HF 3561

as introduced - 90th Legislature (2017 - 2018) Posted on 03/08/2018 02:38pm

A bill for an act
relating to health; providing for authorized electronic monitoring in certain health
care settings; proposing coding for new law in Minnesota Statutes, chapter 144.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [144.6502] AUTHORIZED ELECTRONIC MONITORING IN CERTAIN
HEALTH CARE FACILITIES.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) For the purposes of this section, the terms defined in this
subdivision have the meanings given.
new text end

new text begin (b) "Authorized electronic monitoring" means the placement and use of an electronic
monitoring device by a resident in the resident's room or private living space in accordance
with this section.
new text end

new text begin (c) "Commissioner" means the commissioner of health.
new text end

new text begin (d) "Department" means the Department of Health.
new text end

new text begin (e) "Electronic monitoring device" means a surveillance instrument with a fixed position
video camera or an audio recording device, or a combination thereof, that is installed in a
resident's room or private living space under the provisions of this section and broadcasts
or records activity or sounds occurring in the room or private living space.
new text end

new text begin (f) "Facility" means a facility that is licensed as a nursing home under chapter 144A or
as a boarding care home under sections 144.50 to 144.56, or registered as a housing with
services establishment under chapter 144D that is also subject to chapter 144G.
new text end

new text begin (g) "Legal representative" means a court-appointed guardian or other representative with
legal authority to make decisions about health care services for the resident, including a
health care agent or an attorney-in-fact authorized through a health care directive or a power
of attorney.
new text end

new text begin (h) "Resident" means a person 18 years of age or older residing in a facility.
new text end

new text begin Subd. 2. new text end

new text begin Authorized electronic monitoring. new text end

new text begin (a) A resident or a resident's legal
representative may conduct authorized electronic monitoring of the resident's room or private
living space through the use of electronic monitoring devices placed in the room or private
living space as provided in this section.
new text end

new text begin (b) Nothing in this section allows the use of an electronic monitoring device to take still
photographs or for the nonconsensual interception of private communications.
new text end

new text begin Subd. 3. new text end

new text begin Consent to electronic monitoring. new text end

new text begin (a) Except as otherwise provided in this
subdivision, a resident must consent in writing on a notification and consent form prescribed
by the commissioner to the authorized electronic monitoring in the resident's room or private
living space. If the resident has not affirmatively objected to the authorized electronic
monitoring and the resident's physician determines that the resident lacks the ability to
understand and appreciate the nature and consequences of electronic monitoring, the resident's
legal representative may consent on behalf of the resident. For the purposes of this
subdivision, a resident affirmatively objects when the resident orally, visually, or through
the use of auxiliary aids or services declines authorized electronic monitoring. The resident's
response must be documented on the notification and consent form.
new text end

new text begin (b) Prior to a resident's legal representative consenting on behalf of a resident, the resident
must be asked by the resident's legal guardian in the presence of a facility employee if the
resident wants authorized electronic monitoring to be conducted. The resident's legal
representative must explain to the resident:
new text end

new text begin (1) the type of electronic monitoring device to be used;
new text end

new text begin (2) the standard conditions that may be placed on the electronic monitoring device's use,
including those listed in subdivision 4;
new text end

new text begin (3) with whom the recording may be shared according to subdivisions 8 and 9; and
new text end

new text begin (4) the resident's ability to decline all recording.
new text end

new text begin (c) A resident or roommate may consent to authorized electronic monitoring with any
conditions of the resident's or roommate's choosing, including, but not limited to, the list
of standard conditions provided in subdivision 4. A resident or roommate 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.
new text end

new text begin (d) Prior to implementing authorized electronic monitoring, a resident must obtain the
written consent of any other resident residing in the room or private living space on the
notification and consent form prescribed by the commissioner. Except as otherwise provided
in this subdivision, a roommate must consent in writing to the authorized electronic
monitoring in the resident's room or private living space. If the roommate has not
affirmatively objected to the authorized electronic monitoring in accordance with this
subdivision and the roommate's physician determines that the roommate lacks the ability
to understand and appreciate the nature and consequences of electronic monitoring, the
roommate's legal representative may consent on behalf of the roommate. Consent by a
roommate under this paragraph authorizes the resident's use of any recording obtained under
this section, as provided in subdivisions 8 and 9.
new text end

