RÉSUMÉ DIGEST
ACT 596 (HB 281) 2018 Regular Session Talbot
New law provides the following definitions:
(1)"Monitoring device" means a surveillance instrument that transmits and records
activity and is not connected to a nursing facility's computer network.
(1)"Legal representative" means a legal guardian or a legally appointed substitute
decision-maker who is authorized to act on behalf of a nursing home resident.
New law provides that a nursing home resident who has the capacity to consent as
determined by emergency rules promulgated by the La. Department of Health (LDH) or a
legal representative may authorize the installation and use of a monitoring device in a nursing
home if all of the following conditions are met:
(1)The resident or 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 emergency rules promulgated by LDH, or that resident's legal
representative, gives written consent for the installation of the monitoring device.
New law requires that if the structure of the resident's room must be altered in order to
accommodate a monitoring device, then the renovation to the room may be done only by a
licensed contractor, subject to approval by the facility. Requires further that any monitoring
device installed pursuant to new law shall be in compliance with the National Fire Protection
Association Life Safety regulations.
New law requires nursing homes, at the time of a person's admission, to notify the person of
his right to have a monitoring device installed in his room, and to offer the person the option
to have a monitoring device. Provides that the person or his roommate may exercise the right
to install or remove a monitoring device at any time during which he resides in the nursing
home, and that the nursing home shall keep a record of the person's authorization or choice
not to have a monitoring device.
New law provides that 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, then the nursing
home shall make a reasonable attempt to accommodate the resident who wishes to have the
monitoring device installed. Stipulates that 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 an electronic monitoring device in his room, the facility offers to move either
resident to another shared room that is available at the time of the request.
New law provides that if a resident chooses to reside in a private room in order to
accommodate the use of an electronic monitoring device, the resident shall pay the private
room rate. Provides further that 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.
New law provides that after authorization, consent, and notice in accordance with new law,
a nursing home resident or his legal representative may install, operate, and maintain, at the
expense of the resident, a monitoring device in the room of the resident. Requires a nursing
home to cooperate to accommodate the installation of the monitoring device unless doing so
would place undue burden on the nursing home. New law requires that the monitoring device be in a fixed, stationary position and monitor
only the resident who consents either personally or through his legal representative to be
monitored.
New law stipulates that consent to the authorization for installation and use of a monitoring
device may be given only by the nursing home resident or a legal representative, and that
such consent shall 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.
New law authorizes nursing home residents or their legal representatives to reverse a choice
to have or not have a monitoring device installed and used at any time after notice of such
reversal has been made to the nursing home, and to the state long-term care ombudsman.
New law provides for a form for authorizing installation and use of a monitoring device, and
requires that the form provide for all of the following:
(1)Consent of the resident or 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.
(5)Waiver of the resident's right to privacy in connection with the use of the monitoring
device.
New law provides that in any civil action against a nursing home, material obtained through
the use of a monitoring device shall 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.
Stipulates that compliance with the provisions of new law shall be 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.
New law prohibits nursing homes from denying a person or resident admission to or
discharge from a nursing home, or otherwise discriminating or retaliating against a person
or resident, because the person or resident chooses to authorize installation and use of a
monitoring device. Provides that any person who knowingly or willfully violates these
provisions shall be subject to appropriate action by LDH as set forth in administrative rules
of the department.
New law prohibits intentional hampering, obstructing, tampering with, or destroying a
monitoring device or a recording made by a monitoring device installed in a nursing home
pursuant to new law. Stipulates, however, that this prohibition shall not apply to the resident
who owns the monitoring device or recording, or to his legal representative.
New law provides that if a resident of a nursing facility conducts electronic monitoring, a
sign shall be clearly and conspicuously posted at the main entrance of the nursing facility
building to alert and inform visitors. Provides specifications for the sign's text, type, and
font. Requires that the nursing facility be responsible for reasonable costs of installation and
maintenance of the sign.
New law requires that a sign be clearly and conspicuously posted at the entrance of a
resident's room where authorized electronic monitoring is being conducted. Provides
specifications for the sign's text, type, and font. Requires that the resident or his legal
representative be responsible for reasonable costs of installation and maintenance of the sign.
New law provides that any person who views an incident which a reasonable man would
consider abuse or neglect after viewing a recording made in a nursing facility shall report the
incident to the facility as soon as is practicable after the viewing. Requires that the facility be provided with a copy of the recording. Provides that if the recording must be transferred
to a different format to be viewed, the transfer shall be done at the expense of the facility by
a qualified professional who can certify that the contents of the recording were not altered.
Existing law, R.S. 40:2010.8, provides for a nursing home residents' bill of rights. New law
retains existing law and adds thereto the right to have a monitoring device installed in his
room in accordance with new law.
New law requires that on or before Jan. 1, 2019, each licensed nursing home in La. shall
provide to each nursing home resident or, if applicable, the legal guardian or legally
appointed substitute decision-maker authorized to act on behalf of the resident, a form
prescribed by LDH explaining the provisions of new law and giving each resident or legal
representative a choice to have a monitoring device installed in the room of the resident.
Requires nursing homes to retain a copy of each such form and make the completed forms
accessible to the state long-term care ombudsman.
Effective August 1, 2018.
(Adds R.S. 40:1193.1-1193.11 and 2010.8(A)(24))