To Film or Not to Film: A Case Study on the Use of Cameras in Senior Living Communities Robert J. Lightfoot II, Esq. Reinhart Boerner Van Deuren s.c. Madison, WI
Objectives •
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Discuss a resident's right to privacy in an assisted living community Discuss a resident's right to privacy and a community's obligation to keep other residents, family members and staff safe Discuss a community's regulatory obligation to report and investigate incidents Discuss lessons learned as a result of the administrative law case and the regulatory agency's reaction to the decision. ©2016 All Rights Reserved Reinhart Boerner Van Deuren s.c.
Background of the Administrative Case
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Wisconsin "Community Based Residential Facility" Wis. Admin Code DHS 83.
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The citation for an allegation for not ensuring a resident's privacy was maintained as evidenced by a video made of a resident on a staff cellphone.
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Appeal, settlement stalemate, and to administrative hearing before an ALJ.
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Key issues in the Administrative Case
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Combative dementia resident
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Law Enforcement involved
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Safety of Others
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Involuntary transfer
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The regulation involved (consent needed to film resident)
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Manner in which resident was filmed.
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Key Issues for Discussion
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Dealing with combative, violent residents
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A resident's right to privacy in an assisted living setting
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Protecting other residents, staff and others
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Reporting obligations for incidents especially resident-to-resident interactions
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The Wisconsin Regulation (3) RIGHTS OF RESIDENTS. … In addition to the rights under s. 50.09, Stats., each resident shall have all of the following rights: (m) Recording, filming, photographing. Not be recorded, filmed or photographed without informed, written consent by the resident or resident's legal representative. The CBRF may take a photograph for identification purposes. The department may photograph, record or film a resident pursuant to an inspection or investigation under s. 50.03 (2), Stats., without his or her written informed consent. Wis. Admin. § DHS 83.32(3). 5
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HIPAA Regulation A covered entity may, consistent with applicable law and standards of ethical conduct, use or disclose protected health information, if the covered entity, in good faith, believes the use or disclosure
(i)(A) Is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and (B) Is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat. 45 CFR 164.512(j)(1).
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Presumption of Good Faith A covered entity that uses or discloses protected health information…is presumed to have acted in good faith with regard to a belief…if the belief is based upon the covered entity's actual knowledge or in reliance on a credible representation by a person with apparent knowledge or authority. 45 CFR 164.512(j)(4)
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Case-specific Facts
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CBRF cited for violating a resident's right to privacy.
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Resident with dementia committed many aggressive acts (tearing a TV off wall, overturning furniture, chasing son with a knife, going into other residents' rooms, hitting staff)
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Provider care-planned the issues – numerous interventions tried and failed – POA involved.
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Requested help from the Regulatory Agency
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Called Law Enforcement
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Facts, cont.
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Resident recognized law enforcement upon their arrival as authority figure - calmed
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The resident's aggressive behaviors continued
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At Law Enforcement's suggestion – made video on iPhone to show the violent behaviors to law enforcement
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Video of resident made without resident's consent by the Administrative team – viewed by 4 employees total - copied – made part of record – video deleted off iPhone ©2016 All Rights Reserved Reinhart Boerner Van Deuren s.c.
Regulatory Agency Allegation
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The only issue at hearing from the Regulatory Agency's perspective was whether the provider violated the state regulatory requirement by filming a resident without first receiving informed, written consent from the resident or resident's legal representative
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Provider did not obtain informed, written consent prior to filming
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Provider's Defense •
Obtained consent in admission agreement for marketing purposes
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Left with no alternative
− Provider attempted all alternatives prior to making a video recording •
Safety of others − Duty to protect others in the facility (other residents, staff, visitors, etc.)
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Provider's Defense, cont. •
HIPAA regulations allow providers to disclose information in the reasonable belief it is required to protect someone
− Good faith belief that recording was necessary to protect residents and others
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Regulatory Agency's Argument
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Regulations do not provide for filming a resident without their express, written consent
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Filming the Resident via an iPhone presents potential for other privacy and confidentiality issues
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The CBRF should have contacted the POA for Health care prior to filming the Resident
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The ALJ's Decision
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Lessons Learned - CBRF
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Pre-admission assessment (appropriate placement?)
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Policy/Procedure Review (follow own policies?)
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Protection of others
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Outside resources available
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Manner of the filming (mobile device of a staff member?)
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Attempts at obtaining consent prior to filming
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To film or not to film ©2016 All Rights Reserved Reinhart Boerner Van Deuren s.c.
Lessons Learned – Regulatory Agency
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Need to look at the big picture rather than merely trying to prove there was a violation.
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Need to examine whether the facility fully evaluated the pros and cons of filming OR did they simply act quickly to protect residents/staff? Combine this by examining how much notice did the facility have regarding the potential for risk of harm to residents.
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When evaluating the alleged violation the agency should try to put itself in the facility’s shoes and try to understand the difficulties they were facing at the time. ©2016 All Rights Reserved Reinhart Boerner Van Deuren s.c.
Questions Questions? Thank You!
Thank You! Robert J. Lightfoot II Reinhart Boerner Van Deuren, s.c. 22 East Mifflin St., Suite 600 Madison, WI 53703 608-229-2257 rlightfoot@reinhartlaw.com
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