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.