Monitoring Your Parent or Spouse in a Nursing Home: What is the Law?
When your loved one enters a nursing home or assisted living center, you expect them to be safe. You expect them to get the care they need in a peaceful environment. But do you ever wonder what happens when you aren't there? Do you wonder if their care declines when no one is looking? Especially in light of the visiting restrictions and the inevitable increased stress of staff that COVID-19 has placed upon residential care facilities, do you worry about your loved one's care?
Approximately 5 million nursing home residents are abused each year.[1] Elder abuse can come in many forms. According to the National Center for Victims of Crime[2], the breakdown of types of complaints about elder abuse is as follows:
- 28% – Physical abuse
- 22% – Resident-on-resident abuse (physical or sexual)
- 19% – Psychological abuse
- 15% – Gross neglect
- 8% – Sexual abuse
- 8% – Financial exploitation
What can you do to ensure your loved one isn't suffering from abuse at a facility? Most folks have probably heard of a nanny cam – a camera set up to see how the babysitter treats your kids while you are away. But in recent years, granny cams have become popular. This is a camera that is set up in one's room at the nursing home. Knowing what's going on behind closed doors could give the senior's family and friends peace of mind. But are granny cams legal? If so, are there any requirements that you provide the nursing home notice that the camera is there? Are there any concerns about granny cams?
The major concern with granny cams is privacy. This entails the resident's privacy that is subject to the granny cam and the confidentiality of any other residents in the room. Do you want your every move in your residence recorded? Does having a granny cam ruin or distort the intended home-like atmosphere of the facility? Knowing that they are being continually recorded makes some people feel, well, uncomfortable.
Another concern is the security of the recording. Private and vulnerable moments are captured on video, like a resident dressing or personal hygiene tasks. What are the responsibilities of the owner of the recording? Can it be stored for a period of time? Also, the video feed must be protected from hackers. Imagine seeing your private footage online or exploited!
The benefit to a granny cam as it monitors for abuse or crimes. Is the resident getting the care they need and deserve? Are their valuables safe? The recording can be invaluable in prosecuting violations. The video can be viewed for cues on how to make your senior healthier or more comfortable, such as watching for bad sleep patterns or noticing your loved one doesn't enjoy visits from a particular neighbor.
There is no federal law banning or allowing granny cams, some states have laws on the books regarding their use, such as Illinois, Kansas, Louisiana, New Jersey, New Mexico, Maryland, Oklahoma, Texas, Utah, Virginia, and Washington. Minnesota was the latest to join the group; their law became effective as of January 1, 2020.
The new Minnesota law dictates that a family member can install a granny cam in a one's room at a nursing home or assisted living facility. Consent must be obtained from others living in the room, and the nursing home must be notified that the camera is there. Signs must be posted indicating that electronic monitoring may occur. The Minnesota law arose from a case involving the use of a granny cam. A resident's family installed the camera, and the facility objected to it. The Minnesota Department of Health subsequently ruled that the facility must allow the installation of the video camera.
The Kansas granny cam law is more liberal, as it applies not only to nursing homes but to all "adult care homes", which includes nursing homes, care facilities for mental health, intermediate care facilities for those with intellectual disabilities, residential health facilities, boarding care homes, assisted living facilities, and adult daycare businesses.
Recently, granny cams were litigated in Georgia. In late December 2020, in the Dempsey case, the Supreme Court of Georgia ruled that a hidden granny cam was legal, and the footage could be used in a criminal case against the resident's caregivers.
In Dempsey, a WWII Veteran living in a nursing home told his son that "strange things" were happening. The son installed the granny cam inside of a clock radio. The camera recorded some horrendous events. The nursing home staff failed to respond to repeated calls from the Veteran's help call button. The Veteran was exclaiming that he could not breathe. He subsequently died. The staff was criminally charged. The defendants objected to the granny cam recording being used as evidence, as they did not consent to being recorded.
Georgia law says you can't record another person's activities in a private place unless there is consent. However, the Georgia Supreme Court said that the case fell into an exception to the law: the law allows recordings by those who own or occupy the property. Since the Veteran had the legal right to occupy his part of the room, he could record that area without the consent of the caregivers. The granny cam, in this case, led to a caregiver being charged with felony murder.
The New Jersey Safe Care Cam Program was instituted in 2017 and was initially established for camera use for in-home health care. It became so popular, the program expanded to include nursing homes and assisted living facilities. Former New Jersey Attorney General Chris Porrino stated, "At a time when the home healthcare industry is experiencing explosive growth, and the issue of patient abuse has become a national concern, New Jersey must do everything it can to ensure the safety of its most vulnerable citizens – the elderly and disabled."
In Delaware there is no “granny cam” statute per se, but there is a privacy law.
(a) A person is guilty of violation of privacy when, except as authorized by law, the person:
(1) Trespasses on property intending to subject anyone to eavesdropping or other surveillance in a private place; or
(2) Installs in any private place, without consent of the person or persons entitled to privacy there, any device for observing, photographing, recording, amplifying or broadcasting sounds or events in that place;
12 Del. C. § 1335
What are some other ways, besides installing a granny cam, to better protect your beloved senior while they are residing in a care facility?
- Make friends with the staff. If you treat them well and they care for you, they may be apt to go the extra mile for your loved one.
- Let the staff know what type of care your loved one needs. Make sure they know what your standards are.
- Talk with administrators about their hiring and employee retention policies. Are criminal background checks conducted on an ongoing basis? What certifications or educational requirements do staff have?
- Visit often and at various times. If the staff knows you may pop in at any minute, they'll be on their toes! Can't visit due to COVID-19? Make phone or Zoom calls, or visit a resident by going to their window.
- Communicate with your loved one. Ask them a specific question about their care and property. Let them know they can always come to you with concerns.
- Talk with other residents if they are willing. What do they notice going on at the facility? Do they have any concerns about the staff?
With the use of technology on the rise, the use of observation devices won't stop. More states will likely put laws on the books to address their use. And who knows what technology the years to come will bring –possibly better surveillance technology with enhanced security. Hopefully, this means better care for seniors in care facilities.
Sources:
https://www.nursinghomeabuse.org/nursing-home-abuse/statistics/
https://www.carrcarr.com/granny-cam-laws-seek-to-protect-against-elder-abuse/
https://www.mprnews.org/story/2019/08/01/minnesotas-new-granny-cam-law-takes-effect-on-thursday
https://seniorjustice.com/new-jersey-provides-free-nanny-cameras-nursing-home-residents/
https://law.justia.com/codes/delaware/2012/title11/c005/sc07/1335/