See licensing issue - below and comment on pulling wire

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Question:

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Ken:

    One of our newer clients in Brooklyn has recently had one of their MRI operators accused of improperly touching one of their clients while on an MRI exam table.  They have requested that we place a camera in the MRI room or outside of the room where the operator sits to view the exam area. Changing does not occur in the MRI area, but there is a chance that a patient could be exposed.  Has there been any precedence on this topic in NY and are there any legal issues which we should be concerned with in terms of expectation of privacy? Thank you very much.

Brian

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Answer:

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    Complicated question, as you will see.  You are correct that the issue is expectation of privacy.  I think if there is a problem it will be how the video is used, or misused.  [and see below for audio question].  It will be easy enough to obtain the employee's consent and the patient's consent to the cameras.  The doctor's employees should be party to an employment contract that contains consent to use video in the office [except bathrooms and changing rooms].  Patient's consent can be included in the various consent forms that patients are required to sign in every doctor's office before a procedure.  If the cameras are conspicuous I don't think that the presence of the cameras would violate privacy laws. 

    That doesn't end the inquiry however.  Doctors are subject to more than the run of the mill privacy laws.  They are subject to HIPA.  Doctors can read all about their exposures at https://www.kirschenbaumesq.com/healthcarearticles.htm

and doctors can protect themselves by staying compliant using these forms https://www.kirschenbaumesq.com/healthcareorder.htm

    From the doctor's perspective the problem may not be the video, but how it ends up being misused.  Even though a patient consents to the video if that video ends up on the Internet there is going to be liability for patient privacy violations.

    Your contract to install the cameras in a doctor's office should specify that you have advised the doctor that consent should be obtained from employees and patients and that the doctor's Compliance Plan should address the use and storage of the video to preserve the patients' privacy.

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Question re audio:

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Ken

    I think this may have been discussed. We are being asked to install cameras WITH sound recording in a day care center in NJ. Is the audio recording legal? Do we need special permission or is it a definite no?

Barry

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Answer:

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    My initial reaction to this question, and the easy answer, was, no audio.  But I am not so sure that audio can't be used under proper conditions and in appropriate situations.  A day care center may be such a place. 

    It's not uncommon for day care facilities to offer parents the ability to view the main room on video stream.  Of course no area where privacy is expected should be under surveillance.  While some parents may object to the video as long as all parents are asked to sign consents or waivers I don't see why the video can't be used.  If a parent doesn't want to consent then perhaps the parent should be told to look elsewhere.  I think the facility would be wise to insist on 100% consent for the video.  [staff to would have to consent - and that can be in the employment contract]. 

    I think I would handle audio the same way.  Consent by all concerned, and conspicuous notice for those who may be on the premises temporarily.

    Like the video question above, the problem would arise if the audio is misused.  For example, two staff chatting about illicit affairs and the director uses the audio to blackmail one or both of them, or just puts it out on the Internet.  [ok not the greatest examples, but you get the idea].

    As long as the audio is not misused there is likely to be no issues raised.

    OK, so having offered the opinions above, all the lawyers out there can let us know how wrong I am ?????

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Comment on pulling wires

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In Birmingham Alabama, on new residential construction/remodeling, you must pull a low voltage permit from the City.  This is a line item on the building inspectors check list that is monitored by them from start to finish.  Even if that is the only function we are doing at the premise, we still have to pull the permit.  During the job the inspector requires us to have two meetings with him.  The first after our wires are pulled and the last one at the final inspection.  The inspector can also make you have all your devices attached at the final inspection.  In the outlying cities around Birmingham they are not as strict and sometimes you are clustered in under the electrician's license.  Commercial security jobs are the same way and fire always involves a separate fire permit, plans, specs, etc and inspection by the AHJ and the building inspector.

John D Elmore Jr

Security By Elmore Inc

Birmingham, Alabama

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Licensing question re subcontractor

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Question:

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Ken,

 It is customary for electrical contractors to subcontract for the security work in any of their contracts.

 Even though the electrical contractors are included as authorized alarm contractors, can they subcontract the alarm portion of any project to a non-licensed vendor?

 Most electrical contractors lack the training and necessary skills required by a licensed vendor, and will choose to subcontract for wiring diagrams, installation supervision, programming, and so on.

 Are there any penalties for using an unlicensed vendor?

James

Bohemia, NY

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Answer:

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 My understanding is that a licensed contractor cannot use unlicensed subcontractors.  In fact, if the subcontractor is licensed it would be the contractor's obligation to make sure that the subcontractor's employees who install or service the alarm system be "documented" [fingerprinted and registered with the Dept of State]. 

 But here is a more troublesome issue:  Can an unlicensed contractor use licensed subcontractors to install the system?

 A major national company apparently is selling security equipment, entering into contracts [CCTV] and is unlicensed in NY.  It uses licensed subs to do the installation.  A complaint was filed by a licensed alarm company with the NY Dept of State.  I would have be confident that the Dept of State would determine that the unlicensed company was in violation because it was selling the systems and arranging subcontractors.  The Dept of State however has taken the position that there is no violation and no action will be taken against the unlicensed national company.  The only justification I can see is a literal reading of the statute which states that the alarm installer license is required if you are in the business of "installing, servicing or maintaining" alarm equipment.  Apparently advertising that you sell and install alarm systems and entering into contracts for the installation of such systems, is not covered by the statute.  An interpretation that I don't agree with - but no one put me in charge.

 Here is the NY statute that requires the license:

"On and after October 1, 1992, no person shall engage in the business of installing, servicing or maintaining security or fire alarm systems or hold himself out as being able so to do unless he is licensed therefor pursuant to this article. Nothing herein shall prohibit a person licensed in accordance with the provisions of this article from employing individuals to assist in the installation, servicing or maintaining of security or fire alarm systems, provided such licensee issues identification cards on a form prescribed by the Secretary of State to each unlicensed individual."

 

 I guess there should have been another sentence that said 'Nothing herein shall prohibit an unlicensed person to engage a licensed person to perform the licensed services".  Well, it doesn't read that way and it makes no sense that unlicensed companies can come into a jurisdiction requiring a license and hire someone else to do the installation, service or maintenance.  How is the licensing authority going to have any control or supervision, or even know about, the unlicensed company?