House File 2376 - Introduced HOUSE FILE 2376 BY BODEN , WESTRICH , GRABER , BRADLEY , GERHOLD , ANDREWS , STONE , MOORE , OSMUNDSON , CISNEROS , DUNWELL , JACOBSEN , SALMON , WHEELER , BAXTER , SHIPLEY , BACON , FISHER , JENEARY , MOMMSEN , KERR , BUSH , GOBBLE , and SIECK A BILL FOR An Act relating to the requirements for authorized electronic 1 monitoring in nursing facilities, and providing penalties. 2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 3 TLSB 5656YH (3) 89 pf/rh

H.F. 2376 Section 1. NEW SECTION . 135C.49 Definitions. 1 As used in this subchapter, unless the context otherwise 2 requires: 3 1. “Electronic monitoring” means the placement and use of an 4 electronic monitoring device by a resident in the resident’s 5 room in accordance with this subchapter. 6 2. “Electronic monitoring device” means a camera or other 7 device that captures, records, or broadcasts audio, video, 8 or both, that is placed in a resident’s room and is used to 9 monitor the resident or activities in the room. 10 3. “Resident” means an individual admitted to a nursing 11 facility in a manner prescribed in section 135C.23. 12 4. “Resident representative” means one of the following in 13 the order of priority listed, to the extent the person may 14 reasonably be identified and located: 15 a. The attorney in fact designated to make treatment 16 decisions for the resident in accordance with chapter 144B. 17 b. The guardian of the resident if one has been appointed 18 pursuant to chapter 633. 19 c. The resident’s spouse. 20 d. An adult child of the resident or, if the resident has 21 more than one adult child, a majority of the adult children who 22 are reasonably available. 23 e. A parent of the resident, or parents if both are 24 reasonably available. 25 f. An adult sibling of the resident. 26 Sec. 2. NEW SECTION . 135C.50 Electronic monitoring. 27 1. A resident or a resident representative may conduct 28 electronic monitoring of the resident’s room through the use of 29 an electronic monitoring device placed in the resident’s room 30 pursuant to this subchapter. 31 2. Nothing in this section precludes the use of electronic 32 monitoring otherwise allowed by law. 33 Sec. 3. NEW SECTION . 135C.51 Consent to electronic 34 monitoring. 35 -1- LSB 5656YH (3) 89 pf/rh 1/ 11

H.F. 2376 1. Except as otherwise provided in this subchapter, 1 a resident must consent to electronic monitoring in the 2 resident’s room in writing on a notification and consent 3 form prescribed by the department. If the resident has 4 not affirmatively objected to electronic monitoring and the 5 resident’s medical professional determines that the resident 6 lacks the ability to understand and appreciate the nature 7 and consequences of electronic monitoring, the resident 8 representative may consent on behalf of the resident. For 9 purposes of this subsection, a resident affirmatively objects 10 when the resident orally, visually, or through the use of 11 auxiliary aids or services declines electronic monitoring. The 12 resident’s response shall be documented on the notification and 13 consent form. 14 2. Prior to a resident representative consenting on behalf 15 of a resident, the resident shall be asked if the resident 16 wants electronic monitoring to be conducted. The resident 17 representative shall explain all of the following to the 18 resident: 19 a. The type of electronic monitoring device to be used. 20 b. The standard conditions or restrictions that may be 21 placed on the electronic monitoring device’s use including as 22 specified in the list of standard conditions or restrictions 23 contained in the notification and consent form completed by the 24 resident as provided in section 135C.54. 25 c. The dissemination and use of any recording as provided 26 under section 135C.58 or 135C.59. 27 d. The resident’s ability to decline all recordings. 28 3. A resident, or resident representative when consenting 29 on behalf of the resident, may consent to electronic monitoring 30 with any conditions or restrictions of the resident’s or 31 resident representative’s choosing, including the list 32 of standard conditions or restrictions contained in the 33 notification and consent form completed by the resident 34 as provided in section 135C.54. A resident, or resident 35 -2- LSB 5656YH (3) 89 pf/rh 2/ 11

