Elder Law Attorneys, John and Lisa, talk about the legality of Nanny Cams. How can Nanny Cams help save your loved ones and when can you legally use them.

Lisa
Welcome everyone to Aging Insight. My name is Lisa Shoalmire and I'm here with John Ross, and you're watching the show that gives you the best and most up-to-date information about all things senior and retirement related. So we're glad you're watching.
John
Yeah, Lisa and I are elder law attorneys and we try to make sure people have the information they need to age on their own terms and protect and preserve their dignity, their assets, all of that sort of stuff, and we know that you need information to do that and so we bring you this show every week so that you will have that information.
Lisa
Right. So, you know, part of Aging Insight is making sure that your resources are protected and, you know, John? Those resources, they include things like houses and bank accounts and all, but they also include the little things like that favorite tube of lipstick or piece of jewelry.
John
Right, sure.
Lisa
And so, you know, what a lot of people get concerned about as they get older, if they go into a more...if they leave their home and they go more into a retirement environment such as an independent living or an assisted living or even skilled nursing, nursing home care, they get worried about those little things that they bring with them.
John
Well, you know, if you're going to have a bunch of strangers in your home or if you're going to be in something like a nursing home where you've got strangers that…you know, the people that work there that are in and out on a daily basis, you know, particularly if this is you that's there, or if it's your loved one that's there, you're going to be worried about those items of personal property and you're going to be worried about the safety of that person that's there especially if they cannot take care of themselves. You know, Lisa, I think about this just, you know, with my own kids, you know, maybe that first time you take them to daycare and they're just not…they're not under your watchful eye any longer. And, you know, you get to wonder and throughout that, especially that first couple of days, you're wondering what's going on over there at that daycare?
Lisa
Well, and, you know, John, it's funny you mentioned that because in today's technology world, a lot of daycares have web cameras that a parent can dial up from their laptop or their phone and check-in on that room where that child is.
John
Yeah, same thing in the home. They call these Nanny Cams.
Lisa
Right, and it's a pretty common thing and so we're actually seeing the concept of Nanny Cams floating over more to the older population and they call them Granny Cams.
John
Yep. And a lot of these comes from a particular case that started up in Oklahoma. And what happened here was, you know, there was this lady and she needed nursing home care and she was in a nursing home and the kids noticed that some of those little items like that tube of lipstick, you know, they just were disappearing. And so the kids got the idea, "Well, you know what? Maybe we should put a little hidden camera in there and see if we can figure out where these little personal items are walking away to. And so they actually bought this, it looks like a clock, like a bedside clock, but it's got a little hidden secret camera in it. And they put this in the room thinking that they were going to catch a thief.
Lisa
Right, you know? So the family puts this, it looks like a digital clock but it's got a little camera in it, and really, John, they thought that it was probably another resident, you know, perhaps who had lost their way, who was coming into their mother's room and perhaps, you know, just taking that lipstick or powder, whatever it was. And so they put this camera out but what really ended up happening is after that camera being in place for a couple of weeks, the children of this elderly lady, they come and they get the…there's a little memory card that records all of the comings and goings that the camera catches and they came and reviewed the tape if you will and they were very shocked to find not just items going missing but they were shocked to find employees, attendants who were supposed to be assisting their mother, who were actually abusing her. And this case, John, what the camera had recorded was an attendant yelling at the resident who was in her 90s. It included...
John
Yeah, they picked her up and actually threw her into the bed, took some of those latex gloves that the doctors use, shoved them in the woman's mouth and then were poking her on the head. One woman even got up on top of her and was doing chest compressions as if the lady was having a heart attack even though she really wasn't. Just abhorrent abuse that all was caught on this little secret camera.
Lisa
It was. And the video was released, the family released the video on the internet, and of course, they went to redress the situation but the...what the scene depicted and what it showed with these employees abusing their mother was so egregious, and again, John, like you said, this happened in Oklahoma. Oklahoma legislatures got involved and immediately passed a law that permitted hidden cameras in the rooms of nursing home residents.
