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AB-1300 Residential care facilities for the elderly: electronic monitoring.(2021-2022)

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Date Published: 02/19/2021 09:00 PM
AB1300:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1300


Introduced by Assembly Member Voepel

February 19, 2021


An act to add Article 10 (commencing with Section 1569.90) to Chapter 3.2 of Division 2 of the Health and Safety Code, relating to residential care facilities for the elderly.


LEGISLATIVE COUNSEL'S DIGEST


AB 1300, as introduced, Voepel. Residential care facilities for the elderly: electronic monitoring.
The California Residential Care Facilities for the Elderly Act (act) requires the State Department of Social Services to license, inspect, and regulate residential care facilities for the elderly and imposes criminal penalties on a person who violates the act or who willfully or repeatedly violates any rule or regulation adopted under the act. The act enumerates specific rights and liberties for residents that are to be posted inside the facility and personally provided to each resident. These rights include, among others, being granted a reasonable level of personal privacy in accommodations, medical treatment, personal care and assistance, visits, communications, telephone conversations, use of the internet, and meetings of resident and family groups.
This bill would enact the Electronic Monitoring in Residential Care Facilities for the Elderly Act to authorize the use of electronic monitoring devices either inside a resident’s room by a resident or in certain areas of a facility by the facility under specified conditions. For the use of a personal electronic monitoring device inside a resident’s room by a resident, the bill would require, among other things, the resident or the resident’s representative, as defined, to provide the facility with a completed notification and consent form, as specified, that includes the consent of the resident’s roommate, if any. The bill would also require the resident or the resident’s representative to post a sign at the entrance to the resident’s room stating that the room is monitored electronically. For the use of a facility electronic monitoring device, the bill would require the facility to, among other things, post signage at all entrances and exits that provides notice of electronic monitoring, archive the electronic monitoring digital data for 365 days, and provide the department access to the data upon 24 hours’ notice. By expanding the duties of licensed facilities under the act with regard to authorizing residents and facilities to conduct electronic monitoring under these conditions, the bill would expand an existing crime, thereby imposing a state-mandated local program.
The bill would make it a misdemeanor to knowingly hamper, obstruct, tamper with, or destroy a personal electronic monitoring device or a facility electronic monitoring device or the recordings made therefrom, except as provided. The bill would make it a felony to knowingly hamper, obstruct, tamper with, or destroy a personal electronic monitoring device or a facility electronic monitoring device or the recordings made therefrom in the commission of, or in the attempt to conceal the commission of, a felony. By creating new crimes, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Article 10 (commencing with Section 1569.90) is added to Chapter 3.2 of Division 2 of the Health and Safety Code, to read:
Article  10. Electronic Monitoring

1569.90.
 This article shall be known, and may be cited as, the Electronic Monitoring in Residential Care Facilities for the Elderly Act.

1569.91.
 For purposes of this article, the following definitions shall apply:
(a) “Department” means the State Department of Social Services, Community Care Licensing Division.
(b) “Electronic monitoring ” means the placement and use of a personal electronic monitoring device by a resident in their room, or by a facility in accordance with this article.
(c) “Facility” means a residential care facility for the elderly licensed pursuant to this chapter.
(d) “Facility electronic monitoring device” means one or more pieces of equipment, instruments, or components that are owned by the facility and have fixed position video camera or cameras installed in the facility’s public spaces that broadcast, stream, or record sounds or activity occurring in the room to a third party having access to a receiver, a web-based application, or ancillary transmission method outside of the room.
(e) “Personal electronic monitoring device” means one or more pieces of equipment, instruments, or components, including, but not limited to, a fixed position video camera, an audio device (including microphones, baby monitors, or application-based electronic assistants), or a combination thereof, that is installed in a resident’s room under the provisions of this article, that broadcasts, streams, or records sounds, activity, or both occurring in the room to a third party having access to a receiver, a web-based application, or ancillary transmission method. Such equipment is owned by the resident or resident’s representative. Such electronic monitoring device shall be limited to commercially produced consumer systems and equipment with cloud-based digital storage.
(f) (1) “Representative” means any of the following:
(A) An individual chosen by the resident to act on behalf of the resident in order to support the resident in decision-making, accessing medical, social, or other personal information, managing financial matters, or receiving notifications.
(B) A person authorized by state or federal law, including, but not limited to, agents under power of attorney, representative payees, and other fiduciaries, to act on behalf of the resident or roommate in order to support the resident or roommate in decision-making, accessing medical, social, or other personal information, managing financial matters, or receiving notifications.
(C) A legal representative, is as used in Section 712 of the federal Older Americans Act of 1965, as amended (P.L. 89-63).
(D) The resident’s court-appointed guardian or conservator.
(2) This definition does not expand the scope of authority of any resident or representative beyond the authority specifically authorized by the resident, state or federal law, or a court of competent jurisdiction.

