Long term care (“LTC”) facilities across the country are fortunate if they have not either received family requests to place cameras in their family member’s room or been presented with the results of video recordings. Currently, Texas, New Mexico, Washington, Oklahoma, Utah and Illinois are states with legislation on video cameras in resident rooms. The Departments of Health for Virginia and Maryland promulgated guidelines on camera use in resident rooms at the direction of their legislatures. In the past few months, two more states have joined the chorus.
Over the summer of 2017, New Jersey’s Division of Consumer Affairs expanded its program that lends surveillance cameras to citizens for use in the homes of seniors to root out caregiver abuse. The camera loan program was expanded for use in skilled nursing facilities. Now, family members or responsible parties can obtain free video cameras for short term to gather evidence of resident abuse in LTC facilities. The real problem with this program is that there are no use guidelines to prevent violations of privacy, which requires LTC facilities to step in with policies and procedures to protect residents.
On November 15, 2017, the Florida legislature tacked a granny camera provision to proposed legislation requiring back-up generators for LTC facilities to avoid recurrence of the horrifying effects of Hurricane Irma on Florida’s LTC facilities. The granny camera legislation allows installation of video and audio equipment in resident rooms at the request of the resident, guardian or personal representative. Notices outside the rooms must be posted indicating audio and/or video surveillance is conducted within the room. The legislation notes that the privacy rights of other residents must be honored and requires the facility to inform new residents of their right to surveillance. The facility can require that the video or audio equipment be in plain view and that the surveillance request be made in writing. Refusal of a surveillance request and tampering with or destroying video contents constitute misdemeanors. This proposed legislation is similar to that of other states, but does not address all of the nuances of surveillance in LTC community resident rooms.
Each LTC facility’s policy should include several provisions. The surveillance request should be in writing. Consent must be provided by any residents sharing the room. Co-habitants can place limits on the surveillance to protect their privacy, such as no audio surveillance or a camera pointed only at the requesting resident’s bed. A notice should be required to alert anyone entering the room that they are under surveillance. The camera should be stationary and should be placed in plain view, along with any audio recording device. All costs associated with purchase and maintenance should be paid by the resident, with the exception of electricity. The residents should be informed that hidden surveillance is strictly prohibited and is a violation of residents’ rights and HIPPA restrictions.
The facility should take ownership of the resulting tapes or discs because they record the provision of medical services and should be maintained in the resident’s chart. As chart documents, the tapes or discs can be accessed like any other medical record. Because the facility maintains ownership over the recordings, the facility will most likely be charged with knowledge of their contents. Any recorded instances of abuse or neglect trigger reporting requirements and a facility response.
It is important to note that surveillance can be refused in states without laws on electronic monitoring. The standard response is to refuse monitoring; however, residents or their families may hide cameras in the rooms. It may be advisable to implement a policy and take control over these requests to avoid residents and families taking matters into their own hands. Granny cams are here to stay and are being increasingly used by families to catch LTC staff providing substandard care. The facility response should be proactive.