2024 -- S 2263 | |
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LC004603 | |
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STATE OF RHODE ISLAND | |
IN GENERAL ASSEMBLY | |
JANUARY SESSION, A.D. 2024 | |
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A N A C T | |
RELATING TO HEALTH AND SAFETY -- ELECTRONIC MONITORING IN NURSING | |
AND ASSISTED LIVING FACILITIES | |
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Introduced By: Senators Euer, Lawson, Gu, DiMario, Acosta, Lauria, Cano, Zurier, | |
Date Introduced: February 08, 2024 | |
Referred To: Senate Judiciary | |
It is enacted by the General Assembly as follows: | |
1 | SECTION 1. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby |
2 | amended by adding thereto the following chapter: |
3 | CHAPTER 17.29 |
4 | ELECTRONIC MONITORING IN NURSING AND ASSISTED LIVING FACILITIES |
5 | 23-17.29-1. Definitions. |
6 | As used in this chapter: |
7 | (1) "Affirmative objection" means any verbal or written statement or statements, or made |
8 | through the use of auxiliary aids or services, or any visual cue, that indicates that a resident is |
9 | opposed to electronic monitoring within their room, except if the resident has been determined to |
10 | lack the requisite capacity to make their own healthcare decisions. |
11 | (2) “Authorized electronic monitoring” means the placement and use of an electronic |
12 | monitoring device by a resident in the residents room or private living unit in accordance with this |
13 | chapter. |
14 | (3) “Department” means the Rhode Island department of health. |
15 | (4) “Director” means the director of the Rhode Island department of health. |
16 | (5) “Electronic monitoring device” means any photo, video, and/or audio surveillance |
17 | equipment with a fixed position, that broadcasts or records activities or sounds occurring in the |
18 | room or private living unit within which it is installed. |
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1 | (6) “Facility” means an entity that is: |
2 | (i) Licensed as a healthcare facility under chapter 17 of title 23 and the regulations for |
3 | Licensing of Nursing Facilities (216-RICR-40-10-1, or superseding regulations); or |
4 | (ii) Licensed as an assisted living residence under chapter 17.4 of title 23 and the |
5 | regulations for Licensing Assisted Living Residence (216-RICR-40-10-2, or superseding |
6 | regulations). |
7 | (7) “Resident” means a person residing in a facility as defined in subsection (6) of this |
8 | section. |
9 | (8) “Resident representative” means one of the following, in order of priority: |
10 | (i) A healthcare agent or agent acting pursuant to a durable power of attorney, as executed |
11 | pursuant to chapter 4.10 of title 23; |
12 | (ii) A court-appointed guardian; |
13 | (iii) A resident’s spouse; or |
14 | (iv) A resident’s parent. |
15 | 23-17.29-2. Authorization of electronic monitoring. |
16 | (a) A resident or their representative shall be permitted to conduct authorized electronic |
17 | monitoring of the resident’s room or private living unit through the use of electronic monitoring |
18 | devices placed in the resident’s room or private living unit as provided in this chapter. |
19 | (b) Nothing in this chapter precludes the use of electronic monitoring of healthcare as |
20 | authorized pursuant to state or federal law. |
21 | 23-17.29-3. Consent to electronic monitoring. |
22 | (a) Except as otherwise provided in this section, a resident or their representative shall |
23 | consent to electronic monitoring in the resident’s room or private living unit in writing, on a |
24 | notification and consent form prescribed by the department. If the resident has not affirmatively |
25 | objected to electronic monitoring and the resident’s healthcare provider determines that the resident |
26 | lacks the ability to understand and appreciate the nature and consequences of electronic monitoring, |
27 | the resident’s representative may consent on behalf of the resident. |
28 | (b) Prior to a resident representative consenting on behalf of a resident, the resident |
29 | representative shall inquire if the resident consents to electronic monitoring to be conducted. The |
30 | resident representative shall explain to the resident: |
31 | (1) The type of electronic monitoring device to be used; |
32 | (2) The standard conditions that may be placed on the electronic monitoring device’s use, |
33 | including those set forth in § 23-17.29-6; |
34 | (3) With whom the recording may be shared pursuant to §§ 23-17.29-10 and 23-17.29-11; |
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1 | and |
2 | (4) The resident’s ability to decline any or all recording. |
3 | (c) A resident or resident representative, when consenting on behalf of the resident, may |
