House File 2470 - Introduced HOUSE FILE 2470 BY KURTH , CROKEN , LEVIN , ABDUL-SAMAD , WILBURN , JACOBY , STECKMAN , EHLERT , CAHILL , and BUCK A BILL FOR An Act relating to the requirements for authorized electronic 1 monitoring in nursing facilities, and providing penalties. 2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 3 TLSB 5620YH (3) 90 pf/ko
H.F. 2470 Section 1. Section 135C.1, Code 2024, is amended by adding 1 the following new subsections: 2 NEW SUBSECTION . 6A. Electronic monitoring means the 3 placement and use of an electronic monitoring device by 4 a resident in the residents room in accordance with this 5 chapter. 6 NEW SUBSECTION . 6B. Electronic monitoring device means a 7 camera or other device that captures, records, or broadcasts 8 audio, video, or both, that is placed in a residents room and 9 is used to monitor the resident or activities in the room. 10 NEW SUBSECTION . 22A. Resident representative means one of 11 the following in the order of priority listed, to the extent 12 the person may reasonably be identified and located: 13 a. The attorney in fact designated to make treatment 14 decisions for the resident in accordance with chapter 144B. 15 b. The guardian of the resident if one has been appointed 16 pursuant to chapter 633. 17 c. The residents spouse. 18 d. An adult child of the resident or, if the resident has 19 more than one adult child, a majority of the adult children who 20 are reasonably available. 21 e. A parent of the resident, or parents if both are 22 reasonably available. 23 f. An adult sibling of the resident. 24 Sec. 2. NEW SECTION . 135C.49 Electronic monitoring. 25 1. A resident or a resident representative may conduct 26 electronic monitoring of the residents room through the use of 27 an electronic monitoring device placed in the residents room 28 pursuant to this subchapter. 29 2. Nothing in this section precludes the use of electronic 30 monitoring otherwise allowed by law. 31 Sec. 3. NEW SECTION . 135C.50 Consent to electronic 32 monitoring. 33 1. Except as otherwise provided in this subchapter, 34 a resident must consent to electronic monitoring in the 35 -1- LSB 5620YH (3) 90 pf/ko 1/ 11
H.F. 2470 residents room in writing on a notification and consent 1 form prescribed by the department. If the resident has 2 not affirmatively objected to electronic monitoring and the 3 residents medical professional determines that the resident 4 lacks the ability to understand and appreciate the nature 5 and consequences of electronic monitoring, the resident 6 representative may consent on behalf of the resident. For 7 purposes of this subsection, a resident affirmatively objects 8 when the resident orally, visually, or through the use of 9 auxiliary aids or services declines electronic monitoring. The 10 residents response shall be documented on the notification and 11 consent form. 12 2. Prior to a resident representative consenting on behalf 13 of a resident, the resident shall be asked if the resident 14 wants electronic monitoring to be conducted. The resident 15 representative shall explain all of the following to the 16 resident: 17 a. The type of electronic monitoring device to be used. 18 b. The standard conditions or restrictions that may be 19 placed on the electronic monitoring devices use including as 20 specified in the list of standard conditions or restrictions 21 contained in the notification and consent form completed by the 22 resident as provided in section 135C.53. 23 c. The dissemination and use as evidence of any recording as 24 provided under section 135C.57 or 135C.58. 25 d. The residents ability to decline all recordings. 26 3. A resident, or resident representative when consenting 27 on behalf of the resident, may consent to electronic monitoring 28 with any conditions or restrictions of the residents or 29 resident representatives choosing, including the list 30 of standard conditions or restrictions contained in the 31 notification and consent form completed by the resident 32 as provided in section 135C.53. A resident, or resident 33 representative when consenting on behalf of the resident, may 34 request that the electronic monitoring device be turned off 35 -2- LSB 5620YH (3) 90 pf/ko 2/ 11
H.F. 2470 or the visual or audio recording component of the electronic 1 monitoring device be blocked at any time. 2 4. Prior to implementing electronic monitoring, a resident, 3 or resident representative when acting on behalf of the 4 resident, shall obtain the written consent on the notification 5 and consent form of any other resident who is a roommate 6 residing in the shared room. A roommates or roommates 7 resident representatives written consent shall comply with 8 the requirements of this section. Consent by a roommate or 9 a roommates resident representative under this subsection 10 authorizes the residents use of any recording obtained under 11 this section as provided under sections 135C.57 and 135C.58. 