State: New Mexico
Subject Matter: Responses to Security Camera Inquiry
Source: Pendulum Legal Risk Network member responses to inquiry
Pendulum Risk Management Network Discussion Thread
Security Cameras in an Assisted Living Facility Setting
Introduction/Background for Discussion
We have a client that is considering installing security cameras inside and outside of their communities. They are primarily assisted living with some memory care. Could you provide us with any feedback on what your clients are doing with regards to this? Any information you can provide that we can pass on to our client would be helpful.
Responses to Network Query
Senior attorney in legal department at an insurance carrier: Exterior cameras at the exits and perimeter of the facility should be in place, but there could be HIPAA issues with interior cameras. The practicality is also questionable. The only real value of them would be if you have someone constantly monitoring them, and it would be more useful to devote that person to resident cares. Beyond that, all you are doing is recording a probable problem for plaintiffâ€™s later use at trial.
VP & CFO or large CCRC: There was an unsubstantiated allegation of rough treatment of a resident by a staff person at a large CCRC (allegation passed by residentsâ€™ family). Based upon the description of the incident, date and time they found video showing the interaction. The video showed clearly that there was no rough treatment. The family immediately dropped the matter. This is just one anecdote but it was nice to have a â€œwinâ€ with the technology.
Risk control consultant: Several ILF/ALF communities have video cameras on campus. The ED’s say they want them because they can review the tapes of an "alleged event" and see if the allegation is substantiated. They also use the tapes for identifying how a resident got out of a building in an elopement event, because cameras were positioned at all exit doors. However, the videos are only maintained for anywhere from a week to a month and then the system automatically re-tapes on them.
Corporate risk manager at large national ALF chain: One large ALF (memory care) chain has security cameras in most public places at all communities. This includes the outside perimeter (parking lots, courtyards, sides of the building etc.) as well as public/common interior areas (dining rooms, hall ways). There are none in resident rooms. This can be extremely useful and warranted in the memory care setting. There are potential risks but the benefits definitely outweigh them. Cameras make it possible to track residents, prevent incidents/accidents and elopements. It also helps tremendously for security, vandalism, and theft.
California defense attorney: It is important to be very careful about HIPPA violations. It is also important to clear the policy with the state’s oversight body (DSS or DPH, etc.). It is good to have a P&P re purpose, disclosure, retention and review of the videos. These videos may very well become part of litigation so tread carefully and obtain consents.
In-house counsel for large national NFP chain: Given the benefit over the years of installing security cameras, there is no reason, other than cost, not to. There is really no downside to putting them in common public areas. The big decision is whether there will be real time monitoring or not.
Risk manager for large national brokerage: If a client is considering using security cameras either internally or externally the main concern from a risk management perspective is the continuous monitoring of the cameras. The area of potential exposure is if an adverse resident event occurs when the cameras are in operation and there is no one monitoring the feed. When cameras are being used there is a certain expectation by the public that they are being continuously monitored and that if something were to occur then appropriate steps would be taken to protect the residentâ€™s/publicsâ€™ safety. This basically sets the first element of the law of negligence. There is a perception by the resident/public that cameras are there to protect them from harm. If an adverse event were to occur and no one was monitoring the event on the camera and injury were to occur (4th element of the law of negligence) then you would be deemed to deviate from the standard of practice you set by utilizing cameras (2nd element of the law of negligence). If it were deemed that there was causation for the negligence that the injury would not have occurred â€œbut forâ€ the negligence of the client (3rd element) then the basis of the law is set for potential liability. If the client were to post a sign stating that the cameras were not being monitored on a continuous basis the sign would have no effect on decreasing the potential liability. The client needs to consider all aspects and potential exposures when considering using monitoring types of technology.
Risk manager of CCRC: If the organizations have a union, they must negotiate the change in terms and conditions of employment (ie, security cameras). Look into the summary of the 2005 DC Circuit decision on the issue.
Risk control consultant: Many of the ALF communities have them in common areas: hallways, patios, entrances and dining rooms but never in the individual residents’ room.
Administrator: Security cameras are a great idea but are only effective when you have someone watching the monitors. Cameras in Memory Care Units (inside the unit and outside on the grounds where the patients were within the enclosed perimeter) with the monitors at the Nursing Station visible from their work areas improves patient care but only when someone is watching them.
At an Acute Hospital Campus they installed a wireless camera system to monitor the Hospital, MOBâ€™s and Parking Lots. In this situation there was 24 hour security and the monitors were watched by Security Personnel at a Central Monitoring Station- again the key is someone watching the monitors. The Central Monitoring Station was connected by radio to the Security Personnel making rounds on the campus who could be alerted of an activity that need to be investigated.
