12VAC5-371-191. Electronic monitoring in resident rooms.

A. Each nursing facility shall adopt policies and procedures for electronic monitoring in the facility. Such policies and procedures shall include, but are not limited to:

1. Identification of the designated staff person responsible for handling requests for electronic monitoring and for coordinating the installation, operation, and dismantling of all equipment;

2. An outline of the resident or resident's legal representative's responsibility for electronic monitoring operations, such as the removal and replacement of tapes, and for implementing privacy protections or unauthorized dissemination of the recordings;

3. An outline of the costs the facility may charge the resident or the resident's legal representative for electronic monitoring. Such costs shall be reasonable and may include reimbursement costs for equipment and tapes, installation, compliance with the life safety code and the building and electrical codes, maintenance or removal of the equipment, posting and removing public notices, or structural repairs to the building resulting from the removal of the equipment;

4. The process for handling covert monitoring, if discovered;

5. The process for maintaining recordings or tapes, including the designation of custodial ownership and the storage location of the tapes;

6. The process the resident or resident's legal representative should follow to report untoward or questionable incidences regarding health, safety, or quality of care that is discovered through electronic monitoring to the facility administration and the OLC, including the OLC's Complaint Hotline telephone number; and

7. The process for residents, legal representatives, or staff to report suspected abuse, neglect, accident, or injury that is discovered through electronic monitoring.

B. Residents and legal representatives of residents shall be notified of the facility's policies and procedures for electronic monitoring upon admission and annually thereafter.

C. All requests for electronic monitoring shall be made in writing and signed by the resident or the resident's legal representative if the resident has been properly assessed incapable of requesting and authorizing the monitoring. Family members cannot insist on monitoring over the objections of the resident or the resident's roommate.

D. Residents and legal representatives of residents, if applicable, shall be fully informed of the right of a resident to implement electronic monitoring in the room in which he resides, the right of any resident to consent or refuse to consent to electronic monitoring in any room in which he resides, and the options available to any resident in cases in which he refuses to consent to electronic monitoring in any room in which he resides, including transfer to another room. The informed consent of all residents assigned to the monitored room must be obtained prior to installation of electronic monitoring equipment. A copy of the signed consent of all residents assigned to the monitored room shall be kept in each resident's respective medical record and with the staff person designated in subsection A of this section. All residents assigned to the monitored room shall be permitted to impose conditions for consent to electronic monitoring.

E. Electronic monitoring equipment shall be installed in a manner that is safe for residents, staff, or visitors. The equipment shall be fixed and unable to rotate. Facilities shall make reasonable physical accommodation for the monitoring equipment, including providing a reasonably secure place to mount the device and access to power sources for the device.

F. The 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. Facilities shall notify all staff and their OLC Long Term Care Supervisor that electronic monitoring is in use.

G. Only authorized monitoring is permitted. Covert monitoring is prohibited by law. Any monitoring of oral communication is subject to both federal and state wiretap laws and requires additional privacy protections to be in place.

H. Facilities shall have the option of retaining ownership of the recordings. If the facility chooses to retain ownership of the recordings, the recordings shall become part of the resident's medical record and the facility shall:

1. Accommodate family viewing of any recording, including but not limited to:

a. Providing appropriate playing or viewing equipment;

b. Privacy during viewing; and

c. Viewing times that are convenient to the resident's family.

2. Make the recordings available in accordance with all state and federal regulations that pertain to medical records.

I. A nursing facility shall not refuse to admit an individual and shall not discharge or transfer a resident solely because he has requested to implement or has implemented electronic monitoring in any room in which he resides, in accordance with this chapter, because the facility has discovered covert monitoring on the part of the resident or the resident's legal representative, or because he refuses to consent to electronic monitoring in any room in which he resides.