1-1 By: Madla, Moncrief S.B. No. 177
1-2 (In the Senate - Filed December 21, 2000; January 11, 2001,
1-3 read first time and referred to Committee on Health and Human
1-4 Services; April 2, 2001, reported adversely, with favorable
1-5 Committee Substitute by the following vote: Yeas 9, Nays 0;
1-6 April 2, 2001, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 177 By: Moncrief
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to electronic monitoring devices in the rooms of residents
1-11 of convalescent or nursing homes or related institutions; providing
1-12 a criminal penalty.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Chapter 242, Health and Safety Code, is amended
1-15 by adding Subchapter R to read as follows:
1-16 SUBCHAPTER R. ELECTRONIC MONITORING OF RESIDENT'S ROOM
1-17 Sec. 242.841. DEFINITIONS. In this subchapter:
1-18 (1) "Authorized electronic monitoring" means the
1-19 placement of an electronic monitoring device in the room of a
1-20 resident of an institution and making tapes or recordings with the
1-21 device after making a request to the institution to allow
1-22 electronic monitoring.
1-23 (2) "Electronic monitoring device":
1-24 (A) includes:
1-25 (i) video surveillance cameras installed
1-26 in the room of a resident; and
1-27 (ii) audio devices installed in the room
1-28 of a resident designed to acquire communications or other sounds
1-29 occurring in the room; and
1-30 (B) does not include an electronic, mechanical,
1-31 or other device that is specifically used for the nonconsensual
1-32 interception of wire or electronic communications.
1-33 Sec. 242.842. CRIMINAL AND CIVIL LIABILITY. (a) It is a
1-34 defense to prosecution under Section 16.02, Penal Code, or any
1-35 other statute of this state under which it is an offense to
1-36 intercept a communication or disclose or use an intercepted
1-37 communication, that the communication was intercepted by an
1-38 electronic monitoring device placed in the room of a resident of an
1-39 institution.
1-40 (b) This subchapter does not affect whether a person may be
1-41 held to be civilly liable under other law in connection with
1-42 placing an electronic monitoring device in the room of a resident
1-43 of an institution or in connection with using or disclosing a tape
1-44 or recording made by the device except:
1-45 (1) as specifically provided by this subchapter; or
1-46 (2) to the extent that liability is affected by:
1-47 (A) a consent or waiver signed under this
1-48 subchapter; or
1-49 (B) the fact that authorized electronic
1-50 monitoring is required to be conducted with notice to persons who
1-51 enter a resident's room.
1-52 (c) A communication or other sound acquired by an audio
1-53 electronic monitoring device installed under the provisions of this
1-54 subchapter concerning authorized electronic monitoring is not
1-55 considered to be:
1-56 (1) an oral communication as defined by Section 1,
1-57 Article 18.20, Code of Criminal Procedure; or
1-58 (2) a communication as defined by Section 123.001,
1-59 Civil Practice and Remedies Code.
1-60 Sec. 242.843. COVERT USE OF ELECTRONIC MONITORING DEVICE;
1-61 LIABILITY OF DEPARTMENT OR INSTITUTION. (a) For purposes of this
1-62 subchapter, the placement and use of an electronic monitoring
1-63 device in the room of a resident is considered to be covert if:
1-64 (1) the placement and use of the device is not open
2-1 and obvious; and
2-2 (2) the institution and the department are not
2-3 informed about the device by the resident, by a person who placed
2-4 the device in the room, or by a person who is using the device.
2-5 (b) The department and the institution may not be held to be
2-6 civilly liable in connection with the covert placement or use of an
2-7 electronic monitoring device in the room of a resident.