Risk control consultant: In one instance, a facility was accused (as part of a claim) of not attending to a resident during the night shift. The camera documented very frequent movement of staff in and out of the room at all hours; the claim was dropped. Many facilities talk about the positive effect cameras have on staffing problems and on theft. Another facility’s camera was used to solve a pattern of theft in the neighborhood (the guy was stealing copper pipes; the police used the facility’s recordings to ID and catch the thief). There should be signs at entrances that state cameras are in use and should be placed in common areas.
Administrator: Cameras at a facility should be security cameras outside the buildings and around the grounds. They need to be watched by a security company staff and saved 30 days back on a hard drive on site. There should not be inside cameras.
Risk manager/consultant: If cameras were to be used in patient areas, informed consent would need to be obtained and filed in the medical record (due to privacy concerns). This can be difficult if the patient/ resident does not have the capacity to give consent and/or a healthcare POA is not readily available.
When cameras are installed, it can be a double-edged sword. It is important to consider if they will be monitored constantly, so that action can be taken promptly if any dangers or concerns present themselves? (This could be an expectation of others in case things go wrong, and it could be used against the facility if they are not monitored, with prompt action taken when needed to prevent an adverse occurrence. "Knew or should have known" issues.) Also, will videotape be used? If so, how often will the tapes be reviewed to be sure the cameras are working properly? How long will the tapes be kept and/or how will they be stored? If there is an issue and the cameras were not operating correctly at the time of the incident, this could be a huge liability.
Lawyer: First, it is critical not to use audio recording in conjunction with the video because audio may cause problems under federal and state wiretap laws and laws governing â€œsecretâ€ recordings. Second, it would probably be a good idea to post some sort of notice that recordings are being made, like â€œcameras in useâ€ or something similar. Finally, you probably do not want to record in areas where residents, visitors, or employees would have a reasonable expectation of privacy, such as restrooms or dressing rooms.
VP of risk management company: There are organizations that are doing this â€“ they have a policy and procedure that is reviewed upon admission and frequently with residents, families, staff, vendors, etc. It is necessary to work legal counsel on this so they meet HIPAA, privacy, state, federal and local statutes.
Lawyer: From a regulatory perspective, there are several facilities with cameras in the common areas, and the State is unconcerned with that practice. One facility put a camera in a client room because they (correctly) suspected the son was abusing his mother. The State cited them for placing the camera because they did not have the son/abuser’s permission. From a liability perspective, if the security cameras are recording events, the tapes would be discoverable and could implicate the facility as often as they would exonerate the facility.
Lawyer: Placing cameras outside is not a problem. In Florida, inside in common areas should be no problem so long as signs indicate that they exist. Audio is not allowed. However, cameras in private resident areas would be problematic without resident permission. Cameras in residentsâ€™ rooms do not enhance quality of care but makes staff self-conscious.
Risk Control consultant: This practice is very common now – cameras are typically at exits and on main corridors and external ones typically at doors, loading docks and sometimes parking areas.
CCRC ED: One full service CCRC installed 38 cameras with varying megapixels. Major considerations for placement are location and view plane. When installing, they conducted a walk-through asking the question: â€œDo I want to know what is happening here?â€
Once cameras were installed, had to choose a service provider. This facility initially used Axis (http://www.axis.com ) and found that the selection of service provider is critical. If there is a situation and one of the cameras is down and the facility missed catching an incident, there is potential liability. The facility had 38 cameras record to 8 Terabytes caching 14 days of recordings. It is recommended not to buy cheap cameras, but to buy â€œgoodâ€ to â€œnear bestâ€ (to stay affordable yet have highly reliable cameras). They paid more for higher pixel (4-6) cams that are mounted in higher areas in order to use a broad view that can be zoomed in on. Most decent software will be similar and price in similar price range. The biggest issue here is to get a vendor that will service the account with high quality fast service. This facility uses ExacQ (https://exacq.com/).
This facility decided to have video surveillance to deter theft, catch adverse incidents involving staff, residents, and families. The facility used footage in a case where after reviewing a Work Comp incident they determined staff was lying about facts surrounding the â€œinjury.â€
It is important to consider where cameras should be located. This facility places them at exit doors, the kitchen, loading dock, hallways, employee break areas, and in the parking lot.
Pendulum Legal Risk Management Network
Ric Henry | President
Pendulum, LLC | Albuquerque, New Mexico
505-889-8262 | 888-815-8250
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Document Date: May 2013
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