March 22 update: Utah Gov. Gary Herbert signed the bill into law on March 22.
The Utah bill that would require assisted living communities to grant resident requests to install monitoring equipment in their rooms soon will be headed to the desk of Gov. Gary Herbert, where the bill’s sponsor anticipates that it will be signed into law.
Tuesday, after H.B. 124, the Assisted Living Facility Surveillance Act, had passed both the state legislative bodies (unanimously in the House of Representatives and with only two votes against it in the Senate), an “enrolled draft” of the bill was prepared. Now, just a couple of additional procedural steps remain before the House sends it to the governor.
“It is highly unlikely that the governor would veto a bill with such broad support in the legislature,” Rep. Timothy D. Hawkes, the bill’s sponsor, told McKnight’s Senior Living.
Approval would make Utah the first state in more than a decade, and only the second state overall, to have passed such a law covering assisted living communities. Five states — Illinois, New Mexico, Oklahoma, Texas and Washington — have laws requiring nursing homes to grant resident requests to use surveillance equipment in resident living areas. Only Texas’ 2001 nursing home law was amended, in 2003, to also apply to assisted living, according to Argentum, formerly the Assisted Living Federation of America.
H.B. 124, an amendment to Utah’s Health Care Facility Licensing and Inspection Act, would allow video or audio monitoring equipment to be used as long as the community has been notified of the intent and as long as any roommates affected by the request approve. The bill would allow communities to require that the resident post a sign near the entrance to the room notifying people that the room contains a monitoring device. Communities also could specify other requirements in what the bill calls a waiver agreement.
Similar bills in previous legislative sessions lacked the support of industry associations, but this time, the organizations said, the bill’s sponsor was willing to listen to their concerns and try to address them.
The Utah Assisted Living Association was “definitely opposed to the bill early on and wanted to make sure that the residents’ rights were protected,” board member Christopher Etherington (pictured) told McKnight’s Senior Living. “In working with Rep. Hawkes, it became very evident that there was some support and that he was willing to be more collaborative on this.” The UALA ended up assuming a neutral stance.
The Utah Health Care Association also initially was opposed to the bill but reached the same conclusion as the UALA, according to UHCA Director Dirk Anjewierden. “We feel, after discussions with the sponsor, that changes to the bill were made which provide protections to the residents to meet the privacy concerns and protections to the providers from potential liability in meeting those privacy concerns,” he said.
Lawmakers made two changes to H.B. 124 at the request of industry, Hawkes (pictured) said. First, residents or their legal representatives who choose to install a monitoring device no longer would be required to tell communities exactly where they plan to put a device, nor would they have to communicate specifics about the equipment (although the bill prohibits the use of devices that can be connected to the Internet). The associations believed that the language was unnecessary and could be interpreted as limiting the consent agreement that communities can create, Hawkes said.
Second, the installation of a monitoring device now would require consent from a resident and his or her legal representative (if any) in writing, unless the resident is incapable of providing informed consent. The original version of the bill required consent from the resident or a representative. “That amendment intended to address a situation in which a legal representative might put pressure on a reluctant resident to install a device — a situation we wanted to avoid,” Hawkes said.
Argentum’s board has not taken a position on the bill, Chief Operating Officer Maribeth Bersani (pictured) told McKnight’s Senior Living. But the national association did express concerns, and the resident consent issue was the top one, she said. Another was that the provider and resident be able to discuss how the camera will be used in a way that maintains privacy and dignity. The changes to the bill address those concerns.
The bill’s allowance for communities to tailor consent agreements and establish additional guidelines to meet their individual circumstances while protecting residents, staff members and others is a provision that Etherington said pleases him. He is director of operations at MBK Senior Living, which has five communities in the state. Etherington added that he also is pleased that the final version of the bill offers some civil and criminal liability protection to communities that have residents who want to use monitoring devices.
Etherington, however, said he’ll take a wait-and-see approach when it comes to judging the bill’s ultimate effect on communities. “We are still concerned, and personally for me and my company, I’m still concerned about making sure that the resident’s rights are protected, making sure that there are safeguards in place,” he said. “That is something that we’re going to continue to address at the community or company level, from the facility consent form.”
But Etherington said he expects that the legislation will come into play only rarely. “In talking to the several providers here in Utah, there were only a couple of individuals that have even had a camera that they know of in a community,” he said. “I don’t see it really increasing.”
Communities in the state formerly could grant camera requests, he noted. The difference now is that, under the terms of the bill, residents can’t be expelled or denied admission because they desire monitoring equipment. And communities will know if a resident’s room contains a recording device.
The bill, Hawkes said, offers benefits to all parties.
“With this bill, the state of Utah attempts to balance the rights of residents and their desire for safety and security along with legitimate concerns about privacy, and to do so in a way that doesn’t put undue burdens on industry,” Hawkes said. “The increasing role of technology in our lives guarantees that, as a society, we will continue to grapple with this kind of issue. We trust that we’ve struck the right balance here, and hope that Utah’s cautious approach can serve as a model to other states.”
Meanwhile, Bersani said that Argentum continues to look for ways to address the elder abuse incidents that legislators, residents and their families often seek to curtail through the use of cameras. “I can understand why people see this [bill] as an opportunity to deter elder abuse and be a deterrent,” she said. “I think there are other ways that we need to look at to address this issue. The board hasn’t taken a formal position on cameras per se, but certainly elder abuse is a priority — prevention and detection and reporting. We continue to look at other ways to prevent elder abuse.”
The UALA, Etheringon said, will continue to meet regularly with the Utah Department of Health to ensure that residents’ rights are protected.
See our previous articles on this legislation here:
Utah camera bill advances through House committee (Feb. 3, 2016)
Utah camera bill moves to Senate (Feb. 15, 2016)