Authorized Electronic Monitoring in Nursing Homes
The decision to place a family member in a nursing home is one of the most traumatic judgments for a family to make. Much of the anxiety is rooted in the fact that the resident will be under the control of strangers for basic daily needs and may be cognitively impaired. The opportunity for abuse and the inability to report it make families very uneasy. The ubiquitous presence of electronic devices capable of making video recordings has presented an opportunity for the protection of nursing home residents. Some families have inquired about the legality of surveillance video equipment in the patient's room. The devices are pejoratively called "granny cams" and are similar to the "nanny cams" used by parents to monitor home care workers.
New York State
New York State has no statute explicitly authorizing or prohibiting video surveillance in nursing homes. However, the New York State Department of Health has issued a memorandum to all nursing homes called a "Dear Administrator Letter"1 on this subject. That letter states:
Nursing homes have the right to develop policy and procedures regarding the use or the non-use of video and/or audio surveillance equipment in any part of their facility including resident rooms. Written policies must adhere to established regulations, including 42 CFR §483.10(e)—F164, Privacy and Confidentiality and §483.15(a)—F241, Dignity.
The regulation at §483.10(b)(1)—F156, Notice of Rights and Services, further requires that the nursing home provider inform the resident, both orally and in writing, in a language that the resident understands, of his or her rights and all applicable rules and regulations governing resident conduct and responsibilities during the stay in the facility. The facility policies on camera use should specify how the resident and his family/representative would be informed, at admission and thereafter, regarding the installation, placement, and use of security cameras.
The ability of a resident or family member to use electronic monitoring is therefore not uniform and is left up to the individual facilities in New York State. Facilities may allow or proscribe electronic monitoring.
Three states currently have affirmative statutory authority for electronic monitoring of nursing home residents; Texas,2 New Mexico3 and Oklahoma.4 A review of the three statutes reveals common issues that should be considered by individual nursing homes or by the New York State Legislature if it saw fit to enact explicit legislation.
Authorized and not Covert
All three statutes require that the electronic recording be done upon notice to the facility and that the recording be made in plain view. They are called "authorized" electronic monitoring. Covert recordings are not the subject of these three statutes. Surreptitious recording may implicate federal wiretap laws or New York State Penal Law §250.45(1), commonly called "Stephanie's Law." All of the three statutes require the posting of conspicuous notices that the patient's room is being monitored. Such notices remove any expectation of privacy by a third party.
Since the electronic monitoring will be open, there is a risk that a third party could take steps to obstruct the recording, to hide patient abuse. All of the three state statutes impose a penalty for anyone interfering with, destroying or tampering with the monitoring. All three statutes require the resident to absolve the facility of liability for any claims made regarding the monitoring.
The easiest formulation in examining this issue is the competent resident. He or she could consent to the electronic monitoring. If the resident is under a judicial guardianship the appointed guardian should have the authority to consent. It would be useful for guardianship practitioners to consider adding specific authority in the court order allowing the guardian of the person to give such consent.
The largest group of nursing home residents is likely to be those who cannot consent themselves but who do not have a court-appointed guardian. Guidelines should make it clear whether or not an agent under a power of attorney or surrogate under a health care proxy may give consent for the resident. General Obligations Law 5-1501 et seq. and Public Health Law 2981 may need to be amended to specifically grant such authority to give such consent.
Once the consent to monitor the resident is resolved consideration must be given to the fact that most residents share a room. Consent for the electronic monitoring in the shared room must be secured from the roommate, the roommate's guardian or legal representative.
All three of the current state statutes authorizing such monitoring require nursing homes to permit it if guidelines are followed. They all contain language that prevents a facility from denying admission to a prospective resident or discharging a current resident who desires to use authorized electronic monitoring. The statutes also make it clear that electronic monitoring cannot be required by the facility. They all require the resident to assume the cost of the equipment and the installation.
Opponents of authorized electronic monitoring cite the risk of increased insurance premiums. They voice a concern that the recordings will result in litigation against the facility. Objections are also raised about the ability to retain staff who may object to being monitored. In addition, there are concerns that the monitoring results in a loss of privacy on the part of the resident, in particular when being dressed, toileted or washed.
New York State has more than 600 nursing homes and more than 115,000 nursing home beds. The aging of the "baby boomer" generation will place a great deal of pressure on the long-term care system. It is important to take steps to secure quality care for the residents of nursing homes who are most vulnerable. The enactment of a New York State statute allowing authorized electronic monitoring would provide some protection for those in nursing homes. In addition, such a statute would provide a uniformity that is currently lacking.
Daniel G. Fish is a principal in Daniel G. Fish LLC.
1. DAL#: NH 12-03, "Video and/or Audio Surveillance Equipment Requirements," May 22, 2012.
2. Tex. Health & Safety Code Ann. §242.841-§242.852.
3. NMSA § 24-26-1-§24-26-12.