1569.92.
 (a) A resident or representative may install or cause to be installed a personal electronic monitoring device in the resident’s room or rooms for the purpose of voluntarily conducting electronic monitoring.
(b) If the resident or representative chooses to install a personal electronic monitoring device, the resident or representative shall be responsible for contracting with an internet service provider and paying for access to the digital application.
(c) The facility shall make a reasonable attempt to accommodate the resident’s installation needs, including, but not limited to, allowing escorted access to the facility. The facility has the burden of showing that the requested accommodation is not reasonable.
(d) The personal electronic monitoring device shall be conspicuously placed in the room or rooms.
(e) (1) If a resident has an active personal electronic monitoring device in the room or rooms, a sign shall be clearly and conspicuously posted at the entrance to the resident’s room. The sign shall be printed in black three-quarter-inch inch Helvetica font and shall read, “This room is electronically monitored.”
(2) The resident or representative is responsible for posting the sign required by this subdivision. The facility shall notify the resident or representative of the signage requirement.
(f) This article does not permit the use of a personal electronic monitoring device to take still photographs or for the nonconsensual interception of private communications.

1569.93.
 (a) A resident or representative shall commence electronic surveillance after a notification and consent form is completed and submitted to the facility.
(b) The notification and consent form required by subdivision (a) shall include all of the following information:
(1) The resident’s or representative’s signed consent to electronic monitoring.
(2) If the resident has a roommate, the roommate’s or the roommate’s representative’s consent to electronic monitoring.
(3) The type of electronic monitoring device to be used.
(4) The installation and setup needs of the electronic monitoring device.
(c) A copy of the completed notification and consent form shall be placed in the resident’s room and in the files of the resident and, if applicable, the resident’s roommate.
(d) On or before March 1, 2022, the department shall prescribe the form of the notification and consent form required pursuant to subdivision (a).
(e) (1) A resident using a personal electronic monitoring device shall disable the device when a new roommate moves in to the space until the resident obtains a notification and consent form from the new roommate.
(2) If a new roommate refuses to consent to the personal electronic monitoring device, the facility shall make reasonable attempts to accommodate the resident who wants electronic monitoring by relocating that resident to another suitable room within the facility at the same monthly rate. If the resident who wants electronic monitoring chooses to reside in a private room in order to use a personal electronic monitoring device, the resident shall pay the private room rate if required by the licensee. If the facility is unable to accommodate the resident due to lack of suitable available space, the facility shall reevaluate the request at least monthly until the request is fulfilled.
(f) A resident or representative, or a roommate or their representative, may withdraw consent at any time. Withdrawal of consent shall be documented in the resident’s record. If a roommate withdraws consent and the resident wishes to continue use of the personal electronic monitoring device, the facility shall make reasonable attempts to accommodate the resident who wants to continue electronic monitoring by relocating the resident to another suitable room in the facility at the same monthly rate. If the facility is unable to accommodate the resident due to lack of space, the facility shall reevaluate the request at least monthly until the request is fulfilled.
(g) The resident or roommate, or their representatives, can condition their consent on specified conditions, which shall be noted on the notification and consent form. These conditions may include any of the following:
(1) Requiring that the personal electronic monitoring device be turned off or that the visual component be blocked for the duration of an exam or procedure by a health care professional.
(2) Requiring that the personal electronic monitoring device be turned off for the duration of a visit with a spiritual advisor, ombudsman, attorney, financial planner, intimate partner, or other visitor.
(3) Any other condition or restriction elected by the resident or roommate on the use of the personal electronic monitoring device.

1569.94.
 (a) A resident or roommate may temporarily turn off the personal electronic monitoring device, disable or block the visual recording or streaming component of the device, or disable, block, or reduce the volume of the audio recording or streaming component of the device for any reason. A resident or roommate may also request that a third party facilitate the temporary disablement, blockage, or shut down of the personal electronic monitoring device.
(b) The facility shall not be civilly or criminally liable for a violation of a resident’s right to privacy arising out of the use of resident’s personal electronic monitoring device unless the violation of a resident’s right to privacy results from the facility’s wrongdoing or failures pursuant to the provisions of Section 1569.97.

