HB2628 98TH GENERAL ASSEMBLY

LRB098 08871 DRJ 39002 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB2628

Introduced 2/21/2013, by Rep. Silvana Tabares

SYNOPSIS AS INTRODUCED:

210 ILCS 45/3-202.6 new

Amends the Nursing Home Care Act. Requires a nursing home to place electronic monitoring devices throughout the facility in areas including specified common areas and residents' rooms. Allows residents to opt out of electronic monitoring in their rooms. Sets forth requirements concerning recordings. Provides that intentionally hampering, obstructing, tampering with, or destroying an electronic monitoring device installed in a facility is a Class A misdemeanor for which a $5,000 fine may be imposed. Provides for access to real-time and recorded files. Allows for the admission of recordings into evidence. Contains provisions concerning civil liability; reimbursement of facilities for expenses incurred in installing electronic monitoring systems; the authority of the Department of Public Health to deny, suspend, or refuse to renew a facility's license; the adoption of rules by the Department; and other matters. Effective immediately.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT

A BILL FOR

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Nursing Home Care Act is amended by adding Section 3-202.6 as follows:

(210 ILCS 45/3-202.6 new)

Sec. 3-202.6. Electronic monitoring in facilities.

(a) Definitions. In this Section:

"Authorized electronic monitoring" means the placement of electronic monitoring devices in the common areas and rooms of residents of a facility and recordings with the devices pursuant to this Section.

"Electronic monitoring device" means a video surveillance camera installed in any of a facility's common areas and residents' rooms and an audio device installed in a resident's bathroom and shower or bathing areas, designed to acquire communication or other sounds occurring in the rooms.

(b) Placement of electronic monitoring devices. A facility shall place electronic monitoring devices throughout the facility in areas that include, but need not be limited to:

(1) Entrances and exits.

(2) Hallways.

(3) Dining areas.

(4) Nurses' stations.

(5) Residents' rooms.

(c) Opting out of electronic monitoring; waiver. A resident or a resident's legal representative shall have the choice to opt out of electronic monitoring in the resident's room by executing a waiver in the manner and form prescribed by the Department. If a resident or a resident's legal representative opts out by executing a waiver, electronic monitoring in that resident's room shall be turned off. If a resident or a resident's legal representative chooses to opt out of electronic monitoring, execution of the waiver must be witnessed and signed by a representative of the Office of State Long Term Care Ombudsman.

(d) Temporary waiver. A resident who has electronic monitoring in his or her room and who desires privacy for purposes of intimacy has the right to request a temporary waiver from monitoring during such personal periods as follows:

(1) A temporary waiver must be executed by the resident if he or she is of sound mind or does not have a diagnosis of Alzheimer's disease or dementia or has not been deemed incompetent.

(2) If the resident is not of sound mind, has a diagnosis of Alzheimer's disease or dementia, or has been deemed to be incompetent, the resident's legal representative may request the temporary waiver.

A temporary waiver under this subsection shall be executed in the manner and form prescribed by the Department.

(e) Notice to resident. Upon a resident's admission to a facility, the resident shall be given a form prescribed by the Department which provides notice that the facility is required by State law to place electronic monitoring devices throughout the facility. The form shall provide language to allow the resident or the resident's legal representative to opt out of electronic monitoring in the resident's room, if the resident or the resident's legal representative chooses privacy over increased safety provided by electronic monitoring. The form shall also release the facility from any civil liability for a violation of the resident's privacy rights in connection with the use of the electronic monitoring device. The form must be signed by the resident or the resident's legal representative. The signed form shall be attached as a permanent record in the resident's file. A facility must provide a room to any resident who opts out of electronic monitoring. Under no circumstances shall a resident be provided a room without video monitoring unless that resident or his or her legal representative opts out of electronic monitoring.

(f) Constant monitoring. Electronic monitoring in residents' rooms, bathrooms, and bathing areas shall be constant.

(g) Recording requirements. Recordings shall be motion-activated and activated whenever the nurse-call or call-for-assistance button is pressed for video recordings in a resident's room and sound-activated for bathrooms and bathing areas. Recordings shall capture a minimum of 30 seconds prior to the activation and shall continue until no motion is detected for 3 minutes. Recordings shall be maintained at the facility for a minimum of 30 days. All recordings shall be transferred to the Department, which shall store recordings for a minimum of 5 years. Electronic monitoring systems for video monitoring shall be color, motion-activated, with a minimum of 15 seconds per frame, minimum 550 resolution, with infrared illuminator or greater for night or low-lighting monitoring. All video tapes or recordings made pursuant to this Section shall show the time and date that events acquired on the tape or recording occurred.

