HB3166 97TH GENERAL ASSEMBLY

LRB097 05331 AJO 46202 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB3166

Introduced 2/24/2011, by Rep. Michael G. Connelly

SYNOPSIS AS INTRODUCED:

New Act

Creates the Health Courts Act. Establishes the Illinois Health Courts Commission with 10 members appointed by the Governor, by and with the consent of the Senate, of which: 3 are representatives of hospitals; 3 are representatives of physicians; and 4 are citizen representatives, with one designated as chairman by the Governor. Provides for the staffing and the operation of the Commission. Establishes arbitrator qualifications, appointments and training procedures. Provides that arbitrators are subject to the Personnel Code. Provides that the Commission shall adopt rules to create an alternative dispute resolution method that provides: after the occurrence of an adverse health care event, the health care professional or health care provider involved must notify the patient or the patient's family, within 30 days after the discovery of the adverse event, that the patient has a right to seek compensation; following this, the patient may submit a claim; the health care professional or provider must notify the health court commission of the claim and provide a compensability determination to the patient within 60 days; if the event is compensable, the health care professional or provider must make an offer based upon a schedule of damages created by the Commission by rule; a patient may appeal that compensation decision to the Commission; the patient may appeal a decision to not compensate the patient for the claim, which is reviewed by an arbitrator, de novo, at a hearing at which the health care professional or provider and the patient may present evidence, including expert testimony; and the arbitrator's decision may be appealed to the appellate court. Provides that the Commission shall issue an annual report. Includes other provisions.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning health courts.

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

Section 1. Short title. This Act may be cited as the Health Courts Act.

Section 5. Illinois Health Courts Commission. There is created the Illinois Health Courts Commission consisting of 10 members to be appointed by the Governor, by and with the consent of the Senate, 3 of whom shall be representatives of hospitals, 3 of whom shall be representatives of physicians, and 4 of whom shall be representative citizens not identified with either hospitals or physicians.

One of the representative citizen members shall be designated by the Governor as chairman. The chairman shall be the chief administrative and executive officer of the Commission; he or she shall have general supervisory authority over all personnel of the Commission, including arbitrators and commissioners, and the final authority in all administrative matters relating to the commissioners, including but not limited to the assignment and distribution of cases and the assignment of commissioners to the panels, except in the promulgation of procedural rules and orders and in the determination of cases under the Act.

Notwithstanding the general supervisory authority of the chairman, each commissioner, except those assigned to the temporary panel, shall have the authority to hire and supervise 2 staff attorneys. The staff attorneys shall report directly to the individual commissioner.

A formal training program for newly-appointed commissioners shall be implemented. The training program shall include the following:

(1) substantive and procedural aspects of the office of commissioner;

(2) current issues in professional liability law and practice;

(3) medical lectures by specialists in areas including but not limited to orthopedics, ophthalmology, psychiatry, and rehabilitation counseling;

(4) orientation to each operational unit of the Illinois Health Courts Commission;

(5) observation of experienced arbitrators and commissioners conducting hearings, combined with the opportunity to discuss evidence presented and rulings made;

(6) the use of hypothetical cases requiring the newly-appointed commissioner to issue judgments as a means to evaluate knowledge and writing ability; and

(7) a writing skills course.

A formal and ongoing professional development program including, but not limited to, the training program areas described in items (1) through (7) in this Section shall be implemented to keep the commissioners informed of recent developments and issues and to assist them in maintaining and enhancing their professional competence.

In case of a vacancy in the office of a commissioner during a recess of the Senate, the Governor shall make a temporary appointment until the next meeting of the Senate, when he or she shall nominate some person to fill the office. Any person so nominated who is confirmed by the Senate shall hold office during the remainder of the term and until his or her successor is appointed and qualified.

Notwithstanding any other provision of this Act, in the event that the chairman makes a finding that a member is or will be unable to fulfill the responsibilities of his or her office, the chairman shall advise the Governor and the member in writing and shall designate a certified arbitrator to serve as acting commissioner. The certified arbitrator shall act as a commissioner until the member resumes the duties of his or her office or, if a vacancy occurs in the office of the commissioner, until a new member is appointed by the Governor, by and with the consent of the Senate; but in no event shall a certified arbitrator serve in the capacity of commissioner for more than 6 months from the date of appointment by the chairman. A finding by the chairman that a member is or will be unable to fulfill the responsibilities of his or her office shall be based upon notice to the chairman by a member that he or she will be unable to fulfill the responsibilities of his or her office or facts and circumstances made known to the chairman which lead the chairman to reasonably find that a member is unable to fulfill the responsibilities of his or her office. A certified arbitrator designated to act as a commissioner shall be considered a representative of citizens. A certified arbitrator who serves as an acting commissioner shall have all the rights and powers of a commissioner, including salary.

The Commission may have an executive director; if so, the executive director shall be appointed by the Governor with the advice and consent of the Senate. The duties of the executive director include but are not limited to the general administration of the Commission. The salary of the executive director shall be fixed by the Commission.

Section 10. Commission employees. The Commission shall appoint a secretary, an assistant secretary, and arbitrators and shall employ such assistants and clerical help as may be necessary.

The arbitrator candidates must meet one of the following qualifications: (1) licensed to practice law in the State of Illinois; (2) served as an arbitrator at the Illinois Workers' Compensation Commission for at least 3 years; or (3) has at least 4 years of professional labor relations experience.

