Rhode Island’s Electronic Monitoring in Nursing and Assisted Facilities Act (the “Act”) will become effective January 30, 2025.[1] The Act allows for installation and use of electronic monitoring devices, including any photo, video, and/or audio surveillance equipment with a fixed position, that broadcasts or records activities or sounds occurring in a facility resident’s room or private living unit.[2]
Facilities Affected by the Act
Skilled Nursing Facilities (“SNFs”) licensed pursuant to Licensing of Nursing Facilities (216-RICR-40-10-1) and Assisted Living Residences (“ALFs”) licensed pursuant to Licensing Assisted Living Residences (216-RICR-40-10-2) (collectively a “Facility”) fall within the purview of the Act.[3]
Consent Required by Resident or Resident’s Representative
Under the Act, a resident of a Facility subject to the Act, or a resident’s representative, including a healthcare agent or agent acting pursuant to a durable power of attorney, a court appointed guardian, a resident’s spouse, or a resident’s parent must consent in writing to electronic monitoring.[4] If the resident has not affirmatively objected to electronic monitoring and the resident’s healthcare provider determines that the resident lacks the ability to understand and appreciate the nature and consequences of electronic monitoring, the resident’s representative may consent on behalf of the resident.[5] A resident may “affirmatively object” via any verbal or written statements, or made through the use of auxiliary aids or services, or any visual cue, that indicates that a resident is opposed to electronic monitoring within their room, except if the resident has been determined to lack the requisite capacity to make his/her own healthcare decisions.[6]
A resident representative seeking to consent on a resident’s behalf shall first inquire if the resident consents to electronic monitoring, and explain to the resident:
- The type of electronic monitoring to be used;
- The standard conditions that may be placed on the electronic monitoring devices use;
- With whom the recording may be shared under the Act; and
- The resident’s ability to decline any or all recording.[7]
Consent Required by Resident’s Roommate
Prior to implementing electronic monitoring, written consent of a resident’s roommate or roommate’s representative is required.[8] Consent by a resident’s roommate authorizes use by the roommate of any recording made under the Act.[9] Any resident conducting electronic monitoring shall immediately remove or disable an electronic monitoring device prior to a new roommate moving into a shared room or shared private living unit, unless the resident obtains the roommate’s or roommate’s resident representative’s written consent prior to the roommate moving into the shared room or shared private living unit.[10] The resident or roommate, or their respective representatives, may withdraw consent at any time and the withdrawal of consent shall be documented.[11] If a new roommate, or the new roommate’s representative when consenting on behalf of the new roommate, does not submit to the Facility a completed notification and consent form and the resident conducting the electronic monitoring does not remove or disable the electronic monitoring device, the Facility shall remove the electronic monitoring device.[12] Similarly, a roommate, or representative, may withdraw consent for electronic monitor by submitting an updated notification and consent form.[13] Following submission, a Facility shall remove the electronic monitoring device if the resident conducting the monitoring refuses to do so.[14]
Notice and Consent Forms
Consent from the resident, or a representative, as well as a resident’s roommate if applicable, is required prior to commencing electronic monitoring.[15] Electronic monitoring may only begin after the resident or resident’s representative completes a notification and consent form and submits said forms to the Facility where they reside.[16] The Facility, upon receipt of the consent form, shall maintain the original consent form in the resident’s file.[17]
Under the Act, the Rhode Island Department of Health (“RIDOH”) shall, in addition to promulgating regulations regarding electronic monitoring, prescribe a notification and consent form to be used at affected facilities within sixty (60) days after the Act’s effective date.[18] A Facility must make the notice and consent form available to its residents and inform its resident of the option to conduct electronic monitoring.[19] RIDOH has yet to publish the notification and consent form. Nevertheless, a Facility should abide by the following requirements for notification and consent forms prescribed by the Act until such time:
- The resident’s signed consent to electronic monitoring or the signature of the resident representative, if applicable.
