Full Text of HB2462 99th General Assembly
HB2462sam001 99TH GENERAL ASSEMBLY | Sen. Terry Link Filed: 5/8/2015
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| 1 | | AMENDMENT TO HOUSE BILL 2462
| 2 | | AMENDMENT NO. ______. Amend House Bill 2462 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 1. Short title. This Act may be cited as the | 5 | | Authorized Electronic Monitoring in Long-Term Care Facilities | 6 | | Act. | 7 | | Section 5. Definitions. As used in this Act:
| 8 | | "Authorized electronic monitoring" means the placement and | 9 | | use of an electronic monitoring device by a resident in his or | 10 | | her room in accordance with this Act. | 11 | | "Department" means the Department of Public Health.
| 12 | | "Electronic monitoring device" means a surveillance | 13 | | instrument with a fixed position video camera or an audio | 14 | | recording device, or a combination thereof, that is installed | 15 | | in a resident's room under the provisions of this Act and | 16 | | broadcasts or records activity or sounds occurring in the room. |
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| 1 | | "Facility" means an intermediate care facility for the | 2 | | developmentally disabled licensed under the ID/DD Community | 3 | | Care Act that has 30 beds or more, a long-term care for under | 4 | | age 22 facility licensed under the ID/DD Community Care Act, or | 5 | | a facility licensed under the Nursing Home Care Act. | 6 | | "Resident" means a person residing in a facility. | 7 | | "Resident's representative" has the meaning given to that | 8 | | term in (1) Section 1-123 of the Nursing Home Care Act if the | 9 | | resident resides in a facility licensed under the Nursing Home | 10 | | Care Act or (2) Section 1-123 of the ID/DD Community Care Act | 11 | | if the resident resides in a facility licensed under the ID/DD | 12 | | Community Care Act. | 13 | | Section 10. Authorized electronic monitoring. | 14 | | (a) A resident shall be permitted to conduct authorized | 15 | | electronic monitoring of the resident's room through the use of | 16 | | electronic monitoring devices placed in the room pursuant to | 17 | | this Act. | 18 | | (b) Nothing in this Act shall be construed to allow the use | 19 | | of an electronic monitoring device to take still photographs or | 20 | | for the nonconsensual interception of private communications. | 21 | | Section 15. Consent.
| 22 | | (a) Except as otherwise provided in this subsection, a | 23 | | resident, a resident's plenary guardian of the person, or the | 24 | | parent of a resident under the age of 18 must consent in |
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| 1 | | writing on a notification and consent form prescribed by the | 2 | | Department to the authorized electronic monitoring in the | 3 | | resident's room. If the resident has not affirmatively objected | 4 | | to the authorized electronic monitoring and the resident's | 5 | | physician determines that the resident lacks the ability to | 6 | | understand and appreciate the nature and consequences of | 7 | | electronic monitoring, the following individuals may consent | 8 | | on behalf of the resident, in order of priority: | 9 | | (1) a health care agent named under the Illinois Power | 10 | | of Attorney Act; | 11 | | (2) a resident's representative, as defined in Section | 12 | | 5 of this Act; | 13 | | (3) the resident's spouse; | 14 | | (4) the resident's parent; | 15 | | (5) the resident's adult child who has the written | 16 | | consent of the other adult children of the resident to act | 17 | | as the sole decision maker regarding authorized electronic | 18 | | monitoring; or | 19 | | (6) the resident's adult brother or sister who has the | 20 | | written consent of the other adult siblings of the resident | 21 | | to act as the sole decision maker regarding authorized | 22 | | electronic monitoring. | 23 | | (a-5) Prior to another person, other than a resident's | 24 | | plenary guardian of the person, consenting on behalf of a | 25 | | resident 18 years of age or older in accordance with this | 26 | | Section, the resident must be asked by that person, in the |
