Video Surveillance Can No Longer Be Ignored

The State of Louisiana has joined seven other states- Texas, New Mexico, Washington, Oklahoma, Utah, Illinois and Florida- in passing legislation on use of surveillance cameras in rooms of long term care facility residents.  Long term care facilities (“LTCs”) can no longer hide their heads in the sand over in-room surveillance.  Active engagement with residents and their responsible parties is essential to quell concealed surveillance cameras.

Louisiana’s Nursing Home Virtual Visitation Act (“ACT”) was passed on May 31, 2018 and has the following standard features:

  1. The resident must provide notice of installation to the facility;
  2. Visual recordings must include date and time;
  3. The device must be stationary and fixed, not oscillating;
  4. Resident pays all costs for installation, upkeep and removal;
  5. Written consent is required from all roommates;
  6. Room changes are required if a roommate does not consent;
  7. Residents and applicants cannot be retaliated against for authorizing devices; and
  8. Signage must be installed at the front door of the facility, at the facility’s cost, and at the resident’s room, at the resident’s cost, notifying of surveillance in the rooms.

The Act exceeds requirements other states have established in several ways.  Under the Act, surveillance is addressed at admission as a resident right.  LTCs are required to provide notices at admission that residents have a right to monitoring devices, and the resident rights statements must include a right to surveillance.  The admission papers must include an opt-in or out form.  The opt-in and consent forms must include a release of liability of the LTC for violations of resident rights to privacy and a waiver of those rights by the resident. The apparent intention is to avoid any claims of HIPAA or other violations of law in relation to medical care documented in the recordings.

To promote compliance, the Act prohibits use in litigation of any recordings when the device was installed or used without the LTC’s knowledge or used without completing the required forms.  Further, compliance with the Act is a complete defense in lawsuits brought purely because monitoring devices are in use.

While the Act appears to cover all bases, it fails to appropriately address documentation of abuse, which is the main reason why surveillance is used.  The Act’s abuse provision requires any person who views an incident on a recording to report such abuse to the LTC and provide a copy of the recording as soon as practicable after the viewing. “As soon as practicable” is not defined and could mean after consulting with an attorney or sharing the recording with the press.  The intention was probably to provide notice so the LTC could immediately address any problems documented on the recording.  The effect may be quite different. Whether waiting to decide what to do about the documented abuse before notifying the LTC, thereby allowing it to go unaddressed, constitutes “as soon as practicable” will most likely be litigated.

The Act clearly establishes that recordings are not in the control or possession of the LTC, and they should be.  For an LTC to remain vigilant in addressing potential abuse, it must be informed immediately.  No LTC wants to first learn about abuse of residents on the evening news channels. Families may believe that LTCs will hide abuse when it happens; however, LTCs are required to report to the appropriate agencies and to the responsible parties any incident that causes harm to a resident.  There is no hiding the recorded facts, especially when the family is aware of the use of a recording device and can ask to see the footage.  At the very least, the LTC should obtain a copy of the recording before it leaves the building.

Louisiana’s Nursing Home Virtual Visitation Act is another example of why LTCs must address video cameras in resident rooms sooner rather than later.  The number of states with legislation on video cameras in LTC resident rooms will probably increase, and LTCs should be aware of the current state of the laws and what to lobby for with their legislators.

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