Full Text of HB3479 100th General Assembly
HB3479sam005 100TH GENERAL ASSEMBLY | Sen. Andy Manar Filed: 5/25/2018
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| 1 | | AMENDMENT TO HOUSE BILL 3479
| 2 | | AMENDMENT NO. ______. Amend House Bill 3479 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 1. Short title. This Act may be cited as the | 5 | | Pharmacy Benefits Manager Licensing Act. | 6 | | Section 5. Definitions. As used in this Act: | 7 | | "Average reimbursement" means a statistical methodology | 8 | | selected by the Department through any rules adopted pursuant | 9 | | to this Section that shall include, at a minimum, the median | 10 | | and mean. | 11 | | "Department" means the Department of Insurance. | 12 | | "Director" means the Director of Insurance. | 13 | | "Person beneficially interested", with respect to an | 14 | | applicant for a pharmacy benefits manager license, means: | 15 | | (1) if the applicant is a partnership or other | 16 | | unincorporated association, each partner or member; |
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| 1 | | (2) if the applicant is a corporation, each of its | 2 | | officers, directors, and stockholders, except that a | 3 | | natural person shall not be deemed to be beneficially | 4 | | interested in a nonprofit corporation; or | 5 | | (3) if the applicant is a limited liability company, | 6 | | each officer, manager, or member. | 7 | | "Pharmacist" has the meaning given to the term in the | 8 | | Pharmacy Practice Act. | 9 | | "Pharmacy" has the meaning given to the term in the | 10 | | Pharmacy Practice Act. | 11 | | "Pharmacy benefits manager" means a person, business, or | 12 | | other entity that, pursuant to a contract or under an | 13 | | employment relationship with a plan sponsor, insurer, or other | 14 | | third-party payer, either directly or through an intermediary, | 15 | | manages the prescription drug coverage provided by the plan | 16 | | sponsor, insurer, or other third-party payer, including, but | 17 | | not limited to, the processing and payment of claims for | 18 | | prescription drugs, the performance of drug utilization | 19 | | review, the processing of drug prior authorization requests, | 20 | | the adjudication of appeals or grievances related to | 21 | | prescription drug coverage, contracting with network | 22 | | pharmacies, and controlling the cost of covered prescription | 23 | | drugs. | 24 | | "Pharmacy provider" means a pharmacy or pharmacist. | 25 | | "Proprietary information" means information on pricing, | 26 | | costs, revenue, taxes, market share, negotiating strategies, |
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| 1 | | customers, and personnel that is held by a pharmacy benefits | 2 | | manager and used for its business purposes. | 3 | | Section 10. Pharmacy benefits manager licensing | 4 | | requirements. | 5 | | (a) A pharmacy benefits manager shall be licensed by the | 6 | | Department before conducting business in this State. | 7 | | (b) A pharmacy benefits manager license under this Section | 8 | | is not transferable. | 9 | | (c) The Department shall develop, by rule, application | 10 | | forms for pharmacy benefits manager licensure. The application | 11 | | form for the pharmacy benefits manager license shall require | 12 | | the pharmacy benefits manager to submit all of the following | 13 | | information to the Department: | 14 | | (1) the name of the pharmacy benefits manager; | 15 | | (2) the address and contact telephone number for the | 16 | | pharmacy benefits manager; | 17 | | (3) the name and address of the pharmacy benefits | 18 | | manager's agent for service of process in this State; | 19 | | (4) the name and address of each person beneficially | 20 | | interested in the pharmacy benefits manager; and | 21 | | (5) the name and address of each person with management | 22 | | or control over the pharmacy benefits manager. | 23 | | (d) If the applicant is a partnership or other | 24 | | unincorporated association, a limited liability company, or a | 25 | | corporation and the number of partners, members, or |
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| 1 | | stockholders, as the case may be, exceeds 5, the application | 2 | | shall so state and shall further state the name, address, usual | 3 | | occupation, and professional qualifications of each of the 5 | 4 | | partners, members, or stockholders who own the 5 largest | 5 | | interests in the applicant entity. Upon request by the | 6 | | Department, the applicant shall furnish the Department with the | 7 | | name, address, usual occupation, and professional | 8 | | qualifications of partners, members, or stockholders not named | 9 | | in the application or shall refer the Department to an | 10 | | appropriate source of that information. | 11 | | (e) The application shall contain a statement to the effect | 12 | | that the applicant has not been convicted of a felony and has | 13 | | not violated any of the provisions of this Act. If the | 14 | | applicant cannot make this statement, the application shall | 15 | | contain a statement of the violation, if any, or reasons that | 16 | | prevent the applicant from being able to comply with the | 17 | | requirements with respect to the statement. | 18 | | (f) Within 30 days after a change in any of the information | 19 | | disclosed to the Department on an application for licensure, | 20 | | the pharmacy benefits manager shall notify the Department of | 21 | | that change in writing. | 22 | | (g) The Department may, by rule, set a fee for the license | 23 | | issued under this Act. The fee shall not exceed the actual | 24 | | costs incurred by the Department in carrying out its duties | 25 | | under this Act. |
