Bill Text: NJ S3301 | 2020-2021 | Regular Session | Introduced
Bill Title: Requires certain group homes to install electronic monitoring devices in common areas, upon request and with uniform resident consent, and to permit consensual use of such devices in private rooms.
Spectrum: Slight Partisan Bill (Democrat 8-5)
Status: (Introduced - Dead) 2020-12-18 - Introduced in the Senate, Referred to Senate Health, Human Services and Senior Citizens Committee [S3301 Detail]
Download: New_Jersey-2020-S3301-Introduced.html
Sponsored by:
Senator VIN GOPAL
District 11 (Monmouth)
Senator FRED H. MADDEN, JR.
District 4 (Camden and Gloucester)
SYNOPSIS
Requires certain group homes to install electronic monitoring devices in common areas, upon request and with uniform resident consent, and to permit consensual use of such devices in private rooms.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning the installation and use of electronic monitoring devices at group homes for 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. The Legislature finds and declares the following:
a. Individuals with developmental disabilities are particularly vulnerable to abuse, neglect, and exploitation by caregivers, guardians, and other persons.
b. Group homes for individuals with developmental disabilities admirably enable these individuals to live more independently within a non-institutional setting; however, the lack of institutional controls and oversight at these homes ultimately makes it harder for the State, for individual group home operators, and for concerned family members to promptly identify and respond to wrongdoing that may be committed by caregivers, guardians, group home employees, and other persons at the home.
c. The safety and quality of life of individuals with developmental disabilities who receive care from group homes is of paramount concern, and the use of video monitoring is a reasonable means by which the State and concerned family members can better ensure the prevention of, and the institution of a more proactive response to, the abuse, neglect, and exploitation of group home residents.
d. The rights of individuals with developmental disabilities, including the right to privacy, should be respected and preserved at all times, to the greatest extent practicable; however, just as is true of all citizens, an individual with a developmental disability or the individual's authorized representative, as the case may be, may consent to the waiver or limitation of the individual's rights, particularly the individual's rights to privacy, by knowingly agreeing to video surveillance, as deemed by the individual or the authorized representative to be appropriate.
e. It is in the public interest for the State to provide for the enhanced protection of individuals with developmental disabilities who reside at group homes by enabling group home residents, or their authorized representatives, to cooperatively and collectively decide whether to allow for the installation and use of video monitoring devices in the common areas of the group homes, and to individually decide whether to allow for the installation and use of video monitoring devices in the private residential room of each such resident, so that the treatment of such residents can be recorded and instances of abuse, neglect, or exploitation documented with video evidence.
f. The State recognizes that each individual with developmental disabilities is unique and has differing needs and preferences, and that, while some group home residents and their authorized representatives may consent to the use of video surveillance to better ensure the residents' safety, others may refuse to consent to such video surveillance.
g. Through the enactment of this act, it is the intent of the Legislature to make video monitoring technology more readily available in group home settings, while taking great care to strike the important and delicate balance between protecting the privacy rights and protecting the overall well-being of group home residents.
h. This act is dedicated to William "Billy" Cray, a 33-year-old with developmental disabilities who, on a Sunday morning in January 2017, was inexplicably found dead on the floor of his bedroom in a West Deptford group home, operated by Devereux Advanced Behavioral Health New Jersey, where he resided. Billy Cray, who had suffered from institutional abuse since he was a child, was the son of Martha Cray, a dedicated and long-time advocate for persons with developmental disabilities. For many years, both preceding and following her son's death, Martha Cray has continued to work tirelessly to advance legislation protecting the rights and safety of individuals with developmental disabilities, particularly those residing in group homes. She was particularly instrumental in facilitating the passage of "Stephen Komninos' Law," P.L.2017, c.238 (C.30:6D-9.1), which provides for the heightened scrutiny of group homes by requiring more frequent, unannounced oversight visits, and which requires group homes to provide prompt notice of injury to the parent or guardian of an injured resident.
i. Billy Cray's death is yet another reminder of why the State needs to continue its work both to strengthen oversight of group homes for individuals with developmental disabilities and to further facilitate and enhance the ability of group home residents and their family members or guardians, as the case may be, to take affirmative steps to protect the rights and safety of residents and promptly and appropriately respond to resident injuries and other concerning incidents occurring in the group homes. By enabling group home residents with developmental disabilities and their authorized representatives to use video-based electronic monitoring to protect against, provide documentary evidence of, and ensure a prompt and adequate response to, any abuse, neglect, and exploitation occurring in the group home, the Legislature can further preserve the rights and safety of group home residents and facilitate the proactive prevention of deaths like Billy Cray's.
