093_HB3119

 
                                     LRB093 07147 AMC 07302 b

 1        AN ACT concerning nursing homes.

 2        Be it enacted by the People of  the  State  of  Illinois,
 3    represented in the General Assembly:

 4        Section 5. The Nursing Home Care Act is amended by adding
 5    Article IIIB as follows:

 6        (210 ILCS 45/Art. Heading IIIB new)
 7       ARTICLE IIIB.  ELECTRONIC MONITORING OF RESIDENT'S ROOM

 8        (210 ILCS 45/3B-5 new)
 9        Sec. 3B-5.  Definitions. As used in this Article:
10        "Authorized electronic monitoring" means the placement of
11    an  electronic monitoring device in the room of a resident of
12    a facility and making tapes or  recordings  with  the  device
13    after  making  a  request to the facility to allow electronic
14    monitoring.
15        "Electronic  monitoring  device"   includes   (i)   video
16    surveillance  cameras  installed in the room of a resident or
17    (ii) audio devices  installed  in  the  room  of  a  resident
18    designed  to acquire communications or other sounds occurring
19    in the room, or both. "Electronic monitoring device" does not
20    include an electronic, mechanical, or other  device  that  is
21    specifically  used for the nonconsensual interception of wire
22    or electronic communications.

23        (210 ILCS 45/3B-10 new)
24        Sec. 3B-10.  Criminal and civil liability.
25        (a)  It is a defense to prosecution under any law of this
26    State  under  which  it  is  an  offense   to   intercept   a
27    communication    or    disclose   or   use   an   intercepted
28    communication, that the communication was intercepted  by  an
29    electronic monitoring device placed in the room of a resident
 
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 1    of a facility.
 2        (b)  This Article does not affect whether a person may be
 3    held  to  be civilly liable under any other law in connection
 4    with placing an electronic monitoring device in the room of a
 5    resident of  a  facility  or  in  connection  with  using  or
 6    disclosing  a  tape or recording made by the device except as
 7    specifically provided by this Article or to the  extent  that
 8    liability  is  affected  by  a consent or waiver signed under
 9    this  Article  or  the  fact   that   authorized   electronic
10    monitoring is required to be conducted with notice to persons
11    who enter a resident's room.
12        (c)  A  communication or other sound acquired by an audio
13    electronic monitoring device installed under  the  provisions
14    of  this  Article concerning authorized electronic monitoring
15    is not considered to be an oral communication as  defined  by
16    Section 108B-1 of the Code of Criminal Procedure of 1963.

17        (210 ILCS 45/3B-15 new)
18        Sec.  3B-15.  Covert use of electronic monitoring device;
19    liability of Department or facility.
20        (a)  For the purposes of this Article, the placement  and
21    use  of  an  electronic  monitoring  device  in the room of a
22    resident is considered to be covert if (i) the placement  and
23    use  of  the  device  is  not  open  and obvious and (ii) the
24    facility and the Department are not informed about the device
25    by the resident, by a person who placed  the  device  in  the
26    room, or by a person who is using the device.
27        (b)  The  Department  and the facility may not be held to
28    be civilly liable in connection with the covert placement  or
29    use  of  an  electronic  monitoring  device  in the room of a
30    resident.

31        (210 ILCS 45/3B-20 new)
32        Sec. 3B-20.  Required form on admission.  The  Department
 
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 1    by  rule  shall  prescribe  a form that must be completed and
 2    signed on a resident's admission  to  a  facility  by  or  on
 3    behalf  of  the  resident.  The  form  must  state all of the
 4    following:
 5             (1)  That  a  person  who   places   an   electronic
 6        monitoring  device  in the room of a resident or who uses
 7        or discloses a tape or other recording made by the device
 8        may be civilly liable for any unlawful violation  of  the
 9        privacy rights of another.
10             (2)  That a person who covertly places an electronic
11        monitoring  device  in  the  room  of  a  resident or who
12        consents to or acquiesces in the covert placement of  the
13        device  in  the room of a resident has waived any privacy
14        right the person may have had in connection  with  images
15        or sounds that may be acquired by the device.
16             (3)  That  a  resident or the resident's guardian or
17        legal representative is entitled  to  conduct  authorized
18        electronic monitoring under this Article and that, if the
19        facility  refuses  to permit the electronic monitoring or
20        fails to make reasonable physical accommodations for  the
21        authorized   electronic  monitoring,  the  person  should
22        contact the Department.
23             (4)  The basic procedures that must be  followed  to
24        request authorized electronic monitoring.
25             (5)  The  manner  in  which this Article affects the
26        legal  requirement  to  report  abuse  or  neglect   when
27        electronic monitoring is being conducted.
28             (6)  Any   other  information  regarding  covert  or
29        authorized  electronic  monitoring  that  the  Department
30        considers advisable to include on the form.

