Bill Text: NJ A3883 | 2014-2015 | Regular Session | Introduced
Bill Title: Entitles nursing home residents to monitor and record in-room treatment, care, and living conditions using electronic monitoring devices, upon notice to nursing home.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2014-12-04 - Reported out of Assembly Committee, 2nd Reading [A3883 Detail]
Download: New_Jersey-2014-A3883-Introduced.html
Sponsored by:
Assemblyman VINCENT PRIETO
District 32 (Bergen and Hudson)
SYNOPSIS
Entitles nursing home residents to monitor and record in-room treatment, care, and living conditions using electronic monitoring devices, upon notice to nursing home.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning the rights of nursing home residents, and supplementing and amending P.L.1976, c.120.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 2 of P.L.1976, c.120 (C.30:13-2) is amended to read as follows:
2. [For the purposes of this act] As used in P.L.1976, c.120 (C.30:13-1 et seq.) and P.L. , c. (C. ) (pending before the Legislature as this bill):
[a.] "Administrator" means any individual who is charged with the general administration or supervision of a nursing home , whether or not such individual has an ownership interest in such home , and whether or not [his] the individual's function and duties are shared with one or more other individuals.
"Authorized electronic monitoring" means the placement of an electronic monitoring device in the immediate living quarters of a resident, whether in a visible or hidden location, and the use of such device to record or actively monitor the resident's in-room treatment, care, and living conditions, following the submission of requisite notice and consent forms to the nursing home administrator, in accordance with the provisions of section 6 of P.L , c. (C. ) (pending before the Legislature as this bill).
"Authorized representative" means a person who is authorized to make decisions on behalf of, and in the best interests of, a resident when the resident lacks the appropriate capacity to make his or her own decisions, and includes a guardian, or any person who is designated, in writing, as the resident's surrogate decision maker, pursuant to the terms of a valid legal instrument.
"Department" means the Department of Health.
"Electronic monitoring device" means a video surveillance camera, audio recording device, or other electronic device that is capable of being used to record or monitor events taking place in a resident's room.
[b.] "Guardian" means a person, appointed by a court of competent jurisdiction, who [shall have] has the right to manage the financial affairs and protect the rights of any nursing home resident who has been declared an incapacitated person. In no case shall the guardian of a nursing home resident be affiliated with a nursing home, its operations, its staff personnel , or a nursing home administrator in any manner whatsoever.
[c.] "Nursing home" means any institution, whether operated for profit or not, which maintains and operates facilities for the
extended medical and nursing treatment or care [for] of two or more nonrelated individuals who are suffering from acute or chronic illness or injury, or are crippled, convalescent , or infirm and are in need of such treatment or care on a continuing basis. Infirm is construed to mean that an individual is in need of assistance in bathing, dressing , or some type of supervision.
[d.] "Reasonable hour" means any time between the hours of 8 a.m. and 8 p.m. daily.
[e.] "Resident" means any individual receiving extended medical or nursing treatment or care at a nursing home.
(cf: P.L.1997, c.379, s.8)
2. Section 3 of P.L.1976, c.120 (C.30:13-3) is amended to read as follows:
3. Every nursing home shall have the responsibility [for] to:
a. [Maintaining] Maintain a complete record of all funds, personal property and possessions of a nursing home resident , from any source whatsoever, which have been deposited for safekeeping with the nursing home for use by the resident. This record shall contain a listing of all deposits and withdrawals transacted, and these shall be substantiated by receipts given to the resident or [his] guardian thereof. A nursing home shall provide to each resident or [his] guardian thereof a quarterly statement which [shall account] accounts for all of [such] the resident's property on deposit at the beginning of the accounting period, as well as all deposits and withdrawals transacted during the period, and the property on deposit at the end of the period. The resident or [his] guardian thereof shall be allowed daily access to [his] the resident's property on deposit , at a reasonable hour, during specific periods established by the nursing home for such transactions [at a reasonable hour]. A nursing home may, [at its own] in the discretion of the administrator, place a limitation [as to] on the dollar value and size of any personal property accepted for safekeeping.
