to effect good healthcare. "If end-of-life discussions were an experimental drug," writes Atul Gawande in his recent book, Being Mortal, "the FDA would approve it." Yet efforts to provide for reimbursement to clinicians for time and attention given to advance-care-planning conversations with Medicare patients have been stymied since 2009 (at least until quite recently) by the politics of healthcare reform....
Published, peer-reviewed research shows that ACP [Advance Care Planning] leads to better care, higher patient and family satisfaction, fewer unwanted hospitalizations, and lower rates of caregiver distress, depression and lost productivity....
In July 2015 CMS accepted the recommendation [supported by AARP, the AMA and others identified in the article] and opened the proposal to [pay health care clinicians for such consultations] to a two month-comment period in its proposed physician payment schedule for 2016.... If the proposed rule is accepted by CMS, payments for advance-care planning consultations are slated to begin in early January 2016.
The article demonstrates well the tension between the use of administrative law options to achieve what Congress finds unable or unwilling to address as a matter of Congressional laws. Of course, administrative processes can gore the ox of either side on a politically-charged debate.
Perhaps I am alone in being sad that it takes billing codes approved by insurance providers and CMS to achieve appropriate consultation between health care staff and families about advance decision-making. But Professor Dolgin's article is a realistic explanation for exactly why that "is" necessary.
November 9, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink
Thursday, November 5, 2015
The U.S. Treasury announced the creation of a new retirement savings vehicle, myRA. According to the blog post announcing this, myRA is a "retirement savings account for individuals looking for a simple, safe, and affordable way to save for their retirement. Over thirty percent of all American households have no retirement savings. myRA provides a way to start saving for retirement."
MyRA is designed for those who don't have an option for a retirement savings plan through their jobs. There are some benefits to myRA:
There’s no cost and no fees to open and maintain an account;
The investment will not lose money;
U.S. Treasury backs the investment;
Account owners choose how much to save ($2, $20, $200 – whatever fits their budget);
If account owners change jobs, the account stays with them; and
Account owners can withdraw the money they put in without tax and penalty.
Are There Limitations on Estate "Re-Planning" Following Adult Adoptions, Especially for Same-Sex Couples?
In my course on Wills, Trusts and Estates, students always seem to be intrigued by "adult adoptions." There can be a variety of reasons for an adult adoption, often tied to estate planning goals, including attempts to create statutory heirs that can nullify challenges by other family members to bequests in traditional estate documents, such as wills or trusts on the grounds of "undue influence." Sometimes the cases are connected to sad facts, such as the troubled life of tobacco heiress Doris Duke, who at age of 75 adopted a much younger woman, but came to regret that fact, leading to a mostly unsuccessful attempt at disinheritance. Robert Sitkoff's casebook on Wills Trusts & Estates has a fascinating profile of the Duke case, even though the original reasons for the adoption were not entirely clear.
In the news this week is a less unhappy, but still complicated case -- and I imagine there could be similar cases around the country -- where in 2012, after forty years as a same-sex couple, a retired teacher adopted his partner, a retired writer:
Now, they're trying to undo the adoption to get married and a state trial court judge has rejected their request, saying his ability to annul adoptions is generally limited to instances of fraud.
"We never thought we'd see the day" that same-sex marriage would be legal in Pennsylvania, Esposito, 78, told CNN in a telephone interview. The adoption "gave us the most legitimate thing available to us" at the time, said Bosee, 68.
Wednesday, November 4, 2015
The Kaiser Family Foundation's Commission on Medicaid and the Uninsured released an issue brief on Medicaid’s Role for People with Dementia.
