Collecting Resident Health Data: With Greater Knowledge Comes Greater Liability

A variety of companies have created innovative monitoring systems that are being implemented in senior living communities across the nation, but increased knowledge of residents’ health information and data is closely followed by increased responsibility and liability, and not all providers are equipped to handle it.

For most communities, resident wellness is the overarching goal. This can serve many reasons: healthier residents are often happier and less expensive to care for, and it’s easier to retain happy and healthy residents for longer periods of time.

Hospitals are shifting their focus to outcomes, and in response some senior living communities are ramping up their service offerings as they seek to provide and prove favorable outcomes. But there can be risks accompanying the collection of certain data, especially for communities that tend more toward hospitality than healthcare.

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“The covenant senior living communities have with their customers is to help them lead a better life, a safer, more secure, and healthier life,” says Mike MacLeod, president of senior care technology provider Status Solutions.

His company serves the same purpose as other similar enterprises, from the Intel-GE partnership’s Care Innovation products to Independa’s applications and platforms: track seniors’ health through collecting relevant data, and turn that into meaningful information used to keep people healthy.

But communities with a monitoring system like Status Solutions’ MIMI (which seeks to turn Motion Into Meaningful Information) bear an extra responsibility.

Take for example urinary tract infections, which are common in older adults. UTIs can lead to fever, which can lead to dizziness, which can lead to falls, which can lead to injury or even death.

A motion-monitoring system can track how many bathroom trips someone normally makes, and if that number increases significantly—a symptom of UTIs—that knowledge can be used to ward off a full-blown infection and prevent a fall.

However, if someone living in a community with a monitoring system that measured daily movements and activities ended up falling and getting injured, and the provider knew or had access to certain information that could have possibly prevented the injury from occurring, they could use that against the facility, says Barbara Zabawa, a health and business litigation attorney in the Madison office of Whyte Hirschboeck Dudek S.C.

“It’s a case of, ‘Be careful what you ask for.’ You have this information; now you’re obligated to use it if you’re trying to take care of this person,” says Zabawa. And, she continues, “If you didn’t have this information, it would be a lot harder to assert you were responsible or careless in caring for this person.”

For senior living communities whose primary focus is not healthcare, this has certain implications.

“There are some risks that collecting this data puts you outside of your scope of practice,” says the attorney. “You have to be careful if you’re not working under the supervision of a licensed professional.” 

If providers are using monitoring systems to essentially take notes of a resident’s behavior or condition, that’s different, she continues, because that information can be used to their benefit, perhaps by alerting a licensed practitioner to a change in behavior. 

“Have a very well-written and comprehensive disclaimer in the consent form for residents,” Zabawa advises. “Make sure they know that information is for observation purposes and to ensure that problems might be more easily detected, but not used for any sort of diagnosis or treatment from that facility; rather, it could be shared with a professional who can use it in that way.”

There is definitely a responsibility and a liability associated with collecting residents’ data, says MacLeod. But senior living providers, like anyone in the care business, are well aware of this and have legal advice and protections in place. 

“What we try to do is package up information via dashboards and portals, so that the likelihood you’d ever miss a symptom is greatly reduced,” he says. “But this is an imperfect world. Not every fire gets put out in time. You can have the greatest wellness system in the world, but [these types of] systems aren’t a panacea that can save everyone.” 

Written by Alyssa Gerace

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