2021 -- H 5561

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LC001297

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2021

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A N   A C T

RELATING TO HEALTH AND SAFETY -- ELECTRONIC MONITORING IN NURSING

AND ASSISTED LIVING FACILITIES

     

     Introduced By: Representatives McEntee, Craven, Fogarty, Knight, Shanley, and Batista

     Date Introduced: February 12, 2021

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby

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amended by adding thereto the following chapter:

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CHAPTER 17.28

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ELECTRONIC MONITORING IN NURSING AND ASSISTED LIVING FACILITIES

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     23-17.28-1. Definitions.

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     As used in this chapter:

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     (1) "Department" means the Rhode Island department of health.

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     (2) "Director" means the director of the Rhode Island department of health.

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     (3) "Electronic monitoring" means the placement and use of an electronic monitoring

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device by a resident or the resident representative in the resident's room or private living unit in

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accordance with this chapter.

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     (4) "Electronic monitoring device" means a camera or other device that captures, records,

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or broadcasts audio, video, or both, that is placed in a resident's room or private living unit and is

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used to monitor the resident or activities in the room or private living unit.

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     (5) "Facility" means a facility that is:

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     (i) Licensed as a heath care facility under § 23-17-10 and the regulations for Licensing of

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Nursing Facilities (216-RICR-40-10-1);

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     (ii) Licensed as an assisted living residence under § 23-17.4-1, et seq. and the regulations

 

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for Licensing Assisted Living Residence (216-RICR-40-10-2).

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     (6) "Resident" means a person eighteen (18) years of age or older residing in a facility.

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     (7) "Resident representative" means one of the following, to the extent the person may

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reasonably be identified and located:

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     (i) A court-appointed guardian;

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     (ii) A health care agent or agent acting pursuant to a durable power of attorney as executed

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pursuant to chapter 4.10 of title 23; or

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     (iii) A person who is not an agent of a facility who is designated in writing by the resident

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and maintained in the resident's records on file with the facility.

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     23-17.28-2. Authorization of electronic monitoring.

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     (a) A resident or a resident representative may conduct electronic monitoring of the

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resident's room or private living unit through the use of electronic monitoring devices placed in the

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resident's room or private living unit as provided in this chapter.

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     (b) Nothing in this chapter precludes the use of electronic monitoring of health care as

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authorized pursuant to state or federal law.

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     23-17.28-3. Consent to electronic monitoring.

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     (a) Except as otherwise provided in this section, a resident or the resident’s representative

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must consent to electronic monitoring in the resident's room or private living unit in writing on a

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notification and consent form. If the resident has not affirmatively objected to electronic monitoring

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and the resident's health care provider determines that the resident currently lacks the ability to

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understand and appreciate the nature and consequences of electronic monitoring, the resident

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representative may consent on behalf of the resident. For purposes of this section, a resident

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affirmatively objects when the resident verbally, visually, or through the use of auxiliary aids or

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services declines electronic monitoring. The resident's response must be documented on the

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notification and consent form.

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     (b) Prior to a resident representative consenting on behalf of a resident, the resident

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representative shall inquire of the resident if the resident wants electronic monitoring to be

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conducted. The resident representative must explain to the resident:

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     (1) The type of electronic monitoring device to be used;

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     (2) The standard conditions that may be placed on the electronic monitoring device's use,

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including those set forth in § 23-17.28-6;

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     (3) With whom the recording may be shared under §§ 23-17.28-10 and 23-17.28-11; and

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     (4) The resident's ability to decline all recording.

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     (c) A resident or resident representative, when consenting on behalf of the resident, may

 

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consent to electronic monitoring with any conditions of the resident's or resident representative's

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choosing, including the list of standard conditions provided in § 23-17.28-6. A resident, or resident

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representative when consenting on behalf of the resident, may request that the electronic monitoring

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device be turned off or the visual or audio recording component of the electronic monitoring device

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be blocked at any time.