Almost one-half (46%) of nursing facility residents and about one in five (21%) seniors living in the community has probable or possible dementia, a syndrome characterized by a chronic, progressive decline in memory and other cognitive functions, such as communication and judgment. People with dementia often have complex medical and behavioral health needs, and many rely on family caregivers to provide assistance with self-care and other daily activities. As dementia advances, paid care may be needed. Most people with dementia have Medicare, but due to high out-of-pocket costs and lack of long-term services and supports (LTSS) coverage, low-income people with disabilities resulting from dementia may need Medicaid to fill in the coverage gaps. Medicaid plays an important role in providing LTSS and is increasingly focused on efforts to help seniors and people with disabilities remain in the community rather than reside in institutions.
Given the expected growth of the elderly population over the coming decades and barring medical breakthroughs, a larger share of Americans likely will have dementia, which has implications for Medicaid coverage, delivery system design, financing, and quality monitoring. This fact sheet describes Medicaid’s role for people with dementia who live in the community, highlighting common eligibility pathways, beneficiary characteristics, covered services, health care spending and utilization, and key policy issues.
The issue brief discusses several issues and then concludes
Improving medical care and LTSS for people with dementia is likely to remain a major public health issue as well as the focus of ongoing medical research in the coming decades as policymakers, families, and other stakeholders consider cost-effective options to meet the needs of this vulnerable and expanding population. Medicaid beneficiaries with dementia have fewer financial resources to contribute toward the cost of care and are significantly more likely to use home-based services than people without Medicaid. People with dementia will likely need paid care as their functioning declines, and in the absence of other viable public or private financing options, Medicaid will continue to be the nation’s primary payer for LTSS.
For several years, the National Continuing Care Residents' Association (NaCCRA) has hosted annual meetings in conjunction with the LeadingAge meeting, combining its own business with the opportunity for members to participate in a broad array of educational and general sessions offered under the umbrella of LeadingAge, thus providing residents with direct insights into provider-side views of the industry.
This year, the NaCCRA meetings on October 31-November 1, 2015 in Boston, offered a packed agenda of topics that attracted strong attendance by officers, board members, and representatives of more than a dozen state resident chapters (photo), as well as interested individual residents. And anyone who thinks older adults aren't tech savvy can think again, as several members were participating remotely and the sessions are recorded for later viewing through the NaCCRA website.
High on the agenda this year was finalization of a formal affiliation agreement between NaCCRA and LeadingAge.
The prospects for affiliation troubled some within NaCCRA, especially those who became active in NaCCRA precisely because of concern about the direction taken by certain owners or management of CCRCs in recent years. They saw LeadingAge as the voice of "providers" only, and perhaps even as representing "the enemy." They were worried residents might be silenced by the affiliation. Others in NaCCRA have witnessed the ever-broadening membership of LeadingAge and noted the organization's strong interest in state and federal regulation, laws and tax policies affecting senior living operations. They felt that NaCCRA needed to be inside the tent to have an effective voice in future changes that can affect residents.
Within NaCCRA, the vote in favor of affiliation lead to a change at the leadership level, with President Dan Seeger (Pennsylvania) and at least one other board member stepping down from their positions in late summer 2015.
Past President Ruth Walsh (Connecticut, center in photo below) had several weeks as Interim President. During the October 31 meeting, new officers were elected, including Rev. Bob Nicholson (Washington, below left) as incoming President, Walt Boyer (North Carolina) as President Elect, and Jack Cumming (California) as Treasurer, joining William Ratcliff as Secretary.
At the meeting the results of a recent survey of the more than 2,000 paid members of NaCCRA (including those representing affiliated state NaCCRA chapters or resident councils, thus giving NaCCRA an interest group of at least 38,000 residents) was announced. The survey provides a prioritized action list for upcoming projects. Advocating for clearer written statements of "resident rights" (matched with better understanding of resident responsibilities) came out on top of the list of objectives for the coming year
Tuesday, November 3, 2015
A recent article in the Wall Street Journal focuses on challenges in state courts to how guardianships operate and the role of courts in appointment and oversight of guardians. Titled "Abuse Plagues Systems of Legal Guardianships for Adults," the on-line version of the article carries the subtitle of "Allegations of financial exploitation and abuse are rife, despite waves of overhaul efforts." The article uses extensive details from just two guardianship caess, one in the state of Washington involving a 71 year-old woman, and one in Florida involving an 89 year-old "mother," to develop its theme of financial exploitation and abuse, pointing to critics that say "many elderly people with significant assets become ensnared in a system that seems mainly to succeed in generating billings."
