A01446
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1428
Session of
2021
INTRODUCED BY MASSER, SCHLEGEL CULVER, DAY, KLUNK, PICKETT,
RYAN, DAVANZO, HILL-EVANS, LEWIS DELROSSO, BROOKS, R. BROWN,
THOMAS, MILLARD, HEFFLEY AND FEE, MAY 17, 2021
REFERRED TO COMMITTEE ON AGING AND OLDER ADULT SERVICES,
MAY 17, 2021
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 resident 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 RESIDENT CARE MONITORING
Section 801-A. Scope of chapter.
This chapter relates to patient resident 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.
"Electronic monitoring device." A video surveillance
instrument installed in the room of a resident of a facility, in
accordance with this chapter, which broadcasts, photographs or
records activity occurring in the facility.
"Facility." As the term "long-term care nursing facility" is
defined in section 802.1.
"Guardian." A fiduciary who has the care and management of
the estate or person of an incapacitated person under the
provisions of 20 Pa.C.S. Ch. 55 (relating to incapacitated
persons).
"Legal representative." An individual who is authorized
under a power of attorney that complies with 20 Pa.C.S. Ch. 56
(relating to powers of attorney) 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
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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
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.
(a) Who may authorize.--A resident may authorize
installation and use of an electronic monitoring device in the
following ways:
(1) If a resident has capacity to request an electronic
monitoring device and has not been judicially declared to
lack the required capacity, only the resident may authorize
an electronic monitoring device in a facility,
notwithstanding the terms of a power of attorney or similar
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legal agreement executed by the resident.
(2) If a resident has been judicially declared to lack
capacity required for taking an action such as requesting an
electronic monitoring device, only the guardian of the
resident may authorize an electronic monitoring device in a
facility.
(3) Subject to paragraph (2), if a resident has been
determined by a physician to lack capacity to request an
electronic monitoring device, only the legal representative
of the resident may authorize an electronic monitoring device
in a facility.
(b) Requirements.--A resident or the guardian or legal
representative of the resident may authorize installation and
use of an electronic monitoring device in a facility provided
that:
(1) The facility is given notice of the installation at
least 30 days prior to the installation .
(2) If the electronic monitoring device records activity
visually, the recording denotes the date and time.
(3) The electronic monitoring device and all
installation, removal and maintenance costs , including
Internet service costs and network access costs, are paid for
by the resident or guardian or legal representative of the
resident .
(4) Installation of the electronic monitoring device
does not cause extensive damage to the facility's interior
walls or other structures, unless the resident agrees to be
liable for replacement or repair of the damage incurred
during the installation, maintenance or removal of the
electronic monitoring device.
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(5) The electronic monitoring device is installed and
conducted only in a fixed position.
(6) The electronic monitoring device is placed in a
conspicuous location.
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.
(a) Form.--
(1) A resident or the guardian or legal representative
of the resident who authorizes an electronic monitoring
device in a facility shall notify the facility on an
electronic monitoring device authorization form prescribed by
the department and provided by the facility to the resident,
guardian or legal representative.
(2) The form in subsection (a) shall:
(i) Require the resident or the guardian or legal
representative of the guardian to choose whether the
electronic monitoring device will always be unobstructed
or whether the camera should be obstructed in specified
circumstances to protect the dignity of the resident.
(ii) Specify that the consent of other residents
residing in the same room as the resident must be
obtained regarding the use of the electronic monitoring
device.
(b) Written consent generally.--Subject to subsection (c),
written consent for an electronic monitoring device in a
facility shall be given only by:
(1) A resident who has capacity to sign the consent
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form.
(2) The guardian of the resident, if the resident has
been judicially declared to lack capacity required to sign
the consent form.
(3) The legal representative of the resident, if the
resident does not have capacity to sign the consent form but
has not been judicially declared to lack capacity required to
sign the consent form.
(b) (c) Residents occupying same room.--
(1) Written Prior to the use of the electronic
monitoring device, written consent must shall be given by
each other resident or representative of a resident , or the
guardian or legal representative of each other resident, who
resides in the same room . as the resident for whom an
electronic monitoring device in a facility is being used.
(2) Another resident who resides in the same room as the
resident for whom an electronic monitoring device in a
facility is being used may:
(i) When the electronic monitoring device is a video
surveillance camera, condition consent on the camera
being pointed away from the nonconsenting resident
residing in the same room or in private areas of the
room. An electronic monitoring device may not be placed
in a bathroom.
(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
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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.
(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 an
electronic monitoring device .
(e) Requests for room changes.--A long-term care facility
shall make every effort to accommodate a resident or the
representative of a guardian or legal representative of the
resident desiring to utilize a an electronic monitoring device
to move to another room if the resident or representative
guardian or legal representative of the resident requests a room
change within a reasonable amount of time. A facility may not be
cited by the department if the facility cannot accommodate a
room change requested for this purpose.
Section 805-A. Authorization Electronic monitoring device
authorization form and contents.
The form for the electronic monitoring device authorization
of installation and use of a monitoring device shall provide
for:
(1) Consent of the resident or the representative
guardian or legal representative of the resident authorizing
the installation and use of the electronic monitoring device.
(2) Notice to the facility of the resident's
installation of a an electronic monitoring device and
specifics as to its type, function and use.
(3) Consent of any other resident or representative of
the resident the guardian or legal representation of any
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other resident sharing the same room . of the resident for
whom an electronic monitoring device in a facility is being
used , including any condition set by any other resident of
the same room .
(4) Notice of release from liability for privacy
violation through the use of the electronic monitoring
device.
(5) Waiver of the patient's resident's right to privacy
in conjunction with the use of the electronic monitoring
device.
(6) Notification of the prohibition of audio recording
pursuant to under 18 Pa.C.S. Ch. 57 (relating to wiretapping
and electronic surveillance).
(7) A release from civil liability on the part of a
facility for a violation of the resident's privacy rights
regarding the use of the electronic monitoring device in the
facility.
Section 806-A. Notice.
(a) Main entrances.--A long-term care facility shall post at
or near its main entrances a sign that clearly states that
electronic 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
with an electronic monitoring occurs device 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 an
electronic 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
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of the resident or the guardian or legal representative of the
resident. The following apply:
(1) A person or entity that distributes material
obtained from an electronic monitoring device with the intent
to ridicule or demean the resident shall be subject to the
penalties prescribed in 18 Pa.C.S. ยง 2713 (relating to
neglect of care-dependent person).
(2) A violation of this section shall constitute a
misdemeanor of the third degree.
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 violation of this section shall
constitute a misdemeanor of the second degree. A person or
entity that intentionally or knowingly hampers, obstructs,
tampers with or destroys a recording or a an electronic
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 an electronic 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, without the express written consent of the
resident or the guardian or legal representative of the
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resident.
Section 809-A. Admissibility of evidence.
(a) General rule.--In a civil action against a facility,
material obtained through the use of a an unauthorized
electronic 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, guardian or legal
representative of the resident or facility for the use or
presence of a an electronic 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 electronic monitoring device usage in the
facility.
(4) Fines relating to the violation of this chapter.
(5) Restricted area of placement of a an electronic
monitoring device.
(b) Procedure.--Regulations shall be promulgated in
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accordance with the provisions of the act of June 25, 1982
(P.L.633, No.181), known as the Regulatory Review Act.
(c) Effect of chapter.--Nothing in this chapter shall be
construed to supersede Federal authority regarding facilities or
prevent the department from taking necessary actions to render
the Commonwealth eligible for Federal funds or reimbursement
services provided in facilities.
Section 2. This act shall take effect in one year.
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