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| 1 | | presence of a facility employee, if he or she wants authorized | 2 | | electronic monitoring to be conducted. The person must explain | 3 | | to the resident: | 4 | | (1) the type of electronic monitoring device to be | 5 | | used; | 6 | | (2) the standard conditions that may be placed on the | 7 | | electronic monitoring device's use, including those listed | 8 | | in paragraph (7) of subsection (b) of Section 20; | 9 | | (3) with whom the recording may be shared according to | 10 | | Section 45; and | 11 | | (4) the resident's ability to decline all recording. | 12 | | For the purposes of this subsection, a resident | 13 | | affirmatively objects when he or she orally, visually, or | 14 | | through the use of auxiliary aids or services declines | 15 | | authorized electronic monitoring. The resident's response must | 16 | | be documented on the notification and consent form. | 17 | | (b) A resident may consent to authorized electronic | 18 | | monitoring with any conditions of the resident's choosing, | 19 | | including, but not limited to, the list of standard conditions | 20 | | provided in paragraph (7) of subsection (b) of Section 20. A | 21 | | resident may request that the electronic monitoring device be | 22 | | turned off or the visual recording component of the electronic | 23 | | monitoring device be blocked at any time. | 24 | | (c) Prior to the authorized electronic monitoring, a
| 25 | | resident must obtain the written consent of any other resident
| 26 | | residing in the room on the notification and consent form |
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| 1 | | prescribed by the Department. Except as otherwise provided in | 2 | | this subsection, a roommate, a roommate's plenary guardian of | 3 | | the person, or the parent of a roommate under the age of 18 | 4 | | must consent in writing to the authorized electronic monitoring | 5 | | in the resident's room. If the roommate has not affirmatively | 6 | | objected to the authorized electronic monitoring in accordance | 7 | | with subsection (a-5) and the roommate's physician determines | 8 | | that the roommate lacks the ability to understand and | 9 | | appreciate the nature and consequences of electronic | 10 | | monitoring, the following individuals may consent on behalf of | 11 | | the roommate, in order of priority: | 12 | | (1) a health care agent named under the Illinois Power | 13 | | of Attorney Act; | 14 | | (2) a roommate's resident's representative, as defined | 15 | | in Section 5 of this Act; | 16 | | (3) the roommate's spouse; | 17 | | (4) the roommate's parent; | 18 | | (5) the roommate's adult child who has the written | 19 | | consent of the other adult children of the resident to act | 20 | | as the sole decision maker regarding authorized electronic | 21 | | monitoring; or | 22 | | (6) the roommate's adult brother or sister who has the | 23 | | written consent of the other adult siblings of the resident | 24 | | to act as the sole decision maker regarding authorized | 25 | | electronic monitoring. | 26 | | (c-5) Consent by a roommate under subsection (c) authorizes |
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| 1 | | the resident's use of any recording obtained under this Act, as | 2 | | provided in Section 45 of this Act. | 3 | | (c-7) Any resident previously conducting authorized | 4 | | electronic monitoring must obtain consent from any new roommate | 5 | | before the resident may resume authorized electronic | 6 | | monitoring.
If a new roommate does not consent to authorized | 7 | | electronic monitoring and the resident conducting the | 8 | | authorized electronic monitoring does not remove or disable the | 9 | | electronic monitoring device, the facility may turn off the | 10 | | device. | 11 | | (d) Consent may be withdrawn by the resident or roommate at | 12 | | any time, and the
withdrawal of consent shall be documented in | 13 | | the resident's
clinical record. If a roommate withdraws consent | 14 | | and the resident
conducting the authorized electronic | 15 | | monitoring does not
remove or disable the electronic monitoring | 16 | | device, the
facility may turn off the electronic monitoring | 17 | | device. | 18 | | (e) If a resident who is residing in a shared room wants to | 19 | | conduct authorized electronic monitoring and another resident | 20 | | living in or moving into the same shared room refuses to | 21 | | consent to the use of an electronic monitoring device, the | 22 | | facility shall make a reasonable attempt to accommodate the | 23 | | resident who wants to conduct authorized electronic | 24 | | monitoring. A facility has met the requirement to make a | 25 | | reasonable attempt to accommodate a resident who wants to | 26 | | conduct authorized electronic monitoring when upon |
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| 1 | | notification that a roommate has not consented to the use of an | 2 | | electronic monitoring device in his or her room, the facility | 3 | | offers to move either resident to another shared room that is | 4 | | available at the time of the request. If a resident chooses to | 5 | | reside in a private room in order to accommodate the use of an | 6 | | electronic monitoring device, the resident must pay the private | 7 | | room rate. If a facility is unable to accommodate a resident | 8 | | due to lack of space, the facility must reevaluate the request | 9 | | every 2 weeks until the request is fulfilled. | 10 | | Section 20. Notice to the facility.
