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Does privacy law hinder protection from and investigation of nursing home abuse?

Privacy issues have been in the spotlight ever since Edward Snowden began leaking thousands of highly sensitive documents from the National Security Administration. The ensuing national debate about what should remain private and what should be shared with governmental bodies cast the light further to the growing body of privacy law. Privacy law developed with the laudable intentions of protecting individuals’ rights to privacy in wide-ranging areas. Unfortunately, in the course of protecting rights, other protections may suffer. Your Denver nursing home attorney discusses two examples where privacy protection can interfere with protection from abuse.

At the Daytona Beach Health and Rehab Center in Daytona Beach, Florida, the police were investigating the possible sexual battery of a seventy-five year old resident with Alzheimer’s. The police sought interviews with the staff and other patients, as well as access to copies of records from the Center. The attorneys for the Health and Rehab Center invoked the Health Insurance Portability and Accountability Act of 1996 (“HIPPA), and denied access to all of the above. Frustrated and unable to proceed in their investigation of the alleged nursing home abuse, the Chief of Police filed a complaint with the Florida Agency of Health Care Administration. The Agency instructed the Center to give the police access to everything they needed.

HIPPA, among other important functions, shields patients and their medical information from public scrutiny. However, as the above example illustrates, it can be used to shield potentially criminal behavior from being discovered. Although not applicable to an individual patient’s medical records, Colorado’s Open Records Act, or CORA, allows access to records retained by the government such as complaints, investigations, reports, statements of deficiencies, citations, continuous quality assessments, etc.

The families of some nursing home patients advocate and use video monitoring as a means of protection against potential abuse and/or neglect. Your Denver nursing home attorney knows that in order to monitor a patient by video surveillance, the patient must consent if competent, or have a medical power of attorney or guardian consent if incompetent. But even with consent, the boundaries of that consent can run afoul of Colorado’s criminal invasion statute C.R.S. 18-7-801. This statute makes it a crime to knowingly observe or photograph (or video tape) another person’s “intimate parts” without consent and where the person has a reasonable expectation of privacy.

The consent of the patient to video monitoring also does not necessarily constitute compliance with Colorado’s law against eavesdropping. (C.R.S. 18-9-304) Under this law, any conversation picked up by the video must involve the consent of at least one of the participants. If two aides are talking to each other in the patient’s room and their conversation is recorded, the recording could be a violation of the eavesdropping statute in the absence of consent by one of the aides. Again, laws that are intended to protect privacy sometimes end up hindering efforts to protect patients from abuse.

     If you are concerned about a loved one in a nursing home, or if you would like more information on nursing home abuse, contact your Denver nursing home attorney Jordan Levine today.

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