A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ENACTING THE "NURSING HOME VIRTUAL VISITATION ACT" BY ADDING CHAPTER 83 TO TITLE 44 SO AS TO ALLOW RESIDENTS OF NURSING HOMES TO AUTHORIZE THE INSTALLATION AND USE OF A MONITORING DEVICE IN THEIR ROOM, WITH EXCEPTIONS; TO PROVIDE CERTAIN PROTECTIONS FROM CIVIL LIABILITY FOR CONDUCT AUTHORIZED BY THIS CHAPTER; TO REQUIRE NOTICE TO VISITORS AND OTHER RESIDENTS OF THE USE OF MONITORING DEVICES; AND FOR OTHER PURPOSES; AND BY AMENDING SECTION 44-81-40, RELATING TO RIGHTS OF NURSING HOME RESIDENTS, SO AS TO ADD THE RIGHT TO USE A MONITORING DEVICE AS A RIGHT FOR RESIDENTS OF NURSING HOMES.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  This act may be cited as the "Nursing Home Virtual Visitation Act."

 

SECTION 2.  Title 44 of the S.C. Code is amended by adding:

 

CHAPTER 83

 

Monitoring of Nursing Home Care

 

    Section 44-83-10.  As used in this chapter:

    (1) "Department" means the South Carolina Department of Public Health.

    (2) "Legal representative" means a legal guardian or legally appointed substitute decision-maker who is authorized to act on behalf of a nursing home resident.

    (3)(a) "Monitoring device" means an electronic surveillance instrument that transmits and records activity and is not connected to a nursing home's computer network.

       (b) The term "monitoring device" does not include a camera that records still images exclusively.

    (4) "Nursing home" means the same as the term is defined in Section 44-7-130.

    (5) "Ombudsman" means the Administrator of the South Carolina Long Term Care Ombudsman Program established within the Department on Aging pursuant to Chapter 35, Title 43.

    (6) "Resident" means a person who is a resident of a nursing home.

 

    Section 44-83-20.  (A) A resident who has the capacity to consent, as determined by regulations promulgated by the department pursuant to this chapter, or the resident's legal representative, may authorize the installation and use of a monitoring device in the resident's room if all of the following conditions are met:

       (1) The resident or the resident's legal representative gives notice of the installation to the nursing home.

       (2) If the monitoring device records activity visually, the recordings made by the device include a record of the date and time.

       (3) The resident pays for the monitoring device and all installation, operation, maintenance, and removal costs associated with the device.

       (4) Each resident occupying the same room who has the capacity to consent, as determined by regulations promulgated by the department pursuant to this chapter, or that resident's legal representative, gives consent for the installation of the monitoring device.

    (B) If the structure of the resident's room must be altered in order to accommodate a monitoring device, the renovation to the room may be done only by a licensed contractor, subject to approval by the nursing home.

    (C) Any monitoring device installed in accordance with the provisions of this chapter must be in compliance with the National Fire Protection Association Life Safety regulations.

 

    Section 44-83-30.  (A)(1) At the time of a person's admission to a nursing home, the nursing home shall notify the person of the right to have a monitoring device installed in the person's room, and shall offer the person the option to have a monitoring device. The resident or the resident's roommate may exercise the right to install or remove a monitoring device at any time during which that person resides in the nursing home. The nursing home shall keep a record of the person's authorization or choice not to have a monitoring device.

       (2) The nursing home shall make the record provided for in item (1) accessible to the ombudsman.

    (B)(1) If a resident who is residing in a shared room wishes to have a monitoring device installed in the room and another resident living in or moving into the same shared room refuses to consent to the use of the monitoring device, the nursing home shall make a reasonable attempt to accommodate the resident who wishes to have the monitoring device installed. A nursing home shall be deemed to have met this accommodation requirement when, upon notification that a roommate has not consented to the use of a monitoring device in his room, the nursing home offers to move either resident to another shared room that is available at the time of the request.

       (2) If a resident chooses to reside in a private room in order to accommodate the use of a monitoring device, the resident shall pay the private room rate. If a nursing home is unable to accommodate a resident due to lack of space, the nursing home shall reevaluate the request at least once every two weeks until the request is fulfilled.

    (C) After authorization, consent, and notice in accordance with this chapter, a resident or the resident's legal representative may install, operate, and maintain, at the expense of the resident, a monitoring device in the room of the resident.

    (D) The nursing home shall cooperate to accommodate the installation of the monitoring device unless doing so would place undue burden on the nursing home.

    (E) The monitoring device must be in a fixed, stationary position and only may monitor the resident who consents to be monitored, either personally or through the resident's legal representative.

 

    Section 44-83-40.  (A) Consent to the authorization for installation and use of a monitoring device may be given only by the resident or the resident's legal representative.

