Rep. Thomas M. Bennett

Filed: 4/1/2019

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 344

2    AMENDMENT NO. ______. Amend House Bill 344 by replacing
3everything after the enacting clause with the following:
 
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

 

 

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1section of a facility that is licensed by, operated by, or is
2under contract with the State or a political subdivision of the
3State and that admits persons with developmental disabilities
4for residential services.
5    "Electronic monitoring device" means a surveillance
6instrument with a fixed position video camera or an audio
7recording device, or a combination thereof, that is installed
8in a resident's room under the provisions of this Act and
9broadcasts or records activity or sounds occurring in the room.
10    "Resident" means a person residing in a
11community-integrated living arrangement or developmental
12disability facility.
13    "Staff" includes individuals providing supervisory of
14other services at a community-integrated living arrangement or
15developmental disability facility.
 
16    Section 10. Authorized electronic monitoring.
17    (a) A resident shall be permitted to conduct authorized
18electronic monitoring of the resident's room through the use of
19electronic monitoring devices placed in the room pursuant to
20this Act.
21    (b) Nothing in this Act shall be construed to allow the use
22of an electronic monitoring device to take still photographs or
23for the nonconsensual interception of private communications.
 
24    Section 15. Consent.

 

 

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

 

 

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1electronic monitoring and the resident conducting the
2authorized electronic monitoring does not remove or disable the
3electronic monitoring device, the staff shall turn off the
4device.
5    (d) Consent may be withdrawn by the resident or roommate at
6any time, and the withdrawal of consent shall be documented in
7the resident's clinical record. If a roommate withdraws consent
8and the resident conducting the authorized electronic
9monitoring does not remove or disable the electronic monitoring
10device, the staff may turn off the electronic monitoring
11device.
12    (e) If a resident who is residing in a shared room wants to
13conduct authorized electronic monitoring and another resident
14living in or moving into the same shared room refuses to
15consent to the use of an electronic monitoring device, the
16staff shall make a reasonable attempt to accommodate the
17resident who wants to conduct authorized electronic
18monitoring.
 
19    Section 20. Notice to the staff.
20    (a) Authorized electronic monitoring may begin only after a
21notification and consent form prescribed by the Department has
22been completed and submitted to the staff.
23    (b) A resident shall notify the staff in writing of his or
24her intent to install an electronic monitoring device by
25providing a completed notification and consent form prescribed

 

 

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

 

 

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1        affirmatively object; and
2        (3) the type of electronic monitoring device to be
3    used;
4        (4) any installation needs, such as mounting of a
5    device to a wall or ceiling;
6        (5) the proposed date of installation for scheduling
7    purposes;
8        (6) a copy of any contract for maintenance of the
9    electronic monitoring device by a commercial entity;
10        (7) a list of standard conditions or restrictions that
11    the resident or a roommate may elect to place on use of the
12    electronic monitoring device, including, but not limited
13    to:
14            (A) prohibiting audio recording;
15            (B) prohibiting broadcasting of audio or video;
16            (C) turning off the electronic monitoring device
17        or blocking the visual recording component of the
18        electronic monitoring device for the duration of an
19        exam or procedure by a health care professional;
20            (D) turning off the electronic monitoring device
21        or blocking the visual recording component of the
22        electronic monitoring device while dressing or bathing
23        is performed; and
24            (E) turning the electronic monitoring device off
25        for the duration of a visit with a spiritual advisor,
26        ombudsman, attorney, financial planner, intimate

 

 

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1        partner, or other visitor; and
2        (8) any other condition or restriction elected by the
3    resident or roommate on the use of an electronic monitoring
4    device.
5    (c) A copy of the completed notification and consent form
6shall be placed in the resident's and any roommate's clinical
7record and a copy shall be provided to the resident and his or
8her roommate, if applicable.
9    (d) The Department shall prescribe the notification and
10consent form required in this Section no later than 60 days
11after the effective date of this Act. If the Department has not
12prescribed such a form by that date, the Office of the Attorney
13General shall post a notification and consent form on its
14website for resident use until the Department has prescribed
15the form.
 
