TITLE 9 HUMAN
RIGHTS
CHAPTER 2 AGE
PART 23 PATIENT
CARE MONITORING IN LONG-TERM CARE FACILITIES
9.2.23.1 ISSUING AGENCY: Aging and Long-Term Services Department.
[9.2.23.1 NMAC - N, 7/15/04]
9.2.23.2 SCOPE: This rule applies to the general public.
[9.2.23.2 NMAC - N, 7/15/04]
9.2.23.3 STATUTORY AUTHORITY: This rule is adopted pursuant to the terms of Sections 28-4-6(B), 28-17-5 and 28-17-19 NMSA 1978, Law 2004, Ch. 23, Sec. 6(E) and Laws 2004, Ch. 53, Sec. 10.
[9.2.23.3 NMAC - N, 7/15/04]
9.2.23.4 DURATION: Permanent.
[9.2.23.4 NMAC - N, 7/15/04]
9.2.23.5 EFFECTIVE DATE: July 15, 2004, unless a later date is cited
in the history note at the end of a section.
[9.2.23.5 NMAC - N, 7/15/04]
9.2.23.6 OBJECTIVE: This rule implements the provisions of the
Patient Care Monitoring Act, Laws 2004, Ch. 53.
[9.2.23.6 NMAC - N, 7/15/04]
9.2.23.7 DEFINITIONS: The following terms are used in this rule:
A. “department” means the aging and long-term services department;
B. “facility” means a long-term care
facility licensed pursuant to the provisions of Section 24-1-5 NMSA 1978, other
than an intermediate care facility for the mentally retarded, and may also
include:
(1) a skilled nursing facility;
(2) an intermediate care nursing facility;
(3) a nursing facility;
(4) an adult residential shelter care home;
(5) a boarding home;
(6) any adult care home or adult residential
care facility; and
(7) any swing bed in an acute care facility
or extended care facility;
C. “monitoring device” means a surveillance instrument
that broadcasts or records activity, but does not include a still camera;
D. “patient” means a person who is a resident of a
facility;
E. “program” means the New Mexico long-term care ombudsman program;
F. “roommate” means a patient who shares a room in a facility with a
patient who has chosen, or whose surrogate has chosen, to install and use a
monitoring device; and
G. “surrogate” means a legal guardian or a legally
appointed substitute decision-maker who is authorized to act on behalf of a
patient.
[9.2.23.7 NMAC - N, 7/15/04]
9.2.23.8 AUTHORIZATION AND USE OF A
MONITORING DEVICE:
A. A patient or surrogate may authorize installation and use
of a monitoring device in a facility provided that:
(1) the facility is given notice of the
installation on a form prescribed by the department;
(2) if the monitoring device records activity
visually, such recording shall include a record of the date and time;
(3) the monitoring device and all
installation and maintenance costs are paid for by the patient or surrogate;
(4) written consent is given by each roommate
or each roommate’s surrogate on a form prescribed by the department;
(5) the monitoring is conducted in accordance
with any limitation placed on it as a condition of consent by a roommate or the
roommate’s surrogate; and
(6) if a roommate or the roommate’s surrogate
also wishes to install and use a monitoring device, the patient or surrogate
consents to the installation and use on terms that are no more restrictive than
any that have been placed on the patient’s or surrogate’s installation and use.
B. A patient or surrogate may establish and a facility shall
accommodate limits on the use, including the time of operation, direction,
focus or volume, of a monitoring device.
[9.2.23.8 NMAC - N, 7/15/04]
9.2.23.9 INSTALLATION AND USE OF A MONITORING DEVICE:
A. At the time of admission to a facility, a patient shall be offered
the option to have a monitoring device, and a record of the patient’s
authorization or choice not to have a monitoring device shall be kept by the
facility and shall be made accessible to the program.
B. After authorization, consent and notice, a patient or surrogate
may install, operate and maintain a
monitoring device in the patient’s room at the patient’s or surrogate’s
expense. The patient or surrogate is
responsible for all costs associated with installing, operating and maintaining
the monitoring device, except the cost of electricity.
C. A patient or surrogate is responsible
for selecting the type of monitoring device that will be used in the patient’s
room. If the patient or surrogate
chooses to install a monitoring device that uses Internet technology, the
monitoring device must have at least 128-bit encryption and enable a secure
socket layer (“SSL”).
