HB2784 - 571R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Title 36, chapter 4, Arizona Revised Statutes, is amended by adding article 7.1, to read:

ARTICLE 7.1. ELECTRONIC MONITORING

START_STATUTE36-447.51. Definitions

In this article, unless the context otherwise requires:

1. "Authorized representative" means a resident representative as defined in 42 Code of Federal Regulations section 483.5 who has been expressly granted authority by the resident or a court of law to make decisions about the resident's care, health and safety on the resident's behalf.

2. "Electronic monitoring":

(a) means the use of an electronic monitoring device in the room of a resident of a nursing care institution or assisted living facility to record or transmit sounds or activity to or for the resident, the resident's authorized representative or an authorized third party.

(b) includes the tapes or recordings from the electronic monitoring device.

3. "Electronic monitoring device" means any device or technology that has a placed, fixed or otherwise installed location, that captures, records or broadcasts audio or video, or both, and that is used for electronic monitoring.

4. "Facility" means the nursing care institution or assisted living facility in which the resident is living.

5. "Resident" means a person who resides in a facility and whose services provided by the facility are paid for, in whole or in part, using public monies. END_STATUTE

START_STATUTE36-447.52. Right to electronic monitoring

A resident or the resident's authorized representative has the right to conduct electronic monitoring of the resident's room through the use of electronic monitoring devices placed, fixed or otherwise installed in the resident's room as provided in this article. END_STATUTE

START_STATUTE36-447.53. Notice; intent to conduct electronic monitoring

A. A resident in a nursing care institution or assisted living facility or the resident's authorized representative shall notify the facility of the planned installation and use of an electronic monitoring device in the living quarters of the resident by submitting to the facility a written and completed notice and consent form as prescribed by the department pursuant to section 36-447.54. The notice and consent form serves to inform the facility that the resident or resident's authorized representative intends to conduct electronic monitoring and consents to the monitoring and describes how the resident or the resident's authorized representative intends to conduct the monitoring. The notice and consent form must be provided to the facility before the resident or resident's authorized representative installs an electronic monitoring device and begins electronic monitoring.

B. For a resident who has the ability to consent but whose authorized representative has the authority to consent to the electronic monitoring, the resident's authorized representative may consent on behalf of the resident if both of the following apply:

1. The resident's authorized representative has fully explained the proposed electronic monitoring to the resident, including the resident's right to object to the electronic monitoring.

2. The resident has not affirmatively objected to the proposed form, format and scope of electronic monitoring.

C. For a resident who does not have the ability to consent to the electronic monitoring, the resident's authorized representative may consent on behalf of the resident if all of the following apply:

1. The resident's authorized representative has the authority to consent.

2. The resident's authorized representative has fully explained the proposed electronic monitoring to the resident, including the resident's right to object to the electronic monitoring.

3. The resident has not affirmatively objected to the proposed form, format and scope of electronic monitoring.

4. The resident does not have an executed living will, medical power of attorney, prehospital medical directive or other legal document in which the resident specified the resident's objection to electronic monitoring.

d. A resident or the resident's authorized representative may consent to electronic monitoring with any limiting or qualifying terms or conditions that the resident or resident's authorized representative chooses regarding the manner in which the electronic monitoring is conducted. The limiting or qualifying terms or conditions shall be specified in the notice and consent form pursuant to section 36-447.54. END_STATUTE

START_STATUTE36-447.54. Notice and consent form

A. The department shall prescribe the notice and consent form that must be completed by the resident or the resident's authorized representative pursuant to this article and shall include adequate space on the form for the resident or the resident's authorized representative to outline choices regarding all of the following:

1. The resident's or the resident's authorized representative's intent to conduct electronic monitoring and the intended start date.

2. The type, function and intended purpose of the electronic monitoring device to be used.

3. Any installation specifications, such as the planned mounting of a device to a wall or ceiling.

4. The resident's or the resident's authorized representative's chosen terms and conditions for the use of the electronic monitoring device, including:

(a) whether to include or exclude audio recording.

