99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
SB1602
 
Introduced 2/20/2015, by Sen. James F. Clayborne, Jr.
 
SYNOPSIS AS INTRODUCED:



New Act

 Creates the Electronic Monitoring Act. Requires all residential facilities that are licensed, certified, or regulated by the State to have a written policy regarding the use of electronic monitoring devices. Provides that electronic monitoring of a resident's room is permitted if certain conditions are met, including: the resident having reason to believe that his or health, safety, or personal property is at risk; the resident having notified the facility and obtained the consent of certain parties; the resident, the facility, and the roommate agreeing to the terms and conditions of the electronic monitoring; and completing a written evaluation of the use of the electronic monitoring device monthly. Prohibits electronic monitoring under certain circumstances. Requires the Department of Public Health to design a standard form for providing notice to the facility. Provides that certain costs related to the electronic monitoring shall be the responsibility of the resident or the resident's family and prohibits the use of certain types of income to pay for those costs. Contains provisions concerning: notice of the electronic monitoring to the facility, the employees, other residents, and the general public; consent to the electronic monitoring; and limitations on the use of video tapes in criminal, civil, or administrative actions. Effective immediately.



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FISCAL NOTE ACT MAY APPLY
 
 
A BILL FOR
 


SB1602LRB099 08693 RPS 28860 b



1 AN ACT concerning regulation.


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

3represented in the General Assembly:



4 Section 1. Short title. This Act may be cited as the 
5Electronic Monitoring Act.

6 Section 5. Definitions. As used in this Act:

7 "Department" means the Department of Public Health.

8 "Electronic monitoring" means the placement of an 
9electronic monitoring device by a resident in his or her room 
10in accordance with this Act.

11 "Electronic monitoring device" means a fixed-position 
12video surveillance instrument installed in a resident's room 
13under the provisions of this Act that visually records activity 
14occurring in a resident's room and is equipped with a time and 
15date stamp.

16 "Facility" means any residential facility licensed, 
17certified, or regulated by the State.

18 "Resident" means a person residing in a facility.

19 "Resident's representative" means (1) a person designated 
20in writing by a resident to be his or her representative, (2) 
21the resident's guardian, or (3) the parent of a minor resident 
22for whom no guardian has been appointed.


 
 
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1 Section 10. Policy.  Facilities operating in this State 
2shall have a written policy regarding the use of electronic 
3monitoring devices. The written policy shall be provided to a 
4resident or the resident's representative upon request. The 
5policy shall, at a minimum, include the provisions contained in 
6this Act and shall be in compliance with federal and State law.


7 Section 15. Permitted electronic monitoring.  Electronic 
8monitoring of a resident's room is permitted only after the 
9following conditions are met:
10    (1) the notification form and written consent of 
11 all necessary parties has been received by the 
12 facility;
13    (2) the resident and the facility have agreed upon 
14 a specific duration for the electronic monitoring and 
15 that agreement is documented in writing; 
16    (3) the resident has reason to believe that his or 
17 her health, safety, or personal property is at risk;
18    (4) the resident has notified the facility, in 
19 writing, on a form provided by the Department;

20    (5) the resident's roommate, if any, has given 
21 written consent and that written consent remains in 
22 force;
23    (6) the resident, the resident's roommate (if 
24 any), and the facility have agreed in writing on the 
25 terms and conditions of the electronic monitoring, 
 
 
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1 which must be signed and dated; and

2    (7) a written evaluation of the use of the 
3 electronic monitoring device is completed monthly.


4 Section 20. Prohibited electronic monitoring.

5 (a) Electronic monitoring is prohibited under the 
6following circumstances:

7  (1) if the electronic monitoring is conducted without 
8 the knowledge and consent of the facility and the 
9 resident's
roommate, if any;

10  (2) if the electronic monitoring device is concealed, 
11 takes still photographs, is sound activated, or swivels;

12  (3) if the electronic monitoring device makes a visual 
13 recording without a time and date stamp; or

14  (4) if the electronic monitoring device records audio 
15 with or without a visual recording.

16 (b) Resident-owned electronic monitoring devices may not 
17be used outside the confines of the resident's sleeping room.