2. 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.
"Private room" means the private bedroom of a group home resident.
"Private single occupancy room" means a private room that is occupied by only a single group home resident.
"Private double occupancy room" means a private room that is occupied by two or more group home residents.
3. a. A group home 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 5 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; and
(2) 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, in the future, the group home only allows residence by those individuals who consent to the ongoing use of electronic monitoring devices in the group home's common areas.
c. An individual's refusal to agree and consent to the use of electronic monitoring devices in a group home's common areas 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.
4. a. A group home for individuals with developmental disabilities shall permit electronic monitoring devices to be installed and used in a resident's private room, as provided by this section, for the purposes of monitoring the resident's in-room care, treatment, and living conditions. Each licensee shall:
(1) within six months after the effective date of this act, and annually thereafter, provide written notice to all residents, and to their authorized representatives, informing them of their right to install and use electronic monitoring devices in the residents' private rooms, as provided by this section, and articulating the notice requirements that are to be satisfied, pursuant to subsection b. of this section, before an electronic monitoring device may be installed and used in a private single occupancy room, and the consent requirements that are to be satisfied, pursuant to subsection c. of this section, before an electronic monitoring device may be installed and used in a private double occupancy room;
(2) ensure that reasonable accommodations are made, as necessary, to enable the authorized use of electronic monitoring devices in private rooms, as provided by this section; and
(3) whenever a resident or the resident's authorized representative seeks to install an electronic monitoring device in the resident's private room, provide the resident or the resident's authorized representative, as appropriate, with written notice of any applicable installation or building construction requirements or restrictions with which the resident must comply when installing and using an electronic monitoring device in the private room. Such notice shall be provided within 10 days after the licensee receives notice of the resident's intent to install electronic monitoring devices in a single occupancy room under subsection b. of this section or within 10 days after the licensee receives a resident's request for electronic monitoring of a double occupancy room under subsection c. of this section.
b. (1) The installation and use of electronic monitoring devices in a private single occupancy room: (a) shall be noncompulsory; and (b) may be done by the resident or the resident's authorized representative, at any time, following the resident's provision of notice to the licensee pursuant to paragraph (2) of this subsection.
(2) Any person who wishes to install and utilize electronic monitoring devices in a resident's private single occupancy room shall provide the licensee with a written notice of intent at least 15 days prior to installation of the devices, and shall comply with any installation or building construction constraints that are identified by the licensee in the notice that is provided to the resident pursuant to paragraph (3) of subsection a. of this section.
(3) Any resident who provides a notice of intent to install electronic monitoring devices in a private single occupancy room, or who so installs such devices, shall be deemed to have implicitly consented to electronic monitoring in the private room.
c. (1) The installation and use of electronic monitoring devices in a private double occupancy room shall: (a) be noncompulsory; (b) be conditioned upon the licensee's receipt of written consent to such monitoring from all roommates of the resident who is requesting the monitoring, or from the roommates' authorized representative, as appropriate; and (c) to the extent practicable, protect the privacy rights of all roommates of the resident who is requesting the monitoring.
(2) The roommate of a resident who requests electronic monitoring of a double occupancy room, or the roommate's authorized representative, may place conditions on his or her consent to the use of electronic monitoring devices within the private double occupancy room, including conditions that require the electronic monitoring devices to be pointed away from the consenting roommate at all times during operation, or at certain specified times. The roommate's consent to electronic monitoring, and any conditions on a roommate's consent that are established pursuant to this paragraph, shall be memorialized in an electronic monitoring agreement that is executed between the consenting roommate and the resident who requested the monitoring, or between their authorized representatives, as appropriate. The licensee, either through its own activities, or through the activities of a third party, shall ensure that the conditions established in the agreement are followed.
