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Note - Big Brother is Watching at Country Meadows: A New Theory of Surveillance to Protect Our Elders with Dementia


More than 50% of residents in nursing facilities1 have some form of dementia2 or cognitive impairment. For the past thirty years, the federal nursing home regulatory scheme has suffered from being predominantly self-regulating and self-reporting. Recommendations for reforms have focused on increased surveillance of nursing home staff and residents without addressing the need to tailor nursing home requirements or quality of care metrics to the growing population of residents with dementia. In light of the growing evidence that a “person-centered care” approach best addresses the day-to-day challenges of dementia, federal policy should blend person-centered care with the “surveillance quo.”3 Other recommendations for dementia reform have built upon the nursing home culture of surveillance. Some of these recommendations include decreasing the use of anti-psychotic medications in residents with dementia, installing video cameras (“granny cams”) in dementia units, and increasing reporting requirements and the frequency of survey visits. Meanwhile, federal policy has been slow to adopt a person-centered care approach because of the approach’s subjective nature and tension with a medicalized environment. Proponents of person-centered care dementia reform have failed to acknowledge that the approach must co-exist with the surveillance quo, at least during its initial acceptance and adoption by federally funded nursing facilities.

Although the Centers for Medicare and Medicaid Services (“CMS”) has acknowledged person-centered care in its initiatives and regulations, CMS should promote person-centered care as complementary to the surveillance quo. Using CMS’s Proposed Rule, Reform of Requirements for Long-Term Care Facilities (“Proposed Rule”), this Note analyzes the Proposed Rule and comments to show how CMS can advance its growing commitment to person-centered care through new metrics for the Nursing Home Compare website. These metrics would confirm the co-existence of person-centered care with the surveillance quo and, most importantly, disseminate information about nursing facilities’ dementia care to the public.

1 This figure includes assisted living and nursing homes. Alzheimer’s Association, Dementia Care Practice Recommendations for Assisted Living Residences and Nursing Homes 1 (2009), [hereinafter Alzheimer's Ass'n, Phases 1 & 2]. For purposes of this Note, two categories of nursing homes are considered: nursing homes that accept reimbursement from Medicaid (nursing facility [hereinafter “NF”]) and nursing homes that accept reimbursement from Medicare (skilled nursing facility [hereinafter “SNF”]). See generally What is the Difference Between NFs and SNFs?, Preadmission Screening and Resident Review Technical Assistance Ctr. (July 5, 2011), “Most facilities are certified as both NFs and SNFs. A given facility can have both ‘NF beds’ and ‘SNF beds’; they are ‘dually certified.’” Id. If a resident qualifies for both Medicare and Medicaid, otherwise known as “a dual-eligible,” that resident “can move from the SNF portion of a facility (which provides rehabilitative care) to the NF portion of a facility (in the event that long-term care is needed).” Id.

2 “Dementia is not a specific disease. It’s an overall term that describes a wide range of symptoms.” What is Dementia?, Alzheimer’s Ass’n,
dementia.asp (last visited Nov. 22, 2016).

3 The term “surveillance quo” is used throughout this Note to refer to the culture of surveillance of staff and residents in nursing homes. Twentieth-century philosopher Michel Foucault wrote about institutional surveillance dating back to eighteenth-century philosopher Jeffrey Bentham’s “Panopticon” design of prison. See generally Michel Foucault, Discipline and Punish (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1977) (positing that the Panopticon design, which had become popular in—among other settings—prisons, schools, and psychiatric institutions, kept a population under control through differentials of power and observation).