HB2462sam001 99TH GENERAL ASSEMBLY

Sen. Terry Link

Filed: 5/8/2015

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 2462

2    AMENDMENT NO. ______. Amend House Bill 2462 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 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.

 

 

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1    "Facility" means an intermediate care facility for the
2developmentally disabled licensed under the ID/DD Community
3Care Act that has 30 beds or more, a long-term care for under
4age 22 facility licensed under the ID/DD Community Care Act, or
5a facility licensed under the Nursing Home Care Act.
6    "Resident" means a person residing in a facility.
7    "Resident's representative" has the meaning given to that
8term in (1) Section 1-123 of the Nursing Home Care Act if the
9resident resides in a facility licensed under the Nursing Home
10Care Act or (2) Section 1-123 of the ID/DD Community Care Act
11if the resident resides in a facility licensed under the ID/DD
12Community Care Act.
 
13    Section 10. Authorized electronic monitoring.
14    (a) A resident shall be permitted to conduct authorized
15electronic monitoring of the resident's room through the use of
16electronic monitoring devices placed in the room pursuant to
17this Act.
18    (b) Nothing in this Act shall be construed to allow the use
19of an electronic monitoring device to take still photographs or
20for the nonconsensual interception of private communications.
 
21    Section 15. Consent.
22    (a) Except as otherwise provided in this subsection, a
23resident, a resident's plenary guardian of the person, or the
24parent of a resident under the age of 18 must consent in

 

 

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1writing on a notification and consent form prescribed by the
2Department to the authorized electronic monitoring in the
3resident's room. If the resident has not affirmatively objected
4to the authorized electronic monitoring and the resident's
5physician determines that the resident lacks the ability to
6understand and appreciate the nature and consequences of
7electronic monitoring, the following individuals may consent
8on behalf of the resident, in order of priority:
9        (1) a health care agent named under the Illinois Power
10    of Attorney Act;
11        (2) a resident's representative, as defined in Section
12    5 of this Act;
13        (3) the resident's spouse;
14        (4) the resident's parent;
15        (5) the resident's adult child who has the written
16    consent of the other adult children of the resident to act
17    as the sole decision maker regarding authorized electronic
18    monitoring; or
19        (6) the resident's adult brother or sister who has the
20    written consent of the other adult siblings of the resident
21    to act as the sole decision maker regarding authorized
22    electronic monitoring.
23    (a-5) Prior to another person, other than a resident's
24plenary guardian of the person, consenting on behalf of a
25resident 18 years of age or older in accordance with this
26Section, the resident must be asked by that person, in the

 

 

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1presence of a facility employee, if he or she wants authorized
2electronic monitoring to be conducted. The person must explain
3to the resident:
4        (1) the type of electronic monitoring device to be
5    used;
6        (2) the standard conditions that may be placed on the
7    electronic monitoring device's use, including those listed
8    in paragraph (7) of subsection (b) of Section 20;
9        (3) with whom the recording may be shared according to
10    Section 45; and
11        (4) the resident's ability to decline all recording.
12    For the purposes of this subsection, a resident
13affirmatively objects when he or she orally, visually, or
14through the use of auxiliary aids or services declines
15authorized electronic monitoring. The resident's response must
16be documented on the notification and consent form.
17    (b) A resident may consent to authorized electronic
18monitoring with any conditions of the resident's choosing,
19including, but not limited to, the list of standard conditions
20provided in paragraph (7) of subsection (b) of Section 20. A
21resident may request that the electronic monitoring device be
22turned off or the visual recording component of the electronic
23monitoring device be blocked at any time.
24    (c) Prior to the authorized electronic monitoring, a
25resident must obtain the written consent of any other resident
26residing in the room on the notification and consent form

 

 

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1prescribed by the Department. Except as otherwise provided in
2this subsection, a roommate, a roommate's plenary guardian of
3the person, or the parent of a roommate under the age of 18
4must consent in writing to the authorized electronic monitoring
5in the resident's room. If the roommate has not affirmatively
6objected to the authorized electronic monitoring in accordance
7with subsection (a-5) and the roommate's physician determines
8that the roommate lacks the ability to understand and
9appreciate the nature and consequences of electronic
10monitoring, the following individuals may consent on behalf of
11the roommate, in order of priority:
12        (1) a health care agent named under the Illinois Power
13    of Attorney Act;
14        (2) a roommate's resident's representative, as defined
15    in Section 5 of this Act;
16        (3) the roommate's spouse;
17        (4) the roommate's parent;
18        (5) the roommate's adult child who has the written
19    consent of the other adult children of the resident to act
20    as the sole decision maker regarding authorized electronic
21    monitoring; or
22        (6) the roommate's adult brother or sister who has the
23    written consent of the other adult siblings of the resident
24    to act as the sole decision maker regarding authorized
25    electronic monitoring.
26    (c-5) Consent by a roommate under subsection (c) authorizes

