HF 2317 (LSB 1746HV (3) 90)

HOUSE FILE 2317

BY  COMMITTEE ON HEALTH AND HUMAN SERVICES

(SUCCESSOR TO HF 537)

A BILL FOR

An Act relating to the requirements for authorized electronic monitoring in nursing facilities, and providing penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  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 or resident representative in the resident’s room in accordance with this subchapter.
   2.  “Electronic monitoring device” means a video camera that livestream broadcasts video only that is placed in a resident’s room and is used to monitor the resident or activities in the room. “Electronic monitoring device” does not include video phone calls or video conferencing where a resident either initiates or joins a call or conference.
   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 guardian of the resident if one has been appointed pursuant to chapter 633.
   b.  The attorney in fact designated to make treatment decisions for the resident in accordance with chapter 144B.
    Sec. 2.  NEW SECTION.  135C.50  Electronic monitoring.
   1.  A resident, or a resident representative when acting on behalf of a resident, 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.  A nursing facility or resident of the nursing facility shall not engage in electronic monitoring or the use of electronic monitoring devices in a resident’s room without the written permission of the nursing facility and the written consent of the resident or resident representative when consenting on behalf of a resident.
   3.  Nothing in this section precludes the use of electronic monitoring otherwise allowed by law.
    Sec. 3.  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 health care 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.55.
   c.  The resident’s ability to decline all electronic monitoring.
   3.  A resident, or resident representative when consenting on behalf of the resident, shall consent to electronic monitoring with the standard conditions or restrictions contained in the notification and consent form completed by the resident as provided in section 135C.55.
   4.  A nursing facility employee may be present to witness the completion of the written notification and consent form and to answer any questions relating to conducting electronic monitoring in a resident’s room.
    Sec. 4.  NEW SECTION.  135C.52  Consent to electronic monitoring —— shared room.
   1.  If a resident resides in a shared room, all of the following shall apply:
   a.  The resident, or resident representative, as applicable, shall request and obtain the written consent on the notification and consent form of any existing roommate residing in the shared room, prior to initiating electronic monitoring in the resident’s room. 
   b.  The resident, or resident representative, as applicable, who is currently conducting electronic monitoring in the resident’s room, shall immediately remove or disable an electronic monitoring device prior to a new roommate moving into a shared room, and shall not resume electronic monitoring unless the resident or resident representative requests and obtains written consent on the notification and consent form, of the new roommate or the new roommate’s resident representative. 
   2.  a.  An existing or new roommate, or the roommate’s resident representative, as applicable, shall have thirty calendar days from receipt of the request for consent to electronic monitoring to complete the notification and consent form. 
   b.  Failure of an existing or new roommate, or the roommate’s resident representative, to complete the notification and consent form within the thirty-calendar-day period, shall be considered an affirmative objection to the initiating or resuming of electronic monitoring, and the resident or resident’s representative shall not initiate or resume electronic monitoring in the resident’s room.
   3.  After obtaining an existing or new roommate’s, or the roommate’s resident representative’s signed notification and consent form and submitting the form to the nursing facility as required under section 135C.54, the resident or resident representative may initiate or resume electronic monitoring of the resident’s room only after the expiration of a thirty-calendar-day waiting period commencing on the date the signed notification and consent form is submitted to the nursing facility.
   4.  The resident, the existing or new roommate, the resident’s resident representative, or the roommate’s resident representative, as applicable, may withdraw consent to electronic monitoring at any time and the withdrawal of consent shall be documented on the original notification and consent form.
    Sec. 5.  NEW SECTION.  135C.53  Refusal of roommate to consent —— accommodations.
   1.  If a resident is residing in a shared room, and the resident or resident representative, when acting on behalf of the resident, wants to initiate or resume electronic monitoring but an existing or new roommate refuses to consent to the electronic monitoring as required under section 135C.52, the nursing facility shall make a reasonable attempt to accommodate the resident or resident representative who wants to conduct electronic monitoring. 
   2.  A nursing facility has met the requirement to make a reasonable attempt to accommodate a resident or resident representative who wants to initiate or resume electronic monitoring under subsection 1 when, upon notification of the nursing facility by a resident or resident representative that an existing or new roommate has refused to consent to electronic monitoring in the shared room, the nursing facility offers to move the resident or roommate to another shared room that is available at the time of the request that accommodates the resident or roommate.
   3.  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 the private room rate. 
   4.  If a nursing facility is unable to accommodate a resident’s request to conduct electronic monitoring under this section, the nursing facility shall reevaluate the request periodically until the request is fulfilled.
    Sec. 6.  NEW SECTION.  135C.54  Notice and consent form submitted to nursing facility.
   1.  Electronic monitoring of a resident’s room may be conducted only after all of the following conditions are met:
   a.  (1)  If the resident resides in a private room, the resident, or the resident representative when acting on behalf of the resident, completes a notification and consent form and submits the signed and completed form to the nursing facility.
   (2)  If the resident resides in a shared room, the resident or the resident representative when acting on behalf of the resident, and any roommate or the roommate’s resident representative, completes notification and consent forms and submit the signed and completed forms to the nursing facility.
   b.  Any required waiting period prior to the initiating or resuming of electronic monitoring has expired.
   2.  Upon receipt of any required, completed notification and consent form, the nursing facility shall place a copy of the form in the resident’s file and a copy of the form in any roommate’s file. The nursing facility shall provide a copy of any notification and consent form received to the resident and the resident’s roommate, or to the resident’s resident representative or the roommate’s resident representative, 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 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 a copy of the updated 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 or to the resident representative or roommate’s resident representative, 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 or resident representative conducting the electronic monitoring does not remove or disable an existing electronic monitoring device, the nursing facility shall provide the resident or the resident representative, as applicable, a twenty-four-hour notice to remove or disable the electronic monitoring device. If the device is not removed or disabled within twenty-four hours of notification to the resident or resident representative, the nursing facility may disable or remove the electronic monitoring device.
