MISSISSIPPI LEGISLATURE
2020 Regular Session
To: Public Health and Human Services
By: Representative Bennett
AN ACT TO REQUIRE THAT INSTITUTIONS FOR THE AGED OR INFIRM SHALL PERMIT A RESIDENT OR THE RESIDENT'S NEXT OF KIN OR GUARDIAN TO MONITOR THE ROOM OF THE RESIDENT THROUGH THE USE OF ELECTRONIC MONITORING DEVICES; TO PROVIDE THAT ELECTRONIC MONITORING MUST PROTECT THE PRIVACY RIGHTS OF OTHER RESIDENTS AND VISITORS TO THE EXTENT REASONABLY POSSIBLE; TO PROVIDE THAT AN INSTITUTION MAY NOT REFUSE TO ADMIT AN INDIVIDUAL TO RESIDENCY IN THE INSTITUTION AND MAY NOT REMOVE A RESIDENT FROM THE INSTITUTION BECAUSE OF A REQUEST TO CONDUCT ELECTRONIC MONITORING; TO REQUIRE INSTITUTIONS TO MAKE REASONABLE PHYSICAL ACCOMMODATION FOR ELECTRONIC MONITORING; TO PROVIDE CRIMINAL PENALTIES FOR VIOLATIONS OF THE ACT BY ADMINISTRATORS OF INSTITUTIONS OR OTHER PERSONS; TO DIRECT THE STATE BOARD OF HEALTH TO PROMULGATE RULES AND REGULATIONS TO ENFORCE THE PROVISIONS OF THIS ACT; TO DEFINE "ELECTRONIC MONITORING DEVICE" AND "ELECTRONIC MONITORING"; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Institution for the Aged or Infirm Virtual Visitation Act."
SECTION 2. (1) A licensed institution for the aged or infirm, as defined in Section 43-11-1, shall permit a resident, the resident's next of kin at the request of the resident, or the resident's guardian to monitor the room of the resident through the use of electronic monitoring devices.
(2) (a) For purposes of this section, "electronic monitoring device" or "monitoring device" includes:
(i) Video surveillance cameras installed in the room of a resident; and
(ii) Audio devices installed in the room of a resident designed to acquire communications or other sounds occurring in the room.
(b) For purposes of this section, "electronic monitoring" means the use of an electronic monitoring device.
(3) The institution shall inform a resident or the resident's guardian of his or her right to conduct electronic monitoring.
(4) The institution may require that a request to conduct electronic monitoring be made in writing.
(5) Each resident occupying the same room, or that resident's guardian, must give written consent for the installation of the monitoring device.
(6) 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 institution must make a reasonable attempt to accommodate the resident who wishes to have the monitoring device installed. An institution 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 or her room, the institution offers to move either resident to another shared room that is available at the time of the request.
(7) Consent to the authorization for installation and use of a monitoring device shall include a release of liability for the institution for a violation of the resident's right to privacy concerning the use of the monitoring device.
(8) The institution shall require a resident or the resident's guardian or next of kin who conducts electronic monitoring to post a notice on the door of the resident's room. The notice must state that the room is being monitored by an electronic monitoring device.
(9) Electronic monitoring conducted in this section:
(a) Is not compulsory and may be conducted only at the request of the resident or the resident's guardian;
(b) Must be paid for by the resident or the resident's guardian or next of kin; and
(c) Must protect the privacy rights of other residents and visitors of the institution to the extent that is reasonably possible.
(10) The institution may not refuse to admit an individual to residency in the institution and may not remove a resident from the institution because of a request to conduct electronic monitoring.
(11) A resident or a guardian may 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 institution.
(12) The form for the authorization of installation and use of a monitoring device shall provide for all of the following:
(a) Consent of the resident or guardian authorizing the installation and use of the monitoring device;
(b) Notice to the institution of the resident's installation of a monitoring device, including the type, function and use of the device;
(c) Consent of any other resident sharing the same room, or that resident's guardian, to the installation and use of a monitoring device;
(d) Notice and release from liability for violation of privacy through the use of the monitoring device; and
(e) Waiver of the resident's right to privacy in connection with the use of the monitoring device.
(13) The institution shall make reasonable physical accommodation for electronic monitoring, including:
(a) Providing a reasonably secure place to mount the monitoring device; and
(b) Providing access to power sources for the monitoring device.
(14) If electronic monitoring is conducted, the institution may require the resident, the resident's next of kin, or the resident's guardian to conduct the electronic monitoring in plain view.
(15) If the monitoring device records activity visually, the recordings made by the device must include a record of the date and time.
(16) The resident or the resident's guardian or next of kin must pay for the monitoring device and all installation and maintenance costs associated with the device.
(17) A resident shall pay the private room rate if he or she chooses to reside in a private room in order to accommodate the use of a monitoring device. If an institution is unable to accommodate a resident due to the lack of space, the institution shall reevaluate the request at least once every two (2) weeks until the request is fulfilled.
(18) Compliance with the provisions of this section shall be a complete defense to any civil or criminal action brought against the resident, guardian, next of kin or institution for the use or presence of a monitoring device.
(19) Subject to applicable rules of evidence and procedure, a tape or recording created through the use of electronic monitoring conducted under this section may be admitted into evidence in a civil or criminal court action or administrative proceeding.
(20) In any civil action against an institution, 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 institution, or installed or used without the prescribed form.
(21) An administrator of an institution who knowingly refuses to permit a resident, the resident's next of kin, or the resident's guardian to monitor the room of the resident in accordance with this section through the use of monitoring devices is guilty of a misdemeanor.
(22) An administrator of an institution who knowingly or willingly refuses to admit an individual to residency in the institution, or who knowingly allows the removal of a resident from the institution, because of a request to conduct electronic monitoring under this section is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than One Thousand Dollars ($1,000.00) nor more than Two Thousand Five Hundred Dollars ($2,500.00).
(23) A person who knowingly or willingly hampers, obstructs, tampers with, or destroys an electronic monitoring device installed in a resident's room in accordance with this section or a tape or recording made by the device is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than Five Thousand Dollars ($5,000.00) and imprisoned for not more than six (6) months.
(24) The prohibition and penalties provided in this section shall not apply to the resident who owns the monitoring device or recording, or his or her guardian or next of kin.
(25) The State Board of Health shall promulgate rules and regulations to enforce the provisions of this section.
(26) On or before July 1, 2021, each institution shall provide to each resident of the institution or his or her guardian, a form prescribed by the department explaining the provisions of the Institution for the Aged or Infirm Virtual Visitation Act, and giving each resident or guardian a choice to have a monitoring device installed in the room of the resident.
(27) Each institution shall retain a copy of each form completed in accordance with this section, and shall make all such forms accessible to the State Department of Health.
SECTION 3. This act shall take effect and be in force from and after July 1, 2020.