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| 1 | | Section 15. Discipline; grounds. | 2 | | (a) The Director may refuse to issue, restore, or remove or | 3 | | may revoke, suspend, or place on probation a pharmacy benefits | 4 | | manager's license under any of the following circumstances: | 5 | | (1) The pharmacy benefits manager has engaged in | 6 | | fraudulent activity that constitutes a violation of State | 7 | | or federal law. | 8 | | (2) The Department has received consumer complaints | 9 | | that justify an action under this Section in order to | 10 | | protect the safety and interests of consumers. | 11 | | (3) The pharmacy benefits manager fails to pay an | 12 | | application fee for the license. | 13 | | (4) The pharmacy benefits manager fails to comply with | 14 | | a requirement set forth in Section 20 or 25. | 15 | | (b) The Department shall, by rule, develop procedures that | 16 | | provide a pharmacy benefits manager subject to discipline under | 17 | | subsection (a) with reasonable notice of, and an opportunity to | 18 | | respond to, the Department before taking that action. | 19 | | Section 20. Transparency requirements. | 20 | | (a) A pharmacy benefits manager contracting with a managed | 21 | | care organization to administer benefits provided under the | 22 | | State Employees Group Insurance Act of 1971 or the Illinois | 23 | | Public Aid Code shall provide the following information to the | 24 | | Department no later than March 31, 2019 and for each year | 25 | | thereafter for the previous calendar year that the pharmacy |
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| 1 | | benefits manager is contracted with a managed care organization | 2 | | to administer benefits: | 3 | | (1) the total amount paid to the pharmacy benefits | 4 | | manager by a managed care organization to administer | 5 | | benefits for each contract under which the pharmacy | 6 | | benefits manager is contracted to administer benefits | 7 | | under the State Employees Group Insurance Act of 1971 or | 8 | | the Illinois Public Aid Code; | 9 | | (2) the total amount paid in reimbursements to | 10 | | pharmacies licensed in Illinois for each contract under | 11 | | which the pharmacy benefits manager is contracted to | 12 | | administer benefits under the State Employees Group | 13 | | Insurance Act of 1971 or the Illinois Public Aid Code; | 14 | | (3) the average reimbursement per contract by drug | 15 | | ingredient cost, dispensing fee, and any other fee paid by | 16 | | a pharmacy benefits manager to licensed pharmacies with | 17 | | which the pharmacy benefits manager shares common | 18 | | ownership, management, or control; or that are owned, | 19 | | managed, or collected by any of the pharmacy benefits | 20 | | manager's management companies, parent companies, | 21 | | subsidiary companies, jointly held companies, or companies | 22 | | otherwise affiliated by a common owner, manager, or holding | 23 | | company; or that share any common members on the board of | 24 | | directors; or that share managers in common; | 25 | | (4) the average reimbursement per contract by drug | 26 | | ingredient cost, dispensing fee, and any other fee, paid by |
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| 1 | | a pharmacy benefits manager to pharmacies licensed in | 2 | | Illinois other than those subject to paragraph (3); | 3 | | (5) any direct or indirect fees, charges, or any kind | 4 | | of assessments imposed by the pharmacy benefits manager on | 5 | | pharmacies licensed in Illinois with which the pharmacy | 6 | | benefits manager shares common ownership, management, or | 7 | | control; or that are owned, managed, or controlled by any | 8 | | of the pharmacy benefits manager's management companies, | 9 | | parent companies, subsidiary companies, jointly held | 10 | | companies, or companies otherwise affiliated by a common | 11 | | owner, manager, or holding company; or that share any | 12 | | common members on the board of directors; or that share | 13 | | managers in common; | 14 | | (6) any direct or indirect fees, charges, or any kind | 15 | | of assessments imposed by the pharmacy benefits manager on | 16 | | pharmacies licensed in Illinois other than those subject to | 17 | | paragraph (5); and | 18 | | (7) all common ownership, management, common members | 19 | | of a board of directors, shared managers, or control of a | 20 | | pharmacy benefits manager, or any of the pharmacy benefits | 21 | | manager's management companies, parent companies, | 22 | | subsidiary companies, jointly held companies, or companies | 23 | | otherwise affiliated by a common owner, manager, or holding | 24 | | company with any managed care organization contracted to | 25 | | administer Medicaid benefits, any entity that contracts on | 26 | | behalf of a pharmacy, or any pharmacy services |
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| 1 | | administration organization, or any common ownership, | 2 | | management, common members of a board of directors, shared | 3 | | managers, or control of a pharmacy services administration | 4 | | organization that is contracted with a pharmacy benefits | 5 | | manager, with any drug wholesaler or distributors or any of | 6 | | the pharmacy services administration organization, | 7 | | management companies, parent companies, subsidiary | 8 | | companies, jointly held companies, or companies otherwise | 9 | | affiliated by a common owner, common members of a board of | 10 | | directors, manager, or holding company. | 11 | | (b) All information provided by a pharmacy benefits manager | 12 | | pursuant to this Section shall reflect data for the most recent | 13 | | full calendar year and shall be divided by quarter. This | 14 | | information shall be managed by the Department and shall be | 15 | | exempt from the Freedom of Information Act. The Department | 16 | | shall submit a report to the General Assembly annually and | 17 | | publish the report on its website on the information provided | 18 | | in this Section provided the information is presented in the | 19 | | aggregate. The report to the General Assembly shall be filed | 20 | | with the Clerk of the House of Representatives and the | 21 | | Secretary of the Senate in electronic form only, in the manner | 22 | | that the Clerk and the Secretary shall direct. | 23 | | (c) Contract information between a pharmacy benefits | 24 | | manager and a pharmacy provider shall be exempt from the | 25 | | Freedom of Information Act. |
