Illinois General Assembly - Full Text of HB2462
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Full Text of HB2462  99th General Assembly

HB2462enr 99TH GENERAL ASSEMBLY

  
  
  

 


 
HB2462 EnrolledLRB099 06604 RPS 30928 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 Long-Term Care Facilities
6Act.
 
7    Section 5. Definitions. As used in this Act:
8    "Authorized electronic monitoring" means the placement and
9use of an electronic monitoring device by a resident in his or
10her room in accordance with this Act.
11    "Department" means the Department of Public Health.
12    "Electronic monitoring device" means a surveillance
13instrument with a fixed position video camera or an audio
14recording device, or a combination thereof, that is installed
15in a resident's room under the provisions of this Act and
16broadcasts or records activity or sounds occurring in the room.
17    "Facility" means an intermediate care facility for the
18developmentally disabled licensed under the ID/DD Community
19Care Act that has 30 beds or more, a long-term care for under
20age 22 facility licensed under the ID/DD Community Care Act, or
21a facility licensed under the Nursing Home Care Act.
22    "Resident" means a person residing in a facility.
23    "Resident's representative" has the meaning given to that

 

 

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1term in (1) Section 1-123 of the Nursing Home Care Act if the
2resident resides in a facility licensed under the Nursing Home
3Care Act or (2) Section 1-123 of the ID/DD Community Care Act
4if the resident resides in a facility licensed under the ID/DD
5Community Care Act.
 
6    Section 10. Authorized electronic monitoring.
7    (a) A resident shall be permitted to conduct authorized
8electronic monitoring of the resident's room through the use of
9electronic monitoring devices placed in the room pursuant to
10this Act.
11    (b) Nothing in this Act shall be construed to allow the use
12of an electronic monitoring device to take still photographs or
13for the nonconsensual interception of private communications.
 
14    Section 15. Consent.
15    (a) Except as otherwise provided in this subsection, a
16resident, a resident's plenary guardian of the person, or the
17parent of a resident under the age of 18 must consent in
18writing on a notification and consent form prescribed by the
19Department to the authorized electronic monitoring in the
20resident's room. If the resident has not affirmatively objected
21to the authorized electronic monitoring and the resident's
22physician determines that the resident lacks the ability to
23understand and appreciate the nature and consequences of
24electronic monitoring, the following individuals may consent

 

 

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1on behalf of the resident, in order of priority:
2        (1) a health care agent named under the Illinois Power
3    of Attorney Act;
4        (2) a resident's representative, as defined in Section
5    5 of this Act;
6        (3) the resident's spouse;
7        (4) the resident's parent;
8        (5) the resident's adult child who has the written
9    consent of the other adult children of the resident to act
10    as the sole decision maker regarding authorized electronic
11    monitoring; or
12        (6) the resident's adult brother or sister who has the
13    written consent of the other adult siblings of the resident
14    to act as the sole decision maker regarding authorized
15    electronic monitoring.
16    (a-5) Prior to another person, other than a resident's
17plenary guardian of the person, consenting on behalf of a
18resident 18 years of age or older in accordance with this
19Section, the resident must be asked by that person, in the
20presence of a facility employee, if he or she wants authorized
21electronic monitoring to be conducted. The person must explain
22to the resident:
23        (1) the type of electronic monitoring device to be
24    used;
25        (2) the standard conditions that may be placed on the
26    electronic monitoring device's use, including those listed

 

 

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1    in paragraph (7) of subsection (b) of Section 20;
2        (3) with whom the recording may be shared according to
3    Section 45; and
4        (4) the resident's ability to decline all recording.
5    For the purposes of this subsection, a resident
6affirmatively objects when he or she orally, visually, or
7through the use of auxiliary aids or services declines
8authorized electronic monitoring. The resident's response must
9be documented on the notification and consent form.
10    (b) A resident or roommate may consent to authorized
11electronic monitoring with any conditions of the resident's
12choosing, including, but not limited to, the list of standard
13conditions provided in paragraph (7) of subsection (b) of
14Section 20. A resident or roommate may request that the
15electronic monitoring device be turned off or the visual
16recording component of the electronic monitoring device be
17blocked at any time.
18    (c) Prior to the authorized electronic monitoring, a
19resident must obtain the written consent of any other resident
20residing in the room on the notification and consent form
21prescribed by the Department. Except as otherwise provided in
22this subsection, a roommate, a roommate's plenary guardian of
23the person, or the parent of a roommate under the age of 18
24must consent in writing to the authorized electronic monitoring
25in the resident's room. If the roommate has not affirmatively
26objected to the authorized electronic monitoring in accordance

 

 

