HIPAA & Cameras

Many years ago my wife and I made the difficult decision to place our special needs son in a group home. After a lot of paperwork, bureaucratic hassle, and frustrations, we were eventually able to have him placed in a home in our hometown.

But when most people hear "group home" they picture a large collective of people living in barracks-type housing where their supervision is limited at best. This is not the case for our son. Our son was moved into a 3 bedroom brick home that he would share with 2 housemates. Each of the residents would have their own bedroom but would share the living, dining, and kitchen areas. There would be at least 1 staff member in the house at all times to supervise the residents, cook meals for them, provide medications on schedule, do laundry, or just whatever needed to be done in the routine of day-to-day care of the residents and their specific needs.

Unfortunately for us, not long after our son moved into the home we began experiencing a rash of issues. Items were being broke in his room and we were being asked to pay to replace them. The home's staff was adamant that all damage was caused by our son, which was likely, but at the time he was assigned a 1-on-1 aide that was never supposed to be more than an arm's length away. If his aide was in the proper position, how did we keep having so many of these issues? If the aide isn't doing their job, why are being asked to pay for broken items as a result of their incompetency? We couldn't figure it out but the organization managing the home and its staff refused to take any level of preventative action or accountability. It was always "the aide said this in their report so that's what we're going with" type answers and responses.

After a few of these issues and lack of action by the managing organization, I started asking for cameras to be placed in the home to allow management, and perhaps us, to gain a better understanding of what was going on to cause the continued breakage. From the word go, the manager over the home immediately shot down any ideas I had regarding cameras in the home under the guise of HIPAA wouldn't allow it.

Over the next few years, we continued to have issues. Breakage slowed down but we were noticing things we had given him were starting to go missing from his room. We would bring him home for routine visits and notice odd bruises. Others who would frequent the house, including postal workers, family members of the housemates, and even other workers in the home, would report occurrences in the house that were worrying or alarming to us. We did our best to report these things to the management that oversaw the home's operation but they did little to nothing to address our concerns. Even if they told us that they took care of it we would still often see it continuing for our selves or have others report it to us.

Every so often I would revisit the topic of cameras in the home and every time I was told "no" and because of HIPAA. This lasted through 3 different managers, including 1 that was the director over all homes in the area. We discussed options for cameras throughout the house and just in our son's room but their answer was always a steadfast "no" on the grounds of HIPAA compliance and HIPAA prohibited the use of cameras.

This didn't feel right to me and nothing I had experienced with HIPAA suggested this was accurate. I knew I couldn't put cameras throughout the house and broadcast them live over the Internet for anyone to see. I knew I couldn't put cameras in the house and record his housemates without their consent, or the consent of their legal guardians. But I was fairly certain that I could put cameras in our son's private room, which is where the majority of the issues seemed to occur.

After a final plea to the site's director in which I was told that I could not put cameras in the house, again because of HIPAA, I reached out to a few lawyers who specialized in HIPAA laws. What I found out was vindicating.

Because our son pays for his room and board through his Social Security Income checks every month, he is considered a legal resident of the home. As a legal resident of the home with a private bedroom, he is entitled to his privacy and security within that space which CAN be monitored through electronic monitoring devices, i.e. cameras. In fact, there is NOTHING in the HIPAA rules that prohibits the use of cameras in the ways that I'd tried suggesting over the years.

However, there is a catch. Just because our son is a resident of the home and has a right to privacy and security supplemented through the use of cameras, we couldn't just waltz in and start slapping cameras up on the wall willy nilly. There were a few other things that we needed to do to ensure compliance.

With this being a shared home with other residents, their guests, and various staff workers, HIPAA did require that we install signs on the home's exterior and outside our son's bedroom door indicating that cameras were in use. Think of it as a passive wavier that the individuals accepted when they chose to enter into the house and potentially into our son's room that they would be recorded regardless of their expressed desire. The cameras would not be stopped just because they didn't want to be recorded and if they chose to enter the room then their acceptance of being recorded was implied through their actions.

Funnily, HIPAA does provide protections for these devices once they go up though. As soon as the signs and cameras were installed, they were protected by law. Only authorized users, i.e. me and my wife, were allowed to interfere with the operation of those devices and the accompanying signage. If the home staff made any effort to disable, obstruct, or remove any component of the HIPAA required configuration, they would be subject to charges related to violating federal law since HIPAA is a FEDERAL mandate.