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| 1 | | Section 25. Duties to pharmacy providers. | 2 | | (a) A pharmacy benefits manager shall not include in a | 3 | | contract with a pharmacy provider any of the following | 4 | | provisions: | 5 | | (1) a provision that prohibits the pharmacy provider | 6 | | from informing a patient of a more affordable alternative | 7 | | to a prescribed medication if a more affordable alternative | 8 | | is available; | 9 | | (2) a provision prohibiting a pharmacy provider from | 10 | | disclosing any contract information to the Department or | 11 | | any other government agency or an elected official; or | 12 | | (3) a provision requiring the pharmacy provider to | 13 | | participate in a managed care organization's provider | 14 | | network to administer benefits under the State Employees | 15 | | Group Insurance Act of 1971 or the Illinois Public Aid Code | 16 | | as a condition of participation in a national pharmacy | 17 | | provider contract. | 18 | | (b) A pharmacy benefits manager shall be subject to the | 19 | | following requirements regarding reimbursement appeals: | 20 | | (1) A pharmacy provider may appeal a reimbursement to a | 21 | | pharmacy benefits manager within 60 days after the date of | 22 | | service and the pharmacy benefits manager shall respond no | 23 | | later than 7 days after the appeal is filed with the | 24 | | pharmacy benefits manager. If the pharmacy benefits | 25 | | manager fails to respond within 7 days after the appeal is | 26 | | filed with the pharmacy benefits manager, the appeal is to |
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| 1 | | be ruled in favor of the pharmacy provider. | 2 | | (2) A pharmacy provider may appeal the remuneration | 3 | | rate to the managed care organization within 60 days after | 4 | | the date of service, and the managed care organization | 5 | | shall respond no later than 7 days after the appeal is | 6 | | filed with the managed care organization. If the managed | 7 | | care organization fails to respond within 7 days after the | 8 | | appeal is filed with the managed care organization, the | 9 | | appeal is to be ruled in favor of the pharmacy provider. | 10 | | (c) A pharmacy benefits manager that performs pharmacy | 11 | | audits or contracts with an auditing entity for the purpose of | 12 | | administering pharmacy audits shall not engage in conduct | 13 | | prohibited under Section 30. An auditing entity's conduct under | 14 | | Section 30 shall be attributed to the contracting pharmacy | 15 | | benefits manager for purposes of Section 15. | 16 | | (d) The Department shall, by rule, develop procedures that | 17 | | provide a pharmacy provider the opportunity to file a complaint | 18 | | of violations of this Section and receive a resolution. | 19 | | Section 30. Audits. | 20 | | (a) As used in this Section: | 21 | | "Auditing entity" means a person or company contracted to | 22 | | perform a pharmacy audit. | 23 | | "Business day" means any day of the week excluding | 24 | | Saturday, Sunday, and any legal holiday, as defined in Section | 25 | | 17 of the Promissory Note and Bank Holiday Act. |
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| 1 | | "Covered entity" has the meaning given to it under 45 CFR | 2 | | 160.103. | 3 | | "Covered individual" means a member, participant, | 4 | | enrollee, or beneficiary of a covered entity, including a | 5 | | dependent or other person covered through the policy or | 6 | | contract of a covered individual. | 7 | | "Extrapolation" means the practice of inferring a | 8 | | frequency of dollar amount of overpayments, underpayments, | 9 | | nonvalid claims, or other errors on any portion of claims | 10 | | submitted, based on the frequency of dollar amount of | 11 | | overpayments, underpayments, nonvalid claims, or other errors | 12 | | actually measured in a sample of claims. | 13 | | "Misfill" means a prescription that was not dispensed, | 14 | | dispensing of an incorrect dose, amount, or type of medication, | 15 | | dispensing a prescription drug to the wrong person, a | 16 | | prescription in which the prescriber denied the authorization | 17 | | request, or a prescription in which an additional dispensing | 18 | | fee was charged. | 19 | | "Pharmacy audit" means an audit conducted of any records of | 20 | | a pharmacy for prescriptions or non-proprietary drugs | 21 | | dispensed by a pharmacy to a covered individual. | 22 | | "Pharmacy record" means any record stored electronically | 23 | | or as a hard copy by a pharmacy that relates to the provision | 24 | | of a prescription or pharmacy services or other component of | 25 | | pharmacist care that is included in the practice of pharmacy. | 26 | | (b) When conducting a pharmacy audit on behalf of a |