The article includes statements from National Academy of Elder Law Attorneys president elect, Catherine Seal, providing a contrasting view of properly-managed guardianships. She is quoted as saying, "The worst cases that I see are the ones where there is no guardian."
Arizona is identified in the article as a state that has adopted safeguards on unnecessary or abusive fees "by establishing fee guidelines" in 2012. Of course it did so after a significant 2010-2011 investigative news series by the Arizona Republic in Maricopa County that exposed a series of cases in which court permitted fees and delays significantly impacted the alleged incapacitated persons' financial resources.
The WSJ article, I think, can be criticized for using just two cases of conflict to dramatize allegations of systemic problems, characterized as exploitation. We need to talk about systemic reform needs by looking beyond single case reports
It seems clear, however, if you follow the pockets of deeper investigations from across the nation, including recent challenges in Florida and Nevada where allegations focused on an array of court-permitted problems, including delays generating more costs, or overly cozy relations between court-appointed guardians and courts, or the absence of monitoring systems, that there are larger systemic issues in need of watchful eye and, in certain jurisdictions, critical examination and reform.
My thanks to Marilyn Berquist and Rick Black for recommending the WSJ article.
Monday, November 2, 2015
If you haven't read this yet, this is a must-read. The New York Times did an in-depth series on the use of mandatory arbitration clauses. On October 31, 2015, the Times ran the first in the series: Arbitration Everywhere, Stacking the Deck of Justice. On November 1, 2015, the next story in the series ran: In Arbitration, a 'Privatization of the Justice System'.
I recommend you read them in order. What you learn may be surprising. We have all heard about arbitration clauses in long-term care agreements. You may be surprised to learn the breadth of use of arbitration clauses.
Read the series. And assign it to your students.
Sunday, November 1, 2015
My friend Jim Pietsch at the U. of Hawaii elder law program offers this clever annual event for elder individuals to encourage the completion of advance directives. The University of Hawai'i Elder Law Program (UHELP) at the William S. Richardson School of Law held its annual "NITE" OF THE "LIVING WILL" on October 29, 2015. Here is the description of the program from their website.
During this daylight presentation of our annual Halloween event, the University of Hawai`i Elder Law Program will present a talk about medical treatment decision-making and advance care planning to include informed consent/informed refusal, individual instructions for health care, durable powers of attorney for health care, comfort care only-DNR bracelets/necklaces and Provider Orders for Life-Sustaining Treatment (POLST).
You will have the opportunity to Decide What If? you are unable to communicate your wishes for end of life care. If you still have an old “Living Will” or if you are unsure of how end-of-life decisions will be made for you, come and find out how to make an advance directive or other documents that will help make sure your wishes regarding health care decisions are honored.
The public, especially kupuna, family caregivers, service providers, students and faculty are invited. Tea and little treats will be served. Donations to cover the cost of this hydration and nutrition accepted.
This is such a creative program and kudos to Jim for all of his work!
At the opening general session for LeadingAge's 2015 Annual meeting on November 1, the results of two years of research into consumer preferences for LTC and senior housing, including consumer and provider surveys and focus groups, has culminated in a new identity for Continuing Care Retirement Communities (CCRCs). And -- drum roll, please -- the new name is Life Plan Communities.
The thinking is interesting. First, LeadingAge researchers learned that while current residents embrace the name "Continuing Care Retirement" for their communities, younger persons reject the notion of both "retirement" and "care." Thus, Life Plan Communities are viewed as playing to the "engagement" model of aging, where individuals have more control over their options, and are less likely to be passive in their response to provider-defined theories of care.
