| (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.
(5) A resident, or the resident's guardian or legal
representative, who wishes to conduct AEM must also obtain the consent
of other residents in the room, using the HHSC 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.
(A) Consent to AEM may be given only by:
(i) the other resident or residents in the room;
(ii) the guardian of the other resident, if the resident
has been judicially declared to lack the required capacity; or
(iii) the legal representative of the other resident,
determined by following the same procedure established under paragraph
(4)(C) of this subsection.
(B) Another resident in the room may condition consent
on:
(i) pointing the camera away from the consenting resident,
when the proposed electronic monitoring is a video surveillance camera;
and
(ii) limiting or prohibiting the use of an audio electronic
monitoring device.
(C) 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.
(D) 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.
(6) When the completed HHSC Request for Authorized
Electronic Monitoring form and the HHSC Consent to Authorized Electronic
Monitoring form, if applicable, have been given to the manager or
designee, AEM may begin.
(A) 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.
(B) 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.
(C) The facility must meet residents' requests to have
a video camera obstructed to protect their dignity.
(D) The facility must make reasonable physical accommodation
for AEM, which includes providing:
(i) a reasonably secure place to mount the video surveillance
camera or other electronic monitoring device; and
(ii) access to power sources for the video surveillance
camera or other electronic monitoring device.
(7) 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."
(8) A facility may:
(A) 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;
(B) require AEM to be conducted in plain view; and
(C) place a resident in a different room to accommodate
a request for AEM.
(9) 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 §553.3 of this
chapter (relating to Definitions), the resident must meet all the
requirements for AEM before monitoring is allowed to continue.
(10) All instances of abuse or neglect must be reported
to HHSC, as required by §553.273 of this subchapter (relating
to Abuse, Neglect, or Exploitation Reportable to HHSC by Facilities).
For purposes of the duty to report abuse or neglect, the following
apply.
(A) A person who is conducting electronic monitoring
on behalf of a resident is considered to have viewed or listened to
a recording made by the electronic monitoring device on or before
the 14th day after the date the recording is made.
(B) If a resident, who has capacity to determine that
the resident has been abused or neglected and who is conducting electronic
monitoring, gives a recording made by the electronic monitoring device
to a person and directs the person to view or listen to the recording
to determine whether abuse or neglect has occurred, the person to
whom the resident gives the recording is considered to have viewed
or listened to the recording on or before the seventh day after the
date the person receives the recording.
(C) A person is required to report abuse based on the
person's viewing of or listening to a recording only if the incident
of abuse is acquired on the recording. A person is required to report
neglect based on the person's viewing of or listening to a recording
only if it is clear from viewing or listening to the recording that
neglect has occurred.
(D) If abuse or neglect of the resident is reported
to the facility and the facility requests a copy of any relevant recording
made by an electronic monitoring device, the person who possesses
the 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 recording are transferred from the original
technological format, a qualified professional must do the transfer.
(E) A person who sends more than one recording to HHSC
must identify each 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 recording that an incident of abuse
or evidence of neglect may be found.
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