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| 1 | | pharmacy benefits manager, an auditing entity shall: | 2 | | (1) not conduct an on-site audit of a pharmacy at any | 3 | | time during the first 3 business days of a month; | 4 | | (2) notify the pharmacy or its contracting agent no | 5 | | later than 15 days before the date of initial on-site | 6 | | audit; the notification to the pharmacy or its contracting | 7 | | agent shall be in writing delivered either: | 8 | | (A) by mail or common carrier, return receipt | 9 | | requested; or | 10 | | (B) electronically with electronic receipt | 11 | | confirmation, addressed to the supervising pharmacist | 12 | | of record and pharmacy corporate office, if | 13 | | applicable, at least 15 days before the date of an | 14 | | initial on-site audit; | 15 | | (3) limit the audit period to 24 months after the date | 16 | | a claim is submitted to or adjudicated by the pharmacy | 17 | | benefits manager; | 18 | | (4) include in the written advance notice of an on-site | 19 | | audit the list of specific prescription numbers to be | 20 | | included in the audit that may or may not include the final | 21 | | 2 digits of the prescription numbers; | 22 | | (5) use the written and verifiable records of a | 23 | | hospital, physician, or other authorized practitioner that | 24 | | are transmitted by any means of communication to validate | 25 | | the pharmacy records in accordance with State and federal | 26 | | law; |
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| 1 | | (6) limit the number of prescriptions audited to no | 2 | | more than 100 randomly selected in a 12-month period, | 3 | | except in cases of fraud; | 4 | | (7) provide the pharmacy or its contracting agent with | 5 | | a copy of the preliminary audit report within 45 days after | 6 | | the conclusion of the audit; | 7 | | (8) be allowed to conduct a follow-up audit on-site if | 8 | | a remote or desk audit reveals the necessity for a review | 9 | | of additional claims; | 10 | | (9) in the case of invoice audits, accept as validation | 11 | | invoices from any wholesaler registered with the | 12 | | Department of Financial and Professional Regulation from | 13 | | which the pharmacy has purchased prescription drugs or, in | 14 | | the case of durable medical equipment or sickroom supplies, | 15 | | invoices from an authorized distributor other than a | 16 | | wholesaler; | 17 | | (10) provide the pharmacy or its contracting agent with | 18 | | the ability to provide documentation to address a | 19 | | discrepancy or audit finding; the documentation must be | 20 | | received by the pharmacy benefits manager no later than the | 21 | | 45th day after the preliminary audit report was provided to | 22 | | the pharmacy or its contracting agent; the pharmacy | 23 | | benefits manager shall consider a reasonable request from | 24 | | the pharmacy for an extension of time to submit | 25 | | documentation to address or correct any findings in the | 26 | | report; |
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| 1 | | (11) provide the pharmacy or its contracting agent with | 2 | | the final audit report no later than 60 days after the | 3 | | preliminary audit report was provided to the pharmacy or | 4 | | its contracting agent unless an extension was granted | 5 | | pursuant to paragraph (10), in which case the final audit | 6 | | report is due 30 days after the expiration of the | 7 | | extension; and | 8 | | (12) conduct the audit in consultation with a | 9 | | pharmacist if the audit involves clinical or professional | 10 | | judgment. | 11 | | (c) Except as otherwise provided by federal or State law, | 12 | | an auditing entity conducting a pharmacy audit may have access | 13 | | to a pharmacy's previous audit report only if the report was | 14 | | prepared by that auditing entity. | 15 | | (d) Information collected during a pharmacy audit shall be | 16 | | confidential by law, except that the auditing entity conducting | 17 | | the pharmacy audit may share the information with the covered | 18 | | entity for which a pharmacy audit is being conducted and with | 19 | | any regulatory agencies and law enforcement agencies as | 20 | | required by law. | 21 | | (e) A pharmacy may not be subject to a charge-back or | 22 | | recoupment for a clerical or recordkeeping error in a required | 23 | | document or record, including a typographical error or computer | 24 | | error, unless the error resulted in overpayment to the | 25 | | pharmacy. | 26 | | (f) A pharmacy shall have the right to file a written |
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| 1 | | appeal of a preliminary and final pharmacy audit report in | 2 | | accordance with the procedures established by the entity | 3 | | conducting the pharmacy audit. | 4 | | (g) An auditing entity conducing a pharmacy audit may not | 5 | | charge-back, recoup, or collect penalties from a pharmacy until | 6 | | the time period to file an appeal of the final pharmacy audit | 7 | | report has passed or the appeals process has been exhausted, | 8 | | whichever is later, unless the identified discrepancy is | 9 | | expected to exceed $25,000, in which case the auditing entity | 10 | | may withhold future payments in excess of that amount until the | 11 | | final resolution of the audit. | 12 | | (h) No interest shall accrue for any party during the audit | 13 | | period, beginning with the notice of the pharmacy audit and | 14 | | ending with the conclusion of the appeals process. | 15 | | (i) The auditing entity may not compensate the employee or | 16 | | contractor conducting the audit based on a percentage of the | 17 | | amount claimed or recouped pursuant to the audit. | 18 | | (j) The auditing entity may not use extrapolation to | 19 | | calculate penalties or amounts to be charged back or recouped | 20 | | unless otherwise required by federal law or regulation. Any | 21 | | amount to be charged back or recouped due to overpayment may | 22 | | not exceed the amount the pharmacy was overpaid. | 23 | | (k) The auditing entity may not include dispensing fees in | 24 | | the calculation of overpayments unless a prescription is | 25 | | considered a misfill. | 26 | | (l) An auditing entity shall conduct a pharmacy audit under |
