HB0344 EngrossedLRB101 04640 CPF 49649 b

1    AN ACT concerning regulation.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the
5Authorized Electronic Monitoring in Community-Integrated
6Living Arrangements and Developmental Disability Facilities
7Act.
 
8    Section 5. Definitions. As used in this Act:
9    "Authorized electronic monitoring" means the placement and
10use of an electronic monitoring device by a resident in his or
11her room in accordance with this Act.
12    "Community-integrated living arrangement" has the meaning
13given to that term in Section 3 of the Community-Integrated
14Living Arrangements Licensure and Certification Act.
15    "Department" means the Department of Human Services.
16    "Developmental disability facility" means a facility or
17section of a facility that is licensed by, operated by, or is
18under contract with the State or a political subdivision of the
19State and that admits persons with developmental disabilities
20for residential services.
21    "Electronic monitoring device" means a surveillance
22instrument with a fixed position video camera or an audio
23recording device, or a combination thereof, that is installed

 

 

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1in a resident's room under the provisions of this Act and
2broadcasts or records activity or sounds occurring in the room.
3    "Resident" means a person residing in a
4community-integrated living arrangement or developmental
5disability facility.
6    "Staff" includes individuals providing supervisory of
7other services at a community-integrated living arrangement or
8developmental disability facility.
 
9    Section 10. Authorized electronic monitoring.
10    (a) A resident shall be permitted to conduct authorized
11electronic monitoring of the resident's room through the use of
12electronic monitoring devices placed in the room pursuant to
13this Act.
14    (b) Nothing in this Act shall be construed to allow the use
15of an electronic monitoring device to take still photographs or
16for the nonconsensual interception of private communications.
 
17    Section 15. Consent.
18    (a) Except as otherwise provided in this subsection, a
19resident, a resident's plenary guardian of the person, or the
20parent of a resident under the age of 18 must consent in
21writing on a notification and consent form prescribed by the
22Department to the authorized electronic monitoring in the
23resident's room.
24    (b) A resident or roommate may consent to authorized

 

 

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1electronic monitoring with any conditions of the resident's
2choosing, including, but not limited to, the list of standard
3conditions provided in paragraph (7) of subsection (b) of
4Section 20. A resident or roommate may request that the
5electronic monitoring device be turned off or the visual
6recording component of the electronic monitoring device be
7blocked at any time.
8    (c) Prior to the authorized electronic monitoring, a
9resident must obtain the written consent of any other resident
10residing in the room on the notification and consent form
11prescribed by the Department. Except as otherwise provided in
12this subsection, a roommate, a roommate's plenary guardian of
13the person, or the parent of a roommate under the age of 18
14must consent in writing to the authorized electronic monitoring
15in the resident's room.
16    (c-7) Any resident previously conducting authorized
17electronic monitoring must obtain consent from any new roommate
18before the resident may resume authorized electronic
19monitoring. If a new roommate does not consent to authorized
20electronic monitoring and the resident conducting the
21authorized electronic monitoring does not remove or disable the
22electronic monitoring device, the staff shall turn off the
23device.
24    (d) Consent may be withdrawn by the resident or roommate at
25any time, and the withdrawal of consent shall be documented in
26the resident's clinical record. If a roommate withdraws consent

 

 

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1and the resident conducting the authorized electronic
2monitoring does not remove or disable the electronic monitoring
3device, the staff may turn off the electronic monitoring
4device.
5    (e) If a resident who is residing in a shared room wants to
6conduct authorized electronic monitoring and another resident
7living in or moving into the same shared room refuses to
8consent to the use of an electronic monitoring device, the
9staff shall make a reasonable attempt to accommodate the
10resident who wants to conduct authorized electronic
11monitoring.
 