(b) whether to include or exclude video recording.

(d) when to Turn the electronic monitoring device on or off or block or unblock the video recording component of the electronic monitoring device for the duration of an examination or procedure by a health care professional, including how the electronic monitoring device will be turned on or off and turned back on or off and by whom.

(e) when to Turn the electronic monitoring device on or off or block or unblock the video recording component of the electronic monitoring device while dressing or bathing is performed, including how the electronic monitoring device will be turned on or off and turned back on or off and by whom.

(f) when to turn the electronic monitoring device on or off for the duration of a visit with a spiritual adviser, ombudsman, attorney, financial planner, intimate partner or other visitor, including how the electronic monitoring device will be turned on or off and turned back on or off and by whom.

(g) Any other condition or restriction elected by the resident or authorized representative regarding the use of an electronic monitoring device.

5. Whether the resident's or authorized representative's planned electronic monitoring requires roommate consent pursuant to section 36-447.55.

6. A description of who may be able to hear or view the recordings in real time or on demand.

7. A description of who may be able to temporarily disable, obscure or otherwise comply with the terms and conditions described in paragraph 4 of this subsection.

8. A statement of how the recordings may be used and with whom the recording may be shared.

9. The resident's signed consent to electronic monitoring or the signature of the resident's authorized representative, if applicable. If a person other than the resident signs the consent form, that person shall indicate the source of authority allowing the person's signature and shall attest on the form that the resident was asked if the resident wants electronic monitoring to be conducted and the resident did not affirmatively object.

10. If the electronic monitoring requires roommate consent pursuant to section 36-447.55, the signed consent of the resident's roommate or the roommate's authorized representative, if applicable. If a roommate's authorized representative signs the consent form, that person shall indicate the source of authority allowing the person's signature and shall attest on the form that the roommate was asked if the roommate agrees to the electronic monitoring to be conducted as proposed by the resident and the roommate did not affirmatively object.

11. A signature and date box for documenting the resident's, resident's authorized representative's, roommate's or roommate's authorized representative's signature and consent.

B. The department shall issue the required notice and consent form required in this article not later than sixty days after the effective date of this section. If the department has not issued the form by that date, a resident may use a form that substantially complies with this article until the department-prescribed form is available. This section does not invalidate a notification and consent form that was used before the department circulates a department-prescribed form solely due to the form not being the form prescribed by the department. END_STATUTE

START_STATUTE36-447.55. Roommate consent requirement; refusal to consent; accommodations; withdrawal of consent

A. Before implementing electronic monitoring, a resident or resident's authorized representative shall obtain the written consent on the notice and consent form of any other resident residing in the shared room or shared private living unit. The resident or resident's authorized representative shall describe the form, format and scope of electronic monitoring to which the roommate or roommate's authorized representative agrees, including the specifications prescribed in section 36-447.54.

b. the consent of A roommate or the roommate's authorized representative under this section authorizes the resident's use of any electronic monitoring obtained under this article.

c. This article does not prevent two roommates from jointly notifying the facility of their joint plan to use electronic monitoring.

d. Any resident who is conducting electronic monitoring that requires roommate consent and who has a new roommate shall Immediately remove or disable an electronic monitoring device when the new roommate moves into a shared room or shared private living unit, unless or until the resident obtains the written consent of the roommate or the roommate's authorized representative as required by this section. On obtaining the new roommate's signed notice and consent form and submitting the form to the facility, the resident may resume electronic monitoring.

e. If a resident who is residing in a shared room or shared living unit has a roommate who refuses to consent to the use of the electronic monitoring device and the parties cannot agree to a modification of the resident's desired electronic monitoring, the facility shall make a reasonable attempt to accommodate the resident who wants to conduct electronic monitoring. A facility meets the requirement to reasonably attempt to accommodate a resident or a resident's authorized representative who wants to conduct electronic monitoring pursuant to this subsection if the facility offers to move the resident at the resident's expense to another shared room or shared living unit that is available at the time of the request. If a resident chooses to reside in a private room or private living unit in a facility in order to accommodate the use of an electronic monitoring device, the resident shall pay the facility's private room rate. The facility is not required to provide a private room, a single-bed room or a private living unit to a resident who is unable or unwilling to pay.

