Public Act 099-0430

HB2462 Enrolled LRB099 06604 RPS 30928 b

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois,

represented in the General Assembly:

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 residing in a facility.

"Resident's representative" has the meaning given to that

term in (1) Section 1-123 of the Nursing Home Care Act if the

resident resides in a facility licensed under the Nursing Home

Care Act or (2) Section 1-123 of the ID/DD Community Care Act

if the resident resides in a facility licensed under the ID/DD

Community Care Act.

Section 10. Authorized electronic monitoring.

(a) 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.

(b) Nothing in this Act shall be construed to allow the use

of an electronic monitoring device to take still photographs or

for the nonconsensual interception of private communications.

Section 15. Consent.

(a) Except as otherwise provided in this subsection, a

resident, a resident's plenary guardian of the person, or the

parent of a resident under the age of 18 must consent in

writing on a notification and consent form prescribed by the

Department to the authorized electronic monitoring in the

resident's room. If the resident has not affirmatively objected

to the authorized electronic monitoring and the resident's

physician determines that the resident lacks the ability to

understand and appreciate the nature and consequences of

electronic monitoring, the following individuals may consent

on behalf of the resident, in order of priority:

(1) a health care agent named under the Illinois Power

of Attorney Act;

(2) a resident's representative, as defined in Section

5 of this Act;

(3) the resident's spouse;

(4) the resident's parent;

(5) the resident's adult child who has the written

consent of the other adult children of the resident to act

as the sole decision maker regarding authorized electronic

monitoring; or

(6) the resident's adult brother or sister who has the

written consent of the other adult siblings of the resident

to act as the sole decision maker regarding authorized

electronic monitoring.

(a-5) Prior to another person, other than a resident's

plenary guardian of the 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. The person must explain

to the resident:

(1) the type of electronic monitoring device to be

used;

(2) the standard conditions that may be placed on the

electronic monitoring device's use, including those listed

in paragraph (7) of subsection (b) of Section 20;

(3) with whom the recording may be shared according to

Section 45; and

(4) the resident's ability to decline all recording.

For the purposes of this subsection, a resident

affirmatively objects when he or she orally, visually, or

through the use of auxiliary aids or services declines

authorized electronic monitoring. The resident's response must

be documented on the notification and consent form.

(b) A resident or roommate may consent to authorized

electronic monitoring with any conditions of the resident's

choosing, including, but not limited to, the list of standard

conditions provided in paragraph (7) of subsection (b) of

Section 20. A resident or roommate may request that the

electronic monitoring device be turned off or the visual

recording component of the electronic monitoring device be

blocked at any time.

(c) Prior to the authorized electronic monitoring, a

resident must obtain the written consent of any other resident

residing in the room on the notification and consent form

prescribed by the Department. Except as otherwise provided in

this subsection, a roommate, a roommate's plenary guardian of

the person, or the parent of a roommate under the age of 18

must consent in writing to the authorized electronic monitoring

in the resident's room. If the roommate has not affirmatively

objected to the authorized electronic monitoring in accordance

with subsection (a-5) and the roommate's physician determines

that the roommate lacks the ability to understand and

appreciate the nature and consequences of electronic

monitoring, the following individuals may consent on behalf of

the roommate, in order of priority:

(1) a health care agent named under the Illinois Power

of Attorney Act;

(2) a roommate's resident's representative, as defined

in Section 5 of this Act;

(3) the roommate's spouse;

(4) the roommate's parent;

(5) the roommate's adult child who has the written

consent of the other adult children of the resident to act

as the sole decision maker regarding authorized electronic

monitoring; or

(6) the roommate's adult brother or sister who has the

written consent of the other adult siblings of the resident

to act as the sole decision maker regarding authorized

electronic monitoring.

(c-5) Consent by a roommate under subsection (c) authorizes

the resident's use of any recording obtained under this Act, as

provided in Section 45 of this Act.

(c-7) Any resident previously conducting authorized

electronic monitoring must obtain consent from any new roommate

before the resident may resume authorized electronic

monitoring. If a new roommate does not consent to authorized

electronic monitoring 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) Consent may be withdrawn by the resident or roommate at

any time, and the withdrawal of consent shall be documented in

the resident's clinical record. 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 electronic monitoring

device.

