S-3082

   Amend House File 309, as passed by the House, as follows:
   1.  Page 1, before line 1 by inserting: 
<DIVISION I
REVIEW OF CERTAIN DEFICIENT PRACTICES BY NURSING FACILITIES>
   2.  Page 1, after line 14 by inserting: 
<DIVISION ___
AUTHORIZED ELECTRONIC MONITORING IN NURSING FACILITIES

   Sec. ___.  NEW SECTION.  135C.49  Definitions.
   As used in this subchapter, unless the context otherwise requires:
   1.  “Electronic monitoring” means the placement and use of an electronic monitoring device by a resident in the resident’s room in accordance with this subchapter.
   2.  “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 and is used to monitor the resident or activities in the room.
   3.  “Resident” means an individual admitted to a nursing facility in a manner prescribed in section 135C.23.
   4.  “Resident representative” means one of the following in the order of priority listed, to the extent the person may reasonably be identified and located:
   a.  The attorney in fact designated to make treatment decisions for the resident in accordance with chapter 144B.
   b.  The guardian of the resident if one has been appointed pursuant to chapter 633.
   c.  The resident’s spouse.
   d.  An adult child of the resident or, if the resident has more than one adult child, a majority of the adult children who are reasonably available.
   e.  A parent of the resident, or parents if both are reasonably available.
   f.  An adult sibling of the resident.
   Sec. ___.  NEW SECTION.  135C.50  Electronic monitoring.
   1.  A resident or a resident representative may conduct electronic monitoring of the resident’s room through the use of an electronic monitoring device placed in the resident’s room pursuant to this subchapter. 
   2.  Nothing in this section precludes the use of electronic monitoring otherwise allowed by law.
   Sec. ___.  NEW SECTION.  135C.51  Consent to electronic monitoring.
   1.  Except as otherwise provided in this subchapter, a resident must consent to electronic monitoring in the resident’s room in writing on a notification and consent form prescribed by the department. If the resident has not affirmatively objected to electronic monitoring and the resident’s medical professional determines that the resident 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 subsection, a resident affirmatively objects when the resident orally, visually, or through the use of auxiliary aids or services declines electronic monitoring. The resident’s response shall be documented on the notification and consent form.
   2.  Prior to a resident representative consenting on behalf of a resident, the resident shall be asked if the resident wants electronic monitoring to be conducted. The resident representative shall explain all of the following to the resident:
   a.  The type of electronic monitoring device to be used.
   b.  The standard conditions or restrictions that may be placed on the electronic monitoring device’s use including as specified in the list of standard conditions or restrictions contained in the notification and consent form completed by the resident as provided in section 135C.54.
   c.  The dissemination and use of any recording as provided under section 135C.58 or 135C.59.
   d.  The resident’s ability to decline all recordings.
   3.  A resident, or resident representative when consenting on behalf of the resident, may consent to electronic monitoring with any conditions or restrictions of the resident’s or resident representative’s choosing, including the list of standard conditions or restrictions contained in the notification and consent form completed by the resident as provided in section 135C.54. 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. 
   4.  Prior to implementing electronic monitoring, a resident, or resident representative when acting on behalf of the resident, shall obtain the written consent on the notification and consent form of any other resident who is a roommate residing in the shared room. A roommate’s or roommate’s resident representative’s written consent shall comply with the requirements of this section. Consent by a roommate or a roommate’s resident representative under this subsection authorizes the resident’s use of any recording obtained under this section as provided under sections 135C.58 and 135C.59.
   5.  Any resident conducting electronic monitoring shall immediately remove or disable an electronic monitoring device prior to a new resident who will be a roommate moving into a shared room, unless the resident conducting electronic monitoring obtains the new roommate’s or new roommate’s resident representative’s written consent as provided under this section prior to the new roommate moving into the shared room. Upon obtaining the new roommate’s or new roommate’s resident representative’s signed notification and consent form and submitting the form to the nursing facility as required under section 135C.53, the resident may resume electronic monitoring.
   6.  The resident or roommate, or the resident representative or roommate’s resident representative 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 section 135C.53. 
   Sec. ___.  NEW SECTION.  135C.52  Refusal of roommate to consent.
