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Minnesota Legislature

Office of the Revisor of Statutes

HF 146

as introduced - 91st Legislature (2019 - 2020) Posted on 02/21/2019 05:13pm

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - as introduced

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A bill for an act
relating to health; establishing requirements for authorized electronic monitoring
in nursing facilities and assisted living facilities;amending Minnesota Statutes
2018, sections 144.651, by adding a subdivision; 144A.44, subdivision 1; 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 both, that is installed in a resident's room or
private living space 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 (c) Nothing in this section precludes the use of electronic monitoring of health care
allowed under other law.
new text end

new text begin (d) 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 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 space in writing on a notification and consent form prescribed by the ombudsman
for long-term care, in consultation with the department and representatives of facilities. If
the resident has not affirmatively objected to 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 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'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 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 5;
new text end

new text begin (3) with whom the recording may be shared under subdivision 9 or 10; 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 electronic monitoring with any conditions
of the resident's or roommate's choosing, including the list of standard conditions provided
in subdivision 5. 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 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 ombudsman for long-term care. Except as otherwise
provided in this subdivision, a roommate must consent in writing to electronic monitoring
in the resident's room or private living space. If the roommate has not affirmatively objected
to 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 under subdivision
9 or 10.
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 electronic monitoring 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 Subd. 4. new text end

new text begin Withdrawal of consent; refusal of roommate to consent. new text end

new text begin (a) Consent may
be withdrawn by the resident or roommate at any time and the withdrawal of consent must
be documented in the resident's clinical record. If a roommate withdraws consent 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 (b) If a resident of a nursing home or boarding care home who is residing in a shared
room wants to conduct 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
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 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. 5. new text end

new text begin Notice to facility; form requirements. 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 the notification and consent form prescribed by the ombudsman for long-term
care 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 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 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 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
adviser, ombudsman, attorney, financial planner, intimate partner, or other visitor;
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; and
new text end

new text begin (8) a signature box for documenting that the resident or roommate has withdrawn consent.
new text end

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

new text begin (d) The ombudsman for long-term care shall prescribe the notification and consent form
required in this section no later than January 1, 2020. The commissioner shall make the
form available on the department's website.
new text end

new text begin (e) Beginning January 1, 2020, 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, 2020.
new text end

new text begin Subd. 6. 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, 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 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. 7. 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. 8. 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 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 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 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 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. 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
under 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 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 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) 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, 2020.
new text end

Sec. 2.

Minnesota Statutes 2018, section 144.651, is amended by adding a subdivision to
read:


new text begin Subd. 34. new text end

new text begin Electronic monitoring. new text end

new text begin A resident has the right to install and use electronic
monitoring, provided the requirements of section 144.6502 are met.
new text end

Sec. 3.

Minnesota Statutes 2018, section 144A.44, subdivision 1, is amended to read:


Subdivision 1.

Statement of rights.

A person who receives home care services has these
rights:

(1) the right to receive written information about rights before receiving services,
including what to do if rights are violated;

(2) the right to receive care and services according to a suitable and up-to-date plan, and
subject to accepted health care, medical or nursing standards, to take an active part in
developing, modifying, and evaluating the plan and services;

(3) the right to be told before receiving services the type and disciplines of staff who
will be providing the services, the frequency of visits proposed to be furnished, other choices
that are available for addressing home care needs, and the potential consequences of refusing
these services;

(4) the right to be told in advance of any recommended changes by the provider in the
service plan and to take an active part in any decisions about changes to the service plan;

(5) the right to refuse services or treatment;

(6) the right to know, before receiving services or during the initial visit, any limits to
the services available from a home care provider;

(7) the right to be told before services are initiated what the provider charges for the
services; to what extent payment may be expected from health insurance, public programs,
or other sources, if known; and what charges the client may be responsible for paying;

(8) the right to know that there may be other services available in the community,
including other home care services and providers, and to know where to find information
about these services;

(9) the right to choose freely among available providers and to change providers after
services have begun, within the limits of health insurance, long-term care insurance, medical
assistance, or other health programs;

(10) the right to have personal, financial, and medical information kept private, and to
be advised of the provider's policies and procedures regarding disclosure of such information;

(11) the right to access the client's own records and written information from those
records in accordance with sections 144.291 to 144.298;

(12) the right to be served by people who are properly trained and competent to perform
their duties;

(13) the right to be treated with courtesy and respect, and to have the client's property
treated with respect;

(14) the right to be free from physical and verbal abuse, neglect, financial exploitation,
and all forms of maltreatment covered under the Vulnerable Adults Act and the Maltreatment
of Minors Act;

(15) the right to reasonable, advance notice of changes in services or charges;

(16) the right to know the provider's reason for termination of services;

(17) the right to at least ten days' advance notice of the termination of a service by a
provider, except in cases where:

(i) the client engages in conduct that significantly alters the terms of the service plan
with the home care provider;

(ii) the client, person who lives with the client, or others create an abusive or unsafe
work environment for the person providing home care services; or

(iii) an emergency or a significant change in the client's condition has resulted in service
needs that exceed the current service plan and that cannot be safely met by the home care
provider;

(18) the right to a coordinated transfer when there will be a change in the provider of
services;

(19) the right to complain about services that are provided, or fail to be provided, and
the lack of courtesy or respect to the client or the client's property;

(20) the right to know how to contact an individual associated with the home care provider
who is responsible for handling problems and to have the home care provider investigate
and attempt to resolve the grievance or complaint;

(21) the right to know the name and address of the state or county agency to contact for
additional information or assistance; deleted text beginand
deleted text end

(22) the right to assert these rights personally, or have them asserted by the client's
representative or by anyone on behalf of the client, without retaliationdeleted text begin.deleted text endnew text begin; and
new text end

new text begin (23) the right to place an electronic monitoring device in the person's own private space,
provided the requirements in section 144.6502 are met.
new text end