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| 1 | | the same standards and parameters as conducted for other | 2 | | similarly situated pharmacies audited by the auditing entity. | 3 | | (m) Any claim that was retroactively denied for a clerical | 4 | | error, typographical error, scrivener's error, or computer | 5 | | error shall be paid if the prescription was properly and | 6 | | correctly dispensed, unless a pattern of such errors exists, | 7 | | fraudulent billing is alleged, or the error results in actual | 8 | | financial loss to the entity. A clerical error is an error that | 9 | | does not result in actual financial harm to the covered entity | 10 | | or consumer and does not include the dispensing of an incorrect | 11 | | dose, amount or type of medication, or dispensing a | 12 | | prescription drug to the wrong person. | 13 | | (n) This Section does not apply to: | 14 | | (1) audits in which suspected fraudulent activity or | 15 | | other intentional or willful misrepresentation is | 16 | | evidenced by a physical review, review of claims data or | 17 | | statements, or other investigative methods; or | 18 | | (2) concurrent reviews or desk audits that occur within | 19 | | 3 business days after transmission of a claim and where no | 20 | | charge-back or recoupment is demanded. | 21 | | Section 35. Rulemaking. No later than 90 days after the | 22 | | effective date of this Act, the Department shall adopt rules | 23 | | necessary to implement the provisions of this Act. | 24 | | Section 90. The Freedom of Information Act is amended by |
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| 1 | | changing Section 7 as follows: | 2 | | (5 ILCS 140/7) (from Ch. 116, par. 207) | 3 | | Sec. 7. Exemptions.
| 4 | | (1) When a request is made to inspect or copy a public | 5 | | record that contains information that is exempt from disclosure | 6 | | under this Section, but also contains information that is not | 7 | | exempt from disclosure, the public body may elect to redact the | 8 | | information that is exempt. The public body shall make the | 9 | | remaining information available for inspection and copying. | 10 | | Subject to this requirement, the following shall be exempt from | 11 | | inspection and copying:
| 12 | | (a) Information specifically prohibited from | 13 | | disclosure by federal or
State law or rules and regulations | 14 | | implementing federal or State law.
| 15 | | (b) Private information, unless disclosure is required | 16 | | by another provision of this Act, a State or federal law or | 17 | | a court order. | 18 | | (b-5) Files, documents, and other data or databases | 19 | | maintained by one or more law enforcement agencies and | 20 | | specifically designed to provide information to one or more | 21 | | law enforcement agencies regarding the physical or mental | 22 | | status of one or more individual subjects. | 23 | | (c) Personal information contained within public | 24 | | records, the disclosure of which would constitute a clearly
| 25 | | unwarranted invasion of personal privacy, unless the |
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| 1 | | disclosure is
consented to in writing by the individual | 2 | | subjects of the information. "Unwarranted invasion of | 3 | | personal privacy" means the disclosure of information that | 4 | | is highly personal or objectionable to a reasonable person | 5 | | and in which the subject's right to privacy outweighs any | 6 | | legitimate public interest in obtaining the information. | 7 | | The
disclosure of information that bears on the public | 8 | | duties of public
employees and officials shall not be | 9 | | considered an invasion of personal
privacy.
| 10 | | (d) Records in the possession of any public body | 11 | | created in the course of administrative enforcement
| 12 | | proceedings, and any law enforcement or correctional | 13 | | agency for
law enforcement purposes,
but only to the extent | 14 | | that disclosure would:
| 15 | | (i) interfere with pending or actually and | 16 | | reasonably contemplated
law enforcement proceedings | 17 | | conducted by any law enforcement or correctional
| 18 | | agency that is the recipient of the request;
| 19 | | (ii) interfere with active administrative | 20 | | enforcement proceedings
conducted by the public body | 21 | | that is the recipient of the request;
| 22 | | (iii) create a substantial likelihood that a | 23 | | person will be deprived of a fair trial or an impartial | 24 | | hearing;
| 25 | | (iv) unavoidably disclose the identity of a | 26 | | confidential source, confidential information |
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| 1 | | furnished only by the confidential source, or persons | 2 | | who file complaints with or provide information to | 3 | | administrative, investigative, law enforcement, or | 4 | | penal agencies; except that the identities of | 5 | | witnesses to traffic accidents, traffic accident | 6 | | reports, and rescue reports shall be provided by | 7 | | agencies of local government, except when disclosure | 8 | | would interfere with an active criminal investigation | 9 | | conducted by the agency that is the recipient of the | 10 | | request;
| 11 | | (v) disclose unique or specialized investigative | 12 | | techniques other than
those generally used and known or | 13 | | disclose internal documents of
correctional agencies | 14 | | related to detection, observation or investigation of
| 15 | | incidents of crime or misconduct, and disclosure would | 16 | | result in demonstrable harm to the agency or public | 17 | | body that is the recipient of the request;
| 18 | | (vi) endanger the life or physical safety of law | 19 | | enforcement personnel
or any other person; or
| 20 | | (vii) obstruct an ongoing criminal investigation | 21 | | by the agency that is the recipient of the request.
