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| [ Introduced ] | [ Engrossed ] | [ Senate Amendment 001 ] |
92_HB3003enr HB3003 Enrolled LRB9200950ARcd 1 AN ACT regarding abused and neglected residents of long 2 term care facilities. 3 Be it enacted by the People of the State of Illinois, 4 represented in the General Assembly: 5 Section 5. The Abused and Neglected Long Term Care 6 Facility Residents Reporting Act is amended by changing 7 Sections 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, and 6.8 as follows: 8 (210 ILCS 30/6.2) (from Ch. 111 1/2, par. 4166.2) 9 (Section scheduled to be repealed on January 1, 2002) 10 Sec. 6.2. Inspector General. 11 (a) The Governor shall appoint, and the Senate shall 12 confirm, an Inspector General who shall function within the 13 Department of Human Services and report to the Secretary of 14 Human Services and the Governor. The Inspector General shall 15 investigate reports of suspected abuse or neglect (as those 16 terms are defined in Section 3 of this Act) of patients or 17 residents in any mental health or developmental disabilities 18 facility operated by the Department of Human Services and 19 shall have authority to investigate and take immediate action 20 on reports of abuse or neglect of recipients, whether 21 patients or residents, in any mental health or developmental 22 disabilities facility or program that is licensed or 23 certified by the Department of Human Services (as successor 24 to the Department of Mental Health and Developmental 25 Disabilities) or that is funded by the Department of Human 26 Services (as successor to the Department of Mental Health and 27 Developmental Disabilities) and is not licensed or certified 28 by any agency of the State. At the specific, written request 29 of an agency of the State other than the Department of Human 30 Services (as successor to the Department of Mental Health and 31 Developmental Disabilities), the Inspector General may HB3003 Enrolled -2- LRB9200950ARcd 1 cooperate in investigating reports of abuse and neglect of 2 persons with mental illness or persons with developmental 3 disabilities. The Inspector General shall have no 4 supervision over or involvement in routine, programmatic, 5 licensure, or certification operations of the Department of 6 Human Services or any of its funded agencies. 7 The Inspector General shall promulgate rules establishing 8 minimum requirements for reporting allegations of abuse and 9 neglect and initiating, conducting, and completing 10 investigations. The promulgated rules shall clearly set 11 forth that in instances where 2 or more State agencies could 12 investigate an allegation of abuse or neglect, the Inspector 13 General shall not conduct an investigation that is redundant 14 to an investigation conducted by another State agency. The 15 rules shall establish criteria for determining, based upon 16 the nature of the allegation, the appropriate method of 17 investigation, which may include, but need not be limited to, 18 site visits, telephone contacts, or requests for written 19 responses from agencies. The rules shall also clarify how 20 the Office of the Inspector General shall interact with the 21 licensing unit of the Department of Human Services in 22 investigations of allegations of abuse or neglect. Any 23 allegations or investigations of reports made pursuant to 24 this Act shall remain confidential until a final report is 25 completed. The resident or patient who allegedly was abused 26 or neglected and his or her legal guardian shall be informed 27 by the facility or agency of the report of alleged abuse or 28 neglect. Final reports regarding unsubstantiated or unfounded 29 allegations shall remain confidential, except that final 30 reports may be disclosed pursuant to Section 6 of this Act. 31 The Inspector General shall be appointed for a term of 4 32 years. 33 (b) The Inspector General shall within 24 hours after 34 receiving a report of suspected abuse or neglect determine HB3003 Enrolled -3- LRB9200950ARcd 1 whether the evidence indicates that any possible criminal act 2 has been committed. If he determines that a possible criminal 3 act has been committed, or that special expertise is required 4 in the investigation, he shall immediately notify the 5 Department of State Police. The Department of State Police 6 shall investigate any report indicating a possible murder, 7 rape, or other felony. All investigations conducted by the 8 Inspector General shall be conducted in a manner designed to 9 ensure the preservation of evidence for possible use in a 10 criminal prosecution. 