John
Yeah. You know, that brings up an interesting question which is can you even have a hidden camera out there because, you know, hidden cameras and secret microphone, this world of...
Lisa
Recordings.
John
Yeah. This like spy kind of stuff going on, there's actually a lot of laws about this and they vary all across the country. And so you might be thinking, "Well, you know, look, I'm just trying to take care of my loved one and make sure they're okay." But you want to make sure that you're not actually committing a crime yourself.
Lisa
Right, because in your zeal to protect your loved one, you don't want to end up catching a felony of your own, and so today's episode, we're going to talk about the use of cameras and hidden cameras when it comes to the care of and monitoring of senior adults. So stick around.
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John
Welcome back to Aging Insight, everybody. I'm your host, John Ross here with Lisa Shoalmire, my co-host. And today on Aging Insight, we're talking about the rules and regulations and laws related to hidden cameras.
Lisa
Right. And John, just this morning, before we came to the studio to film today, I had a client tell me that they had actually placed hidden cameras in their elderly father's apartment because they were concerned about him and wanted to be able to monitor him because he had a number of falls but he wanted his independence. So this was a way that they were maintaining that and the kids were maintaining a sense of safety and security and dad gets to be independent in his apartment. So, you know, we talked about this terrible case out of Oklahoma where this abuse occurred, but really, these Granny Cams or the idea of a Granny Cam, it could be really in any environment whether it's a private home or retirement community or nursing home. So a lot of people are thinking about it but we need to get you straight on the laws.
John
Yeah. And the first thing to understand in all of this is really more of the...before we get into the law part of it, it's more of the moral side of this sort of thing. You know, think about for your own self, right? If you are the one that wants to monitor your own environment, maybe like you've described the elderly gentleman that knows he's having some problems and so he decides to put up cameras around his house and give access to those cameras to whoever, his kids, or whatever. You know, that's really his own deal.
Lisa
Sure. And he's free to do that.
John
And he's free to do that. What you don't want to do is get into where you're replacing your judgement for somebody else's, right? I mean, it would be completely inappropriate for this person to put hidden cameras in his dad's house without his dad's knowledge, even if he was very well-meaning. And really, just from a moral standpoint…I mean, if you think about it for yourself, think about the privacy of your own home and do you really want somebody videoing every little thing that you do throughout the day?
Lisa
If it's your habit to run to the coffee pot in your underwear, well, then, you know, you don't want cameras capturing that moment.
John
That's exactly right. So there's certainly that side of things. The other side of this is when you're videoing...you know, it's one thing if I agree to video myself or record myself, or I agree to let somebody else do it, you know, like my kids or something like that, that's all fine and dandy, but if I'm letting somebody else in my home...
Lisa
Right.
John
Or, if I'm at that facility and I've got other people coming into this room, this is where the consent problem starts running...where you start running into issues because in many places, recording a one-sided conversation, right? So like Lisa, if I call you and I record my side of the conversation, in some states, that's okay, even though you don't know it. This is what they call a one-party consent. It's okay. But in other places, I think Chicago or Illinois, for example. Illinois is what they call a two-party consent state. Meaning that if Lisa and I are on the phone and I'm recording it without her knowledge, I am committing a crime. And so if I put a camera with a voice recorder in my room and somebody who has not consented to be recorded walks into that room and I am in a place like Illinois, well, without that two-party consent, there's a crime going on and you can get into big, big trouble.
Lisa
Right. And, you know, part of the issue here is that technology has become so good, frankly, where we have small cameras and recording devices that can be placed in a room and be very discreet. And, of course, the technology is fairly inexpensive. We're way past the days that this type of technology was only available to a spy like James Bond. But because of that accessibility, a lot of people have seen the usefulness of it particularly in situations such as monitoring a child's nursery or the Granny Cam situation where they have a parent or a loved one who's quite elderly and they want to make sure they're safe and secure. So there's really been a proliferation of this kind of use. But John, there's also...because of the use of these cameras, there's been a lot of stories like that out of Oklahoma where we have the video of abusive behavior by an employee, sitter, or attendant against an elderly person. And because of that, several states have passed laws that will allow recording and these cameras in nursing facilities, perhaps assisted living, under certain conditions.
