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