(a) An individual or an individual's legally authorized representative (LAR) who requests to conduct electronic monitoring in the individual's bedroom must obtain consent annually on behalf of any individual who shares a bedroom with the requesting individual, using the required Texas Health and Human Services (HHSC) form. To provide consent, the form must be signed and dated by a person described in subsection (b) of this section and given to the director of the facility in which the individual resides. If the person's consent is conditioned on a limitation, the limitation must be stated on the form.
(b) Consent to conduct electronic monitoring may be given:
  (1) only by an individual who shares a bedroom with the requesting individual, if the individual's interdisciplinary team (IDT) determines that the individual has the capacity to consent to electronic monitoring in accordance with §965.6 of this chapter (relating to Capacity to Request or Consent to Electronic Monitoring) and the individual has not been judicially declared to lack the required capacity; or
  (2) only by the guardian of an individual who shares a bedroom with the requesting individual, if the individual has been judicially declared to lack the required capacity; or
  (3) only by an LAR, other than the guardian, of an individual who shares a bedroom with the requesting individual, if the individual's IDT determines that the individual does not have the capacity to consent to electronic monitoring in accordance with §965.6 of this chapter, but the individual has not been judicially declared to lack the required capacity.
(c) Except as provided in subsection (g) of this section, consent given in accordance with this section may be conditioned on:
  (1) pointing the camera away from the roommate, when the proposed electronic monitoring device (EMD) is a video surveillance camera;
  (2) limiting or prohibiting the use of an audio EMD;
  (3) limiting or prohibiting the use of a recording made by an EMD; or
  (4) limiting or prohibiting the use of an EMD in any other way.
(d) If an individual who has not yet consented to electronic monitoring moves into a bedroom in which electronic monitoring is being conducted, the electronic monitoring must cease until consent is obtained from or on behalf of the individual in accordance with this section.
(e) If more than a year has elapsed since consent was given by or on behalf of an individual who shares a bedroom with an individual conducting electronic monitoring, the electronic monitoring must cease until consent is obtained in accordance with this section.
(f) A facility must maintain a copy of the required HHSC form in the individual's active record of the individual consenting to electronic monitoring.
(g) Consent that is subject to a condition, as described in subsection (c) of this section, must not prevent a person from complying with this chapter or other law, including §965.9(a) of this chapter (relating to Reporting Abuse, Neglect, and Exploitation). If a condition on consent would require a person to violate this chapter or other law, the consent is not valid.

Source Note: The provisions of this §965.5 adopted to be effective December 21, 2022, 47 TexReg 8275