HF 2471 (LSB 5254YH (6) 91)

HOUSE FILE 2471

BY  GEARHART

A BILL FOR

An Act relating to electronic monitoring device requirements and health care facilities, including health care facility violations, and making penalties applicable.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

DIVISION I
ELECTRONIC MONITORING IN HEALTH CARE FACILITIES

    Section 1.  Section 135C.1, Code 2026, is amended by adding the following new subsection:
   NEW SUBSECTION.  6A.  “Electronic monitoring device” means a device capable of any combination of capturing, recording, or transmitting audio, visual, or audio-visual information.
    Sec. 2.  NEW SECTION.  135C.35D  Electronic monitoring devices.
   1.  For purposes of this section, “roommate” means a resident who resides in the same room as another resident.
   2.  Subject to subsection 3, each facility shall permit a resident, or the resident’s legal representative, to install and operate an electronic monitoring device in the resident’s room.
   3.  a.  Each facility shall require a resident, or the resident’s legal representative, to obtain written consent from each of the resident’s roommates, or each roommate’s legal representative, prior to installing an electronic monitoring device in the resident’s room.
   b.  If a resident requested written consent under paragraph “a”, and one or more of the resident’s roommates or the roommate’s legal representative refuses to provide written consent, the facility shall, to the extent practicable, transfer the resident to a different room that can accommodate installation of an electronic monitoring device.
   4.  A health care facility shall not refuse admission to, discharge, or otherwise retaliate against a resident who elects to use an electronic monitoring device.
   5.  Each health care facility shall make reasonable physical accommodations for the placement of electronic monitoring devices, including but not limited to access to a power source.
   6.  If an electronic monitoring device is being used in a resident’s room, the facility shall post a notice at the entrance of the room that states the room is subject to electronic monitoring.
   7.  A resident, or the resident’s legal representative, shall pay for all costs associated with the purchase, installation, maintenance, and removal of each electronic monitoring device the resident, or the resident’s legal representative, installs in the resident’s room.
DIVISION II
HEALTH CARE FACILITY VIOLATIONS