In announcing the new name, outgoing LeadingAge CEO Larry Minnix and other leaders emphasized that the change is intended to be part of a conversation, to stimulate thinking and reaction to what it means to plan for future needs. They recognize that states may or may not embrace the name change, including whether state laws will be amended to reflect the new identity for purposes of licensing and regulation.
Will a rose by any other name smell as sweet -- or, perhaps, even sweeter?
The four-day annual meeting for LeadingAge, a trade association for providers of senior services with "6,000+ members and partners including not-for-profit organizations representing the entire field of aging services, 39 state partners, hundreds of businesses, consumer groups, foundations and research partners," starts today, November 1, in Boston The program offerings are impressive with as many as two dozen choices per educational session and keynote addresses by high profile individuals, such as Monday's speaker, Dr. Atul Gawande, famed author of a best selling and much discussed book that challenges thinking on end-of-life case, Being Mortal.
I find LeadingAge as an organization to be fascinating, not least of all because of the scope of providers under its umbrella, but also because it has proven itself to be very responsive to changes in the market place. It was once known as AAHSA or American Association of Homes and Services, but voted to change its name to LeadingAge in 2010.
More changes are in the works, as long-time and much respected Larry Minnix is retiring as the head honcho of LeadingAge. Nonprofit Continuing Care Retirement Communities (CCRCs) were once a major (perhaps even the most dominate) part of the membership, but as the senior care and services market is changing that is less and less true, especially with trends in favor of mergers and acquisitions, including not infrequent transitions to for-profit operations. Interestingly, during this year's meeting, LeadingAge is announcing a new for name for CCRCs. Stay tuned!
This organization clearly understands the need for change to stay attractive to consumers. At the same time, name changes can also complicate understanding by consumers of the choices available to them -- and can complicate state efforts to evaluate and, where appropriate, regulate different models of senior and adult housing and care services.
Thursday, October 29, 2015
Friends are an integral part of the fabric of our lives. Perhaps the most important time in one's life to have friends is at the end of life, according to an article in the New York Times. The article, Near the End, It's Best to be "Friended" focuses on what has become known as the "unbefriended" elders. When we think "unbefriended", we think of someone without friends or relatives. Maybe the person has outlived everyone. But the article offers that "unbefriended" has a much broader meaning: "you can also be unbefriended, even if you do have friends and family, if you are incapacitated and haven’t appointed someone you trust as a health care proxy." The article cites a study that shows an increase in the number of unbefriended elders and notes the likelihood of a continued increase since the chance of dementia increases with age.
More and more patients who lacked decision-making capacity, had no available surrogates and had not completed an advance directive,” said Martin Smith, director of clinical ethics at the Cleveland Clinic.
The kinds of unrepresented elders might change, too. In the past, many were marginalized — homeless, addicted, mentally ill, estranged. Baby boomers, with higher rates of childlessness and divorce, have smaller and more mobile families, and longer life spans. “They could live a largely mainstream life, but outlive everyone around them..."
The article notes that some states have statutes giving priority order to relatives and, in some instances, others to make health care decisions for those who haven't made a directive.
Twenty-four states and the District of Columbia have added “close friend” to that list, according to the American Bar Association Commission on Law and Aging; some states also include aunts and uncles, nieces and nephews, and adult grandchildren. A member of the clergy can serve in that role in Texas. The wider the net, the reasoning goes, the greater the likelihood of finding someone authorized to make decisions. Legalized same-sex marriages also mean fewer unrepresented gay and lesbian older adults.
This is an interesting article that provides good content for discussion with students about the importance of advance directives, and the potential for problems without them.