b. [Providing] Provide for the spiritual needs and wants of residents by notifying, at a resident's request, a [clergyman] clergy person of the resident's choice and allowing unlimited visits by such [clergyman] clergy person. Arrangements shall be made, at the resident's expense, for attendance at religious services of [his] the resident's choice when requested. No religious beliefs or practices, or any attendance at religious services, shall be imposed upon any resident.
c. [Admitting] Admit only that number of residents for which it is reasonably [believes it can safely and adequately provide] capable of providing safe and adequate nursing care. Any applicant for admission to a nursing home who is denied [such] admission shall be given the reason for such denial , in writing.
d. [Ensuring] Ensure that [an applicant] existing residents and applicants for admission [or a resident is] are treated without discrimination as to age, race, religion, sex , or national origin. However, the participation of a resident in recreational activities, meals , or other social functions may be restricted or prohibited if recommended by [a] the resident's attending physician , in writing , and consented to by the resident.
e. [Ensuring] Ensure that no resident [shall be] is subjected to physical restraints , except [upon] pursuant to a written [orders] order of an attending physician calling for the use of physical restraints for a specific period of time when necessary to protect [such] the resident from injury to himself or others. Restraints shall not be employed for purposes of punishment or the convenience of any nursing home staff personnel. The confinement of a resident in a locked room shall be prohibited.
f. [Ensuring] Ensure that drugs and other medications [shall] are not [be] employed for purposes of punishment, for the convenience of any nursing home staff personnel , or in such quantities [so] as to interfere with a resident's rehabilitation or [his] normal living activities.
g. [Permitting] Permit citizens, with the consent of the resident being visited, and legal services programs, employees of the Office of the Public Defender , and employees and volunteers of the Office of the Ombudsman for the Institutionalized Elderly, whose purposes include rendering assistance without charge to nursing home residents, to have full and free access to the nursing home in order to visit with , and make personal, social , and legal services available to , all residents , and to assist and advise residents in the assertion of their rights with respect to the nursing home, or with respect to involved governmental agencies [and] or the judicial system.
(1) Such access shall be permitted by the nursing home at a reasonable hour.
(2) Such access shall not substantially disrupt the provision of nursing and other care to residents in the nursing home.
(3) [All persons] Any person entering a nursing home pursuant to this [section] subsection shall promptly notify the person in charge of their presence [. They] in the nursing home, and shall, upon request, produce identification to substantiate [their] the person's identity. No such person shall enter the immediate living area of any resident without first identifying himself and then receiving permission from the resident to enter. The rights of other residents present in the room shall be respected. A resident shall have the right to terminate a visit by a person having access to his living area pursuant to this [section] subsection at any time. Any communication whatsoever between a resident and such person shall be confidential in nature, unless the resident authorizes the release of such communication in writing.
h. [Ensuring] Ensure compliance with all applicable State and federal statutes and rules and regulations.
i. [Ensuring] Ensure that every resident, prior to or at the time of admission and during his stay, [shall receive] receives a written statement of the services provided by the nursing home, including those required to be offered by the nursing home on an as-needed basis, and of related charges, including any charges for services not covered under Title XVIII and Title XIX of the Social Security Act, as amended, or not covered by the nursing home's basic per diem rate. This statement shall further include the payment, fee, deposit , and refund policy of the nursing home.
j. [Ensuring] Ensure that a prospective resident or the resident's family or guardian receives a copy of the contract or agreement between the nursing home and the resident , either prior to , or upon , the resident's admission.
k. Ensure that each new and existing resident, and the resident's family or authorized representative, receives a copy of the written notices required by section 7 of P.L.1976, c.120 (C.30:13-7).
(cf: P.L.2010, c.34, s.10)
3. Section 5 of P.L.1976, c.120 (C.30:13-5) is amended to read as follows:
5. Every resident of a nursing home shall:
a. Have the right to manage [his] the resident's own financial affairs unless [he] the resident or [his] guardian thereof authorizes the administrator of the nursing home to manage [such] the resident's financial affairs. Such authorization shall be in writing and shall be attested by a witness [that] who is unconnected , in any manner whatsoever, with the nursing home, its operations, its staff personnel , and [the] its administrator [thereof, in any manner whatsoever].
b. Have the right to wear [his] the resident's own clothing. If clothing is provided to the resident by the nursing home, it shall be of a proper fit.
