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ARIZONA HOUSE OF REPRESENTATIVESFifty-seventh Legislature First Regular Session |
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HB 2784: electronic monitoring; health care facilities
Sponsor: Representative Nguyen, LD 1
Committee on Health & Human Services
Overview
Establishes a resident's or the resident's authorized representative's (representative) right to conduct electronic monitoring. Outlines notice requirements for conducting electronic monitoring. Establishes roommate consent requirements, facility and signage requirements, responsibilities for installing and maintaining electronic monitoring devices and authority to access recorded images or sounds obtained through electronic monitoring.
History
Assisted living facilities are residential care institutions, including an adult foster care home, that provides or contracts to provide supervisory care services, personal care services or directed care services on a continuous basis. Nursing care institutions are health care institutions that provide inpatient beds or resident beds and nursing services to persons who need continuous nursing services but who do not require hospital care or direct daily care from a physician (A.R.S. § 36-401).
Under current law, the Department of Health Services (DHS) is responsible for the licensure and regulation of Arizona health care institutions. These institutions are defined as every place, institution, building or agency, whether organized for profit or not, that provides facilities with medical, nursing, behavioral health, health screening, supervisory care, personal care, directed care or any other health-related services, including home health agencies, outdoor behavioral health care programs and hospice service agencies (A.R.S. § 36-401).
Provisions
Right to Electronic Monitoring
1. Declares that a resident or resident's 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. (Sec. 1)
Notice of Intent to Conduct Electronic Monitoring
2. Requires a resident in a nursing care institution or assisted living facility or the resident's representative to 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 prescribed by DHS. (Sec. 1)
3. States the notice and consent form serves to:
a) inform the facility that the resident or resident's representative intends to conduct electronic monitoring and consents to the monitoring; and
b) describe how the resident or resident's representative intends to conduct the monitoring. (Sec. 1)
4. Requires the notice and consent form to be provided to the facility before the resident or resident's representative installs an electronic monitoring device and begins electronic monitoring. (Sec. 1)
5. Allows a resident's representative to consent on behalf of the resident if both of the following apply:
a) the resident's representative has fully explained the proposed electronic monitoring to the resident, including the resident's right to object to the electronic monitoring; and
b) the resident has not affirmatively objected to the proposed form, format and scope of electronic monitoring. (Sec. 1)
6. Allows a resident's representative to consent on behalf of a resident who does not have the ability to consent to the electronic monitoring if all of the following apply:
a) the resident's representative has the authority to consent;
b) the resident's representative has fully explained the proposed electronic monitoring to the resident, including their right to object to the electronic monitoring;
c) the resident has not affirmatively objected to the proposed form, format and scope of electronic monitoring; and
d) 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. (Sec. 1)
7. Allows a resident or the resident's representative to consent to electronic monitoring with any limiting, qualifying terms or conditions that the resident or resident's representative chooses regarding the manner in which the electronic monitoring is conducted. (Sec. 1)
8. Requires the limiting, qualifying terms or conditions to be specified in the DHS notice and consent form. (Sec. 1)
DHS Notice and Consent Form
9. Requires DHS to prescribe the notice and consent form to be completed by the resident or the resident's representative. (Sec. 1)
10. Requires the notice and consent form to include adequate space on the form for the resident or resident's representative to outline choices regarding:
a) the resident's or resident's representative's intent to conduct electronic monitoring and the intended start date;
b) the type, function and intended purpose of the electronic monitoring device to be used;
c) any installation specifications, such as the planned mounting of a device to a wall or ceiling;
d) whether the resident's or resident's representative's planned electronic monitoring requires roommate consent;
e) a description of who may be able to hear or view the recordings in real time or on demand;
f) a description of who may be able to temporarily disable, obscure or otherwise comply with the described terms and conditions;
g) a statement of how the recordings maybe used and with whom the recording may be shared;
h) the resident's signed consent to electronic monitoring or the signature of the resident's representative, if applicable;
i) the signed consent of the resident's roommate, roommates or their authorized representatives, if applicable; and
j) a signature and date box for documenting the resident's, resident's representative, roommate's or roommate's representative's signature and consent. (Sec. 1)
11. Requires the notice and consent form to include the resident's or resident's representative's chosen terms and conditions for the use of the electronic monitoring device, including:
a) whether to include or exclude audio or video recording;
b) whether to include or exclude broadcasting of audio or video;
c) when to turn the electronic monitoring device on or off, 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;