And since we, as our son's legal guardians, were opting to put the cameras into his private space, we were under NO obligation to share the details of the camera's feed to the home's management group. This camera was considered my son's personal property and we had 100% control over it. Likewise, if the home wanted cameras in that space, they could put their own cameras in there but would have been under no obligation to give us access to those devices as they would be property of the management group and not our son, unless of course we could show they used his money to purchase them.

Of course, once this information was relayed to the home's management, they had no comeback. They offered no help or support either. I had to go online, with the help of my lawyers, and order custom made signs with differing verbiage that would go on the home's exterior and outside our son's bedroom door. I had to order the desired cameras for his room. I offered to let the home's maintenance group handle the installation of signs and cameras to ensure we didn't damage the home unnecessarily or in any way interfere with anything else in the home but they declined. I performed the installation of the signs and the cameras on my own without their help, guidance, insight, or anything.

And because the home had Internet access, the law dictated that our son had an inherent right to that Internet connection to use as he/we saw fit. This meant that the home's management could not deny us access to connect the cameras to the home's Internet connection. This would allow us the ability to access the cameras at any time of our choosing, review recorded activities, and even talk with our son through the camera's built-in speaker and microphone. The management ignored our requests for the Internet details for the 10 days leading up to the installation of the cameras but thankfully my IT background made their lack of participation irrelevant.

Now, had I not been able to perform the work without their assistance, their lack of cooperation held a lot of potential for more serious legal actions but luckily we didn't have to worry about that. We had texted, emailed, and called multiple people in various levels of management of the home several days in advance to make our intentions known. We made multiple phone calls and texts the day we went to do the installs but got no response from anyone. Even days later there was no usable reply from anyone connected to the home, who were all still unaware that I had succeeded in my efforts.

After we installed the cameras, a lot of the issues we experienced over the years stopped. Imagine that!

Later, I talked with some of the management again about the impact of our cameras and how they've been very beneficial to us in monitoring and ensuring our son's care. Management commented that they didn't like the idea of cameras because they found it more difficult to find employees willing to work under surveillance. I called BS on that right away because nowadays no matter where you work or go odds are that you're on camera. Banks, retail stores, grocery stores, gas stations, restaurants, and even corporate offices use cameras every day to protect their property and staff. To me, the only people who would not want to work under those conditions would be people who don't need to work under those conditions, if you catch my drift.

Our position has always been that when staff work in a home full of residents that lack proper communication skills and/or proper understanding of what is happening around and to them that a camera can be a very powerful tool, especially for management. We've complained about the lack of management oversight at the home where staff will work for months at a time with no check-in or audit by management to make sure they're doing their jobs correctly. We've complained about the repeated problems that we had to report that management seemed content to react to rather than take proactive initiatives. We discussed how cameras could help resolve both issues by allowing management to pop in sporadically on the home staff, often without their knowledge, to ensure that things were being done as expected. Those same cameras could also provide recorded evidence when staff wasn't doing what they were expected in the event of disciplinary actions by their management or as a result of CPS/APS investigation. Most CPS/APS investigations in homes like this result in an inconclusive finding for "lack of evidence", likely because most homes don't deploy cameras so there's nothing but he said/she said type material available for investigators.

It has been a few years since we first installed cameras in our son's room. We have upgraded his hardware to provide better video quality, more recording capabilities, and more. He has moved from one home to a new home and we had to fight with management to move his equipment along with the rest of his property. It hasn't been smooth sailing since the cameras first went up but things have improved. We've caught a few things of concern on the cameras and provided that to management for them to address. Its not as ideal of a setup as I would like to see but its a damn sight better than where we started so many years ago.

The moral of this story is this: don't let someone tell you something can't be done because HIPAA. It seems groups like to throw the term "HIPAA" around as a scare tactic because they know so few people understand HIPAA. Do your research. Contact HIPAA specialist lawyers if need be. Make sure you are doing all you can and that they are doing what they're supposed to.

States may have different laws even though HIPAA is a federal mandate so be sure to look for any state specific laws. And our situation may not be the same as yours so do your due diligence before charging in recklessly. But don't be scared just because someone tells you "HIPAA won't allow it" because odds are they don't want what you want and HIPAA is an easy cop-out.

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