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Date: September 30, 2014 Public Policy Analysis of Proposed Legislation to Protect the Right to Video Monitoring In Care Facilities By Marc B. Hankin, Esq. and Stewart Kayle 1. PROPOSAL SUMMARY Purpose: To protect the right of residents in skilled nursing facilities (“SNF”) and residential care facilities for the elderly (“RCFE”) who want videocam monitoring in their rooms for their safety. As revised by the California Office of Legislative Counsel, this proposed legislation is a modified version of a statute adopted in Oklahoma recently by a wide bipartisan majority. 2. PROBLEM Elder abuse in nursing homes is usually due to understaffing and overloaded staff. To appear to comply with state and federal regulations, it is common for overworked nursing staff to falsely document in nursing notes that they provided services which they lacked the time to provide, but which the patients needed. See Falsified Patient Records Are Untold Story of California Nursing Home Care By Marjie Lundstrom, Sacramento Bee, September 18, 2011. Despite residents’ wishes for video monitoring, video monitoring is prohibited in many facilities, even if there is no cost to the facility. For example, the
California Department of Social Services’ (DSS’) Community Care Licensing
Division (CCLD) told a residential care facility, Vista Gardens
Memory Care,
that, even if a resident wants video monitoring, neither the resident, nor
his/her family, nor Vista Gardens may conduct video recording in the
residents’ rooms. CCLD prohibited video cameras in Vista Gardens Memory
Care, even though residents or their health care agents want the video
monitoring by Vista Gardens administrators for the
residents’ protection, and the residents or their health care agents had
given a detailed written consent for the video cameras. In another case, a nursing home removed a videocam after the videocam recorded elder abuse neglect. A Superior Court judge allowed the nursing home to remove the privately owned video camera despite the patient’s right to have the videocam monitoring. The judge said, “one of the consequences could be that because [the nursing home] is so concerned about the issue of the camera that they have got all these employees devoted towards [your mother], which is great for [her], but possibly at the detriment of others.” 3. SOLUTION / THE PROPOSED LEGISLATION I.
How It Would Work. The codification of the resident’s
existing rights would prevent CCLD and the California Department of
Public Health’s Licensing and Certification Program, which regulates nursing
homes, from
exceeding their authority by continuing to unlawfully restrict residents’
rights. Warning signs would be posted
wherever video monitoring is being performed. II. Benefits.
By preventing CCLD from
unlawfully prohibiting video monitoring, the bill would foster video
monitoring. What are specific
benefits of video camera monitoring? Video monitoring protects the
facility, the staff and the residents. Understaffing and falsifying nursing notes would become much
less prevalent if videocam recording were possible; staff could not be
pressured by management to falsely document the furnishing of services that
were not performed since proof
of what occurred or did not occur would be on video recordings. Employers would have to adequately
staff facilities. Improvements in the quality of care may reduce the number of
lawsuits, and the filing of complaints with regulatory agencies. Care relatives
would choose facilities where videocam monitoring is offered. Many families would install their own
videocam monitoring camera if the facility did not provide monitoring. Cameras w 24 hour recording should lower
not only liability costs but also worker compensation premiums. It would show injuries and/or lack of
injuries for both patients and staff. One good example is
an RCFE named Vista
Gardens Memory Care, in San Diego County in the town of Vista, built with
cameras installed for the protection of the residents who want video
monitoring. As Harry
Crowell, a co-owner of Vista Gardens noted, if a hallucinating resident claims
something improper occurred (e.g., a lady claiming a naked man was in her
room), or if there is any question about whether a staff person misbehaved,
Vista Gardens could review the video to ascertain what did or did not happen,
and then correct any problem immediately, and when appropriate, notify the
appropriate authorities and individuals.
If a resident is found on the floor with a bruise on the head, the
video recording will show how the bruises occurred. If the bruising was
caused by a falling out of bed due to reaching for a night stand while in
bed, the facility would use the information to move the night table closer to
the bed. The video of the resident
falling would enable the facility to relay pertinent information to
paramedics or the emergency room. In choosing between a facility where one
must depend on the nursing notes to ascertain whether a person was kept clean
and dry, and a facility where video monitoring is readily available (whether
for the administrators or for the family, or for both), most people will
choose the latter. The economic pressures of the marketplace will eventually
lead to video monitoring being available in all facilities and improved
quality of care because of the availability of objective evidence proving
that the care was provided properly as required by the admission agreement
and law, or that care was withheld and/or abusive. 4. STATE AGENCIES AFFECTED BY THE BILL California Department of Social Services’ Community Care Licensing Division (CCLD), California Department of Public Health’s Licensing and Certification Program, and California Department of Justice’s Bureau of Medi-Cal Fraud and Elder Abuse (BMFEA). 5. COST There will be a small cost for the development of relevant regulations, and a California State approved consent form. Currently, there does not appear to be any state funding available for this purpose. ______________________________________________________________________________ 6. PROMINENT EXPERTS WHO, AS INDIVIDUALS, SUPPORT THE RIGHT TO VIDEO MONITORING FOR PEOPLE WHO WANT IT Harry Crowell IRVINE, CA [One of the
owners of Vista Gardens Memory Care, a Residential Care Facility for the Elderly] “I am in the Alzheimer’s care business and this is a
subject every patient asks for. They are concerned for their personal safety.
