Illinois General Assembly - Full Text of HB3119
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Full Text of HB3119  93rd General Assembly

HB3119ham001 93rd General Assembly


093_HB3119ham001

 










                                     LRB093 07147 AMC 13060 a

 1                    AMENDMENT TO HOUSE BILL 3119

 2        AMENDMENT NO.     .  Amend House Bill 3119  by  replacing
 3    everything after the enacting clause with the following:

 4        "Section  5.  The  Nursing  Home  Care  Act is amended by
 5    adding 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    video
16    surveillance  cameras  installed  in  the room of a resident.
17    "Electronic  monitoring   device"   does   not   include   an
18    electronic,  mechanical, or other device that is specifically
19    used for the nonconsensual interception of wire or electronic
20    communications.
 
                            -2-      LRB093 07147 AMC 13060 a
 1        (210 ILCS 45/3B-10 new)
 2        Sec. 3B-10.  Civil liability.
 3        (a)  It is a defense to prosecution under any law of this
 4    State  under  which  it  is  an  offense   to   intercept   a
 5    communication    or    disclose   or   use   an   intercepted
 6    communication, that the communication was intercepted  by  an
 7    electronic monitoring device placed in the room of a resident
 8    of a facility.
 9        (b)  This Article does not affect whether a person may be
10    held  to  be civilly liable under any other law in connection
11    with placing an electronic monitoring device in the room of a
12    resident of  a  facility  or  in  connection  with  using  or
13    disclosing  a  tape or recording made by the device except as
14    specifically provided by this Article or to the  extent  that
15    liability  is  affected  by  a consent or waiver signed under
16    this  Article  or  the  fact   that   authorized   electronic
17    monitoring is required to be conducted with notice to persons
18    who enter a resident's room.

19        (210 ILCS 45/3B-15 new)
20        Sec.  3B-15.  Covert use of electronic monitoring device;
21    liability of Department or facility.
22        (a)  For the purposes of this Article, the placement  and
23    use  of  an  electronic  monitoring  device  in the room of a
24    resident is considered to be covert if (i) the placement  and
25    use  of  the  device  is  not  open  and obvious and (ii) the
26    facility and the Department are not informed about the device
27    by the resident, by a person who placed  the  device  in  the
28    room, or by a person who is using the device.
29        (b)  The  Department  and the facility may not be held to
30    be civilly liable in connection with the covert placement  or
31    use  of  an  electronic  monitoring  device  in the room of a
32    resident.
 
                            -3-      LRB093 07147 AMC 13060 a
 1        (210 ILCS 45/3B-20 new)
 2        Sec. 3B-20.  Required form on admission.  The  Department
 3    by  rule  shall  prescribe  a form that must be completed and
 4    signed on a resident's admission  to  a  facility  by  or  on
 5    behalf  of  the  resident.  The  form  must  state all of the
 6    following:
 7             (1)  That  a  person  who   places   an   electronic
 8        monitoring  device  in the room of a resident or who uses
 9        or discloses a tape or other recording made by the device
10        may be civilly liable for any unlawful violation  of  the
11        privacy rights of another.
12             (2)  That a person who covertly places an electronic
13        monitoring  device  in  the  room  of  a  resident or who
14        consents to or acquiesces in the covert placement of  the
15        device  in  the room of a resident has waived any privacy
16        right the person may have had in connection  with  images
17        or sounds that may be acquired by the device.
18             (3)  That  a  resident or the resident's guardian or
19        legal representative is entitled  to  conduct  authorized
20        electronic monitoring under this Article and that, if the
21        facility  refuses  to permit the electronic monitoring or
22        fails to make reasonable physical accommodations for  the
23        authorized   electronic  monitoring,  the  person  should
24        contact the Department.
25             (4)  The basic procedures that must be  followed  to
26        request authorized electronic monitoring.
27             (5)  The  manner  in  which this Article affects the
28        legal  requirement  to  report  abuse  or  neglect   when
29        electronic monitoring is being conducted.
30             (6)  Any   other  information  regarding  covert  or
31        authorized  electronic  monitoring  that  the  Department
32        considers advisable to include on the form.