c. Have the right to retain and use [his] the resident's personal property in [his] the resident's immediate living quarters, unless the nursing home can demonstrate that it is unsafe or impractical to do so.
d. Have the right to receive and send unopened correspondence and, upon request, to obtain assistance in the reading and writing of such correspondence.
e. Have the right to unaccompanied access to a telephone at a reasonable hour, including the right to a private phone at the resident's expense.
f. Have the right to privacy.
g. Have the right to retain the services of [his] the resident's own personal physician, either at [his] the resident's own expense or under a health care plan. Every resident shall have the right to obtain , from [his] the resident's own physician , or from the physician attached to the nursing home , complete and current information concerning [his] the resident's medical diagnosis, treatment , and prognosis in terms and language the resident can reasonably be expected to understand, except [when] in those cases where the physician deems it medically inadvisable to give such information to the resident and records the reason for such decision in the resident's medical record. In such a case, the physician shall inform the resident's next-of-kin or guardian. The resident shall be afforded the opportunity to participate in the planning of [his] the resident's total care and medical treatment to the extent that [his] the resident's condition permits. A resident shall have the right to refuse treatment. A resident shall have the right to refuse to participate in experimental research, [but] and if [he] the resident chooses to participate, [his] the resident's informed written consent [must] shall be obtained. [Every] Each resident shall have the right to confidentiality and privacy concerning [his] the resident's medical condition and treatment, except that records concerning [said] the resident's medical condition and treatment may be disclosed to another nursing home or health care facility [on] , upon transfer of the resident thereto, or as required by law or third-party payment contracts.
h. Have the right to unrestricted communication, including personal visitation with any persons of [his] the resident's choice, at any reasonable hour.
i. Have the right to present grievances , on behalf of [himself] the resident or others , to the nursing home administrator, State governmental agencies , or other persons without threat of discharge or reprisal in any form or manner whatsoever. The administrator shall provide all residents or their guardians with the name, address, and telephone number of the appropriate State governmental office where complaints may be lodged. Such telephone number shall be posted in a conspicuous place near every public telephone in the nursing home.
j. Have the right to a safe and decent living environment and considerate and respectful care that recognizes the dignity and individuality of the resident, including the right to expect and receive appropriate assessment, management , and treatment of pain as an integral component of that person's care , consistent with sound nursing and medical practices.
k. Have the right to refuse to perform services for the nursing home that are not included , for therapeutic purposes , in [his] the plan of care [as] recorded in [his] the resident's medical record by [his] the resident's physician.
l. Have the right to reasonable opportunity for interaction with members of the opposite sex. If married, the resident shall enjoy reasonable privacy in visits by [his] the resident's spouse , and, if both are residents of the nursing home, they shall be afforded the opportunity, where feasible, to share a room, unless medically inadvisable.
m. Not be deprived of any constitutional, civil , or legal right solely by reason of admission to a nursing home.
n. Have the right to receive, upon request, food that meets the resident's religious dietary requirements, provided that the request is made prior to or upon admission to the nursing home, and if the resident is not a Medicaid recipient, that the resident agrees to assume any additional cost incurred by the nursing home in order to meet those dietary requirements. If the resident is a Medicaid recipient upon admission, or becomes eligible for Medicaid after admission, the nursing home shall include the cost of the religious dietary requirements in its Medicaid cost report for consideration under applicable reimbursement processes. As used in this section, "Medicaid" means the Medicaid program established pursuant to P.L.1968, c.413 (C.30:4D-1 et seq.).
o. Have the right to actively monitor and record the in-room treatment, care, and living conditions of the resident through the use of authorized electronic monitoring, as provided by section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill), or to have the resident's authorized representative engage in such authorized electronic monitoring, on the resident's behalf, without the threat of discharge or reprisal.
(cf: P.L.2008, c.43, s.1).
