2021 -- S 0112

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LC000425

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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: Senators Euer, Ruggerio, McCaffrey, Goodwin, Lawson, and Murray

     Date Introduced: January 26, 2021

     Referred To: Senate Health & Human Services

     It is enacted by the General Assembly as follows:

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

amended by adding thereto the following chapter:

CHAPTER 17.28

ELECTRONIC MONITORING IN NURSING AND ASSISTED LIVING FACILITIES

     23-17.28-1. Definitions.

     As used in this chapter:

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

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

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

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

accordance with this chapter.

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

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

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

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

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

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

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

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

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

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

reasonably be identified and located:

     (i) A court-appointed guardian;

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

pursuant to chapter 4.10 of title 23; or

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

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

     23-17.28-2. Authorization of electronic monitoring.

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

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

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

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

authorized pursuant to state or federal law.

     23-17.28-3. Consent to electronic monitoring.

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

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

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

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

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

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

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

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

notification and consent form.

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

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

conducted. The resident representative must explain to the resident:

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

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

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

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

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

     (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

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

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

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

be blocked at any time.

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

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

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

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

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

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

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

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

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

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

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

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

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

resident may resume electronic monitoring.

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

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

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

provided under § 23-17.28-5(d).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

unit to a resident who is unable to pay.

     23-17.28-5. Notice to facility.

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

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

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

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

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

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

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

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

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

has occurred;

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

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

desire for placement of an electronic monitoring device; or

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

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

desire for placement of an electronic monitoring device.

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

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

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

applicable.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

minimum, the following information:

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

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

must document the following:

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

conducted;

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

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

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

consent form on the resident's behalf;

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

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

form must document the following:

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

conducted;

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

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

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

consent form on the roommate's behalf;

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

     (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:

     (i) Prohibiting audio recording;

     (ii) Prohibiting video recording;

     (iii) Prohibiting broadcasting of audio or video;

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

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

care professional;

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

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

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

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

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

electronic monitoring device;

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

§ 23-17.28-10; and

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

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

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

unit.

     23-17.28-7. Costs and installation.

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

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

costs.

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

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

Internet service provider.

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

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

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

is not reasonable.

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

listed.

     23-17.28-8. Notice to visitors.

     (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

record persons and activities."

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

to subsection (a) of this section.

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

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

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

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

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

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

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

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

     23-17.28-10. Dissemination of recordings.

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

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

resident representative.

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

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

safety, or welfare concerns of one or more residents.

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

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

     23-17.28-11. Admissibility of evidence.

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

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

criminal, or administrative proceeding.

     23-17.28-12. Liability.

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

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

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

by a resident or a resident representative of a recording.

     23-17.28-13. Resident protections.

     (a) A facility shall not:

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

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

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

electronic monitoring.

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

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

     23-17.28-14. Employee discipline.

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

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

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

purposes of defending against the proposed action.

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

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

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

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

proposed action.

     23-17.28-15. Penalties.

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

failed to comply with any provisions of this chapter.

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

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

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

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

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

     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

***

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

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

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

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

in accordance with the applicable form.

     This act would take effect upon passage.

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