12    Section 20. Notice to the staff.
13    (a) Authorized electronic monitoring may begin only after a
14notification and consent form prescribed by the Department has
15been completed and submitted to the staff.
16    (b) A resident shall notify the staff in writing of his or
17her intent to install an electronic monitoring device by
18providing a completed notification and consent form prescribed
19by the Department that must include, at minimum, the following
20information:
21        (1) the resident's signed consent to electronic
22    monitoring or the signature of the person consenting on
23    behalf of the resident in accordance with Section 15 of
24    this Act; if a person other than the resident signs the
25    consent form, the form must document the following:

 

 

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1            (A) the date the resident was asked if he or she
2        wants authorized electronic monitoring to be conducted
3        in accordance with subsection (a-5) of Section 15;
4            (B) who was present when the resident was asked;
5        and
6            (C) an acknowledgment that the resident did not
7        affirmatively object; and
8        (2) the resident's roommate's signed consent or the
9    signature of the person consenting on behalf of the
10    resident in accordance with Section 15 of this Act, if
11    applicable, and any conditions placed on the roommate's
12    consent; if a person other than the roommate signs the
13    consent form, the form must document the following:
14            (A) the date the roommate was asked if he or she
15        wants authorized electronic monitoring to be conducted
16        in accordance with subsection (a-5) of Section 15;
17            (B) who was present when the roommate was asked;
18        and
19            (C) an acknowledgment that the roommate did not
20        affirmatively object; and
21        (3) the type of electronic monitoring device to be
22    used;
23        (4) any installation needs, such as mounting of a
24    device to a wall or ceiling;
25        (5) the proposed date of installation for scheduling
26    purposes;

 

 

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1        (6) a copy of any contract for maintenance of the
2    electronic monitoring device by a commercial entity;
3        (7) a list of standard conditions or restrictions that
4    the resident or a roommate may elect to place on use of the
5    electronic monitoring device, including, but not limited
6    to:
7            (A) prohibiting audio recording;
8            (B) prohibiting broadcasting of audio or video;
9            (C) turning off the electronic monitoring device
10        or blocking the visual recording component of the
11        electronic monitoring device for the duration of an
12        exam or procedure by a health care professional;
13            (D) turning off the electronic monitoring device
14        or blocking the visual recording component of the
15        electronic monitoring device while dressing or bathing
16        is performed; and
17            (E) turning the electronic monitoring device off
18        for the duration of a visit with a spiritual advisor,
19        ombudsman, attorney, financial planner, intimate
20        partner, or other visitor; and
21        (8) any other condition or restriction elected by the
22    resident or roommate on the use of an electronic monitoring
23    device.
24    (c) A copy of the completed notification and consent form
25shall be placed in the resident's and any roommate's clinical
26record and a copy shall be provided to the resident and his or

 

 

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1her roommate, if applicable.
2    (d) The Department shall prescribe the notification and
3consent form required in this Section no later than 60 days
4after the effective date of this Act. If the Department has not
5prescribed such a form by that date, the Office of the Attorney
6General shall post a notification and consent form on its
7website for resident use until the Department has prescribed
8the form.
 
9    Section 25. Cost and installation.
10    (a) A resident choosing to conduct authorized electronic
11monitoring must do so at his or her own expense, including
12paying purchase, installation, maintenance, and removal costs.
13    (b) If a resident chooses to install an electronic
14monitoring device that uses Internet technology for visual or
15audio monitoring, that resident is responsible for contracting
16with an Internet service provider and installing a secure,
17password-protected network.
18    (c) The staff shall make a reasonable attempt to
19accommodate the resident's installation needs, including, but
20not limited to, allowing access to a telecommunications or
21equipment room. Staff has the burden of proving that a
22requested accommodation is not reasonable.
23    (d) The electronic monitoring device must be placed in a
24conspicuously visible location in the room.
25    (e) The resident may not be charged a fee for the cost of

 

 

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1electricity used by an electronic monitoring device.
2    (f) All electronic monitoring device installations and
3supporting services shall comply with the requirements of the
4edition of the National Fire Protection Association (NFPA) 101
5Life Safety Code in force at the time of installation and shall
6remain in compliance with that or any subsequent edition of
7NFPA 101 enforced pursuant to Part 483 of Title 42 of the Code
8of Federal Regulations.
 
