Bill Text: IA HF2205 | 2021-2022 | 89th General Assembly | Introduced

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Bill Title: A bill for an act relating to electronic monitoring in nursing facilities, and providing penalties.

Spectrum: Moderate Partisan Bill (Democrat 6-1)

Status: (Introduced - Dead) 2022-02-02 - Introduced, referred to Human Resources. H.J. 166. [HF2205 Detail]

Download: Iowa-2021-HF2205-Introduced.html

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House File 2205 - Introduced
HOUSE FILE 2205
BY McCONKEY , ANDERSON , THEDE ,
CAHILL , DONAHUE , STAED , and
JACOBSEN
A BILL FOR
An Act relating to electronic monitoring in nursing facilities,
and providing penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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Section 1. SHORT TITLE. This Act shall be known as
“Evelyn’s Law”.
Sec. 2. NEW SECTION . 135E.1 Definitions.
As used in this chapter, unless the context otherwise
requires:
1. “Department” means the department of inspections and
appeals.
2. “Electronic monitoring” means the placement and use of an
electronic monitoring device by a resident in the resident’s
room in accordance with this subchapter.
3. “Electronic monitoring device” means a camera or other
device that captures, records, or broadcasts audio, video,
or both, that is placed in a resident’s room and is used to
monitor the resident or activities in the room.
4. “Nursing facility” means the same as defined in section
135C.1, and includes the portion of the Iowa veterans home
licensed as a nursing facility under chapter 135C.
5. “Resident” means an individual admitted to a nursing
facility.
6. “Resident representative” means one of the following in
the order of priority listed, to the extent the person may
reasonably be identified and located:
a. The attorney in fact designated to make treatment
decisions for the resident in accordance with chapter 144B.
b. The guardian of the resident if one has been appointed
pursuant to chapter 633.
c. The resident’s spouse.
d. An adult child of the resident or, if the resident has
more than one adult child, a majority of the adult children who
are reasonably available.
e. A parent of the resident, or parents if both are
reasonably available.
f. An adult sibling of the resident.
Sec. 3. NEW SECTION . 135E.2 Electronic monitoring.
1. A resident or a resident representative may conduct
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electronic monitoring of the resident’s room through the use of
an electronic monitoring device placed in the resident’s room
pursuant to this chapter.
2. Nothing in this section precludes the use of electronic
monitoring otherwise allowed by law.
Sec. 4. NEW SECTION . 135E.3 Consent to electronic
monitoring.
1. Except as otherwise provided in this chapter, a resident
must consent to electronic monitoring in the resident’s room
in writing on a notification and consent form prescribed
by the department. If the resident has not affirmatively
objected to electronic monitoring and the resident’s medical
professional determines that the resident lacks the ability
to understand and appreciate the nature and consequences of
electronic monitoring, the resident representative may consent
on behalf of the resident. For purposes of this subsection,
a resident affirmatively objects when the resident orally,
visually, or through the use of auxiliary aids or services
declines electronic monitoring. The resident’s response shall
be documented on the notification and consent form.
2. Prior to a resident representative consenting on behalf
of a resident, the resident shall be asked if the resident
wants electronic monitoring to be conducted. The resident
representative shall explain all of the following to the
resident:
a. The type of electronic monitoring device to be used.
b. The standard conditions or restrictions that may be
placed on the electronic monitoring device’s use including as
specified in the list of standard conditions or restrictions
contained in the notification and consent form completed by the
resident as provided in section 135E.6.
c. The dissemination and use of any recording as provided
under sections 135E.10 and 135E.11.
d. The resident’s ability to decline all recordings.
3. A resident, or resident representative when consenting
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on behalf of the resident, may consent to electronic monitoring
with any conditions or restrictions of the resident’s or
resident representative’s choosing, including the list
of standard conditions or restrictions contained in the
notification and consent form completed by the resident
as provided in section 135E.6. A resident, or resident
representative when consenting on behalf of the resident, may
request that the electronic monitoring device be turned off
or the visual or audio recording component of the electronic
monitoring device be blocked at any time.
