This report is submitted pursuant to Chapter 848 of the 2020 Acts of Assembly (Appendix A), which directs the Board of Social Services to convene a workgroup to make recommendations regarding the adoption of regulations for audio-visual recording of residents in assisted living including provisions related to 1) resident privacy, 2) notice and disclosure, 3) liability, 4) ownership and maintenance of equipment, 5) cost, 6) recording and data security, and 7) assisted living facility options for both facility-managed recording and resident-managed recording.

Recommendations

The following recommendations are the result of the research conducted and discussions with stakeholders that participated in the meetings, interviews, and conference calls. These recommendations contain definitions and provisions for assisted living facilities (ALFs) to develop a policy for authorized electronic monitoring (AEM).

Definitions:

Facilities should use consistent definitions for developing policies and procedures for electronic monitoring. Definitions may include:

a) Authorized electronic monitoring (AEM) means the placement of an electronic monitoring device in a resident's room after obtaining approval from the resident or the resident’s legal representative and the facility to allow electronic monitoring.

b) Authorized electronic monitoring device means video surveillance cameras, monitoring devices, web-based cameras, video phones, or audio recording or transmitting devices, or a combination of these devices, installed in the room of a resident which are designed to acquire, transmit, broadcast, interact, or record video, communications, or other sounds occurring in the room. The term does not include still cameras or devices used for the purpose of the resident having contact with another person but not for the purpose of electronically monitoring a resident.

Recognizing that technology related to electronic monitoring will continue to evolve, definitions and recommendations must be broad enough to encompass future technological innovation.

Provision 1: Privacy and Consent

Resident privacy protections are paramount. The facility policy for electronic monitoring should ensure that:

a) The informed consent of all residents, or if a resident is incapable, a resident's legal representative, is obtained prior to any authorized electronic monitoring device being installed or activated;

b) Consent for electronic monitoring is kept in the resident’s record; and,

c) A resident is not discharged or transferred from the facility due to a request to conduct authorized electronic monitoring.

The workgroup identified the need to balance an individual’s rights to privacy and self-determination with the need to protect vulnerable adults from maltreatment. The workgroup recognized that electronic monitoring can be especially beneficial to protect residents who may be unable to recognize, resist, or report maltreatment as a result of dementia or lack capacity for other reasons.

Provision 2: Notice and Disclosure

The facility policy should ensure that staff, visitors, and residents are aware when monitoring is in effect. An AEM policy should communicate who can access and view recordings. The workgroup recommends the following:

a) The facility must conspicuously post and maintain a notice at the entrance to the resident's room stating that an authorized electronic monitoring device is in operation.

b) If a resident or a resident's legal representative wishes to view the recording, the facility should accommodate viewing in a timely manner, including providing:

1. Appropriate playing or viewing equipment;
2. Privacy during viewing; and,
3. Viewing times convenient to the resident or the resident's legal representative.

Provision 3: Liability

An AEM policy needs to address the facility’s liability and responsibilities for actions and claims that may arise out of the use of electronic monitoring.

Provision 4: Reporting

The electronic monitoring policy and procedure must include the process for facilities to report allegations of abuse, neglect, or exploitation in accordance with mandated reporting requirements.

Provision 5: Ownership and Maintenance of Equipment

The policy should protect the confidentiality and security of recordings.

For facility-managed authorized electronic monitoring:

a) Facilities that monitor resident rooms should designate an individual to be responsible for the security of facility-managed recordings

b) Viewing facility-managed recordings without consent of the resident or the resident’s authorized representative, except to the extent that disclosure is required by law or court order, should be prohibited.

c) Clarify that the facility is not responsible for monitoring or viewing the contents of each recording unless an allegation of abuse, neglect, or injury is made.

For resident-managed authorized electronic monitoring:

Any action on the part of the facility to obstruct the resident-managed authorized electronic monitoring device (knowingly hampering, tampering with, or destroying) should be prohibited.

Provision 6: Cost

The workgroup recommends that the policy specify the party responsible for cost and that the facility communicate any cost increases associated with authorized electronic monitoring to the resident or the resident’s legally authorized representative.

a) The facility must give the resident or resident’s legal representative advance notice of intent to increase fees associated with authorized electronic monitoring in compliance with the resident agreement with the facility (22VAC40-73-390. A.1 e.).

b) For facility-managed authorized electronic monitoring, costs that are the resident’s responsibility should be reasonable and may include equipment, recording media and installation, monitoring fees, compliance with life safety and building and electrical codes, maintenance or removal of the equipment, posting and removal of any public notices, or structural repairs to the building resulting from the removal of the device and equipment.

c) For resident-managed authorized electronic monitoring, a facility may require a resident or a resident's legal representative to pay for all costs, other than the cost of electricity, associated with installing the device and equipment.