IL Nursing Homes - Get Ready for the Spotlight
Let’s imagine that every move your nurses and CNAs make is captured on video. Not just wheeling residents down the halls and in the dining room, but personal care and hygiene, bathing and everything else that happens in resident rooms. Wonder how your facility would come across? Well, wonder no more, because you’ll soon be required to allow residents to request video surveillance and audio recording in their rooms. Effective January 1, 2016, the Authorized Electronic Monitoring in Long-Term Care Facilities Act will legalize these so-called “granny cams.”
The main components of the law include:
- The resident and/or their representatives must give written notification of, and consent to, the monitoring to the facility.
- Any roommates must also consent.
- The facility must make reasonable attempts to accommodate the monitoring, such as room transfers, for roommates who don’t consent.
- The resident is responsible for installation of monitoring equipment and costs; the facility must attempt to accommodate the installation.
- The facility should post signs at all entrances and at the resident’s room stating that electronic monitoring is in effect.
- Hampering, obstructing and destroying electronic monitoring devices is prohibited and a Class B misdemeanor.
- The facility may not access the recording without consent of the resident.
- The resident should provide a copy of the recording to parties in civil, criminal or administrative proceedings upon their request, if the recording was made during the time of the conduct at issue.
- Recordings are admissible in evidence in legal or administrative proceedings.
- Facilities should report the number of monitoring notifications and consent forms received annually to the Department of Public Health.
- No facility is liable for the inadvertent or intentional disclosure of a recording by a resident for any purpose not authorized by the Act.
- No person should intentionally retaliate or discriminate against any resident for consenting to electronic monitoring or prevent its installation, if notice and consent were provided.
This new law may impact claims against nursing homes in a variety of ways. First, if a family has an incriminating videotape, civil claims against a facility may be settled more quickly, as the facility may not be able to refute the video evidence. Likewise, an incriminating videotape may make it more likely that a finding of a regulatory violation, such as abuse or neglect, is found by the Department of Public Health.
If the videotape is inflammatory, this could increase the amount of a settlement or the nature of a penalty imposed, as is currently the case if inflammatory photographs are available. However, the impact on claims may not be that straightforward. If there’s a recording, there may be factual disputes as to the images and persons depicted in the video. This may prolong litigation, not simplify it.
Operators are encouraged to contact an attorney and insurance professional for specific advice about this new law. Start by chatting with an ‘A’ Team member today.
ABOUT THE AUTHOR
Lynn M. Reid, Johnson & Bell, Ltd.