Video Surveillance in a Nursing Home

By Barbara Phair

The headlines and news media abound with stories of nursing home abuse and neglect:

"Abuse and Neglect Rampant in Nursing Home Industry" [1]

"Nursing Homes Arrests after Hidden Cameras Found Neglect" [2]

"State Oversight of Nursing Home Draws Criticism" [3]

"Nursing Home Abuse Increasing" [4]

There has been a recent flood of government attention, [5] investigations, [6] reports, [7] indictments, [8] arrests, [9] and lawsuits [10] focusing on incidents of alleged abuse and neglect in nursing homes and reported in the media. Many of the abusive and neglectful practices have been exposed through the use of hidden video cameras in the residents' rooms. [11] These revelations have resulted in increased pressure from residents, family members and legislators for interventions, specifically video surveillance, to ensure the safety and security of the residents. Video surveillance or "granny cams" may range from traditional video cameras, which record on a videotape, to web-based cameras, which can be monitored through the internet. In this age of webcams, "nanny cams," "spy cams," the technology is readily available. However, the use of such surveillance has raised a lot of controversy on both sides of the issue and a host of ethical issues which should be addressed before any specific policies are implemented.

Proponents of video surveillance claim that it will end abuse and neglect in nursing homes and result in improved quality of care and quality of life for the residents. [12] The route by which this improvement is supposed to take place is through improved staffing. The belief is that video monitoring will discourage employees who might abuse or neglect residents from working at a monitored facility, while the rest of the staff will perform their duties appropriately if they know that they are being observed. [13] In addition, it is thought that the monitoring will encourage facilities to make improvements. [14]

Those that are against video surveillance in nursing homes have a different view. They claim recruiting and maintaining staff will be more difficult because of the increased stress of working under continual surveillance. [15] They also assert privacy and dignity rights of the residents and staff. [16]

Until there is enough data to evaluate the impact of video surveillance, the advantages and disadvantages of such surveillance will remain a contentious issue. This may change, however, as more and more states enact legislation regulating the use of video surveillance in nursing homes and the use of such surveillance becomes more prevalent.

Currently, there are no federal laws either prohibiting or specifically authorizing the use of video monitoring in a nursing home. The Federal Wiretapping Law [17] governs the use of surveillance devices that record audio communications but does not regulate silent video surveillance. [18] Several states have conducted video monitoring pilot programs [19] and/or considered implementing regulations governing video surveillance in nursing homes, [20] and two states, Texas [21] and New Mexico, [22] have enacted landmark legislation. The laws in these states are similar in that they permit video camera installation by a resident only when certain conditions are satisfied. Generally, the laws require prior notice to the nursing home, resident authorization, a release of the nursing home from liability for violation of the resident's privacy rights, written consent of the resident's roommate(s), assumption of the cost of installation, maintenance and internet access by the resident, a conspicuous notice of the monitoring at the entrance to the room, time and date stamps. In addition the resident must release the facility from liability for violation of the resident's privacy rights with regard to the monitoring. Moreover, neither statute allows for covert monitoring. [23] New Mexico does not permit the recording to be used in a civil action unless prior notice is given to the facility and the written authorization is obtained. [24] Surprisingly, although Texas does not allow covert monitoring, it does permit the use of the recordings of such covert monitoring in court actions. [25]

Until there is further enlightenment and guidance on this issue from the government and/or the healthcare industry, nursing home operators should be aware of all of the issues before instituting any monitoring policies.

What follows is a list of some issues that should be assessed when considering the use of video surveillance and some comments on each issue:

Even after all of these issues have been discussed and decided, there are still other questions, such as: will the video camera be monitored twenty-four hours a day; who will have access to tapes, if there is an internet connection, what protections are in place to ensure privacy concerns; will the resident be able to turn off the camera during private moments (i.e., bathing, dressing, etc.); who should pay the cost of surveillance, etc.

Whatever the final outcome of this controversy, the issue of video surveillance is not going to go away. For that matter, some facility operators may already be making decisions concerning the installation of video cameras in their facilities, whether for administrative purposes (e.g., security and safety, monitoring staff, preventing elopement, etc.) or at the request of a resident or family member. How should the operator proceed? The first and foremost issue should be protecting the privacy and dignity of the facility residents. For video of resident rooms, you must have the informed consent of the resident (or authorized representative, if the resident does not have capacity); consent of the resident's roommate, if any; notice at the entrance of the room and at the bedside so that staff and visitors are aware of the surveillance. The facility should also develop a system for the residents and/or family members to request the use of video surveillance, which includes notice to the facility of such monitoring. [28] For surveillance of common areas (i.e., entry, corridors, dining areas, parking lot, etc.), there should be conspicuous placement of the cameras, and signage at the entrance to the building and on each floor of the camera surveillance. Common areas do not include restrooms, shower or bathing areas, changing rooms, and locker rooms. In addition, when electronic surveillance devices are installed, labor union issues should be taken into consideration. [29]

Electronic surveillance is becoming more and more prevalent in our everyday life. The technology is evolving rapidly and becoming more assessable to the general public. Cameras are getting smaller and easier to set up and operate. If nursing home operators do not embrace the technology and develop policies for its use, the decision may be taken out of their hands. What will happen when families install covert "granny cams" to monitor their loved one without the facility ever knowing and without having the appropriate protections in place?