| 11 | | (a) Authorized electronic monitoring may begin only after a | 12 | | notification and consent form prescribed by the Department has | 13 | | been completed and submitted to the facility.
| 14 | | (b) A resident shall notify the facility in writing of his | 15 | | or her intent to install an electronic monitoring device by | 16 | | providing a completed notification and consent form prescribed | 17 | | by the Department that must include, at minimum, the following | 18 | | information: | 19 | | (1) the resident's signed consent to electronic | 20 | | monitoring or the signature of the person consenting on | 21 | | behalf of the resident in accordance with Section 15 of | 22 | | this Act; if a person other than the resident signs the | 23 | | consent form, the form must document the following:
| 24 | | (A) the date the resident was asked if he or she | 25 | | wants authorized electronic monitoring to be conducted |
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| 1 | | in accordance with subsection (a-5) of Section 15; | 2 | | (B) who was present when the resident was asked; | 3 | | and | 4 | | (C) an acknowledgement that the resident did not | 5 | | affirmatively object; and | 6 | | (2) the resident's roommate's signed consent or the | 7 | | signature of the person consenting on behalf of the | 8 | | resident in accordance with Section 15 of this Act, if | 9 | | applicable, and any conditions placed on the roommate's | 10 | | consent; if a person other than the roommate signs the | 11 | | consent form, the form must document the following: | 12 | | (A) the date the roommate was asked if he or she | 13 | | wants authorized electronic monitoring to be conducted | 14 | | in accordance with subsection (a-5) of Section 15; | 15 | | (B) who was present when the roommate was asked; | 16 | | and | 17 | | (C) an acknowledgement that the roommate did not | 18 | | affirmatively object; and | 19 | | (3) the type of electronic monitoring device to be | 20 | | used; | 21 | | (4) any installation needs, such as mounting of a | 22 | | device to a wall or ceiling; | 23 | | (5) the proposed date of installation for scheduling | 24 | | purposes; | 25 | | (6) a copy of any contract for maintenance of the | 26 | | electronic monitoring device by a commercial entity; |
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| 1 | | (7) a list of standard conditions or restrictions that | 2 | | the resident or a roommate may elect to place on use of the | 3 | | electronic monitoring device, including, but not limited | 4 | | to: | 5 | | (A) prohibiting audio recording; | 6 | | (B) prohibiting broadcasting of audio or video; | 7 | | (C) turning off the electronic monitoring device | 8 | | or blocking the visual recording component of the | 9 | | electronic monitoring device for the duration of an | 10 | | exam or procedure by a health care professional; | 11 | | (D) turning off the electronic monitoring device | 12 | | or blocking the visual recording component of the | 13 | | electronic monitoring device while dressing or bathing | 14 | | is performed; and | 15 | | (E) turning the electronic monitoring device off | 16 | | for the duration of a visit with a spiritual advisor, | 17 | | ombudsman, attorney, financial planner, intimate | 18 | | partner, or other visitor; and | 19 | | (8) any other condition or restriction elected by the | 20 | | resident or roommate on the use of an electronic monitoring | 21 | | device.
| 22 | | (c) A copy of the completed notification and consent form | 23 | | shall be placed in the resident's and any roommate's clinical | 24 | | record and a copy shall be provided to the resident and his or | 25 | | her roommate, if applicable. | 26 | | (d) The Department shall prescribe the notification and |
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| 1 | | consent form required in this Section no later than 60 days | 2 | | after the effective date of this Act. If the Department has not | 3 | | prescribed such a form by that date, a resident may create his | 4 | | or her own notification and consent form to meet the | 5 | | requirements of this Act until the Department has prescribed | 6 | | the form.
| 7 | | Section 25. Cost and installation.
