HBA-DMH S.B. 177 77(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 177 By: Madla Human Services 4/20/2001 Engrossed BACKGROUND AND PURPOSE Currently under state law, there is no provision allowing for the audio or video monitoring of a resident's room in a nursing home facility by a resident or the resident's guardian or legal representative (representative). Senate Bill 177 gives a resident or the resident's representative the right to place an electronic monitoring device in the resident's room and sets forth guidelines for both the resident and the convalescent home, nursing home, or related institution to follow in relation to such monitoring. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Texas Department of Human Services in SECTION 1 (Section 242.844-242.847 and 242.849 Health and Safety Code) of this bill. ANALYSIS Senate Bill 177 amends the Health and Safety Code to require a convalescent home, nursing home, or related institution (institution) to permit a resident or the resident's guardian or legal representative (representative) to monitor the room of the resident through the use of electronic monitoring devices. The bill requires the institution to require a resident who conducts authorized electronic monitoring or the resident's representative to post and maintain a conspicuous notice at the entrance to the resident's room, stating that the room is being monitored by an electronic monitoring device (Section 242.847). The bill provides that authorized electronic monitoring is not compulsory and may be conducted only at the request of the resident or the resident's representative. The bill prohibits an institution from refusing to admit an individual to residency in the institution and from removing a resident from the institution because of a request to conduct authorized electronic monitoring. The bill requires an institution to make reasonable physical accommodation to facilitate the authorized electronic monitoring. The bill provides that the resident or the resident's representative must pay for all costs associated with conducting electronic monitoring, other than the costs of electricity. The bill provides that the resident or the resident's representative is responsible for the costs of installation and the maintenance of the equipment. The bill authorizes an institution to 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. The bill authorizes the Texas Department of Human Services (DHS) to adopt rules regarding the safe placement of an electronic monitoring device. If authorized electronic monitoring is conducted, the bill authorizes the institution to require the resident or the resident's representative to conduct the electronic monitoring in plain view. An institution may but is not required to place a resident in a different room to accommodate a request to conduct authorized electronic monitoring (Sec. 242.847). The bill establishes requirements for the duty to report incidents of abuse or neglect as evidenced on a tape or recording, including a time period after which a resident's representative conducting electronic monitoring or a person given a tape by a resident is considered to have viewed or listened to a tape or recording made by the electronic monitoring device. If abuse or neglect of the resident is reported to the institution and the institution requests a copy of any relevant tape or recording made by an electronic monitoring device, the bill requires the person who possesses the tape or recording to provide the institution with a copy at the institution's expense (Sec. 242.848). The bill requires DHS by rule to prescribe a form regarding electronic monitoring that must be completed and signed on a resident's admission to an institution by or on behalf of the resident and provides for the contents of the form (Sec. 242.844). The bill sets forth provisions for who may request electronic monitoring of a residents room, and requires DHS by rule to prescribe guidelines related to a resident's capacity and to who may be considered to be a resident's representative. The bill establishes circumstances under which placement and use of an electronic monitoring device is considered to be covert and prohibits DHS and the institution from being held civilly liable in connection with the covert placement or use of an electronic monitoring device in the room of a resident (Sec. 242.843). The bill provides that a resident or a resident's representative who wishes to conduct authorized electronic monitoring must make the request to the institution on a form prescribed by DHS. The bill establishes provisions related to consent of other residents in the room to electronic monitoring. The bill provides what the request and consent forms prescribed by DHS must and may require. The bill authorizes DHS to adopt rules prescribing the place or places that a signed form must be maintained and the period for which it must be maintained. The bill prohibits authorized electronic monitoring from commencing until all request and consent forms have been completed and returned to the institution and provides that electronic monitoring 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 (Sec. 242.846). The bill authorizes a tape or recording created through the use of covert or authorized electronic monitoring to be admitted into evidence in a civil or criminal court action or administrative proceeding, subject to applicable rules of evidence and procedure and the requirements set forth in the bill. The bill requires a person who sends more than one tape or recording to DHS to identify each tape or recording on which the person believes that an incident of abuse or evidence of neglect may be found. The bill authorizes DHS to adopt rules encouraging persons who send a tape or recording to DHS to identify the place on the tape or recording that an incident of abuse or evidence of neglect may be found (Sec. 242.849). The bill authorizes DHS to impose appropriate sanctions on an administrator of an institution who knowingly inhibits the implementation of or violates these provisions and to assess an administrative penalty against an institution that inhibits the implementation of or violates these provisions (Sec. 242.850). The bill sets forth provisions related to civil and criminal liability and provides that intentionally hampering, obstructing, tampering with, or destroying an electronic monitoring device is a Class B misdemeanor (Secs. 242.842 and 242.851). The bill requires the long-term care legislative oversight committee (committee) to monitor the implementation of provisions regarding the electronic monitoring of a resident's room and to study the impact of that law on DHS, institutions, and residents (Sec. 242.653). The bill requires DHS to devise a procedure under which current residents of institutions or, when appropriate, another person on a resident's behalf, are encouraged to sign the form that is required to be signed on admission (SECTION 4). The bill includes the resident's right to place in the resident's room an electronic monitoring device that is owned and operated by the resident or provided by the resident's guardian or legal representative in the statement of rights adopted by DHS rule (Sec. 242.501). EFFECTIVE DATE On passage, or if the Act does not receive the necessary vote, the Act takes effect September 1, 2001.