16    Section 25. Cost and installation.
17    (a) A resident choosing to conduct authorized electronic
18monitoring must do so at his or her own expense, including
19paying purchase, installation, maintenance, and removal costs.
20    (b) If a resident chooses to install an electronic
21monitoring device that uses Internet technology for visual or
22audio monitoring, that resident is responsible for contracting
23with an Internet service provider and installing a secure,
24password-protected network.
25    (c) The staff shall make a reasonable attempt to

 

 

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1accommodate the resident's installation needs, including, but
2not limited to, allowing access to a telecommunications or
3equipment room. Staff has the burden of proving that a
4requested accommodation is not reasonable.
5    (d) The electronic monitoring device must be placed in a
6conspicuously visible location in the room.
7    (e) The resident may not be charged a fee for the cost of
8electricity used by an electronic monitoring device.
9    (f) All electronic monitoring device installations and
10supporting services shall comply with the requirements of the
11edition of the National Fire Protection Association (NFPA) 101
12Life Safety Code in force at the time of installation and shall
13remain in compliance with that or any subsequent edition of
14NFPA 101 enforced pursuant to Part 483 of Title 42 of the Code
15of Federal Regulations.
 
16    Section 27. Assistance program.
17    (a) Subject to appropriation, the Department shall
18establish a program to assist residents receiving medical
19assistance under Article V of the Illinois Public Aid Code in
20accessing authorized electronic monitoring.
21    (b) The Department shall distribute up to $50,000 in funds
22on an annual basis to residents receiving medical assistance
23under Article V of the Illinois Public Aid Code for the
24purchase and installation of authorized electronic monitoring
25devices.

 

 

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1    (c) Applications for funds and disbursement of funds must
2be made in a manner prescribed by the Department.
 
3    Section 30. Notice to visitors.
4    (a) If a resident of a community-integrated living
5arrangement or developmental disability facility conducts
6authorized electronic monitoring, a sign shall be clearly and
7conspicuously posted at all building entrances accessible to
8visitors. The notice must be entitled "Electronic Monitoring"
9and must state, in large, easy-to-read type, "The rooms of some
10residents may be monitored electronically by or on behalf of
11the residents.".
12    (b) A sign shall be clearly and conspicuously posted at the
13entrance to a resident's room where authorized electronic
14monitoring is being conducted. The notice must state, in large,
15easy-to-read type, "This room is electronically monitored.".
16    (c) Staff is responsible for installing and maintaining the
17signage required in this Section.
 
18    Section 40. Obstruction of electronic monitoring devices.
19    (a) A person or entity is prohibited from knowingly
20hampering, obstructing, tampering with, or destroying an
21electronic monitoring device installed in a resident's room
22without the permission of the resident or the individual who
23consented on behalf of the resident in accordance with Section
2415 of this Act.

 

 

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1    (b) A person or entity is prohibited from knowingly
2hampering, obstructing, tampering with, or destroying a video
3or audio recording obtained in accordance with this Act without
4the permission of the resident or the individual who consented
5on behalf of the resident in accordance with Section 15 of this
6Act.
7    (c) A person or entity that violates this Section is guilty
8of a Class B misdemeanor. A person or entity that violates this
9Section in the commission of or to conceal a misdemeanor
10offense is guilty of a Class A misdemeanor. A person or entity
11that violates this Section in the commission of or to conceal a
12felony offense is guilty of a Class 4 felony.
13    (d) It is not a violation of this Section if a person or
14staff turns off the electronic monitoring device or blocks the
15visual recording component of the electronic monitoring device
16at the direction of the resident or the person who consented on
17behalf of the resident in accordance with Section 15 of this
18Act.
 
19    Section 45. Dissemination of recordings.
20    (a) Staff may not access any video or audio recording
21created through authorized electronic monitoring without the
22written consent of the resident or the person who consented on
23behalf of the resident in accordance with Section 15 of this
24Act.
25    (b) Except as required under the Freedom of Information

 

 

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1Act, a recording or copy of a recording made pursuant to this
2Act may only be disseminated for the purpose of addressing
3concerns relating to the health, safety, or welfare of a
4resident or residents.
5    (c) The resident or person who consented on behalf of the
6resident in accordance with Section 15 of this Act shall
7provide a copy of any video or audio recording to parties
8involved in a civil, criminal, or administrative proceeding,
9upon a party's request, if the video or audio recording was
10made during the time period that the conduct at issue in the
11proceeding allegedly occurred.
 
