HOUSE BILL NO. 6126
August 17, 2020, Introduced by Reps. Chirkun,
Sabo, Tyrone Carter, Brixie, Tate, Cherry and Yaroch and referred to the
Committee on Health Policy.
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending section 20199 (MCL 333.20199) and by adding section 21788.
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. 21788. (1) A nursing home shall permit a resident or the resident's representative to monitor the resident in the resident's room through the use of an electronic monitoring device if all of the following requirements are met:
(a) The monitoring is completely voluntary and is conducted at the election of the resident or, if the resident has a representative, the resident's representative.
(b) All costs of the monitoring, including, but not limited to, all of the following, are paid by the resident or the resident's representative:
(i) The cost of the electronic monitoring device.
(ii) Installation costs.
(iii) Maintenance costs.
(iv) Activation and deactivation costs.
(v) The cost of internet service unless internet service is provided by the nursing home.
(c) The monitoring is conducted only in the resident's room and in a manner that protects the privacy of other residents and visitors to the nursing home to the extent reasonably possible. If a resident or resident's representative wishes to install an electronic monitoring device in the resident's room, and if the resident shares the room with another resident, the written consent of the other resident or, if the other resident has a representative, the other resident's representative must be obtained before the electronic monitoring device is installed.
(d) There is a notice posted on the door of the resident's room stating that the room is being monitored by an electronic monitoring device.
(f) Storage, access, and broadcasting of video recorded by the electronic monitoring device reasonably ensures that access is limited to only an authorized individual.
(2) This section does not allow the use of an electronic monitoring device to take still photographs or for the nonconsensual interception of private communications.
(3) A nursing home shall make reasonable accommodation for electronic monitoring by providing both of the following:
(a) A reasonably secure place to locate the electronic monitoring device.
(b) Access to a power source for the electronic monitoring device.
(4) A nursing home shall make a reasonable effort to allow a resident to change rooms if consent cannot be obtained from or is revoked by another resident of a nonprivate room or the other resident's representative.
(5) 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.
(6) A nursing home must require a resident or the resident's representative who wishes to install an electronic monitoring device to make the request in writing along with a written declaration that the resident or, if the resident has a representative, the resident's representative accepts all civil and criminal liability for the inadvertent or intentional disclosure of a recording for any purpose not authorized by law and liability for a violation of a resident's right to privacy arising out of any electronic monitoring conducted under this section.
(7) Subject to the Michigan rules of evidence, a tape or other recording created by an electronic monitoring device under this section is admissible in either a civil or a criminal action brought in a court in this state.
(8) A person shall not retain or store a tape or other recording created by an electronic monitoring device under this section for more than 12 months from the date the tape or other recording was created unless the tape or other recording is being used for 1 or more of the following purposes:
(a) By a federal, state, or local governmental agency, including a court or law enforcement agency, in carrying out the agency's functions, or by a private person or entity acting on behalf of a governmental agency in carrying out the agency's functions.
(b) In connection with a civil, criminal, administrative, or arbitration proceeding in a federal, state, or local court or governmental agency or before any self-regulatory body, including investigation in anticipation of litigation, or pursuant to an order of a federal, state, or local court, administrative agency, or self-regulatory body.
(c) To monitor a specific health condition, behavior, or degenerative condition at the direction of an individual licensed under part 170 or 175.
(9) A resident, or if the resident has a representative, the resident's representative may revoke an election under subsection (1)(a) by giving written notice of the revocation to the nursing home. The resident or the resident's representative shall turn off the electronic monitoring device within 24 hours and remove the electronic monitoring device within 7 days of revoking an election. The resident or the resident's representative shall pay for all costs of discontinuing the monitoring, including, but not limited to, deactivation costs and cancellation fees.
(10) Another resident of a nonprivate room or, if the other resident has a representative, the other resident's representative may revoke consent given under subsection (1)(c) by giving written notice of the revocation to the nursing home and the resident who is being monitored or that resident'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 within 7 days of receiving notice of a revocation of consent.
(11) Before June 1, 2020, a nursing home shall establish a written policy to implement this section. The policy may include, but is not limited to, all of the following:
(a) The procedure for a resident or the resident's representative or family member to request the monitoring of the resident's room by an electronic monitoring device.
(b) The procedure for obtaining consent from the resident, or if the resident has a representative, the resident's representative, if a family member makes the request for monitoring.
(c) The procedure for obtaining consent from another resident of a nonprivate room or, if the other resident has a representative, the other resident's representative, including the procedure for determining which areas of a nonprivate room may be monitored by an electronic monitoring device and identifying the times of the day or activities, exams, or care during which the electronic monitoring device must be blocked or turned off.
(d) The procedure for a resident or the resident's representative to request a room change if consent cannot be obtained from or is revoked by another resident of a nonprivate room or the other resident's representative.
(e) The procedure for protecting the privacy of a resident and the resident's care.
(f) The procedure by which the resident, an authorized individual, and the nursing home may access a tape or other recording created by an electronic monitoring device.
(g) The procedure by which the resident or the resident's representative shall share the contents of a tape or other recording created by an electronic monitoring device with the nursing home if a complaint is made based on the contents of the tape or other recording.
(h) The right of an employee to request that a recording be used as evidence in a complaint or police report filed by an employee.
(i) The right of the resident or another resident of a nonprivate room to request that the electronic monitoring device be turned off for any reason elected by the resident or another resident of a nonprivate room as a condition of his or her consent or his or her representative's consent to the use of an electronic monitoring device in the room.
(j) Restrictions on sharing a tape or other recording created by an electronic monitoring device with third parties, except that the policy shall not restrict the sharing of a tape or other recording with a person described in subsection (8) for a purpose described in subsection (8).
(k) The procedure for a resident or the resident's representative to revoke an election under subsection (1)(a).
(l) The procedure for another resident of a nonprivate room or the other resident's representative to revoke consent given under subsection (1)(c).
(12) A nursing home is not civilly or criminally liable for either of the following:
(a) The inadvertent or intentional disclosure of a recording by a resident or an authorized individual for any purpose not authorized by law.
(b) A violation of a resident's right to privacy arising out of any electronic monitoring conducted under this section.
(13) This section 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.
(14) The department may promulgate rules to implement, administer, and enforce this section. In promulgating rules under this section, the department shall consider similar rules of other states.
(15) As used in this section, "authorized individual" means the resident's representative or a person appointed by the resident or the resident's representative to monitor recordings made under this section.
Enacting section 1. This amendatory act takes effect June 1, 2020.