District Of Columbia 2023-2024 Regular Session

District Of Columbia Council Bill B25-0285 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	____________________________ _______________________________ 1
2	2	Councilmember Charles Allen Councilmember Vincent C. Gray 2
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6	6	_______________________________ 5
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8	8	Councilmember Matthew Frumin 6
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13	13	A BILL 11
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17	17	IN THE COUNCIL OF THE DISTRICT OF COLUMBIA 15
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22	22	To authorize the use of electronic monitoring devices in residential care facilities, to use such 20
23	23	devices inside a resident’s room to help monitor, investigate, and deter abuse and neglect, 21
24	24	to establish notice, consent, and accommodation procedures to ensure personal privacy, 22
25	25	and to limit the unauthorized use of device recordings. 23
26	26	24
27	27	BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, T hat this 25
28	28	act may be cited as the “Residential Care Communication and Monitoring Act of 202 3”. 26
29	29	27
30	30	Sec. 2. Definitions. 28
31	31	For the purposes of this act, the term: 29
32	32	(1) “Electronic monitoring” means a video camera or other device that captures, 30
33	33	records, or broadcasts audio, video, or both, that is placed in a fixed position in a resident's room 31
34	34	and is used to record or transmit sounds or activity occurring in the room to a third -party having 32
35	35	access to a receiver, a web-based application, or ancillary transmission method outside of the 33
36	36	room. 34 (2) “Facility” means a nursing home, as that term is defined in section 2(11) of the 35
37	37	Health-Care and Community Residence Facility Hospice and Home Care Licensure Act of 1983 36
38	38	(D.C. Law 5-48; D.C. Official Code § 44-501(a)(11). 37
39	39	(3) “Long- Term Care Ombudsman” means the person designated under District of 38
40	40	Columbia Long- Term Care Ombudsman Program Act of 1988, effective March 16, 1989 (D.C. 39
41	41	Law 7-218; D.C. Official Code 7 -701.01 et seq.) to perform the mandated functions of the Long-40
42	42	Term Care Ombudsman program in the District. 41
43	43	(4) “Resident” means a resident of a facility. 42
44	44	(5) “Resident representative” means one of the following in the order of priority 43
45	45	listed, to the extent the person may reasonably be identified and located: 44
46	46	(A) A person who is not an agent or employee of a facility who has been 45
47	47	appointed by a court either to administer a resident’s financial or personal affairs or to protect 46
48	48	and advocate for a resident’s rights; 47
49	49	(B) A person who is not an agent or employee of a facility and is 48
50	50	appointed by the resident in a health care power of attorney to make health care decisions on 49
51	51	behalf of the resident; or 50
52	52	(C) A person who is not an agent or employee of a facility and is 51
53	53	designated in writing by the resident and maintained in the resident's records on file with the 52
54	54	facility. 53
55	55	(6) “Roommate” means one or more persons sharing the same room as the 54
56	56	resident. 55
57	57	(7) “Roommate representative” means one of the following in the order of priority 56
58	58	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
59	59	appointed by a court either to administer a roommate’s financial or personal affairs or to protect 59
60	60	and advocate for a roommate’s rights; 60
61	61	(B) A person who is not an agent or employee of a facility and is 61
62	62	appointed by the roommate in a health care power of attorney to make health care decisions on 62
63	63	behalf of the roommate ; or 63
64	64	(C) A person who is not an agent or employee of a facility and is 64
65	65	designated in writing by the roommate and maintained in the roommate’s records on file with the 65
66	66	facility. 66
67	67	67
68	68	Sec. 3. Electronic monitoring authorized. 68
69	69	(a) A resident or a representative may conduct electronic monitoring of the resident's 69
70	70	room through the use of an electronic monitoring device placed in the resident's room in 70
71	71	accordance with this act. 71
72	72	(b) The electronic monitoring device shall be installed and operated in a way that protect s 72
73	73	the privacy of the resident by being placed in a fixed, stationary position, and, to the extent 73
74	74	possible, monitor only the area occupied by the resident. 74
75	75	(c) If the electronic monitoring device records activity visually, the recording made by 75
76	76	the device shall include a record of the date and time of the recording. 76
77	77	Sec. 4. Consent to electronic monitoring. 77
78	78	(a) A resident shall provide written consent to the fa cility on a notification and consent 78