11 (b-5) The Inspector General shall make a determination 12 to accept or reject a preliminary report of the investigation 13 of alleged abuse or neglect based on established 14 investigative procedures. The facility or agency may request 15 clarification or reconsideration based on additional 16 information. For cases where the allegation of abuse or 17 neglect is substantiated, the Inspector General shall require 18 the facility or agency to submit a written response. The 19 written response from a facility or agency shall address in a 20 concise and reasoned manner the actions that the agency or 21 facility will take or has taken to protect the resident or 22 patient from abuse or neglect, prevent reoccurrences, and 23 eliminate problems identified and shall include 24 implementation and completion dates for all such action. 25 (c) The Inspector General shall, within 10 calendar days 26 after the transmittal date of a completed investigation where 27 abuse or neglect is substantiated or administrative action is 28 recommended, provide a complete report on the case to the 29 Secretary of Human Services and to the agency in which the 30 abuse or neglect is alleged to have happened. The complete 31 report shall include a written response from the agency or 32 facility operated by the State to the Inspector General that 33 addresses in a concise and reasoned manner the actions that 34 the agency or facility will take or has taken to protect the HB3003 Enrolled -4- LRB9200950ARcd 1 resident or patient from abuse or neglect, prevent 2 reoccurrences, and eliminate problems identified and shall 3 include implementation and completion dates for all such 4 action. The Secretary of Human Services shall accept or 5 reject the response and establish how the Department will 6 determine whether the facility or program followed the 7 approved response. The Secretary may require Department 8 personnel to visit the facility or agency for training, 9 technical assistance, programmatic, licensure, or 10 certification purposes. Administrative action, including 11 sanctions, may be applied should the Secretary reject the 12 response or should the facility or agency fail to follow the 13 approved response. The facility or agency shall inform the 14 resident or patient and the legal guardian whether the 15 reported allegation was substantiated, unsubstantiated, or 16 unfounded. There shall be an appeals process for any person 17 or agency that is subject to any action based on a 18 recommendation or recommendations. 19 (d) The Inspector General may recommend to the 20 Departments of Public Health and Human Services sanctions to 21 be imposed against mental health and developmental 22 disabilities facilities under the jurisdiction of the 23 Department of Human Services for the protection of residents, 24 including appointment of on-site monitors or receivers, 25 transfer or relocation of residents, and closure of units. 26 The Inspector General may seek the assistance of the Attorney 27 General or any of the several State's attorneys in imposing 28 such sanctions. 29 (e) The Inspector General shall establish and conduct 30 periodic training programs for Department employees 31 concerning the prevention and reporting of neglect and abuse. 32 (f) The Inspector General shall at all times be granted 33 access to any mental health or developmental disabilities 34 facility operated by the Department, shall establish and HB3003 Enrolled -5- LRB9200950ARcd 1 conduct unannounced site visits to those facilities at least 2 once annually, and shall be granted access, for the purpose 3 of investigating a report of abuse or neglect, to any 4 facility or program funded by the Department that is subject 5 under the provisions of this Section to investigation by the 6 Inspector General for a report of abuse or neglect. 7 (g) Nothing in this Section shall limit investigations 8 by the Department of Human Services that may otherwise be 9 required by law or that may be necessary in that Department's 10 capacity as the central administrative authority responsible 11 for the operation of State mental health and developmental 12 disability facilities. 13 (h) This Section is repealed on January 1, 20042002. 14 (Source: P.A. 90-252, eff. 7-29-97; 90-512, eff. 8-22-97; 15 90-655, eff. 7-30-98; 91-169, eff. 7-16-99.) 16 (210 ILCS 30/6.3) (from Ch. 111 1/2, par. 4166.3) 17 (Section scheduled to be repealed on January 1, 2002) 18 Sec. 6.3. Quality Care Board. There is created, within 19 the Department of Human Services' Office of the Inspector 20 General, a Quality Care Board to be composed of 7 members 21 appointed by the Governor with the advice and consent of the 22 Senate. One of the members shall be designated as chairman 23 by the Governor. Of the initial appointments made by the 24 Governor, 4 Board members shall each be appointed for a term 25 of 4 years and 3 members shall each be appointed for a term 26 of 2 years. Upon the expiration of each member's term, a 27 successor shall be appointed for a term of 4 years. In the 28 case of a vacancy in the office of any member, the Governor 29 shall appoint a successor for the remainder of the unexpired 30 term. 31 Members appointed by the Governor shall be qualified by 32 professional knowledge or experience in the area of law, 33 investigatory techniques, or in the area of care of the HB3003 Enrolled -6- LRB9200950ARcd 1 mentally ill or developmentally disabled. Two members 2 appointed by the Governor shall be persons with a disability 3 or a parent of a person with a disability. Members shall 4 serve without compensation, but shall be reimbursed for 5 expenses incurred in connection with the performance of their 6 duties as members. 