77R14305 JRD-D
By Madla S.B. No. 177
Substitute the following for S.B. No. 177:
By Naishtat C.S.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.
2-1 Sec. 242.842. CRIMINAL AND CIVIL LIABILITY. (a) It is a
2-2 defense to prosecution under Section 16.02, Penal Code, or any
2-3 other statute of this state under which it is an offense to
2-4 intercept a communication or disclose or use an intercepted
2-5 communication, that the communication was intercepted by an
2-6 electronic monitoring device placed in the room of a resident of an
2-7 institution.
2-8 (b) This subchapter does not affect whether a person may be
2-9 held to be civilly liable under other law in connection with
2-10 placing an electronic monitoring device in the room of a resident
2-11 of an institution or in connection with using or disclosing a tape
2-12 or recording made by the device except:
2-13 (1) as specifically provided by this subchapter; or
2-14 (2) to the extent that liability is affected by:
2-15 (A) a consent or waiver signed under this
2-16 subchapter; or
2-17 (B) the fact that authorized electronic
2-18 monitoring is required to be conducted with notice to persons who
2-19 enter a resident's room.
2-20 (c) A communication or other sound acquired by an audio
2-21 electronic monitoring device installed under the provisions of this
2-22 subchapter concerning authorized electronic monitoring is not
2-23 considered to be:
2-24 (1) an oral communication as defined by Section 1,
2-25 Article 18.20, Code of Criminal Procedure; or
2-26 (2) a communication as defined by Section 123.001,
2-27 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;
3-27 (3) that a resident or the resident's guardian or
4-1 legal representative is entitled to conduct authorized electronic
4-2 monitoring under Subchapter R, Chapter 242, Health and Safety Code,
4-3 and that if the institution refuses to permit the electronic
4-4 monitoring or fails to make reasonable physical accommodations for
4-5 the authorized electronic monitoring that the person should contact
4-6 the Texas Department of Human Services;
4-7 (4) the basic procedures that must be followed to
4-8 request authorized electronic monitoring;
4-9 (5) the manner in which this chapter affects the legal
4-10 requirement to report abuse or neglect when electronic monitoring
4-11 is being conducted; and
4-12 (6) any other information regarding covert or
4-13 authorized electronic monitoring that the department considers
4-14 advisable to include on the form.
4-15 Sec. 242.845. AUTHORIZED ELECTRONIC MONITORING: WHO MAY
4-16 REQUEST. (a) If a resident has capacity to request electronic
4-17 monitoring and has not been judicially declared to lack the
4-18 required capacity, only the resident may request authorized
4-19 electronic monitoring under this subchapter, notwithstanding the
4-20 terms of any durable power of attorney or similar instrument.
4-21 (b) If a resident has been judicially declared to lack the
4-22 capacity required for taking an action such as requesting
4-23 electronic monitoring, only the guardian of the resident may
4-24 request electronic monitoring under this subchapter.
4-25 (c) If a resident does not have capacity to request
4-26 electronic monitoring but has not been judicially declared to lack
4-27 the required capacity, only the legal representative of the
5-1 resident may request electronic monitoring under this subchapter.
5-2 The department by rule shall prescribe:
5-3 (1) guidelines that will assist institutions, family
5-4 members of residents, advocates for residents, and other interested
5-5 persons to determine when a resident lacks the required capacity;
5-6 and
5-7 (2) who may be considered to be a resident's legal
5-8 representative for purposes of this subchapter, including:
5-9 (A) persons who may be considered the legal
5-10 representative under the terms of an instrument executed by the
5-11 resident when the resident had capacity; and
5-12 (B) persons who may become the legal
5-13 representative for the limited purpose of this subchapter under a
5-14 procedure prescribed by the department.
5-15 Sec. 242.846. AUTHORIZED ELECTRONIC MONITORING: FORM OF
5-16 REQUEST; CONSENT OF OTHER RESIDENTS IN ROOM. (a) A resident or
5-17 the guardian or legal representative of a resident who wishes to
5-18 conduct authorized electronic monitoring must make the request to
5-19 the institution on a form prescribed by the department.
5-20 (b) The form prescribed by the department must require the
5-21 resident or the resident's guardian or legal representative to:
5-22 (1) release the institution from any civil liability
5-23 for a violation of the resident's privacy rights in connection with
5-24 the use of the electronic monitoring device;
5-25 (2) choose, when the electronic monitoring device is a
5-26 video surveillance camera, whether the camera will always be
5-27 unobstructed or whether the camera should be obstructed in
6-1 specified circumstances to protect the dignity of the resident; and
6-2 (3) obtain the consent of other residents in the room,
6-3 using a form prescribed for this purpose by the department, if the
6-4 resident resides in a multiperson room.
