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standing finance committees of the NM Legislature. The LFC does not assume
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Previously issued FIRs and attachments may also be obtained from the LFC
in
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SPONSOR |
Sanchez, M |
DATE TYPED |
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HB |
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SHORT
TITLE |
Patient Care Monitoring Act |
SB |
401/aSJC |
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ANALYST |
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APPROPRIATION
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Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY04 |
FY05 |
FY04 |
FY05 |
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See
Narrative |
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LFC Files
Responses
Received From
Attorney
General Office (AGO)
Aging
and Long Term Care Department (ALTCD)
Human
Services Department (HSD)
Department
of Health (DOH)
Children
Youth and Families Department (CYFD)
New
Mexico Corrections Department (NMCD)
SUMMARY
Synopsis of SJC
Amendment
The Senate Judiciary Committee amended the bill
as follows:
q Exempts
the intermediate care facility for the mentally retarded from the “Patient Care
Monitoring Act”
q Provides
for recorded activity of date and time in the monitoring device to be used as a
record.
q Clarifies language on recording the patient’s
option on installing a monitoring device and making the record accessible to
the program.
q Inserts
language that includes the patient’s responsibility for the operating and maintenance
of the monitoring device.
q Clarifies
language providing for the “release of liability” for the facility in reference
to the monitoring device.
q Clarifies
language that compliance with the “Patient Care Monitoring Act” shall be a defense
against civil action against the patient, surrogate or facility.
q Clarifies
language on record keeping of the notice provided to patients informing them on
the “Patient Care Monitoring Act”
q Inserts
language that patients may not be discriminated or retaliated against for
installation or use of a monitoring device.
Synopsis of Original Bill
Senate Bill 401 proposes
to establish authorization and use of monitoring devices within skilled nursing
facilities and intermediate care nursing facilities, including intermediate
care nursing facilities for the mentally retarded. The bill further includes
nursing facilities, adult residential shelter care homes, boarding homes, adult
care homes or adult residential facilities, and swing beds in an acute care
facility or extended care facility. The
patient or surrogate may authorize installation and use of the monitoring
device.
SB 401 gives the State
Agency on Aging the responsibility for adopting the necessary rules for
implementation.
Significant Issues
DOH states that SB 401 may possibly be viewed by
these facilities as a means to allow for lower staffing ratios as a result of
the installation of these monitoring devices.
Individual clients working in conjunction with a
facility are required to obtain the appropriate authorization for the
installation and equipment. Any
monitoring equipment installed without the knowledge of a facility is automatically
granted immunity from any civil action against the facility.
The cost of the monitoring device, installation
and maintenance would be paid for by the patient. Any other resident or their surrogate sharing
the room of the individual who opted for this monitoring must give written
consent for the monitoring device. The
resident could establish, and the facility would accommodate, limits on the use
of the device including time of operation, direction, focus or volume of a
monitoring device. Residents would be offered this option at the time of
admission.
Long-term care facilities would be provided
immunity from civil actions if the material obtained through the use of a
monitoring device was installed or used without the knowledge of the facility
or without the prescribed form. Denial of admission or a discharge because of a
resident’s desire to use the monitoring device would be prohibited under
Sections 28-17-19 NMSA 1978
FISCAL IMPLICATIONS
Monitoring devices in
facilities, state nursing homes, private for-profit agencies and ICF/MR facilities
will not have a direct cost to the agencies. However, litigation based on the
use of these devices could be an issue.
This legislation would include Medicaid, Medicare and private care.
ADMINISTRATIVE IMPLICATIONS
The
ALTCD must adopt rules to implement the statute.
The bill has some
administrative implications for Medicaid Institutional Care in the promulgation
of regulations and other Medicaid fee for service benefits. Because the definition section refers to
licensed facilities, it would definitely have implications for the Department
of Health’s Licensing and Certification Bureau, as well as the DOH Long Term
Care Division.
TECHNICAL ISSUES
DOH raises the
following concerns:
q
SB 401 does not specify whether
residential providers within the Medicaid Home and Community Based Services
Waivers are included in this bill.
q
SB 401 does not address issues relating
to tracking the installation of monitoring devices; the intent of the device;
the responsibility for the information provided by these units; how the information
can be used (quality management, utilization review, complaints).
q
SB 401 contains right-to-privacy issues
for individuals that use a health-care decision maker who are not legally
appointed. This is a gray area not addressed by the bill. Also, individuals who
have Durable Power of Attorney or Power of Attorney that make decisions for
them regarding medical or other issues, have the right to refuse other
treatments (i.e., medicine, bathing, etc.).
A question that needs to be addressed is: Does the individual resident
(patient) rights/requests supercede the surrogates request? SB 401 requires other residents (patients) in
the same room to sign off on the notice for the device. SB 401 does not address situations where the
other residents (patients) deny such a request.
HSD expressed concerns
in the definitions portions of the bill.
In section 2. B. “facility”, the bill includes
such entities as an adult residential shelter care home, boarding home and any
adult care home. Such locations are not
normally considered facilities. It is
not clear whether or not long-term care services provided under the various
other Medicaid programs would also be subject to such monitoring devices. HSD did not see any significant legal issues
with this bill as long as the notice, consent and privacy issues are adequately
addressed.
OTHER SUBSTANTIVE ISSUES
ALTCD acknowledges a growing
public concern about the quality of care in nursing homes and states the LTC
Ombudsman program is aware of reports of at least 4 rapes in LTC facilities during
the last year.
BD/njw:dm