Rep. Chapin Rose

Filed: 3/24/2011

 

 


 

 


 
09700HB2362ham001LRB097 08788 AJO 53352 a

1
AMENDMENT TO HOUSE BILL 2362

2    AMENDMENT NO. ______. Amend House Bill 2362 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Mental Health and Developmental
5Disabilities Confidentiality Act is amended by changing
6Section 10 as follows:
 
7    (740 ILCS 110/10)  (from Ch. 91 1/2, par. 810)
8    Sec. 10. (a) Except as provided herein, in any civil,
9criminal, administrative, or legislative proceeding, or in any
10proceeding preliminary thereto, a recipient, and a therapist on
11behalf and in the interest of a recipient, has the privilege to
12refuse to disclose and to prevent the disclosure of the
13recipient's record or communications.
14        (1) Records and communications may be disclosed in a
15    civil, criminal or administrative proceeding in which the
16    recipient introduces his mental condition or any aspect of

 

 

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1    his services received for such condition as an element of
2    his claim or defense, if and only to the extent the court
3    in which the proceedings have been brought, or, in the case
4    of an administrative proceeding, the court to which an
5    appeal or other action for review of an administrative
6    determination may be taken, finds, after in camera
7    examination of testimony or other evidence, that it is
8    relevant, probative, not unduly prejudicial or
9    inflammatory, and otherwise clearly admissible; that other
10    satisfactory evidence is demonstrably unsatisfactory as
11    evidence of the facts sought to be established by such
12    evidence; and that disclosure is more important to the
13    interests of substantial justice than protection from
14    injury to the therapist-recipient relationship or to the
15    recipient or other whom disclosure is likely to harm.
16    Except in a criminal proceeding in which the recipient, who
17    is accused in that proceeding, raises the defense of
18    insanity, no record or communication between a therapist
19    and a recipient shall be deemed relevant for purposes of
20    this subsection, except the fact of treatment, the cost of
21    services and the ultimate diagnosis unless the party
22    seeking disclosure of the communication clearly
23    establishes in the trial court a compelling need for its
24    production. However, for purposes of this Act, in any
25    action brought or defended under the Illinois Marriage and
26    Dissolution of Marriage Act, or in any action in which pain

 

 

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1    and suffering is an element of the claim, mental condition
2    shall not be deemed to be introduced merely by making such
3    claim and shall be deemed to be introduced only if the
4    recipient or a witness on his behalf first testifies
5    concerning the record or communication.
6        (2) Records or communications may be disclosed in a
7    civil proceeding after the recipient's death when the
8    recipient's physical or mental condition has been
9    introduced as an element of a claim or defense by any party
10    claiming or defending through or as a beneficiary of the
11    recipient, provided the court finds, after in camera
12    examination of the evidence, that it is relevant,
13    probative, and otherwise clearly admissible; that other
14    satisfactory evidence is not available regarding the facts
15    sought to be established by such evidence; and that
16    disclosure is more important to the interests of
17    substantial justice than protection from any injury which
18    disclosure is likely to cause.
19        (3) In the event of a claim made or an action filed by
20    a recipient, or, following the recipient's death, by any
21    party claiming as a beneficiary of the recipient for injury
22    caused in the course of providing services to such
23    recipient, the therapist and other persons whose actions
24    are alleged to have been the cause of injury may disclose
25    pertinent records and communications to an attorney or
26    attorneys engaged to render advice about and to provide

 

 

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1    representation in connection with such matter and to
2    persons working under the supervision of such attorney or
3    attorneys, and may testify as to such records or
4    communication in any administrative, judicial or discovery
5    proceeding for the purpose of preparing and presenting a
6    defense against such claim or action.
7        (4) Records and communications made to or by a
8    therapist in the course of examination ordered by a court
9    for good cause shown may, if otherwise relevant and
10    admissible, be disclosed in a civil, criminal, or
11    administrative proceeding in which the recipient is a party
12    or in appropriate pretrial proceedings, provided such
13    court has found that the recipient has been as adequately
14    and as effectively as possible informed before submitting
15    to such examination that such records and communications
16    would not be considered confidential or privileged. Such
17    records and communications shall be admissible only as to
18    issues involving the recipient's physical or mental
19    condition and only to the extent that these are germane to
20    such proceedings.
21        (5) Records and communications may be disclosed in a
22    proceeding under the Probate Act of 1975, to determine a
23    recipient's competency or need for guardianship, provided
24    that the disclosure is made only with respect to that
25    issue.
26        (6) Records and communications may be disclosed when