new text begin (e) Any resident conducting authorized electronic monitoring must obtain consent from
any new roommate before the resident may resume authorized electronic monitoring. If a
new roommate does not consent to authorized electronic monitoring and the resident
conducting the authorized electronic monitoring does not remove or disable the electronic
monitoring device, the facility must remove the electronic monitoring device.
new text end

new text begin (f) Consent may be withdrawn by the resident or roommate at any time, and the
withdrawal of consent shall be documented in the resident's clinical record. If a roommate
withdraws consent and the resident conducting the authorized electronic monitoring does
not remove or disable the electronic monitoring device, the facility must remove the electronic
monitoring device.
new text end

new text begin (g) If a resident of a nursing home or boarding care home who is residing in a shared
room wants to conduct authorized 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 facility shall make a reasonable attempt to accommodate the resident who wants
to conduct authorized electronic monitoring. A nursing home or boarding care home has
met the requirement to make a reasonable attempt to accommodate a resident who wants
to conduct authorized 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
home or boarding care home offers to move either resident to another shared room that is
available at the time of the request. If a resident chooses to reside in a private room in a
nursing home or boarding care home in order to accommodate the use of an electronic
monitoring device, the resident must pay the private room rate. If a nursing home or boarding
care home is unable to accommodate a resident due to lack of space, the nursing home or
boarding care home must reevaluate the request every two weeks until the request is fulfilled.
A nursing home or boarding care home is not required to provide a private room or a
single-bed room to a resident who is not a private-pay resident.
new text end

new text begin Subd. 4. new text end

new text begin Notice to the facility. new text end

new text begin (a) Authorized electronic monitoring may begin only
after the resident who intends to install an electronic monitoring device completes a
notification and consent form prescribed by the commissioner and submits the form to the
facility, and the facility places the form in the resident's and any roommate's clinical records.
new text end

new text begin (b) The notification and consent form prescribed by the commissioner and completed
by the resident must include, at a minimum, the following information:
new text end

new text begin (1) the resident's signed consent to electronic monitoring or the signature of the resident's
legal representative, if applicable. If a person other than the resident signs the consent form,
the form must document the following:
new text end

new text begin (i) the date the resident was asked if the resident wants authorized electronic monitoring
to be conducted;
new text end

new text begin (ii) who was present when the resident was asked; and
new text end

new text begin (iii) an acknowledgment that the resident did not affirmatively object;
new text end

new text begin (2) the resident's roommate's signed consent or the signature of the roommate's legal
representative, if applicable. If a roommate's legal representative signs the consent form,
the form must document the following:
new text end

new text begin (i) the date the roommate was asked if the roommate wants authorized electronic
monitoring to be conducted;
new text end

new text begin (ii) who was present when the roommate was asked; and
new text end

new text begin (iii) an acknowledgment that the roommate did not affirmatively object;
new text end

new text begin (3) the type of electronic monitoring device to be used;
new text end

new text begin (4) any installation needs, such as mounting of a device to a wall or ceiling;
new text end

new text begin (5) the proposed date of installation for scheduling purposes;
new text end

new text begin (6) 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:
new text end

new text begin (i) prohibiting audio recording;
new text end

new text begin (ii) prohibiting video recording;
new text end

new text begin (iii) prohibiting broadcasting of audio or video;
new text end

new text begin (iv) 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;
new text end

new text begin (v) turning off the electronic monitoring device or blocking the visual recording
component of the electronic monitoring device while dressing or bathing is performed; and
new text end

new text begin (vi) turning off the electronic monitoring device for the duration of a visit with a spiritual
advisor, ombudsman, attorney, financial planner, intimate partner, or other visitor; and
new text end

new text begin (7) any other condition or restriction elected by the resident or roommate on the use of
an electronic monitoring device.
new text end

new text begin (c) A copy of the completed notification and consent form shall be placed in the resident's
and any roommate's clinical records and a copy shall be provided to the resident and the
resident's roommate, if applicable.
new text end

new text begin (d) The commissioner shall prescribe the notification and consent form required in this
section no later than January 1, 2019, and shall make the form available on the department's
Web site.
new text end

