Iowa-2023-HF537-Introduced

H.F. 537 Section 1. NEW SECTION . 135C.49 Definitions. 1 As used in this subchapter, unless the context otherwise 2 requires: 3 1. “Electronic monitoring” means the placement and use of an 4 electronic monitoring device by a resident in the resident’s 5 room in accordance with this subchapter. 6 2. “Electronic monitoring device” means a video camera that 7 livestream broadcasts video only that is placed in a resident’s 8 room and is used to monitor the resident or activities in the 9 room. “Electronic monitoring device” does not include video 10 phone calls or video conferencing where a resident either 11 initiates or joins a call or conference. 12 3. “Resident” means an individual admitted to a nursing 13 facility in a manner prescribed in section 135C.23. 14 4. “Resident representative” means one of the following in 15 the order of priority listed, to the extent the person may 16 reasonably be identified and located: 17 a. The attorney in fact designated to make treatment 18 decisions for the resident in accordance with chapter 144B. 19 b. The guardian of the resident if one has been appointed 20 pursuant to chapter 633. 21 Sec. 2. NEW SECTION . 135C.50 Electronic monitoring. 22 1. A resident, or a resident representative when acting 23 on behalf of a resident, may conduct electronic monitoring 24 of the resident’s room through the use of an electronic 25 monitoring device placed in the resident’s room pursuant to 26 this subchapter. 27 2. A nursing facility or resident of the nursing facility 28 shall not engage in electronic monitoring or the use of 29 electronic monitoring devices in a resident’s room without the 30 written permission of the nursing facility and the consent of 31 the resident or resident representative when consenting on 32 behalf of a resident. 33 3. Nothing in this section precludes the use of electronic 34 monitoring otherwise allowed by law. 35 -1- LSB 1746YH (6) 90 pf/rh 1/ 11

H.F. 537 Sec. 3. NEW SECTION . 135C.51 Consent to electronic 1 monitoring. 2 1. Except as otherwise provided in this subchapter, 3 a resident must consent to electronic monitoring in the 4 resident’s room in writing on a notification and consent 5 form prescribed by the department. If the resident has 6 not affirmatively objected to electronic monitoring and 7 the resident’s health care professional determines that the 8 resident lacks the ability to understand and appreciate the 9 nature and consequences of electronic monitoring, the resident 10 representative may consent on behalf of the resident. For 11 purposes of this subsection, a resident affirmatively objects 12 when the resident orally, visually, or through the use of 13 auxiliary aids or services declines electronic monitoring. The 14 resident’s response shall be documented on the notification and 15 consent form. 16 2. Prior to a resident representative consenting on behalf 17 of a resident, the resident shall be asked if the resident 18 wants electronic monitoring to be conducted. The resident 19 representative shall explain all of the following to the 20 resident: 21 a. The type of electronic monitoring device to be used. 22 b. The standard conditions or restrictions that may be 23 placed on the electronic monitoring device’s use including as 24 specified in the list of standard conditions or restrictions 25 contained in the notification and consent form completed by the 26 resident as provided in section 135C.54. 27 c. The resident’s ability to decline all electronic 28 monitoring. 29 3. A resident, or resident representative when consenting 30 on behalf of the resident, shall consent to electronic 31 monitoring with the standard conditions or restrictions 32 contained in the notification and consent form completed by the 33 resident as provided in section 135C.54. 34 4. Prior to implementing electronic monitoring, a resident, 35 -2- LSB 1746YH (6) 90 pf/rh 2/ 11

H.F. 537 or resident representative when acting on behalf of the 1 resident, shall obtain the written consent on the notification 2 and consent form of any other resident who is a roommate 3 residing in the shared room. A roommate’s or roommate’s 4 resident representative’s written consent shall comply with the 5 requirements of this section. 6 5. Any resident, or resident representative when acting on 7 behalf of the resident, conducting electronic monitoring shall 8 immediately remove or disable an electronic monitoring device 9 prior to a new resident who will be a roommate moving into a 10 shared room, unless the resident or resident representative 11 conducting electronic monitoring obtains the new roommate’s or 12 new roommate’s resident representative’s written consent as 13 provided under this section prior to the new roommate moving 14 into the shared room. Upon obtaining the new roommate’s or new 15 roommate’s resident representative’s signed notification and 16 consent form and submitting the form to the nursing facility 17 as required under section 135C.53, the resident or resident 18 representative may resume electronic monitoring. 19 6. The resident or roommate, or the resident representative 20 or roommate’s resident representative if the representative is 21 consenting on behalf of the resident or roommate, may withdraw 22 consent at any time and the withdrawal of consent shall be 23 documented on the original consent form as provided under 24 section 135C.53. 25 Sec. 4. NEW SECTION . 135C.52 Refusal of roommate to 26 consent. 27 If a resident of a nursing facility who is residing in a 28 shared room, or the resident representative of such a resident 29 when acting on behalf of the resident, wants to conduct 30 electronic monitoring and another resident living in or moving 31 into the same shared room refuses to consent to the use of an 32 electronic monitoring device, the nursing facility shall make 33 a reasonable attempt to accommodate the resident who wants to 34 conduct electronic monitoring. A nursing facility has met 35 -3- LSB 1746YH (6) 90 pf/rh 3/ 11

