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.
A. 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"). …