Rhode Island 2023 Regular Session

Rhode Island Senate Bill S0648 Compare Versions

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

Old	New	Differences
1	1
2	2
3	3
4	4
5	5	2023 -- S 0648
6	6	========
7	7	LC001248
8	8	========
9	9	S TATE OF RHODE IS LAND
10	10	IN GENERAL ASSEMBLY
11	11	JANUARY SESSION, A.D. 2023
12	12	____________
13	13
14	14	A N A C T
15	15	RELATING TO HEALTH AND SAFETY -- ELECTRONIC MONITORIN G IN NURSING
16	16	AND ASSISTED LIVING FACILITIES
17	17	Introduced By: Senators Euer, Lawson, DiMario, Acosta, Ruggerio, Lauria, Cano,
18	18	Quezada, Zurier, and Gu
19	19	Date Introduced: March 07, 2023
20	20	Referred To: Senate Judiciary
21	21
22	22
23	23	It is enacted by the General Assembly as follows:
24	24	SECTION 1. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby 1
25	25	amended by adding thereto the following chapter: 2
26	26	CHAPTER 17.29 3
27	27	ELECTRONIC MONITORING IN NURSING AND ASSISTED LIVING FACILITIES 4
28	28	23-17.29-1. Definitions. 5
29	29	As used in this chapter: 6
30	30	(1) "Department" means the Rhode Island department of health. 7
31	31	(2) "Director" means the director of the Rhode Island department of health. 8
32	32	(3) "Electronic monitoring" means the placement and use of an electronic monitoring 9
33	33	device by a resident or the resident representative in the resident's room or private living unit in 10
34	34	accordance with this chapter. 11
35	35	(4) "Electronic monitoring device" means a camera or other device that captures, records, 12
36	36	or broadcasts audio, video, or both, that is placed in a resident's room or private living unit and is 13
37	37	used to monitor the resident or activities in the room or private living unit. 14
38	38	(5) "Facility" means a facility that is: 15
39	39	(i) Licensed as a heath care facility under chapter 17 of title 23 and the regulations for 16
40	40	Licensing of Nursing Facilities (216-RICR-40-10-1, or suspending regulations); or 17
41	41	(ii) Licensed as an assisted living residence under chapter 17.4 of title 23 and the 18
42	42
43	43
44	44	LC001248 - Page 2 of 9
45	45	regulations for Licensing Assisted Living Residence (216-RICR-40-10-2, or suspending 1
46	46	regulations). 2
47	47	(6) "Resident" means a person eighteen (18) years of age or older residing in a facility. 3
48	48	(7) "Resident representative" means one of the following, to the extent the person may 4
49	49	reasonably be identified and located: 5
50	50	(i) A court-appointed guardian; 6
51	51	(ii) A health care agent or agent acting pursuant to a durable power of attorney as executed 7
52	52	pursuant to chapter 4.10 of title 23; or 8
53	53	(iii) A person who is not an agent of a facility who is designated in writing by the resident 9
54	54	and maintained in the resident's records on file with the facility. 10
55	55	23-17.29-2. Authorization of electronic monitoring. 11
56	56	(a) A resident or a resident representative may conduct electronic monitoring of the 12
57	57	resident's room or private living unit through the use of electronic monitoring devices placed in the 13
58	58	resident's room or private living unit as provided in this chapter. 14
59	59	(b) Nothing in this chapter precludes the use of electronic monitoring of health care as 15
60	60	authorized pursuant to state or federal law. 16
61	61	23-17.29-3. Consent to electronic monitoring. 17
62	62	(a) Except as otherwise provided in this section, a resident or the resident’s representative 18
63	63	shall consent to electronic monitoring in the resident's room or private living unit in writing on a 19
64	64	notification and consent form. If the resident has not affirmatively objected to electronic monitoring 20
65	65	and the resident's health care provider determines that the resident currently lacks the ability to 21
66	66	understand and appreciate the nature and consequences of electronic monitoring, the resident 22
67	67	representative may consent on behalf of the resident. For purposes of this section, a resident 23
68	68	affirmatively objects when the resident verbally, visually, or through the use of auxiliary aids or 24
69	69	services declines electronic monitoring. The resident's response shall be documented on the 25
70	70	notification and consent form. 26
71	71	(b) Prior to a resident representative consenting on behalf of a resident, the resident 27
72	72	representative shall inquire of the resident if the resident wants electronic monitoring to be 28
73	73	conducted. The resident representative shall explain to the resident: 29
74	74	(1) The type of electronic monitoring device to be used; 30
