We’ve all seen the horrific images portrayed on so-called “nanny cams,” where babysitters and in-home healthcare providers have been caught on camera physically abusing children and elderly people under their care. These shocking videos are often captured by parents or family members who suspect problems and decide to take matters into their own hands by setting up hidden surveillance cameras in their own homes. These powerful videos have been used by law enforcement and state investigators to bring down the perpetrators and protect vulnerable victims.
Unfortunately, for a very long time it has been unlawful to use hidden surveillance cameras in nursing homes. In most states, in fact, it remains unlawful to secretly record a nursing home resident in their room, even if the resident consents. In 2016, Illinois became the fifth state in the country to change this. So, if you and your family suspect that a loved one is being abused or neglected in an Illinois nursing home, you might want to consider a nanny cam. The attorneys of Jerome, Lindsay & Salmi, LLP are dedicated to ensuring the dignity and safety of elderly nursing home residents. Call us today to launch a free investigation if you suspect that your loved one is suffering from abuse or neglect.
Understanding Illinois Electronic Healthcare Surveillance Laws
It’s important to keep in mind that a nursing home resident’s private room is to be considered no different than their own private home. They are guaranteed certain basic rights, including:
- The right to their own property
- The right to be free from manual or forced labor
- The right to be free from unlawful restraint
- The right to dignity
- The right to have an environment that is free from hazards
- The right to choose who is given access to their room
- The right to visitors of their choosing
- The right to exclude visitors
- The right to have access to their own chosen clergy, healthcare providers, and legal counsel
- The right to be free from abuse or neglect
The one that is perhaps the biggest sticking point is privacy. If a nursing home resident has a video camera set up in their room, there’s a chance that others who have not consented could be captured on camera. The fear has been for years that cameras – even if consented to by a resident – could inadvertently run afoul of healthcare privacy laws. For instance, at the federal level, the Health Insurance Portability and Accountability Act (HIPAA) was created to protect the privacy of health records. But this law has been greatly expanded to protect the privacy of patients in healthcare settings, so that their pictures, images, and likeness are not illegally used or made public.
Likewise, Illinois law has other, more restrictive rules, such as the Mental Health and Developmental Disabilities Confidentiality Act (MHDDCA is found at 740 ILCS 110/1), which is designed to provide very clear limitations on access to mental health records. This too creates limitations on the use of video surveillance in healthcare settings, because a camera could potentially capture images that would reveal a patient’s cognitive impairment or mental health conditions.
Together, HIPAA and MHDDCA have been used to argue against the use of any sort of surveillance in a nursing home. Yet, hundreds of Illinois nursing homes already use cameras in public and common areas, although they often claim that these are deterrent only and not actually “turned on.” The truth is hard to know.
What is Allowed?
Effective on January 1, 2016, Illinois joined a very small minority of states that do allow some surveillance with the consent of a resident or their legal guardian. The law, Public Act 99-0430, created the Authorized Electronic Monitoring in Long-Term Care Facilities Act. This new law allows a resident to consent to placing a video camera in their room in order to ensure a level of protection against abuse, theft, or neglect.
How Does it Work?
First, it only applies to residents of certain facilities. Here are some key elements of the law to keep in mind.
- It only applies to certain facilities. To qualify, the facility must be a licensed long-term care facility in Illinois. It must be licensed under either the Nursing Home Care Act or the ID/DD Community Care Act. Most Medicaid-approved nursing home facilities and mental health treatment facilities will count.
- You pay the cost. Second, the resident and/or their family must foot the bill for the cost of installing the camera.
- Only in the resident’s room. Third, the camera must be in the resident’s private room and be placed in a conspicuous location. In other words, it is not like a nanny cam; it cannot be hidden.
- Criminal penalties for obstructing. Fourth, there are criminal penalties for tampering with, destroying, or obscuring the video camera in any way. Likewise, there are penalties for a nursing home discriminating against or refusing care to a resident who opts to use a camera system.
- It is unlawful to prevent the use of a camera. Finally, the law makes it unlawful for a nursing home to prevent the use of a surveillance device in the resident’s room.
How to Go About Getting a Camera Installed
If you are concerned about the care a loved one is receiving, the first step would be to discuss your concerns with your loved one and the facility. If the resident is mentally and cognitively capable of understanding your concerns and is capable of consenting, then it the resident would need to sign a consent form. Next, speak with the facility to get a list of the technical requirements and rules that apply to where and how one can be installed. If, on the other hand, your loved one is suffering from severe medical conditions or cognitive impairment (such as Alzheimer’s or other dementias), then it will be the duty of the resident’s authorized guardian or agent under a power of attorney to sign such a consent.
Getting Good Video Surveillance Equipment
One final point to remember is that nursing home staff who would knowingly choose to abuse or neglect a resident in front of a camera that is in plain sight are likely to destroy the evidence. So, if the camera shows signs of tampering, footage is missing, or there are blocks of time that are not accounted for, you should be highly suspicious. Quality closed circuit systems will be connected to the Internet via a data connection (cell phone service required). This way they are not dependent on WIFI access. The camera will transmit a live feed 24/7, which sends the footage to a storage queue. There, the footage is stored offsite in the cloud for a predetermined amount of time, usually about 48 to 72 hours. You should talk to an expert about getting the right system.
With this type of camera system, there is no way for a nefarious “bad actor” to remove, erase or rewind the camera. Once the footage is recorded, it is already too late.
What to Do if Nursing Home Abuse is Verified
If you have used a surveillance camera and captured abuse or neglect, you should immediately retrieve the footage and turn over a copy to Illinois State investigators from the Department of Public Health. You can make a report of abuse online, by phone, or by mail. Next, you should immediately call an experienced elder abuse attorney who can help you initiate your own private investigation into the facility’s conduct.
Sadly, the truth is that most families do not discover abuse or neglect until long after their loved one has been badly injured or died. But this does not mean it’s too late to act. You can still bring a lawsuit against a negligent nursing home that permitted abuse to occur.Call Jerome, Lindsay & Salmi, LLC today to learn more about your rights. We perform swift initial investigations, and we consult with leading experts in the industry to find evidence that others overlook. The call is free, and we never charge attorney fees unless we successfully recover money for you and your family. Hold the nursing home accountable, call our office today.