HF 3746

as introduced - 89th Legislature (2015 - 2016) Posted on 03/31/2016 12:32pm

A bill for an act
relating to health; permitting residents of nursing facilities to electronically
monitor their rooms; 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
NURSING FACILITIES.
new text end

new text begin Subdivision 1. new text end

new text begin Authorized electronic monitoring. new text end

new text begin (a) A resident 18 years of age or
older may conduct authorized electronic monitoring of the resident's room through the use
of electronic monitoring devices placed in the room 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. 2. 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 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 under the provisions of this section and broadcasts or records
activity or sounds occurring in the room.
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.
new text end

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

new text begin (h) "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 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. 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.
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 9 and 10; and
new text end

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

new text begin 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 (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 the authorized electronic monitoring, a resident must obtain the written
consent of any other resident residing in the room 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. 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
9 and 10.
new text end

new text begin (e) Any resident previously 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 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 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 facility 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 facility 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 order to accommodate the use of an electronic monitoring device, the resident
must pay the private room rate. If a facility is unable to accommodate a resident due to
lack of space, the facility must reevaluate the request every two weeks until the request is
fulfilled. A facility 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 a notification and consent form prescribed by the commissioner has been completed
and submitted to the facility and placed in the resident's and any roommate's clinical record.
new text end

new text begin (b) A resident must notify the facility in writing of the resident's intent to install
an electronic monitoring device by providing a completed notification and consent
form prescribed by the commissioner that 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 copy of any contract for maintenance of the electronic monitoring device
by a commercial entity;
new text end

new text begin (7) a list of standard conditions or restrictions that the resident or a roommate may
elect to place on 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 the electronic monitoring device off 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 (8) 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 place in the
resident's and any roommate's clinical record 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 July 1, 2016, and shall make the form available on the
department's Web site.
new text end

new text begin (e) Beginning July 1, 2016, 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.
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 July 1, 2016.
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 is 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) The electronic monitoring device must be placed in a conspicuously visible
location in the room.
new text end

new text begin (e) A facility may not charge the resident a fee for the cost of electricity used by
an electronic monitoring device.
new text end

new text begin (f) All electronic monitoring device installations and supporting services shall
comply with the requirements of the National Fire Protection Association (NFPA) 101
Life Safety Code (2000 edition).
new text end

new text begin Subd. 6. new text end

new text begin Assistance program. new text end

new text begin (a) Subject to appropriation, the department shall
establish a grant program for the purchase and installation of authorized electronic
monitoring devices to assist residents receiving medical assistance in accessing authorized
electronic monitoring.
new text end

new text begin (b) Applications for funds and disbursement of funds must be made in a manner
prescribed by the commissioner.
new text end

new text begin Subd. 7. new text end

new text begin Notice to visitors. new text end

new text begin (a) If a resident of a facility conducts authorized
electronic monitoring, a sign shall be clearly and conspicuously posted at all building
entrances accessible to visitors. The notice must be entitled "Electronic Monitoring" and
must state, in large, easy-to-read type, "The rooms of some residents may be monitored
electronically by or on behalf of the residents."
new text end

new text begin (b) A sign shall be clearly and conspicuously posted at the entrance to a resident's
room where authorized electronic monitoring is being conducted. The notice must state,
in large, easy-to-read type, "This room is electronically monitored."
new text end

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

new text begin Subd. 8. 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 without the permission of the
resident or the resident's legal representative.
new text end

new text begin (b) A person or entity is prohibited from knowingly hampering, obstructing,
tampering with, or destroying a video or audio recording obtained in accordance with this
section without the permission of the resident or the resident's legal representative.
new text end

new text begin (c) A person or entity that violates the prohibitions of this subdivision is guilty of a
misdemeanor. A person or entity that violates the prohibitions of this subdivision during
the commission of another misdemeanor offense or to conceal a misdemeanor offense, is
guilty of a gross misdemeanor. A person or entity that violates the prohibitions of this
subdivision during the commission of or to conceal a felony offense, is guilty of a felony.
new text end

new text begin (d) 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. 9. 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 concerns
relating to the health, safety, or welfare 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. 10. 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. 11. new text end

new text begin Report. new text end

new text begin Each facility shall report to the commissioner, in a manner
prescribed by the commissioner, the number of authorized electronic monitoring
notification and consent forms received annually. The commissioner shall report the total
number of authorized electronic monitoring notification and consent forms received by
facilities to the Office of the Attorney General annually.
new text end

new text begin Subd. 12. 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. 13. 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 the day following final enactment.
new text end