(e) If a resident who is residing in a shared room wants to

conduct authorized electronic monitoring and another resident

living in or moving into 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 of an

electronic monitoring device in his or her room, the facility

offers to move either resident to another shared room that is

available at the time of the request. If a resident chooses to

reside in a private room in order to accommodate the use of an

electronic monitoring device, the resident must pay the private

room rate. 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 a

notification and consent form prescribed by the Department 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 notification and consent form prescribed

by the Department that must include, at minimum, the following

information:

(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

in accordance with subsection (a-5) of Section 15;

(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

in accordance with subsection (a-5) of Section 15;

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

and

(C) an acknowledgement that the roommate did not

affirmatively object; and

(3) the type of electronic monitoring device to be

used;

(4) any installation needs, such as mounting of a

device to a wall or ceiling;

(5) the proposed date of installation for scheduling

purposes;

(6) a copy of any contract for maintenance of the

electronic monitoring device by a commercial entity;

(7) a list of standard conditions or restrictions that

the resident or a roommate may elect to place on use of the

electronic monitoring device, including, but not limited

to:

(A) prohibiting audio recording;

(B) prohibiting broadcasting of audio or video;

(C) turning off the electronic monitoring device

or blocking the visual recording component of the

electronic monitoring device for the duration of an

exam or procedure by a health care professional;

(D) turning off the electronic monitoring device

or blocking the visual recording component of the

electronic monitoring device while dressing or bathing

is performed; and

(E) turning the electronic monitoring device off

for the duration of a visit with a spiritual advisor,

ombudsman, attorney, financial planner, intimate

partner, or other visitor; and

(8) any other condition or restriction elected by the

resident or roommate on the use of an electronic monitoring

device.

(c) A copy of the completed notification and consent form

shall be placed in the resident's and any roommate's clinical

record and a copy shall be provided to the resident and his or

her roommate, if applicable.

(d) The Department shall prescribe the notification and

consent form required in this Section no later than 60 days

after the effective date of this Act. If the Department has not

prescribed such a form by that date, the Office of the Attorney

General shall post a notification and consent form on its

website for resident use until the Department has prescribed

the form.

Section 25. Cost and installation.

(a) A resident choosing to conduct authorized electronic

monitoring must do so at his or her own expense, including

paying purchase, installation, maintenance, and removal costs.

(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.

(c) The facility shall make a reasonable attempt to

accommodate the resident's installation needs, 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.

(d) The electronic monitoring device must be placed in a

conspicuously visible location in the room.

(e) A facility may not charge the resident a fee for the

cost of electricity used by an electronic monitoring device.

(f) All electronic monitoring device installations and

supporting services shall comply with the requirements of the

National Fire Protection Association (NFPA) 101 Life Safety

Code (2000 edition).

Section 27. Assistance program.

(a) Subject to appropriation, 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.

(b) 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.

(c) Applications for funds and disbursement of funds must

be made in a manner prescribed by the Department.

Section 30. Notice to visitors.

(a) If a resident of a facility conducts authorized

electronic monitoring, 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 is electronically monitored.".

(c) The facility is responsible for installing and

maintaining the signage required in this Section.

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

without the permission of the resident or the individual who

consented on behalf of the resident in accordance with Section

15 of this Act.

(b) A person or entity is prohibited from knowingly

hampering, obstructing, tampering with, or destroying a video

or audio recording obtained in accordance with this Act without

the permission of the resident or the individual who consented

on behalf of the resident in accordance with Section 15 of this

Act.

(c) 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.

(d) It is not a violation of this Section if a person or

facility turns off the electronic monitoring device or blocks

the visual recording component of the electronic monitoring

device at the direction of the resident or the person who

consented on behalf of the resident in accordance with Section

15 of this Act.

Section 45. Dissemination of 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) Except as required under the Freedom of Information

Act, a recording or copy of a recording made pursuant to this

Act may only be disseminated for the purpose of addressing

concerns relating to the health, safety, or welfare of a

resident or residents.

(c) The resident or person who consented on behalf of the

resident in accordance with Section 15 of this Act shall

provide a copy of any video or audio recording to parties

involved in a civil, criminal, or administrative proceeding,

upon a party's request, if the video or audio recording was

made during the time period that the conduct at issue in the

proceeding allegedly occurred.

Section 50. Admissibility of evidence. Subject to

applicable rules of evidence and procedure, 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 notification and

consent forms received annually. The Department shall report

the total number of authorized electronic monitoring

notification and consent forms received by facilities to the

Office of the Attorney General annually.

Section 60. Liability.

(a) A facility is not civilly or criminally liable for the

inadvertent or intentional disclosure of a recording by a

resident or a person who consents on behalf of the resident for

any purpose not authorized by this Act.

(b) A facility is not civilly or criminally liable for a

violation of a resident's right to privacy arising out of any

electronic monitoring conducted pursuant to this Act.