Wednesday, October 28, 2015
As the Centers for Medicare & Medicaid Services prepares to finalize a plan to pay physicians for discussing end-of-life treatment options with Medicare patients, this month’s Kaiser Health Tracking Poll finds that about 8 in 10 of the public favors Medicare and private insurance covering such discussions and about 9 in 10 say doctors should have these discussions with their patients. However, relatively few (17 percent) say they’ve had such discussions with a doctor or other health care provider, including 27 percent of people age 65 or older, while half of the public says they would want to have such a discussion. Over 8 in 10 say they would feel very comfortable talking about their end-of-life medical wishes with their spouse or partner and closer to half say they would be very comfortable talking with a doctor, their children, their close friends or their parents....
The detailed discussion of the poll results provides interesting statistics. Consider the following:
About 9 in 10 (89 percent) say doctors should discuss end-of-life care issues with their patients. But, relatively few (17 percent) say they’ve had such discussions with a doctor or other health care provider, including 34 percent of people age 75 or more, 23 percent of people age 65-74, 19 percent of those age 50-64 and 12 percent of those age 18-49. In addition, those who report having a debilitating disability or chronic condition are more likely to say they have discussed their end-of-life care wishes with a health care provider than those without a disability (31 percent vs. 13 percent). A third of the public says they have participated in a discussion with a doctor about another family member’s wishes about their care at the end of life, including 46 percent of those ages 50-64. Across age groups, many say they would want to have such a discussion about their own end-of-life care (50 percent overall).
The full poll results are available here.
A window into the demographics of what happens when the average age of populations rises sharply is provided by the New York Times, with a focus on Cuba. From In Cuba, An Abundance of Love but a Lack Of Babies, by Azan Ahmed:
By almost any metric, Cuba's demographics are in dire straits. Since the 1970s, the birthrate has been in free fall, tilting population figures into decline, a problem much more common in rich, industrialized nations, not poor ones.
Cuba already has the oldest population in all of Latin America. Experts predict that 50 years from now, Cuba's population will have fallen by a third. More than 40 percent of the country will be older than 60.
The demographic crisis is both an economic and a political one. The aging population will require a vast health care system, the likes of which the state cannot afford. And without a viable work force, the cycle of flight and wariness about Cuba's future is even harder to break, despite the country's halting steps to open itself up to the outside world....
The article goes into more depth, including identifying factors such as inadequate housing for new families, educational trends that encourage couples to delay having children, and, perhaps most significant, scant job opportunities to support families. The article also suggests that abortion "is not so uncommon" in families.
Tuesday, October 27, 2015
The National Center on Elder Abuse (NCEA) has a really cool fact sheet on APS. Adult Protective Services: What You Must Know, provides a concise explanation of APS, reporting, FAQs and client protections. Great information in a 2 page document! This would be a good resource for students to gain understanding of APS.
Monday, October 26, 2015
I've posted several times of late on recent articles about dementia. So here is one more, from England. Published September 21, 2015 in The Guardian, One-third of British people born in 2015 'will develop dementia' looks at the projections of dementia in England. The article opens with sobering statistics. "One in three people born this year will develop dementia, according to new figures. The Alzheimer’s Research UK charity warned of a “looming national health crisis” as the population ages." Quoting Alzheimer's Research UK which offered that age is the most significant risk factor, the article offers future predictions:
As people live longer than ever before, the numbers with dementia will rise. The latest analysis, commissioned by the charity and carried out by the Office of Health Economics, was released to mark World Alzheimer’s Day.
It showed 27% of boys born in 2015 will develop the condition in their lifetime, alongside 37% of girls. Previous research from the same team has estimated that the development of a drug that could delay the onset of dementia by five years would cut the number of cases by a third.
We know the implications on caregivers from this disease. The article offers the fiscal impact on the country:
George McNamara, head of policy at Alzheimer’s Society said: “Dementia is already the biggest health challenge this country faces. It costs the UK in excess of £26bn, which equates to £30,000 a person with dementia – more than the cost of either cancer or heart disease. Today’s stark finding should galvanise the government, and us all, into action.”