    Sec. 3.  Section 135C.10, Code 2026, is amended to read as follows:
   135C.10  Denial, suspension, or revocation.
   1.  The department shall have the authority to deny, suspend, or revoke a license in any case where the department finds that there has been repeated failure on the part of the facility to comply with the provisions of this chapter or the rules or minimum standards promulgated hereunder, or for any of the following reasons:
   1.  a.  Cruelty or indifference to health care facility residents.
   2.  b.  Appropriation or conversion of the property of a health care facility resident without the resident’s written consent or the written consent of the resident’s legal guardian.
   3.  c.  Permitting, aiding, or abetting the commission of any illegal act in the health care facility.
   4.  d.  Inability or failure to operate and conduct the health care facility in accordance with the requirements of this chapter and the minimum standards and rules issued pursuant thereto.
   5.  e.  Obtaining or attempting to obtain or retain a license by fraudulent means, misrepresentation, or by submitting false information.
   6.  f.  Habitual intoxication or addiction to the use of drugs by the applicant, or the manager or supervisor of the health care facility.
   7.  g.  Securing the devise or bequest of the property of a resident of a health care facility by undue influence.
   8.  h.  Willful failure or neglect to maintain a continuing in-service education and training program for all personnel employed in the facility.
   9.  i.  In the case of an application for a new or newly acquired facility, continuing or repeated failure of the licensee to operate any previously licensed facility or facilities in compliance with the provisions of this chapter, the rules adopted pursuant to this chapter, or equivalent provisions that the facility is subject to in this state or any other state.
   10.  j.  In the case of a license applicant or existing licensee which is an entity other than an individual, the department may deny, suspend, or revoke a license if any individual, who is in a position of control or is an officer of the entity, engages in any act or omission proscribed by this section.
   11.  k.  Intentionally preventing or interfering with or attempting to prevent or interfere in any way with the performance by any duly authorized representative of the department of the lawful enforcement of this chapter or of the rules adopted pursuant to this chapter. As used in this subsection, “lawful enforcement” includes but is not limited to the following:
   a.  (1)  Contacting or interviewing any resident of a health care facility in private at any reasonable hour and without advance notice.
   b.  (2)  Examining any relevant books or records of a health care facility unless otherwise protected from disclosure by operation of law.
   c.  (3)  Preserving evidence of any violation of this chapter or of the rules adopted pursuant to this chapter.
   2.  The department shall either suspend or revoke a health care facility’s license if the department finds the facility has committed three or more class I violations under section 135C.36 within a period of twenty-four consecutive months.
    Sec. 4.  Section 135C.19, subsection 2, Code 2026, is amended to read as follows:
   2.  a.  A citation for a class I or class II violation which is issued to a health care facility and which has become final, or a copy of the citation, shall be prominently posted as prescribed in rules, until from the date the department serves the citation on the facility until twelve months from the date the department confirms the violation is has been corrected to the department’s satisfaction. The citation or copy shall be posted in a place in plain view of the residents of the facility cited, persons visiting the residents, and persons inquiring about placement in the facility.
   b.  A copy of each citation required to be posted by this subsection shall be sent by the department to the department of health and human services, to the designated protection and advocacy agency if the facility has one or more residents with developmental disabilities or mental illness, and to the office of long-term care ombudsman if the facility is a nursing facility or residential care facility.
   c.  A health care facility shall provide a copy of each citation required to be posted by this subsection to each resident of the facility and mail a copy of the citation to each legal representative of a resident of the facility.
    Sec. 5.  Section 135C.36, Code 2026, is amended to read as follows:
   135C.36  Violations classified —— penalties.
   1.  Every violation by a health care facility of any provision of this chapter or of the rules adopted pursuant to it this chapter shall be classified by the department in accordance with this section. The department shall adopt and may from time to time modify, in accordance with chapter 17A, rules setting forth so far as feasible the specific violations included in each classification and stating criteria for the classification of any violation not so listed.
   1.  2.  a.  (1)  A class I violation is one which presents an imminent danger or a substantial probability of resultant a violation that is substantially likely to cause a resident’s death or physical harm to the residents of the facility in which the violation occurs. A physical condition or one or more practices in a facility may constitute a class I violation.  Based on the circumstances, the department may find either of the following is a class I violation:
   (a)  A violation of a rule adopted pursuant to section 135C.14, subsection 8.
   (b)  A violation of section 135C.31.
   (2)  A class I violation shall be abated or eliminated immediately unless the department determines that a stated period of time, specified in the citation issued under section 135C.40, is required to correct the violation.
   (3)  A licensee is subject to a penalty of not less than two ten thousand nor dollars but not more than ten fifty thousand dollars for each calendar day a class I violation for which the licensee’s facility is cited exists beginning from the date the department serves a citation on the licensee for the violation.
   2.  b.  (1)  A class II violation is one which a violation that has a direct or immediate relationship to an impact on the health, safety, or security of residents of a health care facility, but which presents no imminent danger nor substantial probability of that is not substantially likely to cause a resident’s death or physical harm to them. A physical condition or one or more practices within a facility, including either physical abuse of any resident or failure to treat any resident with consideration, respect, and full recognition of the resident’s dignity and individuality, in violation of a specific rule adopted by the department, may constitute a class II violation.
