BALANCING PRIVACY & PROTECTION Surveillance Cameras in Nursing Home

BALANCING PRIVACY & PROTECTION Surveillance Cameras in Nursing Home Residents’ Rooms Tuesday, September 12, 2017

Agenda Julie Schoen, Deputy Director, National Center on Elder Abuse (NCEA) NCEA Lori Smetanka, Executive Director, Consumer Voice Considerations for surveillance Bill Whited, State LTC Ombudsman, Oklahoma Oklahoma’s statute governing use of cameras in residents’ rooms

The Consumer Voice The National Consumer Voice for Quality Long-Term Care (Consumer Voice) is a national, non-profit organization in Washington, D.C. that advocates for people receiving care and services at home, in assisted living, or in a nursing home. Clearinghouse of information and resources for empowering consumers, families, caregivers, advocates and ombudsmen in seeking quality care, no matter where. Provide technical assistance and support for state advocacy regarding long-term care services and supports and have a national action network.

THE NATIONAL CENTER ON ELDER ABUSE Funded by a grant from the Administration on Community Living and Administration on Aging (ACL/AoA), serving as one of 27 National Resource Centers. The NCEA is a provider of up-to-date, pertinent and valuable resources, education, and information on elder abuse and neglect. As a leader in the elder justice movement, we: Create valuable educational resources Provide training curricula tailored to a variety of audiences Deliver up-to-date research Build partnerships and make connections Explore innovative models Listen to what the field needs Take advantage of opportunities to advance the field Communicate our efforts Envision our goals for tomorrow

WHY ELECTRONIC MONITORING?

Why Electronic Monitoring? 9/9/2017 Sick, dying and raped in America's nursing homes - CNN.com WATCH CNN 54,000 in shelters across Florida, 6M told to evacuate as the state prepares for Irma. Watch live coverage of the storm Health Live TV Concerns of poor care Unexplained bruises, injuries Resident inability to verbally communicate SICK, DYING AND RAPED IN AMERICA' S NURSING HOMES "You prepare for a phone call your mother has passed. You don't prepare for a phone call that your mother has been RAPED." http://www.cnn.com/interactive/2017/02/health/nursing-home-sex-abuse-investigation/ 1/14 Changes in resident behavior Lack of response to expressed concerns

Video & Audio Recordings Electronic monitoring can include video recordings, audio recordings or both Cameras or recording devices placed in a resident’s room – or part of a room – to capture what takes place

Capturing the good, the bad, and the ugly What we’d like to see Kindness, Tenderness, & Good care practices What else it can show Rough handling Bullying Neglect Abuse

RESIDENTS RIGHTS Dignity, Respect, Privacy

Right to Quality Care Quality Care Is individualized to meet the care needs and preferences of each resident. Promotes resident dignity, choice, and self-determination in all aspects of life and care. Improves, or maintains, the highest practicable well-being of each resident.

Rights, Law, and Regulations All residents have: the same rights as those in the larger community plus additional protection in federal and/or state law and regulation. the right to be protected from mistreatment, including abuse, neglect, and exploitation and are entitled quality, individualized care.

Dignity & Respect Interactions with staff, residents, visitors Spoken to kindly Treated respectfully No verbal harassment, yelling, bullying No compromising or undignified photos or recordings While receiving care No rough handling No compromising or undignified photos or recordings Follow appropriate care guidelines

Privacy In rooms During personal care In communications

STATE ACTIONS Laws, Guidelines, and Other Activities

Does Your State Have a Law or Guideline? Illinois New Mexico Laws Texas Washington Maryland Guidelines

Laws & Guidelines Address: Consent Notice requirements Assumption of costs Penalties for obstruction or tampering Access to the recordings Use of the records

Other State Practices New Jersey Ohio Office of Attorney General loans camera equipment to families Office of Attorney General will place cameras in certain circumstances

Electronic Monitoring in Oklahoma Nursing Homes Effective November 1, 2013 William “Bill” Whited, State Long-Term Care Ombudsman

Oklahoma Nursing Home Care Act §63-1-1953.1 "Authorized electronic monitoring" means the placement of electronic monitoring devices in the common areas or room of a resident of a nursing facility and the tapes or recordings from such devices pursuant to the provisions of this act; "Authorized electronic monitoring devices" means: a. video surveillance cameras installed in the common areas or resident's room under the provisions of this act, or b. audio devices installed in the room of a resident under the provisions of this act that are designed to acquire communications or other sounds occurring in the room;

Protections in Electronic Monitoring statute §63-1-1953.2, 1953.3, and 1953.4 Written notice from the facility; Cannot refuse admittance or discharge because of the use of said device; Facility shall post notice near its main entrances; Tamper with or hampering is a crime; Cannot intercept communications or images without express consent of the facility (common area) or resident. Recordings can be admitted into evidence in both civil and criminal proceedings

What Powers or Limitations are there for Resident/Representative? §63-1-1953.5 and 1953.6 Must obtain written consent from roommate/representative before placing the monitoring device – Limitations can be required by roommate – Roommate May deny (facility must allow a change of room if they do) – Specific form must be used Must provide written notice to the facility of the use of electronic monitoring; All associated cost are theirs; May post notice of monitoring at entrance of the room;

What’s the Outcome of the Electronically Monitoring Law? Deterrence; Irrefutable evidence of abuse or neglect; A sense of safety/empowerment; Privacy concerns; Exacerbated paranoia; Competing interests of the resident(s), their representative(s) and the facility; Overt obstruction; Statistically the numbers of substantiated abuse and neglect remain relatively unchanged.

