SENATE BILL NO. 717
February 13, 2024, Introduced by Senators RUNESTAD, JOHNSON, BELLINO, MCBROOM,
LINDSEY, OUTMAN, BUMSTEAD, DAMOOSE, HUIZENGA, DALEY and NESBITT and
referred to the Committee on Housing and Human Services.
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending sections 21702 and 21703 (MCL 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:
1 Sec. 21702. (1) "Discharge" means the voluntary or involuntary
2 movement of a patient out of a nursing home regardless of the
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1 individual's destination or reason for the movement.
2 (2) "Electronic monitoring" means the placement and use of an
3 electronic monitoring device in a resident's room pursuant to this
4 part.
5 (3) "Electronic monitoring device" means a camera or other
6 device that captures, records, or broadcasts audio or video, or
7 both, and is installed in a resident's room to monitor activities
8 occurring in the room. Electronic monitoring device includes, but
9 is not limited to, a monitoring system, video surveillance camera,
10 web-based camera, or video phone that is installed in the room of a
11 resident. An electronic monitoring device may be an interactive or
12 recording device.
13 (4) (2) "Full-time" means being usually present in the nursing
14 home or conducting or participating in activities directly related
15 to the nursing home during the normal 40-hour business week.
16 (5) (3) "Involuntary transfer" means a transfer not agreed to
17 in writing by the patient or, in the case of a plenary
18 guardianship, by the patient's legal guardian.
19 (6) (4) "Medicaid" means the program for medical assistance
20 established under title XIX of the social security act, chapter
21 531, 49 Stat. 620, 42 U.S.C. 1396 to 1396f, and 1396i to 1396u, 42
22 USC 1396 to 1396w-7, and administered by the department of social
23 health and human services under the social welfare act, Act No. 280
24 of the Public Acts of 1939, being sections 1939 PA 280, MCL 400.1
25 to 400.119b. of the Michigan Compiled Laws.
26 (7) (5) "Medical reasons" means a medical justification for
27 either of the following:
28 (a) The transfer or discharge of a patient in accord with the
29 written orders of the attending physician that is written into the
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1 patient's clinical record by the physician in the progress notes.
2 (b) The transfer or discharge of a patient who is a medicaid
3 Medicaid recipient due to a change in level of care required by the
4 patient and the fact that the nursing home or nursing care facility
5 is not certified to provide the needed level of care.
6 (8) (6) "Medicare" means that term as defined in section 2701.
7 (9) (7) "Modification of a license" means an action by the
8 department to alter the number of beds, the levels of care, the
9 portions of the physical plant that may be operated or maintained
10 by a licensee in a particular nursing home, or to restrict the
11 nursing home from engaging in activity that violates this article
12 or a rule promulgated under this article.
13 (10) (8) "Negative case action" means an action taken by the
14 department of social health and human services to deny an
15 application for medical assistance, cancel medical assistance, or
16 reduce medical assistance coverage.
17 (11) (9) "Nonpayment" means:
18 (a) Failure to collect from the patient or any other source
19 the full amount of the facility charges to a nonmedicaid non-
20 Medicaid patient based on a written contract signed on or after
21 that patient's admission to the facility.
22 (b) Failure to collect a medicaid Medicaid patient's
23 stipulated contribution toward his or her the patient's care.
24 (12) "Notification and consent form" means the form required
25 to be prescribed by the department under section 21788b.
26 (13) (10) "Private pay rate" means the amount charged by a
27 nursing home for the care of a patient who is not entitled to state
28 or federal benefits for that patient's nursing home care.
29 Sec. 21703. (1) "Patient" means a resident.
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1 (2) "Patient's representative", or "resident's
2 representative", or "roommate's representative" means a person,
3 other than the licensee or an employee or person having a direct or
4 indirect ownership interest in the nursing home, designated in
5 writing by a resident or a resident's guardian for a specific,
6 limited purpose or for general purposes, or, if a written
7 designation of a representative is not made, the guardian of the
8 resident. Patient's representative, resident's representative, or
9 roommate's representative includes an attorney-in-fact under a
10 durable or nondurable power of attorney for a resident.
11 (3) "Relocation" means the movement of a resident from 1 bed
12 to another or from 1 room to another within the same nursing home
13 or within a certified distinct part of a nursing home.
14 (4) "Resident" means an individual who receives care or
15 services at a nursing home.
16 (5) "Transfer" means the movement of a resident from 1 nursing
17 home to another nursing home or from 1 certified distinct part of a
18 nursing home to another certified distinct part of the same nursing
19 home.
