Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, May 14, 2019

Comment on Retiring the One-Party Consent Statute for Long-Term Care Residents' Rooms

NursinghomeLynsie Zona recently published a Comment entitled, Retiring the One-Party Consent Statute for Long-Term Care Residents' Rooms, 50 Ariz. St. L.J., 1347-1378 (2018). Provided below is the introduction to the Comment.

A recent article in the Arizona Daily Star opened with a heartbreaking story: A woman learned that her father had not received a critical medication during a month's stay at an assisted living facility. His health declined rapidly, and he died a few months later. The article featured an interview with a Tucson attorney, who noted that litigation often prompts long-term care facilities to make improvements. According to the attorney, "[i]f facilities are being looked at and watched more closely, they generally will attempt to do better." But litigation comes too late for some families hoping to protect their loved ones. Instead, families may turn to technology to watch their relative's facility more closely and ensure their loved ones are being cared for properly.

The use of an electronic monitoring device ("EMD"), such as a camera, in a long-term care resident's room raises critical ethical and legal questions regarding privacy and responsibility. Currently, most states, including Arizona, rely on wiretapping statutes to govern the use of EMDs in long-term care residents' rooms. In theory, long-term care residents in one-party consent states should be able to capture conversations to which they are a party without seeking the permission of any other party. But the nuanced environment of long-term care complicates the legal analysis, because a resident's room is a home, a health care facility, and a workplace. In states with one-party consent statutes, reliance on wiretapping statutes is inefficient, and exposes facilities and residents to unnecessary risks through uncertainty about rights and responsibilities. Tailored statutes governing EMDs in long-term care facilities clarify the rights and responsibilities of facilities, residents, and residents' family members.

EMD legislation addresses a modern reaction to enduring concerns about inadequate treatment in long-term care facilities. These laws require facilities to permit a resident to use an EMD and outline responsibilities of facilities, residents, and family members. While efforts to legislate the use of EMDs in long-term care facilities span nearly two decades, success has been slow. Only six states have passed legislation addressing EMDs in long-term care facilities. But several factors indicate that EMD legislation may become more popular in state legislatures. First, advances in technology have made it easier than ever to capture and share disturbing videos of elder abuse or neglect in long-term care facilities. A rash of news stories featuring these videos have captured public interest, drawing attention to EMDs. Second, families are interested in using technology to "validat[e] good care." One study found that more than half of individuals with a relative in a nursing home would be likely to request a camera in their relative's room. Finally, the discourse surrounding the most recent EMD legislation suggests that stiff resistance from the long-term care industry may have softened a bit. But the long-term care industry remains wary of efforts to permit residents to install EMDs in their rooms.

This Comment advocates for balanced, thoughtful legislation that permits long-term care residents to use an EMD without interference, but allows a facility to adopt custom EMD procedures. Although the proposed statutory language could benefit any one-party consent state, the approach is tailored for Arizona. The state's demographics, and a recent Arizona Supreme Court decision addressing claims of elder abuse, make Arizona an ideal framework for EMD legislation analysis. Part II examines Arizona law addressing elder abuse, then describes ongoing struggles within the long-term care industry. Part II.C provides a brief overview of one-party consent laws, focusing on Arizona's wiretapping statute. Part III.A describes the privacy concerns surrounding EMDs in long-term care residents' rooms. Part III.B highlights failed EMD legislation efforts and explores the strength of the long-term care industry's influence in state legislatures. Part III.C introduces EMD legislation in four one-party consent states and compares key provisions. Part IV draws upon the provisions in Part III.C and proposes EMD legislation language for Arizona that balances a family's desire to protect a long-term care resident while providing flexibility for the facility.

https://lawprofessors.typepad.com/trusts_estates_prof/2019/05/comment-on-retiring-the-one-party-consent-statute-for-long-term-care-residents-rooms.html

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