AN
ACT
RELATING TO LONG-TERM CARE;
ENACTING THE PATIENT CARE MONITORING ACT; ESTABLISHING AUTHORIZATION AND USE OF
MONITORING DEVICES; PROVIDING FOR WAIVERS; PROVIDING FOR ENFORCEMENT AND
PENALTIES.
BE IT ENACTED BY THE LEGISLATURE
OF THE STATE OF NEW MEXICO:
Section
1. SHORT TITLE.--This act may be cited
as the "Patient Care Monitoring Act".
Section
2. DEFINITIONS.--As used in the Patient
Care Monitoring Act:
A. "agency" means the state agency on
aging;
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; and
F. "surrogate" means a legal guardian
or a legally appointed substitute decision-maker who is authorized to act on
behalf of a patient.
Section
3. MONITORING DEVICE--AUTHORIZATION AND
USE.--
A. A patient or a surrogate 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, 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; and
(4) written consent is given by each patient or
surrogate of each patient occupying the same room.
B. The patient may establish and the facility
shall accommodate limits on the use, including the time of operation,
direction, focus or volume, of a monitoring device.
Section
4. MONITORING DEVICE
OPTION--INSTALLATION--ACCOMMODATION BY FACILITY.--
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 expense.
C. The facility shall cooperate to accommodate
the installation of the monitoring device, provided the installation does not
place undue burden on the facility.
Section
5. CONSENT--WAIVER.--
A. Consent to the authorization for the
installation and use of a monitoring device may be given only by the patient or
the surrogate.
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 the surrogate may reverse a
choice to have or not have a monitoring device installed and used at any time,
after notice to the facility and to the program upon a form prescribed by the
agency.
Section
6. AUTHORIZATION FORM--CONTENTS.--The
form for the authorization of installation and use of a monitoring device shall
provide for:
A. consent of the patient or the 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 other patient or that
patient's surrogate sharing the same room;
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.
Section
7. IMMUNITY--UNAUTHORIZED USE.--
A. 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.
B. 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.
Section
8. 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
agency 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.
Section
9. NOTICE.--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.
Section
10. RULES.--The agency shall adopt rules
necessary to implement the provisions of the Patient Care Monitoring Act.
Section
11. 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.
Section
12. 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.