f. a roommate or the roommate's authorized representative may withdraw consent to electronic monitoring at any time. The withdrawal of consent shall be documented on the original notice and consent form. The resident or the resident's authorized representative shall immediately remove or disable the electronic monitoring device when consent is withdrawn by a roommate or the roommate's authorized representative, and the facility shall make a reasonable attempt to accommodate the resident or resident's representative who wants to continue to conduct electronic monitoring pursuant to this section. END_STATUTE

START_STATUTE36-447.56. Facilities; signage; requirements

A. A facility where electronic monitoring is occurring shall post a sign at each facility entrance that states: "Electronic monitoring devices, including security cameras and audio devices, may be present to record persons and activities." The sign shall be in large, clearly legible type and font. The facility shall bear the costs associated with installing and maintaining the sign required by this subsection.

B. A resident who conducts authorized electronic monitoring or the resident's authorized representative may post and maintain a notice at the entrance to the resident's room stating that the room is being monitored by an electronic monitoring device. END_STATUTE

START_STATUTE36-447.57. Electronic monitoring devices; responsibility for installing and maintaining; accommodations; interference or tampering prohibited

A. A resident or the resident's authorized representative who chooses to conduct electronic monitoring shall do so at the resident's own expense, including the purchase, installation, maintenance and removal costs. The resident or authorized representative is solely responsible for:

1. Choosing the electronic monitoring device, subject to the limits prescribed in this section.

2. paying The cost of the electronic monitoring device and the cost of installing, maintaining and removing the electronic monitoring device, if applicable, other than the cost of electricity used to power the electronic monitoring device. After removing the electronic monitoring device, the resident or the resident's authorized representative shall restore the facility's property to its condition before the electronic monitoring device was installed.

B. An electronic monitoring device chosen by a resident or the resident's authorized representative must Be capable of being temporarily disabled or turned on and off by the resident or authorized representative consistent with the resident’s choices relating to activation and deactivation as outlined in the notice and consent form. If the electronic monitoring device communicates using video or other visual transmission the electronic monitoring device, to the greatest extent practicable, must be installed:

1. With a fixed viewpoint of the living quarters.

2. In a manner that avoids capturing images of activities such as bathing, dressing and toileting.

3. In a conspicuously visible location in the room.

C. A facility shall make a reasonable attempt to accommodate the resident's electronic monitoring installation needs, unless doing so would place an undue burden on the facility. A facility has the burden of proving that the requested accommodation is not reasonable. Accommodations include:

1. Providing a reasonably secure place to mount the device.

2. Providing access to power sources for the device.

3. Allowing access to the facility's public-use internet or wi-fi systems when available for other public uses.

D. A person other than the resident, the resident's authorized representative or an individual expressly authorized by the resident or resident's authorized representative may not:

1. Obstruct, tamper with or destroy the electronic monitoring device or any recording made by the electronic monitoring device.

2. View or listen to any image or sound that is displayed, broadcast or recorded by the electronic monitoring device.

E. A person may not knowingly touch, hamper, obstruct, tamper with or destroy an electronic monitoring device placed in a resident's room or private living unit without the permission of the resident or resident's authorized representative.

F. It is not a violation of this section 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 resident's authorized representative, consistent with the resident's notice and consent form.

G. A facility may not interfere with the right of a resident to use an electronic monitoring device and may not require a resident to submit a request for approval. END_STATUTE

START_STATUTE36-447.58. Authority to access recorded images or sounds; confidentiality; admissibility as evidence

A. Any recording obtained as the result of authorized electronic monitoring pursuant to this article is considered the personal property of the resident who installed the electronic monitoring device.

