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Councilmember Charles Allen Councilmember Vincent C. Gray 2
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Councilmember Matthew Frumin 6
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A BILL 11
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IN THE COUNCIL OF THE DISTRICT OF COLUMBIA 15
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To authorize the use of electronic monitoring devices in residential care facilities, to use such 20
devices inside a resident’s room to help monitor, investigate, and deter abuse and neglect, 21
to establish notice, consent, and accommodation procedures to ensure personal privacy, 22
and to limit the unauthorized use of device recordings. 23
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BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, T hat this 25
act may be cited as the “Residential Care Communication and Monitoring Act of 202 3”. 26
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Sec. 2. Definitions. 28
For the purposes of this act, the term: 29
(1) “Electronic monitoring” means a video camera or other device that captures, 30
records, or broadcasts audio, video, or both, that is placed in a fixed position in a resident's room 31
and is used to record or transmit sounds or activity occurring in the room to a third -party having 32
access to a receiver, a web-based application, or ancillary transmission method outside of the 33
room. 34 (2) “Facility” means a nursing home, as that term is defined in section 2(11) of the 35
Health-Care and Community Residence Facility Hospice and Home Care Licensure Act of 1983 36
(D.C. Law 5-48; D.C. Official Code § 44-501(a)(11). 37
(3) “Long- Term Care Ombudsman” means the person designated under District of 38
Columbia Long- Term Care Ombudsman Program Act of 1988, effective March 16, 1989 (D.C. 39
Law 7-218; D.C. Official Code 7 -701.01 et seq.) to perform the mandated functions of the Long-40
Term Care Ombudsman program in the District. 41
(4) “Resident” means a resident of a facility. 42
(5) “Resident representative” means one of the following in the order of priority 43
listed, to the extent the person may reasonably be identified and located: 44
(A) A person who is not an agent or employee of a facility who has been 45
appointed by a court either to administer a resident’s financial or personal affairs or to protect 46
and advocate for a resident’s rights; 47
(B) A person who is not an agent or employee of a facility and is 48
appointed by the resident in a health care power of attorney to make health care decisions on 49
behalf of the resident; or 50
(C) A person who is not an agent or employee of a facility and is 51
designated in writing by the resident and maintained in the resident's records on file with the 52
facility. 53
(6) “Roommate” means one or more persons sharing the same room as the 54
resident. 55
(7) “Roommate representative” means one of the following in the order of priority 56
listed, to the extent the person may reasonably be identified and located: 57 (A) A person who is not an agent or employee of a facility who has been 58
appointed by a court either to administer a roommate’s financial or personal affairs or to protect 59
and advocate for a roommate’s rights; 60
(B) A person who is not an agent or employee of a facility and is 61
appointed by the roommate in a health care power of attorney to make health care decisions on 62
behalf of the roommate ; or 63
(C) A person who is not an agent or employee of a facility and is 64
designated in writing by the roommate and maintained in the roommate’s records on file with the 65
facility. 66
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Sec. 3. Electronic monitoring authorized. 68
(a) A resident or a representative may conduct electronic monitoring of the resident's 69
room through the use of an electronic monitoring device placed in the resident's room in 70
accordance with this act. 71
(b) The electronic monitoring device shall be installed and operated in a way that protect s 72
the privacy of the resident by being placed in a fixed, stationary position, and, to the extent 73
possible, monitor only the area occupied by the resident. 74
(c) If the electronic monitoring device records activity visually, the recording made by 75
the device shall include a record of the date and time of the recording. 76
Sec. 4. Consent to electronic monitoring. 77
(a) A resident shall provide written consent to the fa cility on a notification and consent 78
form described in section 6 before the resident installs an electronic monitoring device. If the 79
resident has not affirmatively objected to electronic monitoring and the resident's medical 80 professional determines that the resident currently lacks the ability to understand and appreciate 81
the nature and consequences of electronic monitoring, the resident representative and roommate 82
representative may consent on behalf of the resident and roommate. 83
(b) Prior to a representative consenting on behalf of a resident, the resident must be asked 84
if the resident wants electronic monitoring to be conducted and the representative must explain to 85
the resident: 86
(1) The type of electronic monitoring device to be used; 87
(2) The standard conditions that may be placed on the electronic monitoring 88
device's use, including those listed in section 6; 89
(3) With whom the recording may be shared as provided under section 10; and 90
(4) The resident's ability to decline all recordings. 91
(c) A resident or resident representative may consent to electronic monitoring with any 92
conditions of the resident's or representative's choosing, including the list of standard conditions 93
as provided in section 6. A resident or representative may turn off or the visual or audio 94
recording component of the electronic monitoring device may be blocked at any time. 95
(d) Prior to implementing electronic monitoring, a resident or resident representative 96
