Granny Cam Laws: The Right to the Device Versus the Right to Privacy
By Sara Pugh
Health Care Attorney
Polsinelli
Original Publish Date: August 7, 2018
As the population ages and the use of technology in everyday life increases, the installation of video cameras in long term care facilities, also known as “granny cams,” is on the rise. There are many reasons a family member may want to install a granny cam, including the ability to check on a loved one or confirm or deny abuse or neglect. Using cameras can also increase accountability of health care facility staff and can be used by facilities as a training tool. Regardless of the intended purpose, the use of video cameras in health care facilities raises privacy concerns, especially when the resident has a roommate, when a resident suffers from cognitive decline, or when the family covertly installs the camera unbeknownst to the facility.
Absent federal regulations addressing the use of video monitoring in health care facilities, states are left to pass legislation to protect resident privacy. In states that have no laws, facilities cannot simply ignore the installation of cameras. Facilities must weigh the pros and cons of allowing video cameras and, if the facility permits cameras, policies governing their usage should be developed and implemented.
State Laws and Regulations
At least nine states (Kansas, Illinois, Maryland, New Mexico, Oklahoma, Texas, Utah, Virginia, and Washington) have passed legislation governing the use of granny cams. While these laws differ from state to state, all granny cam laws appear to be aimed at striking a balance between permitting the video recording and the right of a resident to object to such recording.
However, despite each state’s discretion, granny cam laws have commonalities, including: 1) consent of the resident and his or her representative prior to installing the camera; 2) no covert or concealed cameras; 3) posted notice throughout the facility; and 4) no retaliation for the use of the camera. The states that have enacted legislation generally pass the cost of installation, maintenance, and internet connection on to the resident or family, so states do not have to worry about an additional line item.
Most recently, Kansas and Louisiana have enacted granny cam legislation. The Kansas granny cam law became effective July 1, 2018. (K.S.A. 39-981(a) - Electronic Monitoring in Adult Care Homes). Differing from other state laws, the Kansas statute applies to more than just skilled nursing facilities. The Kansas statute applies to all “adult care homes,” which includes nursing facilities, nursing facilities for mental health, intermediate care facilities for people with intellectual disabilities, assisted living facilities, residential health care facilities, home plus, boarding care homes, and adult day care facilities.
On August 1, 2018, Louisiana will join the other nine states with the Nursing Home Virtual Visitation Act. Similar to other states, Louisiana requires that the camera be purchased, installed, and maintained at the expense of the resident. Louisiana further requires that the resident give the facility notice of the installation, that the roommate provide consent to the recording, and that the recording include a record of the date and time. But Louisiana also exceeds other states’ laws by defining the use of a monitoring device as an enumerated resident right. In doing so, facilities must provide residents notice of the right to use video recording devices at the time of admission.
Louisiana further requires that a consent form be executed for the device, which includes a liability release for the nursing home for violating the resident’s right to privacy in relation to using the recording device. The consent form must also include a waiver of the resident’s right to privacy. These provisions were likely included to address HIPAA and other potential privacy concerns from the use of the device.
Storage of the recording, using the recordings in a legal proceeding, and the family member’s obligation to notify facility staff of alleged abuse are issues likely to be litigated or addressed by additional regulatory guidance in the future. But, at a time when every phone is a camera, state granny cam laws provide much needed regulation and clarity on usage.
Protecting Resident Privacy and Rights in States without Laws
Even in states without granny cam laws, facilities should be aware of the Federal Wiretap Act, which prohibits the taping, transfer, or disclosure of any wire, oral, or electronic communication, unless one party to the conversation consents to the interception. Facilities must also be familiar with state wiretap laws which may require that all parties consent to the recording and state laws that prohibit the unauthorized installation or use of cameras in private places.
Facilities also have an obligation to protect residents’ rights and dignity. As a result, facilities cannot ignore the installation of cameras and need to be vigilant to ensure privacy is maintained. Therefore, to protect the privacy of a roommate, written consent should be obtained prior to the installation of the camera even in states with no granny cam laws.
As technology advances, Granny cam and privacy laws will continue to change at a state level. It is important for those responsible for the safety and security in long term care and other health care facilities to stay abreast of changes in the law to ensure that facilities are compliant and residents’ privacy is protected.
About the author: Sara Pugh is a health care attorney with Polsinelli who focuses on the compliance and operational issues facing health care providers, including long-term care providers, senior housing entities and hospitals. She also counsels health care professionals on physician licensure and disciplinary matters.