12    Section 50. Admissibility of evidence. Subject to
13applicable rules of evidence and procedure, any video or audio
14recording created through authorized electronic monitoring in
15accordance with this Act may be admitted into evidence in a
16civil, criminal, or administrative proceeding if the contents
17of the recording have not been edited or artificially enhanced
18and the video recording includes the date and time the events
19occurred.
 
20    Section 55. Report. Staff of each community-integrated
21living arrangement and developmental disability facility shall
22report to the Department, in a manner prescribed by the
23Department, the number of authorized electronic monitoring
24notification and consent forms received annually. The

 

 

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1Department shall report the total number of authorized
2electronic monitoring notification and consent forms received
3by staff of community-integrated living arrangements and
4developmental disability facilities to the Office of the
5Attorney General annually.
 
6    Section 60. Liability.
7    (a) A community-integrated living arrangement or
8developmental disability facility is not civilly or criminally
9liable for the inadvertent or intentional disclosure of a
10recording by a resident or a person who consents on behalf of
11the resident for any purpose not authorized by this Act.
12    (b) A community-integrated living arrangement or
13developmental disability facility is not civilly or criminally
14liable for a violation of a resident's right to privacy arising
15out of any electronic monitoring conducted pursuant to this
16Act.
 
17    Section 65. Rules. The Department shall adopt rules
18necessary to administer and enforce any Section of this Act.
19Rulemaking shall not delay the full implementation of this Act.
 
20    Section 900. The Community-Integrated Living Arrangements
21Licensure and Certification Act is amended by adding Section
2214.5 as follows:
 

 

 

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1    (210 ILCS 135/14.5 new)
2    Sec. 14.5. Authorized electronic monitoring of a
3resident's room.
4    (a) A resident shall be permitted to conduct authorized
5electronic monitoring of the resident's room through the use of
6electronic monitoring devices placed in the room pursuant to
7the Authorized Electronic Monitoring in Community-Integrated
8Living Arrangements and Developmental Disability Facilities
9Act.
10    (b) No person shall:
11        (1) intentionally retaliate or discriminate against
12    any resident for consenting to authorized electronic
13    monitoring under the Authorized Electronic Monitoring in
14    Community-Integrated Living Arrangements and Developmental
15    Disability Facilities Act; or
16        (2) prevent the installation or use of an electronic
17    monitoring device by a resident who has provided the staff
18    of the community-integrated living arrangement with notice
19    and consent as required in Section 20 of the Authorized
20    Electronic Monitoring in Community-Integrated Living
21    Arrangements and Developmental Disability Facilities Act.
22    A violation of this subsection is a business offense,
23punishable by a fine not to exceed $1,000. The State's Attorney
24of the county in which the community-integrated living
25arrangement is located, or the Attorney General, shall be
26notified by the Director of any violations of this subsection.
 

 

 

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1    Section 905. The Mental Health and Developmental
2Disabilities Code is amended by adding Section 2-116 as
3follows:
 
4    (405 ILCS 5/2-116 new)
5    Sec. 2-116. Authorized electronic monitoring of a
6recipient's room.
7    (a) A recipient who resides in a developmental disability
8facility shall be permitted to conduct authorized electronic
9monitoring of the recipient's room through the use of
10electronic monitoring devices placed in the room pursuant to
11the Authorized Electronic Monitoring in Community-Integrated
12Living Arrangements and Developmental Disability Facilities
13Act.
14    (b) No person shall:
15        (1) intentionally retaliate or discriminate against
16    any recipient for consenting to authorized electronic
17    monitoring under the Authorized Electronic Monitoring in
18    Community-Integrated Living Arrangements and Developmental
19    Disability Facilities Act; or
20        (2) prevent the installation or use of an electronic
21    monitoring device by a recipient who resides in a
22    developmental disability facility who has provided the
23    staff of the developmental disability facility with notice
24    and consent as required in Section 20 of the Authorized

 

 

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1    Electronic Monitoring in Community-Integrated Living
2    Arrangements Act and Developmental Disability Facilities
3    Act.
4    A violation of this subsection is a business offense,
5punishable by a fine not to exceed $1,000. The State's Attorney
6of the county in which the developmental disability facility is
7located, or the Attorney General, shall be notified by the
8Director of any violations of this subsection.
 
9    Section 999. Effective date. This Act takes effect January
101, 2020.".