New Jersey-2024-S3173-Introduced

An Act concerning the installation and use of electronic monitoring devices at group homes for certain individuals with developmental disabilities, and supplementing Title 30 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. As used in this act:

"Authorized representative" means a group home resident's court-appointed guardian of the person or, if there is no guardian of the person, the person who holds a valid power of attorney or is otherwise legally authorized to act as the representative of the group home resident for the purposes of making decisions related to the resident's care and living arrangements. "Authorized representative" does not include a caregiver or any other person who is employed or contracted, on a paid or unpaid basis, by the group home licensee.

"Common areas" means the living areas, dining areas, entrances, outdoor areas, stairwells, and any other areas within a group home, except bathrooms, which are commonly and communally accessible to all residents, and are not dedicated for private use by a particular resident.

"Division" means the Division of Developmental Disabilities in the Department of Human Services.

"Electronic monitoring device" means a camera or other electronic device that uses video, but not audio, recording capabilities to monitor the activities taking place in the area where the device is installed.

"Group home" means a living arrangement that is licensed by the division and is operated in a residence or residences leased or owned by a licensee; which living arrangement either provides the opportunity for multiple adults with developmental disabilities to live together in a home, sharing in chores and the overall management of the residence, or provides the opportunity for a single adult with developmental disabilities and extreme behavioral difficulties to live more independently while receiving full-time care, and in which on-site staff provides supervision, training, or assistance, in a variety of forms and intensity, as required to assist the individual or individuals as they move toward independence. "Group home" does not include a living arrangement that is dedicated for use by children with developmental disabilities.

"Licensee" means an individual, partnership, or corporation that is licensed by the division, and is responsible for providing services associated with the operation of a group home.

"Resident' means an individual with developmental disabilities, residing in a group home, who is eligible to receive Individuals Supports Services - Tier C and Beyond provided by the Division of Developmental Disabilities in the Department of Human Services.

2. a. A group home for individuals with developmental disabilities receiving Individuals Supports Services - Tier C and Beyond provided by the Division of Developmental Disabilities in the Department of Human Services that does not have electronic monitoring devices already installed in the group home's common areas shall be required to install electronic monitoring devices in those common areas, upon the collective request of the residents and the residents' authorized representatives, if all of the residents of the group home and their authorized representatives agree to have such electronic monitoring devices installed and expressly consent to the installation and use of such devices. A licensee shall not require current residents to consent to the installation and use of electronic monitoring devices in the common areas as a condition of their continued residency in the group home. Each licensee operating a group home that does not have electronic monitoring devices already installed in the common areas shall:

(1) within six months after the group home adopts an internal electronic monitoring policy pursuant to section 3 of this act, take affirmative action to determine whether the residents of the group home and their authorized representatives want and consent to have electronic monitoring devices installed and used in the group home's common areas pursuant to this section;

(2) ensure that all new residents or their authorized representatives express written consent to the use of the electronic monitoring devices in the group home's common areas prior to their residency in the group home; and

(3) annually provide written notice to all residents and their authorized representatives informing them of their right to request the installation and use of electronic monitoring devices in the group home's common areas, as provided by this section.

b. A group home that installs and uses electronic monitoring devices in its common areas pursuant to the agreement, request, and consent of the residents, as provided by this section, shall:

(1) require each person employed by the group home to provide express written consent to the use of the electronic monitoring devices in the group home's common areas, as a condition of the person's employment;

(2) ensure that a prominent written notice is posted at the entrance and exit doors to the home informing visitors that they will be subject to electronic video monitoring while present in the home; and

(3) ensure that the group home allows those individuals who consent to the ongoing use of electronic monitoring devices in the group home's common areas or their authorized representatives to change their minds and withdraw their consent to the use of electronic devices in a group home's common areas at any time after expressing written consent to the use of such electronic monitoring devices.

c. An individual's refusal to agree and consent to the use of electronic monitoring devices in a group home's common areas or the withdrawal of their agreement and consent pursuant to paragraph (3) of subsection b. of this section shall not be used as a basis to prevent the timely placement of the individual in appropriate housing without surveillance.

d. (1) Any electronic monitoring devices installed pursuant to this section shall be unobstructed and recording at all times, and any recordings produced by the devices shall be retained by the program for a period of 90 days. Each licensee shall inspect the devices, and shall document the results of each inspection, on a weekly basis.

