December 1, 2013

NY Times: Watchful Eye in Nursing Homes

By Jaklitsch Law Group of Jaklitsch Law Group on Sunday, December 1, 2013.

urlA pretty nightie, a new lipstick, a fresh toothbrush: Doris Racher noticed that small things she had bought for her 96-year-old mother, Eryetha Mayberry, a dementia patient at a nursing home in Oklahoma City, had been disappearing. Ms. Racher assumed the culprit was another resident who sometimes wandered into her mother’s room and fell asleep in her bed.

So in 2012, Ms. Racher placed a motion-activated camera in her mother’s room. It looked like an alarm clock, and Ms. Racher nearly forgot about it.

About two months later, the family decided to pore through the recordings.

The camera had not caught the petty thief. But it captured something else:

An aide stuffed latex gloves into Mrs. Mayberry’s mouth, while another taunted her, tapping her on the head, laughing. Hoisting her from her wheelchair, they flung her on a bed. One performed a few heavy-handed chest compressions.

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“My niece started bawling and couldn’t watch anymore,” said Ms. Racher, 78. “I was furious.” Mrs. Mayberry died soon after.

Doris RacherA video still shows a nursing home aide stuffing latex gloves into Eryetha Mayberry’s mouth.

On Nov. 1, propelled by the outcry over the Mayberry case, Oklahoma became the third state — along with New Mexico and Texas — to explicitly permit residents in long-term care facilities to maintain surveillance cameras in their rooms. In the last two years, at least five states have considered similar legislation.

Although some states have administrative guidelines for electronic monitoring, most legislative efforts have stalled because of questions about liability and, in particular, privacy rights, raised by facility owners, unions, elder care lawyers and families.

Despite such concerns, not only have family members turned to these “granny cams” — a popular nickname that some consider patronizing — but even the government has used them. A year ago, the New York state attorney general’s office, which has relied on hidden cameras in patient abuse and neglect cases for years, demonstrated its methods at a national training program for state investigators.

In June, Mike DeWine, the Ohio state attorney general, announced that his office, with permission from families, had placed cameras in residents’ rooms in an unspecified number of state facilities. Mr. DeWine has moved to shut down at least one facility, in Zanesville, where, he said, cameras caught actions like an aide’s repeatedly leaving a stroke patient’s food by his incapacitated side.

Nick Oxford for The New York TimesCaretakers were caught on camera abusing Eryetha Mayberry, 96.

19JPCAME2-articleInlineThe recordings can have an impact. Based on Ms. Racher’s videos, one aide pleaded guilty to abuse and neglect. The other appears to have fled the country. Similar scenes of abuse have been captured in New JerseyNew YorkPennsylvania, Texas and other states by relatives who placed cameras in potted plants and radios, webcams and iPhones.

The monitoring is often a last-ditch step by relatives who suspect abuse but feel that the authorities dismiss their complaints.

“Families are witnessing injuries and neglect of loved ones, and the only way to detect what’s happening is to use hidden cameras,” said Wes Bledsoe, the founder of A Perfect Cause, a group based in Oklahoma that tracks such cases around the country.

Although no one tracks its use, the technology is accessible, affordable and widely accepted, said Dan Frith, a lawyer in Roanoke, Va., who represents plaintiffs in neglect and abuse cases against long-term care facilities.

“I’m confident there are numerous granny cams in nursing homes in Virginia that people never discuss with the staff,” he said. “It’s a cheap, quick way to verify.”

But the secret monitoring of a resident raises ethical and legal questions. Families must balance fears for their relative’s safety against an undignified invasion of their privacy. They must also consider the privacy rights of others who pass through the room, including roommates and visitors.

Proponents of hidden cameras argue that expectations of privacy have fallen throughout society: nanny cams, webcams and security cameras are ubiquitous.

But others say that it is one thing to videotape a nanny in one’s home who is putting a diaper on a 9-month-old, and quite another to record an aide doing so for a 90-year-old.

“This is infringing on someone’s privacy arguably for their own benefit, ” said Nina A. Kohn, a law professor at Syracuse University. “We have to be especially careful that it’s justified.”

A long-term care resident often lacks the capacity to consent to being recorded, so the decision is usually made by a representative, who may not be a relative. That decision maker has to stand in the resident’s shoes, Ms. Kohn said: If the resident were mentally capable, would he or she agree to round-the-clock monitoring of many intimate moments — being bathed, put on the toilet, even having sexual relations with another resident?

Ms. Racher said she never worried about violating her mother’s privacy. “Certainly the workers see your rear end anyway,” she said. “So if your family sees your naked behind, what’s the big deal?”

But residents often have roommates, who state laws say have the right to refuse to be monitored. Maryland, which has administrative guidelines for facilities, says that cameras must be in a fixed position directed at only the intended resident.

Another question is whether signs should be posted alerting staff members and visitors that monitoring is taking place. Certainly, abuse has been exposed precisely because staff members did not know about hidden cameras.

Mr. DeWine, who said his Medicaid Fraud Control Unit pursued facilities only where there were extensive complaints, refused to name other settings where his cameras were in place.

If workers think they may be monitored but don’t know for certain, he said, that uncertainty may deter abusive behavior. “Notice is not necessary,” he said, and “would defeat the purpose.”

But many privacy experts believe that notification benefits everyone. Facilities that permit in-room monitoring usually require families to post a notice on the resident’s door. In recent years, facilities themselves have placed signs that cameras are in public areas like lobbies and dining halls.

“Notification encourages transparency and reaffirms shared expectations for quality care,” said Joseph DeMattos, the president of the Health Facilities Association of Maryland, which represents long-term care and rehabilitation centers.

Dr. Laura Mosqueda, a geriatrician in Irvine, Calif., has misgivings about cameras, but feels that with careful consent and notice, the practice can be put to good purpose. “The documentation in nursing homes can be so poor that you can’t tell what’s going on and you don’t know who to blame,” she said. “Good caregivers can be unfairly accused.”

But the effect of monitoring on employees is debatable. Unlike the residents, who expect privacy because their room is essentially their home, workers cannot assume that their actions are going unrecorded.

Some facilities have lobbied against electronic monitoring legislation. Unions also dislike cameras, particularly when they are placed without notice.

“When you have low-wage health care workers in difficult settings, they feel subjected to scrutiny and attack,” said Anthony Caldwell, a spokesman for the Service Employees International Union District 1199, whose local represents aides in Kentucky, Ohio and West Virginia. “Secret surveillance takes away from their professionalism. It’s unfortunate and creepy and wrong.”

Greg Crist, a spokesman for the American Health Care Association, which represents about 9,000 skilled nursing centers, said each state must write its own laws about monitoring. “Our caregivers are often the new families of these residents,” he said. “We want that to be an ongoing, trust-based collaborative relationship.”

Dr. Mark S. Lachs, a geriatrician and a professor at Weill Cornell Medical College, is concerned that recordings may be misinterpreted. Nursing home residents, he said, can become combative, delirious and resistant to care.

“A jury could view a skilled, kind, loving nursing assistant trying to bathe the person with advanced cognitive challenges, who is saying, ‘Stop, stop, stop!’ ” he said. “And that assistant could be misconstrued as abusive.” Regulation is needed, he said, to detail when and how monitoring may occur, who owns the recordings and who may watch them.

Use of hidden cameras may catch bad actors after the fact, but can monitoring help redress the deep-seated problems at many facilities?

Marie-Therese Connolly, a former Justice Department coordinator of the Elder Justice and Nursing Home Initiative, said, “We shouldn’t rely on them to substitute for proper staffing and training, which are better ways to assure quality.”