By:  Madla, Moncrief                                   S.B. No. 177
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to electronic monitoring devices in the rooms of residents
 1-3     of convalescent or nursing homes or related institutions; providing
 1-4     a criminal penalty.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6           SECTION 1.  Chapter 242, Health and Safety Code, is amended
 1-7     by adding Subchapter R to read as follows:
 1-8           SUBCHAPTER R.  ELECTRONIC MONITORING OF RESIDENT'S ROOM
 1-9           Sec. 242.841.  DEFINITIONS.  In this subchapter:
1-10                 (1)  "Authorized electronic monitoring" means the
1-11     placement of an electronic monitoring device in the room of a
1-12     resident of an institution and making tapes or recordings with the
1-13     device after making a request to the institution to allow
1-14     electronic monitoring.
1-15                 (2)  "Electronic monitoring device":
1-16                       (A)  includes:
1-17                             (i)  video surveillance cameras installed
1-18     in the room of a resident; and
1-19                             (ii)  audio devices installed in the room
1-20     of a resident designed to acquire communications or other sounds
1-21     occurring in the room; and
1-22                       (B)  does not include an electronic, mechanical,
1-23     or other device that is specifically used for the nonconsensual
1-24     interception of wire or electronic communications.
1-25           Sec. 242.842.  CRIMINAL AND CIVIL LIABILITY.  (a)  It is a
 2-1     defense to prosecution under Section 16.02, Penal Code, or any
 2-2     other statute of this state under which it is an offense to
 2-3     intercept a communication or disclose or use an intercepted
 2-4     communication, that the communication was intercepted by an
 2-5     electronic monitoring device placed in the room of a resident of an
 2-6     institution.
 2-7           (b)  This subchapter does not affect whether a person may be
 2-8     held to be civilly liable under other law in connection with
 2-9     placing an electronic monitoring device in the room of a resident
2-10     of an institution or in connection with using or disclosing a tape
2-11     or recording made by the device except:
2-12                 (1)  as specifically provided by this subchapter; or
2-13                 (2)  to the extent that liability is affected by:
2-14                       (A)  a consent or waiver signed under this
2-15     subchapter; or
2-16                       (B)  the fact that authorized electronic
2-17     monitoring is required to be conducted with notice to persons who
2-18     enter a resident's room.
2-19           (c)  A communication or other sound acquired by an audio
2-20     electronic monitoring device installed under the provisions of this
2-21     subchapter concerning authorized electronic monitoring is not
2-22     considered to be:
2-23                 (1)  an oral communication as defined by Section 1,
2-24     Article 18.20, Code of Criminal Procedure; or
2-25                 (2)  a communication as defined by Section 123.001,
2-26     Civil Practice and Remedies Code.
 3-1           Sec. 242.843.  COVERT USE OF ELECTRONIC MONITORING DEVICE;
 3-2     LIABILITY OF DEPARTMENT OR INSTITUTION.  (a)  For purposes of this
 3-3     subchapter, the placement and use of an electronic monitoring
 3-4     device in the room of a resident is considered to be covert if:
 3-5                 (1)  the placement and use of the device is not open
 3-6     and obvious; and
 3-7                 (2)  the institution and the department are not
 3-8     informed about the device by the resident, by a person who placed
 3-9     the device in the room, or by a person who is using the device.
3-10           (b)  The department and the institution may not be held to be
3-11     civilly liable in connection with the covert placement or use of an
3-12     electronic monitoring device in the room of a resident.
3-13           Sec. 242.844.  REQUIRED FORM ON ADMISSION.  The department by
3-14     rule shall prescribe a form that must be completed and signed on a
3-15     resident's admission to an institution by or on behalf of the
3-16     resident.  The form must state:
3-17                 (1)  that a person who places an electronic monitoring
3-18     device in the room of a resident or who uses or discloses a tape or
3-19     other recording made by the device may be civilly liable for any
3-20     unlawful violation of the privacy rights of another;
3-21                 (2)  that a person who covertly places an electronic
3-22     monitoring device in the room of a resident or who consents to or
3-23     acquiesces in the covert placement of the device in the room of a
3-24     resident has waived any privacy right the person may have had in
3-25     connection with images or sounds that may be acquired by the
3-26     device;
 4-1                 (3)  that a resident or the resident's guardian or
 4-2     legal representative is entitled to conduct authorized electronic
 4-3     monitoring under Subchapter R, Chapter 242, Health and Safety Code,
 4-4     and that if the institution refuses to permit the electronic
 4-5     monitoring or fails to make reasonable physical accommodations for
 4-6     the authorized electronic monitoring that the person should contact
 4-7     the Texas Department of Human Services;
 4-8                 (4)  the basic procedures that must be followed to
 4-9     request authorized electronic monitoring;
4-10                 (5)  the manner in which this chapter affects the legal
4-11     requirement to report abuse or neglect when electronic monitoring
4-12     is being conducted; and
4-13                 (6)  any other information regarding covert or
4-14     authorized electronic monitoring that the department considers
4-15     advisable to include on the form.
