§ 50-10.2-02.1 — Authorized virtual monitoring, virtual visitation, and electronic recording - Penalty

North Dakota § 50-10.2-02.1

• Jurisdiction: North Dakota
• Title 50: Public Welfare
• Ch. 50-10.2: Rights of Health Care Facility Residents

Text

- Penalty.
1. A resident and the resident representative may treat the resident's living quarters as
the resident's home and, subject to rules to protect the privacy and safety of another
resident, may purchase and use a technology device of the resident's choice, including
a technology device that may facilitate virtual monitoring or virtual visitation with family
and other persons, provided operation and use of the technology device does not
violate an individual's right to privacy under state or federal law. Subsections 3
through 12 apply if a technology device or a virtual monitoring device is used to record.
2. A resident may use a device of the resident's choice that facilitates virtual monitoring,
provided:
a. The purchase, activation, installation, maintenance, repair, deactivation, and
removal of such device is at the expense of the resident; and
b. The device and images obtained from the device are used by the resident and
any person communicating with the resident in a manner that does not violate an
individual's right to privacy under state or federal law.
3. A facility shall permit a resident or the resident representative to conduct authorized
electronic recording of the resident's room through an authorized electronic recording
device if:
a. The authorized electronic recording device is placed in the resident's room;
b. The electronic recording device is placed in a fixed, stationary position; records
only the area occupied by the resident and not the area occupied by the
resident's roommate; and protects the privacy and dignity of the resident;
c. The facility is given written notice of the placement and use which must include
an installation plan in compliance with the facility's standards and regulations the
facility shall provide to the resident;
d. A video tape or recording created using an authorized electronic recording device
records the date and time;
e. All costs, except for electricity, associated with the authorized electronic recording
device, including installation, operation, removal, repairs, room damage, and
maintenance, are paid by the resident or resident representative who initiated the
use of the authorized electronic recording device; and

f. A signed authorization for the disclosure of protected health information, as
defined by title 45, Code of Federal Regulations, part 160, section 103, compliant
with the federal Health Insurance Portability and Accountability Act of 1996
[Pub. L. 104-191; 110 Stat. 1936; 29 U.S.C. 1181 et seq.] and consenting to the
use of the device is given by each resident occupying the same room, or by that
resident's resident representative in accordance with subsection 5.
4. The facility shall cooperate to accommodate the placement of the authorized electronic
recording device, unless doing so would place undue burden on the facility.
5. Before placing and using the authorized electronic recording device or virtual
monitoring device, a resident or resident representative shall obtain the signed
authorization of any other resident residing in the room in accordance with
subsection 3. The authorization may be signed by the resident's resident
representative.
a. The resident's or the resident representative's authorization may limit the use of
an authorized electronic recording device to only audio recording or only video
recording and may limit the device's time of operation, direction, and focus.
b. At any time, a resident or resident representative who did not request the
authorized electronic recording device in the resident's room may withdraw, in
writing, the signed authorization for the use of the device. The resident who
requested the device or the resident's resident representative is responsible for
having the device disabled in compliance with the facility's standards and
regulations after receipt of the written withdrawal.
6. The facility shall make a reasonable attempt to accommodate a resident if a resident
or resident representative of a resident who is residing in a shared room wants to have
an authorized electronic recording device placed in the room and another resident
living in the same shared room refuses to authorize the use of the authorized
electronic monitoring device.
7. If authorized electronic recording is being conducted in the room of a resident, and
another resident will be moved into the room, the resident who requested the device or
the resident's resident representative is responsible for having the existing authorized
electronic recording device disabled in compliance with the facility's standards and
regulations unless the new resident or the resident's resident representative authorizes
the device pursuant to subsections 3 and 5.
8. A facility may not refuse to admit an individual and may not remove a resident from a
facility because of authorized electronic recording of a resident's room. A person may
not intentionally retaliate or discriminate against a resident for authorization of
authorized electronic recording.
9. A facility clearly and conspicuously shall post a sign where authorized electronic
recording is being conducted to alert and inform visitors.
10. A facility or staff of the facility may not access any video or audio recording created
through an authorized electronic recording device placed in a resident's room without
the written consent of the resident or resident representative or court order.
11. An individual that intentionally hampers, obstructs, tampers with, or destroys a
recording or an authorized electronic recording device or virtual monitoring device
placed in a resident's room, without the express written consent of the resident or
resident representative, is subject to a class B misdemeanor. An individual that places
an electronic recording device in the room of a resident or which uses or discloses a
tape or other recording made by the device may be guilty of a crime or civilly liable for
any unlawful violation of the privacy rights of another. In any civil proceeding,
administrative proceeding, or survey process, material obtained through the use of an
authorized electronic recording device may not be used if an individual intentionally
hampered, obstructed, or tampered with the material without the express written
consent of the resident or resident representative, or if the material was obtained
through the operation of an electronic recording device which was not compliant with
this section.

12. A person may not intercept a communication or disclose or use an intercepted
communication of an authorized electronic recording device or a virtual monitoring
device placed in a resident's room, without the express written consent of the resident
or the resident representative.