4 | consent to electronic monitoring with any conditions of the resident's or resident representative's |
5 | choosing, including the list of standard conditions provided in § 23-17.29-6. A resident, or resident |
6 | representative when consenting on behalf of the resident, may request that the electronic monitoring |
7 | device be turned off or the visual or audio recording component of the electronic monitoring device |
8 | be blocked at any time. |
9 | (d) Prior to implementing electronic monitoring, a resident, or resident representative when |
10 | acting on behalf of the resident, shall obtain the written consent on the notification and consent |
11 | form of any other resident residing in the shared room or shared private living unit. A roommate's |
12 | or roommate's resident representative's written consent shall comply with the requirements of |
13 | subsections (a) through (c) of this section. Consent by a roommate or a roommate's resident |
14 | representative under this section authorizes the resident's use of any recording obtained under this |
15 | chapter, as provided under §§ 23-17.29-10 and 23-17.29-11. |
16 | (e) Any resident conducting electronic monitoring shall immediately remove or disable an |
17 | electronic monitoring device prior to a new roommate moving into a shared room or shared private |
18 | living unit, unless the resident obtains the roommate's or roommate's resident representative's |
19 | written consent as provided under subsection (d) of this section prior to the roommate moving into |
20 | the shared room or shared private living unit. Upon obtaining the new roommate's signed |
21 | notification and consent form and submitting the form to the facility pursuant to § 23-17.29-5, the |
22 | resident may resume electronic monitoring. |
23 | (f) The resident or roommate, or the resident representative of the resident or roommate, if |
24 | the representative is consenting on behalf of the resident or roommate, may withdraw consent at |
25 | any time and the withdrawal of consent shall be documented on the original consent form as |
26 | provided under § 23-17.29-5(d). |
27 | 23-17.29-4. Refusal of roommate to consent. |
28 | If a resident of a facility who is residing in a shared room or shared living unit, or the |
29 | resident representative of such a resident when acting on behalf of the resident, wants to conduct |
30 | electronic monitoring and another resident living in or moving into the same shared room or shared |
31 | living unit refuses to consent to the use of an electronic monitoring device, the facility shall make |
32 | a reasonable attempt to accommodate the resident who wants to conduct electronic monitoring. A |
33 | facility has met the requirement to make a reasonable attempt to accommodate a resident or resident |
34 | representative who wants to conduct electronic monitoring when, upon notification that a roommate |
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1 | has not consented to the use of an electronic monitoring device in the resident's room, the facility |
2 | offers to move the resident to another shared room or shared living unit that is available at the time |
3 | of the request. If a resident chooses to reside in a private room or private living unit in a facility in |
4 | order to accommodate the use of an electronic monitoring device, the resident shall pay either the |
5 | private room rate in a nursing home setting, or the applicable rent in a housing with services |
6 | establishment or assisted living facility. If a facility is unable to accommodate a resident due to |
7 | lack of space, the facility shall reevaluate the request every two (2) weeks until the request is |
8 | fulfilled. A facility is not required to provide a private room, a single-bed room, or a private living |
9 | unit to a resident who is unable or unwilling to pay. |
10 | 23-17.29-5. Notice to facility. |
11 | (a) Authorized electronic monitoring may begin only after the resident or resident |
12 | representative who intends to place an electronic monitoring device and any roommate or |
13 | roommate's resident representative completes the notification and consent form and submits the |
14 | form to the facility. |
15 | (b) Notwithstanding subsection (a) of this section, the resident or resident representative |
16 | who intends to place an electronic monitoring device may do so without submitting a notification |
17 | and consent form to the facility for up to fourteen (14) days: |
18 | (1) If the resident or the resident representative reasonably fears retaliation against the |
19 | resident by the facility and timely submits a Rhode Island department of health complaint or police |
20 | report, or both, upon evidence from the electronic monitoring device that suspected maltreatment |
21 | has occurred; |
22 | (2) If there has not been a timely written response from the facility to a written |
