Title of Regulation: 12VAC5-371. Regulations for the Licensure of Nursing Facilities (adding 12VAC5-371-191).

Statutory Authority: §§ 32.1-12 and 32.1-127 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: July 31, 2015.

Effective Date: August 29, 2015.

Agency Contact: Susan Horn, Policy Analyst, Department of Health, 3600 West Broad Street, Richmond, VA 23230, telephone (804) 367-2157, FAX (804) 367-2149, or email susan.horn@vdh.virginia.gov.

Basis: Chapter 674 of the 2013 Acts of Assembly requires the State Board of Health to promulgate regulations governing the implementation of electronic monitoring in resident rooms. Per the legislation, the Department of Health's Office of Licensure and Certification's (VDH/OLC) current guidance document (Electronic Monitoring in Residents' Rooms, July 2007) is the template for the regulation. Therefore, the promulgation of the regulation and the authority to promulgate such regulation is mandated.

Purpose: The regulation protects and promotes public health, safety, and welfare through the establishment of a framework regulation that sets standards regarding electronic monitoring in nursing facility resident rooms. Since the promulgation of the current chapter in 1997, interest in electronic monitoring of resident rooms has grown. Family members, seeking to monitor the quality of care their loved ones receive, have expressed interest in placing video cameras or other means of electronic surveillance in the rooms of their family member in a nursing facility. Advocacy groups have joined in this effort to propose federal laws that would explicitly permit a nursing facility resident or family member to install electronic monitoring equipment with a facility's knowledge. Direction is needed to assure resident privacy and autonomy supersedes the utilization of electronic monitoring regardless of the family member or advocate demand.

Chapter 674 of the 2013 Acts of Assembly requires the board to promulgate regulations that provide a framework for nursing facilities for implementing electronic monitoring or permitting electronic monitoring when requested by a resident or a resident's legal representative.

Rationale for Using Fast-Track Process: Per Chapter 674 of the 2013 Acts of Assembly, the content of the proposed section in the regulation is to be based upon and "include existing policies and procedures set forth in the Board's guidelines governing electronic monitoring of nursing home residents' rooms and described in the publication 'Electronic Monitoring of Residents' Rooms."' The 2007 VDH/OLC guidance was developed with the assistance and input of the Virginia State Police to accurately reflect state and federal privacy laws. As a result, the guideline has been widely utilized without further need for revision since its inception. Therefore, the department believes the proposed regulation will be noncontroversial, allowing use of the fast-track process.

Substance: As directed in Chapter 674 of the 2013 Acts of Assembly, the department intends to create a section pertaining to electronic monitoring in nursing facility resident rooms. The proposed action will provide facilities the framework to assure a resident's right to personal privacy and personal autonomy is not violated or that the facility does not violate current federal and state privacy laws regarding filming and electronic monitoring. The proposed regulation addresses policies and procedures, informed consent, resident's right to implement or refuse electronic monitoring, including admission, discharge, or transfer. In addition, the regulation outlines request and notice procedures, retention of tapes or recordings, and reporting suspected abuse, neglect, accident, or injury discovered through electronic monitoring.

Issues: Family members, having concern for the care and safety of their loved ones in a nursing facility, have expressed interest in utilizing electronic equipment in residents' rooms. The proposed new section of the regulation clarifies issues related to electronic monitoring and ensures nursing facilities have policies and procedures in place for such activities. Federal and state laws and regulations stipulate that a resident of a nursing facility has the right to privacy and confidentiality of his or her person, including the privacy of their bodies. Chapter 674 of the 2013 Acts of Assembly does not mandate that nursing facilities provide electronic monitoring of its residents; rather the legislation provides the direction that facilities can follow when residents or resident family members request electronic monitoring. However, such monitoring cannot be conducted without the authorized written consent of the resident, regardless of the wishes of the family.

There are no known disadvantages to the public. The primary advantages to the agency and the Commonwealth are increased care and safety for citizens throughout the Commonwealth who chose to utilize electronic monitoring. There are no known disadvantages to the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Chapter 674 of the 2013 Acts of Assembly states:

That the Board of Health shall promulgate regulations governing the implementation of voluntary electronic monitoring in the rooms of residents of nursing homes, which shall include existing policies and procedures set forth in the Board's guidelines governing electronic monitoring of nursing home residents' rooms and described in the publication "Electronic Monitoring of Residents' Rooms.

The Board of Health consequently proposes to do just that.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. As indicated by the legislation, the proposed regulations set forth existing guidelines. Electronic monitoring is completely optional. The proposed regulations introduce no new costs. There may be a small benefit in that the proposed regulations may improve clarity about current policy.

Businesses and Entities Affected. The proposed amendments concern the 278 nursing facilities licensed in Virginia. Voluntary electronic monitoring may also moderately affect electronics suppliers and electrical contractors.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments will not affect employment.

