Electronic Video Monitoring and Filming in BAL Regulated
Facilities
PDF Version of DQA 08-023 (PDF,
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Electronic Video Monitoring and Filming in BAL Regulated
Facilities
This memo provides guidance to providers on the impact of electronic
video monitoring and filming on residents and tenants' right to privacy in
facilities regulated by the Bureau of Assisted Living (BAL).
It describes the permissible circumstances and locations for
facility-initiated use of electronic video monitoring or filming equipment
under existing Wisconsin State Statutes and Administrative Rules.
Background
With the development of equipment and technology to monitor homes and
businesses, privacy issues related to filming and monitoring were identified
as an emerging concern for assisted living facilities in Wisconsin in
2007.
The subject was discussed during the FOCUS 2007 ("Coming Together:
Mapping the Journey to Excellence") Assisted Living Panel.
In response to issues raised during the FOCUS panel discussion, as well
as questions that have arisen during compliance surveys, the Division of
Quality Assurance (DQA), in consultation with the Department's Office of
Legal Counsel (OLC), provides guidance on the use of electronic video
monitoring and filming equipment in Bureau of Assisted Living regulated
facilities.
The information presented in this memo recognizes the need to balance the
use of emerging technologies with residents and tenants' rights to privacy
in their homes.
Definitions
"Electronic video monitoring" is the use of cameras or
other equipment to transmit images of residents, visitors, or staff within
or around an AFH, CBRF, or RCAC for possible viewing.
"Filming" is the use of cameras or other equipment to
record images of residents, visitors, or staff within or around an AFH, CBRF,
or RCAC for possible viewing at another location at another time.
Relevant statutes and rules
Following are relevant State Statutes and Administrative Rule language
related to privacy, electronic video monitoring, and filming across multiple
facility types:
I. Wis. Stat. ch. 50, Uniform Licensure Law.
The following provision is only applicable to CBRFs:
Wis. Stat. § 50.09, Rights of residents in certain facilities, which
states:
(1) RESIDENTS' RIGHTS. Every resident in a nursing home or
community-based residential facility shall, except as provided in sub.
(5), have the right to:
(a) Private and unrestricted communications with the resident's family,
physician, advanced practice nurse prescriber, attorney, and any other
person, unless medically contraindicated as documented by the resident's
physician or advanced practice nurse prescriber in the resident's medical
record, except that communications with public officials or with the
resident's attorney shall not be restricted in any event. The right to
private and unrestricted communications shall include, but is not limited
to, the right to…
2. Reasonable access to a telephone for private communications.
3. Opportunity for private visits.
Wis. Stat. ch. 51, Mental Health Act, applies to CBRFs, AFHs or RCACs if
the person meets the statutory definition of patient. Wis. Stat. §
51.61(1), defines a patient as "any individual who is receiving
services for mental illness, developmental disabilities, alcoholism or drug
dependency, including any individual who is admitted to a treatment facility
in accordance with this chapter or ch.
48 or 55
or who is detained, committed or placed under this chapter or ch.
48, 55,
971, 975
or 980,
or who is transferred to a treatment facility under s.
51.35 (3) or 51.37
or who is receiving care or treatment for those conditions through the
department or a county department under s.
51.42 or 51.437
or in a private treatment facility."
Wis. Stat. § 51.61, Patients Rights, states that:
(1) …each patient shall…
(o) Except as otherwise provided, have a right not to be filmed or taped,
unless the patient signs an informed and voluntary consent that
specifically authorizes a named individual or group to film or tape the
patient for a particular purpose or project during a specified time
period. The patient may specify in the consent periods during which, or
situations in which, the patient may not be filmed or taped. If a patient
is adjudicated incompetent, the consent shall be granted on behalf of the
patient by the patient's guardian.
II. Wisconsin Administrative Code.
Adult Family Homes
Wis. Admin. Code § HFS 88.10, Resident rights.
(1) LEGAL RIGHTS. A licensee shall comply with all applicable statutes
and rules relating to resident rights, including s. 51.61, Stats., chs.
54, 55, and 304, Stats., and chs. HFS 92 and 94.
Wis. Admin. Code § HFS 88.10, Resident rights.
(3) RIGHTS OF RESIDENTS. A resident shall have all of the following
rights…
(b) Privacy. To have physical and emotional privacy in treatment, living
arrangements and in caring for personal needs, including toileting,
bathing and dressing.
(t) Visits. To have private visitors and have adequate time and private
space for visits.
Community Based Residential Facilities
Wis. Admin. Code § HFS 83.21, Rights of residents.
(4) RIGHTS OF RESIDENTS. …each resident shall have all of the
following rights…
(d) Visits. To have private visitors and adequate time and private space
for visits.
(h) Privacy. To have physical and emotional privacy in treatment, living
arrangements and in care for personal needs. Persons not directly
providing care and treatment or participating in group sessions shall not
be present during such care and treatment except with the express spoken
or written consent of the resident.
Residential Care Apartment Complexes
Wis. Admin. Code § HFS 89.34, Rights of Tenants.