Section 65. Rules. The Department shall adopt rules

necessary to implement this Act.

Section 70. The Nursing Home Care Act is amended by

changing Section 3-318 and by adding Section 2-115 as follows:

(210 ILCS 45/2-115 new)

Sec. 2-115. Authorized electronic monitoring of a

resident's room. 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 the Authorized Electronic Monitoring in

Long-Term Care Facilities Act.

(210 ILCS 45/3-318) (from Ch. 111 1/2, par. 4153-318)

Sec. 3-318. (a) No person shall:

(1) Intentionally fail to correct or interfere

with the correction of a Type "AA", Type "A", or Type

"B" violation within the time specified on the notice

or approved plan of correction under this Act as the

maximum period given for correction, unless an

extension is granted and the corrections are made

before expiration of extension;

(2) Intentionally prevent, interfere with, or

attempt to impede in any way any duly authorized

investigation and enforcement of this Act;

(3) Intentionally prevent or attempt to prevent

any examination of any relevant books or records

pertinent to investigations and enforcement of this

Act;

(4) Intentionally prevent or interfere with the

preservation of evidence pertaining to any violation

of this Act or the rules promulgated under this Act;

(5) Intentionally retaliate or discriminate

against any resident or employee for contacting or

providing information to any state official, or for

initiating, participating in, or testifying in an

action for any remedy authorized under this Act;

(6) Wilfully file any false, incomplete or

intentionally misleading information required to be

filed under this Act, or wilfully fail or refuse to

file any required information; or

(7) Open or operate a facility without a license; .

(8) Intentionally retaliate or discriminate

against any resident for consenting to authorized

electronic monitoring under the Authorized Electronic

Monitoring in Long-Term Care Facilities Act; or

(9) Prevent the installation or use of an

electronic monitoring device by a resident who has

provided the facility with notice and consent as

required in Section 20 of the Authorized Electronic

Monitoring in Long-Term Care Facilities Act.

(b) A violation of this Section is a business offense,

punishable by a fine not to exceed $10,000, except as otherwise

provided in subsection (2) of Section 3-103 as to submission of

false or misleading information in a license application.

(c) The State's Attorney of the county in which the

facility is located, or the Attorney General, shall be notified

by the Director of any violations of this Section.

(Source: P.A. 96-1372, eff. 7-29-10.)

Section 75. The ID/DD Community Care Act is amended by

changing Section 3-318 and by adding Section 2-116 as follows:

(210 ILCS 47/2-116 new)

Sec. 2-116. Authorized electronic monitoring of a

resident's room. 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 the Authorized Electronic Monitoring in

Long-Term Care Facilities Act.

(210 ILCS 47/3-318)

Sec. 3-318. Business offenses.

(a) No person shall:

(1) Intentionally fail to correct or interfere with the

correction of a Type "AA", Type "A", or Type "B" violation

within the time specified on the notice or approved plan of

correction under this Act as the maximum period given for

correction, unless an extension is granted and the

corrections are made before expiration of extension;

(2) Intentionally prevent, interfere with, or attempt

to impede in any way any duly authorized investigation and

enforcement of this Act;

(3) Intentionally prevent or attempt to prevent any

examination of any relevant books or records pertinent to

investigations and enforcement of this Act;

(4) Intentionally prevent or interfere with the

preservation of evidence pertaining to any violation of

this Act or the rules promulgated under this Act;

(5) Intentionally retaliate or discriminate against

any resident or employee for contacting or providing

information to any state official, or for initiating,

participating in, or testifying in an action for any remedy

authorized under this Act;

(6) Willfully file any false, incomplete or

intentionally misleading information required to be filed

under this Act, or willfully fail or refuse to file any

required information; or

(7) Open or operate a facility without a license; .

(8) Intentionally retaliate or discriminate against

any resident for consenting to authorized electronic

monitoring under the Authorized Electronic Monitoring in

Long-Term Care Facilities Act; or

(9) Prevent the installation or use of an electronic

monitoring device by a resident who has provided the

facility with notice and consent as required in Section 20

of the Authorized Electronic Monitoring in Long-Term Care

Facilities Act.

(b) A violation of this Section is a business offense,

punishable by a fine not to exceed $10,000, except as otherwise

provided in subsection (2) of Section 3-103 as to submission of

false or misleading information in a license application.

(c) The State's Attorney of the county in which the

facility is located, or the Attorney General, shall be notified

by the Director of any violations of this Section.

(Source: P.A. 96-339, eff. 7-1-10; 97-38, eff. 6-28-11.)