North Dakota last week inched closer to becoming the next state with a law requiring assisted living communities and nursing homes to honor resident requests to use electronic monitoring equipment in their rooms.

The legislation, SB 2113, has the support of the North Dakota Long Term Care Association, the state affiliate of the American Health Care Association / National Center for Assisted Living, NDLTCA President Shelly Peterson told McKnight’s Senior Living. It also affects critical access hospitals with swing bed units and intermediate care facilities (known as basic care facilities in the state).

North Dakota Long Term Care Association
President Shelly Peterson

“This was probably the bill we debated and discussed the most this session,” Peterson said. “At the end of the day, when we looked at what the bill could offer for families, residents and for facilities, we thought it was best for the greater transparency and guidelines.”

The bill passed the state Senate in January and then the House last week, with amendments. Next, either the Senate will pass the amended House version and it will be sent to the governor, or the two branches of government will try to work out their differences in a conference committee.

Peterson said she is not aware of Gov. Doug Burgum publicly indicating whether he will sign the bill if it ends up on his desk, but “since this came from the state agency, the ombudsman, I’m anticipating that he will sign it,” she said.

The legislative process for the bill began because the ombudsman had privacy and confidentiality concerns related to residents’ family members conducting surveillance without the knowledge of residents, Peterson said. “As we became more aware of issues, we decided it was best to work with the ombudsman and try to structure some legislation that would protect all parties,” she said.

As the bill is worded now, only a resident or a guardian or healthcare power of attorney can set up a camera in a resident room. The resident (or representative) and any roommate must agree to it.

The NDLTCA, Peterson said, worked with the ombudsman to amend the Senate and House versions of the bill to include provisions ensuring that residents are informed that breaches of confidentiality may occur through recording; requiring that residents’ notification of a desire for recording (or withdrawal of that desire) must be in writing; protecting facilities from civil and criminal liability if confidential or HIPAA-protected information is disclosed in resident-requested recordings; and covering reasonable accommodation related to residents who want recording, and their roommates.

Additional details of provisions in the legislation — for instance, related to the bill’s requirement to post notification of recording — will be worked out in the rules process, into which the association also will have input, she said.

Even though Peterson said that in-unit cameras in long-term care settings are “the wave of the future,” she hopes the bill will lead to more discussions with residents and family members about root causes.

“We know that when families want to do this, there may be an underlying issue of trust,” she said. “We would rather deal with the issue of what’s going on in the situation that you feel you need to audio- or videotape and get at that prime issue, if that’s the issue behind it. So we’re hoping to have, through this, more discussion with families on what it is that’s concerning them.”

If the legislation is signed into law, North Dakota would join an increasing list of states requiring long-term care settings to grant resident requests to use surveillance equipment, although the specifics of the laws vary by state.

Minnesota currently is considering camera legislation affecting assisted living, and Texas and Utah already have such laws. As of mid-2018, six states — Illinois, Louisiana, New Mexico, Oklahoma, Texas and Washington — had laws applying to nursing homes. New Jersey also has a “Safe Care Cam” program that loans micro-surveillance equipment to healthcare consumers, including families of assisted living and nursing home residents.