| 8 | | (a) A resident choosing to conduct authorized electronic | 9 | | monitoring must do so at his or her own expense, including | 10 | | paying purchase, installation, maintenance, and removal costs. | 11 | | (b) If a resident chooses to install an electronic | 12 | | monitoring device that uses Internet technology for visual or | 13 | | audio monitoring, that resident is responsible for contracting | 14 | | with an Internet service provider. | 15 | | (c) The facility shall make a reasonable attempt to | 16 | | accommodate the resident's installation needs, including, but | 17 | | not limited to, allowing access to the facility's | 18 | | telecommunications or equipment room. A facility has the burden | 19 | | of proving that a requested accommodation is not reasonable. | 20 | | (d) The electronic monitoring device must be placed in a | 21 | | conspicuously visible location in the room. | 22 | | (e) A facility may not charge the resident a fee for the | 23 | | cost of electricity used by an electronic monitoring device. | 24 | | (f) All electronic monitoring device installations and | 25 | | supporting services shall comply with the requirements of the |
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| 1 | | National Fire Protection Association (NFPA) 101 Life Safety | 2 | | Code (2000 edition). | 3 | | Section 27. Assistance program. | 4 | | (a) Subject to appropriation, the Department shall | 5 | | establish a program to assist residents receiving medical | 6 | | assistance under Article V of the Illinois Public Aid Code in | 7 | | accessing authorized electronic monitoring.
| 8 | | (b) The Department shall distribute up to $50,000 in funds | 9 | | on an annual basis to residents receiving medical assistance | 10 | | under Article V of the Illinois Public Aid Code for the | 11 | | purchase and installation of authorized electronic monitoring | 12 | | devices.
| 13 | | (c) Applications for funds and disbursement of funds must | 14 | | be made in a manner prescribed by the Department. | 15 | | Section 30. Notice to visitors.
| 16 | | (a) If a resident of a facility conducts authorized | 17 | | electronic monitoring, a sign shall be clearly and | 18 | | conspicuously posted at all building entrances accessible to | 19 | | visitors. The notice must be entitled "Electronic Monitoring" | 20 | | and must state, in large, easy-to-read type, "The rooms of some | 21 | | residents may be monitored electronically by or on behalf of | 22 | | the residents.".
| 23 | | (b) A sign shall be clearly and conspicuously posted at the | 24 | | entrance to a resident's room where authorized electronic |
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| 1 | | monitoring is being conducted. The notice must state, in large, | 2 | | easy-to-read type, "This room is electronically monitored.". | 3 | | (c) The facility is responsible for installing and | 4 | | maintaining the signage required in this Section. | 5 | | Section 40. Obstruction of electronic monitoring devices.
| 6 | | (a) A person or entity is prohibited from knowingly | 7 | | hampering, obstructing, tampering with, or destroying an | 8 | | electronic monitoring device installed in a resident's room | 9 | | without the permission of the resident or the individual who | 10 | | consented on behalf of the resident in accordance with Section | 11 | | 15 of this Act. | 12 | | (b) A person or entity is prohibited from knowingly | 13 | | hampering, obstructing, tampering with, or destroying a video | 14 | | or audio recording obtained in accordance with this Act without | 15 | | the permission of the resident or the individual who consented | 16 | | on behalf of the resident in accordance with Section 15 of this | 17 | | Act. | 18 | | (c) A person or entity that violates this Section is guilty | 19 | | of a Class B misdemeanor. A person or entity that violates this | 20 | | Section in the commission of or to conceal a misdemeanor | 21 | | offense is guilty of a Class A misdemeanor. A person or entity | 22 | | that violates this Section in the commission of or to conceal a | 23 | | felony offense is guilty of a Class 4 felony.
| 24 | | (d) It shall be an affirmative defense to a violation of | 25 | | this Section that the person or facility acted with the |
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| 1 | | permission of the resident or the person who consented on | 2 | | behalf of the resident in accordance with Section 15 of this | 3 | | Act.
| 4 | | Section 45. Dissemination of recordings. | 5 | | (a) A facility may not access any video or audio recording | 6 | | created through authorized electronic monitoring without the | 7 | | written consent of the resident or the person who consented on | 8 | | behalf of the resident in accordance with Section 15 of this | 9 | | Act.