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     (d) Prior to implementing electronic monitoring, a resident, or resident representative when

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acting on behalf of the resident, must obtain the written consent on the notification and consent

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form of any other resident residing in the shared room or shared private living unit. A roommate's

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or roommate's resident representative's written consent must comply with the requirements of

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subsections (a) through (c) of this section. Consent by a roommate or a roommate's resident

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representative under this section authorizes the resident's use of any recording obtained under this

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chapter, as provided under §§ 23-17.28-10 and 23-17.28-11.

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     (e) Any resident conducting electronic monitoring must immediately remove or disable an

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electronic monitoring device prior to a new roommate moving into a shared room or shared private

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living unit, unless the resident obtains the roommate's or roommate's resident representative's

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written consent as provided under subsection (d) of this section prior to the roommate moving into

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the shared room or shared private living unit. Upon obtaining the new roommate's signed

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notification and consent form and submitting the form to the facility pursuant to § 23-17.28-5, the

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resident may resume electronic monitoring.

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     (f) The resident or roommate, or the resident representative of the resident or roommate, if

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the representative is consenting on behalf of the resident or roommate, may withdraw consent at

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any time and the withdrawal of consent shall be documented on the original consent form as

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provided under § 23-17.28-5(d).

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     23-17.28-4. Refusal of roommate to consent.

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     If a resident of a facility who is residing in a shared room or shared living unit, or the

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resident representative of such a resident when acting on behalf of the resident, wants to conduct

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electronic monitoring and another resident living in or moving into the same shared room or shared

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living unit refuses to consent to the use of an electronic monitoring device, the facility shall make

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a reasonable attempt to accommodate the resident who wants to conduct electronic monitoring. A

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facility has met the requirement to make a reasonable attempt to accommodate a resident or resident

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representative who wants to conduct electronic monitoring when, upon notification that a roommate

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has not consented to the use of an electronic monitoring device in the resident's room, the facility

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offers to move the resident to another shared room or shared living unit that is available at the time

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of the request. If a resident chooses to reside in a private room or private living unit in a facility in

 

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order to accommodate the use of an electronic monitoring device, the resident must pay either the

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private room rate in a nursing home setting, or the applicable rent in a housing with services

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establishment or assisted living facility. If a facility is unable to accommodate a resident due to

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lack of space, the facility must reevaluate the request every two (2) weeks until the request is

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fulfilled. A facility is not required to provide a private room, a single-bed room, or a private living

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unit to a resident who is unable to pay.

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     23-17.28-5. Notice to facility.

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     (a) Electronic monitoring may begin only after the resident or resident representative who

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intends to place an electronic monitoring device and any roommate or roommate's resident

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representative completes the notification and consent form and submits the form to the facility.

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     (b) Notwithstanding subsection (a) of this section, the resident or resident representative

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who intends to place an electronic monitoring device may do so without submitting a notification

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and consent form to the facility for up to fourteen (14) days:

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     (1) If the resident or the resident representative reasonably fears retaliation against the

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resident by the facility and timely submits a Rhode Island department of health complaint or police

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report, or both, upon evidence from the electronic monitoring device that suspected maltreatment

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has occurred;

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     (2) If there has not been a timely written response from the facility to a written

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communication from the resident or resident representative expressing a concern prompting the

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desire for placement of an electronic monitoring device; or

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     (3) If the resident or resident representative has already submitted a Rhode Island

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department of health complaint or police report regarding the resident's concerns prompting the

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desire for placement of an electronic monitoring device.

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     (c) Upon receipt of any completed notification and consent form, the facility must place

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the original form in the resident's file or file the original form with the resident's housing with

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services contract. The facility must provide a copy to the resident and the resident's roommate, if

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applicable.

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     (d) If a resident is conducting electronic monitoring according to subsection (b) of this

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section and a new roommate moves into the room or living unit, the resident or resident

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representative must submit the signed notification and consent form to the facility. In the event that

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a resident or roommate, or the resident representative or roommate's resident representative if the

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representative is consenting on behalf of the resident or roommate, chooses to alter the conditions

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under which consent to electronic monitoring is given or chooses to withdraw consent to electronic

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monitoring, the facility must make available the original notification and consent form so that it

 

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may be updated. Upon receipt of the updated form, the facility must place the updated form in the

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resident's file or file the original form with the resident's housing with services contract. The facility

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must provide a copy of the updated form to the resident and the resident's roommate, if applicable.