| 22 | | (d-5) A law enforcement record created for law | 23 | | enforcement purposes and contained in a shared electronic | 24 | | record management system if the law enforcement agency that | 25 | | is the recipient of the request did not create the record, | 26 | | did not participate in or have a role in any of the events |
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| 1 | | which are the subject of the record, and only has access to | 2 | | the record through the shared electronic record management | 3 | | system. | 4 | | (e) Records that relate to or affect the security of | 5 | | correctional
institutions and detention facilities.
| 6 | | (e-5) Records requested by persons committed to the | 7 | | Department of Corrections or a county jail if those | 8 | | materials are available in the library of the correctional | 9 | | facility or jail where the inmate is confined. | 10 | | (e-6) Records requested by persons committed to the | 11 | | Department of Corrections or a county jail if those | 12 | | materials include records from staff members' personnel | 13 | | files, staff rosters, or other staffing assignment | 14 | | information. | 15 | | (e-7) Records requested by persons committed to the | 16 | | Department of Corrections if those materials are available | 17 | | through an administrative request to the Department of | 18 | | Corrections. | 19 | | (e-8) Records requested by a person committed to the | 20 | | Department of Corrections or a county jail, the disclosure | 21 | | of which would result in the risk of harm to any person or | 22 | | the risk of an escape from a jail or correctional | 23 | | institution or facility. | 24 | | (e-9) Records requested by a person in a county jail or | 25 | | committed to the Department of Corrections containing | 26 | | personal information pertaining to the person's victim or |
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| 1 | | the victim's family, including, but not limited to, a | 2 | | victim's home address, home telephone number, work or | 3 | | school address, work telephone number, social security | 4 | | number, or any other identifying information, except as may | 5 | | be relevant to a requester's current or potential case or | 6 | | claim. | 7 | | (e-10) Law enforcement records of other persons | 8 | | requested by a person committed to the Department of | 9 | | Corrections or a county jail, including, but not limited | 10 | | to, arrest and booking records, mug shots, and crime scene | 11 | | photographs, except as these records may be relevant to the | 12 | | requester's current or potential case or claim. | 13 | | (f) Preliminary drafts, notes, recommendations, | 14 | | memoranda and other
records in which opinions are | 15 | | expressed, or policies or actions are
formulated, except | 16 | | that a specific record or relevant portion of a
record | 17 | | shall not be exempt when the record is publicly cited
and | 18 | | identified by the head of the public body. The exemption | 19 | | provided in
this paragraph (f) extends to all those records | 20 | | of officers and agencies
of the General Assembly that | 21 | | pertain to the preparation of legislative
documents.
| 22 | | (g) Trade secrets and commercial or financial | 23 | | information obtained from
a person or business where the | 24 | | trade secrets or commercial or financial information are | 25 | | furnished under a claim that they are
proprietary, | 26 | | privileged or confidential, and that disclosure of the |
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| 1 | | trade
secrets or commercial or financial information would | 2 | | cause competitive harm to the person or business, and only | 3 | | insofar as the claim directly applies to the records | 4 | | requested. | 5 | | The information included under this exemption includes | 6 | | all trade secrets and commercial or financial information | 7 | | obtained by a public body, including a public pension fund, | 8 | | from a private equity fund or a privately held company | 9 | | within the investment portfolio of a private equity fund as | 10 | | a result of either investing or evaluating a potential | 11 | | investment of public funds in a private equity fund. The | 12 | | exemption contained in this item does not apply to the | 13 | | aggregate financial performance information of a private | 14 | | equity fund, nor to the identity of the fund's managers or | 15 | | general partners. The exemption contained in this item does | 16 | | not apply to the identity of a privately held company | 17 | | within the investment portfolio of a private equity fund, | 18 | | unless the disclosure of the identity of a privately held | 19 | | company may cause competitive harm. | 20 | | Nothing contained in this
paragraph (g) shall be | 21 | | construed to prevent a person or business from
consenting | 22 | | to disclosure.
| 23 | | (h) Proposals and bids for any contract, grant, or | 24 | | agreement, including
information which if it were | 25 | | disclosed would frustrate procurement or give
an advantage | 26 | | to any person proposing to enter into a contractor |
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| 1 | | agreement
with the body, until an award or final selection | 2 | | is made. Information
prepared by or for the body in | 3 | | preparation of a bid solicitation shall be
exempt until an | 4 | | award or final selection is made.
| 5 | | (i) Valuable formulae,
computer geographic systems,
| 6 | | designs, drawings and research data obtained or
produced by | 7 | | any public body when disclosure could reasonably be | 8 | | expected to
produce private gain or public loss.