H.F. 2376 representative when consenting on behalf of the resident, may 1 request that the electronic monitoring device be turned off 2 or the visual or audio recording component of the electronic 3 monitoring device be blocked at any time. 4 4. Prior to implementing electronic monitoring, a resident, 5 or resident representative when acting on behalf of the 6 resident, shall obtain the written consent on the notification 7 and consent form of any other resident who is a roommate 8 residing in the shared room. A roommate’s or roommate’s 9 resident representative’s written consent shall comply with 10 the requirements of this section. Consent by a roommate or 11 a roommate’s resident representative under this subsection 12 authorizes the resident’s use of any recording obtained under 13 this section as provided under sections 135C.58 and 135C.59. 14 5. Any resident conducting electronic monitoring shall 15 immediately remove or disable an electronic monitoring device 16 prior to a new resident who will be a roommate moving into 17 a shared room, unless the resident conducting electronic 18 monitoring obtains the new roommate’s or new roommate’s 19 resident representative’s written consent as provided under 20 this section prior to the new roommate moving into the shared 21 room. Upon obtaining the new roommate’s or new roommate’s 22 resident representative’s signed notification and consent form 23 and submitting the form to the nursing facility as required 24 under section 135C.53, the resident may resume electronic 25 monitoring. 26 6. The resident or roommate, or the resident representative 27 or roommate’s resident representative if the representative is 28 consenting on behalf of the resident or roommate, may withdraw 29 consent at any time and the withdrawal of consent shall be 30 documented on the original consent form as provided under 31 section 135C.53. 32 Sec. 4. NEW SECTION . 135C.52 Refusal of roommate to 33 consent. 34 If a resident of a nursing facility who is residing in a 35 -3- LSB 5656YH (3) 89 pf/rh 3/ 11

H.F. 2376 shared room, or the resident representative of such a resident 1 when acting on behalf of the resident, wants to conduct 2 electronic monitoring and another resident living in or moving 3 into the same shared room refuses to consent to the use of an 4 electronic monitoring device, the nursing facility shall make 5 a reasonable attempt to accommodate the resident who wants to 6 conduct electronic monitoring. A nursing facility has met 7 the requirement to make a reasonable attempt to accommodate 8 a resident or resident representative who wants to conduct 9 electronic monitoring when, upon notification that a roommate 10 has not consented to the use of an electronic monitoring device 11 in the resident’s room, the nursing facility offers to move one 12 of the residents to another shared room that is available at 13 the time of the request that accommodates the resident. If 14 a resident chooses to reside in a private room in order to 15 accommodate the use of an electronic monitoring device, the 16 resident shall be subject to a private room rate. If a nursing 17 facility is unable to accommodate a resident due to lack of 18 space, the nursing facility shall reevaluate the request 19 periodically until the request is fulfilled. 20 Sec. 5. NEW SECTION . 135C.53 Notice and consent form 21 submitted to nursing facility. 22 1. Electronic monitoring may begin only after the resident 23 or resident representative who intends to place an electronic 24 monitoring device in the resident’s room and any roommate or 25 roommate’s resident representative completes a notification and 26 consent form and submits the form to the nursing facility. 27 2. Upon receipt of the required, completed notification and 28 consent form, the nursing facility shall place the original 29 form in the resident’s file, and a copy of the form in any 30 roommate’s file. The nursing facility shall provide a copy to 31 the resident and the resident’s roommate, as applicable. 32 3. If a resident or roommate, or the resident representative 33 or roommate’s resident representative if the representative 34 is consenting on behalf of the resident or roommate, chooses 35 -4- LSB 5656YH (3) 89 pf/rh 4/ 11

H.F. 2376 to alter the conditions under which consent to electronic 1 monitoring is given or chooses to withdraw consent to 2 electronic monitoring, the nursing facility shall make 3 available the original notification and consent form so that 4 the original form may be updated. Upon receipt of the updated 5 original form, the nursing facility shall place the updated 6 original form in the resident’s file. The nursing facility 7 shall provide a copy of the updated form to the resident and 8 the resident’s roommate, as applicable. 9 4. If a new roommate, or the new roommate’s resident 10 representative when consenting on behalf of the new roommate, 11 does not consent to electronic monitoring and submit a 12 completed notification and consent form to the nursing 13 facility, and the resident conducting the electronic monitoring 14 does not remove or disable an existing electronic monitoring 15 device, the nursing facility shall remove the electronic 16 monitoring device. 17 5. If a roommate, or the roommate’s resident representative 18 when withdrawing consent on behalf of the roommate, submits 19 an updated notification and consent form withdrawing consent 20 and the resident conducting electronic monitoring does not 21 remove or disable the electronic monitoring device, the nursing 22 facility shall remove the electronic monitoring device. 23 Sec. 6. NEW SECTION . 135C.54 Notification and consent form 24 requirements. 25 1. The notification and consent form completed by the 26 resident shall include, at a minimum, all of the following 27 information: 28 a. The resident’s signed consent to electronic monitoring or 29 the signature of the resident representative, if applicable. 30 If a resident representative signs the consent form, the form 31 shall document all of the following: 32 (1) The date the resident was asked if the resident wants 33 electronic monitoring to be conducted. 34 (2) Any person present when the resident was asked. 35 -5- LSB 5656YH (3) 89 pf/rh 5/ 11

