House File 309 S-3082 Amend House File 309, as passed by the House, as follows: 1 1. Page 1, before line 1 by inserting: 2 < DIVISION I 3 REVIEW OF CERTAIN DEFICIENT PRACTICES BY NURSING FACILITIES > 4 2. Page 1, after line 14 by inserting: 5 < DIVISION ___ 6 AUTHORIZED ELECTRONIC MONITORING IN NURSING FACILITIES 7 Sec. ___. NEW SECTION . 135C.49 Definitions. 8 As used in this subchapter, unless the context otherwise 9 requires: 10 1. “Electronic monitoring” means the placement and use of an 11 electronic monitoring device by a resident in the resident’s 12 room in accordance with this subchapter. 13 2. “Electronic monitoring device” means a camera or other 14 device that captures, records, or broadcasts audio, video, 15 or both, that is placed in a resident’s room and is used to 16 monitor the resident or activities in the room. 17 3. “Resident” means an individual admitted to a nursing 18 facility in a manner prescribed in section 135C.23. 19 4. “Resident representative” means one of the following in 20 the order of priority listed, to the extent the person may 21 reasonably be identified and located: 22 a. The attorney in fact designated to make treatment 23 decisions for the resident in accordance with chapter 144B. 24 b. The guardian of the resident if one has been appointed 25 pursuant to chapter 633. 26 c. The resident’s spouse. 27 d. An adult child of the resident or, if the resident has 28 more than one adult child, a majority of the adult children who 29 are reasonably available. 30 e. A parent of the resident, or parents if both are 31 reasonably available. 32 f. An adult sibling of the resident. 33 Sec. ___. NEW SECTION . 135C.50 Electronic monitoring. 34 1. A resident or a resident representative may conduct 35 -1- HF 309.1423 (2) 91 dg/ko 1/ 11 #1. #2.

electronic monitoring of the resident’s room through the use of 1 an electronic monitoring device placed in the resident’s room 2 pursuant to this subchapter. 3 2. Nothing in this section precludes the use of electronic 4 monitoring otherwise allowed by law. 5 Sec. ___. NEW SECTION . 135C.51 Consent to electronic 6 monitoring. 7 1. Except as otherwise provided in this subchapter, 8 a resident must consent to electronic monitoring in the 9 resident’s room in writing on a notification and consent 10 form prescribed by the department. If the resident has 11 not affirmatively objected to electronic monitoring and the 12 resident’s medical professional determines that the resident 13 lacks the ability to understand and appreciate the nature 14 and consequences of electronic monitoring, the resident 15 representative may consent on behalf of the resident. For 16 purposes of this subsection, a resident affirmatively objects 17 when the resident orally, visually, or through the use of 18 auxiliary aids or services declines electronic monitoring. The 19 resident’s response shall be documented on the notification and 20 consent form. 21 2. Prior to a resident representative consenting on behalf 22 of a resident, the resident shall be asked if the resident 23 wants electronic monitoring to be conducted. The resident 24 representative shall explain all of the following to the 25 resident: 26 a. The type of electronic monitoring device to be used. 27 b. The standard conditions or restrictions that may be 28 placed on the electronic monitoring device’s use including as 29 specified in the list of standard conditions or restrictions 30 contained in the notification and consent form completed by the 31 resident as provided in section 135C.54. 32 c. The dissemination and use of any recording as provided 33 under section 135C.58 or 135C.59. 34 d. The resident’s ability to decline all recordings. 35 -2- HF 309.1423 (2) 91 dg/ko 2/ 11

