Bill Text: MI SB0077 | 2019-2020 | 100th Legislature | Engrossed
Bill Title: Health facilities: nursing homes; electronic monitoring devices in nursing homes; allow under certain circumstances. Amends secs. 20199, 21702 & 21703 of 1978 PA 368 (MCL 333.20199 et seq.) & adds secs. 21788, 21788a, 21788b, 21788c, 21788d, 21788e, 21788f, 21788g & 21788i.
Spectrum: Partisan Bill (Republican 4-0)
Status: (Enrolled - Dead) 2020-12-30 - Pocket Veto 01/05/2021 [SB0077 Detail]
Download: Michigan-2019-SB0077-Engrossed.html
Substitute For
SENATE BILL NO. 77
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending sections 20199, 21702, and 21703 (MCL 333.20199, 333.21702, and 333.21703), section 21702 as amended by 1994 PA 73 and section 21703 as amended by 2015 PA 155, and by adding sections 21788, 21788a, 21788b, 21788c, 21788d, 21788e, 21788f, 21788g, 21788h, and 21788i.
The people of the state of michigan enact:
Sec. 20199. (1) Except as otherwise provided in subsection (2) or section 20142, this article, a person who violates this article or a rule promulgated or an order issued under this article is guilty of a misdemeanor, punishable by fine of not more than $1,000.00 for each day the violation continues or, in case of for a violation of sections 20551 to 20554, a fine of not more than $1,000.00 for each occurrence.
(2) A person who violates sections 20181 to 20184 is guilty of a misdemeanor , punishable by imprisonment for not more than 6 months , or a fine of not more than $2,000.00, or both.
Sec. 21702. (1) "Discharge" means the
voluntary or involuntary movement of a patient out of a nursing home regardless
of the individual's destination or reason for the movement.
(2) "Electronic monitoring"
means the placement and use of an electronic monitoring device in a resident's
room pursuant to this part.
(3) "Electronic monitoring
device" means a camera or other device that captures, records, or
broadcasts audio or video, or both, and is installed in a resident's room to
monitor activities occurring in the room. Electronic monitoring device
includes, but is not limited to, a monitoring system, video surveillance
camera, web-based camera, or video phone that is installed in the room of a
resident. An electronic monitoring device may be an interactive or recording
device.
(4) (2) "Full-time"
means being usually present in the nursing home or conducting or participating
in activities directly related to the nursing home during the normal 40-hour
business week.
(5) (3) "Involuntary
transfer" means a transfer not agreed to in writing by the patient or, in
the case of a plenary guardianship, by the patient's legal guardian.
(6) (4) "Medicaid"
means the program for medical assistance established under title XIX of the
social security act, chapter 531, 49 Stat. 620, 42
U.S.C. 1396 to 1396f, and 1396i to 1396u, 42
USC 1396 to 1396w-5, and administered by the department of social health
and human services under the social welfare act, Act No. 280 of the Public Acts of 1939, being
sections 1939 PA 280, MCL 400.1
to 400.119b. of
the Michigan Compiled Laws.
(7) (5) "Medical
reasons" means a medical justification for either of the following:
(a) The transfer
or discharge of a patient in accord with the written orders of the attending
physician that is written into the patient's clinical record by the physician
in the progress notes.
(b) The transfer
or discharge of a patient who is a medicaid
Medicaid recipient due to a
change in level of care required by the patient and the fact that the nursing
home or nursing care facility is not certified to provide the needed level of
care.
(8) (6) "Medicare"
means that term as defined in section 2701.
(9) (7) "Modification
of a license" means an action by the department to alter the number of
beds, the levels of care, the portions of the physical plant that may be
operated or maintained by a licensee in a particular nursing home, or to
restrict the nursing home from engaging in activity that violates this article
or a rule promulgated under this article.
(10) (8) "Negative
case action" means an action taken by the department of social services to
deny an application for medical assistance, cancel medical assistance, or
reduce medical assistance coverage.