new text begin (e) Beginning January 1, 2019, facilities must make the notification and consent form
available to the residents and inform residents of their option to conduct electronic monitoring
of their rooms or private living spaces.
new text end

new text begin (f) Any resident, legal representative of a resident, or other person conducting electronic
monitoring of a resident's room prior to enactment of this section must comply with the
requirements of this section by January 1, 2019.
new text end

new text begin Subd. 5. new text end

new text begin Cost and installation. new text end

new text begin (a) A resident choosing to conduct authorized electronic
monitoring must do so at the resident's own expense, including paying purchase, installation,
maintenance, and removal costs.
new text end

new text begin (b) If a resident chooses to install an electronic monitoring device that uses Internet
technology for visual or audio monitoring, that resident may be responsible for contracting
with an Internet service provider.
new text end

new text begin (c) The facility shall make a reasonable attempt to accommodate the resident's installation
needs, including, but not limited to, allowing access to the facility's telecommunications or
equipment room. A facility has the burden of proving that a requested accommodation is
not reasonable.
new text end

new text begin (d) All electronic monitoring device installations and supporting services must be
UL-listed.
new text end

new text begin Subd. 6. new text end

new text begin Notice to visitors. new text end

new text begin (a) A facility shall post a sign at each facility entrance
accessible to visitors that states "Security cameras and audio devices may be present to
record persons and activities."
new text end

new text begin (b) The facility is responsible for installing and maintaining the signage required in this
subdivision.
new text end

new text begin Subd. 7. new text end

new text begin Obstruction of electronic monitoring devices. new text end

new text begin (a) A person or entity is
prohibited from knowingly hampering, obstructing, tampering with, or destroying an
electronic monitoring device installed in a resident's room or private living space without
the permission of the resident or the resident's legal representative.
new text end

new text begin (b) It is not a violation of the prohibitions of this subdivision if a person or facility turns
off the electronic monitoring device or blocks the visual recording component of the
electronic monitoring device at the direction of the resident or the resident's legal
representative, or if consent has been withdrawn.
new text end

new text begin Subd. 8. new text end

new text begin Dissemination of recordings. new text end

new text begin (a) A facility may not access any video or audio
recording created through authorized electronic monitoring without the written consent of
the resident or the resident's legal representative.
new text end

new text begin (b) Except as required under other law, a recording or copy of a recording made as
provided in this section may only be disseminated for the purpose of addressing health,
safety, or welfare concerns of a resident or residents.
new text end

new text begin (c) The resident or the resident's legal representative must provide a copy of any video
or audio recording to parties involved in a civil, criminal, or administrative proceeding,
upon a party's request, if the video or audio recording was made during the time period that
the conduct at issue in the proceeding allegedly occurred.
new text end

new text begin Subd. 9. new text end

new text begin Admissibility of evidence. new text end

new text begin Subject to applicable rules of evidence and
procedure, any video or audio recording created through authorized electronic monitoring
in accordance with this section 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 video recording includes the date and time the events occurred.
new text end

new text begin Subd. 10. new text end

new text begin Mandated reporters. new text end

new text begin Any person who observes treatment of or interactions
with a vulnerable adult through authorized electronic monitoring conducted under this
section and who, through those observations, has reason to believe the vulnerable adult is
being maltreated, is a mandated reported as defined in section 626.5572, subdivision 16.
new text end

new text begin Subd. 11. new text end

new text begin Liability. new text end

new text begin (a) A facility is not civilly or criminally liable for the inadvertent
or intentional disclosure of a recording by a resident or a resident's legal representative for
any purpose not authorized by this section.
new text end

new text begin (b) A facility is not civilly or criminally liable for a violation of a resident's right to
privacy arising out of any electronic monitoring conducted as provided in this section.
new text end

new text begin Subd. 12. new text end

new text begin Resident protections. new text end

new text begin A facility shall not:
new text end

new text begin (1) refuse to admit a potential resident or remove a resident because the facility disagrees
with the potential resident's or the resident's decisions regarding electronic monitoring;
new text end

new text begin (2) intentionally retaliate or discriminate against any resident for consenting or refusing
to consent to electronic monitoring under this section; or
new text end

new text begin (3) prevent the installation or use of an electronic monitoring device by a resident who
has provided the facility with notice and consent as required under this section.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2019.
new text end