12 5. Any resident conducting electronic monitoring shall 13 immediately remove or disable an electronic monitoring device 14 prior to a new resident who will be a roommate moving into 15 a shared room, unless the resident conducting electronic 16 monitoring obtains the new roommates or new roommates 17 resident representatives written consent as provided under 18 this section prior to the new roommate moving into the shared 19 room. Upon obtaining the new roommates or new roommates 20 resident representatives signed notification and consent form 21 and submitting the form to the nursing facility as required 22 under section 135C.52, the resident may resume electronic 23 monitoring. 24 6. The resident or roommate, or the resident representative 25 or roommates resident representative if the representative is 26 consenting on behalf of the resident or roommate, may withdraw 27 consent at any time and the withdrawal of consent shall be 28 documented on the original consent form as provided under 29 section 135C.52. 30 Sec. 4. NEW SECTION . 135C.51 Refusal of roommate to 31 consent. 32 If a resident of a nursing facility who is residing in a 33 shared room, or the resident representative of such a resident 34 when acting on behalf of the resident, wants to conduct 35 -3- LSB 5620YH (3) 90 pf/ko 3/ 11
H.F. 2470 electronic monitoring and another resident living in or moving 1 into the same shared room refuses to consent to the use of an 2 electronic monitoring device, the nursing facility shall make 3 a reasonable attempt to accommodate the resident who wants to 4 conduct electronic monitoring. A nursing facility has met 5 the requirement to make a reasonable attempt to accommodate 6 a resident or resident representative who wants to conduct 7 electronic monitoring when, upon notification that a roommate 8 has not consented to the use of an electronic monitoring device 9 in the residents room, the nursing facility offers to move one 10 of the residents to another shared room that is available at 11 the time of the request that accommodates the resident. If 12 a resident chooses to reside in a private room in order to 13 accommodate the use of an electronic monitoring device, the 14 resident shall be subject to a private room rate. If a nursing 15 facility is unable to accommodate a resident due to lack of 16 space, the nursing facility shall reevaluate the request 17 periodically until the request is fulfilled. 18 Sec. 5. NEW SECTION . 135C.52 Notice and consent form 19 submitted to nursing facility. 20 1. Electronic monitoring may begin only after the resident 21 or resident representative who intends to place an electronic 22 monitoring device in the residents room and any roommate or 23 roommates resident representative completes a notification and 24 consent form and submits the form to the nursing facility. 25 2. Upon receipt of the required, completed notification and 26 consent form, the nursing facility shall place the original 27 form in the residents file, and a copy of the form in any 28 roommates file. The nursing facility shall provide a copy to 29 the resident and the residents roommate, as applicable. 30 3. If a resident or roommate, or the resident representative 31 or roommates resident representative if the representative 32 is consenting on behalf of the resident or roommate, chooses 33 to alter the conditions under which consent to electronic 34 monitoring is given or chooses to withdraw consent to 35 -4- LSB 5620YH (3) 90 pf/ko 4/ 11
H.F. 2470 electronic monitoring, the nursing facility shall make 1 available the original notification and consent form so that 2 the original form may be updated. Upon receipt of the updated 3 original form, the nursing facility shall place the updated 4 original form in the residents file. The nursing facility 5 shall provide a copy of the updated form to the resident and 6 the residents roommate, as applicable. 7 4. If a new roommate, or the new roommates resident 8 representative when consenting on behalf of the new roommate, 9 does not consent to electronic monitoring and submit a 10 completed notification and consent form to the nursing 11 facility, and the resident conducting the electronic monitoring 12 does not remove or disable an existing electronic monitoring 13 device, the nursing facility shall remove the electronic 14 monitoring device. 15 5. If a roommate, or the roommates resident representative 16 when withdrawing consent on behalf of the roommate, submits 17 an updated notification and consent form withdrawing consent 18 and the resident conducting electronic monitoring does not 19 remove or disable the electronic monitoring device, the nursing 20 facility shall remove the electronic monitoring device. 21 Sec. 6. NEW SECTION . 135C.53 Notification and consent form 22 requirements. 23 1. The notification and consent form completed by the 24 resident shall include, at a minimum, all of the following 25 information: 26 a. The residents signed consent to electronic monitoring or 27 the signature of the resident representative, if applicable. 28 If a resident representative signs the consent form, the form 29 shall document all of the following: 30 (1) The date the resident was asked if the resident wants 31 electronic monitoring to be conducted. 32 (2) Any person present when the resident was asked. 33 (3) An acknowledgment that the resident did not 34 affirmatively object. 35 -5- LSB 5620YH (3) 90 pf/ko 5/ 11