9    Section 27. Assistance program.
10    (a) Subject to appropriation, the Department shall
11establish a program to assist residents receiving medical
12assistance under Article V of the Illinois Public Aid Code in
13accessing authorized electronic monitoring.
14    (b) The Department shall distribute up to $50,000 in funds
15on an annual basis to residents receiving medical assistance
16under Article V of the Illinois Public Aid Code for the
17purchase and installation of authorized electronic monitoring
18devices.
19    (c) Applications for funds and disbursement of funds must
20be made in a manner prescribed by the Department.
 
21    Section 30. Notice to visitors.
22    (a) If a resident of a community-integrated living
23arrangement or developmental disability facility conducts
24authorized electronic monitoring, a sign shall be clearly and

 

 

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1conspicuously posted at all building entrances accessible to
2visitors. The notice must be entitled "Electronic Monitoring"
3and must state, in large, easy-to-read type, "The rooms of some
4residents may be monitored electronically by or on behalf of
5the residents.".
6    (b) A sign shall be clearly and conspicuously posted at the
7entrance to a resident's room where authorized electronic
8monitoring is being conducted. The notice must state, in large,
9easy-to-read type, "This room is electronically monitored.".
10    (c) Staff is responsible for installing and maintaining the
11signage required in this Section.
 
12    Section 40. Obstruction of electronic monitoring devices.
13    (a) A person or entity is prohibited from knowingly
14hampering, obstructing, tampering with, or destroying an
15electronic monitoring device installed in a resident's room
16without the permission of the resident or the individual who
17consented on behalf of the resident in accordance with Section
1815 of this Act.
19    (b) A person or entity is prohibited from knowingly
20hampering, obstructing, tampering with, or destroying a video
21or audio recording obtained in accordance with this Act without
22the permission of the resident or the individual who consented
23on behalf of the resident in accordance with Section 15 of this
24Act.
25    (c) A person or entity that violates this Section is guilty

 

 

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1of a Class B misdemeanor. A person or entity that violates this
2Section in the commission of or to conceal a misdemeanor
3offense is guilty of a Class A misdemeanor. A person or entity
4that violates this Section in the commission of or to conceal a
5felony offense is guilty of a Class 4 felony.
6    (d) It is not a violation of this Section if a person or
7staff turns off the electronic monitoring device or blocks the
8visual recording component of the electronic monitoring device
9at the direction of the resident or the person who consented on
10behalf of the resident in accordance with Section 15 of this
11Act.
 
12    Section 45. Dissemination of recordings.
13    (a) Staff may not access any video or audio recording
14created through authorized electronic monitoring without the
15written consent of the resident or the person who consented on
16behalf of the resident in accordance with Section 15 of this
17Act.
18    (b) Except as required under the Freedom of Information
19Act, a recording or copy of a recording made pursuant to this
20Act may only be disseminated for the purpose of addressing
21concerns relating to the health, safety, or welfare of a
22resident or residents.
23    (c) The resident or person who consented on behalf of the
24resident in accordance with Section 15 of this Act shall
25provide a copy of any video or audio recording to parties

 

 

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1involved in a civil, criminal, or administrative proceeding,
2upon a party's request, if the video or audio recording was
3made during the time period that the conduct at issue in the
4proceeding allegedly occurred.
 
5    Section 50. Admissibility of evidence. Subject to
6applicable rules of evidence and procedure, any video or audio
7recording created through authorized electronic monitoring in
8accordance with this Act may be admitted into evidence in a
9civil, criminal, or administrative proceeding if the contents
10of the recording have not been edited or artificially enhanced
11and the video recording includes the date and time the events
12occurred.
 
