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Authorized Electronic Monitoring: New IDPH Regulations Create Additional Requirements for Long-Term Authorized Electronic Monitoring: New IDPH Regulations Create Additional Requirements for Long-Term

Authorized Electronic Monitoring: New IDPH Regulations Create Additional Requirements for Long-Term Care

Illinois was one of the first states to explicitly allow authorized electronic monitoring (AEM devices, or so-called ‘granny cams’) to record residents in long-term care facilities. The Authorized Electronic Monitoring in Long-Term Care Facilities Act (the “Act”) was enacted effective January 1, 2016. Although the Act required IDPH to write rules for AEM devices, IDPH did not roll out those rules until January 27, 2022. Found at 77 Illinois Administrative Code, Part 389, the rules largely copy-and-paste the Act, but there are five important additions.

1) Expanded Scope to Assisted Living and Supportive Living

The Act originally applied to facilities licensed under the Nursing Home Care Act, the MC/DD Act, and the ID/DD Community Care Act (with 30 or more beds), and, ambiguously, to a “facility that provides housing to individuals with dementia, as defined in Section 3 of the Alzheimer's Disease Assistance Act.” IDPH’s rules specifically add Alzheimer’s units in assisted living establishments and supportive living programs with dementia units to the definition. Therefore, assisted living providers with Alzheimer’s special care units and supportive living facilities with dementia units now must allow AEM devices, according to the conditions of the Act and these new regulations.

2) Conditions and Costs for AEM Device Installation

The Act requires requesting residents to bear the burden of purchasing and installing an AEM device, including separate internet service. The new rules take it even farther by allowing facilities to place more cost and installation conditions as contract terms. Now, facilities may require that an AEM device be installed by a licensed contractor, charge a resident a damage deposit, make a resident pay to correct installation errors that violate building codes and repair costs after removal, and even remove and confiscate an AEM device installed in violation of the Act or rules or noncompliant with building codes.

3) Signage Requirements

Under the Act, facilities that have an AEM device in use must post signs at the building entrances and the door to a resident room with the device. Now IDPH requires that the facilities’ entrance signs be at least 8 ½” x 11” and the resident room door sign be at least 5” x 7”. Further, all those signs must have new language about parameters for an AEM device to be turned off.  

4) Turning Off an AEM Device

Consistent with the Act, an AEM device must be turned off when a resident (or resident’s roommate) requests it for a situation or rescinds a previous consent for recording. But under the new regulations, the AEM device must be turned off by the resident or the resident’s representative who authorized the recording. Only if the resident or resident’s representative fails to take the step of turning off the device may the facility then turn off the device. Pursuant to the Act, the withdrawal of consent and turning off of the AEM device needed to be documented, but the regulations specify that the “date, time, and reason” be noted and entered into the clinical record within 24 hours.

5) Enforcement

The new rules state that IDPH will pass on complaints about violation of the Act and regulations to the Attorney General for enforcement. The Act has always set out criminal penalties for knowingly obstructing an AEM device. We will watch to see if this new rule means that IDPH wants to shift all enforcement to the Attorney General’s office, or if the two government entities are both active on AEM device enforcement.

For further information about AEM devices, the Act, or the new rules, please contact Jason Lundy

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
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