4. Section 6 of P.L.1976, c.120 (C.30:13-6) is amended to read as follows:
6. a. A nursing home resident may arrange for the resident's own discharge from a nursing home upon presentation of a written release and, if the resident is adjudicated incapacitated, upon the written consent of the resident's guardian. In this case, the nursing home is free from any responsibility for the resident upon the resident's release. When a nursing home wishes to transfer or discharge , on a nonemergency basis , a resident who has mental capacity or a resident who is adjudicated incapacitated, the nursing home may do so for medical reasons [or] , for the person's welfare , or for [that] the welfare of other residents , upon receiving a written order from the attending physician, or may do so for nonpayment, except as prohibited by Title XVIII or Title XIX of the Social Security Act, as amended [, and the] . Any such action shall be recorded in the resident's medical record. When a nursing home requests the transfer or discharge of a resident, on a nonemergency basis [of a resident is requested by a nursing home], the resident or, in the case of a resident who is adjudicated incapacitated, the guardian, shall be given at least 30 days' advance notice of the transfer or discharge.
b. The active engagement in authorized electronic monitoring, as provided by section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill), or the potential for active engagement in such activity, shall not constitute a reasonable basis for the discharge, removal, or transfer of a resident from a nursing home, or for the denial of a prospective resident's admission thereto. No resident shall be discharged, removed, or transferred from, and no prospective resident shall be denied admission to, a nursing home on the basis that the prospective or existing resident, or the resident's authorized representative, has submitted a notice of intent to engage in authorized electronic monitoring, or has actively engaged, will actively engage, or may actively engage in authorized electronic monitoring, in accordance with the provisions of section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill).
(cf: P.L.2013, c.103, s.103)
5. Section 7 of P.L.1976, c.120 (C.30:13-7) is amended to read as follows:
7. a. The administrator of a nursing home shall ensure that a written notice of the rights, obligations , and prohibitions set forth in [this act be given every] P.L.1976, c.120 (C.30:13-1 et seq.) is provided: (1) to each new resident [or his guardian] , and the resident's family or authorized representative, upon admittance to the nursing home ; and (2) to each individual who, as of the effective date of P.L.1976, c.120 (C.30:13-1 et seq.), is already in residence [or to his guardian] at the nursing home, and the family or authorized representative thereof. The administrator shall also post this notice in a conspicuous, public place in the nursing home.
b. The administrator of a nursing home shall ensure that a separate written notice, which describes the rights, obligations, responsibilities, and pre-conditions associated with authorized electronic monitoring, is provided: (1) to each new resident, and the resident's family or authorized representative, upon admittance to the nursing home; and (2) within 45 days after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), to each individual who is in residence at the nursing home as of the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), and the family or authorized representative thereof.
c. The written notice required by subsection b. of this section shall include the following:
(1) a statement specifying that the resident, or the resident's authorized representative, as appropriate, may engage in authorized electronic monitoring following the submission of the requisite notice and consent forms to the nursing home administrator, in accordance with the provisions of section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill);
(2) a statement specifying that the resident, or the resident's authorized representative, as appropriate, may submit a complaint to the Department of Human Services if the nursing home or administrator thereof: (a) refuses to permit the use of authorized electronic monitoring upon receipt of a completed notice and consent packet, (b) fails to make reasonable physical accommodations for such monitoring, (c) attempts to transfer, discharge, or remove the resident solely on the basis that such monitoring is or may be taking place, or (d) takes any other disciplinary action against the resident on the basis that such monitoring is or may be taking place;
(3) an outline of the notice and consent procedures that must be followed prior to the commencement of authorized electronic monitoring;
(4) a statement specifying that any person who places or uses an electronic monitoring device in the room of a resident, or who discloses the images or sounds acquired by such device, may be held civilly liable for any unlawful violation of another person's privacy rights, which results from such placement, use, or disclosure;
(5) a statement specifying that the nursing home will be released from any civil liability for any privacy or other violations stemming either from the placement or use of any electronic monitoring device in a resident's room, or from the disclosure of images or sounds acquired by such device;
(6) a statement indicating that a resident, or authorized representative thereof, who consents to the use of, or actively engages in, authorized electronic monitoring will be deemed to have waived the resident's privacy rights in association with the images and sounds that may be acquired by the electronic monitoring device;
(7) a statement indicating that a resident's roommate will be deemed to have waived the roommate's privacy rights in association with images and sounds that may be acquired by an electronic monitoring device only if the roommate has formally consented to the use of authorized electronic monitoring therein, and only to the extent that the use of the device, and the disclosure of images and sound acquired by the device, is done in compliance with the limitations or conditions established by the roommate on the consent form signed thereby; and
(8) any other information the department deems to be appropriate.
