Illinois General Assembly - Full Text of HB2462
Illinois General Assembly

Previous General Assemblies

Full Text of HB2462  99th General Assembly

HB2462ham002 99TH GENERAL ASSEMBLY

Rep. Greg Harris

Filed: 3/23/2015

 

 


 

 


 
09900HB2462ham002LRB099 06604 RPS 33309 a

1
AMENDMENT TO HOUSE BILL 2462

2    AMENDMENT NO. ______. Amend House Bill 2462, AS AMENDED, by
3replacing everything after the enacting clause with the
4following:
 
5    "Section 1. Short title. This Act may be cited as the
6Authorized Electronic Monitoring in Long-Term Care Facilities
7Act.
 
8    Section 5. Definitions. As used in this Act:
9    "Authorized electronic monitoring" means the placement and
10use of an electronic monitoring device by a resident in his or
11her room in accordance with this Act.
12    "Department" means the Department of Public Health.
13    "Electronic monitoring device" means a surveillance
14instrument with a fixed position video camera or an audio
15recording device, or a combination thereof, that is installed
16in a resident's room under the provisions of this Act and

 

 

09900HB2462ham002- 2 -LRB099 06604 RPS 33309 a

1broadcasts or records activity or sounds occurring in the room.
2    "Facility" means an intermediate care facility for the
3developmentally disabled licensed under the ID/DD Community
4Care Act that has 30 beds or more, a long-term care for under
5age 22 facility licensed under the ID/DD Community Care Act, or
6a facility licensed under the Nursing Home Care Act.
7    "Resident" means a person receiving personal or medical
8care, including, but not limited to, habilitation, mental
9health treatment, psychiatric rehabilitation, psychiatric
10services, therapeutic services, physical rehabilitation, or
11assistance with activities of daily living, from a facility.
12    "Resident's representative" has the meaning given to that
13term in (1) Section 1-123 of the Nursing Home Care Act if the
14resident resides in a facility licensed under the Nursing Home
15Care Act or (2) Section 1-123 of the ID/DD Community Care Act
16if the resident resides in a facility licensed under the ID/DD
17Community Care Act.
 
18    Section 10. Authorized electronic monitoring. A resident
19shall be permitted to conduct authorized electronic monitoring
20of the resident's room through the use of electronic monitoring
21devices placed in the room pursuant to this Act.
 
22    Section 15. Consent.
23    (a) Except as otherwise provided in this subsection, a
24resident or the parent or legal guardian of a resident under

 

 

09900HB2462ham002- 3 -LRB099 06604 RPS 33309 a

1the age of 18 must consent in writing to the authorized
2electronic monitoring in the resident's room. If the resident
3has not affirmatively objected to the authorized electronic
4monitoring and lacks the ability to understand and appreciate
5the nature and consequences of electronic monitoring, the
6following 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
2418 years of age or older in accordance with this Section, the
25resident must be asked by that person, in the presence of a
26facility employee, if he or she wants authorized electronic

 

 

09900HB2462ham002- 4 -LRB099 06604 RPS 33309 a

1monitoring to be conducted. For the purposes of this
2subsection, a resident affirmatively objects when he or she
3verbally declines authorized electronic monitoring. The
4resident's response must be documented on the consent form.
5    (b) A resident may consent to authorized electronic
6monitoring with any conditions of the resident's choosing,
7including, but not limited to, prohibiting audio monitoring.
8    (c) Prior to the authorized electronic monitoring, a
9resident must obtain the written consent of any other resident
10residing in the room on the consent form. Consent by a roommate
11under this subsection authorizes the resident's use of any
12recording obtained under this Act, as provided in Section 45 of
13this Act. Any resident previously conducting authorized
14electronic monitoring must obtain consent from any new roommate
15before the resident may resume authorized electronic
16monitoring.
17    (d) Consent may be withdrawn at any time, and the
18withdrawal of consent shall be documented in the resident's
19file. If a roommate withdraws consent, or a new roommate does
20not consent to authorized electronic monitoring, and the
21resident conducting the authorized electronic monitoring does
22not remove or disable the electronic monitoring device, the
23facility may turn off the device.
24    (e) If a resident who is residing in a shared room wants to
25conduct authorized electronic monitoring and another resident
26living in the same shared room refuses to consent to the use of

 

 

09900HB2462ham002- 5 -LRB099 06604 RPS 33309 a

1an electronic monitoring device, the facility shall make a
2reasonable attempt to accommodate the resident who wants to
3conduct authorized electronic monitoring. A facility has met
4the requirement to make a reasonable attempt to accommodate a
5resident who wants to conduct authorized electronic monitoring
6when upon notification that a roommate has not consented to the
7use an electronic monitoring device in his or her room, the
8facility offers to move either resident to another room that is
9available at the time of the request. If a facility is unable
10to accommodate a resident due to lack of space, the facility
11must reevaluate the request every 2 weeks until the request is
12fulfilled.
 
13    Section 20. Notice to the facility.
14    (a) Authorized electronic monitoring may begin only after
15the required consent form specified in Section 15 of this Act
16has been completed and submitted to the facility.
17    (b) A resident shall notify the facility in writing of his
18or her intent to install an electronic monitoring device by
19providing a completed consent form. Notice shall be given on a
20consent form prescribed by the Department that must include the
21following:
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

 

 

09900HB2462ham002- 6 -LRB099 06604 RPS 33309 a

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
23resident's file and a copy shall be provided to the resident.
24    (d) The Department shall prescribe the form required in
25this Section no later than 60 days after the effective date of
26this Act. If the Department has not prescribed such a form by

 

 

09900HB2462ham002- 7 -LRB099 06604 RPS 33309 a

1that date, a resident may create his or her own consent form to
2meet the requirements of this Act until the Department has
3prescribed the form.
 