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1with subsection (a-5) and the roommate's physician determines
2that the roommate lacks the ability to understand and
3appreciate the nature and consequences of electronic
4monitoring, the following individuals may consent on behalf of
5the roommate, in order of priority:
6        (1) a health care agent named under the Illinois Power
7    of Attorney Act;
8        (2) a roommate's resident's representative, as defined
9    in Section 5 of this Act;
10        (3) the roommate's spouse;
11        (4) the roommate's parent;
12        (5) the roommate's adult child who has the written
13    consent of the other adult children of the resident to act
14    as the sole decision maker regarding authorized electronic
15    monitoring; or
16        (6) the roommate's adult brother or sister who has the
17    written consent of the other adult siblings of the resident
18    to act as the sole decision maker regarding authorized
19    electronic monitoring.
20    (c-5) Consent by a roommate under subsection (c) authorizes
21the resident's use of any recording obtained under this Act, as
22provided in Section 45 of this Act.
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 facility may 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 facility 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
16facility shall make a reasonable attempt to accommodate the
17resident who wants to conduct authorized electronic
18monitoring. A facility has met the requirement to make a
19reasonable attempt to accommodate a resident who wants to
20conduct authorized electronic monitoring when upon
21notification that a roommate has not consented to the use of an
22electronic monitoring device in his or her room, the facility
23offers to move either resident to another shared room that is
24available at the time of the request. If a resident chooses to
25reside in a private room in order to accommodate the use of an
26electronic monitoring device, the resident must pay the private

 

 

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1room rate. If a facility is unable to accommodate a resident
2due to lack of space, the facility must reevaluate the request
3every 2 weeks until the request is fulfilled.
 
4    Section 20. Notice to the facility.
5    (a) Authorized electronic monitoring may begin only after a
6notification and consent form prescribed by the Department has
7been completed and submitted to the facility.
8    (b) A resident shall notify the facility in writing of his
9or her intent to install an electronic monitoring device by
10providing a completed notification and consent form prescribed
11by the Department that must include, at minimum, the following
12information:
13        (1) the resident's signed consent to electronic
14    monitoring or the signature of the person consenting on
15    behalf of the resident in accordance with Section 15 of
16    this Act; if a person other than the resident signs the
17    consent form, the form must document the following:
18            (A) the date the resident was asked if he or she
19        wants authorized electronic monitoring to be conducted
20        in accordance with subsection (a-5) of Section 15;
21            (B) who was present when the resident was asked;
22        and
23            (C) an acknowledgement that the resident did not
24        affirmatively object; and
25        (2) the resident's roommate's signed consent or the

 

 

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

 

 

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1            (C) turning off the electronic monitoring device
2        or blocking the visual recording component of the
3        electronic monitoring device for the duration of an
4        exam or procedure by a health care professional;
5            (D) turning off the electronic monitoring device
6        or blocking the visual recording component of the
7        electronic monitoring device while dressing or bathing
8        is performed; and
9            (E) turning the electronic monitoring device off
10        for the duration of a visit with a spiritual advisor,
11        ombudsman, attorney, financial planner, intimate
12        partner, or other visitor; and
13        (8) any other condition or restriction elected by the
14    resident or roommate on the use of an electronic monitoring
15    device.
16    (c) A copy of the completed notification and consent form
17shall be placed in the resident's and any roommate's clinical
18record and a copy shall be provided to the resident and his or
19her roommate, if applicable.
20    (d) The Department shall prescribe the notification and
21consent form required in this Section no later than 60 days
22after the effective date of this Act. If the Department has not
23prescribed such a form by that date, the Office of the Attorney
24General shall post a notification and consent form on its
25website for resident use until the Department has prescribed
26the form.
 

 

 

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1    Section 25. Cost and installation.
2    (a) A resident choosing to conduct authorized electronic
3monitoring must do so at his or her own expense, including
4paying purchase, installation, maintenance, and removal costs.
5    (b) If a resident chooses to install an electronic
6monitoring device that uses Internet technology for visual or
7audio monitoring, that resident is responsible for contracting
8with an Internet service provider.
9    (c) The facility shall make a reasonable attempt to
10accommodate the resident's installation needs, including, but
11not limited to, allowing access to the facility's
12telecommunications or equipment room. A facility has the burden
13of proving that a requested accommodation is not reasonable.
14    (d) The electronic monitoring device must be placed in a
15conspicuously visible location in the room.
16    (e) A facility may not charge the resident a fee for the
17cost of electricity used by an electronic monitoring device.
18    (f) All electronic monitoring device installations and
19supporting services shall comply with the requirements of the
20National Fire Protection Association (NFPA) 101 Life Safety
21Code (2000 edition).
 
22    Section 27. Assistance program.
23    (a) Subject to appropriation, the Department shall
24establish a program to assist residents receiving medical

 

 

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1assistance under Article V of the Illinois Public Aid Code in
2accessing authorized electronic monitoring.
3    (b) The Department shall distribute up to $50,000 in funds
4on an annual basis to residents receiving medical assistance
5under Article V of the Illinois Public Aid Code for the
6purchase and installation of authorized electronic monitoring
7devices.
8    (c) Applications for funds and disbursement of funds must
9be made in a manner prescribed by the Department.
 