[9.2.23.9 NMAC - N, 7/15/04]
9.2.23.10 ACCOMMODATION BY FACILITY:
A facility shall cooperate to accommodate the installation of
a monitoring device, provided the installation does not place undue burden on
the facility.
A. Reasonable accommodation includes, but is not limited to,
the following:
(1)
providing a reasonably secure place to mount a monitoring device;
(2)
providing access to power sources, if feasible;
(3)
rearranging a room, if feasible;
(4)
accommodating the limits a patient or roommate, or a surrogate of
either, may place on the use of a monitoring device, if feasible;
(5)
referring a patient or surrogate to potential roommates or surrogates of
roommates who have indicated on a current patient authorization form that they
would consent to monitoring if a current roommate or surrogate of a roommate
withholds consent; and
(6)
allowing patients, roommates and potential roommates to change rooms,
when feasible, in those cases where consent is an issue.
B. Undue burden includes, but is not limited to, making structural changes to a
room by anyone other than a licensed contractor, or a non-licensed person
approved by the facility.
C. If a patient or surrogate chooses to
install a monitoring device that uses Internet technology for visual
monitoring, a facility shall allow the patient or surrogate to install any
necessary Internet access line(s), if feasible. This may require access to the facility’s telecommunications or
equipment room, and the facility shall provide such access. In addition:
(1)
a patient or surrogate is responsible for contracting with an Internet
provider and for any expense for activation, installation and on-going service;
and
(2)
the facility is not required to allow Internet access through facility
or corporate networks that also maintain confidential patient, medical,
financial or personnel records.
D. A facility
has the burden of proving that a requested accommodation is not feasible or
constitutes an undue burden.
E. A facility may impose a refundable
damage deposit of up to $150 to cover the cost of repairing any damages to the
facility caused by the installation or removal of a monitoring device. Within thirty days after the removal of a monitoring
device, the facility shall deliver to the patient or surrogate a written
statement itemizing any deductions from the deposit together with the balance
of the deposit. The facility has the
burden of proving that any deductions from the deposit are reasonable.
[9.2.23.10 NMAC - N, 7/15/04]
9.2.23.11 CONSENT OF PATIENT:
A. Consent to the authorization for the installation and use of a
monitoring device may be given only by a patient or surrogate.
(1) If a patient
has capacity to consent, only the patient may do so, notwithstanding the terms
of any durable power of attorney, advance health-care directive, or similar
instrument.
(2) If a patient does not have capacity to consent, only the
patient’s surrogate may give consent.
If there is a dispute among surrogates within the same priority class
under the Uniform Health-Care Decisions
Act, none of them
can give consent.
(3)
A patient is presumed to have capacity to consent unless the patient has
been determined to be incapacitated by a court of competent jurisdiction or by
two qualified health-care professionals, one of whom shall be the primary
physician, in accordance with the terms of the Uniform Health-Care Decisions
Act.
B. 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 patient’s right to privacy insofar as the use of the
monitoring device is concerned.
C. A patient or surrogate may reverse a choice to have or not have a
monitoring device installed and used at any time, after notice to the facility
on a form prescribed by the department.
[9.2.23.11 NMAC - N, 7/15/04]
9.2.23.12 CONSENT OF ROOMMATES:
A. Consent of a roommate to the installation and use of a monitoring
device by a patient or surrogate may be given only by the roommate or the
roommate’s surrogate.
(1) If a roommate
has capacity to consent, only the roommate may do so, notwithstanding the terms
of any durable power of attorney, advance health-care directive, or similar
instrument.
(2) If a roommate
does not have capacity to consent, only the roommate’s surrogate may give
consent. If there is a dispute among
surrogates within the same priority class under the Uniform Health-Care Decisions Act, none of them can give consent.
(3)
A roommate is presumed to have capacity to consent unless the roommate
has been determined to be incapacitated by a court of competent jurisdiction or
by two qualified health-care professionals, one of whom shall be the primary
physician, in accordance with the terms of the Uniform Health-Care Decisions
Act.
B. 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 roommate’s right to privacy insofar as the use of the monitoring device is concerned.
C. A roommate or the roommate’s
surrogate may condition or limit consent on the use, including the time of
operation, direction, focus or volume, of a monitoring device.
D. A roommate or the roommate’s surrogate may reverse a choice to
give, not give, or limit consent at any time, after notice to the facility on a
form prescribed by the department.
E. If a monitoring device is being used in the room of a
patient and a new roommate, who has not yet consented to the use of the
monitoring device, moves into the room, monitoring shall cease until the new roommate,
or the new roommate’s surrogate, has consented in accordance with this section.