The | 9 | | exemption for "computer geographic systems" provided in | 10 | | this paragraph
(i) does not extend to requests made by news | 11 | | media as defined in Section 2 of
this Act when the | 12 | | requested information is not otherwise exempt and the only
| 13 | | purpose of the request is to access and disseminate | 14 | | information regarding the
health, safety, welfare, or | 15 | | legal rights of the general public.
| 16 | | (j) The following information pertaining to | 17 | | educational matters: | 18 | | (i) test questions, scoring keys and other | 19 | | examination data used to
administer an academic | 20 | | examination;
| 21 | | (ii) information received by a primary or | 22 | | secondary school, college, or university under its | 23 | | procedures for the evaluation of faculty members by | 24 | | their academic peers; | 25 | | (iii) information concerning a school or | 26 | | university's adjudication of student disciplinary |
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| 1 | | cases, but only to the extent that disclosure would | 2 | | unavoidably reveal the identity of the student; and | 3 | | (iv) course materials or research materials used | 4 | | by faculty members. | 5 | | (k) Architects' plans, engineers' technical | 6 | | submissions, and
other
construction related technical | 7 | | documents for
projects not constructed or developed in | 8 | | whole or in part with public funds
and the same for | 9 | | projects constructed or developed with public funds, | 10 | | including but not limited to power generating and | 11 | | distribution stations and other transmission and | 12 | | distribution facilities, water treatment facilities, | 13 | | airport facilities, sport stadiums, convention centers, | 14 | | and all government owned, operated, or occupied buildings, | 15 | | but
only to the extent
that disclosure would compromise | 16 | | security.
| 17 | | (l) Minutes of meetings of public bodies closed to the
| 18 | | public as provided in the Open Meetings Act until the | 19 | | public body
makes the minutes available to the public under | 20 | | Section 2.06 of the Open
Meetings Act.
| 21 | | (m) Communications between a public body and an | 22 | | attorney or auditor
representing the public body that would | 23 | | not be subject to discovery in
litigation, and materials | 24 | | prepared or compiled by or for a public body in
| 25 | | anticipation of a criminal, civil or administrative | 26 | | proceeding upon the
request of an attorney advising the |
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| 1 | | public body, and materials prepared or
compiled with | 2 | | respect to internal audits of public bodies.
| 3 | | (n) Records relating to a public body's adjudication of | 4 | | employee grievances or disciplinary cases; however, this | 5 | | exemption shall not extend to the final outcome of cases in | 6 | | which discipline is imposed.
| 7 | | (o) Administrative or technical information associated | 8 | | with automated
data processing operations, including but | 9 | | not limited to software,
operating protocols, computer | 10 | | program abstracts, file layouts, source
listings, object | 11 | | modules, load modules, user guides, documentation
| 12 | | pertaining to all logical and physical design of | 13 | | computerized systems,
employee manuals, and any other | 14 | | information that, if disclosed, would
jeopardize the | 15 | | security of the system or its data or the security of
| 16 | | materials exempt under this Section.
| 17 | | (p) Records relating to collective negotiating matters
| 18 | | between public bodies and their employees or | 19 | | representatives, except that
any final contract or | 20 | | agreement shall be subject to inspection and copying.
| 21 | | (q) Test questions, scoring keys, and other | 22 | | examination data used to determine the qualifications of an | 23 | | applicant for a license or employment.
| 24 | | (r) The records, documents, and information relating | 25 | | to real estate
purchase negotiations until those | 26 | | negotiations have been completed or
otherwise terminated. |
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| 1 | | With regard to a parcel involved in a pending or
actually | 2 | | and reasonably contemplated eminent domain proceeding | 3 | | under the Eminent Domain Act, records, documents and
| 4 | | information relating to that parcel shall be exempt except | 5 | | as may be
allowed under discovery rules adopted by the | 6 | | Illinois Supreme Court. The
records, documents and | 7 | | information relating to a real estate sale shall be
exempt | 8 | | until a sale is consummated.
| 9 | | (s) Any and all proprietary information and records | 10 | | related to the
operation of an intergovernmental risk | 11 | | management association or
self-insurance pool or jointly | 12 | | self-administered health and accident
cooperative or pool.
| 13 | | Insurance or self insurance (including any | 14 | | intergovernmental risk management association or self | 15 | | insurance pool) claims, loss or risk management | 16 | | information, records, data, advice or communications.
| 17 | | (t) Information contained in or related to | 18 | | examination, operating, or
condition reports prepared by, | 19 | | on behalf of, or for the use of a public
body responsible | 20 | | for the regulation or supervision of financial
| 21 | | institutions or insurance companies, unless disclosure is | 22 | | otherwise
required by State law.
| 23 | | (u) Information that would disclose
or might lead to | 24 | | the disclosure of
secret or confidential information, | 25 | | codes, algorithms, programs, or private
keys intended to be | 26 | | used to create electronic or digital signatures under the
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| 1 | | Electronic Commerce Security Act.
| 2 | | (v) Vulnerability assessments, security measures, and | 3 | | response policies
or plans that are designed to identify, | 4 | | prevent, or respond to potential
attacks upon a community's | 5 | | population or systems, facilities, or installations,
the | 6 | | destruction or contamination of which would constitute a | 7 | | clear and present
danger to the health or safety of the | 8 | | community, but only to the extent that
disclosure could | 9 | | reasonably be expected to jeopardize the effectiveness of | 10 | | the
measures or the safety of the personnel who implement | 11 | | them or the public.