7 The Board shall meet quarterly, and may hold other 8 meetings on the call of the chairman. Four members shall 9 constitute a quorum. The Board may adopt rules and 10 regulations it deems necessary to govern its own procedures. 11 This Section is repealed on January 1, 20042002. 12 (Source: P.A. 91-169, eff. 7-16-99.) 13 (210 ILCS 30/6.4) (from Ch. 111 1/2, par. 4166.4) 14 (Section scheduled to be repealed on January 1, 2002) 15 Sec. 6.4. Scope and function of the Quality Care Board. 16 The Board shall monitor and oversee the operations, policies, 17 and procedures of the Inspector General to assure the prompt 18 and thorough investigation of allegations of neglect and 19 abuse. In fulfilling these responsibilities, the Board may 20 do the following: 21 (1) Provide independent, expert consultation to the 22 Inspector General on policies and protocols for 23 investigations of alleged neglect and abuse. 24 (2) Review existing regulations relating to the 25 operation of facilities under the control of the 26 Department. 27 (3) Advise the Inspector General as to the content 28 of training activities authorized under Section 6.2. 29 (4) Recommend policies concerning methods for 30 improving the intergovernmental relationships between the 31 office of the Inspector General and other State or 32 federal agencies. 33 This Section is repealed on January 1, 20042002. HB3003 Enrolled -7- LRB9200950ARcd 1 (Source: P.A. 91-169, eff. 7-16-99.) 2 (210 ILCS 30/6.5) (from Ch. 111 1/2, par. 4166.5) 3 (Section scheduled to be repealed on January 1, 2002) 4 Sec. 6.5. Investigators. Within 60 days after the 5 effective date of this amendatory Act of 1992, the Inspector 6 General shall establish a comprehensive program to ensure 7 that every person employed or newly hired to conduct 8 investigations shall receive training on an on-going basis 9 concerning investigative techniques, communication skills, 10 and the appropriate means of contact with persons admitted or 11 committed to the mental health or developmental disabilities 12 facilities under the jurisdiction of the Department of Human 13 Services. 14 This Section is repealed on January 1, 20042002. 15 (Source: P.A. 91-169, eff. 7-16-99.) 16 (210 ILCS 30/6.6) (from Ch. 111 1/2, par. 4166.6) 17 (Section scheduled to be repealed on January 1, 2002) 18 Sec. 6.6. Subpoenas; testimony; penalty. The Inspector 19 General shall have the power to subpoena witnesses and compel 20 the production of books and papers pertinent to an 21 investigation authorized by this Act, provided that the power 22 to subpoena or to compel the production of books and papers 23 shall not extend to the person or documents of a labor 24 organization or its representatives insofar as the person or 25 documents of a labor organization relate to the function of 26 representing an employee subject to investigation under this 27 Act. Mental health records of patients shall be confidential 28 as provided under the Mental Health and Developmental 29 Disabilities Confidentiality Act. Any person who fails to 30 appear in response to a subpoena or to answer any question or 31 produce any books or papers pertinent to an investigation 32 under this Act, except as otherwise provided in this Section, HB3003 Enrolled -8- LRB9200950ARcd 1 or who knowingly gives false testimony in relation to an 2 investigation under this Act is guilty of a Class A 3 misdemeanor. 4 This Section is repealed on January 1, 20042002. 5 (Source: P.A. 91-169, eff. 7-16-99.) 6 (210 ILCS 30/6.7) (from Ch. 111 1/2, par. 4166.7) 7 (Section scheduled to be repealed on January 1, 2002) 8 Sec. 6.7. Annual report. The Inspector General shall 9 provide to the General Assembly and the Governor, no later 10 than January 1 of each year, a summary of reports and 11 investigations made under this Act for the prior fiscal year 12 with respect to residents of institutions under the 13 jurisdiction of the Department. The report shall detail the 14 imposition of sanctions and the final disposition of those 15 recommendations. The summaries shall not contain any 16 confidential or identifying information concerning the 17 subjects of the reports and investigations. The report shall 18 also include a trend analysis of the number of reported 19 allegations and their disposition, for each facility and 20 Department-wide, for the most recent 3-year time period and a 21 statement, for each facility, of the staffing-to-patient 22 ratios. The ratios shall include only the number of direct 23 care staff. The report shall also include detailed 24 recommended administrative actions and matters for 25 consideration by the General Assembly. 