(2) A resident or the resident's authorized representative shall be authorized, upon request submitted to the licensee, to access and review any footage that is recorded by an electronic monitoring device in the common areas of the group home.

e. The Department of Human Services shall annually conduct an on-site device inspection at each group home, in order to ensure that any electronic monitoring devices installed in the common areas are functioning properly, as required by subsection d. of this section. The department may elect to conduct the on-site device inspection required by this subsection as part of the broader inspection of each group home that it is required to perform under section 8 of P.L.2017, c.328 (C.30:11B-4.3).

f. Nothing in this section shall be deemed to prohibit a group home licensee from installing and utilizing electronic monitoring devices in the group home's common areas, pursuant to the group home's internal policies, in cases where the group home's residents have not submitted a collective request for such monitoring.

3. a. (1) Within 90 days after the effective date of this act, the division, in consultation with the Ombudsman for Individuals with Intellectual or Developmental Disabilities and Their Families, the New Jersey Council on Developmental Disabilities, and the group home provider community, shall establish and publish guidelines for the development of internal policies pursuant to this section.

(2) Within 180 days after the publication of guidelines pursuant to paragraph (1) of this subsection, each licensee shall develop and submit to the division a written internal policy specifying the procedures and protocols that are to be used by facility staff when installing and utilizing electronic monitoring devices as provided by this act.

b. An internal electronic monitoring policy established pursuant to this section shall:

(1) describe the procedures and protocols that are to be used when obtaining consent from residents and facility staff for the use of electronic monitoring devices in a group home's common areas, as provided by section 2 of this act; and

(2) describe the procedures and protocols that are to be used when a resident or the resident's authorized representative express, in writing, their wish to withdraw their consent for the use of electronic monitoring devices in a group home's common areas, as provided by section 2;

(3) describe the procedures and protocols that are to be used in the review of footage recorded by electronic monitoring devices in the group home's common areas. The procedures and protocols adopted pursuant to this paragraph shall, at a minimum, reflect the requirements of subsection c. of this section; and

(4) identify the persons who will have access to footage recorded by electronic monitoring devices installed in the group home's common areas, and the circumstances under which recorded footage will be subject to review by such persons.

c. Whenever a licensee receives notice about a complaint, allegation, or reported incident of abuse, neglect, or exploitation occurring within the group home, the licensee shall forward to the division, for appropriate review, any and all potentially relevant footage recorded by electronic monitoring devices in the group home's common areas.

4. a. The division shall develop, and provide to each licensee, consent forms that are to be filled out and signed by individuals who consent to, or request, electronic monitoring under section 2 of this act, consent declination, or withdrawal of consent forms that are to be filled out and signed by individuals who refuse to consent to such electronic monitoring.

b. Consent forms, consent declination, or withdrawal of consent forms filed under section 2 of this act, shall be retained by the licensee for a period of time to be determined by the division.

c. When seeking to obtain consent from residents for electronic monitoring, as required by this act, a licensee shall comply with best practices that apply to professional interactions or communications being undertaken with persons with developmental disabilities, and particularly, with those persons who have difficulty with communication or understanding.

d. The division may establish additional consent, consent declination, or withdrawal of consent requirements, for the purposes of this act, as deemed by the division to be necessary.

5. Notwithstanding the provisions of this act to the contrary, if, as of the effective date of this act, a licensee has already installed and is utilizing electronic monitoring devices in a group home's common areas, the licensee may continue to utilize the devices so installed, in accordance with the licensee's written internal policies; shall not be required to remove the devices from service; and shall not be required to comply with the provisions of this act in order to continue utilizing the previously-installed devices. However, to the extent that a group home's common areas do not contain electronic monitoring devices on the effective date of this act, the licensee shall comply with the provisions of section 2 of this act, as applicable, when installing and utilizing new electronic monitoring devices in such unmonitored areas.

6. a. Any licensee that fails to comply with the provisions of this act shall be subject to a penalty of $5,000 for the first offense, and a penalty of $10,000 for the second or subsequent offense, to be collected with costs in a summary proceeding, pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), as well as an appropriate administrative penalty, the amount of which shall be determined by the division.

b. A group home licensee shall not be subject to penalties under this section, or to any other disciplinary action, for failing to comply with the requirements of section 2 of this act, as applicable, if the group home licensee establishes, through documentation or otherwise, that electronic monitoring devices were installed and being utilized in the group home's common areas, as of the effective date of this act, as provided by section 5 of this act, and that the group home is, therefore, exempt from compliance with the requirements of section 2 of this act, as appropriate.

