Criminal prosecutors have recently stepped up measures to enforce quality of care at nursing facilities by using surreptitious videotaping, as described by attorneys from the New York State Office of the Attorney General’s Medicaid Fraud Control Unit.1 Accomplished legally and without the facilities’ knowledge, this new tactic necessitates a concomitant increase in prophylactic quality control measures by facilities that wish to avoid prosecution.

The use of video surveillance is an expensive and time-consuming undertaking, but has netted some remarkable results, generating both disturbing images of abuse and more mundane divergences between documented and provided services. By using video cameras to build a case against a facility or its individual staff members, prosecutors can even multiply charges by confronting staff members regarding resident abuse or neglect, and then charging them not only for those actions but also for falsification if they are not entirely forthcoming during the interview.

Most disturbingly, no court orders or subpoenas are required for prosecutors to use video surveillance. The only requirement in the nursing home context is consent. And because New York State is a single consent jurisdiction, as long as the resident or his or her legal representative consents to the videotaping, no other consents are required. In other words, a facility need not even be alerted if video surveillance equipment has been placed on its premises. Prosecutors claim to have methods, which they did not reveal, by which they can conduct videotaping in a nursing home without the knowledge of any nursing home operator or staff. The laws in other jurisdictions may vary.

Not all Medicaid Fraud Control Units have prosecutorial powers, but New York’s does. Thus, abusive or neglectful staff and operators could face serious criminal charges. Even where criminal sanctions cannot be imposed, surreptitious videotaping programs have resulted in the removal of operators and the placing of facilities in receivership. Under the “worthless service theory,” facilities can also face liability under the federal False Claims Act (“FCA”) or state false claims acts, on the theory that the service was so poor as to be tantamount to no service at all. Under the FCA, an entity may be liable for treble damages.

Operators can protect themselves by increasing their own quality control measures, perhaps even making use of surveillance technology themselves. Staffing and supervision are particularly important, as many investigations that ultimately lead into other areas are started because of staffing-related issues. If a facility has been cited on a survey for inadequate staffing, it is absolutely critical to follow through on promises to improve staffing.

The key to criminal liability is knowledge and intent. If an operator is put on notice of a problem and does not take effective steps to address it, the operator can be implicated in the staff’s liability. In-servicing staff is not enough to immunize an operator. In cases of suspected abuse or neglect, a root cause analysis should be done to determine exactly what happened and why, focusing on how the system failed to prevent the problem and how the system can be improved.

Some facilities are demonstrating their commitment to quality assurance by implementing the use of video surveillance on their own. Video monitoring has shown that staff who are in-serviced and counseled may perform a little better for a day or two, but then return quickly to their old habits. Although the law varies from state to state, as a general rule, videotaping is permissible as long as the resident or the resident’s legal representative consents. A facility using video surveillance should notify visitors and employees of the surveillance by posting conspicuous notices in the facility. Under the HIPAA Privacy Standards, facilities would be required to implement safeguards to ensure the confidentiality of all videotapes (i.e., that monitors are viewed only by authorized personnel and that videotapes are secured and access to them restricted).

Before implementing a video surveillance program, you should discuss the pros and cons with your insurance carrier and malpractice defense attorney. Videotapes that record substandard care and mistakes, if discoverable by a plaintiff’s attorney, could be used against a facility as evidence in malpractice litigation. You may also face objections if your facility has a union.

Whether or not you implement your own program of video surveillance, it is important that quality of care is systematically monitored and negative outcomes are investigated so that your facility does not become the target of an outside investigator, who may be using surveillance technology to prosecute the case.