79	79	form described in section 6 before the resident installs an electronic monitoring device. If the 79
80	80	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
81	81	the nature and consequences of electronic monitoring, the resident representative and roommate 82
82	82	representative may consent on behalf of the resident and roommate. 83
83	83	(b) Prior to a representative consenting on behalf of a resident, the resident must be asked 84
84	84	if the resident wants electronic monitoring to be conducted and the representative must explain to 85
85	85	the resident: 86
86	86	(1) The type of electronic monitoring device to be used; 87
87	87	(2) The standard conditions that may be placed on the electronic monitoring 88
88	88	device's use, including those listed in section 6; 89
89	89	(3) With whom the recording may be shared as provided under section 10; and 90
90	90	(4) The resident's ability to decline all recordings. 91
91	91	(c) A resident or resident representative may consent to electronic monitoring with any 92
92	92	conditions of the resident's or representative's choosing, including the list of standard conditions 93
93	93	as provided in section 6. A resident or representative may turn off or the visual or audio 94
94	94	recording component of the electronic monitoring device may be blocked at any time. 95
95	95	(d) Prior to implementing electronic monitoring, a resident or resident representative 96
96	96	must obtain the written consent on the notification and consent form of any roommate or 97
97	97	roommate representative residing in the shared room. A roommate's or roommate 98
98	98	representative's written consent must comply with the requirements of subsections (a) to (c) of 99
99	99	this section. Consent by a roommate or a roommate's representative under this subsection 100
100	100	authorizes the resident's use of any recording obtained under this section, as provided under 101
101	101	section 10 or 11. 102 (e) A resident conducting electronic monitoring must immediately remove or disable an 103
102	102	electronic monitoring device prior to a new roommate moving into a shared room or shared 104
103	103	private living unit, unless the resident obtains the roommate's or roommate representative's 105
104	104	written consent prior to the roommate moving into the shared room. Upon obtaining the new 106
105	105	roommate's signed notification and consent form and submitting the form to the facility as 107
106	106	required under section 6, the resident may resume electronic monitoring. 108
107	107	(f) The resident or roommate, or their respective representative, may withdraw consent at 109
108	108	any time, and the withdrawal of consent must be documented on an original or a copy of the 110
109	109	consent form as provided under section 6. 111
110	110	Sec. 5. Refusal of roommate to consent. 112
111	111	(a) If a resident’s roommate refuses to consent to the use of an electronic monitoring 113
112	112	device, the facility shall make a reasonable attempt to accommodate the resident who wants to 114
113	113	conduct electronic monitoring. 115
114	114	(b) A facility shall be deemed to have met the accommodation requirement set forth in 116
115	115	subsection (a) of this section when, upon notification that a roommate has not consented to the 117
116	116	use of an electronic monitoring device in his room, the facility offers to move either the resident 118
117	117	or the roommate to another shared room that is available at the time of the request at the same 119
118	118	monthly rate. 120
119	119	(c) If a facility is unable to accommodate a resident due to lack of space, the facility shall 121
120	120	reevaluate the request at least once every 2 weeks until the request i s fulfilled. If the resident who 122
121	121	wants electronic monitoring chooses to reside in an available private room in order to use an 123
122	122	electronic monitoring device, the resident shall pay the private room rate if required by the 124
123	123	licensee. 125 Sec. 6. Consent form requirements. 126
124	124	(a) The notice and consent form shall include the following information from the 127
125	125	resident and all roommates living in the room that is to be electronically monitored: 128
126	126	(1) The signed consent to electronic monitoring from the resident or resident 129
127	127	representative, and if applicable, the signed consent of the roommate or roommate 130
128	128	(2) If the resident representative or roommate representative is signing the 131
129	129	consent form: 132
130	130	(A) The date the resident or roommate was asked if they want electronic 133
131	131	monitoring to be conducted; 134
132	132	(B) W ho was present when the resident or roommate w ere asked; 135
133	133	(C) An acknowledgment that the resident or roommate did not 136