18 Section 25. Consent. 
19 (a) The resident must consent to the electronic monitoring, 
20subject to the following conditions:
21  (1) only the resident may give consent if the resident 
22 has capacity and has not been judicially declared to not 
23 have capacity;
24  (2) if a resident has been judicially declared to lack 
 
 
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1 capacity and a guardian has been appointed, the guardian 
2 may give consent unless the resident affirmatively objects 
3 to the use of electronic monitoring;
4  (3) if the resident loses the capacity to give consent, 
5 as determined by the resident's physician, it is presumed 
6 that the resident has withdrawn consent; and
7  (4) consent may be withdrawn at any time, and the 
8 withdrawal of consent shall be documented in the resident's 
9 file.

10 (b) The resident's roommate must consent to the electronic 
11monitoring, subject to the following conditions:
12  (1) the same consent provisions required of the 
13 resident shall apply to the roommate;
14  (2) the roommate may withdraw consent or object at any 
15 time;

16  (3) the roommate must give written consent on a form 
17 prescribed by the Department, which may place limitations 
18 and conditions on the consent;
and
19  (4) if the roommate refuses to consent to the 
20 electronic monitoring, the facility, to the extent 
21 practicable, may offer to move either resident to 
22 accommodate the request for electronic monitoring; 
23 however, the facility is not obligated to provide a private 
24 room or to move a roommate, over the roommate's objections, 
25 to accommodate a request for electronic monitoring.


 
 
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1 Section 30. Notice. 
2 (a) A resident seeking to have an electronic monitoring 
3device installed in the resident's sleeping room shall be 
4responsible for giving notice to the facility, the employees, 
5other residents, and the general public.
6 (b) The resident shall notify the facility in writing of 
7his or her desire to have an electronic monitoring device 
8installed. Notice shall be given on a standard form designed by 
9the Department that shall at a minimum require that the 
10following information be provided:

11  (1) the resident's signed consent to electronic 
12 monitoring;

13  (2) the resident's perceived threat of risk to health, 
14 safety, or personal property;

15  (3) the period of time that the resident is requesting 
16 the electronic monitoring to occur;

17  (4) the type of electronic monitoring device, the date 
18 and location of installation, and how the electronic 
19 monitoring device functions;

20  (5) the plan for retrieval of the tape, replacement of 
21 the tape, and maintenance of the equipment;

22  (6) whether the electronic monitoring device is to be 
23 unobstructed at all times or obstructed at certain times 
24 for the resident's privacy;

25  (7) the plan for the removal of the electronic 
26 monitoring device if the resident or the resident's 
 
 
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1 roommate withdraws consent or the electronic monitoring 
2 device is unused or unmaintained for a period of at least 
3 90 days;

4  (8) the resident's roommate's signed consent, if 
5 applicable;

6  (9) a release of the facility from any liability 
7 associated with the electronic monitoring; the release 
8 must be signed by the resident and the resident's roommate, 
9 if applicable; and

10  (10) a waiver of the resident's and resident's 
11 roommate's rights to privacy regarding the use of the 
12 electronic monitoring device; the waiver must be signed by 
13 the resident and the resident's roommate, if any.

14 (c) The resident is responsible for posting and
maintaining 
15a sign at the front of the facility notifying the general 
16public that electronic monitoring devices are operational in 
17the facility. The resident is responsible for posting and 
18maintaining a sign on the resident's room notifying staff and 
19visitors of the presence of an electronic monitoring device. 
20The size, material, font size and style, and the message of the 
21sign shall be established by the Department by rule.

22 Section 35. Cost associated with electronic monitoring. 
23The cost of the equipment, tapes, installation of the 
24equipment, maintenance of the equipment, and removal of the 
25equipment shall be the responsibility of the resident or the 
 
 
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1resident's family. The income of a resident who is receiving 
2medical assistance under Article V of the Illinois Public Aid 
3Code may not be used.


4 Section 40. Unauthorized use of video recordings. 
5Information and images gathered may not be used in a criminal, 
6civil, or administrative action if: (1) the electronic 
7monitoring device was used without the knowledge and consent of 
8the facility, the resident, or the resident's roommate, if any, 
9in violation of this Act or facility policy; (2) each image 
10does not have a date and time stamp; or (3) the tape was 
11edited, enhanced, or taken from the original format and 
12altered. Prior to use in a criminal, civil, or administrative 
13action, any and all residents appearing on the tape must give 
14express written consent.


15 Section 99. Effective date. This Act takes effect upon 
16becoming law.