20 (6) "Welfare" means, with reference to a resident, the
21 physical, emotional, or social well-being of a resident in a
22 nursing home, including a resident awaiting transfer or discharge,
23 as documented in the resident's clinical record by a licensed or
24 certified health care professional.
25 Sec. 21788. (1) Subject to the requirements of this part, a
26 nursing home that receives from a resident or resident's
27 representative a written request for electronic monitoring on a
28 notification and consent form shall permit the resident or the
29 resident's representative to monitor the resident in the resident's
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1 room through the use of an electronic monitoring device.
2 (2) This part does not allow the use of an electronic
3 monitoring device to take still photographs or for the
4 nonconsensual interception of private communications.
5 (3) This part does not alter, abrogate, or limit a resident's
6 right to otherwise use a device to record audio or video, or both,
7 in the resident's room pursuant to the law.
8 Sec. 21788a. (1) Except as otherwise provided in this section,
9 a resident must consent to electronic monitoring in the resident's
10 room in writing on a notification and consent form.
11 (2) The resident's representative may consent to electronic
12 monitoring on behalf of the resident if all of the following
13 requirements are met:
14 (a) An individual licensed or otherwise authorized to engage
15 in a health profession under part 170 or 175 determines that the
16 resident currently lacks the ability to understand and appreciate
17 the nature and consequences of electronic monitoring.
18 (b) The resident's representative explains all of the
19 following to the resident:
20 (i) The type of electronic monitoring to be used.
21 (ii) The standard conditions or restrictions that may be placed
22 on the use of the electronic monitoring device.
23 (iii) The persons with whom the recording may be shared.
24 (iv) The resident's ability to decline all recording.
25 (c) After explaining the items required in subdivision (b),
26 the resident's representative asks the resident if the resident
27 wants electronic monitoring to be conducted. The resident's
28 response must be documented on the notification and consent form.
29 (d) The resident does not affirmatively object to electronic
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1 monitoring when asked under subdivision (c). For purposes of this
2 subdivision, a resident affirmatively objects if the resident
3 orally, visually, or through the use of auxiliary aids or services
4 declines electronic monitoring.
5 (3) If a resident shares a room with another resident, before
6 conducting electronic monitoring, the consent of the resident's
7 roommate or, subject to subsection (2), the roommate's
8 representative must be obtained in writing on the notification and
9 consent form.
10 (4) Consent under this section may include any conditions of
11 the individual's choosing, including, but not limited to, the list
12 of standard conditions or restrictions described in section 21788b.
13 Regardless of whether consent is subject to any conditions, the
14 electronic monitoring device may be turned off, the audio recording
15 may be turned off, the visual recording component of the electronic
16 device may be blocked, or a curtain may be used to screen an
17 individual from the visual recording component of the electronic
18 monitoring device during care according to a plan of care or at any
19 time at the request of the resident or roommate, or the resident's
20 or roommate's representative if subsection (2) applies. The nursing
21 home shall comply with a plan of care or a request described in
22 this subsection. The nursing home shall ensure that its staff are
23 familiar with the requirements of this subsection and follow a plan
24 of care or request described in this subsection, including by
25 assisting a resident or resident's roommate, as necessary, in
26 accordance with the plan of care or request.
27 (5) The resident or roommate, or the resident's or roommate's
28 representative if subsection (2) applies, may withdraw consent at
29 any time by giving written notice to the nursing home and any other
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1 resident who resides in the room. If consent is withdrawn under
2 this subsection or if a new roommate moves into the shared room and
3 consent cannot be obtained from the new roommate or the roommate's
4 representative, the resident or the resident's representative shall
5 turn off the electronic monitoring device within 24 hours and
6 remove the electronic monitoring device from the room within 7
7 days. If the resident or the resident's representative does not
8 turn off or remove the electronic monitoring device within the
9 timeframe required under this subsection, the nursing home may turn
10 off or remove the electronic monitoring device.
11 (6) A nursing home shall make a reasonable effort to allow a
12 resident to change rooms if consent cannot be obtained from or is
13 withdrawn by a roommate or the roommate's representative. If a
14 resident chooses to reside in a private room in order to
15 accommodate the use of an electronic monitoring device, the
16 resident must pay the private room rate. If a nursing home is
17 unable to accommodate a resident's request to change rooms, the
18 nursing home shall reevaluate the request every 2 weeks until the
19 request is fulfilled.
