AN ACT relating to long-term care facilities.

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AN ACT relating to long-term care facilities. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
SECTION 1. A NEW SECTION OF KRS CHAPTER 216 IS CREATED TO 3
READ AS FOLLOWS: 4
(1) As used in this section: 5
(a) "Attorney-in-fact" means a person designated as such by a durable power 6
of attorney pursuant to KRS Chapter 457; 7
(b) "Cabinet" means the Cabinet for Health and Family Services; 8
(c) "Electronic monitoring device" means a surveillance instrument with a 9
fixed position video camera or an audio recording device, or a combination 10
thereof, that is installed in a resident's room and broadcasts or records 11
activities or sounds occurring in the room; 12
(d) "Guardian" has the same meaning as in KRS 387.510; 13
(e) "Long-term care facility" has the same meaning as in KRS 216.510; and 14
(f) "Resident" means a person who resides in a long-term care facility. 15
(2) Subject to the provisions of subsections (6) to (9) of this section, a resident or a 16
resident's guardian or attorney -in-fact may authorize the installation and use of 17
an electronic monitoring device in the resident's room in a long -term care 18
facility. 19
(3) The installation and use of an electronic monitoring device may be authorized if: 20
(a) The resident or resident's guardian or attorney -in-fact completes the form 21
created under subsection (10) of this section and submits it to the long -term 22
care facility; and 23
(b) Other than the cost of electricity for the device , the resident or the resident's 24
guardian or attorney -in-fact pays for the device and the cost of installing, 25
maintaining, and removing the device, including the payment for an 26
internet service provider for the device unless the long -term care facility 27
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provides public-use internet or other publicly available Wi-Fi systems. 1
(4) A resident who has authorized the installation and use of an electronic 2
monitoring device may withdraw that authorization at any time. Documentation 3
of this withdrawal shall be included in the resident's clinical record. 4
(5) A resident's express refusal of an electronic monitoring device supersedes a 5
guardian's or attorney-in-fact's consent unless otherwise authorized by a court. 6
(6) (a) If a resident wishing to conduct authorized elec tronic monitoring of the 7
resident's room lives with another resident in a long -term care facility, the 8
consent of the other resident or the other resident's guardian or attorney -in-9
fact to the installation and use of an electronic monitoring device in the 10
room shall be obtained before any installation or use of such device may 11
occur. 12
(b) The other resident or resident's guardian or attorney -in-fact shall give 13
consent by completing the relevant part of the form created under 14
subsection (10) of this section. 15
(7) If a resident living in a room with another resident wishes to conduct authorized 16
electronic monitoring of the resident's room, but the other resident or other 17
resident's guardian or attorney -in-fact refuses to consent to the installation and 18
use of an electronic monitoring device, the facility shall make a reasonable 19
attempt to accommodate the resident wishing to conduct authorized electronic 20
monitoring by moving one (1) of the residents to another available room with the 21
consent of the resident being moved or the resident's guardian or attorney -in-22
fact. 23
(8) In the case of a resident living in a room with another resident, the other resident 24
or other resident's guardian or attorney -in-fact may place conditions on any 25
consent to the installation and use of an electronic monitoring device, including 26
conditions such as pointing the device away from the other resident or limiting or 27
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prohibiting the use of certain devices. If conditions are placed on consent, the 1
device shall be installed and used in accordance with those conditions. 2
(9) A resident whose consent is required under this section may withdraw that 3
consent at any time. Documentation of this withdrawal shall be included in the 4
resident's clinical record. 5
(10) Any resident who has previously authoriz ed the installation of an electronic 6
monitoring device must obtain consent from any new resident that moves into the 7
monitored room before the existing resident may continue authorized electronic 8
monitoring. 9
(11) The cabinet shall create a form for use by a resident or resident's guardian or 10
attorney-in-fact seeking to authorize the installation and use of an electronic 11
monitoring device in the resident's room in a long -term care facility. The form 12
shall contain, at a minimum: 13
(a) The date; 14
(b) An explanation of this section; 15
(c) An acknowledgement that the resident or resident's guardian or attorney-in-16
fact has consented to the installation and use of the device in the resident's 17
