ASSISTED LIVING: ELECTRONIC MONITORING IN ASSISTED LIVING

Regulations on electronic monitoring were updated in January 2020, just before the COVID pandemic. Early in the pandemic, limits on visitation resulted in a number of families installing monitoring devices in resident apartments. From Google Nests to Alexas and other technology-based methods of communication, these devices deserve special attention due to electronic monitoring requirements. 

There are two specific areas in the WAC pertaining to electronic monitoring: one focused on facility-based monitoring systems, and another on resident-based systems. This article reviews both types.

FACILITY-BASED MONITORING

According to WAC 388-78A-2680, the facility may video monitor and video record activities in the facility or on the premises, without an audio component, in the following areas:

• Entrance and exit doorways (so long as residents do not gather in these locations)
• Areas used exclusively by staff (again, so long as residents do not go in these areas)
• Outdoor areas accessible to both residents and the public (for example, the parking lot) for the purposes of monitoring to prevent theft, property damage, or other crimes
• Outdoor areas not commonly used by residents, such as delivery areas, emergency exits, or exits from secured outdoor spaces in memory care units
• Resident fitness centers and pool areas (monitoring for safety)

Designated smoking areas can also have facility-based video monitoring/recording without an audio component, provided residents have been assessed as needing supervision for smoking and a staff person watches the video monitor anytime a resident is using the smoking area. The video camera must be clearly visible, the monitor cannot be viewed by the general public, and the facility must notify all residents in writing of the use of the video monitoring equipment in the smoking area.

The facility may video-record events with an audio component so long as a resident requests the activity be recorded and a sign is posted at the entry to the activity area notifying residents that video, audio, or both are occurring. In addition, the facility must notify all residents in writing for each use of video and audio monitoring equipment, providing that the residents’ likeness will not be used in promotional materials without their written consent.

The assisted living facility cannot use cameras to replace appropriate in-person assistance and monitoring due to resident physical and/or cognitive limitations.

Finally, the last section of WAC 388-78A-2690 (section 13) states that the assisted living may implement electronic monitoring pursuant to a resident’s negotiated service agreement including but not limited to:

• Motion sensor alerts
• Floor pressure sensors
• Global positioning devices

These monitoring devices cannot include transmittal of a human-viewable image, sound, or resident name.

RESIDENT-REQUESTED MONITORING

Residents and/or their representatives have the right to request and consent to audio or video monitoring, with specific limitations outlined in WAC 388-78A-2690. The facility cannot refuse to admit an individual, or discharge a resident, because of a resident’s/representative’s request to conduct authorized electronic monitoring.

When a resident requests the use of electronic monitoring, the consent may include specific times or situations, pointing the camera in a particular direction, or prohibiting the use of certain devices. Any roommate must agree to the electronic monitoring via written consent. The resident and the assisted living facility must agree on the specific duration of the monitoring, and the full agreement shall be documented in writing.

For the purposes of consenting to video monitoring only, without an audio component, the term “resident” includes the resident’s representative. For the purposes of consenting to audio monitoring, the term “resident” includes the person living in the facility, or the resident’s court-appointed guardian or attorney-in-fact who has obtained a court order specifically authorizing this person to consent to electronic monitoring of the resident.

The facility has some obligations with respect to resident-requested electronic monitoring. These include:

• Ensuring a written agreement amongst all involved parties is completed and maintained, including the specifics of the electronic monitoring, signatures and dates
• Reevaluating at least quarterly with the resident the need for continued electronic monitoring
• Immediately stop electronic monitoring if:
• The resident no longer wants the monitoring, or
• The roommate objects or withdraws consent, or
• The resident becomes unable to consent (unless consent has been provided by the resident’s representative as described in WAC 388-78A-2690).

The facility may not release audio or video monitoring recordings. Each person or organization with access to the electronic monitoring must be identified in the resident’s negotiated service agreement.

The most commonly seen electronic monitoring involves families keeping track of any video via their phone, tablet, or personal computer; the facility does not have access to the content nor are recordings conducted by the facility.

It is recommended each facility have a policy and procedure on electronic monitoring that includes the information provided in this article. If you have questions about assisted living regulations, please email Vicki McNealley, or call her at (800) 562-6170, extension 107.

SKILLED NURSING: IJ CRITERIA REVIEW

Nothing is more serious and stressful to a facility than hearing the two letters "IJ" during an investigation or survey. Immediate Jeopardy (IJ) citations remain a focus and concern here in Washington and across the nation. As you all know, the enforcement ramifications remain immense, including the sanctioned loss of a nursing assistant training program. IJ level citations can occur anywhere, even in a well operated facility.

It is important that facility administration and management have an understanding of the processes involved with IJ citations prior to being in the middle of a situation when the survey team cites an IJ. Understanding the IJ guidance will also help facilities understand the triggers to identify potential circumstances that may result in an IJ before it happens. This, in turn, prevents potential or actual serious harm, injury, impairment, or death to a resident.

Appendix Q of the State Operations Manual (SOM) provides guidance for identifying immediate jeopardy. The revisions that CMS made to the guidance create a Core Appendix Q that will be used by surveyors of all provider and supplier types in determining when to cite immediate jeopardy. CMS drafted associated subparts to Appendix Q that focus on IJ concerns specifically in nursing facilities.

CMS has clearly stated and directed surveyors that a determination of IJ must include three key components:

1. Non-Compliance - the facility has failed to meet one or more federal health, safety, and or quality regulations; AND
2. Serious Adverse Outcome or Likely Serious Adverse Outcome – must be present. As a result of the identified noncompliance, serious injury, serious harm, serious impairment, or death has occurred, is occurring, or is likely to occur to one or more identified residents at risk; AND
3. Need for Immediate Action – the noncompliance creates a need for immediate corrective action by the provider to prevent serious injury, serious harm, serious impairment, or death from occurring or recurring.

There are also some key definitions and clarifications made by CMS in the QSO-19-19-ALL memo and guidance.

• Likelihood instead of potential – Core Appendix Q makes it clear that in order to cite immediate jeopardy in situations where residents have not already suffered serious injury, harm, impairment, or death, the nature and/or extent of the identified noncompliance creates a likelihood (reasonable expectation) that such harm will occur if not corrected, not simply the potential for that level of harm to occur.
• Culpability has been removed – Because the regulatory definitions of immediate jeopardy do not require a finding of culpability, that requirement has been removed and has been replaced with the key component of noncompliance.
• Psychosocial harm – Core Appendix Q includes a section instructing surveyors to consider whether noncompliance has caused or made serious mental or psychosocial harm to recipients. In situations where the psychosocial outcome to the recipient may be difficult to determine or incongruent with what would be expected, the guidance instructs surveyors to use the reasonable person concept to make that determination. The reasonable person approach considers how a reasonable person in the resident’s position would be impacted by the noncompliance.
• No automatic immediate jeopardy citations – Core Appendix Q makes it clear that each immediate jeopardy citation must be decided independently and there are no automatic immediate jeopardy citations.

Another significant IJ process includes the use of the IJ Template. The IJ Template is a document developed by CMS to assist surveyors to document the information necessary to establish each of the key components necessary to determine an IJ (outlined above). The survey team/complaint investigator must complete the IJ Template to document evidence of each component of an IJ and use the tool to communicate the IJ to the facility.

It is critical that members read the full guidance in detail. Online CMS basic training for Core Appendix Q is available on the QSEP Training website. If you have questions, please email Elena Madrid or call her at (800) 562-6170, extension 105.