(2) PRIVACY. To have privacy in his or her independent apartment and
when receiving supportive, personal or nursing services.
The following rule applies to individuals receiving mental health
services regardless of the setting under Wis. Stat. ch.51.
Wis. Admin. Code § HFS 94.18, Filming and taping.
(1) No patient may be recorded, photographed, or filmed for any purpose
except as allowed under s. 51.61 (1) (o), Stats., and this section.
(3) The informed consent document shall specify that the subject patient
may view the photograph or film or hear the recording prior to any release
and that the patient may withdraw informed consent after viewing or
hearing the material.
Analysis
State statutes and administrative rules for AFHs, CBRFs, and RCACs
consistently address each resident's right to privacy in care and treatment,
accommodations, and communication, namely visitors and phone calls. The use
of electronic video monitoring or filming is not consistent with the
provider's obligation to protect and promote each resident's right to
privacy when engaged in any of these activities.
Such equipment installed in living areas (space used for daily activities
such as dining, recreation, sleeping, hosting visitors, etc.) is capable of
transmitting images of residents receiving care and treatment, engaging in
activities of daily living, or visiting with guests, staff, or other
residents.
Whether done deliberately or inadvertently, transmitting images of
residents engaging in these types of activities violates their right to
privacy.
Conclusion
State statutes and administrative rules for AFHs, CBRFs, and RCACs
uniformly afford each resident and tenant the right to privacy. Resident and
tenant rights are not subject to the waiver or variance procedures that
allow exceptions from an administrative rule requirement.
Accordingly, the following guidelines on the use of electronic video
monitoring and filming are applicable in all Bureau of Assisted Living
regulated AFHs, CBRFs, and RCACs:
- Electronic video monitoring and filming may be allowed in cooperation
with law enforcement on a case-by-case basis, specific to an
investigation. Law enforcement may need permissions, waivers, warrants
and other authorization to proceed.
- Electronic video monitoring and filming are allowed in the following
locations, provided the facility posts signs indicating that monitoring
or filming is taking place:
- Parking areas;
- Locations where individuals may enter or exit the building;
- Areas that are marked for employees only;
- Storage areas;
- Hallways or corridors that do not lead to resident rooms or activity
areas; and
- Personnel offices that are not accessible to residents.
- The Department interprets the provision of privacy as a resident and
tenant right and prohibits the use of electronic video monitoring or
filming in locations other than in those areas identified above.
Consequently, electronic video monitoring and filming are not allowed in
the following locations:
- Resident bedrooms;
- Facility or resident bathrooms or shower rooms;
- Dining rooms;
- Therapy rooms;
- Visiting areas, lounges, multipurpose rooms, or activity rooms; or
- Any other space where a resident may be seen meeting with visitors,
engaging in an activity (including eating), sleeping, discussing their
current condition, or receiving personal care, medical treatment or
therapy.
- Mandatory consent to the use of electronic video monitoring or filming
equipment is not an acceptable condition of admission to a facility.
Facilities cannot prohibit admissions or require residents to give up
their rights as part of any admission, service, or risk agreement:
Wis. Admin. Code § HFS 94.06, Assistance in the exercise of rights.
(1) Each service provider shall assist patients in the exercise of
rights specified under ch. 51, Stats., and this chapter.
(2) No patient may be required to waive any of his or her rights under ch.
51, Stats., or this chapter as a condition of admission or receipt of
treatment and services.
Wis. Admin. Code § HFS 83.16, Admissions agreement.
(3) RESTRICTIONS. No provision of any admissions agreement may…
(c) Purport to waive any right guaranteed to residents by law.
Wis. Admin. Code § HFS 89.27, Service agreement.
(3)(b). A service agreement may not waive any of the provisions of this
chapter or other rights of the tenant
Wis. Admin. Code § HFS 89.28, Risk Agreement.
(3) NO WAIVER OF RULES OR RIGHTS. A risk agreement may not waive any
provision of this chapter or any other right of the tenant
As described in this memo, electronic video monitoring or filming in
resident areas violates residents and tenants' right to privacy. If your
facility currently uses electronic video monitoring or filming equipment in
areas included in the list of locations in which use is not allowed, please
discontinue use to comply with state statutes and administrative rules.
The Department recognizes that there may be unique situations not
explicitly covered by the guidance offered in this memo:
- Cases in which an individual resident may benefit from, or request the
use of electronic video monitoring or filming equipment, e.g., cases
where the use is indicated by a therapeutic treatment plan or where a
competent resident initiates a request;
- Client groups whose rights are restricted by the Department of
Corrections; or
- Religious services, recognition ceremonies, or public speeches that
are broadcast to a wider audience than is present in the room.
If you encounter a unique situation similar to those detailed above,
please contact your Regional Director in the Bureau of Assisted Living for
additional guidance before pursuing installation of electronic video
monitoring or filming equipment. The Assisted Living Regional Director
contacts can be found at: http://www.dhs.wisconsin.gov/rl_DSL/Contacts/ALSreglmap.htm
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