4. Prior to implementing electronic monitoring, a resident,
or resident representative when acting on behalf of the
resident, shall obtain the written consent on the notification
and consent form of any other resident who is a roommate
residing in the shared room. A roommate’s or roommate’s
resident representative’s written consent shall comply with
the requirements of this section. Consent by a roommate or
a roommate’s resident representative under this subsection
authorizes the resident’s use of any recording obtained under
this section as provided under sections 135E.10 and 135E.11.
5. Any resident conducting electronic monitoring shall
immediately remove or disable an electronic monitoring device
prior to a new resident who will be a roommate moving into
a shared room, unless the resident conducting electronic
monitoring obtains the new roommate’s or new roommate’s
resident representative’s written consent as provided under
this section prior to the new roommate moving into the shared
room. Upon obtaining the new roommate’s or new roommate’s
resident representative’s signed notification and consent form
and submitting the form to the nursing facility as required
under section 135E.5, the resident may resume electronic
monitoring.
6. The resident or roommate, or the resident representative
or roommate’s resident representative if the representative is
consenting on behalf of the resident or roommate, may withdraw
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consent at any time and the withdrawal of consent shall be
documented on the original consent form as provided under
section 135E.5.
Sec. 5. NEW SECTION . 135E.4 Refusal of roommate to consent.
If a resident of a nursing facility who is residing in a
shared room, or the resident representative of such a resident
when acting on behalf of the resident, wants to conduct
electronic monitoring and another resident living in or moving
into the same shared room refuses to consent to the use of an
electronic monitoring device, the nursing facility shall make
a reasonable attempt to accommodate the resident who wants to
conduct electronic monitoring. A nursing facility has met
the requirement to make a reasonable attempt to accommodate
a resident or resident representative who wants to conduct
electronic monitoring when, upon notification that a roommate
has not consented to the use of an electronic monitoring device
in the resident’s room, the nursing facility offers to move one
of the residents to another shared room that is available at
the time of the request that accommodates the resident. If
a resident chooses to reside in a private room in order to
accommodate the use of an electronic monitoring device, the
resident shall be subject to a private room rate. If a nursing
facility is unable to accommodate a resident due to lack of
space, the nursing facility shall reevaluate the request
periodically until the request is fulfilled.
Sec. 6. NEW SECTION . 135E.5 Notice and consent form
submitted to nursing facility.
1. Electronic monitoring may begin only after the resident
or resident representative who intends to place an electronic
monitoring device in the resident’s room and any roommate or
roommate’s resident representative completes a notification and
consent form and submits the form to the nursing facility.
2. Upon receipt of the required, completed notification and
consent form, the nursing facility shall place the original
form in the resident’s file, and a copy of the form in any
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roommate’s file. The nursing facility shall provide a copy to
the resident and the resident’s roommate, as applicable.
3. If a resident or roommate, or the resident representative
or roommate’s resident representative if the representative
is consenting on behalf of the resident or roommate, chooses
to alter the conditions under which consent to electronic
monitoring is given or chooses to withdraw consent to
electronic monitoring, the nursing facility shall make
available the original notification and consent form so that
the original form may be updated. Upon receipt of the updated
original form, the nursing facility shall place the updated
original form in the resident’s file. The nursing facility
shall provide a copy of the updated form to the resident and
the resident’s roommate, as applicable.
4. If a new roommate, or the new roommate’s resident
representative when consenting on behalf of the new roommate,
does not consent to electronic monitoring and submit a
completed notification and consent form to the nursing
facility, and the resident conducting the electronic monitoring
does not remove or disable an existing electronic monitoring
device, the nursing facility shall remove the electronic
monitoring device.
5. If a roommate, or the roommate’s resident representative
when withdrawing consent on behalf of the roommate, submits
an updated notification and consent form withdrawing consent
and the resident conducting electronic monitoring does not
remove or disable the electronic monitoring device, the nursing
facility shall remove the electronic monitoring device.