Recently I witnessed a nighttime accident on Interstate-81 in Cumberland County, Pennsylvania. There was an unmistakable "boom" signaling a rear-end collision. One truck (that appeared to be a large rental truck) had rear-ended an 18-wheeler behind me -- and I watched the faster moving rental truck continue past me on the road with heavy damage on its right side, before eventually veering to a shaky halt in the median. As far as I could tell, both drivers were alive, but at the first safe spot, I called 911.
I got off of I-81 at the next exit. I paused both for gas and to take a breath of crisp night air, before taking a back road the rest of the way home. While I was fueling, an older man in the car next to me, a car with West Virginia license plates, pointed to the I-81 overpass where traffic was crawling through more flashing lights. He asked, "Is it safe for us to get on the road to get home? We live about 75 miles from here." Frankly, I had no way to answer that with any confidence. He shook his head and said to his companion, "I think we should stay in a motel tonight."
Sunday, October 25, 2015
The October 2015 issue of Health Affairs contains an article about the impact of caring for an individual with dementia has on caregivers (family and unpaid), The abstract provides a description of the article, the Disproportionate Impact Of Dementia On Family And Unpaid Caregiving To Older Adults
The number of US adults ages sixty-five and older who are living with dementia is substantial and expected to grow, raising concerns about the demands that will be placed on family members and other unpaid caregivers. We used data from the 2011 National Health and Aging Trends Study and its companion study, the National Study of Caregiving, to investigate the role of dementia in caregiving. We found that among family and unpaid caregivers to older noninstitutionalized adults, one-third of caregivers, and 41 percent of the hours of help they provide, help people with dementia, who account for about 10 percent of older noninstitutionalized adults. Among older adults who receive help, the vast majority in both community and residential care settings other than nursing homes rely on family or unpaid caregivers (more than 90 percent and more than 80 percent, respectively), regardless of their dementia status. Caregiving is most intense, however, to older adults with dementia in community settings and from caregivers who are spouses or daughters or who live with the care recipient.
A subscription is required to access the full article.
Thursday, October 22, 2015
I was interested to learn about a new law in Illinois that allows for electronic monitoring in long term care facilities in certain cases. Protecting Our Own: The Practical Implications of Illinois’s Authorized Electronic Monitoring in Long-Term Care Facilities notes that this new law goes into effect at the beginning of 2016 and "permits nursing home residents in facilities that are licensed under certain state legislation such as the ID/DD Community Care Act or Nursing Home Care Act to use audio or video surveillance in their room at their own expense." There are criminal penalties if anyone interferes with the monitoring devices and there is some money available for those facilities unable to afford the devices.
Illinois joins 4 other states (New Mexico, Oklahoma, Texas and Washington) with electronic monitoring laws. There are other states that have guidelines for those LTC facilities who want to allow monitoring based on a desire of a resident. The article discusses the pros and cons of monitoring and offers concerns regarding quality of care.
In terms of quality of care, having cameras in the rooms may also affect the important relationships developed between facility caregivers and their residents. The staff may choose to rely on the cameras to monitor residents rather than engaging in direct communication, potentially leading to mistrust and even a greater substandard of care that such legislation was meant to combat in the first place. Residents may never truly feel comfortable without the bond usually fostered between the two parties, contributing to a negative experience.
The Illinois statute is available here. One section of the statute addresses consent to monitoring. Written consent by the resident (or the resident's guardian) is required on a specific form from the state agency. If the resident's doctor determines the resident lacks the capacity to consent, the statute provides a priority list of individuals who may provide consent. Among other things, the statute addresses monitoring when the resident has a roommate. The statute also provides for conditions to be set on monitoring. The "standard" conditions set out in the statute include no audio recording, no transmission of either video or audio, powering off the devices or blocking taping when a health care professional is caring for the resident or roommate or during bathing and dressing or during visits by certain folks such as attorney, financial planner, and ombudsman. Other restrictions beyond the statutory ones can be imposed. The statute addresses other matters, such as notice, reporting and more. Read the Illinois statute here.