Rep. Greg Harris

Filed: 3/17/2015

 

 


 

 


 
09900HB2462ham001LRB099 06604 RPS 32835 a

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 receiving personal or medical
7care, including, but not limited to, habilitation, mental
8health treatment, psychiatric rehabilitation, psychiatric
9services, therapeutic services, physical rehabilitation, or
10assistance with activities of daily living, from a facility.
 
11    Section 10. Authorized electronic monitoring. A resident
12shall be permitted to conduct authorized electronic monitoring
13of the resident's room through the use of electronic monitoring
14devices placed in the room pursuant to this Act.
 
15    Section 15. Consent.
16    (a) Except as otherwise provided in this subsection, a
17resident or the parent or legal guardian of a resident under
18the age of 18 must consent in writing to the authorized
19electronic monitoring in the resident's room. If the resident
20has not affirmatively objected to the authorized electronic
21monitoring and lacks the ability to understand and appreciate
22the nature and consequences of electronic monitoring, the
23following individuals may consent on behalf of the resident:
24        (1) a person appointed as a guardian of the resident

 

 

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1    under the Probate Act of 1975;
2        (2) a health care agent named under the Illinois Power
3    of Attorney Act; or
4        (3) if the resident's physician determines that the
5    resident lacks the ability to understand and appreciate the
6    nature and consequences of electronic monitoring, a person
7    from the following list, in order of priority:
8            (A) the resident's spouse;
9            (B) the resident's parent; or
10            (C) the resident's adult child who has the waiver
11        and consent of the other adult children of the resident
12        to act as the sole decision maker regarding authorized
13        electronic monitoring.
14    Prior to another person consenting on behalf of a resident
1518 years of age or older in accordance with this Section, the
16resident must be asked by that person, in the presence of a
17facility employee, if he or she wants authorized electronic
18monitoring to be conducted. For the purposes of this
19subsection, a resident affirmatively objects when he or she
20verbally declines authorized electronic monitoring. The
21resident's response must be documented on the consent form.
22    (b) Prior to the authorized electronic monitoring, a
23resident must obtain the written consent of any other resident
24residing in the room on the consent form. A resident may
25consent to authorized electronic monitoring with conditions
26that include, but are not limited to, prohibiting audio

 

 

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1monitoring.
2    Consent by a roommate under this subsection authorizes the
3resident's use of any recording obtained under this Act, as
4provided in Section 45 of this Act.
5    (c) Consent may be withdrawn at any time, and the
6withdrawal of consent shall be documented in the resident's
7file. If a roommate withdraws consent and the resident
8conducting the authorized electronic monitoring does not
9remove or disable the electronic monitoring device, the
10facility may turn off the device.
11    (d) If a resident who is residing in a shared room wants to
12conduct authorized electronic monitoring and another resident
13living in the same shared room refuses to consent to the use of
14an electronic monitoring device, the facility shall make a
15reasonable attempt to accommodate the resident who wants to
16conduct authorized electronic monitoring. A facility has met
17the requirement to make a reasonable attempt to accommodate a
18resident who wants to conduct authorized electronic monitoring
19when upon notification that a roommate has not consented to the
20use an electronic monitoring device in his or her room, the
21facility offers to move either resident to another room that is
22available at the time of the request. If a facility is unable
23to accommodate a resident due to lack of space, the facility
24must reevaluate the request every 2 weeks until the request is
25fulfilled.
 

 

 

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1    Section 20. Notice to the facility.
2    (a) Authorized electronic monitoring may begin only after
3the required consent form specified in Section 15 of this Act
4has been completed and submitted to the facility.
5    (b) A resident shall notify the facility in writing of his
6or her intent to install an electronic monitoring device by
7providing a completed consent form. Notice shall be given on a
8consent form that must include the following:
9        (1) the resident's signed consent to electronic
10    monitoring or the signature of the person consenting on
11    behalf of the resident in accordance with Section 15 of
12    this Act; if a person other than the resident signs the
13    consent form, the form must document the following:
14            (A) the date the resident was asked if he or she
15        wants authorized electronic monitoring to be
16        conducted;
17            (B) who was present when the resident was asked;
18        and
19            (C) an acknowledgement that the resident did not
20        affirmatively object; and
21        (2) the resident's roommate's signed consent or the
22    signature of the person consenting on behalf of the
23    resident in accordance with Section 15 of this Act, if
24    applicable, and any conditions placed on the roommate's
25    consent; if a person other than the roommate signs the
26    consent form, the form must document the following:

 

 

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1            (A) the date the roommate was asked if he or she
2        wants authorized electronic monitoring to be
3        conducted;
4            (B) who was present when the roommate was asked;
5        and
6            (C) an acknowledgement that the roommate did not
7        affirmatively object.
8    (c) A copy of the consent form shall be placed in the
9resident's file and a copy shall be provided to the resident.
 
