Posted September 7, 2001
Senate Bill 177 authorizes the use of audio and video surveillance. Use of an electronic monitoring device is considered to be covert if the placement of the device is not open and obvious and the facility and TDHS are not informed about the device by the resident, by a person who placed the device, or by a person who is using the device. TDHS will prescribe a form that must be completed and signed on admission identifying liability, discusses covert placement of devices, the process to use a monitoring device, and reporting abuse.
Only a resident may request the use of a monitoring device, unless a resident is judicially declared to lack the required capacity. If a resident has been judicially declared to lack the capacity to request a monitor, only the guardian of the resident may request an electronic device. If a resident has not been judicially declared to lack the capacity to request a monitor, only the legal representative may request electronic monitoring. TDHS will prescribe guidelines regarding a resident’s capacity and who may be considered to be a resident’s legal representative.
Requests for electronic monitoring shall be made on forms prescribed by TDHS and forms shall also be developed for a resident’s roommate to obtain consent for the monitor. Monitoring may not begin unless all consents are obtained. The resident or their legal representative must post proper notice on the resident’s door that electronic monitoring is in use. A facility many not refuse to admit a resident or remove a resident because of a request to conduct authorized electronic monitoring. The facility must make reasonable accommodations for physically mounting the monitor and shall provide access to power sources. The resident must pay for all costs associated with installation and maintaining the equipment, except electricity. The facility may require the monitoring to be in plain view. A facility may, but is not required, to place a resident in a different room to accommodate a request for monitoring.
A person reporting abuse or neglect has 14 days from the date of the incident to review or listen to a tape or recording made 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 the failure to report abuse or neglect. Facility’s may obtain copies of tapes at the own expense if they are used to support an allegation of abuse or neglect.
Though covert recordings are prohibited elsewhere, they, as well as approved recordings, may be admitted into evidence in a civil or criminal action or administrative proceeding, subject to applicable rules of evidence and procedures.
Notice must be placed at the entrance to the facility stating that the rooms of some residents may be monitored electronically by or on behalf of the residents and may not be open or obvious. A facility administrator may be sanctioned for knowingly refusing to permit a resident to conduct authorized electronic monitoring, refuses to admit an individual or allows the removal of a resident because of a request to conduct monitoring, allows the removal of a resident because of covert monitoring or violates another provision of this chapter. TDHS may assess a penalty against an institution that refuses to permit a resident to conduct authorized monitoring, refuses to admit an individual or allows the removal of a resident from the institution because of a request to conduct monitoring or allows the removal of a resident because covert electronic monitoring is being conducted.
A person who intentionally hampers, obstructs, tampers with or destroys a monitoring device or a tape or recording made by the device commits a Class B misdemeanor. It is a defense that the person took action with the consent of the resident on whose behalf the device was installed.
Effective September 1, 2001.
- Rule making authority is granted to TDHS to implement this legislation.
- TDHS shall provide a form that must be completed and signed on a resident’s admission to an institution by or on behalf of the resident.
- TDHS shall by rule prescribe guidelines that will assist institutions, family members, advocates and other persons to determine when a resident lacks the required capacity to request electronic monitoring and who may be considered the resident’s legal representative for purposes of requesting electronic monitoring.
- TDHS shall prescribe rules governing the notice posted at a nursing home where electronic monitoring occurs.
- TDHS shall adopt rules amending resident rights to include placement of electronic monitoring devices.
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