[9.2.23.12 NMAC - N, 7/15/04]
9.2.23.13 FORMS:
A. The department shall prescribe forms for implementing the Patient
Care Monitoring Act and this rule. No
facility shall use any forms other than those prescribed by the department.
B. A facility shall maintain the original copies of all
completed forms relating to a patient for at least three years from the date of
the patient’s discharge from the facility.
The forms shall be accessible to the program at all times.
[9.2.23.13 NMAC - N, 7/15/04]
9.2.23.14 AUTHORIZATION FORM:
The form for the authorization of installation and use of a monitoring
device shall provide for:
A. consent of the patient or surrogate authorizing the installation
and use of the monitoring device;
B. notice to the facility of the patient’s installation of a
monitoring device and specifics as to its type, function and use;
C. consent of any roommate, or that roommate’s surrogate;
D. notice of release from liability for privacy violation through the
use of the monitoring device; and
E. waiver of the patient’s right to privacy in conjunction with the
use of the monitoring device.
[9.2.23.14 NMAC - N, 7/15/04]
9.2.23.15 UNAUTHORIZED USE: In any civil action against the facility, material obtained
through the use of a monitoring device may not be used if the monitoring device
was installed or used without the knowledge of the facility or without the prescribed
form.
[9.2.23.15 NMAC - N, 7/15/04]
9.2.23.16 IMMUNITY:
Compliance with the provisions of the Patient Care Monitoring Act shall
be a complete defense against any civil or criminal action brought against the
patient, surrogate or facility for the use or presence of a monitoring device.
[9.2.23.16 NMAC - N, 7/15/04]
9.2.23.17 NOTICE TO CURRENT PATIENTS:
Within six months of the effective date of the Patient Care Monitoring
Act, all facilities shall provide to each patient or surrogate a form prescribed
by the department explaining the provisions of the Patient Care Monitoring Act
and giving each patient or surrogate a choice to have a monitoring device
installed in the patient’s room. Copies
of the completed form shall be kept by the facility and shall be made
accessible to the program.
[9.2.23.17 NMAC - N, 7/15/04]
9.2.23.18 NOTICE OF MONITORING DEVICE:
The facility shall post a notice in a conspicuous place at the entrance
to a room with a monitoring device that a monitoring device is in use in that
room of the facility. The notice shall
be posted at the facility’s expense and shall state in English and
Spanish: “WARNING: THIS ROOM IS MONITORED ELECTRONICALLY.”
[9.2.23.18 NMAC - N, 7/15/04]
9.2.23.19 PROHIBITED ACTS:
No person or patient shall be denied admission to or discharged from a
facility or be otherwise discriminated against or retaliated against because of
a choice to authorize installation and use of a monitoring device. Any person who violates this section shall
be subject to the provisions of Section 28-17-19 NMSA 1978 and Rule 9.2.21
NMAC.
A. The civil penalty for denying a person admission to a
facility or for discharging a patient from a facility in violation of this
section shall be $10,000 per occurrence.
B. The minimum civil penalty for failing
to accommodate the installation of a monitoring device, in violation of Section
9.2.23.10 of this rule, shall be $1,000.
C. The minimum civil penalty for any
person other than a patient or surrogate interfering with the use of a
monitoring device or destroying a recording made by a monitoring device shall
be $1,000.
D. The minimum civil penalty for failing to refund a damage
deposit in accordance with the terms of Section 9.2.23.10 of this rule shall be
$500.
E. The civil penalties for other forms
of discrimination or retaliation that violate this section shall be determined
in a manner consistent with Rule 9.2.21 NMAC.
F Except for violations of Subsections B, C and D of this
section, it is irrelevant whether the installation or use of a monitoring
device was authorized in accordance with the terms of the Patient Care
Monitoring Act and this rule.
[9.2.23.19 NMAC - N, 7/15/04]
9.2.23.20 CRIMINAL ACTS:
Any person other than a patient or surrogate found guilty of
intentionally hampering, obstructing, tampering with or destroying a monitoring
device or a recording made by a monitoring device installed in a facility
pursuant to the Patient Care Monitoring Act is guilty of a fourth degree felony
and shall be sentenced pursuant to Section 31-18-15 NMSA 1978.
[9.2.23.20 NMAC - N, 7/15/04]
History of 9.2.23 NMAC: [RESERVED]