Current through Reg. 49, No. 38; September 20, 2024
(a) A facility must permit a resident or the
resident's guardian or legal representative to monitor the resident's room
through the use of electronic monitoring devices.
(b) A facility may not refuse to admit an
individual and may not discharge a resident because of a request to conduct
authorized video monitoring.
(c)
The Texas Department of Human Services (DHS) Information Regarding Authorized
Electronic Monitoring form must be signed by or on behalf of all new residents
upon admission. The form must be completed and signed by or on behalf of all
current residents by July 1, 2003. A copy of the form must be maintained in the
active portion of the resident's clinical record.
Attached
Graphic
(d) A
resident, or the resident's guardian or legal representative, who wishes to
conduct AEM must request AEM by giving a completed, signed, and dated DHS
Request for Authorized Electronic Monitoring form to the administrator or
designee. A copy of the form must be maintained in the active portion of the
resident's clinical record.
(1) If a resident
has capacity to request AEM and has not been judicially declared to lack the
required capacity, only the resident may request AEM, notwithstanding the terms
of any durable power of attorney or similar instrument.
(2) If a resident has been judicially
declared to lack the capacity required to request AEM, only the guardian of the
resident may request AEM.
(3) If a
resident does not have capacity to request AEM and has not been judicially
declared to lack the required capacity, only the legal representative of the
resident may request AEM.
(A) A resident's
physician makes the determination regarding the capacity to request AEM.
Documentation of the determination must be made in the resident's clinical
record.
(B) When a resident's
physician determines the resident lacks capacity to request AEM, a person from
the following list, in order of priority, may act as the resident's legal
representative for the limited purpose of requesting AEM:
(i) a person named in the resident's medical
power of attorney or other advance directive;
(ii) the resident's spouse;
(iii) an adult child of the resident who has
the waiver and consent of all other qualified adult children of the resident to
act as the sole decision-maker;
(iv) a majority of the resident's reasonably
available adult children;
(v) the
resident's parents; or
(vi) the
individual clearly identified to act for the resident by the resident before
the resident became incapacitated or the resident's nearest living
relative.
(e) A resident, or the resident's guardian or
legal representative, who wishes to conduct AEM also must obtain the consent of
other residents in the room, using the DHS Consent to Authorized Electronic
Monitoring form. When complete, the form must be given to the administrator or
designee. A copy of the form must be maintained in the active portion of the
resident's clinical record.
(1) Consent to
AEM may be given only by:
(A) the other
resident or residents in the room;
(B) the guardian of the other resident, if
the resident has been judicially declared to lack the required capacity;
or
(C) the legal representative of
the other resident, determined by following the same procedure established
under (d)(3) of this section.
(2) Another resident in the room may
condition consent on:
(A) pointing the camera
away from the consenting resident, when the proposed electronic monitoring is a
video surveillance camera; and
(B)
limiting or prohibiting the use of an audio electronic monitoring
device.
(3) AEM must be
conducted in accordance with any limitation placed on the monitoring as a
condition of the consent given by or on behalf of another resident in the room.
The resident's roommate, their guardian, or legal representative assumes
responsibility for assuring AEM is conducted according to the designated
limitations.
(4) If AEM is being
conducted in a resident's room, and another resident is moved into the room who
has not yet consented to AEM, the monitoring must cease until the new resident,
or the resident's guardian or legal representative, consents.
(f) When the completed Request for
Authorized Electronic Monitoring form and the Consent to Authorized Electronic
Monitoring form, if applicable, have been given to the administrator or
designee, AEM may begin.
(1) Anyone
conducting AEM must post and maintain a conspicuous notice at the entrance to
the resident's room. The notice must state that the room is being monitored by
an electronic monitoring device.
(2) The resident, or the resident's guardian
or legal representative, must pay for all costs associated with conducting AEM,
including installation in compliance with life safety and electrical codes,
maintenance, removal of the equipment, posting and removal of the notice, or
repair following removal of the equipment and notice, other than the cost of
electricity.
(3) The facility must
meet residents' requests to have a video camera obstructed to protect their
dignity.
(4) The facility must make
reasonable physical accommodation for AEM, which includes providing:
(A) a reasonably secure place to mount the
video surveillance camera or other electronic monitoring device; and
(B) access to power sources for the video
surveillance camera or other electronic monitoring device.
(g) All facilities, regardless of
whether AEM is being conducted, must post an 8-inch by 11-inch notice at the
main facility entrance. The notice must be entitled "Electronic Monitoring" and
must state, in large, easy-to-read type, "The rooms of some residents may be
monitored electronically by or on behalf of the residents. Monitoring may not
be open and obvious in all cases."
(h) A facility may:
(1) require an electronic monitoring device
to be installed in a manner that is safe for residents, employees, or visitors
who may be moving about the room, and meets all local and state
regulations;
(2) require AEM to be
conducted in plain view;
(3) place
a resident in a different room to accommodate a request for AEM.
(i) A facility may not discharge a
resident because covert electronic monitoring is being conducted by or on
behalf of a resident. If a facility discovers a covert electronic monitoring
device and it is no longer covert as defined in §
242.843,
Health and Safety Code, the resident must meet all the requirements for AEM
before monitoring is allowed to continue.
(j) DHS may assess an administrative penalty
of $500 against a facility for each instance in which the facility:
(1) refuses to permit a resident, or the
resident's guardian or legal representative, to conduct AEM;
(2) refuses to admit an individual or
discharges a resident because of a request to conduct AEM;
(3) discharges a resident because covert
electronic monitoring is being conducted by or on behalf of the resident;
or
(4) violates any other provision
related to AEM.
(k) All
instances of abuse or neglect must be reported to DHS, as required by §
554.602 of Title 40 (relating to Incidents of Abuse and Neglect Reportable to
the Texas Department of Human Services (DHS) by Facilities). For purposes of
the duty to report abuse or neglect and the criminal penalty for the failure to
report abuse or neglect, established under the Health and Safety Code, §
242.122, the following apply:
(1) A person
who is conducting electronic monitoring on behalf of a resident is considered
to have viewed or listened to a tape or recording made by the electronic
monitoring device on or before the 14th day after the date the tape or
recording is made.
(2) If a
resident, who has capacity to determine that the resident has been abused or
neglected and who is conducting electronic monitoring, gives a tape or
recording made by the electronic monitoring device to a person and directs the
person to view or listen to the tape or recording to determine whether abuse or
neglect has occurred, the person to whom the resident gives the tape or
recording is considered to have viewed or listened to the tape or recording on
or before the seventh day after the date the person receives the tape or
recording.
(3) A person is required
to report abuse based on the person's viewing of or listening to a tape or
recording only if the incident of abuse is acquired on the tape or recording. A
person is required to report neglect based on the person's viewing of or
listening to a tape or recording only if it is clear from viewing or listening
to the tape or recording that neglect has occurred.
(4) If abuse or neglect of the resident is
reported to the facility and the facility requests a copy of any relevant tape
or recording made by an electronic monitoring device, the person who possesses
the tape or recording must provide the facility with a copy at the facility's
expense. The cost of the copy must not exceed the community standard. If the
contents of the tape or recording are Transferred from the original
technological format, a qualified professional must do the transfer.
(5) A person who sends more than one tape or
recording to DHS must identify each tape or recording on which the person
believes an incident of abuse or evidence of neglect may be found. Tapes or
recordings should identify the place on the tape or recording that an incident
of abuse or evidence of neglect may be found.