(11) (9) "Nonpayment"
means:
(a) Failure to
collect from the patient or any other source the full amount of the facility
charges to a nonmedicaid non-Medicaid patient based on a written contract
signed on or after that patient's admission to the facility.
(b) Failure to
collect a medicaid Medicaid
patient's stipulated contribution toward his or her care.
(12) "Notification and consent
form" means the form required to be prescribed by the department under
section 21788b.
(13) (10) "Private pay
rate" means the amount charged by a nursing home for the care of a patient
who is not entitled to state or federal benefits for that patient's nursing
home care.
Sec. 21703. (1) "Patient" means a resident.
(2)
"Patient's representative",
or "resident's
representative", or "roommate's representative" means a
person, other than the licensee or an employee or person having a direct or
indirect ownership interest in the nursing home, designated in writing by a
resident or a resident's guardian for a specific, limited purpose or for
general purposes, or, if a written designation of a representative is not made,
the guardian of the resident.
(3)
"Relocation" means the movement of a resident from 1 bed to another
or from 1 room to another within the same nursing home or within a certified
distinct part of a nursing home.
(4)
"Resident" means an individual who receives care or services at a
nursing home.
(5)
"Transfer" means the movement of a resident from 1 nursing home to
another nursing home or from 1 certified distinct part of a nursing home to
another certified distinct part of the same nursing home.
(6) "Welfare" means, with reference to a resident, the physical, emotional, or social well-being of a resident in a nursing home, including a resident awaiting transfer or discharge, as documented in the resident's clinical record by a licensed or certified health care professional.
Sec. 21788. (1) Subject to the requirements of this part, a nursing home that receives from a resident or resident's representative a written request for electronic monitoring on a notification and consent form shall permit the resident or the resident's representative to monitor the resident in the resident's room through the use of an electronic monitoring device.
(2) This part does
not allow the use of an electronic monitoring device to take still photographs
or for the nonconsensual interception of private communications.
(3) This part
does not alter, abrogate, or limit a resident's right to otherwise use a device
to record audio or video, or both, in the resident's room pursuant to the law.
Sec. 21788a. (1) Except as otherwise
provided in this section, a resident must consent to electronic monitoring in
the resident's room in writing on a notification and consent form.
(2)
The resident's representative may consent to electronic monitoring on behalf of
the resident if all of the following requirements are met:
(a)
An individual licensed or otherwise authorized to engage in a health profession
under part 170 or 175 determines that the resident currently lacks the ability
to understand and appreciate the nature and consequences of electronic
monitoring.
(b)
The resident's representative explains all of the following to the resident:
(i) The type of electronic monitoring to
be used.
(ii) The standard conditions or
restrictions that may be placed on the use of the electronic monitoring device.
(iii) The persons with whom the recording
may be shared.
(iv) The resident's ability to decline
all recording.
(c)
After explaining the items required in subdivision (b), the resident's
representative asks the resident if the resident wants electronic monitoring to
be conducted. The resident's response must be documented on the notification
and consent form.
(d)
The resident does not affirmatively object to electronic monitoring when asked
under subdivision (c). For purposes of this subdivision, a resident
affirmatively objects if the resident orally, visually, or through the use of
auxiliary aids or services declines electronic monitoring.
(3)
If a resident shares a room with another resident, before conducting electronic
monitoring, the consent of the resident's roommate or, subject to subsection
(2), the roommate's representative must be obtained in writing on the
notification and consent form.
(4)
Consent under this section may include any conditions of the individual's
choosing, including, but not limited to, the list of standard conditions or
restrictions described in section 21788b. Regardless of whether consent is
subject to any conditions, the electronic monitoring device may be turned off,
the audio recording may be turned off, the visual recording component of the
electronic device may be blocked, or a curtain may be used to screen an
individual from the visual recording component of the electronic monitoring
device during care according to a plan of care or at any time at the request of
the resident or roommate, or the resident's or roommate's representative if
subsection (2) applies. The nursing home shall comply with a plan of care or a
request described in this subsection. The nursing home shall ensure that its
staff are familiar with the requirements of this subsection and follow a plan
of care or request described in this subsection, including by assisting a
resident or resident's roommate, as necessary, in accordance with the plan of
care or request.
