Posted May 6, 2002
By Jerri Lynn Ward, J.D.
As you know, Texas Senate Bill 177, effective June 15, 2001, authorizes overt electronic monitoring in the rooms of nursing home patients. Monitoring would include use of video cameras and audiotaping. The purpose of this article is to give you the basics for dealing with this law.
Nursing homes are required to accommodate the request of any resident to conduct electronic monitoring, and may not refuse or discharge a resident who makes such a request. If covert monitoring is detected, the facility has to right to require that the device be turned off until the resident or resident’s family has gone through the procedures of gaining consent from the resident’s roommate. This is a change from TDHS’s prior position that a facility has no recourse if covert monitoring is detected. Attached to this article is a checklist outlining the procedure, which must be followed.
You will note from the checklist that several forms of consent must be signed and kept on record by the facility where video monitoring is being conducted in patient’s rooms. Also, notice must also be posted at both the main entrance to the facility and at the entrance of rooms with cameras stating that video monitoring is being conducted. We have attached examples of these notices for your convenience.
Finally, although the resident, the resident’s guardian or legal representative must pay for all costs associated with conducting the monitoring including installation, maintenance, or removal of equipment, apparently the facility must pay for electricity. Further, the facility must make reasonable accommodations for physically mounting the monitor and shall provide access to power sources.
The Department of Health Services can impose administrative penalties on those facilities that fail to comply with regulations, and it is a Class B misdemeanor to obstruct, tamper with, or destroy an electronic monitoring device or a tape or recording made by one.
A person reporting abuse has 14 days to review the tapes and report the incident. If a resident gives a person a tape to review for determining abuse or neglect, they have 7 days to review the tape or will be charged with a criminal penalty for failure to report abuse or neglect.
Checklist for Facilities with Authorized Electronic Monitoring
- TDHS Information Regarding Authorized Electronic Monitoring Form must be signed by or on behalf of
- All new residents upon admission
- Current residents (by July 1, 2003)
A copy of this form must be maintained in active portion of resident’s clinical record.
- Resident has gained obtained consent of other residents in room.
- DHS Consent to Authorized Electronic Monitoring form has been completed.
- Copy of form is maintained in active portion of resident’s clinical record
- Notice of AEM has been posted at entrance to resident’s room, which states that the room is being monitored by an electronic monitoring device.
- In event that covert electronic monitoring is discovered, facility must post notice at entrance to resident’s room as well.
- 8 by 11-inch notice entitled “Electronic Monitoring” has been posted at main facility entrance and states “The rooms of some resident’s may be monitored electronically by or on behalf of the residents. Monitoring may not be open and obvious in all cases.”
- Facility has made reasonable accommodations for physically mounting the monitor and has provided access to power sources.
If you are given a tape by a resident who has capacity to determine if abuse or neglect occurred:
Review the tape within 7 days.
File a report if, indeed, abuse or neglect occurred.
The following download is:
- A draft of the form that must be signed by the resident, or on behalf of the resident, to request AEM
- A draft of the form that must be completed by the roommate of a resident requesting AEM
- A Statement of Resident Rights
- Texas Department of Human Services (DHS) Information Regarding Authorized Electronic Monitoring
- Additional Resources
Click here to download these forms in PDF format.
Click here to download Adobe Acrobat Reader, a free program that allows you to view PDF documents.
All information in this article is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2004 by Garlo Ward, P.C., all rights reserved
Austin, Texas 78752-3714 USA
Telephone: 512-302-1103
Facsimilie: 512-302-3256
Email: Info@Garloward.com