2-8 Sec. 242.844. REQUIRED FORM ON ADMISSION. The department by
2-9 rule shall prescribe a form that must be completed and signed on a
2-10 resident's admission to an institution by or on behalf of the
2-11 resident. The form must state:
2-12 (1) that a person who places an electronic monitoring
2-13 device in the room of a resident or who uses or discloses a tape or
2-14 other recording made by the device may be civilly liable for any
2-15 unlawful violation of the privacy rights of another;
2-16 (2) that a person who covertly places an electronic
2-17 monitoring device in the room of a resident or who consents to or
2-18 acquiesces in the covert placement of the device in the room of a
2-19 resident has waived any privacy right the person may have had in
2-20 connection with images or sounds that may be acquired by the
2-21 device;
2-22 (3) that a resident or the resident's guardian or
2-23 legal representative is entitled to conduct authorized electronic
2-24 monitoring under Subchapter R, Chapter 242, Health and Safety Code,
2-25 and that if the institution refuses to permit the electronic
2-26 monitoring or fails to make reasonable physical accommodations for
2-27 the authorized electronic monitoring that the person should contact
2-28 the Texas Department of Human Services;
2-29 (4) the basic procedures that must be followed to
2-30 request authorized electronic monitoring;
2-31 (5) the manner in which this chapter affects the legal
2-32 requirement to report abuse or neglect when electronic monitoring
2-33 is being conducted; and
2-34 (6) any other information regarding covert or
2-35 authorized electronic monitoring that the department considers
2-36 advisable to include on the form.
2-37 Sec. 242.845. AUTHORIZED ELECTRONIC MONITORING: WHO MAY
2-38 REQUEST. (a) If a resident has capacity to request electronic
2-39 monitoring and has not been judicially declared to lack the
2-40 required capacity, only the resident may request authorized
2-41 electronic monitoring under this subchapter, notwithstanding the
2-42 terms of any durable power of attorney or similar instrument.
2-43 (b) If a resident has been judicially declared to lack the
2-44 capacity required for taking an action such as requesting
2-45 electronic monitoring, only the guardian of the resident may
2-46 request electronic monitoring under this subchapter.
2-47 (c) If a resident does not have capacity to request
2-48 electronic monitoring but has not been judicially declared to lack
2-49 the required capacity, only the legal representative of the
2-50 resident may request electronic monitoring under this subchapter.
2-51 The department by rule shall prescribe:
2-52 (1) guidelines that will assist institutions, family
2-53 members of residents, advocates for residents, and other interested
2-54 persons to determine when a resident lacks the required capacity;
2-55 and
2-56 (2) who may be considered to be a resident's legal
2-57 representative for purposes of this subchapter, including:
2-58 (A) persons who may be considered the legal
2-59 representative under the terms of an instrument executed by the
2-60 resident when the resident had capacity; and
2-61 (B) persons who may become the legal
2-62 representative for the limited purpose of this subchapter under a
2-63 procedure prescribed by the department.
2-64 Sec. 242.846. AUTHORIZED ELECTRONIC MONITORING: FORM OF
2-65 REQUEST; CONSENT OF OTHER RESIDENTS IN ROOM. (a) A resident or
2-66 the guardian or legal representative of a resident who wishes to
2-67 conduct authorized electronic monitoring must make the request to
2-68 the institution on a form prescribed by the department.
2-69 (b) The form prescribed by the department must require the
3-1 resident or the resident's guardian or legal representative to:
3-2 (1) release the institution from any civil liability
3-3 for a violation of the resident's privacy rights in connection with
3-4 the use of the electronic monitoring device;
3-5 (2) choose, when the electronic monitoring device is a
3-6 video surveillance camera, whether the camera will always be
3-7 unobstructed or whether the camera should be obstructed in
3-8 specified circumstances to protect the dignity of the resident; and
3-9 (3) obtain the consent of other residents in the room,
3-10 using a form prescribed for this purpose by the department, if the
3-11 resident resides in a multiperson room.
3-12 (c) Consent under Subsection (b)(3) may be given only:
3-13 (1) by the other resident or residents in the room;
3-14 (2) by the guardian of a person described by
3-15 Subdivision (1), if the person has been judicially declared to lack
3-16 the required capacity; or
3-17 (3) by the legal representative who under Section
3-18 242.845(c) may request electronic monitoring on behalf of a person
3-19 described by Subdivision (1), if the person does not have capacity
3-20 to sign the form but has not been judicially declared to lack the
3-21 required capacity.
3-22 (d) The form prescribed by the department under Subsection
3-23 (b)(3) must condition the consent of another resident in the room
3-24 on the other resident also releasing the institution from any civil
3-25 liability for a violation of the person's privacy rights in
3-26 connection with the use of the electronic monitoring device.