H.F. 2470 (4) The source of authority allowing the resident 1 representative to sign the notification and consent form on the 2 residents behalf. 3 b. The residents roommates signed consent or the signature 4 of the roommates resident representative, if applicable. If a 5 roommates resident representative signs the consent form, the 6 form shall document all of the following: 7 (1) The date the roommate was asked if the roommate wants 8 electronic monitoring to be conducted. 9 (2) Any person present when the roommate was asked. 10 (3) An acknowledgment that the roommate did not 11 affirmatively object. 12 (4) The source of authority allowing the resident 13 representative to sign the notification and consent form on the 14 roommates behalf. 15 c. The type of electronic monitoring device to be used. 16 d. Any installation needs, such as mounting of a device to 17 a wall or ceiling. 18 e. The proposed date of installation for scheduling 19 purposes. 20 f. A copy of any contract for maintenance of the electronic 21 monitoring device by a commercial entity. 22 g. A list of standard conditions or restrictions that the 23 resident or a roommate may elect to place on the use of the 24 electronic monitoring device including but not limited to all 25 of the following: 26 (1) Prohibiting audio recording. 27 (2) Prohibiting video recording. 28 (3) Prohibiting broadcasting of audio or video. 29 (4) Turning off the electronic monitoring device or 30 blocking the visual recording component of the electronic 31 monitoring device for the duration of an exam or procedure by a 32 health care professional. 33 (5) Turning off the electronic monitoring device or 34 blocking the visual recording component of the electronic 35 -6- LSB 5620YH (3) 90 pf/ko 6/ 11
H.F. 2470 monitoring device while dressing or bathing is performed. 1 (6) Turning off the electronic monitoring device for 2 the duration of a visit with a spiritual adviser, ombudsman, 3 attorney, financial planner, intimate partner, or other 4 visitor. 5 h. Any other condition or restriction elected by the 6 resident or roommate on the use of an electronic monitoring 7 device. 8 i. A statement of the circumstances under which a recording 9 may be disseminated under section 135C.57. 10 j. A signature box to document if the resident or roommate 11 withdraws consent. 12 2. A nursing facility shall make the notification and 13 consent form available to the residents and inform residents of 14 the option to conduct electronic monitoring of the residents 15 room. 16 Sec. 7. NEW SECTION . 135C.54 Cost and installation. 17 1. A resident who chooses to conduct electronic monitoring 18 shall do so at the residents own expense, including payment of 19 any purchase, installation, maintenance, and removal costs. 20 2. If a resident chooses to place an electronic monitoring 21 device that uses internet technology for visual or audio 22 monitoring, the resident may be responsible for contracting 23 with an internet service provider. 24 3. The nursing facility shall make a reasonable attempt 25 to accommodate the residents installation needs, including 26 allowing access to the nursing facilitys public-use internet 27 or wi-fi systems when available for other public uses. 28 4. All electronic monitoring device installations and 29 supporting services shall comply with the requirements of the 30 national fire protection association 101 life safety code. 31 5. A nursing facility shall not charge a resident a fee 32 for the costs of electricity used by the electronic monitoring 33 device. 34 Sec. 8. NEW SECTION . 135C.55 Notice to visitors. 35 -7- LSB 5620YH (3) 90 pf/ko 7/ 11
H.F. 2470 1. A nursing facility shall post a sign at each nursing 1 facility entrance accessible to visitors that states 2 Electronic monitoring devices may be present in the rooms of 3 residents to record persons and activities. 4 2. A nursing facility shall post a sign clearly and 5 conspicuously at the entrance to a residents room where 6 electronic monitoring is being conducted. The notice shall 7 state This room is electronically monitored. 8 3. The nursing facility is responsible for installing and 9 maintaining the signage required in this section. 10 Sec. 9. NEW SECTION . 135C.56 Obstruction of electronic 11 monitoring devices. 12 1. A person shall not knowingly hamper, obstruct, tamper 13 with, or destroy an electronic monitoring device placed in 14 a residents room without the permission of the resident or 15 resident representative. 16 2. A person shall not knowingly hamper, obstruct, tamper 17 with, or destroy a video or audio recording obtained through 18 the use of an electronic monitoring device in accordance with 19 this subchapter. 20 3. It is not a violation of this section for a person to 21 turn off the electronic monitoring device or block the visual 22 recording component of the electronic monitoring device at the 23 direction of the resident or resident representative, or if 24 consent has been withdrawn. 25 4. A person who violates this section is guilty of a serious 26 misdemeanor. 27 Sec. 10. NEW SECTION . 135C.57 Dissemination of recordings. 28 1. A person shall not access any video or audio recording 29 created through electronic monitoring under this subchapter 30 without the written consent of the resident or resident 31 representative. 32 2. Except as otherwise required by law, a recording or copy 33 of a recording created as provided in this subchapter may only 34 be disseminated for the purpose of addressing health, safety, 35 -8- LSB 5620YH (3) 90 pf/ko 8/ 11