   (2)  A violation of a rule adopted pursuant to section 135C.14, subsection 8, or section 135C.31 and rules or a rule adopted under those sections pursuant to that section, shall be at least a class II violation and may be if the department determines the violation does not constitute a class I violation.
   (3)  A class II violation shall be corrected within a stated period of time determined by the department and specified in the citation issued under section 135C.40. The stated department may modify the period of time specified in the citation may subsequently be modified by the department for good cause shown if the facility subject to the citation provides evidence that it cannot correct the violation within the period of time specified in the citation through no fault of the facility’s own.
   (4)  A licensee is subject to a penalty of not less than one hundred nor five thousand dollars but not more than five hundred twenty-five thousand dollars for each calendar day a class II violation for which the licensee’s facility is cited; however the continues after the period of time specified by the department under subparagraph (3) or the date a modification granted by the department under subparagraph (3) terminates. 
   (5)  The director may, upon written request of the a facility, waive the a penalty assessed on the facility for a class II violation if the violation is corrected within the time specified in the citation. The department shall adopt rules in accordance with chapter 17A establishing criteria for the granting or denial of denying a waiver request under this subparagraph.
   3.  c.  (1)  A class III violation is any violation of this chapter, or of the rules adopted pursuant to it which violation this chapter, that is not classified in by the department’s rules nor classifiable under the criteria stated in those rules as a class I or a class II violation.
   (2)  A class III violation shall be corrected within a period of time determined by the department and specified in the citation issued under section 135C.40. The department may modify the period of time specified in the citation for good cause shown.
   (3)  A licensee shall not be is subject to a penalty for each calendar day a class III violation, except as provided by section 135C.40, subsection 1, for failure to correct the violation within a reasonable time specified by the department in the notice of the violation continues after any period of time specified by the department under subparagraph (2) or a date a modification granted by the department under subparagraph (2) terminates.
   (4)  The director may, upon written request of a facility, waive a penalty assessed upon the facility for a class III violation if the violation is corrected within the time specified in the citation. The department shall adopt rules in accordance with chapter 17A to establish criteria for granting or denying a waiver request under this subparagraph.
   4.  3.  Any state penalty, including a fine or citation, issued following a state licensure and federal certification survey or investigation shall be dismissed if the corresponding federal deficiency is dismissed or removed. Any state penalty, including a fine or citation, shall be retained or reinstated if the federal deficiency is retained or reinstated.
   5.  4.  If a facility self-identifies a deficient practice prior to an on-site visit inspection, there has been no complaint filed with the department related to that specific deficient practice, and the facility corrects such practice prior to an inspection, no citation shall be issued or fine penalty assessed pursuant to subsection 2 or 3 except for those penalties arising pursuant to section 135C.33; 481 IAC 57.11(3) and (7), 
481 IAC 57.16(3)
, 
481 IAC 57.32
, 
481 IAC 57.34(1)
, 481 IAC 58.11(3),
 481 IAC 58.14(5)
,
 481 IAC 58.19(2)(a)
, 481 IAC 58.19(2)(h),
 481 IAC 58.28(1)(a)
,
 481 IAC 58.43
, 481 IAC 63.8(3), 
481 IAC 63.27
, 
481 IAC 63.29(1)
,
 481 IAC 64.4(9)
, 481 IAC 64.33(2),
 481 IAC 64.34
,
 481 IAC 65.9(5)
,
 481 IAC 65.15
, or 
481 IAC 65.25(3) and (4)
, or the successor to any of such rules; or 42 C.F.R. §483.420(d), 42 C.F.R. §483.460(c)(4), or 42 C.F.R. §483.470(j), or the successor to any of such federal regulations.
    Sec. 6.  Section 135C.40, subsection 1, unnumbered paragraph 1, Code 2026, is amended to read as follows:
   If the director determines, based on the findings of an inspection or investigation of a health care facility, that the facility is in violation of this chapter or rules adopted under this chapter, the director within five working business days after making the determination, may issue a written citation to the facility. The citation shall be served upon the facility personally, by electronic mail, or by certified mail, except that a citation for a class III violation may be sent by ordinary mail. Each citation shall specifically describe the nature of the violation, identifying identify the Code section or subsection or the rule or standard violated, and identify the classification of the violation under section 135C.36. Where appropriate, the citation shall also state the period of time allowed for correction of the violation, which shall in each case be the shortest period of time the department deems feasible. Failure to correct a violation within the time specified, unless the licensee shows that the failure was due to circumstances beyond the licensee’s control, shall subject the facility to a further penalty of fifty dollars for each day that the violation continues after the time specified for correction.
    Sec. 7.  Section 135C.44, Code 2026, is amended to read as follows:
   135C.44  Treble Enhanced fines for repeated violations.
   1.  The penalties authorized by section 135C.36 shall be trebled for a second or subsequent class I or class II increased by fifty percent for a violation occurring within any twelve-month consecutive twenty-four-month period if a citation was issued for the same class I or class II violation occurring within that consecutive twenty-four-month period and a penalty was assessed therefor.
   2.  If a facility was assessed an enhanced penalty under subsection 1, the penalty for each subsequent citation for the same violation shall be increased by one hundred percent of the most recent penalty assessed on the facility for that same violation.
    Sec. 8.  NEW SECTION.  135C.49  Resident protection fund.
   1.  A resident protection fund is created in the state treasury under the control of the department of health and human services.
   2.  The resident protection fund shall consist of moneys collected by the department as penalties for violations of this chapter, moneys appropriated by the general assembly, and other moneys received by the department of health and human services for deposit in the fund.
