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Public Act 099-0430


 

Public Act 0430 99TH GENERAL ASSEMBLY

  
  
  

 


 
Public Act 099-0430
 
HB2462 EnrolledLRB099 06604 RPS 30928 b

    AN ACT concerning regulation.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 1. Short title. This Act may be cited as the
Authorized Electronic Monitoring in Long-Term Care Facilities
Act.
 
    Section 5. Definitions. As used in this Act:
    "Authorized electronic monitoring" means the placement and
use of an electronic monitoring device by a resident in his or
her room in accordance with this Act.
    "Department" means the Department of Public Health.
    "Electronic monitoring device" means a surveillance
instrument with a fixed position video camera or an audio
recording device, or a combination thereof, that is installed
in a resident's room under the provisions of this Act and
broadcasts or records activity or sounds occurring in the room.
    "Facility" means an intermediate care facility for the
developmentally disabled licensed under the ID/DD Community
Care Act that has 30 beds or more, a long-term care for under
age 22 facility licensed under the ID/DD Community Care Act, or
a facility licensed under the Nursing Home Care Act.
    "Resident" means a person residing in a facility.
    "Resident's representative" has the meaning given to that
term in (1) Section 1-123 of the Nursing Home Care Act if the
resident resides in a facility licensed under the Nursing Home
Care Act or (2) Section 1-123 of the ID/DD Community Care Act
if the resident resides in a facility licensed under the ID/DD
Community Care Act.
 
    Section 10. Authorized electronic monitoring.
    (a) A resident shall be permitted to conduct authorized
electronic monitoring of the resident's room through the use of
electronic monitoring devices placed in the room pursuant to
this Act.
    (b) Nothing in this Act shall be construed to allow the use
of an electronic monitoring device to take still photographs or
for the nonconsensual interception of private communications.
 