26 This Section is repealed on January 1, 20042002. 27 (Source: P.A. 91-169, eff. 7-16-99.) 28 (210 ILCS 30/6.8) (from Ch. 111 1/2, par. 4166.8) 29 (Section scheduled to be repealed on January 1, 2002) 30 Sec. 6.8. Program audit. The Auditor General shall 31 conduct a biennial program audit of the office of the 32 Inspector General in relation to the Inspector General's HB3003 Enrolled -9- LRB9200950ARcd 1 compliance with this Act. The audit shall specifically 2 include the Inspector General's effectiveness in 3 investigating reports of alleged neglect or abuse of 4 residents in any facility operated by the Department and in 5 making recommendations for sanctions to the Departments of 6 Human Services and Public Health. The Auditor General shall 7 conduct the program audit according to the provisions of the 8 Illinois State Auditing Act and shall report its findings to 9 the General Assembly no later than January 1 of each 10 odd-numbered year. 11 This Section is repealed on January 1, 20042002. 12 (Source: P.A. 91-169, eff. 7-16-99.). 13 Section 10. The Mental Health and Developmental 14 Disabilities Confidentiality Act is amended by changing 15 Section 10 as follows: 16 (740 ILCS 110/10) (from Ch. 91 1/2, par. 810) 17 Sec. 10. (a) Except as provided herein, in any civil, 18 criminal, administrative, or legislative proceeding, or in 19 any proceeding preliminary thereto, a recipient, and a 20 therapist on behalf and in the interest of a recipient, has 21 the privilege to refuse to disclose and to prevent the 22 disclosure of the recipient's record or communications. 23 (1) Records and communications may be disclosed in 24 a civil, criminal or administrative proceeding in which 25 the recipient introduces his mental condition or any 26 aspect of his services received for such condition as an 27 element of his claim or defense, if and only to the 28 extent the court in which the proceedings have been 29 brought, or, in the case of an administrative proceeding, 30 the court to which an appeal or other action for review 31 of an administrative determination may be taken, finds, 32 after in camera examination of testimony or other HB3003 Enrolled -10- LRB9200950ARcd 1 evidence, that it is relevant, probative, not unduly 2 prejudicial or inflammatory, and otherwise clearly 3 admissible; that other satisfactory evidence is 4 demonstrably unsatisfactory as evidence of the facts 5 sought to be established by such evidence; and that 6 disclosure is more important to the interests of 7 substantial justice than protection from injury to the 8 therapist-recipient relationship or to the recipient or 9 other whom disclosure is likely to harm. Except in a 10 criminal proceeding in which the recipient, who is 11 accused in that proceeding, raises the defense of 12 insanity, no record or communication between a therapist 13 and a recipient shall be deemed relevant for purposes of 14 this subsection, except the fact of treatment, the cost 15 of services and the ultimate diagnosis unless the party 16 seeking disclosure of the communication clearly 17 establishes in the trial court a compelling need for its 18 production. However, for purposes of this Act, in any 19 action brought or defended under the Illinois Marriage 20 and Dissolution of Marriage Act, or in any action in 21 which pain and suffering is an element of the claim, 22 mental condition shall not be deemed to be introduced 23 merely by making such claim and shall be deemed to be 24 introduced only if the recipient or a witness on his 25 behalf first testifies concerning the record or 26 communication. 27 (2) Records or communications may be disclosed in a 28 civil proceeding after the recipient's death when the 29 recipient's physical or mental condition has been 30 introduced as an element of a claim or defense by any 31 party claiming or defending through or as a beneficiary 32 of the recipient, provided the court finds, after in 33 camera examination of the evidence, that it is relevant, 34 probative, and otherwise clearly admissible; that other HB3003 Enrolled -11- LRB9200950ARcd 1 satisfactory evidence is not available regarding the 2 facts sought to be established by such evidence; and that 3 disclosure is more important to the interests of 4 substantial justice than protection from any injury which 5 disclosure is likely to cause. 