(3) Each resident, or the authorized representative thereof, who wishes to install and use an electronic monitoring device in a double occupancy private room, shall file with the licensee: (a) a signed form, developed by the division, formally requesting and giving the resident's express consent for the installation and use of one or more electronic monitoring devices in the double occupancy room; and (b) a copy of the electronic monitoring agreement that has been executed between the resident and the resident's roommate pursuant to paragraph (2) of this subsection, or, if the roommate or the roommate's authorized representative has refused to consent to electronic monitoring of the private room, a copy of the consent declination form that has been signed by the roommate or the roommate's authorized representative.
(4) The installation and use of electronic monitoring devices in a private double occupancy room shall be done in compliance with any installation or building construction constraints that are identified by the licensee in the notice that is provided to the resident pursuant to paragraph (3) of subsection a. of this section.
d. If a resident's roommate or the roommate's authorized representative, as appropriate, refuses to consent to the installation and use of an electronic monitoring device in a private double occupancy room, or if the licensee is unable to ensure compliance with the conditions on such installation and use that are imposed by a consenting roommate or the roommate's authorized representative in the agreement executed pursuant to paragraph (2) of subsection c. of this section, the licensee shall, within a reasonable period of time, and to the extent practicable, transfer the resident requesting the installation of the device to a different private room in order to accommodate the resident's request for private monitoring. If a request for private monitoring cannot be accommodated, the resident or the resident's authorized representative may notify the division, in which case, the division shall make every reasonable attempt to timely transfer the resident to a group home that can accommodate the request.
e. A licensee shall not refuse to admit an individual to a group home, and shall not transfer or remove an individual from a group home, except as otherwise provided by subsection d. of this section, on the basis that the individual, or the individual's authorized representative, has requested electronic monitoring of the individual's private room, as authorized by this section.
f. A licensee shall ensure that a prominent written notice is posted on the entry door to any private room wherein electronic monitoring devices are installed and used pursuant to this section. The notice shall indicate that an electronic monitoring device has been installed in the room, and that visitors will be subject to electronic video monitoring while present therein.
g. All of the costs associated with installation and maintenance of an electronic monitoring device in the private room of a resident shall be paid by the resident who requested the monitoring, or by the authorized representative thereof.
h. (1) Any recordings produced by an electronic monitoring device that has been installed in a private room, pursuant to this section, shall remain the property, and shall be retained in the possession, of the resident or the authorized representative who installed the electronic monitoring device in the private room.
(2) A licensee shall not be authorized to require a resident or the resident's authorized representative, as a condition of installing or using an electronic monitoring device in the resident's private room, to turn over to the licensee, or to otherwise allow the licensee to access or review, any recordings that are produced by the electronic monitoring device in the private room.
(3) Whenever an electronic monitoring device is proposed to be installed in a private double occupancy room, pursuant to this section, the consenting roommate or authorized representative thereof, as the case may be, may elect to provide that, as a condition of the installation and ongoing use of the device in the room, the roommate and the roommate's authorized representative shall have the right and ability to access and review any recordings that are produced by the device, upon request submitted to the resident or authorized representative who owns the device. This condition on the installation and use of an electronic monitoring device in a private double occupancy room, if elected by a consenting roommate or the roommate's authorized representative, shall be memorialized in the electronic monitoring agreement that is executed pursuant to paragraph (2) of subsection c. of this section. Any such electronic monitoring agreement shall also describe the procedures or protocols that are to be used by the owner of the device to ensure that the consenting roommate or the authorized representative thereof, as the case may be, is provided with timely access to all relevant footage recorded by the device, upon submission of a request therefor.
5. 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: (a) 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 3 of this act; and (b) when obtaining consent from residents and roommates for the use of electronic monitoring devices in private double occupancy rooms, as provided by subsection c. of section 4 of this act;
(2) 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
(3) identify the persons who will have access to footage recorded by electronic monitoring devices installed in the group home's common areas and private rooms, 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.
6. a. The division shall:
(1) 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 3 or subsection c. of section 4 of this act, and consent declination forms that are to be filled out and signed by individuals who refuse to consent to such electronic monitoring; and
(2) develop, and post on its Internet website, standardized notice of intent forms that a group home resident and the resident's authorized representative may elect to use when providing a licensee with a notice of intent to engage in electronic monitoring of a private single occupancy room, as required by subsection b. of section 4 of this act.
b. Consent forms and consent declination forms filed under section 3 or subsection c. of section 4 of this act, and notices of intent filed under subsection b. of section 4 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 or consent declination requirements, for the purposes of this act, as deemed by the division to be necessary.