(5)
The resident or roommate, or the resident's or roommate's representative if
subsection (2) applies, may withdraw his or her consent at any time by giving
written notice to the nursing home and any other resident who resides in the
room. If consent is withdrawn under this subsection or if a new roommate moves
into the shared room and consent cannot be obtained from the new roommate or
the roommate's representative, the resident or the resident's representative
shall turn off the electronic monitoring device within 24 hours and remove the
electronic monitoring device from the room within 7 days. If the resident or
the resident's representative does not turn off or remove the electronic
monitoring device within the timeframe required under this subsection, the
nursing home may turn off or remove the electronic monitoring device.
(6)
A nursing home shall make a reasonable effort to allow a resident to change
rooms if consent cannot be obtained from or is withdrawn by a roommate or the
roommate's representative. If a resident chooses to reside in a private room in
order to accommodate the use of an electronic monitoring device, the resident
must pay the private room rate. If a nursing home is unable to accommodate a
resident's request to change rooms, the nursing home shall reevaluate the
request every 2 weeks until the request is fulfilled.
Sec. 21788b. (1) A resident or
resident's representative who wishes to install an electronic monitoring device
shall make the request to the nursing home in writing on a notification and
consent form prescribed by the department.
(2)
The notification and consent form must include, at a minimum, all of the
following information:
(a)
The resident's signed consent to electronic monitoring or, if section 21788a(2)
applies, the signed consent of the resident's representative.
(b)
If the resident shares a room with another resident, the roommate's signed
consent to electronic monitoring or, if section 21788a(2) applies, the signed
consent of the roommate's representative.
(c)
The type of electronic monitoring device to be used.
(d)
The proposed date of installation for scheduling purposes.
(e)
A copy of any contract for maintenance of the electronic monitoring device by
another person.
(f)
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:
(i) Prohibiting audio recording.
(ii) Prohibiting broadcasting of audio or
video.
(iii) 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.
(iv) Turning off the electronic
monitoring device or blocking the visual recording component of the electronic
monitoring device while dressing or bathing is performed.
(v) Turning off the electronic
monitoring device for the duration of a visit with a spiritual advisor,
ombudsman, attorney, financial planner, intimate partner, or other visitor.
(g)
Any other condition or restriction elected by the resident or roommate on the
use of the use of the electronic monitoring device.
(h)
An explanation of the right to report suspected abuse or neglect based on a
video or audio recording created by an electronic monitoring device to the
nursing home, the long-term care ombudsman program, or the department and the
right to mediation through the long-term care ombudsman program under section
21788h. The explanation under this subdivision must include telephone numbers
for the long-term care ombudsman program and the department. As used in this subdivision,
"long-term care ombudsman program" means the long-term care ombudsman
program established pursuant to section 6(aa) of the older Michiganians act,
1981 PA 180, MCL 400.586.
(i)
A statement that an individual is advised to report suspected abuse or neglect
after viewing the recording on which the suspected abuse or neglect is based.
(j)
An acknowledgement of the explanation of rights described in subdivision (h)
and the statement described in subdivision (i) signed by the resident or, if
section 21788a(2) applies, the resident's representative.
(3)
The nursing home shall place a copy of the completed notification and consent
form in the resident's and any roommate's clinical record and provide a copy of
the notification and consent form to the resident and any roommate.
(4)
The department shall prescribe the notification and consent form not later than
60 days after the effective date of the amendatory act that added this section.
(5)
If an electronic monitoring device is installed or used without a completed
notification and consent form, a video or audio recording created by the
electronic monitoring device is inadmissible as evidence in a civil action
against the nursing home.