Information exempt under this item may | 12 | | include such things as details
pertaining to the | 13 | | mobilization or deployment of personnel or equipment, to | 14 | | the
operation of communication systems or protocols, or to | 15 | | tactical operations.
| 16 | | (w) (Blank). | 17 | | (x) Maps and other records regarding the location or | 18 | | security of generation, transmission, distribution, | 19 | | storage, gathering,
treatment, or switching facilities | 20 | | owned by a utility, by a power generator, or by the | 21 | | Illinois Power Agency.
| 22 | | (y) Information contained in or related to proposals, | 23 | | bids, or negotiations related to electric power | 24 | | procurement under Section 1-75 of the Illinois Power Agency | 25 | | Act and Section 16-111.5 of the Public Utilities Act that | 26 | | is determined to be confidential and proprietary by the |
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| 1 | | Illinois Power Agency or by the Illinois Commerce | 2 | | Commission.
| 3 | | (z) Information about students exempted from | 4 | | disclosure under Sections 10-20.38 or 34-18.29 of the | 5 | | School Code, and information about undergraduate students | 6 | | enrolled at an institution of higher education exempted | 7 | | from disclosure under Section 25 of the Illinois Credit | 8 | | Card Marketing Act of 2009. | 9 | | (aa) Information the disclosure of which is
exempted | 10 | | under the Viatical Settlements Act of 2009.
| 11 | | (bb) Records and information provided to a mortality | 12 | | review team and records maintained by a mortality review | 13 | | team appointed under the Department of Juvenile Justice | 14 | | Mortality Review Team Act. | 15 | | (cc) Information regarding interments, entombments, or | 16 | | inurnments of human remains that are submitted to the | 17 | | Cemetery Oversight Database under the Cemetery Care Act or | 18 | | the Cemetery Oversight Act, whichever is applicable. | 19 | | (dd) Correspondence and records (i) that may not be | 20 | | disclosed under Section 11-9 of the Illinois Public Aid | 21 | | Code or (ii) that pertain to appeals under Section 11-8 of | 22 | | the Illinois Public Aid Code. | 23 | | (ee) The names, addresses, or other personal | 24 | | information of persons who are minors and are also | 25 | | participants and registrants in programs of park | 26 | | districts, forest preserve districts, conservation |
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| 1 | | districts, recreation agencies, and special recreation | 2 | | associations. | 3 | | (ff) The names, addresses, or other personal | 4 | | information of participants and registrants in programs of | 5 | | park districts, forest preserve districts, conservation | 6 | | districts, recreation agencies, and special recreation | 7 | | associations where such programs are targeted primarily to | 8 | | minors. | 9 | | (gg) Confidential information described in Section | 10 | | 1-100 of the Illinois Independent Tax Tribunal Act of 2012. | 11 | | (hh) The report submitted to the State Board of | 12 | | Education by the School Security and Standards Task Force | 13 | | under item (8) of subsection (d) of Section 2-3.160 of the | 14 | | School Code and any information contained in that report. | 15 | | (ii) Records requested by persons committed to or | 16 | | detained by the Department of Human Services under the | 17 | | Sexually Violent Persons Commitment Act or committed to the | 18 | | Department of Corrections under the Sexually Dangerous | 19 | | Persons Act if those materials: (i) are available in the | 20 | | library of the facility where the individual is confined; | 21 | | (ii) include records from staff members' personnel files, | 22 | | staff rosters, or other staffing assignment information; | 23 | | or (iii) are available through an administrative request to | 24 | | the Department of Human Services or the Department of | 25 | | Corrections. | 26 | | (jj) Confidential information described in Section |
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| 1 | | 5-535 of the Civil Administrative Code of Illinois. | 2 | | (kk) Information described in Section 20 of the | 3 | | Pharmacy Benefits Manager Licensing Act. | 4 | | (1.5) Any information exempt from disclosure under the | 5 | | Judicial Privacy Act shall be redacted from public records | 6 | | prior to disclosure under this Act. | 7 | | (2) A public record that is not in the possession of a | 8 | | public body but is in the possession of a party with whom the | 9 | | agency has contracted to perform a governmental function on | 10 | | behalf of the public body, and that directly relates to the | 11 | | governmental function and is not otherwise exempt under this | 12 | | Act, shall be considered a public record of the public body, | 13 | | for purposes of this Act. | 14 | | (3) This Section does not authorize withholding of | 15 | | information or limit the
availability of records to the public, | 16 | | except as stated in this Section or
otherwise provided in this | 17 | | Act.
| 18 | | (Source: P.A. 99-298, eff. 8-6-15; 99-346, eff. 1-1-16; 99-642, | 19 | | eff. 7-28-16; 100-26, eff. 8-4-17; 100-201, eff. 8-18-17.)
| 20 | | Section 99. Effective date. This Act takes effect January | 21 | | 1, 2019.".
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