Session 403 -Video Surveillance and the Senior Housing Provider

Transcription

1 Session 403 -Video Surveillance and the Senior Housing Provider LeadingAge Minnesota 2016 Senior Living NOW July 21, 2016 Rebecca Coffin, Esq. Voigt, Rodè & Boxeth, LLC 2550 University Ave W Suite 190 S St. Paul, MN rcoffin@vrb-law.com (651) Objectives Understand a tenant s rights and limitations to placing a video camera in his room Recognize tenant privacy issues with surveillance and facility s obligations to safeguard health information Learn tips for creating policies for tenant and facility surveillance systems This presentation provides general information and does not constitute legal advice. Use of Cameras in Facilities Differentiate between facility commonarea cameras and cameras in clients rooms or apartments Dubbed Granny Cams and used to catch financial exploitation or physical/verbal abuse of vulnerable adults. 1

2 Use of Cameras in Facilities Some states, such as Texas and Maryland, have enacted laws explicitly allowing camera use in LTC. Minnesota does not have a law which permits or prohibits such use. Legislative Workgroup charged with making recommendations for Minnesota by January 2017 So what laws are at play? Minnesota Consent Law Minnesota is a one-party consent state, which means that staff and visitors do not need to consent to the recording or have notice of the recording so long as one person to the recording consents. Minn. Stat. 626A.02, subd.2(d) It is not unlawful under this chapter for a person not acting under color of law to intercept a wire, electronic, or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of any state. Minnesota Consent law Need resident or Guardian consent as resident is the one being recorded. Hypothetical Scenario #1: Family member of tenant on memory care unit places camera in room. Tenant does not know about camera. Family member is not health care POA or Guardian. What should facility do? 2

3 Minnesota Consent law Need Roommate s consent Even if surveillance not pointed at roommate, potential to record audio or visual--- key is one party to the recording needs to give consent. Written consent/acknowledgement is best Criminal Penalties A person is guilty of a gross misdemeanor if the person: (1) surreptitiously installs or uses any device for observing, photographing, recording, amplifying, or broadcasting sounds or events...[in a] place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts... or the clothing covering the immediate area of the intimate parts; and (2) does so with the intent to intrude upon or interfere with the privacy of the occupant. Minn. Stat , subd. 1 (d). What can facility do if Tenant DOES consent? Determine reasons for surveillance Issues of neglect, abuse or financial exploitation? Talk to tenant and family about concerns Highlight Vulnerable Adult Abuse Prevention policies and reporting requirements Remind tenant of grievance/complaint forms Ask what they are doing with recordings Ask to view recordings No right to do so on your own because it is not your property May need to do investigation and VA report if theft/abuse/neglect 3

4 What can facility do if Tenant does NOT consent? Remove camera if tenant does not consent Camera is not facility s property so must give it to person who placed it there Possible report to police because of violation of MN criminal statute (see previous slide) VA Report for possible abuse Minnesota Home Care Bill of Rights The right to have personal, financial, and medical information kept private, and to be advised on the provider s policies and procedures regarding disclosure of such information Minn. Stat. Sec. 144A.44 Federal Law Federal Resident Bill of Rights (SNF) provides for right to personal privacy and confidentiality of personal and clinical records. (F-164; 42 CFR ). The right to privacy should include full visual, and to the extent desired, for visits or other activities, auditory privacy. (State Operations Manual, Appendix PP at 30). Facility staff must examine and treat residents in a manner that maintains the privacy of their bodies. A resident must be granted privacy when going to the bathroom and in other activities of personal hygiene. NOTE: This is Federal law for Skilled Nursing Facilities 4