Sec. 7. NEW SECTION . 135E.6 Notification and consent form
requirements.
1. The notification and consent form completed by the
resident shall include, at a minimum, all of the following
information:
a. The resident’s signed consent to electronic monitoring or
the signature of the resident representative, if applicable.
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If a resident representative signs the consent form, the form
shall document all of the following:
(1) The date the resident was asked if the resident wants
electronic monitoring to be conducted.
(2) Any person present when the resident was asked.
(3) An acknowledgment that the resident did not
affirmatively object.
(4) The source of authority allowing the resident
representative to sign the notification and consent form on the
resident’s behalf.
b. The resident’s roommate’s signed consent or the signature
of the roommate’s resident representative, if applicable. If a
roommate’s resident representative signs the consent form, the
form shall document all of the following:
(1) The date the roommate was asked if the roommate wants
electronic monitoring to be conducted.
(2) Any person present when the roommate was asked.
(3) An acknowledgment that the roommate did not
affirmatively object.
(4) The source of authority allowing the resident
representative to sign the notification and consent form on the
roommate’s behalf.
c. The type of electronic monitoring device to be used.
d. Any installation needs, such as mounting of a device to
a wall or ceiling.
e. The proposed date of installation for scheduling
purposes.
f. A copy of any contract for maintenance of the electronic
monitoring device by a commercial entity.
g. A list of standard conditions or restrictions that the
resident or a roommate may elect to place on the use of the
electronic monitoring device including but not limited to all
of the following:
(1) Prohibiting audio recording.
(2) Prohibiting video recording.
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(3) Prohibiting broadcasting of audio or video.
(4) Turning off the electronic monitoring device or
blocking the visual recording component of the electronic
monitoring device for the duration of an exam or procedure by a
health care professional.
(5) Turning off the electronic monitoring device or
blocking the visual recording component of the electronic
monitoring device while dressing or bathing is performed.
(6) Turning off the electronic monitoring device for
the duration of a visit with a spiritual adviser, ombudsman,
attorney, financial planner, intimate partner, or other
visitor.
h. Any other condition or restriction elected by the
resident or roommate on the use of an electronic monitoring
device.
i. A statement of the circumstances under which a recording
may be disseminated under section 135E.10.
j. A signature box to document if the resident or roommate
withdraws consent.
2. A nursing facility shall make the notification and
consent form available to the residents and inform residents of
the option to conduct electronic monitoring of the resident’s
room.
Sec. 8. NEW SECTION . 135E.7 Cost and installation.
1. A resident who chooses to conduct electronic monitoring
shall do so at the resident’s own expense, including payment of
any purchase, installation, maintenance, and removal costs.
2. If a resident chooses to place an electronic monitoring
device that uses internet technology for visual or audio
monitoring, the resident may be responsible for contracting
with an internet service provider.
3. The nursing facility shall make a reasonable attempt
to accommodate the resident’s installation needs, including
allowing access to the nursing facility’s public-use internet
or wi-fi systems when available for other public uses.
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4. All electronic monitoring device installations and
supporting services shall comply with the requirements of the
national fire protection association 101 life safety code.
5. A nursing facility shall not charge a resident a fee
for the costs of electricity used by the electronic monitoring
device.
Sec. 9. NEW SECTION . 135E.8 Notice to visitors.
1. A nursing facility shall post a sign at each nursing
facility entrance accessible to visitors that states
“Electronic monitoring devices may be present in the rooms of
residents to record persons and activities”.
2. A nursing facility shall post a sign clearly and
conspicuously at the entrance to a resident’s room where
electronic monitoring is being conducted. The notice shall
state “This room is electronically monitored”.
3. The nursing facility is responsible for installing and
maintaining the signage required in this section.
Sec. 10. NEW SECTION . 135E.9 Obstruction of electronic
monitoring devices.
1. A person shall not knowingly hamper, obstruct, tamper
with, or destroy an electronic monitoring device placed in
a resident’s room without the permission of the resident or
resident representative.