3. A resident, or resident representative when consenting 1 on behalf of the resident, may consent to electronic monitoring 2 with any conditions or restrictions of the resident’s or 3 resident representative’s choosing, including the list 4 of standard conditions or restrictions contained in the 5 notification and consent form completed by the resident 6 as provided in section 135C.54. A resident, or resident 7 representative when consenting on behalf of the resident, may 8 request that the electronic monitoring device be turned off 9 or the visual or audio recording component of the electronic 10 monitoring device be blocked at any time. 11 4. Prior to implementing electronic monitoring, a resident, 12 or resident representative when acting on behalf of the 13 resident, shall obtain the written consent on the notification 14 and consent form of any other resident who is a roommate 15 residing in the shared room. A roommate’s or roommate’s 16 resident representative’s written consent shall comply with 17 the requirements of this section. Consent by a roommate or 18 a roommate’s resident representative under this subsection 19 authorizes the resident’s use of any recording obtained under 20 this section as provided under sections 135C.58 and 135C.59. 21 5. Any resident conducting electronic monitoring shall 22 immediately remove or disable an electronic monitoring device 23 prior to a new resident who will be a roommate moving into 24 a shared room, unless the resident conducting electronic 25 monitoring obtains the new roommate’s or new roommate’s 26 resident representative’s written consent as provided under 27 this section prior to the new roommate moving into the shared 28 room. Upon obtaining the new roommate’s or new roommate’s 29 resident representative’s signed notification and consent form 30 and submitting the form to the nursing facility as required 31 under section 135C.53, the resident may resume electronic 32 monitoring. 33 6. The resident or roommate, or the resident representative 34 or roommate’s resident representative if the representative is 35 -3- HF 309.1423 (2) 91 dg/ko 3/ 11

consenting on behalf of the resident or roommate, may withdraw 1 consent at any time and the withdrawal of consent shall be 2 documented on the original consent form as provided under 3 section 135C.53. 4 Sec. ___. NEW SECTION . 135C.52 Refusal of roommate to 5 consent. 6 If a resident of a nursing facility who is residing in a 7 shared room, or the resident representative of such a resident 8 when acting on behalf of the resident, wants to conduct 9 electronic monitoring and another resident living in or moving 10 into the same shared room refuses to consent to the use of an 11 electronic monitoring device, the nursing facility shall make 12 a reasonable attempt to accommodate the resident who wants to 13 conduct electronic monitoring. A nursing facility has met 14 the requirement to make a reasonable attempt to accommodate 15 a resident or resident representative who wants to conduct 16 electronic monitoring when, upon notification that a roommate 17 has not consented to the use of an electronic monitoring device 18 in the resident’s room, the nursing facility offers to move one 19 of the residents to another shared room that is available at 20 the time of the request that accommodates the resident. If 21 a resident chooses to reside in a private room in order to 22 accommodate the use of an electronic monitoring device, the 23 resident shall be subject to a private room rate. If a nursing 24 facility is unable to accommodate a resident due to lack of 25 space, the nursing facility shall reevaluate the request 26 periodically until the request is fulfilled. 27 Sec. ___. NEW SECTION . 135C.53 Notice and consent form 28 submitted to nursing facility. 29 1. Electronic monitoring may begin only after the resident 30 or resident representative who intends to place an electronic 31 monitoring device in the resident’s room and any roommate or 32 roommate’s resident representative completes a notification and 33 consent form and submits the form to the nursing facility. 34 2. Upon receipt of the required, completed notification and 35 -4- HF 309.1423 (2) 91 dg/ko 4/ 11

consent form, the nursing facility shall place the original 1 form in the resident’s file, and a copy of the form in any 2 roommate’s file. The nursing facility shall provide a copy to 3 the resident and the resident’s roommate, as applicable. 4 3. If a resident or roommate, or the resident representative 5 or roommate’s resident representative if the representative 6 is consenting on behalf of the resident or roommate, chooses 7 to alter the conditions under which consent to electronic 8 monitoring is given or chooses to withdraw consent to 9 electronic monitoring, the nursing facility shall make 10 available the original notification and consent form so that 11 the original form may be updated. Upon receipt of the updated 12 original form, the nursing facility shall place the updated 13 original form in the resident’s file. The nursing facility 14 shall provide a copy of the updated form to the resident and 15 the resident’s roommate, as applicable. 16 4. If a new roommate, or the new roommate’s resident 17 representative when consenting on behalf of the new roommate, 18 does not consent to electronic monitoring and submit a 19 completed notification and consent form to the nursing 20 facility, and the resident conducting the electronic monitoring 21 does not remove or disable an existing electronic monitoring 22 device, the nursing facility shall remove the electronic 23 monitoring device. 24 5. If a roommate, or the roommate’s resident representative 25 when withdrawing consent on behalf of the roommate, submits 26 an updated notification and consent form withdrawing consent 27 and the resident conducting electronic monitoring does not 28 remove or disable the electronic monitoring device, the nursing 29 facility shall remove the electronic monitoring device. 30 Sec. ___. NEW SECTION . 135C.54 Notification and consent 31 form requirements. 32 1. The notification and consent form completed by the 33 resident shall include, at a minimum, all of the following 34 information: 35 -5- HF 309.1423 (2) 91 dg/ko 5/ 11

