Many senior living and care operators are scrambling to develop policies for virtual assistants that are consistent with federal and state privacy laws. 

“We have a lot of health system clients that are trying to regulate these types of devices,” Bradley Arant Boult Cummings associate Alé Dalton told the McKnight’s Business Daily

The law firm, she said, is seeing the need for policies regulating such devices “popping up more and more,” and facilities don’t know where to get started.

Virtual assistants, such as Amazon’s Alexa-enabled devices, Facebook’s Portal and a growing list of other options, have become increasingly popular since the pandemic, to help residents stay connected with their loved ones, feel less isolated and even promote a certain amount of independence.

“It really became something that families were being encouraged to by folks providing long-term care and elder care as an option, to have access to be able to drop in to their family member’s room to either have a conversation or be able to check in on them and maybe keep a little bit more of an eye since they couldn’t go inside the facility,” Dalton said.

Some residential care facilities provide virtual assistance devices to residents, which brings up other legal issues if the person needs any sort of accommodation under the Americans with Disabilities Act to be able to use it, she said.

As with everything in healthcare, a patchwork exists between federal and state [regulations]. A lot of states are coming up with these, Dalton said. “I think we’ll see it more and more.”

For example, Virginia recently adopted legislation that directs the state Department of Health to establish regulations requiring hospitals, nursing homes and certified nursing facilities to implement policies that ensure patient access to what they called “intelligent personal assistants” while protecting their Health Insurance Portability and Accountability Act privacy rights, Dalton said.

Also, she added, some states already have robust privacy laws or robust elder care laws on the books.

After helping a provider draft a policy for virtual assistants, Dalton said, her firm then would help the client prepare necessary consent forms, supporting documents and language for signage about the policy.
“There is no one-size-fits-all virtual assistant policy, and the complexities of these considerations will continue to evolve as more states begin to regulate the use of virtual assistants in healthcare spaces, not just for long-term care facilities,” Dalton wrote in The National Law Review.