31        (210 ILCS 45/3B-25 new)
32        Sec. 3B-25.  Authorized electronic  monitoring;  who  may
33    request.
 
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 1        (a)  If a resident has the capacity to request electronic
 2    monitoring  and  has not been judicially declared to lack the
 3    required capacity, only the resident may  request  authorized
 4    electronic monitoring under this Article, notwithstanding the
 5    terms of any durable power of attorney or similar instrument.
 6        (b)  If  a  resident has been judicially declared to lack
 7    the capacity required for taking an action such as requesting
 8    electronic monitoring, only the guardian of the resident  may
 9    request electronic monitoring under this Article.
10        (c)  If  a  resident  does  not  have capacity to request
11    electronic monitoring but has not been judicially declared to
12    lack the required capacity, only the legal representative  of
13    the  resident  may  request  electronic monitoring under this
14    Article.  The  Department  by  rule   shall   prescribe   (i)
15    guidelines  that  will assist the facility, family members of
16    residents, advocates  for  residents,  and  other  interested
17    persons  in  determining  when  a resident lacks the required
18    capacity and (ii) who may be considered to  be  a  resident's
19    legal  representative for purposes of this Article, including
20    persons who may be considered the legal representative  under
21    the  terms of an instrument executed by the resident when the
22    resident had capacity and persons who may  become  the  legal
23    representative  for the limited purpose of this Article under
24    a procedure prescribed by the Department.

25        (210 ILCS 45/3B-30 new)
26        Sec. 3B-30.  Authorized electronic  monitoring;  form  of
27    request; consent of other residents in room.
28        (a)  A  resident  or the guardian or legal representative
29    of a resident who wishes  to  conduct  authorized  electronic
30    monitoring  must  make  the request to the facility on a form
31    prescribed by the Department.
32        (b)  The form prescribed by the Department  must  require
33    the   resident   or   the   resident's   guardian   or  legal
 
                            -5-      LRB093 07147 AMC 07302 b
 1    representative to do all of the following:
 2             (1)  Release the facility from any  civil  liability
 3        for  a  violation  of  the  resident's  privacy rights in
 4        connection with the  use  of  the  electronic  monitoring
 5        device.
 6             (2)  Choose,  when  the electronic monitoring device
 7        is a video surveillance camera, whether the  camera  will
 8        always  be  unobstructed  or whether the camera should be
 9        obstructed in  specified  circumstances  to  protect  the
10        dignity of the resident.
11             (3)  If the resident resides in a multi-person room,
12        obtain  the consent of other residents in the room, using
13        a form prescribed for this purpose by the Department.
14        (c)  Consent under item (3)  of  subsection  (b)  may  be
15    given only by the following:
16             (1)  The other resident or residents in the room.
17             (2)  The guardian of the other resident in the room,
18        if  the  person  has been judicially declared to lack the
19        required capacity.
20             (3)  By the legal representative who  under  Section
21        25  may  request  electronic  monitoring on behalf of the
22        other resident in the room, if the person does  not  have
23        capacity  to  sign  the  form but has not been judicially
24        declared to lack the required capacity.
25        (d)  The form prescribed by the Department under item (3)
26    of subsection (b)  must  condition  the  consent  of  another
27    resident in the room on the other resident also releasing the
28    facility  from  any  civil  liability  for a violation of the
29    person's privacy rights in connection with  the  use  of  the
30    electronic monitoring device.
31        (e)  Another  resident  in  the  room  may  (i)  when the
32    proposed electronic monitoring device is a video surveillance
33    camera, condition consent on the camera  being  pointed  away
34    from  the  consenting  resident and (ii) condition consent on
 
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 1    the use  of  an  audio  electronic  monitoring  device  being
 2    limited or prohibited.
 3        (f)  If   authorized   electronic   monitoring  is  being
 4    conducted in the room of a resident and another  resident  is
 5    moved  into  the  room  who  has  not  yet  consented  to the
 6    electronic monitoring, authorized electronic monitoring  must
 7    cease until the new resident has consented in accordance with
 8    this Section.
 9        (g)  The  Department  may  include other information that
10    the Department considers to be appropriate on either  of  the
11    forms that the Department is required to prescribe under this
12    Section.
13        (h)  The Department may adopt rules prescribing the place
14    or  places  that  a  form  signed  under this Section must be
15    maintained and the period for which it must be maintained.
16        (i)  Authorized electronic monitoring  may  not  commence
17    until  all request and consent forms required by this Section
18    have been completed and returned to the facility and must  be
19    conducted  in  accordance  with  any limitation placed on the
20    monitoring as a condition of  the  consent  given  by  or  on
21    behalf of another resident in the room.