must obtain the written consent on the notification and consent form of any roommate or 97
roommate representative residing in the shared room. A roommate's or roommate 98
representative's written consent must comply with the requirements of subsections (a) to (c) of 99
this section. Consent by a roommate or a roommate's representative under this subsection 100
authorizes the resident's use of any recording obtained under this section, as provided under 101
section 10 or 11. 102 (e) A resident conducting electronic monitoring must immediately remove or disable an 103
electronic monitoring device prior to a new roommate moving into a shared room or shared 104
private living unit, unless the resident obtains the roommate's or roommate representative's 105
written consent prior to the roommate moving into the shared room. Upon obtaining the new 106
roommate's signed notification and consent form and submitting the form to the facility as 107
required under section 6, the resident may resume electronic monitoring. 108
(f) The resident or roommate, or their respective representative, may withdraw consent at 109
any time, and the withdrawal of consent must be documented on an original or a copy of the 110
consent form as provided under section 6. 111
Sec. 5. Refusal of roommate to consent. 112
(a) If a resident’s roommate refuses to consent to the use of an electronic monitoring 113
device, the facility shall make a reasonable attempt to accommodate the resident who wants to 114
conduct electronic monitoring. 115
(b) A facility shall be deemed to have met the accommodation requirement set forth in 116
subsection (a) of this section when, upon notification that a roommate has not consented to the 117
use of an electronic monitoring device in his room, the facility offers to move either the resident 118
or the roommate to another shared room that is available at the time of the request at the same 119
monthly rate. 120
(c) If a facility is unable to accommodate a resident due to lack of space, the facility shall 121
reevaluate the request at least once every 2 weeks until the request i s fulfilled. If the resident who 122
wants electronic monitoring chooses to reside in an available private room in order to use an 123
electronic monitoring device, the resident shall pay the private room rate if required by the 124
licensee. 125 Sec. 6. Consent form requirements. 126
(a) The notice and consent form shall include the following information from the 127
resident and all roommates living in the room that is to be electronically monitored: 128
(1) The signed consent to electronic monitoring from the resident or resident 129
representative, and if applicable, the signed consent of the roommate or roommate 130
(2) If the resident representative or roommate representative is signing the 131
consent form: 132
(A) The date the resident or roommate was asked if they want electronic 133
monitoring to be conducted; 134
(B) W ho was present when the resident or roommate w ere asked; 135
(C) An acknowledgment that the resident or roommate did not 136
affirmatively object; and 137
(D) The source of authority allowing a resident representative or 138
roommate representative to sign the notification and consent form on the ir behalf; 139
(3) The type of electronic monitoring device to be used; 140
(4) A list of standard conditions or restrictions that the resident or a roommate 141
may elect to place on the use of the electronic monitoring device, including: 142
(A) Prohibiting audio recording; 143
(B) Prohibiting video recording; 144
(C) Prohibiting the broadcasting of audio or video; 145
(D) Turning off the electronic monitoring device or blocking the visual 146
recording component of the electronic monitoring device for the duration of an exam or 147
procedure by a health care professional; 148 (E) Turning off the electronic monitoring device or blocking the visual 149
recording component of the electronic monitoring device while dressing or bathing is performed; 150
and 151
(F) Turning off the electronic monitoring device for the duration of a visit 152
with a spiritual adviser, ombudsman, attorney, financial planner, intimate partner, or other 153
visitor; 154
(5) A statement of the circumstances under which a recording may be 155
disseminated under section 10; 156
(6) A notice to release the facility from liability for a violation of privacy through 157
the use of the electronic monitoring device; and 158
(10) A signature box for documenting that the resident, roommate or their 159
representative has withdrawn consent; and 160
(b) Facilities shall make the notification and consent form available to residents and 161
inform residents of their option to conduct electronic monitoring of their rooms. 162
Sec. 7. Notice to visitors. 163
(a) The facility shall post a sign at each facility entrance accessible to visitors that states 164
that electronic monitoring devices, including security cameras and audio devices, may be present 165
to record persons and activities. The sign shall be in large, clearly legible type and font. 166
(b) The facility shall bear the costs associated with installing and maintaining the sign 167
required by this section. A resident who conducts authorized electronic monitoring or the 168
resident’s representative may post and maintain a notice at the entrance to the resident’s room 169
stating that the room is being monitored by an electronic monitoring device. 170
Sec. 8. Cost and installation. 171 (a) A resident or representative choosing to conduct electronic monitoring must do so at 172
the resident's own expense, including purchase, installation, maintenance, and removal costs. 173
(b) If a resident chooses to place an electronic monitoring device that uses Internet 174
technology for visual or audio monitoring, the resident shall be responsible for contracting with 175
an Internet service provider if the facility does not allow the resident to use the facility’s Internet 176
service to operate the device. 177
(c) The facility shall reasonably accommodate the resident's installation needs, including 178