H.F. 2376 (3) An acknowledgment that the resident did not 1 affirmatively object. 2 (4) The source of authority allowing the resident 3 representative to sign the notification and consent form on the 4 resident’s behalf. 5 b. The resident’s roommate’s signed consent or the signature 6 of the roommate’s resident representative, if applicable. If a 7 roommate’s resident representative signs the consent form, the 8 form shall document all of the following: 9 (1) The date the roommate was asked if the roommate wants 10 electronic monitoring to be conducted. 11 (2) Any person present when the roommate was asked. 12 (3) An acknowledgment that the roommate did not 13 affirmatively object. 14 (4) The source of authority allowing the resident 15 representative to sign the notification and consent form on the 16 roommate’s behalf. 17 c. The type of electronic monitoring device to be used. 18 d. Any installation needs, such as mounting of a device to 19 a wall or ceiling. 20 e. The proposed date of installation for scheduling 21 purposes. 22 f. A copy of any contract for maintenance of the electronic 23 monitoring device by a commercial entity. 24 g. A list of standard conditions or restrictions that the 25 resident or a roommate may elect to place on the use of the 26 electronic monitoring device including but not limited to all 27 of the following: 28 (1) Prohibiting audio recording. 29 (2) Prohibiting video recording. 30 (3) Prohibiting broadcasting of audio or video. 31 (4) Turning off the electronic monitoring device or 32 blocking the visual recording component of the electronic 33 monitoring device for the duration of an exam or procedure by a 34 health care professional. 35 -6- LSB 5656YH (3) 89 pf/rh 6/ 11

H.F. 2376 (5) Turning off the electronic monitoring device or 1 blocking the visual recording component of the electronic 2 monitoring device while dressing or bathing is performed. 3 (6) Turning off the electronic monitoring device for 4 the duration of a visit with a spiritual adviser, ombudsman, 5 attorney, financial planner, intimate partner, or other 6 visitor. 7 h. Any other condition or restriction elected by the 8 resident or roommate on the use of an electronic monitoring 9 device. 10 i. A statement of the circumstances under which a recording 11 may be disseminated under section 135C.58. 12 j. A signature box to document if the resident or roommate 13 withdraws consent. 14 2. A nursing facility shall make the notification and 15 consent form available to the residents and inform residents of 16 the option to conduct electronic monitoring of the resident’s 17 room. 18 Sec. 7. NEW SECTION . 135C.55 Cost and installation. 19 1. A resident who chooses to conduct electronic monitoring 20 shall do so at the resident’s own expense, including payment of 21 any purchase, installation, maintenance, and removal costs. 22 2. If a resident chooses to place an electronic monitoring 23 device that uses internet technology for visual or audio 24 monitoring, the resident may be responsible for contracting 25 with an internet service provider. 26 3. The nursing facility shall make a reasonable attempt 27 to accommodate the resident’s installation needs, including 28 allowing access to the nursing facility’s public-use internet 29 or wi-fi systems when available for other public uses. 30 4. All electronic monitoring device installations and 31 supporting services shall comply with the requirements of the 32 national fire protection association 101 life safety code. 33 5. A nursing facility shall not charge a resident a fee 34 for the costs of electricity used by the electronic monitoring 35 -7- LSB 5656YH (3) 89 pf/rh 7/ 11

H.F. 2376 device. 1 Sec. 8. NEW SECTION . 135C.56 Notice to visitors. 2 1. A nursing facility shall post a sign at each nursing 3 facility entrance accessible to visitors that states 4 “Electronic monitoring devices may be present in the rooms of 5 residents to record persons and activities”. 6 2. A nursing facility shall post a sign clearly and 7 conspicuously at the entrance to a resident’s room where 8 electronic monitoring is being conducted. The notice shall 9 state “This room is electronically monitored”. 10 3. The nursing facility is responsible for installing and 11 maintaining the signage required in this section. 12 Sec. 9. NEW SECTION . 135C.57 Obstruction of electronic 13 monitoring devices. 14 1. A person shall not knowingly hamper, obstruct, tamper 15 with, or destroy an electronic monitoring device placed in 16 a resident’s room without the permission of the resident or 17 resident representative. 18 2. A person shall not knowingly hamper, obstruct, tamper 19 with, or destroy a video or audio recording obtained through 20 the use of an electronic monitoring device in accordance with 21 this subchapter. 22 3. It is not a violation of this section for a person to 23 turn off the electronic monitoring device or block the visual 24 recording component of the electronic monitoring device at the 25 direction of the resident or resident representative, or if 26 consent has been withdrawn. 27 4. A person who violates this section is guilty of a serious 28 misdemeanor. 29 Sec. 10. NEW SECTION . 135C.58 Dissemination of recordings. 30 1. A person shall not access any video or audio recording 31 created through electronic monitoring under this subchapter 32 without the written consent of the resident or resident 33 representative. 34 2. Except as otherwise required by law, a recording or copy 35 -8- LSB 5656YH (3) 89 pf/rh 8/ 11