 

 

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1    such are made during treatment which the recipient is
2    ordered to undergo to render him fit to stand trial on a
3    criminal charge, provided that the disclosure is made only
4    with respect to the issue of fitness to stand trial.
5    Records and communications made to or by a therapist in the
6    course of an assessment, diagnosis, screening, or
7    treatment at an outpatient facility, a residential
8    treatment facility, or a local jail or detention center may
9    be disclosed to a court-appointed therapist, psychologist,
10    or psychiatrist for use in determining a person's fitness
11    to stand trial. Such records and communications shall be
12    admissible only as to issues involving the recipient's
13    physical or mental condition and only to the extent that
14    these are germane to such proceedings.
15        (7) Records and communications of the recipient may be
16    disclosed in any civil or administrative proceeding
17    involving the validity of or benefits under a life,
18    accident, health or disability insurance policy or
19    certificate, or Health Care Service Plan Contract,
20    insuring the recipient, but only if and to the extent that
21    the recipient's mental condition, or treatment or services
22    in connection therewith, is a material element of any claim
23    or defense of any party, provided that information sought
24    or disclosed shall not be redisclosed except in connection
25    with the proceeding in which disclosure is made.
26        (8) Records or communications may be disclosed when

 

 

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1    such are relevant to a matter in issue in any action
2    brought under this Act and proceedings preliminary
3    thereto, provided that any information so disclosed shall
4    not be utilized for any other purpose nor be redisclosed
5    except in connection with such action or preliminary
6    proceedings.
7        (9) Records and communications of the recipient may be
8    disclosed in investigations of and trials for homicide when
9    the disclosure relates directly to the fact or immediate
10    circumstances of the homicide.
11        (10) Records and communications of a deceased
12    recipient may be disclosed to a coroner conducting a
13    preliminary investigation into the recipient's death under
14    Section 3-3013 of the Counties Code. However, records and
15    communications of the deceased recipient disclosed in an
16    investigation shall be limited solely to the deceased
17    recipient's records and communications relating to the
18    factual circumstances of the incident being investigated
19    in a mental health facility.
20        (11) Records and communications of a recipient shall be
21    disclosed in a proceeding where a petition or motion is
22    filed under the Juvenile Court Act of 1987 and the
23    recipient is named as a parent, guardian, or legal
24    custodian of a minor who is the subject of a petition for
25    wardship as described in Section 2-3 of that Act or a minor
26    who is the subject of a petition for wardship as described

 

 

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1    in Section 2-4 of that Act alleging the minor is abused,
2    neglected, or dependent or the recipient is named as a
3    parent of a child who is the subject of a petition,
4    supplemental petition, or motion to appoint a guardian with
5    the power to consent to adoption under Section 2-29 of the
6    Juvenile Court Act of 1987.
7        (12) Records and communications of a recipient may be
8    disclosed when disclosure is necessary to collect sums or
9    receive third party payment representing charges for
10    mental health or developmental disabilities services
11    provided by a therapist or agency to a recipient; however,
12    disclosure shall be limited to information needed to pursue
13    collection, and the information so disclosed may not be
14    used for any other purposes nor may it be redisclosed
15    except in connection with collection activities. Whenever
16    records are disclosed pursuant to this subdivision (12),
17    the recipient of the records shall be advised in writing
18    that any person who discloses mental health records and
19    communications in violation of this Act may be subject to
20    civil liability pursuant to Section 15 of this Act or to
21    criminal penalties pursuant to Section 16 of this Act or
22    both.
23    (b) Before a disclosure is made under subsection (a), any
24party to the proceeding or any other interested person may
25request an in camera review of the record or communications to
26be disclosed. The court or agency conducting the proceeding may

 

 