- If a resident’s representative signs the consent form, the form shall document:
- The date the resident was asked if the resident wants electronic monitoring to be conducted;
- Who was present when the resident was asked;
- An acknowledgment that the resident did not affirmatively object; and
- The source of authority allowing the resident representative to sign the notification and consent form on the resident’s behalf.[20]
For residents desiring electronic monitoring who reside with a roommate, notice and a consent form indicating the roommate’s consent shall include:
- The resident’s roommate’s signed consent or the signature of the roommate’s resident representative, if applicable.
- If a roommate’s resident representative signs the consent form, the form shall document:
- The date the roommate was asked if the roommate wants electronic monitoring to be conducted;
- Who was present when the roommate was asked;
- An acknowledgment that the roommate did not affirmatively object; and
- The source of authority allowing the resident representative to sign the notification and consent form on the roommate’s behalf.[21]
Regardless of single occupancy or otherwise, the consent and notification form shall include:
- The type of electronic monitoring device to be used;[22]
- Any installation needs, such as the mounting of a device to a wall or ceiling;[23]
- 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:
- Prohibiting audio recording;
- Prohibiting video recording;
- Prohibiting broadcasting of audio or video;
- 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 healthcare professional;
- Turning off the electronic monitoring device or blocking the visual recording component of the electronic monitoring device while dressing or bathing is performed; and
- Turning off the electronic monitoring device for the duration of a visit with a spiritual adviser, ombudsman, attorney, financial planner, intimate partner, or other visitor.[24]
- Any other condition or restriction elected by the resident or roommate on the use of an electronic monitoring device;[25]
- A statement of the circumstances under which a recording may be disseminated[26] and
- A signature box for documenting that the resident or roommate has withdrawn consent.[27]
Facility Accommodation of Request for Electronic Monitoring
If a resident of a Facility who is residing in a shared room or shared living unit, or the resident’s representative wants to conduct electronic monitoring and another resident living in or moving into the same shared room or shared living unit refuses to consent to the use of an electronic monitoring device, the Facility shall make a reasonable attempt to accommodate the resident who wants to conduct electronic monitoring.[28] A reasonable attempt to accommodate a resident or resident representative wanting to conduct electronic monitoring when, upon notification that a roommate has not consented to the use of an electronic monitoring device in the resident’s room, shall be satisfied if the Facility offers to move the resident to another shared room or shared living unit that is available at the time of the request.[29] A resident choosing to reside in a private room or private unit in order to accommodate the use of an electronic monitoring shall pay either the private room rate in a SNF setting or applicable rent in an ALF setting.[30] If a Facility is unable to accommodate a resident due to lack of space, the Facility shall reevaluate the request every two (2) weeks until the request is fulfilled.[31] Notably, a Facility is not required to provide a private room, a single-bed room, or a private living unit to a resident who is unable or unwilling to pay.[32]
Importantly, a Facility is prohibited from refusing to admit a potential resident or removing a resident because the Facility disagrees with the decision of the potential resident, the resident, or a resident representative acting on behalf of the resident regarding electronic monitoring.[33] Likewise, a Facility may not retaliate or discrimination against a resident for consenting or refusing to consent to electronic monitoring.[34]
Cost and Installation
Residents or residents’ representatives are responsible for the purchase, installation, maintenance, removal of electronic monitoring devices, and contracting with an internet service provider if necessary.[35] Any electronic monitoring devices must include timestamping of all videos and movement tracking must be able to be turned off.[36]
If electronic monitoring devices are in use at a Facility, the Facility must post signage, at its own expense, at each Facility entrance stating, “The rooms of some residents may be monitored electronically by or on behalf of the residents” as well as signage at the entrance of the resident room conducting electronic monitoring stating “This room is electronically monitored.”[37]
Dissemination of Recordings
Any electronic monitoring device recording shall be considered the personal property of the resident who installed the device.[38] Resident written consent is required for any person, Facility, or Facility representative to access footage from an electronic monitoring device and a recording or copy of footage may only be disseminated for the purpose of addressing health, safety, or welfare concerns of one or more residents.[39] Notably, a resident or resident’s representative shall provide a copy of any video or audio recording to parties involved in a civil, criminal, or administrative proceeding upon request of a party to the proceeding.[40]
Penalties
The Director of RIDOH may issue a statement of deficiency upon a finding that a Facility has failed to comply with any provisions of the Act.[41] For each violation, any licensed Facility shall be guilty of a misdemeanor for each violation punishable by a fine of not more than $500.[42] Any person convicted of a violation pursuant to the Act (accessing any video or audio recording created through authorized electronic monitoring without the written consent of the resident or resident representative) shall be guilty of a misdemeanor for each violation punishable by a fine of not more than $500 or imprisonment not more than six months or both.[43]
AP& S is continuing to review and analyze the Act and will update clients as RIDOH implements regulations. Please contact us with any questions or comments.