5 Federal Law, cont d. Under federal law, the facility must keep confidential all information contained in the resident s records, regardless of the form or storage method of the records, except when release is required by a (i) transfer to another facility, (ii) law, (iii) third party payment contracts, or (iv) the resident. 42 C.F.R (l) (4). Keep confidential is safeguarding the content of information including video, audio, or other computer stored information from unauthorized disclosure without the consent of the individual and/or the individual s surrogate or representative. HIPAA Compliance Covered entities face direct liability for the acts of any member of their workforce that are inconsistent with the data privacy and security regulations issued under HIPAA. HIPAA defines workforce as employees, volunteers, trainees, and other persons whose conduct, in the performance of work for a covered entity, is under the direct control of such entity, whether or not they are paid by the covered entity. 45 C.F.R HIPAA Compliance Hypothetical Scenario #2: Tenant A is in a private room and has installed his own video camera. Tenant B comes into Tenant A s room and starts talking to Tenant A about his medical condition and his medications. The camera is videotaping this conversation. What, if any, are facility s obligations for making sure this conversation remains private? What should facility do or not do? 5

6 HIPAA Compliance Hypothetical Scenario #3: Similar Scenario--Tenant A is in a private room and has installed his own video camera. Tenant B comes into Tenant A s room while a nurse is giving care to Tenant A. Tenant B starts talking to the nurse about his medical condition and his medications. The camera is videotaping this conversation. What, if any, are facility s obligations for making sure this conversation remains private? What should facility do or not do? Camera Use Policy Recommendations Facility should generally not provide, install, or maintain a camera for inside a tenant/resident s room There may be very unique situations where a facility would want to do this (and therefore control its disclosures, use, etc.) May consider a policy prohibiting camera use inside a room or apartment if double occupancy Must be careful of resident/tenant rights Tough to enforce, especially if you don t know it is there Camera Use Policy Recommendations, cont d. If you decide to allow camera use in a room/apartment: Broadly define electronic monitoring to incorporate tapes, recordings, camera (with or without audio), and phone recordings. Have a resident or guardian request camera use- do not provide/install/pay for the camera. Obtain written consent of resident and roommate. Define who will own the recordings- if it is the client s camera and you do not have access, then it is his/her information! If it is the facility s camera, information may become protected health information. 6

7 Employee Privacy Issues The National Labor Relations Board (NLRB) has ruled that installation and use of hidden surveillance cameras is a mandatory subject of bargaining. May affect working environment, security and discipline For Facilities with Employee Unions, review terms of Collective Bargaining Agreement (CBA) on surveillance Are you required to notify employees of surveillance? What are your obligations to employees when you learn a tenant has installed a camera? May decide to notify on case-by-case basis if not obligated by a CBA Camera Use Policy in Public Areas Facility-operated surveillance systems in public areas are different than granny-cams in resident/tenant rooms. Nursing home resident rooms must be designed or equipped to assure full visual privacy for each resident. 42 CFR (d)(1). HWS should abide by same privacy standards. Facility-operated surveillance okay in public areas like entrances to building, hallways, dining rooms, community rooms. Do not capture protected health information Used to enhance overall protection and monitoring Camera Use Policy in Public Areas If facility has surveillance system in public areas, may want to develop policy to address: 1. Purpose of surveillance 2. Who has authority to view surveillance A. Key employees/management 3. What facility will do if receive a complaint of something that may be on video 4. How long facility will keep surveillance if no complaints 5. Tenant/Representative Signature of Acknowledgement 6. Staff Signature of Acknowledgement 7

8 Camera Use Policy in Public Areas Hypothetical Scenario #4: Your facility has video surveillance in the hallways and community room. An employee, Natalie, notifies the Executive Director that on the over-night shift she saw another employee, Ben, sleeping in the lounge chair in the community room while on duty. When Natalie confronted Ben, he denied it. Now Natalie wants to show you, the Executive Director, proof that Ben was sleeping and demands to watch the video with you. How should you respond to Natalie? What actions should you take with Natalie? With Ben? What policy language would be useful in this scenario? Questions? Rebecca Coffin, Esq. VOIGT, RODÈ & BOXETH, LLC 2550 University Avenue West Suite 190 South St. Paul, MN (651)