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Video Camera Surveillance Readiness

Imagine coming to work one day and being greeted by irate family members alleging the abuse of their loved one by your staff overnight. And, they have the videotaped evidence to prove it from a camera that was covertly mounted in the room that you and no one else at the facility were aware of. Upon reviewing the video, you indeed hear the night CNA yelling at the resident each time she entered the room. After the initial shock of what was on the tape and that it was recorded, would you view the camera as a friend or a foe?

Such a scenario might one day become a reality for administrators and directors of nursing almost anywhere. In a world where surveillance cameras are all around in stores, streets, restaurants, banks, daycare centers, etc., it seems logical that nursing homes would be added to the list. Family members and elderly advocacy groups argue that it's a means of preventing and documenting abuse and neglect. Many care providers counter that it's an invasion of privacy and a dignity issue for elderly residents and their roommates, let alone a potential HIPAA violation. Others also say that it will make it harder to hire and keep already hard-to-find staff, because they would have to not mind being recorded. Additional arguments include concerns with eavesdropping laws and the reliability of the recording itself; since it can't tell the whole story. What if in the previous example the resident was extremely hard of hearing at night without her hearing aids? Would the same conclusion be drawn?

Lack of Federal or State Laws Authorizing Use of Video Monitoring

The controversy surrounding the use of digital recording video camera surveillance (DRVCS) in senior living facilities is nothing new; in fact it has been ongoing in many parts of the country for nearly two decades, with no sign of settling. A large part of the problem is that there is very little guidance offered by state regulators for health care providers or family members to turn to for information and direction. Currently, there are no federal laws either prohibiting or specifically authorizing the use of video monitoring in a nursing home.

While many states have discussed various legislative efforts and House Bills regarding regulation, just a handful have actually enacted some kind of law concerning the use of DRVCS in nursing homes; and none of them are alike. State laws vary on requirements that grant permission and notices to warn of the video monitoring, as well as where the financial burden of installation of the camera and equipment falls, etc. Texas was the first to codify a law that gives long-term care residents or their families the right to install surveillance cameras in their rooms. Under the law, a resident or their representative must notify the nursing home operator ahead of time of the placement of the camera, and keep the equipment open and obvious. Additionally, they must post a notice at the entrance to the room stating that the room is being monitored by an electric monitoring device and they are required to pay for all associated costs, except electricity. Most recently, the Illinois law, Public Act 99-0430, went into effect on Jan. 1, 2016. According to 1Oberst, it will:

  • Allow for audio and video electronic monitoring devices in resident rooms;
  • Require resident and roommate consent;
  • Make nursing center residents or their representatives responsible for the purchase, installation, and maintenance expenses of the devices;
  • Prohibit facility retaliation against residents for the use of the devices;
  • Provide for recordings to be admissible into evidence in administrative, civil and criminal proceedings; and
  • Provide misdemeanor and felony penalties for any person or entity that intentionally hampers, obstructs, tampers or destroys a recording or an electronic monitoring device.

Some states have even initiated their own use of DRVCS in nursing homes. State justice officials in Ohio and New York have employed hidden cameras to investigate alleged cases of abuse in Medicaid-certified facilities with troubled survey histories. Both states had the consent of the resident's family to do so, and incidents of alleged abuse were discovered.

How to Respond to a Family Member Requesting a DRVCS

So how should a nursing home operator respond to the family member who wants to openly or covertly place a DRVCS in their loved ones room? The answer first depends upon the state, as staff should know or find out what their state legislation and regulations that govern their facilities have to say on the subject. They also should inquire of any state-level administrative survey guidance regarding the matter and consult their legal representative. Obviously, they will need to comply with what is expected and mandated by all applicable state laws and regulations.

If there are no mandates, legislation or regulations in their state and they do not want DRVCS in their facility, they could consult their legal representative and craft a facility-wide policy against the use of such surveillance and ensure that residents and their legal representatives agree to those rules upon admission. The DRVCS prohibition should be expressly written in the admittance agreement or other document, as directed by their legal counsel. In place, staff should emphasize during their discussions with new residents and families, the things they do to prevent abuse and encourage immediate reporting of any concerns to designated individuals.