6-5 (c) Consent under Subsection (b)(3) may be given only:
6-6 (1) by the other resident or residents in the room;
6-7 (2) by the guardian of a person described by
6-8 Subdivision (1), if the person has been judicially declared to lack
6-9 the required capacity; or
6-10 (3) by the legal representative who under Section
6-11 242.845(c) may request electronic monitoring on behalf of a person
6-12 described by Subdivision (1), if the person does not have capacity
6-13 to sign the form but has not been judicially declared to lack the
6-14 required capacity.
6-15 (d) The form prescribed by the department under Subsection
6-16 (b)(3) must condition the consent of another resident in the room
6-17 on the other resident also releasing the institution from any civil
6-18 liability for a violation of the person's privacy rights in
6-19 connection with the use of the electronic monitoring device.
6-20 (e) Another resident in the room may:
6-21 (1) when the proposed electronic monitoring device is
6-22 a video surveillance camera, condition consent on the camera being
6-23 pointed away from the consenting resident; and
6-24 (2) condition consent on the use of an audio
6-25 electronic monitoring device being limited or prohibited.
6-26 (f) If authorized electronic monitoring is being conducted
6-27 in the room of a resident and another resident is moved into the
7-1 room who has not yet consented to the electronic monitoring,
7-2 authorized electronic monitoring must cease until the new resident
7-3 has consented in accordance with this section.
7-4 (g) The department may include other information that the
7-5 department considers to be appropriate on either of the forms that
7-6 the department is required to prescribe under this section.
7-7 (h) The department may adopt rules prescribing the place or
7-8 places that a form signed under this section must be maintained and
7-9 the period for which it must be maintained.
7-10 (i) Authorized electronic monitoring:
7-11 (1) may not commence until all request and consent
7-12 forms required by this section have been completed and returned to
7-13 the institution; and
7-14 (2) must be conducted in accordance with any
7-15 limitation placed on the monitoring as a condition of the consent
7-16 given by or on behalf of another resident in the room.
7-17 Sec. 242.847. AUTHORIZED ELECTRONIC MONITORING: GENERAL
7-18 PROVISIONS. (a) An institution shall permit a resident or the
7-19 resident's guardian or legal representative to monitor the room of
7-20 the resident through the use of electronic monitoring devices.
7-21 (b) The institution shall require a resident who conducts
7-22 authorized electronic monitoring or the resident's guardian or
7-23 legal representative to post and maintain a conspicuous notice at
7-24 the entrance to the resident's room. The notice must state that
7-25 the room is being monitored by an electronic monitoring device.
7-26 (c) Authorized electronic monitoring conducted under this
7-27 subchapter is not compulsory and may be conducted only at the
8-1 request of the resident or the resident's guardian or legal
8-2 representative.
8-3 (d) An institution may not refuse to admit an individual to
8-4 residency in the institution and may not remove a resident from the
8-5 institution because of a request to conduct authorized electronic
8-6 monitoring. An institution may not remove a resident from the
8-7 institution because covert electronic monitoring is being conducted
8-8 by or on behalf of a resident.
8-9 (e) An institution shall make reasonable physical
8-10 accommodation for authorized electronic monitoring, including:
8-11 (1) providing a reasonably secure place to mount the
8-12 video surveillance camera or other electronic monitoring device;
8-13 and
8-14 (2) providing access to power sources for the video
8-15 surveillance camera or other electronic monitoring device.
8-16 (f) The resident or the resident's guardian or legal
8-17 representative must pay for all costs associated with conducting
8-18 electronic monitoring, other than the costs of electricity. The
8-19 resident or the resident's guardian or legal representative is
8-20 responsible for:
8-21 (1) all costs associated with installation of
8-22 equipment; and
8-23 (2) maintaining the equipment.
8-24 (g) An institution may require an electronic monitoring
8-25 device to be installed in a manner that is safe for residents,
8-26 employees, or visitors who may be moving about the room. The
8-27 department may adopt rules regarding the safe placement of an
9-1 electronic monitoring device.
9-2 (h) If authorized electronic monitoring is conducted, the
9-3 institution may require the resident or the resident's guardian or
9-4 legal representative to conduct the electronic monitoring in plain
9-5 view.
9-6 (i) An institution may but is not required to place a
9-7 resident in a different room to accommodate a request to conduct
9-8 authorized electronic monitoring.
