12 Va. Admin. Code § 5-371-191

Current through Register Vol. 41, No. 4, October 8, 2024

Section 12VAC5-371-191 - 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 facility shall report any such violation to the Office of Long-Term Care Ombudsman and to the OLC.

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.

12 Va. Admin. Code § 5-371-191

Derived From Virginia Register Volume 31, Issue 22, eff. 8/29/2015; Derived From Virginia Register Volume 35, Issue 05, eff. 12/13/2018; Amended, Virginia Register Volume 37, Issue 17, eff. 5/27/2021.

Statutory Authority: §§ 32.1-12 and 32.1-127 of the Code of Virginia.