Keep in touch with what’s happening in California about assisted living and RCFE legislation and related items.
Video Surveillance In Assisted Living: New State Guidelines
Despite the ongoing concerns of CARR and other statewide advocates, California’s Department of Social Services, Community Care Licensing (DSS/CCL) recently (2015) released a set of guidelines permitting assisted living facilities to use video surveillance in both common and private areas of facilities. The set of guidelines was reported to have been issued in response to the growing use of video surveillance systems in California’s assisted living facilities by facilities themselves.
CARR takes issue with both (1) the state’s creation of generic guidelines, rather than explicit statutory authority and regulations, and (2) the set of guidelines themselves. CARR submits that the policy is a quick fix that neither promotes resident safety nor mitigates resident risks. Instead, these guidelines provide facilities with unlimited discretion to monitor consenting residents. (You can read and evaluate CARR’s position paper here.)
As a service to residents and their families, CARR provides below an overview and itemized summary of DSS/CCL’s guidelines to ensure you are fully informed of your rights and areas where they might be limited. Actual guidelines may be found on DSS/CCL’s website using the link provided here.
Overview Summary—DSS/CCL’s video surveillance guidelines:
(1) require a resident’s (or their responsible party’s) written, informed consent;
(2) give the facility extensive discretion over implementation, storage, access, etc. of video surveillance;
(3) fail to clearly distinguish or define what areas are “private areas” of a facility. The guidelines offer an example of private areas in one section of the guidelines. It reads “applicable private areas (e.g. private studio, bedrooms or bathrooms)”;
(4) fail to define what actions or abuses would trigger the suspension or revocation of a video surveillance waiver; and
(5) imply residents cannot be denied admission or evicted for withholding consent for video monitoring in private areas. (Note: The guidelines do not address whether or not concerned family members have a similar right to personally install video surveillance in a resident’s room.)
Authorization and Implementation
- No audio component is allowed.
- A waiver request must be submitted to DSS/CCL and approved in order to use video surveillance in private areas. (Private areas, however, are not explicitly defined.)
- A waiver is not required for common areas that are readily viewable and accessible by the public (i.e. driveways, main entrances and exits).
- Even if an assisted living facility was using video surveillance prior to 2015, to continue to offer this service they must (1) develop an updated Plan of Operation that is compliant with the guidelines, (2) receive approval from DSS/CCL (the requirement for obtaining a waiver is unclear) and (3) obtain current and future residents’ written and informed consent to continue to use video surveillance.
- In the event of any changes in the use of video surveillance, as described in a facility’s Plan of Operation or waiver, the facility must notify DSS/CCL and must update those documents.
- Facilities using video surveillance “may” include in their waiver request and Plan of Operation some subset of recommended regulations and associated language reflecting how they plan to preserve a resident’s right to privacy and dignity despite the presence of video cameras. The actual excerpt from the Evaluator Manual Set of Guidelines is provided below for context.
Note: For each regulation waived, the licensee must be clear the waiver is strictly related to the video surveillance, (i.e. a resident does not waive his/her right to other aspects of the regulation). For example, a waiver of Title 22, Section 87468(a)(1) does not mean the resident is waiving his/her right to dignity in relations with staff, etc. The waiver request would provide explanation of how the waived regulations are limited to the use of video surveillance and the resident would only be waiving his/her right to privacy based on the specific use and purposes of video surveillance as defined in the updated Plan of Operation with a documented statement of informed consent.
Other regulations that “may” be included to be waived as they relate to video surveillance in (undefined) private areas are: Right to privacy in accommodations—87307(a) and (c), 87465(a)(8), and 87625(b)(8); Resident records are to be confidential—87506(c) and 87508(c)(1); Right to have private visits—87308(b), 87468(a)(11), and 87468(a)(14); Right to privacy when receiving medical treatment—87465(a)(8), 87621(b)(3), 87622(b)(2), 87623(b)(4), and 87625(b)(8).
- DSS/CCL will review waiver requests to ensure that provisions are included to allow for private interviews with residents and access to records for DDS/CCL evaluators—87755(b).
- All relevant Title 22 regulations to be waived must be listed on the waiver request.
Resident Consent for Video Surveillance
“Informed consent” is defined in the guidelines as a person’s agreement (or that of their legal representative) to allow something to happen, made with full knowledge of the risks involved and the alternatives. Residents’ and their families have the following rights when it comes to consenting to the use of video surveillance:
- A facility’s use of video surveillance and the specific areas under surveillance must be stated in in the Admission Agreement with a space provided to document consent. Consent to waive your right to privacy must be documented via a signature separate from the Admission Agreement signature;
- The facility’s Admission Agreement must contain a clause that details how the facility must turn off the video surveillance in private areas if a resident does not provide consent or revokes consent;
- If a legal representative signs on behalf of a resident, the facility must first obtain documented proof of the authority to make decisions on behalf of the resident and this documentation must remain in the resident’s record;??If you are considering a facility that has video surveillance in both common and private spaces and do not want video surveillance in your private spaces, the licensee is required to turn off the video surveillance in the applicable private spaces upon admission.
- If you are considering a facility that has video surveillance in both common and private spaces and also do not want to be subjected to surveillance in common spaces, than you will need to decide if you wish to reside there. The use of video surveillance in common spaces is allowed with or without your consent. (Common areas are defined in the guidelines as those readily viewable and accessible by the public (i.e. driveways, main entrances and exits).
- If you are considering a facility that has video surveillance and wish to use this service, you must sign the section in the Admission Agreement documenting your informed consent.
- If you are already living in a facility that has video surveillance in both common and private spaces and you wish to continue to use this service, you must sign the section in the Admission Agreement documenting your informed consent.
- If you are already living in a facility that has video surveillance in both common and private spaces, and wish to revoke your consent for surveillance in private spaces, you may do so verbally or in writing, and the facility must shut off the video surveillance in the applicable private spaces.
- If you are already living in a facility that has video surveillance, and you wish to revoke your consent for surveillance in common areas, than you will need to decide if you wish to remain there. The use of video surveillance in common areas is allowed with or without consent. (Common areas are defined in the guidelines as those readily viewable and accessible by the public (i.e. driveways, main entrances and exits).
- The guideline language implies a resident cannot be denied admission or evicted for failure to consent to video surveillance in private spaces.
If a facility maintains video surveillance records, they must specify how they will handle the storage of video footage in their Plan of Operations. The guidelines suggest recordings to be maintained in the resident records. If records are maintained outside of the resident records, than “confidentiality laws apply” (Statutes relating to confidentiality are not provided). In all cases, only state evaluators (aka Licensing Program Analysts (LPAs) or other persons with the legal authority to view resident records may have access to the videos. (Examples of “other persons” are not provided.)
The guidelines stipulate that video surveillance cannot substitute for adequate staffing. Facility personnel must be sufficient in numbers to meet the needs of residents.
Based on CARR’s experience in the public record, when DSS/CCL evaluates compliance, as long as a facility is following its Plan of Operations it is typically considered to be in substantial compliance. Therefore, if you are considering a facility that uses video surveillance, we encourage you to (1) read the admission agreement clause related to video surveillance carefully, (2) speak with the facility administration so you clearly understand their policies, and (3) consider consulting an attorney.
If you are in a facility using video surveillance, and are experiencing irregularities as a result (i.e. unnecessary violations of privacy, lack of accountability and transparency, etc.), we encourage you to contact your regional office or CARR staff at either (619) 795-2165 or email@example.com for support or assistance.