23 | communication from the resident or resident representative expressing a concern prompting the |
24 | desire for placement of an electronic monitoring device; or |
25 | (3) If the resident or resident representative has already submitted a Rhode Island |
26 | department of health complaint or police report regarding the resident's concerns prompting the |
27 | desire for placement of an electronic monitoring device. |
28 | (c) Upon receipt of any completed notification and consent form, the facility shall place |
29 | the original form in the resident's file or file the original form with the resident's housing with |
30 | services contract. The facility shall provide a copy to the resident and the resident's roommate, if |
31 | applicable. |
32 | (d) If a resident is conducting electronic monitoring according to subsection (b) of this |
33 | section and a new roommate moves into the room or living unit, the resident or resident |
34 | representative shall submit the signed notification and consent form to the facility. In the event that |
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1 | a resident or roommate, or the resident representative or roommate's resident representative if the |
2 | representative is consenting on behalf of the resident or roommate, chooses to alter the conditions |
3 | under which consent to electronic monitoring is given or chooses to withdraw consent to electronic |
4 | monitoring, the facility shall make available the original notification and consent form so that it |
5 | may be updated. Upon receipt of the updated form, the facility shall place the updated form in the |
6 | resident's file or file the original form with the resident's housing with services contract. The facility |
7 | shall provide a copy of the updated form to the resident and the resident's roommate, if applicable. |
8 | (e) If a new roommate, or the new roommate's resident representative when consenting on |
9 | behalf of the new roommate, does not submit to the facility a completed notification and consent |
10 | form and the resident conducting the electronic monitoring does not remove or disable the |
11 | electronic monitoring device, the facility shall remove the electronic monitoring device. |
12 | (f) If a roommate, or the roommate's resident representative when withdrawing consent on |
13 | behalf of the roommate, submits an updated notification and consent form withdrawing consent |
14 | and the resident conducting electronic monitoring does not remove or disable the electronic |
15 | monitoring device, the facility shall remove the electronic monitoring device. |
16 | 23-17.29-6. Notification and consent form requirements. |
17 | (a) The notification and consent form completed by the resident shall include, at a |
18 | minimum, the following information: |
19 | (1) The resident's signed consent to electronic monitoring or the signature of the resident |
20 | representative, if applicable. If a person other than the resident signs the consent form, the form |
21 | shall document the following: |
22 | (i) The date the resident was asked if the resident wants electronic monitoring to be |
23 | conducted; |
24 | (ii) Who was present when the resident was asked; |
25 | (iii) An acknowledgment that the resident did not affirmatively object; and |
26 | (iv) The source of authority allowing the resident representative to sign the notification and |
27 | consent form on the resident's behalf. |
28 | (2) The resident's roommate's signed consent or the signature of the roommate's resident |
29 | representative, if applicable. If a roommate's resident representative signs the consent form, the |
30 | form shall document the following: |
31 | (i) The date the roommate was asked if the roommate wants electronic monitoring to be |
32 | conducted; |
33 | (ii) Who was present when the roommate was asked; |
34 | (iii) An acknowledgment that the roommate did not affirmatively object; and |
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1 | (iv) The source of authority allowing the resident representative to sign the notification and |
2 | consent form on the roommate's behalf; |
3 | (3) The type of electronic monitoring device to be used; |
4 | (4) Any installation needs, such as the mounting of a device to a wall or ceiling; |
5 | (5) A list of standard conditions or restrictions that the resident or a roommate may elect |
6 | to place on the use of the electronic monitoring device, including, but not limited to: |
7 | (i) Prohibiting audio recording; |
8 | (ii) Prohibiting video recording; |
9 | (iii) Prohibiting broadcasting of audio or video; |
10 | (iv) Turning off the electronic monitoring device or blocking the visual recording |
11 | component of the electronic monitoring device for the duration of an exam or procedure by a |