33        (210 ILCS 45/3B-25 new)
 
                            -4-      LRB093 07147 AMC 13060 a
 1        Sec. 3B-25.  Authorized electronic  monitoring;  who  may
 2    request.
 3        (a)  If a resident has the capacity to request electronic
 4    monitoring  and  has not been judicially declared to lack the
 5    required capacity, only the resident may  request  authorized
 6    electronic monitoring under this Article, notwithstanding the
 7    terms of any durable power of attorney or similar instrument.
 8        (b)  If  a  resident has been judicially declared to lack
 9    the capacity required for taking an action such as requesting
10    electronic monitoring, only the guardian of the resident  may
11    request electronic monitoring under this Article.
12        (c)  If  a  resident  does  not  have capacity to request
13    electronic monitoring but has not been judicially declared to
14    lack the required capacity, only the legal representative  of
15    the  resident  may  request  electronic monitoring under this
16    Article.  The  Department  by  rule   shall   prescribe   (i)
17    guidelines  that  will assist the facility, family members of
18    residents, advocates  for  residents,  and  other  interested
19    persons  in  determining  when  a resident lacks the required
20    capacity and (ii) who may be considered to  be  a  resident's
21    legal  representative for purposes of this Article, including
22    persons who may be considered the legal representative  under
23    the  terms of an instrument executed by the resident when the
24    resident had capacity and persons who may  become  the  legal
25    representative  for the limited purpose of this Article under
26    a procedure prescribed by the Department.

27        (210 ILCS 45/3B-30 new)
28        Sec. 3B-30.  Authorized electronic  monitoring;  form  of
29    request; consent of other residents in room.
30        (a)  A  resident  or the guardian or legal representative
31    of a resident who wishes  to  conduct  authorized  electronic
32    monitoring  must  make  the request to the facility on a form
33    prescribed by the Department.
 
                            -5-      LRB093 07147 AMC 13060 a
 1        (b)  The form prescribed by the Department  must  require
 2    the   resident   or   the   resident's   guardian   or  legal
 3    representative to do all of the following:
 4             (1)  Release the facility from any  civil  liability
 5        for  a  violation  of  the  resident's  privacy rights in
 6        connection with the  use  of  the  electronic  monitoring
 7        device.
 8             (2)  Choose,  when  the electronic monitoring device
 9        is a video surveillance camera, whether the  camera  will
10        always  be  unobstructed  or whether the camera should be
11        obstructed in  specified  circumstances  to  protect  the
12        dignity of the resident.
13             (3)  If the resident resides in a multi-person room,
14        obtain  the consent of other residents in the room, using
15        a form prescribed for this purpose by the Department,  or
16        ensure  that  the  camera  is focused on the resident for
17        whom the monitoring is requested.
18        (c)  Consent under item (3)  of  subsection  (b)  may  be
19    given only by the following:
20             (1)  The other resident or residents in the room.
21             (2)  The guardian of the other resident in the room,
22        if  the  person  has been judicially declared to lack the
23        required capacity.
24             (3)  By the legal representative who  under  Section
25        25  may  request  electronic  monitoring on behalf of the
26        other resident in the room, if the person does  not  have
27        capacity  to  sign  the  form but has not been judicially
28        declared to lack the required capacity.
29        (d)  The form prescribed by the Department under item (3)
30    of subsection (b)  must  condition  the  consent  of  another
31    resident in the room on the other resident also releasing the
32    facility  from  any  civil  liability  for a violation of the
33    person's privacy rights in connection with  the  use  of  the
34    electronic monitoring device.
 
                            -6-      LRB093 07147 AMC 13060 a
 1        (e)  Another  resident  in  the  room  may  (i)  when the
 2    proposed electronic monitoring device is a video surveillance
 3    camera, condition consent on the camera  being  pointed  away
 4    from  the  consenting  resident and (ii) condition consent on
 5    the use  of  an  audio  electronic  monitoring  device  being
 6    limited or prohibited.
 7        (f)  If   authorized   electronic   monitoring  is  being
 8    conducted in the room of a resident and another  resident  is
 9    moved  into  the  room  who  has  not  yet  consented  to the
10    electronic monitoring, the resident or resident's guardian or
11    legal representative must ensure that the camera  is  focused
12    only on the resident for whom the monitoring is requested.
13        (g)  The  Department  may  include other information that
14    the Department considers to be appropriate on either  of  the
15    forms that the Department is required to prescribe under this
16    Section.
17        (h)  The Department may adopt rules prescribing the place
18    or  places  that  a  form  signed  under this Section must be
19    maintained and the period for which it must be maintained.
20        (i)  Authorized electronic monitoring  may  not  commence
21    until  all request and consent forms required by this Section
22    have been completed and returned to the facility and must  be
23    conducted  in  accordance  with  any limitation placed on the
24    monitoring as a condition of  the  consent  given  by  or  on
25    behalf of another resident in the room.
26        (j)  If  the  other  residents  in the room object to the
27    monitoring, the facility must allow the resident for whom the
28    monitoring request is made to occupy the  bed  farthest  from
29    the  door in order to protect the privacy rights of the other
30    residents in the room.