10    Section 25. Cost and installation.
11    (a) A resident choosing to conduct authorized electronic
12monitoring must do so at his or her own expense.
13    (b) If a resident chooses to install an electronic
14monitoring device that uses Internet technology for visual or
15audio monitoring, that resident is responsible for contracting
16with an Internet service provider and the facility shall make a
17reasonable attempt to accommodate the resident, including, but
18not limited to, allowing access to the facility's
19telecommunications or equipment room. A facility has the burden
20of proving that a requested accommodation is not reasonable.
21    (c) The electronic monitoring device must be placed in a
22conspicuously visible location in the room.
23    (d) A facility may not charge the resident a fee for the
24cost of electricity used by an electronic monitoring device.
 

 

 

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1    Section 27. Assistance program. The Department shall
2establish a program to assist residents receiving medical
3assistance under Article V of the Illinois Public Aid Code in
4accessing authorized electronic monitoring.
5    (1) The Department shall distribute up to $50,000 in funds
6on an annual basis to residents receiving medical assistance
7under Article V of the Illinois Public Aid Code for the
8purchase and installation of authorized electronic monitoring
9devices.
10    (2) Applications for funds must be made in a manner
11prescribed by the Department and the funds shall be disbursed
12by means of a lottery.
 
13    Section 30. Notice to visitors.
14    (a) A sign shall be clearly and conspicuously posted at all
15building entrances accessible to visitors. The notice must be
16entitled "Electronic Monitoring" and must state, in large,
17easy-to-read type, "The rooms of some residents may be
18monitored electronically by or on behalf of the residents.".
19    (b) A sign shall be clearly and conspicuously posted at the
20entrance to a resident's room where authorized electronic
21monitoring is being conducted. The notice must state, in large,
22easy-to-read type, "This room may be electronically
23monitored.".
 
24    Section 32. Enforcement. The Department is authorized to

 

 

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1accept and investigate complaints regarding compliance with
2the provisions of this Act following the procedures prescribed
3in Section 3-702 of the Nursing Home Care Act and Section 3-702
4of the ID/DD Community Care Act. The Department may assess
5compliance with the Act during any inspection conducted in
6accordance with Section 3-212 of the Nursing Home Care Act or
7Section 3-212 of the ID/DD Community Care Act.
 
8    Section 35. Prohibited acts.
9    (a) A prospective resident or resident shall not be denied
10admission to or discharged from a facility or be otherwise
11discriminated against or retaliated against for consenting to
12authorized electronic monitoring. A violation of this
13subsection is a business offense punishable by a fine not to
14exceed $10,000. The State's Attorney of the county in which the
15facility is located, or the Attorney General, shall be notified
16by the Director of Public Health of any violations of this
17subsection.
18    (b) A facility shall not prevent the installation of an
19electronic monitoring device by a resident who has provided the
20facility with consent as required in Section 15 of this Act. A
21violation of this subsection is a petty offense punishable by a
22fine not to exceed $1,000. The State's Attorney of the county
23in which the facility is located, or the Attorney General,
24shall be notified by the Director of Public Health of any
25violations of this subsection.
 

 

 

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1    Section 40. Obstruction of electronic monitoring devices.
2    (a) A person or entity is prohibited from knowingly
3hampering, obstructing, tampering with, or destroying an
4electronic monitoring device installed in a resident's room or
5a video or audio recording obtained in accordance with this
6Act.
7    (b) A person or entity that violates this Section is guilty
8of a Class B misdemeanor. A person or entity that violates this
9Section in the commission of or to conceal a misdemeanor
10offense is guilty of a Class A misdemeanor. A person or entity
11that violates this Section in the commission of or to conceal a
12felony offense is guilty of a Class 4 felony.
13    (c) It shall be an affirmative defense to a violation of
14this Section that the person or facility acted with the consent
15of the resident or the person who consented on behalf of the
16resident in accordance with Section 15 of this Act.
 
17    Section 45. Access to recordings.
18    (a) A facility may not access any video or audio recording
19created through authorized electronic monitoring without the
20written consent of the resident or the person who consented on
21behalf of the resident in accordance with Section 15 of this
22Act.
23    (b) Any recording created through authorized electronic
24monitoring may be disseminated by the resident or the person

 

 

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1who consented on behalf of the resident in accordance with
2Section 15 of this Act to only the following:
3        (1) the facility;
4        (2) the Department;
5        (3) a representative of the Office of the State Long
6    Term Care Ombudsman;
7        (4) a law enforcement agency;
8        (5) an attorney representing the resident; or
9        (6) any other person as required by a court.
10    (c) A violation of this Section is a Class B misdemeanor.
 
11    Section 50. Admissibility of evidence. Any video or audio
12recording created through authorized electronic monitoring in
13accordance with this Act may be admitted into evidence in a
14civil, criminal, or administrative proceeding if the contents
15of the recording have not been edited or artificially enhanced
16and the video recording includes the date and time the events
17occurred.
 
18    Section 55. Report. Each facility shall report to the
19Department, in a manner prescribed by the Department, the
20number of authorized electronic monitoring consent forms
21received annually. The Department shall report the total number
22of authorized electronic monitoring consent forms received by
23facilities to the Office of the Attorney General annually.
 

 

 

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1    Section 60. Rules. The Department shall adopt rules
2necessary to implement this Act.".