[1] R.I. Gen. Laws § 23-17.29 et seq.
[2] R.I. Gen. Laws § 23-17.29-1(5).
[3] R.I. Gen. Laws § 23-17.29-1(6)(i)-(ii)
[4] R.I. Gen. Laws §§ 23-17.29-1(8); 23-17.29-3(a)
[5] R.I. Gen. Laws § 23-17.29-3(a)
[6] R.I. Gen. Laws § 23-17.29-1(1)
[7] R.I. Gen. Laws § 23-17.29-3(b)(1) – (4)
[8] R.I. Gen. Laws § 23-17.29-3(d)
[9] Id.
[10] R.I. Gen. Laws § 23-17.29-3(e)
[11] R.I. Gen. Laws § 23-17.29-3(f)
[12] R.I. Gen. Laws § 23-17.29-5(d)
[13] R.I. Gen. Laws § 23-17.29-3(f)
[14] R.I. Gen. Laws § 23-17.29-5(e)
[15] R.I. Gen. Laws § 23-17.29-3(d)
[16] R.I. Gen. Laws § 23-17.29-5(a)
[17] R.I. Gen. Laws § 23-17.29-5(b)
[18] R.I. Gen. Laws §§ 23-17.29-6(c); 23-17.29-16
[19] R.I. Gen. Laws §23-17.29-6(b)
[20] R.I. Gen. Laws § 23-17.29-6(a)(1)(i) – (iv)
[21] R.I. Gen. Laws § 23-17.29-6(a)(2)(i) – (iv)
[22] R.I. Gen. Laws § 23-17.29-6(a)(3)
[23] R.I. Gen. Laws § 23-17.29-6(a)(4)
[24] R.I. Gen. Laws § 23-17.29-6(a)(5)(i) – (vi)
[25] R.I. Gen. Laws § 23-17.29-6(a)(6)
[26] R.I. Gen. Laws § 23-17.29-6(a)(7)
[27] R.I. Gen. Laws § 23-17.29-6(8)
[28] R.I. Gen. Laws § 23-17.29-4
[29] See id.
[30] See id.
[31] Id.
[32] Id.
[33] R.I. Gen. Laws § 23-17.29-13(a)(1)
[34] R.I. Gen. Laws § 23-17.29-7(a)(2)
[35] R.I. Gen. Laws §§ 23-17.29-7(a); 23-17.29-7(c).
[36] R.I. Gen. Laws § 23-17.29-7(b).
[37] R.I. Gen. Laws § 23-17.29-8(a) – (c)
[38] R.I. Gen. Laws § 23-17.29-10(a)
[39] R.I. Gen. Laws § 23-17.29-10(b) – (c)
[40] R.I. Gen. Laws § 23-17.29-10(d)
[41] R.I. Gen. Laws § 23-17.29-15(a)
[42] R.I. Gen. Laws § 23-17.29-15(b)
[43] R.I. Gen. Laws § 23-17.29-15(c)