31        (210 ILCS 45/3B-35 new)
32        Sec. 3B-35.  Authorized  electronic  monitoring;  general
33    provisions.
 
                            -7-      LRB093 07147 AMC 13060 a
 1        (a)  A facility shall permit a resident or the resident's
 2    guardian  or  legal representative to monitor the room of the
 3    resident through the use of electronic monitoring devices.
 4        (b)  The facility shall require a resident  who  conducts
 5    authorized  electronic  monitoring or the resident's guardian
 6    or legal representative to post and  maintain  a  conspicuous
 7    notice  at  the  entrance  to the resident's room. The notice
 8    must state that the room is being monitored by an  electronic
 9    monitoring device.
10        (c)  Authorized  electronic  monitoring  conducted  under
11    this  Article  is not compulsory and may be conducted only at
12    the request of the resident or  the  resident's  guardian  or
13    legal representative.
14        (d)  A  facility may not refuse to admit an individual to
15    residency in the facility and may not remove a resident  from
16    the  facility  because  of  a  request  to conduct authorized
17    electronic monitoring. A facility may not remove  a  resident
18    from  the  facility  because  covert electronic monitoring is
19    being conducted by or on behalf of a resident.
20        (e)  A   facility   shall   make   reasonable    physical
21    accommodation for authorized electronic monitoring, including
22    (i)  providing  a  reasonably secure place to mount the video
23    surveillance camera or other electronic monitoring device and
24    (ii)  providing  access  to  power  sources  for  the   video
25    surveillance camera or other electronic monitoring device.
26        (f)  The  resident  or  the  resident's guardian or legal
27    representative  must  pay  for  all  costs  associated   with
28    conducting  electronic  monitoring,  other  than the costs of
29    electricity. The resident or the resident's guardian or legal
30    representative is responsible for all costs  associated  with
31    the   installation  of  the  equipment  and  maintaining  the
32    equipment.
33        (g)  A facility  may  require  an  electronic  monitoring
34    device  to  be  installed  in  a  manner  that  is  safe  for
 
                            -8-      LRB093 07147 AMC 13060 a
 1    residents, employees, or visitors who may be moving about the
 2    room.  The  Department  may  adopt  rules  regarding the safe
 3    placement of an electronic monitoring device.
 4        (h)  If authorized electronic  monitoring  is  conducted,
 5    the  facility  may  require  the  resident  or the resident's
 6    guardian or legal representative to  conduct  the  electronic
 7    monitoring in plain view.
 8        (i)  The  person  who  requests the electronic monitoring
 9    shall maintain control of all tapes or  recordings  resulting
10    from the monitoring.

11        (210 ILCS 45/3B-40 new)
12        Sec. 3B-40.  Reporting abuse and neglect.
13        (a)  For  purposes of the duty to report abuse or neglect
14    under Section 2-107 of this Act, a person who  is  conducting
15    electronic  monitoring  on  behalf  of  a resident under this
16    Article is considered to have viewed a tape or recording made
17    by the electronic monitoring device within 30 days after  the
18    date the tape or recording is made.
19        (b)  If a resident who has capacity to determine that the
20    resident  has  been abused or neglected and who is conducting
21    electronic monitoring under this  Article  gives  a  tape  or
22    recording  made  by  the  electronic  monitoring  device to a
23    person and directs the person to view the tape  or  recording
24    to  determine  whether  abuse  or  neglect  has occurred, the
25    person to whom the resident gives the tape  or  recording  is
26    considered  to  have  viewed  the tape or recording within 14
27    days after the date the person receives the tape or recording
28    for purposes of the duty to report  abuse  or  neglect  under
29    Section 2-107 of this Act.
30        (c)  A  person  is  required to report abuse based on the
31    person's viewing of a tape or recording only if the  incident
32    of  abuse  is  acquired on the tape or recording. A person is
33    required to report neglect based on the person's viewing of a
 
                            -9-      LRB093 07147 AMC 13060 a
 1    tape or recording only if it is clear from viewing  the  tape
 2    or recording that neglect has occurred.
 3        (d)  If  abuse  or neglect of the resident is reported to
 4    the facility and the facility requests a copy of any relevant
 5    tape or recording made by an  electronic  monitoring  device,
 6    the  person who possesses the tape or recording shall provide
 7    the facility with a copy at the facility's expense.

 8        Section 99. Effective date. This Act takes effect on July
 9    1, 2004.".