1569.95.
 (a) A resident or representative choosing to conduct electronic monitoring must do so at the resident’s or representative’s own expense, including paying for the purchase, installation, maintenance, data archival, digital application subscription, and removal costs. All electronic monitoring digital data, including sound and video, shall remain the property of the resident or representative. The resident or representative has no obligation to share the digital data with a third party, including the facility, except pursuant to a court order.
(b) b) If a resident or representative chooses to install a personal electronic monitoring device that uses internet technology for visual or audio monitoring, the resident is responsible for contracting with an internet service provider, unless internet service is included in the facility’s monthly rental rate.
(c) A facility may not charge the resident a fee for the cost of electricity used by a personal electronic monitoring device.

1569.96.
 (a) A facility shall not access digital data created by a personal electronic monitoring device without the written consent of the resident or representative or a court order.
(b) The owner of a personal electronic monitoring device shall provide a copy of any digital data to parties involved in a civil, criminal, or administrative proceeding, upon a court order, if the digital data was made during the time period that the conduct at issue in the proceeding allegedly occurred.

1569.97.
 (a) A facility electronic monitoring device without audio components may only be used in the following areas of the facility:
(1) Entrances and exits, providing that the cameras are focused only on the entrance or exit doorways.
(2) Areas used exclusively by employees, including, but not limited to, medication preparation and storage areas and food preparation areas.
(3) Facility lobby, foyer, or similar areas used for the reception of nonresidents.
(4) Common indoor areas, including areas for dining and leisure activities. A restroom or sleeping area is not a common area for these purposes and shall not be monitored electronically under any circumstances.
(5) Outdoor areas, including valet and common parking lots, delivery areas, gardens, landscaped grounds, or other exterior common areas.
(b) A facility using a facility electronic monitoring device shall do all of the following:
(1) Ensure that broadcasting, streaming, or recording of live-captured activity displayed on a screen or other device is inaccessible for viewing by residents, unauthorized employees, or third parties.
(2) Provide written disclosure of the full use of facility electronic monitoring devices to the department and each resident or representative before the resident is admitted into the facility.
(3) Post signage at all entrances and exits, ensuring that all persons who enter the facility are on notice that portions of the facility may be electronically monitored.
(4) Archive each 24 hours of electronic monitored digital data for 365 days before being overwritten or destroyed.
(5) Provide the department with access to archived data upon 24 hours notice to the facility’s administrator.
(6) Use the facility electronic monitoring device in compliance with all applicable state and federal laws, including laws relating to recording images and words of nonconsenting parties and privacy.

1569.98.
 (a) A person or entity shall not knowingly hamper, obstruct, tamper with, or destroy a personal electronic monitoring device installed in a resident’s room without permission of the resident or representative who signed the notification and consent form.
(b) A person or entity shall not knowingly hamper, obstruct, tamper with, or destroy a video or audio recording obtained by a personal electronic monitoring device in accordance with this article without the permission of the resident or representative who signed the notice and consent form.
(c) A person or entity shall not knowingly hamper, obstruct, tamper with, or destroy a facility electronic monitoring device.
(d) A person or entity shall not knowingly hamper, obstruct, tamper with, or destroy video or audio recording obtained by a facility electronic monitoring device in accordance with this article.
(e) Violation of this section is a misdemeanor. Violation of this section in the commission of, or in the attempt to conceal, a misdemeanor offense is a misdemeanor. Violation of this section in the commission of, or in the attempt to conceal, a felony is a felony.

1569.99.
 (a) The department shall establish a program to assist residents receiving Medi-Cal assistance in the purchase and installation of personal electronic monitoring devices. Subject to funds being appropriated for this purpose, the department shall distribute up to fifty thousand dollars ($50,000) annually to residents receiving Medi-Cal assistance for the purchase and installation of personal electronic monitoring devices. Application for, and disbursement of, funds shall be made in a manner prescribed by the department.
(b) On or before March 1, of each year, each facility shall report to the department, in a manner prescribed by the department, the number of personal electronic monitoring device notification and consent forms received during the prior 12-month period. The department shall post this information on the department’s internet website on or before May 1 of each year.
(c) On or before October 1, 2022, the department shall adopt regulations to implement this article.

SEC. 2.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.