granny cams and video surveillance what providers need to know post conference p… · typical...
TRANSCRIPT
Presented byTodd Selby| [email protected]
Granny Cams and Video Surveillance –
What Providers Need to Know
Overview• Families claim they have resorted to monitoring
measures as a “last-ditch step” because they suspect abuse “but feel that the authorities dismissed their complaints.”
• Plus, it is a “cheap, quick way to verify” that the abuse they suspect is occurring.
• These granny cams have been largely successful in catching the culprits of abuse.
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Headlines
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Regulated• Federal
• At the federal level, HIPAA privacy and security regulations largely guide health care organizations’ approaches to photography and recording of residents.
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Regulated• States
– Alabama, Arkansas, Florida, Massachusetts, Michigan, Mississippi, Missouri, North Carolina, Ohio, South Carolina, Tennessee, and West Virginia have previously attempted to introduce legislation.
– Arizona, Georgia, Minnesota, and North Dakota are currently attempting to introduce legislation.
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Regulated• States
• Several states have successfully passed laws and regulations regarding this specific issue:
• Illinois, Kansas, Louisiana, New Jersey, New Mexico, Oklahoma, Texas, Utah, Virginia, and Washington, Wisconsin.
– Guidance: Pennsylvania, California, Maryland.
– Texas was the first in 2001.
• No state has passed law banning cameras.
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Headlines
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Typical Elements of Granny Cam laws • Scope
– Primarily nursing homes, some assisted living.
• Washington requires an identified threat to the resident’s health, safety or personal property to justify installation.
• Consent Process
– Always contingent upon resident consent in accordance with the Federal Residents Rights regulation, 42 C.F.R. 483.10.
• Roommates
– Strong recognition of privacy rights of roommates.
– Consent Forms.
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Typical Elements of Granny Cam laws• Type of device
– Can include video and audio recordings.
– Cannot be for the purpose of taking still photographs.
– Concern over “covert” placement.
• Signage and notice
– At (1) entrance and/or (2) at room.
• Most require both.
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Typical Elements of Granny Cam laws• Accommodations for resident
– Facility must reasonably accommodate installation needs.
– Resident pays for installation and other associated costs.
• Limits on recording
– Patient (and roommate) may establish limits on granny cam use which must be accommodated by the facility.
– Facility may also establish limits on granny cam use including:
• Unconcealed placement;
• Safety concerns; and
• Compliant with local and state regulations.
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Typical Elements of Granny Cam laws• Admissibility in Court
– Granny cam laws anticipate that records will be used as evidence.
• Penalties
– Variety of criminal and civil sanctions for preventing, obstructing, destroying recordings.
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Use of video cameras in other healthcare settings
• Waiting areas?
– No reasonable expectation of privacy. HIPAA compliant.
• Police body cameras in health care settings?
– No obligation under HIPAA.
– Some states prohibit body-worn camera recordings of medical treatment or exempt footage from public records requests.
• Patient examination rooms?
– Reasonable expectation of privacy. HIPAA violation.
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State Summaries• Texas, New Jersey and Wisconsin, and Indiana
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Texas• Scope
– Nursing facilities.
• Consent Process
– If the resident has capacity, only the resident can consent, notwithstanding the terms of any durable power of consent.
• Roommates
– Requesting resident must obtain consent from other residents in the room or the guardian or legal representative of the roommate.
– Roommate can condition consent on limiting or prohibiting use.
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Texas• Forms
– Resident must fill out the DHS Consent to Authorized Electronic Monitoring Form to make the request.
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Texas• Type of device
– Cannot be a “covert” placement.
• Signage and notice
– Outside of resident’s room and at the entrance to the facility.
• Accommodations for Resident by Facility
– “Reasonable physical accommodation” including (1) secure place to mount the device and (2) access to power sources.
– Cost of installation and other associated costs are borne by the resident.
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Texas• Limits on Recording
– Resident chooses whether the camera will always be unobstructed or not.
• Penalties
– Department may impose a penalty of $500 against a facility for each instance in which the facility refuses to permit monitoring, refuses to admit or discharges a resident due to monitoring, or violates any other provision related to electronic monitoring.
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New Jersey and Wisconsin• Safe Care Cam Program
– Allows families to borrow micro-surveillance cameras if abuse is suspected.
– Designed to limit abuse and obtain reliable evidence for prosecutions.
– Concern: government surveillance of private area.
– Reliance on one-party consent laws for video recording.
• Audio recordings considered a violation of wiretap laws.
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Regulated - Indiana• No specific legislation in Indiana
• Title 16 of the Indiana Code: Health
• Video voyeurism laws
• Indiana's wiretapping law is a "one-party consent" law. Indiana makes it a crime to record a telephone conversation unless one party to the conversation consents.
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Case Law• Florida v. Butler, 2009
– Suspected abuse by mother on young child, State ordered video surveillance in hospital room of child.
– Mother had no reasonable expectation of privacy when she was in her child’s hospital room.
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Recommendations• Camera Use Policy Recommendation
• Develop your own policies about in-room cameras.
• Key elements in policy design.
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THANK YOUPlease visit the Hall Render Blog at http://blogs.hallrender.com for more information on topics related
to health care law.
Todd [email protected]
Anchorage | Annapolis | Dallas | Denver | Detroit | Indianapolis | Louisville | Milwaukee | Philadelphia | Raleigh | Seattle | Washington, D.C.
This presentation is solely for educational purposes and the matters presented herein do not constitute legal advice with respect to your particular situation.