Preventing Elder Abuse: NJ Moves Toward Private Video Surveillance

There has been growing demand by nursing home patients’ family members for video surveillance in patients’ rooms in hopes of preventing elder abuse. New Jersey Assembly Speaker Vincent Prieto (D-Bergen and Hudson) introduced a bill, A-3883, in November 2014 to permit video cameras and audio devices in nursing home rooms to help prevent instances of abuse and theft by staff members. On December 11, 2014, New Jersey lawmakers on the Assembly Health and Senior Services Committee approved the legislation. Nursing home unions and nursing home owners oppose the bill, and claim that it would present issues involving the privacy of residents and staff, staff contracts and negotiations, and patient-caregiver trust. A Senate version of the bill has not yet been introduced for this controversial subject.

HIPAA issues. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) (P.L. 104-191) encompasses several health-related improvement initiatives, such as the prevention of health care fraud and abuse. HIPAA also contains national standards for the use and dissemination of health care information, known as the Privacy Rule.

The HIPAA Privacy Rule generally restricts a covered entity, which includes nursing home facilities, from disclosing protected patient health information. Under 45 C.F.R. sec. 164.502(a), protected health information (PHI) is any individually identifiable health information held or transmitted by a covered entity regardless of the form of the information. More specifically, according to 45 C.F.R. sec. 160.103, individually identifiable health information relates to the health condition of a specific individual or provision of health care services to a specific individual, whose identity can be ascertained through the information.

The Privacy Rule poses a problem for nursing home surveillance in that a camera intended to monitor the consenting resident also may inadvertently capture another resident who has not consented, which could result in an invasion of privacy lawsuit. Using cameras that record audio can also be considered eavesdropping or wiretapping.

AARP New Jersey Associate State Director Evelyn Liebman noted that the hundreds of millions in taxpayer-funded Medicaid money that support nursing homes also warrant added transparency. Facility owners have countered that video recording would make it more difficult to recruit and retain talented staff members. Members of the Health Care Association of New Jersey also worry that video recording may result in fewer family visits because family members would simply monitor the videos.

A-3883. The bill allows recording devices to be in either a visible or a hidden location. The resident or authorized representative would inform the nursing home of the type of device being used and that the resident consented to the recording; recording cannot begin until such notification. The nursing home would be released from any civil liability for privacy violations related to the recording.

If the resident has a roommate, he would also have to consent to the recording. The roommate could also allow video recording but prohibit audio recording or require that the video camera be pointed away. Residents would be required to be transferred to another room if their roommates did not consent to any recording. The resident or their representative would be responsible for paying for the recording. State officials would determine the penalties for nursing homes that violate the bill’s provisions.

Oklahoma has already passed similar legislation that gives residents, rather than the nursing homes, the choice to use cameras. Perhaps New Jersey nursing home residents will also be given the same choice of added safety and protection.