    Section 15. Consent.
    (a) Except as otherwise provided in this subsection, a
resident, a resident's plenary guardian of the person, or the
parent of a resident under the age of 18 must consent in
writing on a notification and consent form prescribed by the
Department to the authorized electronic monitoring in the
resident's room. If the resident has not affirmatively objected
to the authorized electronic monitoring and the resident's
physician determines that the resident lacks the ability to
understand and appreciate the nature and consequences of
electronic monitoring, the following individuals may consent
on behalf of the resident, in order of priority:
        (1) a health care agent named under the Illinois Power
    of Attorney Act;
        (2) a resident's representative, as defined in Section
    5 of this Act;
        (3) the resident's spouse;
        (4) the resident's parent;
        (5) the resident's adult child who has the written
    consent of the other adult children of the resident to act
    as the sole decision maker regarding authorized electronic
    monitoring; or
        (6) the resident's adult brother or sister who has the
    written consent of the other adult siblings of the resident
    to act as the sole decision maker regarding authorized
    electronic monitoring.
    (a-5) Prior to another person, other than a resident's
plenary guardian of the person, consenting on behalf of a
resident 18 years of age or older in accordance with this
Section, the resident must be asked by that person, in the
presence of a facility employee, if he or she wants authorized
electronic monitoring to be conducted. The person must explain
to the resident:
        (1) the type of electronic monitoring device to be
    used;
        (2) the standard conditions that may be placed on the
    electronic monitoring device's use, including those listed
    in paragraph (7) of subsection (b) of Section 20;
        (3) with whom the recording may be shared according to
    Section 45; and
        (4) the resident's ability to decline all recording.
    For the purposes of this subsection, a resident
affirmatively objects when he or she orally, visually, or
through the use of auxiliary aids or services declines
authorized electronic monitoring. The resident's response must
be documented on the notification and consent form.
    (b) A resident or roommate may consent to authorized
electronic monitoring with any conditions of the resident's
choosing, including, but not limited to, the list of standard
conditions provided in paragraph (7) of subsection (b) of
Section 20. A resident or roommate may request that the
electronic monitoring device be turned off or the visual
recording component of the electronic monitoring device be
blocked at any time.
    (c) Prior to the authorized electronic monitoring, a
resident must obtain the written consent of any other resident
residing in the room on the notification and consent form
prescribed by the Department. Except as otherwise provided in
this subsection, a roommate, a roommate's plenary guardian of
the person, or the parent of a roommate under the age of 18
must consent in writing to the authorized electronic monitoring
in the resident's room. If the roommate has not affirmatively
objected to the authorized electronic monitoring in accordance
with subsection (a-5) and the roommate's physician determines
that the roommate lacks the ability to understand and
appreciate the nature and consequences of electronic
monitoring, the following individuals may consent on behalf of
the roommate, in order of priority:
        (1) a health care agent named under the Illinois Power
    of Attorney Act;
        (2) a roommate's resident's representative, as defined
    in Section 5 of this Act;
        (3) the roommate's spouse;
        (4) the roommate's parent;
        (5) the roommate's adult child who has the written
    consent of the other adult children of the resident to act
    as the sole decision maker regarding authorized electronic
    monitoring; or
        (6) the roommate's adult brother or sister who has the
    written consent of the other adult siblings of the resident
    to act as the sole decision maker regarding authorized
    electronic monitoring.
    (c-5) Consent by a roommate under subsection (c) authorizes
the resident's use of any recording obtained under this Act, as
provided in Section 45 of this Act.
    (c-7) Any resident previously conducting authorized
electronic monitoring must obtain consent from any new roommate
before the resident may resume authorized electronic
monitoring. If a new roommate does not consent to authorized
electronic monitoring and the resident conducting the
authorized electronic monitoring does not remove or disable the
electronic monitoring device, the facility may turn off the
device.
    (d) Consent may be withdrawn by the resident or roommate at
any time, and the withdrawal of consent shall be documented in
the resident's clinical record. If a roommate withdraws consent
and the resident conducting the authorized electronic
monitoring does not remove or disable the electronic monitoring
device, the facility may turn off the electronic monitoring
device.
    (e) If a resident who is residing in a shared room wants to
conduct authorized electronic monitoring and another resident
living in or moving into the same shared room refuses to
consent to the use of an electronic monitoring device, the
facility shall make a reasonable attempt to accommodate the
resident who wants to conduct authorized electronic
monitoring. A facility has met the requirement to make a
reasonable attempt to accommodate a resident who wants to
conduct authorized electronic monitoring when upon
notification that a roommate has not consented to the use of an
electronic monitoring device in his or her room, the facility
offers to move either resident to another shared room that is
available at the time of the request. If a resident chooses to
reside in a private room in order to accommodate the use of an
electronic monitoring device, the resident must pay the private
room rate. If a facility is unable to accommodate a resident
due to lack of space, the facility must reevaluate the request
every 2 weeks until the request is fulfilled.
 
