A new law in Ohio that lets nursing homes place monitoring devices in patients’ rooms holds major implications for privacy rights and elder care. Reminger Law attorney Randy Engwert provides expert analysis:
Guest post by Randy Engwert, Attorney at Law
Residents of Ohio’s nursing homes are now permitted to place electronic monitoring devices in their rooms. “Esther’s Law” went into effect on March 23, 2022, after passing unanimously through the Ohio House and Senate and being signed by Governor Mike DeWine on December 22, 2021. This bipartisan legislation demonstrates that ridding Ohio of elder abuse is a high priority for the State.
Do you practice in Wisconsin, Texas, Minnesota, Ohio, Illinois, Indiana or Michigan? Is your professional liability coverage managed through Alta Pro? If so, you’re automatically a member of the Alta Pro Risk Purchasing Group (RPG), which offers a wealth of benefits for your practice: free, cutting-edge CLE webinars featuring top experts tackling timely topics; the Pro Practice Playbook; the Pro Practice Blog; Reminger’s ProLink risk management assistance; Reminger’s Claim Repair Hotline; discounts on CLIO practice management software; tax savings on health insurance; and access to the Risk Pro, who can help keep your firm safe and successful. Register here and start enjoying your Alta Pro RPG benefits.
Esther’s Law, codified as R.C. § 3721.60, et seq., comes about in the shadow of a shocking video depicting the abuse of the bill’s namesake, Esther Piskor, at the hands of her nursing home care providers. Esther’s son Steve Piskor suspected his mother was the victim of abuse in an Ohio nursing home. So, in September 2011, Steve placed a hidden camera in his mother’s room and caught six weeks of abuse on camera. Nurses and aides threw her around the room, sprayed her in the face with unknown substances, and yelled at and neglected her. Steve has since worked to ensure Elder Abuse will be driven out of Ohio’s nursing homes, with his efforts finally coming to fruition this year.
This law allows a nursing home resident, or the resident’s guardian or attorney, in fact, to authorize the installation of an electronic monitoring device in their room under the following conditions: (1) if the facility prescribes a form for the device, the resident or the resident’s representative completes and submits the form to the facility; and (2) the cost of the device and its upkeep is paid for by the resident. Further, a resident may withdraw authorization at any time.
If the resident has a roommate, the consent of the other resident is required before any monitoring device may be installed. The roommate may consent on certain conditions such as agreed upon angling of the device, or limitations as to the device used. Devices must be installed and used in accord with the consent of all residents residing in the room.
Nursing home operators and their staff should also be aware that the law requires reasonable attempts to accommodate residents to be made where a resident wishes to install an electronic monitoring device, but a roommate refuses to consent. Reasonable accommodation expressly includes moving the resident to another room where installation would be permitted if available.
The scope of Esther’s Law is currently limited to “long-term care” facilities defined as nursing homes and skilled nursing facilities and currently does not extend to assisted-living accommodations that do not meet the “long-term care facility” classification in R.C. 3721.01. However, state legislators have indicated the scope of Esther’s Law may expand to other types of facilities in the near future.
Not a “Gotcha” Law
Steve Piskor and the State Senators sponsoring Esther’s Law assert that the law is not intended to have a “gotcha!” effect. The goal of the law is to prevent abuse in the first instance, and not to be a reactive tool after the abuse has occurred. This goal is made clear through the reasonable drafting of the law that permits the long-term care facilities to place notices outside of the resident’s room to notify others that electronic monitoring is taking place.
Lastly, facilities should be aware that the law prohibits any denial of admission, discharge, discrimination, or retaliation based on a resident’s decision to exercise the right to install an electronic monitoring device.
As always, should you have any questions regarding Esther’s Law, or long-term care liability and compliance in general, please do not hesitate to contact one of the attorneys in Reminger’s Long-Term Care Liability Group.
This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel. THIS IS AN ADVERTISEMENT
About the Author
Randy Engwert joined Reminger as a partner in 2017 and practices out of the firm’s Toledo office, handling matters throughout Ohio and beyond. His practice is focused primarily on defense of medical and professional negligence cases, including long-term care facilities, hospitals, doctors, and nurses. Randy is a member of Reminger’s Medical Malpractice, Long-Term Care Liability, Legal Malpractice, D&O and Employment Practices Liability practice groups, and also assists clients involved in complex litigation and family law matters.