d) when to turn the electronic monitoring device on or off, 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;
e) 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, turned back on or off and by whom; and
f) any other condition or restriction elected by the resident or resident representative's regarding the use of an electronic monitoring device. (Sec. 1)
12. Requires a roommate's representative, if the representative signed the form, to:
a) indicate the source of authority allowing the person's signature; and
b) 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. (Sec. 1)
13. Directs DHS to issue the required notice and consent form no later than 60 days after the effective date of this legislation. (Sec. 1)
14. Allows a resident, if DHS has not issued the form, to use a form that substantially complies with notice and consent form requirements until the DHS-prescribed form is available. (Sec. 1)
15. Clarifies that this does not invalidate a notification and consent form that was used before DHS circulates a prescribed form solely due to the form not being the form made by DHS. (Sec. 1)
Roommate Consent Requirements
16. Requires a resident or resident's representative, before implementing electronic monitoring, to obtain the written consent on the notice and consent form or any other resident residing in the shared room or shared private living unit. (Sec. 1)
17. Directs the resident or resident's representative to describe the form, format and scope of electronic monitoring to which the roommate or roommate's representative agrees, including the specifications prescribed in the DHS notice and consent form. (Sec. 1)
18. Asserts that the consent of a roommate or roommate's representative authorizes the resident's use of any obtained electronic monitoring. (Sec. 1)
19. Clarifies that this does not prevent two roommates from jointly notifying the facility of their joint plan to use electronic monitoring. (Sec. 1)
20. Instructs any resident who is conducting electronic monitoring that requires roommate consent and who has a new roommate to 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 roommate's representatives. (Sec. 1)
21. Allows a resident to resume electronic monitoring on obtaining the new roommate's signed notice and consent form and submitting the form to the facility. (Sec. 1)
22. Requires a facility to make a reasonable attempt to accommodate a resident who wants to conduct electronic monitoring if:
a) the resident resides in a shared room or shared living unit and has a roommate who refuses to consent to the use of the electronic monitoring device; and
b) the parties cannot agree to a modification of the resident's desired electronic monitoring. (Sec. 1)
23. States that a facility meets the requirement to reasonably attempt to accommodate a resident who wants to conduct electronic monitoring 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. (Sec. 1)
24. Requires a resident to pay the facility's private room rate if a resident chooses to reside in a private room or private living unit in a facility to accommodate the use of an electronic monitoring device. (Sec. 1)
25. Specifies that 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. (Sec. 1)
26. Allows a roommate or the roommate's representative to withdraw consent to electronic monitoring at any time. (Sec. 1)
27. Requires the withdrawal of consent to be documented on the original notice and consent form. (Sec. 1)
28. Requires the resident or resident's representative to immediately remove or disable the electronic monitoring device when consent is withdrawn by a roommate or the roommate's representative and the facility to make a reasonable attempt to accommodate the resident or resident's representative who wants to continue to conduct electronic monitoring. (Sec. 1)
Facility Requirements
29. Requires a facility where electronic monitoring is occurring to post a sign at each facility entrance that states: "Electronic monitoring devices, including security cameras and audio services, may be present to record persons and activities." (Sec. 1)
30. Requires the sign to be in large, clearly legible type and font. (Sec. 1)
31. Directs the facility to bear the costs associated with installing and maintaining the required sign. (Sec. 1)
32. Allows a resident who conducts authorized electronic monitoring or the resident's representative to 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. (Sec. 1)
33. Prohibits a facility from removing a current resident or refusing 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. (Sec. 1)
34. Prohibits a facility from retaliating or discriminating against any resident for consenting or refusing to consent to electronic monitoring. (Sec. 1)
35. Prohibits a facility from influencing or attempting 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. (Sec. 1)
36. Declares that a contract that prohibits, limits or otherwise modifies the rights and obligations of the use of electronic monitoring is contrary to public policy and is void and unenforceable. (Sec. 1)
37. Prohibits a facility from being held liable for any breach of privacy or data security related to any electronic monitoring device installed by a resident or resident's representative. (Sec. 1)
38. Specifies that a facility is not responsible for maintaining, repairing or replacing any electronic monitoring device installed by a resident or the resident's representatives unless the damage is caused by facility staff. (Sec. 1)
39. Specifies that a facility may not be held responsible for any electronic monitoring device that does not work during a power outage. (Sec. 1)
40. Requires each facility to have a policy or procedure to notify employees that electronic monitoring may be taking place in a resident's private living space. (Sec. 1)
41. Requires each facility to have a policy or procedure regarding employees who refuse to enter the living quarters of a resident that contains an installed electronic monitoring device. (Sec. 1)
Responsibility for Installing and Maintaining Electronic Monitoring Devices