[1] Evelyn Pringle, Abuse and Neglect Rampant in Nursing Home Industry, Scoop Independent News, Sept. 18, 2006, at www.scoop.co.nz/stories/HL0609/S00217.htm.

[2]Nursing Homes Arrests After Hidden Cameras Found Neglect, The Associated Press, Nov. 22, 2006,

[3] George Lauer, State Oversight of Nursing Homes Draws Criticism, California Healthline, April 10, 2006, at http://www.californiahealthline.org/index.cfm?Action=dspItem&itemID=120925&ClassCD=CL126

[4]Nursing Home Abuse Increasing (CBS television broadcast, July 31, 2001) (citing H.R. report "Abuse of Residents Is a Major Problem in U.S. Nursing Homes")

[5] H.R., Committee on Gov't Reform, Abuse of Residents is a Major Problem in U.S. Nursing Homes, S. Doc. No. 6365-22 (July 30, 2001)

[6] Press release, Office of the New York State Attorney General, "Hidden Camera Investigation at Queens Nursing Home Reveals Neglect and Fraud" (November 22,, 2006) (on file with author).

[7] U.S. Gen. Accounting Office, Nursing Homes: More Can be Done to Protect Residents from Abuse, GAO-02-312 (March 1, 2002).

[8] Press release, Office of the New York State Attorney General, Cortland County Nursing Home Indicted by Grand Jury (October 26, 2006) (on file with author).

[9] Press release, Office of the New York State Attorney General, Nurse's Aide Caught on Camera Stealing Money from Nightstand of Buffalo Nursing Home Patient (March 15, 2001) (on file with author).

[10] Press release, Office of the New York State Attorney General, "Hidden Cameras Reveal Neglect at Nursing Homes" (January 5, 2006) (on file with author).

[11] Press releases, Office of the New York State Attorney General, Nurse's Aide Caught on Camera Stealing Money from Nightstand of Buffalo Nursing Home Patient" (March 15, 2001); "Hidden Cameras Reveal Neglect at Nursing Homes" (January 5, 2006); "Cortland County Nursing Home Indicted by Grand Jury" (October 26, 2006); "Hidden Camera Investigation at Queens Nursing Home Reveals Neglect and Fraud" (November 22,, 2006) (on file with author).

[12] David Carey, Video Systems Worry Nursing Home, Milwaukee Journal Sentinel, April 1, 2001.

[13] NPR: Talk of the Nation (National Public Radio, Inc. radio broadcast (Mar. 5, 2002) (on file with author).

[14]Supra Note 12.

[15] Id..

[16] Samantha Sinclair, camera's eye on nursing homes, lake City Reporter (March 18, 2002), at www.protectelders.org/news/press/03_16b_02.htm

[17] Omnibus Crime Control and Safe Streets Act, 18 USC §§ 2510-2522 (2002).

[18] U.S. v. Jackson, C.A. 10 (Okla.) 2000, 213 F.3 rd 1269, vacated 121 S.Ct. 621, 531 U.S. 1003, 148 L.Ed. 2d 531, on remand 240 F.3d 1245, cert. denied 121 S.Ct. 629, 531 U.S. 1038, 148 L.Ed.2d 537

[19] Massachusetts and Florida conducted pilot programs but have enacted no legislation.

[20] Arkansas, Louisiana, Maryland, Michigan, North Carolina, Ohio and Washington have considered legislation, but no laws have been enacted.

[21] Tex. Health & Safety Code Ann. §§ 242.841 -242.851 (2006).

[22] N.M Stat. Ann. §§ 24-26-1 - 24-126-12 (2006).

[23]Supra Note 17, 18.

[24] N.M Stat. Ann. §§ 24-26-7 (2006).

[25] Tex. Health & Safety Code Ann. § 242.849 (2006).

[26] 42 CFR § 483.70. (2006) (" Personal privacy includes accommodations, medical treatment, written and telephone communications, personal care, visits, and meetings of family and resident groups, but this does not require the facility to provide a private room for each resident."). See also, Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 CFR Parts 160, 162, and 164 (2006).

[27] Id.

[28] American Medical Directors Association, Position Statement on Video Surveillance in the Long Term Care Continuum, Position Statement E05 (March 2005).

[29] National Labor Relations Act (NLRA), 29 USC §§ 151-169 (2006). (NLRB administrative law judges and courts have held that the use of hidden surveillance cameras in work and break areas constitutes a mandatory subject of collective bargaining, and employers will violate ''8(a)(1) & (a)(5) of the National Labor Relations Act (NLRA) by installing and using such cameras in work and break areas without notifying and bargaining with the union.)