75	75	(2) The standard conditions that may be placed on the electronic monitoring device's use, 31
76	76	including those set forth in § 23-17.29-6; 32
77	77	(3) With whom the recording may be shared under §§ 23-17.29-10 and 23-17.29-11; and 33
78	78	(4) The resident's ability to decline all recording. 34
79	79
80	80
81	81	LC001248 - Page 3 of 9
82	82	(c) A resident or resident representative, when consenting on behalf of the resident, may 1
83	83	consent to electronic monitoring with any conditions of the resident's or resident representative's 2
84	84	choosing, including the list of standard conditions provided in § 23-17.29-6. A resident, or resident 3
85	85	representative when consenting on behalf of the resident, may request that the electronic monitoring 4
86	86	device be turned off or the visual or audio recording component of the electronic monitoring device 5
87	87	be blocked at any time. 6
88	88	(d) Prior to implementing electronic monitoring, a resident, or resident representative when 7
89	89	acting on behalf of the resident, shall obtain the written consent on the notification and consent 8
90	90	form of any other resident residing in the shared room or shared private living unit. A roommate's 9
91	91	or roommate's resident representative's written consent shall comply with the requirements of 10
92	92	subsections (a) through (c) of this section. Consent by a roommate or a roommate's resident 11
93	93	representative under this section authorizes the resident's use of any recording obtained under this 12
94	94	chapter, as provided under §§ 23-17.29-10 and 23-17.29-11. 13
95	95	(e) Any resident conducting electronic monitoring shall immediately remove or disable an 14
96	96	electronic monitoring device prior to a new roommate moving into a shared room or shared private 15
97	97	living unit, unless the resident obtains the roommate's or roommate's resident representative's 16
98	98	written consent as provided under subsection (d) of this section prior to the roommate moving into 17
99	99	the shared room or shared private living unit. Upon obtaining the new roommate's signed 18
100	100	notification and consent form and submitting the form to the facility pursuant to § 23-17.29-5, the 19
101	101	resident may resume electronic monitoring. 20
102	102	(f) The resident or roommate, or the resident representative of the resident or roommate, if 21
103	103	the representative is consenting on behalf of the resident or roommate, may withdraw consent at 22
104	104	any time and the withdrawal of consent shall be documented on the original consent form as 23
105	105	provided under § 23-17.29-5(d). 24
106	106	23-17.29-4. Refusal of roommate to consent. 25
107	107	If a resident of a facility who is residing in a shared room or shared living unit, or the 26
108	108	resident representative of such a resident when acting on behalf of the resident, wants to conduct 27
109	109	electronic monitoring and another resident living in or moving into the same shared room or shared 28
110	110	living unit refuses to consent to the use of an electronic monitoring device, the facility shall make 29
111	111	a reasonable attempt to accommodate the resident who wants to conduct electronic monitoring. A 30
112	112	facility has met the requirement to make a reasonable attempt to accommodate a resident or resident 31
113	113	representative who wants to conduct electronic monitoring when, upon notification that a roommate 32
114	114	has not consented to the use of an electronic monitoring device in the resident's room, the facility 33
115	115	offers to move the resident to another shared room or shared living unit that is available at the time 34
116	116
117	117
118	118	LC001248 - Page 4 of 9
119	119	of the request. If a resident chooses to reside in a private room or private living unit in a facility in 1
120	120	order to accommodate the use of an electronic monitoring device, the resident shall pay either the 2
121	121	private room rate in a nursing home setting, or the applicable rent in a housing with services 3
122	122	establishment or assisted living facility. If a facility is unable to accommodate a resident due to 4
123	123	lack of space, the facility shall reevaluate the request every two (2) weeks until the request is 5
124	124	fulfilled. A facility is not required to provide a private room, a single-bed room, or a private living 6
125	125	unit to a resident who is unable or unwilling to pay. 7
126	126	23-17.29-5. Notice to facility. 8
127	127	(a) Electronic monitoring may begin only after the resident or resident representative who 9
128	128	intends to place an electronic monitoring device and any roommate or roommate's resident 10