   3.  Moneys in the resident protection fund are appropriated to the department of health and human services for the purpose of remedying harm caused by violations of this chapter, increasing the quality of care provided to residents, and supporting the office of the long-term care ombudsman established in section 231.42.
   4.  Notwithstanding section 8.33, moneys appropriated in this section that remain unencumbered or unobligated at the close of a fiscal year shall not revert but shall remain available for expenditure for the purposes designated. Notwithstanding section 12C.7, subsection 2, interest and earnings on moneys in the resident protection fund shall be credited to the resident protection fund.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to health care facilities (facilities), including electronic monitoring device (device) requirements and facility violations.
   DIVISION I —— ELECTRONIC MONITORING IN HEALTH CARE FACILITIES. Code chapter 135C (health care facilities) defines a health care facility as a residential care facility, nursing facility, intermediate care facility for persons with a mental illness, or an intermediate care facility for persons with an intellectual disability.
   The bill defines “electronic monitoring device” as a device capable of any combination of capturing, recording, or transmitting audio, visual, or audio-visual information.
   The bill defines “roommate” as a resident who resides in the same room as another resident. For purposes of Code chapter 135C, a resident is an individual admitted to a facility.
   The bill requires each facility to permit a resident, or the resident’s legal representative (representative), to install and operate a device in the resident’s room. The bill also requires each facility to require a resident, or the resident’s representative, to obtain written consent from each of the resident’s roommates or their representative prior to installing a device in the resident’s room. If a resident requests permission from a roommate or the roommate’s representative to install a device, and the roommate or roommate’s representative refuses to provide written consent, the facility where the resident resides must, to the extent practicable, transfer the resident to a different room to accommodate the installation of a device.
   The bill prohibits a facility from refusing admission to, discharging, or otherwise retaliating against a resident who elects to use a device.
   The bill requires each facility to make reasonable physical accommodations for the placement of a device, including but not limited to access to a power source.
   The bill requires each facility to post a notice at the entrance of a resident’s room that states that the room is subject to electronic monitoring if a device is in use in the resident’s room.
   The bill requires a resident, or the resident’s representative, to pay for all costs associated with the purchase, installation, maintenance, and removal of each device the resident, or the resident’s representative, installs in the resident’s room. 
   DIVISION II —— HEALTH CARE FACILITY VIOLATIONS. The bill requires DIAL to either suspend or revoke a facility’s license if the department finds the facility has committed three or more class I violations within a period of 24 consecutive months. A class I violation is a violation that is substantially likely to cause a resident’s death or physical harm. A class II violation has an impact on the health, safety, or security of residents but is not substantially likely to cause a resident’s death or harm. A class III violation is a violation that is not classified as either a class I or II violation.
   The bill requires a facility to prominently post a copy of each violation issued to the facility from the date DIAL serves the citation on the facility until 12 months from the date DIAL confirms the violation has been corrected, and requires the facility to provide a copy of the citation to each of the facility’s residents and mail a copy to each representative of a resident of the facility.
   The bill increases the minimum and maximum penalty for class I and class II violations. The bill also creates a minimum and maximum penalty for class III violations.
   Under current law, a facility is subject to one penalty for each class I or class II violation DIAL determines the facility has committed. The bill instead makes a facility subject to a penalty for each calendar day a class I violation remains uncorrected beginning from the date DIAL serves a citation on the facility for the violation, and for each calendar day a class II or class III violation continues after the period of time specified by DIAL in DIAL’s citation to the facility.
   Under current law, DIAL may extend the period of time a facility is required to correct a class II violation for good cause shown. The bill allows DIAL to extend the period of time to correct a class II violation if the facility provides evidence that it cannot correct the violation within the period of time specified in the citation through no fault of the facility’s own. The bill also allows DIAL to extend the period of time a facility is required to correct a class III violation for good cause shown.
   The bill allows DIAL, upon written request of a facility, to waive a penalty assessed on the facility for a class III violation if the violation is corrected within the time specified in the citation. The bill requires DIAL to adopt rules to establish criteria for such a waiver.
   Under current law, DIAL may serve a facility a citation for a class III violation by ordinary mail. The bill requires DIAL to serve a facility a citation for a class III violation by electronic or certified mail.
   Under current law, the penalty for a facility’s violation is increased by three times if the facility had been assessed a penalty for the same violation within the previous 12 months. The bill instead increases Code chapter 135C penalties by 50 percent for a violation committed within 24 months of having been issued a citation for the same violation. If the facility has been subject to an enhanced penalty within the 24-month period, each subsequent penalty assessed for the same violation is increased by 100 percent of the most recently assessed penalty.
   The bill creates a resident protection fund (fund) under the control of the department of health and human services (HHS). The fund consists of moneys collected as penalties for violations of Code chapter 135C, moneys appropriated by the general assembly, and other moneys received by HHS for deposit in the fund. Moneys in the fund are to be distributed by HHS for the purposes of remedying harm caused by violations of Code chapter 135C, increasing the quality of care provided to residents, and supporting the office of the long-term care ombudsman. Moneys in the fund do not revert back to the state general fund but remain available for HHS to use for the fund’s designated purposes. Interest and earnings on moneys in the fund shall be credited to the fund.