Each arbitrator appointed shall be required to demonstrate in writing his or her knowledge of and expertise in the law and judicial processes relevant to this Act.

A formal training program for newly-hired arbitrators shall be implemented. The training program shall include the following:

(1) substantive and procedural aspects of the arbitrator position;

(2) current issues in professional liability law and practice;

(3) medical lectures by specialists in areas such as orthopedics, ophthalmology, psychiatry, and rehabilitation counseling;

(4) orientation to each operational unit of the Illinois Health Courts Commission;

(5) observation of experienced arbitrators conducting hearings of cases, combined with the opportunity to discuss evidence presented and rulings made;

(6) the use of hypothetical cases requiring the trainee to issue judgments as a means to evaluating knowledge and writing ability; and

(7) a writing skills course.

A formal and ongoing professional development program including, but not limited to, the program areas described in items (1) through (7) in this Section shall be implemented to keep arbitrators informed of recent developments and issues and to assist them in maintaining and enhancing their professional competence.

Each arbitrator appointed after the effective date of this Act shall be appointed for a term of 6 years. Each arbitrator shall be appointed for a subsequent term unless the chairman makes a recommendation to the Commission, no later than 60 days prior to the expiration of the term, not to reappoint the arbitrator. Notice of the recommendation shall also be given to the arbitrator no later than 60 days prior to the expiration of the term. Upon the recommendation by the chairman, the arbitrator shall be appointed for a subsequent term unless 8 of 10 members of the Commission, including the chairman, vote not to reappoint the arbitrator.

All arbitrators shall be subject to the provisions of the Personnel Code, and the performance of all arbitrators shall be reviewed by the chairman on an annual basis. The chairman shall allow input from the commissioners in all such reviews.

The Commission shall provide itself with a seal for the authentication of its orders, awards and proceedings upon which shall be inscribed the name of the Commission and the words "Illinois-Seal".

The secretary or assistant secretary, under the direction of the Commission, shall have charge and custody of the seal of the Commission and also have charge and custody of all records, files, orders, proceedings, decisions, awards, and other documents on file with the Commission. The secretary or assistant secretary shall furnish certified copies, under the seal of the Commission, of any such records, files, orders, proceedings, decisions, awards, or other documents on file with the commission as may be required. Certified copies so furnished by the secretary or assistant secretary shall be received in evidence before the commission or any arbitrator thereof, and in all courts, provided that the original of such certified copy is otherwise competent and admissible in evidence. The secretary or assistant secretary shall perform such other duties as may be prescribed from time to time by the Commission.

Section 15. Health court dispute resolution. The Health Courts Commission shall adopt rules to create an alternative dispute resolution method that does the following:

(1) After the occurrence of an adverse event covered by this Act, the health care professional or health care provider must notify the patient and his or her family within 30 days after the discovery of the adverse event that he or she has a right to seek compensation.

(2) The patient must submit to the health care professional or health care provider, on forms prepared by the Commission and including all pertinent medical records, a claim describing the patient's account of the events. Although patients may involve legal counsel, it is not required.

(3) Once the health care professional or health care provider receives the claim, he or she must notify the Illinois Health Courts Commission that a claim has been made. The notification must include a copy of the initial claim.

(4) A health care professional or health care provider must make an initial compensability determination and respond to the patient within 60 days after the receipt of the claim. If the event is compensable, the health care professional or health care provider must make an offer. The standard for review shall be determined by rule. The patient must receive a written report from the health care professional or health care provider explaining his or her determination that the claim is compensable, is not compensable, or is of unknown compensability. After the health care professional or health care provider reaches his or her decision, the patient may review the documents consulted by the health care professional or health care provider. The written report must also be submitted to the Commission.

(5) If the health care professional or health care provider determines that a claim is compensable, a schedule of damages must guide the compensation figure.

(6) A patient may appeal the health care professional's or health care provider's compensation decision to the Commission within 30 days. If the Commission disagrees with the initial determination it may amend the patient's award.

(7) The patient may also appeal the initial decision to not compensate the claim to the Commission and request review by an arbitrator within 30 days. A claim shall be reviewed de novo using the same materials considered under the initial review. A hearing shall be held and the health care professional or provider and the patient may appear and present evidence. While a patient or a health care professional or provider may retain counsel, it is not necessary. Experts may give testimony.

(8) If a health care professional or health care provider cannot determine the compensability of the claim, an arbitrator for the Commission shall evaluate the claim. A patient need not file an appeal.

(9) If the arbitrator determines that the event is compensable, he or she must utilize the same schedule of damages as the health care professional or health care provider and also issue a written explanation for his or her determination.

(10) A patient may appeal the arbitrator's decision to the appellate court, which shall apply a deferential standard of review. The patient shall have access to all documents utilized by the arbitrator in rendering his or her decision.

(11) The arbitrator's written decision shall be stored in a searchable database. The database shall also include the general claim information from which identifying factors have been redacted.

(12) Illinois Health Courts Commission administrators must periodically contact a patient to determine whether the patient's compensation should be adjusted due to unanticipated reasons. A patient may also apply directly to the Commission for an adjustment.

Section 20. Rules. The Commission shall adopt rules in accordance with the Illinois Administrative Procedure Act including but not limited to dispute resolution time frames, official compensation, and the schedule of damages.

Section 25. Annual report. The Commission shall report in writing to the Governor on the 30th day of June, annually, the details and results of its administration of this Act, and may prepare and issue such special bulletins and reports from time to time as may seem advisable.