The Minnesota Legislature is currently discussing a bill to allow electronic monitoring in nursing homes and assisted living facilities. The concept is straightforward – a person wants to place a camera in their living space to record interactions with those entering that space. The doorbell on a home can have a camera. A video surveillance camera can be placed inside a home and arguably in an apartment. A gas station, retail store, or commons area in an assisted living facility has cameras in public spaces to monitor activity. Yet legislative debate and action is needed for an assisted living client or nursing home resident to place a camera in his or her private living space.
In order to frame the issues in the current legislation, consider what “electronic monitoring” means. It refers to a resident of a nursing home or a client receiving services in an assisted living setting placing a recording device—whether video, audio, or both—in his or her private living space. There are several reasons why such a device may be placed, notably to communicate to loved ones or allow a family member to “check-in.” Increasingly, cameras are placed due to concerns of maltreatment and the person’s inability to communicate harm.
In many ways, current law already allows for placement, under various bills of rights and principles of landlord-tenant law. The rights of a person residing in a nursing home or boarding care home are more defined than in an assisted living setting, under both federal and Minnesota law. The Health Care Bill of Rights under Minn. Stat. §144.651 affirms the following rights applicable to camera placement, for residents of a skilled nursing facility or boarding care home:
- The right to be free from maltreatment;
- The right to communicate privately with a person of their choice;
- The right to retain their personal property, if space permits and the rights of others are not infringed upon;
- The right to association with any other person, including the health care agent, family members, or clergy.
Federal law states even more strongly the following rights of the nursing home resident:
- The right to communicate with and have access to persons of their own choice. The word “access” may be viewed as contemplating via electronic means;
- The facility has the affirmative duty to ensure the rights of the resident, without interference from the facility;
- The right to a cell phone and reasonable access to video communications and internet service, at the resident’s expense and/or if available at the facility;
- The right to privacy of their oral, written, or electronic information;
- The right of self-determination, including to make their own choices.
The Home Care Bill of Rights under Minn. Stat. §144A.44 governs the rights of clients receiving home care services, including in an assisted living setting. Even though the population of those in assisted living settings in Minnesota is double the population in Minnesota’s nursing homes, the Home Care Bill of Rights does not sufficiently address the rights of a person receiving home care services and living in a congregate setting. Minn. Stat. §144A.44 subd. 13 does state that a person receiving home care services in an assisted living setting has “the right to be treated with courtesy and respect, and to have the client’s property treated with respect.”
Currently, Minnesota law does not specifically prohibit placement of a video or audio recording device in a person’s private living space in a nursing home or assisted living, although wiretapping and criminal statutes could be implicated under certain circumstances.
The response to electronic monitoring from providers is varied. Some welcome it, others allow it with certain conditions, while others don’t allow placement of any camera on their property. The varied responses and potential violation of the person’s rights are viewed as reasons for the need for legislation.
REMEMBER THESE CONCEPTS WHEN DEBATING THIS LEGISLATION
No. 1: Persons receiving long-term care currently have extensive legal rights that support camera placement in a private living space, whether under bills of rights, concepts of reasonable accommodation for those with disabilities, or landlord-tenant law. Any legislation affirmatively allowing placement may be viewed as a restriction of such rights, and all efforts should be made to vigorously defend such rights with any legislation.
No. 2: When defending existing rights, is it important to remember that many persons for whom camera placement is sought have diminished capacity and are not able to articulate harm. The risk of further harm in the form of retaliation is heightened when the person’s vulnerabilities remain and he or she is reliant on staff to meet critical health needs.
No. 3: With approximately 400 maltreatment reports submitted weekly to the Minnesota Department of Health, over 60% of which involve nursing home residents who need the highest level of care, it would be an understatement to say maltreatment is not occurring. One of the most frequent comments of families placing a camera is that they approached staff and management with care concerns and were not taken seriously.
Current legislative proposals should be crafted to preserve existing rights and protect those most vulnerable from retaliation and revictimization for camera placement. After all, it is not primarily for those who can speak for themselves that the law is needed, but for those who cannot. SUZANNE SCHELLER