4-16           Sec. 242.845.  AUTHORIZED ELECTRONIC MONITORING:  WHO MAY
4-17     REQUEST.  (a)  If a resident has capacity to request electronic
4-18     monitoring and has not been judicially declared to lack the
4-19     required capacity, only the resident may request authorized
4-20     electronic monitoring under this subchapter, notwithstanding the
4-21     terms of any durable power of attorney or similar instrument.
4-22           (b)  If a resident has been judicially declared to lack the
4-23     capacity required for taking an action such as requesting
4-24     electronic monitoring, only the guardian of the resident may
4-25     request electronic monitoring under this subchapter.
4-26           (c)  If a resident does not have capacity to request
 5-1     electronic monitoring but has not been judicially declared to lack
 5-2     the required capacity, only the legal representative of the
 5-3     resident may request electronic monitoring under this subchapter.
 5-4     The department by rule shall prescribe:
 5-5                 (1)  guidelines that will assist institutions, family
 5-6     members of residents, advocates for residents, and other interested
 5-7     persons to determine when a resident lacks the required capacity;
 5-8     and
 5-9                 (2)  who may be considered to be a resident's legal
5-10     representative for purposes of this subchapter, including:
5-11                       (A)  persons who may be considered the legal
5-12     representative under the terms of an instrument executed by the
5-13     resident when the resident had capacity; and
5-14                       (B)  persons who may become the legal
5-15     representative for the limited purpose of this subchapter under a
5-16     procedure prescribed by the department.
5-17           Sec. 242.846.  AUTHORIZED ELECTRONIC MONITORING:  FORM OF
5-18     REQUEST; CONSENT OF OTHER RESIDENTS IN ROOM.  (a)  A resident or
5-19     the guardian or legal representative of a resident who wishes to
5-20     conduct authorized electronic monitoring must make the request to
5-21     the institution on a form prescribed by the department.
5-22           (b)  The form prescribed by the department must require the
5-23     resident or the resident's guardian or legal representative to:
5-24                 (1)  release the institution from any civil liability
5-25     for a violation of the resident's privacy rights in connection with
5-26     the use of the electronic monitoring device;
 6-1                 (2)  choose, when the electronic monitoring device is a
 6-2     video surveillance camera, whether the camera will always be
 6-3     unobstructed or whether the camera should be obstructed in
 6-4     specified circumstances to protect the dignity of the resident; and
 6-5                 (3)  obtain the consent of other residents in the room,
 6-6     using a form prescribed for this purpose by the department, if the
 6-7     resident resides in a multiperson room.
 6-8           (c)  Consent under Subsection (b)(3) may be given only:
 6-9                 (1)  by the other resident or residents in the room;
6-10                 (2)  by the guardian of a person described by
6-11     Subdivision (1), if the person has been judicially declared to lack
6-12     the required capacity; or
6-13                 (3)  by the legal representative who under Section
6-14     242.845(c) may request electronic monitoring on behalf of a person
6-15     described by Subdivision (1), if the person does not have capacity
6-16     to sign the form but has not been judicially declared to lack the
6-17     required capacity.
6-18           (d)  The form prescribed by the department under Subsection
6-19     (b)(3) must condition the consent of another resident in the room
6-20     on the other resident also releasing the institution from any civil
6-21     liability for a violation of the person's privacy rights in
6-22     connection with the use of the electronic monitoring device.