B. Except as otherwise described in this section, a person, facility or facility representative may not access any video or audio recording created through authorized electronic monitoring without the written consent of the resident or the resident's authorized representative. The following persons may view or listen to the images or sounds that are displayed, broadcast or recorded by an electronic monitoring device installed and used pursuant to this article or temporarily disable or turn off the device:

1. Anyone to whom the resident or authorized representative grants permission.

2. A representative of a law enforcement agency who is conducting an investigation.

3. A representative of the department of health services or the department of economic security, division of adult protective services, who is conducting an investigation.

4. The state long-term care ombudsman, with the permission of the resident or authorized representative.

5. An attorney who is representing the resident or a roommate of the resident and who acts within the scope of that representation.

C. An employee of the facility or an employee of a contractor providing services at the facility who is the subject of proposed disciplinary action based on images, video or sound obtained by the resident's electronic monitoring may be given access to that material for purposes of defending against the proposed action, consistent with the rules of evidence and procedure in that jurisdiction, if applicable. Any person, whether an employee of the facility or an employee of a contractor agency, who views, hears, obtains or receives a recording or a copy of the recording of any material obtained through electronic monitoring shall treat the material recording or copy confidentially and may not further disseminate it to any other person except as required by law. Any copy of the recording shall be returned to the facility or the resident who provided the copy when it is no longer needed for purposes of defending against a proposed action.

D. Except as prohibited by any other state or federal law, a recording or copy of a recording made as provided in this article may be disseminated only by the resident or the resident's authorized representative or by any recipient of the record for the purpose of addressing health, safety or welfare concerns of one or more residents.

E. The resident or resident's authorized representative shall provide a copy of any video or audio recording to any authorized party involved in a civil, criminal or administrative proceeding on reasonable request by a party of any proceeding related to or arising out of health, safety or welfare concerns of one or more residents that is recorded, discovered or captured in the electronic monitoring video or audio made during the time period that the conduct at issue in the proceeding allegedly occurred.

F. Subject to applicable rules of evidence and procedure, any video or audio recording created through electronic monitoring under this section may be admitted into evidence in a civil, criminal or administrative proceeding. END_STATUTE

START_STATUTE36-447.59. Facilities; resident protections

A. A facility may not:

1. Remove a current resident or refuse to admit a potential resident or otherwise discriminate or retaliate against a resident or potential resident because of the resident's or potential resident's decision to conduct electronic monitoring of the resident's room.

2. Retaliate or discriminate against any resident for consenting or refusing to consent to electronic monitoring.

3. Influence or attempt to influence any roommate to object or withdraw consent for the purpose of obfuscating a resident's choice to have electronic monitoring or move or attempt to move into a resident's room a new roommate who the facility knows will or is likely to object to monitoring for the purpose of obfuscating the resident's choice to have electronic monitoring.

B. A contract that prohibits, limits or otherwise modifies the rights and obligations under this article is contrary to public policy and is void and unenforceable. END_STATUTE

START_STATUTE36-447.60. Facilities; employees; protections; policies

A. A facility may not be held liable for any breach of privacy or data security related to any electronic monitoring device installed by a resident or the resident's authorized representative.

B. A facility is not responsible for maintaining, repairing or replacing any electronic monitoring device installed by a resident or the resident's authorized representatives unless the damage is caused by facility staff.

C. A facility may not be held responsible for any electronic monitoring device that does not work during a power outage.

D. each facility shall have a policy or procedure to notify employees that electronic monitoring may be taking place in a resident's private living space. each facility shall have a policy or procedure regarding employees who refuse to enter the living quarters of a resident that contains an electronic monitoring device installed pursuant to this article. END_STATUTE

START_STATUTE36-447.61. Civil penalty

The department may assess a civil penalty pursuant to section 36-431.01 against a facility that violates this article. END_STATUTE

START_STATUTE36-447.62. Rulemaking

The department shall adopt any rules necessary to implement this article. END_STATUTE