Sec. 21788c. (1) Except as otherwise
provided in subsection (3)(b), if a resident or resident's representative
chooses to conduct electronic monitoring, the resident or resident's
representative shall pay for all costs of the electronic monitoring, including,
but not limited to, all of the following:
(a)
The purchase cost of the electronic monitoring device.
(b)
Installation costs.
(c)
Maintenance costs.
(d)
Activation costs.
(e)
Removal costs, including, but not limited to, deactivation costs and cancellation
fees.
(2) If a resident or resident's representative chooses to install an electronic monitoring device that uses internet technology for visual or audio monitoring, the resident or resident's representative is responsible for contracting with an internet service provider or paying any additional costs incurred by the nursing home for use of the nursing home's internet provider to conduct the electronic monitoring.
(3) A nursing home shall make reasonable accommodation for electronic monitoring, including, but not limited to, by providing both of the following:
(a) A reasonably secure place to locate the electronic monitoring device. An electronic monitoring device must be placed in a conspicuously visible location in the room.
(b) Access to a power source for the electronic monitoring device. A nursing home shall not charge the resident a fee for the cost of electricity used by an electronic monitoring device.
(4) All
electronic monitoring device installations and supporting services must comply
with the requirements of the National Fire Protection Association (NFPA) 101
Life Safety Code (2000 edition).
Sec. 21788d. (1) If a resident of a
nursing home is electronically monitored, a sign must be clearly and
conspicuously posted at all building entrances accessible to visitors. The sign
must be entitled "Electronic Monitoring" and must state, in large,
easy-to-read type, "The rooms of some residents may be monitored
electronically by or on behalf of the residents.".
(2)
A sign must be clearly and conspicuously posted at the entrance to a resident's
room where electronic monitoring is being conducted. The sign must state, in
large, easy-to-read type, "This room is electronically monitored.".
(3)
The signage required under this section must include a warning to visitors that
they may be electronically monitored, that recordings made by an electronic
monitoring device may be disclosed, and that they should not have an
expectation of privacy.
(4)
The nursing home is responsible for installing and maintaining the signage
required under this section.
Sec. 21788e. (1) A nursing home shall not refuse to admit an
individual as a resident of or remove a resident from the nursing home because
of a request to install an electronic monitoring device.
(2) A nursing
home shall not require an applicant to agree to forego electronic monitoring as
a condition of admission.
(3) A nursing home shall not otherwise retaliate against a resident because of a request to install an electronic monitoring device.
Sec. 21788f. (1) An electronic
monitoring device must include a time and date stamp on all video and audio
recorded.
(2) Subject to
the Michigan rules of evidence and except as otherwise provided in this part, a
video or audio recording created by an electronic monitoring device under this part
is admissible in a civil, criminal, or administrative proceeding in this state.
(3) A video or
audio recording created by an electronic monitoring device under this part must
not be used as evidence in a civil, criminal, or administrative proceeding in
this state that is initiated more than 8 years after the date of the video or
audio recording.
Sec. 21788g. (1) A video or audio recording created by an electronic
monitoring device under this part belongs to the resident.
(2) A nursing
home is not civilly or criminally liable for the inadvertent or intentional
disclosure of a recording by a resident or a resident's representative for a purpose
not authorized by law.
(3) If suspected abuse or neglect of a resident based on a video or audio recording created by an electronic monitoring device is reported to the nursing home and the nursing home requests a copy of the relevant recording, the individual in possession of the recording shall provide a copy to the nursing home. The nursing home shall pay all reasonable costs incurred by the individual in providing the copy.
(4) If suspected abuse or neglect of a resident based on a video or audio recording created by an electronic monitoring device is reported to the long-term care ombudsman program and the resident or resident's representative chooses to enter into mediation with the nursing home through the long-term care ombudsman program under section 21788h, a copy of the recording must be provided to both the nursing home and the long-term care ombudsman program.
