Full Text of HB2462 99th General Assembly
HB2462ham002 99TH GENERAL ASSEMBLY | Rep. Greg Harris Filed: 3/23/2015
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| 1 | | AMENDMENT TO HOUSE BILL 2462
| 2 | | AMENDMENT NO. ______. Amend House Bill 2462, AS AMENDED, by | 3 | | replacing everything after the enacting clause with the | 4 | | following:
| 5 | | "Section 1. Short title. This Act may be cited as the | 6 | | Authorized Electronic Monitoring in Long-Term Care Facilities | 7 | | Act. | 8 | | Section 5. Definitions. As used in this Act:
| 9 | | "Authorized electronic monitoring" means the placement and | 10 | | use of an electronic monitoring device by a resident in his or | 11 | | her room in accordance with this Act. | 12 | | "Department" means the Department of Public Health.
| 13 | | "Electronic monitoring device" means a surveillance | 14 | | instrument with a fixed position video camera or an audio | 15 | | recording device, or a combination thereof, that is installed | 16 | | in a resident's room under the provisions of this Act and |
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| 1 | | broadcasts or records activity or sounds occurring in the room. | 2 | | "Facility" means an intermediate care facility for the | 3 | | developmentally disabled licensed under the ID/DD Community | 4 | | Care Act that has 30 beds or more, a long-term care for under | 5 | | age 22 facility licensed under the ID/DD Community Care Act, or | 6 | | a facility licensed under the Nursing Home Care Act. | 7 | | "Resident" means a person receiving personal or medical | 8 | | care, including, but not limited to, habilitation, mental | 9 | | health treatment, psychiatric rehabilitation, psychiatric | 10 | | services, therapeutic services, physical rehabilitation, or | 11 | | assistance with activities of daily living, from a facility. | 12 | | "Resident's representative" has the meaning given to that | 13 | | term in (1) Section 1-123 of the Nursing Home Care Act if the | 14 | | resident resides in a facility licensed under the Nursing Home | 15 | | Care Act or (2) Section 1-123 of the ID/DD Community Care Act | 16 | | if the resident resides in a facility licensed under the ID/DD | 17 | | Community Care Act.
| 18 | | Section 10. Authorized electronic monitoring. A resident | 19 | | shall be permitted to conduct authorized electronic monitoring | 20 | | of the resident's room through the use of electronic monitoring | 21 | | devices placed in the room pursuant to this Act. | 22 | | Section 15. Consent.
| 23 | | (a) Except as otherwise provided in this subsection, a | 24 | | resident or the parent or legal guardian of a resident under |
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| 1 | | the age of 18 must consent in writing to the authorized | 2 | | electronic monitoring in the resident's room. If the resident | 3 | | has not affirmatively objected to the authorized electronic | 4 | | monitoring and lacks the ability to understand and appreciate | 5 | | the nature and consequences of electronic monitoring, the | 6 | | following individuals may consent on behalf of the resident: | 7 | | (1) a person appointed as a guardian of the resident | 8 | | under the Probate Act of 1975; | 9 | | (2) a health care agent named under the Illinois Power | 10 | | of Attorney Act; | 11 | | (3) a resident's representative, as defined in Section | 12 | | 5 of this Act; or | 13 | | (4) if the resident's physician determines that the | 14 | | resident lacks the ability to understand and appreciate the | 15 | | nature and consequences of electronic monitoring, a person | 16 | | from the following list, in order of priority: | 17 | | (A) the resident's spouse; | 18 | | (B) the resident's parent; or | 19 | | (C) the resident's adult child who has the written | 20 | | consent of the other adult children of the resident to | 21 | | act as the sole decision maker regarding authorized | 22 | | electronic monitoring. | 23 | | Prior to another person consenting on behalf of a resident | 24 | | 18 years of age or older in accordance with this Section, the | 25 | | resident must be asked by that person, in the presence of a | 26 | | facility employee, if he or she wants authorized electronic |
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| 1 | | monitoring to be conducted. For the purposes of this | 2 | | subsection, a resident affirmatively objects when he or she | 3 | | verbally declines authorized electronic monitoring. The | 4 | | resident's response must be documented on the consent form. | 5 | | (b) A resident may consent to authorized electronic | 6 | | monitoring with any conditions of the resident's choosing, | 7 | | including, but not limited to, prohibiting audio monitoring. | 8 | | (c) Prior to the authorized electronic monitoring, a
| 9 | | resident must obtain the written consent of any other resident
| 10 | | residing in the room on the consent form. Consent by a roommate | 11 | | under this subsection authorizes the resident's use of any | 12 | | recording obtained under this Act, as provided in Section 45 of | 13 | | this Act. Any resident previously conducting authorized | 14 | | electronic monitoring must obtain consent from any new roommate | 15 | | before the resident may resume authorized electronic | 16 | | monitoring.
