# Title 50 — Public Welfare

## Chapter 50-10.2 — Rights of Health Care Facility Residents

### § 50-10.2-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:
1. "Authorized electronic recording" means the placement and use of an authorized
electronic recording device, by a resident or resident representative, in the resident's
room.
2. "Authorized electronic recording device" means a device that is installed in the room of
a resident which is intended to record or is recording and transmitting video,
communications, or other sounds occurring in the room.
3. "Conflict of interest" means any type of ownership in a facility or membership on the
governing body of a facility by a provider of goods or services to that facility or by a
member of that individual's immediate family.
4. "Department" means the department of health and human services.
5. "Facility" means a skilled nursing care facility, basic care facility, assisted living facility,
or swing-bed hospital approved to furnish long-term care services.
6. "Immediate family" means husband, wife, father, mother, brother, sister, son, daughter,
father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law,
stepchild, uncle, aunt, niece, nephew, or grandchild.
7. "Remodeling" means any alteration in structure, refurbishing, or repair that would:
a. Prevent the facility staff from providing customary and required care; or
b. Seriously endanger or inconvenience any resident with noise, dust, fumes,
inoperative equipment, or the presence of remodeling workers.
8. "Resident" means an individual residing in a facility.
9. "Resident representative" means a person authorized to act as a resident's agent
under power of attorney for health care or guardianship.
10. "Technology device" means a device capable of remote audio or video
communications which is used for the purpose of the resident having contact with
another person but not for the purpose of virtual monitoring or recording audio or video
of a resident and the resident's room. A technology device includes a cellular mobile
telephone used primarily for telephonic communication, an electronic tablet not used
for virtual monitoring or recording, and an assistive communication device.
11. "Virtual monitoring" means remote live action monitoring conducted without recording
of a resident by a third party via the placement and use of a virtual monitoring device
in the resident's room.
12. "Virtual monitoring device" means a device owned and operated by the resident or
resident representative placed in the resident's room which allows live action
monitoring without recording of a resident by a third party.
13. "Virtual visitation" means remote visitation between a resident and another individual
using a technology device.
### § 50-10.2-02. Residents' rights - Implementation.

1. All facilities shall, upon a resident's admission, provide in hand to the resident and a
member of the resident's immediate family or the resident representative a statement
of the resident's rights during the admission process and while living in the facility.
Within thirty days after admission, the statement must be orally explained to the
resident and, if the resident is unable to understand, to the resident's immediate family
member and the resident representative, and thereafter annually so long as the
resident remains in the facility. The statement must include rights, responsibilities of
both the resident and the facility, and the facility rules governing resident conduct. A
facility shall treat a resident in accordance with provisions of the statement. The
statement must include provisions ensuring each resident the following minimum
rights:
a. The right to civil and religious liberties, including knowledge of available choices,
the right to independent personal decisions without infringement, and the right to

encouragement and assistance from the staff of the facility to promote the fullest
possible exercise of these rights.
b. The right to have private meetings, associations, and communications with any
person of the resident's choice within the facility.
c. The right to participate in the community.
d. The right of each resident, the resident's immediate family, the
resident representative, friends, facility staff, and other persons to present
complaints on the behalf of the resident to the facility's staff, the facility's
administrator, governmental officials, or to any other person, without fear of
reprisal, interference, coercion, discrimination, or restraint.
e. The right to send and receive unopened personal mail and electronic mail and the
right of access to and use of telephones and electronic devices for private
conversations.
f. The right to assured private visits, subject to restrictions to protect the health or
safety of the resident, by one's spouse, partner, or significant other, or if both are
residents of the same facility, the right to share a room, within the capacity of the
facility, unless sharing a room is not medically advisable as documented in the
medical records by the attending physician.
g. The right to manage one's own financial affairs if not under legal guardianship, or
to delegate the responsibility in writing to the administrator or manager of the
facility, but only to the extent of funds held in trust by the facility for the resident.
h. The right to be fully informed in writing prior to or at the time of admission and
during one's stay, of services provided and the charges for those services,
including ancillary charges.
i. The right to be adequately informed of one's medical condition and proposed
treatment and to participate in the planning of all medical treatment, including the
right to refuse medication and treatment, to be discharged from the facility upon
written request, and to be notified by the resident's attending physician of the
medical consequences of any such actions.
j. The right to have privacy in treatment and in caring for personal needs and to
have confidentiality in the treatment of personal and medical records.
k. The right to keep and use personal possessions, including furnishings and
clothing as space permits, unless keeping or using the personal possession
would infringe upon the rights, health, or safety of another resident.
l. The right to be treated courteously, fairly, and with the fullest measure of dignity.
m. The right to be free from mental and physical abuse, neglect, and financial
exploitation, and the right to be free from physical or chemical restraint except in
documented emergencies or when necessary to protect the resident from injury
to self or to others.
n. The right not to be transferred or discharged except for:
(1) Medical reasons;
(2) The resident's welfare or the safety of an individual in the facility who is
endangered due to the clinical or behavioral status of the resident;
(3) Nonpayment of one's rent or fees;
(4) A temporary transfer during times of remodeling; or
(5) The facility ceases to operate.
o. The right to receive at least a thirty-day written advance notice of any transfer or
discharge when the resident is being discharged to another facility or the
resident's own home, or when the resident is being transferred or discharged
because of a change in the resident's level of care; however, advance notice of
transfer or discharge may be less than thirty days if the resident has urgent
medical needs that require a more immediate transfer or discharge, or a more
immediate transfer or discharge is required to protect the health and safety of
residents and staff within the facility.
p. The right to refuse to perform services on behalf of the facility, unless agreed to
by the resident or legal guardian and established in the plan of care.