John
That's right. So for example, Oklahoma, which we mentioned, Texas. Texas has one of the most thorough laws related to this sort of thing. Even Louisiana has recently gotten in to this game. Notice we didn't mention Arkansas.
Lisa
Right, Arkansas has not touched this yet. So if you're an Arkansas viewer, none of what we're about to say will apply to you.
John
That's right. But, you know, even in Texas, so Texas has passed the law that allows the recording in a nursing home or assisted living but they've got a lot of little rules related to it. So the first thing is you're supposed to notify the facility that you intend to do it. And in fact, the Department of Aging and Disability Services or DADS in Texas, they are supposed to have a form for this that they turn around and give to the nursing homes and so you can go...theoretically, you should be able to go to the nursing home's office, say, "I am going to put a camera in my mom's room," or, "I want a camera in my own room," and they are to provide you a form where you notify them that you are doing this. Now, before we filmed, I actually went to the Department of Aging and Disability's website to try to get a copy of that form, but it wasn't there. They're supposed to have one, and hopefully, the facility does but I think really any notification, if you just go and let them know that you're going to do it in whatever form you do that, that should be sufficient. But Lisa, that's not the end of it.
Lisa
No. I would scribble that notice out even if it's on a piece of notebook paper and hand it to the administrator of the facility and say, "Hey, I'm putting a camera in mom's room. Here you go."
John
Right. But, you know, if...
Lisa
Now, John, can the nursing home say no?
John
And the nursing home cannot say no. They are prohibited from saying no, they're prohibited from saying, "Well, if you do that, we're going to kick you out," or, "We're going to charge you a higher fee," or anything like that. They are completely prohibited from doing that. But, you know, Lisa, what if you and I are in the same room?
Lisa
Right. So that, you know, if it's…many rooms especially in skilled nursing facilities is a double occupancy room, and so it has two residents in that room.
John
So I want the camera...
Lisa
But if I don't...
John
Yeah, and now that's a problem.
John
So one of the second rules related to this is that if you've got a roommate, the roommate must also consent. You cannot have the secret camera in the room without the other roommate's consent. You don't have to have the consent of anybody else but you do have to have the consent of your roommate if you have one. Obviously, if it's a single person room, you're good there. You don't have to go around and get the consent of every certified nurse assistant or everybody else, although you do have to put up a little notice.
Lisa
Yes.
Lisa
Right. You do have to put...if you're going to place a camera and it's either your private room or your roommate consents, then if that camera's going to be operating in that room, then you do have to put a notice up on the door or in a prominent place in the room that going on, there is a camera and you may be recorded.
John
That's right. So you've got a few little rules here on what you can do and what you can't do, and of course that's Texas. This is also Oklahoma.
Lisa
Yes, very similar.
John
But, you know, actually, there's only about four or five states in the whole United States that have passed these kind of laws.
Lisa
Well, and isn't it interesting that out of those half dozen states, Arkansas, Louisi-...excuse me, Texas, Oklahoma, and Louisiana are three of those states. And, you know, some people would say that that's because of some egregious incidents of abuse that were caught on these hidden Granny Cams. But anyway.
John
All right, so we're going to take one more break and when we come back, we're going to keep talking about this and get you a little more information on the Granny Cams and the rules. So stick around, we'll be right back.
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Lisa
Welcome back, everyone, to our final segment on today's Aging Insight. I'm Lisa Shoalmire here with John Ross, and we're talking about the use of Granny Cams or cameras when you're caring for a loved one, or if you yourself feel more secure having a camera in your environment, there's a bunch of rules and regulations about it. And John, we've talked about the major rules as far as letting the facility know that you're using a camera, getting your roommate's consent if you have one. Also posting a notice that cameras are being used. John, what about if we have a senior that's in their own home and maybe they're having a service or sitters coming into their own home, anything different for that?