134	134	affirmatively object; and 137
135	135	(D) The source of authority allowing a resident representative or 138
136	136	roommate representative to sign the notification and consent form on the ir behalf; 139
137	137	(3) The type of electronic monitoring device to be used; 140
138	138	(4) A list of standard conditions or restrictions that the resident or a roommate 141
139	139	may elect to place on the use of the electronic monitoring device, including: 142
140	140	(A) Prohibiting audio recording; 143
141	141	(B) Prohibiting video recording; 144
142	142	(C) Prohibiting the broadcasting of audio or video; 145
143	143	(D) Turning off the electronic monitoring device or blocking the visual 146
144	144	recording component of the electronic monitoring device for the duration of an exam or 147
145	145	procedure by a health care professional; 148 (E) Turning off the electronic monitoring device or blocking the visual 149
146	146	recording component of the electronic monitoring device while dressing or bathing is performed; 150
147	147	and 151
148	148	(F) Turning off the electronic monitoring device for the duration of a visit 152
149	149	with a spiritual adviser, ombudsman, attorney, financial planner, intimate partner, or other 153
150	150	visitor; 154
151	151	(5) A statement of the circumstances under which a recording may be 155
152	152	disseminated under section 10; 156
153	153	(6) A notice to release the facility from liability for a violation of privacy through 157
154	154	the use of the electronic monitoring device; and 158
155	155	(10) A signature box for documenting that the resident, roommate or their 159
156	156	representative has withdrawn consent; and 160
157	157	(b) Facilities shall make the notification and consent form available to residents and 161
158	158	inform residents of their option to conduct electronic monitoring of their rooms. 162
159	159	Sec. 7. Notice to visitors. 163
160	160	(a) The facility shall post a sign at each facility entrance accessible to visitors that states 164
161	161	that electronic monitoring devices, including security cameras and audio devices, may be present 165
162	162	to record persons and activities. The sign shall be in large, clearly legible type and font. 166
163	163	(b) The facility shall bear the costs associated with installing and maintaining the sign 167
164	164	required by this section. A resident who conducts authorized electronic monitoring or the 168
165	165	resident’s representative may post and maintain a notice at the entrance to the resident’s room 169
166	166	stating that the room is being monitored by an electronic monitoring device. 170
167	167	Sec. 8. Cost and installation. 171 (a) A resident or representative choosing to conduct electronic monitoring must do so at 172
168	168	the resident's own expense, including purchase, installation, maintenance, and removal costs. 173
169	169	(b) If a resident chooses to place an electronic monitoring device that uses Internet 174
170	170	technology for visual or audio monitoring, the resident shall be responsible for contracting with 175
171	171	an Internet service provider if the facility does not allow the resident to use the facility’s Internet 176
172	172	service to operate the device. 177
173	173	(c) The facility shall reasonably accommodate the resident's installation needs, including 178
174	174	allowing access to the facility's public -use Internet or Wi- Fi systems when available for other 179
175	175	public uses. The facility has the burden of proving that a requested accommodation is not 180
176	176	reasonable. 181
177	177	(d) If the structure of the resident's room must be altered in order to accommodate an 182
178	178	electronic monitoring device, then the renovation to the room may be done only by a licensed 183
179	179	contractor and at the resident’s expense, subject to the facility’s approval, which may not be 184
180	180	unreasonably withheld. 185
181	181	(e) All electronic monitoring device installations and supporting services must be 186
182	182	Underwriters L aboratory-listed. 187
183	183	Sec. 9. Obstruction of electronic monitoring devices. 188
184	184	(a) A person must not knowingly hamper, obstruct, tamper with, or destroy an electronic 189
185	185	monitoring device placed in a resident's room or private living unit without the permission of the 190
186	186	resident or representative. Checking the electronic monitoring device by facility staff for the 191
187	187	make and model number shall not constitute tampering. 192
188	188	(b) It is not a violation of subsection (a) of this section if a person turns off the electronic 193
189	189	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
190	190	representative has been withdrawn. 196
191	191	Sec. 10. Use of recordings. 197
192	192	(a) No person may access any video or audio recording created through authorized 198
