Because the Public Health Emergency due to the Pandemic was extended the State Department of Health on January 21, 2021, the look-back period for Community Medicaid has likely been extended to July 1, 2021.
Granny Cams: What's the law?
When your loved one enters a nursing home or assisted living center, you expect them to be safe. You expect them to get the care they need in a peaceful environment. But do you ever wonder what happens when you aren't there? Do you wonder if their care declines when no one is looking? Especially in light of the visiting restrictions and the inevitable increased stress of staff that COVID-19 has imputed upon residential care facilities, do you worry about your loved one's care?
Indeed, around 5 million nursing home residents are abused each year. Elder abuse can come in many forms. According to the National Center for Victims of Crime, the breakdown of types of complaints about elder abuse is as follows:
One concern with granny cams is privacy. This entails the resident's privacy that is subject to the granny cam and the confidentiality of any other residents in the room. Would you want your every move in your residence recorded? Does having a granny cam ruin or distort the intended home-like atmosphere of the facility? Knowing that they are continually being recorded may make some residents feel uncomfortable or stressed.
Another concern is the security of the footage. Undoubtedly, private and vulnerable moments are captured on video, like a resident dressing or completing personal hygiene tasks. What are the responsibilities of the owner of such footage? Can it be stored for a period of time? Also, the video feed must be protected from hackers. Imagine the horror of seeing your loved one's private footage online or exploited!
The obvious benefit to having a granny cam installed is that you can monitor for abuse or crimes. Is the resident getting the care they need and deserve? Are their valuables safe? The footage from granny cams can be invaluable in prosecuting violations. You can also watch the footage for cues on how to make your senior healthier or more comfortable, such as watching for bad sleep patterns or noticing your loved one doesn't enjoy visits from a particular neighbor.
Granny cams are a legal minefield
Hidden cameras are perfectly legal in the privacy of your own home. You can monitor your kids after school or spy on your child care provider (“nannycam”). But it’s a different story in a nursing home or assisted living center. There are two main issues with cameras in elder care facilities:
Ten states have passed laws that authorize spouses and families to put videocams in the rooms of nursing home/assisted living patients. New York does not specifically legalize or ban granny cams.
New York is a one-party consent state for wiretap laws. Secret recordings are legal as long as least one of the parties is in the know. But that only applies to phone calls or audio recordings, not hidden cameras. Which leaves granny cams in limbo.
If you do decide to install a camera in your loved one’s room, it might be wise to:
As there is no federal law banning or allowing granny cams, some states have laws on the books regarding their use, such as Illinois, Kansas, Louisiana, New Jersey, New Mexico, Maryland, Oklahoma, Texas, Utah, Virginia, and Washington. Minnesota was the latest to join the group; their law became effective as of January 1, 2020.
The new Minnesota law dictates that a family member can install a granny cam in a loved one's room at a nursing home or assisted living facility. However, consent must be obtained from any other residents living in the room, and the nursing home must be notified that the camera is there within two weeks of installation. Finally, signs must be posted in the facility indicating that electronic monitoring may be occurring. The Minnesota law came on the heels of a case involving the use of a granny cam. A resident's family installed the camera, and the facility objected to its use. The Minnesota Department of Health subsequently ruled that the facility must allow the installation of the video camera.
The Kansas granny cam law is more liberal, as it applies not only to nursing homes but to all "adult care homes", which includes nursing homes, care facilities for mental health, intermediate care facilities for those with intellectual disabilities, residential health facilities, boarding care homes, assisted living facilities, and adult daycare businesses.
Recently, granny cams were litigated in Georgia. In late December 2020, in the Dempsey case, the Supreme Court of Georgia ruled that a hidden granny cam was legal, and the footage could be used in the criminal case against the resident's caregivers. In this case, a WWII Veteran was residing in a nursing home when he told his son that "strange things" were happening. The son installed the granny cam inside of a clock radio.The camera recorded some horrendous events. The nursing home staff failed to respond to repeated calls from the Veteran's help call button. The Veteran kept exclaiming that he could not breathe; he subsequently died. The staff was criminally charged and objected to the granny cam footage being used as evidence, as they did not consent to the granny cam being installed.
Georgia has a law that says you can't record another person's activities in a private place unless there is consent. However, the Georgia Supreme Court said that the case fell into an exception to the law: the law allows recordings by those who own or occupy the property. Since the Veteran had the legal right to occupy his part of the room, he could record that area without the consent of the caregivers. The granny cam, in this case, led to a caregiver being charged with felony murder.
New Jersey believes in the use of granny cams so much they will allow you to borrow one for free! The Safe Care Cam Program was instituted in 2017 and was initially established for camera use for in-home health care. It became so popular, the program expanded to include nursing homes and assisted living facilities. Former New Jersey Attorney General Chris Porrino stated, "At a time when the home healthcare industry is experiencing explosive growth, and the issue of patient abuse has become a national concern, New Jersey must do everything it can to ensure the safety of its most vulnerable citizens – the elderly and disabled."
Suppose a state doesn't have a statute explicitly authorizing the use of granny cams, and the act of recording doesn't fall into an exception to another related law. In that case, it may be a crime to install the granny cam in a resident's room. Granny cams could violate nudity laws, privacy laws, wiretapping and electronic surveillance laws, or HIPAA laws. It is important to know your actions are legal before taking steps to install a granny cam. This is why it is vital to consult an elder law attorney.
What are some other ways, besides installing a granny cam, to better protect your beloved senior while they are residing in a care facility?
Not all abuse is captured on tape. It often occurs in bathrooms or other areas of the nursing home, away from security cameras. The best way to keep tabs on your loved one is to visit them frequently (but at random times) and to be vigilant for any change in their appearance, health or demeanor.
If your loved one shows signs of physical abuse, sexual assault or medical neglect – with or without video evidence -- talk to an Elder Law attorney about the possible solutions.
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