New York Estate Planning & Elder Law Blog
MANY ISSUES TO ADDRESS – PRIVACY AND LEGAL CONSIDERATIONS
The issue of video cameras in nursing homes has exploded over the last several years. With the large scale saturation of such user friendly technologies as Skype, Facetime and similar video technologies it should not come as a surprise that these issues are cropping up in nursing homes. Video cameras can be a major liability for nursing homes, including even criminal liability. It seems almost weekly that someone is arrested or charged due to evidence gleaned from video cameras located in nursing home residents’ rooms or other areas. While management may decide to utilize video monitoring equipment in public areas, there are many problems with residents using the same or similar video technology even in their own rooms.
Certainly there are common areas that are not public in nature that are a definite problem area for video imaging. The distinction lies in the public versus private designation. You do not have an expectation of privacy in public. There is an expectation of privacy in a residential unit. With a video camera a resident may be able to, unwittingly, record another resident without his or her permission, in a private area of the nursing home. Such a broadcast, depending on the audience, could be grounds for an invasion of privacy lawsuit. In addition, it could be a violation of the Health Insurance Portability and Accountability Act, usually known as HIPAA, the federal law that requires the confidentiality of medical records. In addition, if there is an audio recording function, recording a third party’s conversations may also violate state criminal wiretapping laws. New York is in the majority of states that require the consent of at least one of the interlocutors for any interception to be deemed legal.
MANAGEMENT OF FACILITIES
Given the number of arrests in the recent past more and more nursing care facilities are addressing the issue of video technology usage on their sites or drawing up their own policies for such technology. There is the further issue of whether or not the professional caretakers of nursing home resident would allow it. Perhaps the nursing home contract for services does not allow for the use of video technology or there is the need for an individual worker to consent to the video technology’s use while he/she is in the resident’s room. Some workers object to secret surveillance, calling it “unfortunate and creepy and wrong.” Unfortunately, management can be inordinately harsh and rigid in their application of the policies that they unilaterally drew up and enforced. For some, video conferencing technology may be the only means by which they can speak to loved ones regularly, the absence of which isolates the resident and makes it difficult for the resident to reach the highest practical physical, mental and psychosocial well being.
NEW YORK AND OTHER STATES
As it is now, there is no law in New York that addresses the issue of video cameras in nursing home residents’ rooms. There are six states that have laws in effect that specifically allow for the usage of video technologies in a nursing home, although the number is quickly growing. Several states issued guidelines addressing such use, effectively regulating such technology in nursing homes.