3-27 (e) Another resident in the room may:
3-28 (1) when the proposed electronic monitoring device is
3-29 a video surveillance camera, condition consent on the camera being
3-30 pointed away from the consenting resident; and
3-31 (2) condition consent on the use of an audio
3-32 electronic monitoring device being limited or prohibited.
3-33 (f) If authorized electronic monitoring is being conducted
3-34 in the room of a resident and another resident is moved into the
3-35 room who has not yet consented to the electronic monitoring,
3-36 authorized electronic monitoring must cease until the new resident
3-37 has consented in accordance with this section.
3-38 (g) The department may include other information that the
3-39 department considers to be appropriate on either of the forms that
3-40 the department is required to prescribe under this section.
3-41 (h) The department may adopt rules prescribing the place or
3-42 places that a form signed under this section must be maintained and
3-43 the period for which it must be maintained.
3-44 (i) Authorized electronic monitoring:
3-45 (1) may not commence until all request and consent
3-46 forms required by this section have been completed and returned to
3-47 the institution; and
3-48 (2) must be conducted in accordance with any
3-49 limitation placed on the monitoring as a condition of the consent
3-50 given by or on behalf of another resident in the room.
3-51 Sec. 242.847. AUTHORIZED ELECTRONIC MONITORING: GENERAL
3-52 PROVISIONS. (a) An institution shall permit a resident or the
3-53 resident's guardian or legal representative to monitor the room of
3-54 the resident through the use of electronic monitoring devices.
3-55 (b) The institution shall require a resident who conducts
3-56 authorized electronic monitoring or the resident's guardian or
3-57 legal representative to post and maintain a conspicuous notice at
3-58 the entrance to the resident's room. The notice must state that
3-59 the room is being monitored by an electronic monitoring device.
3-60 (c) Authorized electronic monitoring conducted under this
3-61 subchapter is not compulsory and may be conducted only at the
3-62 request of the resident or the resident's guardian or legal
3-63 representative.
3-64 (d) An institution may not refuse to admit an individual to
3-65 residency in the institution and may not remove a resident from the
3-66 institution because of a request to conduct authorized electronic
3-67 monitoring.
3-68 (e) An institution shall make reasonable physical
3-69 accommodation for authorized electronic monitoring, including:
4-1 (1) providing a reasonably secure place to mount the
4-2 video surveillance camera or other electronic monitoring device;
4-3 and
4-4 (2) providing access to power sources for the video
4-5 surveillance camera or other electronic monitoring device.
4-6 (f) The resident or the resident's guardian or legal
4-7 representative must pay for all costs associated with conducting
4-8 electronic monitoring, other than the costs of electricity. The
4-9 resident or the resident's guardian or legal representative is
4-10 responsible for:
4-11 (1) all costs associated with installation of
4-12 equipment; and
4-13 (2) maintaining the equipment.
4-14 (g) An institution may require an electronic monitoring
4-15 device to be installed in a manner that is safe for residents,
4-16 employees, or visitors who may be moving about the room. The
4-17 department may adopt rules regarding the safe placement of an
4-18 electronic monitoring device.
4-19 (h) If authorized electronic monitoring is conducted, the
4-20 institution may require the resident or the resident's guardian or
4-21 legal representative to conduct the electronic monitoring in plain
4-22 view.
4-23 (i) An institution may but is not required to place a
4-24 resident in a different room to accommodate a request to conduct
4-25 authorized electronic monitoring.
4-26 Sec. 242.848. REPORTING ABUSE AND NEGLECT. (a) For
4-27 purposes of the duty to report abuse or neglect under Section
4-28 242.122 and the criminal penalty for the failure to report abuse or
4-29 neglect under Section 242.131, the guardian or legal representative
4-30 of a resident on whose behalf the guardian or legal representative
4-31 is conducting electronic monitoring under this subchapter is
4-32 considered to have viewed or listened to a tape or recording made
4-33 by the electronic monitoring device on or before the 14th day after
4-34 the date the tape or recording is made.