q. The right to a claim for relief against a facility for any violation of rights
guaranteed under this chapter.
r. The right to have each facility display a notice that the following information is
available for public review and make the information available on request:
(1) A complete copy of every inspection report, deficiency report, and plan of
correction the facility received during the previous three years.
(2) The facility's grievance process.
(3) A copy of the statement of ownership, board membership, and partners.
(4) A statement of ownership setting forth any conflict of interest in the
operation of the facility.
s. The right to a pharmacist of the resident's choice irrespective of the type of
medication distribution system used by the facility, and to not be charged a fee or
receive a financial incentive or disincentive for choosing a pharmacy other than
the facility's preferred pharmacy. The resident may not be charged for
repackaging if that cost can be included on the facility cost report.
t. The right to not be discriminated against by a facility in the admissions process or
in the provision of appropriate care on the basis of the resident's source of
payment to the facility.
u. The right of residents and their families to organize, maintain, and participate in
resident advisory and family councils.
v. The right of residents receiving services performed by a provider from outside the
facility to be informed, on request, of the identity of the provider.
2. If there is a change in the resident rights, laws, or regulations, the facility shall
promptly notify the resident, and, if the resident is unable to understand, a member of
the resident's immediate family or the resident representative.
3. For involuntary transfer and discharge actions taken by a facility, the written transfer or
discharge notice issued by the facility must include:
a. The reason for the transfer or discharge.
b. The effective date of transfer or discharge.
c. The location the resident is to be transferred or discharged to.
d. The name, mailing and electronic mail address, and telephone number of the
office of the state long-term care ombudsman.
4. The facility shall protect the resident from retaliation. The facility shall adopt a
grievance process and make the process known to each resident, the resident's
immediate family member, and the resident representative. A person making a
complaint in good faith is immune from any civil liability that otherwise might result
from making the complaint.
5. If a trust is established by the facility to hold the resident's funds, the facility shall
provide to the resident, resident representative, or an agent under a power of attorney
for financial decisions a written quarterly accounting of transactions made on behalf of
the resident, including an explanation of the transactions by the facility. The facility
shall pay out in full:
a. A resident's personal funds deposited with the facility or refunds due to the
resident upon discharge or eviction within thirty days, and provide a final
accounting of those funds to the resident, or in the case of death, in accordance
with state law.
b. Refunds due as a result of an overpayment to the facility within thirty days from
the date the overpayment is discovered.
c. Other refunds due to the resident upon discharge, eviction, or death within thirty
days from the resident's date of discharge from the facility.
6. The facility shall inform a resident, resident representative, an agent under a power of
attorney for financial decisions, or immediate family member, at least thirty days before
any change in the costs or availability of the services. A facility may not demand or
receive advance payment or gratuity to assure admission or for the resident to be
placed on a waiting list for admission.

7. A resident and the resident representative may view and authorize release of any
personal or medical records.
8. The use of a physical or chemical restraint in an emergency or if necessary to protect
the resident from injury to self or others must be authorized and documented by a
physician, nurse practitioner, or physician's assistant for a limited period of time. A
chemical restraint must be administered by a licensed nurse, physician, nurse
practitioner, or physician's assistant. Except as provided in this subsection, a drug or
physical restraint may not be used or threatened to be used for the purpose of
punishment, for the convenience of staff, for behavior conditioning, as a substitute for
rehabilitation or treatment, or for any other purpose not included in an approved
treatment plan.
9. Upon request, a facility shall provide an applicant for admission to a facility who is
denied admission the reason for the denial in writing. The facility shall note in the
written denial if the denial is based on the special characteristics or service limitations
of the facility.
10. A facility shall ensure a resident council meeting is attended by residents only or at the
invitation of a resident.
11. Waiver of any of the rights guaranteed by this chapter may not be made a condition of
admission to a facility or ongoing residence.
12. Each facility shall prepare a written plan and provide staff training to implement this
chapter.
13. The department shall develop and coordinate with the facility licensing and regulatory
agencies a relocation plan in the event a facility is decertified or unlicensed.
### § 50-10.2-02.1. Authorized virtual monitoring, virtual visitation, and electronic recording

- 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.
### § 50-10.2-03. Rulemaking authority of department.

The department may adopt rules in accordance with chapter 28-32, consistent with and
necessary for the implementation and enforcement of this chapter through the ombudsman
program under chapter 50-10.1.
### § 50-10.2-04. Enforcement - Injunction.

Any facility that violates this chapter may be enjoined by a district court. Actions for
injunction under this section may be prosecuted by the attorney general or any state's attorney
in the name of the state. Actions for injunction under this section must be prosecuted in the
county where the case arises.
### § 50-10.2-05. Furnishing financial information.

A facility may request that an applicant for admission, a resident of the facility, or the
applicant's or resident's legal representative furnish financial information regarding income and
assets, including information regarding any transfers or assignments of income or assets. A
facility may deny admission to an applicant for admission who is unable to verify a viable
payment source.
