Skilled nursing and assisted living providers have a duty to monitor what happens in their facilities. Providers routinely use “smart” devices to enhance the staff’s capacity to meet resident needs.

 

Examples of common “smart” devices utilized in nursing homes and assisted living communities are bed alarms to help staff members “observe” residents who are at risk of falling, infusion pumps to administer medications, and motion- activated night-lights. Some providers are also using digital recording video camera surveillance (DRVCS) systems to monitor the resident care environment. This article considers the practical and legal considerations surrounding the utilization of DRVCS.

Historically, nursing home and assisted living providers and professional staff resisted the use of “granny cams”—camera systems that observe and record the facility. Opponents of DRVCS contend that video surveillance compromises residents’ privacy and dignity, invites staff resistance, and captures images that may be used by government agencies and plaintiff counsel. The installation, maintenance, and operation of DRVCS are also regarded as prohibitively expensive. DRVCS systems typically cost $3,000 to $12,000, though the price varies based upon the building characteristics, number of cameras installed, and digital storage capacity.

 

Society’s attitude toward video camera surveillance has evolved in recent times, moving from resistance to tolerance, to acceptance, to, in many cases, preference. 

In light of technological advancements, cameras are omnipresent. Surveillance takes place in stores, malls, restaurants, banks, hotels, elevators, parking lots, along streets, and at crosswalks. Homeowners install DRVCS systems and watch real-time images on their smart phones, tablets, and computers.

 

Child daycare centers promote the use of DRVCS systems and encourage parents to view their children online, thereby increasing the level of trust between the daycare centers and families. Recording devices are readily accessible, as every person with a smart phone can capture photographs and audio and video recordings with the click of a button.

 

State legislatures also recognize the benefits of DRVCS. At least 18 states have introduced legislation regulating electronic surveillance in nursing homes and assisted living settings, and several have adopted comprehensive regulations.

 

In 2001, Texas was the first state to enact legislation permitting monitoring devices in skilled nursing and assisted living facilities. New Mexico, Maryland, and Virginia quickly adopted similar legislation. New Jersey is presently considering Senate Bill 669, mandating that nursing homes permit the use of electronic monitoring devices at a resident’s request.

 

Most recently, the Oklahoma legislature proposed the Protect Our Loved Ones Act, mandating DRVCS system installation throughout skilled nursing and assisted living facilities, including resident rooms. A resident or a legal representative must affirmatively “opt out” of room monitoring by executing a waiver with the Oklahoma Department of Health.

The utilization of DRVCS provides benefits for providers as well. Camera surveillance may enhance security, verify proper care, and improve quality by identifying substandard practices for corrective action. Some believe that such devices help to deter abuse and neglect and promote a trusting relationship with consumers.

 In fact, DRVCS systems may provide a marketing “edge” and be an additional source of revenue, if laws and regulations permit facilities to charge for this enhancement.

 

In California, a family reported concerns of patient abuse to a skilled nursing facility for over a year. The family eventually installed a hidden video camera in the patient’s room. The footage showed a certified nurse assistant slapping the resident, pulling her hair, and treating her violently in a shower chair. The family sued, and the jury awarded a $7.75 million dollar verdict.

 

The civil suit and sizable verdict may have been avoided had the facility installed a DVRCS system.

 

A New York nursing home captured an occurrence of residence abuse and neglect through DRVCS monitoring that would have otherwise gone undetected. A nurse at the facility documented that she found an elderly patient with dementia on the floor near her wheelchair in the hallway. The patient sustained a broken hip and was hospitalized.

 

The next morning the facility reviewed the DRVCS footage and learned the shocking truth. The recording revealed that the nurse abruptly spun the resident’s wheelchair, flinging her from the chair to the floor. Instead of offering the resident care and comfort, the nurse ignored her. She looked around the area, seemingly to confirm that there were no witnesses, and resumed pushing a medication cart down the hallway. Minutes later, a different staff member saw the resident, summoned help, and offered assistance.

 

The facility reported the incident to the Department of Health and the police. The nurse was arrested and charged with abuse. The television news story, available at www.nursing homeexpert.net/videoindex.html, commended the facility for installing the DRVCS system, reviewing the footage, and promptly reporting the incident to the authorities.

DRVCS systems installed by law enforcement officials and families have similarly provided footage that resulted in civil litigation and criminal charges. After obtaining consent from the residences’ families, the New York State Attorney General’s Office of Medicaid Fraud placed hidden cameras in residents’ rooms.

 

The footage obtained resulted in the arrest of a few dozen nurses, nurse assistants, and the facility’s medical director. Each employee was charged with the falsification of business records for documenting care that was not provided.

 

The facility ultimately returned state funds for care and services that the managers should have reasonably known were not provided to the residents. Some employees faced additional charges of abuse and neglect.

 

DRVCS systems can be used in common areas, such as lobbies, hallways, dining rooms, and dayrooms, where residents do not have a reasonable expectation of privacy.

 

The provider should notify residents or their legal representatives of the surveillance monitoring upon admission and obtain written consent, to be retained in each resident’s record. Facilities should post conspicuous signs in common areas to inform residents, families, and visitors that the area is being monitored.
Cameras should not be permitted in areas where residents may have a heightened expectation of privacy, such as bathrooms, showers, and locker rooms. Under well-defined circumstances, DVRCS devices may be used in resident rooms, so long as the monitoring complies with state laws and regulations. DRVCS monitoring in patient rooms requires written, informed consent of the resident or legal representative.

 

In a multi-bed room, consent of all roommates should be obtained, and the camera should be installed in a fixed position to ensure that it focuses upon the consenting patient.

With the exception of covert surveillance, the use of an in-room DRVCS system should be approved by the care planning team. In resident rooms, DRVCS may be especially helpful to monitor bedside care when the resident or family complains of abuse or neglect or when a resident sustains recurrent unidentifiable injuries. In addition, the camera system may proactively monitor residents who are unable to vocalize care-related concerns, such as those diagnosed with dementia.

 

Providers planning to use DRVCS systems should formulate policy and procedure guidelines that:

■ Address the scope, use, and capacity of the camera recording system;

■ Note circumstances that warrant the use of covert cameras;

■ Identify which staff members are responsible for maintaining the system and which are authorized to access the digital recordings;

■ Specify how long the digital recordings will be preserved (usually seven to 21 days, based on the system’s capacity);

■ Outline how the facility will safeguard and respond to footage that reveals substandard care;

■ Describe the use of the recorded information to enhance quality improvement;

■ Determine the nature and delivery of resident, family, and staff notifications; and

■ Regulate off-site, Internet viewing by authorized staff members and families.

 

The policies and procedures should define who owns the recorded images and the conditions under which residents, families, and others may view them. The guidelines should prohibit employees from watching or viewing the images absent a reasonable belief that the cameras may have recorded pertinent information.

 

Oversight of the use of the DRVCS system may be assigned to the Quality Assurance and Performance Improvement Committee. Guidelines should be developed with the input of nurses and nurse assistants, an attorney, risk manager, insurance carrier or consultant, resident and family councils, the residents’ rights advocate or ombudsman, and in consultation with the state agency responsible for oversight of the facility’s compliance with federal and state regulations.

 

The implementation of DRVCS systems to complement existing systems for monitoring care and improving quality may result in the timely, provider-friendly, cost-effective improvement of the patient care environment.

 

Disclaimer: The information in this article is provided for educational purposes and does not constitute legal advice.