129	129	representative completes the notification and consent form and submits the form to the facility. 11
130	130	(b) Notwithstanding subsection (a) of this section, the resident or resident representative 12
131	131	who intends to place an electronic monitoring device may do so without submitting a notification 13
132	132	and consent form to the facility for up to fourteen (14) days: 14
133	133	(1) If the resident or the resident representative reasonably fears retaliation against the 15
134	134	resident by the facility and timely submits a Rhode Island department of health complaint or police 16
135	135	report, or both, upon evidence from the electronic monitoring device that suspected maltreatment 17
136	136	has occurred; 18
137	137	(2) If there has not been a timely written response from the facility to a written 19
138	138	communication from the resident or resident representative expressing a concern prompting the 20
139	139	desire for placement of an electronic monitoring device; or 21
140	140	(3) If the resident or resident representative has already submitted a Rhode Island 22
141	141	department of health complaint or police report regarding the resident's concerns prompting the 23
142	142	desire for placement of an electronic monitoring device. 24
143	143	(c) Upon receipt of any completed notification and consent form, the facility shall place 25
144	144	the original form in the resident's file or file the original form with the resident's housing with 26
145	145	services contract. The facility shall provide a copy to the resident and the resident's roommate, if 27
146	146	applicable. 28
147	147	(d) If a resident is conducting electronic monitoring according to subsection (b) of this 29
148	148	section and a new roommate moves into the room or living unit, the resident or resident 30
149	149	representative shall submit the signed notification and consent form to the facility. In the event that 31
150	150	a resident or roommate, or the resident representative or roommate's resident representative if the 32
151	151	representative is consenting on behalf of the resident or roommate, chooses to alter the conditions 33
152	152	under which consent to electronic monitoring is given or chooses to withdraw consent to electronic 34
153	153
154	154
155	155	LC001248 - Page 5 of 9
156	156	monitoring, the facility shall make available the original notification and consent form so that it 1
157	157	may be updated. Upon receipt of the updated form, the facility shall place the updated form in the 2
158	158	resident's file or file the original form with the resident's housing with services contract. The facility 3
159	159	shall provide a copy of the updated form to the resident and the resident's roommate, if applicable. 4
160	160	(e) If a new roommate, or the new roommate's resident representative when consenting on 5
161	161	behalf of the new roommate, does not submit to the facility a completed notification and consent 6
162	162	form and the resident conducting the electronic monitoring does not remove or disable the 7
163	163	electronic monitoring device, the facility shall remove the electronic monitoring device. 8
164	164	(f) If a roommate, or the roommate's resident representative when withdrawing consent on 9
165	165	behalf of the roommate, submits an updated notification and consent form withdrawing consent 10
166	166	and the resident conducting electronic monitoring does not remove or disable the electronic 11
167	167	monitoring device, the facility shall remove the electronic monitoring device. 12
168	168	23-17.29-6. Notification and consent form requirements. 13
169	169	(a) The notification and consent form completed by the resident shall include, at a 14
170	170	minimum, the following information: 15
171	171	(1) The resident's signed consent to electronic monitoring or the signature of the resident 16
172	172	representative, if applicable. If a person other than the resident signs the consent form, the form 17
173	173	shall document the following: 18
174	174	(i) The date the resident was asked if the resident wants electronic monitoring to be 19
175	175	conducted; 20
176	176	(ii) Who was present when the resident was asked; 21
177	177	(iii) An acknowledgment that the resident did not affirmatively object; and 22
178	178	(iv) The source of authority allowing the resident representative to sign the notification and 23
179	179	consent form on the resident's behalf; 24
180	180	(2) The resident's roommate's signed consent or the signature of the roommate's resident 25
181	181	representative, if applicable. If a roommate's resident representative signs the consent form, the 26