(cf: P.L.1976, c.120, s.7)
6. (New section) a. A nursing home resident, or authorized representative thereof, may actively monitor and record the resident's in-room treatment, care, and living conditions, by engaging in authorized electronic monitoring in accordance with the provisions of this section.
b. Before engaging in authorized electronic monitoring, the resident, or authorized representative thereof, as appropriate, shall provide the nursing home administrator with a notice of intent to engage in such activity, and proofs of consent therefor, in accordance with the provisions of subsection c. of this section, on forms prescribed by the department.
(1) If a resident possesses the appropriate legal and mental capacity to consent to authorized electronic monitoring, only the resident may submit a notice and consent packet under this subsection.
(2) If the resident lacks the appropriate legal or mental capacity to consent to authorized electronic monitoring, only the resident's authorized representative may submit a notice and consent packet under this subsection.
c. The notice and consent packet, which is submitted to the nursing home administrator under subsection b. of this section, shall:
(1) indicate, through signature of the resident or the resident's authorized representative on the notice of intent, that the resident consents to the use of authorized electronic monitoring, as described in the notice;
(2) expressly release the nursing home from any civil liability for a violation of the resident's privacy rights in association with the placement or use of the electronic monitoring device in the resident's room, or the disclosure of images or sounds acquired thereby;
(3) identify the type of electronic recording device that will be used to conduct the authorized electronic monitoring;
(4) when the electronic monitoring device is a video surveillance camera, identify whether the camera should always be unobstructed, should be obstructed in specified circumstances to protect the dignity of the resident, and, if appropriate, the particular circumstances during which camera obstruction should occur; and
(5) include separate consent forms, signed, respectively, by each of the resident's roommates, if any, or by the authorized representatives thereof, as appropriate, providing express consent for the placement of an electronic monitoring device in the resident's room and the use of that device to record and actively monitor the resident's in-room care, treatment, and living conditions.
(a) If a resident's roommate has the legal and mental capacity to consent to authorized electronic monitoring, only the roommate may sign a consent form for purposes of this paragraph.
(b) If the resident's roommate lacks the legal or mental capacity to consent to authorized electronic monitoring, only the roommate's authorized representative may sign a consent form for purposes of this paragraph.
d. The consent form prescribed by the department for the purposes of obtaining roommate consent for authorized electronic monitoring, as provided by paragraph (5) of subsection c. of this section, shall specify that, by granting consent for authorized electronic monitoring, the roommate waives their privacy rights in association with the images or sounds acquired by the device, to the extent specified in the consent form, and agrees to release the nursing home from any civil liability for a violation of the roommate's privacy rights, which may stem from the use of the electronic monitoring device or the disclosure of images and sounds acquired thereby. The consent form shall indicate that the roommate's grant of consent, and the associated waiver of privacy rights, may be either absolute or conditional in nature. In particular, a consenting roommate may condition their consent on: (1) the use of an audio electronic monitoring device being limited or prohibited; or (2) any video surveillance camera being pointed away from the consenting roommate, either at all times during its operation, or at certain specified times. The department may establish any other requirement for roommate consent, or include any other information on the consent form, which is deemed thereby to be necessary or appropriate.
e. Authorized electronic monitoring pursuant to this section:
(1) shall not commence until the nursing home confirms its receipt of a complete notice and consent packet, which includes a signed notice of intent, rights waiver, release from liability, and any necessary consent forms required by this section. If a notice and consent packet is incomplete, the nursing home shall identify the deficiencies therein and return the packet materials to the resident, or the resident's authorized representative, as appropriate, for correction and resubmission;
(2) shall be undertaken in accordance with any limitation placed thereon as a condition of the consent granted by the resident's roommates, pursuant to subsection d. of this section; and
(3) if ongoing, shall immediately cease upon a new resident's admission to the room, and shall not be resumed until such time as the new resident has provided consent therefor, in accordance with this section.
f. If a resident's roommate refuses to provide consent for authorized electronic monitoring, as required by subsection d. of this section, the nursing home, upon receipt of a request from the resident or the authorized representative thereof, shall facilitate the transfer of the resident to a different room, within a reasonable period of time, in order to accommodate the resident's use of authorized electronic monitoring.
g. (1) An electronic monitoring device shall be installed in a manner that is safe for all residents, employees, or visitors who may be moving about the resident's room.
