North Dakota: Surveillance in Nursing Homes

Increasing occurrences of privacy violations and personal abuse in residential care homes has rocked the care sector in recent years. Across the U.S. as well as in foreign countries, the industry has suffered a noticeable decline in confidence due to the inappropriate actions of a small minority of ‘rogue employees’ and, in some cases, even management.

This situation has led to a significant increase in the installation of covert surveillance devices, usually by worried family members and friends of the resident concerned. Hidden cameras, recording round-the-clock ‘comings and goings’, capturing evidence of suspected negligence, abuse or theft.

Increasingly, covert monitoring is being installed with the permission and blessing of care home management, eager to maintain high levels of care and integrity, by summarily ejecting offending employees, agency staff, or others with access to residents’ rooms, who evidently do not share the home’s ethics and standards of care.

Legal considerations

Senate Bill 2113, amending the North Dakota Century Code on the electronic monitoring of long-term care facilities has been introduced in the Senate and referred to the Human Services Committee.

If the bill is passed, care home facilities must allow residents to install monitoring devices in their room, to provide clear, conspicuous notice at main entrances and the resident's room, and to accommodate placement of devices, unless it would be an undue burden.

In cases where a room is shared with others, consent of all roommates must be obtained, and actions cannot be taken to refuse admission, or retaliate against residents who place such devices in the room.

Employee monitoring and privacy considerations

The term “authorized electronic monitoring” is defined as;

  • placement and use of an authorized electronic monitoring device ("Device"), by a resident or resident representative, in the resident's room.

In this context, the term “Device” can mean:

  • monitoring devices;

  • web-cams

  • video surveillance cameras

  • sound-recording devices

  • audio transmitting devices; or

  • a combination of these.

However, “Device” does not mean still cameras, or devices used for contact with another person.

The bill states that long term residential care facilities shall permit residents to conduct authorized electronic monitoring of their room using a Device if:

  1. the Device is situated in the resident’s room;

  2. placement of the Device is focused only on the area occupied by the resident (not on the resident’s roommate(s));

  3. the care facility has been given notice of the placement and use of the Device (including a release of liability for the facility for any violation of the residents right to privacy from use of the Device.)

  4. a recoding created by the Device records the data and time;

  5. all costs relating to the Device are paid by the resident; and

  6. written consent is given by each resident occupying the room which can be withdrawn at any time.

Constraints on care homes

The Bill also places specific prohibitions upon care facilities. These prohibitions state that care facilities cannot:

  • refuse to admit individuals or remove them because monitoring is taking place in their room;

  • intentionally retaliate or discriminate against a resident for consent to monitoring;

  • access any audio or video recordings created through a Device (unless there is written consent of the resident, or a court order.)

  • intercept, disclose, or use a communication of a Device (unless the resident provides express written consent.)

Penalties

Intentional hampering, obstruction, tampering or destruction of a recording Device without consent is subject to a class B misdemeanour; and individuals may be civilly liable for violations of privacy rights of another person if they:

  1. place a Device in a resident’s room; or

  2. use or disclose a recording made by the Device.

Do you have a family member in a residential care home? or, do you run a care facility and have something to share concerning this legislation? Post your comments below.

Sources and credits: North Dakota Legislative Branch

Read the full text of the Bill at: A BILL for an Act to create and enact a new section to chapter 50-10.2 of the North Dakota