   5.  If an existing roommate, or the existing roommate’s resident representative when withdrawing consent on behalf of the existing roommate, submits an updated notification and consent form withdrawing consent and the resident or resident representative conducting electronic monitoring does not remove or disable the electronic monitoring device, the nursing facility shall provide the resident or resident representative a twenty-four-hour notice to remove or disable the electronic monitoring device. If the device is not removed or disabled within twenty-four hours of notification to the resident or resident representative, the nursing facility may disable or remove the electronic monitoring device.
    Sec. 7.  NEW SECTION.  135C.55  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 notification and 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)  The name of 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, including any court order, as applicable.
   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 notification and 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)  The name of 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, including any court order, as applicable.
   c.  The type of electronic monitoring device to be used.
   d.  Any installation needs, such as mounting a device to a wall or ceiling, and the costs associated with installation and use, which are to be paid by the resident or the resident representative, and the resident’s liability for potential damage and repairs due to installation.
   e.  Fourteen days’ notice of 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 for 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)  Turning off the electronic monitoring device or blocking the lens of the electronic monitoring device for the duration of an exam or procedure by a health care professional.
   (4)  Turning off the electronic monitoring device or blocking the lens of the electronic monitoring device while dressing or bathing is performed.
   (5)  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.
   (6)  Prohibiting drop-in video access.
   (7)  Requiring visual verification when the electronic monitoring device is in use.
   (8)  Requiring conspicuously visible placement of the electronic monitoring device inside the resident’s room.
   (9)  Prohibiting the electronic monitoring device from being placed outside the resident’s living quarters.
   h.  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 residents and inform residents of the option to conduct electronic monitoring of the resident’s room.
    Sec. 8.  NEW SECTION.  135C.56  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, removal costs, and costs for returning the resident’s room to preinstallation condition.
   2.  If a resident chooses to place an electronic monitoring device that uses internet technology for visual monitoring, the resident shall 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.
   4.  All electronic monitoring device installations and supporting services shall comply with all applicable building codes.
   5.  A nursing facility shall not charge a resident a fee for the costs of electricity used by the electronic monitoring device.
    Sec. 9.  NEW SECTION.  135C.57  Notice to visitors.
   1.  If electronic monitoring is being conducted, 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 observe 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. 10.  NEW SECTION.  135C.58  Obstruction of electronic monitoring devices.
   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, as applicable.
    Sec. 11.  NEW SECTION.  135C.59  Immunity from liability —— licensee discipline —— inadmissibility of recordings.
   1.  A nursing facility is not civilly or criminally liable for the disclosure of an unlawful recording captured by an electronic monitoring device.
   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.  The resident and resident representative, as applicable, are responsible for complying with local, state, and federal privacy laws and for firewall protections to prevent images that may violate obscenity laws from being inadvertently shown on the internet via the electronic monitoring device.
   4.  A nursing facility that knowingly violates this subchapter shall be subject to licensee discipline.
   5.  If a resident fails to comply with the nursing facility policies and residency agreement relating to the use of an electronic monitoring device, nursing facility staff may report the failure to the office of long-term care ombudsman and law enforcement, as applicable. Continued failure by a resident to comply with such nursing facility policies and residency agreement may constitute grounds for termination of a resident’s residency agreement.
   6.  Audio or video recordings obtained in violation of this chapter are inadmissible in a regulatory or other disciplinary proceeding.
    Sec. 12.  NEW SECTION.  135C.60  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 any 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. 13.  NEW SECTION.  135C.61  Report to the department.
   A nursing facility shall report to the department, during the nursing facility’s recertification survey, the number of electronic monitoring device notification and consent forms received by the nursing facility.
    Sec. 14.  Section 633.635, subsection 3, Code 2024, is amended by adding the following new paragraph:
   NEW PARAGRAPH.  d.  Consenting to electronic monitoring conducted in accordance with chapter 135C.
    Sec. 15.  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. 16.  CODE EDITOR DIRECTIVE.  The Code editor may codify the provisions of this Act as a new subchapter of chapter 135C entitled “Electronic Monitoring”. 
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill provides for authorized electronic monitoring in nursing facilities.
   The bill provides that a nursing facility resident or a resident representative, as applicable, may conduct electronic monitoring of the resident’s room through the use of electronic monitoring devices placed in the resident’s room pursuant to the bill. The bill specifies the consents that must be obtained for a resident to conduct electronic monitoring in the resident’s room, including from any roommate; the process to be followed if a roommate refuses to consent; the provision of notification to the nursing facility; the notification and consent form requirements; the responsibility for costs and installation relating to the electronic monitoring; notice to visitors; prohibited obstruction of electronic monitoring devices; immunity from liability, licensee discipline, and inadmissibility of recordings related to violations of the bill; resident protections; and reporting requirements. The bill also directs the department of inspections and appeals to prescribe the notification and consent form described in the bill and to make the form available on the department’s internet site.