 

 

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1the resident's use of any recording obtained under this Act, as
2provided in Section 45 of this Act.
3    (c-7) Any resident previously conducting authorized
4electronic monitoring must obtain consent from any new roommate
5before the resident may resume authorized electronic
6monitoring. If a new roommate does not consent to authorized
7electronic monitoring and the resident conducting the
8authorized electronic monitoring does not remove or disable the
9electronic monitoring device, the facility may turn off the
10device.
11    (d) Consent may be withdrawn by the resident or roommate at
12any time, and the withdrawal of consent shall be documented in
13the resident's clinical record. If a roommate withdraws consent
14and the resident conducting the authorized electronic
15monitoring does not remove or disable the electronic monitoring
16device, the facility may turn off the electronic monitoring
17device.
18    (e) If a resident who is residing in a shared room wants to
19conduct authorized electronic monitoring and another resident
20living in or moving into the same shared room refuses to
21consent to the use of an electronic monitoring device, the
22facility shall make a reasonable attempt to accommodate the
23resident who wants to conduct authorized electronic
24monitoring. A facility has met the requirement to make a
25reasonable attempt to accommodate a resident who wants to
26conduct authorized electronic monitoring when upon

 

 

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

 

 

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

 

 

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1        (7) a list of standard conditions or restrictions that
2    the resident or a roommate may elect to place on use of the
3    electronic monitoring device, including, but not limited
4    to:
5            (A) prohibiting audio recording;
6            (B) prohibiting broadcasting of audio or video;
7            (C) turning off the electronic monitoring device
8        or blocking the visual recording component of the
9        electronic monitoring device for the duration of an
10        exam or procedure by a health care professional;
11            (D) turning off the electronic monitoring device
12        or blocking the visual recording component of the
13        electronic monitoring device while dressing or bathing
14        is performed; and
15            (E) turning the electronic monitoring device off
16        for the duration of a visit with a spiritual advisor,
17        ombudsman, attorney, financial planner, intimate
18        partner, or other visitor; and
19        (8) any other condition or restriction elected by the
20    resident or roommate on the use of an electronic monitoring
21    device.
22    (c) A copy of the completed notification and consent form
23shall be placed in the resident's and any roommate's clinical
24record and a copy shall be provided to the resident and his or
25her roommate, if applicable.
26    (d) The Department shall prescribe the notification and

 

 

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1consent form required in this Section no later than 60 days
2after the effective date of this Act. If the Department has not
3prescribed such a form by that date, a resident may create his
4or her own notification and consent form to meet the
5requirements of this Act until the Department has prescribed
6the form.
 
7    Section 25. Cost and installation.
8    (a) A resident choosing to conduct authorized electronic
9monitoring must do so at his or her own expense, including
10paying purchase, installation, maintenance, and removal costs.
11    (b) If a resident chooses to install an electronic
12monitoring device that uses Internet technology for visual or
13audio monitoring, that resident is responsible for contracting
14with an Internet service provider.
15    (c) The facility shall make a reasonable attempt to
16accommodate the resident's installation needs, including, but
17not limited to, allowing access to the facility's
18telecommunications or equipment room. A facility has the burden
19of proving that a requested accommodation is not reasonable.
20    (d) The electronic monitoring device must be placed in a
21conspicuously visible location in the room.
22    (e) A facility may not charge the resident a fee for the
23cost of electricity used by an electronic monitoring device.
24    (f) All electronic monitoring device installations and
25supporting services shall comply with the requirements of the

 

 

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1National Fire Protection Association (NFPA) 101 Life Safety
2Code (2000 edition).
 