182	182	form shall document the following: 27
183	183	(i) The date the roommate was asked if the roommate wants electronic monitoring to be 28
184	184	conducted; 29
185	185	(ii) Who was present when the roommate was asked; 30
186	186	(iii) An acknowledgment that the roommate did not affirmatively object; and 31
187	187	(iv) The source of authority allowing the resident representative to sign the notification and 32
188	188	consent form on the roommate's behalf; 33
189	189	(3) The type of electronic monitoring device to be used; 34
190	190
191	191
192	192	LC001248 - Page 6 of 9
193	193	(4) A list of standard conditions or restrictions that the resident or a roommate may elect 1
194	194	to place on the use of the electronic monitoring device, including, but not limited to: 2
195	195	(i) Prohibiting audio recording; 3
196	196	(ii) Prohibiting video recording; 4
197	197	(iii) Prohibiting broadcasting of audio or video; 5
198	198	(iv) Turning off the electronic monitoring device or blocking the visual recording 6
199	199	component of the electronic monitoring device for the duration of an exam or procedure by a health 7
200	200	care professional; 8
201	201	(v) Turning off the electronic monitoring device or blocking the visual recording 9
202	202	component of the electronic monitoring device while dressing or bathing is performed; and 10
203	203	(vi) Turning off the electronic monitoring device for the duration of a visit with a spiritual 11
204	204	adviser, ombudsman, attorney, financial planner, intimate partner, or other visitor; 12
205	205	(5) Any other condition or restriction elected by the resident or roommate on the use of an 13
206	206	electronic monitoring device; 14
207	207	(6) A statement of the circumstances under which a recording may be disseminated under 15
208	208	§ 23-17.29-10; and 16
209	209	(7) A signature box for documenting that the resident or roommate has withdrawn consent. 17
210	210	(b) Facilities must make the notification and consent form available to the residents and 18
211	211	inform residents of their option to conduct electronic monitoring of their rooms or private living 19
212	212	unit. 20
213	213	23-17.29-7. Costs and installation. 21
214	214	(a) A resident or resident representative choosing to conduct electronic monitoring shall do 22
215	215	so at the resident's own expense, including the purchase, installation, maintenance, and removal 23
216	216	costs. 24
217	217	(b) If a resident chooses to place an electronic monitoring device that uses Internet 25
218	218	technology for visual or audio monitoring, the resident may be responsible for contracting with an 26
219	219	Internet service provider. 27
220	220	(c) The facility shall make a reasonable attempt to accommodate the resident's installation 28
221	221	needs, including allowing access to the facility's public-use Internet or Wi-Fi systems when 29
222	222	available for other public uses. A facility has the burden of proving that a requested accommodation 30
223	223	is not reasonable. 31
224	224	(d) All electronic monitoring device installations and supporting services shall be UL-32
225	225	listed. 33
226	226	23-17.29-8. Notice to visitors. 34
227	227
228	228
229	229	LC001248 - Page 7 of 9
230	230	(a) A facility shall post a sign at each facility entrance accessible to visitors that states: 1
231	231	"Electronic monitoring devices, including security cameras and audio devices, may be present to 2
232	232	record persons and activities." 3
233	233	(b) The facility is responsible for installing and maintaining the signage required pursuant 4
234	234	to subsection (a) of this section. 5
235	235	23-17.29-9. Obstruction of electronic monitoring devices. 6
236	236	(a) A person shall not knowingly hamper, obstruct, tamper with, or destroy an electronic 7
237	237	monitoring device placed in a resident's room or private living unit without the permission of the 8
238	238	resident or resident representative. Checking the electronic monitoring device by facility staff for 9
239	239	the make and model number does not constitute tampering under this section. 10
240	240	(b) It is not a violation of subsection (a) of this section if a person turns off the electronic 11
241	241	monitoring device or blocks the visual recording component of the electronic monitoring device at 12
242	242	the direction of the resident or resident representative, or if consent has been withdrawn. 13
243	243	23-17.29-10. Dissemination of recordings. 14
244	244	(a) No person, facility, or facility representative may access any video or audio recording 15