    (B) Consent to the authorization for installation and use of a monitoring device must include a release of liability for the nursing home for a violation of the resident's right to privacy insofar as the use of the monitoring device is concerned.

    (C) A resident or the resident's legal representative may reverse a choice to have or not have a monitoring device installed and used at any time after notice of the reversal has been made to the nursing home, and to the ombudsman, upon a form prescribed by the department.

 

    Section 44-83-50.  The form for the authorization of installation and use of a monitoring device must provide for all of the following:

       (1) consent of the resident or the resident's legal representative authorizing the installation and use of the monitoring device;

       (2) notice to the nursing home of the resident's installation of a monitoring device and specifics as to the type, function, and use of the device;

       (3) consent of any other resident sharing the same room, or that resident's legal representative, to the installation and use of a monitoring device;

       (4) notice of release from liability for violation of privacy through the use of the monitoring device; and

       (5) waiver of the resident's right to privacy in connection with the use of the monitoring device.

 

    Section 44-83-60.  (A) In any civil action against a nursing home, material obtained through the use of a monitoring device may not be used if the device was installed or used without the knowledge of the nursing home or installed or used without the prescribed form.

    (B) Compliance with the provisions of this chapter is a complete defense to any civil or criminal action brought against the resident, legal representative, or nursing home for the use or presence of a monitoring device.

 

    Section 44-83-70.  (A)(1) A nursing home may not deny a person admission to a nursing home, discharge a resident from a nursing home, or otherwise discriminate or retaliate against a person or resident because the person or resident chooses to authorize installation and use of a monitoring device.

       (2) Any person who knowingly or wilfully violates the provisions of item (1) is subject to appropriate action by the department as set forth in regulations promulgated pursuant to this chapter.

    (B)(1) Except as provided in item (2), it is a violation of law for any person to intentionally hamper, obstruct, tamper with, or destroy a monitoring device or a recording made by a monitoring device installed in a nursing home pursuant to this chapter. A person who violates a provision of this item is subject to appropriate action by the department as set forth in regulations promulgated pursuant to this chapter.

       (2) The prohibition and penalties provided in this section do not apply to the resident who owns the monitoring device or recording, or to the resident's legal representative.

 

    Section 44-83-80.  (A) If any resident of a nursing home uses a monitoring device as allowed pursuant to this chapter, the nursing home shall maintain a sign at the main entrance to alert and inform visitors. The sign must be maintained in a clear and conspicuous location at the main entrance and in large, clearly legible type and font and bear the following words: "Electronic Monitoring: The rooms of some residents may be equipped with monitoring devices installed by or on behalf of the resident."

    (B) For any resident who uses a monitoring device as allowed pursuant to this chapter, a sign must be posted clearly and conspicuously at the entrance of the resident's room where authorized electronic monitoring is being conducted. The sign must be in large, clearly legible type and font and bear the following words: "This room is electronically monitored."

    (C) The nursing home is responsible for reasonable costs of installation and maintenance of the sign required by subsection (A). The resident or the resident's legal representative is responsible for installing and maintaining the sign required pursuant to subsection (B), which also must be in accordance with the written policy of the nursing home.

 

    Section 44-83-90.  Any person who views an incident which a reasonable person would consider abuse or neglect after viewing a recording made in a nursing home shall report the incident to the nursing home as soon as is practicable after the viewing. The nursing home must be provided with a copy of the recording in which the suspected incident of abuse or neglect occurred. If the recording must be transferred to a different format to be viewed, the nursing home shall pay all expenses associated with the transfer of the recording by a qualified professional who can certify that the contents of the recording were not altered.

 

    Section 44-83-100. The department shall promulgate regulations as are necessary for implementation of the provisions of this chapter.

 

SECTION 3.  Section 44-81-40 of the S.C. Code is amended by adding:

 

    (Q) Each nursing home resident has the right to have a monitoring device installed in the resident's room in accordance with the Nursing Home Virtual Visitation Act, Section 44-83-10, et seq.

 

SECTION 4.  (A) Within six months of the effective date of this act, every nursing home licensed by the South Carolina Department of Public Health shall provide to each resident of the nursing home or, if applicable, to the resident's legal representative, a form prescribed by the department explaining the provisions of the Nursing Home Virtual Visitation Act, as enacted by SECTION 2 of this act, and giving each resident or the resident's legal representative a choice to have a monitoring device installed in the room of the resident.

    (B) Every nursing home shall retain a copy of each form completed in accordance with this section and shall make all completed forms accessible to the Administrator of the South Carolina Long-Term Care Ombudsman Program within the Department on Aging.

 

SECTION 5.  This act takes effect upon approval by the Governor.

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