(5) As used in this section, "long-term care ombudsman program" means the long-term care ombudsman program established pursuant to section 6(aa) of the older Michiganians act, 1981 PA 180, MCL 400.586.
Sec. 21788h. (1) The long-term care
ombudsman program may loan an electronic monitoring device and related
equipment to a resident or the resident's representative for a period of 30
days if the resident is eligible for Medicaid.
(2)
The long-term care ombudsman program may extend a loan under this section
beyond the original 30-day period at the request of the resident or the
resident's representative.
(3)
Electronic monitoring devices and related equipment loaned under this section must
be provided free of charge.
(4)
A resident or the resident's representative must sign a loan program contract
to receive a loan under this section. The department shall prescribe the loan
program contract not later than 60 days after the effective date of the
amendatory act that added this section. The loan program contract prescribed
under this section must describe the rights and obligations of the parties to
the contract.
(5)
The department shall promulgate rules to implement the loan program under this section,
including rules regarding all of the following:
(a)
The application process.
(b)
The criteria for receipt of a loan, including execution of a loan program
contract.
(c)
Training to be provided to a resident or resident's representative on the use
of the loaned equipment.
(d)
Conditions on the use of the loaned equipment.
(e)
The process and criteria for extending a loan beyond the original 30-day
period.
(f)
Requirements regarding the return of the equipment to the long-term care
ombudsman program.
(g)
Remedies of the long-term care ombudsman program if equipment is not returned.
(6)
The long-term care ombudsman program may act as a mediator and provide
mediation to resolve a dispute between a nursing home and a resident or
resident's representative. The department may promulgate rules to implement the
mediation program under this subsection.
(7)
As used in this section:
(a)
"Long-term care ombudsman program" means the long-term care ombudsman
program established pursuant to section 6(aa) of the older Michiganians act,
1981 PA 180, MCL 400.586.
(b)
"Mediation" means a voluntary process in which a mediator facilitates
communications between parties, assists in identifying issues, and helps
explore solutions to promote mutually acceptable settlement.
Sec. 21788i. (1) The department may promulgate rules to establish all of
the following:
(a) The procedure
by which a resident or a resident's representative must submit a notification
and consent form to a nursing home as required under section 21788b to begin
electronic monitoring.
(b) Requirements
for obtaining and documenting a determination by an individual licensed in a
health profession under part 170 or 175 that a resident currently lacks the
ability to understand and appreciate the nature and consequences of electronic
monitoring as required for the application of section 21788a(2).
(c) The process a
resident or resident's representative must follow to obtain consent to
electronic monitoring from the resident's roommate or the roommate's
representative as required under section 21788a(3).
(d) Requirements
for retention and distribution of the completed notification and consent form
under section 21788b(3).
(e) Standards for
reasonable accommodation by the nursing home to allow for the installation,
maintenance, and use of an electronic monitoring device as required under
section 21788c(3).
(f) Requirements
and procedures for turning off an electronic monitoring device or audio
recording, blocking the visual recording component of an electronic monitoring
device, or using a curtain to screen an individual from the visual recording
component of an electronic monitoring device pursuant to a condition on
consent, request, or plan of care under section 21788a(4).
(g) The procedure
a resident, resident's representative, roommate, or roommate's representative
must follow to withdraw his or her consent to electronic monitoring under
section 21788a(5).
(h) Requirements
and procedures for turning off an electronic monitoring device and removing an
electronic monitoring device when consent is withdrawn or cannot be obtained
from a new roommate or the roommate's representative under section 21788a(5).
(i) Requirements
and procedures a nursing home must follow in installing and maintaining the
signage required under section 21788d.
(2) In promulgating rules under this section, the department shall consider similar rules of other states.
(3) Notwithstanding any provision to the contrary in this act, the department shall not promulgate rules regarding electronic monitoring except as allowed under this section and section 21788h.
Enacting section 1. This amendatory act takes effect June 1, 2021.