a. The resident’s signed consent to electronic monitoring or 1 the signature of the resident representative, if applicable. 2 If a resident representative signs the consent form, the form 3 shall document all of the following: 4 (1) The date the resident was asked if the resident wants 5 electronic monitoring to be conducted. 6 (2) Any person present when the resident was asked. 7 (3) An acknowledgment that the resident did not 8 affirmatively object. 9 (4) The source of authority allowing the resident 10 representative to sign the notification and consent form on the 11 resident’s behalf. 12 b. The resident’s roommate’s signed consent or the signature 13 of the roommate’s resident representative, if applicable. If a 14 roommate’s resident representative signs the consent form, the 15 form shall document all of the following: 16 (1) The date the roommate was asked if the roommate wants 17 electronic monitoring to be conducted. 18 (2) Any person present when the roommate was asked. 19 (3) An acknowledgment that the roommate did not 20 affirmatively object. 21 (4) The source of authority allowing the resident 22 representative to sign the notification and consent form on the 23 roommate’s behalf. 24 c. The type of electronic monitoring device to be used. 25 d. Any installation needs, such as mounting of a device to 26 a wall or ceiling. 27 e. The proposed date of installation for scheduling 28 purposes. 29 f. A copy of any contract for maintenance of the electronic 30 monitoring device by a commercial entity. 31 g. A list of standard conditions or restrictions that the 32 resident or a roommate may elect to place on the use of the 33 electronic monitoring device including but not limited to all 34 of the following: 35 -6- HF 309.1423 (2) 91 dg/ko 6/ 11

(1) Prohibiting audio recording. 1 (2) Prohibiting video recording. 2 (3) Prohibiting broadcasting of audio or video. 3 (4) Turning off the electronic monitoring device or 4 blocking the visual recording component of the electronic 5 monitoring device for the duration of an exam or procedure by a 6 health care professional. 7 (5) Turning off the electronic monitoring device or 8 blocking the visual recording component of the electronic 9 monitoring device while dressing or bathing is performed. 10 (6) Turning off the electronic monitoring device for 11 the duration of a visit with a spiritual adviser, ombudsman, 12 attorney, financial planner, intimate partner, or other 13 visitor. 14 h. Any other condition or restriction elected by the 15 resident or roommate on the use of an electronic monitoring 16 device. 17 i. A statement of the circumstances under which a recording 18 may be disseminated under section 135C.58. 19 j. A signature box to document if the resident or roommate 20 withdraws consent. 21 2. A nursing facility shall make the notification and 22 consent form available to the residents and inform residents of 23 the option to conduct electronic monitoring of the resident’s 24 room. 25 Sec. ___. NEW SECTION . 135C.55 Cost and installation. 26 1. A resident who chooses to conduct electronic monitoring 27 shall do so at the resident’s own expense, including payment of 28 any purchase, installation, maintenance, and removal costs. 29 2. If a resident chooses to place an electronic monitoring 30 device that uses internet technology for visual or audio 31 monitoring, the resident may be responsible for contracting 32 with an internet service provider. 33 3. The nursing facility shall make a reasonable attempt 34 to accommodate the resident’s installation needs, including 35 -7- HF 309.1423 (2) 91 dg/ko 7/ 11

allowing access to the nursing facility’s public-use internet 1 or wi-fi systems when available for other public uses. 2 4. All electronic monitoring device installations and 3 supporting services shall comply with the requirements of the 4 national fire protection association 101 life safety code. 5 5. A nursing facility shall not charge a resident a fee 6 for the costs of electricity used by the electronic monitoring 7 device. 8 Sec. ___. NEW SECTION . 135C.56 Notice to visitors. 9 1. A nursing facility shall post a sign at each nursing 10 facility entrance accessible to visitors that states 11 “Electronic monitoring devices may be present in the rooms of 12 residents to record persons and activities”. 13 2. A nursing facility shall post a sign clearly and 14 conspicuously at the entrance to a resident’s room where 15 electronic monitoring is being conducted. The notice shall 16 state “This room is electronically monitored”. 17 3. The nursing facility is responsible for installing and 18 maintaining the signage required in this section. 19 Sec. ___. NEW SECTION . 135C.57 Obstruction of electronic 20 monitoring devices. 21 1. A person shall not knowingly hamper, obstruct, tamper 22 with, or destroy an electronic monitoring device placed in 23 a resident’s room without the permission of the resident or 24 resident representative. 25 2. A person shall not knowingly hamper, obstruct, tamper 26 with, or destroy a video or audio recording obtained through 27 the use of an electronic monitoring device in accordance with 28 this subchapter. 29 3. It is not a violation of this section for a person to 30 turn off the electronic monitoring device or block the visual 31 recording component of the electronic monitoring device at the 32 direction of the resident or resident representative, or if 33 consent has been withdrawn. 34 4. A person who violates this section is guilty of a serious 35 -8- HF 309.1423 (2) 91 dg/ko 8/ 11