    Section 20. Notice to the facility.
    (a) Authorized electronic monitoring may begin only after a
notification and consent form prescribed by the Department has
been completed and submitted to the facility.
    (b) A resident shall notify the facility in writing of his
or her intent to install an electronic monitoring device by
providing a completed notification and consent form prescribed
by the Department that must include, at minimum, the following
information:
        (1) the resident's signed consent to electronic
    monitoring or the signature of the person consenting on
    behalf of the resident in accordance with Section 15 of
    this Act; if a person other than the resident signs the
    consent form, the form must document the following:
            (A) the date the resident was asked if he or she
        wants authorized electronic monitoring to be conducted
        in accordance with subsection (a-5) of Section 15;
            (B) who was present when the resident was asked;
        and
            (C) an acknowledgement that the resident did not
        affirmatively object; and
        (2) the resident's roommate's signed consent or the
    signature of the person consenting on behalf of the
    resident in accordance with Section 15 of this Act, if
    applicable, and any conditions placed on the roommate's
    consent; if a person other than the roommate signs the
    consent form, the form must document the following:
            (A) the date the roommate was asked if he or she
        wants authorized electronic monitoring to be conducted
        in accordance with subsection (a-5) of Section 15;
            (B) who was present when the roommate was asked;
        and
            (C) an acknowledgement that the roommate did not
        affirmatively object; and
        (3) the type of electronic monitoring device to be
    used;
        (4) any installation needs, such as mounting of a
    device to a wall or ceiling;
        (5) the proposed date of installation for scheduling
    purposes;
        (6) a copy of any contract for maintenance of the
    electronic monitoring device by a commercial entity;
        (7) a list of standard conditions or restrictions that
    the resident or a roommate may elect to place on use of the
    electronic monitoring device, including, but not limited
    to:
            (A) prohibiting audio recording;
            (B) prohibiting broadcasting of audio or video;
            (C) turning off the electronic monitoring device
        or blocking the visual recording component of the
        electronic monitoring device for the duration of an
        exam or procedure by a health care professional;
            (D) turning off the electronic monitoring device
        or blocking the visual recording component of the
        electronic monitoring device while dressing or bathing
        is performed; and
            (E) turning the electronic monitoring device off
        for the duration of a visit with a spiritual advisor,
        ombudsman, attorney, financial planner, intimate
        partner, or other visitor; and
        (8) any other condition or restriction elected by the
    resident or roommate on the use of an electronic monitoring
    device.
    (c) A copy of the completed notification and consent form
shall be placed in the resident's and any roommate's clinical
record and a copy shall be provided to the resident and his or
her roommate, if applicable.
    (d) The Department shall prescribe the notification and
consent form required in this Section no later than 60 days
after the effective date of this Act. If the Department has not
prescribed such a form by that date, the Office of the Attorney
General shall post a notification and consent form on its
website for resident use until the Department has prescribed
the form.
 
    Section 25. Cost and installation.
    (a) A resident choosing to conduct authorized electronic
monitoring must do so at his or her own expense, including
paying purchase, installation, maintenance, and removal costs.
    (b) If a resident chooses to install an electronic
monitoring device that uses Internet technology for visual or
audio monitoring, that resident is responsible for contracting
with an Internet service provider.
    (c) The facility shall make a reasonable attempt to
accommodate the resident's installation needs, including, but
not limited to, allowing access to the facility's
telecommunications or equipment room. A facility has the burden
of proving that a requested accommodation is not reasonable.
    (d) The electronic monitoring device must be placed in a
conspicuously visible location in the room.
    (e) A facility may not charge the resident a fee for the
cost of electricity used by an electronic monitoring device.
    (f) All electronic monitoring device installations and
supporting services shall comply with the requirements of the
National Fire Protection Association (NFPA) 101 Life Safety
Code (2000 edition).
 
    Section 27. Assistance program.
    (a) Subject to appropriation, the Department shall
establish a program to assist residents receiving medical
assistance under Article V of the Illinois Public Aid Code in
accessing authorized electronic monitoring.
    (b) The Department shall distribute up to $50,000 in funds
on an annual basis to residents receiving medical assistance
under Article V of the Illinois Public Aid Code for the
purchase and installation of authorized electronic monitoring
devices.
    (c) Applications for funds and disbursement of funds must
be made in a manner prescribed by the Department.
 
    Section 30. Notice to visitors.
    (a) If a resident of a facility conducts authorized
electronic monitoring, a sign shall be clearly and
conspicuously posted at all building entrances accessible to
visitors. The notice must be entitled "Electronic Monitoring"
and must state, in large, easy-to-read type, "The rooms of some
residents may be monitored electronically by or on behalf of
the residents.".
    (b) A sign shall be clearly and conspicuously posted at the
entrance to a resident's room where authorized electronic
monitoring is being conducted. The notice must state, in large,
easy-to-read type, "This room is electronically monitored.".
    (c) The facility is responsible for installing and
maintaining the signage required in this Section.
 