22        (210 ILCS 45/3B-35 new)
23        Sec.  3B-35.  Authorized  electronic  monitoring; general
24    provisions.
25        (a)  A facility shall permit a resident or the resident's
26    guardian or legal representative to monitor the room  of  the
27    resident through the use of electronic monitoring devices.
28        (b)  The  facility  shall require a resident who conducts
29    authorized electronic monitoring or the  resident's  guardian
30    or  legal  representative  to post and maintain a conspicuous
31    notice at the entrance to the  resident's  room.  The  notice
32    must  state that the room is being monitored by an electronic
33    monitoring device.
 
                            -7-      LRB093 07147 AMC 07302 b
 1        (c)  Authorized  electronic  monitoring  conducted  under
 2    this Article is not compulsory and may be conducted  only  at
 3    the  request  of  the  resident or the resident's guardian or
 4    legal representative.
 5        (d)  A facility may not refuse to admit an individual  to
 6    residency  in the facility and may not remove a resident from
 7    the facility because  of  a  request  to  conduct  authorized
 8    electronic  monitoring.  A facility may not remove a resident
 9    from the facility because  covert  electronic  monitoring  is
10    being conducted by or on behalf of a resident.
11        (e)  A    facility   shall   make   reasonable   physical
12    accommodation for authorized electronic monitoring, including
13    (i) providing a reasonably secure place to  mount  the  video
14    surveillance camera or other electronic monitoring device and
15    (ii)   providing  access  to  power  sources  for  the  video
16    surveillance camera or other electronic monitoring device.
17        (f)  The resident or the  resident's  guardian  or  legal
18    representative   must  pay  for  all  costs  associated  with
19    conducting electronic monitoring, other  than  the  costs  of
20    electricity. The resident or the resident's guardian or legal
21    representative  is  responsible for all costs associated with
22    the  installation  of  the  equipment  and  maintaining   the
23    equipment.
24        (g)  A  facility  may  require  an  electronic monitoring
25    device  to  be  installed  in  a  manner  that  is  safe  for
26    residents, employees, or visitors who may be moving about the
27    room. The Department  may  adopt  rules  regarding  the  safe
28    placement of an electronic monitoring device.
29        (h)  If  authorized  electronic  monitoring is conducted,
30    the facility may  require  the  resident  or  the  resident's
31    guardian  or  legal  representative to conduct the electronic
32    monitoring in plain view.
33        (i)  A facility may  but  is  not  required  to  place  a
34    resident  in  a  different  room  to accommodate a request to
 
                            -8-      LRB093 07147 AMC 07302 b
 1    conduct authorized electronic monitoring.

 2        (210 ILCS 45/3B-40 new)
 3        Sec. 3B-40.  Reporting abuse and neglect.
 4        (a)  For purposes of the duty to report abuse or  neglect
 5    under  Section  2-107 of this Act, a person who is conducting
 6    electronic monitoring on behalf  of  a  resident  under  this
 7    Article is considered to have viewed or listened to a tape or
 8    recording  made  by  the  electronic  monitoring device on or
 9    before  the  fourteenth  day  after  the  date  the  tape  or
10    recording is made.
11        (b)  If a resident who has capacity to determine that the
12    resident has been abused or neglected and who  is  conducting
13    electronic  monitoring  under  this  Article  gives a tape or
14    recording made by  the  electronic  monitoring  device  to  a
15    person  and  directs the person to view or listen to the tape
16    or recording  to  determine  whether  abuse  or  neglect  has
17    occurred,  the  person to whom the resident gives the tape or
18    recording is considered to have viewed  or  listened  to  the
19    tape or recording on or before the seventh day after the date
20    the person receives the tape or recording for purposes of the
21    duty  to  report abuse or neglect under Section 2-107 of this
22    Act.
23        (c)  A person is required to report abuse  based  on  the
24    person's  viewing of or listening to a tape or recording only
25    if  the  incident  of  abuse  is  acquired  on  the  tape  or
26    recording. A person is required to report  neglect  based  on
27    the  person's  viewing of or listening to a tape or recording
28    only if it is clear from viewing or listening to the tape  or
29    recording that neglect has occurred.
30        (d)  If  abuse  or neglect of the resident is reported to
31    the facility and the facility requests a copy of any relevant
32    tape or recording made by an  electronic  monitoring  device,
33    the  person who possesses the tape or recording shall provide
 
                            -9-      LRB093 07147 AMC 07302 b
 1    the facility with a copy at the facility's expense.

 2        Section 99. Effective date. This Act  takes  effect  upon
 3    becoming law.