245	245	created through authorized electronic monitoring without the written consent of the resident or 16
246	246	resident representative. 17
247	247	(b) Except as prohibited by any other state or federal law, a recording or copy of a recording 18
248	248	made as provided in this chapter may only be disseminated for the purpose of addressing health, 19
249	249	safety, or welfare concerns of one or more residents. 20
250	250	(c) A person disseminating a recording or copy of a recording made as provided in this 21
251	251	chapter in violation of subsection (b) of this section may be civilly or criminally liable pursuant to 22
252	252	the provisions of § 23-17.29-15. 23
253	253	23-17.29-11. Admissibility of evidence. 24
254	254	Subject to applicable rules of evidence and procedure, any video or audio recording created 25
255	255	through electronic monitoring under this chapter may be admitted into evidence in any civil, 26
256	256	criminal, or administrative proceeding. 27
257	257	23-17.29-12. Liability. 28
258	258	(a) The mere presence of an electronic monitoring device in a resident's room or private 29
259	259	living unit is not a violation of the resident's right to privacy under § 23-17.5-14. 30
260	260	(b) A facility or home care provider is not civilly or criminally liable for the mere disclosure 31
261	261	by a resident or a resident representative of a recording. 32
262	262	23-17.29-13. Resident protections. 33
263	263	(a) A facility shall not: 34
264	264
265	265
266	266	LC001248 - Page 8 of 9
267	267	(1) Refuse to admit a potential resident or remove a resident because the facility disagrees 1
268	268	with the decision of the potential resident, the resident, or a resident representative acting on behalf 2
269	269	of the resident regarding electronic monitoring; or 3
270	270	(2) Retaliate or discriminate against any resident for consenting or refusing to consent to 4
271	271	electronic monitoring. 5
272	272	(b) Any contractual provision prohibiting, limiting, or otherwise modifying the rights and 6
273	273	obligations in this chapter is contrary to public policy and is void and unenforceable. 7
274	274	23-17.29-14. Employee discipline. 8
275	275	(a) An employee of the facility or an employee of a contractor providing services at the 9
276	276	facility, including an arranged home care, who is the subject of proposed disciplinary action based 10
277	277	upon evidence obtained by electronic monitoring, shall be given access to that evidence for 11
278	278	purposes of defending against the proposed action. 12
279	279	(b) An employee who obtains a recording or a copy of the recording shall treat the recording 13
280	280	or copy confidentially and must not further disseminate it to any other person except as required 14
281	281	pursuant to applicable law. Any copy of the recording shall be returned to the facility or resident 15
282	282	who provided the copy when it is no longer needed for purposes of defending against a proposed 16
283	283	action. 17
284	284	23-17.29-15. Penalties. 18
285	285	(a) The director may issue a statement of deficiency, upon a finding that the facility has 19
286	286	failed to comply with any provisions of this chapter. 20
287	287	(b) For each violation of this chapter, any licensed facility shall be guilty of a misdemeanor 21
288	288	for each violation punishable by a fine of not more than five hundred dollars ($500). 22
289	289	(c) Any person convicted of a violation pursuant to § 23-17.29-10(c), shall be guilty of a 23
290	290	misdemeanor for each violation punishment by a fine of not more than five hundred dollars ($500), 24
291	291	or shall be imprisoned not more than six (6) months, or both. 25
292	292	SECTION 2. This act shall take effect upon passage. 26
293	293	========
294	294	LC001248
295	295	========
296	296
297	297
298	298	LC001248 - Page 9 of 9
299	299	EXPLANATION
300	300	BY THE LEGISLATIVE COUNCIL
301	301	OF
302	302	A N A C T
303	303	RELATING TO HEALTH AND SAFETY -- ELECTRONIC MONITORIN G IN NURSING
304	304	AND ASSISTED LIVING FACILITIES
305	305	***
306	306	This act would allow for the use of electronic monitoring of a resident’s room or private 1
307	307	living unit within a nursing home or assisted living facility, provided that the resident or resident 2
308	308	representative acting on behalf of the resident, as well as the resident’s roommate or roommate’s 3
309	309	representative acting on behalf of the roommate, consent to such electronic monitoring in writing 4
310	310	in accordance with the applicable form. 5
311	311	This act would take effect upon passage. 6
312	312	========
313	313	LC001248
314	314	========
315	315