6-23           (e)  Another resident in the room may:
6-24                 (1)  when the proposed electronic monitoring device is
6-25     a video surveillance camera, condition consent on the camera being
6-26     pointed away from the consenting resident; and
 7-1                 (2)  condition consent on the use of an audio
 7-2     electronic monitoring device being limited or prohibited.
 7-3           (f)  If authorized electronic monitoring is being conducted
 7-4     in the room of a resident and another resident is moved into the
 7-5     room who has not yet consented to the electronic monitoring,
 7-6     authorized electronic monitoring must cease until the new resident
 7-7     has consented in accordance with this section.
 7-8           (g)  The department may include other information that the
 7-9     department considers to be appropriate on either of the forms that
7-10     the department is required to prescribe under this section.
7-11           (h)  The department may adopt rules prescribing the place or
7-12     places that a form signed under this section must be maintained and
7-13     the period for which it must be maintained.
7-14           (i)  Authorized electronic monitoring:
7-15                 (1)  may not commence until all request and consent
7-16     forms required by this section have been completed and returned to
7-17     the institution; and
7-18                 (2)  must be conducted in accordance with any
7-19     limitation placed on the monitoring as a condition of the consent
7-20     given by or on behalf of another resident in the room.
7-21           Sec. 242.847.  AUTHORIZED ELECTRONIC MONITORING:  GENERAL
7-22     PROVISIONS.  (a)  An institution shall permit a resident or the
7-23     resident's guardian or legal representative to monitor the room of
7-24     the resident through the use of electronic monitoring devices.
7-25           (b)  The institution shall require a resident who conducts
7-26     authorized electronic monitoring or the resident's guardian or
 8-1     legal representative to post and maintain a conspicuous notice at
 8-2     the entrance to the resident's room.  The notice must state that
 8-3     the room is being monitored by an electronic monitoring device.
 8-4           (c)  Authorized electronic monitoring conducted under this
 8-5     subchapter is not compulsory and may be conducted only at the
 8-6     request of the resident or the resident's guardian or legal
 8-7     representative.
 8-8           (d)  An institution may not refuse to admit an individual to
 8-9     residency in the institution and may not remove a resident from the
8-10     institution because of a request to conduct authorized electronic
8-11     monitoring.
8-12           (e)  An institution shall make reasonable physical
8-13     accommodation for authorized electronic monitoring, including:
8-14                 (1)  providing a reasonably secure place to mount the
8-15     video surveillance camera or other electronic monitoring device;
8-16     and
8-17                 (2)  providing access to power sources for the video
8-18     surveillance camera or other electronic monitoring device.
8-19           (f)  The resident or the resident's guardian or legal
8-20     representative must pay for all costs associated with conducting
8-21     electronic monitoring, other than the costs of electricity.  The
8-22     resident or the resident's guardian or legal representative is
8-23     responsible for:
8-24                 (1)  all costs associated with installation of
8-25     equipment; and
8-26                 (2)  maintaining the equipment.
 9-1           (g)  An institution may require an electronic monitoring
 9-2     device to be installed in a manner that is safe for residents,
 9-3     employees, or visitors who may be moving about the room.  The
 9-4     department may adopt rules regarding the safe placement of an
 9-5     electronic monitoring device.
 9-6           (h)  If authorized electronic monitoring is conducted, the
 9-7     institution may require the resident or the resident's guardian or
 9-8     legal representative to conduct the electronic monitoring in plain
 9-9     view.
9-10           (i)  An institution may but is not required to place a
9-11     resident in a different room to accommodate a request to conduct
9-12     authorized electronic monitoring.
9-13           Sec. 242.848.  REPORTING ABUSE AND NEGLECT.  (a)  For
9-14     purposes of the duty to report abuse or neglect under Section
9-15     242.122 and the criminal penalty for the failure to report abuse or
9-16     neglect under Section 242.131, the guardian or legal representative
9-17     of a resident on whose behalf the guardian or legal representative
9-18     is conducting electronic monitoring under this subchapter is
9-19     considered to have viewed or listened to a tape or recording made
9-20     by the electronic monitoring device on or before the 14th day after
9-21     the date the tape or recording is made.
