SF 11

1st Engrossment - 91st Legislature (2019 - 2020) Posted on 02/13/2019 03:12pm

A bill for an act
relating to health; establishing requirements for authorized electronic monitoring
in nursing facilities and assisted living facilities; 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] 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) "Electronic monitoring" means the placement and use of an electronic monitoring
device by a resident in the resident's room or private living unit 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 camera or other device that captures, records,
or broadcasts audio, video, or both, that is placed in a resident's room or private living unit
and is used to monitor the resident or activities in the room or private living unit.
new text end

new text begin (f) "Facility" means a nursing home licensed under chapter 144A, a boarding care home
licensed under sections 144.50 to 144.56, or a housing with services establishment registered
under chapter 144D that is either subject to chapter 144G or has a disclosed special unit
under section 325F.72.
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) "Resident representative" means one of the following in the order of priority listed,
to the extent the person may reasonably be identified and located:
new text end

new text begin (1) a court-appointed guardian;
new text end

new text begin (2) a health care agent under section 145C.01, subdivision 2; or
new text end

new text begin (3) a person who is not an agent of a facility or of a home care provider designated in
writing by the resident and maintained in the resident's records on file with the facility or
with the resident's executed housing with services contract.
new text end

new text begin Subd. 2. new text end

new text begin Electronic monitoring. new text end

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

new text begin (b) Nothing in this section precludes the use of electronic monitoring of health care
allowed under other law.
new text end

new text begin (c) Electronic monitoring authorized under this section, for the purpose of monitoring
the actions of individuals other than the resident or to verify the delivery of services, is not
a covered service under home and community-based waivers under sections 256B.0913,
256B.0915, 256B.092, and 256B.49.
new text end

new text begin (d) This section does not apply to monitoring technology authorized as a home and
community-based service under section 256B.0913, 256B.0915, 256B.092, or 256B.49.
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 to electronic monitoring in the resident's room or private
living unit in writing on a notification and consent form. If the resident has not affirmatively
objected to electronic monitoring and the resident's medical professional determines that
the resident currently 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 subdivision, 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 must be documented on the notification and consent
form.
new text end

new text begin (b) Prior to a resident representative consenting on behalf of a resident, the resident must
be asked if the resident wants electronic monitoring to be conducted. The resident
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 6;
new text end

new text begin (3) with whom the recording may be shared under subdivision 10 or 11; 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 resident representative when consenting on behalf of the resident, may
consent to electronic monitoring with any conditions of the resident's or resident
representative's choosing, including the list of standard conditions provided in subdivision
6. A resident, or resident representative when consenting on behalf of the resident, 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 electronic monitoring, a resident must obtain the written
consent on the notification and consent form of any other resident residing in the shared
room or shared private living unit. A roommate's or roommate's resident representative's
written consent must comply with the requirements of paragraphs (a) to (c). Consent by a
roommate or a roommate's resident representative under this paragraph authorizes the
resident's use of any recording obtained under this section, as provided under subdivision
10 or 11.
new text end

new text begin (e) Any resident conducting electronic monitoring must immediately remove or disable
an electronic monitoring device prior to a new roommate moving into a shared room or
shared private living unit, unless the resident obtains the roommate's or roommate's resident
representative's written consent as provided under paragraph (d) prior to the roommate
moving into the shared room or shared private living unit. Upon obtaining the new
roommate's signed notification and consent form and submitting the form to the facility as
required under subdivision 5, the resident may resume electronic monitoring.
new text end

new text begin (f) The resident or roommate, or the resident representative or roommate's resident
representative if the representative is consenting on behalf of the resident or roommate, may
withdraw consent at any time and the withdrawal of consent must be documented on the
original consent form as provided under subdivision 5, paragraph (c).
new text end

new text begin Subd. 4. new text end

new text begin Refusal of roommate to consent. new text end

new text begin If a resident of a facility who is residing in
a shared room or shared living unit wants to conduct electronic monitoring and another
resident living in or moving into the same shared room or shared living unit 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 electronic monitoring. A facility
has met the requirement to make a reasonable attempt to accommodate a resident who wants
to conduct 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 the resident to another shared room or shared living unit that is available at the time
of the request. If a resident chooses to reside in a private room or private living unit in a
facility in order to accommodate the use of an electronic monitoring device, the resident
must pay either the private room rate in a nursing home setting, or the applicable rent in a
housing with services establishment. 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, a single-bed room, or a
private living unit to a resident who is unable to pay.
new text end

new text begin Subd. 5. new text end

new text begin Notice to facility. new text end

new text begin (a) Electronic monitoring may begin only after the resident
or resident representative who intends to place an electronic monitoring device and any
roommate or roommate's resident representative completes the notification and consent
form and submits the form to the facility.
new text end

new text begin (b) Upon receipt of any completed notification and consent form, the facility must place
the original form in the resident's file or file the original form with the resident's housing
with services contract. The facility must provide a copy to the resident and the resident's
roommate, if applicable.
new text end

new text begin (c) In the event that 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 alter the conditions under which consent to electronic monitoring is
given or chooses to withdraw consent to electronic monitoring, the facility must make
available the original notification and consent form so that it may be updated. Upon receipt
of the updated form, the facility must place the updated form in the resident's file or file the
original form with the resident's signed housing with services contract. The facility must
provide a copy of the updated form to the resident and the resident's roommate, if applicable.
new text end