20 Sec. 21788b. (1) A resident or resident's representative who
21 wishes to install an electronic monitoring device shall make the
22 request to the nursing home in writing on a notification and
23 consent form prescribed by the department.
24 (2) The notification and consent form must include, at a
25 minimum, all of the following information:
26 (a) The resident's signed consent to electronic monitoring or,
27 if section 21788a(2) applies, the signed consent of the resident's
28 representative.
29 (b) If the resident shares a room with another resident, the
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1 roommate's signed consent to electronic monitoring or, if section
2 21788a(2) applies, the signed consent of the roommate's
3 representative.
4 (c) The type of electronic monitoring device to be used.
5 (d) The proposed date of installation for scheduling purposes.
6 (e) A copy of any contract for maintenance of the electronic
7 monitoring device by another person.
8 (f) A list of standard conditions or restrictions that the
9 resident or a roommate may elect to place on the use of the
10 electronic monitoring device, including, but not limited to, all of
11 the following:
12 (i) Prohibiting audio recording.
13 (ii) Prohibiting broadcasting of audio or video.
14 (iii) Turning off the electronic monitoring device or blocking
15 the visual recording component of the electronic monitoring device
16 for the duration of an exam or procedure by a health care
17 professional.
18 (iv) Turning off the electronic monitoring device or blocking
19 the visual recording component of the electronic monitoring device
20 while dressing or bathing is performed.
21 (v) Turning off the electronic monitoring device for the
22 duration of a visit with a spiritual advisor, ombudsman, attorney,
23 financial planner, intimate partner, or other visitor.
24 (g) Any other condition or restriction elected by the resident
25 or roommate on the use of the use of the electronic monitoring
26 device.
27 (h) An explanation of the right to report suspected abuse or
28 neglect based on a video or audio recording created by an
29 electronic monitoring device to the nursing home, the long-term
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1 care ombudsman program, or the department and the right to
2 mediation through the long-term care ombudsman program under
3 section 21788h. The explanation under this subdivision must include
4 telephone numbers for the long-term care ombudsman program and the
5 department. As used in this subdivision, "long-term care ombudsman
6 program" means the long-term care ombudsman program established
7 pursuant to section 6(aa) of the older Michiganians act, 1981 PA
8 180, MCL 400.586.
9 (i) A statement that an individual is advised to report
10 suspected abuse or neglect after viewing the recording on which the
11 suspected abuse or neglect is based.
12 (j) An acknowledgement of the explanation of rights described
13 in subdivision (h) and the statement described in subdivision (i)
14 signed by the resident or, if section 21788a(2) applies, the
15 resident's representative.
16 (3) The nursing home shall place a copy of the completed
17 notification and consent form in the resident's and any roommate's
18 clinical record and provide a copy of the notification and consent
19 form to the resident and any roommate.
20 (4) The department shall prescribe the notification and
21 consent form not later than 60 days after the effective date of the
22 amendatory act that added this section.
23 (5) If an electronic monitoring device is installed or used
24 without a completed notification and consent form, a video or audio
25 recording created by the electronic monitoring device is
26 inadmissible as evidence in a civil action against the nursing
27 home.
28 Sec. 21788c. (1) Except as otherwise provided in subsection
29 (3)(b), if a resident or resident's representative chooses to
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1 conduct electronic monitoring, the resident or resident's
2 representative shall pay for all costs of the electronic
3 monitoring, including, but not limited to, all of the following:
4 (a) The purchase cost of the electronic monitoring device.
5 (b) Installation costs.
6 (c) Maintenance costs.
7 (d) Activation costs.
8 (e) Removal costs, including, but not limited to, deactivation
9 costs and cancellation fees.
10 (2) If a resident or resident's representative chooses to
11 install an electronic monitoring device that uses internet
12 technology for visual or audio monitoring, the resident or
13 resident's representative is responsible for contracting with an
14 internet service provider or paying any additional costs incurred
15 by the nursing home for use of the nursing home's internet provider
16 to conduct the electronic monitoring.
17 (3) A nursing home shall make reasonable accommodation for
18 electronic monitoring, including, but not limited to, by providing
19 both of the following:
20 (a) A reasonably secure place to locate the electronic
21 monitoring device. An electronic monitoring device must be placed
22 in a conspicuously visible location in the room.
23 (b) Access to a power source for the electronic monitoring
24 device. A nursing home shall not charge the resident a fee for the
25 cost of electricity used by an electronic monitoring device.
26 (4) All electronic monitoring device installations and
27