   If a resident of a nursing facility who is residing in a shared room, 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 refuses to consent to the use of an electronic monitoring device, the nursing facility shall make a reasonable attempt to accommodate the resident who wants to conduct electronic monitoring. A nursing 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 nursing facility offers to move one of the residents to another shared room that is available at the time of the request that accommodates the resident. If a resident chooses to reside in a private room in order to accommodate the use of an electronic monitoring device, the resident shall be subject to a private room rate. If a nursing facility is unable to accommodate a resident due to lack of space, the nursing facility shall reevaluate the request periodically until the request is fulfilled. 
   Sec. ___.  NEW SECTION.  135C.53  Notice and consent form submitted to nursing facility.
   1.  Electronic monitoring may begin only after the resident or resident representative who intends to place an electronic monitoring device in the resident’s room and any roommate or roommate’s resident representative completes a notification and consent form and submits the form to the nursing facility.
   2.  Upon receipt of the required, completed notification and consent form, the nursing facility shall place the original form in the resident’s file, and a copy of the form in any roommate’s file. The nursing facility shall provide a copy to the resident and the resident’s roommate, as applicable.
   3.  If 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 nursing facility shall make available the original notification and consent form so that the original form may be updated. Upon receipt of the updated original form, the nursing facility shall place the updated original form in the resident’s file. The nursing facility shall provide a copy of the updated form to the resident and the resident’s roommate, as applicable.
   4.  If a new roommate, or the new roommate’s resident representative when consenting on behalf of the new roommate, does not consent to electronic monitoring and submit a completed notification and consent form to the nursing facility, and the resident conducting the electronic monitoring does not remove or disable an existing electronic monitoring device, the nursing facility shall remove the electronic monitoring device.
   5.  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 nursing facility shall remove the electronic monitoring device.
   Sec. ___.  NEW SECTION.  135C.54  Notification and consent form requirements.
   1.  The notification and consent form completed by the resident shall include, at a minimum, all of the following information:
   a.  The resident’s signed consent to electronic monitoring or the signature of the resident representative, if applicable. If a resident representative signs the consent form, the form shall document all of the following:
   (1)  The date the resident was asked if the resident wants electronic monitoring to be conducted.
   (2)  Any person present when the resident was asked.
   (3)  An acknowledgment that the resident did not affirmatively object.
   (4)  The source of authority allowing the resident representative to sign the notification and consent form on the resident’s behalf.
   b.  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 shall document all of the following:
   (1)  The date the roommate was asked if the roommate wants electronic monitoring to be conducted.
   (2)  Any person present when the roommate was asked.
   (3)  An acknowledgment that the roommate did not affirmatively object.
   (4)  The source of authority allowing the resident representative to sign the notification and consent form on the roommate’s behalf.
   c.  The type of electronic monitoring device to be used.
   d.  Any installation needs, such as mounting of a device to a wall or ceiling.
   e.  The proposed date of installation for scheduling purposes.
   f.  A copy of any contract for maintenance of the electronic monitoring device by a commercial entity.
   g.  A list of standard conditions or restrictions that the resident or a roommate may elect to place on the use of the electronic monitoring device including but not limited to all of the following:
   (1)  Prohibiting audio recording.
   (2)  Prohibiting video recording.
   (3)  Prohibiting broadcasting of audio or video.
   (4)  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.
   (5)  Turning off the electronic monitoring device or blocking the visual recording component of the electronic monitoring device while dressing or bathing is performed.
   (6)  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.
   h.  Any other condition or restriction elected by the resident or roommate on the use of an electronic monitoring device.
   i.  A statement of the circumstances under which a recording may be disseminated under section 135C.58.
   j.  A signature box to document if the resident or roommate withdraws consent.
   2.  A nursing facility shall make the notification and consent form available to the residents and inform residents of the option to conduct electronic monitoring of the resident’s room.
   Sec. ___.  NEW SECTION.  135C.55  Cost and installation.
   1.  A resident who chooses to conduct electronic monitoring shall do so at the resident’s own expense, including payment of any purchase, installation, maintenance, and removal costs.
   2.  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.
   3.  The nursing facility shall make a reasonable attempt to accommodate the resident’s installation needs, including allowing access to the nursing facility’s public-use internet or wi-fi systems when available for other public uses.
   4.  All electronic monitoring device installations and supporting services shall comply with the requirements of the national fire protection association 101 life safety code.
   5.  A nursing facility shall not charge a resident a fee for the costs of electricity used by the electronic monitoring device.
