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Seven Things To Know When You Receive A Notice Of Investigation From The Department Of Health

Video Surveillance in Patient Care Areas

by Michael L. Smith, J.D., R.R.T.

Whether or not we know it, we are under camera surveillance nearly any time we are in a public place. Generally, these cameras do not invade our privacy because we have no expectation of privacy in public places. But their introduction into congregate care facilities such as hospitals, nursing homes and skilled nursing facilities can set a facility up for legal trouble.
Currently, most congregate care facilities use surveillance cameras to monitor activity in the public part of their facilities. There has been growing demand by patients’ family members for video monitoring in private patient care areas. Some families even have installed hidden cameras.

The use of cameras in these areas creates a significant patient privacy problem for facilities. Congregate living facilities are covered entities under HIPAA and a patient’s medical information, including visual information, is protected. Allowing a resident to be video-recorded without their consent may violate HIPAA and result in the imposition of sanctions by the Office of Civil Rights.
Whether the person being taped can give consent for video surveillance is another concern for the congregate living facility. Although the resident may not be competent to consent to matters concerning their care and financial arrangements, competence is not a black-and-white issue. The patient still may be able to decide whether a video camera can be used even if that individual is not competent to make all of his or her own decisions.
A camera intended to monitor one resident who has consented to its use also may inadvertently capture another resident who has not consented. Depending on the facts of the case, this very easily could result in an invasion of privacy lawsuit.

Using cameras that record audio can be considered eavesdropping or wiretapping depending on how the conversation took place. Most states allow a conversation to be recorded if one participant in the conversation consents, but 12 states require both parties to the conversation to consent before the conversation can be recorded. While the resident may have consented to the use of the camera with audio capabilities, the consenting resident may not always be a party to a conversation recorded by the equipment. Most likely, individual caregivers will not have given their consent to have their conversations recorded and they may be the only individuals engaged in the conversation.
As the cost of video monitoring equipment continues to decrease, more and more people may consider installing a camera in the patient room. Currently, only three states have laws that permit nursing home residents to place video cameras in their private rooms. Congregate care facilities administrators still will need to consider each request on an individual basis and carefully weigh the risk to residents and their own facility.

Michael L. Smith, JD, RRT, is board certified in health law by The Florida Bar and practices at The Health Law Firm in Altamonte Springs, Fla. This article is for general information only and is not a substitute for formal legal advice.
This article was originally published in Advance for Respiratory Care and Sleep Medicine.