13    Section 55. Report. Staff of each community-integrated
14living arrangement and developmental disability facility shall
15report to the Department, in a manner prescribed by the
16Department, the number of authorized electronic monitoring
17notification and consent forms received annually. The
18Department shall report the total number of authorized
19electronic monitoring notification and consent forms received
20by staff of community-integrated living arrangements and
21developmental disability facilities to the Office of the
22Attorney General annually.
 
23    Section 60. Liability.

 

 

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1    (a) A community-integrated living arrangement or
2developmental disability facility is not civilly or criminally
3liable for the inadvertent or intentional disclosure of a
4recording by a resident or a person who consents on behalf of
5the resident for any purpose not authorized by this Act.
6    (b) A community-integrated living arrangement or
7developmental disability facility is not civilly or criminally
8liable for a violation of a resident's right to privacy arising
9out of any electronic monitoring conducted pursuant to this
10Act.
 
11    Section 65. Rules. The Department shall adopt rules
12necessary to administer and enforce any Section of this Act.
13Rulemaking shall not delay the full implementation of this Act.
 
14    Section 900. The Community-Integrated Living Arrangements
15Licensure and Certification Act is amended by adding Section
1614.5 as follows:
 
17    (210 ILCS 135/14.5 new)
18    Sec. 14.5. Authorized electronic monitoring of a
19resident's room.
20    (a) A resident shall be permitted to conduct authorized
21electronic monitoring of the resident's room through the use of
22electronic monitoring devices placed in the room pursuant to
23the Authorized Electronic Monitoring in Community-Integrated

 

 

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1Living Arrangements and Developmental Disability Facilities
2Act.
3    (b) No person shall:
4        (1) intentionally retaliate or discriminate against
5    any resident for consenting to authorized electronic
6    monitoring under the Authorized Electronic Monitoring in
7    Community-Integrated Living Arrangements and Developmental
8    Disability Facilities Act; or
9        (2) prevent the installation or use of an electronic
10    monitoring device by a resident who has provided the staff
11    of the community-integrated living arrangement with notice
12    and consent as required in Section 20 of the Authorized
13    Electronic Monitoring in Community-Integrated Living
14    Arrangements and Developmental Disability Facilities Act.
15    A violation of this subsection is a business offense,
16punishable by a fine not to exceed $1,000. The State's Attorney
17of the county in which the community-integrated living
18arrangement is located, or the Attorney General, shall be
19notified by the Director of any violations of this subsection.
 
20    Section 905. The Mental Health and Developmental
21Disabilities Code is amended by adding Section 2-116 as
22follows:
 
23    (405 ILCS 5/2-116 new)
24    Sec. 2-116. Authorized electronic monitoring of a

 

 

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1recipient's room.
2    (a) A recipient who resides in a developmental disability
3facility shall be permitted to conduct authorized electronic
4monitoring of the recipient's room through the use of
5electronic monitoring devices placed in the room pursuant to
6the Authorized Electronic Monitoring in Community-Integrated
7Living Arrangements and Developmental Disability Facilities
8Act.
9    (b) No person shall:
10        (1) intentionally retaliate or discriminate against
11    any recipient for consenting to authorized electronic
12    monitoring under the Authorized Electronic Monitoring in
13    Community-Integrated Living Arrangements and Developmental
14    Disability Facilities Act; or
15        (2) prevent the installation or use of an electronic
16    monitoring device by a recipient who resides in a
17    developmental disability facility who has provided the
18    staff of the developmental disability facility with notice
19    and consent as required in Section 20 of the Authorized
20    Electronic Monitoring in Community-Integrated Living
21    Arrangements Act and Developmental Disability Facilities
22    Act.
23    A violation of this subsection is a business offense,
24punishable by a fine not to exceed $1,000. The State's Attorney
25of the county in which the developmental disability facility is
26located, or the Attorney General, shall be notified by the

 

 

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1Director of any violations of this subsection.
 
2    Section 999. Effective date. This Act takes effect January
31, 2020.