7. a. The Commissioner of Human Services, in consultation with the assistant commissioner of the division, shall:

(1) annually prepare and submit to the Governor and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1 et seq.), to the Legislature, a written report describing how this act has been implemented in the State. Each annual report shall include, at a minimum:

(a) a list of group homes that are currently using electronic monitoring devices in the common areas;

(b) a list of group homes that have not installed electronic monitoring devices in the common areas;

(c) to the extent known, a list of group homes that have failed to install and use electronic monitoring devices in the common areas upon the request of the residents, as provided by section 2 of this act, despite the licensee's receipt of uniform resident consent authorizing such monitoring, and an indication of the penalties that were imposed under section 6 of this act in response to such failures;

(d) a list of group homes that are exempt from compliance with the provisions of section 2 of this act, as provided by section 6 of this act; and

(e) recommendations for legislative, executive, or other action that can be taken to improve compliance with the act's provisions, or to otherwise expand the consensual use of electronic monitoring devices in group homes; and

(f) post, at a publicly accessible location on its Internet website, the various lists of group homes produced under paragraph (1) of this subsection, and annually update the website to ensure that each list contains the most current data reported pursuant to this subsection. Each list posted online shall be searchable by location and by name of group home.

b. Within five years after the effective date of this act, the division shall prepare and submit to the Governor, and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), to the Legislature, a written report that:

(1) identifies best practices for the installation and use of electronic monitoring devices under this act;

(2) identifies best practices and provides recommendations regarding the obtaining of informed consent for electronic monitoring, as provided by this act; and

(3) provides recommendations for the implementation of new legislation, policies, protocols, and procedures related to the use of electronic monitoring devices in group homes.

c. The Ombudsman for Individuals with Intellectual or Developmental Disabilities and Their Families shall include, in each of the ombudsman's annual reports prepared pursuant to section 3 of P.L.2017, c.269 (C.30:1AA-9.3), a section evaluating the implementation of this act and providing recommendations for improvement.

8. The Commissioner of Human Services, in consultation with the assistant commissioner of the division, shall adopt rules and regulations, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), as may be necessary to effectuate the provisions of this act.

9. This act shall take effect on the first day of the third month next following the date of enactment.

STATEMENT

This bill provides certain requirements in association with the use of electronic monitoring devices (EMDs) at group homes for individuals with developmental disabilities who are eligible to receive Individuals Supports Services - Tier C and Beyond provided by the Division of Developmental Disabilities (DDD) in the Department of Human Services (DHS). An "EMD" is a camera or other electronic device that uses video, but not audio, recording capabilities to monitor the activities taking place in the area where the device is installed.

Specifically, the bill would allow group home residents or their authorized representatives to decide whether to allow for the installation and use of EMDs in the common areas of the group homes.

The bill would require group homes, as defined in the bill, to install EMDs in the common areas, upon the agreement, request, and uniform consent of all residents.

The DDD would be authorized to impose any additional consent, consent declination, or withdrawal of consent requirements as necessary.

The bill includes a provision that grandfathers-in and exempts from the bill's provisions group homes that have already installed, and are utilizing, EMDs as of the bill's effective date. If a group home's common areas do not contain EMDs on the bill's effective date, the licensee will be required to comply with the bill when installing new EMDs in unmonitored areas.

Any recordings produced by an EMD in a group home's common areas and any consent forms, consent declination forms, withdrawal of consent, and notice of intent forms submitted under the bill are to be retained by the group home for a period of time to be determined by the DDD.

Within 180 days after the bill's effective date, each group home will be required to develop and submit to the division a written internal policy specifying the procedures and protocols that are to be used by program staff when installing and utilizing EMDs.

Any residential program that fails to comply with the bill's requirements will be subject to a financial penalty and an appropriate administrative penalty, in an amount to be determined by the DHS.

The Commissioner of Human Services, in consultation with the assistant commissioner of the DDD, is to annually report to the Governor and Legislature on the implementation of the bill's provisions.

The bill further requires the DDD, within five years of the bill's effective date, to provide the Governor and Legislature with a written report that identifies best practices for, and provides recommendations regarding the implementation of new legislation, policies, protocols, and procedures related to, the use of EMDs in group homes.