Page 21 - Minnesota Vol 8 No 3

• e right to association with any other person, including the health care agent, family members, or clergy.
Federal law states even more strongly the following rights of the nursing home resident:
• e right to communicate with and have access to persons of their own choice. e word “access” may be viewed as contemplating via elec- tronic means;
• e facility has the a rmative duty to ensure the rights of the resident, without interference from the facil- ity;
• e right to a cell phone and rea- sonable access to video communi- cations and internet service, at the resident’s expense and/or if avail- able at the facility;
• e right to privacy of their oral, written, or electronic information;
• e right of self-determination, in-
cluding to make their own choices.
e Home Care Bill of Rights un- der Minn. Stat. §144A.44 governs the rights of clients receiving home care services, including in an assisted liv- ing setting. Even though the popula- tion of those in assisted living settings in Minnesota is double the popula- tion in Minnesota’s nursing homes, the Home Care Bill of Rights does not su ciently address the rights of a per- son receiving home care services and living in a congregate setting. Minn. Stat. §144A.44 subd. 13 does state that a person receiving home care services in an assisted living setting has “the right to be treated with courtesy and respect, and to have the client’s prop- erty treated with respect.”
Currently, Minnesota law does not speci cally prohibit placement of a video or audio recording device in a person’s private living space in a nurs- ing home or assisted living, although wiretapping and criminal statutes could be implicated under certain cir- cumstances.
e response to electronic moni- toring from providers is varied. Some welcome it, others allow it with cer- tain conditions, while others don’t allow placement of any camera on their property. e varied responses and potential violation of the person’s rights are viewed as reasons for the need for legislation.
REMEMBER THESE CONCEPTS WHEN DEBATING THIS LEGISLA- TION
No. 1: Persons receiving long-term care currently have extensive legal rights that support camera placement in a private living space, whether un- der bills of rights, concepts of reason- able accommodation for those with disabilities, or landlord-tenant law. Any legislation a rmatively allow- ing placement may be viewed as a re- striction of such rights, and all e orts should be made to vigorously defend such rights with any legislation.
No. 2: When defending existing rights, is it important to remember that many persons for whom camera placement is sought have diminished capacity and are not able to articulate harm. e risk of further harm in the form of retaliation is heightened when the person’s vulnerabilities remain and he or she is reliant on sta to meet critical health needs.
No. 3: With approximately 400 mal- treatment reports submitted weekly to the Minnesota Department of Health, over 60% of which involve nursing home residents who need the highest level of care, it would be an under- statement to say maltreatment is not occurring. One of the most frequent comments of families placing a cam- era is that they approached sta and management with care concerns and were not taken seriously.
Current legislative proposals should be cra ed to preserve existing rights and protect those most vulnerable from retaliation and revictimization for camera placement. A er all, it is not primarily for those who can speak for themselves that the law is needed, but for those who cannot.
SUZANNE SCHELLER IS AN ATTORNEY WITH SCHELLER LEGAL SOLUTIONS LLC. SHE PRACTICES IN THE AREAS OF ELDER ABUSE AND NEGLECT LITIGATION, FINAN- CIAL EXPLOITATION, ELDER LAW, ELDER MEDIATION AS A QUALIFIED NEUTRAL, AND ESTATE PLANNING. SCHELLER IS AN ADJUNCT FACULTY MEMBER IN MITCH- ELL HAMLINE SCHOOL OF LAW’S ONLINE, 12-WEEK ELDER LAW AND CHRONIC CARE CERTIFICATE LAUNCHING IN APRIL 2019.
AttorneyAtLawMagazine.com
21