Watching out for grandma: video cameras in nursing homes may help to eliminate abuse.

• Author: Kohl, Tracey

INTRODUCTION

Advocates for the elderly have proposed that video surveillance could provide the necessary solution to a growing epidemic of abuse violations in nursing homes throughout the country. (1) Although there would appear to be few legal obstacles to the use of "granny cams," groups such as the Coalition to Protect America's Elders are lobbying for a federal law that would give residents the affirmative right to install cameras. (2) Traditionally, the nursing home industry has strongly opposed the use of video cameras in facilities, most often citing privacy concerns. (3) They argue that the cameras degrade residents by recording intimate moments of exposure during bathing, medical examinations, or diaper changes. (4) Nursing home operators also fear that the cameras will exacerbate the ongoing problem of finding qualified help for this minimal pay job because employees would resent the constant supervision. (5)

In 2001, Texas became the first and only state (6) to enact a law directly addressing the use of granny cams. (7) Under this statute, a nursing home or related institution "shall permit a resident or the resident's guardian ... to monitor the room of the resident through the use of electronic monitoring devices." (8) Residents are allowed to choose where in the room the cameras are mounted as well as when they are turned on and off. (9) The statute requires express written consent of the resident or her guardian as well as the consent of any roommates. (10) Included in these consent forms must be a provision releasing the institution from any civil liability with regard to invasion of privacy resulting from the electronic surveillance. (11) Additionally, notice of surveillance must be provided at both the entrance to the institution and the entrance to the resident's room. (12)

This Comment examines the arguments for and against the proposal to grant nursing home residents and their guardians a legal right to install video cameras for protection. Part I discusses the current state of federal nursing home regulation. It focuses on the problems impeding effective enforcement of these regulations that have led to the current crisis in nursing home quality of care. Part II examines how the proposed video surveillance might affect various privacy interests within a nursing home setting. Part III addresses the economic concerns of granny cam opponents. Part IV concludes that with careful drafting, federal legislation requiring nursing homes to allow cameras could provide a necessary protective tool against abuse for residents and their families, while at the same time minimizing intrusions upon privacy.

1. BACKGROUND

   1. Nursing Home Regulation

      In 1987, Congress enacted the Omnibus Budget Reconciliation Act ("OBRA") in an attempt to address growing concerns of deficient care in nursing home facilities. (13) Also known as the Nursing Home Reform Act, OBRA revised the regulation of long-term care facilities participating in the Medicare and Medicaid Programs. (14) Among other things, this sweeping legislation shifted the focus of the standards for participation in the programs from the nursing home facilities to the patients themselves. (15) Previously, the participation requirements concentrated on whether a facility was physically capable of providing the necessary care and services. (16) The new survey procedure instead observed patient outcomes to determine whether these facilities were actually providing the requisite care. (17)

      OBRA specifies that a nursing home "must care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of quality of life of each resident." (18) The statute further requires that nursing homes "provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident." (19) These broad directives are given life through more specific regulations disseminated by the Centers for Medicare and Medicaid Services ("CMS"), formerly the Health Care Financing Administration ("HCFA"). (20) Both OBRA and the Code of Federal Regulations set forth a Bill of Rights for residents of nursing homes participating in the Medicare and Medicaid programs. (21)

      Under these statutes, residents are guaranteed the right to privacy and confidentiality, the right to receive reasonable accommodation of individual needs, and the right to voice grievances with respect to treatment or care. (22) A nursing home facility must also promote a resident's rights to dignity, (23) self-determination and participation by, for example, allowing the resident to "make choices about aspects of his or her life in the facility that are significant to the resident." (24) The federal regulations further require nursing home facilities to meet other, more specific quality care standards relating to a resident's ability to perform activities of daily living, the prevention of pressure sores, and the maintenance of a resident's range of motion, mental and psychosocial functioning, and nutrition and hydration. (45) As a comprehensive measure, the Federal Code of Regulations contains an additional provision directly granting residents the "right to be free from verbal, sexual, physical and mental abuse, corporal punishment, and involuntary seclusion." (26)

      States may also establish their own criteria for licensing nursing home operation so long as such standards do not conflict with the federal mandates. (27) The federal standards represent a benchmark floor for nursing home care, but states are free to impose more stringent requirements. (28) As a result, many states have passed their own legislation aimed at providing increased protection for the elderly. (29)

      Nursing home compliance with these standards is monitored through a mandatory survey process. (30) CMS (31) evaluates nursing homes through contractual relationships with one agency in each state. (32) In addition to licensing nursing homes in accordance with state regulations, these state survey agencies certify that nursing homes participating in the Medicare and Medicaid programs are continually meeting their federal requirements by conducting three types of surveys. (33) The first, a "standard survey," must be conducted every twelve months on average, with no more than fifteen months between standard surveys. (34) During this evaluation, the surveyors observe a "case-mix stratified sample of residents" and evaluate "medical, nursing, and rehabilitative care, dietary and nutrition services, activities and social participation," as well as characteristics of the facility's physical environment. (35)

      Facilities found to have provided substandard care are also subjected to an extended survey. (36) This secondary inspection includes a larger sample of residents and further examines the staffing and in-service training. (37) The focus of an extended survey is to "identify the policies and procedures that caused the facility to furnish substandard quality of care" (38) so that the problem may be quickly and efficiently remedied.

      Finally, state survey agencies must conduct complaint surveys to investigate any specific reports of nursing home violations. (29) Such grievances are usually claimed by family members, patient advocates, and long-term care ombudsmen. (40) Complaint surveys are generally targeted to the alleged incident, however, once on site, the surveyors are free to pursue other quality of care violations that may become evident. (41)

      Nursing homes found to be providing deficient care may be subject to a variety of sanctions. (42) These include: termination of the facility's participation in the state funding program; denial of payment for services rendered; civil monetary penalties; appointment of a temporary manger to oversee the facility's operation; or closure of the facility entirely. (43) Based on their findings, the state survey agencies are authorized to select and impose appropriate sanctions, (44) according to the seriousness of the violation. (45)

   2. Nursing Home Abuse: A Problem of Inadequate Enforcement

      Despite the stringent federal regulation of long-term care facilities, nursing home abuse remains rampant throughout the United States. (46) One of the most cited reasons for this trend has been inefficiency in the enforcement of the federal quality care standards. (47) Studies by the United States General Accounting Office ("GAO") and other government entities, have identified several problems, including the frequency with which state inspectors miss important violations during annual surveys. (48) To address this concern, federal inspectors conduct random follow-up inspections of nursing homes after state inspections have been Completed. (49) According to a GAO study, federal inspectors report more serious violations than the state inspectors in sixty-nine percent of these circumstances. (50) Although federal law requires that facilities not be given notice prior to their standard survey, (51) the GAO has observed that homes can often predict when their annual on-site surveys will occur and can, therefore, take steps to mask problems otherwise observable during normal operations. (52)

      Additionally, where nursing homes are sanctioned for noncompliance, the GAO has noted that nursing homes are only temporarily induced to take action toward correcting the deficiencies. (53) Most homes do conform to regulation at least briefly, to avoid fines or other sanctions, but many do not maintain this status of compliance. (54) In fact, violations often reoccur before the facility's next survey or follow-up inspection. (55) This "yo-yo pattern" of compliance and noncompliance persists even among homes facing the most severe sanctions, such as termination from the Medicare program. (56)

      The problem of ineffective enforcement is further evidenced by the fact that relatively few allegations of physical and sexual abuse of nursing home residents are...