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     (e) If a new roommate, or the new roommate's resident representative when consenting on

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behalf of the new roommate, does not submit to the facility a completed notification and consent

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form and the resident conducting the electronic monitoring does not remove or disable the

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electronic monitoring device, the facility must remove the electronic monitoring device.

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     (f) If a roommate, or the roommate's resident representative when withdrawing consent on

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behalf of the roommate, submits an updated notification and consent form withdrawing consent

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and the resident conducting electronic monitoring does not remove or disable the electronic

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monitoring device, the facility must remove the electronic monitoring device.

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     23-17.28-6. Notification and consent form requirements.

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     (a) The notification and consent form completed by the resident must include, at a

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minimum, the following information:

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     (1) The resident's signed consent to electronic monitoring or the signature of the resident

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representative, if applicable. If a person other than the resident signs the consent form, the form

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must document the following:

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     (i) The date the resident was asked if the resident wants electronic monitoring to be

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conducted;

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     (ii) Who was present when the resident was asked;

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     (iii) An acknowledgment that the resident did not affirmatively object; and

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     (iv) The source of authority allowing the resident representative to sign the notification and

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consent form on the resident's behalf;

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     (2) The resident's roommate's signed consent or the signature of the roommate's resident

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representative, if applicable. If a roommate's resident representative signs the consent form, the

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form must document the following:

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     (i) The date the roommate was asked if the roommate wants electronic monitoring to be

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conducted;

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     (ii) Who was present when the roommate was asked;

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     (iii) An acknowledgment that the roommate did not affirmatively object; and

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     (iv) The source of authority allowing the resident representative to sign the notification and

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consent form on the roommate's behalf;

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     (3) The type of electronic monitoring device to be used;

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     (4) A list of standard conditions or restrictions that the resident or a roommate may elect

 

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to place on the use of the electronic monitoring device, including, but not limited to:

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     (i) Prohibiting audio recording;

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     (ii) Prohibiting video recording;

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     (iii) Prohibiting broadcasting of audio or video;

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     (iv) Turning off the electronic monitoring device or blocking the visual recording

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component of the electronic monitoring device for the duration of an exam or procedure by a health

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care professional;

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     (v) Turning off the electronic monitoring device or blocking the visual recording

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component of the electronic monitoring device while dressing or bathing is performed; and

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     (vi) Turning off the electronic monitoring device for the duration of a visit with a spiritual

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adviser, ombudsman, attorney, financial planner, intimate partner, or other visitor;

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     (5) Any other condition or restriction elected by the resident or roommate on the use of an

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electronic monitoring device;

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     (6) A statement of the circumstances under which a recording may be disseminated under

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§ 23-17.28-10; and

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     (7) A signature box for documenting that the resident or roommate has withdrawn consent.

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     (b) Facilities must make the notification and consent form available to the residents and

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inform residents of their option to conduct electronic monitoring of their rooms or private living

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unit.

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     23-17.28-7. Costs and installation.

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     (a) A resident or resident representative choosing to conduct electronic monitoring must

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do so at the resident's own expense, including the purchase, installation, maintenance, and removal

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costs.

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     (b) If a resident chooses to place an electronic monitoring device that uses Internet

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technology for visual or audio monitoring, the resident may be responsible for contracting with an

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Internet service provider.

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     (c) The facility shall make a reasonable attempt to accommodate the resident's installation

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needs, including allowing access to the facility's public-use Internet or Wi-Fi systems when

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available for other public uses. A facility has the burden of proving that a requested accommodation

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is not reasonable.

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     (d) All electronic monitoring device installations and supporting services must be UL-

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listed.

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     23-17.28-8. Notice to visitors.

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     (a) A facility must post a sign at each facility entrance accessible to visitors that states:

 

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"Electronic monitoring devices, including security cameras and audio devices, may be present to

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record persons and activities."