Policy Considerations

Since the issue is not going away and technology is advancing rapidly, making it easier and more assessable for families to make recordings, some facility operators may accept what could be inevitable and decide to install cameras in their facilities by request of a resident or family member. For those operators, the following considerations should be addressed with their legal representative when formulating their policy:

  1. Formality – All steps should be in writing and outline exactly what each party is agreeing to. This initiative should fall under the oversight of the facilities' QAPI program. Develop a system for how and to whom requests for the use of DRVCS systems by residents and family members can be made. Address how the facility is to be notified of questionable care services or concerns, and how they are expected to respond.

  2. Scope – The scope should be defined so all parties agree to where and when the surveillance can and cannot be used. Are cameras going to be open and obvious or covertly placed? Dignity and privacy issues should be of utmost concern, not just for the resident, but others who may inadvertently be caught on camera. Never install in areas where residents have a heightened expectation of privacy, such as restrooms, shower or bathing areas and changing rooms.

  3. Types of devices and systems – Outline what types of cameras can and cannot be used. For example, will audio recordings be allowed? According to 2Smith, "using cameras that record audio can be considered eavesdropping or wiretapping, depending on how the conversation took place. Most states allow a conversation to be recorded if one participant in the conversation consents, but 12 states require both parties in the conversation to consent before the conversation can be recorded." Caregivers are not likely to have given consent and they are most apt to be recorded.

  4. Use and by who – Will the resulting footage be recorded and viewed at a later date, and/or can real-time images be viewed on smart phones, tablets or computers? Who can access the digital recordings? Who has custody of the recordings? If the facility does, they will likely be considered part of the resident's record, accessible by all state and federal regulators. How long will they be kept? 3Joseph Bianculli, a health care attorney who represents providers in survey disputes, cautions operators to be consistent – if you already have cameras in public areas, be sure to determine who owns the resulting footage and how requests to view video content should be handled.

  5. Cost – Who will be financially responsible for the set-up and maintenance of the DRVCS? According to 4Moles, "Cameras can range from traditional video cameras that record on a videotape to web-based cameras that can be monitored through the Internet, and anything in between." Cameras can cost anywhere in the hundreds to thousands of dollars, depending on specifications. Associated costs can include monthly fees to access the server and for a data-only line to upload images.

  6. Informed consents – Consent by the resident and their roommate and legal representatives are necessary. A full disclosure should obviously be made before implementing and refusals should be adhered to.

  7. Signage – Will there be a notice at the entrance to the room stating that the room is being monitored by an electronic monitoring device? Again, be consistent if there are already cameras in place in public areas, post signage to that effect at the entrance of the building and or each floor that it is on.

Also, consider input in the formation of this policy from other stakeholders and concerned parties, such as the medical director, advisory boards, resident and family councils, the state oversight agency for compliance of federal and state regulations, the ombudsman and labor union representatives, as applicable.

For a more detailed guidance on DRVCS systems in nursing homes with sample forms and a checklist, see the Maryland Department of Health and Mental Hygiene's Office of Health Care Quality report entitled "Guidelines of Electronic Monitoring".

With the growing prevalence of electronic surveillance touching many aspects of our personal lives, it is almost inevitable that nursing homes will encounter it too. Many nursing home operators have successfully resisted it, but the controversy continues, and the decision may not be theirs to make one day. For those operators who have accepted it because they are in states that are regulated, hopefully they are finding DRVCS use to be helping families feel more secure and QAPI programs more enhanced. Either way, working together with residents and their families for safer environments is everyone's goal.

Sources:

1Oberst, J. (2016, February). Coming soon to a facility near you: granny cams. Provider, 9.

2Smith, M. Video surveillance in patient care areas. The Health Law Firm. Retrieved April 28, 2016 from http://www.thehealthlawfirm.com/resources/health-law-articles-and-documents/Video-Surveillance-in-Patient-Care-Areas.html

3Long-Term Care Survey Alert. (2014, February). Hidden cameras: protect resident's privacy—and your reputation—in the YouTube era. Eli Healthcare.

4Moles, D., Gordon, D., Linsey, K. (2013, May). Digital camera surveillance: friend or foe? Provider, 39-42.

 
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