PRINTER'S NO. 1514
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
397
Session of
2019
INTRODUCED BY MASSER, SCHLEGEL CULVER, DAY, KLUNK, STEPHENS,
MURT, HAHN, GLEIM, RYAN, KAUFFMAN, DAVIDSON, MILLARD,
PICKETT, DeLUCA, BERNSTINE, NEILSON, HEFFLEY, IRVIN, BROWN
AND GILLEN, APRIL 25, 2019
REFERRED TO COMMITTEE ON HEALTH, APRIL 25, 2019
AN ACT
Amending the act of July 19, 1979 (P.L.130, No.48), entitled "An
act relating to health care; prescribing the powers and
duties of the Department of Health; establishing and
providing the powers and duties of the State Health
Coordinating Council, health systems agencies and Health Care
Policy Board in the Department of Health, and State Health
Facility Hearing Board in the Department of Justice;
providing for certification of need of health care providers
and prescribing penalties," adding provisions relating to
patient care monitoring.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The act of July 19, 1979 (P.L.130, No.48), known
as the Health Care Facilities Act, is amended by adding a
chapter to read:
CHAPTER 8-A
PATIENT CARE MONITORING
Section 801-A. Scope of chapter.
This chapter relates to patient care monitoring.
Section 802-A. Definitions.
The following words and phrases when used in this chapter
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shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Department." The Department of Health of the Commonwealth.
"Long-term care nursing facility" or "facility." As defined
in section 802.1.
"Monitoring device." A video surveillance instrument
installed in the common areas or resident's room of a facility
under the provisions of this chapter that broadcasts,
photographs or records activity occurring in the facility.
"Representative of a resident." An individual who is
authorized to make decisions on behalf of a resident.
"Resident." An individual who resides in a long-term care
facility in this Commonwealth.
"Unauthorized electronic monitoring." An electronic,
mechanical or other means of monitoring a wire or electronic
communication that does not meet the provisions of this chapter
and is specifically used for the nonconsensual interception of
wire or electronic communications.
Section 803-A. Authorization and use of device.
(a) General rule.--A resident or representative of a
resident may authorize installation and use of a monitoring
device in a facility provided that:
(1) The facility is given notice of the installation.
(2) If the monitoring device records activity visually,
the recording denotes the date and time.
(3) The monitoring device and all installation and
maintenance costs are paid for by the resident.
(4) Installation of the monitoring device does not cause
extensive damage to the facility's interior walls or other
structures, unless the resident agrees to be liable for
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replacement or repair of the damage incurred during the
installation, maintenance or removal of the monitoring
device.
(b) Limitations on use.--The resident may establish and the
facility shall permit limits on the use, including the time of
operation, direction, focus or volume of a monitoring device,
provided that the monitoring device shall be placed in a
conspicuously visible location in the room of the resident.
Section 804-A. Conditions of consent.
(a) General rule.--A resident or representative of a
resident must consent in writing to the authorized electronic
monitoring in the resident's room. The consent must be on a form
prescribed by the department and placed on file in the facility.
(b) Residents occupying same room.--
(1) Written consent must be given by each resident or
representative of a resident who resides in the same room.
(2) Another resident who resides in the same room may:
(i) When the monitoring device is a video
surveillance camera, condition consent on the camera
being pointed away from the nonconsenting resident or in
private areas of the room.
(ii) Revoke that resident's consent at any time,
provided that revocation is in writing. The revocation of
consent shall be kept on file at the facility on a form
prescribed by the department.
(c) Release of liability.--Consent to the authorization for
the installation and use of a monitoring device shall include a
release of liability for the facility for a violation of the
resident's right to privacy insofar as the use of the monitoring
device is concerned.
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(d) Discrimination prohibited.--Neither a prospective
resident nor a resident may be denied admission to or discharged
from a facility or be otherwise discriminated against or
retaliated against for consenting to use authorized electronic
monitoring.
(e) Requests for room changes.--A long-term care facility
shall accommodate a resident or the representative of a resident
desiring to utilize a monitoring device to move to another room
if the resident or representative of the resident requests a
room change within a reasonable amount of time.
Section 805-A. Authorization form and contents.
The form for the authorization of installation and use of a
monitoring device shall provide for:
(1) Consent of the resident or the representative of the
resident authorizing the installation and use of the
monitoring device.
(2) Notice to the facility of the resident's
installation of a monitoring device and specifics as to its
type, function and use.
(3) Consent of any other resident or representative of
the resident sharing the same room.
(4) Notice of release from liability for privacy
violation through the use of the monitoring device.
(5) Waiver of the patient's right to privacy in
conjunction with the use of the monitoring device.
(6) Notification of the prohibition of audio recording
pursuant to 18 Pa.C.S. Ch. 57 (relating to wiretapping and
electronic surveillance).
Section 806-A. Notice.
(a) Main entrances.--A long-term care facility shall post at
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or near its main entrances a sign that clearly states that
monitoring devices may be in use in the facility.
(b) Residents' rooms.--Additional notice shall be displayed
at the entrance of the room of a resident in which authorized
electronic monitoring occurs stating that the room is being
monitored by a monitoring device.
Section 807-A. Access to recordings or photographs.
Any video recording or photograph produced from a monitoring
device at a facility shall be considered the personal property
of the resident and the facility may not access the recording or
photograph without the written consent of the resident or the
representative of the resident.
Section 808-A. Prohibition of obstruction or interception.
(a) General rule.--No person or entity may intentionally
hamper, obstruct, tamper with or destroy an electronic
monitoring device installed in a long-term care facility.
(b) Criminal offense.--A person or entity that intentionally
hampers, obstructs, tampers with or destroys a recording or a
monitoring device installed in a long-term care facility shall
be subject to the penalties prescribed in 18 Pa.C.S. ยง 4910
(relating to tampering with or fabricating physical evidence) as
it relates to tampering of physical evidence.
(c) Interception, disclosure and use of intercepted
communications.--No person or entity may intercept a
communication or disclose or use an intercepted communication of
a monitoring device placed or installed in a common area of a
long-term care facility without:
(1) the express written consent of the facility; or
(2) for an electronic monitoring device installed in a
resident's room, the express written consent of the resident
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or the representative of the resident.
Section 809-A. Admissibility of evidence.
(a) General rule.--In a civil action against a facility,
material obtained through the use of a monitoring device shall
be inadmissible as evidence if the monitoring device was
installed or used without the knowledge of the facility or
without the prescribed form.
(b) Immunity.--Compliance with the provisions of this
section shall be a complete defense against any civil or
criminal action brought against the resident, representative of
the resident or facility for the use or presence of a monitoring
device.
Section 810-A. Regulations and statements of policy.
(a) General rule.--The department shall, in consultation
with the Department of Aging, State Long-Term Care Ombudsman,
representatives of licensed long-term care service providers and
other aging advocates, promulgate regulations and issue
statements of policy as necessary or appropriate governing
electronic monitoring no later than one year after the effective
date of this section. The regulations shall establish minimum
standards, including, but not limited to:
(1) Consent and revocation of consent form.
(2) Resident's right to privacy under certain
circumstances.
(3) Notice of monitoring device usage in the facility.
(4) Fines relating to the violation of this chapter.
(5) Restricted area of placement of a monitoring device.
(b) Procedure.--Regulations shall be promulgated in
accordance with the provisions of the act of June 25, 1982
(P.L.633, No.181), known as the Regulatory Review Act.
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Section 2. This act shall take effect in one year.
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