4-35 (b) If a resident who has capacity to determine that the
4-36 resident has been abused or neglected and who is conducting
4-37 electronic monitoring under this subchapter gives a tape or
4-38 recording made by the electronic monitoring device to a person and
4-39 directs the person to view or listen to the tape or recording to
4-40 determine whether abuse or neglect has occurred, the person to whom
4-41 the resident gives the tape or recording is considered to have
4-42 viewed or listened to the tape or recording on or before the
4-43 seventh day after the date the person receives the tape or
4-44 recording for purposes of the duty to report abuse or neglect under
4-45 Section 242.122 and of the criminal penalty for the failure to
4-46 report abuse or neglect under Section 242.131.
4-47 (c) A person is required to report abuse based on the
4-48 person's viewing of or listening to a tape or recording only if the
4-49 incident of abuse is acquired on the tape or recording. A person
4-50 is required to report neglect based on the person's viewing of or
4-51 listening to a tape or recording only if it is clear from viewing
4-52 or listening to the tape or recording that neglect has occurred.
4-53 (d) If abuse or neglect of the resident is reported to the
4-54 institution and the institution requests a copy of any relevant
4-55 tape or recording made by an electronic monitoring device, the
4-56 person who possesses the tape or recording shall provide the
4-57 institution with a copy at the institution's expense.
4-58 Sec. 242.849. USE OF TAPE OR RECORDING BY AGENCY OR COURT.
4-59 (a) Subject to applicable rules of evidence and procedure and the
4-60 requirements of this section, a tape or recording created through
4-61 the use of covert or authorized electronic monitoring described by
4-62 this subchapter may be admitted into evidence in a civil or
4-63 criminal court action or administrative proceeding.
4-64 (b) A court or administrative agency may not admit into
4-65 evidence a tape or recording created through the use of covert or
4-66 authorized electronic monitoring or take or authorize action based
4-67 on the tape or recording unless:
4-68 (1) if the tape or recording is a video tape or
4-69 recording, the tape or recording shows the time and date that the
5-1 events acquired on the tape or recording occurred;
5-2 (2) the contents of the tape or recording have not
5-3 been edited or artificially enhanced; and
5-4 (3) if the contents of the tape or recording have been
5-5 transferred from the original format to another technological
5-6 format, the transfer was done by a qualified professional and the
5-7 contents of the tape or recording were not altered.
5-8 (c) A person who sends more than one tape or recording to
5-9 the department shall identify for the department each tape or
5-10 recording on which the person believes that an incident of abuse or
5-11 evidence of neglect may be found. The department may adopt rules
5-12 encouraging persons who send a tape or recording to the department
5-13 to identify the place on the tape or recording that an incident of
5-14 abuse or evidence of neglect may be found.
5-15 Sec. 242.850. ENFORCEMENT. (a) The department may impose
5-16 appropriate sanctions under this chapter on an administrator of an
5-17 institution who knowingly:
5-18 (1) refuses to permit a resident or the resident's
5-19 guardian or legal representative to conduct authorized electronic
5-20 monitoring;
5-21 (2) refuses to admit an individual to residency or
5-22 allows the removal of a resident from the institution because of a
5-23 request to conduct authorized electronic monitoring; or
5-24 (3) violates another provision of this subchapter.
5-25 (b) The department may assess an administrative penalty
5-26 under Section 242.066 against an institution that:
5-27 (1) refuses to permit a resident or the resident's
5-28 guardian or legal representative to conduct authorized electronic
5-29 monitoring;
5-30 (2) refuses to admit an individual to residency or
5-31 allows the removal of a resident from the institution because of a
5-32 request to conduct authorized electronic monitoring; or
5-33 (3) violates another provision of this subchapter.
5-34 Sec. 242.851. CRIMINAL OFFENSE. (a) A person who
5-35 intentionally hampers, obstructs, tampers with, or destroys an
5-36 electronic monitoring device installed in a resident's room in
5-37 accordance with this subchapter or a tape or recording made by the
5-38 device commits an offense. An offense under this section is a
5-39 Class B misdemeanor.
5-40 (b) It is a defense to prosecution under Subsection (a) that
5-41 the person took the action with the effective consent of the
5-42 resident on whose behalf the electronic monitoring device was
5-43 installed or the resident's guardian or legal representative.