| 17 | | (d) Consent may be withdrawn at any time, and the
| 18 | | withdrawal of consent shall be documented in the resident's
| 19 | | file. If a roommate withdraws consent, or a new roommate does | 20 | | not consent to authorized electronic monitoring, and the | 21 | | resident
conducting the authorized electronic monitoring does | 22 | | not
remove or disable the electronic monitoring device, the
| 23 | | facility may turn off the device. | 24 | | (e) If a resident who is residing in a shared room wants to | 25 | | conduct authorized electronic monitoring and another resident | 26 | | living in the same shared room refuses to consent to the use of |
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| 1 | | an electronic monitoring device, the facility shall make a | 2 | | reasonable attempt to accommodate the resident who wants to | 3 | | conduct authorized electronic monitoring. A facility has met | 4 | | the requirement to make a reasonable attempt to accommodate a | 5 | | resident who wants to conduct authorized electronic monitoring | 6 | | when upon notification that a roommate has not consented to the | 7 | | use an electronic monitoring device in his or her room, the | 8 | | facility offers to move either resident to another room that is | 9 | | available at the time of the request. If a facility is unable | 10 | | to accommodate a resident due to lack of space, the facility | 11 | | must reevaluate the request every 2 weeks until the request is | 12 | | fulfilled. | 13 | | Section 20. Notice to the facility.
| 14 | | (a) Authorized electronic monitoring may begin only after | 15 | | the required consent form specified in Section 15 of this Act | 16 | | has been completed and submitted to the facility.
| 17 | | (b) A resident shall notify the facility in writing of his | 18 | | or her intent to install an electronic monitoring device by | 19 | | providing a completed consent form. Notice shall be given on a | 20 | | consent form prescribed by the Department that must include the | 21 | | following:
| 22 | | (1) the resident's signed consent to electronic | 23 | | monitoring or the signature of the person consenting on | 24 | | behalf of the resident in accordance with Section 15 of | 25 | | this Act; if a person other than the resident signs the |
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| 1 | | consent form, the form must document the following:
| 2 | | (A) the date the resident was asked if he or she | 3 | | wants authorized electronic monitoring to be | 4 | | conducted; | 5 | | (B) who was present when the resident was asked; | 6 | | and | 7 | | (C) an acknowledgement that the resident did not | 8 | | affirmatively object; and | 9 | | (2) the resident's roommate's signed consent or the | 10 | | signature of the person consenting on behalf of the | 11 | | resident in accordance with Section 15 of this Act, if | 12 | | applicable, and any conditions placed on the roommate's | 13 | | consent; if a person other than the roommate signs the | 14 | | consent form, the form must document the following: | 15 | | (A) the date the roommate was asked if he or she | 16 | | wants authorized electronic monitoring to be | 17 | | conducted; | 18 | | (B) who was present when the roommate was asked; | 19 | | and | 20 | | (C) an acknowledgement that the roommate did not | 21 | | affirmatively object. | 22 | | (c) A copy of the consent form shall be placed in the | 23 | | resident's file and a copy shall be provided to the resident. | 24 | | (d) The Department shall prescribe the form required in | 25 | | this Section no later than 60 days after the effective date of | 26 | | this Act. If the Department has not prescribed such a form by |
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| 1 | | that date, a resident may create his or her own consent form to | 2 | | meet the requirements of this Act until the Department has | 3 | | prescribed the form.
| 4 | | Section 25. Cost and installation.
| 5 | | (a) A resident choosing to conduct authorized electronic | 6 | | monitoring must do so at his or her own expense.
| 7 | | (b) If a resident chooses to install an electronic | 8 | | monitoring device that uses Internet technology for visual or | 9 | | audio monitoring, that resident is responsible for contracting | 10 | | with an Internet service provider and the facility shall make a | 11 | | reasonable attempt to accommodate the resident, including, but | 12 | | not limited to, allowing access to the facility's | 13 | | telecommunications or equipment room. A facility has the burden | 14 | | of proving that a requested accommodation is not reasonable.
| 15 | | (c) The electronic monitoring device must be placed in a | 16 | | conspicuously visible location in the room. | 17 | | (d) A facility may not charge the resident a fee for the | 18 | | cost of electricity used by an electronic monitoring device.
| 19 | | Section 27. Assistance program. The Department shall | 20 | | establish a program to assist residents receiving medical | 21 | | assistance under Article V of the Illinois Public Aid Code in | 22 | | accessing authorized electronic monitoring.
| 23 | | (1) The Department shall distribute up to $50,000 in funds | 24 | | on an annual basis to residents receiving medical assistance |
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| 1 | | under Article V of the Illinois Public Aid Code for the | 2 | | purchase and installation of authorized electronic monitoring | 3 | | devices.
| 4 | | (2) Applications for funds must be made in a manner | 5 | | prescribed by the Department and the funds shall be disbursed | 6 | | by means of a lottery.
| 7 | | Section 30. Notice to visitors.
| 8 | | (a) If a resident of a facility conducts authorized | 9 | | electronic monitoring, a sign shall be clearly and | 10 | | conspicuously posted at all building entrances accessible to | 11 | | visitors. The notice must be entitled "Electronic Monitoring" | 12 | | and must state, in large, easy-to-read type, "The rooms of some | 13 | | residents may be monitored electronically by or on behalf of | 14 | | the residents.".