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1hold an in camera review on its own motion. When, contrary to
2the express wish of the recipient, the therapist asserts a
3privilege on behalf and in the interest of a recipient, the
4court may require that the therapist, in an in camera hearing,
5establish that disclosure is not in the best interest of the
6recipient. The court or agency may prevent disclosure or limit
7disclosure to the extent that other admissible evidence is
8sufficient to establish the facts in issue. The court or agency
9may enter such orders as may be necessary in order to protect
10the confidentiality, privacy, and safety of the recipient or of
11other persons. Any order to disclose or to not disclose shall
12be considered a final order for purposes of appeal and shall be
13subject to interlocutory appeal.
14    (c) A recipient's records and communications may be
15disclosed to a duly authorized committee, commission or
16subcommittee of the General Assembly which possesses subpoena
17and hearing powers, upon a written request approved by a
18majority vote of the committee, commission or subcommittee
19members. The committee, commission or subcommittee may request
20records only for the purposes of investigating or studying
21possible violations of recipient rights. The request shall
22state the purpose for which disclosure is sought.
23    The facility shall notify the recipient, or his guardian,
24and therapist in writing of any disclosure request under this
25subsection within 5 business days after such request. Such
26notification shall also inform the recipient, or guardian, and

 

 

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1therapist of their right to object to the disclosure within 10
2business days after receipt of the notification and shall
3include the name, address and telephone number of the
4committee, commission or subcommittee member or staff person
5with whom an objection shall be filed. If no objection has been
6filed within 15 business days after the request for disclosure,
7the facility shall disclose the records and communications to
8the committee, commission or subcommittee. If an objection has
9been filed within 15 business days after the request for
10disclosure, the facility shall disclose the records and
11communications only after the committee, commission or
12subcommittee has permitted the recipient, guardian or
13therapist to present his objection in person before it and has
14renewed its request for disclosure by a majority vote of its
15members.
16    Disclosure under this subsection shall not occur until all
17personally identifiable data of the recipient and provider are
18removed from the records and communications. Disclosure under
19this subsection shall not occur in any public proceeding.
20    (d) No party to any proceeding described under paragraphs
21(1), (2), (3), (4), (7), or (8) of subsection (a) of this
22Section, nor his or her attorney, shall serve a subpoena
23seeking to obtain access to records or communications under
24this Act unless the subpoena is accompanied by a written order
25issued by a judge, authorizing the disclosure of the records or
26the issuance of the subpoena. No such written order shall be

 

 

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1issued without written notice of the motion to the recipient
2and the treatment provider. Prior to issuance of the order,
3each party or other person entitled to notice shall be
4permitted an opportunity to be heard pursuant to subsection (b)
5of this Section. No person shall comply with a subpoena for
6records or communications under this Act, unless the subpoena
7is accompanied by a written order authorizing the issuance of
8the subpoena or the disclosure of the records. Each subpoena
9duces tecum issued by a court or administrative agency or
10served on any person pursuant to this subsection (d) shall
11include the following language: "No person shall comply with a
12subpoena for mental health records or communications pursuant
13to Section 10 of the Mental Health and Developmental
14Disabilities Confidentiality Act, 740 ILCS 110/10, unless the
15subpoena is accompanied by a written order that authorizes the
16issuance of the subpoena and the disclosure of records or
17communications."
18    (e) When a person has been transported by a peace officer
19to a mental health facility, then upon the request of a peace
20officer, if the person is allowed to leave the mental health
21facility within 48 hours of arrival, excluding Saturdays,
22Sundays, and holidays, the facility director shall notify the
23local law enforcement authority prior to the release of the
24person. The local law enforcement authority may re-disclose the
25information as necessary to alert the appropriate enforcement
26or prosecuting authority.

 

 

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1    (f) A recipient's records and communications shall be
2disclosed to the Inspector General of the Department of Human
3Services within 10 business days of a request by the Inspector
4General (i) in the course of an investigation authorized by the
5Department of Human Services Act and applicable rule or (ii)
6during the course of an assessment authorized by the Abuse of
7Adults with Disabilities Intervention Act and applicable rule.
8The request shall be in writing and signed by the Inspector
9General or his or her designee. The request shall state the
10purpose for which disclosure is sought. Any person who
11knowingly and willfully refuses to comply with such a request
12is guilty of a Class A misdemeanor. A recipient's records and
13communications shall also be disclosed pursuant to subsection
14(g-5) of Section 1-17 of the Department of Human Services Act
15in testimony at health care worker registry hearings or
16preliminary proceedings when such are relevant to the matter in
17issue, provided that any information so disclosed shall not be
18utilized for any other purpose nor be redisclosed except in
19connection with such action or preliminary proceedings.
20(Source: P.A. 96-406, eff. 8-13-09; 96-1399, eff. 7-29-10;
2196-1453, eff. 8-20-10.)".