Safety versus Privacy- Video surveillance in Pennsylvania’s nursing homes

Sadly, many nursing home residents and/or their families feel compelled to place video surveillance systems in the resident’s room. This is so because video surveillance can be a powerful deterrent to abuse and neglect; it can often assist in identifying and punishing the perpetrators of these offenses; and, it can be of an immense benefit to residents and their families in civil damage law suits. Just last year in Pennsylvania, hidden video surveillance helped the Commonwealth’s prosecutors convict nursing home employees of crimes of abuse and neglect, and has assisted our firm in recovering reasonable compensation for those affected by this senseless conduct.

The countervailing force against video surveillance in nursing homes is of course the loss of privacy.   The resident, for one, may object to live in a proverbial fish bowl, with little or no privacy, and to some, a substantial loss of dignity.  The resident’s roommate would have substantially the same rights; and, to a lesser degree, employees and visitors have certain reasonable expectations of privacy.

Often times, the resident and/or the family believe it is perfectly acceptable to place hidden cameras in the resident's room without notice to third parties.  Unfortunately, placing hidden video cameras in Pennsylvania's nursing homes can, in certain circumstances, violate federal and state laws.

For instance, in Pennsylvania it is a criminal offense to record audio without the consent of the person being recorded.  This conduct thus violates Pennsylvania's wiretapping laws.[1]  Those found guilty of the crime are subject to criminal and civil penalties, including actual damages, $100 per day, or $1000, whichever is greater, along with punitive damages, litigation costs and attorney’s fees.[2] So, before you hit that "record" button, make sure you are not recording conversation without the consent of the other party.

That being said, Pennsylvania has no law that makes it criminal offense to place a hidden video surveillance camera (again no audio) in a resident's room.  However, the conduct may violate The Omnibus and Reconciliation Act (OBRA), a federal law that regulates the conduct of all nursing homes doing business in the United States.  This law states that skilled nursing facilities must promote and protect patient rights, including, "[t]he right to privacy with regard to accommodations, medical treatment, written and telephonic communications, visits, and meetings of family and of resident groups.[3]" Accordingly, if the nursing home facility locates the video surveillance camera, they are authorized by law to remove it.  Moreover, the nursing home facility is within their right to refuse to allow video surveillance in the resident's room going forward.  Still, many nursing homes approve the use video surveillance provided that the appropriate consents and surveillance parameters can be agreed upon.  For example, the facility, in addition to acquiring all necessary consents, may require visible postings to warn individuals that the area is under surveillance.

While the Pennsylvania Health Care Association, with nearly 450 long-term care providers as members, has not made any rules on the use of video cameras, there are many elder advocacy organizations that support the use of video surveillance when the resident consents and privacy safeguards are in place.[4]  “You’re dealing with a vulnerable population and if a resident wants that to feel more comfortable, we certainly think they have right to have that type of monitoring,” said Amity Overall-Laib, a manager at The National Consumer Voice for Quality Long-Term Care.[5]  Moreover, the American Association of Retired Persons (AARP) has a national policy supporting the use of cameras for communication and surveillance, said Ray Landis, advocacy manager for AARP.[6]

As intimated above, there is no law in Pennsylvania that requires a nursing home to place video surveillance cameras within its facility, even if the resident consents to placement.  Accordingly, when choosing a nursing home facility for you or your loved one, you might consider raising this issue with the nursing home facility’s administration.