3    Section 27. Assistance program.
4    (a) Subject to appropriation, the Department shall
5establish a program to assist residents receiving medical
6assistance under Article V of the Illinois Public Aid Code in
7accessing authorized electronic monitoring.
8    (b) The Department shall distribute up to $50,000 in funds
9on an annual basis to residents receiving medical assistance
10under Article V of the Illinois Public Aid Code for the
11purchase and installation of authorized electronic monitoring
12devices.
13    (c) Applications for funds and disbursement of funds must
14be made in a manner prescribed by the Department.
 
15    Section 30. Notice to visitors.
16    (a) If a resident of a facility conducts authorized
17electronic monitoring, a sign shall be clearly and
18conspicuously posted at all building entrances accessible to
19visitors. The notice must be entitled "Electronic Monitoring"
20and must state, in large, easy-to-read type, "The rooms of some
21residents may be monitored electronically by or on behalf of
22the residents.".
23    (b) A sign shall be clearly and conspicuously posted at the
24entrance to a resident's room where authorized electronic

 

 

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1monitoring is being conducted. The notice must state, in large,
2easy-to-read type, "This room is electronically monitored.".
3    (c) The facility is responsible for installing and
4maintaining the signage required in this Section.
 
5    Section 40. Obstruction of electronic monitoring devices.
6    (a) A person or entity is prohibited from knowingly
7hampering, obstructing, tampering with, or destroying an
8electronic monitoring device installed in a resident's room
9without the permission of the resident or the individual who
10consented on behalf of the resident in accordance with Section
1115 of this Act.
12    (b) A person or entity is prohibited from knowingly
13hampering, obstructing, tampering with, or destroying a video
14or audio recording obtained in accordance with this Act without
15the permission of the resident or the individual who consented
16on behalf of the resident in accordance with Section 15 of this
17Act.
18    (c) A person or entity that violates this Section is guilty
19of a Class B misdemeanor. A person or entity that violates this
20Section in the commission of or to conceal a misdemeanor
21offense is guilty of a Class A misdemeanor. A person or entity
22that violates this Section in the commission of or to conceal a
23felony offense is guilty of a Class 4 felony.
24    (d) It shall be an affirmative defense to a violation of
25this Section that the person or facility acted with the

 

 

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1permission of the resident or the person who consented on
2behalf of the resident in accordance with Section 15 of this
3Act.
 
4    Section 45. Dissemination of recordings.
5    (a) A facility may not access any video or audio recording
6created through authorized electronic monitoring without the
7written consent of the resident or the person who consented on
8behalf of the resident in accordance with Section 15 of this
9Act.
10    (b) Except as required under the Freedom of Information
11Act, a recording or copy of a recording made pursuant to this
12Act may only be disseminated for the purpose of addressing
13concerns relating to the health, safety, or welfare of a
14resident or residents.
15    (c) The resident or person who consented on behalf of the
16resident in accordance with Section 15 of this Act shall
17provide a copy of any video or audio recording to parties
18involved in a civil, criminal, or administrative proceeding,
19upon a party's request, if the video or audio recording was
20made during the time period that the conduct at issue in the
21proceeding allegedly occurred.
 
22    Section 50. Admissibility of evidence. Subject to
23applicable rules of evidence and procedure, any video or audio
24recording created through authorized electronic monitoring in

 

 

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1accordance with this Act may be admitted into evidence in a
2civil, criminal, or administrative proceeding if the contents
3of the recording have not been edited or artificially enhanced
4and the video recording includes the date and time the events
5occurred.
 
6    Section 55. Report. Each facility shall report to the
7Department, in a manner prescribed by the Department, the
8number of authorized electronic monitoring notification and
9consent forms received annually. The Department shall report
10the total number of authorized electronic monitoring
11notification and consent forms received by facilities to the
12Office of the Attorney General annually.
 
13    Section 60. Liability.
14    (a) A facility is not civilly or criminally liable for the
15inadvertent or intentional disclosure of a recording by a
16resident or a person who consents on behalf of the resident for
17any purpose not authorized by this Act.
18    (b) A facility is not civilly or criminally liable for a
19violation of a resident's right to privacy arising out of any
20electronic monitoring conducted pursuant to this Act.
 