John
Well, there's no specific laws like there is with the nursing home. Those are actually specific rules and like the ones we just described with Texas, that specifically applies just to nursing homes, and in Texas, also nursing homes and assisted livings. But even the Oklahoma and Louisiana don't apply to assisted living. They're just nursing homes. And even then, they're only state-supported nursing homes, so ones that are receiving things like Medicaid benefits and stuff like that. If they're a purely private pay facility, those rules still don't apply to them. But particularly when you're in your home, your home is your domain, it's your castle, and generally speaking, you can do what you want in your own home. And if you hire somebody, you can hire them under whatever conditions you want to hire them in. But, if you are going to record them, it is very important that you put that in a written employment contract.
John
Now, first of all, it's a good idea to have a written employment contract.
Lisa
Right, yeah.
Lisa
Let's start there.
John
So, yeah. In other news, always have an employment contract. This business of writing them, passing them a few cash, folding paper money at the end of every week because they don't want to have to report it on their tax return or anything else, all that's going to do is get you in trouble. And particularly when it comes to things like video surveillance monitoring or audio recordings, those are going to be very particular issues, you want this in writing. You want them to have consented to be recorded. That way, you don't get into any questions about it later on, especially if you are in one of the two party consent states like we described earlier. If you're sitting there in Illinois and you're watching today's program, you know for a fact that if you do not have that other person's consent and you are recording the audio and visual going on in that house, this is a crime, even though it's happening in your own home.
Lisa
Right. So you can use cameras and all in your own home if you choose to do that, but it's a good idea if you're going to have caregivers coming in from the outside to get that in a written contract and, you know, maybe go ahead and post a sign on the porch or something that these premises are monitored by video cameras.
John
Yeah. Now, Lisa, I was actually doing a little research on this. I was reading an article about it and I saw a comment on the article and they said, "Why would you have to notify everybody? I mean, doesn't notifying them just keep them from doing it?"
Lisa
Right, keep them from acting bad. Well, hopefully.
John
Hopefully so. Right? So, you know, sometimes, just the fact that you're notifying of the deterrence is enough of a deterrent. And although this technology is becoming more and more accessible, you still do have to pay attention to the type of technology that you're using. Those cameras, do they store everything on a memory card? And if so, how much storage do they have? Are they connected to the internet in some way? And if they are, does the facility have access to that sort of thing?
Lisa
Right. So a lot to think about. And, you know, if you're a resident at a facility or your loved one is in a skilled nursing facility, if you want to use cameras in Texas or Oklahoma or Louisiana, as long as you follow the rules, you're entitled to do that. And one other thing, John, the facility is supposed to help you and accommodate you to make sure you can get those cameras in. If you need electrical outlet or if you need access to the internet or Wi-Fi to use that camera, facilities are supposed to help you do that.
John
That's right, they're supposed to make reasonable accommodations. So we're coming up on the end of the show and just if you were curious, that desktop clock with the hidden camera, we actually have a link on our Facebook page, it's the Ross and Shoalmire Facebook page. You could check that out and you can actually see, they sell that same type of camera right there on Amazon. So you could check those out if you want to see what...
Lisa
I mean, it truly is amazing, all the different things they have, and how inexpensive it is.
John
It even has night vision for when stuff's going on at night.
Lisa
And it tells the time.
John
And it tells the time. So we've got all of that, and of course, you can always keep checking us out week after week. Pick up a copy of our Aging Insight magazine at your local doctor's office or on the Ross and Shoalmire website or the Aging Insight website. So lots of places for you to get information out there and really, the key to being able to know how to do all of this in a way that you come out golden without falling in any pitfalls is with this information. That's why we do the program.
Lisa
That's right. So, you know, if our show today, if our topic has piqued your interest, you know, today, we always say we give this...this show is not specific legal advice and it's certainly general information for you, but I would suggest that before you go posting cameras and putting them up, that you do get specific legal advice to your situation. How's that for that lawyer disclaimer there?
John
I like it, I like it. That was good. All right, well, thanks for watching everybody, and we will see you next time.
Lisa
Thanks, bye-bye.
Episode Transcript

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