H.F. 537 the requirement to make a reasonable attempt to accommodate 1 a resident or resident representative who wants to conduct 2 electronic monitoring when, upon notification that a roommate 3 has not consented to the use of an electronic monitoring device 4 in the resident’s room, the nursing facility offers to move one 5 of the residents to another shared room that is available at 6 the time of the request that accommodates the resident. If 7 a resident chooses to reside in a private room in order to 8 accommodate the use of an electronic monitoring device, the 9 resident shall be subject to a private room rate. If a nursing 10 facility is unable to accommodate a resident, the nursing 11 facility shall reevaluate the request periodically until the 12 request is fulfilled. 13 Sec. 5. NEW SECTION . 135C.53 Notice and consent form 14 submitted to nursing facility. 15 1. Electronic monitoring may begin only after the resident 16 or resident representative who intends to place an electronic 17 monitoring device in the resident’s room and any roommate, or 18 roommate’s resident representative, completes a notification 19 and consent form and submits the form to the nursing facility. 20 2. Upon receipt of the required, completed notification and 21 consent form, the nursing facility shall place the original 22 form in the resident’s file and a copy of the form in any 23 roommate’s file. The nursing facility shall provide a copy 24 to the resident and the resident’s roommate or the resident 25 representative or roommate’s resident representative, as 26 applicable. 27 3. If a resident or roommate, or the resident representative 28 or roommate’s resident representative if the representative 29 is consenting on behalf of the resident or roommate, chooses 30 to withdraw consent to electronic monitoring, the nursing 31 facility shall make available the original notification and 32 consent form so that the original form may be updated. Upon 33 receipt of the updated original form, the nursing facility 34 shall place the updated original form in the resident’s file. 35 -4- LSB 1746YH (6) 90 pf/rh 4/ 11

H.F. 537 The nursing facility shall provide a copy of the updated form 1 to the resident and the resident’s roommate or to the resident 2 representative or roommate’s resident representative, as 3 applicable. 4 4. If a new roommate, or the new roommate’s resident 5 representative when consenting on behalf of the new roommate, 6 does not consent to electronic monitoring and submit a 7 completed notification and consent form to the nursing 8 facility, and the resident or resident representative 9 conducting the electronic monitoring does not remove or disable 10 an existing electronic monitoring device, the nursing facility 11 shall provide the resident or the resident representative, as 12 applicable, a twenty-four-hour notice to remove or disable the 13 electronic monitoring device. If the device is not removed 14 or disabled within twenty-four hours of notification to the 15 resident or resident representative, the nursing facility may 16 disable or remove the electronic monitoring device. 17 5. If a roommate, or the roommate’s resident representative 18 when withdrawing consent on behalf of the roommate, submits an 19 updated notification and consent form withdrawing consent and 20 the resident or resident representative conducting electronic 21 monitoring does not remove or disable the electronic monitoring 22 device, the nursing facility shall provide the resident or 23 resident representative a twenty-four-hour notice to remove or 24 disable the electronic monitoring device. If the device is not 25 removed or disabled within twenty-four hours of notification to 26 the resident or resident representative, the nursing facility 27 may disable or remove the electronic monitoring device. 28 Sec. 6. NEW SECTION . 135C.54 Notification and consent form 29 requirements. 30 1. The notification and consent form completed by the 31 resident shall include, at a minimum, all of the following 32 information: 33 a. The resident’s signed consent to electronic monitoring or 34 the signature of the resident representative, if applicable. 35 -5- LSB 1746YH (6) 90 pf/rh 5/ 11