5-44 SECTION 2. Section 242.501(a), Health and Safety Code, is
5-45 amended to read as follows:
5-46 (a) The department by rule shall adopt a statement of the
5-47 rights of a resident. The statement must be consistent with
5-48 Chapter 102, Human Resources Code, but shall reflect the unique
5-49 circumstances of a resident at an institution. At a minimum, the
5-50 statement of the rights of a resident must address the resident's
5-51 constitutional, civil, and legal rights and the resident's right:
5-52 (1) to be free from abuse and exploitation;
5-53 (2) to safe, decent, and clean conditions;
5-54 (3) to be treated with courtesy, consideration, and
5-55 respect;
5-56 (4) to not be subjected to discrimination based on
5-57 age, race, religion, sex, nationality, or disability and to
5-58 practice the resident's own religious beliefs;
5-59 (5) to place in the resident's room an electronic
5-60 monitoring device that is owned and operated by the resident or
5-61 provided by the resident's guardian or legal representative;
5-62 (6) to privacy, including privacy during visits and
5-63 telephone calls;
5-64 (7) [(6)] to complain about the institution and to
5-65 organize or participate in any program that presents residents'
5-66 concerns to the administrator of the institution;
5-67 (8) [(7)] to have information about the resident in
5-68 the possession of the institution maintained as confidential;
5-69 (9) [(8)] to retain the services of a physician the
6-1 resident chooses, at the resident's own expense or through a health
6-2 care plan, and to have a physician explain to the resident, in
6-3 language that the resident understands, the resident's complete
6-4 medical condition, the recommended treatment, and the expected
6-5 results of the treatment;
6-6 (10) [(9)] to participate in developing a plan of
6-7 care, to refuse treatment, and to refuse to participate in
6-8 experimental research;
6-9 (11) [(10)] to a written statement or admission
6-10 agreement describing the services provided by the institution and
6-11 the related charges;
6-12 (12) [(11)] to manage the resident's own finances or
6-13 to delegate that responsibility to another person;
6-14 (13) [(12)] to access money and property that the
6-15 resident has deposited with the institution and to an accounting of
6-16 the resident's money and property that are deposited with the
6-17 institution and of all financial transactions made with or on
6-18 behalf of the resident;
6-19 (14) [(13)] to keep and use personal property, secure
6-20 from theft or loss;
6-21 (15) [(14)] to not be relocated within the
6-22 institution, except in accordance with standards adopted by the
6-23 department under Section 242.403;
6-24 (16) [(15)] to receive visitors;
6-25 (17) [(16)] to receive unopened mail and to receive
6-26 assistance in reading or writing correspondence;
6-27 (18) [(17)] to participate in activities inside and
6-28 outside the institution;
6-29 (19) [(18)] to wear the resident's own clothes;
6-30 (20) [(19)] to discharge himself or herself from the
6-31 institution unless the resident is an adjudicated mental
6-32 incompetent;
6-33 (21) [(20)] to not be discharged from the institution
6-34 except as provided in the standards adopted by the department under
6-35 Section 242.403; and
6-36 (22) [(21)] to be free from any physical or chemical
6-37 restraints imposed for the purposes of discipline or convenience,
6-38 and not required to treat the resident's medical symptoms.
6-39 SECTION 3. Section 242.653, Health and Safety Code, is
6-40 amended by adding Subsection (f) to read as follows:
6-41 (f) The committee shall monitor the implementation of
6-42 Subchapter R and study the impact of that law on the department,
6-43 institutions, and residents.
6-44 SECTION 4. The Texas Department of Human Services shall
6-45 devise a procedure under which current residents of convalescent
6-46 and nursing homes and related institutions, or, when appropriate,
6-47 another person on a resident's behalf, are encouraged to sign the
6-48 form that is required to be signed on admission under Section
6-49 242.844, Health and Safety Code, as added by this Act.
6-50 SECTION 5. This Act takes effect immediately if it receives
6-51 a vote of two-thirds of all the members elected to each house, as
6-52 provided by Section 39, Article III, Texas Constitution. If this
6-53 Act does not receive the vote necessary for immediate effect, this
6-54 Act takes effect September 1, 2001.
6-55 * * * * *