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 GPS Use Raises Legal Concerns

A legal expert examines the benefits and potential pitfalls of utilizing global positioning systems to monitor long term care residents.

 

The use of global positioning systems (GPS), sometimes referred to as real-time location systems (RTLS), to track the movement of individuals is being introduced to the care of the elderly and individuals with disabilities. In recent years, GPS has been used for military and law enforcement purposes and to keep track of vehicles, equipment, pets, and even children.

These systems are raising new challenges to the privacy protections that Americans have come to expect over the past 50 years. Some caution that the use of monitoring devices could usher in a dystopian, Big Brother era. Others are more optimistic about the ability of human beings to use this technology for the greater good.

With people living longer and suffering alarmingly high rates of Alzheimers disease and similar cognitive disorders, GPS has been introduced to help prevent people from wandering away or wandering into unsafe situations.

The Privacy Concern

On one hand, use of GPS could enhance freedom for these vulnerable groups by allowing them to venture farther from protected environments and to live in the community rather than in facilities.
It may also be possible to achieve efficiencies that lower the cost of care in some circumstances, an important consideration as the wave of baby boomers threatens to crush the economy with the sheer enormity of its health care needs.
 
In the wrong hands, however, GPS could be used to monitor and control vulnerable populations in a way that unnecessarily curtails individual freedom. It is not only elderly people with Alzheimers who are at risk, but people with mental illness and mental disabilities as well.
 
GPS receivers can be hidden in shoes, cell phones, watches, and handbags, raising the question of whether it is ever acceptable public policy to monitor certain people secretly for their own good.
The use of GPS has been analyzed by the courts under the fourth amendment of the Constitution, which protects citizens from unreasonable searches and seizures.
 
The protection of the fourth amendment turns on the question of whether an individual has a reasonable expectation of privacy. In private homes, for example, people have a high expectation of privacy, but courts have found the expectation of privacy is reduced when curtains are left open or a person steps out to a balcony where he can be observed by the naked eye or videotaped without specialized equipment.
 
In the law enforcement context, courts are divided about whether GPS monitoring violates the fourth amendment if it is conducted without probable cause and a court order. One court found that use of GPS attached to a vehicle did not violate the fourth amendment because there is no reasonable expectation of privacy on a public road.
 
In another more recent case, however, the surreptitious placement of a GPS device under the carriage of a van and the monitoring of the vans movements over a period of months were found to violate the fourth amendment.

Weighing The Benefits

An individual with dementia or mental disabilities is generally entitled to the same privacy protections as the general population, subject to measures that may be necessary to protect the individual from injuring herself or others. Licensed nursing facilities are required under the Medicare conditions of participation to refrain from unnecessarily restraining residents and to promote self-determination and dignity.
 
Various governing bodies, including the United Nations, have issued declarations concerning the rights of individuals with mental disabilities to be accorded, to the maximum degree of feasibility, the same rights as other human beings.
 
An important principle in the care of people diagnosed with Alzheimers disease is that they should be treated like adults, not children.
 
A person who has an infirmity or mental disability does not lose the right to be afforded the same privacy rights generally afforded to adults in society. In light of these generally accepted principles, the best practice would be to obtain consent from individuals before implementing GPS monitoring. When consent is not practicable but protection is necessary, the severity of the potential harm should be weighed against the benefit of protection afforded by the invasion of privacy.
 
GPS devices can be useful in facilities for managing wandering residents and residents at risk for resident-on-resident abuse. Such RTLS devices can be individually programmed to trigger an alarm if a resident gets too close to a particular elevator, door, or another resident.
 
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Monitoring Independent Living

GPS can also be used in the home or assisted living setting, with alarms that alert caregivers if an individual at risk for wandering tries to leave the house or enter an area of a residence that is unsafe, such as the kitchen. Individuals with milder dementias can be monitored with GPS when they are out of the house in the community, and such individuals can use the devices for help in navigating their way home if they are prone to becoming disoriented.
 
Although expectations of privacy are generally lower in the public domain, they are not absent. Monitoring of vulnerable individuals should be kept to the absolute minimum necessary, as many people consider their activities in the community to be personal and private.
 
In facilities that specialize in care of people with Alzheimers disease or mental disabilities, it may be possible to make the use of GPS a condition of admission, but providers should check with their legal counsel for advice about their particular states law in this area.

No Substitute For Face-To-Face Care

Whether use is mandatory or voluntary, GPS should not be used as a substitute for face-to-face interactions. Implementation of the devices would require staff education and monitoring to ensure that the devices are used as an adjunct to visual checks rather than supplanting them. A potential downside of GPS technology is that it is easy to imagine staff relying on the computer screen to track residents when the better practice would be to make rounds and check in with residents personally.
 
In fact, residents are at risk of becoming more isolated while being monitored electronically, to the detriment of their overall quality of life.
 
In addition to privacy and quality-of-care concerns, providers may be concerned about whether GPS data can be used on them. Could a government investigator or a plaintiffs attorney turn the tables and monitor the facility?
 
To the extent GPS data are collected and saved, they would likely be subject to audit and discovery. It probably is not feasible to limit the amount of time the data are retained because electronic data can always be recovered from hard drives, even if they have been deleted.
 
On balance, GPS data probably have as much potential to help a facility establish that appropriate care was given as to hurt a facility where there was a departure from the standard of care, and is probably no more damaging than written documentation or the lack thereof.
 
If GPS is implemented, it is important to ensure its proper use. For example, there should be a system in place to ensure that the devices cannot be removed by a resident. If a resident at risk of wandering could remove the device, leave it on his bed, and wander to an unsafe location and if staff were not also using visual checks to verify the residents location, the improper reliance on the device could form the basis for a claim of negligence or substandard care.
 
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Review Service Agreements

Finally, if use of GPS becomes a standard of care in the future, those facilities that do not adopt the technology could risk liability for incidents that could have been prevented by GPS use. The industry is not there yet, however.
 
Providers that decide to purchase GPS tracking systems should be aware when presented with a vendors contract. As with any software or electronic systems, service agreements should be reviewed thoughtfully to ensure that the vendor is responsible for maintaining the system, providing training and support, and upgrading if necessary to achieve regulatory compliance.
 
Providers are better protected by contracts that specify the maximum amount of downtime, hours and levels of support services, and after-hours support. Gag rules, which can prevent a user from telling other providers about problems with a system, and sunset clauses, which allow a vendor to discontinue older versions of a system, should be avoided.
 
Kathleen Carver Cheney, partner with Duane Morris, represents a range of health care providers with a focus on long term care and post-acute care. Cheney has a clinical background as a nurse leader, combined with 15 years of health care transactional and regulatory experience. She can be reached at: kccheney@duanemorris.com or (212) 692-1097.

 

 

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