new text begin (d) If a new roommate does not submit to the facility a completed notification and consent
form and the resident conducting the 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 (e) If a roommate submits an updated notification and consent form withdrawing consent
and the resident conducting 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) Notwithstanding paragraph (a), the resident or resident representative who intends
to place an electronic monitoring device may do so without submitting a notification and
consent form to the facility, provided that:
new text end

new text begin (1) the resident or resident representative reasonably fears retaliation by the facility;
new text end

new text begin (2) the resident does not have a roommate;
new text end

new text begin (3) the resident or resident representative submits the completed notification and consent
form to the Office of the Ombudsman for Long-Term Care;
new text end

new text begin (4) the resident or resident representative submits the notification and consent form to
the facility within 14 calendar days of placing the electronic monitoring device; and
new text end

new text begin (5) between the time the electronic monitoring device is placed under this paragraph
and the time the resident or resident representative submits the completed notification and
consent form to the facility, the resident or resident representative immediately submits a
Minnesota Adult Abuse Reporting Center report or police report upon evidence from the
electronic monitoring device that suspected maltreatment has occurred.
new text end

new text begin Subd. 6. new text end

new text begin Form requirements. new text end

new text begin (a) The notification and consent form 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
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 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 resident
representative, if applicable. If a roommate's resident 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 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) 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
adviser, ombudsman, attorney, financial planner, intimate partner, or other visitor;
new text end

new text begin (5) 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 (6) a statement of the circumstances under which a recording may be disseminated under
subdivision 10; and
new text end

new text begin (7) a signature box for documenting that the resident or roommate has withdrawn consent.
new text end

new text begin (b) 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 unit.
new text end

new text begin Subd. 7. new text end

new text begin Cost and installation. new text end

new text begin (a) A resident choosing to conduct 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 place an electronic monitoring device that uses Internet
technology for visual or audio monitoring, the 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 allowing access to the facility's public-use Internet or Wi-Fi systems when
available for other public uses.
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. 8. 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. 9. new text end

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

new text begin (a) A person must not knowingly
hamper, obstruct, tamper with, or destroy an electronic monitoring device placed in a
resident's room or private living unit without the permission of the resident or resident
representative.
new text end

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

new text begin Subd. 10. new text end

new text begin Dissemination of recordings. new text end

new text begin (a) No person may access any video or audio
recording created through authorized electronic monitoring without the written consent of
the resident or resident 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) A person disseminating a recording or copy of a recording made as provided in this
section in violation of paragraph (b) may be civilly or criminally liable.
new text end

new text begin Subd. 11. 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 electronic monitoring under this
section may be admitted into evidence in a civil, criminal, or administrative proceeding.
new text end

new text begin Subd. 12. new text end

new text begin Liability. new text end

new text begin (a) For the purposes of state law, the mere presence of an electronic
monitoring device in a resident's room or private living unit is not a violation of the resident's
right to privacy under section 144.651 or 144A.44.
new text end

new text begin (b) For the purposes of state law, a facility or home care provider is not civilly or
criminally liable for the mere disclosure by a resident or a resident representative of a
recording.
new text end

new text begin Subd. 13. new text end

new text begin Resident protections. new text end

new text begin (a) A facility must 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) retaliate or discriminate against any resident for consenting or refusing to consent
to electronic monitoring; or
new text end

new text begin (3) prevent the placement or use of an electronic monitoring device by a resident who
has provided the facility or the Office of the Ombudsman for Long-Term Care with notice
and consent as required under this section.
new text end

new text begin (b) Any contractual provision prohibiting, limiting, or otherwise modifying the rights
and obligations in this section is contrary to public policy and is void and unenforceable.
new text end

new text begin Subd. 14. new text end

new text begin Penalties. new text end

new text begin (a) The commissioner may issue a correction order as provided
under section 144A.10, 144A.45, or 144A.474, upon a finding that the facility has failed to
comply with subdivision 5, paragraphs (b) to (e); 6, paragraph (b); 7, paragraph (c); 8; 9;
10; or 13. For each violation of this section, the commissioner may impose a fine up to $500
upon a finding of noncompliance with a correction order issued according to this subdivision.
new text end

new text begin (b) The commissioner may exercise the commissioner's authority provided under section
144D.05 to compel a housing with services establishment to meet the requirements of this
section.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2020.
new text end

Sec. 2. new text begin TRANSITION TO AUTHORIZED ELECTRONIC MONITORING IN
CERTAIN HEALTH CARE FACILITIES.
new text end

new text begin Any resident, resident representative, or other person conducting electronic monitoring
in a resident's room or private living unit prior to January 1, 2020, must comply with the
requirements of Minnesota Statutes, section 144.6502, by January 1, 2020.
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

Sec. 3. new text begin DIRECTION TO THE COMMISSIONER OF HEALTH.
new text end

new text begin The commissioner of health shall prescribe the notification and consent form described
in Minnesota Statutes, section 144.6502, subdivision 6, no later than January 1, 2020. The
commissioner shall make the form available on the department's website.
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