9-22           (b)  If a resident who has capacity to determine that the
9-23     resident has been abused or neglected and who is conducting
9-24     electronic monitoring under this subchapter gives a tape or
9-25     recording made by the electronic monitoring device to a person and
9-26     directs the person to view or listen to the tape or recording to
 10-1    determine whether abuse or neglect has occurred, the person to whom
 10-2    the resident gives the tape or recording is considered to have
 10-3    viewed or listened to the tape or recording on or before the
 10-4    seventh day after the date the person receives the tape or
 10-5    recording for purposes of the duty to report abuse or neglect under
 10-6    Section 242.122 and of the criminal penalty for the failure to
 10-7    report abuse or neglect under Section 242.131.
 10-8          (c)  A person is required to report abuse based on the
 10-9    person's viewing of or listening to a tape or recording only if the
10-10    incident of abuse is acquired on the tape or recording.  A person
10-11    is required to report neglect based on the person's viewing of or
10-12    listening to a tape or recording only if it is clear from viewing
10-13    or listening to the tape or recording that neglect has occurred.
10-14          (d)  If abuse or neglect of the resident is reported to the
10-15    institution and the institution requests a copy of any relevant
10-16    tape or recording made by an electronic monitoring device, the
10-17    person who possesses the tape or recording shall provide the
10-18    institution with a copy at the institution's expense.
10-19          Sec. 242.849.  USE OF TAPE OR RECORDING BY AGENCY OR COURT.
10-20    (a)  Subject to applicable rules of evidence and procedure and the
10-21    requirements of this section, a tape or recording created through
10-22    the use of covert or authorized electronic monitoring described by
10-23    this subchapter may be admitted into evidence in a civil or
10-24    criminal court action or administrative proceeding.
10-25          (b)  A court or administrative agency may not admit into
10-26    evidence a tape or recording created through the use of covert or
 11-1    authorized electronic monitoring or take or authorize action based
 11-2    on the tape or recording unless:
 11-3                (1)  if the tape or recording is a video tape or
 11-4    recording, the tape or recording shows the time and date that the
 11-5    events acquired on the tape or recording occurred;
 11-6                (2)  the contents of the tape or recording have not
 11-7    been edited or artificially enhanced; and
 11-8                (3)  if the contents of the tape or recording have been
 11-9    transferred from the original format to another technological
11-10    format, the transfer was done by a qualified professional and the
11-11    contents of the tape or recording were not altered.
11-12          (c)  A person who sends more than one tape or recording to
11-13    the department shall identify for the department each tape or
11-14    recording on which the person believes that an incident of abuse or
11-15    evidence of neglect may be found.  The department may adopt rules
11-16    encouraging persons who send a tape or recording to the department
11-17    to identify the place on the tape or recording that an incident of
11-18    abuse or evidence of neglect may be found.
11-19          Sec. 242.850.  ENFORCEMENT.  (a)  The department may impose
11-20    appropriate sanctions under this chapter on an administrator of an
11-21    institution who knowingly:
11-22                (1)  refuses to permit a resident or the resident's
11-23    guardian or legal representative to conduct authorized electronic
11-24    monitoring;
11-25                (2)  refuses to admit an individual to residency or
11-26    allows the removal of a resident from the institution because of a
 12-1    request to conduct authorized electronic monitoring; or
 12-2                (3)  violates another provision of this subchapter.
 12-3          (b)  The department may assess an administrative penalty
 12-4    under Section 242.066 against an institution that:
 12-5                (1)  refuses to permit a resident or the resident's
 12-6    guardian or legal representative to conduct authorized electronic
 12-7    monitoring;
 12-8                (2)  refuses to admit an individual to residency or
 12-9    allows the removal of a resident from the institution because of a
12-10    request to conduct authorized electronic monitoring; or
12-11                (3)  violates another provision of this subchapter.
12-12          Sec. 242.851.  CRIMINAL OFFENSE.  (a)  A person who
12-13    intentionally hampers, obstructs, tampers with, or destroys an
12-14    electronic monitoring device installed in a resident's room in
12-15    accordance with this subchapter or a tape or recording made by the
12-16    device commits an offense.  An offense under this section is a
12-17    Class B misdemeanor.
12-18          (b)  It is a defense to prosecution under Subsection (a) that
12-19    the person took the action with the effective consent of the
12-20    resident on whose behalf the electronic monitoring device was
12-21    installed or the resident's guardian or legal representative.