193	193	electronic monitoring without the written consent of the resident or representative. 199
194	194	(b) Except as required in section 14 or under another law authorizing disclosure, a 200
195	195	recording or copy of a recording may only be disseminated for the purpose of addressing health, 201
196	196	safety, or welfare concerns of one or more residents. 202
197	197	Sec. 11. Admissibility of evidence. 203
198	198	Subject to applicable rules of evidence and procedure, any video or audio recording 204
199	199	created through electronic monitoring under this section may be admitted into evidence in a civil, 205
200	200	criminal, or administrative proceeding. 206
201	201	Sec. 12. Liability. 207
202	202	For the purposes of District law, the mere presence of an electronic monitoring device 208
203	203	in a resident’s room or private living unit in accordance with this chapter is not a violation of the 209
204	204	resident’s right to privacy under District and federal law. 210
205	205	Sec. 13. Resident Protections. 211
206	206	A facility may not refuse to admit an individual and may not remove a resident from a 212
207	207	facility because of authorized electronic monitoring of a resident’s room, nor may a facility 213
208	208	retaliate or discriminate against a resident for the use of authorized electronic monitoring. 214
209	209	Sec. 14. Employee discipline. 215
210	210	(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
211	211	the footage shall provide the facility with a copy at the facility’s expense. 218
212	212	(b) A facility who obtains a recording or a copy of the recording must treat the recording 219
213	213	or copy confidentially and must not further disseminate it to any other person except as required 220
214	214	under law. Any copy of the recording must be returned to the resident who provided the copy 221
215	215	when it is no longer needed for purposes of defending against a proposed action. 222
216	216	Sec. 15. Fines and penalties; criminal violations. 223
217	217	(a) Any person who violates any provision of this subchapter shall, upon conviction, be 224
218	218	subject to imprisonment not to exceed one year, a fine not to exceed $10,000, or both. 225
219	219	(b) Any person who has been previously convicted under this subchapter shall, upon 226
220	220	conviction, be subject to imprisonment not to exceed one year, a fine not to exceed $25,000, or 227
221	221	both. 228
222	222	(c) The fines set forth in this section shall not be limited by § 22-3571.01. 229
223	223	Sec. 16. Prosecutions. 230
224	224	(a) Prosecutions for violations of this subchapter shall be brought in the name of the 231
225	225	District of Columbia by the Attorney General for the District of Columbia. 232
226	226	(b) In any prosecution brought under this subchapter, any person claiming an exemption 233
227	227	from regulation under this subchapter shall have the burden of providing entitlement to the 234
228	228	exemption. 235
229	229	Sec. 17. Fines and penalties; civil alternatives. 236
230	230	Civil fines, penalties, and fees may be imposed as alternative sanctions for any infraction 237
231	231	of the provisions of this subchapter, or any rules or regulations issued under the authority of this 238
232	232	subchapter, pursuant to Chapter 18 of Title 2. 239 Sec. 18. Injunctions; unlawful practices. 240
233	233	(a) The Attorney General for the District of Columbia may bring an action in the Superior 241
234	234	Court of the District of Columbia in the name of the District of Columbia to enjoin the unlawful 242
235	235	practice of any occupation or profession or any other action which is grounds for the imposition 243
236	236	of a criminal penalty or disciplinary action under this subchapter. 244
237	237	(b) Remedies under this section are in addition to criminal prosecution or any disciplinary 245
238	238	action by a board. 246
239	239	(c) In any proceeding under this section, it shall not be necessary to prove that any person 247
240	240	is personally injured by the action or actions alleged. 248
241	241	. Sec. 19. Fiscal impact statement. 249
242	242	The Council adopts the fiscal impact statement in the committee report as the fiscal 250
243	243	impact statement required by section 4a of the General Legislative Procedures Act of 1975, 251
244	244	approved October 16, 2006 (120 Stat. 2038; D.C. Official Code § 1-301.47a). 252
245	245	Sec. 20. Effective date. 253
246	246	This act shall take effect following approval by the Mayor (or in the event of veto by the 254
247	247	Mayor, action by the Council to override the veto), a 30-day period of congressional review as 255
248	248	provided in section 602(c)(1) of the District of Columbia Home Rule Act, approved December 256
249	249	24, 1973, (87 Stat. 813; D.C. Official Code § 1-206.02(c)(1)), and publication in the District of 257
250	250	Columbia Register. 258