HBA-DMH C.S.S.B. 177 77(R)    BILL ANALYSIS


Office of House Bill AnalysisC.S.S.B. 177
By: Madla
Human Services
5/3/2001
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Currently under state law, there is no provision allowing for the audio or
video monitoring of a resident's room in a convalescent home, nursing home,
or related institution by a resident or the resident's guardian or legal
representative (representative).  C.S.S.B. 177 gives a resident or the
resident's representative the right to place an electronic monitoring
device in the resident's room and sets forth guidelines for both the
resident and the convalescent home, nursing home, or related institution to
follow in relation to such monitoring.  

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated  to the Texas Department of Human Services
in SECTION 1 (Sections 242.844-242.847, 242.849 and 242.850, Health and
Safety Code) of this bill. 

ANALYSIS

C.S.S.B. 177 amends the Health and Safety Code to require a convalescent
home, nursing home, or related institution (institution) to permit a
resident or the resident's guardian or legal representative
(representative) to monitor the room of the resident through the use of
electronic monitoring devices. The bill requires the  institution to
require a resident who conducts authorized electronic monitoring or the
resident's representative to post and maintain a conspicuous notice at the
entrance to the resident's room, stating that the room is being monitored
by an electronic monitoring device (Sec. 242.847).  

The bill provides that authorized electronic monitoring is not compulsory
and may be conducted only at the request of the resident or the resident's
representative. The bill prohibits an institution from refusing to admit an
individual to residency in the institution and from removing a resident
from the institution because of a request to conduct authorized electronic
monitoring.  The bill prohibits an institution from removing a resident
because covert electronic monitoring is being conducted by or on behalf of
a resident.  The bill requires an institution to make reasonable physical
accommodation to facilitate the authorized electronic monitoring.  The bill
provides that the resident or the resident's representative must pay for
all costs associated with conducting electronic monitoring, other than the
costs of electricity. The bill provides that the resident or the resident's
representative is responsible for the costs of installation and the
maintenance of the equipment.  The bill authorizes an institution to
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. The bill authorizes the Texas Department of Human Services (DHS) to
adopt rules regarding the safe placement of an electronic monitoring
device.  If authorized electronic monitoring is conducted, the bill
authorizes the institution to require the resident or the resident's
representative to conduct the electronic monitoring in plain view.  An
institution may but is not required to place a resident in a different room
to accommodate a request to conduct authorized electronic monitoring (Sec.
242.847).  

The bill establishes requirements for the duty to report incidents of abuse
or neglect as evidenced on a tape or recording, including a time period
after which a person conducting electronic monitoring or a person given a
tape by a resident is considered to have viewed or listened to a tape or
recording made by the  electronic monitoring device.  If abuse or neglect
of the resident is reported to the institution and the institution requests
a copy of any relevant tape or recording made by an electronic monitoring
device, the bill requires the person who possesses the tape or recording to
provide the institution with a copy at the institution's expense (Sec.
242.848). 

The bill requires DHS by rule to prescribe a form regarding electronic
monitoring that must be completed and signed on a resident's admission to
an institution by or on behalf of the resident and provides for the
contents of the form (Sec. 242.844). The bill sets forth provisions for who
may request electronic monitoring of a residents room, and requires DHS by
rule to prescribe guidelines related to a resident's capacity and to who
may be considered to be a resident's representative.  The bill establishes
circumstances under which placement and use of an electronic monitoring
device is considered to be covert and prohibits DHS and the institution
from being held civilly liable in connection with the covert placement or
use of an electronic monitoring device in the room of a resident (Sec.
242.843). 

The bill provides that a resident or a resident's representative who wishes
to conduct authorized electronic monitoring must make the request to the
institution on a form prescribed by DHS. The bill establishes provisions
related to consent of other residents in the room to electronic monitoring.
The bill provides what the request and consent forms prescribed by DHS must
and may require.  The bill authorizes DHS to adopt rules prescribing the
place or places that a signed form must be maintained and  the period for
which it must be maintained.  The bill prohibits authorized electronic
monitoring from commencing until all request and consent forms have been
completed and returned to the institution and provides that electronic
monitoring 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 (Sec. 242.846). 

The bill authorizes a tape or recording created through the use of covert
or authorized electronic monitoring to be admitted into evidence in a civil
or criminal court action or administrative proceeding, subject to
applicable rules of evidence and procedure and the requirements set forth
in the bill.  The bill requires a person who sends more than one tape or
recording to DHS to identify each tape or recording on which the person
believes that an incident of abuse or evidence of neglect may be found.
The bill authorizes DHS to adopt rules encouraging persons who send a tape
or recording to DHS to identify the place on the tape or recording that an
incident of abuse or evidence of neglect may be found (Sec. 242.849).  The
bill requires each institution to post a notice at the entrance to the
institution stating that the rooms of some of the residents may be being
monitored electronically by or on behalf of the residents and that the
monitoring is not necessarily open and obvious.  The bill requires DHS by
rule to prescribe the format and the precise content of the notice (Sec.
242.850). 

The bill authorizes DHS to impose appropriate sanctions on an administrator
of an institution who knowingly inhibits the implementation of or violates
these provisions and to assess an administrative penalty against an
institution that inhibits the implementation of or violates these
provisions (Sec. 242.851).  The bill sets forth provisions related to civil
and criminal liability and  provides that intentionally hampering,
obstructing, tampering with, or destroying an electronic monitoring device
is a Class B misdemeanor (Secs. 242.842 and 242.852). 

The bill requires the long-term care legislative oversight committee
(committee) to monitor the implementation of provisions regarding the
electronic monitoring of a resident's room and to study the impact of that
law on DHS, institutions, and residents (Sec. 242.653).  The bill requires
DHS to  devise a procedure under which current residents of institutions
or, when appropriate, another person on a resident's behalf, are encouraged
to sign the form that is required to be signed on admission (SECTION 4).  

The bill includes the resident's right to place in the resident's room an
electronic monitoring device that is owned and operated by the resident or
provided by the resident's representative in the statement of rights
adopted by DHS by rule (Sec. 242.501). 


 EFFECTIVE DATE

On passage, or if the Act does not receive the necessary vote, the Act
takes effect September 1, 2001. 

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.S.B. 177 differs from the original bill by requiring each convalescent
home, nursing home, or related institution (institution) to post a notice
at the entrance to the institution stating that the rooms of some residents
may be being monitored electronically by or on behalf of the residents and
that the monitoring is not necessarily open and obvious.  The substitute
requires the Texas Department of Human Services (DHS) by rule to prescribe
the format and the precise content of the notice (Sec. 242.850).  The
substitute prohibits an institution from removing a resident from the
institution because covert electronic monitoring is being conducted by or
on behalf of a resident and authorizes DHS to impose appropriate sanctions
or penalties against an administrator of an institution or an institution
for allowing a resident to be removed from an institution because of covert
electronic monitoring (Secs. 242.847 and 242.851)