7. 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 or private rooms, 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 or private rooms do not contain electronic monitoring devices on the effective date of this act, the licensee shall comply with the provisions of section 3 and 4 of this act, as applicable, when installing and utilizing new electronic monitoring devices in such unmonitored areas.
8. 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 3 or 4 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 or private rooms, or both, as of the effective date of this act, as provided by section 7 of this act, and that the group home is, therefore, exempt from compliance with the requirements of section 3 or section 4 of this act, as appropriate.
9. a. 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.
b. 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 3 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 8 of this act in response to such failures;
(d) a list of group homes that are exempt from compliance with the provisions of section 3 or 4 of this act, as provided by section 7 of this act;
(e) a list of group homes that have authorized the use of electronic monitoring devices in the private rooms of one or more residents, and an indication of the number and percentage of private single occupancy rooms and private double occupancy rooms in each such facility where electronic monitoring devices are installed and being used, as provided by subsections b. and c. of section 4 of this act; and
(f) 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
(2) post, at a publicly accessible location on the Department of Human Services' 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.
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.
10. 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.
11. 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. 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. The safety and quality of life of individuals with developmental disabilities who receive care from group homes is of paramount concern, and the use of video monitoring is one way in which the State can better ensure the prevention of, and the institution of a more proactive response to, the abuse, neglect, and exploitation of group home residents.
This bill would make video monitoring technology more readily available in group home settings, while taking great care to strike the important and delicate balance between protecting the privacy rights and protecting the overall well-being of group home residents. Specifically, the bill would enable, but not require, group home residents or their authorized representatives, as the case may be, to cooperatively and collectively decide whether to allow for the installation and use of EMDs in the common areas of the group homes, and to individually decide whether to allow for the installation and use of EMDs in the private residential room of each such resident, so that the treatment of such residents can be recorded and instances of abuse, neglect, or exploitation documented with video evidence. In providing these authorizations, the bill respects the rights of all individuals with developmental disabilities, places a premium on their individuality, and recognizes that different people have different needs and preferences with respect to the use of video surveillance.
Scope of Bill
The term "group home" is defined more broadly in this bill than it is in other laws. Specifically, the term is defined to mean a living arrangement that is licensed by the Division of Developmental Disabilities (DDD) in the Department of Human Services (DHS) 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. The revised definition used in the bill makes it clear that this term not only includes facilities that house multiple persons with developmental disabilities, but also includes facilities that, while commonly referred to as supervised apartments, provide group home-style living for a single person who has developmental disabilities and particularly severe behavioral difficulties that prevent them from being housed in a group home with other disabled persons.
The bill would require group homes, as defined thereunder, to install EMDs in the common areas, upon the agreement, request, and uniform consent of all residents. "Common areas" is defined to include entrances, living areas, dining areas, stairwells, and outdoor areas, but not bathroom areas. The bill would additionally require group homes to permit the installation and use of EMDs in the private rooms of group home residents.
The bill is not intended to impose new requirements on those group home providers who already engage in electronic monitoring pursuant to an internal organizational policy. As a result, the bill includes a provision that grandfathers-in and exempts from the bill's provisions those group homes that have already installed, and are utilizing, EMDs as of the bill's effective date. Specifically, the bill provides that any such group home: 1) may continue to use previously installed EMDs in accordance with the organization's written policies; 2) will not be required to remove the devices from service; and 3) will not be required to comply with the bill's consent requirements in order to continue utilizing the devices. However, to the extent that a group home's common areas or private rooms 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 such unmonitored areas. The bill is intended to give residents - particularly those with severe behavioral difficulties - the right to request electronic monitoring in the group home, as necessary to ensure their safe care. The bill is not intended to impose new electronic monitoring requirements on providers that already engage in electronic monitoring; and it is not intended to require other group home providers to commence electronic monitoring, except in those cases where the residents have requested and agreed to such monitoring.