H.F. 2376 of a recording created as provided in this subchapter may only 1 be disseminated for the purpose of addressing health, safety, 2 or welfare concerns of a resident. 3 3. A person accessing or disseminating a recording or copy 4 of a recording created as provided in this section in violation 5 of this section is guilty of a serious misdemeanor. 6 Sec. 11. NEW SECTION . 135C.59 Admissibility of evidence. 7 Subject to applicable rules of evidence and procedure, any 8 video or audio recording created through electronic monitoring 9 under this subchapter may be admitted into evidence in a civil, 10 criminal, or administrative proceeding if the contents of the 11 recording have not been edited or artificially enhanced and the 12 recording includes the date and time the events occurred. 13 Sec. 12. NEW SECTION . 135C.60 Liability —— penalties. 14 1. A nursing facility is not civilly or criminally liable 15 for the disclosure of a recording by a resident or a person who 16 consents on behalf of a resident for any purpose not authorized 17 by this subchapter. 18 2. A nursing facility is not civilly or criminally liable 19 for a violation of a resident’s right to privacy arising out 20 of any electronic monitoring conducted in accordance and in 21 compliance with this subchapter. 22 3. A nursing facility that knowingly violates this 23 subchapter shall be subject to licensee discipline. 24 Sec. 13. NEW SECTION . 135C.61 Resident protections. 25 1. A nursing facility shall not do any of the following: 26 a. Refuse to admit a potential resident or remove a resident 27 because the nursing facility disagrees with the potential 28 resident’s or the resident’s decisions regarding electronic 29 monitoring, whether the decision is made by a resident or a 30 resident representative acting on behalf of the resident. 31 b. Retaliate or discriminate against any resident for 32 consenting or refusing to consent to electronic monitoring. 33 c. Prevent the placement or use of an electronic monitoring 34 device by a resident who has provided the nursing facility 35 -9- LSB 5656YH (3) 89 pf/rh 9/ 11

H.F. 2376 with the notification and consent form as required under this 1 subchapter. 2 2. Any contractual provision prohibiting, limiting, 3 or otherwise modifying the rights and obligations in this 4 subchapter is contrary to public policy and is void and 5 unenforceable. 6 Sec. 14. NEW SECTION . 135C.62 Report to department. 7 A nursing facility shall report to the department, in a 8 manner prescribed by the department, the number of electronic 9 monitoring device notification and consent forms received by 10 the nursing facility on an annual basis. 11 Sec. 15. DIRECTIVE TO DEPARTMENT OF INSPECTIONS AND 12 APPEALS. The department of inspections and appeals shall 13 prescribe by rule pursuant to chapter 17A the notification and 14 consent form described in this Act, and shall make the form 15 available on the department’s internet site. 16 Sec. 16. CODE EDITOR DIRECTIVE. The Code editor may codify 17 the provisions of this Act as a new subchapter of chapter 135C 18 entitled “Electronic Monitoring”. 19 EXPLANATION 20 The inclusion of this explanation does not constitute agreement with 21 the explanation’s substance by the members of the general assembly. 22 This bill provides for authorized electronic monitoring in 23 nursing facilities. 24 The bill provides that a nursing facility resident or a 25 resident representative may conduct electronic monitoring 26 of the resident’s room through the use of electronic 27 monitoring devices placed in the resident’s room pursuant 28 to the bill. The bill specifies the consents that must be 29 obtained for a resident to conduct electronic monitoring 30 in the resident’s room, including from any roommate; the 31 process to be followed if a roommate refuses to consent; the 32 provision of notice to the nursing facility; the notification 33 and consent form requirements; the responsibility for the 34 cost and installation relating to the electronic monitoring; 35 -10- LSB 5656YH (3) 89 pf/rh 10/ 11

H.F. 2376 penalties for obstruction of electronic monitoring devices; 1 the dissemination of recordings created through electronic 2 monitoring; the admissibility of evidence created through 3 electronic monitoring; liability and penalties for violations 4 of the bill; resident protections; and reporting requirements. 5 The bill also directs the department of inspections and appeals 6 to prescribe the notification and consent form described in 7 the bill and to make the form available on the department’s 8 internet site. 9 -11- LSB 5656YH (3) 89 pf/rh 11/ 11