12-22          SECTION 2.  Subsection (a), Section 242.501, Health and
12-23    Safety Code, is amended to read as follows:
12-24          (a)  The department by rule shall adopt a statement of the
12-25    rights of a resident.  The statement must be consistent with
12-26    Chapter 102, Human Resources Code, but shall reflect the unique
 13-1    circumstances of a resident at an institution.  At a minimum, the
 13-2    statement of the rights of a resident must address the resident's
 13-3    constitutional, civil, and legal rights and the resident's right:
 13-4                (1)  to be free from abuse and exploitation;
 13-5                (2)  to safe, decent, and clean conditions;
 13-6                (3)  to be treated with courtesy, consideration, and
 13-7    respect;
 13-8                (4)  to not be subjected to discrimination based on
 13-9    age, race, religion, sex, nationality, or disability and to
13-10    practice the resident's own religious beliefs;
13-11                (5)  to place in the resident's room an electronic
13-12    monitoring device that is owned and operated by the resident or
13-13    provided by the resident's guardian or legal representative;
13-14                (6)  to privacy, including privacy during visits and
13-15    telephone calls;
13-16                (7) [(6)]  to complain about the institution and to
13-17    organize or participate in any program that presents residents'
13-18    concerns to the  administrator of the institution;
13-19                (8) [(7)]  to have information about the resident in
13-20    the possession of the institution maintained as confidential;
13-21                (9) [(8)]  to retain the services of a physician the
13-22    resident chooses, at the resident's own expense or through a health
13-23    care plan, and to  have a physician explain to the resident, in
13-24    language that the resident understands, the resident's complete
13-25    medical condition, the recommended treatment, and the expected
13-26    results of the treatment;
 14-1                (10) [(9)]  to participate in developing a plan of
 14-2    care, to refuse treatment, and to refuse to participate in
 14-3    experimental research;
 14-4                (11) [(10)]  to a written statement or admission
 14-5    agreement describing the services provided by the institution and
 14-6    the related charges;
 14-7                (12) [(11)]  to manage the resident's own finances or
 14-8    to delegate that responsibility to another person;
 14-9                (13) [(12)]  to access money and property that the
14-10    resident has deposited with the institution and to an accounting of
14-11    the resident's money  and property that are deposited with the
14-12    institution and of all financial transactions made with or on
14-13    behalf of the resident;
14-14                (14) [(13)]  to keep and use personal property, secure
14-15    from theft or loss;
14-16                (15) [(14)]  to not be relocated within the
14-17    institution, except in accordance with standards adopted by the
14-18    department under Section 242.403;
14-19                (16) [(15)]  to receive visitors;
14-20                (17) [(16)]  to receive unopened mail and to receive
14-21    assistance in reading or writing correspondence;
14-22                (18) [(17)]  to participate in activities inside and
14-23    outside the institution;
14-24                (19) [(18)]  to wear the resident's own clothes;
14-25                (20) [(19)]  to discharge himself or herself from the
14-26    institution unless the resident is an adjudicated mental
 15-1    incompetent;
 15-2                (21) [(20)]  to not be discharged from the institution
 15-3    except as provided in the standards adopted by the department under
 15-4    Section 242.403; and
 15-5                (22) [(21)]  to be free from any physical or chemical
 15-6    restraints imposed for the purposes of discipline or convenience,
 15-7    and not required to treat the resident's medical symptoms.
 15-8          SECTION 3.  Section 242.653, Health and Safety Code, is
 15-9    amended by adding Subsection (f) to read as follows:
15-10          (f)  The committee shall monitor the implementation of
15-11    Subchapter R and study the impact of that law on the department,
15-12    institutions, and residents.
15-13          SECTION 4.  The Texas Department of Human Services shall
15-14    devise a procedure under which current residents of convalescent
15-15    and nursing homes and related institutions, or, when appropriate,
15-16    another person on a resident's behalf, are encouraged to sign the
15-17    form that is required to be signed on admission under Section
15-18    242.844, Health and Safety Code, as added by this Act.
15-19          SECTION 5.  This Act takes effect immediately if it receives
15-20    a vote of two-thirds of all the members elected to each house, as
15-21    provided by Section 39, Article III, Texas Constitution.  If this
15-22    Act does not receive the vote necessary for immediate effect, this
15-23    Act takes effect September 1, 2001.