21    Section 65. Rules. The Department shall adopt rules
22necessary to implement this Act.
 

 

 

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1    Section 70. The Nursing Home Care Act is amended by
2changing Section 3-318 and by adding Section 2-115 as follows:
 
3    (210 ILCS 45/2-115 new)
4    Sec. 2-115. 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 45/3-318)  (from Ch. 111 1/2, par. 4153-318)
11    Sec. 3-318. (a) No person shall:
12            (1) Intentionally fail to correct or interfere
13        with the correction of a Type "AA", Type "A", or Type
14        "B" violation within the time specified on the notice
15        or approved plan of correction under this Act as the
16        maximum period given for correction, unless an
17        extension is granted and the corrections are made
18        before expiration of extension;
19            (2) Intentionally prevent, interfere with, or
20        attempt to impede in any way any duly authorized
21        investigation and enforcement of this Act;
22            (3) Intentionally prevent or attempt to prevent
23        any examination of any relevant books or records
24        pertinent to investigations and enforcement of this

 

 

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1        Act;
2            (4) Intentionally prevent or interfere with the
3        preservation of evidence pertaining to any violation
4        of this Act or the rules promulgated under this Act;
5            (5) Intentionally retaliate or discriminate
6        against any resident or employee for contacting or
7        providing information to any state official, or for
8        initiating, participating in, or testifying in an
9        action for any remedy authorized under this Act;
10            (6) Wilfully file any false, incomplete or
11        intentionally misleading information required to be
12        filed under this Act, or wilfully fail or refuse to
13        file any required information; or
14            (7) Open or operate a facility without a license; .
15            (8) Intentionally retaliate or discriminate
16        against any resident for consenting to authorized
17        electronic monitoring under the Authorized Electronic
18        Monitoring in Long-Term Care Facilities Act; or
19            (9) Prevent the installation or use of an
20        electronic monitoring device by a resident who has
21        provided the facility with notice and consent as
22        required in Section 20 of the Authorized Electronic
23        Monitoring in Long-Term Care 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

 

 

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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. 96-1372, eff. 7-29-10.)
 
6    Section 75. The ID/DD Community Care Act is amended by
7changing Section 3-318 and by adding Section 2-116 as follows:
 
8    (210 ILCS 47/2-116 new)
9    Sec. 2-116. Authorized electronic monitoring of a
10resident's room. A resident shall be permitted to conduct
11authorized electronic monitoring of the resident's room
12through the use of electronic monitoring devices placed in the
13room pursuant to the Authorized Electronic Monitoring in
14Long-Term Care Facilities Act.
 
15    (210 ILCS 47/3-318)
16    Sec. 3-318. Business offenses.
17    (a) No person shall:
18        (1) Intentionally fail to correct or interfere with the
19    correction of a Type "AA", Type "A", or Type "B" violation
20    within the time specified on the notice or approved plan of
21    correction under this Act as the maximum period given for
22    correction, unless an extension is granted and the
23    corrections are made before expiration of extension;

 

 

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1        (2) Intentionally prevent, interfere with, or attempt
2    to impede in any way any duly authorized investigation and
3    enforcement of this Act;
4        (3) Intentionally prevent or attempt to prevent any
5    examination of any relevant books or records pertinent to
6    investigations and enforcement of this Act;
7        (4) Intentionally prevent or interfere with the
8    preservation of evidence pertaining to any violation of
9    this Act or the rules promulgated under this Act;
10        (5) Intentionally retaliate or discriminate against
11    any resident or employee for contacting or providing
12    information to any state official, or for initiating,
13    participating in, or testifying in an action for any remedy
14    authorized under this Act;
15        (6) Willfully file any false, incomplete or
16    intentionally misleading information required to be filed
17    under this Act, or willfully fail or refuse to file any
18    required information; or
19        (7) Open or operate a facility without a license; .
20        (8) Intentionally retaliate or discriminate against
21    any resident for consenting to authorized electronic
22    monitoring under the Authorized Electronic Monitoring in
23    Long-Term Care Facilities Act; or
24        (9) Prevent the installation or use of an electronic
25    monitoring device by a resident who has provided the
26    facility with notice and consent as required in Section 20

 

 

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1    of the Authorized Electronic Monitoring in Long-Term Care
2    Facilities Act.
3    (b) A violation of this Section is a business offense,
4punishable by a fine not to exceed $10,000, except as otherwise
5provided in subsection (2) of Section 3-103 as to submission of
6false or misleading information in a license application.
7    (c) The State's Attorney of the county in which the
8facility is located, or the Attorney General, shall be notified
9by the Director of any violations of this Section.
10(Source: P.A. 96-339, eff. 7-1-10; 97-38, eff. 6-28-11.)
 
11    Section 99. Effective date. This Act takes effect January
121, 2016.".