(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 electronic 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 October 1, 2004. A copy of the form
must be maintained in the active portion of the resident's
clinical record.
(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 manager or
designee. A copy of the form must be maintained in the
active portion of the resident's clinical record. |
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(1) If a resident has the
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 the 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. |
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(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 the 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: |
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(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 manager or designee. A copy of the form must be
maintained in the active portion of the resident's clinical
record. AEM cannot be conducted without the consent of other
residents in the room. |
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(1) Consent to AEM may be given
only by: |
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(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
subsection (d)(3) of this section. |
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(2) Another resident in the room
may condition consent on: |
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(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. |
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(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, or the
roommate's 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 DHS
Request for Authorized Electronic Monitoring form and the
DHS Consent to Authorized Electronic Monitoring form, if
applicable, have been given to the manager or designee, AEM
may begin. |
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(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: |
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(A) a reasonably secure place to
mount the video surveillance camera or other electronic
monitoring device; and
(B) access to power |
(g) All facilities, regardless
of whether AEM is being conducted, must post an 8 1/2-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: |
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(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; and
(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 §92.3 of this chapter (relating
to Definitions), the resident must meet all the requirements
for AEM before monitoring is allowed to continue.
(j) All instances of abuse or neglect must be reported to
DHS, as required by §92.102 of this chapter (relating to
Abuse, Neglect, or Exploitation Reportable to the Texas
Department of Human Services (DHS) by Facilities). For
purposes of the duty to report abuse or neglect, the
following apply: |
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(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. |