(h) Posted notices. A facility shall post and maintain a conspicuous notice at the entrance to the facility stating that the facility is being monitored by electronic monitoring devices.

A facility that conducts authorized electronic monitoring in a resident's room pursuant to this Section shall post and maintain a conspicuous notice at the entrance to the resident's room stating that the room is being monitored by one or more electronic monitoring devices.

(i) Residents' consent. Authorized electronic monitoring of a resident's room conducted under this Section is not compulsory and shall be conducted only with the consent of all residents living in that room or their legal representatives. A facility shall not refuse to admit an individual as a resident of the facility and shall not remove a resident from the facility because of the individual's or his or her representative's consent or refusal to consent to authorized electronic monitoring of the resident's room.

(j) Criminal offenses. No person or entity shall intentionally hamper, obstruct, tamper with, or destroy an electronic monitoring device installed in a facility.

Any person or entity that intentionally hampers, obstructs, tampers with, or destroys a recording or an electronic monitoring device installed in a facility commits a Class A misdemeanor for which a fine not exceeding $5,000 may be imposed.

No person or entity shall intercept a communication or disclosure or use an intercepted communication of an electronic monitoring device placed or installed in a facility without the express consent of the facility or, for an electronic monitoring device installed in a resident's room, the express consent of the resident or the resident's legal representative.

(k) Availability of recordings. A facility shall make available to any resident or resident's legal representative real-time and recorded files. The facility shall provide the resident or resident's legal representative with a secured Internet address, login, and password specifically for that resident to view real-time and recorded activity. The facility shall provide a computer station at the facility for residents and their legal representatives to access real-time or recorded files. Recordings may be provided by the facility upon request made by a resident or a resident's legal representative. The facility shall provide the recordings within 48 hours after a request is made. A resident or his or her legal representative may provide the facility with a DVD or flash drive for the transfer of such recorded files; otherwise the facility may charge a fee of no more than $25 to recover the cost of storage media for such file transfers.

A facility shall make access to real-time video, tapes, or other recordings permitted by this Section available to the Department. The Department shall adopt rules as necessary to ensure that the provisions of this subsection (k) do not violate the privacy rights of a facility's residents protected by State or federal law.

Residents, residents' legal representatives, authorized facility staff, and authorized Department staff shall have real-time access and access to recorded files.

Law enforcement agencies, State's Attorneys, and attorneys representing residents or residents' legal representatives shall have access to recorded files.

(l) Use of recordings as evidence. Subject to the provisions of law, a tape or recording created through the use of authorized electronic monitoring pursuant to this Section may be admitted into evidence in a civil or criminal court action or administrative proceeding. A court or administrative agency may not admit into evidence a tape or recording created through the use of authorized electronic monitoring, or take or authorize action based on the tape or recording, unless all of the following criteria are met:

(1) If the tape or recording is a video tape or recording, the tape or recording must show the time and date that the events acquired on the tape or recording occurred.

(2) The contents of the tape or recording must not have been edited or artificially enhanced.

(3) If the contents of the tape or recording have been transferred from the original format to another technological format, the transfer must have been done by a qualified professional, and the contents of the tape or recording must not have been altered.

(m) Civil liability. This Section does not affect whether a person may be held civilly liable under other provisions of law in connection with placing an electronic monitoring device in the room of a resident of a facility or in connection with using or disclosing a tape or recording made by such a device, except:

(1) as specifically provided in this Section; or

(2) to the extent that liability is affected by a consent form or waiver signed pursuant to the provisions of this Section or the fact that authorized electronic monitoring is required to be conducted with notice to persons who enter the facility or a resident's room.

The Department shall not be held civilly liable in connection with the placement or use of an electronic monitoring device in a facility.

(n) Placement of monitoring device at resident's expense. Nothing in this Section shall be construed to prevent a resident or resident's legal representative from placing an electronic monitoring device in the resident's room at the expense of the resident or his or her legal representative and with the consent of all other residents living in the room or their legal representatives.

(o) Reimbursement of facility. A facility shall be reimbursed for expenses incurred in the acquisition and installation of electronic monitoring systems pursuant to this Section.

(p) Sanctions against facility's licensure. The Department may deny, suspend, or refuse to renew the license of a facility that violates this Section.

(q) Rules. The Department shall adopt rules as necessary to implement this Section.

Section 99. Effective date. This Act takes effect upon becoming law.