Virginia Law

A. All requests for electronic monitoring shall be made in writing and signed by the resident or, if the resident has been legally deemed incompetent, the resident's legal representative.

B. Electronic monitoring shall be permitted only:

1. Upon the informed consent of the resident or resident's legal representative, which shall be obtained prior to the installation or use of any electronic monitoring device. Consent for electronic monitoring shall be kept in the resident's medical record;

2. If the resident resides:

a. In a room with no roommates; or

b. In a room with roommates and obtains written consent to visual recording from the roommates or, if a roommate has been legally deemed incompetent, the roommate's legal representative. If a resident resides with roommates, only video electronic monitoring shall be permitted pursuant to this subsection;

3. Upon execution of an agreement for the sharing and release of medical data and information protected by the federal Health Insurance Portability and Accountability Act of 1996 (42 USC § 1320d et seq.) signed by the resident or resident's legal representative or, if applicable, any such agreement signed by a roommate or roommate's legal representative shall be kept in all consenting individuals' medical records; and

4. If the nursing facility has secured and password-protected wireless Internet access or other means available to operate the electronic monitoring device without modification to the nursing facility or a change in level or capacity of Internet access.

C. A nursing facility shall allow electronic monitoring of a resident of a nursing facility if the electronic monitoring is conducted in accordance with this section. A nursing facility shall not refuse to admit an individual and shall not discharge or transfer a resident due to a request to conduct authorized electronic monitoring.

D. No family member may implement or activate electronic monitoring over the objections of or contrary to the instructions of the resident or the resident's legal representative. No electronic monitoring equipment may be installed over the objections of or contrary to the instructions of the resident or resident's legal representative.

E. A nursing facility shall designate one or more staff persons to be the point of contact for electronic monitoring requests and for providing information and policies upon request during normal business hours.

F. Nursing facility retained recordings shall be considered part of the resident's medical record and shall be retained for no less a time period than two years or as required by state and federal laws. Except as provided in subsection O of this section, a nursing facility may assume custodial ownership of any recordings from electronic monitoring devices from the resident or resident's legal representative. Recordings from electronic monitoring devices shall not be considered part of the resident's medical record.

G. If a nursing facility chooses to assume ownership of recordings from electronic monitoring devices pursuant to subsection F of this section, the nursing facility shall not permit viewings of recordings without consent of the resident or legal representative except to the extent that disclosure is required by law for quality assurance purposes. If unauthorized viewing is discovered, the nursing facility shall report any such violation to the Office of Long-Term Care Ombudsman and to the OLC.

H. No nursing facility shall be held liable for any breach of data or privacy related to the presence of the electronic monitoring device.

I. A nursing facility shall require facility staff to immediately report any incidents regarding safety or quality of care discovered or reported to staff as a result of viewing a recording from an electronic monitoring device to the administrator of the nursing facility and to the OLC. Nursing facilities shall instruct the resident or legal representative of this reporting requirement and shall provide the resident or the resident's legal representative with the OLC's complaint hotline telephone number.

J. A nursing facility shall have no obligation to seek access to a recording for which the nursing facility has not assumed custodial ownership or to have knowledge of a recording's content, unless (i) the nursing facility is aware of a recorded incident of suspected abuse or neglect or an accident or injury based upon a report received by the facility of such incident, accident, or injury or (ii) the resident, the resident's legal representative, or a government agency seeks to use a recording.

K. Unless a nursing facility chooses to assume ownership of any recordings from an monitoring device, the resident or resident's legal representative shall be responsible for all aspects of the operation of the electronic monitoring device, including the removal and replacement of recordings; adherence to local, state, and federal privacy laws; and for firewall protections to prevent images that would violate obscenity laws from being inadvertently shown on the Internet.

L. A nursing facility shall prohibit assigned staff from refusing to enter a resident's room solely because of electronic monitoring.

M. A nursing facility shall make reasonable physical accommodations for electronic monitoring devices, including:

1. Providing a reasonably secure place to mount the device; and

2. Providing reasonable access to power sources if already in proximity to the device.

N. A nursing facility shall require a resident or resident's legal representative to pay for all costs, other than the cost of electricity, associated with the purchase and installation of the electronic monitoring device. In addition, a nursing facility offering facility-managed electronic monitoring may charge a one-time fee not to exceed $150 when the electronic monitoring device is installed along with a security deposit not to exceed $250. A nursing facility may charge a monthly fee not to exceed $10 to cover costs associated with the electronic monitoring device. Such costs may include equipment, secured and password-protected wireless Internet and server capabilities, 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 equipment. Nursing facilities shall give 45 days of notice of an increase in monthly fees.

O. The resident of a room with an electronic monitoring device or the resident's legal representative may verbally or in writing condition consent for the installation or use of the electronic monitoring device. The conditions on consent may include (i) the ability of the resident, a roommate, or staff at the request of the resident or any roommate, to turn off or disable the audio or video electronic monitoring device during certain periods of time and (ii) a prohibition on the ability of the nursing facility to, pursuant to subsection F of this section, choose to assume custodial ownership of recordings from the electronic monitoring device after the electronic monitoring device has been installed and is operational. If the resident or resident's legal representative or any roommate or roommate's legal representative places conditions on consent, the nursing facility and staff shall ensure that the installation, use, and operation of the electronic monitoring device and electronic monitoring or other activities be conducted in connection with the electronic monitoring are conducted in compliance with the conditions.

P. The nursing 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.

Q. A nursing facility shall notify assigned staff for the resident and the long-term care division of the OLC when electronic monitoring is in use in a resident's room pursuant to this section.

R. A nursing facility shall prohibit staff from covert monitoring in violation of this chapter. Nursing facilities shall instruct the resident or legal representative of this prohibition and shall provide the resident or the resident's legal representative with the OLC's complaint hotline telephone number.

S. If covert monitoring is discovered, the nursing facility shall report any such violation to the Office of Long-Term Care Ombudsman and OLC, and the nursing facility may require a resident or a resident's legal representative to meet all the requirements for authorized monitoring, if permitted by the nursing facility.

T. Nursing facilities shall instruct the resident or the resident's legal representative of this prohibition and shall provide the resident or the resident's legal representative with the OLC's complaint hotline telephone number.

U. A nursing facility shall adopt policies and procedures for electronic monitoring consistent with this section.

V. A nursing facility shall adopt a policy prohibiting staff from willfully tampering with electronic monitoring devices in violation of this section. Adjusting or disabling an electronic monitoring device during the provision of patient care shall not constitute willful tampering if the adjusting or disabling is done in order to protect the dignity of a resident or at the direction of the resident or resident's legal representative.

W. If the placement or position of the electronic monitoring device creates risk to a nursing facility employee, resident, or roommate or if the resident or resident's legal representative or family member violates the nursing facility's policies and procedures for electronic monitoring, the equipment may be disabled and removed and the nursing facility shall notify the resident, resident's legal representative, or family member responsible for the camera of the removal.