6 (3) In the event of a claim made or an action filed 7 by a recipient, or, following the recipient's death, by 8 any party claiming as a beneficiary of the recipient for 9 injury caused in the course of providing services to such 10 recipient, the therapist and other persons whose actions 11 are alleged to have been the cause of injury may disclose 12 pertinent records and communications to an attorney or 13 attorneys engaged to render advice about and to provide 14 representation in connection with such matter and to 15 persons working under the supervision of such attorney or 16 attorneys, and may testify as to such records or 17 communication in any administrative, judicial or 18 discovery proceeding for the purpose of preparing and 19 presenting a defense against such claim or action. 20 (4) Records and communications made to or by a 21 therapist in the course of examination ordered by a court 22 for good cause shown may, if otherwise relevant and 23 admissible, be disclosed in a civil, criminal, or 24 administrative proceeding in which the recipient is a 25 party or in appropriate pretrial proceedings, provided 26 such court has found that the recipient has been as 27 adequately and as effectively as possible informed before 28 submitting to such examination that such records and 29 communications would not be considered confidential or 30 privileged. Such records and communications shall be 31 admissible only as to issues involving the recipient's 32 physical or mental condition and only to the extent that 33 these are germane to such proceedings. 34 (5) Records and communications may be disclosed in HB3003 Enrolled -12- LRB9200950ARcd 1 a proceeding under the Probate Act of 1975, to determine 2 a recipient's competency or need for guardianship, 3 provided that the disclosure is made only with respect to 4 that issue. 5 (6) Records and communications may be disclosed 6 when such are made during treatment which the recipient 7 is ordered to undergo to render him fit to stand trial on 8 a criminal charge, provided that the disclosure is made 9 only with respect to the issue of fitness to stand trial. 10 (7) Records and communications of the recipient may 11 be disclosed in any civil or administrative proceeding 12 involving the validity of or benefits under a life, 13 accident, health or disability insurance policy or 14 certificate, or Health Care Service Plan Contract, 15 insuring the recipient, but only if and to the extent 16 that the recipient's mental condition, or treatment or 17 services in connection therewith, is a material element 18 of any claim or defense of any party, provided that 19 information sought or disclosed shall not be redisclosed 20 except in connection with the proceeding in which 21 disclosure is made. 22 (8) Records or communications may be disclosed when 23 such are relevant to a matter in issue in any action 24 brought under this Act and proceedings preliminary 25 thereto, provided that any information so disclosed shall 26 not be utilized for any other purpose nor be redisclosed 27 except in connection with such action or preliminary 28 proceedings. 29 (9) Records and communications of the recipient may 30 be disclosed in investigations of and trials for homicide 31 when the disclosure relates directly to the fact or 32 immediate circumstances of the homicide. 33 (10) Records and communications of a deceased 34 recipient may be disclosed to a coroner conducting a HB3003 Enrolled -13- LRB9200950ARcd 1 preliminary investigation into the recipient's death 2 under Section 3-3013 of the Counties Code. However, 3 records and communications of the deceased recipient 4 disclosed in an investigation shall be limited solely to 5 the deceased recipient's records and communications 6 relating to the factual circumstances of the incident 7 being investigated in a mental health facility. 8 (11) Records and communications of a recipient 9 shall be disclosed in a proceeding where a petition or 10 motion is filed under the Juvenile Court Act of 1987 and 11 the recipient is named as a parent, guardian, or legal 12 custodian of a minor who is the subject of a petition for 13 wardship as described in Section 2-3 of that Act or a 14 minor who is the subject of a petition for wardship as 15 described in Section 2-4 of that Act alleging the minor 16 is abused, neglected, or dependent or the recipient is 17 named as a parent of a child who is the subject of a 18 petition, supplemental petition, or motion to appoint a 19 guardian with the power to consent to adoption under 20 Section 2-29 of the Juvenile Court Act of 1987. 