10    Section 30. Notice to visitors.
11    (a) If a resident of a facility conducts authorized
12electronic monitoring, a sign shall be clearly and
13conspicuously posted at all building entrances accessible to
14visitors. The notice must be entitled "Electronic Monitoring"
15and must state, in large, easy-to-read type, "The rooms of some
16residents may be monitored electronically by or on behalf of
17the residents.".
18    (b) A sign shall be clearly and conspicuously posted at the
19entrance to a resident's room where authorized electronic
20monitoring is being conducted. The notice must state, in large,
21easy-to-read type, "This room is electronically monitored.".
22    (c) The facility is responsible for installing and
23maintaining the signage required in this Section.
 
24    Section 40. Obstruction of electronic monitoring devices.

 

 

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1    (a) A person or entity is prohibited from knowingly
2hampering, obstructing, tampering with, or destroying an
3electronic monitoring device installed in a resident's room
4without the permission of the resident or the individual who
5consented on behalf of the resident in accordance with Section
615 of this Act.
7    (b) A person or entity is prohibited from knowingly
8hampering, obstructing, tampering with, or destroying a video
9or audio recording obtained in accordance with this Act without
10the permission of the resident or the individual who consented
11on behalf of the resident in accordance with Section 15 of this
12Act.
13    (c) A person or entity that violates this Section is guilty
14of a Class B misdemeanor. A person or entity that violates this
15Section in the commission of or to conceal a misdemeanor
16offense is guilty of a Class A misdemeanor. A person or entity
17that violates this Section in the commission of or to conceal a
18felony offense is guilty of a Class 4 felony.
19    (d) It is not a violation of this Section if a person or
20facility turns off the electronic monitoring device or blocks
21the visual recording component of the electronic monitoring
22device at the direction of the resident or the person who
23consented on behalf of the resident in accordance with Section
2415 of this Act.
 
25    Section 45. Dissemination of recordings.

 

 

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1    (a) A facility may not access any video or audio recording
2created through authorized electronic monitoring without the
3written consent of the resident or the person who consented on
4behalf of the resident in accordance with Section 15 of this
5Act.
6    (b) Except as required under the Freedom of Information
7Act, a recording or copy of a recording made pursuant to this
8Act may only be disseminated for the purpose of addressing
9concerns relating to the health, safety, or welfare of a
10resident or residents.
11    (c) The resident or person who consented on behalf of the
12resident in accordance with Section 15 of this Act shall
13provide a copy of any video or audio recording to parties
14involved in a civil, criminal, or administrative proceeding,
15upon a party's request, if the video or audio recording was
16made during the time period that the conduct at issue in the
17proceeding allegedly occurred.
 
18    Section 50. Admissibility of evidence. Subject to
19applicable rules of evidence and procedure, any video or audio
20recording created through authorized electronic monitoring in
21accordance with this Act may be admitted into evidence in a
22civil, criminal, or administrative proceeding if the contents
23of the recording have not been edited or artificially enhanced
24and the video recording includes the date and time the events
25occurred.
 

 

 

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1    Section 55. Report. Each facility shall report to the
2Department, in a manner prescribed by the Department, the
3number of authorized electronic monitoring notification and
4consent forms received annually. The Department shall report
5the total number of authorized electronic monitoring
6notification and consent forms received by facilities to the
7Office of the Attorney General annually.
 
8    Section 60. Liability.
9    (a) A facility is not civilly or criminally liable for the
10inadvertent or intentional disclosure of a recording by a
11resident or a person who consents on behalf of the resident for
12any purpose not authorized by this Act.
13    (b) A facility is not civilly or criminally liable for a
14violation of a resident's right to privacy arising out of any
15electronic monitoring conducted pursuant to this Act.
 
16    Section 65. Rules. The Department shall adopt rules
17necessary to implement this Act.
 
18    Section 70. The Nursing Home Care Act is amended by
19changing Section 3-318 and by adding Section 2-115 as follows:
 
20    (210 ILCS 45/2-115 new)
21    Sec. 2-115. Authorized electronic monitoring of a

 

 

HB2462 Enrolled- 15 -LRB099 06604 RPS 30928 b

1resident's room. A resident shall be permitted to conduct
2authorized electronic monitoring of the resident's room
3through the use of electronic monitoring devices placed in the
4room pursuant to the Authorized Electronic Monitoring in
5Long-Term Care Facilities Act.
 