2. A person shall not knowingly hamper, obstruct, tamper
with, or destroy a video or audio recording obtained through
the use of an electronic monitoring device in accordance with
this chapter.
3. It is not a violation of this section for a person to
turn off the electronic monitoring device or block the visual
recording component of the electronic monitoring device at the
direction of the resident or resident representative, or if
consent has been withdrawn.
4. A person who violates this section is guilty of a serious
misdemeanor.
Sec. 11. NEW SECTION . 135E.10 Dissemination of recordings.
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1. A person shall not access any video or audio recording
created through electronic monitoring under this chapter
without the written consent of the resident or resident
representative.
2. Except as otherwise required by law, a recording or copy
of a recording created as provided in this chapter may only be
disseminated for the purpose of addressing health, safety, or
welfare concerns of a resident.
3. A person accessing or disseminating a recording or copy
of a recording created as provided in this section in violation
of this section is guilty of a serious misdemeanor.
Sec. 12. NEW SECTION . 135E.11 Admissibility of evidence.
Subject to applicable rules of evidence and procedure, any
video or audio recording created through electronic monitoring
under this chapter may be admitted into evidence in a civil,
criminal, or administrative proceeding if the contents of the
recording have not been edited or artificially enhanced and the
recording includes the date and time the events occurred.
Sec. 13. NEW SECTION . 135E.12 Liability —— penalties.
1. A nursing facility is not civilly or criminally liable
for the disclosure of a recording by a resident or a person who
consents on behalf of a resident for any purpose not authorized
by this chapter.
2. A nursing facility is not civilly or criminally liable
for a violation of a resident’s right to privacy arising out
of any electronic monitoring conducted in accordance and in
compliance with this chapter.
3. A nursing facility that knowingly violates this chapter
shall be subject to licensee discipline pursuant to chapter
135C.
Sec. 14. NEW SECTION . 135E.13 Resident protections.
1. A nursing facility shall not do any of the following:
a. Refuse to admit a potential resident or remove a resident
because the nursing facility disagrees with the potential
resident’s or the resident’s decisions regarding electronic
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monitoring, whether the decision is made by a resident or a
resident representative acting on behalf of the resident.
b. Retaliate or discriminate against any resident for
consenting or refusing to consent to electronic monitoring.
c. Prevent the placement or use of an electronic monitoring
device by a resident who has provided the nursing facility
with the notification and consent form as required under this
chapter.
2. Any contractual provision prohibiting, limiting, or
otherwise modifying the rights and obligations in this chapter
is contrary to public policy and is void and unenforceable.
Sec. 15. NEW SECTION . 135E.14 Report to department.
A nursing facility shall report to the department, in a
manner prescribed by the department, the number of electronic
monitoring device notification and consent forms received by
the nursing facility on an annual basis.
Sec. 16. DIRECTIVE TO DEPARTMENT OF INSPECTIONS AND
APPEALS. The department of inspections and appeals shall
prescribe by rule pursuant to chapter 17A the notification and
consent form described in this Act, and shall make the form
available on the department’s internet site.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
This bill provides for authorized electronic monitoring in
nursing facilities including the portion of the Iowa veterans
home licensed as a nursing facility. The bill shall be known
as “Evelyn’s Law”.
The bill provides that a nursing facility resident or a
resident representative may conduct electronic monitoring
of the resident’s room through the use of electronic
monitoring devices placed in the resident’s room pursuant
to the bill. The bill specifies the consents that must be
obtained for a resident to conduct electronic monitoring
in the resident’s room, including from any roommate; the
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process to be followed if a roommate refuses to consent; the
provision of notice to the nursing facility; the notification
and consent form requirements; the responsibility for the
cost and installation relating to the electronic monitoring;
penalties for obstruction of electronic monitoring devices;
the dissemination of recordings created through electronic
monitoring; the admissibility of evidence created through
electronic monitoring; liability and penalties for violations
of the bill; resident protections; and reporting requirements.
The bill also directs the department of inspections and appeals
to prescribe the notification and consent form described in
the bill and to make the form available on the department’s
internet site.
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