Installation and Use of EMDs in Common Areas
Under the bill's provisions, any group home that does not have EMDs already installed in the group home's common areas will be required to install EMDs 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 EMDs installed and expressly consent to the installation and use of such devices. A licensee will be prohibited from requiring the group home's current residents to consent to the installation and use of EMDs in the common areas as a condition of their continued residency in the group home.
A licensee operating a group home that does not have EMDs already installed in the common areas will be required: 1) within six months after the group home adopts an internal electronic monitoring policy pursuant to the bill's provisions, to take affirmative action to determine whether the residents of the group home and their authorized representatives want and consent to have EMDs installed and used in the group home's common areas; and 2) annually provide written notice to all residents and their authorized representatives informing them of their right to request the installation and use of EMDs in the group home's common areas.
The bill would require any group home that installs and uses EMDs in its common areas, pursuant to the agreement, request, and consent of the residents, to: 1) require each person employed by the group home to provide express written consent to the use of the EMDs 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, in the future, the group home only allows residence by those individuals who consent to the ongoing use of EMDs in the group home's common areas.
The EMDs installed in a group home's common areas are to be unobstructed and recording at all times. Each licensee will be required to inspect the devices, and document the results of each inspection, on a weekly basis. The DHS will further be required to annually conduct an on-site device inspection, as part of its broader group home inspection authority, in order to ensure that the EMDs installed in a group home's common areas are functioning properly, as required by the bill. A resident or the resident's authorized representative will be authorized, upon request submitted to the licensee, to access and review any footage that is recorded by an EMD in the common areas of the group home.
The bill would specify that an individual's refusal to consent to the use of EMDs in a group home's common areas may not be used as a basis to prevent the timely placement of the individual in appropriate housing without surveillance.
The bill would further provide
that nothing in the provisions of section 3, regarding the installation of EMDs
in a group home's common areas, may be deemed to prohibit a group home licensee
from installing and utilizing EMDs 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. This
bill is intended to require the placement of EMDs in common areas only in cases
where group home residents have collectively requested the electronic
monitoring of such common areas. It is not intended to limit a licensee's
discretionary ability to install and utilize EMDs in the common areas, in
accordance with the group home's internal policies, in the absence of a
collective resident request.
Installation and Use of EMDs in Private Rooms
The bill would further require all group homes to permit EMDs to be installed and used, on a voluntary and noncompulsory basis, in the private rooms of residents.
The installation and use of EMDs in a private single occupancy room may be done by the resident or the resident's authorized representative, at any time, following the resident's provision of written notice to the licensee of the resident's intent to engage in electronic monitoring of the private room. Such written notice is to be submitted to the licensee at least 15 days prior to installation of the devices in the private single occupancy room. Any resident, or the authorized representative thereof, who provides such a notice of intent to install EMDs in a private single occupancy room, or who so installs such devices, will be deemed to have implicitly consented to electronic monitoring of the private room.
The installation and use of EMDs in a private double occupancy room may be effectuated only with the express written consent of the roommates of the resident who requested the monitoring, or of the roommates' authorized representatives, as the case may be. A roommate may place conditions on his or her consent to the use of EMDs within the double occupancy room, including conditions that require the EMDs to be pointed away from the consenting roommate at all times during operation, or at certain specified times. The roommate's consent to electronic monitoring, and any conditions on the roommate's consent, are to be memorialized in a formal electronic monitoring agreement that is executed between the consenting roommate and the resident who requested the monitoring, or between their authorized representatives, as appropriate. The licensee, either through its own activities or through a third-party's activities, will be required to ensure that the conditions established in the agreement are followed.
If a resident's roommate or the roommate's authorized representative, as appropriate, refuses to consent to the installation and use of an EMD in a private double occupancy room, or if the licensee is unable to ensure compliance with the conditions on such installation and use that are imposed by a consenting roommate or the roommate's authorized representative, the licensee will be required, within a reasonable period of time, and to the extent practicable, to transfer the resident requesting the installation of the device to a different private room, in order to accommodate the resident's request for private monitoring. If a request for private monitoring cannot be accommodated, the resident or resident's authorized representative may notify the DDD, which will be required to make every reasonable attempt to timely transfer the resident to a group home that can accommodate the request.