6    (210 ILCS 45/3-318)  (from Ch. 111 1/2, par. 4153-318)
7    Sec. 3-318. (a) No person shall:
8            (1) Intentionally fail to correct or interfere
9        with the correction of a Type "AA", Type "A", or Type
10        "B" violation within the time specified on the notice
11        or approved plan of correction under this Act as the
12        maximum period given for correction, unless an
13        extension is granted and the corrections are made
14        before expiration of extension;
15            (2) Intentionally prevent, interfere with, or
16        attempt to impede in any way any duly authorized
17        investigation and enforcement of this Act;
18            (3) Intentionally prevent or attempt to prevent
19        any examination of any relevant books or records
20        pertinent to investigations and enforcement of this
21        Act;
22            (4) Intentionally prevent or interfere with the
23        preservation of evidence pertaining to any violation
24        of this Act or the rules promulgated under this Act;
25            (5) Intentionally retaliate or discriminate

 

 

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1        against any resident or employee for contacting or
2        providing information to any state official, or for
3        initiating, participating in, or testifying in an
4        action for any remedy authorized under this Act;
5            (6) Wilfully file any false, incomplete or
6        intentionally misleading information required to be
7        filed under this Act, or wilfully fail or refuse to
8        file any required information; or
9            (7) Open or operate a facility without a license; .
10            (8) Intentionally retaliate or discriminate
11        against any resident for consenting to authorized
12        electronic monitoring under the Authorized Electronic
13        Monitoring in Long-Term Care Facilities Act; or
14            (9) Prevent the installation or use of an
15        electronic monitoring device by a resident who has
16        provided the facility with notice and consent as
17        required in Section 20 of the Authorized Electronic
18        Monitoring in Long-Term Care Facilities Act.
19    (b) A violation of this Section is a business offense,
20punishable by a fine not to exceed $10,000, except as otherwise
21provided in subsection (2) of Section 3-103 as to submission of
22false or misleading information in a license application.
23    (c) The State's Attorney of the county in which the
24facility is located, or the Attorney General, shall be notified
25by the Director of any violations of this Section.
26(Source: P.A. 96-1372, eff. 7-29-10.)
 

 

 

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1    Section 75. The ID/DD Community Care Act is amended by
2changing Section 3-318 and by adding Section 2-116 as follows:
 
3    (210 ILCS 47/2-116 new)
4    Sec. 2-116. Authorized electronic monitoring of a
5resident's room. A resident shall be permitted to conduct
6authorized electronic monitoring of the resident's room
7through the use of electronic monitoring devices placed in the
8room pursuant to the Authorized Electronic Monitoring in
9Long-Term Care Facilities Act.
 
10    (210 ILCS 47/3-318)
11    Sec. 3-318. Business offenses.
12    (a) No person shall:
13        (1) Intentionally fail to correct or interfere with the
14    correction of a Type "AA", Type "A", or Type "B" violation
15    within the time specified on the notice or approved plan of
16    correction under this Act as the maximum period given for
17    correction, unless an extension is granted and the
18    corrections are made before expiration of extension;
19        (2) Intentionally prevent, interfere with, or attempt
20    to impede in any way any duly authorized investigation and
21    enforcement of this Act;
22        (3) Intentionally prevent or attempt to prevent any
23    examination of any relevant books or records pertinent to

 

 

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1    investigations and enforcement of this Act;
2        (4) Intentionally prevent or interfere with the
3    preservation of evidence pertaining to any violation of
4    this Act or the rules promulgated under this Act;
5        (5) Intentionally retaliate or discriminate against
6    any resident or employee for contacting or providing
7    information to any state official, or for initiating,
8    participating in, or testifying in an action for any remedy
9    authorized under this Act;
10        (6) Willfully file any false, incomplete or
11    intentionally misleading information required to be filed
12    under this Act, or willfully fail or refuse to file any
13    required information; or
14        (7) Open or operate a facility without a license; .
15        (8) Intentionally retaliate or discriminate against
16    any resident for consenting to authorized electronic
17    monitoring under the Authorized Electronic Monitoring in
18    Long-Term Care Facilities Act; or
19        (9) Prevent the installation or use of an electronic
20    monitoring device by a resident who has provided the
21    facility with notice and consent as required in Section 20
22    of the Authorized Electronic Monitoring in Long-Term Care
23    Facilities Act.
24    (b) A violation of this Section is a business offense,
25punishable by a fine not to exceed $10,000, except as otherwise
26provided in subsection (2) of Section 3-103 as to submission of

 

 

HB2462 Enrolled- 19 -LRB099 06604 RPS 30928 b

1false or misleading information in a license application.
2    (c) The State's Attorney of the county in which the
3facility is located, or the Attorney General, shall be notified
4by the Director of any violations of this Section.
5(Source: P.A. 96-339, eff. 7-1-10; 97-38, eff. 6-28-11.)
 
6    Section 99. Effective date. This Act takes effect January
71, 2016.