H.F. 537 If a resident representative signs the consent form, the form 1 shall document all of the following: 2 (1) The date the resident was asked if the resident wants 3 electronic monitoring to be conducted. 4 (2) Any person present when the resident was asked. 5 (3) An acknowledgment that the resident did not 6 affirmatively object. 7 (4) The source of authority allowing the resident 8 representative to sign the notification and consent form on the 9 resident’s behalf, including any court order, as applicable. 10 b. The resident’s roommate’s signed consent or the signature 11 of the roommate’s resident representative, if applicable. If a 12 roommate’s resident representative signs the consent form, the 13 form shall document all of the following: 14 (1) The date the roommate was asked if the roommate wants 15 electronic monitoring to be conducted. 16 (2) Any person present when the roommate was asked. 17 (3) An acknowledgment that the roommate did not 18 affirmatively object. 19 (4) The source of authority allowing the resident 20 representative to sign the notification and consent form on the 21 roommate’s behalf, including any court order, as applicable. 22 c. The type of electronic monitoring device to be used. 23 d. Any installation needs, such as mounting a device to a 24 wall or ceiling, and the costs associated with installation 25 and use, which are to be paid by the resident or the resident 26 representative, and the resident’s liability for potential 27 damage and repairs due to installation. 28 e. Fourteen days’ notice of the proposed date of 29 installation for scheduling purposes. 30 f. A copy of any contract for maintenance of the electronic 31 monitoring device by a commercial entity. 32 g. A list of standard conditions or restrictions for the use 33 of the electronic monitoring device including but not limited 34 to all of the following: 35 -6- LSB 1746YH (6) 90 pf/rh 6/ 11

H.F. 537 (1) Prohibiting audio recording. 1 (2) Prohibiting video recording. 2 (3) Turning off the electronic monitoring device or 3 blocking the visual recording component of the electronic 4 monitoring device for the duration of an exam or procedure by a 5 health care professional. 6 (4) Turning off the electronic monitoring device or 7 blocking the visual recording component of the electronic 8 monitoring device while dressing or bathing is performed. 9 (5) Turning off the electronic monitoring device for 10 the duration of a visit with a spiritual adviser, ombudsman, 11 attorney, financial planner, intimate partner, or other 12 visitor. 13 (6) Prohibiting drop-in video access. 14 (7) Requiring visual verification when the electronic 15 monitoring device is in use. 16 (8) Requiring conspicuously visible placement of the 17 electronic monitoring device inside the resident’s room. 18 (9) Prohibiting that the electronic monitoring device from 19 being placed outside the resident’s living quarters. 20 h. A signature box to document if the resident or roommate 21 withdraws consent. 22 2. A nursing facility shall make the notification and 23 consent form available to the residents and inform residents of 24 the option to conduct electronic monitoring of the resident’s 25 room. 26 Sec. 7. NEW SECTION . 135C.55 Cost and installation. 27 1. A resident who chooses to conduct electronic monitoring 28 shall do so at the resident’s own expense, including payment 29 of any purchase, installation, maintenance, removal costs, and 30 costs for returning the resident’s room to preinstallation 31 condition. 32 2. If a resident chooses to place an electronic monitoring 33 device that uses internet technology for visual monitoring, the 34 resident shall be responsible for contracting with an internet 35 -7- LSB 1746YH (6) 90 pf/rh 7/ 11

H.F. 537 service provider. 1 3. The nursing facility shall make a reasonable attempt to 2 accommodate the resident’s installation needs. 3 4. All electronic monitoring device installations and 4 supporting services shall comply with all applicable building 5 codes. 6 5. A nursing facility shall not charge a resident a fee 7 for the costs of electricity used by the electronic monitoring 8 device. 9 Sec. 8. NEW SECTION . 135C.56 Notice to visitors. 10 1. If electronic monitoring is being conducted, a nursing 11 facility shall post a sign at each nursing facility entrance 12 accessible to visitors that states “Electronic monitoring 13 devices may be present in the rooms of residents to observe 14 persons and activities”. 15 2. A nursing facility shall post a sign clearly and 16 conspicuously at the entrance to a resident’s room where 17 electronic monitoring is being conducted. The notice shall 18 state “This room is electronically monitored”. 19 3. The nursing facility is responsible for installing and 20 maintaining the signage required in this section. 21 Sec. 9. NEW SECTION . 135C.57 Obstruction of electronic 22 monitoring devices. 23 A person shall not knowingly hamper, obstruct, tamper 24 with, or destroy an electronic monitoring device placed in 25 a resident’s room without the permission of the resident or 26 resident representative, as applicable. 27 Sec. 10. NEW SECTION . 135C.58 Immunity from liability —— 28 license discipline —— inadmissability of recordings. 29 1. A nursing facility is not civilly or criminally liable 30 for the disclosure of an unlawful recording captured by an 31 electronic monitoring device. 32 2. A nursing facility is not civilly or criminally liable 33 for a violation of a resident’s right to privacy arising out 34 of any electronic monitoring conducted in accordance and in 35 -8- LSB 1746YH (6) 90 pf/rh 8/ 11