9-9 Sec. 242.848. REPORTING ABUSE AND NEGLECT. (a) For
9-10 purposes of the duty to report abuse or neglect under Section
9-11 242.122 and the criminal penalty for the failure to report abuse or
9-12 neglect under Section 242.131, a person who is conducting
9-13 electronic monitoring on behalf of a resident under this subchapter
9-14 is considered to have viewed or listened to a tape or recording
9-15 made by the electronic monitoring device on or before the 14th day
9-16 after the date the tape or recording is made.
9-17 (b) If a resident who has capacity to determine that the
9-18 resident has been abused or neglected and who is conducting
9-19 electronic monitoring under this subchapter gives a tape or
9-20 recording made by the electronic monitoring device to a person and
9-21 directs the person to view or listen to the tape or recording to
9-22 determine whether abuse or neglect has occurred, the person to whom
9-23 the resident gives the tape or recording is considered to have
9-24 viewed or listened to the tape or recording on or before the
9-25 seventh day after the date the person receives the tape or
9-26 recording for purposes of the duty to report abuse or neglect under
9-27 Section 242.122 and of the criminal penalty for the failure to
10-1 report abuse or neglect under Section 242.131.
10-2 (c) A person is required to report abuse based on the
10-3 person's viewing of or listening to a tape or recording only if the
10-4 incident of abuse is acquired on the tape or recording. A person
10-5 is required to report neglect based on the person's viewing of or
10-6 listening to a tape or recording only if it is clear from viewing
10-7 or listening to the tape or recording that neglect has occurred.
10-8 (d) If abuse or neglect of the resident is reported to the
10-9 institution and the institution requests a copy of any relevant
10-10 tape or recording made by an electronic monitoring device, the
10-11 person who possesses the tape or recording shall provide the
10-12 institution with a copy at the institution's expense.
10-13 Sec. 242.849. USE OF TAPE OR RECORDING BY AGENCY OR COURT.
10-14 (a) Subject to applicable rules of evidence and procedure and the
10-15 requirements of this section, a tape or recording created through
10-16 the use of covert or authorized electronic monitoring described by
10-17 this subchapter may be admitted into evidence in a civil or
10-18 criminal court action or administrative proceeding.
10-19 (b) A court or administrative agency may not admit into
10-20 evidence a tape or recording created through the use of covert or
10-21 authorized electronic monitoring or take or authorize action based
10-22 on the tape or recording unless:
10-23 (1) if the tape or recording is a video tape or
10-24 recording, the tape or recording shows the time and date that the
10-25 events acquired on the tape or recording occurred;
10-26 (2) the contents of the tape or recording have not
10-27 been edited or artificially enhanced; and
11-1 (3) if the contents of the tape or recording have been
11-2 transferred from the original format to another technological
11-3 format, the transfer was done by a qualified professional and the
11-4 contents of the tape or recording were not altered.
11-5 (c) A person who sends more than one tape or recording to
11-6 the department shall identify for the department each tape or
11-7 recording on which the person believes that an incident of abuse or
11-8 evidence of neglect may be found. The department may adopt rules
11-9 encouraging persons who send a tape or recording to the department
11-10 to identify the place on the tape or recording that an incident of
11-11 abuse or evidence of neglect may be found.
11-12 Sec. 242.850. NOTICE AT ENTRANCE TO INSTITUTION. Each
11-13 institution shall post a notice at the entrance to the institution
11-14 stating that the rooms of some residents may be being monitored
11-15 electronically by or on behalf of the residents and that the
11-16 monitoring is not necessarily open and obvious. The department by
11-17 rule shall prescribe the format and the precise content of the
11-18 notice.
11-19 Sec. 242.851. 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
11-27 request to conduct authorized electronic monitoring;
12-1 (3) allows the removal of a resident from the
12-2 institution because covert electronic monitoring is being conducted
12-3 by or on behalf of the resident; or
12-4 (4) violates another provision of this subchapter.
12-5 (b) The department may assess an administrative penalty
12-6 under Section 242.066 against an institution that:
12-7 (1) refuses to permit a resident or the resident's
12-8 guardian or legal representative to conduct authorized electronic
12-9 monitoring;
12-10 (2) refuses to admit an individual to residency or
12-11 allows the removal of a resident from the institution because of a
12-12 request to conduct authorized electronic monitoring;
12-13 (3) allows the removal of a resident from the
12-14 institution because covert electronic monitoring is being conducted
12-15 by or on behalf of the resident; or
12-16 (4) violates another provision of this subchapter.
