When does the monitoring of patients or employees become illegal surveillance?
By Mark Fischer and Ronald Lefebvre
We have been asked by our clients who operate healthcare facilities (including nursing homes, continuing care facilities, and other long-term care providers) about the use of audio and video recording devices within their facilities. These facilities have asked about the use of such devices both by residents/patients and their families and by the facility itself.
Facilities often desire video cameras in their hallways and at exits to monitor patients for safety reasons. Families sometimes want cameras in the patients’ rooms, for their safety generally, and specifically to monitor potential abuse. As one might expect, there are a number of legal issues with respect to the use of such recording devices, especially in traditionally private spaces.
As a starting point, most states have criminal statutes which address the audio recording of conversations. There are two basic varieties: one-party consent statutes; and all-party consent statutes.
In a one-party regime, the recording is legal so long as only one party to the conversation consents to the recording. In such a state, for instance, a person can record his or her conversation with another person without that person’s consent.
In an all-party regime, the recording is not legal unless every party to the conversation has consented to the recording. It is particularly important to remember in these states that criminal statutes govern this activity, and great care should be given to compliance with such statutes.
Many states also have criminal statutes relating to video recording. These statutes, which may be general in nature or relate to specific matters such as employment law or nursing home settings, often prohibit surveillance or filming of a person without their knowledge and consent, in circumstances where the person has a reasonable expectation of privacy.
In such statutes, a “reasonable expectation of privacy” typically means circumstances in which a reasonable person would believe that his or her intimate areas would not be visible to the public, regardless of whether that person is in a public or private area. This definition includes circumstances in which a person “knowingly disrobes in front of another but does not expect nor give consent for the other person to photograph, film, or record his or her intimate areas.”
In addition to the consent issues raised by these statutes, the operators of healthcare facilities also must be diligent to ensure that any surveillance footage or images (especially when of a sensitive or private nature) that are obtained or stored are handled with care.
This analysis would apply to the private or semi-private rooms of assisted living residents, in which they are often in a state of disrobe. In this scenario, and even if consent is obtained by a facility, the facility must be diligent with respect to the use of any surveillance materials that it obtains or stores, so as to prevent its misuse for “abusive” purposes (such as improper distribution or viewing for improper purposes).
There are additional federal regulatory prohibitions (42 CFR §483.10, et seq) relating to the “abuse” of residents of long-term care facilities, which term includes abuse stemming from audio/video recordings of residents. Video surveillance of an individual within their private space, without consent, “is a violation of the resident’s right to privacy and confidentiality” and accordingly violates federal law.
The Electronic Communications Privacy Act, 18 USCS § 2511, et seq., (ECPA), in addition to generally restricting the surveillance of individuals, provides specific restrictions with respect to employer surveillance of employees. In summary, the ECPA generally prohibits employers from monitoring the activities and communications of employees.
However, there are two primary exceptions: 1) where an employer has a legitimate business purpose for the surveillance, and 2) where the employee has consented to the surveillance. Absent specific consent from employees, employers should avoid surveillance in areas in which employees have a legitimate expectation of privacy.
We recommend that our clients work with us to prepare policy statements and consent forms for their use, to address any recording devices that they intend to use, and to address the use of such devices by their patients and the families of such patients.
In crafting such policies, the facility should consider its specific desires and goals. Generally, they have no obligation to use or permit the use of video surveillance (i.e., they can adopt a “no video” policy). Nevertheless, they generally are permitted to allow such use as they see fit, subject to the laws and regulations discussed in this article.
Please contact us if you have questions regarding these matters and would like help in reviewing your specific circumstances.
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