42. Requires a resident or resident's representative who chooses to conduct electronic monitoring to do so at the resident's own expense, including the purchase, installation, maintenance and removal costs. (Sec. 1)
43. Specifies that the resident or resident's representative is solely responsible for:
a) choosing the electronic monitoring device, subject to the prescribed limits; and
b) 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. (Sec. 1)
44. Requires the resident or resident's representative, after removing the electronic monitoring device, to restore the facility's property to its condition before the electronic monitoring was installed. (Sec. 1)
45. Requires an electronic monitoring device chosen by a resident or resident's representative to be capable of being temporarily disabled or turned on and off by the resident or resident's representative consistent with the resident's choices relating to activation and deactivation as outlined in the notice and consent form. (Sec. 1)
46. Requires an electronic monitoring device that communicates video or other visual transmission to the greatest extent practicable, to be installed:
a) with a fixed viewpoint of the living quarters;
b) in a manner that avoids capturing images of activities such as bathing, dressing and toileting; and
c) in a conspicuously visible location in the room. (Sec. 1)
47. Requires a facility to make a reasonable attempt to accommodate the resident's electronic monitoring installation needs, unless doing so would place an undue burden on the facility. (Sec. 1)
48. Prohibits a person other than the resident, the resident's representative or an individual expressly authorized by the resident or resident's representative from:
a) obstructing, tampering with or destroying the electronic monitoring device or any recording made by the electronic monitoring device; and
b) viewing or listening to any image or sound that is displayed, broadcast or recorded by the electronic monitoring device. (Sec. 1)
49. Designates a facility with the burden of providing that the requested accommodation is not reasonable, which includes:
a) providing a reasonably secure place to mount the device;
b) providing access to power sources for the device; and
c) allowing access to the facility's public-use internet or WI-FI systems when available for other public uses. (Sec. 1)
50. Prohibits a person from knowingly touching, hampering, obstructing, tampering with or destroying an electronic monitoring device placed in a resident's room or private living unit without the permission of the resident or resident's representative. (Sec. 1)
51. Specifies that it is not a violation if a person turns off the electronic monitoring device or blocks the visual recording component of the device at the discretion of the resident or resident's representative, consistent with the resident's notice and consent form. (Sec. 1)
52. Prohibits a facility from interfering with the right of a resident to use an electronic monitoring device and requiring a resident to submit a request for approval. (Sec. 1)
Authority to Access Recorded Images or Sounds
53. Declares any recording obtained as the result of authorized electronic monitoring is considered the personal property of the resident who installed the electronic monitoring device. (Sec. 1)
54. Allows the following persons to view or listen to the images or sounds that are displayed, broadcast or recorded by an electronic monitoring device installed, used or temporarily disabled or turned off:
a) anyone to whom the resident or authorized representative grants permission;
b) a representative of a law enforcement agency who is conducting an investigation;
c) a representative of DHS or the Department of Economic Security, Division of Adult Protective Services, who is conducting an investigation;
d) the state long-term care ombudsman, with the permission of the resident or resident's representative; and
e) an attorney who is representing the resident or a roommate of the resident and who acts within the scope of that representation. (Sec. 1)
55. Prohibits a person, facility or facility representative from accessing any video or audio recording created through authorized electronic monitoring without the written consent of the resident or resident's representative. (Sec. 1)
56. Permits 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 to 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. (Sec. 1)
57. Requires 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 to treat the material recording or copy confidentially and may not further disseminate it to any other person except as required by law. (Sec. 1)
58. Requires any copy of the recording to be returned to the facility or the resident who provided the copy when it is no longer needed for the purposes of depending against a proposed action. (Sec. 1)
59. Allows a recording or copy of a recording made to be disseminated only by the resident, the resident's representative or by any recipient of the record for the purpose of addressing health, safety or welfare concerns of one or more residents, except as prohibited by any other state or federal law. (Sec. 1)
60. Requires the resident or resident's representative to 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 required, discovered or captured in the video or audio made during the time period that the conduct at issue in the proceeding allegedly occurred. (Sec. 1)
61. Allows any video or audio recording created through electronic monitoring to be admitted into evidence in a civil, criminal or administrative proceeding, subject to applicable rules of evidence and procedure. (Sec. 1)
Miscellaneous
62. Permits DHS to assess a civil penalty against a facility that violates the electronic monitoring devices regulations. (Sec. 1)
63. Requires DHS to adopt any rules necessary to implement the electronic monitoring requirements. (Sec. 1)
64. Defines terms. (Sec. 1)
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