12-17 Sec. 242.852. CRIMINAL OFFENSE. (a) A person who
12-18 intentionally hampers, obstructs, tampers with, or destroys an
12-19 electronic monitoring device installed in a resident's room in
12-20 accordance with this subchapter or a tape or recording made by the
12-21 device commits an offense. An offense under this section is a
12-22 Class B misdemeanor.
12-23 (b) It is a defense to prosecution under Subsection (a) that
12-24 the person took the action with the effective consent of the
12-25 resident on whose behalf the electronic monitoring device was
12-26 installed or the resident's guardian or legal representative.
12-27 SECTION 2. Subsection (a), Section 242.501, Health and
13-1 Safety Code, is amended to read as follows:
13-2 (a) The department by rule shall adopt a statement of the
13-3 rights of a resident. The statement must be consistent with
13-4 Chapter 102, Human Resources Code, but shall reflect the unique
13-5 circumstances of a resident at an institution. At a minimum, the
13-6 statement of the rights of a resident must address the resident's
13-7 constitutional, civil, and legal rights and the resident's right:
13-8 (1) to be free from abuse and exploitation;
13-9 (2) to safe, decent, and clean conditions;
13-10 (3) to be treated with courtesy, consideration, and
13-11 respect;
13-12 (4) to not be subjected to discrimination based on
13-13 age, race, religion, sex, nationality, or disability and to
13-14 practice the resident's own religious beliefs;
13-15 (5) to place in the resident's room an electronic
13-16 monitoring device that is owned and operated by the resident or
13-17 provided by the resident's guardian or legal representative;
13-18 (6) to privacy, including privacy during visits and
13-19 telephone calls;
13-20 (7) [(6)] to complain about the institution and to
13-21 organize or participate in any program that presents residents'
13-22 concerns to the administrator of the institution;
13-23 (8) [(7)] to have information about the resident in
13-24 the possession of the institution maintained as confidential;
13-25 (9) [(8)] to retain the services of a physician the
13-26 resident chooses, at the resident's own expense or through a health
13-27 care plan, and to have a physician explain to the resident, in
14-1 language that the resident understands, the resident's complete
14-2 medical condition, the recommended treatment, and the expected
14-3 results of the treatment;
14-4 (10) [(9)] to participate in developing a plan of
14-5 care, to refuse treatment, and to refuse to participate in
14-6 experimental research;
14-7 (11) [(10)] to a written statement or admission
14-8 agreement describing the services provided by the institution and
14-9 the related charges;
14-10 (12) [(11)] to manage the resident's own finances or
14-11 to delegate that responsibility to another person;
14-12 (13) [(12)] to access money and property that the
14-13 resident has deposited with the institution and to an accounting of
14-14 the resident's money and property that are deposited with the
14-15 institution and of all financial transactions made with or on
14-16 behalf of the resident;
14-17 (14) [(13)] to keep and use personal property, secure
14-18 from theft or loss;
14-19 (15) [(14)] to not be relocated within the
14-20 institution, except in accordance with standards adopted by the
14-21 department under Section 242.403;
14-22 (16) [(15)] to receive visitors;
14-23 (17) [(16)] to receive unopened mail and to receive
14-24 assistance in reading or writing correspondence;
14-25 (18) [(17)] to participate in activities inside and
14-26 outside the institution;
14-27 (19) [(18)] to wear the resident's own clothes;
15-1 (20) [(19)] to discharge himself or herself from the
15-2 institution unless the resident is an adjudicated mental
15-3 incompetent;
15-4 (21) [(20)] to not be discharged from the institution
15-5 except as provided in the standards adopted by the department under
15-6 Section 242.403; and
15-7 (22) [(21)] to be free from any physical or chemical
15-8 restraints imposed for the purposes of discipline or convenience,
15-9 and not required to treat the resident's medical symptoms.
15-10 SECTION 3. Section 242.653, Health and Safety Code, is
15-11 amended by adding Subsection (f) to read as follows:
15-12 (f) The committee shall monitor the implementation of
15-13 Subchapter R and study the impact of that law on the department,
15-14 institutions, and residents.
15-15 SECTION 4. The Texas Department of Human Services shall
15-16 devise a procedure under which current residents of convalescent
15-17 and nursing homes and related institutions, or, when appropriate,
15-18 another person on a resident's behalf, are encouraged to sign the
15-19 form that is required to be signed on admission under Section
15-20 242.844, Health and Safety Code, as added by this Act.
15-21 SECTION 5. This Act takes effect immediately if it receives
15-22 a vote of two-thirds of all the members elected to each house, as
15-23 provided by Section 39, Article III, Texas Constitution. If this
15-24 Act does not receive the vote necessary for immediate effect, this
15-25 Act takes effect September 1, 2001.