HB2462ham001 99TH GENERAL ASSEMBLY

Rep. Greg Harris

Filed: 3/17/2015

09900HB2462ham001 LRB099 06604 RPS 32835 a

AMENDMENT TO HOUSE BILL 2462

AMENDMENT NO. ______. Amend House Bill 2462 by replacing everything after the enacting clause with the following:

"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 receiving personal or medical care, including, but not limited to, habilitation, mental health treatment, psychiatric rehabilitation, psychiatric services, therapeutic services, physical rehabilitation, or assistance with activities of daily living, from a facility.

Section 10. Authorized electronic monitoring. 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.

Section 15. Consent.

(a) Except as otherwise provided in this subsection, a resident or the parent or legal guardian of a resident under the age of 18 must consent in writing to the authorized electronic monitoring in the resident's room. If the resident has not affirmatively objected to the authorized electronic monitoring and lacks the ability to understand and appreciate the nature and consequences of electronic monitoring, the following individuals may consent on behalf of the resident:

(1) a person appointed as a guardian of the resident under the Probate Act of 1975;

(2) a health care agent named under the Illinois Power of Attorney Act; or

(3) if the resident's physician determines that the resident lacks the ability to understand and appreciate the nature and consequences of electronic monitoring, a person from the following list, in order of priority:

(A) the resident's spouse;

(B) the resident's parent; or

(C) the resident's adult child who has the waiver and consent of the other adult children of the resident to act as the sole decision maker regarding authorized electronic monitoring.

Prior to another 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. For the purposes of this subsection, a resident affirmatively objects when he or she verbally declines authorized electronic monitoring. The resident's response must be documented on the consent form.

(b) Prior to the authorized electronic monitoring, a resident must obtain the written consent of any other resident residing in the room on the consent form. A resident may consent to authorized electronic monitoring with conditions that include, but are not limited to, prohibiting audio monitoring.

Consent by a roommate under this subsection authorizes the resident's use of any recording obtained under this Act, as provided in Section 45 of this Act.

(c) Consent may be withdrawn at any time, and the withdrawal of consent shall be documented in the resident's file. 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 device.

(d) If a resident who is residing in a shared room wants to conduct authorized electronic monitoring and another resident living in 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 an electronic monitoring device in his or her room, the facility offers to move either resident to another room that is available at the time of the request. 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 the required consent form specified in Section 15 of this Act 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 consent form. Notice shall be given on a consent form that must include the following:

(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;

(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;

(B) who was present when the roommate was asked; and

(C) an acknowledgement that the roommate did not affirmatively object.

(c) A copy of the consent form shall be placed in the resident's file and a copy shall be provided to the resident.

Section 25. Cost and installation.

(a) A resident choosing to conduct authorized electronic monitoring must do so at his or her own expense.

(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 and the facility shall make a reasonable attempt to accommodate the resident, 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.

(c) The electronic monitoring device must be placed in a conspicuously visible location in the room.

(d) A facility may not charge the resident a fee for the cost of electricity used by an electronic monitoring device.

Section 27. Assistance program. 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.

(1) 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.

(2) Applications for funds must be made in a manner prescribed by the Department and the funds shall be disbursed by means of a lottery.

Section 30. Notice to visitors.

(a) 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 may be electronically monitored.".

Section 32. Enforcement. The Department is authorized to accept and investigate complaints regarding compliance with the provisions of this Act following the procedures prescribed in Section 3-702 of the Nursing Home Care Act and Section 3-702 of the ID/DD Community Care Act. The Department may assess compliance with the Act during any inspection conducted in accordance with Section 3-212 of the Nursing Home Care Act or Section 3-212 of the ID/DD Community Care Act.

Section 35. Prohibited acts.

(a) A prospective resident or resident shall not be denied admission to or discharged from a facility or be otherwise discriminated against or retaliated against for consenting to authorized electronic monitoring. A violation of this subsection is a business offense punishable by a fine not to exceed $10,000. The State's Attorney of the county in which the facility is located, or the Attorney General, shall be notified by the Director of Public Health of any violations of this subsection.

(b) A facility shall not prevent the installation of an electronic monitoring device by a resident who has provided the facility with consent as required in Section 15 of this Act. A violation of this subsection is a petty offense punishable by a fine not to exceed $1,000. The State's Attorney of the county in which the facility is located, or the Attorney General, shall be notified by the Director of Public Health of any violations of this subsection.

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 or a video or audio recording obtained in accordance with this Act.

(b) 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.

(c) It shall be an affirmative defense to a violation of this Section that the person or facility acted with the consent of the resident or the person who consented on behalf of the resident in accordance with Section 15 of this Act.

Section 45. Access to 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) Any recording created through authorized electronic monitoring may be disseminated by the resident or the person who consented on behalf of the resident in accordance with Section 15 of this Act to only the following:

(1) the facility;

(2) the Department;

(3) a representative of the Office of the State Long Term Care Ombudsman;

(4) a law enforcement agency;

(5) an attorney representing the resident; or

(6) any other person as required by a court.

(c) A violation of this Section is a Class B misdemeanor.

Section 50. Admissibility of evidence. 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 consent forms received annually. The Department shall report the total number of authorized electronic monitoring consent forms received by facilities to the Office of the Attorney General annually.

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