| 10 | | (b) Except as required under the Freedom of Information | 11 | | Act, a recording or copy of a recording made pursuant to this | 12 | | Act may only be disseminated for the purpose of addressing | 13 | | concerns relating to the health, safety, or welfare of a | 14 | | resident or residents. | 15 | | (c) The resident or person who consented on behalf of the | 16 | | resident in accordance with Section 15 of this Act shall | 17 | | provide a copy of any video or audio recording to parties | 18 | | involved in a civil, criminal, or administrative proceeding, | 19 | | upon a party's request, if the video or audio recording was | 20 | | made during the time period that the conduct at issue in the | 21 | | proceeding allegedly occurred. | 22 | | Section 50. Admissibility of evidence. Subject to | 23 | | applicable rules of evidence and procedure, any video or audio | 24 | | recording created through authorized electronic monitoring in |
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| 1 | | accordance with this Act may be admitted into evidence in a | 2 | | civil, criminal, or administrative proceeding if the contents | 3 | | of the recording have not been edited or artificially enhanced | 4 | | and the video recording includes the date and time the events | 5 | | occurred. | 6 | | Section 55. Report. Each facility shall report to the | 7 | | Department, in a manner prescribed by the Department, the | 8 | | number of authorized electronic monitoring notification and | 9 | | consent forms received annually. The Department shall report | 10 | | the total number of authorized electronic monitoring | 11 | | notification and consent forms received by facilities to the | 12 | | Office of the Attorney General annually. | 13 | | Section 60. Liability. | 14 | | (a) A facility is not civilly or criminally liable for the | 15 | | inadvertent or intentional disclosure of a recording by a | 16 | | resident or a person who consents on behalf of the resident for | 17 | | any purpose not authorized by this Act. | 18 | | (b) A facility is not civilly or criminally liable for a | 19 | | violation of a resident's right to privacy arising out of any | 20 | | electronic monitoring conducted pursuant to this Act. | 21 | | Section 65. Rules. The Department shall adopt rules | 22 | | necessary to implement this Act. |
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| 1 | | Section 70. The Nursing Home Care Act is amended by | 2 | | changing Section 3-318 and by adding Section 2-115 as follows: | 3 | | (210 ILCS 45/2-115 new) | 4 | | Sec. 2-115. Authorized electronic monitoring of a | 5 | | resident's room. A resident shall be permitted to conduct | 6 | | authorized electronic monitoring of the resident's room | 7 | | through the use of electronic monitoring devices placed in the | 8 | | room pursuant to the Authorized Electronic Monitoring in | 9 | | Long-Term Care Facilities Act.
| 10 | | (210 ILCS 45/3-318) (from Ch. 111 1/2, par. 4153-318)
| 11 | | Sec. 3-318. (a) No person shall:
| 12 | | (1) Intentionally fail to correct or interfere | 13 | | with the correction of
a Type "AA", Type "A", or Type | 14 | | "B" violation within the time specified on the notice | 15 | | or
approved plan of correction under this Act as the | 16 | | maximum period given for
correction, unless an | 17 | | extension is granted and the corrections are made
| 18 | | before expiration of extension;
| 19 | | (2) Intentionally prevent, interfere with, or | 20 | | attempt to impede in any
way any duly authorized | 21 | | investigation and enforcement of this Act;
| 22 | | (3) Intentionally prevent or attempt to prevent | 23 | | any examination of
any relevant books or records | 24 | | pertinent to investigations
and enforcement of this |
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| 1 | | Act;
| 2 | | (4) Intentionally prevent or interfere with the | 3 | | preservation of
evidence pertaining to any violation | 4 | | of this Act or the rules
promulgated under this Act;
| 5 | | (5) Intentionally retaliate or discriminate | 6 | | against any resident or
employee for contacting or | 7 | | providing information to any state official, or
for | 8 | | initiating, participating in, or testifying in an | 9 | | action for any remedy
authorized under this Act;
| 10 | | (6) Wilfully file any false, incomplete or | 11 | | intentionally misleading
information required to be | 12 | | filed under this Act, or wilfully fail or refuse
to | 13 | | file any required information; or
| 14 | | (7) Open or operate a facility without a license ; .