    Section 40. Obstruction of electronic monitoring devices.
    (a) A person or entity is prohibited from knowingly
hampering, obstructing, tampering with, or destroying an
electronic monitoring device installed in a resident's room
without the permission of the resident or the individual who
consented on behalf of the resident in accordance with Section
15 of this Act.
    (b) A person or entity is prohibited from knowingly
hampering, obstructing, tampering with, or destroying a video
or audio recording obtained in accordance with this Act without
the permission of the resident or the individual who consented
on behalf of the resident in accordance with Section 15 of this
Act.
    (c) A person or entity that violates this Section is guilty
of a Class B misdemeanor. A person or entity that violates this
Section in the commission of or to conceal a misdemeanor
offense is guilty of a Class A misdemeanor. A person or entity
that violates this Section in the commission of or to conceal a
felony offense is guilty of a Class 4 felony.
    (d) It is not a violation of this Section if a person or
facility turns off the electronic monitoring device or blocks
the visual recording component of the electronic monitoring
device at the direction of the resident or the person who
consented on behalf of the resident in accordance with Section
15 of this Act.
 
    Section 45. Dissemination of recordings.
    (a) A facility may not access any video or audio recording
created through authorized electronic monitoring without the
written consent of the resident or the person who consented on
behalf of the resident in accordance with Section 15 of this
Act.
    (b) Except as required under the Freedom of Information
Act, a recording or copy of a recording made pursuant to this
Act may only be disseminated for the purpose of addressing
concerns relating to the health, safety, or welfare of a
resident or residents.
    (c) The resident or person who consented on behalf of the
resident in accordance with Section 15 of this Act shall
provide a copy of any video or audio recording to parties
involved in a civil, criminal, or administrative proceeding,
upon a party's request, if the video or audio recording was
made during the time period that the conduct at issue in the
proceeding allegedly occurred.
 
    Section 50. Admissibility of evidence. Subject to
applicable rules of evidence and procedure, any video or audio
recording created through authorized electronic monitoring in
accordance with this Act may be admitted into evidence in a
civil, criminal, or administrative proceeding if the contents
of the recording have not been edited or artificially enhanced
and the video recording includes the date and time the events
occurred.
 
    Section 55. Report. Each facility shall report to the
Department, in a manner prescribed by the Department, the
number of authorized electronic monitoring notification and
consent forms received annually. The Department shall report
the total number of authorized electronic monitoring
notification and consent forms received by facilities to the
Office of the Attorney General annually.
 
    Section 60. Liability.
    (a) A facility is not civilly or criminally liable for the
inadvertent or intentional disclosure of a recording by a
resident or a person who consents on behalf of the resident for
any purpose not authorized by this Act.
    (b) A facility is not civilly or criminally liable for a
violation of a resident's right to privacy arising out of any
electronic monitoring conducted pursuant to this Act.
 
    Section 65. Rules. The Department shall adopt rules
necessary to implement this Act.
 
    Section 70. The Nursing Home Care Act is amended by
changing Section 3-318 and by adding Section 2-115 as follows:
 
    (210 ILCS 45/2-115 new)
    Sec. 2-115. Authorized electronic monitoring of a
resident's room. A resident shall be permitted to conduct
authorized electronic monitoring of the resident's room
through the use of electronic monitoring devices placed in the
room pursuant to the Authorized Electronic Monitoring in
Long-Term Care Facilities Act.
 