(2) The nursing home shall make reasonable physical accommodations to facilitate a resident's use of an authorized electronic monitoring device, including: (a) providing a reasonably secure place to mount the electronic monitoring device; and (b) providing access to power sources sufficient to operate the electronic monitoring device.
h. A resident or authorized representative thereof who intends to engage in authorized electronic monitoring, pursuant to this section, shall be responsible for paying all costs associated with the installation and maintenance of the electronic monitoring device, but shall not be responsible to pay the costs of electricity, which costs shall be borne by the nursing home.
i. (1) The nursing home administrator shall prominently post a sign, at each of the nursing home's general entry points, which provides notice to visitors, nursing home personnel, and other persons entering the nursing home, that authorized electronic monitoring is or may be taking place within the individual rooms of nursing home residents.
(2) In addition to the signage required by paragraph (1) of this subsection, a resident, or authorized representative thereof, who engages in authorized electronic monitoring may elect, but shall not be required, to post a sign immediately outside the door of the resident's room, indicating that authorized electronic monitoring is taking place therein.
j. (1) Subject to the applicable rules of evidence and judicial procedure, and subject to the requirements of paragraph (2) of this subsection, a video or audio recording that is created through the use of authorized electronic monitoring shall be admissible in evidence in any civil or criminal court action or administrative proceeding.
(2) A court or administrative agency shall refuse to admit into evidence, and shall not authorize or take any action on the basis of, any video or audio recording created through the use of authorized electronic monitoring unless: (a) the recording, if a video, shows the time and date that the recorded events occurred; (b) the contents of the recording have not been edited or artificially enhanced; and (c) if applicable, any transfer of the contents of the recording from its original format to another technological format has been accomplished by a qualified professional, and the contents of the recording were not altered during transfer.
k. (1) Any nursing home or administrator who violates the provisions of this section shall be subject to an appropriate administrative penalty, as determined by the department.
(2) Any person who intentionally hampers, obstructs, tampers with, or destroys an electronic monitoring device, which has been installed in a resident's room for the purposes of authorized electronic monitoring in accordance with the provisions of this section, shall be guilty of a disorderly persons offense. It is a defense to prosecution under this paragraph that the person took action with the effective consent of the resident on whose behalf the electronic monitoring device was installed, or, where appropriate, with the effective consent of the resident's authorized representative.
(3) The penalties authorized by this subsection are in addition to any other available remedies provided by law or regulation.
l. The department shall adopt rules and regulations, pursuant to the "Administrative Procedure Act," P.L.1969, c.410 (C.52:14B-1 et seq.), to implement the provisions of this section. At a minimum, those rules and regulations shall: (1) prescribe document retention requirements in relation to notices of intent and consent forms that are submitted under this section; (2) identify appropriate administrative penalties for nursing homes and administrators who violate the provisions of this section; and (3) establish guidelines for the safe placement and installation of electronic monitoring devices.
7. This act shall take effect on the 60th day after the date of enactment, except that the Commissioner of Health may take any anticipatory administrative action in advance thereof as shall be necessary for the implementation of this act.
STATEMENT
This bill would entitle a nursing home resident, or the authorized representative thereof, to install an electronic monitoring device - i.e., a video camera, audio recording device, or other appropriate device - in a visible or hidden location in the resident's immediate living quarters, in order to actively monitor and record the resident's in-room treatment, care, and living conditions, in accordance with the bill's provisions. The installation and use of an electronic monitoring device for such purposes would be known as "authorized electronic monitoring."
Before engaging in authorized electronic monitoring, the bill would require the resident, or authorized representative thereof, as appropriate, to provide the nursing home administrator with a notice of intent to engage in electronic monitoring, and proofs of consent for such activity, on forms prescribed by the Department of Health (hereafter referred to as the "notice and consent packet").