12 | healthcare professional; |
13 | (v) Turning off the electronic monitoring device or blocking the visual recording |
14 | component of the electronic monitoring device while dressing or bathing is performed; and |
15 | (vi) Turning off the electronic monitoring device for the duration of a visit with a spiritual |
16 | adviser, ombudsman, attorney, financial planner, intimate partner, or other visitor; |
17 | (6) Any other condition or restriction elected by the resident or roommate on the use of an |
18 | electronic monitoring device; |
19 | (7) A statement of the circumstances under which a recording may be disseminated under |
20 | § 23-17.29-10; and |
21 | (8) A signature box for documenting that the resident or roommate has withdrawn consent. |
22 | (b) Facilities must make the notification and consent form available to the residents and |
23 | inform residents of their option to conduct electronic monitoring of their rooms or private living |
24 | unit. |
25 | (c) The department shall prescribe the notification and consent form required in this chapter |
26 | no later than sixty (60) days after the effective date. If the department has not prescribed such a |
27 | form by that date, a resident may use a form that substantially complies with this chapter until such |
28 | time as a prescribed form is available. Nothing in this section shall be construed to invalidate a |
29 | notification and consent form that was used prior to the department disseminating a prescribed form |
30 | solely due to it not being the form proscribed by the department. |
31 | 23-17.29-7. Costs and installation. |
32 | (a) A resident or resident representative choosing to conduct electronic monitoring shall do |
33 | so at the resident's own expense, including the purchase, installation, maintenance, and removal |
34 | costs. |
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1 | (b) Any device used by a resident to conduct authorized electronic monitoring shall meet |
2 | the following minimum functional requirements: |
3 | (1) Include timestamping of all video recordings; and |
4 | (2) If movement tracking is a default setting, that the device must be able to switch off this |
5 | function. |
6 | (c) If a resident chooses to place an electronic monitoring device that uses Internet |
7 | technology for visual or audio monitoring, the resident shall be responsible for contracting with an |
8 | Internet service provider. |
9 | (d) All electronic monitoring device installations and supporting services shall be UL- |
10 | listed. |
11 | (e) The electronic monitoring device must be placed in a conspicuously visible location in |
12 | the room. |
13 | (f) A facility shall not charge the resident a fee for the cost of electricity used by an |
14 | electronic monitoring device. |
15 | 23-17.29-8. Notice to visitors. |
16 | (a) If a resident conducts authorized electronic monitoring, a sign shall be clearly and |
17 | conspicuously posted at each facility entrance accessible to visitors. The notice must state the |
18 | following in large, easy-to-read type, "The rooms of some residents may be monitored |
19 | electronically by or on behalf of the residents.” |
20 | (b) A sign shall also be clearly and conspicuously posted at the entrance to a resident’s |
21 | room where authorized electronic monitoring is being conducted. The notice must state the |
22 | following in large, easy-to-read type: “This room is electronically monitored.” |
23 | (c) The facility is responsible for installing and maintaining the signage required pursuant |
24 | to this section. |
25 | 23-17.29-9. Obstruction of electronic monitoring devices. |
26 | (a) A person shall not knowingly hamper, obstruct, tamper with, or destroy an electronic |
27 | monitoring device placed in a resident's room or private living unit without the permission of the |
28 | resident or resident representative. Checking the electronic monitoring device by facility staff for |
29 | the make and model number does not constitute tampering under this section. |
30 | (b) It is not a violation of subsection (a) of this section if a person turns off the electronic |
31 | monitoring device or blocks the visual recording component of the electronic monitoring device at |
32 | the direction of the resident or resident representative, or if consent has been withdrawn. |
33 | (c) A person shall not knowingly hamper, obstruct, tamper with, or destroy a video or audio |
34 | recording obtained in accordance with this chapter without the permission of the resident or the |
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1 | resident's representative who consented to monitoring on behalf of the resident. |
2 | 23-17.29-10. Dissemination of recordings. |
3 | (a) Any recording obtained as the result of authorized electronic monitoring shall be |
