2013 -- H 5251

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LC00835

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO HEALTH AND SAFETY - ELECTRONIC MONITORING OF NURSING

HOME PREMISES

     Introduced By: Representatives Costa, Palumbo, Baldelli-Hunt, Giarrusso, and Phillips

     Date Introduced: February 05, 2013

     Referred To: House Health, Education & Welfare

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 17.8.1

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ELECTRONIC MONITORING OF PREMISES OF NURSING HOMES

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     23-17.8.1-1. Definitions. -- As used in this chapter:

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     (1) "Authorized electronic monitoring" means the placement of electronic monitoring

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devices in the common areas and rooms of residents of a nursing facility and recordings with the

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devices pursuant to the provisions of this chapter; and

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     (2) "Electronic monitoring device" means video surveillance cameras installed in the

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common areas and residents' rooms and audio devices installed in the residents' bathrooms and

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shower/bathing areas, designed to acquire communication or other sounds occurring in the rooms.

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     23-17.8.1-2. Placement of monitoring devices. -- (a) A licensed nursing facility shall

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place electronic monitoring devices throughout the nursing facility in areas including, but not

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limited to:

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     (1) Entrances and exits;

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     (2) Hallways;

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     (3) Dining areas;

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     (4) Nurses' stations; and

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     (5) Residents' rooms.

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     The resident and/or the resident's legal representative shall have the choice to opt out of

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electronic monitoring in the resident's room by executing a waiver prescribed by the director of

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the department of health. Should the resident or the resident's legal representative opt out by

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executing the waiver, electronic monitoring in that resident's room shall be turned off. In the

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event that a resident or a resident's legal representative chooses to opt out, execution of the waiver

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must be witnessed and signed by a representative of the state's long-term care ombudsman's

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office.

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     (b) Upon a resident's admission to a nursing facility, a form prescribed by the director

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shall be signed by the resident or the resident's legal representative which provides notice that the

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facility is required by state law to place electronic monitoring devices throughout the facility; this

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form shall provide language to allow the resident or resident's legal representative to opt out of

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electronic monitoring in the resident's room, if the resident or resident's legal representative

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chooses privacy over increased safety provided by electronic monitoring. The executed form shall

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be attached as a permanent record in the resident's file. The form shall also release the facility

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from any civil liability for a violation of the resident's privacy rights in connection with the use of

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the electronic monitoring device. The nursing facility shall be required to provide rooms to those

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residents who opt out of electronic monitoring. Under no circumstances will a resident be

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provided a room without video monitoring unless that resident or resident's legal representative

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opts out of electronic monitoring.

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     (c) Electronic monitoring in residents' rooms, bathrooms, and bathing areas shall be

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constant.

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     (d) Recordings shall be motion activated and activated whenever the nurse-call or call-

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for-assistance button is pressed for video recordings in residents' rooms and sound activated for

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bathrooms and bathing areas.

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     (e) Recordings shall capture a minimum of thirty (30) seconds after the activation and

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shall continue until no motion is detected for three (3) minutes.

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     (f) Recordings shall be maintained at the nursing facility for a minimum of thirty (30)

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days. Recordings shall be transferred to the department of health, where recordings will be stored

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for a minimum of five (5) years.

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     (g) Electronic monitoring systems for video monitoring shall be color, motion activated,

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with a minimum of fifteen (15) seconds per frame, minimum 550 resolution, with infrared

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illuminator or greater for night or low lighting monitoring.

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     (h) Nursing facilities shall post and maintain a conspicuous notice at the entrance of the

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facility stating that the facility is being monitored by electronic monitoring devices.

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     (i) A nursing facility which conducts authorized electronic monitoring in a resident's

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room pursuant to this chapter shall post and maintain a conspicuous notice at the entrance to the

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resident's room stating that the room is being monitored by one or more electronic monitoring

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devices.

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     23-17.8.1-3. Monitoring not compulsory. -- (a) Authorized electronic monitoring of a

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resident's room conducted under this chapter is not compulsory and shall only be conducted with

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the consent of the resident, residents, or legal representatives thereof.

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     (b) A nursing facility shall not refuse to admit an individual to residency in the facility

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and shall not remove a resident from a facility because of consent or refusal to consent to

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authorized electronic monitoring of a resident's room.

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     (c) All recordings made pursuant to this chapter shall show the time and date that events

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acquired on the tape or recording occurred.

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     23-17.8.1-4. Obstructing prohibited. -- (a) No person or entity shall intentionally

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hamper, obstruct, tamper with, or destroy an electronic monitoring device installed in a nursing

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facility.

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     (b) Any person or entity found guilty of hampering, obstructing, tampering or destroying

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an electronic monitoring device shall be guilty of a misdemeanor and subject to imprisonment for

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a period not to exceed one year and/or fined an amount not to exceed one thousand dollars

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($1,000) or both.

