Privacy and Nursing Home Surveillance

In recent months, with revelations concerning consumer credit card theft and the National Security Agency surveillance programs, the notion of privacy has again entered the public consciousness. Now seems like a good time to discuss the debate that continues over privacy and surveillance in the world of long-term care facilities. Unfortunately, abuse and neglect occur far too often in nursing homes and assisted living facilities and, in an attempt to protect loved ones, families are turning to technology. Small, sometimes hidden, cameras, often referred to as “granny cams,” are becoming increasingly popular as families and governments seek to ensure proper care.

In a New York Times article last November, Jan Hoffman recounts the story of a nursing home resident, Eryetha Mayberry, from Oklahoma City, Oklahoma. Ms. Mayberry and her family had noticed a few personal belongings go missing and installed a hidden camera in an attempt to catch a thief. When Ms. Mayberry’s daughter finally watched the footage, however, she was astonished and horrified by what she discovered. Staff members had been abusing her mother.

As a result of the outrage that arose following the discovery of Ms. Mayberry’s abuse, Oklahoma became the third state to explicitly allow surveillance cameras to be used in the rooms of residents of long-term care facilities. New Mexico and Texas are the other two states that have passed similar legislation. Although New York has passed no specific legislation allowing individuals to maintain surveillance cameras in their rooms, the government, specifically Governor Andrew Cuomo and the Medicaid Fraud Control Unit, has been using hidden cameras in nursing home investigations throughout the state.

In March of 2010, then-Attorney General Cuomo reported that 22 arrests had been made after investigations into Northwoods Rehabilitation and Extended Care Facility in Troy, NY and Williamsville Suburban Nursing Home in Amherst, NY. Surveillance footage played key roles in both investigations, revealing instances of alleged neglect and conduct endangering residents.

Proponents of video cameras understand that, without surveillance, much of the abuse and neglect that is occurring may never be discovered. In addition to uncovering instances of mistreatment, many hope that cameras, coupled with posted notices of surveillance, will prevent abuse and neglect from occurring in the first place.

However, nursing home surveillance has encountered opposition. Opponents claim that these cameras are an invasion of privacy. A frequently used argument against the use of cameras is that the monitoring infringes not only on the rights of a loved one, but also the rights of fellow residents. Cameras may catch residents during their most intimate moments, such as when they are dressing or undressing. Some nursing home operators also believe surveillance may reduce staff morale, claiming that it may become more difficult to hire and retain caretakers if they constantly feel threatened by the monitoring of video cameras (CNA’s Cost and Benefits of Video Surveillance).

These arguments against video monitoring may be valid. But is slightly less privacy worth the potential reduction in abuse and neglect, along with the peace of mind gained by residents and their families? With the right rules and regulations, I think so.

Sexual Predators Employed in Elder Care Facilities

I have litigated several cases against long term facilities where their employees and/or residents have sexually abused my clients. So how does this happen? First, not all facilities perform the background checks they are required to do. Under New York State Law Section 845b of the Executive Code and 2899 of the New York Public Health Law requires that background checks be performed for prospective employees for any residential health care facilities licensed under New York State Public Health Law, any certified home health care agencies, any licensed care service agencies, or long term home health care programs. Temporary employment is permitted while this background check is taking place as long as the employee works with consumers under direct and “appropriate” supervision. Only certain convictions are disqualifying offenses, such as: any felony sex offense, any class A felony, or conviction of a violent felony or any other class B, C , D, or E felony within ten (10) years. In other words someone can have a felony conviction that is more than ten (10) years old and still be eligible to work with the most vulnerable in our society.

Recently, it has been reported that a convicted rapist was charged with sexually abusing a 91 year old woman who was a resident of the the Loudonville Home for Adults located on Albany Shaker Road in Loudonville, New York, where he was working as a maintenance employee. Richard Ragone, 64, was a level three (3) sex offender, who previously spent sixteen (16) years in prison for the 1983 rape and sodomy of a woman in Saratoga County. Overall, he had four (4) prior felony convictions and five (5) misdemeanor convictions. I could not find any reports indicating whether the home had done a background check on this individual. See http://www.timesunion.com/local/article/Cops-Elderly-woman-abused-4162419.php; http://capitalregion.ynn.com/content/top_stories/626904/level-three-sex-offender-accused-of-sexually-abusing-91-year-old-woman-at-nursing-home/

I did find that as a result of this case, legislation has been proposed that requires elder care facilities to check sexual offender registries. New York State Assemblyman James Tedisco and New York State Senator Kathy Marchione proposed legislation that would require elder care facilities including nursing homes to check the sex offender registry when hiring someone. As a former prosecutor, I can attest to the fact that sometimes very old convictions such as the one Ragone conviction from 1983, will not appear on a basic criminal background check; hence, the need to check the registry. Let’s hope this legislation passes.