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Smile, You're On Candid Camera

The Perils and Pitfalls of Allowing Cameras and Recording Devices in SNFs

11.7.2018

Recent high-profile stories of family members secretly recording inside skill nursing facilities (SNFs) and then sharing those recordings with the media or trying to use them in court proceedings against providers have renewed the focus on so-called "Granny Cams," or recording devices that capture and save images or sounds of residents. I've worked on the Granny Cam issue off and on for nearly 30 years. Back in the day, our concern and our focus was on big, lumbering, easy-to-spot cameras mounted on the walls of resident rooms where data was stored on hard drives or disks only.

Today, the prevalence and low cost of iPads, iPhones, smart speakers with memory functions, "stealth" devices designed solely to permit recording without being detected, and "cloud storage" have reawakened interest in this issue. And, our societal addiction to being constantly connected and visible to one another, either actually or virtually, and the wave of Baby Boomers arriving at SNFs have once again ignited a debate about Granny Cams in SNFs and whether providers must, or even should, permit the installation or use of recording devices on their property.

Families wanting to install or use recording devices in SNFs are not, by and large, mean-spirited people with nefarious motives. In fact, they're usually making what they view as a perfectly reasonable request, and are often surprised when the answer is "no." Typical reasons families give for wanting Granny Cams include:

  • "I live far away and this helps me stay in touch with Mom."
  • "Other facilities allow granny cams - I saw it on 60 Minutes!"
  • "I want to keep an eye on Mom, because she tries to get up a lot, or to monitor her progress, or to 'help' your staff."
  • "Don't you want us to see what you're up to? I thought you encouraged family involvement?"
  • "What are you people trying to hide?"

Any consideration of whether to permit "Granny Cams" in skilled nursing facilities must begin with a discussion of CMS's regulations governing resident privacy and confidentiality. Those regulations, and CMS's expansive Interpretive Guidelines, apply to every Medicaid- and Medicare-certified SNF. Here's what CMS says about resident privacy confidentiality at 42 CR 483.10(h) and FTag 583:

  • Confidentiality is defined as safeguarding the content of information about a resident, including video, audio, or other computer stored information.
  • A resident has the right to privacy and confidentiality of all aspects of care and services, and the right to personal privacy regarding his body and personal space, including accommodations and services.
  • Photographs or recordings of a resident and her private space without consent is a violation of the resident's privacy rights,
    • Including unauthorized pictures of a resident's room or furnishing, even if the resident is not pictured, and
    • Including a resident eating in the facility dining room, or
    • Participating in activities in common areas.
  • Taking any unauthorized recordings or pictures of residents (via camera, smart phone, or other e-devices) and/or keeping or distributing them through multimedia or social media is a regulatory violation.

In short, not only does CMS not require SNFs to install Granny Cams or to permit their use, CMS makes it pretty hard to imagine how a facility can permit the use of recording devices and still honor this broad and sweeping definition of resident privacy. Practically speaking, how can an SNF honor these broad privacy obligations and still permit recording, even in a resident's private room where other residents may come in and out freely and, with some exceptions, are permitted to do so if the resident living there consents?

Still, a handful of states either permit (with limitations) or require SNFs to install recording devices with the consent of residents or their authorized representatives. As of July 2018, eight states have laws expressly regulating the use of Granny Cams in SNFs. North Carolina is not one of them.

North Carolina licensure laws for SNFs (and Assisted Living Communities, by the way) do not require any long term care facility to permit the use or installation of audio or video recording devices in their facilities. SNFs and assisted living communities, while they are licensed by the State and may receive state/federal public funding, are still private property. As such, owners/operators can prohibit any activity on their premises which they are not required by law to provide or allow.

So, in summary, here are some things you need to know about Granny Cams and some of our related recommendations:

  • Neither federal nor North Carolina law requires SNFs to install recording/monitoring devices in their facilities when requested by residents or families to do so.
  • Also, SNFs are not required by state or federal law to permit third parties, including employees, residents, families, responsible parties, ombudsmen, or contractors to install recording devices or use them in an SNF, including in residents' rooms.
  • If you elect to install them, they should be limited to common areas where their purpose is the safety and security of residents, staff, and visitors.
    • Providers who choose to install recording devices in common areas should remember CMS's warnings about unauthorized pictures and recordings of residents taken without their consent, even in public spaces.
  • Whether or not you elect to permit the use of these devices in your facility, have a clear policy setting forth your position and any limitations to it, and enforce it strictly.
  • Make sure your employees understand, and are periodically reminded of your policy against unauthorized audio or video recording of residents, visitors, or other staff in your facility. Some of the most egregious privacy violations on record involve staff members posting inappropriate pictures of residents on social media. North Carolina's so-called Ag-Gag Law, found at N.C. Gen. Stat. 99A-1, arguably subjects employees to monetary damages and other civil remedies for taking, posting, or using unauthorized pictures or data from an employer's premises without authorization or placing on an employer's premises unattended cameras or other recording devices. Make sure your employees know about this law.
  • Be prepared to respond to residents, families, or other well-intentioned third parties who may challenge your refusal to permit their recording device while they're standing there, talking to you, and looking up at yours. In our experience, educating residents and families on your legal obligation to protect and safeguard your residents - a legal obligation that neither the resident or the family shares - is the most powerful response to Granny Cam requests, and sharing with residents and families the actual text of the CMS regulations and Interpretive Guidelines we've included above is an effective way to do it.

The vast majority of our clients have opted not to permit the installation or use of audio or visual recording devices in their facilities by anyone other than authorized staff for authorized purposes. To be clear, SNFs are not required to opt for that choice and can freely choose to permit the use of such devices if they can figure out a way to both permit such devices and comply with CMS's expansive definition of "privacy and confidentiality" set forth at FTag 583.

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