12 Va. Admin. Code § 5-371-191 - Electronic monitoring in resident rooms
A. All requests for electronic monitoring
shall be made in writing and signed by the resident or legal representative if
the resident has been properly assessed incapable of requesting and authorizing
the monitoring .
B. Only electronic
monitoring in accordance with this section is permitted.
C. A nursing facility shall not refuse to
admit an individual and shall not discharge or transfer a resident due to a
request to conduct authorized electronic monitoring.
D. Family members cannot obtain electronic
monitoring over the objections of the resident, the resident's roommate, or the
resident's legal representative. No equipment may be installed pursuant to
subsection Q of this section over the objections of the resident or legal
representative. Nursing facilities shall not use monitoring equipment in
violation of the law based solely on a family member's request or
approval.
E. Consent for electronic
monitoring shall be kept in the resident's medical record.
F. Nursing facilities shall designate one
staff person to be responsible for managing the electronic monitoring
program.
G. Nursing facilities may
designate custodial ownership of any recordings from monitoring devices to the
resident or legal representative. Nursing facility retained recordings shall be
considered part of the resident's medical record and shall be retained for no
less than two years or as required by state and federal laws.
H. If a nursing facility chooses to retain
ownership of recordings, the nursing facility shall not permit viewings of
recordings without consent of the resident or legal representative except to
the extent that disclosure is required by law through a court order or pursuant
to a lawful subpoena duces tecum. Should the resident or legal representative
approve viewing, the nursing facility shall accommodate viewing of any
recordings in a timely manner, including providing:
1. Appropriate playing or viewing
equipment;
2. Privacy during
viewing; and
3. Viewing times
convenient to the resident or legal representative .
If unauthorized viewing is discovered, the nursing
I. A
nursing facility shall require its staff to report any incidents regarding
safety or quality of care discovered as a result of viewing a recording
immediately to the administrator and to the OLC. Nursing facilities shall
instruct the resident or legal representative of this reporting requirement and
shall provide the resident or legal representative with the OLC's complaint
hotline telephone number.
J. A
nursing facility shall have no obligation to seek access to a recording in its
possession or to have knowledge of a recording's content, unless the nursing
facility is aware of a recorded incident of suspected abuse, neglect, accident,
or injury, or the resident, legal representative, or a government agency seeks
to use a recording. Nursing facilities shall immediately report suspected abuse
and neglect discovered as a result of using monitoring devices, as required by
law.
K. A nursing facility may
require the resident or legal representative to be responsible for all aspects
of the operation of the monitoring equipment, including the removal and
replacement of recordings; adherence to local, state, and federal privacy laws;
and for firewall protections to prevent images that would violate obscenity
laws from being inadvertently shown on the Internet.
L. A nursing facility shall prohibit assigned
staff from refusing to enter a resident's room solely because of electronic
monitoring.
M. Any electronic
monitoring equipment shall be installed in a manner that is safe for residents,
employees, or visitors who may be moving about the resident's room.
N. A nursing facility shall make reasonable
physical accommodation for monitoring equipment, including:
1. Providing a reasonably secure place to
mount the device; and
2. Providing
access to power sources for the device.
O. A nursing facility may require a resident
or legal representative to pay for all costs, other than the cost of
electricity, associated with installing electronic monitoring equipment. Such
costs shall be reasonable and may include equipment, recording media and
installation, compliance with life safety and building and electrical codes,
maintenance or removal of the equipment, posting and removal of any public
notices, or structural repairs to the building resulting from the removal of
the equipment. Nursing facilities shall give 45 days' notice of an increase in
monthly monitoring fees.
P. Any
equipment installed for the purpose of monitoring a resident's room shall be
fixed and unable to rotate.
Q. The
informed consent of all residents or residents' legal representatives assigned
to the monitored room shall be obtained prior to any electronic monitoring
equipment being installed.
R. A
copy of any signed consent form shall be kept in the resident 's medical record
as well as on file with the nursing facility 's designated electronic monitoring
coordinator.
S. Any resident or
legal representative of a resident of a monitored room may condition consent
for use of monitoring devices. Such conditions may include pointing the camera
away or limiting or prohibiting the use of certain devices. If conditions are
placed on consent, then electronic monitoring shall be conducted according to
those conditions.
T. The nursing
facility shall conspicuously post and maintain a notice at the entrance to the
resident's room stating that an electronic monitoring device is in
operation.
U. Nursing facilities
shall notify all staff and the long-term care division of the OLC that
electronic monitoring is in use.
V.
A nursing facility shall prohibit staff from covert monitoring in violation of
this chapter. Nursing facilities shall instruct the resident or legal
representative of this prohibition and shall provide the resident or legal
representative with the OLC's complaint hotline telephone number.
W. If covert monitoring is discovered, the
nursing facility shall report any such violation to the Office of Long-Term
Care Ombudsman and OLC, and the nursing facility may require a resident or
legal representative to meet all the requirements for authorized monitoring, if
permitted by the nursing facility .
X. Each nursing facility , including those
that choose not to offer electronic monitoring, shall adopt policies and
procedures for electronic monitoring. These policies and procedures shall
address all the elements of this section.
Y. A nursing facility shall prohibit staff
from tampering with electronic monitoring in violation of this chapter. Nursing
facilities shall instruct the resident or legal representative of this
prohibition and shall provide the resident or legal representative with the
OLC's complaint hotline telephone number.
Notes
Statutory Authority: §§ 32.1-12 and 32.1-127 of the Code of Virginia.
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