Work in the Time of COVID-19: FAQs for Employers

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Recent high-profile stories of family members secretly recording inside skill nursing facilities (SNFs) and then sharing those recordings with the media or trying to use them in court proceedings against providers have renewed the focus on so-called “Granny Cams,” or recording devices that capture and save images or sounds of residents. I’ve worked on the Granny Cam issue off and on for nearly 30 years. Back in the day, our concern and our focus was on big, lumbering, easy-to-spot cameras mounted on the walls of resident rooms where data was stored on hard drives or disks only.

Today, the prevalence and low cost of iPads, iPhones, smart speakers with memory functions, “stealth” devices designed solely to permit recording without being detected, and “cloud storage” have reawakened interest in this issue. And, our societal addiction to being constantly connected and visible to one another, either actually or virtually, and the wave of Baby Boomers arriving at SNFs have once again ignited a debate about Granny Cams in SNFs and whether providers must, or even should, permit the installation or use of recording devices on their property.

Families wanting to install or use recording devices in SNFs are not, by and large, mean-spirited people with nefarious motives. In fact, they’re usually making what they view as a perfectly reasonable request, and are often surprised when the answer is “no.” Typical reasons families give for wanting Granny Cams include:

Any consideration of whether to permit “Granny Cams” in skilled nursing facilities must begin with a discussion of CMS’s regulations governing resident privacy and confidentiality. Those regulations, and CMS’s expansive Interpretive Guidelines, apply to every Medicaid- and Medicare-certified SNF. Here’s what CMS says about resident privacy confidentiality at 42 CR 483.10(h) and FTag 583:

In short, not only does CMS not require SNFs to install Granny Cams or to permit their use, CMS makes it pretty hard to imagine how a facility can permit the use of recording devices and still honor this broad and sweeping definition of resident privacy. Practically speaking, how can an SNF honor these broad privacy obligations and still permit recording, even in a resident’s private room where other residents may come in and out freely and, with some exceptions, are permitted to do so if the resident living there consents?

Still, a handful of states either permit (with limitations) or require SNFs to install recording devices with the consent of residents or their authorized representatives. As of July 2018, eight states have laws expressly regulating the use of Granny Cams in SNFs. North Carolina is not one of them.

North Carolina licensure laws for SNFs (and Assisted Living Communities, by the way) do not require any long term care facility to permit the use or installation of audio or video recording devices in their facilities. SNFs and assisted living communities, while they are licensed by the State and may receive state/federal public funding, are still private property. As such, owners/operators can prohibit any activity on their premises which they are not required by law to provide or allow.

So, in summary, here are some things you need to know about Granny Cams and some of our related recommendations:

The vast majority of our clients have opted not to permit the installation or use of audio or visual recording devices in their facilities by anyone other than authorized staff for authorized purposes. To be clear, SNFs are not required to opt for that choice and can freely choose to permit the use of such devices if they can figure out a way to both permit such devices and comply with CMS’s expansive definition of “privacy and confidentiality” set forth at FTag 583.

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