All of the costs associated with installation and maintenance of an EMD in a private room are to be paid by the resident who requested the monitoring, or by the authorized representative thereof.
Any recordings produced by an EMD installed in a private room will remain the property, and are to be retained in the possession, of the resident or the authorized representative who installed the EMD in the private room. The bill would specify that a licensee may not require a resident or the resident's authorized representative, as a condition of installing or using an EMD in the resident's private room, to turn over to the licensee, or to otherwise allow the licensee to access or review, any recordings that are produced by the EMD in the private room. Whenever an EMD is proposed to be installed in a private double occupancy room, the consenting roommate or authorized representative thereof, as the case may be, may elect to provide that, as a condition of the installation and ongoing use of the device in the room, the roommate and the roommate's authorized representative shall have the right and ability to access and review any recordings that are produced by the EMD, upon request submitted to the resident or authorized representative who owns the device. This condition, if elected by a consenting roommate or the roommate's authorized representative, is to be memorialized in the electronic monitoring agreement that is executed pursuant to bill's provisions. Any such electronic monitoring agreement will also be required to describe the procedures or protocols that are to be used by the owner of the device to ensure that the consenting roommate or the authorized representative thereof, as the case may be, is provided with timely access to all relevant footage recorded by the device, upon submission of a request therefor.
Additional Provisions
The bill would require a group home licensee, when seeking to obtain consent from residents for electronic monitoring, to 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. The DDD would be authorized to impose any additional consent or consent declination requirements that it deems to be necessary.
Any recordings produced by an EMD in a group home's common areas are to be retained by the group home for a period of 90 days. Any consent forms, consent declination forms, 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. The internal policy is to provide, amongst other things, that whenever a licensee receives notice about a complaint, allegation, or reported incident of abuse, neglect, or exploitation occurring within the group home, the licensee will forward to the DDD, for appropriate review, all potentially relevant footage recorded by EMDs in the group home's common areas.
Any residential program that fails to comply with the bill's requirements will be subject to a penalty of $5,000 for the first offense, and a penalty of $10,000 for the second or subsequent offense, as well as an appropriate administrative penalty, the amount of which is to be determined by the DHS. However, a group home licensee will not be subject to penalties or other disciplinary action for failing to comply with the bill's requirements if the group home licensee establishes, through documentation or otherwise, that EMDs were installed and being utilized in the group home on the bill's effective date, and that the group home is, therefore, exempt from compliance with the bill's provisions related to the placement of EMDs in unmonitored areas.
The Commissioner of Human Services, in consultation with the assistant commissioner of the DDD, will be required to annually report to the Governor and Legislature on the implementation of the bill's provisions. Each annual report is to include: 1) a list of group homes that are currently using EMDs in the common areas; 2) a list of group homes that have not installed EMDs in the common areas; 3) a list of group homes that have failed to install and use EMDs in the common areas, despite the licensee's receipt of uniform resident consent, and an indication of the penalties imposed in response to such failures; 4) a list of group homes that are exempt from the bill's provisions; 5) a list of group homes that have authorized the use of EMDs in the private rooms of one or more residents, and an indication of the number and percentage of private single occupancy rooms and the number and percentage of private double occupancy rooms in each such facility where EMDs are installed and being used; and 6) recommendations for legislative, executive, or other action that can be taken to improve compliance with the bill or otherwise expand the consensual use of EMDs in group homes. The commissioner, in consultation with the assistant commissioner, will also be required to post, at a publicly accessible location on the department's Internet website, the various lists of group homes that the department has produced for its annual reports. Each list posted online is to be searchable both by location and by name of group home. The commissioner will be required to annually update the website to ensure that each posted list contains the most recently reported data.
In addition to the commissioner's annual reports, the bill requires the Ombudsman for Individuals with Intellectual or Developmental Disabilities and Their Families to include, in each of the ombudsman's annual reports, a section evaluating the implementation of the bill and providing recommendations for improvement. 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: 1) identifies best practices for the installation and use of EMDs under the bill; 2) identifies best practices and provides recommendations regarding the obtaining of informed consent for electronic monitoring under the bill; and 3) provides recommendations for the implementation of new legislation, policies, protocols, and procedures related to the use of EMDs in group homes.