H.F. 537 compliance with this subchapter. 1 3. The resident and resident representative, as applicable, 2 are responsible for complying with local, state, and federal 3 privacy laws and for firewall protections to prevent images 4 that may violate obscenity laws from being inadvertently shown 5 on the internet via the electronic monitoring device. 6 4. A nursing facility that knowingly violates this 7 subchapter shall be subject to licensee discipline. 8 5. If a resident fails to comply with the nursing facility 9 policies and residency agreement relating to the use of an 10 electronic monitoring device, nursing facility staff may 11 report the failure to the office of long-term care ombudsman 12 and law enforcement, as applicable. Continued failure by a 13 resident to comply with such nursing facility policies and 14 residency agreement may constitute grounds for termination of a 15 resident’s residency agreement. 16 6. Audio or video recordings obtained in violation of this 17 chapter are inadmissable in a regulatory or other disciplinary 18 proceeding. 19 Sec. 11. NEW SECTION . 135C.59 Resident protections. 20 1. A nursing facility shall not do any of the following: 21 a. Refuse to admit a potential resident or remove a resident 22 because the nursing facility disagrees with the potential 23 resident’s or the resident’s decisions regarding electronic 24 monitoring, whether the decision is made by a resident or a 25 resident representative acting on behalf of the resident. 26 b. Retaliate or discriminate against any resident for 27 consenting or refusing to consent to electronic monitoring. 28 c. Prevent the placement or use of an electronic monitoring 29 device by a resident who has provided the nursing facility 30 with the notification and consent form as required under this 31 subchapter. 32 2. Any contractual provision prohibiting, limiting, 33 or otherwise modifying the rights and obligations in this 34 subchapter is contrary to public policy and is void and 35 -9- LSB 1746YH (6) 90 pf/rh 9/ 11

H.F. 537 unenforceable. 1 Sec. 12. NEW SECTION . 135C.60 Report to department. 2 A nursing facility shall report to the department, in a 3 manner prescribed by the department, the number of electronic 4 monitoring device notification and consent forms received by 5 the nursing facility on an annual basis. 6 Sec. 13. Section 633.635, subsection 3, Code 2023, is 7 amended by adding the following new paragraph: 8 NEW PARAGRAPH . d. Consenting to electronic monitoring 9 conducted in accordance with chapter 135C. 10 Sec. 14. DIRECTIVE TO DEPARTMENT OF INSPECTIONS AND 11 APPEALS. The department of inspections and appeals shall 12 prescribe by rule pursuant to chapter 17A the notification and 13 consent form described in this Act, and shall make the form 14 available on the department’s internet site. 15 Sec. 15. CODE EDITOR DIRECTIVE. The Code editor may codify 16 the provisions of this Act as a new subchapter of chapter 135C 17 entitled “Electronic Monitoring”. 18 EXPLANATION 19 The inclusion of this explanation does not constitute agreement with 20 the explanation’s substance by the members of the general assembly. 21 This bill provides for authorized electronic monitoring in 22 nursing facilities. 23 The bill provides that a nursing facility resident or a 24 resident representative, as applicable, may conduct electronic 25 monitoring of the resident’s room through the use of electronic 26 monitoring devices placed in the resident’s room pursuant 27 to the bill. The bill specifies the consents that must be 28 obtained for a resident to conduct electronic monitoring in the 29 resident’s room, including from any roommate; the process to 30 be followed if a roommate refuses to consent; the provision 31 of notification to the nursing facility; the notification and 32 consent form requirements; the responsibility for costs and 33 installation relating to the electronic monitoring; notice 34 to visitors; prohibited obstruction of electronic monitoring 35 -10- LSB 1746YH (6) 90 pf/rh 10/ 11

H.F. 537 devices; immunity from liability, licensee discipline, and 1 inadmissability of recordings related to violations of the 2 bill; resident protections; and reporting requirements. The 3 bill also directs the department of inspections and appeals 4 to prescribe the notification and consent form described in 5 the bill and to make the form available on the department’s 6 internet site. 7 -11- LSB 1746YH (6) 90 pf/rh 11/ 11