   Sec. ___.  NEW SECTION.  135C.56  Notice to visitors.
   1.  A nursing facility shall post a sign at each nursing facility entrance accessible to visitors that states “Electronic monitoring devices may be present in the rooms of residents to record persons and activities”.
   2.  A nursing facility shall post a sign clearly and conspicuously at the entrance to a resident’s room where electronic monitoring is being conducted. The notice shall state “This room is electronically monitored”. 
   3.  The nursing facility is responsible for installing and maintaining the signage required in this section.
   Sec. ___.  NEW SECTION.  135C.57  Obstruction of electronic monitoring devices.
   1.  A person shall not knowingly hamper, obstruct, tamper with, or destroy an electronic monitoring device placed in a resident’s room without the permission of the resident or resident representative.
   2.  A person shall not knowingly hamper, obstruct, tamper with, or destroy a video or audio recording obtained through the use of an electronic monitoring device in accordance with this subchapter.
   3.  It is not a violation of this section for a person to turn off the electronic monitoring device or block the visual recording component of the electronic monitoring device at the direction of the resident or resident representative, or if consent has been withdrawn.
   4.  A person who violates this section is guilty of a serious misdemeanor.
   Sec. ___.  NEW SECTION.  135C.58  Dissemination of recordings.
   1.  A person shall not access any video or audio recording created through electronic monitoring under this subchapter without the written consent of the resident or resident representative.
   2.  Except as otherwise required by law, a recording or copy of a recording created as provided in this subchapter may only be disseminated for the purpose of addressing health, safety, or welfare concerns of a resident.
   3.  A person accessing or disseminating a recording or copy of a recording created as provided in this section in violation of this section is guilty of a serious misdemeanor.
   Sec. ___.  NEW SECTION.  135C.59  Admissibility of evidence.
   Subject to applicable rules of evidence and procedure, any video or audio recording created through electronic monitoring under this subchapter may be admitted into evidence in a civil, criminal, or administrative proceeding if the contents of the recording have not been edited or artificially enhanced and the recording includes the date and time the events occurred.
   Sec. ___.  NEW SECTION.  135C.60  Liability —— penalties.
   1.  A nursing facility is not civilly or criminally liable for the disclosure of a recording by a resident or a person who consents on behalf of a resident for any purpose not authorized by this subchapter.
   2.  A nursing facility is not civilly or criminally liable for a violation of a resident’s right to privacy arising out of any electronic monitoring conducted in accordance and in compliance with this subchapter. 
   3.  A nursing facility that knowingly violates this subchapter shall be subject to licensee discipline.
   Sec. ___.  NEW SECTION.  135C.61  Resident protections.
   1.  A nursing facility shall not do any of the following:
   a.  Refuse to admit a potential resident or remove a resident because the nursing facility disagrees with the potential resident’s or the resident’s decisions regarding electronic monitoring, whether the decision is made by a resident or a resident representative acting on behalf of the resident.
   b.  Retaliate or discriminate against any resident for consenting or refusing to consent to electronic monitoring.
   c.  Prevent the placement or use of an electronic monitoring device by a resident who has provided the nursing facility with the notification and consent form as required under this subchapter.
   2.  Any contractual provision prohibiting, limiting, or otherwise modifying the rights and obligations in this subchapter is contrary to public policy and is void and unenforceable.
   Sec. ___.  NEW SECTION.  135C.62  Report to department.
   A nursing facility shall report to the department, in a manner prescribed by the department, the number of electronic monitoring device notification and consent forms received by the nursing facility on an annual basis. 
   Sec. ___.  DIRECTIVE TO DEPARTMENT OF INSPECTIONS, APPEALS, AND LICENSING.  The department of inspections, appeals, and licensing shall prescribe by rule pursuant to chapter 17A the notification and consent form described in this Act, and shall make the form available on the department’s internet site.
   Sec. ___.  CODE EDITOR DIRECTIVE.  The Code editor may codify the provisions of this Act as a new subchapter of chapter 135C entitled “Electronic Monitoring”.>
   3.  Title page, by striking lines 1 through 3 and inserting <An Act relating to nursing facilities, including the review of certain deficient practices by nursing facilities, and the requirements for authorized electronic monitoring in nursing facilities, and providing penalties.>
   4.  By renumbering as necessary.

______________________________
TONY BISIGNANO