Our facility wants to be as careful as possible. Our employees, visitors and
the residents are comfortable that they are watched over as carefully as
possible.” Robert Neshkes,
MD,
LOS ANGELES, CA [Head of
Geriatric Psychiatry, West Los Angeles VA Hospital] “There are many times, I have been uncertain as to what
the cause has been for a patient’s recent fall, how bad the fall was, and
what part of the body took the impact. ICU’s for example, commonly have video
monitoring of patients in all rooms. Video monitoring allows doctors and
nurses to provide better care. I think
it’s a good financial move for patients, families, nursing homes, and
insurance carriers. It would reduce regulatory agencies’ workloads.” James Spar, MD, LOS ANGELES, CA [UCLA Professor of
Psychiatry, and Director of Geriatric Inpatient Unit, Resnick
Neuropsychiatric Hospital at UCLA] “I have professional experience with physical abuse of
elderly residents of RCFE’s, and this is one way to prevent it.” Others Who Support
This Proposal In Concept (also, as individuals and not on behalf of the
organizations with which they are associated): Phoebe Leibig, PhD, LOS ANGELES, CA [Associate Professor of Gerontology and
Public Administration at USC; A Fellow of
the Gerontological Society of America and the first Hanson Family
Assistant Professor of Gerontology, she also served as senior economic policy
analyst for AARP's Public Policy Institute; written numerous book chapters
and articles on housing and long-term care, with particular emphasis on
intergovernmental relations, state policies and cross-national comparisons.
In 1997-1998, a Fulbright Senior Scholar award and conducted field research
on old-age homes and services in India; in 2003, she received the Clark Tibbitts Award for Excellence in Gerontology from
the Association for Gerontology in Higher Education.] Laura Mosqueda, MD, LOS ANGELES, CA
[Dr. Mosqueda, is chair of the USC
Department of Family Medicine, professor of family medicine and geriatrics
(clinical scholar) and associate dean of primary care at the Keck School of
Medicine of USC. Dr. Mosqueda is the co-director of the National Center on
Elder Abuse. While at UCI, Mosqueda co-founded the nation’s first Elder Abuse
Forensics Center.] Deborah Newquist,
PhD, IRVINE,
CA [Assistant Clinical Professor of Gerontology at the University of Southern
California (USC), past President of the National Association of Professional
Geriatric Care Managers and has held positions on numerous community agency
boards including the Alzheimer's Association of Orange County; Dr.Newquist's publications
include a chapter on functional assessment for The Handbook of Geriatric Care
Management, and co-editorship of the Technology for Aging in Place edition of
the Journal of Geriatric Care Management. She has been featured in the New
York Times on services for eldercare.] Jon Pynoos, PhD, LOS ANGELES, CA [UPS Foundation Professor of
Gerontology, Policy and Planning at the Andrus Gerontology Center of the
University of Southern California. He is also Director of the National Resource
Center on Supportive Housing and Home Modification, and Co-Director of the
Fall Prevention Center of Excellence which is funded primarily by the Archstone Foundation.
He has written and edited six books on housing and the elderly. Dr. Pynoos was a delegate to the last three White House
Conferences on Aging and is currently on the Public Policy Committee of the
American Society of Aging (ASA). He previously served on ASA’s Board and as
Vice President of the Gerontological Society of America. He is a founding
member of the National Home Modification Action Coalition.] Kathleen H. Wilbur, LOS ANGELES, CA
[Mary Pickford Foundation Professor of Gerontology; Professor of Health
Services Administration at the Andrus Gerontology Center of the University of
Southern California. Dr. Wilber’s research has focused on improving the
quality of life of people with chronic physical and mental health conditions,
by improving the formal health and long term care delivery system. Her work
on collaborative relationships among providers has examined cost
effectiveness and health outcomes of different service delivery structures.
In addition to health care, Dr. Wilber’s research has focused on protective
services including the identification and treatment of elder abuse, adult
protective services, guardianship and conservatorship, and alternative
supportive and surrogate decision-making approaches.] ___________________________________________________________________________ 7.
ORGANIZATIONAL SUPPORT Support likely would come from: · AARP · Older Women’s League · Senior Legislature · Alzheimer’s Disease Association · Multiple Sclerosis Association · Parkinson’s Association · ALS Association ______________________________________________________________________________ 8.
ARGUMENTS IN SUPPORT The proposed legislation would: 1. Enable family members and facility operators to monitor care to ensure that facility staff is providing the services patients need, where lawful patient consent for videocam monitoring is given, and warning signs are posted. 2. Inhibit elder abuse. 3. Codify existing law and prevent DSS and facility owners from interfering with patients’ rights ______________________________________________________________________________ 9. ORGANIZATIONAL OPPOSITION The following organizations would likely oppose the proposed legislation since video monitoring would reveal the falsification of nursing notes and inadequacies in the delivery of care: California Association of Health Facilities California Assisted Living Association 10.
ARGUMENTS IN OPPOSITION Opponents may argue that video monitoring: 1. Violates patient’s right to privacy [Contra: Monitoring will only be done where a competent patient consents, or a lawfully appointed health care agent consents] 2. Violates roommate’s right to privacy [Contra: No monitoring unless roommate consents, and camera will see only the patient’s bed, i.e., not the roommate] 3. Violates caregiver staff’s right to privacy [Contra: Caregiver staff has no right of confidentiality in the work setting, and a warning sign will be posted on the doorpost] 4. Will foster litigation [Contra: Video will introduce reality/objectivity and prevent unjustified lawsuits against nursing homes and RCFEs, where video shows that the operator is innocent] 11.
BACKGROUND INFORMATION Reports, studies, etc. that support the need for the proposal. Falsified Patient Records Are Untold Story of California
Nursing Home Care Draft legislation and additional information have been posted at this URL: http://www.marchankin.com/residentz_right_to_video/residents_video_rights_title_page.htm 12. CONTACT Marc B Hankin, Esq. 310-552-3005; CV available.
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