You asked for information on the use of video cameras in nursing homes, including the legal issues it raises.

BACKGROUND

The placement of video cameras in the rooms of nursing home residents has emerged as a growing issue as family members seek ways to monitor the quality of care of their loved ones. Family members and advocacy groups have joined to propose laws that would explicitly permit a nursing home resident and family members to install cameras, with the facility's knowledge. Some believe that residents do already have the right to install cameras, but believe legislation would "ease the fear of retaliation against the resident by the nursing home or its personnel" (Cameras in Nursing Homes, joint study of the Florida Agency for Health Care Administration and the Office of the Attorney General, January 2002).

The use of video cameras in nursing home rooms raises a variety of issues including (1) the resident's right to privacy and dignity; (2) potential for improvement in quality of care; (3) the impact on the nursing home as a workplace; (4) costs of maintaining a recording system; and (5) obtaining consent for video camera use (see Florida report, p. 1. )

Generally, the nursing home industry has opposed the use of video cameras in facilities, primarily because of privacy concerns and the potential difficulty in recruiting and retaining employees (Florida report, p. 2).

As of January 2002, only Texas has passed legislation granting family members the right to install such cameras.

OTHER STATES' ACTIVITIES

Texas

In 2001, Texas became the first state to enact legislation allowing electronic monitoring devices in the rooms of residents of convalescent or nursing homes or related institutions, or in the rooms of people receiving treatment at a comprehensive medical rehabilitation or treatment facility. This law, Senate bill 177, gives a resident or guardian the right to request and install an electronic monitoring device that is owned and operated by the resident or his guardian. The law provides guiding principles for the resident/family member and the facility in the installation, maintenance and permitted use of a system. The law also establishes criminal penalties against any facility administrator who knowingly refuses a resident or family member's request or knowingly refuses to admit a resident based on the desire to install a system. It also establishes criminal penalties against anyone who tampers with, obstructs, or destroys an electronic device. The Texas Department of Human Services is drafting rules to implement this law.

Apparently, the Texas bill was not strongly opposed by the nursing home industry because cameras were already in use in Texas facilities. Nursing home representatives wanted to bring some regulation to the practice (see BNA's Health law Reporter, November 15, 2001, p. 1748).

Maryland

In 2001, the Maryland Legislature agreed to establish a pilot program on video camera use at three nursing homes. The program must address the benefits to the resident and family as well as the effect on facility staff. The sociology department at the University of Maryland is assisting in this program, with a report to the legislature due in January 2003.

Florida

The Florida legislature is considering video camera legislation this session. A bill (SB 1714) was introduced in the Senate's Health, Aging and Long-Term Care Committee that calls for a year-long pilot project testing the impact of cameras on nursing homes and incidents of resident neglect, exploitation, and abuse. One for-profit and one not-for-profit nursing home would be selected for the project. If none volunteer, the Florida Agency for Health Care Administration would choose two. Room cameras would be installed at each family's expense, while the state picks up the cost for cameras in the facilities' common areas. The bill prohibits information obtained during the pilot project from being used as evidence in a civil lawsuit.

The Florida proposal follows a recommendation of a state task force report (cited above) that recommended legislation specifically granting nursing home residents the right to install video cameras in their rooms and penalties for those who harass or try to discharge those who request them.

This bill apparently died in March in the Committee on Rules, Ethics, and Elections.

Others

Other states recently considering, but not passing legislation on video camera use include Massachusetts, Ohio, North Carolina, and Washington.

LEGAL ISSUES

Legal questions concerning privacy, electronic surveillance, and patient consent are raised when considering the placement of video cameras in nursing home residents' rooms. There are no simple answers to them. As of the end of 2001, no court had ruled on the legality of video cameras in nursing homes or the admissibility in court of captured footage. Some legal observers believe that with few laws and no legal precedent, facilities can refuse to allow cameras and courts are not likely to order them installed (see BNA, November 15, 2001, p. 1747).

Putting a camera in a place where many individuals reside poses a risk of taping someone who you have no right to tape, according to some lawyers addressing the topic. Medical information is highly protected and the Health Insurance Portability and Accountability Act adds even more privacy obligations on the facility (see BNA, p. 1748).

Consent is another important issue. Just because an adult child of the facility resident agrees to the taping doesn't necessarily mean the elderly resident agrees to it at all times, according to some. Other important legal issues concern who owns the tape, how it is stored, who has access to it, and whether families have a legal right to film on a nursing home's private property.

If the conduct caught on a tape is egregious, will trial courts admit it as evidence? Some commentators believe it would be but are not as sure when the tape shows less egregious conduct, especially in questionable negligence situations. In such cases, much would depend on the legal standing of the person doing the taping. Again, these issues are in their infancy and remain to be answered.

(For a more detailed review of legal issues, a portion of the Florida report is attached. )

JK: ro