RD15 - Authorization for Electronic Monitoring in Nursing Facilities

Executive Summary:

Senate Bill 922 (2003) would amend Code of Virginia §§ 32.1-127,32.1-138, and 32.1-138.1 to require the Board of Health to promulgate regulations that "authorize the use of electronic monitoring devices in the room of a resident of a nursing home... for the purpose of detecting abuse or neglect of elderly or disabled persons...." SB 922 was passed by in the Senate Committee on Education and Health which forwarded SB 922 to the Joint Commission on Health Care for study.

Currently there are approximately 1.5 million residents in an estimated 17,000 nursing facilities in the United States. The issue of providing enhanced protection for these residents has gained interest in recent years. Electronic monitoring in residents' rooms is one initiative that has been considered in a number of states.

Federal and State Law

Provisions of federal and state laws must be considered with regard to electronic monitoring. Federal law in U.S.C. Title 18 Chapter 119 prohibits the taping, transfer, or disclosure of private wire, oral, or electronic communications (oral communication) unless at least one participant has consented to the interception. Violation of the federal Wiretap Act may result in considerable civil damage awards. State law in Code of Virginia Title 19.2 Chapter 6 contains similar provisions to the federal Wiretap Act. In addition, Code of Virginia § 18.2-386.1 prohibits filming, videotaping or photographing "any non-consenting person if (i) that person is totally nude, clad in undergarments, or in a state of undress so as to expose the genitals, pubic area, buttocks or female breast in a restroom, dressing room, locker room, hotel room, motel room, tanning bed, tanning booth, bedroom or other location and (ii) the circumstances are otherwise such that the person being videotaped or filmed would have a reasonable expectation of privacy."

Representatives of the Virginia State Police and the Virginia Department of Health (VDH) indicated that with proper consent and notification protections in place, electronic monitoring could be undertaken without any change in Virginia's current laws.

Legislation Enacted by Other States

Legislation has been considered in at least seven states, but to date only three states have enacted legislation:

• Texas enacted legislation in 2001 to allow monitoring in residents' rooms.

• Maryland enacted legislation in 2003 to require the Maryland Department of Health and Mental Hygiene to develop guidelines for monitoring undertaken at the nursing facility's discretion with resident consent.

• Louisiana, by concurrent resolution in 2003, directed the Department of Health and Hospitals and the Louisiana Nursing Home Assoc. "to implement a pilot project [in one nursing facility] to study the practicality of installing electronic monitoring devices in nursing home facilities" and to report prior to the 2004 legislative session.

Provisions Contained in SB 922

SB 922 would amend Code of Virginia § 32.1-127 to require regulation to include:

• Delineation of electronic monitoring devices allowed
• Consent form denoting sole right of resident if capable of informed decision, and if not, legal representative must make request
• Form to release NF from "civil liability for violation of the privacy rights of the resident who is the subject of the request as well as any other residents in the same room"
• Form to allow roommates to consent to monitoring, and to be "provided privacy protections...or to be moved to another room"
• Procedure to discontinue monitoring if another resident moves in
• Requirements for signs to denote electronic monitoring
• Timeframes for notice regarding initiation of monitoring
• Requirements for reporting abuse/neglect identified through monitoring
• Requirements for placement of electronic monitoring devices
• Protections for residents who do not favor monitoring
• Penalties for facilities that fail to comply with the requirements.

Support for SB 922

Law enforcement personnel generally supported SB 922 provisions. The Director of the Medicaid Fraud Unit (within the Office of the Attorney General) indicated monitoring could assist in ensuring that care paid for by Medicaid is being provided. A Sheriff's department representative was contacted after being identified as working closely with the Department of Social Services on a number of adult protective services investigations. The representative indicated that monitoring would be useful in identifying and substantiating abuse and neglect but that the Sheriff's Department would not have the staff or resources to be responsible for the cameras. A representative of the Virginia State Police indicated that monitoring would be useful as an "objective witness" which would be particularly useful in cases in which the victim would not be able to testify. The representative indicated it would be important to post notices to address the expectation of privacy, otherwise one consenting individual would need to be present at all times.

A number of patient advocacy groups expressed support for the provisions of SB 922. Those groups include AARP, the Helen Keller Center for Deaf-Blind Youths and Adults, and TLC 4 Long Term Care.

Concerns Expressed about SB 922

VDH, the lead agency for the Administration in reviewing SB 922, did not take a position on SB 922 but expressed concerns. VDH's primary concern is the protection of "the personal privacy rights of the individual being monitored and any possible roommate...." Privacy issues are of great concern considering the very private, personal services that are provided to nursing facility residents that would be subject to monitoring. Current State law is "quite specific about NOT exposing naked, private parts" without consent of the resident. VDH indicated in its explanation of Virginia's policy regarding electronic monitoring: "Family members cannot insist on camera use over the objections of the resident. Facilities cannot use cameras in violation of the law based solely on a family member's request or approval. Documentation should be kept in the resident's medical record."

A second concern for VDH is that the bill may represent "unnecessary governmental interference as there are already laws in place to accommodate the use of cameras where a need might exist...." As noted previously, VDH indicates that electronic monitoring may be undertaken under current law as long as the nursing facility" obtains documented consent of the resident to be filmed, including any residents sharing a room with the resident to be filmed."

A number of provider groups expressed similar concerns regarding enacting SB 922. The groups included the American Health Care Association, the Virginia Health Care Association, the Virginia Hospital & Healthcare Association, and the Virginia Association of Nonprofit Homes for the Aging.

Action Taken by the Joint Commission on Health Care

On November 12,2003, the Joint Commission on Health Care unanimously approved the option to send a letter to the State Health Commissioner to request that VDH monitor the issue of electronic monitoring to determine the necessity for initiating pilot projects and/or for developing advisory guidelines for electronic monitoring in nursing facilities. Options to introduce legislation to require the Board of Health to promulgate regulations authorizing electronic monitoring in nursing facilities were not endorsed.