misdemeanor. 1 Sec. ___. NEW SECTION . 135C.58 Dissemination of recordings. 2 1. A person shall not access any video or audio recording 3 created through electronic monitoring under this subchapter 4 without the written consent of the resident or resident 5 representative. 6 2. Except as otherwise required by law, a recording or copy 7 of a recording created as provided in this subchapter may only 8 be disseminated for the purpose of addressing health, safety, 9 or welfare concerns of a resident. 10 3. A person accessing or disseminating a recording or copy 11 of a recording created as provided in this section in violation 12 of this section is guilty of a serious misdemeanor. 13 Sec. ___. NEW SECTION . 135C.59 Admissibility of evidence. 14 Subject to applicable rules of evidence and procedure, any 15 video or audio recording created through electronic monitoring 16 under this subchapter may be admitted into evidence in a civil, 17 criminal, or administrative proceeding if the contents of the 18 recording have not been edited or artificially enhanced and the 19 recording includes the date and time the events occurred. 20 Sec. ___. NEW SECTION . 135C.60 Liability —— penalties. 21 1. A nursing facility is not civilly or criminally liable 22 for the disclosure of a recording by a resident or a person who 23 consents on behalf of a resident for any purpose not authorized 24 by this subchapter. 25 2. A nursing facility is not civilly or criminally liable 26 for a violation of a resident’s right to privacy arising out 27 of any electronic monitoring conducted in accordance and in 28 compliance with this subchapter. 29 3. A nursing facility that knowingly violates this 30 subchapter shall be subject to licensee discipline. 31 Sec. ___. NEW SECTION . 135C.61 Resident protections. 32 1. A nursing facility shall not do any of the following: 33 a. Refuse to admit a potential resident or remove a resident 34 because the nursing facility disagrees with the potential 35 -9- HF 309.1423 (2) 91 dg/ko 9/ 11

resident’s or the resident’s decisions regarding electronic 1 monitoring, whether the decision is made by a resident or a 2 resident representative acting on behalf of the resident. 3 b. Retaliate or discriminate against any resident for 4 consenting or refusing to consent to electronic monitoring. 5 c. Prevent the placement or use of an electronic monitoring 6 device by a resident who has provided the nursing facility 7 with the notification and consent form as required under this 8 subchapter. 9 2. Any contractual provision prohibiting, limiting, 10 or otherwise modifying the rights and obligations in this 11 subchapter is contrary to public policy and is void and 12 unenforceable. 13 Sec. ___. NEW SECTION . 135C.62 Report to department. 14 A nursing facility shall report to the department, in a 15 manner prescribed by the department, the number of electronic 16 monitoring device notification and consent forms received by 17 the nursing facility on an annual basis. 18 Sec. ___. DIRECTIVE TO DEPARTMENT OF INSPECTIONS, APPEALS, 19 AND LICENSING. The department of inspections, appeals, and 20 licensing shall prescribe by rule pursuant to chapter 17A the 21 notification and consent form described in this Act, and shall 22 make the form available on the department’s internet site. 23 Sec. ___. CODE EDITOR DIRECTIVE. The Code editor may codify 24 the provisions of this Act as a new subchapter of chapter 135C 25 entitled “Electronic Monitoring”. > 26 3. Title page, by striking lines 1 through 3 and inserting 27 < An Act relating to nursing facilities, including the review 28 of certain deficient practices by nursing facilities, and the 29 requirements for authorized electronic monitoring in nursing 30 facilities, and providing penalties. > 31 4. By renumbering as necessary. 32 -10- HF 309.1423 (2) 91 dg/ko 10/ 11 #3.