4    Section 25. Cost and installation.
5    (a) A resident choosing to conduct authorized electronic
6monitoring must do so at his or her own expense.
7    (b) If a resident chooses to install an electronic
8monitoring device that uses Internet technology for visual or
9audio monitoring, that resident is responsible for contracting
10with an Internet service provider and the facility shall make a
11reasonable attempt to accommodate the resident, including, but
12not limited to, allowing access to the facility's
13telecommunications or equipment room. A facility has the burden
14of proving that a requested accommodation is not reasonable.
15    (c) The electronic monitoring device must be placed in a
16conspicuously visible location in the room.
17    (d) A facility may not charge the resident a fee for the
18cost of electricity used by an electronic monitoring device.
 
19    Section 27. Assistance program. The Department shall
20establish a program to assist residents receiving medical
21assistance under Article V of the Illinois Public Aid Code in
22accessing authorized electronic monitoring.
23    (1) The Department shall distribute up to $50,000 in funds
24on an annual basis to residents receiving medical assistance

 

 

09900HB2462ham002- 8 -LRB099 06604 RPS 33309 a

1under Article V of the Illinois Public Aid Code for the
2purchase and installation of authorized electronic monitoring
3devices.
4    (2) Applications for funds must be made in a manner
5prescribed by the Department and the funds shall be disbursed
6by means of a lottery.
 
7    Section 30. Notice to visitors.
8    (a) If a resident of a facility conducts authorized
9electronic monitoring, a sign shall be clearly and
10conspicuously posted at all building entrances accessible to
11visitors. The notice must be entitled "Electronic Monitoring"
12and must state, in large, easy-to-read type, "The rooms of some
13residents may be monitored electronically by or on behalf of
14the residents.".
15    (b) A sign shall be clearly and conspicuously posted at the
16entrance to a resident's room where authorized electronic
17monitoring is being conducted. The notice must state, in large,
18easy-to-read type, "This room is electronically monitored.".
 
19    Section 32. Enforcement. The Department is authorized to
20accept and investigate complaints regarding compliance with
21the provisions of this Act following the procedures prescribed
22in Section 3-702 of the Nursing Home Care Act and Section 3-702
23of the ID/DD Community Care Act. The Department may assess
24compliance with the Act during any inspection conducted in

 

 

09900HB2462ham002- 9 -LRB099 06604 RPS 33309 a

1accordance with Section 3-212 of the Nursing Home Care Act or
2Section 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
5admission to or discharged from a facility or be otherwise
6discriminated against or retaliated against for consenting to
7authorized electronic monitoring. A violation of this
8subsection is a business offense punishable by a fine not to
9exceed $10,000. The State's Attorney of the county in which the
10facility is located, or the Attorney General, shall be notified
11by the Director of Public Health of any violations of this
12subsection.
13    (b) A facility shall not prevent the installation of an
14electronic monitoring device by a resident who has provided the
15facility with consent as required in Section 15 of this Act. A
16violation of this subsection is a petty offense punishable by a
17fine not to exceed $1,000. The State's Attorney of the county
18in which the facility is located, or the Attorney General,
19shall be notified by the Director of Public Health of any
20violations of this subsection.
 
21    Section 40. Obstruction of electronic monitoring devices.
22    (a) A person or entity is prohibited from knowingly
23hampering, obstructing, tampering with, or destroying an
24electronic monitoring device installed in a resident's room

 

 

09900HB2462ham002- 10 -LRB099 06604 RPS 33309 a

1without the permission of the resident or the individual who
2consented on behalf of the resident in accordance with Section
315 of this Act.
4    (b) A person or entity is prohibited from knowingly
5hampering, obstructing, tampering with, or destroying a video
6or audio recording obtained in accordance with this Act without
7the permission of the resident or the individual who consented
8on behalf of the resident in accordance with Section 15 of this
9Act.
10    (c) A person or entity that violates this Section is guilty
11of a Class B misdemeanor. A person or entity that violates this
12Section in the commission of or to conceal a misdemeanor
13offense is guilty of a Class A misdemeanor. A person or entity
14that violates this Section in the commission of or to conceal a
15felony offense is guilty of a Class 4 felony.
16    (d) It shall be an affirmative defense to a violation of
17this Section that the person or facility acted with the consent
18of the resident or the person who consented on behalf of the
19resident 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
22created through authorized electronic monitoring without the
23written consent of the resident or the person who consented on
24behalf of the resident in accordance with Section 15 of this
25Act.

 

 

09900HB2462ham002- 11 -LRB099 06604 RPS 33309 a

1    (b) Any recording created through authorized electronic
2monitoring may be disseminated by the resident or the person
3who consented on behalf of the resident in accordance with
4Section 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
14recording created through authorized electronic monitoring in
15accordance with this Act may be admitted into evidence in a
16civil, criminal, or administrative proceeding if the contents
17of the recording have not been edited or artificially enhanced
18and the video recording includes the date and time the events
19occurred.
 
20    Section 55. Report. Each facility shall report to the
21Department, in a manner prescribed by the Department, the
22number of authorized electronic monitoring consent forms
23received annually. The Department shall report the total number
24of authorized electronic monitoring consent forms received by

 

 

09900HB2462ham002- 12 -LRB099 06604 RPS 33309 a

1facilities to the Office of the Attorney General annually.
 
2    Section 60. Liability. A facility is not civilly or
3criminally liable for the inadvertent or intentional
4disclosure of a recording made pursuant to this Act by a
5resident or a person who consents on behalf of the resident to
6any individual not authorized by this Act.
 
7    Section 65. Rules. The Department shall adopt rules
8necessary to implement this Act.
 
9    Section 99. Effective date. This Act takes effect January
101, 2016.".