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     (c) No person or entity shall intercept a communication or disclosure or use an

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intercepted communication of an electronic monitoring device placed or installed in a nursing

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facility without the express consent of the facility, or, for an electronic monitoring device

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installed in a resident's room, the express consent of the resident or the legal representatives

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thereof. Such act shall be considered tampering.

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     23-17.8.1-5. Electronic files available. -- (a) A nursing facility shall make available to

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any resident or resident's legal representative real-time and recorded files. The nursing facility

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shall provide the resident or resident's legal representative with a secured Internet address, login,

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and password specifically for that respective resident to view real-time and recorded activity. The

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nursing facility shall provide a computer station at the facility for residents and their legal

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representatives to access real-time or recorded files. Recordings may be provided by the nursing

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facility upon request by residents and residents' legal representatives. Such recordings shall be

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provided by the nursing facility within forty-eight (48) hours. Residents and legal representatives

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may provide the nursing facility with DVDs or flash drives for the transfer of such recorded files,

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otherwise the nursing facility may charge a fee of no more than twenty-five dollars ($25.00) to

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recover the cost of storage media for such file transfers.

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     (b) A nursing facility shall make access to real-time video, tapes or other recordings

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permitted by this chapter available to the department of health. The state board of health shall

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promulgate rules as necessary to ensure that the provisions of this subsection do not violate the

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privacy rights of the residents protected by state or federal law.

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     (c) Residents, residents' legal representatives, authorized nursing home staff, and

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authorized state department of health staff shall have real-time access and access to recorded

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files.

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     (d) Law enforcement, prosecutors, and legal counsel representing a resident or residents'

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legal representative shall have access to recorded files.

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     23-17.8.1-6. Use of recording as evidence. -- (a) A tape or recording created through

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the use of authorized electronic monitoring pursuant to this chapter may be admitted into

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evidence in a civil or criminal court action or administrative proceeding, upon motion.

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     (b) A court or administrative agency may not admit into evidence a tape or recording

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created through the use of authorized electronic monitoring or take or authorize action based on

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the tape or recording, unless:

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     (1) If the tape or recording is a video tape or recording, the tape or recording shows the

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time and date that the events acquired on the tape or recording occurred;

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     (2) The contents of the tape or recording have not been edited or artificially enhanced;

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and

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     (3) If the contents of the tape or recording have been transferred from the original format

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to another technological format, the transfer was done by a qualified professional, and the

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contents of the tape or recording were not altered.

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     23-17.8.1-7. Other causes of action pursued. -- (a) This chapter shall not affect

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whether a person may be held civilly liable under other provisions of law in connection with

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placing an electronic monitoring device in the room of a resident of a nursing facility or in

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connection with using or disclosing a tape or recording made by the device except:

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     (1) As specifically provided in this chapter; or

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     (2) To the extent that liability is affected by a consent form or waiver signed pursuant to

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the provisions of this chapter or the fact that authorized electronic monitoring is required to be

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conducted with notice to persons who enter the facility or a resident's room.

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     (b) The department of health shall not be held civilly liable in connection with the

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placement or use of an electronic monitoring device in a nursing facility.

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     23-17.8.1-8. Resident's right to monitor. -- Nothing in this chapter shall be construed to

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prevent a resident or resident's legal representative from placing an electronic monitoring device

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in the resident's room at the expense of such person and with the consent of all other residents, or

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legal representatives thereof, living in the room.

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     23-17.8.1-9. Temporary waiver. -- Residents who have electronic monitoring in their

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rooms and who desire privacy for intimacy shall have the right to request a temporary waiver

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from monitoring during such personal periods under the following conditions:

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     (1) Temporary waivers must be executed by a resident who is of sound mind or does not

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have a diagnosis of Alzheimer's disease, dementia, or has not been deemed incompetent; or

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     (2) If the resident is not of sound mind, has a diagnosis of Alzheimer's disease, dementia,

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or has been deemed to be incompetent, the resident's legal representative may request the

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temporary waiver.

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     23-17.8.1-10. Authority of department of health. -- The department of health is

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authorized to impose administrative fines or deny, suspend, or refuse to renew the license of a

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nursing facility which violates the provisions of this chapter, and shall promulgate rules as

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necessary to implement the provisions of this chapter.

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     SECTION 2. This act shall take effect upon passage. Facilities subject to the provisions

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of this act shall comply no later than December 31, 2013.

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LC00835

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO HEALTH AND SAFETY - ELECTRONIC MONITORING OF NURSING

HOME PREMISES

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     This act would permit the electronic monitoring of nursing home facilities.

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     This act would take effect upon passage and would require compliance by December 31,

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2013.

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LC00835

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