    (210 ILCS 45/3-318)  (from Ch. 111 1/2, par. 4153-318)
    Sec. 3-318. (a) No person shall:
            (1) Intentionally fail to correct or interfere
        with the correction of a Type "AA", Type "A", or Type
        "B" violation within the time specified on the notice
        or approved plan of correction under this Act as the
        maximum period given for correction, unless an
        extension is granted and the corrections are made
        before expiration of extension;
            (2) Intentionally prevent, interfere with, or
        attempt to impede in any way any duly authorized
        investigation and enforcement of this Act;
            (3) Intentionally prevent or attempt to prevent
        any examination of any relevant books or records
        pertinent to investigations and enforcement of this
        Act;
            (4) Intentionally prevent or interfere with the
        preservation of evidence pertaining to any violation
        of this Act or the rules promulgated under this Act;
            (5) Intentionally retaliate or discriminate
        against any resident or employee for contacting or
        providing information to any state official, or for
        initiating, participating in, or testifying in an
        action for any remedy authorized under this Act;
            (6) Wilfully file any false, incomplete or
        intentionally misleading information required to be
        filed under this Act, or wilfully fail or refuse to
        file any required information; or
            (7) Open or operate a facility without a license; .
            (8) Intentionally retaliate or discriminate
        against any resident for consenting to authorized
        electronic monitoring under the Authorized Electronic
        Monitoring in Long-Term Care Facilities Act; or
            (9) Prevent the installation or use of an
        electronic monitoring device by a resident who has
        provided the facility with notice and consent as
        required in Section 20 of the Authorized Electronic
        Monitoring in Long-Term Care Facilities Act.
    (b) A violation of this Section is a business offense,
punishable by a fine not to exceed $10,000, except as otherwise
provided in subsection (2) of Section 3-103 as to submission of
false or misleading information in a license application.
    (c) The State's Attorney of the county in which the
facility is located, or the Attorney General, shall be notified
by the Director of any violations of this Section.
(Source: P.A. 96-1372, eff. 7-29-10.)
 
    Section 75. The ID/DD Community Care Act is amended by
changing Section 3-318 and by adding Section 2-116 as follows:
 
    (210 ILCS 47/2-116 new)
    Sec. 2-116. Authorized electronic monitoring of a
resident's room. A resident shall be permitted to conduct
authorized electronic monitoring of the resident's room
through the use of electronic monitoring devices placed in the
room pursuant to the Authorized Electronic Monitoring in
Long-Term Care Facilities Act.
 
    (210 ILCS 47/3-318)
    Sec. 3-318. Business offenses.
    (a) No person shall:
        (1) Intentionally fail to correct or interfere with the
    correction of a Type "AA", Type "A", or Type "B" violation
    within the time specified on the notice or approved plan of
    correction under this Act as the maximum period given for
    correction, unless an extension is granted and the
    corrections are made before expiration of extension;
        (2) Intentionally prevent, interfere with, or attempt
    to impede in any way any duly authorized investigation and
    enforcement of this Act;
        (3) Intentionally prevent or attempt to prevent any
    examination of any relevant books or records pertinent to
    investigations and enforcement of this Act;
        (4) Intentionally prevent or interfere with the
    preservation of evidence pertaining to any violation of
    this Act or the rules promulgated under this Act;
        (5) Intentionally retaliate or discriminate against
    any resident or employee for contacting or providing
    information to any state official, or for initiating,
    participating in, or testifying in an action for any remedy
    authorized under this Act;
        (6) Willfully file any false, incomplete or
    intentionally misleading information required to be filed
    under this Act, or willfully fail or refuse to file any
    required information; or
        (7) Open or operate a facility without a license; .
        (8) Intentionally retaliate or discriminate against
    any resident for consenting to authorized electronic
    monitoring under the Authorized Electronic Monitoring in
    Long-Term Care Facilities Act; or
        (9) Prevent the installation or use of an electronic
    monitoring device by a resident who has provided the
    facility with notice and consent as required in Section 20
    of the Authorized Electronic Monitoring in Long-Term Care
    Facilities Act.
    (b) A violation of this Section is a business offense,
punishable by a fine not to exceed $10,000, except as otherwise
provided in subsection (2) of Section 3-103 as to submission of
false or misleading information in a license application.
    (c) The State's Attorney of the county in which the
facility is located, or the Attorney General, shall be notified
by the Director of any violations of this Section.
(Source: P.A. 96-339, eff. 7-1-10; 97-38, eff. 6-28-11.)
 
    Section 99. Effective date. This Act takes effect January
1, 2016.

Effective Date: 1/1/2016