Effects on the Use and Value of Private Property. The proposed amendments will not significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments will not significantly affect costs for small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Real Estate Development Costs. The proposed amendments do not affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act. and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The Department of Health concurs with the Department of Planning and Budget's economic assessment of 12VAC5-371-191 and that it is true and correct.

Summary:

In response to Chapter 674 of the 2013 Acts of Assembly, the State Board of Health is creating a new section pertaining to electronic monitoring in resident rooms that codifies a 2007 guideline the Department of Health developed to assist facilities with privacy intricacies related to installing electronic monitoring equipment. Installing such equipment is not mandatory; however, if installed, facilities must safeguard resident's autonomy and rights according to current federal and state privacy laws and regulations. The new regulation provides the framework to address policies and procedures, informed consent, and admission, discharge, or transfers and includes the equipment request process and notice procedures, retention and ownership of tapes or recordings, and reporting suspected abuse, neglect, accident, or injury discovered through electronic monitoring.

12VAC5-371-191. Electronic monitoring in resident rooms.

A. Each nursing facility shall adopt policies and procedures for electronic monitoring in the facility. Such policies and procedures shall include, but are not limited to:

1. Identification of the designated staff person responsible for handling requests for electronic monitoring and for coordinating the installation, operation, and dismantling of all equipment;

2. An outline of the resident or resident's legal representative's responsibility for electronic monitoring operations, such as the removal and replacement of tapes, and for implementing privacy protections or unauthorized dissemination of the recordings;

3. An outline of the costs the facility may charge the resident or the resident's legal representative for electronic monitoring. Such costs shall be reasonable and may include reimbursement costs for equipment and tapes, installation, compliance with the life safety code and the building and electrical codes, maintenance or removal of the equipment, posting and removing public notices, or structural repairs to the building resulting from the removal of the equipment;

4. The process for handling covert monitoring, if discovered;

5. The process for maintaining recordings or tapes, including the designation of custodial ownership and the storage location of the tapes;

6. The process the resident or resident's legal representative should follow to report untoward or questionable incidences regarding health, safety, or quality of care that is discovered through electronic monitoring to the facility administration and the OLC, including the OLC's Complaint Hotline telephone number; and

7. The process for residents, legal representatives, or staff to report suspected abuse, neglect, accident, or injury that is discovered through electronic monitoring.

B. Residents and legal representatives of residents shall be notified of the facility's policies and procedures for electronic monitoring upon admission and annually thereafter.

C. All requests for electronic monitoring shall be made in writing and signed by the resident or the resident's legal representative if the resident has been properly assessed incapable of requesting and authorizing the monitoring. Family members cannot insist on monitoring over the objections of the resident or the resident's roommate.

D. Residents and legal representatives of residents, if applicable, shall be fully informed of the right of a resident to implement electronic monitoring in the room in which he resides, the right of any resident to consent or refuse to consent to electronic monitoring in any room in which he resides, and the options available to any resident in cases in which he refuses to consent to electronic monitoring in any room in which he resides, including transfer to another room. The informed consent of all residents assigned to the monitored room must be obtained prior to installation of electronic monitoring equipment. A copy of the signed consent of all residents assigned to the monitored room shall be kept in each resident's respective medical record and with the staff person designated in subsection A of this section. All residents assigned to the monitored room shall be permitted to impose conditions for consent to electronic monitoring.

E. Electronic monitoring equipment shall be installed in a manner that is safe for residents, staff, or visitors. The equipment shall be fixed and unable to rotate. Facilities shall make reasonable physical accommodation for the monitoring equipment, including providing a reasonably secure place to mount the device and access to power sources for the device.

F. The facility shall conspicuously post and maintain a notice at the entrance to the resident's room stating that an electronic monitoring device is in operation. Facilities shall notify all staff and their OLC Long Term Care Supervisor that electronic monitoring is in use.

G. Only authorized monitoring is permitted. Covert monitoring is prohibited by law. Any monitoring of oral communication is subject to both federal and state wiretap laws and requires additional privacy protections to be in place.

H. Facilities shall have the option of retaining ownership of the recordings. If the facility chooses to retain ownership of the recordings, the recordings shall become part of the resident's medical record and the facility shall:

1. Accommodate family viewing of any recording, including but not limited to:

a. Providing appropriate playing or viewing equipment;

b. Privacy during viewing; and

c. Viewing times that are convenient to the resident's family.

2. Make the recordings available in accordance with all state and federal regulations that pertain to medical records.

I. A nursing facility shall not refuse to admit an individual and shall not discharge or transfer a resident solely because he has requested to implement or has implemented electronic monitoring in any room in which he resides, in accordance with this chapter, because the facility has discovered covert monitoring on the part of the resident or the resident's legal representative, or because he refuses to consent to electronic monitoring in any room in which he resides.