| 15 | | (8) Intentionally retaliate or discriminate | 16 | | against any resident for consenting to authorized | 17 | | electronic monitoring under the Authorized Electronic | 18 | | Monitoring in Long-Term Care Facilities Act; or | 19 | | (9) Prevent the installation or use of an | 20 | | electronic monitoring device by a resident who has | 21 | | provided the facility with notice and consent as | 22 | | required in Section 20 of the Authorized Electronic | 23 | | Monitoring in Long-Term Care Facilities Act. | 24 | | (b) A violation of this Section is a business offense, | 25 | | punishable by a
fine not to exceed $10,000, except as otherwise | 26 | | provided in subsection (2)
of Section 3-103 as to submission of |
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| 1 | | false or misleading information in
a license application.
| 2 | | (c) The State's Attorney of the county in which the | 3 | | facility is
located, or the Attorney General, shall be notified | 4 | | by the Director
of any violations of this Section.
| 5 | | (Source: P.A. 96-1372, eff. 7-29-10.)
| 6 | | Section 75. The ID/DD Community Care Act is amended by | 7 | | changing Section 3-318 and by adding Section 2-116 as follows: | 8 | | (210 ILCS 47/2-116 new) | 9 | | Sec. 2-116. Authorized electronic monitoring of a | 10 | | resident's room. A resident shall be permitted to conduct | 11 | | authorized electronic monitoring of the resident's room | 12 | | through the use of electronic monitoring devices placed in the | 13 | | room pursuant to the Authorized Electronic Monitoring in | 14 | | Long-Term Care Facilities Act. | 15 | | (210 ILCS 47/3-318)
| 16 | | Sec. 3-318. Business offenses. | 17 | | (a) No person shall: | 18 | | (1) Intentionally fail to correct or interfere with the | 19 | | correction of a Type "AA", Type "A", or Type "B" violation | 20 | | within the time specified on the notice or approved plan of | 21 | | correction under this Act as the maximum period given for | 22 | | correction, unless an extension is granted and the | 23 | | corrections are made before expiration of extension; |
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| 1 | | (2) Intentionally prevent, interfere with, or attempt | 2 | | to impede in any way any duly authorized investigation and | 3 | | enforcement of this Act; | 4 | | (3) Intentionally prevent or attempt to prevent any | 5 | | examination of any relevant books or records pertinent to | 6 | | investigations and enforcement of this Act; | 7 | | (4) Intentionally prevent or interfere with the | 8 | | preservation of evidence pertaining to any violation of | 9 | | this Act or the rules promulgated under this Act; | 10 | | (5) Intentionally retaliate or discriminate against | 11 | | any resident or employee for contacting or providing | 12 | | information to any state official, or for initiating, | 13 | | participating in, or testifying in an action for any remedy | 14 | | authorized under this Act; | 15 | | (6) Willfully file any false, incomplete or | 16 | | intentionally misleading information required to be filed | 17 | | under this Act, or willfully fail or refuse to file any | 18 | | required information; or | 19 | | (7) Open or operate a facility without a license ; . | 20 | | (8) Intentionally retaliate or discriminate against | 21 | | any resident for consenting to authorized electronic | 22 | | monitoring under the Authorized Electronic Monitoring in | 23 | | Long-Term Care Facilities Act; or | 24 | | (9) Prevent the installation or use of an electronic | 25 | | monitoring device by a resident who has provided the | 26 | | facility with notice and consent as required in Section 20 |
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| 1 | | of the Authorized Electronic Monitoring in Long-Term Care | 2 | | Facilities Act. | 3 | | (b) A violation of this Section is a business offense, | 4 | | punishable by a fine not to exceed $10,000, except as otherwise | 5 | | provided in subsection (2) of Section 3-103 as to submission of | 6 | | false or misleading information in a license application. | 7 | | (c) The State's Attorney of the county in which the | 8 | | facility is located, or the Attorney General, shall be notified | 9 | | by the Director of any violations of this Section.
| 10 | | (Source: P.A. 96-339, eff. 7-1-10; 97-38, eff. 6-28-11.) | 11 | | Section 99. Effective date. This Act takes effect January | 12 | | 1, 2016.".
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