| 15 | | (b) A sign shall be clearly and conspicuously posted at the | 16 | | entrance to a resident's room where authorized electronic | 17 | | monitoring is being conducted. The notice must state, in large, | 18 | | easy-to-read type, "This room is electronically monitored.". | 19 | | Section 32. Enforcement. The Department is authorized to | 20 | | accept and investigate complaints regarding compliance with | 21 | | the provisions of this Act following the procedures prescribed | 22 | | in Section 3-702 of the Nursing Home Care Act and Section 3-702 | 23 | | of the ID/DD Community Care Act. The Department may assess | 24 | | compliance with the Act during any inspection conducted in |
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| 1 | | accordance with Section 3-212 of the Nursing Home Care Act or | 2 | | Section 3-212 of the ID/DD Community Care Act. | 3 | | Section 35. Prohibited acts.
| 4 | | (a) A prospective resident or resident shall not be denied | 5 | | admission to or discharged from a facility or be otherwise | 6 | | discriminated against or retaliated against for consenting to | 7 | | authorized electronic monitoring. A violation of this | 8 | | subsection is a business offense punishable by a fine not to | 9 | | exceed $10,000. The State's Attorney of the county in which the | 10 | | facility is located, or the Attorney General, shall be notified | 11 | | by the Director of Public Health of any violations of this | 12 | | subsection.
| 13 | | (b) A facility shall not prevent the installation of an | 14 | | electronic monitoring device by a resident who has provided the | 15 | | facility with consent as required in Section 15 of this Act. A | 16 | | violation of this subsection is a petty offense punishable by a | 17 | | fine not to exceed $1,000. The State's Attorney of the county | 18 | | in which the facility is located, or the Attorney General, | 19 | | shall be notified by the Director of Public Health of any | 20 | | violations of this subsection.
| 21 | | Section 40. Obstruction of electronic monitoring devices.
| 22 | | (a) A person or entity is prohibited from knowingly | 23 | | hampering, obstructing, tampering with, or destroying an | 24 | | electronic monitoring device installed in a resident's room |
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| 1 | | without the permission of the resident or the individual who | 2 | | consented on behalf of the resident in accordance with Section | 3 | | 15 of this Act. | 4 | | (b) A person or entity is prohibited from knowingly | 5 | | hampering, obstructing, tampering with, or destroying a video | 6 | | or audio recording obtained in accordance with this Act without | 7 | | the permission of the resident or the individual who consented | 8 | | on behalf of the resident in accordance with Section 15 of this | 9 | | Act. | 10 | | (c) A person or entity that violates this Section is guilty | 11 | | of a Class B misdemeanor. A person or entity that violates this | 12 | | Section in the commission of or to conceal a misdemeanor | 13 | | offense is guilty of a Class A misdemeanor. A person or entity | 14 | | that violates this Section in the commission of or to conceal a | 15 | | felony offense is guilty of a Class 4 felony.
| 16 | | (d) It shall be an affirmative defense to a violation of | 17 | | this Section that the person or facility acted with the consent | 18 | | of the resident or the person who consented on behalf of the | 19 | | resident in accordance with Section 15 of this Act.
| 20 | | Section 45. Access to recordings. | 21 | | (a) A facility may not access any video or audio recording | 22 | | created through authorized electronic monitoring without the | 23 | | written consent of the resident or the person who consented on | 24 | | behalf of the resident in accordance with Section 15 of this | 25 | | Act.
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| 1 | | (b) Any recording created through authorized electronic | 2 | | monitoring may be disseminated by the resident or the person | 3 | | who consented on behalf of the resident in accordance with | 4 | | Section 15 of this Act to only the following:
| 5 | | (1) the facility;
| 6 | | (2) the Department; | 7 | | (3) a representative of the Office of the State Long | 8 | | Term Care Ombudsman;
| 9 | | (4) a law enforcement agency;
| 10 | | (5) an attorney representing the resident; or
| 11 | | (6) any other person as required by a court.
| 12 | | (c) A violation of this Section is a Class B misdemeanor.
| 13 | | Section 50. Admissibility of evidence. Any video or audio | 14 | | recording created through authorized electronic monitoring in | 15 | | accordance with this Act may be admitted into evidence in a | 16 | | civil, criminal, or administrative proceeding if the contents | 17 | | of the recording have not been edited or artificially enhanced | 18 | | and the video recording includes the date and time the events | 19 | | occurred. | 20 | | Section 55. Report. Each facility shall report to the | 21 | | Department, in a manner prescribed by the Department, the | 22 | | number of authorized electronic monitoring consent forms | 23 | | received annually. The Department shall report the total number | 24 | | of authorized electronic monitoring consent forms received by |
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| 1 | | facilities to the Office of the Attorney General annually. | 2 | | Section 60. Liability. A facility is not civilly or | 3 | | criminally liable for the inadvertent or intentional | 4 | | disclosure of a recording made pursuant to this Act by a | 5 | | resident or a person who consents on behalf of the resident to | 6 | | any individual not authorized by this Act. | 7 | | Section 65. Rules. The Department shall adopt rules | 8 | | necessary to implement this Act. | 9 | | Section 99. Effective date. This Act takes effect January | 10 | | 1, 2016.".
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