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     (b) The facility is responsible for installing and maintaining the signage required pursuant

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to subsection (a) of this section.

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     23-17.28-9. Obstruction of electronic monitoring devices.

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     (a) A person must not knowingly hamper, obstruct, tamper with, or destroy an electronic

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monitoring device placed in a resident's room or private living unit without the permission of the

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resident or resident representative. Checking the electronic monitoring device by facility staff for

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the make and model number does not constitute tampering under this section.

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     (b) It is not a violation of subsection (a) of this section if a person turns off the electronic

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monitoring device or blocks the visual recording component of the electronic monitoring device at

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the direction of the resident or resident representative, or if consent has been withdrawn.

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     23-17.28-10. Dissemination of recordings.

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     (a) No person, facility, or facility representative may access any video or audio recording

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created through authorized electronic monitoring without the written consent of the resident or

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resident representative.

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     (b) Except as prohibited by any other state or federal law, a recording or copy of a recording

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made as provided in this chapter may only be disseminated for the purpose of addressing health,

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safety, or welfare concerns of one or more residents.

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     (c) A person disseminating a recording or copy of a recording made as provided in this

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chapter in violation of subsection (b) of this section may be civilly or criminally liable.

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     23-17.28-11. Admissibility of evidence.

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     Subject to applicable rules of evidence and procedure, any video or audio recording created

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through electronic monitoring under this chapter may be admitted into evidence in any civil,

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criminal, or administrative proceeding.

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     23-17.28-12. Liability.

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     (a) The mere presence of an electronic monitoring device in a resident's room or private

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living unit is not a violation of the resident's right to privacy under § 23-17.5-14.

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     (b) A facility or home care provider is not civilly or criminally liable for the mere disclosure

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by a resident or a resident representative of a recording.

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     23-17.28-13. Resident protections.

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     (a) A facility shall not:

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     (1) Refuse to admit a potential resident or remove a resident because the facility disagrees

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with the decision of the potential resident, the resident, or a resident representative acting on behalf

 

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of the resident regarding electronic monitoring; or

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     (2) Retaliate or discriminate against any resident for consenting or refusing to consent to

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electronic monitoring.

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     (b) Any contractual provision prohibiting, limiting, or otherwise modifying the rights and

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obligations in this chapter is contrary to public policy and is void and unenforceable.

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     23-17.28-14. Employee discipline.

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     (a) An employee of the facility or an employee of a contractor providing services at the

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facility, including an arranged home care, who is the subject of proposed disciplinary action based

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upon evidence obtained by electronic monitoring, must be given access to that evidence for

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purposes of defending against the proposed action.

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     (b) An employee who obtains a recording or a copy of the recording must treat the

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recording or copy confidentially and must not further disseminate it to any other person except as

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required pursuant to applicable law. Any copy of the recording must be returned to the facility or

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resident who provided the copy when it is no longer needed for purposes of defending against a

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proposed action.

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     23-17.28-15. Penalties.

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     (a) The director may issue a statement of deficiency, upon a finding that the facility has

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failed to comply with any provisions of this chapter.

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     (b) For each violation of this chapter, any licensed facility shall be guilty of a misdemeanor

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for each violation punishable by a fine of not more than five hundred dollars ($500).

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     (c) Any person convicted of a violation pursuant to § 23-17.28-10(c), shall be guilty of a

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misdemeanor for each violation punishment by a fine of not more than five hundred dollars ($500),

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or shall be imprisoned not more than six (6) months, or both.

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     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY -- ELECTRONIC MONITORING IN NURSING

AND ASSISTED LIVING FACILITIES

***

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     This act would allow for the use of electronic monitoring of a resident’s room or private

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living unit within a nursing home or assisted living facility, provided that the resident or resident

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representative acting on behalf of the resident, as well as the resident’s roommate or roommate’s

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representative acting on behalf of the roommate, consent to such electronic monitoring in writing

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in accordance with the applicable form.

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     This act would take effect upon passage.

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