H.F. 2470 or welfare concerns of a resident. 1 3. A person accessing or disseminating a recording or copy 2 of a recording created as provided in this section in violation 3 of this section is guilty of a serious misdemeanor. 4 Sec. 11. NEW SECTION . 135C.58 Admissibility of evidence. 5 Subject to applicable rules of evidence and procedure, any 6 video or audio recording created through electronic monitoring 7 under this subchapter may be admitted into evidence in a civil, 8 criminal, or administrative proceeding if the contents of the 9 recording have not been edited or artificially enhanced and the 10 recording includes the date and time the events occurred. 11 Sec. 12. NEW SECTION . 135C.59 Liability penalties. 12 1. A nursing facility is not civilly or criminally liable 13 for the disclosure of a recording by a resident or a person who 14 consents on behalf of a resident for any purpose not authorized 15 by this subchapter. 16 2. A nursing facility is not civilly or criminally liable 17 for a violation of a residents right to privacy arising out 18 of any electronic monitoring conducted in accordance and in 19 compliance with this subchapter. 20 3. A nursing facility that knowingly violates this 21 subchapter shall be subject to licensee discipline. 22 Sec. 13. NEW SECTION . 135C.60 Resident protections. 23 1. A nursing facility shall not do any of the following: 24 a. Refuse to admit a potential resident or remove a resident 25 because the nursing facility disagrees with the potential 26 residents or the residents decisions regarding electronic 27 monitoring, whether the decision is made by a resident or a 28 resident representative acting on behalf of the resident. 29 b. Retaliate or discriminate against any resident for 30 consenting or refusing to consent to electronic monitoring. 31 c. Prevent the placement or use of an electronic monitoring 32 device by a resident who has provided the nursing facility 33 with the notification and consent form as required under this 34 subchapter. 35 -9- LSB 5620YH (3) 90 pf/ko 9/ 11
H.F. 2470 2. Any contractual provision prohibiting, limiting, 1 or otherwise modifying the rights and obligations in this 2 subchapter is contrary to public policy and is void and 3 unenforceable. 4 Sec. 14. NEW SECTION . 135C.61 Report to department. 5 A nursing facility shall report to the department, in a 6 manner prescribed by the department, the number of electronic 7 monitoring device notification and consent forms received by 8 the nursing facility on an annual basis. 9 Sec. 15. DIRECTIVE TO DEPARTMENT OF INSPECTIONS, APPEALS, 10 AND LICENSING. The department of inspections, appeals, and 11 licensing shall prescribe by rule pursuant to chapter 17A the 12 notification and consent form described in this Act, and shall 13 make the form available on the departments internet site. 14 Sec. 16. CODE EDITOR DIRECTIVE. The Code editor may codify 15 the provisions of this Act as a new subchapter of chapter 135C 16 entitled Electronic Monitoring. 17 EXPLANATION 18 The inclusion of this explanation does not constitute agreement with 19 the explanations substance by the members of the general assembly. 20 This bill provides for authorized electronic monitoring in 21 nursing facilities. 22 The bill provides that a nursing facility resident or a 23 resident representative may conduct electronic monitoring 24 of the residents room through the use of electronic 25 monitoring devices placed in the residents room pursuant 26 to the bill. The bill specifies the consents that must be 27 obtained for a resident to conduct electronic monitoring 28 in the residents room, including from any roommate; the 29 process to be followed if a roommate refuses to consent; the 30 submission of the notice and consent form to the nursing 31 facility; the notification and consent form requirements; the 32 responsibility for the cost and installation relating to the 33 electronic monitoring; requirements for notice to visitors; 34 penalties for obstruction of electronic monitoring devices; 35 -10- LSB 5620YH (3) 90 pf/ko 10/ 11
H.F. 2470 the dissemination of recordings created through electronic 1 monitoring; the admissibility of evidence created through 2 electronic monitoring; liability and penalties for violations 3 of the bill; resident protections; and reporting requirements. 4 The bill also directs the department of inspections, appeals, 5 and licensing to prescribe the notification and consent form 6 described in the bill and to make the form available on the 7 departments internet site. 8 -11- LSB 5620YH (3) 90 pf/ko 11/ 11