room; 18
(d) In the case of a resident who lives in a room with another resident, an 19
acknowledgement that the other resident or other resident's guardian or 20
attorney-in-fact has consented to the installation and use of the device and a 21
description of any conditions placed on that consent; 22
(e) A section for the resident or resident's gu ardian or attorney -in-fact to 23
provide the facility with information regarding the type of device to be 24
installed and how it will function and be monitored; and 25
(f) A statement that the facility is released from liability in a civil or criminal 26
action or ad ministrative proceeding for a violation of the resident's right to 27
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privacy in connection with using the device. 1
(12) The form created under subsection (11) of this section shall be made available by 2
long-term care facilities upon request of a resident or r esident's guardian or 3
attorney-in-fact. 4
(13) The completed form shall be stored in the resident's clinical record. 5
(14) An electronic monitoring device shall be installed in a clearly visible location. 6
(15) A long -term care facility shall make reasonable a ccommodations for the 7
installation of the authorized electronic monitoring device, including but not 8
limited to: 9
(a) Providing a reasonably secure and safe place to mount the electronic 10
monitoring device; 11
(b) Providing access to a power source for the electronic monitoring device; 12
and 13
(c) Permitting a reasonable time schedule as to the proper day and time for 14
installation of the electronic monitoring device. 15
(16) Recordings made by an electronic monitoring device: 16
(a) May only be used to promote safety or investigate a reported incident; 17
(b) Shall not be used for routine staff evaluation or discipline unrelated to a 18
documented incident involving the resident; and 19
(c) Shall be retained for at least three (3) months or until final resolution of 20
any investigation, criminal proceeding, or civil proceeding, whichever is 21
longer. 22
(17) A resident or resident's guardian or attorney -in-fact shall report any recordings 23
demonstrating unsafe or abusive actions to the long -term care facility 24
administrator and the long-term care ombudsman. 25
(18) A long -term care facility shall post a notice in a conspicuous place at the 26
entrance to a resid ent's room that contains an electronic monitoring device 27
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stating that an electronic monitoring device is in use in that room. 1
(19) A person or resident shall not be denied admission to or discharged from a long -2
term care facility or otherwise discriminated or retaliated against because of the 3
decision to authorize the installation and use of an electronic monitoring device 4
in the resident's room in the facility. 5
(20) A person other than the resident or resident's guardian or attorney -in-fact who 6
authorized the installation and use of an electronic monitoring device in the 7
resident's room in a long -term care facility shall not intentionally obstruct, 8
tamper with, or destroy the device or a recording made by the device. 9
(21) Except as provided in subsection (2 2) of this section, the images displayed or 10
sounds recorded by an electronic monitoring device installed in a resident's room 11
may be intentionally viewed or listened to by only: 12
(a) The resident; 13
(b) The resident's guardian or attorney-in-fact; or 14
(c) Law enforcement personnel. 15
(22) A resident or resident's guardian or attorney -in-fact may authorize a person to 16
view or listen to the images displayed or sounds recorded by an electronic 17
monitoring device installed in a resident's room. 18
(23) Long-term care facilities acting in good faith and in compliance with this section 19
shall not be civilly or criminally liable for: 20
(a) Disclosure of recordings by a resident or guardian; or 21
(b) Alleged invasions of privacy resulting from resident -directed monitoring, 22
including liability for a violation of the Health Insurance Portability and 23
Accountability Act. 24
(24) This section shall not: 25
(a) Be construed to provide immunity for abuse, neglect, exploitation, or failure 26
to meet the required standard of care; 27
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(b) Limit resident's right to pursue claims of negligence or misconduct; or 1
(c) Limit long -term care facility or its employees or agents from utilizing 2
disclosed recordings as evidence in a criminal or civil proceeding. 3
(25) The cabinet shall promulgate administrative regu lations in accordance with KRS 4
Chapter 13A to implement this section. 5
(26) This section shall not apply if an electronic monitoring device is installed by a 6
law enforcement agency and is used solely for a bona fide law enforcement 7
purpose. 8
(27) A person that intentionally violates subsection (20), (21), or (22) of this section by 9
tampering with an electronic monitoring device is guilty of a Class B 10
misdemeanor. 11