allowing access to the facility's public -use Internet or Wi- Fi systems when available for other 179
public uses. The facility has the burden of proving that a requested accommodation is not 180
reasonable. 181
(d) If the structure of the resident's room must be altered in order to accommodate an 182
electronic monitoring device, then the renovation to the room may be done only by a licensed 183
contractor and at the resident’s expense, subject to the facility’s approval, which may not be 184
unreasonably withheld. 185
(e) All electronic monitoring device installations and supporting services must be 186
Underwriters L aboratory-listed. 187
Sec. 9. Obstruction of electronic monitoring devices. 188
(a) A person must not knowingly hamper, obstruct, tamper with, or destroy an electronic 189
monitoring device placed in a resident's room or private living unit without the permission of the 190
resident or representative. Checking the electronic monitoring device by facility staff for the 191
make and model number shall not constitute tampering. 192
(b) It is not a violation of subsection (a) of this section if a person turns off the electronic 193
monitoring device or blocks the visual recording component of the electronic monitoring device 194 at the direction of the resident or representative, or if the consent of the roommate or his or her 195
representative has been withdrawn. 196
Sec. 10. Use of recordings. 197
(a) No person may access any video or audio recording created through authorized 198
electronic monitoring without the written consent of the resident or representative. 199
(b) Except as required in section 14 or under another law authorizing disclosure, a 200
recording or copy of a recording may only be disseminated for the purpose of addressing health, 201
safety, or welfare concerns of one or more residents. 202
Sec. 11. Admissibility of evidence. 203
Subject to applicable rules of evidence and procedure, any video or audio recording 204
created through electronic monitoring under this section may be admitted into evidence in a civil, 205
criminal, or administrative proceeding. 206
Sec. 12. Liability. 207
For the purposes of District law, the mere presence of an electronic monitoring device 208
in a resident’s room or private living unit in accordance with this chapter is not a violation of the 209
resident’s right to privacy under District and federal law. 210
Sec. 13. Resident Protections. 211
A facility may not refuse to admit an individual and may not remove a resident from a 212
facility because of authorized electronic monitoring of a resident’s room, nor may a facility 213
retaliate or discriminate against a resident for the use of authorized electronic monitoring. 214
Sec. 14. Employee discipline. 215
(a) If abuse or neglect of the resident is reported to the facility, and the facility requests a 216 copy of any relevant footage made by an electronic monitoring device, the person who possesses 217
the footage shall provide the facility with a copy at the facility’s expense. 218
(b) A facility who obtains a recording or a copy of the recording must treat the recording 219
or copy confidentially and must not further disseminate it to any other person except as required 220
under law. Any copy of the recording must be returned to the resident who provided the copy 221
when it is no longer needed for purposes of defending against a proposed action. 222
Sec. 15. Fines and penalties; criminal violations. 223
(a) Any person who violates any provision of this subchapter shall, upon conviction, be 224
subject to imprisonment not to exceed one year, a fine not to exceed $10,000, or both. 225
(b) Any person who has been previously convicted under this subchapter shall, upon 226
conviction, be subject to imprisonment not to exceed one year, a fine not to exceed $25,000, or 227
both. 228
(c) The fines set forth in this section shall not be limited by § 22-3571.01. 229
Sec. 16. Prosecutions. 230
(a) Prosecutions for violations of this subchapter shall be brought in the name of the 231
District of Columbia by the Attorney General for the District of Columbia. 232
(b) In any prosecution brought under this subchapter, any person claiming an exemption 233
from regulation under this subchapter shall have the burden of providing entitlement to the 234
exemption. 235
Sec. 17. Fines and penalties; civil alternatives. 236
Civil fines, penalties, and fees may be imposed as alternative sanctions for any infraction 237
of the provisions of this subchapter, or any rules or regulations issued under the authority of this 238
subchapter, pursuant to Chapter 18 of Title 2. 239 Sec. 18. Injunctions; unlawful practices. 240
(a) The Attorney General for the District of Columbia may bring an action in the Superior 241
Court of the District of Columbia in the name of the District of Columbia to enjoin the unlawful 242
practice of any occupation or profession or any other action which is grounds for the imposition 243
of a criminal penalty or disciplinary action under this subchapter. 244
(b) Remedies under this section are in addition to criminal prosecution or any disciplinary 245
action by a board. 246
(c) In any proceeding under this section, it shall not be necessary to prove that any person 247
is personally injured by the action or actions alleged. 248
. Sec. 19. Fiscal impact statement. 249
The Council adopts the fiscal impact statement in the committee report as the fiscal 250
impact statement required by section 4a of the General Legislative Procedures Act of 1975, 251
approved October 16, 2006 (120 Stat. 2038; D.C. Official Code § 1-301.47a). 252
Sec. 20. Effective date. 253
This act shall take effect following approval by the Mayor (or in the event of veto by the 254
Mayor, action by the Council to override the veto), a 30-day period of congressional review as 255
provided in section 602(c)(1) of the District of Columbia Home Rule Act, approved December 256
24, 1973, (87 Stat. 813; D.C. Official Code § 1-206.02(c)(1)), and publication in the District of 257
Columbia Register. 258