4 | considered the personal property of the resident who installed the electronic monitoring device. |
5 | (b) No person, facility, or facility representative may access any video or audio recording |
6 | created through authorized electronic monitoring without the written consent of the resident or |
7 | resident representative. |
8 | (c) Except as prohibited by any other state or federal law, a recording or copy of a recording |
9 | made as provided in this chapter may only be disseminated for the purpose of addressing health, |
10 | safety, or welfare concerns of one or more residents. |
11 | (d) The resident or resident's representative who consented to monitoring on behalf of a |
12 | resident shall provide a copy of any video or audio recording to parties involved in a civil, criminal, |
13 | or administrative proceeding upon request of a party to said proceeding if the video or audio |
14 | recording was made during the time period that the conduct at issue in the proceeding allegedly |
15 | occurred. |
16 | 23-17.29-11. Admissibility of evidence. |
17 | Subject to applicable rules of evidence and procedure, any video or audio recording created |
18 | through electronic monitoring under this chapter may be admitted into evidence in any civil, |
19 | criminal, or administrative proceeding if the contents of the recording have not been edited or |
20 | artificially enhanced and the video recording includes the date and time the events occurred. |
21 | 23-17.29-12. Liability. |
22 | (a) The mere presence of an electronic monitoring device in a resident's room or private |
23 | living unit is not a violation of the resident's right to privacy under § 23-17.5-14. |
24 | (b) A facility or home care provider is not civilly or criminally liable for the inadvertent or |
25 | unintentional disclosure of a recording by a resident or a resident representative for any purpose |
26 | not authorized by this chapter. |
27 | 23-17.29-13. Resident protections. |
28 | (a) A facility shall not: |
29 | (1) Refuse to admit a potential resident or remove a resident because the facility disagrees |
30 | with the decision of the potential resident, the resident, or a resident representative acting on behalf |
31 | of the resident regarding electronic monitoring; or |
32 | (2) Retaliate or discriminate against any resident for consenting or refusing to consent to |
33 | electronic monitoring. |
34 | (b) Any contractual provision prohibiting, limiting, or otherwise modifying the rights and |
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1 | obligations in this chapter is contrary to public policy and is void and unenforceable. |
2 | 23-17.29-14. Employee discipline. |
3 | (a) An employee of the facility or an employee of a contractor providing services at the |
4 | facility, including an arranged home care, who is the subject of proposed disciplinary action based |
5 | upon evidence obtained by electronic monitoring, shall be given access to that evidence for |
6 | purposes of defending against the proposed action. |
7 | (b) An employee who obtains a recording or a copy of the recording shall treat the recording |
8 | or copy confidentially and must not further disseminate it to any other person except as required |
9 | pursuant to applicable law. Any copy of the recording shall be returned to the facility or resident |
10 | who provided the copy when it is no longer needed for purposes of defending against a proposed |
11 | action. |
12 | 23-17.29-15. Penalties. |
13 | (a) The director may issue a statement of deficiency, upon a finding that the facility has |
14 | failed to comply with any provisions of this chapter. |
15 | (b) For each violation of this chapter, any licensed facility shall be guilty of a misdemeanor |
16 | for each violation punishable by a fine of not more than five hundred dollars ($500). |
17 | (c) Any person convicted of a violation pursuant to § 23-17.29-10, shall be guilty of a |
18 | misdemeanor for each violation punishment by a fine of not more than five hundred dollars ($500), |
19 | or shall be imprisoned not more than six (6) months, or both. |
20 | 23-17.29-16. Rules and regulations. |
21 | The department shall adopt rules necessary to administer and enforce any section of this |
22 | chapter. Rulemaking shall not delay the full implementation of this chapter. |
23 | 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 | |
*** | |
1 | This act would permit the use of electronic monitoring of a resident’s room or private living |
2 | unit within a nursing home or assisted living facility; provided that, the resident or their |
3 | representative consent to the monitoring, as well as the resident’s roommate or designated |
4 | representative consents to such electronic monitoring in writing. |
5 | This act would take effect upon passage. |
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