21 (b) Before a disclosure is made under subsection (a), 22 any party to the proceeding or any other interested person 23 may request an in camera review of the record or 24 communications to be disclosed. The court or agency 25 conducting the proceeding may hold an in camera review on its 26 own motion. When, contrary to the express wish of the 27 recipient, the therapist asserts a privilege on behalf and in 28 the interest of a recipient, the court may require that the 29 therapist, in an in camera hearing, establish that disclosure 30 is not in the best interest of the recipient. The court or 31 agency may prevent disclosure or limit disclosure to the 32 extent that other admissible evidence is sufficient to 33 establish the facts in issue. The court or agency may enter 34 such orders as may be necessary in order to protect the HB3003 Enrolled -14- LRB9200950ARcd 1 confidentiality, privacy, and safety of the recipient or of 2 other persons. Any order to disclose or to not disclose 3 shall be considered a final order for purposes of appeal and 4 shall be subject to interlocutory appeal. 5 (c) A recipient's records and communications may be 6 disclosed to a duly authorized committee, commission or 7 subcommittee of the General Assembly which possesses subpoena 8 and hearing powers, upon a written request approved by a 9 majority vote of the committee, commission or subcommittee 10 members. The committee, commission or subcommittee may 11 request records only for the purposes of investigating or 12 studying possible violations of recipient rights. The 13 request shall state the purpose for which disclosure is 14 sought. 15 The facility shall notify the recipient, or his guardian, 16 and therapist in writing of any disclosure request under this 17 subsection within 5 business days after such request. Such 18 notification shall also inform the recipient, or guardian, 19 and therapist of their right to object to the disclosure 20 within 10 business days after receipt of the notification and 21 shall include the name, address and telephone number of the 22 committee, commission or subcommittee member or staff person 23 with whom an objection shall be filed. If no objection has 24 been filed within 15 business days after the request for 25 disclosure, the facility shall disclose the records and 26 communications to the committee, commission or subcommittee. 27 If an objection has been filed within 15 business days after 28 the request for disclosure, the facility shall disclose the 29 records and communications only after the committee, 30 commission or subcommittee has permitted the recipient, 31 guardian or therapist to present his objection in person 32 before it and has renewed its request for disclosure by a 33 majority vote of its members. 34 Disclosure under this subsection shall not occur until HB3003 Enrolled -15- LRB9200950ARcd 1 all personally identifiable data of the recipient and 2 provider are removed from the records and communications. 3 Disclosure under this subsection shall not occur in any 4 public proceeding. 5 (d) No party to any proceeding described under 6 paragraphs (1), (2), (3), (4), (7), or (8) of subsection (a) 7 of this Section, nor his or her attorney, shall serve a 8 subpoena seeking to obtain access to records or 9 communications under this Act unless the subpoena is 10 accompanied by a written order issued by a judge, authorizing 11 the disclosure of the records or the issuance of the 12 subpoena. No person shall comply with a subpoena for records 13 or communications under this Act, unless the subpoena is 14 accompanied by a written order authorizing the issuance of 15 the subpoena or the disclosure of the records. 16 (e) When a person has been transported by a peace 17 officer to a mental health facility, then upon the request of 18 a peace officer, if the person is allowed to leave the mental 19 health facility within 48 hours of arrival, excluding 20 Saturdays, Sundays, and holidays, the facility director shall 21 notify the local law enforcement authority prior to the 22 release of the person. The local law enforcement authority 23 may re-disclose the information as necessary to alert the 24 appropriate enforcement or prosecuting authority. 25 (f) A recipient's records and communications shall be 26 disclosed to the Inspector General of the Department of Human 27 Services within 10 business days of a request by the 28 Inspector General in the course of an investigation 29 authorized by the Abused and Neglected Long Term Care 30 Facility Residents Reporting Act and applicable rule. The 31 request shall be in writing and signed by the Inspector 32 General or his or her designee. The request shall state the 33 purpose for which disclosure is sought. Any person who 34 knowingly and willfully refuses to comply with such a request HB3003 Enrolled -16- LRB9200950ARcd 1 is guilty of a Class A misdemeanor. 2 (Source: P.A. 90-608, eff. 6-30-98; 91-726, eff. 6-2-00.) 3 Section 99. Effective date. This Act takes effect upon 4 becoming law.