Law. Consulting. Technology.
Carol Rolf was quoted in a recent Columbus Dispatch article regarding the legal issues raised by hidden cameras placed in nursing homes.
Read original article here: http://www.dispatch.com/content/stories/local/2013/07/01/spying-on-employees-at-issue.html
Spying on nursing-home employees at issue
July 1, 2013
By Eric Lyttle
Mike DeWine’s words spread like wildfire.
The Ohio attorney general had just announced that he was shutting down a Zanesville nursing home after authorities had installed surveillance cameras in patients’ rooms because of complaints about mistreatment.
It marked the first time state authorities had used “granny cams” to spy on nursing-home operations. DeWine promised it wouldn’t be the last.
“It’s a new day and a new way of approaching this,” he said on that June 6 morning. “Everyone has been put on notice as of today.”
So far this year, the attorney general’s office has opened 131 abuse and neglect cases, compared with 74 cases in the same period last year. Sixty-three of those cases were opened following DeWine’s news conference. And some of the other investigations involve the use of cameras, said DeWine spokeswoman Jill Del Greco.
The camera use left many of the state’s nursing homes with more questions than answers, said Pete Van Runkle, the executive director of the Ohio Health Care Association, whose members include more than 800 residential-care facilities. “It created a bit of paranoia.”
The first question many asked was whether the surveillance cameras were legal. Could the government come into a private business without the owner’s consent and install spy cameras?
The attorney general’s office says state law authorizes it to investigate Medicaid fraud and patient abuse or neglect. Covert video surveillance is a type of search, Del Greco said, but because the office obtained consent from every resident or guardian whose care was recorded, it didn’t need a warrant.
“There need to be certain conditions met, and one of our concerns is, were those conditions in place to authorize a warrantless search?” asked Carol Rolf, an attorney for the Ohio Health Care Association. “Was there a roommate or anyone else recorded who didn’t give consent? We don’t know.”
The tapes have not been released because the investigation is ongoing, DeWine said.
Another question is whether private citizens can install cameras in nursing homes.
Susan Master, of Worthington, cheered when she read DeWine’s comments. When she suspected that her 95-year-old mother, suffering with dementia, was being mistreated in a private, residential-care home in Columbus in 2010, she looked into placing a spy camera in her mother’s room. From her own research, she determined that it violated privacy laws.
She did it anyway. “I thought, ‘To hell with it. This is my mother. I’ll deal with the consequences when the time comes,’ ” she said.
Master left a clock radio equipped with a video camera in her mother’s room. Within the first month, she saw what she’d feared. “I saw my mother sitting up in bed, calling out for help, for several hours,” she said last week.
When an aide finally arrived to find that Master’s mother had soiled the bed, “the aide blew up and yelled at her,” Master said. “She was inches from my mom’s face, and my mom’s head was down like a scolded child. She threw a clean gown at her and hit her in the face.”
When Master confronted the facility’s director, the employee was fired on the spot.
Master said she thinks surveillance should be a legal remedy for any family. “If the family wants it and can do it on their own, why not?”
The law, however, isn’t clear. State law mandates a patient bill of rights that nursing homes must follow, and that includes the right to privacy during medical treatment. A federal law ensures privacy of medical treatment and records.
A camera could violate both. “It’s a huge, huge issue from the standpoint of privacy and personal care,” Rolf said. “The idea that an individual could be videotaped in a bed receiving the most intimate of care for a perfect stranger to review strikes me as an incredible violation of privacy.”
Cameras could capture images of roommates who had not given consent, Van Runkle suggested, or visitors from neighboring rooms. “I wouldn’t say it’s illegal,” he added, “because the legality has never been established in a court. But it raises some serious concerns about violations of privacy.”
Rolf recommended that the industry create a policy against surveillance cameras at their facilities and ensure that residents and/or guardians agree to those rules upon admission.
Texas, New Mexico and Oklahoma have laws allowing private individuals to install surveillance cameras in nursing homes, while Florida and Massachusetts have conducted video-monitoring pilot programs.
“I’m just thankful I did it,” Master said. “My mom was defenseless. I had to follow my gut.”
The Ohio Department of Health issued a letter on June 4 to Steve Hitchens, the owner of the Zanesville home, Autumn Health Care, notifying him of the state’s intent to revoke the facility’s license. Hitchens appealed last Monday. No hearing date has been set.
Additionally, the Centers for Medicare and Medicaid Services has issued a letter of intent to terminate its provider agreement with the facility, effective Aug. 2, meaning Autumn won’t be reimbursed for the costs of any Medicare or Medicaid patients after that date.
Relocation of patients could begin in early August.