Links to Oklahoma Statute and Forms NURSING HOME CARE ACT and LONG-TERM CARE SECURITY ACT -TITLE 63 OF THE OKLAHOMA STATUTES – https://www.ok.gov/health2/documents/HRDS%20675%20NHCA%201113.pdf Consent by Roommate Form – https://www.ok.gov/health2/documents/LTC%20Consent%20By%20Roommate%20For%20Author ized%20Electronic%20Monitoring.pdf Notice to Facility Form – https://www.ok.gov/health2/documents/LTC%20Consent%20Form%20Notice%20to%20Facility%20f or%20Authorized%20Electronic%20Monitoring.pdf

Questions and Discussion Contact Information William “Bill” Whited Oklahoma State Long-Term Care Ombudsman [email protected] 405-521-6734

CONSIDERATIONS Before Placing Electronic Recording Devices

Get Legal Advice Prior to installing a surveillance camera or other recording device, we recommend that residents and families consult an attorney to discuss their rights and options.

State Laws or Guidelines Read and understand your state’s laws or guidelines Failure to comply has consequences Specific forms that must be used? Specific notification requirements? Obtaining consent from roommates or legal representatives (if applicable) If no law or guideline – GET LEGAL ADVICE Consider the elements of laws passed

What type of recording? Video, audio, or both? Video is generally focused on a single resident Audio has a broader scope – other parts of the room, hallways, inroom bathrooms Are there different considerations for consent and notification? Wiretapping laws

Facility policies Be aware of any facility policies around electronic monitoring Be sure to follow any state law or guideline Get legal advice to understand your rights and responsibilities Our position: A resident should have the right to install a surveillance camera or other monitoring device

Consent Resident and Roommate Capacity issues – consent from legal representative How to document consent?

Notification of the Device What information needs to be shared? Who needs to be notified? Facility administration? Staff? Other residents? Visitors? How is the notification provided? Signs in the facility – where do they need to be placed?

When and How the Device Will Be Used Will the camera or recording device be on all the time? Are there times when you (the resident) would like it turned off, such as while you are receiving personal care? Or when you have visitors? Who will turn the device on/off? How will this be communicated to that person?

Installation, Maintenance, Upkeep Who will be responsible for installing and maintaining the recording device? Who will be responsible for any costs associated with it?

Access to the Recordings Who will be able to access the camera/recording device? Viewing the recordings? How will they be used?

Relationship With Staff Recognize that use of a recording device may impact the relationship with facility staff For some – distrust, paranoia

CAMERAS ARE NO SUBSTITUTE For Personal Involvement

Cameras are a tool Cameras, recording devices are no substitute for personal involvement, regular and vigilant monitoring of care, sufficient, well-trained staff A tool that provides information

GETTING HELP If You Suspect Poor Care, Abuse, Neglect

Getting Help Facility’s administrator, director of nursing, social worker, or other trusted staff-person Long-Term Care Ombudsman Program State Survey Agency that licenses the facility Protection and Advocacy or Adult Protective Services Citizen Advocacy Group Law Enforcement

How to Contact the LTCOP Nursing homes are required to post contact information for the LTCOP and some states require assisted living facilities/board and care facilities to post information about the LTCOP. Visit the National Long-Term Care Ombudsman Resource Center website to locate your local or state LTCO: http://www.ltcombudsman.org/

QUESTIONS?

RESOURCES

Fact Sheet

www.theconsumervoice.org

Fact Sheets Guides Assessment and Care Piecing Together Quality Planning Long-Term Care: A Consumer’s Guide to Basics of Individualized Care Choices and Advocacy Residents’ Rights Nursing Homes: Getting Guide to Choosing a Nursing Good Care There Home Abuse and Neglect Emergency Preparedness Restraint Free Care Resident and Family Council information

The National Center on Elder Abuse The goal of the NCEA is to improve the national response to elder abuse, neglect, and exploitation by gathering, housing, disseminating, and stimulating innovative, validated methods of practice, education, research and policy. Find the NCEA Online! ncea.aoa.gov NationalCenteronElderAbuse gero.usc.edu/ cda blog/ @NCEAatUSC 46

Connect with us online! www.theconsumervoice.org National Consumer Voice for Quality Long-Term Care @ConsumerVoices