The notice and consent packet must:
● indicate, through signature of the resident or the resident's authorized representative on the notice of intent, that the resident consents to the use of authorized electronic monitoring, as described in the notice;
● expressly release the nursing home from any civil liability for a violation of the resident's privacy rights in association with the placement or use of the electronic monitoring device in the resident's room, or the disclosure of images or sounds recorded thereby;
● identify the type of electronic recording device to be used;
● when the electronic monitoring device is a video surveillance camera, identify whether the camera should always be unobstructed, should be obstructed in specified circumstances to protect the dignity of the resident, and, if appropriate, the particular circumstances during which camera obstruction should occur; and
● include separate consent forms, signed, respectively, by each of the resident's roommates, if any, or by the authorized representatives thereof, as appropriate, providing express consent for the placement of an electronic monitoring device in the resident's room and the use of that device to record and actively monitor the resident's in-room care, treatment, and living conditions.
The consent form that is prescribed by the department for the purposes of obtaining roommate consent would specify that, by granting consent for authorized electronic monitoring, the roommate will waive their privacy rights in association with the images or sounds recorded by the device, to the extent specified in the consent form, and agrees to release the nursing home from any civil liability for a violation of the roommate's privacy rights, which may stem from the use of the electronic monitoring device. The consent form would further specify that the roommate's grant of consent, and the associated waiver of privacy rights, may be either absolute or conditional in nature. In particular, a consenting roommate may condition consent on: (1) the use of an audio electronic monitoring device being limited or prohibited; or (2) any video surveillance camera being pointed away from the consenting roommate, either at all times during its operation, or at certain specified times. The department would be authorized to establish any other requirement for roommate consent, or include any other information on the consent form, which is deemed to be necessary or appropriate.
The bill specifies that authorized electronic monitoring:
● may not commence until the nursing home confirms its receipt of a complete notice and consent packet;
● must be undertaken in accordance with any limitation established by a roommate as a condition of their consent; and
● if ongoing, must immediately cease upon a new resident's admission to the room, and may not be resumed until such time as the new resident has provided consent therefor, in accordance with the bill's consent requirements.
If a notice and consent packet is incomplete when filed, the nursing home will be required to identify deficiencies therein and return the packet materials to the resident, or the authorized representative thereof, for correction and resubmission.
The nursing home will be required to make reasonable physical accommodations to facilitate a resident's use of an authorized electronic monitoring device, and, if a resident's roommate refuses to provide consent for authorized electronic monitoring, the nursing home will be required, upon request, to facilitate the transfer of the resident to a different room, within a reasonable period of time, in order to accommodate the resident's use of authorized electronic monitoring.
The bill would specify that a resident or authorized representative who intends to engage in authorized electronic monitoring will be responsible for paying all costs associated with the installation and maintenance of the electronic monitoring device, but will not be responsible to pay the costs of electricity, which costs will be borne by the nursing home.
The bill would require the nursing home to post a sign, at each general entry point, notifying visitors of the potential use of authorized electronic monitoring within the individual rooms of residents. In addition, the bill would authorize, but not require, a resident to place a secondary sign, immediately outside their room, notifying visitors that electronic monitoring is taking place therein.
The bill would specify that a video or audio recording, which is created through the use of authorized electronic monitoring, is admissible in evidence in any civil or criminal court action or administrative proceeding. However, a court or administrative agency must refuse to admit such recording into evidence, and may not authorize or take any action on the basis of such recording, unless: (a) the recording, if a video, shows the time and date that the recorded events occurred; (b) the contents of the recording have not been edited or artificially enhanced; and (c) any transfer of the contents from its original format to another technological format has been accomplished by a qualified professional, and the contents of the recording were not altered during transfer.
Any nursing home or administrator who violates the bill's provisions, by, for instance, refusing to allow a resident to engage in authorized electronic monitoring, or by taking punitive action against residents or authorized representatives who engage, or may engage, in electronic monitoring, would be subject to an appropriate administrative penalty, to be determined by the department.
Any person who intentionally hampers, obstructs, tampers with, or destroys an electronic monitoring device, which has been installed in a resident's room for the purposes of authorized electronic monitoring in accordance with the bill's provisions would be guilty of a disorderly persons offense. However, it would be a defense to prosecution for this charge that the person took action with the effective consent of the resident on whose behalf the electronic monitoring device was installed, or, where appropriate, with the effective consent of the resident's authorized representative.
